===============================================================================
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
L-3 COMMUNICATIONS CORPORATION,
A DELAWARE CORPORATION,
AS BORROWER,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
THE CERTAIN FINANCIAL INSTITUTIONS NAMED AS CO-AGENTS HEREIN,
BANC OF AMERICA SECURITIES LLC
AND
XXXXXX COMMERCIAL PAPER INC.,
AS ARRANGERS,
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
AND
XXXXXX COMMERCIAL PAPER INC.,
AS DOCUMENTATION AGENT AND SYNDICATION AGENT
DATED AS OF APRIL 24, 2000
===============================================================================
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS...........................................................................................1
1.1. Defined Terms.......................................................................................1
1.2. Other Definitional Provisions......................................................................24
1.3. Interrelationship with Original Credit Agreement...................................................24
1.4. Confirmation of Existing Obligations...............................................................25
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS AND LOANS.............................................................25
2.1. Commitments........................................................................................25
2.2. Procedure for Borrowing............................................................................27
2.3. Commitment Fee.....................................................................................28
2.4. Termination or Reduction of Revolving Credit Commitments...........................................28
2.5. Repayment of Loans; Evidence of Debt...............................................................28
2.6. Optional Prepayments; Mandatory Prepayments and Reduction of Commitments...........................30
2.7. Conversion and Continuation Options................................................................32
2.8. Minimum Amounts and Maximum Number of Tranches.....................................................33
2.9. Interest Rates and Payment Dates...................................................................33
2.10. Computation of Interest and Fees..................................................................34
2.11. Inability to Determine Interest Rate..............................................................34
2.12. Pro Rata Treatment and Payments...................................................................34
2.13. Illegality........................................................................................36
2.14. Requirements of Law...............................................................................36
2.15. Taxes.............................................................................................38
2.16. Indemnity.........................................................................................41
2.17. Replacement of Lenders............................................................................41
2.18. Certain Fees......................................................................................42
2.19. Certain Rules Relating to the Payment of Additional Amounts.......................................42
SECTION 3. LETTERS OF CREDIT.....................................................................................43
3.1. L/C Commitment.....................................................................................43
3.2. Procedure for Issuance of Letters of Credit........................................................43
3.3. Fees, Commissions and Other Charges................................................................44
3.4. L/C Participation..................................................................................44
3.5. Reimbursement Obligation of the Borrower...........................................................46
i
3.6. Obligations Absolute...............................................................................46
3.7. Letter of Credit Payments..........................................................................47
3.8. Application........................................................................................47
3.9. Determination of Exchange Rate.....................................................................47
SECTION 4. REPRESENTATIONS AND WARRANTIES........................................................................47
4.1. Financial Condition................................................................................48
4.2. No Change..........................................................................................48
4.3. Corporate Existence; Compliance with Law...........................................................48
4.4. Corporate Power; Authorization; Enforceable Obligations............................................48
4.5. No Legal Bar.......................................................................................49
4.6. No Material Litigation.............................................................................49
4.7. No Default.........................................................................................49
4.8. Ownership of Property; Liens.......................................................................49
4.9. Intellectual Property..............................................................................49
4.10. Taxes.............................................................................................50
4.11. Federal Regulations...............................................................................50
4.12. ERISA.............................................................................................50
4.13. Investment Company Act; Other Regulations.........................................................51
4.14. Subsidiaries......................................................................................51
4.15. Purpose of Loans..................................................................................51
4.16. Environmental Matters.............................................................................51
4.17. Collateral Documents..............................................................................52
4.18. Accuracy and Completeness of Information..........................................................52
4.19. Labor Matters.....................................................................................53
SECTION 5. CONDITIONS PRECEDENT..................................................................................53
5.1. Conditions to Initial Loans........................................................................53
5.2. Conditions to Each Extension of Credit.............................................................56
SECTION 6. AFFIRMATIVE COVENANTS.................................................................................56
6.1. SEC Filings........................................................................................56
6.2. Certificates; Other Information....................................................................57
6.3. Payment of Obligations.............................................................................58
6.4. Conduct of Business; Maintenance of Existence and Property; Compliance with Law....................58
6.5. Insurance..........................................................................................58
6.6. Inspection of Property; Books and Records; Discussions.............................................58
6.7. Notices............................................................................................58
6.8. Environmental Laws.................................................................................59
ii
6.9. Further Assurances.................................................................................60
6.10. Additional Collateral.............................................................................60
6.11. [Intentionally Omitted.]..........................................................................61
6.12. Foreign Jurisdictions.............................................................................61
6.13. Government Contracts..............................................................................61
6.14. Lien Searches.....................................................................................61
SECTION 7. NEGATIVE COVENANTS....................................................................................61
7.1. Financial Condition Covenants......................................................................61
7.2. Limitation on Indebtedness.........................................................................62
7.3. Limitation on Liens................................................................................63
7.4. Limitation on Guarantee Obligations................................................................65
7.5. Limitation on Fundamental Changes..................................................................66
7.6. Limitation on Sale of Assets.......................................................................66
7.7. Limitation on Dividends............................................................................67
7.8. Limitation on Capital Expenditures.................................................................67
7.9. Limitation on Investments, Loans and Advances......................................................67
7.10. Limitation on Optional Payments and Modifications of Instruments and Agreements...................69
7.11. Limitation on Transactions with Affiliates........................................................69
7.12. Limitation on Sales and Leasebacks................................................................70
7.13. Limitation on Changes in Fiscal Year..............................................................70
7.14. Limitation on Negative Pledge Clauses.............................................................70
7.15. Limitation on Lines of Business...................................................................70
7.16. Designated Senior Debt............................................................................70
SECTION 8. EVENTS OF DEFAULT.....................................................................................71
SECTION 9. THE AGENTS; THE ARRANGERS.............................................................................74
9.1. Appointment........................................................................................74
9.2. Delegation of Duties...............................................................................74
9.3. Exculpatory Provisions.............................................................................74
9.4. Reliance by Agents.................................................................................75
9.5. Notice of Default..................................................................................75
9.6. Non-Reliance on Agents and Other Lenders...........................................................75
9.7. Indemnification....................................................................................76
9.8. Agents, in Their Individual Capacities.............................................................76
9.9. Successor Administrative Agent, Syndication Agent and Documentation Agent..........................76
9.10. The Arrangers and the Co-Agents...................................................................77
iii
SECTION 10. MISCELLANEOUS........................................................................................77
10.1. Amendments and Waivers............................................................................77
10.2. Notices...........................................................................................78
10.3. No Waiver; Cumulative Remedies....................................................................81
10.4. Survival of Representations and Warranties........................................................82
10.5. Payment of Expenses and Taxes.....................................................................82
10.6. Successors and Assigns; Participation and Assignments.............................................83
10.7. Adjustments; Set-off..............................................................................86
10.8. Counterparts......................................................................................87
10.9. Severability......................................................................................87
10.10. Integration......................................................................................87
10.11. GOVERNING LAW....................................................................................87
10.12. SUBMISSION TO JURISDICTION; WAIVERS..............................................................87
10.13. Acknowledgments..................................................................................88
10.14. WAIVERS OF JURY TRIAL............................................................................88
10.15. Confidentiality..................................................................................89
10.16. Conversion of Currencies.........................................................................89
10.17. Year 2000........................................................................................89
10.18. Existing Agreements Superseded...................................................................90
iv
EXHIBITS
Exhibit A-1 Form of Revolving Credit Note
Exhibit A-2 Form of Swing Line Note
Exhibit B-1 Form of Parent Guarantee
Exhibit B-2 Form of Subsidiary Guarantee
Exhibit B-3 Form of Parent Pledge Agreement
Exhibit B-4A Form of Borrower Pledge Agreement
Exhibit B-4B Form of Charge Over Shares
Exhibit B-5 Form of Subsidiary Pledge Agreement
Exhibit C-1 Form of Legal Opinion of Xxxxxxx Xxxxxxx and Xxxxxxxx
Exhibit C-2 Form of Internal Counsel Opinion
Exhibit D Form of Borrowing Certificate
Exhibit E Form of Certificate of Non-U.S. Lender
Exhibit F Form of Assignment and Acceptance
SCHEDULES
Schedule I Lenders and Commitments
Schedule II Pricing Grid
Schedule III Transaction Documents
Schedule 4.4 Required Consents
Schedule 4.5 No Legal Bar
Schedule 4.6 Material Litigation
Schedule 4.9 Intellectual Property Claims
Schedule 4.10 Taxes
Schedule 4.14 Subsidiaries
Schedule 7.2(f) Existing Indebtedness
Schedule 7.3(f) Existing Liens
Schedule 7.4 Existing Guarantee Obligations
Schedule 7.9(c) Officers
Schedule 7.9(g) Existing Investments
Schedule 7.9(k) Approved Investments
v
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
April 24, 2000, among L-3 Communications Corporation, a Delaware corporation
(the "Borrower") which is wholly owned by L-3 Communications Holdings, Inc., a
Delaware corporation ("Holdings"), the several banks and other financial
institutions or entities from time to time parties hereto (the "Lenders"), Banc
of America Securities LLC (f/k/a BancAmerica Xxxxxxxxx Xxxxxxxx) and Xxxxxx
Commercial Paper Inc. ("LCPI"), as arrangers (each, in such capacity, an
"Arranger" and together, the "Arrangers"), Bank of America, N.A. (f/k/a Bank of
America National Trust & Savings Association) ("BOA"), as administrative agent
for the Agents (as defined below) and the Lenders (in such capacity, the
"Administrative Agent"), LCPI, as syndication agent and documentation agent (in
such capacity, the "Syndication Agent" and the "Documentation Agent"), and
certain financial institutions named as co-agents, AMENDS AND RESTATES IN FULL
the Amended and Restated Credit Agreement, dated as of August 13, 1998 (as
amended, supplemented and/or modified from time to time prior to the date
hereof, the "Original Credit Agreement"), among the Borrower, the lenders party
thereto from time to time (the "Original Lenders"), LCPI and Banc of America
Securities LLC (f/k/a BancAmerica Xxxxxxxxx Xxxxxxxx), as arrangers (each, in
such capacity, an Original Arranger and together, the "Original Arrangers"), the
Syndication Agent, the Documentation Agent and the Administrative Agent; this
amendment and restatement of the Original Credit Agreement, as amended,
supplemented, restated or otherwise modified from time to time, is hereinafter
referred to as this "Agreement" or the "Credit Agreement".
WHEREAS, the Borrower has requested that the Original Credit
Agreement be amended and restated in full as set forth herein.
NOW, THEREFORE, the parties hereto hereby agree to amend and
restate the Original Credit Agreement as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"Acquired Business": a company or business unit acquired by the
Borrower or any of its Subsidiaries, provided that the Borrower has
delivered to the Administrative Agent historical financial statements
of such company or business unit prepared in accordance with GAAP.
"Adjustment Date": the fifth day following the receipt by the
Administrative Agent of the financial statements for the most recently
completed fiscal period furnished pursuant to subsection 6.1 and the
compliance certificate with respect to such financial statements
furnished pursuant to subsection 6.2(c).
"Administrative Agent": BOA, or following the resignation of BOA
as Administrative Agent, any other Lender which may be appointed as
Administrative Agent pursuant to subsection 9.9.
"Affected Class": as defined in subsection 10.1.
"Affected Lender": as defined in subsection 10.7.
"Affiliate": as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control"
of a Person means the power, directly or indirectly, either to (a)
vote 10% or more of the securities having ordinary voting power for
the election of directors of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by
contract or otherwise.
"Agents": the collective reference to the Syndication Agent, the
Documentation Agent and the Administrative Agent.
"Aggregate Outstanding Extensions of Credit": as to any Lender
with respect to any Type of Loan at any time, an amount equal to the
sum of (a) the aggregate principal amount of all Loans of such Type
made by such Lender then outstanding and (b) such Lender's Commitment
Percentage of the L/C Obligations then outstanding.
"Agreement": this Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
"Agreement Currency": as defined in subsection 10.16(b).
"Alternative Currency": any currency which as of the time of any
issuance or renewal, as applicable, of a Foreign L/C is freely
tradeable and convertible into Dollars and has been approved as an
"Alternative Currency" for the purposes of this Agreement by the
Issuing Lender.
"Applicable Creditor": as defined in subsection 10.16(b).
"Applicable Holdback": as defined in subsection 2.6(b)(ii).
"Applicable Issuing Lender": an Issuing Lender as to which any
proposed Assignee under subsection 10.6 shall become an L/C
Participant upon giving effect to the relevant Assignment and
Acceptance.
"Applicable Margin": at any time, the percentages set forth on
Schedule II under the relevant column heading opposite the level of
the Debt Ratio most recently determined; provided that (a) except as
expressly set forth in Schedule II, the Applicable Margins determined
for any Adjustment Date shall remain in effect until a subsequent
Adjustment Date for which the Debt Ratio falls within a different
level and (b) if the financial statements and related compliance
certificate for any fiscal period are not delivered by the date due
pursuant to subsections 6.1 and 6.2, the Applicable Margins shall be
(i) for the first 35 days subsequent to such due date, the Applicable
Margin in effect prior to such due date and (ii) thereafter, those set
forth opposite a Debt Ratio
2
captioned "greater than or equal to 4.75," in either case, until the
date of delivery of such financial statements and compliance
certificate.
"Application": an application, in such form as the Issuing Lender
may specify from time to time, requesting the Issuing Lender to issue
a Letter of Credit.
"Asset Contribution": as defined in the recitals to the Initial
1997 Credit Agreement.
"Asset Sale": any sale, sale-leaseback, or other disposition by
any Person or any Subsidiary thereof of any of its property or assets,
including the stock of any Subsidiary of such Person, except sales and
dispositions permitted by subsection 7.6 other than subsection 7.6(b)
or (e).
"Assignee": as defined in subsection 10.6(c).
"Attributable Debt": in respect of a sale and leaseback
transaction means, at the time of determination, the present value
(discounted at the rate of interest implicit in such transaction,
determined in accordance with GAAP) of the obligation of the lessee
for net rental payments during the remaining term of the lease
included in such sale and leaseback transaction (including any period
for which such lease has been extended or may, at the option of the
lessor, be extended).
"Available Commitment": as to any Lender and any Type of Loan, at
any time, an amount equal to the excess, if any, of (a) such Lender's
Commitment with respect to such Type of Loan over (b) such Lender's
Aggregate Outstanding Extensions of Credit with respect to such Type
of Loan.
"Base Rate": for any day, the higher of: (a) 0.50% per annum
above the latest Federal Funds Rate; and (b) the rate of interest in
effect for such day as publicly announced from time to time by BOA in
San Francisco, California, as its "reference rate." (The "reference
rate" is a rate set by BOA based upon various factors including BOA's
costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate.)
"Base Rate Loans": Loans the rate of interest applicable to which
is based upon the Base Rate.
"BOA": as defined in the recitals to this Agreement.
"Borrower Pledge Agreement": the Second Amended and Restated
Borrower Pledge Agreement substantially in the form of Exhibit B-4A,
to be executed and delivered by the Borrower, as the same may be
amended, supplemented or otherwise modified.
3
"Borrowing Date": any Business Day specified in a notice pursuant
to subsection 2.2 as a date on which the Borrower requests the Lenders
to make Loans hereunder.
"Business": as defined in subsection 4.16.
"Business Day": a day other than a Saturday, Sunday or other day
on which commercial banks in New York City or San Francisco,
California are authorized or required by law to close and, if the
applicable Business Day relates to Eurodollar Loans or Foreign L/Cs,
any day on which dealings are carried on in the applicable London
interbank market.
"Calculation Date": with respect to each Foreign L/C, during the
period that such Foreign L/C is outstanding (or the Reimbursement
Obligation in connection therewith has not been fully satisfied) (i)
the last Business Day of a fiscal month, (ii) the date on which such
Letter of Credit is to be issued or renewed by the Issuing Lender,
(iii) the date on which any draft presented under such Letter of
Credit is paid by the Issuing Lender, (iv) such other dates as the
Borrower may reasonably request from time to time, and (v) such other
dates as the Issuing Lender or the Administrative Agent may select
from time to time, provided that the Borrower receives prompt notice
thereof.
"Capital Expenditures" for any fiscal period, the aggregate of
all expenditures that, in conformity with GAAP (but excluding
capitalized interest), are or are required to be included as additions
during such period to property, plant or equipment reflected on the
consolidated balance sheet of the Borrower and its Subsidiaries,
excluding the expenditures relating to the Transaction.
"Capital Lease Obligations": of any Person as of the date of
determination, the aggregate liability of such Person under Financing
Leases reflected on a balance sheet of such Person under GAAP.
"Capital Partners": Xxxxxx Brothers Capital Partners III, L.P.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"Cash Equivalents": (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or
insured by the United States Government or any agency thereof, (b)
certificates of deposit and time deposits with maturities of one year
or less from the date of acquisition and overnight bank deposits of
any Lender or of any commercial bank having capital and surplus in
excess of $500,000,000, (c) repurchase obligations of any Lender or of
any commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 90 days with respect to
securities issued or fully guaranteed or insured by the United States
Government, (d) commercial paper of a domestic issuer rated at least
A-2 by Standard
4
and Poor's Ratings Group ("S&P") or P-2 by Xxxxx'x Investors Service,
Inc. ("Moody's"), or carrying an equivalent rating by a nationally
recognized rating agency if both of S&P and Moody's cease publishing
ratings of investments, (e) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States, by any
political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities
of which state, commonwealth, territory, political subdivision, taxing
authority or foreign government (as the case may be) are rated at
least A by S&P or A by Moody's, (f) securities with maturities of one
year or less from the date of acquisition backed by standby letters of
credit issued by any Lender or any commercial bank satisfying the
requirements of clause (b) of this definition or (g) shares of money
market mutual or similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (f) of this
definition.
"Change of Control": the occurrence of any of the following
events:
(i) the Principals and their Related Parties, as a whole,
shall at any time cease to own, directly or indirectly, 51% of
the Voting Stock of Holdings (measured by voting power rather
than number of shares), determined on a fully diluted basis, and
any "person" (as such term is defined in Section 13(d)(3) of the
Exchange Act) other than the Principals and their Related Parties
shall become the "beneficial owner" (as such term is defined in
Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or
indirectly, of more than 25% of the Voting Stock of Holdings
(measured by voting power rather than number of shares);
(ii) a majority of the members of the Board of Directors of
Holdings fail to be (a) members of the Board of Directors
incumbent as of the Closing Date, or (b) members nominated by the
members of the Board of Directors incumbent on the Closing Date,
or (c) members appointed by members of the Board nominated under
clause (a) or (b);
(iii) Holdings shall, at any time, cease to own 100% of the
Capital Stock of the Borrower; or
(iv) a "Change of Control" shall have occurred under the
Indenture, the New Subordinated Debt Indenture or the December
1998 Subordinated Debt Indenture.
"Charge Over Shares": the Amended and Restated Charge Over Shares
substantially in the form of Exhibit B-4B, to be executed and
delivered by the Borrower, as the same may be amended, supplemented or
otherwise modified.
"Class": (i) Lenders having Loan Exposure (taken together as a
single class)(ii) Facility B Lenders having Facility B Loan Exposure
(taken together as a single class) and (iii) Facility C Lenders having
Facility C Loan Exposure (taken together as a single class).
5
"Closing Date": the date on which the conditions precedent set
forth in subsection 5.1 are satisfied.
"Co-Agents": collectively, Fleet National Bank, The Bank of New
York, The Bank of Nova Scotia, Credit Lyonnais, Bank One, N.A., First
Union Commercial Corporation, HSBC Bank, and Societe Generale.
"Code": the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral": all assets of the Credit Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by
any Pledge Agreement.
"Commitment": as to any Lender, such Lender's Revolving Credit
Commitment.
"Commitment Fee Rate": at any time, the applicable rates per
annum on Schedule II under the relevant column heading for the
Revolving Credit Facility set forth opposite the level of the Debt
Ratio most recently determined; provided that (a) except as expressly
set forth in Schedule II, the Commitment Fee Rate determined for any
Adjustment Date shall remain in effect until a subsequent Adjustment
Date for which the Debt Ratio falls within a different level and (b)
if the financial statements and related compliance certificate for any
fiscal period are not delivered by the date due pursuant to
subsections 6.1 and 6.2, the Commitment Fee Rate shall be (i) for the
first 35 days subsequent to such due date, the Commitment Fee Rate in
effect prior to such due date and (ii) thereafter, that set forth
opposite a Debt Ratio captioned "greater than or equal to 4.75," in
either case, until the date of delivery of such financial statements
and compliance certificate.
"Commitment Percentage": as to the Commitment of any Lender with
respect to any Type of Loan at any time, the percentage which the
Commitment of such Lender with respect to such Type of Loan then
constitutes of the aggregate Commitments with respect to such Type of
Loan (or, at any time after such Commitments shall have expired or
terminated, the percentage which the aggregate amount of the Aggregate
Outstanding Extensions of Credit of such Lender with respect to such
Type of Loan constitutes of the aggregate amount of the Aggregate
Outstanding Extensions of Credit of all Lenders with respect to such
Type of Loan).
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 (b) or (c) of the Code.
"Consolidated EBITDA": as of the last day of any fiscal quarter,
Consolidated Net Income of the Borrower, its Subsidiaries and, without
duplication, the Acquired Businesses (excluding, without duplication,
(x) extraordinary gains and losses in accordance with GAAP, (y) gains
and losses in connection with asset dispositions whether or not
constituting extraordinary gains and losses and (z) gains or losses on
6
discontinued operations) for the four fiscal quarters ended on such
date, plus (i) Consolidated Interest Expense of the Borrower, its
Subsidiaries and, without duplication, the Acquired Businesses for
such period, plus (ii) to the extent deducted in computing such
Consolidated Net Income of the Borrower, its Subsidiaries and, without
duplication, the Acquired Businesses, the sum of income taxes,
depreciation and amortization for such period.
"Consolidated Cash Interest Expense": as of the last day of any
fiscal quarter, the amount of interest expense, paid in cash, of the
Borrower and its Subsidiaries for the four fiscal quarters ended on
such date, determined on a consolidated basis in accordance with GAAP
for such period.
"Consolidated Interest Expense": for any Person, as of the last
day of any fiscal quarter, the amount of interest expense of such
Person for the four fiscal quarters ended on such date, determined on
a consolidated basis in accordance with GAAP for such period.
"Consolidated Net Income": for any Person and for any fiscal
period, net income of such Person, determined on a consolidated basis
in accordance with GAAP.
"Consolidated Total Assets": at any date, all assets of the
Borrower and its Subsidiaries as determined according to the
consolidated balance sheet contained in the SEC filing most recently
delivered pursuant to subsection 6.1 or, if no such SEC filing has yet
been delivered, the balance sheet referred to in subsection
4.1(a)(ii).
"Consolidated Total Debt": at any date, all Indebtedness of the
Borrower and its Subsidiaries outstanding on such date for borrowed
money or the deferred purchase price of property, including, without
limitation, in respect of Financing Leases but excluding Indebtedness
permitted pursuant to subsection 7.2(g).
"Consolidated Working Capital": at any date, the excess of (a)
the sum of all amounts (other than cash and Cash Equivalents) that
would, in accordance with GAAP, be set forth opposite the caption
"total current assets" (or any like caption) on a consolidated balance
sheet of the Borrower and its Subsidiaries at such date over (b) the
sum of all amounts that would, in accordance with GAAP, be set forth
opposite the caption "total current liabilities" (or any like caption)
on a consolidated balance sheet of the Borrower and its Subsidiaries
on such date (excluding, to the extent it would otherwise be included
under current liabilities, any short-term Consolidated Total Debt and
the current portion of any long-term Consolidated Total Debt).
"Constitutional Documents": as to any Person, the articles or
certificate of incorporation and by-laws, partnership agreement or
other organizational documents of such Person.
7
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or
any of its property is bound.
"Credit Documents": this Agreement, the Notes, the Applications,
the Guarantees and the Pledge Agreements.
"Credit Parties": the Borrower, Holdings, and each Subsidiary of
the Borrower which is a party to a Credit Document.
"Debt Ratio": as at the last day of any fiscal quarter, the ratio
of (a) Consolidated Total Debt minus Designated Cash Balances on such
date to (b) Consolidated EBITDA.
"December 1998 Subordinated Debt Documents": the December 1998
Subordinated Notes, the December 1998 Subordinated Notes Indenture, the
Underwriting Agreement related thereto among Borrower, its domestic
Subsidiaries, Xxxxxx Brothers Inc., and BancAmerica Xxxxxxxxx Xxxxxxxx
(n/k/a Banc of America Securities LLC) and any other documents or
agreements executed in connection therewith.
"December 1998 Subordinated Debt Indenture": the Indenture
between the Borrower and the Bank of New York, as trustee, pursuant to
which the December 1998 Subordinated Notes were issued.
"December 1998 Subordinated Notes": the Borrower's Senior
Subordinated Notes, due December 1, 2008 ("Initial December 1998
Subordinated Notes") issued on or about the December 8, 1998 and any
notes, having the same terms as the Initial December 1998 Subordinated
Notes, issued in exchange for the Initial December 1998 Subordinated
Notes as contemplated by the documents governing the issuance of the
Initial December 1998 Subordinated Notes.
"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, or any other condition, has been satisfied.
"Designated Cash Balances": at any time, the lesser of (a) actual
unrestricted cash balances on hand of Borrower and its Subsidiaries
which are not subject to any Liens in favor of any Person (other than
those described in subsection 7.3(o) hereof) and (b) $50,000,000.
"Dollar Equivalent": at any time, (a) as to any amount
denominated in Dollars, the amount thereof at such time, and (b) as to
any amount denominated in an Alternative Currency, the equivalent
amount in Dollars as determined on the basis of the Exchange Rate for
the purchase of Dollars with such Alternative Currency as of the most
recent Calculation Date.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
8
"Domestic L/C": a Letter of Credit denominated in Dollars.
"Dow Xxxxx Page 3750": the display designated as page "3750" on
the Dow Xxxxx Market Service (formerly known as the Telerate Service)
or such other page as may replace the "3750" page on that service or
such other service or services as may be nominated by the British
Bankers' Association for the purpose of displaying London interbank
offered rates for Dollar deposits.
"Environmental Laws": any and all laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, or other legally
enforceable requirement (including, without limitation, common law) of
any foreign government, the United States, or any state, local,
municipal or other governmental authority, regulating, relating to or
imposing liability or standards of conduct concerning protection of
the environment or of human health as affected by the environment as
has been, is now, or may at any time hereafter be, in effect,
including, but not limited to, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C.'SS'SS' 9601 et seq.; the Toxic Substance Control Act, 15
U.S.C.'SS''SS'9601 et seq.; the Hazardous Materials Transportation
Act, 49 U.S.C.'SS''SS' 1802 et seq.; the Resource Conservation and
Recovery
Act, 42 U.S.C.'SS''SS'.6901 et seq.; the Clean Water Act; 33
U.S.C.'SS''SS'1251 et seq.; the Clean Air Act, 42 U.S.C.'SS''SS'7401
et
seq.; or other similar federal and/or state environmental laws.
"Environmental Permits": any and all permits, licenses,
registrations, notifications, exemptions and any other authorization
required under any applicable Environmental Law.
"Equity Documents": the Stockholders Agreement, the Subscription
Agreements and the Option Agreements.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": means for any day for any
Interest Period the maximum reserve percentage (expressed as a
decimal, rounded upward to the next 1/100th of 1%) in effect on such
day (whether or not applicable to any Lender) under regulations issued
from time to time by the FRB for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities").
"Eurodollar Business Day": means any Business Day on which
commercial banks are open in London for the transaction of
international business, including dealings in Dollar deposits in the
international interbank markets.
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
9
"Eurodollar Rate": means, for any Interest Period, with respect
to Eurodollar Loans comprising part of the same borrowing, the rate of
interest per annum (rounded upward to the next 1/100th of 1%)
determined by the Administrative Agent as follows:
Eurodollar Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage": for any day for any Interest
Period the maximum reserve percentage (expressed as a decimal, rounded
upward to the next 1/100th of 1%) in effect on such day (whether or
not applicable to any Lender) under regulations issued from time to
time by the FRB for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred
to as "Eurocurrency liabilities").
"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, or any other condition, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the
excess of (a) the sum, without duplication, of (i) Consolidated Net
Income for the Borrower and its Subsidiaries for such fiscal year,
(ii) the net decrease, if any, in Consolidated Working Capital during
such fiscal year, (iii) to the extent deducted in computing such
Consolidated Net Income for the Borrower and its Subsidiaries,
non-cash interest expense, depreciation and amortization for such
fiscal year, (iv) extraordinary non-cash losses during such fiscal
year subtracted in the determination of Consolidated Net Income for
the Borrower and its Subsidiaries for such fiscal year, (v) change in
deferred tax liability of the Borrower for such fiscal year, (vi)
non-cash losses in connection with asset dispositions whether or not
constituting extraordinary losses and (vii) non-cash ordinary losses
less (b) the sum, without duplication, of (i) the aggregate amount of
permitted cash Capital Expenditures made by the Borrower and its
Subsidiaries during such fiscal year, (ii) the net increase, if any,
in Consolidated Working Capital during such fiscal year, (iii) the
aggregate amount of payments of principal in respect of any
Indebtedness not prohibited hereunder during such fiscal year (other
than prepayments of (x) Revolving Credit Loans not accompanied by
reductions of the Commitments hereunder, (y) Facility B Loans not
accompanied by reductions of Facility B Commitments and/or (z)
Facility C Loans and accompanied by reductions of Facility C
Commitments), (iv) deferred income tax credit of the Borrower for such
fiscal year, (v) extraordinary non-cash gains during such fiscal year
added in the determination of Consolidated Net Income for the Borrower
and its Subsidiaries for such fiscal year, (vi) non-cash gains in
connection with asset dispositions whether or not constituting
extraordinary gains and (vii) non-cash ordinary gains.
"Exchange Act": the Securities Exchange Act of 1934, as amended.
10
"Exchange Rate": on any day, with respect to any Alternative
Currency, the spot rate at which Dollars are offered on such day by
the Issuing Lender in San Francisco, California (or such other
location selected by the Issuing Lender) for such Alternative
Currency.
"Facility B Administrative Agent": the "Administrative Agent" as
defined in the Facility B Credit Agreement.
"Facility B Agents": the "Agents" as defined in the Facility B
Credit Agreement.
"Facility B Commitments": the "Commitments" as defined in the
Facility B Credit Agreement.
"Facility B Credit Agreement": that certain Amended and Restated
364 Day Credit Agreement of even date herewith among the Borrower, the
Facility B Lenders, BOA as administrative agent, LCPI as syndication
agent and documentation agent, LCPI and Banc of America Securities LLC
(f/k/a BankAmerica Xxxxxxxxx Xxxxxxxx) as arrangers and certain other
financial institutions named therein as co-agents, as the same may be
amended, supplemented, restated or otherwise modified from time to
time.
"Facility B Credit Documents": the "Credit Documents" as defined
in the Facility B Credit Agreement.
"Facility B Eurodollar Tranche": "Eurodollar Tranche" as defined
in the Facility B Credit Agreement.
"Facility X X/C Obligations": the "L/C Obligations" as defined in
the Facility B Credit Agreement.
"Facility B Lenders": the "Lenders" as defined in the Facility B
Credit Agreement.
"Facility B Loan Exposure": the "Loan Exposure" as defined in the
Facility B Credit Agreement.
"Facility B Loans": the "Loans" as defined in the Facility B
Credit Agreement.
"Facility B Notes": the "Notes" as defined in the Facility B
Credit Agreement.
"Facility B Reimbursement Obligations": the "Reimbursement
Obligations" as defined in the Facility B Credit Agreement.
"Facility C Administrative Agent": the "Administrative Agent" as
defined in the Facility C Credit Agreement.
"Facility C Agents": the "Agents" as defined in the Facility C
Credit Agreement.
11
"Facility C Commitments": the "Commitments" as defined in the
Facility C Credit Agreement.
"Facility C Credit Agreement": that certain New 364 Day Credit
Agreement of even date herewith among the Borrower, the Facility C
Lenders, BOA as administrative agent, LCPI as syndication agent and
documentation agent, LCPI and Banc of America Securities, LLC as
arrangers and certain financial institutions named as co-agents, as
the same may be amended, supplemented, restated or otherwise modified
from time to time.
"Facility C Credit Documents": the "Credit Documents" as defined
in the Facility C Credit Agreement.
"Facility C Eurodollar Tranche": "Eurodollar Tranche" as defined
in the Facility C Credit Agreement.
"Facility C Lenders": the "Lenders" as defined in the Facility C
Credit Agreement.
"Facility C Loan Exposure": the "Loan Exposure" as defined in the
Facility C Credit Agreement.
"Facility C Loans": the "Loans" as defined in the Facility C
Credit Agreement.
"Facility C Notes": the "Notes" as defined in the Facility C
Credit Agreement.
"Federal Funds Effective Rate": for any day, the rate set forth
in the weekly statistical release designated as H.15(519), or any
successor publication, published by the FRB (including any such
successor, "H.15(519)") for such day opposite the caption "Federal
Funds (Effective)". If on any relevant day the appropriate rate for
such previous day is not yet published in H.15(519), the rate for such
day will be the arithmetic mean of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m. (New York City
time) on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Administrative Agent.
"Financial L/C": a standby Letter of Credit not constituting a
Performance L/C.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"Foreign L/C": a Letter of Credit denominated in an Alternative
Currency.
"Foreign L/C Obligations": at any time, an amount equal to the
sum of (i) the Dollar Equivalent of the aggregate then undrawn and
unexpired face amount of all then outstanding Foreign L/Cs and (ii)
the Dollar Equivalent of the aggregate amount of all drawings under
Foreign L/Cs which have not then been reimbursed pursuant to
subsection 3.5.
12
"Foreign Subsidiary": any Subsidiary which is organized under the
laws of any jurisdiction outside the United States or under the laws
of the U.S. Virgin Islands.
"FRB": means the Board of Governors of the Federal Reserve
System, and any governmental authority succeeding to any of its
principal functions.
"GAAP": generally accepted accounting principles in the United
States of America in effect on the Closing Date.
"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 (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations (the "primary obligations") of any
other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, reimbursement
obligations under letters of credit and any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for
the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of
any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary obligation
in respect of which such Guarantee Obligation is made and (b) the
maximum amount for which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for
which such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated
liability in respect thereof as determined by the Borrower in good
faith.
"Guarantees": the Parent Guarantee and the Subsidiary Guarantees.
"Immaterial Subsidiary": any Subsidiary of the Borrower having
assets not exceeding five percent (5%) of the Consolidated Total
Assets.
13
"Indebtedness": of any Person at any date, (a) all indebtedness
of such Person for borrowed money or for the deferred purchase price
of property or services (other than current trade liabilities incurred
in the ordinary course of business and payable in accordance with
customary practices and accrued expenses incurred in the ordinary
course of business), (b) any other indebtedness of such Person which
is evidenced by a note, bond, debenture or similar instrument, (c) all
obligations of such Person under Financing Leases, (d) all obligations
of such Person in respect of acceptances issued or created for the
account of such Person and all reimbursement and other obligations
with respect to any letters of credit and surety bonds, whether or not
matured or drawn, (e) all liabilities secured by any Lien on any
property owned by such Person even though such Person has not assumed
or otherwise become liable for the payment thereof and (f) all
Attributable Debt of such Person with respect to sale and leaseback
transactions of such Person.
"Indenture": the Indenture between the Borrower and The Bank of
New York, as trustee, pursuant to which the Subordinated Notes are
issued.
"Initial 1997 Credit Agreement": the Credit Agreement, dated as
of April 30, 1997 among the Borrower, the lenders party thereto from
time to time, Xxxxxx Brothers Inc. as arranger, LCPI as syndication
agent and documentation agent and BOA as administrative agent.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any Base Rate Loan, the last
Business Day of each March, June, September and December, (b) as to
any Eurodollar Loan having an Interest Period of three months or less,
the last Business Day of such Interest Period, and (c) as to any
Eurodollar Loan having an interest period longer than three months,
(i) each Business Day which is three months or a whole multiple
thereof after the first day of such Interest Period and (ii) the last
Business Day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three, six or, if made
available by the Administrative Agent and the Lenders, nine or
twelve months thereafter, as selected by the Borrower in its
notice of borrowing or notice of conversion, as the case may be,
given with respect thereto; and
(b) thereafter, each period commencing on the last day of
the preceding Interest Period applicable to such Eurodollar Loan
and ending one, two, three or six or, if made available by the
Administrative Agent and Lenders, nine
14
or twelve months thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than
three Business Days prior to the last day of the then current
Interest Period with respect thereto.
provided that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(v) if any Interest Period pertaining to a Eurodollar Loan would
otherwise end on a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless
the result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest Period shall
end on the immediately preceding Business Day;
(vi) any Interest Period for any Loan that would otherwise extend
beyond the applicable Termination Date shall end on the applicable
Termination Date; and
(vii) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
in which such Interest Period would otherwise be scheduled to end)
shall end on the last Business Day of the appropriate calendar month.
"Interest Rate Agreement": any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other
similar agreement or arrangement.
"Interest Rate Agreement Obligations": the obligations of the
Borrower or any of its Subsidiaries to make payments to counterparties
under Interest Rate Agreements in the event of the occurrence of a
termination event thereunder.
"Issuing Lender": BOA, in its capacity as issuer of any Letter of
Credit or, at the election of BOA, such other Lender or Lenders that
agrees to act as Issuing Lender at the request of the Borrower, or
upon resignation by BOA as an Issuing Lender at any time upon notice
to the other parties to this Agreement, such other Lender or Lenders
that agree to act as Issuing Lender at the request of the Borrower and
to whom the Required Lenders consent in writing.
"Judgment Currency": as defined in subsection 10.16 (b).
"LCPI": as defined in the recitals to this Agreement.
"L/C Fee Payment Date": the last Business Day of each March,
June, September and December.
"L/C Obligations": at any time, an amount equal to the sum of (a)
the Dollar Equivalent of the aggregate then undrawn and unexpired
amount of the then outstanding
15
Letters of Credit and (b) the Dollar Equivalent of the aggregate
amount of drawings under Letters of Credit which have not then been
reimbursed pursuant to subsection 3.5.
"L/C Participants": a collective reference to all the Revolving
Credit Lenders other than the Applicable Issuing Lender.
"Lender" and "Lenders": the persons identified as Lenders and
listed on the signature pages of this Agreement (including the Issuing
Lender and the Swing Line Lender), together with their successors and
permitted assigns pursuant to subsection 10.6.
"Letters of Credit": as defined in subsection 3.1(a).
"LIBOR": as to any Interest Period, the rate per annum determined
on the basis of the rate for deposits in Dollars for a period equal to
such Interest Period commencing on the first day of such Interest
Period quoted on the second Eurodollar Business Day prior to the first
day of such Interest Period, as such rate appears on the Dow Xxxxx
Page 3750 as of 11:00 A.M. (London time) on such date, as determined
by the Administrative Agent and notified to the Lenders and the
Borrower on such second prior Eurodollar Business Day. If LIBOR cannot
be determined based on the Dow Xxxxx Page 3750, LIBOR means the rate
per annum, as supplied to the Administrative Agent, quoted by BOA's
London Branch to prime banks in the London interbank market for
deposits in Dollars at approximately 11:00 A.M. (London time) two
Eurodollar Business Days prior to the first day of such Interest
Period in an amount approximately equal to the principal amount of the
Loans to which such Interest Period is to apply and for a period of
time comparable to such Interest Period.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Account": as defined in subsection 2.5(d).
"Loan Exposure": with respect to any Lender as of any date of
determination, (i) if there are no outstanding Letters of Credit or
Revolving Credit Loans, that Lender's Revolving Credit Commitment, and
(ii) otherwise, the sum of (a) the aggregate outstanding principal
amount of the Revolving Credit Loans of that Lender plus (b) in the
event that Lender is an Issuing Lender, the Dollar Equivalent of the
aggregate stated or face amount in respect of all Letters of Credit
issued by that Lender and outstanding (in each case net of any
participations purchased by other Lenders in such Letters of Credit or
any unreimbursed drawings thereunder) plus (c) in the event that such
Lender is the Swing Line Lender, the aggregate principal amount of
Swing Line Loans made by such
16
Lender then outstanding (net of any participations purchased by other
Lenders in such Swing Line Loans) plus (d) the Dollar Equivalent of
the aggregate amount of all participations purchased by that Lender in
any outstanding Swing Line Loans or Letters of Credit or any
unreimbursed drawings under any Letters of Credit.
"Material Adverse Effect": a material adverse effect on (a) the
business, assets, operations, property or condition (financial or
otherwise) of Holdings and its Subsidiaries taken as a whole or (b)
the validity or enforceability of this or any of the other Credit
Documents or the rights or remedies of the Agents or the Lenders
hereunder or thereunder.
"Materials of Environmental Concern": any hazardous or toxic
substances, materials or wastes, defined or regulated as such in or
under, or that could give rise to liability under, any applicable
Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls, urea-formaldehyde insulation, gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Proceeds": the aggregate cash proceeds (including Cash
Equivalents) received by Holdings or any of its Subsidiaries in
respect of:
(a) any issuance by Holdings or any of its Subsidiaries of
Indebtedness after the Closing Date;
(b) any Asset Sale; and
(c) any cash payments received in respect of promissory
notes or other evidences of indebtedness delivered to Holdings or
such Subsidiary in respect of an Asset Sale;
in each case net of (without duplication) (i), (A) in the case of
an Asset Sale, the amount required to repay any Indebtedness
(other than the Loans) secured by a Lien on any assets of
Holdings or a Subsidiary of Holdings that are sold or otherwise
disposed of in connection with such Asset Sale and (B) reasonable
and appropriate amounts established by Holdings or such
Subsidiary, as the case may be, as a reserve against liabilities
associated with such Asset Sale and retained by Holdings or such
Subsidiary, (ii) the reasonable expenses (including legal fees
and brokers' and underwriters' commissions, lenders fees, credit
enhancement fees, accountants' fees, investment banking fees,
survey costs, title insurance premiums and other customary fees,
in any case, paid to third parties or, to the extent permitted
hereby, Affiliates) incurred in effecting such issuance or sale
and (iii) any taxes reasonably attributable to such sale and
reasonably estimated by Holdings or such Subsidiary to be
actually payable.
17
"New Investment Sublimit" shall mean, as of any date of
determination thereof, an amount equal to (a) $650,000,000 plus (b)
(i) Net Proceeds derived from Asset Sales during the immediately
preceding twelve (12) month period and (ii) Net Proceeds from any
Asset Sale that were reinvested within the twelve (12) month period
following such Asset Sale for the purposes permitted in subsection
7.9(k) to the extent not included in subclause (i) of this clause (b)
plus (c) net cash proceeds derived from the issuance of any equity
securities of Holdings which are contributed to the Borrower as
additional equity capital minus the amount of any Capital Expenditures
funded in any fiscal year of the Borrower and its Subsidiaries which
exceeds the amounts permitted during such fiscal year pursuant to
subsection 7.8 hereof (without giving effect to the second proviso
thereto referring to subsection 7.9(k)).
"New Subordinated Debt Documents": the New Subordinated Notes,
the New Subordinated Notes Indenture, the Underwriting Agreement dated
as of May 18, 1998 among Borrower, its domestic Subsidiaries, Xxxxxx
Brothers Inc., and BancAmerica Xxxxxxxxx Xxxxxxxx (n/k/a Banc of
America Securities LLC) and any other documents or agreements executed
in connection therewith.
"New Subordinated Debt Indenture": the Indenture between the
Borrower and the Bank of New York, as trustee, pursuant to which the
New Subordinated Notes were issued.
"New Subordinated Notes": the Borrower's 8 1/2% Senior
Subordinated Notes, due 2008 ("Initial New Subordinated Notes") issued
on or about May 22, 1998 and any notes, having the same terms as the
Initial New Subordinated Notes, issued in exchange for the Initial New
Subordinated Notes as contemplated by the documents governing the
issuance of the Initial New Subordinated Notes.
"Non-Excluded Taxes": as defined in subsection 2.15.
"Non-U.S. Lender": as defined in subsection 2.15(b).
"Nonconsenting Lenders": as defined in subsection 2.17.
"Notes": The Revolving Credit Notes and the Swing Line Note (or
any of them).
"Obligations": as defined in the Guarantees and the Pledge
Agreements.
"Option Agreements": the Option Agreements between Holdings and
each of Xxxxx X. Xxxxx and Xxxxxx X. XxXxxxx, each dated as of the
April 30, 1997.
"Original Agents": the "Agents" under and as defined in the
Original Credit Agreement.
"Original Closing Date": August 13, 1998.
"Original Credit Agreement": as defined in the preamble to this
Agreement.
18
"Original Lenders": as defined in the preamble to this Agreement.
"Parent Distributions": as defined in the Parent Guarantee.
"Parent Guarantee": the Second Amended and Restated Parent
Guarantee substantially in the form of Exhibit B-1, to be executed and
delivered by Holdings, as the same may be amended, supplemented or
otherwise modified.
"Parent Pledge Agreement": the Second Amended and Restated Parent
Pledge Agreement substantially in the form of Exhibit B-3, to be
executed and delivered by Holdings, as the same may be amended,
supplemented or otherwise modified.
"Participant": as defined in subsection 10.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any successor thereto.
"Performance L/C": a standby Letter of Credit issued to ensure
the performance of services and/or delivery of goods by or on behalf
of the Borrower.
"Permitted Liens": Liens permitted to exist under subsection 7.3.
"Permitted Stock Payments": (A) dividends by the Borrower to
Holdings in amounts equal to the amounts required for Holdings to (i)
pay franchise taxes and other fees required to maintain its legal
existence and (ii) provide for other operating costs of up to
$1,000,000 per fiscal year, (B) dividends by the Borrower to Holdings
in amounts equal to amounts required for Holdings to pay federal,
state and local income taxes to the extent such income taxes are
actually due and owing; provided that the aggregate amount paid under
this clause (B) does not exceed the amount that the Borrower would be
required to pay in respect of the income of the Borrower and its
Subsidiaries if the Borrower were a stand alone entity that was not
owned by Holdings, and (C) from and after May 1, 1999, dividends by
the Borrower to Holdings payable solely out of Excess Cash Flow,
provided that, with respect to this clause (C), (i) as of the last day
of the most recently completed fiscal quarter the Debt Ratio is less
than or equal to 3.5 to 1, and (ii) the aggregate amount of dividends
paid by the Borrower to Holdings under this clause (C) since the
Original Closing Date does not exceed $5,000,000.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan covered
by ERISA and in respect of which the Borrower or any Commonly
Controlled Entity maintains, administers, contributes to or is
required to contribute to, or under which the Borrower or any Commonly
Controlled Entity may incur any liability.
19
"Pledge Agreements": the collective reference to the Parent
Pledge Agreement, the Borrower Pledge Agreement, the Charge Over
Shares, the Subsidiary Pledge Agreement, and any other security
documents hereafter delivered to the Administrative Agent granting a
Lien on any asset or assets of any Person to secure the obligations
and liabilities of the Borrower hereunder and under any of the other
Credit Documents or to secure any guarantee of any such obligations
and liabilities.
"Principals": each of Xxxxxx Brothers Holdings, Inc., Capital
Partners, the Seller, Xxxxx X. Xxxxx and Xxxxxx X. XxXxxxx.
"Properties": as defined in subsection 4.16.
"Purchase Agreement": the Purchase Agreement, dated as of April
25, 1997, among the Borrower and each of Xxxxxx Brothers, Inc. and
BancAmerica Securities, Inc.
"Refunded Swing Line Loan": as defined in subsection 2.1(b)(iii).
"Register": as defined in subsection 10.6(d).
"Registration Rights Agreement": the Registration Rights
Agreement, dated as of April 30, 1997, among the Borrower and each of
Xxxxxx Brothers, Inc. and BancAmerica Securities, Inc.
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Reimbursement Amount": as defined in subsection 3.5(a).
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to subsection 3.5 for amounts
drawn under Letters of Credit.
"Related Party": with respect to the Principals, (a) any
controlling stockholder, 51% (or more) owned Subsidiary, or spouse or
immediate family member (in the case of an individual) of such
Principal or (b) a trust, corporation, partnership or other entity,
the beneficiaries, stockholders, partners, owners or Persons
beneficially holding an 51% or more controlling interest of which
consist of the Principals and/or such other Persons referred to in the
immediately preceding clause (a).
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty-day
notice period is waived under the regulations of the PBGC.
"Required Lenders": at any time, Lenders the Loan Exposure for
all Types of Loans of which aggregate more than 50%.
20
"Requirement of Law": as to any Person, the Constitutional
Documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Requisite Class Lenders": at any time, (a) for the Class of
Lenders having Loan Exposure, Lenders having or holding 66 2/3% of the
aggregate Loan Exposure of all Lenders (b) for the Class of Facility B
Lenders having Facility B Loan Exposure, Facility B Lenders having or
holding 66 2/3% of the aggregate Facility B Loan Exposure of all
Facility B Lenders and (c) for the Class of Facility C Lenders having
Facility C Loan Exposure, Facility C Lenders having or holding 66 2/3%
of the aggregate Facility C Loan Exposure of all Facility C Lenders.
"Responsible Officer": the chief executive officer, the president
or vice president of the Borrower or, with respect to financial
matters, the chief financial officer, vice president-finance or
treasurer of the Borrower.
"Restricted Government Contracts": as defined in the Pledge
Agreements.
"Revolving Credit Commitment": the commitment of a Lender,
initially as set forth on Schedule I hereto, to make Revolving Credit
Loans to the Borrower pursuant to subsection 2.1(a) and to issue
and/or purchase participations in Letters of Credit pursuant to
Section 3; and "Revolving Credit Commitments" means such commitments
of all Lenders in the aggregate, which shall be $200,000,000.
"Revolving Credit Commitment Period": the period from and
including the Closing Date to but not including the Termination Date
or such earlier date on which the Revolving Credit Commitments shall
terminate as provided herein.
"Revolving Credit Lender": any Lender or Lenders having a
Revolving Credit Commitment or a Revolving Credit Loan outstanding.
"Revolving Credit Loans": the Loans made by Revolving Credit
Lenders to the Borrower pursuant to Subsection 2.1(a).
"Revolving Credit Notes": (i) the promissory notes of the
Borrower, if any, issued pursuant to subsection 2.5(f) of the Original
Credit Agreement prior to the Closing Date and/or pursuant to
subsection 2.5(i) of this Agreement on or after the Closing Date, in
each case, to evidence the Revolving Credit Loans of any Lender and
(ii) any promissory notes issued by the Borrower pursuant to
subsection 10.6(d) in connection with assignments of the Revolving
Credit Commitments and Revolving Credit Loans of any Lenders, in each
case substantially in the form of Exhibit A-1 annexed hereto, as they
may be amended, supplemented or otherwise modified from time to time.
"Revolving 364 Day Commitment": as defined in the Facility B
Credit Agreement.
21
"SPD Technologies": SPD Technologies Inc., a Delaware
corporation.
"SPD Technologies Acquisition Agreement": the Agreement and Plan
of Merger, dated as of July 2, 1998, among L-3 Communications
Corporation, SPD Merger Co., SPD Technologies, Inc. and Midmark
Capital L.P.
"SEC": the Securities and Exchange Commission.
"Securities Act": Securities Act of 1933, as amended.
"Seller": Lockheed Xxxxxx Corporation, a Maryland corporation.
"Similar Business": a business, at least a majority of whose
revenues in the most recently ended calendar year were derived from
(i) the sale of defense products, electronics, communications systems,
aerospace products, avionics products and/or communications products,
(ii) any services related thereto, (iii) any business or activity that
is reasonably similar thereto or a reasonable extension, development
or expansion thereof or ancillary thereto or any business of the
Borrower and/or its Subsidiaries existing as of the Closing Date, and
(iv) any combination of any of the foregoing.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Stockholders Agreement": the Stockholders Agreement, dated as of
April 30, 1997, by and among the Borrower, Holdings, the Seller, the
Principals and any other party that may from time to time become a
party thereto as provided therein, as the same may be amended,
supplemented or otherwise modified from time to time.
"Subordinated Debt": indebtedness outstanding under the
Subordinated Notes, the New Subordinated Notes and/or the December
1998 Subordinated Notes.
"Subordinated Debt Documents": the Indenture, the Registration
Rights Agreement, the Purchase Agreement and the Subordinated Notes.
"Subordinated Notes": the Borrower's 10 3/8% Senior Subordinated
Notes, due 2007 (the "Initial Subordinated Notes"), issued on the
April 30, 1997, and any subordinated notes of the Borrower, having the
same terms as the Initial Subordinated Notes, issued in exchange for
the Initial Subordinated Notes as contemplated by the Subordinated
Debt Documents.
"Subscription Agreements": the Common Stock Subscription
Agreements between Holdings and each of Xxxxx X. Xxxxx, Xxxxxx X.
XxXxxxx, Capital Partners and the Seller, each dated as of the April
30, 1997.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than
22
stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation, partnership
or other entity are at the time owned, directly or indirectly, by such
Person. Unless otherwise qualified, all references to a "Subsidiary"
or to "Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower.
"Subsidiary Guarantee": the Second Amended and Restated
Subsidiary Guarantee substantially in the form of Exhibit B-2, to be
executed and delivered by the Borrower's Subsidiaries (other than any
Immaterial Subsidiary or Foreign Subsidiary of the Borrower), as the
same may be amended, supplemented or otherwise modified.
"Subsidiary Pledge Agreement": the Second Amended and Restated
Subsidiary Pledge Agreement substantially in the form of Exhibit B-5,
to be executed and delivered by the Borrower's Subsidiaries (other
than any Immaterial Subsidiary or Foreign Subsidiary of the Borrower),
as the same may be amended, supplemented or otherwise modified.
"Swing Line Lender": means BOA, or, following the resignation of
BOA as Swing Line Lender at any time upon notice to the other parties
to this Agreement, any other Lender which is appointed as Swing Line
Lender by the Required Lenders and reasonably acceptable to Borrower.
"Swing Line Loans": as defined in subsection 2.1(b).
"Swing Line Note": as defined in subsection 2.5(f).
"Term Loans": as defined in the Facility B Credit Agreement.
"Termination Date": March 31, 2003.
"Tranche": the collective reference to Eurodollar Loans with
then-current Interest Periods which all begin on the same date and end
on the same date (whether or not such Loans shall originally have been
made on the same day); Tranches may be identified as "Eurodollar
Tranches".
"Transaction": the transactions contemplated by the Transaction
Documents.
"Transaction Agreement": that certain Transaction Agreement,
dated as of March 28, 1997 by and among Lockheed Xxxxxx Corporation, a
Maryland corporation, Holdings, Capital Partners and its Affiliates,
Xxxxx X. Xxxxx and Xxxxxx X. XxXxxxx.
"Transaction Documents": (i) the Transaction Agreement, the
Schedules thereto and the documents set forth on Schedule III hereto,
(ii) the Equity Documents, (iii) the Subordinated Debt Documents and
(iv) the New Subordinated Debt Documents.
"Transferee": as defined in subsection 10.6(f).
23
"Type": a Revolving Credit Loan or a Swing Line Loan, as
applicable.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
"U.S. 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 the United States or any taxing authority thereof.
"Voting Stock": of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the
election of the Board of Directors of such Person.
"Year 2000 Problem": any significant risk that computer hardware,
software or equipment containing embedded microchips essential to the
business or operations of the Borrower or any of its Subsidiaries will
not, in the case of dates or time periods occurring after December 31,
1999, function at least as effectively and reliably as in the case of
dates or time periods occurring before January 1, 2000, including the
making of accurate leap year calculations.
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 Credit Document or
any certificate or other document made or delivered pursuant hereto.
(b) As used herein and in any Credit Document, and any
certificate or other document made or delivered pursuant hereto, accounting
terms relating to the Borrower and its Subsidiaries not defined in subsection
1.1 and accounting terms partly defined in subsection 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
1.3 Interrelationship with Original Credit Agreement.
(a) As stated in the preamble hereof, this Credit Agreement is
intended to amend and restate the provisions of the Original Credit Agreement
and, notwithstanding any substitution of Notes as of the Closing Date, except as
expressly modified herein, (x) all of the terms and provisions of the Original
Credit Agreement shall continue to apply for the period
24
prior to the Closing Date, including any determinations of payment dates,
interest rates, Events of Default or any amount that may be payable to the
Original Agents or the Original Lenders (or their assignees or replacements
hereunder), and (y) the obligations under the Original Credit Agreement shall
continue to be paid or prepaid on or prior to the Closing Date, and shall from
and after the Closing Date continue to be owing and be subject to the terms of
this Credit Agreement. All references in the Notes and the other Credit
Documents to (i) the Original Credit Agreement or the "Credit Agreement" shall
be deemed to include references to this Credit Agreement and (ii) the "Lenders"
or a "Lender" or to the "Agents" or any "Agent" shall mean such terms as defined
in this Credit Agreement. As to all periods occurring on or after the Closing
Date, all of the covenants set forth in the Original Credit Agreement shall be
of no further force and effect, it being understood that all obligations of the
Borrower under the Original Credit Agreement shall be governed by this Credit
Agreement from and after the Closing Date.
(b) The Borrower, the Agents and the Lenders acknowledge and
agree that all outstanding Loans (including all outstanding L/C Obligations) are
hereby converted into Revolving Credit Loans (and, as applicable, L/C
Obligations) outstanding hereunder effective as of the Closing Date. The
Borrower, the Agents and the Lenders acknowledge and agree that all interest,
fees, costs and reimbursable expenses accruing or arising under the Original
Credit Agreement which remain unpaid and outstanding as of the Closing Date
shall be and remain outstanding and payable as an obligation under this
Agreement and the other Credit Documents.
1.4 Confirmation of Existing Obligations. The Borrower hereby agrees
and admits that, as of the date hereof, it has no defenses to, or offsets or
counterclaim against, any of its obligations to the Agents or any Lender under
the Credit Documents of any kind whatsoever.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments.
(a) Revolving Credit Loans. Subject to the terms and conditions
hereof, each Revolving Credit Lender severally agrees to make revolving credit
loans to the Borrower, from time to time during the Revolving Credit Commitment
Period, in an aggregate principal amount at any one time outstanding which, when
added to the aggregate principal amount of outstanding Swing Line Loans in which
such Lender has purchased a participation (or, in the case of the Swing Line
Lender, the Swing Line Loans made by such Swing Line Lender less the
participations purchased in such Swing Line Loans by any other Lender) and such
Lender's Commitment Percentage of the then outstanding L/C Obligations, does not
exceed the amount of such Lender's Revolving Credit Commitment. During the
Revolving Credit Commitment Period, the Borrower may use the Revolving Credit
Commitments by borrowing, prepaying the Revolving Credit Loans, in whole or in
part, and reborrowing, all in accordance with the terms and conditions hereof.
(b) Swing Line Loans.
25
(i) Subject to the terms and conditions hereof, the Swing
Line Lender agrees to make $10,000,000 of the credit otherwise
available to the Borrower under the Revolving Credit Commitments
by making swing line loans (individually, a "Swing Line Loan";
collectively, the "Swing Line Loans") to the Borrower from time
to time during the Revolving Credit Commitment Period; provided,
that no Swing Line Loan shall be made if, after giving effect
thereto, the aggregate principal amount of Revolving Credit Loans
then outstanding plus the aggregate principal amount of Swing
Line Loans then outstanding, plus the aggregate amount of L/C
Obligations would exceed the Revolving Credit Commitments of the
Revolving Credit Lenders. Amounts borrowed by the Borrower under
this subsection 2.1(b) may be repaid and, through but excluding
the Termination Date, reborrowed. All Swing Line Loans shall be
made as Base Rate Loans and may not be converted into Eurodollar
Loans. In order to borrow a Swing Line Loan, the Borrower shall
give the Swing Line Lender, with a copy to the Administrative
Agent, irrevocable notice (which notice must be received by the
Swing Line Lender prior to 12:00 Noon, New York City time) on the
requested Borrowing Date specifying the amount of the requested
Swing Line Loan which shall be in a minimum amount of $500,000 or
whole multiples of $100,000 in excess thereof. The proceeds of
the Swing Line Loan will be made available by the Swing Line
Lender to the Borrower at the office of the Swing Line Lender by
crediting the account of the Borrower at such office with such
proceeds.
(ii) The Swing Line Loans shall be evidenced by a Loan
Account and, if requested by the Swing Line Lender, a promissory
note of the Borrower, substantially in the form of Exhibit A-2
(the "Swing Line Note"), with appropriate insertions, payable to
the order of the Swing Line Lender and representing the
obligation of the Borrower to pay the unpaid principal amount of
the Swing Line Loans, with interest thereon as prescribed in
subsection 2.9. The Swing Line Note, if any, shall (i) be dated
the Closing Date, (ii) be stated to mature on the Termination
Date and (iii) bear interest, payable on the dates specified in
2.9, for the period from the date thereof to the Termination Date
on the unpaid principal amount thereof from time to time
outstanding at the applicable interest rate per annum specified
in subsection 2.9.
(iii) The Swing Line Lender, at any time in its sole and
absolute discretion, may on behalf of the Borrower (which hereby
irrevocably directs the Swing Line Lender to act on its behalf)
request each Lender, including the Swing Line Lender, to make a
Revolving Credit Loan (which shall be a Base Rate Loan) in an
amount equal to such Lender's Commitment Percentage of such Swing
Line Loan (the "Refunded Swing Line Loans") outstanding on the
date such notice is given. Unless any of the events described in
clause (f) of Section 8 shall have occurred (in which event the
procedures of subsection 2.1(b)(iv) shall apply) each Lender
shall, not later than 12:00 P.M., New York City time, on the
Business Day next succeeding the date on which such notice is
given, make available to the Swing Line Lender in immediately
available funds the amount equal to the Revolving Credit Loan to
be made by such Lender. The proceeds of such Revolving Credit
Loans shall be immediately applied to repay the Refunded Swing
Line Loans. Upon any request by the Swing Line Lender to the
Lenders pursuant
26
to this subsection 2.1(b)(iii), the Administrative Agent shall
promptly give notice to the Borrower of such request.
(iv) If prior to the making of a Revolving Credit Loan
pursuant to subsection 2.1(b)(iii) one of the events described in
clause (f) of Section 8 shall have occurred, each Lender will, on
the date such Loan was to have been made, purchase an undivided
participating interest in the Swing Line Loans in an amount equal
to its Commitment Percentage. Each Lender will immediately
transfer to the Swing Line Lender, in immediately available
funds, the amount of its participation.
(v) Whenever, at any time after the Swing Line Lender has
received from any Lender such Lender's participating interest in
a Swing Line Loan, the Swing Line Lender receives any payment on
account thereof, the Swing Line Lender will distribute to such
Lender its participating interest in such amount (appropriately
adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participating interest was
outstanding and funded); provided, however, that in the event
that such payment received by the Swing Line Lender is required
to be returned, such Lender will return to the Swing Line Lender
any portion thereof previously distributed to it.
(vi) Each Lender's obligation to purchase participating
interests pursuant to subsection 2.1(b)(iv) shall be absolute and
unconditional and shall not be affected by any circumstance,
including, without limitation, (a) any set-off, counterclaim,
recoupment, defense or other right which such Lender or the
Borrower may have against the Swing Line Lender, any other Lender
or anyone else for any reason whatsoever, (b) the occurrence or
continuance of any Default or Event of Default; (c) any adverse
change in the condition (financial or otherwise) of the Borrower;
(d) any breach of this Agreement by the Borrower or any other
Lender; or (e) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
(c) Except for Swing Line Loans, which shall be Base Rate Loans,
the Loans may from time to time be (i) Eurodollar Loans, (ii) Base Rate
Loans or (iii) a combination thereof, as determined by the Borrower and
notified to the Administrative Agent in accordance with subsections 2.2 and
2.7, provided that, no Revolving Credit Loan shall be made as a Eurodollar
Loan after the day that is one month prior to the Termination Date.
2.2 Procedure for Borrowing. The Borrower may borrow under the
Revolving Credit Commitments during the Revolving Credit Commitment Period on
any Business Day, provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to (a) 11:00 A.M., New York City time, three Business Days prior to the
requested Borrowing Date, if all or any part of the requested Loans are to be
initially Eurodollar Loans, (b) 11:00 A.M., New York City time, on the requested
Borrowing Date in the case of a Base Rate Loan other than a Swing Line Loan),
specifying (i) the amount to be borrowed of each Type of Loan, (ii) the
requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, Base Rate Loans or a combination thereof
27
and (iv) if the borrowing is to be entirely or partly of Eurodollar Loans, the
respective lengths of the initial Interest Periods therefor. Each borrowing
under the Commitments shall be in an amount equal to (x) in the case of Base
Rate Loans (other than Swing Line Loans or Refunded Swing Line Loans),
$2,000,000 or a whole multiple of $100,000 in excess thereof (or, if the then
Available Commitments are less than $2,000,000, such lesser amount), (y) in the
case of Swing Line Loans, as provided in subsection 2.1(b)(i) and (z) in the
case of Eurodollar Loans, $5,000,000 or a whole multiple of $100,000 in excess
thereof. Upon receipt of any such notice from the Borrower, the Administrative
Agent shall promptly notify each Lender thereof. Each Lender will make the
amount of its pro rata share of each borrowing available to the Administrative
Agent for the account of the Borrower at the office of the Administrative Agent
specified in subsection 10.2 prior to 11:00 A.M., New York City time (in the
case of Eurodollar Loans) or 2:30 P.M., New York City time (in the case of Base
Rate Loans), on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. Such borrowing will then be
made available to the Borrower by the Administrative Agent in accordance with
the Borrower's payment instructions with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent. All notices given by the Borrower under
this subsection 2.2 may be made by telephonic notice promptly confirmed in
writing.
2.3 Commitment Fee. The Borrower agrees to pay to the Administrative
Agent for the account of each Revolving Credit Lender a commitment fee for the
period from and including the first day of the Revolving Credit Commitment
Period to and including the Termination Date, computed at the Commitment Fee
Rate on the daily amount of the Available Commitment of such Revolving Credit
Lender during the period for which payment is made, payable quarterly in arrears
on the last Business Day of each March, June, September and December and on the
Termination Date, commencing on the first of such dates to occur after the date
hereof.
2.4 Termination or Reduction of Revolving Credit Commitments. The
Borrower shall have the right, upon not less than three Business Days' written
notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time, to reduce the amount of the Revolving Credit
Commitments ratably among the Revolving Credit Lenders; provided that no such
termination or reduction shall be permitted if, after giving effect thereto and
to any prepayments of the Revolving Credit Loans made on the effective date
thereof, the aggregate principal amount of the Revolving Credit Loans then
outstanding, when added to the then outstanding L/C Obligations and the
outstanding Swing Line Loans, would exceed the Revolving Credit Commitments then
in effect. Any such reduction shall be in an amount equal to $2,000,000 or a
whole multiple of $500,000 in excess thereof and shall reduce permanently the
Revolving Credit Commitments then in effect.
2.5 Repayment of Loans; Evidence of Debt.
(a) Payments on Revolving Credit Loans and Swing Line Loans. The
Borrower hereby unconditionally promises to pay to the Administrative Agent on
the Termination Date (or such earlier date on which the Loans become due and
payable pursuant to
28
Section 8) (x) for the account of each Revolving Credit Lender the then unpaid
principal amount of each Revolving Credit Loan of such Lender and (y) for the
account of the Swing Line Lender (and each other Revolving Credit Lender that
has purchased a participation in then outstanding Swing Line Loans) the then
unpaid principal amount of Swing Line Loans.
(b) Interest. The Borrower hereby further agrees to pay interest
on the unpaid principal amount of the Loans from time to time outstanding from
the date such Loans are made until payment in full thereof at the rates per
annum, and on the dates, set forth in subsection 2.9.
(c) Recording. Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of the Borrower to
such Lender resulting from each Loan of such Lender from time to time, including
the amounts of principal and interest payable and paid to such Lender from time
to time under this Agreement.
(d) Loan Accounts and Register; Notes
(i) The Loans made by, and the Commitments of, each Lender
shall be evidenced by one or more loan accounts ("Loan Accounts")
maintained by such Lender and by the Register maintained by the
Administrative Agent in the ordinary course of business. The
Register maintained by the Administrative Agent shall, in the
event of a discrepancy between the entries in the Administrative
Agent's books and any Lender's books relating to such matters, be
controlling and, absent manifest error, shall be conclusive as to
the amount of the Loans made by the Lender to the Borrower, the
interest and payments thereon and any other amounts owing in
respect of this Agreement. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for
purposes of this subsection 2.5(d) and subsection 10.6, to
maintain the Register on which it will record the Commitments
from time to time of each of the Lenders, the Loans made by each
of the Lenders and each repayment in respect of the principal
amount of the Loans of each Lender. The Borrower agrees to
indemnify the Administrative Agent from and against any and all
losses, claims, damages and liabilities of whatsoever nature
which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this
subsection 2.5(d) and subsection 10.6 (other than any losses,
claims, damages and liabilities to the extent incurred by reason
of the gross negligence or willful misconduct of the
Administrative Agent).
(ii) If requested by any Lender, the Borrower shall execute
and deliver to such Lender (and deliver a copy thereof to the
Administrative Agent) one or more promissory notes evidencing the
Loans owing to such Lender pursuant to this Agreement in
accordance with subsection 2.5(f).
(e) Prima Facie Evidence. The entries made in the Register and
the Loan Accounts of each Lender maintained pursuant to subsection 2.5(d) shall,
to the extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of the Borrower therein recorded;
provided, however, that the failure of any Lender or the Administrative Agent to
maintain the Register or any such Loan Account, or any error therein, shall not
in any manner affect the obligation of the Borrower to repay (with applicable
interest)
29
the Loans made to the Borrower by such Lender in accordance with the terms of
this Agreement. For the avoidance of doubt, the existence or non-existence of
any Note representing any Obligations owing to any Lender hereunder shall not
affect the existence, amount, validity or enforceability of such Obligations,
which in all events shall be absolute and unconditional.
(f) Notes. The Borrower agrees that the Borrower will execute and
deliver to each Lender that requests any such Note pursuant to subsection
2.5(d)(ii), a promissory note of the Borrower evidencing the Revolving Credit
Loans of such Lender, substantially in the form of Exhibit A-1 with appropriate
insertions as to date and principal amount (a "Revolving Credit Note"). The
Borrower also agrees that, if requested by the Swing Line Lender, the Borrower
will execute and deliver to the Swing Line Lender a promissory note of the
Borrower evidencing the Swing Line Loans of the Swing Line Lender, substantially
in the form of Exhibit A-2 with appropriate insertions as to date and principal
amount.
2.6 Optional Prepayments; Mandatory Prepayments and Reduction of
Commitments.
(a) Subject to subsections 2.12 and 2.16, the Borrower may at any
time and from time to time prepay any Loans, in whole or in part, without
premium or penalty, upon irrevocable notice to the Administrative Agent prior to
11:00 A.M., New York City time, three Business Days prior to the date of
prepayment in the case of Eurodollar Loans or on any Business Day in the case of
Base Rate Loans, specifying the date and amount of prepayment, the Type of Loan
to be prepaid (which Loans shall be prepaid on a pro rata basis among the
applicable Lenders) and whether the prepayment is of Eurodollar Loans, Base Rate
Loans or a combination thereof, and, if of a combination thereof, the amount
allocable to each. Upon receipt of any such notice, the Administrative Agent
shall promptly notify each applicable Lender thereof. If any such notice is
given, the amount specified in such notice shall be due and payable on the date
specified therein, together with any amounts payable pursuant to subsection
2.16. Partial prepayments shall be in an aggregate principal amount of
$2,000,000 or a whole multiple of $100,000 in excess thereof.
(b) (i) If, subsequent to the Closing Date, Holdings or any of
its Subsidiaries shall incur or permit the incurrence of any Indebtedness (other
than Indebtedness permitted pursuant to subsection 7.2), 100% of the Net
Proceeds thereof shall be promptly ratably applied toward the prepayment of the
Loans, the Facility B Loans and the Facility C Loans and permanent reduction of
the Commitments, the Facility B Commitments and the Facility C Commitments as
set forth in clause (iv) of this subsection 2.6(b). Nothing in this paragraph
(b) shall be deemed to permit any Indebtedness not permitted by subsection 7.2.
(ii) If, subsequent to the Original Closing Date, Holdings
or any of its Subsidiaries shall receive Net Proceeds from any
Asset Sale, such Net Proceeds, subject to the Applicable Holdback
(defined below) shall be promptly and ratably applied toward the
prepayment of the Loans and the Facility B Loans and Facility C
Loans and permanent reduction of the Commitments and the Facility
B Commitments and the Facility C Commitments as set forth in
clause (iv) of this subsection 2.6(b); provided that Net Proceeds
from any Asset Sales shall not be required to be so applied to
the extent that
30
such Net Proceeds are used by the Borrower or such Subsidiary to
acquire assets to be employed in the business of the Borrower or
its Subsidiaries within 365 days of receipt thereof, but if such
Net Proceeds, subject to the Applicable Holdback (as defined
below), are not so used, 100% of the amount of such Net Proceeds
not so used shall be applied toward the prepayment of the Loans
and the permanent reduction of the Commitments as set forth in
clause (iv) of this subsection 2.6(b) on the earlier of (x) the
366th day after receipt of such Net Proceeds and (y) the date on
which the Borrower has determined that such Net Proceeds shall
not be so used. As used herein, "Applicable Holdback" shall mean
an amount of Net Proceeds not in excess of $20,000,000 derived
from any Asset Sales occurring since the Original Closing Date
that has not been applied toward the prepayment of Loans and the
permanent reduction of the Commitments as set forth in clause
(iv) of subsection 2.6(b) which Borrower and/or its applicable
Subsidiary may retain and not apply as a mandatory prepayment
without the requirement of utilizing the same to acquire assets
to be employed in the business of the Borrower or such applicable
Subsidiary; provided, that if any Event of Default shall have
occurred and be continuing, the Applicable Holdback amount shall
be automatically reduced to zero unless and until such Event of
Default is acknowledged in writing by the Required Lenders (or
all the Lenders in cases where the unanimous consent of the
Lenders is required) as cured or waived.
(iii) [Intentionally Omitted]
(iv) Except during any period in which an Event of Default
has occurred and is continuing, any mandatory prepayments
required by this subsection 2.6 shall be applied ratably to the
outstanding principal amount of Loans, Facility B Loans and
Facility C Loans with a corresponding ratable permanent reduction
of the Revolving Credit Commitments, the Facility C Commitments
and the Revolving 364 Day Commitments (or, if applicable, the
Term Loans on a pro rata basis to reduce the unpaid scheduled
installments of principal of the Term Loans in inverse order of
maturity). Revolving Credit Commitment, Facility C Commitments
and Revolving 364 Day Commitment reductions made pursuant to
subsections 2.6(b)(i) and (ii) hereof (and the corresponding
subsections of the Facility B Credit Agreement and Facility C
Credit Agreement) shall be applied to each Lender's respective
Revolving Credit Commitment, each Facility C Lender's Facility C
Commitments and/or each Facility B Lender's Revolving 364 Day
Commitments, as applicable, on a pro rata basis and shall reduce
permanently such Commitments, Revolving 364 Day Commitments and
Facility C Commitments. At any time that an Event of Default has
occurred and is continuing, all mandatory prepayments shall be
applied in accordance with the terms of subsection 2.12 hereof
(and the corresponding subsection of the Facility B Credit
Agreement and/or the Facility C Credit Agreement). Mandatory
prepayments shall not be subject to any minimum amount
requirement.
(v) In addition, if after giving effect to (i) any reduction
of the Revolving Credit Commitments under subsection 2.4, 2.5 or
2.6 or (ii) any recalculation of the Exchange Rate pursuant to
subsection 3.9, the aggregate outstanding principal
31
amount of Swing Line Loans plus the aggregate outstanding
principal amount of Revolving Credit Loans plus the aggregate
outstanding amount of L/C Obligations shall exceed the aggregate
amount of the Revolving Credit Commitments, such reduction or
recalculation shall be accompanied by prepayment in the amount of
such excess to be applied (x) first, to the outstanding Swing
Line Loans and (y) second, to outstanding Revolving Credit Loans
(in each case, together with any amounts payable under subsection
2.16)); provided that if the aggregate principal amount of Swing
Line Loans and Revolving Credit Loans then outstanding is less
than the amount of such excess (because Letters of Credit
constitute a portion of such excess), the Borrower shall
immediately, without notice or demand, to the extent of the
balance of such excess, replace outstanding Letters of Credit
and/or deposit an amount (but in no event greater than such
balance) in a cash collateral account opened by the
Administrative Agent for the benefit of the Revolving Credit
Lenders (such deposit to be in Dollars with respect to Domestic
L/Cs and the applicable Alternative Currency with respect to
Foreign L/Cs). The Borrower hereby grants to the Administrative
Agent, for the benefit of the Issuing Lender and the L/C
Participants in such Letters of Credit, a security interest in
such cash collateral to secure all obligations of the Borrower
under this Agreement and the other Credit Documents. Any amounts
deposited in such accounts shall be released to the Borrower on
any Calculation Date on which the aggregate outstanding principal
amount of Swing Line Loans plus the aggregate outstanding
principal amount of Revolving Credit Loans plus the aggregate
outstanding amount of L/C Obligations equals or is less than the
aggregate amount of the Revolving Credit Commitments, provided
that no Default or Event of Default has occurred and is
continuing.
2.7 Conversion and Continuation Options.
(a) The Borrower may elect from time to time to convert
Eurodollar Loans to Base Rate Loans, by giving the Administrative Agent prior
irrevocable notice of such election at or before 11:00 A.M. New York City time,
on the Business Day immediately preceding the date of the proposed conversion
and of the amount and Type of Loan to be converted, provided that any such
conversion of Eurodollar Loans may only be made on the last day of an Interest
Period with respect thereto. The Borrower may elect from time to time to convert
Base Rate Loans (other than Swing Line Loans) to Eurodollar Loans by giving the
Administrative Agent prior irrevocable notice of such election at or before
11:00 A.M., New York City time, on the third Business Day immediately preceding
the date of the proposed conversion and of the amount and Type of Loan to be
converted. Any such notice of conversion to Eurodollar Loans shall specify the
length of the initial Interest Period or Interest Periods therefor. Upon receipt
of any such notice the Administrative Agent shall promptly notify each
applicable Lender thereof. All or any part of outstanding Eurodollar Loans and
Base Rate Loans may be converted as provided herein, provided that (i) no Loan
may be converted into a Eurodollar Loan when any Event of Default has occurred
and is then continuing and (ii) no Loan may be converted into a Eurodollar Loan
after the date that is one month prior to the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the
32
Administrative Agent, in accordance with the applicable provisions of the term
"Interest Period" set forth in subsection 1.1, of the length of the next
Interest Period to be applicable to such Loans and of the amount and Type of
Loan to be converted, provided that no Eurodollar Loan may be continued as such
(i) when any Event of Default has occurred and is then continuing or (ii) after
the date that is one month prior to the Termination Date and provided, further,
that if the Borrower shall fail to give such notice or if such continuation is
not permitted such Loans shall be automatically converted to Base Rate Loans on
the last day of such then expiring Interest Period.
(c) All notices given by Borrower under this subsection 2.7 may
be made by telephonic notice promptly confirmed in writing.
2.8 Minimum Amounts and Maximum Number of Tranches. All borrowings,
conversions and continuations of Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Loans comprising each Eurodollar Tranche shall be equal to $5,000,000 or
a whole multiple of $100,000 in excess thereof. All Loans hereunder may be
converted or continued into Base Rate Loans without reference to the minimum
principal amount requirements for new Base Rate borrowings set forth in
subsection 2.2 above. In no event shall the number of outstanding Eurodollar
Tranches plus outstanding Facility B Eurodollar Tranches and Facility C
Eurodollar Tranches exceed 20 at any time.
2.9 Interest Rates and Payment Dates.
(a) Each Eurodollar Loan shall bear interest for each day during
each Interest Period with respect thereto at a rate per annum equal to the
Eurodollar Rate determined for such day plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any Loan, (ii)
any interest payable thereon, (iii) any commitment fee or (iv) any other amount
payable hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), the principal of the Loans and any such overdue
interest, commitment fee or other amount shall bear interest at a rate per annum
which is (x) in the case of principal, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this subsection plus
2% or (y) in the case of any such overdue interest, commitment fee or other
amount, the rate described in paragraph (b) of this subsection plus 2%, in each
case from the date of such non-payment until such overdue principal, interest,
commitment fee or other amount is paid in full (as well after as before
judgment).
(d) Interest shall be payable with respect to each Loan in
arrears on each Interest Payment Date and on the Termination Date, provided that
interest accruing pursuant to paragraph (c) of this subsection shall be payable
from time to time on demand.
33
2.10 Computation of Interest and Fees.
(a) Interest on Base Rate Loans and fees shall be calculated on
the basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed; all other interest 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 Borrower and the Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Base Rate or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to subsection 2.9(a) or (c).
2.11 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the eurodollar market, adequate and reasonable means
do not exist for ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar Rate determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders) of making or maintaining
their affected Loans during such Interest Period, the Administrative Agent shall
give telecopy or telephonic notice thereof to the Borrower and the Lenders as
soon as practicable thereafter. If such notice is given (x) any Eurodollar Loans
requested to be made on the first day of such Interest Period shall be made as
Base Rate Loans, (y) any Loans that were to have been converted on the first day
of such Interest Period to Eurodollar Loans shall be converted to or continued
as Base Rate Loans and (z) any outstanding Eurodollar Loans shall be converted,
on the first day of such Interest Period, to Base Rate Loans. Until such notice
has been withdrawn in writing by the Administrative Agent (which the
Administrative Agent agrees to do when the Administrative Agent has determined,
or has been instructed by the Required Lenders that, the circumstances that
prompted the delivery of such notice no longer exist), no further Eurodollar
Loans shall be made or continued as such, nor shall the Borrower have the right
to convert Loans to Eurodollar Loans.
2.12 Pro Rata Treatment and Payments.
(a) Each borrowing by the Borrower from the Revolving Credit
Lenders hereunder, each payment by the Borrower on account of any commitment fee
hereunder and any reduction of the Revolving Credit Commitments of Revolving
Credit Lenders shall be made pro
34
rata according to the respective Commitment Percentages of the Revolving Credit
Lenders. Except during any period in which an Event of Default has occurred and
is continuing, each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Revolving Credit Loans, and any
application by the Administrative Agent of the proceeds of any Collateral, shall
be made pro rata according to the respective outstanding principal amounts of
such Loans then held by the Lenders. All payments (including prepayments) to be
made by the Borrower hereunder in respect of any Loan, whether on account of
principal, interest, Reimbursement Obligations (whether in respect of Domestic
L/Cs or Foreign L/Cs), fees, expenses or otherwise, shall be made without set
off or counterclaim and shall be made prior to 11:00 A.M., New York City time,
on the due date thereof to the Administrative Agent, for the account of the
Lenders with respect to such Loans, at the Administrative Agent's office
specified in subsection 10.2, in Dollars and in immediately available funds;
provided, that, with respect to any Reimbursement Obligations of the Borrower
arising from the presentment to the Issuing Lender of a draft under a Foreign
L/C, the Borrower may make payment in the applicable Alternative Currency if
such payment is received by the Issuing Lender on the date such draft is paid by
the Issuing Lender. At any time that an Event of Default has occurred and is
continuing, all payments (including prepayments) made by Borrower hereunder and
any application by the Administrative Agent of the proceeds of any Collateral
and/or payment under any Guarantee shall be applied in the following order: (1)
to the ratable payment of all amounts due and owing by the Borrower pursuant to
subsection 10.5 of this Agreement, subsection 10.5 of the Facility B Credit
Agreement or subsection 10.5 of the Facility C Credit Agreement to the Agents,
the Facility B Agents and/or the Facility C Agents, and after payment in full
thereof, to any other Lender, Facility B Lender or Facility C Lender; (2) to the
ratable payment of all interest, fees and commissions due and owing under this
Agreement, the Facility B Credit Agreement or the Facility C Credit Agreement to
the Agents, the Facility B Agents, the Facility C Agents, the Swing Line Lender,
any Lender, any Facility B Lender or any Facility C Lender; (3) to the ratable
payment (or cash collateralization) of the aggregate outstanding principal
amount of Loans, Facility B Loans, Facility C Loans and the aggregate L/C
Obligations and Facility X X/C Obligations; and (4) to the ratable payment of
all other obligations of the Borrower to the Agents, the Facility B Agents, the
Facility C Agents, the Swing Line Lender, any Lender, any Facility B Lender, or
any Facility C Lender under any Credit Document, Facility B Credit Document or
Facility C Credit Document. For purposes of applying payments and proceeds
distributed under clause 3 above, each Lender will first apply such amounts to
all outstanding Loans of such Lender before such amounts will be held as cash
collateral for L/C Obligations in which such Lender is a L/C Participant. The
Administrative Agent, the Facility B Administrative Agent and the Facility C
Administrative Agent shall ratably distribute such payments to the applicable
Lenders, the Facility B Lenders and the Facility C Lenders promptly upon receipt
in like funds as received. If any payment hereunder 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.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its Commitment Percentage of such borrowing
available to the Administrative Agent, the
35
Administrative Agent may assume that such Lender is making such amount available
to the Administrative Agent on such Borrowing Date, and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this subsection shall be conclusive in the
absence of manifest error. If such Lender's Commitment Percentage of such
borrowing is not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate
per annum applicable to Base Rate Loans hereunder, on demand, from the Borrower.
The failure of any Lender to make any Loan to be made by it shall not relieve
any other Lender of its obligation hereunder to make its Loan on such Borrowing
Date.
2.13 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert Base Rate Loans to Eurodollar Loans shall forthwith be canceled and (b)
such Lender's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to Base Rate Loans on the respective last days of the
then current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurodollar Loan occurs on
a day which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to subsection 2.16. If circumstances subsequently change so
that any affected Lender shall determine that it is no longer so affected, such
Lender will promptly notify the Borrower and the Administrative Agent, and upon
receipt of such notice, the obligations of such Lender to make or continue
Eurodollar Loans or to convert Base Rate Loans into Eurodollar Loans shall be
reinstated.
2.14 Requirements of Law.
(a) If the adoption of or any change in any Requirement of Law or
in the interpretation or application thereof or compliance by any Lender with
any request or directive (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note, any Letter of
Credit, any Application or any Eurodollar Loan made by it, or change
the basis of taxation of payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by subsection 2.15 and changes
in the rate of net income taxes (including branch profits taxes and
minimum taxes) or franchise taxes (imposed in lieu of net income
taxes) of such Lender);
36
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender
upon written demand such additional amount or amounts as will compensate such
Lender for such increased cost or reduced amount receivable; provided that
before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions and
so long as such efforts would not be disadvantageous to it, in its reasonable
discretion, in any legal, economic or regulatory manner) to designate a
different Eurodollar lending office if the making of such designation would
allow the Lender or its Eurodollar lending office to continue to perform its
obligations to make Eurodollar Loans or to continue to fund or maintain
Eurodollar Loans and avoid the need for, or reduce the amount of, such increased
cost. If any Lender becomes entitled to claim any additional amounts pursuant to
this subsection, it shall promptly notify the Borrower, through the
Administrative Agent, of the event by reason of which it has become so entitled.
If the Borrower so notifies the Administrative Agent within five Business Days
after any Lender notifies the Borrower of any increased cost pursuant to the
foregoing provisions of this Section, the Borrower may convert all Eurodollar
Loans of such Lender then outstanding into Base Rate Loans in accordance with
the terms hereof. Each Lender shall notify the Borrower within 120 days after it
becomes aware of the imposition of such costs; provided that if such Lender
fails to so notify the Borrower within such 120-day period, such Lender shall
not be entitled to claim any additional amounts pursuant to this subsection for
any period ending on a date which is prior to 120 days before such notification.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter of Credit to a
level below that which such Lender or such corporation could have achieved but
for such adoption, change or compliance (taking into consideration such Lender's
or such corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, after submission
by such Lender to the Borrower (with a copy to the Administrative Agent) of a
prompt written request therefor, the Borrower shall promptly pay to such Lender
such additional amount or amounts as will compensate such Lender for such
reduction. Each Lender shall notify the Borrower within
37
120 days after it becomes aware of the imposition of such additional amount or
amounts; provided that if such Lender fails to so notify the Borrower within
such 120-day period, such Lender shall not be entitled to claim any additional
amount or amounts pursuant to this subsection for any period ending on a date
which is prior to 120 days before such notification.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify the Borrower (with a copy
to the Administrative Agent) of the event by reason of which it has become so
entitled. A certificate as to any additional amounts payable pursuant to this
subsection, showing the calculation thereof in reasonable detail, submitted by
such Lender to the Borrower (with a copy to the Administrative Agent) shall be
conclusive in the absence of manifest error. The agreements in this subsection
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
2.15 Taxes.
(a) Except as provided in this subsection 2.15, all payments made
by the Borrower under this Agreement and any Notes shall be made free and clear
of, and without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority ("Taxes"), excluding Taxes on
net income (including, without limitation, branch profits taxes and minimum
taxes) and franchise taxes (imposed in lieu of net income taxes) imposed on any
Agent or any Lender as a result of a present or former connection between any
Agent or such Lender and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from such Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any Note). If any such non-excluded taxes,
levies, imposts, duties, charges, fees deductions or withholdings ("Non-Excluded
Taxes") are required to be withheld from any amounts payable to any Agent or any
Lender hereunder or under any Note, the amounts so payable to such Agent or such
Lender shall be increased to the extent necessary to yield to such Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof with respect to any
Taxes that are imposed on amounts payable to such Lender at the time such Lender
becomes a party to this Agreement or that are attributable to such Lender's
failure to comply with the requirements of paragraph (b) of this subsection.
Whenever any Non-Excluded Taxes are payable by the Borrower, as promptly as
possible thereafter, the Borrower shall send to the relevant Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt, if any, received by the Borrower showing
payment thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to
the appropriate taxing authority or fails to remit to the relevant Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Agents and the Lenders for any incremental taxes, interest or
penalties that may
38
become payable by any Agent or any Lender as a result of any such failure. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender, Assignee and Participant that is not a citizen or
resident of the United States of America, a corporation, partnership created or
organized in or under the laws of the United States of America, any estate that
is subject to U.S. federal income taxation regardless of the source of its
income or any trust which is subject to the supervision of a court within the
United States and the control of a United States fiduciary as described in
Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver to the
Borrower and the Administrative Agent, and if applicable, the assigning Lender
(or, in the case of a Participant, to the Lender 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) two duly completed and signed copies of either Internal Revenue
Service Form W-8 ECI (relating to such Non-U.S. Lender and entitling it to
a complete exemption from withholding of U.S. Taxes on all amounts to be
received by such Non-U.S. Lender pursuant to this Agreement and the other
Credit Documents) or Form W-8 BEN (relating to all amounts to be received
by such Non-U.S. Lender pursuant to this Agreement and the other Credit
Documents), or successor and related applicable forms, as the case may be;
or
(B) in the case of a Non-U.S. Lender 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 E (or such other form of statement as shall be reasonably requested
by the Borrower from time to time) to the effect that such Non-U.S. Lender
is eligible for a complete exemption from withholding of U.S. Taxes under
Code Section 871(h) or 881(c), and (y) two duly completed and signed 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 Borrower described in clause (B) of the
proviso to the first sentence of subsection 10.6(c), no Assignee 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 2.15(b)).
Further, each Non-U.S. Lender agrees (i) to deliver to the Borrower and the
Administrative Agent, and if applicable, the assigning Lender (or, in the case
of a Participant, to the Lender from which the related participation shall have
been purchased) two further duly completed and signed copies of such Forms W-8
ECI or W-8 BEN, 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 Borrower (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) in accordance with applicable U.S. laws and regulations and (ii) in
the case of a Non-U.S. Lender that delivers a statement in the
39
form of Exhibit E (or such other form of statement as shall have been requested
by the Borrower), to deliver to the Borrower and the Administrative Agent, and
if applicable, the assigning Lender, such statement on an annual basis on the
anniversary of the date on which such Non-U.S. Lender became a party to this
Agreement and to deliver promptly to the Borrower and the Administrative Agent,
and if applicable, the assigning Lender, such additional statements and forms as
shall be reasonably requested by the Borrower from time to time unless, in any
such case, any change in law or regulation has occurred subsequent to the date
such Lender became a party to this Agreement (or in the case of a Participant,
the date on which such Participant purchased the related participation) which
renders all such forms inapplicable or which would prevent such Lender (or
Participant) from properly completing and executing any such form with respect
to it and such Lender promptly notifies the Borrower and the Administrative
Agent (or, in the case of a Participant, the Lender 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 2.15(b). Each Non-U.S. Lender agrees
to indemnify and hold harmless the Borrower from and against any taxes,
penalties, interest or other costs or losses (including, without limitation,
reasonable attorneys' fees and expenses) incurred or payable by the Borrower as
a result of the failure of the Borrower to comply with its obligations to deduct
or withhold any U.S. Taxes from any payments made pursuant to this Agreement to
such Non-U.S. Lender or the Administrative Agent which failure resulted from the
Borrower's reliance on any form, statement, certificate or other information
provided to it by such Non-U.S. Lender pursuant to clause (B) or clause (ii) of
this subsection 2.15(b). The Borrower hereby agrees that for so long as a
Non-U.S. Lender complies with this subsection 2.15(b), the Borrower shall not
withhold any amounts from any payments made pursuant to this Agreement to such
Non-U.S. Lender, unless the Borrower reasonably determines that it is required
by law to withhold or deduct any amounts from any payments made to such Non-U.S.
Lender pursuant to this Agreement. A Non-U.S. Lender shall not be required to
deliver any form or statement pursuant to the immediately preceding sentences in
this subsection 2.15(b) that such Non-U.S. Lender is not legally able to deliver
(it being understood and agreed that the Borrower shall withhold or deduct such
amounts from any payments made to such Non-U.S. Lender that the Borrower
reasonably determines are required by law and that payments resulting from a
failure to comply with this paragraph (b) shall not be subject to payment or
indemnity by the Borrower pursuant to subsection 2.15(a)). If any Credit Party
other than the Borrower makes any payment to any Non-U.S. Lender under any
Credit Document, the foregoing provisions of this subsection 2.15 shall apply to
such Non-U.S. Lender and such Credit Party as if such Credit Party were the
Borrower (but a Non-U.S. Lender shall not be required to provide any form or
make any statement to any such Credit Party unless such Non-U.S. Lender has
received a request to do so from such Credit Party and has a reasonable time to
comply with such request).
(c) If a Lender shall become aware that it is entitled to receive a
refund (whether by way of a direct payment or by offset) in respect of a
Non-Excluded Tax paid by the Borrower, which refund, in the good faith judgment
of such Lender, is allocable to such payment made pursuant to this Section, it
shall promptly notify the Borrower of the availability of such refund and shall,
within 30 days after the receipt of a request from the Borrower, apply for such
refund at the Borrower's sole expense. If any Lender receives such refund (as
described in the
40
preceding sentence), it shall repay the amount of such refund (together with any
interest received thereon) to the Borrower if all the payments due under this
Section has been paid in full.
2.16 Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of Eurodollar Loans on a day which
is not the last day of an Interest Period with respect thereto (but excluding
loss of margin). Such indemnification under this subsection 2.16 may include an
amount equal to the excess, if any, of (i) the amount of interest which would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein (but excluding loss of margin)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. Each Lender claiming any payment pursuant to this subsection 2.16 shall
do so by giving notice thereof to the Borrower and the Administrative Agent
(showing calculation of the amount claimed in reasonable detail) within 60
Business Days after a failure to borrow, convert or continue Eurodollar Loans,
or to prepay, after notice or after a prepayment of Eurodollar Loans on a day
which is not the last day of an Interest Period therefor. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.17 Replacement of Lenders. If at any time (a) the Borrower becomes
obligated to pay additional amounts described in subsections 2.13, 2.14 or 2.15
as a result of any condition described in such subsections, (b) any Lender
ceases to make Eurodollar Loans pursuant to subsection 2.13, (c) any Lender
becomes insolvent and its assets become subject to a receiver, liquidator,
trustee, custodian or other Person having similar powers or (d) any Lender
becomes a "Nonconsenting Lender" (hereinafter defined), then the Borrower may,
on five (5) Business Days' prior written notice to the Administrative Agent and
such Lender, replace such Lender by causing such Lender to (and such Lender
shall) assign pursuant to subsection 10.6 all of its rights and obligations
under this Agreement to a Lender or other entity selected by the Borrower and
acceptable to the Administrative Agent for a purchase price equal to the
outstanding principal amount of such Lender's Loans and all accrued interest and
fees and other amounts payable hereunder (including amounts payable under
subsection 2.16 as though such Loans were being paid instead of being
purchased); provided that (i) the Borrower shall have no right to replace the
Administrative Agent, (ii) neither the Administrative Agent nor any Lender shall
have any obligation to the Borrower to find a replacement Lender, (iii) in the
event of a replacement of a Nonconsenting Lender or a Lender to which the
Borrower becomes obligated to pay additional amounts under one of the
subsections described in clause (a) above, in order for the Borrower to
41
be entitled to replace such a Lender, such replacement must take place no later
than 180 days after (A) the date the Nonconsenting Lender shall have notified
the Borrower and the Administrative Agent of its failure to agree to any
requested consent, waiver or amendment or (B) the Lender shall have demanded
payment of additional amounts under one of the subsections described in clause
(a) above, as the case may be, and (iv) in no event shall the Lender hereby
replaced be required to pay or surrender to its replacement Lender or other
entity any of the fees received by such Lender hereby replaced pursuant to this
Agreement. In the case of a replacement of a Lender to which the Borrower
becomes obligated to pay additional amounts pursuant to this subsection 2.17,
the Borrower shall pay such additional amounts to such Lender prior to such
Lender being replaced and the payment of such additional amounts shall be a
condition to the replacement of such Lender. In the event that (x) the Borrower
or the Administrative Agent has requested the Lenders to consent to a departure
or waiver of any provisions of the Credit Documents or to agree to any amendment
thereto, (y) the consent, waiver or amendment in question requires the agreement
of all Lenders in accordance with the terms of subsection 10.1 and (z) the
Required Lenders have agreed to such consent, waiver or amendment, then any
Lender who does not agree to such consent, waiver or amendment shall be deemed a
"Nonconsenting Lender."
2.18 Certain Fees. The Borrower agrees to pay to the Administrative
Agent, for its own account, the non-refundable fees at the times and in the
amounts as set forth in that certain fee letter between the Administrative Agent
and the Borrower dated on or about August 11, 1998.
2.19 Certain Rules Relating to the Payment of Additional Amounts.
(a) Upon the request, and at the expense, of the Borrower, each
Lender to which the Borrower is required to pay any additional amount pursuant
to subsection 2.14 or 2.15 shall reasonably afford the Borrower the opportunity
to contest, and reasonably cooperate with the Borrower in contesting, the
imposition of any Non-Excluded Taxes or other amounts giving rise to such
payment; provided that (i) such Lender shall not be required to afford the
Borrower the opportunity to so contest unless the Borrower shall have confirmed
in writing to such Lender its obligation to pay such amounts pursuant to this
Agreement and (ii) the Borrower shall reimburse such Lender for its reasonable
attorneys' and accountants' fees and disbursements incurred in so cooperating
with the Borrower in contesting the imposition of such Non-Excluded Taxes.
(b) Each Lender agrees that if it makes any demand for payment
under subsection 2.14 or 2.15(a), or if any adoption or change of the type
described in subsection 2.13 shall occur with respect to it, it will use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, as
determined in its reasonable discretion) to designate a different lending office
if the making of such a designation would allow the Lender to continue to make
and maintain Eurodollar Loans and would reduce or obviate the need for the
Borrower to make payments under subsection 2.14 or 2.15(a), or would eliminate
or reduce the effect of any adoption or change described in subsection 2.13.
42
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment.
(a) Subject to the terms and conditions hereof, the Issuing Lender, in
reliance on the agreements of the Revolving Credit Lenders set forth in
subsection 3.4(a), agrees to issue letters of credit ("Letters of Credit") for
the account of the Borrower on any Business Day during the Revolving Credit
Commitment Period in such form as may be approved from time to time by the
Issuing Lender; provided that the Issuing Lender shall have no obligation to
issue any Letter of Credit if, after giving effect to such issuance, (x) the L/C
Obligations would exceed the Revolving Credit Commitment or (y) the Available
Commitment with respect to Revolving Credit Loans of all Revolving Credit
Lenders less the aggregate principal amount of the Swing Line Loans then
outstanding would be less than zero.
(b) Each Domestic L/C shall (i) be denominated in Dollars, (ii) be a
Performance L/C or a Financial L/C issued to support obligations of the Borrower
or any of its Subsidiaries, contingent or otherwise, or be a commercial letter
of credit for the purchase of goods and (iii) expire no later than the fifth
Business Day prior to the Termination Date.
(c) Each Foreign L/C shall (i) be denominated in an Alternative
Currency, (ii) be a Performance L/C or a Financial L/C issued to support
obligations of the Borrower or any of its Subsidiaries, contingent or otherwise,
or be a commercial letter of credit for the purchase of goods, and (iii) expire
no later than the fifth Business Day prior to the Termination Date. For purposes
of this Agreement, the amount deemed outstanding under each Foreign L/C at any
time, and the amount of the Borrower's Reimbursement Obligations under
subsection 3.5 for any amounts paid by the Issuing Lender in connection with any
Foreign L/C, shall be the Dollar Equivalent, as determined on the most recent
Calculation Date, of (x) such Letter of Credit or (y) the Reimbursement Amount
(as defined in Subsection 3.5(a)), as applicable.
(d) Each Letter of Credit shall be subject to the Uniform Customs and,
to the extent not inconsistent therewith, Domestic L/Cs shall also be subject to
the laws of the State of New York.
(e) The Issuing Lender shall not at any time be obligated to issue any
Letter of Credit hereunder if (i) such issuance would conflict with, or cause
the Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law or any policies of the Issuing Lender or (ii) in
the case of any Foreign L/C, it has determined that it cannot provide such
Letter of Credit in the applicable Alternative Currency.
3.2 Procedure for Issuance of Letters of Credit. The Borrower may from time
to time request that the Issuing Lender issue a Letter of Credit at any time
prior to the fifth Business Day prior to the Termination Date by delivering to
the Issuing Lender with a copy to the Administrative Agent at its address for
notices specified herein an Application therefor, completed to the satisfaction
of the Issuing Lender, and such other certificates, documents and other papers
and information as the Issuing Lender may reasonably request. Upon receipt of
any Application, the Issuing Lender will process such Application and the
certificates, documents
43
and other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of
Credit requested thereby (but in no event shall the Issuing Lender be required
to issue any Letter of Credit earlier than three Business Days after its receipt
of the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such
Letter of Credit to the Borrower and the Administrative Agent (with copies for
each Lender) promptly following the issuance thereof.
3.3 Fees, Commissions and Other Charges.
(a) The Borrower shall pay to the Administrative Agent, for the account
of the Issuing Lender and the L/C Participants, a letter of credit fee with
respect to each Letter of Credit, computed for the period from and including the
date of issuance of such Letter of Credit to the expiration date of such Letter
of Credit at a rate per annum equal to (i) in the case of any such Letter of
Credit issued as a Performance L/C, one-half (1/2) of the Applicable Margin then
in effect for Eurodollar Loans, of the Dollar Equivalent of the aggregate face
amount of such Letters of Credit outstanding and (ii) in the case of any other
Letter of Credit (except for the type described in clause (i) above), the
Applicable Margin then in effect for Eurodollar Loans, of the Dollar Equivalent
of the aggregate face amount of such Letters of Credit outstanding, payable, in
each such case, in arrears on each L/C Fee Payment Date and on the Termination
Date; provided, that, with respect to any Foreign L/C, the Dollar Equivalent of
the face amount of such Letter of Credit shall be recalculated on each
Calculation Date during the period that such Letter of Credit is outstanding.
Such fees shall be payable to the Administrative Agent to be shared ratably
among the Revolving Credit Lenders in accordance with their respective
Commitment Percentages. In addition, the Borrower shall pay to the Issuing
Lender, for its sole account, a fee equal to 0.125% per annum of the Dollar
Equivalent of the aggregate face amount of all outstanding Letters of Credit
payable quarterly in arrears on each L/C Fee Payment Date and on the Termination
Date; provided, that, with respect to any Foreign L/C, the Dollar Equivalent of
the face amount of such Letter of Credit shall be recalculated on each
Calculation Date during the period that such Letter of Credit is outstanding.
(b) In addition to the foregoing fees and commissions, the Borrower
shall pay or reimburse the Issuing Lender for such normal and customary costs
and expenses as are incurred or charged by the Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Issuing Lender and the relevant L/C Participants all
fees and commissions received by the Administrative Agent for their respective
accounts pursuant to this subsection.
3.4 L/C Participation.
(a) The Issuing Lender irrevocably agrees to sell and hereby sells to
each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from the
44
Issuing Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Commitment Percentage from time to time in effect in the Issuing
Lender's obligations and rights under each Letter of Credit issued hereunder and
the amount of each draft paid by the Issuing Lender thereunder. Each L/C
Participant unconditionally and irrevocably agrees with the Issuing Lender that,
if a draft is paid under any Letter of Credit for which the Issuing Lender is
not reimbursed in full by the Borrower in accordance with the terms of this
Agreement or any such reimbursement payment received by the Issuing Lender is
avoided or required to be returned in accordance with applicable law, such L/C
Participant shall pay to the Issuing Lender upon demand in Dollars at the
Issuing Lender's address for notices specified herein an amount equal to such
L/C Participant's then Commitment Percentage of the Dollar Equivalent of the
amount of such draft (determined on the date such draft is paid), or any part
thereof, which is not so indefeasibly reimbursed; provided that, if such demand
is made prior to 11:00 A.M., New York City time, on a Business Day, such L/C
Participant shall make such payment to the Issuing Lender prior to the end of
such Business Day and otherwise such L/C Participant shall make such payment on
the next succeeding Business Day.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to subsection 3.4(a) in respect of any portion of any
payment made by the Issuing Lender under any Letter of Credit is paid to the
Issuing Lender within three Business Days after the date such payment is due,
such L/C Participant shall pay to the Issuing Lender on demand an amount equal
to the product of (i) such amount, times (ii) the daily average Federal Funds
Effective Rate, as quoted by the Issuing Lender, during the period from and
including the date such payment is required to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any L/C
Participant pursuant to subsection 3.4(a) is not in fact made available to the
Issuing Lender by such L/C Participant within three Business Days after the date
such payment is due, the Issuing Lender shall be entitled to recover from such
L/C Participant, on demand, such amount with interest thereon calculated from
such due date at the rate per annum applicable to Base Rate Loans hereunder. A
certificate of the Issuing Lender submitted to any L/C Participant with respect
to any amounts owing under this subsection shall be conclusive in the absence of
manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with subsection 3.4(a), the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by the Issuing Lender), or any payment of interest on account thereof, the
Issuing Lender will, if such payment is received prior to 11:00 A.M., New York
City time, on a Business Day, distribute to such L/C Participant its pro rata
share thereof prior to the end of such Business Day and otherwise the Issuing
Lender will distribute such payment on the next succeeding Business Day;
provided, however, that in the event that any such payment received by the
Issuing Lender and distributed to the L/C Participants shall be required to be
returned by
45
the Issuing Lender, each such L/C Participant shall return to the Issuing Lender
the portion thereof previously distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower.
(a) The Borrower agrees to reimburse the Issuing Lender on the same
Business Day on which the Issuing Lender notifies the Borrower of the date and
amount of a draft presented under any Letter of Credit and paid by the Issuing
Lender provided such notice is received by 1:00 P.M., New York City time, on
such Business Day, and the next Business Day if such notice is received after
such time. The Issuing Lender shall provide notice to the Borrower on each
Business Day on which a draft is presented indicating the Dollar Equivalent of
the amount of (i) such draft so paid (and, in the case of a Foreign L/C, the
amount of such draft so paid stated in the applicable Alternative Currency) and
(ii) any taxes, fees, charges or other costs or expenses incurred by the Issuing
Lender in connection with such payment ((i) and (ii) collectively with any
interest accruing pursuant to paragraph (b) below, the "Reimbursement Amount").
Each such payment shall be made to the Issuing Lender at its address for notices
specified herein in lawful money of the United States of America and in
immediately available funds; provided, that, with respect to any Reimbursement
Obligations of the Borrower arising from the presentment to the Issuing Lender
of a draft under a Foreign L/C, the Borrower may make payment in the applicable
Alternative Currency if such payment is received by the Issuing Lender on the
date such draft is paid by the Issuing Lender.
(b) Interest shall be payable on the Dollar Equivalent of any and all
amounts remaining unpaid by the Borrower under this subsection from the date a
draft presented under any Letter of Credit is paid by the Issuing Lender until
payment in full (i) at the rate which would be payable on any Loans that are
Base Rate Loans at such time until such payment is required to be made pursuant
to subsection 3.5(a), and (ii) thereafter, at the rate which would be payable on
any Loans that are Base Rate Loans at such time which were then overdue.
(c) For the avoidance of doubt, subject to the provisos in the third
sentence of subsection 2.12(a) and the last sentence of subsection 3.5(a) of
this Agreement, all payments due from the Borrower hereunder in respect of
Foreign L/Cs (and Reimbursement Obligations in connection therewith) shall be
made in Dollars as provided in subsection 2.12 of this Agreement.
3.6 Obligations Absolute.
(a) The Borrower's obligations under subsection 3.5(a) shall be
absolute and unconditional under any and all circumstances and irrespective of
any set-off, counterclaim or defense to payment which the Borrower may have or
have had against the Issuing Lender, any L/C Participant or any beneficiary of a
Letter of Credit.
(b) The Borrower also agrees with the Issuing Lender that the Issuing
Lender shall not be responsible for, and the Borrower's Reimbursement
Obligations under subsection 3.5(a) shall not be affected by, among other
things, (i) the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged (unless the Issuing Lender has knowledge of such
invalidity, fraud or
46
forgery), (ii) any dispute between or among the Borrower and any beneficiary of
any Letter of Credit or any other party to which such Letter of Credit may be
transferred, or (iii) any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee.
(c) Neither the Issuing Lender nor any L/C Participant shall be liable
for any error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in connection with any
Letter of Credit, except for errors or omissions caused by the Issuing Lender's
gross negligence or willful misconduct.
(d) The Borrower agrees that any action taken or omitted by the Issuing
Lender under or in connection with any Letter of Credit or the related drafts or
documents, if done in the absence of gross negligence or willful misconduct and
in accordance with the standards of care specified in the Uniform Commercial
Code of the State of New York, shall be binding on the Borrower and shall not
result in any liability of the Issuing Lender or any L/C Participant to the
Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for payment
under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower and the Administrative Agent of the date and the Dollar Equivalent of
the amount thereof (and, in the case of a Foreign L/C, the amount thereof stated
in the applicable Alternative Currency). If any draft shall be presented for
payment under any Letter of Credit, the responsibility of the Issuing Lender to
the Borrower in connection with such draft shall, in addition to any payment
obligation expressly provided for in such Letter of Credit, be limited to
determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment appear on their face to be
in conformity with such Letter of Credit.
3.8 Application. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 3, the provisions of this Section 3 shall govern and control.
3.9 Determination of Exchange Rate. On each Calculation Date with respect
to each outstanding Foreign L/C, the Issuing Lender shall determine the Exchange
Rate as of such Calculation Date with respect to the applicable Alternative
Currency and shall promptly notify the Administrative Agent and the Borrower
thereof and of the Dollar Equivalent of all Foreign L/Cs outstanding on such
Calculation Date. The Exchange Rate so determined shall become effective on such
Calculation Date and shall remain effective until the next succeeding
Calculation Date.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents, the Issuing Lender, the Swing Line Lender and the
Lenders to enter into this Agreement and to make the Loans and issue or
participate in the Letters of Credit, the Borrower hereby represents and
warrants to the Agents, the Issuing Lender, the Swing Line Lender and each
Lender that:
47
4.1 Financial Condition.
(a) The following financial statements concerning Borrower and its
Subsidiaries have been delivered to the Agents and the Lenders and have been
prepared in accordance with GAAP consistently applied throughout the periods
covered (except as disclosed therein and except, with respect to unaudited
financial statements, for the absence of footnotes and normal year-end audit
adjustments) and present fairly in all material respects the financial position
of the Persons covered thereby as at the dates thereof and the results of their
operations and cash flows for the periods then ended:
(i) The audited consolidated balance sheets at December 31, 1998
and the related statements of income and cash flows of Borrower and its
Subsidiaries for the fiscal year then ended, certified by
PricewaterhouseCoopers L.L.P.
(ii) The unaudited condensed consolidated balance sheet(s) at
September 30, 1999 and the related statement(s) of income and cash flows of
Borrower and its Subsidiaries for the fiscal quarter then ended.
(b) The unaudited pro forma consolidated balance sheet of the Borrower
and its consolidated Subsidiaries which has been delivered pursuant to
subsection 5.1(o) has been prepared based on the best information available to
the Borrower as of the date of delivery thereof and presents fairly on a pro
forma basis the estimated financial position of the Borrower and its
consolidated Subsidiaries, as December 31, 1999, adjusted to give effect to the
acquisition by Borrower of (i) the Training Devices and Training Systems
("TDTS") assets of Raytheon, Inc., and (ii) the assets of Honeywell Inc.'s
Traffic Alert and Collision Avoidance System product line.
4.2 No Change. Since September 30, 1999 there has been no development,
event or circumstance which has had or could reasonably be expected to have a
Material Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of Holdings, the
Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is, or will be on or before the
date set forth in subsection 6.12, 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 to the extent that the failure to so qualify could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect and (d)
is in compliance with all Requirements of Law except to the extent that the
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations. Each of
Holdings, the Borrower and its Subsidiaries 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, in the case of the Borrower, to borrow
hereunder and has taken all necessary corporate action to authorize the
borrowings on
48
the terms and conditions of this Agreement and to authorize the execution,
delivery and performance of such Credit Documents. No consent or authorization
of, filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of the Credit Documents to which the Borrower and each other
Credit Party is a party, except those referred to in subsections 4.17 and 6.13
and those set forth on Schedule 4.4. This Agreement has been, and each other
Credit Document will be, duly executed and delivered on behalf of the Borrower
and each other Credit Party. This Agreement constitutes, and each other Credit
Document to which it is a party when executed and delivered will constitute, a
legal, valid and binding obligation of each Credit Party thereto enforceable
against each such Credit Party, as the case may be, in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
4.5 No Legal Bar. Except as set forth on Schedule 4.5 or as could not
reasonably be expected to, individually or in the aggregate, have a Material
Adverse Effect, the execution, delivery and performance of each Credit Document,
the borrowing and use of the proceeds of the Loans and the consummation of the
transactions contemplated by the Credit Documents: (a) will not violate any
Requirement of Law or any Contractual Obligation applicable to or binding upon
Holdings, the Borrower or any Subsidiary of the Borrower or any of their
respective properties or assets and (b) will not result in the creation or
imposition of any Lien on any of its properties or assets pursuant to any
Requirement of Law applicable to it or any of its Contractual Obligations,
except for the Liens arising under the Pledge Agreements.
4.6 No Material Litigation. Except as set forth on Schedule 4.6, no
litigation by, investigation by, or proceeding of or before any arbitrator or
any Governmental Authority is pending or, to the knowledge of the Borrower,
overtly threatened by or against the Borrower or any of its Subsidiaries or
against any of its or their respective properties or revenues with respect to
any Credit Document or any of the transactions contemplated hereby or thereby or
which could reasonably be expected to have a Material Adverse Effect.
4.7 No Default. Neither Holdings, the Borrower nor any of its Subsidiaries
is in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of Holdings, the Borrower and its
Subsidiaries (i) has good record and insurable title in fee simple to, or a
valid leasehold interest in, all its material real property, (ii) has good title
to, or a valid leasehold interest in, all its other material property and (iii)
none of such property in clauses (i) and (ii) is or shall be subject to any Lien
except as permitted by subsection 7.3.
4.9 Intellectual Property. Holdings, the Borrower and each of its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and
49
processes necessary for the conduct of its business as currently conducted
except for those the failure to own or license which could not reasonably be
expected to have a Material Adverse Effect (the "Intellectual Property"). To the
best of the Borrower's knowledge, and except as set forth on Schedule 4.9, no
claim has been asserted and is pending by any Person challenging or questioning
the use of any such Intellectual Property or the validity or effectiveness of
any such Intellectual Property, nor does the Borrower know of any valid basis
for any such claim which could reasonably be expected to have a Material Adverse
Effect. The use of such Intellectual Property by Holdings, the Borrower and its
Subsidiaries does not infringe on the rights of any Person, except for such
claims and infringements that, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
4.10 Taxes. Except as set forth on Schedule 4.10, each of Holdings, the
Borrower and its Subsidiaries has filed or caused to be filed all material tax
returns which, to the knowledge of the Borrower, are required to be filed and
has paid all taxes shown to be due and payable on said returns or on any
assessments made against it or any of its property and all other material taxes,
fees or other charges imposed on it or any of its property by any Governmental
Authority (other than any the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of Holdings,
the Borrower or its Subsidiaries, as the case may be); no tax Lien has been
filed, and, to the knowledge of the Borrower, no claim is being asserted, with
respect to any such tax, fee or other charge.
4.11 Federal Regulations. No part of the proceeds of any Loans will be used
for "purchasing" or "carrying" any "margin stock" within the respective meanings
of each of the quoted terms under Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in effect.
4.12 ERISA. The Borrower has provided to the Agents a true and correct copy
of all agreements, arrangements and understandings relating to the transfer of
Plans from the Seller to the Borrower (the "Transfer Agreements"). The Transfer
Agreements are in full force and effect and have not been waived or modified
without the consent of the Agents (which shall not be unreasonably withheld)
except to the extent any such waiver or modification, singly or in the
aggregate, could not be reasonably expected to have a Material Adverse Effect.
Except as could not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect, no Reportable Event has occurred with respect to
any Single Employer Plan, all contributions required to be made with respect to
a Plan have been timely made; none of the Borrower or any of its Subsidiaries
nor any Commonly Controlled Entity has incurred any material liability to or on
account of a Plan pursuant to Section 409, 502(i), 502(1), 515, 4062, 4063,
4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or
4980 of the Code or expects to incur any liability (including any indirect,
contingent or secondary liability) under any of the foregoing Sections with
respect to any Plan; no termination or, or institution of proceedings to
terminate or appoint a trustee to administer, a Single Employer Plan has
occurred; and each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code (except that with respect to any
Multiemployer Plan, such representation is deemed made only to the knowledge of
the Borrower). No "accumulated funding deficiency" (within the meaning of
50
Section 412 of the Code or Section 302 of ERISA), extension of any amortization
period (within the meaning of Section 412 of the Code) or Lien in favor of the
PBGC or a Plan has arisen or has occurred during the five-year period prior to
the date on which this representation is made or deemed made with respect to any
Single Employer Plan. As of the last annual valuation date prior to the date on
which this representation is made or deemed made, the fair market value of the
assets available for benefits under each Single Employer Plan did not exceed the
actuarial present value of all accumulated benefit obligations under such Plan
by more than $20,000,000, all as determined in accordance with Statement of
Financial Accounting Standards No. 87. Neither the Borrower nor any Commonly
Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan for which there is any outstanding liability, and neither the
Borrower nor any Commonly Controlled Entity would become subject to any
liability under ERISA if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made in an amount which would be reasonably likely to have a Material
Adverse Effect. To the best knowledge of the Borrower, no such Multiemployer
Plan is in Reorganization or Insolvent.
4.13 Investment Company Act; Other Regulations. None of the Borrower or any
of its Subsidiaries is an "investment company," or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended. None of the Borrower or any of its subsidiaries is not subject to
regulation under any Federal or State statute or regulation (other than
Regulation X of the Board of Governors of the Federal Reserve System) which
limits its ability to incur Indebtedness.
4.14 Subsidiaries. The Subsidiaries of the Borrower and their respective
jurisdictions of incorporation shall be as set forth on Schedule 4.14.
4.15 Purpose of Loans. The proceeds of the Loans shall be used by the
Borrower (i) to pay fees and expenses related to the preparation and negotiation
of this Agreement and the other Credit Documents and (ii) for general corporate
and working capital purposes in the ordinary course of business of the Borrower
and its Subsidiaries, including, without limitation, the making of Investments
permitted under subsection 7.9.
4.16 Environmental Matters. Except insofar as any exception to any of the
following, or any aggregation of such exceptions, is not reasonably likely to
result in a Material Adverse Effect:
(a) The facilities and properties owned, leased or operated Holdings,
by the Borrower or any of its Subsidiaries (the "Properties") do not contain,
and have not previously contained, any Materials of Environmental Concern in
amounts or concentrations which (i) constitute or constituted a violation of, or
(ii) could reasonably be expected to give rise to liability under, any
applicable Environmental Law.
(b) None of Holdings, the Borrower nor any of its Subsidiaries has
received any written notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or compliance
with Environmental Laws with regard to any of
51
the Properties or the Business, nor does the Borrower have knowledge or reason
to believe that any such notice will be received or is being threatened.
(c) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a location
which could reasonably be expected to give rise to liability under, any
applicable Environmental Law, nor have any Materials of Environmental Concern
been generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could reasonably be expected to
give rise to liability under, any applicable Environmental Law.
(d) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which Holdings, the Borrower or any Subsidiary is or, to
the knowledge of the Borrower, will be named as a party or with respect to the
Properties or the Business, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with respect to
the Properties or the Business.
(e) There has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations of Holdings, the Borrower or any Subsidiary in connection with
the Properties or otherwise in connection with the Business, in violation of or
in amounts or in a manner that could reasonably give rise to liability under any
applicable Environmental Laws.
(f) The Properties and all operations at the Properties are in
compliance, and have in the last 3 years been in compliance, in all material
respects with all applicable Environmental Laws, and there is no contamination
at, under or about the Properties or violation of any applicable Environmental
Law with respect to the Properties or the business operated by Holdings, the
Borrower or any of its Subsidiaries (the "Business") which could materially
interfere with the continued operation of the Properties or materially impair
the fair saleable value thereof.
(g) Holdings, the Borrower and its Subsidiaries hold and are in
compliance with all Environmental Permits necessary for their operations.
4.17 Collateral Documents. Upon execution and delivery thereof by the
parties thereto, each Pledge Agreement will be effective to create in favor of
the Administrative Agent, for the ratable benefit of the Lenders, a legal, valid
and enforceable security interest in the pledged stock described therein and,
when stock certificates representing or constituting the pledged stock described
therein are delivered to the Administrative Agent, together with undated stock
powers executed in blank therefor, such security interest shall, subject to the
existence of Permitted Liens, constitute a perfected first lien on, and security
interest in, all right, title and interest of the pledgor party thereto in the
pledged stock described therein.
4.18 Accuracy and Completeness of Information. No fact is known to
Holdings, the Borrower or any of its Subsidiaries which has had or could
reasonably be expected to have a
52
Material Adverse Effect, which has not been disclosed to the Lenders by
Holdings, the Borrower or its Subsidiaries in writing prior to the date hereof.
Neither Holdings, the Borrower nor any Subsidiary of the Borrower is aware of
any material liability of the Borrower or any of its Subsidiaries which is not
fully disclosed in the most recent financial statements delivered to the Agents
and Lenders pursuant to subsections 4.1 and 6.1 hereto.
4.19 Labor Matters. There are no strikes pending or, to the Borrower's
knowledge, overtly threatened against Holdings, the Borrower or any of its
Subsidiaries which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. The hours worked and payments made
to employees of Holdings, the Borrower and each of its Subsidiaries (and their
predecessors) have not been in violation of the Fair Labor Standards Act or any
other applicable Requirement of Law, except to the extent such violations could
not, or in the aggregate, be reasonably expected to have a Material Adverse
Effect.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Effectiveness. This Agreement shall not be effective
until the following conditions precedent have been satisfied or waived in
writing by the Administrative Agent and the Requisite Class Lenders:
(a) Credit Documents. The Administrative Agent shall have received (i)
this Agreement, (ii) the Guarantees and (iii) the Pledge Agreements, in each
case executed, duly acknowledged and delivered by duly authorized officers of
each party thereto, with a counterpart or a conformed copy for each Lender.
Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of
the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary
Pledge Agreement, and no more than 65% of the capital stock of or equity
interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries
if more than 65% of the assets of such Subsidiary are securities of foreign
companies (such determination to be made on the basis of fair market value),
shall be required to be pledged hereunder.
(b) Fees and Expenses. The Agents, the Arrangers and the Lenders shall
have received all fees, expenses and other consideration required to be paid on
or before the Closing Date and all attorneys fees and disbursements incurred by
the Agents in connection with this Agreement shall have been paid on or before
the Closing Date.
(c) Good Standing Certificates. The Administrative Agent shall have
received certificates of good standing for each Credit Party issued by the
Secretary of State (or other relevant governmental officers) of the jurisdiction
of incorporation of each Credit Party.
(d) Consents, Authorizations and Filings, Etc. All consents,
authorizations and filings, if any, required in connection with the execution,
delivery and performance by the Credit Parties, and the validity and
enforceability against the Credit Parties, of the Credit Documents to which any
of them is a party, shall have been obtained or made, and such consents,
authorizations and filings shall be in full force and effect, except such
consents, authorizations and filings, the failure to obtain which would not have
a Material Adverse Effect.
53
(e) Insurance. The Lenders shall have received (i) a reasonably
satisfactory schedule describing all insurance maintained by the Borrower and
its Subsidiaries pursuant to subsection 6.5, and (ii) binders (or other
customary evidence as to the obtaining and maintenance by the Borrower and its
Subsidiaries of such insurance) for each policy set forth on such schedule
insuring against casualty and other usual and customary risks.
(f) Litigation. On the Closing Date, there shall be no actions, suits
or proceedings pending or threatened against any Credit Party (a) with respect
to this Agreement or any other Credit Document or any Transaction Document or
the transactions contemplated hereby or thereby or (b) which the Agents or the
Required Lenders shall determine could reasonably be expected to have a Material
Adverse Effect.
(g) Borrowing Certificate. If any Loan is to be requested on the
Closing Date, the Administrative Agent shall have received, with a counterpart
for each Lender, a certificate of the Borrower, dated the Closing Date,
substantially in the form of Exhibit D, with appropriate insertions and
attachments, reasonably satisfactory in form and substance to the Administrative
Agent, executed by the President or any Vice President and the Secretary or any
Assistant Secretary of the Borrower.
(h) Corporate Proceedings of the Borrower. The Administrative Agent
shall have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance reasonably satisfactory to the Administrative
Agent, of the Board of Directors of the Borrower authorizing (i) the execution,
delivery and performance of the Credit Documents to which it is a party, (ii)
the borrowings contemplated hereunder, and (iii) the stock pledges pursuant to
the Borrower Pledge Agreement, certified by the Secretary or an Assistant
Secretary of the Borrower as of the Closing Date, which certificate shall be in
form and substance reasonably satisfactory to the Administrative Agent and shall
state that the resolutions thereby certified have not been amended, modified,
revoked or rescinded.
(i) Borrower Incumbency Certificate. The Administrative Agent shall
have received, with a counterpart for each Lender, a Certificate of the
Borrower, dated the Closing Date, as to the incumbency and signature of the
officers of the Borrower executing any Credit Document reasonably satisfactory
in form and substance to the Administrative Agent, executed by the President or
any Vice President and the Secretary or any Assistant Secretary of the Borrower.
(j) Corporate Proceedings of Other Credit Parties. The Administrative
Agent shall have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Administrative Agent, of
the Board of Directors of each Credit Party (other than the Borrower)
authorizing (i) the execution, delivery and performance of the Credit Documents
to which it is a party, and (ii) the granting by it of the Liens created
pursuant to the Pledge Agreements to which it is a party, certified by the
Secretary or an Assistant Secretary of each such Credit Party as of the Closing
Date, which certificate shall be in form and substance reasonably satisfactory
to the Administrative Agent and shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded.
54
(k) Credit Party Incumbency Certificates. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate of each
Credit Party (other than the Borrower), dated the Closing Date, as to the
incumbency and signature of the officers of such Credit Party executing any
Credit Document, reasonably satisfactory in form and substance to the
Administrative Agent, executed by the President or any Vice President and the
Secretary or any Assistant Secretary of each such Credit Party.
(l) Corporate Documents. The Administrative Agent shall have received,
with a counterpart for each Lender, true and complete copies of the certificate
of incorporation and by-laws of each Credit Party, certified as of the Closing
Date as complete and correct copies thereof by the Secretary or an Assistant
Secretary of the such Credit Party.
(m) Legal Opinions. The Administrative Agent shall have received, with
a counterpart for each Lender the executed legal opinion of each of Xxxxxxx
Xxxxxxx and Xxxxxxxx, special counsel to the Credit Parties, and Xxxxxxxxxxx X.
Xxxxxxx, Vice President - General Counsel and Secretary of the Borrower and
counsel to the other Credit Parties, substantially in the form of Exhibits C-1
and C-2, respectively. Each such legal opinion shall cover such other matters
incident to the transactions contemplated by this Agreement as the Agents may
reasonably require.
(n) Pledged Stock; Stock Powers. The Administrative Agent shall have
received the certificates representing the shares pledged pursuant to each of
the Pledge Agreements together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the pledgor
thereof.
(o) Pro Forma Financials. The Lenders shall have received a reasonably
satisfactory unaudited pro forma consolidated balance sheet of the Borrower and
its Subsidiaries as of December 31, 1999 which shall present fairly, in all
material respects, on a pro forma basis, the estimated financial condition of
the Borrower and its Subsidiaries as of such date, as adjusted to give effect to
acquisition by Borrower of (i) the Training Devices and Training Systems
("TDTS") assets of Raytheon, Inc., and (ii) the assets of Honeywell Inc.'s
Traffic Alert and Collision Avoidance System product line.
(p) Projections. Each Lender shall have received financial projections
of the Borrower in form and substance reasonably satisfactory to the Agents
prepared by the Borrower.
(q) No Default. No Default or Event of Default shall have occurred and
be continuing.
(r) Facility B Credit Agreement. All conditions set forth in clauses
(a) through (q) of subsection 5.1 of the Facility B Credit Agreement shall have
been satisfied or waived in writing by the Facility B Lenders required to affect
a waiver of such condition.
(s) Facility C Credit Agreement. All conditions set forth in clauses
(a) through (q) and (t) through (w) of subsection 5.1 of the Facility C Credit
Agreement shall have
55
been satisfied or waived in writing by the Facility C Lenders required to affect
a waiver of such condition.
5.2 Conditions to Each Extension of Credit. The agreement of each Lender to
make any extension of credit (including the issuance of any Letter of Credit)
requested to be provided by it on any date (including, without limitation, its
initial Loan and Letter(s) of Credit but excluding Revolving Credit Loans made
to repay Refunded Swing Line Loans) is subject to the satisfaction of the
following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Credit Party in or pursuant to the Credit Documents shall
be true and correct in all material respects on and as of such date as if made
on and as of such date, except for any representation and warranty which is
expressly made as of an earlier date, which representation and warranty shall
have been true and correct in all material respects as of such earlier date.
(b) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or will occur or exist after giving effect to the
extensions of credit requested to be made on such date. Borrower shall not be in
violation of Section 4.09 (Incurrence of Indebtedness and Issuance of Preferred
Stock) of any of the Indenture, the New Subordinated Debt Indenture or the
December 1998 Subordinated Debt Indenture on such date nor will such a violation
occur or exist after giving effect to the extensions of credit requested to be
made on such date.
(c) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Credit Documents shall
be satisfactory in form and substance to the Agents, and the Administrative
Agent shall have received such other documents and legal opinions in respect of
any aspect or consequence of the transactions contemplated hereby or thereby as
it shall reasonably request.
Each borrowing by, and each Letter of Credit issued on behalf of, the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date thereof that the conditions contained in this subsection have been
satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect or any amount is owing to any Lender or any Agent hereunder or under any
other Credit Document, the Borrower shall and (except in the case of delivery of
financial information, reports and notices) shall cause each of its Subsidiaries
to:
6.1 SEC Filings. The Borrower will file on a timely basis with the SEC, to
the extent such filings are accepted by the SEC and whether or not the Borrower
has a class of securities registered under the Exchange Act, the annual reports,
quarterly reports (including with respect to the fourth quarter of each fiscal
year) and other documents that the Borrower would be
56
required to file if the Borrower were subject to section 13(a) or 15(d) of the
Exchange Act. The Borrower will also be required (i) to deliver to the
Administrative Agent and each Lender, copies of such reports and documents
within five days after the date on which the Borrower files such reports and
documents with the SEC or the date on which the Borrower would be required to
file such reports and documents if the Borrower were so required and (ii) if
filing such reports and documents with the SEC is not accepted by the SEC or is
prohibited under the Exchange Act, to promptly notify the Administrative Agent
in writing of the occurrence of any such event and to supply at the Borrower's
cost copies of such reports and documents to the Administrative Agent and any
Lender upon request.
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to the Administrative Agent
with copies for each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1, a certificate of the independent certified public
accountants reporting on such financial statements stating that, in performing
their audit, nothing came to their attention that caused them to believe that
the Borrower failed to comply with the provisions of subsection 7.1, except as
specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsection 6.1, a certificate of a Responsible Officer stating
that, to the best of such Officer's knowledge, during such period (i) no
Subsidiary has been formed or acquired (or, if any such Subsidiary has been
formed or acquired, the Borrower has complied with the requirements of
subsection 6.10 with respect thereto) and (ii) such Officer has obtained no
knowledge of any Default or Event of Default except as specified in such
certificate;
(c) concurrently with the delivery of financial statements pursuant to
subsection 6.1, a certificate of a Responsible Officer of the Borrower setting
forth, in reasonable detail, the computations, as applicable, of (i) the Debt
Ratio and (ii) the financial covenants set forth in subsection 7.1, as of such
last day or for the fiscal period then ended, as the case may be;
(d) not later than 60 days after the end of each fiscal year of the
Borrower, a copy of the projections by the Borrower of the operating budget and
cash flow budget of the Borrower and its Subsidiaries for the succeeding fiscal
year, such projections to be accompanied by a certificate of a Responsible
Officer to the effect that such projections have been prepared on the basis of
sound financial planning practice and that such Officer has no reason to believe
they are incorrect or misleading in any material respect;
(e) within five days after the same are sent, copies of all financial
statements and reports which the Borrower or Holdings sends to its stockholders;
and
57
(f) promptly, such additional financial and other information as any
Lender 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 its
material obligations of whatever nature, except where 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 Borrower or its Subsidiaries, as the case may be.
6.4 Conduct of Business; Maintenance of Existence and Property; Compliance
with Law. Except as permitted by subsection 7.5 and subsection 7.6, (a) continue
to engage in business of the same general type as now conducted by it; (b)
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; (c) keep all
property useful and necessary in its business in good working order and
condition (ordinary wear and tear and damage by fire and/or other casualty or
taking by condemnation excepted) except if (i) in the reasonable business
judgment of the Borrower or such Subsidiary, as the case may be, it is in its
best economic interest not to preserve and maintain such rights, privileges or
franchises, and (ii) such failure to preserve and maintain such privileges,
rights or franchises would not materially adversely affect the rights of the
Lenders hereunder or the value of the Collateral, and except as otherwise
permitted pursuant to subsection 7.5; and (d) comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, be reasonably expected to have a Material
Adverse Effect.
6.5 Insurance. The Borrower will, and will cause each of its Subsidiaries
to maintain, with financially sound and reputable insurance companies, insurance
in such amounts and against such risks as are customarily maintained by
companies of similar stature engaged in the same or similar businesses operating
in the same or similar locations.
6.6 Inspection of Property; Books and Records; Discussions. Keep proper
books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records (except to the
extent any such access is restricted by a Requirement of Law) at any reasonable
time on a Business Day and as often as may reasonably be desired and to discuss
the business, operations, properties and financial and other condition of the
Borrower and its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and with its independent certified public accountants; provided
that the Administrative Agent or such Lender shall notify the Borrower prior to
any contact with such accountants and give the Borrower the opportunity to
participate in such discussions; provided, further, that the Borrower shall
notify the Administrative Agent of any such visits, inspections or discussions
prior to each occurrence thereof.
6.7 Notices. Promptly give notice to the Administrative Agent and each
Lender of:
(a) the occurrence of any Default or Event of Default;
58
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries, (ii) litigation,
investigation or proceeding which may exist at any time between the Borrower or
any of its Subsidiaries and any Governmental Authority, which in either case, if
not cured or if adversely determined, as the case may be, could reasonably be
expected to have a Material Adverse Effect or (iii) any material asset sale
(describing in reasonable detail the assets sold, the consideration received
therefor and the proposed use of the proceeds thereof);
(c) any other litigation or proceeding affecting the Borrower or any
of its Subsidiaries in which the amount involved is $7,500,000 or more and not
covered by insurance or in which injunctive or similar relief is sought; and
(d) the following events, as soon as possible and in any event within
45 days after the Borrower knows or has reason to know thereof: (i) the
incurrence of an accumulated funding deficiency or the filing of an application
to the Secretary of the Treasury for a waiver or modification of the minimum
funding standard (including any required installment payments) or an extension
of any amortization period under Section 412 of the Code with respect to a Plan,
the creation of any Lien in favor of the PBGC or a Plan, the occurrence of any
"Trigger Event" (as defined in the Transfer Agreements) and the reassumption by
the Seller of sponsorship of any Single Employer Plan, (ii) except where such
event or liability could not reasonably be expected to have a Material Adverse
Effect, the occurrence or expected occurrence of any Reportable Event with
respect to any Plan (other than a Multiple Employer Plan), or any withdrawal
from, or the termination, Reorganization or Insolvency of, any Multiemployer
Plan, or a failure to make any required contribution to a Plan, (iii) the
institution of proceedings by the PBGC with respect to the withdrawal from, or
the terminating, Reorganization or Insolvency of, any Single Employer Plan or
Multiemployer Plan or (iv) except as could not reasonably be expected to have a
Material Adverse Effect, the institution of proceedings or the taking of any
other action with respect to the withdrawal from or termination of any Single
Employer Plan;
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
6.8 Environmental Laws.
(a) (i) Comply in all material respects with all Environmental Laws
applicable to it, and obtain, comply in all material respects with and maintain
any and all material Environmental Permits necessary for its operations as
conducted and as planned; and (ii) take all reasonable efforts to ensure that
all of its tenants, subtenants, contractors, subcontractors, and invitees comply
in all material respects with all applicable Environmental Laws, and obtain,
comply in all material respects with and maintain any and all material
Environmental Permits, applicable to any of them. Notwithstanding the foregoing,
upon learning of any actual or suspected noncompliance, the Borrower or one or
more of its Subsidiaries, as appropriate, shall promptly undertake all
reasonable efforts to achieve material compliance.
59
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions in each case required under
applicable Environmental Laws and promptly comply in all material respects with
all lawful orders and directives of all Governmental Authorities regarding
applicable Environmental Laws except to the extent that the same are being
contested in good faith by appropriate proceedings and the pendency of such
proceedings could not be reasonably expected to have a Material Adverse Effect.
6.9 Further Assurances. Upon the reasonable request of the Administrative
Agent, promptly perform or cause to be performed any and all acts and execute or
cause to be executed and delivered any and all documents which are necessary or
advisable to maintain in favor of the Administrative Agent, for the benefit of
the Lenders, Liens on the Collateral that are duly perfected in accordance with
all applicable Requirements of Law.
6.10 Additional Collateral.
(a) With respect to any Capital Stock of any newly created or acquired
Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired
after the Original Closing Date by the Borrower or any of its Subsidiaries that
is intended to be subject to the Lien created by any of the Pledge Agreements
but which is not so subject, promptly (and in any event within 30 days after the
acquisition thereof): (i) execute and deliver to the Administrative Agent such
amendments to the relevant Pledge Agreements or such other documents as the
Administrative Agent shall deem necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a Lien on such Capital
Stock, (ii) take all actions necessary or advisable to cause such Lien to be
duly perfected in accordance with all applicable Requirements of Law, including
delivering all such original certificates evidencing such Capital Stock to the
Administrative Agent together with undated stock powers executed in blank
therefor, and (iii) if requested by the Administrative Agent or the Required
Lenders, deliver to the Administrative Agent legal opinions relating to the
matters described in clauses (i) and (ii) immediately preceding, which opinions
shall be in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be
required to grant to the Administrative Agent a Lien upon the Capital Stock of
any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original
Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly
(and in any event within 30 days after such Person becomes a Subsidiary): (i)
cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement
and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent
or the Required Lenders, deliver to the Administrative Agent legal opinions
relating to the matters described in clause (i) immediately preceding, which
opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent. Notwithstanding the foregoing, no
Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to
execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than
65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the
Borrower or any of its Subsidiaries if more than 65% of the assets of such
Subsidiary are
60
securities of foreign companies (such determination to be made on the basis of
fair market value), shall be required to be pledged hereunder.
6.11 [Intentionally Omitted.]
6.12 Foreign Jurisdictions. Maintain due qualification 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 to the extent that the failure to so qualify
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
6.13 Government Contracts. The Borrower and its Subsidiaries shall apply
for and maintain all material facility security clearances and personnel
security clearances required of the Borrower under all Requirements of Law to
perform and deliver under any and all Government Contracts and as otherwise may
be necessary to continue to perform the business of the Borrower and its
Subsidiaries.
6.14 Lien Searches. Not later than 45 days following the Closing Date, the
Borrower shall deliver to the Administrative Agent the results of a search of
Uniform Commercial Code, tax and judgment filings made with respect to each of
the Borrower and its Subsidiaries (other than any Immaterial Subsidiaries) in
each jurisdiction in which the Borrower or such applicable Subsidiary maintains
its principal place of business or any material assets and a certificate of a
Responsible Officer certifying that such lien search results do not disclose any
Liens, except for Liens permitted hereunder.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as any portion of the
Commitments remain in effect or any amount is owing to any Lender or any of the
Agents hereunder or under any other Credit Document, the Borrower shall not, and
(except with respect to subsection 7.1), shall not permit any of its
Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) Debt Ratio. Permit the Debt Ratio at the last day of any fiscal
quarter to be greater than the ratio set forth below opposite the fiscal quarter
during which such fiscal quarter occurs:
Fiscal Quarter Ending Ratio
--------------------- -----
December 31, 1999 4.75
March 31, 2000 4.75
June 30, 2000 4.75
September 30, 2000 4.50
December 31, 2000 4.50
61
March 31, 2001 4.50
June 30, 2001 4.50
September 30, 2001 3.75
December 31, 2001 3.75
March 31, 2002 3.75
June 30, 2002 3.75
September 30, 2002 3.25
and thereafter
(b) Interest Coverage. Permit the ratio of (i) Consolidated EBITDA to
(ii) Consolidated Cash Interest Expense during any Test Period to be less than
the ratio set forth opposite such period below (such ratio, the "Interest
Coverage Ratio"):
Test Period Interest Coverage Ratio
----------- -----------------------
10/1/99 - 12/31/99 2.25
1/1/00 - 3/31/00 2.25
4/1/00 - 6/30/00 2.25
7/1/00 - 9/30/00 2.50
10/1/00 - 12/31/00 2.50
1/1/01 - 3/31/01 2.50
4/1/01 - 6/30/01 2.50
7/1/01 - 9/30/01 2.75
10/1/01 - 12/31/01 2.75
1/1/02 - 3/31/02 2.75
4/1/02 - 6/30/02 2.75
7/1/02 - 9/30/02 3.00
10/1/02 - and thereafter 3.00
7.2 Limitation on Indebtedness. Create, incur, assume or suffer to exist
any Indebtedness (including in respect of Interest Rate Agreements), except:
(a) Indebtedness of the Borrower under this Agreement and the Facility
B Credit Agreement and the Facility C Credit Agreement;
(b) Indebtedness of the Borrower incurred to finance the acquisition
of fixed or capital assets (whether pursuant to a loan, a Financing Lease or
otherwise) in an aggregate principal amount not exceeding $25,000,000 at any
time outstanding;
(c) Indebtedness assumed in connection with any Investment permitted
pursuant to subsection 7.9(k) hereof;
62
(d) additional Indebtedness of the Borrower not exceeding $50,000,000
in aggregate principal amount at any one time outstanding (of which up to
$35,000,000 may be secured by Liens permitted pursuant to subsection 7.3(i)
hereof);
(e) Indebtedness of the Borrower in respect of not more than (i)
$225,000,000 principal amount of Subordinated Notes issued on the April 30, 1997
and (ii) $180,000,000 principal amount of New Subordinated Notes issued on May
22, 1998 and (iii) $200,000,000 principal amount of December 1998 Subordinated
Notes issued on or about December 8, 1998;
(f) the Indebtedness of the Borrower and its Subsidiaries outstanding
on the Original Closing Date and reflected on Schedule 7.2(f), and refundings or
refinancings thereof, provided that no such refunding or refinancing shall
shorten the maturity or increase the principal amount of the original
Indebtedness;
(g) Guarantee Obligations permitted by subsection 7.4;
(h) the incurrence by any Credit Party of intercompany Indebtedness
between or among the Credit Parties; provided, however, that if the Borrower is
the obligor on such Indebtedness, such Indebtedness is expressly subordinated to
the prior payment in full in cash of all Obligations;
(i) Indebtedness secured by Permitted Liens;
(j) Indebtedness of the Borrower or any of its Subsidiaries (other
than as described under subsection 7.2(a) above) incurred in connection with the
issuance of any surety bonds, performance letters of credit or other similar
performance bonds required pursuant to any Contractual Obligation or Requirement
of Law to which Borrower or any of its Subsidiaries are subject in an aggregate
principal amount not exceeding $100,000,000 at any time outstanding, less,
without duplication, the aggregate amount of then existing Guarantee Obligations
permitted under 7.4(g); and
(k) Up to $30,000,000 of purchase money Indebtedness the proceeds of
which are utilized to acquire the real property (including improvements thereon)
and related assets currently utilized by the Borrower's communications systems -
west division in Salt Lake City, Utah, on terms reasonably satisfactory to the
Agents.
7.3 Limitation on Liens. Create, incur, assume or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned or hereafter
acquired, except for:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with respect
thereto are maintained on the books of the Borrower or its Subsidiaries, as the
case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 60 days or which are being contested in good
faith by appropriate proceedings;
63
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(e) easements, rights-of-way, zoning restrictions, other restrictions
and other similar encumbrances previously or hereafter incurred in the ordinary
course of business which, in the aggregate, are not substantial in amount and
which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the
business of the Borrower or such Subsidiary;
(f) Liens in existence on the date hereof listed on Schedule 7.3(f),
securing Indebtedness permitted by subsection 7.2(f), provided that no such Lien
is expanded to cover any additional property (other than after-acquired title in
or on such property and proceeds of the existing collateral in accordance with
the instrument creating such Lien) after the Closing Date and that the amount of
Indebtedness secured thereby is not increased and extensions, renewals or
replacements thereof provided that no such extension, renewal or replacement
shall shorten the fixed maturity or increase the principal amount of the
original Indebtedness; and provided, further, that the assets of the Borrower
and its Subsidiaries encumbered by such Liens are existing equipment and other
existing tangible assets;
(g) Liens securing Indebtedness of the Borrower and its Subsidiaries
permitted by subsections 7.2(b) and 7.2(k) incurred to finance the acquisition
of fixed or capital assets, provided that (i) such Liens shall be created
substantially simultaneously with the acquisition of such fixed or capital
assets, (ii) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness (other than after acquired title in or on
such property and proceeds of the existing collateral in accordance with the
instrument creating such Lien) and (iii) the principal amount of Indebtedness
secured by any such Lien shall at no time exceed 100% of the original purchase
price of such property of such property at the time it was acquired;
(h) Liens on the property or assets of a corporation which becomes a
Subsidiary after the date hereof securing Indebtedness permitted by subsection
7.2(c), provided that (i) such Liens existed at the time such corporation became
a Subsidiary and were not created in anticipation thereof, (ii) any such Lien is
not expanded to cover any property or assets of such corporation after the time
such corporation becomes a Subsidiary (other than after acquired title in or on
such property and proceeds of the existing collateral in accordance with the
instrument creating such Lien), and (iii) the amount of Indebtedness secured
thereby is not increased;
(i) Liens (not otherwise permitted hereunder) which secure obligations
not exceeding (as to the Borrower and all Subsidiaries) $35,000,000 in aggregate
amount at any time outstanding;
64
(j) Liens created pursuant to the Pledge Agreements;
(k) Liens on the property of the Borrower or any of its Subsidiaries
in favor of landlords securing licenses, subleases or leases entered into in the
ordinary course of business;
(l) licenses, leases or subleases permitted hereunder granted to other
Persons not interfering in any material respect in the business of the Borrower
or any of its Subsidiaries;
(m) so long as no Default or Event of Default shall have occurred and
be continuing under clause (f) of Section 8, attachment or judgment Liens in an
aggregate amount outstanding at any one time not in excess of $7,500,000;
(n) Liens arising from precautionary Uniform Commercial Code financing
statement filings with respect to operating leases or consignment arrangements
entered into by the Borrower, or any of its subsidiaries in the ordinary course
of business; and
(o) Liens in favor of a banking institution arising by operation of
law encumbering deposits (including the right of set-off) held by such banking
institutions incurred in the ordinary course of business and which are within
the general parameters customary in the banking industry.
7.4 Limitation on Guarantee Obligations. Create, incur, assume or suffer to
exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date hereof and listed
on Schedule 7.4 and extensions, renewals and replacements thereof, provided,
however, that no such extension, renewal or replacement shall shorten the fixed
maturity or increase the principal amount of the Indebtedness guaranteed by the
original guarantee;
(b) Guarantee Obligations incurred after the date hereof in an
aggregate amount not to exceed $30,000,000 at any one time outstanding for the
Borrower and its Subsidiaries;
(c) guarantees made by the Subsidiaries of the Borrower pursuant to
the Subordinated Debt Documents and the New Subordinated Debt Documents and the
December 1998 Subordinated Debt Documents;
(d) Guarantee Obligations under the Credit Documents and the Facility
B Credit Documents and the Facility C Credit Document;
(e) L/C Obligations and the Facility X X/C Obligations;
(f) Guarantee Obligations of the Borrower or any Subsidiary in respect
of obligations of a Subsidiary permitted to be incurred by such Subsidiary by
this Agreement; and
65
(g) Guarantee Obligations in respect of surety bonds and/or
performance letters of credit which shall not exceed $100,000,000 at any time
less, without duplication, the amount of outstanding Indebtedness permitted
under subsection 7.2(j).
7.5 Limitation on Fundamental Changes. Enter into any merger, consolidation
or amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any Subsidiary of the Borrower may be merged or consolidated with
or into the Borrower (provided that the Borrower shall be the continuing or
surviving corporation) or with or into any one or more wholly owned Subsidiaries
of the Borrower (provided that the wholly owned Subsidiary or Subsidiaries shall
be the continuing or surviving corporations); and
(b) any wholly owned Subsidiary may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or otherwise) to
the Borrower or any other wholly owned Subsidiary of the Borrower that is a
Credit Party.
7.6 Limitation on Sale of Assets. Convey, sell, lease, assign, transfer or
otherwise dispose of any of its property, business or assets (including, without
limitation, receivables and leasehold interests), whether now owned or hereafter
acquired, or, in the case of any Subsidiary, issue or sell any shares of such
Subsidiary's Capital Stock to any Person other than the Borrower or any wholly
owned Subsidiary, except:
(a) the sale or other disposition of obsolete or worn out property in
the ordinary course of business;
(b) the sale of any property or assets not otherwise permitted by this
subsection 7.6; provided that the Net Proceeds thereof shall be applied pursuant
to subsection 2.6(b)(ii);
(c) as permitted pursuant to subsection 7.5(b);
(d) the sale, lease, transfer or exchange of inventory in the ordinary
course of business;
(e) transfers resulting from any casualty or condemnation of property
or assets;
(f) intercompany sales or transfers of assets made in the ordinary
course of business;
(g) licenses, leases or subleases of tangible property in the ordinary
course of business;
66
(h) any consignment arrangements or similar arrangements for the sale
of assets in the ordinary course of business;
(i) the sale or discount of overdue accounts receivable arising in the
ordinary course of business, but only in connection with the compromise or
collection thereof; and
(j) the conveyance, sale, assignment or contribution to any new
Subsidiary of the Borrower or any existing Subsidiary of the Borrower assets of
the Borrower or any Subsidiary of the Borrower not exceeding five percent (5%)
of the Consolidated Total Assets.
7.7 Limitation on Dividends. Declare or pay any dividend (other than
dividends payable solely in common stock of the Borrower) on, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, defeasance, retirement or other acquisition of,
any shares of any class of Capital Stock of the Borrower or any warrants or
options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower or
any Subsidiary other than Permitted Stock Payments.
7.8 Limitation on Capital Expenditures. Make or commit to make (by way of
the acquisition of securities of a Person or otherwise) any expenditure in
respect of the purchase or other acquisition of fixed or capital assets
(excluding any such asset acquired in connection with normal replacement and
maintenance programs properly charged to current operations) except for capital
expenditures in the ordinary course of business not exceeding $45,000,000 in the
aggregate for the Borrower and its Subsidiaries during any fiscal year of the
Borrower; provided, that up to 50% of any such amount not so expended in the
fiscal year for which it is permitted above may be carried over for expenditure
in the next following fiscal year; provided, further, that Borrower and/or its
Subsidiaries may exceed the annual limit on capital expenditures set forth above
by utilizing any amounts available for Investments permitted under subsection
7.9(k) hereto to fund such additional Capital Expenditures.
7.9 Limitation on Investments, Loans and Advances. Make any advance, loan,
extension of credit or capital contribution to, or purchase any stock, bonds,
notes, debentures or other securities of or any assets constituting a business
unit of, or make any other investment in, any Person ("Investments"), except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) loans to officers of the Borrower listed on Schedule 7.9(c) in
aggregate principal amounts outstanding not to exceed the respective amounts set
forth for such officers on said Schedule;
(d) loans and advances to employees of the Borrower or its
Subsidiaries for travel, entertainment and relocation expenses in the ordinary
course of business in an aggregate
67
amount for the Borrower and its Subsidiaries not to exceed $1,000,000 at any one
time outstanding;
(e) investments by the Borrower in its Subsidiaries that are Credit
Parties and investments by such Subsidiaries in the Borrower and in other
Subsidiaries that are Credit Parties;
(f) so long as no Event of Default has occurred and is continuing,
loans by the Borrower to its employees (other than any Principals or their
Related Parties) in connection with (i) management incentive plans, (ii)
management stock purchase plans, and (iii) obligations of employee
option-holders of Storm Control Systems, Inc. to fund the exercise of such
options, which loans in (i), (ii) and (iii) in the aggregate do not exceed
$5,000,000;
(g) Investments in existence on the Original Closing Date set forth on
Schedule 7.9(g) and extensions, renewals, modifications or restatements or
replacements thereof; provided that no such extension, renewal, modification or
restatement shall increase the amount of the original loan, advance or
investment;
(h) promissory notes and other similar non-cash consideration received
by the Borrower and its Subsidiaries in connection with the dispositions
permitted by subsection 7.6(b);
(i) Investments permitted by subsection 7.6(b) and subsection 7.6(j);
(j) Investments (including debt obligations and Capital Stock)
received in connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other disputes
with, customers and suppliers arising in the ordinary course of business;
(k) Investments made at any time from and after the Original Closing
Date to acquire (i) all or any portion of the Capital Stock, or all or any
portion of the assets, of any Person (other than the Borrower or any of its
Subsidiaries) that is engaged in a Similar Business, or (ii) all or
substantially all of the assets of any division of any Person (other than the
Borrower or any of its Subsidiaries) that is engaged in a Similar Business;
provided, that, (a) if such Investment is an acquisition of a majority of the
Voting Stock of any Person, such Person's board of directors or similar
governing body shall have approved such acquisition and (b) at the time of each
such Investment described above in clauses (i) and (ii) (both before and after
giving effect to such Investment), there shall exist no Default or Event of
Default and the aggregate consideration paid (regardless of form, including in
the case of an acquisition of assets, any assumed obligations) in connection
with all Investments made pursuant to this subsection 7.9(k) shall not exceed
the New Investment Sublimit (without deducting therefrom (w) the portion of any
purchase price for any Investment funded with Capital Stock of Holdings, (x)
consideration paid by the Borrower in connection with the acquisition of SPD
Technologies pursuant to the SPD Technologies Acquisition Agreement, (y)
consideration not exceeding $92 million paid by Borrower in connection with the
acquisition of Microdyne Corporation and (z) any consideration paid prior to
December 8, 1998 by the Borrower in connection with any Investment which is
listed on Schedule 7.9(k) hereto); provided, further, that in connection with
each individual, or
68
series of related, Investments made pursuant to this subsection 7.9(k), Borrower
shall deliver to the Administrative Agent, on or prior to the date which is one
Business Day prior to the consummation of such Investment or Investments, a
certificate of a Responsible Officer that certifies that no Default or Event of
Default has occurred and is continuing or will be caused as a result of
consummating such proposed Investment.
7.10 Limitation on Optional Payments and Modifications of Instruments and
Agreements.
(a) Make any optional payment or prepayment on or redemption or
purchase of, or deliver any funds to any trustee for the prepayment, redemption
or defeasance of, any Subordinated Debt or amend, modify or change, or consent
or agree to any amendment, modification or change to any of the material terms
of any such Subordinated Debt Documents, New Subordinated Debt Documents or
December 1998 Subordinated Debt Documents (other than any such amendment,
modification or change which would extend the maturity or reduce the amount of
any payment of principal thereof or which would reduce the rate or extend the
date for payment of interest thereon).
(b) Amend its Constitutional Documents in any manner which could
adversely affect the rights of the Lenders under the Credit Documents or their
ability to enforce the same.
(c) Modify or amend, or waive any provision or condition contained in,
any of the Transaction Documents in any manner that could reasonably be expected
to be adverse to the Lenders.
7.11 Limitation on Transactions with Affiliates.
(a) Enter into any transaction, including, without limitation, any
purchase, sale, lease or exchange of property or the rendering of any service,
with any Affiliate unless such transaction is (i) otherwise permitted under this
Agreement, (ii) in the ordinary course of the Borrower's or such Subsidiary's
business and (iii) upon fair and reasonable terms no less favorable to the
Borrower or such Subsidiary, as the case may be, than it would obtain in a
comparable arm's length transaction with a Person which is not an Affiliate.
(b) In addition, notwithstanding the foregoing, the Borrower and its
Subsidiaries shall be entitled to make the following payments and/or to enter
into the following transactions:
(i) the payment of reasonable and customary fees and reimbursement
of expenses payable to directors of the Borrower and Holdings;
(ii) the employment arrangements with respect to the procurement
of services of directors, officers and employees in the ordinary course of
business and the payment of reasonable fees in connection therewith;
69
(iii) payments to directors and officers of the Borrower and its
Subsidiaries in respect of the indemnification of such Persons in such
respective capacities from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements, as the case may be, pursuant to the
Constitutional Documents or other corporate action of the Borrower or its
Subsidiaries, respectively, or pursuant to applicable law; and
(iv) transactions described in the Transaction Documents.
7.12 Limitation on Sales and Leasebacks. Enter into any arrangement with
any Person providing for the leasing by the Borrower or any Subsidiary of real
or personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Borrower or such Subsidiary; provided that the
Borrower may enter into a sale and leaseback transaction if the Borrower could
have (a) incurred Indebtedness in an amount equal to the Attributable Debt
relating to such sale and leaseback transaction and (b) incurred a Lien to
secure such Indebtedness, in each case in accordance with the restrictions
contained in this Agreement and the other Credit Documents.
7.13 Limitation on Changes in Fiscal Year. Permit the fiscal year of the
Borrower to end on a day other than December 31.
7.14 Limitation on Negative Pledge Clauses. Enter into with any Person any
agreement, other than (a) this Agreement, the Facility B Credit Agreement and
the Facility C Credit Agreement, (b) the Subordinated Debt Documents, the New
Subordinated Debt Documents or the December 1998 Subordinated Debt Documents,
and (c) any industrial revenue bonds, purchase money mortgages or Financing
Leases permitted by this Agreement (in which cases, any prohibition or
limitation shall only be effective against the assets financed thereby other
than after acquired title in or on such property and proceeds of the existing
collateral in accordance with the instrument creating such Lien), which
prohibits or limits the ability of the Borrower or any of its Subsidiaries to
create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired.
7.15 Limitation on Lines of Business. Enter into any business, either
directly or through any Subsidiary (other than an Immaterial Subsidiary), except
for Similar Businesses.
7.16 Designated Senior Debt. Designate any Indebtedness or other
obligation, other than Indebtedness under the Credit Documents, as "Designated
Senior Debt," as such term is defined in the Indenture as in effect on the April
30, 1997, the New Subordinated Debt Indenture as in effect on May 22, 1998 or
the December 1998 Subordinated Debt Indenture as in effect on the December 8,
1998, or any comparable designation that confers upon the holders of such
Indebtedness or other obligation (or any Person acting on their behalf) the
right to initiate blockage periods under the Indenture, the New Subordinated
Debt Indenture or the December 1998 Subordinated Debt Indenture or any other
Indebtedness or other obligation of the Borrower and its Subsidiaries (other
than as a result of a payment default).
70
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or any
Reimbursement Obligation when due in accordance with the terms thereof or
hereof; or the Borrower shall fail to pay any interest on any Loan, or any other
amount payable hereunder, within five days after any such interest or other
amount becomes due in accordance with the terms thereof or hereof;
(b) Any representation or warranty made or deemed made by the Borrower
or any other Credit Party herein or in any other Credit Document or which is
contained in any certificate, document or financial or other statement furnished
by it at any time under or in connection with this Agreement or any such other
Credit Document shall prove to have been incorrect in any material respect on or
as of the date made or deemed made;
(c) The Borrower or any other Credit Party shall default in the
observance or performance of any agreement contained in Section 7 or subsection
6.7(a) of this Agreement, Section 4 of the Parent Guarantee, Section 4 of the
Subsidiary Guarantee, Section 4 of the Parent Pledge Agreement, Section 4 of the
Borrower Pledge Agreement, or Section 4 of the Subsidiary Pledge Agreement;
(d) The Borrower or any other Credit Party shall default in the
observance or performance of any other agreement contained in this Agreement or
any other Credit Document (other than as provided in paragraphs (a) through (c)
of this Section), and such default shall continue unremedied for a period of 30
days;
(e) The Borrower or any of its Subsidiaries shall (i) default (x) in
any payment of principal of or interest of any Indebtedness (other than the
Loans, the L/C Obligations and any intercompany debt) or Interest Rate Agreement
Obligations or (y) in the payment of any Guarantee Obligation (excluding any
guaranties of the Obligations), beyond the period of grace, if any, provided in
the instrument or agreement under which such Indebtedness, Interest Rate
Agreement Obligation or Guarantee Obligation was created; or (ii) default in the
observance or performance of any other agreement or condition relating to any
such Indebtedness, Interest Rate Agreement Obligation 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 or such Guarantee
Obligation to become payable; provided, however, that no Default or Event of
Default shall exist under this paragraph unless (i) the aggregate amount of
Indebtedness, Interest Rate Agreement Obligations and/or Guarantee Obligations
in respect of which any default or other event or condition referred to in this
paragraph shall have occurred shall be equal to at least $7,500,000 and (ii)
such default continues for a period in excess of 10 days;
71
(f) (i) Holdings, the Borrower or any of its 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, conservator
or other similar official for it or for all or any substantial part of its
assets, or Holdings, the Borrower or any of its Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against Holdings, the Borrower or any of its 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 the Holdings, Borrower or any
of its Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all or
any substantial part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv) Holdings,
the Borrower or any of its 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 Borrower or
any of its Subsidiaries shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they become due;
(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),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of the Borrower or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Lenders, reasonably likely to result
in the termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or
(vi) any other similar event or condition shall occur or exist with respect to a
Plan that is not in the ordinary course; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to have a Material Adverse
Effect;
(h) One or more judgments or decrees shall be entered against
Holdings, the Borrower or any of its Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance (which coverage has been
acknowledged by the appropriate insurers)) of $7,500,000 or more, and all such
judgments or decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 60 days from the entry thereof;
72
(i) (i) Any of the Pledge Agreements shall cease, for any reason, to
be in full force and effect (unless released by the Administrative Agent at the
direction of the requisite Lenders or as otherwise permitted under this
Agreement or the other Credit Documents), or the Borrower or any other Credit
Party which is a party to any of the Pledge Agreements shall so assert or (ii)
the Lien created by any of the Pledge Agreements shall cease to be enforceable
and of the same effect and priority purported to be created thereby (and, if
such invalidity is such so as to be amenable to cure without materially
disadvantaging the position of the Administrative Agent and the Lenders, as the
case may be, as secured parties thereunder, the Credit Party shall have failed
to cure such invalidity within 30 days after notice from the Administrative
Agent);
(j) The Guarantee Obligation of any Credit Party under the Credit
Documents shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or any
Credit Party or any Person acting on behalf of any Credit Party, shall deny or
disaffirm its obligations under such Guarantee Obligation;
(k) There shall have occurred a Change in Control; or
(l) An "Event of Default" as defined in the Facility B Credit
Agreement and/or the Facility C Credit Agreement shall have occurred and be
continuing;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section above with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) and the Notes
shall immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken: (i) with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice of default to the
Borrower, declare the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) and the Notes to be due and payable forthwith, whereupon the same
shall immediately become due and payable.
With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Borrower shall at such time deposit in
a cash collateral account opened by the Administrative Agent an amount equal to
the Dollar Equivalent of the aggregate then undrawn and unexpired amount of such
Letters of Credit. The Borrower hereby grants to the Administrative Agent, for
the benefit of the Issuing Lender and the L/C Participants (and the benefit of
each such "Issuing
73
Lender" and the "L/C Participants" as defined in the Facility B Credit
Agreement), a security interest in such cash collateral to secure all
obligations of the Borrower under this Agreement, the Facility B Credit
Agreement, the other Credit Documents and the other Facility B Credit Documents.
Amounts held in such cash collateral account shall be applied by the
Administrative Agent in accordance with subsection 2.12 hereof. The Borrower
shall execute and deliver to the Administrative Agent, for the account of the
Issuing Lender and the L/C Participants (and each applicable "Issuing Lender"
and the "L/C Participants" as defined in the Facility B Credit Agreement), such
further documents and instruments as the Administrative Agent may request to
evidence the creation and perfection of the within security interest in such
cash collateral account.
EXCEPT AS EXPRESSLY PROVIDED ABOVE IN THIS SECTION, PRESENTMENT,
DEMAND, PROTEST AND ALL OTHER NOTICES OF ANY KIND ARE HEREBY EXPRESSLY WAIVED.
SECTION 9. THE AGENTS; THE ARRANGERS
9.1 Appointment. Each Lender hereby irrevocably designates and appoints
each of the Agents as the agent of such Lender under this Agreement and the
other Credit Documents, and each such Lender irrevocably authorizes each of the
Agents, in such capacity, to take such action on its behalf under the provisions
of this Agreement and the other Credit Documents and to exercise such powers and
perform such duties as are expressly delegated to such Agent by the terms of
this Agreement and the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, none of the Agents shall have any duties
or responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Credit Document or otherwise exist against any of the
Agents.
9.2 Delegation of Duties. The Agents may execute any of their duties under
this Agreement and 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. None of the Agents shall be responsible for
the negligence or misconduct of any agents or attorneys in-fact selected by it
with reasonable care.
9.3 Exculpatory Provisions. Neither any of the Agents nor any of their
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Credit Document
(except for its or such Person's own gross negligence or willful misconduct) or
(ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Borrower or any officer
thereof contained in this Agreement or any other Credit Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by such Agent under or in connection with, this Agreement or any
other Credit Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Credit Document or
for
74
any failure of the Borrower to perform its obligations hereunder or thereunder.
None of the Agents shall be under any obligation to any Lender to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Credit Document, or
to inspect the properties, books or records of the Borrower.
9.4 Reliance by Agents. The Agents shall be entitled to rely, and shall be
fully protected in relying, upon any Note, writing, resolution, notice, consent,
certificate, affidavit, letter, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation, counsel
to the Borrower), independent accountants and other experts selected by such
Agent. The Agents may deem and treat the payee of any Note as the owner thereof
for all purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with such Agent. Except as expressly provided in
this Agreement, the Agents shall be fully justified in failing or refusing to
take any action under this Agreement or any other Credit Document unless it
shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Agents shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement and the other Credit Documents in accordance with a request of the
Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
9.5 Notice of Default. No Agent shall be deemed to have knowledge or notice
of the occurrence of any Default or Event of Default hereunder unless such Agent
has received notice from a Lender or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". In the event that any Agent receives such a notice, such
Agent shall give notice thereof to the Lenders. Each Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders; provided that unless and until such Agent
shall have received such directions, such Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly
acknowledges that neither any of the Agents nor any of their officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by any of the Agents
hereafter taken, including any review of the affairs of the Borrower, shall be
deemed to constitute any representation or warranty by any of the Agents to any
Lender. Each Lender represents to each of the Agents that it has, independently
and without reliance upon any of the Agents or any other Lender, 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 credit worthiness of the Borrower and made its
own decision to make its Loans hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon any
of the Agents or any
75
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Credit 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 Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by any of the Agents
hereunder (or copies of which have been provided to the Administrative Agent
pursuant to this Agreement), none of the Agents shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Credit Party which may come
into the possession of such Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
9.7 Indemnification. The Lenders agree to indemnify each of the Agents in
their respective capacities as such (to the extent not reimbursed by the
Borrower and without limiting the obligation of the Borrower to do so), ratably
according to their respective Commitment Percentages with respect to all Types
of Loans in effect on the date on which indemnification is sought, 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 of the Agents in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Credit Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by any of the
Agents under or in connection with any of the foregoing provided that no Lender
shall be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent's gross negligence or willful
misconduct. The agreements in this subsection shall survive the payment of the
Loans and all other amounts payable hereunder.
9.8 Agents, in Their Individual Capacities. The Agents and their respective
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Borrower as though the Agents were not acting in such
capacities hereunder and under the other Credit Documents. With respect to the
Loans made or renewed by it and any Note issued to it or Loan Account maintained
by it and with respect to any Letter of Credit issued or participated in by it,
each Agent shall have the same rights and powers under this Agreement and the
other Credit Documents as any Lender and may exercise the same as though it were
not an Agent, and the terms "Lender" and "Lenders" shall include the Agents in
their individual capacities.
9.9 Successor Administrative Agent, Syndication Agent and Documentation
Agent.
The Administrative Agent may resign as Administrative Agent upon 30
days' notice to the Lenders. If the Administrative Agent resigns under this
Agreement, the Required Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders, which successor administrative agent
shall, unless a Default or Event of Default shall have occurred and be
continuing, be approved by the Borrower. If no successor administrative agent
76
is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders and the Borrower, a successor administrative agent from among
the Lenders. Upon the acceptance of its appointment as successor administrative
agent hereunder, such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent and the term
"Administrative Agent" shall mean such successor administrative agent and the
retiring Administrative Agent's appointment, powers and duties as Administrative
Agent shall be terminated. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Section 9 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor administrative agent
has accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
administrative agent as provided for above. Similarly, the Syndication Agent
and/or the Documentation Agent may resign as Syndication Agent and/or
Documentation Agent, as the case may be, upon 30 days' notice to the Lenders.
The procedure for replacement and effective date of resignation for the
Syndication Agent and the Documentation Agent shall be identical to that
provided above for the Administrative Agent.
9.10 The Arrangers and the Co-Agents. Except as expressly set forth herein,
each of the Arrangers and the Co-Agents, in their respective capacities as such,
shall have no duties or responsibilities, and shall incur no liabilities, under
this Agreement or the other Credit Documents.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement nor any other Credit
Document, nor any terms hereof or thereof may be amended, supplemented, waived
or modified except in accordance with the provisions of this subsection. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with the Borrower
written amendments, supplements or modifications hereto and to the other Credit
Documents for the purpose of adding any provisions to this Agreement or the
other Credit Documents or changing in any manner the rights of the Lenders or of
the Borrower hereunder or thereunder or (b) waive, on such terms and conditions
as the Required Lenders or the Administrative Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the
other Credit Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall (i) reduce the amount or extend any scheduled date of
maturity of any Loan, extend the expiration of any Letter of Credit beyond the
Termination Date, or reduce the stated rate or amount of any interest or fee
payable hereunder or extend the scheduled date of any payment thereof, in each
case without the consent of each Lender affected thereby, or increase the
commitment of any Lender or extend the expiry of the commitment of any Lender
without the consent of such Lender, (ii) amend, modify or waive the definition
of Required Lenders, or consent to the assignment or transfer by the Borrower of
any of its rights and
77
obligations under this Agreement and the other Credit Documents, in each case
without the written consent of all the Lenders, (iii) release all or
substantially all of the Collateral or release all or substantially all of the
Credit Parties from their Guarantee Obligations under the Credit Documents
without the consent of all Lenders, (iv) amend, modify or waive any provision of
Section 9 without the written consent of the then Agents, (v) amend, modify or
waive any provision of subsection 2.1(b), any other provision of this Agreement
relating to the Swing Line Loans or the Swing Line Note, if any, without the
written consent of the Swing Line Lender, or (vi) amend, modify or waive any
provision of this Agreement or any other Credit Document which would directly
and adversely affect the Arrangers or the Agents or the Issuing Lender or the
Swing Line Lender without the written consent of the Arrangers, the Agents or
the Issuing Lender or the Swing Line Lender, as the case may be. In addition to
the foregoing, (A) no amendment, modification, termination or waiver of any
provision of subsection 2.5, subsection 2.6 or subsection 2.12 which has the
effect of changing any interim scheduled payments, voluntary or mandatory
prepayments, the application of any scheduled payment or voluntary or mandatory
prepayment, the application of proceeds of any Collateral or any Commitment
reductions applicable to any Class (an "Affected Class") in a manner that
disproportionately disadvantages such Class relative to the other Class shall be
effective without the written concurrence of the Requisite Class Lenders of the
Affected Class (it being understood and agreed that any amendment, modification,
termination or waiver of any provision which only postpones or reduces any
interim scheduled payment, voluntary or mandatory prepayment or Commitment
reduction from those set forth in subsection 2.6 with respect to only one Class
shall be deemed to not disproportionately disadvantage the other Class and,
therefore, shall not require the consent of Requisite Class Lenders of such
other Class), (B) no amendment, modification, termination or waiver of any
provision of any Guarantee or Pledge Agreement shall be effective without the
written concurrence of the Requisite Class Lenders for each Class and (C) no
amendment, modification or waiver with respect to any provision of this
subsection 10.1 or to the definition of "Requisite Class Lenders" shall be
effective without the written concurrence of all Lenders, all Facility B Lenders
and all Facility C Lenders. Any such waiver and any such amendment, supplement
or modification shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the Lenders, the Agents and the Issuing Lender and all future
holders of the Loans. Any extension of a Letter of Credit by the Issuing Lender
shall be treated hereunder as issuance of a new Letter of Credit. In the case of
any waiver, the Borrower, the Lenders and the Agents and the Issuing Lender
shall be restored to their former positions and rights hereunder and under the
other Credit Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
10.2 Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by facsimile
transmission) and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made (a) in the case of delivery by hand, when
delivered, (b) in the case of delivery by mail, three days after being deposited
in the mails, postage prepaid, or (c) in the case of delivery by facsimile
transmission, when sent and receipt has been confirmed, addressed as follows in
the case of the Borrower, the Administrative Agent, Swing Line Lender, Issuing
Lender, the Syndication Agent
78
and the Documentation Agent, and as set forth in Schedule I in the case of the
other parties hereto, or to such other address as may be hereafter notified by
the respective parties hereto:
Holdings, the Borrower
or any of its
Subsidiaries: L-3 Communications Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx XxXxxxx
Fax: (000) 000-0000
with a copy to
Attention: Xxxxxxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
79
The Administrative
Agent: Addresses for notices of borrowing,
prepayments and other administrative
matters:
Bank of America, N.A.
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Agency Administrative
Services #5596
Xxxxxxxxx X. Xxxxxx,
Vice President
Fax: (000) 000-0000
Tel: (000) 000-0000
Addresses for all other notices (including
with respect to amendments and waivers):
Bank of America, N.A.
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Agency Management #10831
Xxxxxxx Xxxxxx, Vice President
Fax: (000) 000-0000
Tel: (000) 000-0000
with a copy to:
Bank of America, N.A.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
80
The Swing Line Lender:
Bank of America, N.A.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
The Issuing Lender:
Bank of America, N.A.
000 X. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx XX 00000-0000
Attention: Trade Operations Center -
Standby Letters of Credit
#22621
Xxxxxx X. Xxxx, Vice President
Fax: (000) 000-0000
Tel: (000) 000-0000
The Documentation
Agent: Xxxxxx Commercial Paper Inc.
3 World Financial Center, 9th Floor
New York, New York 10285
Attention: Xxxxxxxx Xxxxxxx
Fax: (000) 000-0000
The Syndication
Agent: Xxxxxx Commercial Paper Inc.
3 World Financial Center, 9th Floor
New York, New York 10285
Attention: Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.2, 2.4, 2.6, 2.7, 2.12 or 3.2 shall not
be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of any Agent or any Lender, any right, remedy, power or
privilege hereunder or under the other Credit Documents shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other
81
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.
10.4 Survival of Representations and Warranties. All representations and
warranties made hereunder, in the other Credit Documents 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 making of the
Loans hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse each of the Agents for all of their respective reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement and the other Credit Documents and any other documents prepared
in connection herewith or therewith, and the consummation and administration of
the transactions contemplated hereby and thereby, including, without limitation,
the reasonable fees, charges and disbursements of a single counsel for the
Lenders (in addition to any local counsel), (b) to pay or reimburse each Lender
and each Agent for all its costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the other Credit
Documents and any such other documents, including, without limitation, the fees
and disbursements of counsel to each Lender and of counsel to any Agent, (c) to
pay, indemnify, and hold each Lender and each Agent and each Issuing Lender
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, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation or administration
of any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, the other Credit Documents and any such other documents, and (d) to
pay, indemnify, and hold each Lender and each Arranger, each Agent and each
Issuing Lender 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 with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement or the other Credit Documents or the use of the proceeds of the Loans
in connection with the Transaction, including, without limitation, any of the
foregoing relating to the violation of, noncompliance with or liability under,
any Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries or any of the Properties (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"), it being understood that the
Borrower shall have an obligation hereunder to the Lender or any Agent with
respect to any indemnified liabilities incurred by any Agents, Arranger or the
Issuing Lender or any Lender as a result of any Materials of Environmental
Concern that are first manufactured, emitted, generated, treated, released,
spilled, stored or disposed of on, at or from any Property or any violation of
any Environmental Law, which in any case first occurs on or with respect to such
Property (i) after the Property is transferred to any Agent, Arranger, Issuing
Lender or any Lender or their successors or assigns by foreclosure sale, deed in
lieu of foreclosure, or similar transfer or, following such transfer, (ii) in
connection with, but prior to, the sale, leasing or other transfer of such
Property by such Agent, Arranger, Issuing Lender, or any Lender or their
successors or assigns to one or more
82
third parties; provided, however, that the Borrower shall have no obligation
hereunder to any Agent or the Issuing Lender or any Lender with respect to
otherwise indemnified liabilities arising from the gross negligence or willful
misconduct of such Agent or the Issuing Lender or any such Lender, or with
respect to otherwise indemnified liabilities following the sale, leasing or
other transfer of such Property to one or more third parties. The agreements in
this subsection shall survive repayment of the Loans and all other amounts
payable hereunder.
10.6 Successors and Assigns; Participation and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of
the Borrower, the Lenders, the Agents and their respective successors and
assigns, except that the Borrower may not assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("Participants") participating interests in any Loan owing to such
Lender or any other interest of such Lender hereunder and under the other Credit
Documents. In the event of any such sale by a Lender of a participating interest
to a Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the other
Credit Documents, and the Borrower and the Agents shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Credit Documents. No Lender shall
be entitled to create in favor of any Participant, in the participation
agreement pursuant to which such Participant's participating interest shall be
created or otherwise, any right to vote on, consent to or approve any matter
relating to this Agreement or any other Credit Document except for those
specified in clauses (i), (ii) and (iii) of the proviso to subsection 10.1. The
Borrower agrees that if amounts outstanding under this Agreement are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, 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 Lender under this Agreement; provided that, in purchasing
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in subsection 10.7(a) as
fully as if it were a Lender hereunder. The Borrower also agrees that each
Participant shall be entitled to the benefits of subsections 2.14, 2.15 and 2.16
with respect to its participation in the Letters of Credit, the Commitments and
the Loans outstanding from time to time as if it was a Lender; provided that in
the case of subsection 2.15, such Participant shall have complied with the
requirements of said subsection; provided, further, that no Participant shall be
entitled to receive any greater amount pursuant to any such subsection than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
83
(c) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to any
Lender, any affiliate thereof or, in the case of Lender that is an investment
fund which is regularly engaged in making, purchasing or investing in loans or
securities (an "Investment Fund"), any other such Investment Fund which is under
common management with such Lender, or, with the consent of the Borrower, the
Administrative Agent, the Syndication Agent and each Applicable Issuing Lender
(which in each case shall not be unreasonably withheld), to an additional bank,
Investment Fund or financial institution (an "Assignee") all or any part of its
rights and obligations under this Agreement and the other Credit Documents
pursuant to an Assignment and Acceptance, substantially in the form of Exhibit
F, executed by such Assignee, such assigning Lender (and, in the case of an
Assignee that is not then a Lender or an affiliate thereof, by the Borrower, the
Administrative Agent, the Syndication Agent and each Applicable Issuing Lender)
and delivered to the Administrative Agent for its acceptance and recording in
the Register with a copy to the Syndication Agent, provided that, in the case of
any such assignment to an additional bank or financial institution, (A) either
(x) such assignment is of all the rights and obligations of the assigning Lender
or (y) the sum of the aggregate principal amount of the Loans, the aggregate
amount of the L/C Obligations and the aggregate amount of the unused Commitments
being assigned and, if such assignment is of less than all of the rights and
obligations of the assigning Lender, the sum of the aggregate principal amount
of the Loans, the aggregate amount of the L/C Obligations and the aggregate
amount of the unused Commitments remaining with the assigning Lender are each
not less than $5,000,000 (or such lesser amount as may be agreed to by the
Borrower and the Administrative Agent) and (B) each Assignee which is a Non-U.S.
Lender shall comply with the provisions of clause (A) of subsection 2.15(b)
hereof, or, with the prior written consent of the Borrower, which shall not be
unreasonably withheld, the provisions of clause (B) of subsection 2.15(b) hereof
(and, in either case, with all of the other provisions of subsection 2.15(b)
hereof). Upon such execution, delivery, acceptance and recording, from and after
the effective date determined pursuant to such Assignment and Acceptance, (x)
the Assignee thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein and (y) the assigning Lender
thereunder shall, to the extent provided 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
Lender's rights and obligations under this Agreement, such assigning Lender
shall cease to be a party hereto). Notwithstanding any provision of this
paragraph (c) and paragraph (f) of this subsection, the consent of the Borrower
shall not be required for any assignment which occurs at any time when any of
the events described in clause (f) of Section 8 shall have occurred and be
continuing.
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent 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 Lenders
and Commitments of and principal amounts of the Loans of each Type owing to each
Lender from time to time and the registered owners of the Obligations evidenced
by the Notes and the Loan Accounts. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders
84
shall treat each Person whose name is recorded in the Register as the owner of a
Loan, a Note or other Obligation hereunder as the owner thereof for all purposes
of this Agreement and the other Credit Documents, notwithstanding any notice to
the contrary. Any assignment of any Loan, Commitment or other obligation
evidenced by a Note or a Loan Account shall be effective only upon appropriate
entries with respect thereto being made in the Register, and prior to such
recordation, all amounts owing to the assignor with respect thereto shall remain
owing to the assignor. Any assignment or transfer of all or part of an
Obligation evidenced by a Note shall be registered in the Register only upon
surrender for registration of assignment or transfer of the Note evidencing such
Obligation, 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 Notes shall be issued to the designated Assignee, if requested, and
the old Note shall be returned by the Administrative Agent to the Borrower
marked "canceled."
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Borrower the Administrative Agent,
the Syndication Agent and each Applicable Issuing Lender) together with payment
to the Administrative Agent of a registration and processing fee of $3,000
(provided that no such payment shall be required whenever LCPI or BOA is the
assigning Lender), the Administrative Agent shall (i) promptly accept such
Assignment and Acceptance and (ii) on the effective date determined pursuant
thereto record the information contained therein in the Register and give notice
of such acceptance and recordation to the Lenders and the Borrower. Following
the effective date of any such Assignment and Acceptance, the Administrative
Agent shall be entitled to update Schedule I hereto to reflect the then
outstanding Commitments of each Lender whereupon such amended Schedule I shall
be substituted for the pre-existing Schedule I and be deemed a part of this
Agreement without any further action or consent of any party and the
Administrative Agent shall promptly deliver a copy of such amended Schedule I to
each Lender and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any Participant
or Assignee (each, a "Transferee") and any prospective Transferee, subject to
the provisions of subsection 10.15, any and all financial information in such
Lender's possession concerning the Borrower and its Affiliates which has been
delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of the Borrower and
its Affiliates prior to becoming a party to this Agreement.
(g) If, pursuant to this subsection 10.6, any interest in this
Agreement or any Loan is transferred to any Transferee which would be a Non-U.S.
Lender upon the effectiveness of such transfer, the assigning Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, (i) to
represent to the assigning Lender (for the benefit of the assigning Lender, the
Administrative Agent and the Borrower) that under applicable law and treaties no
U.S. Taxes will be required to be withheld by the Administrative Agent, the
Borrower or the assigning Lender with respect to any payments to be made to such
Transferee in respect of the Loans, (ii) to furnish to the assigning Lender
(and, in the case of any Assignee registered in the Register, the Administrative
Agent and the Borrower such Internal Revenue Service Forms
85
required to be furnished pursuant to subsection 2.15(b) and (iii) to agree (for
the benefit of the assigning Lender, the Administrative Agent and the Borrower)
to be bound by the provisions of subsection 2.15(b).
(h) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this subsection concerning assignments of Loans and Notes
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 Lender of any Loan or Note to any Federal Reserve Bank
in accordance with applicable law.
(i) Notwithstanding any other provision contained in this Agreement
or any other Credit Document to the contrary, (x) any Lender may assign all or
any portion of the Loans held by it to any Federal Reserve Bank or the United
States Treasury as collateral security pursuant to Regulation A of the Federal
Reserve Board and any Operating Circular issued by such Federal Reserve Bank,
provided that any payment in respect of such assigned Loans made by the
Borrower to or for the account of the assigning or pledging Lender in accordance
with the terms of this Agreement shall satisfy the Borrower's obligations
hereunder in respect to such assigned Loans to the extent of such payments
and (y) with the consent of the Administrative Agent (not to be unreasonably
withheld), any Lender which is an Investment Fund may pledge all or any
portion of its Loans to its trustee in support of its obligations to its
trustee. No such assignment shall release the assigning Lender from its
obligations hereunder.
10.7 Adjustments; Set-off.
(a) At any time that an Event of Default has occurred and is
continuing, if any Lender (a "benefited Lender") shall at any time receive any
payment of all or part of its Loans or the Reimbursement Obligations owing to
it, or interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in clause (f) of Section 8, or otherwise), in a greater
proportion than any such payment to or collateral received by any other Lender,
Facility B Lender or Facility C Lender (any such affected Lender, Facility B
Lender or Facility C Lender hereinafter, an "Affected Lender"), if any, in
respect of the Borrower's obligations owing to such other Affected Lender,
whether under this Agreement, the Facility B Credit Agreement or Facility C
Credit Agreement, including any interest thereon, such benefited Lender shall
purchase for cash from each other Affected Lender a participating interest in
such portion of each such other Affected Lender's Loans or the Reimbursement
Obligations owing to it, Facility B Loans or Facility B Reimbursement
Obligations and/or Facility C Loans owing to it, or shall provide such other
Affected Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such benefited Lender to share the
excess payment or benefits of such collateral or proceeds ratably with each of
the Affected Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such benefited Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest unless the benefited Lender
is required by court order to pay interest thereon, in which case each Lender
returning funds to such benefited Lender shall pay its pro rata share of such
interest.
86
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to the Borrower, any
such notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and application
made by such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application. Each Lender and Borrower
also agree that all proceeds of any such set-off shall be subject to the ratable
sharing provisions of subsections 2.12 and 10.7(a) hereof to the same extent as
if an Event of Default had occurred and was continuing.
10.8 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
facsimile transmission), 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 Borrower and the
Administrative Agent.
10.9 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.10 Integration. This Agreement and the other Credit Documents represent
the agreement of the Borrower, the Agents and the Lenders with respect to the
subject matter hereof, and there are no promises, undertakings, representations
or warranties by any Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Credit Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 SUBMISSION TO JURISDICTION; WAIVERS. THE BORROWER HEREBY IRREVOCABLY
AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS TO
WHICH IT IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF
THE STATE
87
OF NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) 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;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL
(OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO THE
BORROWER 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;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO XXX IN ANY OTHER JURISDICTION; AND
(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT
MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO
IN THIS SUBSECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES.
10.13 Acknowledgments. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents;
(b) none of the Arrangers, the Agents nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection with
this Agreement or any of the other Credit Documents, and the relationship
between any of the Agents and the Lenders, on one hand, and the Borrower, on the
other hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
10.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS, THE ARRANGERS, THE
LENDERS AND THE OTHER PARTIES HERETO HEREBY
88
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR
ANY COUNTERCLAIM THEREIN.
10.15 Confidentiality. Each Lender agrees to keep confidential all
non-public information provided to it by the Borrower pursuant to this Agreement
that is designated by the Borrower in writing as confidential (excluding any
such information already in the possession of such Lender or provided to such
Lender by a third party not in violation of this Agreement which, in either
case, is not, to the knowledge of such Lender, subject to a confidentiality
agreement); provided that nothing herein shall prevent any Lender from
disclosing any such information (i) to any Agent or any other Lender or any of
its Affiliates, (ii) to any Transferee or prospective Transferee or to any
direct or indirect contractual counterparties in swap agreements or such
contractual counterparties' professional advisors which receives such
information and agrees to be bound by the confidentiality provisions hereof,
(iii) to its employees, directors, agents, attorneys, accountants and other
professional advisors, (iv) upon the request or demand of any Governmental
Authority having jurisdiction over such Lender, (v) in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, (vi) which has been publicly disclosed other
than in breach of this Agreement, or (vii) in connection with the exercise of
any remedy hereunder.
10.16 Conversion of Currencies.
(a) If, for the purpose of obtaining judgment in any court, it is
necessary to convert a sum owing hereunder in one currency into another
currency, each party hereto agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures in the relevant jurisdiction the first
currency could be purchased with such other currency on the Business Day
immediately preceding the date on which final judgment is given.
(b) The obligations of the Borrower in respect of any sum due to any
party hereto or any holder of the obligations owing hereunder (the "Applicable
Creditor") shall, notwithstanding any judgment in a currency (the "Judgment
Currency") other than the currency in which such sum is stated to be due
hereunder (the "Agreement Currency"), be discharged only to the extent that, on
the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction 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 the
Applicable Creditor in the Agreement Currency, the Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrower contained
in this subsection 10.16 shall survive the termination of this Agreement and the
payment of all other amounts owing hereunder.
10.17 Year 2000. The Borrower has reviewed, or will expeditiously review,
its operations and those of its Subsidiaries with a view to assessing whether
its businesses, or the
89
businesses of any of its Subsidiaries, are experiencing any Year 2000 Problem.
The Borrower shall take all actions necessary and commit adequate resources to
assure that its computer-based and other systems (and those of all of its
Subsidiaries) are able to effectively process data, including dates after
January 1, 2000, without experiencing any Year 2000 Problem that could
reasonably be expected to cause a Material Adverse Effect. At the request of the
Required Lenders, the Borrower will provide the Administrative Agent with
assurances and substantiations (including, but not limited to, the results of
internal or external audit reports prepared in the ordinary course of business)
reasonably acceptable to the Administrative Agent as to the capability of the
Borrower and its Subsidiaries to conduct its and their businesses and operations
after January 1, 2000 without experiencing a Year 2000 Problem causing a
Material Adverse Effect. The Borrower represents and warrants that it has a
reasonable basis to believe that no Year 2000 Problem will cause a Material
Adverse Effect.
10.18 Existing Agreements Superseded. As set forth in subsection 1.3
hereof, the Original Credit Agreement is superseded by this Credit Agreement,
which has been executed in renewal, amendment, restatement and modification, but
not in novation or extinguishment of, the obligations under the Original Credit
Agreement.
[SIGNATURE PAGES FOLLOW]
90
SIGNATURE PAGES TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
L-3 COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxxx X. X'Xxxxx
Title: Vice President and Treasurer
BANK OF AMERICA, N.A.
as Administrative Agent
By: /s/ Xxxxxxx Xxxxx
Title: Vice President
BANK OF AMERICA, N.A.
as a Lender and Swing Line Lender
By: /s/ Xxxx Xxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER INC.,
as Documentation Agent, Syndication Agent,
and as a Lender
By: /s/ Xxxxxxx Xxxxxxx
Title: Authorized Signatory
THE BANK OF NEW YORK
By: /s/ Xxx Xxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Xxxx Xxxxxxx
Title: Managing Director
BANK ONE, N.A.
By: /s/ Xxxxxx X. Xxxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxx
Title: Senior Vice President
CREDIT LYONNAIS
By: /s/ Xxxxx Xxxxxxxxx
Title: Vice President
FIRST UNION COMMERCIAL CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ Xxxx X. Xxxxx
Title: Vice President & Manager
HSBC BANK USA
By: /s/ Desmond English
Title: Associate Director
SOCIETE GENERALE
By: /s/ Xxxx X. Xxxxxx
Title: Director
Exhibit A-1
to Credit Agreement
FORM OF REVOLVING CREDIT NOTE
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE
MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT
TO THE TERMS OF SUCH CREDIT AGREEMENT.
$ New York, New York
-----------------
,
FOR VALUE RECEIVED, the undersigned, L-3 Communications
Corporation, a Delaware corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of (the "Lender") at the office of
Bank of America, N.A. (f/k/a Bank of America National Trust & Savings
Association), as administrative agent (in such capacity, the "Administrative
Agent"), located at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx, 00000, in
lawful money of the United States of America and in immediately available funds,
on the Termination Date the principal amount of (a) Dollars
($ ), or, if less, (b) the aggregate unpaid principal amount of all
Revolving Credit Loans made by the Lender to the Borrower pursuant to subsection
2.1 of the Credit Agreement, as hereinafter defined. The Borrower further agrees
to pay interest in like money at such office on the unpaid principal amount
hereof from time to time outstanding at the rates and on the dates specified in
subsection 2.9 of such Credit Agreement.
The holder of this Note is authorized to endorse on the
schedules annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof the date, Type, and amount
of each Revolving Credit Loan made pursuant to the Credit Agreement and the date
and amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed. The failure to make any such endorsement
shall not affect the obligations of the Borrower in respect of such Revolving
Credit Loan.
This Note (a) is one of the Revolving Credit Notes referred to
in the Second Amended and Restated Credit Agreement, dated as of April 24, 2000
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the Lender, the other banks and financial
institutions or entities from time to time parties thereto, Banc of America
Securities LLC (f/k/a BancAmerica Xxxxxxxxx Xxxxxxxx) and Xxxxxx Commercial
Paper Inc. ("LCPI") as the Arrangers, Bank of America, N.A. as the
Administrative Agent, LCPI as the Syndication Agent and the Documentation Agent,
and the financial institutions named therein as Co-Agents, which amends and
restates in full the Original Credit Agreement, (b) is subject to the provisions
of the Credit Agreement and (c) is subject to optional and mandatory prepayment,
in whole or in part, as provided in the Credit Agreement. This Note
1
is secured and guaranteed as provided in the Credit Documents. Reference is
hereby made to the Credit Documents for a description of the assets in which a
security interest has been granted, the nature and extent of the security and
the guarantees, the terms and conditions upon which the security interests and
each guarantee were granted and the rights of the holder of this Note in respect
thereof.
Upon the occurrence of any one or more of the Events of
Default, all amounts then remaining unpaid on this Note shall become, or may be
declared to be, immediately due and payable, all as provided in the Credit
Agreement.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
[This Note merely re-evidences the Note issued to Lender
pursuant to the Original Credit Agreement (the "Prior Note"), is given in
substitution therefor, and not in satisfaction thereof, and is in no way
intended to constitute a novation or payment and refunding of the Prior Note.
All interest and principal outstanding under the Prior Note shall continue in
all respects to be outstanding hereunder.](1)
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
L-3 COMMUNICATIONS CORPORATION
By:
----------------------------------
Name:
Title:
(1) To be added if Lender requesting a Note holds a Prior Note issued under the
Original Credit Agreement.
2
Schedule A
to Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
------ ----------------- --------------------- ------------------- -------------------- ----------------- ------------------
Amount of Principal Amount of Base Rate Unpaid Principal
Amount of Base Amount Converted to of Base Rate Loans Converted to Balance of
Date Rate Loans Base Rate Loans Loans Repaid Eurodollar Loans Base Rate Loans Notation Made By
------ ----------------- --------------------- ------------------- -------------------- ------------------ ------------------
------ ----------------- --------------------- ------------------- -------------------- ------------------ ------------------
------ ----------------- --------------------- ------------------- -------------------- ------------------ ------------------
------ ----------------- --------------------- ------------------- -------------------- ------------------ ------------------
------ ----------------- --------------------- ------------------- -------------------- ------------------ ------------------
------ ----------------- --------------------- ------------------- -------------------- ------------------ ------------------
------ ----------------- --------------------- ------------------- -------------------- ------------------ ------------------
------ ----------------- --------------------- ------------------- -------------------- ------------------ ------------------
------ ----------------- --------------------- ------------------- -------------------- ------------------ ------------------
------ ----------------- --------------------- ------------------- -------------------- ------------------ ------------------
------ ----------------- --------------------- ------------------- -------------------- ------------------ ------------------
------ ----------------- --------------------- ------------------- -------------------- ------------------ ------------------
------ ----------------- --------------------- ------------------- -------------------- ------------------ ------------------
------ ----------------- --------------------- ------------------- -------------------- ------------------ ------------------
------ ----------------- --------------------- ------------------- -------------------- ------------------ ------------------
====== ================= ===================== =================== ==================== =================== =================
Schedule B
to Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
------ ---------- ------------------- ------------------- -------------------- -------------------- ---------------- --------
Amount of Interested Period Amount of Principal Amount of Eurodollar Unpaid Principal
Eurodollar Amount Converted to and Eurodollar Rate of Eurodollar Loans Loans Converted to Balance of Notation
Date Loans Eurodollar Loans with Respect Thereto Repaid Base Rate Loans Eurodollar Loans Made By
------ ---------- ------------------- ------------------- ------------------- --------------------- ---------------- --------
------ ---------- ------------------ ------------------- ------------------- --------------------- ---------------- --------
------ ---------- ------------------ ------------------- ------------------- --------------------- ---------------- --------
------ ---------- ------------------ ------------------- ------------------- --------------------- ---------------- --------
------ ---------- ------------------ ------------------- ------------------- --------------------- ---------------- --------
------ ---------- ------------------ ------------------- ------------------- --------------------- ---------------- --------
------ ---------- ------------------ ------------------- ------------------- --------------------- ---------------- --------
------ ---------- ------------------ ------------------- ------------------- --------------------- ---------------- --------
------ ---------- ------------------ ------------------- ------------------- --------------------- ---------------- --------
------ ---------- ------------------ ------------------- ------------------- --------------------- ---------------- --------
------ ---------- ------------------ ------------------- ------------------- --------------------- ---------------- --------
------ ---------- ------------------ ------------------- ------------------- --------------------- ---------------- --------
------ ---------- ------------------ ------------------- ------------------- --------------------- ---------------- --------
------ ---------- ------------------ ------------------- ------------------- --------------------- ---------------- --------
------ ---------- ------------------ ------------------- ------------------- --------------------- ---------------- --------
====== ========== ================== =================== =================== ===================== ================ ========
Exhibit A-2
to Credit Agreement
FORM OF SWING LINE NOTE
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE
MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT
TO THE TERMS OF SUCH CREDIT AGREEMENT.
$ New York, New York
---------------
,
FOR VALUE RECEIVED, the undersigned, L-3 Communications
Corporation, a Delaware corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of (the "Lender") at the office
of Bank of America, N.A. (f/k/a Bank of America National Trust & Savings
Association), as administrative agent (in such capacity, the "Administrative
Agent"), located at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx, 00000, in
lawful money of the United States of America and in immediately available funds,
on the Termination Date the principal amount of (a) DOLLARS
($ ), or, if less, (b) the aggregate unpaid principal amount of all
Swing Line Loans made by the Lender to the Borrower pursuant to subsection 2.1
of the Credit Agreement, as hereinafter defined. The Borrower further agrees to
pay interest in like money at such office on the unpaid principal amount hereof
from time to time outstanding at the rates and on the dates specified in
subsection 2.9 of such Credit Agreement.
The holder of this Note is authorized to endorse on the
schedules annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof the date, Type, and amount
of each Swing Line Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed. The failure to make any such endorsement
shall not affect the obligations of the Borrower in respect of such Swing Line
Loan.
This Note (a) is one of the Swing Line Notes referred to in
the Second Amended and Restated Credit Agreement, dated as of April 24, 2000 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the Lender, the other banks and financial
institutions or entities from time to time parties thereto, Banc of America
Securities LLC (f/k/a BancAmerica Xxxxxxxxx Xxxxxxxx) and Xxxxxx Commercial
Paper Inc. ("LCPI") as the Arrangers, Bank of America, N.A. as the
Administrative Agent, LCPI as the Syndication Agent and the Documentation Agent
and the financial institutions named therein as Co-Agents, which amends and
restates in full the Original Credit Agreement, (b) is subject to the provisions
of the Credit Agreement and (c) is subject to optional
1
and mandatory prepayment in whole or in part as provided in the Credit
Agreement. This Note is secured and guaranteed as provided in the Credit
Documents. Reference is hereby made to the Credit Documents for a description
of the assets in which a security interest has been granted, the nature and
extent of the security and the guarantees, the terms and conditions upon which
the security interests and each guarantee were granted and the rights of the
holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of
Default, all amounts then remaining unpaid on this Note shall become, or may be
declared to be, immediately due and payable, all as provided in the Credit
Agreement.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
This Note merely re-evidences the Note issued to Lender
pursuant to the Original Credit Agreement (the "Prior Note"), is given in
substitution therefor, and not in satisfaction thereof, and is in no way
intended to constitute a novation or payment and refunding of the Prior Note.
All interest and principal outstanding under the Prior Note shall continue in
all respects to be outstanding hereunder.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
L-3 COMMUNICATIONS CORPORATION
By:
---------------------------------------
Name:
Title:
2
Schedule A
to Note
LOANS AND REPAYMENTS OF BASE RATE LOANS
----------------- -------------------------- ------------------------- ------------------------- -------------------
Unpaid Principal
Amount of Principal of Balance of Base Rate
Date Amount of Loans Loans Repaid Loans Notation Made By
----------------- -------------------------- ------------------------- ------------------------- -------------------
----------------- -------------------------- ------------------------- ------------------------- -------------------
----------------- -------------------------- ------------------------- ------------------------- -------------------
----------------- -------------------------- ------------------------- ------------------------- -------------------
----------------- -------------------------- ------------------------- ------------------------- -------------------
----------------- -------------------------- ------------------------- ------------------------- -------------------
----------------- -------------------------- ------------------------- ------------------------- -------------------
----------------- -------------------------- ------------------------- ------------------------- -------------------
----------------- -------------------------- ------------------------- ------------------------- -------------------
----------------- -------------------------- ------------------------- ------------------------- -------------------
----------------- -------------------------- ------------------------- ------------------------- -------------------
----------------- -------------------------- ------------------------- ------------------------- -------------------
----------------- -------------------------- ------------------------- ------------------------- -------------------
----------------- -------------------------- ------------------------- ------------------------- -------------------
----------------- -------------------------- ------------------------- ------------------------- -------------------
================= ========================== ========================= ========================= ===================
EXHIBIT B-1
TO CREDIT AGREEMENT
================================================================================
SECOND AMENDED AND RESTATED PARENT GUARANTEE AGREEMENT
made by
L-3 COMMUNICATIONS HOLDINGS, INC.
in favor of
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
Dated as of April 24, 2000
================================================================================
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINED TERMS.........................................................2
1.1. Definitions..................................................................2
1.2. Other Definitional Provisions................................................4
1.3. Effect of Restatement........................................................4
SECTION 2. GUARANTEE..............................................................4
2.1. Guarantee....................................................................4
2.2. No Subrogation...............................................................5
2.3. Amendments, etc. with respect to the Guaranteed Obligations..................6
2.4. Guarantee Absolute and Unconditional.........................................6
2.5. Reinstatement................................................................7
2.6. Payments.....................................................................7
SECTION 3. REPRESENTATIONS AND WARRANTIES.........................................7
3.1. Representations in Credit Agreements.........................................7
SECTION 4. COVENANTS..............................................................8
4.1. Covenants in Credit Agreements...............................................8
4.2. Issuance of Indebtedness.....................................................8
4.3. Investments..................................................................8
4.4. Activity.....................................................................8
4.5. Distributions................................................................8
4.6. Notices......................................................................8
4.7. Foreign Jurisdictions........................................................8
SECTION 4A. CERTAIN AFFIRMATIVE COVENANTS.........................................8
4A.1 Reports......................................................................8
4A.2 Certificates; Other Information..............................................9
4A.3 Inspection of Property, Books and Records; Discussions.......................9
4A.4 Notices......................................................................9
4A.5 Further Assurance...........................................................10
4A.6 Additional Collateral.......................................................10
4A.7 Payment of Obligations......................................................10
SECTION 5. MISCELLANEOUS.........................................................11
5.1. Amendments in Writing.......................................................11
5.2. Notices.....................................................................11
5.3. No Waiver by Course of Conduct; Cumulative Remedies.........................11
5.4. Enforcement Expenses; Indemnification.......................................11
5.5. Successors and Assigns......................................................12
5.6. Counterparts................................................................12
i
TABLE OF CONTENTS
Page
----
5.7. Severability...............................................................12
5.8. Section Headings...........................................................12
5.9. Integration................................................................12
5.10. GOVERNING LAW..............................................................12
5.11. SUBMISSION TO JURISDICTION; WAIVERS........................................12
5.12. Acknowledgments............................................................13
5.13. WAIVER OF JURY TRIAL.......................................................13
5.14. Releases...................................................................14
ii
SECOND AMENDED AND RESTATED PARENT GUARANTEE AGREEMENT
This SECOND AMENDED AND RESTATED PARENT GUARANTEE AGREEMENT,
dated as of April 24, 2000, is made by L-3 Communications Holdings, Inc., a
Delaware corporation ("Holdings"), in favor of Bank of America, N.A. (f/k/a Bank
of America NT & SA) as Administrative Agent (in such capacity, the
"Administrative Agent") for (a) the banks and other financial institutions or
entities (collectively, the "Facility A Lenders") from time to time parties to
the Second Amended and Restated Credit Agreement, dated as of April 24, 2000 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Facility A Credit Agreement"), among L-3 Communications Corporation, a Delaware
corporation (the "Borrower"), the Facility A Lenders, Xxxxxx Commercial Paper
Inc. ("LCPI"), as documentation agent (in such capacity, the "Facility A
Documentation Agent"), LCPI as syndication agent (in such capacity, the
"Facility A Syndication Agent"; and together with the Facility A Documentation
Agent and the Administrative Agent, the "Facility A Agents"), LCPI and Banc of
America Securities LLC (f/k/a BancAmerica Xxxxxxxxx Xxxxxxxx) as arrangers (in
such capacity, the "Facility A Arrangers"), the Administrative Agent and certain
other entities named therein as Co-Agents, which amended and restated in its
entirety that certain Amended and Restated Credit Agreement dated as of August
13, 1998 (as amended, restated, supplemented or otherwise modified prior to the
date hereof, the "Original Facility A Credit Agreement") among the Borrower, the
Agents party thereto (the "Original Facility A Agents", including the
Administrative Agent party thereto, the "Original Facility A Administrative
Agent"), the lenders party thereto (the "Original Facility A Lenders") and LCPI
and BancAmerica Xxxxxxxxx Xxxxxxxx (n/k/a Banc of America Securities LLC ) as
arrangers, and (b) the banks and other financial institutions or entities (the
"Facility B Lenders"; and together with the Facility A Lenders, the "Lenders"),
from time to time parties to the Amended and Restated 364 Day Credit Agreement,
dated as of April 24, 2000 (as amended, restated, supplemented or otherwise
modified from time to time, the "Facility B Credit Agreement"), among the
Borrower, the Administrative Agent, LCPI as documentation agent (in such
capacity, the "Facility B Documentation Agent"), LCPI as syndication agent (in
such capacity, the "Facility B Syndication Agent"; and together with the
Facility B Documentation Agent and the Administrative Agent, the "Facility B
Agents"), LCPI and Banc of America Securities LLC (f/k/a BankAmerica Xxxxxxxxx
Xxxxxxxx) as arrangers (in such capacity, the "Facility B Arrangers"), the
Administrative Agent and certain other entities named therein as Co-Agents,
which amended and restated in its entirety that certain 364 Day Credit Agreement
dated as of August 13, 1998 (as amended, restated, supplemented or otherwise
modified prior to the date hereof, the "Original Facility B Credit Agreement";
and together with the Original Facility A Credit Agreement, the "Original Credit
Agreements") among the Borrower, the Administrative Agent, the "Original
Facility B Administrative Agent"; and together with the Original Facility A
Administrative Agent, the "Original Administrative Agents"), the other Agents
party thereto (together with the Original Facility B Administrative Agent, the
"Original Facility B Agents"; and together with the Original Facility A Agents,
the Original Agents"), the lenders party thereto (the "Original Facility B
Lenders"; and together with the Original Facility A Lenders, the "Original
Lenders") and LCPI and BancAmerica Xxxxxxxxx Xxxxxxxx (n/k/a Banc of America
Securities LLC) as arrangers, and (c) the banks and other financial
institutions or entities (the "Facility C Lenders"; and together with the
Facility A Lenders and the Facility B Lenders, the "Lenders"), from time to time
parties to the New 364 Day Credit Agreement, dated as of April 24, 2000 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Facility C Credit Agreement"; and together with the Facility A Credit Agreement
and the Facility B Credit Agreement, each a "Credit Agreement", and
collectively, the "Credit Agreements"), among the Borrower, the Administrative
Agent, LCPI as documentation agent (in such capacity, the "Facility C
Documentation Agent"), LCPI as syndication agent (in such capacity, the
"Facility C Syndication Agent"; and together with the Facility C Documentation
Agent and the Administrative Agent, the "Facility C Agents"; and together with
the Facility A Agents and the Facility B Agents, the "Agents"), Xxxxxx Brothers,
Inc. ("LBI") and Banc of America Securities LLC as arrangers (in such capacity,
the "Facility C Arrangers"; and together with the Facility A Arrangers and the
Facility B Arrangers, the "Arrangers"), the Administrative Agent and certain
other entities named therein as Managing Agents.
W I T N E S S E T H:
WHEREAS, Holdings has executed and delivered to the Original
Administrative Agents for the ratable benefit of the Original Lenders and the
Original Agents, the Amended and Parent Guarantee Agreement (the "Prior
Guarantee"), dated as of August 13, 1998 in respect of the obligations of the
Borrower to the Administrative Agent for the ratable benefit of the Original
Lenders and the Original Agents including its obligations under the Original
Credit Agreement;
WHEREAS, Holdings, the Agents, the Arrangers and the Lenders
wish to amend and restate the Prior Guarantee to, inter alia, reflect the
amending and restating of the Original Credit Agreements and the entering into
of the Facility C Credit Agreement; and
WHEREAS, it is a condition precedent to the several
obligations of the Lenders to make their respective extensions of credit to or
for the benefit of the Borrower under the Credit Agreements that Holdings shall
have executed and delivered this Agreement to the Administrative Agent for the
ratable benefit of the Lenders and the Agents.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to induce the Agents and the Lenders to enter into
the Credit Agreements, and to induce the Lenders to make their respective
extensions of credit to or for the benefit of the Borrower thereunder, Holdings
hereby agrees with the Administrative Agent, for the ratable benefit of the
Lenders and the Agents, to amend and restate the Prior Guarantee in its entirety
to read as provided herein:
SECTION 1. DEFINED TERMS
1.1 Definitions.
2
(a) Unless otherwise defined herein, terms defined in the Credit
Agreements and used herein shall have the collective meanings given to them in
each of the Credit Agreements.
(b) The following terms shall have the following meanings:
"Agreement": this Second Amended and Restated Parent Guarantee
Agreement, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"Guaranteed Obligations": has the meaning set forth in Section
2.1(a) hereof.
"Obligations": the collective reference to the unpaid principal
of and interest on the Loans and Reimbursement Obligations under each
of the Credit Agreements and all other obligations and liabilities of
the Borrower and any other Credit Party (including, without
limitation), (i) interest accruing at the then applicable rate
provided in each of the Credit Agreements after the maturity of the
Loans and Reimbursement Obligations and interest accruing at the then
applicable rate provided in each of the Credit Agreements after the
filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the
Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding and (ii) any exposure of any
Lender under any lockbox arrangement, controlled disbursement
arrangement, checking accounts or other similar arrangements
(collectively, "Cash Management Agreements") with or on behalf of the
Borrower and/or its Subsidiaries to any Agent or any Lender (or, in
the case of any Interest Rate Agreement referred to below, any
Affiliate of any Lender), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, any of
the Credit Agreements, this Agreement, the other Credit Documents, any
Letter of Credit or any Interest Rate Agreement entered into by the
Borrower with any Lender (or any Affiliate of any Lender) or any Cash
Management Agreement entered into by the Borrower or any Subsidiary of
the Borrower or any other Credit Party with any Lender or any other
document made, delivered or given in connection therewith, in each
case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel
to the Agents and the Lenders that are required to be paid by the
Borrower or any other Credit Party pursuant to the terms of any of the
foregoing agreements).
"Parent Distributions": the collective reference to any of the
following, whether direct or indirect: (i) the declaration or payment
of any dividend or other distribution on or in respect of any shares
of any class of any Capital Stock of Holdings, now or hereafter
outstanding, (ii) any redemption, retirement, sinking fund or similar
payment, purchase or other retirement for value of any such shares of
Capital Stock of Holdings, now or hereafter outstanding, (iii) any
other payment by Holdings to the holder
3
of any shares of any class of the Capital Stock of Holdings in their
capacity as such and (iv) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of Capital Stock of Holdings now or
hereafter outstanding; provided, however, that the term "Parent
Distribution" shall not include payments of salaries or bonuses to
employees of Holdings in their capacities as such.
"Permitted Parent Distributions": (a) the issuance by Holdings of
options or other equity securities of Holdings to outside directors,
members of management or employees of Holdings in the ordinary course
of business, (b) cash payments made in lieu of issuing fractional
shares of Holdings' common stock or preferred stock, (c) cash payments
to repurchase Capital Stock of Holdings solely with the proceeds of
dividends received from the Borrower pursuant to clause (C) of the
definition of Permitted Stock Payments in the Credit Agreements;
provided, however, that such payments do not exceed $5,000,000, and
(d) the application of up to $2,000,000 of the proceeds of the sale of
common stock of Holdings to the repurchase of common stock of Holdings
from management of Holdings or the Borrower.
"Subscription Agreements": (a) that certain common stock
agreement dated April 30, 1997, by and between Xxxxx X. Xxxxx and
Holdings and (b) that certain common stock agreement dated April 30,
1997, by and between Xxxxxx X. XxXxxxx and Holdings, in each case, as
in effect on the date hereof.
1.2 Other Definitional Provisions.
(a) The words "hereof," "herein", "hereto" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section and
Schedule references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
1.3 Effect of Restatement. This Agreement amends, restates and
supersedes the Prior Guarantee; provided, that (i) each party hereto
acknowledges and agrees that there is no defense, setoff or counterclaim of any
kind, nature or description to Guaranteed Obligations with respect to any
Obligations arising prior to the Closing Date and (ii) all references in the
other Credit Documents to the Prior Guarantee shall be deemed to refer without
further amendment to this Agreement.
SECTION 2. GUARANTEE
2.1 Guarantee.
(a) Holdings hereby unconditionally and irrevocably guarantees to the
Administrative Agent, for the ratable benefit of the Lenders and the Agents and
their respective
4
successors, endorsees, transferees and assigns, the prompt and complete payment
and performance by the Borrower and each of the other Credit Parties when due
(whether at the stated maturity, by acceleration or otherwise) of the Borrower's
and such other Credit Party's Obligations (collectively, the "Guaranteed
Obligations"). The liability of Holdings hereunder shall be joint and several
with the Obligations of the other Guarantors.
(b) Anything herein or in any other Credit Document to the contrary
notwithstanding, the maximum liability of Holdings hereunder and under the other
Credit Documents shall in no event exceed the maximum amount which can be
guaranteed by Holdings under applicable federal and state laws relating to the
insolvency of debtors without rending the guarantee of Holdings hereunder
unenforceable.
(c) Holdings agrees that the Guaranteed Obligations may at any time and
from time to time exceed the amount of the liability of Holdings hereunder
without impairing the guarantee contained in this Section 2 or affecting the
rights and remedies of the Administrative Agent, on behalf of the other Agents
and the Lenders, hereunder.
(d) The guarantee contained in this Section 2 shall remain in full
force and effect until all the Guaranteed Obligations and the obligations of
Holdings under this Agreement shall have been satisfied by payment in full, no
Letter of Credit shall be outstanding and the Commitments shall be terminated
(notwithstanding that from time to time during the term of each of the Credit
Agreements, no Loans or Letters of Credit may be outstanding).
(e) No indefeasible payment made by any Credit Party or any other
Person or received or collected by any of the Agents or the Lenders by virtue of
any action or proceeding or any set-off or appropriation or application at any
time or from time to time in reduction of or in payment of the Guaranteed
Obligations shall be deemed to release the liability of Holdings hereunder, and
Holdings shall, notwithstanding any such payment (other than any payment made by
Holdings in respect of the Guaranteed Obligations or any payment received or
collected from Holdings in respect of the Guaranteed Obligations), remain liable
for the Guaranteed Obligations up to the maximum liability of Holdings hereunder
until the Guaranteed Obligations are paid in full, no Loan or Letter of Credit
shall be outstanding and the Commitments are terminated.
2.2 No Subrogation. Notwithstanding any payment made by Holdings
hereunder or any set-off or application of funds of Holdings by any of the
Agents or Lenders, Holdings shall not be entitled to be subrogated to any of the
rights of any of the Agents or Lenders against the other Credit Parties or any
collateral security or guarantee or right of offset held by any of the Agents or
Lenders for the payment of all or any portion of the Guaranteed Obligations, nor
shall Holdings seek or be entitled to seek any contribution or reimbursement
from any of the other Credit Parties in respect of payments made by Holdings
hereunder, until all amounts owing to the Agents and the Lenders by the other
Credit Parties on account of the Guaranteed Obligations are paid in full, no
Letter of Credit shall be outstanding and the Commitments are terminated. If any
amount shall be paid to Holdings on account of such subrogation rights at any
time when all of the Guaranteed Obligations shall not have been paid in full,
such amount shall be held by Holdings in trust for the Agents and the Lenders,
segregated
5
from other funds of Holdings, and shall, forthwith upon receipt by Holdings, be
turned over to the Administrative Agent in the exact form received by Holdings
(duly indorsed by Holdings to the Administrative Agent, if required), to be
applied against the Guaranteed Obligations, whether matured or unmatured, in
such order as the Required Lenders may determine.
2.3 Amendments, etc. with respect to the Guaranteed Obligations.
Holdings shall remain obligated hereunder notwithstanding that, without any
reservation of rights against Holdings and without notice to or further assent
by Holdings, any demand for payment of any of the Guaranteed Obligations made by
any of the Agents or Lenders may be rescinded by such Agent or Lender and any of
the Guaranteed Obligations continued, and the Guaranteed Obligations, or the
liability of any other Person upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by any of the Agents
or Lenders, and the Credit Agreements, the other Credit Documents and any other
documents executed and delivered in connection therewith may be amended,
restated, modified, supplemented or terminated, in whole or in part, as the
Administrative Agent (or the Required Lenders or all Lenders, as the case may
be) may deem advisable from time to time, and any collateral security, guarantee
or right of offset at any time held by any of the Agents or Lenders for the
payment of the Guaranteed Obligations may be sold, exchanged, waived,
surrendered or released. None of the Agents or Lenders shall have any obligation
to protect, secure, perfect or insure any Lien at any time held by it as
security for the Guaranteed Obligations or for the guarantee contained in this
Section 2 or any property subject thereto.
2.4 Guarantee Absolute and Unconditional. Holdings waives any and all
notice of the creation, renewal, extension or accrual of any of the Guaranteed
Obligations and notice of or proof of reliance by any of the Agents or Lenders
upon the guarantee contained in this Section 2 or acceptance of the guarantee
contained in this Section 2; the Guaranteed Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon the guarantee contained in this
Section 2; and all dealings between the Credit Parties, on the one hand, and the
Agents and the Lenders, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon the guarantee
contained in this Section 2. Holdings waives diligence, presentment, protest,
demand for payment and notice of default or nonpayment to or upon any of the
Credit Parties with respect to the Guaranteed Obligations. Holdings understands
and agrees that the guarantee contained in this Section 2 shall be construed as
a continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity or enforceability of the Credit Agreements, this Agreement or
any other Credit Document, any of the Guaranteed Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by any of the Agents or Lenders,
(b) any defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by any of the
other Credit Parties or any other Person against any of the Agents or the
Lenders, or (c) any other circumstance whatsoever (with or without notice to or
knowledge of any of the Credit Parties) which constitutes, or might be construed
to constitute, an equitable or legal discharge of any of the other Credit
Parties for the
6
Guaranteed Obligations, or of Holdings under the guarantee contained in this
Section 2, in bankruptcy or in any other instance. When making any demand
hereunder or otherwise pursuing its rights and remedies hereunder against
Holdings, any of the Agents or Lenders may, but shall be under no obligation to,
make a similar demand on or otherwise pursue such rights and remedies as it may
have against any of the other Credit Parties or any other Person or against any
collateral security or guarantee for the Guaranteed Obligations or any right of
offset with respect thereto, and any failure by any of the Agents or Lenders to
make any such demand, to pursue such other rights or remedies or to collect any
payments from any of the other Credit Parties or any other Person or to realize
upon any such collateral security or guarantee or to exercise any such right of
offset, or any release of any of the other Credit Parties or any other Person or
any such collateral security, guarantee or right of offset, shall not relieve
Holdings of any obligation or liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of any of the Agents or Lenders against Holdings. For the
purposes hereof "demand" shall include the commencement and continuance of any
legal proceedings.
2.5 Reinstatement. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Guaranteed Obligations is rescinded
or must otherwise be restored or returned by the any of the Agents or Lenders
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
any of the Credit Parties, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, any
of the Credit Parties or any substantial part of its property, or otherwise, all
as though such payments had not been made.
2.6 Payments. Holdings hereby guarantees that payments hereunder will
be paid to the Administrative Agent without set-off or counterclaim in Dollars
at the office of the Administrative Agent located at 0000 Xxxxxxx Xxxx., 0xx
Xxxxx, Xxxxxxx, XX 00000; Attention: Agency Administrative Services #5596,
Xxxxxxxxx X. Xxxxxx; Fax: (000) 000-0000.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit Agreement
and to induce the Lenders to make their respective extensions of credit to or
for the benefit of the Borrower thereunder, Holdings hereby represents and
warrants to each of the Agents and the Lenders that:
3.1 Representations in Credit Agreements. The representations and
warranties set forth in Section 4 of the Credit Agreements, each of which is
hereby incorporated herein by reference, are true and correct, and each Agent
and Lender shall be entitled to rely on each of them as if they were fully set
forth herein, provided that each reference in each such representation and
warranty to the Borrower's knowledge shall, for the purposes of this Section
3.1, be deemed to be a reference to Holdings' knowledge.
7
SECTION 4. COVENANTS
Holdings covenants and agrees with the Agents and the Lenders that,
from and after the date of this Agreement until the Guaranteed Obligations shall
have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
4.1 Covenants in Credit Agreements. Holdings shall take, or shall
refrain from taking, as the case may be, each action that is necessary to be
taken or not taken, as the case may be, so that no Default or Event of Default
is caused by the failure to take such action or to refrain from taking such
action by Holdings or any of its Subsidiaries.
4.2 Issuance of Indebtedness. Holdings shall not issue, incur or assume
any Indebtedness or any Guarantee Obligations other than Indebtedness and
Guarantee Obligations under the Credit Documents to which it is a party.
4.3 Investments. Holdings shall not have outstanding or acquire any
Investment in any Person other than Investments in Capital Stock of the Borrower
and Cash Equivalents.
4.4 Activity. Holdings shall not engage in any business activity other
than its ownership and voting of the Capital Stock of the Borrower and the
performance of its obligations under the Credit Documents to which it is a party
and the Transaction Documents to which it is a party.
4.5 Distributions. Holdings shall not make any Parent Distributions
other than Parent Distributions payable solely in common stock of Holdings and
Permitted Parent Distributions.
4.6 Notices. Holdings shall promptly give notice to the Administrative
Agent of the occurrence of any Default or Event of Default.
4.7 Foreign Jurisdictions. No later than the Closing Date, Holdings
shall be 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 to the extent
that the failure to so qualify could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
SECTION 4A. CERTAIN AFFIRMATIVE COVENANTS
Holdings covenants and agrees with the Agents and the Lenders
that, from and after the date of this Agreement until the Guaranteed Obligations
shall have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
4A.1 Reports. Holdings will deliver to the Administrative
Agent promptly upon their becoming available, copies of all consolidated or
consolidating financial statements, reports, notices and proxy statements sent
or made available generally by Holdings to its security holders,
8
of all regular and periodic reports and all registrations statements and
prospectuses, if any, filed by Holdings with any securities exchange or with the
Securities and Exchange Commission and of all press releases and other
statements made available generally by Holdings to the public concerning
Holdings.
4A.2 Certificates; Other Information. Holdings shall furnish to the
Administrative Agent with copies for each Lender:
(a) concurrently with the delivery by the Borrower of the financial
statements referred to in subsection 6.1 of each of the Credit Agreements, a
certificate of a Responsible Officer of Holdings stating that, to the best of
such Officer's knowledge, during such period (i) no Subsidiary has been formed
or acquired and (ii) such Officer has obtained no knowledge of any Default or
Event of Default except as specified in such certificate; and
(b) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
4A.3 Inspection of Property, Books and Records; Discussions. Holdings
shall keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time on a Business Day and as often as may reasonably be desired and to discuss
the business, operations, properties and financial and other condition of
Holdings and its Subsidiaries with officers and employees of Holdings and its
Subsidiaries and with its independent certified public accountants; provided
that the Administrative Agent or such Lender shall notify Holdings prior to any
contact with such accountants and give Holdings the opportunity to participate
in such discussion; provided, further, that Holdings shall notify the
Administrative Agent of any such visits, inspections or discussions prior to
each occurrence thereof.
4A.4 Notices. Holdings shall promptly give written notice to the
Administrative Agent of:
(a) any (i) default or event of default under any Contractual
Obligation of Holdings or (ii) litigation, investigation or proceeding
which may exist at any time between Holdings and any Governmental
Authority, which in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
(b) any litigation or proceeding affecting Holdings in which the
amount involved is $7,500,000 or more and not covered by insurance or
in which injunctive or similar relief is sought;
(c) the following events, as soon as possible and in any event
within 45 days after Holdings knows or has reason to know thereof: (i)
the occurrence or
9
expected occurrence of any Reportable Event with respect to any plan
(other than a Multiple Employer Plan), a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC
or a Plan or any withdrawal from, or the termination, Reorganization
or Insolvency of, any Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the PBGC or Holdings
or any Commonly Controlled Entity or any Multiemployer Plan with
respect to the withdrawal from, or the terminating, Reorganization or
Insolvency of, any Single Employer Plan or Multiemployer Plan; and
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action Holdings proposes to take with respect thereto.
4A.5 Further Assurance. Upon the request of the Administrative Agent,
Holdings shall promptly perform or cause to be performed any and all acts and
execute or cause to be executed any and all documents (including, without
limitation, financing, statements and continuation statements) for filing under
the provisions of the Uniform Commercial Code or any other Requirement of Law
which are necessary or advisable to maintain in favor of the Administrative
Agent, for the benefit of the Agents and the Lenders, Liens on the Collateral
that are duly perfected in accordance with all applicable Requirements of Law.
4A.6 Additional Collateral. With respect to any Capital Stock acquired
after the Closing Date by Holdings that is intended to be subject to the Lien
created by any of the Pledge Agreements but which is not so subject promptly
(and in any event within 30 days after the acquisition thereof): Holdings shall
(i) execute and deliver to the Administrative Agent such amendments to the
Parent Pledge Agreement or such other documents as the Administrative Agent
shall deem necessary or advisable to grant to the Administrative Agent, for the
benefit of the Lenders, a Lien on such assets, (ii) take all actions necessary
or advisable to cause such Lien to be duly perfected in accordance with all
applicable Requirements of Law, and (iii) if requested by the Administrative
Agent, deliver to the Administrative Agent legal opinions relating to the
matters described in clauses (i) and (ii) immediately preceding, which opinions
shall be in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
4A.7 Payment of Obligations. Holdings shall pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of Holdings or its Subsidiaries, as the case may be;
provided that, notwithstanding the foregoing, Holdings and each of its
Subsidiaries shall have the right to pay any such obligation and in good faith
contest, by proper legal actions or proceedings, the invalidity or amount of
such claims.
10
SECTION 5. MISCELLANEOUS
5.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, restated, supplemented or otherwise modified
except in accordance with subsection 10.1 of each of the Credit Agreements.
5.2 Notices. All notices, requests and demands to or upon the Agents or
Holdings hereunder shall be effected in the manner provided for in subsection
10.2 of each of the Credit Agreements; provided that any such notice, request or
demand to or upon Holdings shall be addressed to Holdings at its notice address
set forth below its signature hereto.
5.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent nor any other Agent or any Lender shall by any act (except
by a written instrument pursuant to Section 5.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of any of the Agents or Lenders, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by any of the Agents or Lenders of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Administrative Agent, on behalf of the other Agents and the
Lenders, would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
5.4 Enforcement Expenses; Indemnification.
(a) Holdings agrees to pay or reimburse each of the Lenders and Agents
for all its costs and expenses incurred in collecting against Holdings under the
guarantee contained in Section 2 or otherwise enforcing or preserving any rights
under this Agreement and the other Credit Documents to which Holdings is a
party, including, without limitation, the fees and disbursements of counsel to
the Administrative Agent and of counsel to each of the other Agents and Lenders.
(b) Holdings agrees to pay, and to save the Agents and the Lenders
harmless from, any and all liabilities with respect to, or resulting from any
delay in paying, any and all stamp, excise, sales or other taxes which may be
payable or determined to be payable in connection with any of the transactions
contemplated by this Agreement.
(c) Holdings agrees to pay, and to save the Agents and the Lenders
harmless from, any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement to the extent the Borrower
would be required to do so pursuant to subsection 10.5 of the applicable Credit
Agreement.
11
(d) The agreements in this Section 5.4 shall survive repayment of the
Guaranteed Obligations and all other amounts payable under the Credit
Agreements, this Agreement and the other Credit Documents.
5.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of Holdings and shall inure to the benefit of the Agents
and the Lenders and their successors and assigns; provided that Holdings may not
assign, transfer or delegate any of its rights or obligations under this
Agreement without the prior written consent of the Required Lenders.
5.6 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
5.7 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
5.8 Section Headings. The Section headings used in this Agreement are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
5.9 Integration. This Agreement and the other Credit Documents
represent the agreement of Holdings, the Agents and the Lenders with respect to
the subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the any of the Agents or Lenders relative to
the subject matter hereof and thereof not expressly set forth or referred to
herein, the Credit Agreements or in the other Credit Documents.
5.10 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
5.11 SUBMISSION TO JURISDICTION; WAIVERS. HOLDINGS HEREBY IRREVOCABLY
AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS TO WHICH IT
IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE
00
XXXXXXXX XXXXXXXX XX XXX XXXX, AND APPELLATE COURTS FROM ANY THEREOF;
(b) 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;
(c) 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 HOLDINGS AT ITS ADDRESS
REFERRED TO IN SECTION 5.2 OR AT SUCH OTHER ADDRESS OF WHICH THE ADMINISTRATIVE
AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE
OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX
IN ANY OTHER JURISDICTION; AND
(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT
MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN
THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
5.12 Acknowledgments. Holdings hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents to which it is a
party;
(b) none of the Agents nor the Lenders has any fiduciary relationship
with or duty to Holdings arising out of or in connection with this Agreement or
any of the other Credit Documents, and the relationship between Holdings, on the
one hand, and the Agents and Lenders, on the other hand, in connection herewith
or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit Documents
or otherwise exists by virtue of the transactions contemplated hereby among the
Agents, among the Agents and/or the Lenders or among Holdings and the Agents
and/or the Lenders.
5.13 WAIVER OF JURY TRIAL. HOLDINGS AND, BY ACCEPTANCE OF THE BENEFITS
HEREOF, EACH OF THE LENDERS AND THE AGENTS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
13
5.14 Releases. At such time as the Loans, the Reimbursement Obligations
and the other Guaranteed Obligations shall have been paid in full, the
Commitments have been terminated and no Letters of Credit shall be outstanding,
this Agreement and all obligations (other than those expressly stated to survive
such termination) of the Administrative Agent and Holdings hereunder shall
terminate, all without delivery of any instrument or performance of any act by
any party, and all rights shall revert to Holdings, and the Administrative Agent
shall execute and deliver to Holdings such documents as Holdings shall
reasonably request to evidence such termination.
[Signature page follows]
14
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be duly executed and delivered as of the date first above written.
L-3 COMMUNICATIONS HOLDINGS, INC.
By:
-------------------------------
Xxxxxxxxxxx X. Xxxxxxx
Vice President-General Counsel
and Secretary
Address for Notices:
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx XxXxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Accepted on behalf of the Agents and
the Lenders as of the date first above
written:
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
By:
----------------------------------
Name: ---------------------------
Title: ---------------------------
S-1
EXHIBIT B-2
TO CREDIT AGREEMENT
================================================================================
SECOND AMENDED AND RESTATED SUBSIDIARY GUARANTEE AGREEMENT
made by
HYGIENETICS ENVIRONMENTAL SERVICES, INC.,
L-3 COMMUNICATIONS ILEX SYSTEMS, INC.,
L-3 COMMUNICATIONS SPD TECHNOLOGIES INC.
L-3 COMMUNICATIONS AYDIN CORPORATION
and
MICRODYNE CORPORATION
in favor of
BANK OF AMERICA, N.A.,
as Administrative Agent
Dated as of April 24, 2000
================================================================================
TABLE OF CONTENTS
Page
SECTION 1. DEFINED TERMS..................................................3
1.1. Definitions..........................................................3
1.2. Other Definitional Provisions........................................4
1.3. Effect of Restatement................................................4
SECTION 2. GUARANTEE......................................................4
2.1. Guarantee............................................................4
2.2. Right of Contribution................................................5
2.3. No Subrogation.......................................................5
2.4. Amendments, etc. with respect to the Guaranteed Obligations..........5
2.5. Guarantee Absolute and Unconditional.................................6
2.6. Reinstatement........................................................7
2.7. Payments.............................................................7
SECTION 3. REPRESENTATIONS AND WARRANTIES.................................7
3.1. Representations in Credit Agreements.................................7
SECTION 4. COVENANTS......................................................7
4.1. Covenants in Credit Agreements.......................................7
SECTION 5. MISCELLANEOUS..................................................8
5.1. Amendments in Writing................................................8
5.2. Notices..............................................................8
5.3. No Waiver by Course of Conduct; Cumulative Remedies..................8
5.4. Enforcement Expenses; Indemnification................................8
5.5. Successors and Assigns...............................................9
5.6. Counterparts.........................................................9
5.7. Severability.........................................................9
5.8. Section Headings.....................................................9
5.9. Integration..........................................................9
5.10. GOVERNING LAW.......................................................9
5.11. SUBMISSION TO JURISDICTION; WAIVERS.................................9
5.12. Acknowledgments....................................................10
5.13. WAIVER OF JURY TRIAL...............................................10
5.14. Additional Guarantors..............................................11
5.15. Releases...........................................................11
i
SECOND AMENDED AND RESTATED SUBSIDIARY GUARANTEE AGREEMENT
This SECOND AMENDED AND RESTATED SUBSIDIARY GUARANTEE AGREEMENT, dated
as of April 24, 2000, is made by each of the signatories hereto (together with
any other entity that may become a party hereto as provided herein, the
"Guarantors"), in favor of Bank of America, N.A., as Administrative Agent (in
such capacity, the "Administrative Agent") for (a) the banks and other financial
institutions or entities (collectively, the "Facility A Lenders") from time to
time parties to the Second Amended and Restated Credit Agreement, dated as of
April 24, 2000 (as amended, restated, supplemented or otherwise modified from
time to time, the "Facility A Credit Agreement"), among L-3 Communications
Corporation, a Delaware corporation (the "Borrower"), the Facility A Lenders,
Xxxxxx Commercial Paper Inc. ("LCPI"), as documentation agent (in such capacity,
the "Facility A Documentation Agent"), LCPI as syndication agent (in such
capacity, the "Facility A Syndication Agent"; and together with the Facility A
Documentation Agent and the Administrative Agent, the "Facility A Agents"), LCPI
and Banc of America Securities LLC (f/k/a BancAmerica Xxxxxxxxx Xxxxxxxx) as
arrangers (in such capacity, the "Facility A Arrangers"), the Administrative
Agent and certain other entities named therein as Co-Agents, which amended and
restated in its entirety that certain Amended and Restated Credit Agreement
dated as of August 13, 1998 (as amended, restated, supplemented or otherwise
modified prior to the date hereof, the "Original Facility A Credit Agreement")
among the Borrower, the Agents party thereto (the "Original Facility A Agents",
including the Administrative Agent party thereto, the "Original Facility A
Administrative Agent"), the lenders party thereto (the "Original Facility A
Lenders") and LCPI and BancAmerica Xxxxxxxxx Xxxxxxxx (n/k/a Banc of America
Securities LLC ) as arrangers, and (b) the banks and other financial
institutions or entities (the "Facility B Lenders"; and together with the
Facility A Lenders, the "Lenders"), from time to time parties to the Amended and
Restated 364 Day Credit Agreement, dated as of April 24, 2000 (as amended,
restated, supplemented or otherwise modified from time to time, the "Facility B
Credit Agreement"), among the Borrower, the Administrative Agent, LCPI as
documentation agent (in such capacity, the "Facility B Documentation Agent"),
LCPI as syndication agent (in such capacity, the "Facility B Syndication Agent";
and together with the Facility B Documentation Agent and the Administrative
Agent, the "Facility B Agents"), LCPI and Banc of America Securities LLC (f/k/a
BankAmerica Xxxxxxxxx Xxxxxxxx) as arrangers (in such capacity, the "Facility B
Arrangers"), the Administrative Agent and certain other entities named therein
as Co-Agents, which amended and restated in its entirety that certain 364 Day
Credit Agreement dated as of August 13, 1998 (as amended, restated, supplemented
or otherwise modified prior to the date hereof, the "Original Facility B Credit
Agreement"; and together with the Original Facility A Credit Agreement, the
"Original Credit Agreements") among the Borrower, the Administrative Agent (the
"Original Facility B Administrative Agent"; and together with the Original
Facility A Administrative Agent, the "Original Administrative Agents"), the
other Agents party thereto (together with the Original Facility B Administrative
Agent, the "Original Facility B Agents"; and together with the Original Facility
A Agents, the Original Agents"), the lenders party thereto (the "Original
Facility B Lenders"; and together with the Original Facility A Lenders, the
"Original Lenders") and LCPI and BancAmerica Xxxxxxxxx Xxxxxxxx (n/k/a Banc of
America Securities LLC ) as arrangers, and (c) the banks and other financial
institutions or entities (the
"Facility C Lenders"; and together with the Facility A Lenders and the
Facility B Lenders, the "Lenders"), from time to time parties to the New
364 Day Credit Agreement, dated as of April 24, 2000 (as amended, restated,
supplemented or otherwise modified from time to time, the "Facility C Credit
Agreement"; and together with the Facility A Credit Agreement and the Facility B
Credit Agreement, each a "Credit Agreement", and collectively, the "Credit
Agreements"), among the Borrower, the Administrative Agent, LCPI as
documentation agent (in such capacity, the "Facility C Documentation Agent"),
LCPI as syndication agent (in such capacity, the "Facility C Syndication Agent";
and together with the Facility C Documentation Agent and the Administrative
Agent, the "Facility C Agents"; and together with the Facility A Agents and the
Facility B Agents, the "Agents"), Xxxxxx Brothers, Inc. ("LBI") and Banc of
America Securities LLC as arrangers (in such capacity, the "Facility C
Arrangers"; and together with the Facility A Arrangers and the Facility B
Arrangers, the "Arrangers"), the Administrative Agent and certain other entities
named therein as Managing Agents.
W I T N E S S E T H:
WHEREAS, the Guarantors are parties to an Amended and Restated
Subsidiary Guarantee Agreement dated as of August 13, 1998 (the "Prior
Guarantee"), in respect of the obligations of the Borrower to the Original
Administrative Agents for the ratable benefit of the Original Lenders and the
Original Agents including its obligations under the Original Credit Agreements;
WHEREAS, the Guarantors, Agents, Arrangers and Lenders wish to amend
and restate the Prior Guarantee to, inter alia, reflect the amending and
restating of the Original Credit Agreements and the entering into of the
Facility C Credit Agreement;
WHEREAS, the Borrower is a member of an affiliated group of companies
that includes each other Guarantor;
WHEREAS, the proceeds of the extensions of credit under the Credit
Agreements will be used in part to enable the Borrower to make valuable
transfers to one or more of the other Guarantors in connection with the
operation of their respective businesses;
WHEREAS, the Borrower and the other Guarantors are engaged in related
businesses, and each Guarantor will derive substantial direct and indirect
benefit from the making of the extensions of credit under the Credit Agreements;
and
WHEREAS, it is a condition precedent to the several obligations of the
Lenders to make their respective extensions of credit to or for the benefit of
the Borrower under the Credit Agreements that the Guarantors shall have executed
and delivered this Agreement to the Administrative Agent for the ratable benefit
of the Lenders and the Agents.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to induce the Agents and the Lenders to enter into
the Credit Agreements, and to induce the Lenders to make their respective
extensions of credit to or for the benefit of the Borrower
2
thereunder, each Guarantor hereby agrees with the Administrative Agent, for the
ratable benefit of the Lenders and the Agents, to amend and restate the Prior
Guarantee in its entirety to read as provided herein:
SECTION 1. DEFINED TERMS
1.1 Definitions.
(a) Unless otherwise defined herein, terms defined in the Credit
Agreements and used herein shall have the collective meanings given to them in
each of the Credit Agreements.
(b) The following terms shall have the following meanings:
"Agreement": this Second Amended and Restated Subsidiary Guarantee
Agreement, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
"Guarantors": the collective reference to each Guarantor.
"Guaranteed Obligations": has the meaning set forth in Section
2.1(a) hereof.
"Obligations": the collective reference to the unpaid principal of
and interest on the Loans and Reimbursement Obligations under each of the
Credit Agreements and all other obligations and liabilities of the Borrower
and any other Credit Party (including, without limitation), (i) interest
accruing at the then applicable rate provided in each of the Credit
Agreements after the maturity of the Loans and Reimbursement Obligations
and interest accruing at the then applicable rate provided in each of the
Credit Agreements after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
to the Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding and (ii) any exposure of any Lender
under any lockbox arrangement, controlled disbursement arrangement,
checking accounts or other similar arrangements (collectively, "Cash
Management Agreements") with or on behalf of the Borrower and/or its
Subsidiaries) to any Agent or any Lender (or, in the case of any Interest
Rate Agreement referred to below, any Affiliate of any Lender), whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in
connection with, any of the Credit Agreements, this Agreement, the other
Credit Documents, any Letter of Credit or any Interest Rate Agreement
entered into by the Borrower or any other Credit Party with any Lender (or
any Affiliate of any Lender) or any Cash Management Agreement entered into
by the Borrower or any Subsidiary of the Borrower with any Lender or any
other document made, delivered or given in connection therewith, in each
case whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the
3
Agents and the Lenders that are required to be paid by the Borrower or any
other Credit Party pursuant to the terms of any of the foregoing
agreements).
1.2 Other Definitional Provisions.
(a) The words "hereof," "herein", "hereto" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section and
Schedule references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
1.3 Effect of Restatement. This Agreement amends, restates and
supersedes the Prior Guarantee; provided, that (i) each party hereto
acknowledges and agrees that there is no defense, setoff or counterclaim of any
kind, nature or description to Guaranteed Obligations with respect to any
Obligations arising prior to the Closing Date and (ii) all references in the
other Credit Documents to the Prior Guarantee shall be deemed to refer without
further amendment to this Agreement.
SECTION 2. GUARANTEE
2.1 Guarantee.
(a) Each of the Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantees to the Administrative Agent, for the
ratable benefit of the Lenders and the Agents and their respective successors,
endorsees, transferees and assigns, the prompt and complete payment and
performance by the Borrower and each of the other Credit Parties when due
(whether at the stated maturity, by acceleration or otherwise) of the Borrower's
and such other Credit Party's Obligations (collectively, the "Guaranteed
Obligations"). The liability of each of the Guarantors hereunder shall be joint
and several with the Obligations of all other Guarantors.
(b) Anything herein or in any other Credit Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Credit Documents shall in no event exceed the maximum amount which can be
guaranteed by such Guarantor under applicable federal and state laws relating to
the insolvency of debtors without rendering the guarantee of such Guarantor
hereunder unenforceable.
(c) Each Guarantor agrees that the Guaranteed Obligations may at any
time and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Section 2 or
affecting the rights and remedies of the Administrative Agent, on behalf of the
other Agents and the Lenders hereunder.
(d) The guarantee contained in this Section 2 shall remain in full
force and effect until all the Guaranteed Obligations and the obligations of
each Guarantor under this
4
Agreement shall have been satisfied by payment in full, no Letter of Credit
shall be outstanding and the Commitments shall be terminated, notwithstanding
that from time to time during the term of each of the Credit Agreements, no
Loans or Letters of Credit may be outstanding.
(e) No indefeasible payment made by any Credit Party or any other
Person or received or collected by any of the Agents or the Lenders by virtue of
any action or proceeding or any set-off or appropriation or application at any
time or from time to time in reduction of or in payment of the Guaranteed
Obligations shall be deemed to release the liability of any Guarantor hereunder,
and each Guarantor shall, notwithstanding any such payment (other than any
payment made by such Guarantor in respect of the Guaranteed Obligations or any
payment received or collected from such Guarantor in respect of the Guaranteed
Obligations), remain liable for the Guaranteed Obligations up to the maximum
liability of such Guarantor hereunder until the Guaranteed Obligations are paid
in full, no Loan or Letter of Credit shall be outstanding and the Commitments
are terminated.
2.2 Right of Contribution. Each Guarantor hereby agrees that to the
extent that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder which has not paid
its proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 2.3. The provisions of
this Section 2.2 shall in no respect limit the obligations and liabilities of
any Guarantor to the Agents and the Lenders, and each Guarantor shall remain
jointly and severally liable to the Agents and the Lenders for the full amount
guaranteed by such Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any Guarantor
hereunder or any set-off or application of funds of any Guarantor by any of the
Agents or Lenders, no Guarantor shall be entitled to be subrogated to any of the
rights of any of the Agents or Lenders against the other Credit Parties or any
collateral security or guarantee or right of offset held by any of the Agents or
Lenders for the payment of all or any portion of the Guaranteed Obligations, nor
shall any Guarantor seek or be entitled to seek any contribution or
reimbursement from any of the other Credit Parties in respect of payments made
by such Guarantor hereunder, until all amounts owing to the Agents and the
Lenders by the other Credit Parties on account of any of the Obligations are
paid in full, no Letter of Credit shall be outstanding and the Commitments are
terminated. If any amount shall be paid to any Guarantor on account of such
subrogation rights at any time when all of the Guaranteed Obligations shall not
have been paid in full, such amount shall be held by such Guarantor in trust for
the Agents and the Lenders, segregated from other funds of such Guarantor, and
shall, forthwith upon receipt by such Guarantor, be turned over to the
Administrative Agent in the exact form received by such Guarantor (duly indorsed
by such Guarantor to the Administrative Agent, if required), to be applied
against the Guaranteed Obligations, whether matured or unmatured, in such order
as the Required Lenders may determine.
2.4 Amendments, etc. with respect to the Guaranteed Obligations. Each
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any
5
demand for payment of any of the Guaranteed Obligations made by any of the
Agents or Lenders may be rescinded by such party and any of the Guaranteed
Obligations continued, and the Guaranteed Obligations, or the liability of any
other Person upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by any of the Agents or Lenders,
and the Credit Agreements, the other Credit Documents and any other documents
executed and delivered in connection therewith may be amended, restated,
modified, supplemented or terminated, in whole or in part, as the Administrative
Agent (or the Required Lenders or all Lenders, as the case may be) may deem
advisable from time to time, and any collateral security guarantee or right of
offset at any time held by any of the Agents or Lenders for the payment of the
Guaranteed Obligations may be sold, exchanged, waived, surrendered or released.
None of the Agents or Lenders shall have any obligation to protect, secure,
perfect or insure any Lien at any time held by it as security for the Guaranteed
Obligations or for the guarantee contained in this Section 2 or any property
subject thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Guaranteed Obligations and notice of or proof of reliance by any of the Agents
or Lenders upon the guarantee contained in this Section 2 or acceptance of the
guarantee contained in this Section 2; the Guaranteed Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon the guarantee
contained in this Section 2; and all dealings between the Borrower and any of
the Guarantors, on the one hand, and the Agents and the Lenders, on the other
hand, likewise shall be conclusively presumed to have been had or consummated in
reliance upon the guarantee contained in this Section 2. Each Guarantor waives
diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon any of the Credit Parties with respect to the Guaranteed
Obligations. Each Guarantor understands and agrees that the guarantee contained
in this Section 2 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or enforceability of the
Credit Agreements, this Agreement or any other Credit Document, any of the
Guaranteed Obligations or any other collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to time held by
any of the Agents or Lenders, (b) any defense, set-off or counterclaim (other
than a defense of payment or performance) which may at any time be available to
or be asserted by any of the other Credit Parties or any other Person against
any of the Agents or Lenders, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of any of the Credit Parties) which constitutes,
or might be construed to constitute, an equitable or legal discharge of any of
the Credit Parties for the Guaranteed Obligations, or of such Guarantor under
the guarantee contained in this Section 2, in bankruptcy or in any other
instance. When making any demand hereunder or otherwise pursuing its rights and
remedies hereunder against any Guarantor, any of the Agents or Lenders may, but
shall be under no obligation to, make a similar demand on or otherwise pursue
such rights and remedies as it may have against any of the other Credit Parties
or any other Person or against any collateral security or guarantee for the
Guaranteed Obligations or any right of offset with respect thereto, and any
failure by any of the Agents or Lenders to make any such demand, to pursue such
other rights or remedies or to
6
collect any payments from any of the other Credit Parties or any other Person or
to realize upon any such collateral security or guarantee or to exercise any
such right of offset, or any release of any of the other Credit Parties or any
other Person or any such collateral security, guarantee or right of offset,
shall not relieve any Guarantor of any obligation or liability hereunder, and
shall not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of any of the Agents or Lenders against any
Guarantor. For the purposes hereof "demand" shall include the commencement and
continuance of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Guaranteed Obligations is rescinded
or must otherwise be restored or returned by and of the Agents or Lenders upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of any of
the Credit Parties, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, any of the
Credit Parties or any substantial part of its property, or otherwise, all as
though such payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that payments hereunder
will be paid to the Administrative Agent without set-off or counterclaim in
Dollars at the office of the Administrative Agent located at 0000 Xxxxxxx Xxxx.,
0xx Xxxxx, Xxxxxxx, XX 00000; Attention: Agency Administrative Services #5596,
Xxxxxxxxx X. Xxxxxx; Fax: (000) 000-0000.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit
Agreements and to induce the Lenders to make their respective extensions of
credit to or for the benefit of the Borrower thereunder, each Guarantor hereby
represents and warrants to each of the Agents and the Lenders that:
3.1 Representations in Credit Agreements. In the case of each
Guarantor, the representations and warranties set forth in Section 4 of the
Credit Agreements as they relate to such Guarantor or to the Credit Document to
which such Guarantor is a party, each of which is hereby incorporated herein by
reference, are true and correct, and each Agent and Lender shall be entitled to
rely on each of them as if they were fully set forth herein, provided that each
reference in each such representation and warranty to the Borrower's knowledge
shall, for the purposes of this Section 3.1, be deemed to be a reference to such
Guarantor's knowledge.
SECTION 4. COVENANTS
Each Guarantor covenants and agrees with the Agents and the Lenders
that, from and after the date of this Agreement until the Guaranteed Obligations
shall have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
4.1 Covenants in Credit Agreements. In the case of each Guarantor,
such Guarantor shall take, or shall refrain from taking, as the case may be,
each action that is necessary to be taken or not taken, as the case may be, so
that no Default or Event of Default is
7
caused by the failure to take such action or to refrain from taking such action
by any of the Credit Parties.
SECTION 5. MISCELLANEOUS
5.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, restated, supplemented or otherwise modified
except in accordance with subsection 10.1 of each of the Credit Agreements.
5.2 Notices. All notices, requests and demands to or upon the Agents,
the Lenders or any Guarantor hereunder shall be effected in the manner provided
for in subsection 10.2 of each of the Credit Agreements; provided that any such
notice, request or demand to or upon any Guarantor shall be addressed to such
Guarantor at its notice address set forth below its respective signature hereto.
5.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent nor any other Agent or any Lender shall by any act (except
by a written instrument pursuant to Section 5.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of any of the Agents or Lenders, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by any of the Agents or Lenders of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Administrative Agent, on behalf of the other Agents and the
Lenders, would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
5.4 Enforcement Expenses; Indemnification.
(a) Each Guarantor agrees to pay or reimburse each of the Lenders and
Agents for all its costs and expenses incurred in collecting against such
Guarantor under the guarantee contained in Section 2 or otherwise enforcing or
preserving any rights under this Agreement and the other Credit Documents to
which such Guarantor is a party, including, without limitation, the fees and
disbursements of counsel to the Administrative Agent and of counsel to each of
the other Agents and Lenders.
(b) Each Guarantor agrees to pay, and to save the Agents and the
Lenders harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other taxes which
may be payable or determined to be payable in connection with any of the
transactions contemplated by this Agreement.
(c) Each Guarantor agrees to pay, and to save the Agents and the
Lenders harmless from, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the
8
execution, delivery, enforcement, performance and administration of this
Agreement to the extent the Borrower would be required to do so pursuant to
subsection 10.5 of the applicable Credit Agreement.
(d) The agreements in this Section 5.4 shall survive repayment of the
Guaranteed Obligations and all other amounts payable under each of the Credit
Agreements, this Agreement and the other Credit Documents.
5.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Guarantor and shall inure to the benefit of the
Agents and the Lenders and their successors and assigns; provided that no
Guarantor may assign, transfer or delegate any of its rights or obligations
under this Agreement without the prior written consent of the Required Lenders.
5.6 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
5.7 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
5.8 Section Headings. The Section headings used in this Agreement are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
5.9 Integration. This Agreement and the other Credit Documents
represent the agreement of the Guarantors, the Agents and the Lenders with
respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by any of the Agents or Lenders
relative to the subject matter hereof and thereof not expressly set forth or
referred to herein, the Credit Agreements or in the other Credit Documents.
5.10 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
5.11 SUBMISSION TO JURISDICTION; WAIVERS. EACH GUARANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS TO WHICH IT
IS A PARTY, OR FOR RECOGNITION AND
9
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;
(b) 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;
(c) 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 GUARANTOR AT
ITS ADDRESS REFERRED TO IN SUBSECTION 5.2 OR AT SUCH OTHER ADDRESS OF WHICH THE
ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO XXX IN ANY OTHER JURISDICTION; AND
(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT
MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN
THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
5.12 Acknowledgments. Each Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents to which it is a
party;
(b) none of the Agents nor the Lenders has any fiduciary relationship
with or duty to any Guarantor arising out of or in connection with this
Agreement or any of the other Credit Documents, and the relationship between the
Guarantors, on the one hand, and the Agents and Lenders, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated hereby
among Agents, among the Agents and/or the Lenders, or among the Guarantors and
the Agents and/or the Lenders.
5.13 WAIVER OF JURY TRIAL. EACH GUARANTOR AND, BY ACCEPTANCE OF THE
BENEFITS HEREOF, EACH OF THE LENDERS AND THE AGENTS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY
10
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
5.14 Additional Guarantors. Each Subsidiary of the Borrower that is
required to become a party to this Agreement pursuant to subsection 6.10 of each
of the Credit Agreements shall become a Guarantor for all purposes of this
Agreement upon execution and delivery by such Subsidiary of an Assumption
Agreement in the form of Annex 1 hereto.
5.15 Releases.
(a) At such time as the Loans, the Reimbursement Obligations and the
other Guaranteed Obligations shall have been paid in full, the Commitments have
been terminated and no Letters of Credit shall be outstanding, this Agreement
and all obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and each Guarantor hereunder shall
terminate, all without delivery of any instrument or performance of any act by
any party, and all rights shall revert to the Guarantors, and the Administrative
Agent shall execute and deliver to such Guarantor such documents as such
Guarantor shall reasonably request to evidence such termination.
(b) At the request and sole expense of the Borrower, a Guarantor shall
be released from its obligations hereunder in the event that all the Capital
Stock of such Guarantor shall be sold, transferred or otherwise disposed of in a
transaction permitted by the Credit Agreements.
[Signature page follows]
11
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be duly executed and delivered as of the date first above written.
HYGIENETICS ENVIRONMENTAL SERVICES, INC.
By:
----------------------------------------------
Xxxxxxxxxxx X. Xxxxxxx
Vice President-General Counsel and Secretary
L-3 COMMUNICATIONS ILEX SYSTEMS, INC.
By:
----------------------------------------------
Xxxxxxxxxxx X. Xxxxxxx
Vice President-General Counsel and Secretary
L-3 COMMUNICATIONS SPD TECHNOLOGIES INC.
By:
----------------------------------------------
Xxxxxxxxxxx X. Xxxxxxx
Vice President-General Counsel and Secretary
L-3 COMMUNICATIONS AYDIN CORPORATION
By:
----------------------------------------------
Xxxxxxxxxxx X. Xxxxxxx
Vice President-General Counsel and Secretary
MICRODYNE CORPORATION
By:
----------------------------------------------
Xxxxxxxxxxx X. Xxxxxxx
Vice President-General Counsel and Secretary
S-1
Address for Notice to any Guarantor:
x/x X-0 Xxxxxxxxxxxxxx Xxxxxxxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: President
Phone: (000) 000-0000
Fax: (000) 000-0000
Accepted on behalf of the Agents and
the Lenders as of the date first above
written:
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
By: _____________________________________
Name: _______________________________
Title: ______________________________
S-2
Annex 1 to
Second Amended and Restated Subsidiary Guarantee Agreement
ASSUMPTION AGREEMENT, dated as of ______________, _____, made by
______________________________, a ______________ corporation (the "Additional
Guarantor"), in favor of Bank of America, N.A., as administrative agent (in such
capacity, the "Administrative Agent") for the banks and other financial
institutions (the "Lenders") parties to the Credit Agreements referred to below.
All capitalized terms not defined herein shall have the collective meanings
ascribed to them in each of such Credit Agreements.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, (a) L-3 Communications Corporation, a Delaware corporation
(the "Borrower"), the banks, financial institutions or other entities party
thereto as Lenders (the "Facility A Lenders"), Xxxxxx Commercial Paper Inc.
("LCPI"), as Documentation Agent, LCPI as Syndication Agent, LCPI and Banc of
America Securities LLC as Arrangers, the Administrative Agent and certain other
entities named therein as Co-Agents have entered into a Second Amended and
Restated Credit Agreement, dated as of _________ __, 2000 (as amended, restated,
supplemented or otherwise modified from time to time, the "Facility A Credit
Agreement"), (b) the Borrower, the banks, financial institutions or other
entities party thereto as Lenders (the "Facility B Lenders"), LCPI as
Documentation Agent, LCPI as Syndication Agent, LCPI and Banc of America
Securities LLC as Arrangers, the Administrative Agent and certain other entities
named therein as Co-Agents have entered into an Amended and Restated 364 Day
Credit Agreement, dated as of _________ __, 2000 (as amended, restated,
supplemented or otherwise modified from time to time, the "Facility B Credit
Agreement") and (c) the Borrower, the banks, financial institutions or other
entities party thereto as Lenders (the "Facility C Lenders"; and together with
the Facility A Lenders and the Facility B Lenders, the "Lenders"), LCPI as
Documentation Agent, LCPI as Syndication Agent, LCPI and Banc of America
Securities LLC as Arrangers, the Administrative Agent and certain other entities
named therein as Co-Agents have entered into a new 364 Day Credit Agreement,
dated as of _________ __, 2000 (as amended, restated, supplemented or otherwise
modified from time to time, the "Facility C Credit Agreement, and, together with
the Facility A Credit Agreement and the Facility B Credit Agreement, the "Credit
Agreements");
WHEREAS, in connection with the Credit Agreements, certain
Subsidiaries of the Borrower (other than the Additional Guarantor) have entered
into a Subsidiary Guarantee Agreement and a Subsidiary Pledge Agreement, each
amended and restated as of _________ __, 2000 (as amended, supplemented or
otherwise modified from time to time, respectively, the "Subsidiary Guarantee
Agreement" and the "Subsidiary Pledge Agreement") in favor of the Administrative
Agent for the benefit of the Lenders;
WHEREAS, the Credit Agreements require the Additional Guarantor to
become a party to the Subsidiary Guarantee Agreement and the Subsidiary Pledge
Agreement; and
Annex 1 - 1
WHEREAS, the Additional Guarantor has agreed to execute and deliver
this Assumption Agreement in order to become a party to the Subsidiary Guarantee
Agreement and the Subsidiary Pledge Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Subsidiary Guarantee Agreement. By executing and delivering this
Assumption Agreement, the Additional Subsidiary Guarantor, as provided in
Subsection 5.14 of the Subsidiary Guarantee Agreement, hereby becomes a party to
the Subsidiary Guarantee Agreement as a Guarantor thereunder with the same force
and effect as if originally named therein as a Guarantor and, without limiting
the generality of the foregoing, hereby expressly assumes all obligations and
liabilities of a Guarantor thereunder. The information set forth in Annex 1-A
hereto is hereby added to the information set forth in Schedule 1 to the
Subsidiary Guarantee Agreement. The Additional Guarantor hereby represents and
warrants that each of the representations and warranties contained in Section 3
of the Subsidiary Guarantee Agreement is true and correct on and as the date
hereof (after giving effect to this Assumption Agreement) as if made on and as
of such date.
2. Subsidiary Pledge Agreement. By executing and delivering this
Assumption Agreement, the Additional Subsidiary Guarantor, as provided in
Subsection 7.15 of the Subsidiary Pledge Agreement, hereby becomes a party to
the Subsidiary Pledge Agreement as a Grantor thereunder with the same force and
effect as if originally named therein as a Grantor and, without limiting the
generality of the foregoing, hereby expressly assumes all obligations and
liabilities of a Grantor thereunder. The information set forth in Annex 1-B
hereto is hereby added to the information set forth in Schedule 1 to the
Subsidiary Pledge Agreement. The Additional Guarantor hereby represents and
warrants that each of the representations and warranties contained in the
Subsidiary Pledge Agreement is true and correct on and as the date hereof (after
giving effect to this Assumption Agreement) as if made on and as of such date.
3. Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GUARANTOR]
By:
------------------------------
Name:
Title:
Address for Notices:
-----------------------------------
-----------------------------------
-----------------------------------
Annex 1 - 2
Attention:
Phone: ( ) ___________
Fax: ( ) ___________
Accepted on behalf of the Agents and
the Lenders as of the date first
above written:
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT
By:
-------------------------------------------
Name:
Title:
Xxxxx 0 - 0
XXXXXXX X-0
TO CREDIT AGREEMENT
================================================================================
SECOND AMENDED AND RESTATED PARENT PLEDGE AGREEMENT
made by
L-3 COMMUNICATIONS HOLDINGS, INC.
in favor of
BANK OF AMERICA, N.A.,
as Administrative Agent
Dated as of April 24, 2000
================================================================================
TABLE OF CONTENTS
Page
SECTION 1. DEFINED TERMS..........................................................................................2
1.1. Definitions...............................................................................................2
1.2. Other Definitional Provisions.............................................................................4
1.3. Effect of Restatement.....................................................................................4
SECTION 2. PLEDGE.................................................................................................4
SECTION 3. REPRESENTATIONS AND WARRANTIES.........................................................................4
3.1. Representations in Credit Agreement.......................................................................4
3.2. Title; No Other Liens.....................................................................................5
3.3. Perfected First Priority Liens............................................................................5
3.4. Chief Executive Office....................................................................................5
3.5. Pledged Stock.............................................................................................5
SECTION 4. COVENANTS..............................................................................................5
4.1. Maintenance of Perfected Security Interest................................................................6
4.2. Pledged Stock.............................................................................................6
SECTION 4A. CERTAIN AFFIRMATIVE COVENANTS.........................................................................7
4A.1 Further Documentation.....................................................................................7
4A.3 Notices...................................................................................................7
SECTION 5. REMEDIAL PROVISIONS....................................................................................8
5.1. Pledged Stock.............................................................................................8
5.2. Proceeds to be Turned Over To Administrative Agent........................................................9
5.3. Application of Proceeds...................................................................................9
5.4. Code and Other Remedies...................................................................................9
5.5. Registration Rights......................................................................................10
5.6. Waiver; Deficiency......................................................................................11
SECTION 6. THE ADMINISTRATIVE AGENT..............................................................................11
6.1. Administrative Agent's Appointment as Attorney-in-Fact, etc..............................................11
6.2. Duty of Administrative Agent.............................................................................12
6.3. Authority of Administrative Agent........................................................................12
SECTION 7. MISCELLANEOUS.........................................................................................13
7.1. Amendments in Writing....................................................................................13
7.2. Notices..................................................................................................13
7.3. No Waiver by Course of Conduct; Cumulative Remedies......................................................13
7.4. Enforcement Expenses; Indemnification....................................................................13
7.5. Successors and Assigns...................................................................................14
7.6. Set-Off..................................................................................................14
i
7.7. Counterparts.............................................................................................14
7.8. Severability.............................................................................................14
7.9. Section Headings.........................................................................................15
7.10. Integration.............................................................................................15
7.11. GOVERNING LAW...........................................................................................15
7.12. SUBMISSION TO JURISDICTION; WAIVERS.....................................................................15
7.13. Acknowledgments.........................................................................................16
7.14. WAIVER OF JURY TRIAL....................................................................................16
7.15. Releases................................................................................................16
ii
SECOND AMENDED AND RESTATED PARENT PLEDGE AGREEMENT
This SECOND AMENDED AND RESTATED PARENT PLEDGE AGREEMENT, dated as of April
24, 2000, is made by L-3 Communications Holdings, Inc., a Delaware corporation
("Holdings"), in favor of Bank of America, N.A. as Administrative Agent (in such
capacity, the "Administrative Agent") for (a) the banks and other financial
institutions or entities (collectively, the "Facility A Lenders") from time to
time parties to the Second Amended and Restated Credit Agreement, dated as of
April 24, 2000 (as amended, restated, supplemented or otherwise modified from
time to time, the "Facility A Credit Agreement"), among L-3 Communications
Corporation, a Delaware corporation (the "Borrower"), the Facility A Lenders,
Xxxxxx Commercial Paper Inc. ("LCPI"), as documentation agent (in such capacity,
the "Facility A Documentation Agent"), LCPI as syndication agent (in such
capacity, the "Facility A Syndication Agent"; and together with the Facility A
Documentation Agent and the Administrative Agent, the "Facility A Agents"), LCPI
and Banc of America Securities LLC (f/k/a BancAmerica Xxxxxxxxx Xxxxxxxx) as
arrangers (in such capacity, the "Facility A Arrangers"), the Administrative
Agent and certain other entities named therein as Co-Agents, which amended and
restated in its entirety that certain Amended and Restated Credit Agreement
dated as of August 13, 1998 (as amended, restated, supplemented or otherwise
modified prior to the date hereof, the "Original Facility A Credit Agreement")
among the Borrower, the Agents party thereto (the "Original Facility A Agents",
including the Administrative Agent party thereto, the "Original Facility A
Administrative Agent"), the lenders party thereto (the "Original Facility A
Lenders") and LCPI and BancAmerica Xxxxxxxxx Xxxxxxxx (n/k/a Banc of America
Securities LLC) as arrangers, and (b) the banks and other financial
institutions or entities (the "Facility B Lenders"; and together with the
Facility A Lenders, the "Lenders"), from time to time parties to the Amended and
Restated 364 Day Credit Agreement, dated as of April 24, 2000 (as amended,
restated, supplemented or otherwise modified from time to time, the "Facility B
Credit Agreement"), among the Borrower, the Administrative Agent, LCPI as
documentation agent (in such capacity, the "Facility B Documentation Agent"),
LCPI as syndication agent (in such capacity, the "Facility B Syndication Agent";
and together with the Facility B Documentation Agent and the Administrative
Agent, the "Facility B Agents"), LCPI and Banc of America Securities LLC (f/k/a
BankAmerica Xxxxxxxxx Xxxxxxxx) as arrangers (in such capacity, the "Facility B
Arrangers"), the Administrative Agent and certain other entities named therein
as Co-Agents, which amended and restated in its entirety that certain 364 Day
Credit Agreement dated as of August 13, 1998 (as amended, restated, supplemented
or otherwise modified prior to the date hereof, the "Original Facility B Credit
Agreement"; and together with the Original Facility A Credit Agreement, the
"Original Credit Agreements") among the Borrower, the Administrative Agent (the
"Original Facility B Administrative Agent"; and together with the Original
Facility A Administrative Agent, the "Original Administrative Agents"), the
other Agents party thereto (together with the Original Facility B Administrative
Agent, the "Original Facility B Agents"; and together with the Original Facility
A Agents, the Original Agents"), the lenders party thereto (the "Original
Facility B Lenders"; and together with the Original Facility A Lenders, the
"Original Lenders") and LCPI and BancAmerica Xxxxxxxxx Xxxxxxxx (n/k/a Banc of
America
Securities LLC) as arrangers, and (c) the banks and other financial
institutions or entities (the "Facility C Lenders"; and together with the
Facility A Lenders and the Facility B Lenders, the "Lenders"), from time to time
parties to the New 364 Day Credit Agreement, dated as of April 24, 2000 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Facility C Credit Agreement"; and together with the Facility A Credit Agreement
and the Facility B Credit Agreement, each a "Credit Agreement", and
collectively, the "Credit Agreements"), among the Borrower, the Administrative
Agent, LCPI as documentation agent (in such capacity, the "Facility C
Documentation Agent"), LCPI as syndication agent (in such capacity, the
"Facility C Syndication Agent"; and together with the Facility C Documentation
Agent and the Administrative Agent, the "Facility C Agents"; and together with
the Facility A Agents and the Facility B Agents, the "Agents"), Xxxxxx Brothers,
Inc. ("LBI") and Banc of America Securities LLC as arrangers (in such capacity,
the "Facility C Arrangers"; and together with the Facility A Arrangers and the
Facility B Arrangers, the "Arrangers"), the Administrative Agent and certain
other entities named therein as Managing Agents.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Holdings executed and delivered to the Original Administrative
Agents a certain Amended and Restated Parent Pledge and Security Agreement dated
as August 13, 1998 (as amended, restated, supplemented or otherwise modified
from time to time prior to the date hereof, the "Existing Pledge Agreement") in
favor of the Original Administrative Agents for the ratable benefit of the
Original Lenders and the Original Agents to secure the Obligations (as defined
in the Existing Pledge Agreement);
WHEREAS, Holdings and the Administrative Agent wish to amend and restate
the Existing Pledge Agreement (as so amended and restated herein, this
"Agreement") to, inter alia, reflect the amending and restating of the Original
Credit Agreements and the entering into of the Facility C Credit Agreement; and
WHEREAS, the Lenders have required, as a condition to the extension of
credit under the Credit Agreements, that Holdings execute and deliver this
Agreement.
NOW, THEREFORE, in consideration of the premises and to induce the Agents
and the Lenders to enter into the Credit Agreements, and to induce the Lenders
to make their respective extensions of credit to or for the benefit of the
Borrower thereunder, Holdings hereby agrees with the Administrative Agent, for
the ratable benefit of the Lenders and the Agents, to amend and restate the
Existing Pledge Agreement in its entirety to read as provided herein:
SECTION 1. DEFINED TERMS
1.1 Definitions.
(a) Unless otherwise defined herein, terms defined in the Credit Agreements
and used herein shall have the collective meanings given to them in each of the
Credit Agreements.
(b) The following terms shall have the following meanings:
"Agreement": this Second Amended and Restated Parent Pledge Agreement, as
the same may be amended, supplemented or otherwise modified from time to time.
"Collateral": as defined in Section 2.
"Issuers": the collective reference to each issuer of any Pledged Stock.
"New York UCC": the Uniform Commercial Code as from time to time in effect
in the State of New York.
"Obligations": the collective reference to the unpaid principal of and
interest on the Loans and Reimbursement Obligations under each of the Credit
Agreements and all other obligations and liabilities of the Borrower and any
other Credit Party (including, without limitation), (i) interest accruing at the
then applicable rate provided in each of the Credit Agreements after the
maturity of the Loans and Reimbursement Obligations and interest accruing at the
then applicable rate provided in each of the Credit Agreements after the filing
of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to Holdings, whether or not a claim
for post-filing or post-petition interest is allowed in such proceeding and (ii)
any exposure of any Lender under any lockbox arrangement, controlled
disbursement arrangement, checking accounts or other similar arrangements
(collectively, "Cash Management Agreements") with or on behalf of Holdings
and/or its Subsidiaries) to any Agent or any Lender (or, in the case of any
Interest Rate Agreement referred to below, any Affiliate of any Lender), whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, either of the Credit Agreements, this Agreement, the Parent Guarantee, the
other Credit Documents, any Letter of Credit or any Interest Rate Agreement
entered into by Holdings with any Lender (or any Affiliate of any Lender) or any
Cash Management Agreement entered into by Holdings or any Subsidiary of Holdings
with any Lender or any other document made, delivered or given in connection
therewith, in each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Agents and Lenders that
are required to be paid by Holdings pursuant to the terms of any of the
foregoing agreements).
"Pledged Stock": the shares of Capital Stock listed on Schedule 1, together
with any other shares, stock certificates, options or rights of any nature
whatsoever in respect of the Capital Stock of any Person that may be issued or
granted to, or held by, Holdings while this Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in Section 9-306(1) of
the Uniform Commercial Code in effect in the State of New York on the date
hereof and, in any event, shall include, without limitation, all dividends or
other income from the Pledged Stock, collections thereon or distributions or
payments with respect thereto.
"Securities Act": the Securities Act of 1933, as amended.
3
1.2 Other Definitional Provisions.
(a) The words "hereof," "herein", "hereto" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section and
Schedule references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or any
part thereof shall refer to Holdings' Collateral or the relevant part thereof.
1.3 Effect of Restatement. This Agreement amends, restates and supersedes
the Existing Pledge Agreement; provided, that (i) the Liens in favor of
Administrative Agent for the benefit of Lenders securing payment of the
Obligations are in all respects continuing and in full force and effect with
respect to all Obligations and (ii) all references in the other Credit Documents
to the Existing Pledge Agreement shall be deemed to refer without further
amendment to this Agreement.
SECTION 2. PLEDGE
Holdings hereby pledges to the Administrative Agent, and hereby grants to
the Administrative Agent, for the ratable benefit of the Agents and the Lenders,
a first priority security interest in all of the following property now owned or
at any time hereafter acquired by Holdings or in which Holdings now has or at
any time in the future may acquire any right, title or interest (collectively,
the "Collateral"), as collateral security for the prompt and complete payment
and performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations:
(a) all Pledged Stock; and
(b) to the extent not otherwise included, all Proceeds of any and all of
the foregoing and all collateral security and guarantees given by any Person
with respect to any of the foregoing.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit Agreements
and to induce the Agents and the Lenders to make their respective extensions of
credit to or for the benefit of the Borrower thereunder, Holdings hereby
represents and warrants to each of the Agents and the Lenders that:
3.1 Representations in Credit Agreements. The representations and
warranties set forth in Section 4 of the Credit Agreements, each of which is
hereby incorporated herein by reference, are true and correct, and the Agents
and the Lenders shall be entitled to rely on each of
4
them as if they were fully set forth herein, provided that each reference in
each such representation and warranty to the Borrower's knowledge shall, for the
purposes of this Section 3.1, be deemed to be a reference to Holdings'
knowledge.
3.2 Title; No Other Liens. Except for the security interest granted to the
Administrative Agent for the ratable benefit of the Agents and the Lenders
pursuant to this Agreement and the other Liens permitted to exist on the
Collateral by the Credit Agreements, Holdings owns each item of the Collateral
free and clear of any and all Liens or claims of others.
3.3 Perfected First Priority Liens. The security interests granted pursuant
to this Agreement:
(a) upon delivery by Holdings to the Administrative Agent of the original
certificates evidencing such Pledged Stock together with undated stock powers
therefor duly executed in blank, will constitute valid perfected security
interests in all of the Collateral in favor of the Administrative Agent, for the
ratable benefit of the Agents and the Lenders, as collateral security for the
Obligations, enforceable in accordance with the terms hereof against all
creditors of Holdings and any Persons purporting to purchase any Collateral from
Holdings, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing; and
(b) are prior to all other Liens on the Collateral in existence on the date
hereof except for Liens permitted by the Credit Agreements which have priority
over the Liens on the Collateral by operation of law.
3.4 Chief Executive Office. On the date hereof, Holdings' jurisdiction of
organization and the location of Holdings' chief executive office is specified
on Schedule 2.
3.5 Pledged Stock.
(a) The shares of Pledged Stock pledged by Holdings hereunder constitute
all the issued and outstanding shares of all classes of the Capital Stock of
each Issuer owned by Holdings.
(b) All the shares of the Pledged Stock have been duly and validly issued
and are fully paid and nonassessable.
(c) Holdings is the record and beneficial owner of, and has good and
marketable title to, the Pledged Stock pledged by it hereunder, free of any and
all Liens or options in favor of, or claims of, any other Person, except the
security interest created by this Agreement and other Liens permitted by the
Credit Agreements which have priority by operation of law.
SECTION 4. COVENANTS
5
Holdings covenants and agrees with the Agents and the Lenders that, from
and after the date of this Agreement until the Obligations shall have been paid
in full, no Letter of Credit shall be outstanding and the Commitments shall have
terminated:
4.1 Maintenance of Perfected Security Interest
. Holdings shall maintain the security interest created by this Agreement
as a perfected security interest having at least the priority described in
subsection 3.3 and shall defend such security interest against the claims and
demands of all Persons whomsoever.
4.2 Pledged Stock.
(a) If Holdings shall become entitled to receive or shall receive any
instruments, stock certificates (including, without limitation, any certificate
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate issued in
connection with any reorganization), options or rights in respect of the Capital
Stock of any Issuer, whether in addition to, in substitution of, as a conversion
of, or in exchange for, any shares of the Pledged Stock, or as a dividend or
distribution thereunder, or otherwise in respect thereof, Holdings shall accept
the same as the agent of the Agents and the Lenders, hold the same in trust for
the Agents and the Lenders and promptly (and in any event within 60 days)
deliver the same forthwith to the Administrative Agent in the exact form
received, duly endorsed by Holdings to the Administrative Agent, if required,
together with an undated stock power or endorsement covering such certificate or
instrument, as applicable, duly executed in blank by Holdings and with, if the
Administrative Agent so requests, signature guaranteed, to be held by the
Administrative Agent, subject to the terms hereof, as additional collateral
security for the Obligations. Any sums paid upon or in respect of the Pledged
Stock upon the liquidation or dissolution of any Issuer shall be promptly (and
in any event within 60 days) paid over to the Administrative Agent to be held by
it hereunder as additional collateral security for the Obligations, and in case
any distribution of capital shall be made on or in respect of the Pledged Stock
or any property shall be distributed upon or with respect to the Pledged Stock
pursuant to the recapitalization or reclassification of the capital of any
Issuer or pursuant to the reorganization thereof, the property so distributed
shall, unless otherwise subject to a perfected security interest in favor of the
Administrative Agent, be promptly (and in any event within 60 days) delivered to
the Administrative Agent to be held by it hereunder as additional collateral
security (or except as provided in the Credit Agreements) for the Obligations.
Except as provided in the Credit Agreements, if any sums of money or property so
paid or distributed in respect of the Pledged Stock under circumstances
described in this Section 4.2(a) shall be received by Holdings, Holdings shall,
until such money or property is paid or delivered to the Administrative Agent,
hold such money or property in trust for the Lenders, segregated from other
funds of Holdings, as additional collateral security for the Obligations.
(b) Except as provided in the Credit Agreements, without the prior written
consent of the Administrative Agent, Holdings will not (i) vote to enable, or
take any other action to permit, any Issuer to issue any stock or other equity
securities of any nature or to issue any other securities convertible into or
granting the right to purchase or exchange for any stock
6
or other equity securities of any nature of any Issuer, (ii) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with respect
to, the Pledged Stock or Proceeds thereof (except pursuant to a transaction
expressly permitted by the Credit Agreements), (iii) create, incur or permit to
exist any Lien or option in favor of, or any claim of any Person with respect
to, any of the Pledged Stock or Proceeds thereof, or any interest therein,
except for the security interests created by this Agreement or (iv) enter into
any agreement or undertaking restricting the right or ability of Holdings or the
Administrative Agent to sell, assign or transfer any of the Pledged Stock or
Proceeds thereof.
SECTION 4A. CERTAIN AFFIRMATIVE COVENANTS
Holdings covenants and agrees with the Agents and the Lenders that, from
and after the date of this Agreement until the Obligations shall have been paid
in full, no Letter of Credit shall be outstanding and the Commitments shall have
terminated:
4A.1 Further Documentation.
(a) Holdings will furnish to the Agents and the Lenders from time to
time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Administrative Agent may reasonably request, all in reasonable detail.
(b) At any time and from time to time, upon the written request of the
Administrative Agent, and at the sole expense of Holdings, Holdings will
promptly and duly execute and deliver, such further instruments and
documents and take such further actions as the Administrative Agent may
reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted.
4A.2 Payment of Obligations.
Holdings will pay and discharge or otherwise satisfy at or before maturity
or before they become delinquent, as the case may be, all material taxes,
assessments and governmental charges or levies imposed upon the Collateral or in
respect of income or profits therefrom, as well as all material claims of any
kind (including, without limitation, claims for labor, materials and supplies)
against or with respect to the Collateral, except that no such charge need be
paid if the amount or validity thereof is currently being contested in good
faith by appropriate proceedings, reserves in conformity with GAAP with respect
thereto have been provided on the books of Holdings and such proceedings could
not reasonably be expected to result in the sale, forfeiture or loss of any
material portion of the Collateral or any interest therein.
4A.3 Notices. Holdings will advise the Agents and the Lenders promptly, in
reasonable detail, of:
7
(a) any Lien (other than security interests created hereby or Liens
permitted under the Credit Agreements) on any of the Collateral which would
adversely affect the ability of the Administrative Agent to exercise any of
its remedies hereunder; and
(b) the occurrence of any other event of which it is aware which could
reasonably be expected to have a material adverse effect on the
enforceability, or perfection or priority of, the security interests
purported to be created hereby.
SECTION 5. REMEDIAL PROVISIONS
5.1 Pledged Stock.
(a) Unless an Event of Default shall have occurred and be continuing and
the Administrative Agent shall have given notice to Holdings of the
Administrative Agent's intent to exercise its corresponding rights pursuant to
subsection 5.1(b), Holdings shall be permitted to receive all cash dividends
paid in respect of the Pledged Stock paid in the normal course of business of
the relevant Issuer and consistent with past practice, to the extent permitted
in the Credit Agreements, and to exercise all voting and corporate rights with
respect to the Pledged Stock; provided, however, that no vote shall be cast or
corporate right exercised or other action taken which, in the Administrative
Agent's reasonable judgment, would materially impair the Collateral or which
would result in any violation of any provision of the Credit Agreements, this
Agreement or any other Credit Document.
(b) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give notice of its intent to exercise such rights to
Holdings, (i) the Administrative Agent shall have the right to receive any and
all cash dividends, payments or other Proceeds paid in respect of the Pledged
Stock and make application thereof to Obligations in such order as the
Administrative Agent may determine, and (ii) any or all of the Pledged Stock
shall be registered in the name of the Administrative Agent or its nominee, and
the Administrative Agent or its nominee may thereafter exercise (x) all voting,
corporate and other rights pertaining to such Pledged Stock at any meeting of
shareholders of the relevant Issuer or Issuers or otherwise (including giving or
withholding written consents of shareholders and calling special meetings of
shareholders) and (y) any and all rights of conversion, exchange and
subscription and any other rights, privileges or options pertaining to such
Pledged Stock as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the Pledged
Stock upon the merger, consolidation, reorganization, recapitalization or other
fundamental change in the corporate structure of any Issuer, or upon the
exercise by Holdings or the Administrative Agent of any right, privilege or
option pertaining to such Pledged Stock, and in connection therewith, the right
to deposit and deliver any and all of the Pledged Stock with any committee,
depositary, transfer agent, registrar or other designated agency upon such terms
and conditions as the Administrative Agent may determine), all without liability
except to account for property actually received by it, but the Administrative
Agent shall have no duty to Holdings to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or delay in so
doing.
8
(c) Holdings hereby authorizes and instructs each Issuer of any Pledged
Stock pledged by Holdings hereunder to (i) comply with any instruction received
by it from the Administrative Agent in writing that (x) states that an Event of
Default has occurred and is continuing and (y) is otherwise in accordance with
the terms of this Agreement, without any other or further instructions from
Holdings, and Holdings agrees that each Issuer shall be fully protected in so
complying, and (ii) unless otherwise expressly permitted hereby, pay any
dividends or other payments with respect to the Pledged Stock directly to the
Administrative Agent.
5.2 Proceeds to be Turned Over To Administrative Agent. If an Event of
Default shall occur and be continuing, all Proceeds received by Holdings
consisting of cash, checks and other near-cash items shall be held by Holdings
in trust for the Agents and the Lenders, segregated from other funds of
Holdings, and shall, forthwith upon receipt by Holdings, be turned over to the
Administrative Agent in the exact form received by Holdings (duly endorsed by
Holdings to the Administrative Agent, if required). All Proceeds received by the
Administrative Agent hereunder shall be held by the Administrative Agent in a
deposit account (a "Collateral Account") maintained under its sole dominion and
control. All Proceeds while held by the Administrative Agent in a Collateral
Account (or by Holdings in trust for the Administrative Agent and the Lenders)
shall continue to be held as collateral security for all the Obligations and
shall not constitute payment thereof until applied as provided in subsection
5.3.
5.3 Application of Proceeds. At such intervals as may be agreed upon by
Holdings and the Administrative Agent, or, if an Event of Default shall have
occurred and be continuing, at any time at the Administrative Agent's election,
the Administrative Agent may apply all or any part of Proceeds held in any
Collateral Account in payment of the Obligations in such order as required by
the Credit Agreements, and any part of such funds which are not required as
collateral security for the Obligations shall be paid over from time to time by
the Administrative Agent to Holdings or to whomsoever may be lawfully entitled
to receive the same. Any balance of such Proceeds remaining after the
Obligations shall have been paid in full, no Letters of Credit shall be
outstanding and the Commitments shall have terminated shall be paid over to
Holdings or to whomsoever may be lawfully entitled to receive the same.
5.4 Code and Other Remedies. If an Event of Default shall occur and be
continuing, the Administrative Agent, on behalf of the Agents and the Lenders,
may exercise, in addition to all other rights and remedies granted to them in
this Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations, all rights and remedies of a secured party under
the New York UCC or any other applicable law. Without limiting the generality of
the foregoing, the Administrative Agent, without demand of performance or other
demand, presentment, protest, advertisement or notice of any kind (except any
notice required by law referred to below) to or upon Holdings or any other
Person (all and each of which demands, defenses, advertisements and notices are
hereby waived), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease, assign, give option or options to purchase, or otherwise
dispose of and deliver the Collateral or any part thereof (or contract to do any
of the foregoing), in one or more parcels at public or private sale or sales, at
any exchange, broker's board or office
9
of any of the Agents or Lenders or elsewhere upon such terms and conditions as
it may deem advisable and at such prices as it may deem best, for cash or on
credit or for future delivery without assumption of any credit risk. Any Agents
or Lenders shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption in Holdings, which right or equity is hereby waived and released. The
Administrative Agent shall apply the net proceeds of any action taken by it
pursuant to this subsection 5.4, after deducting all reasonable costs and
expenses of every kind incurred in connection therewith or incidental to the
care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Agents and the Lenders hereunder, including,
without limitation, reasonable attorneys' fees and disbursements, to the payment
in whole or in part of the Obligations, in such order as the Administrative
Agent may elect, and only after such application and after the payment by the
Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the New York UCC, need the
Administrative Agent account for the surplus, if any, to Holdings. To the extent
permitted by applicable law, Holdings waives all claims, damages and demands it
may acquire against any Agents or Lenders arising out of the exercise by them of
any rights hereunder. If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be deemed reasonable and
proper if given at least 15 days before such sale or other disposition.
5.5 Registration Rights.
(a) If the Administrative Agent shall determine to exercise its right to
sell any or all of the Pledged Stock pursuant to subsection 5.4, and if in the
opinion of the Administrative Agent it is necessary or advisable to have the
Pledged Stock, or that portion thereof to be sold, registered under the
provisions of the Securities Act, Holdings will cause the Issuer thereof to (i)
execute and deliver, and cause the directors and officers of such Issuer to
execute and deliver, all such instruments and documents, and do or cause to be
done all such other acts as may be, in the opinion of the Administrative Agent,
necessary or advisable to register the Pledged Stock, or that portion thereof to
be sold, under the provisions of the Securities Act, (ii) use its commercially
reasonable efforts to cause the registration statement relating thereto to
become effective and to remain effective for a period of one year from the date
of the first public offering of the Pledged Stock, or that portion thereof to be
sold, and (iii) make all amendments thereto and/or to the related prospectus
which, in the opinion of the Administrative Agent, are necessary or advisable,
all in conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto.
Holdings agrees to cause such Issuer to comply with the provisions of the
securities or "Blue Sky" laws of any and all jurisdictions which the
Administrative Agent shall designate and to make available to its security
holders, as soon as practicable, an earnings statement (which need not be
audited) which will satisfy the provisions of Section 11(a) of the Securities
Act.
(b) Holdings recognizes that the Administrative Agent may be unable to
effect a public sale of any or all the Pledged Stock, by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise, and may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers which will be obliged to
10
agree, among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. Holdings
acknowledges and agrees that any such private sale may result in prices and
other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(c) Holdings agrees to use its commercially reasonable efforts to do or
cause to be done all such other acts as may be necessary to make such sale or
sales of all or any portion of the Pledged Stock pursuant to this subsection 5.5
valid and binding and in compliance with any and all other applicable
Requirements of Law. Holdings further agrees that a breach of any of the
covenants contained in this subsection 5.5 will cause irreparable injury to the
Agents and the Lenders, that the Agents and the Lenders have no adequate remedy
at law in respect of such breach and, as a consequence, that each and every
covenant contained in this subsection 5.5 shall be specifically enforceable
against Holdings, and Holdings hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants except for
a defense that no Event of Default has occurred under the Credit Agreements.
5.6 Waiver; Deficiency. Holdings waives and agrees not to assert any rights
or privileges which it may acquire under Section 9-112 of the New York UCC.
Holdings shall remain liable for any deficiency if the proceeds of any sale or
other disposition of the Collateral are insufficient to pay its Obligations and
the fees and disbursements of any attorneys employed by the Administrative Agent
or any Lender to collect such deficiency.
SECTION 6. THE ADMINISTRATIVE AGENT
6.1 Administrative Agent's Appointment as Attorney-in-Fact, etc.
(a) Holdings hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of Holdings and in the name of Holdings or in its own name,
for the purpose of carrying out the terms of this Agreement, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Agreement, and,
without limiting the generality of the foregoing, Holdings hereby gives the
Administrative Agent the power and right, on behalf of Holdings, without notice
to or assent by Holdings, to do any or all of the following:
(i) in the name of Holdings or its own name, or otherwise, take
possession of and endorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under or
with respect to any Collateral and file any claim or take any other action
or proceeding in any court of law or equity or otherwise deemed appropriate
by the Administrative Agent for the purpose of collecting any and all such
moneys due under or with respect to any Collateral whenever payable;
11
(ii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral; and
(iii) execute, in connection with any sale provided for in subsections
5.4 or 5.5, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
Anything in this subsection 6.1(a) to the contrary notwithstanding, the
Administrative Agent agrees that it will not exercise any rights under the power
of attorney provided for in this subsection 6.1(a) unless an Event of Default
shall have occurred and be continuing.
(b) If Holdings fails to perform or comply with any of its agreements
contained herein, the Administrative Agent, at its option, but without any
obligation so to do, may perform or comply, or otherwise cause performance or
compliance, with such agreement.
(c) The expenses of the Administrative Agent incurred in connection with
actions undertaken as provided in this subsection 6.1, together with interest
thereon at a rate per annum equal to the rate per annum at which interest would
then be payable on past due Base Rate Loans under the Credit Agreements, from
the date of payment by the Administrative Agent to the date reimbursed by
Holdings, shall be payable by Holdings to the Administrative Agent on demand.
(d) Holdings hereby ratifies all that said attorneys shall lawfully do or
cause to be done by virtue hereof. All powers, authorizations and agencies
contained in this Agreement are coupled with an interest and are irrevocable
until this Agreement is terminated and the security interests created hereby are
released.
6.2 Duty of Administrative Agent. The Administrative Agent's sole duty with
respect to the custody, safekeeping and physical preservation of the Collateral
in its possession, under Section 9-207 of the New York UCC or otherwise, shall
be to deal with it in the same manner as the Administrative Agent deals with
similar property for its own account. Neither the Administrative Agent, any
other Agent, any Lender nor any of their respective officers, directors,
employees or agents shall be liable for failure to demand, collect or realize
upon any of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
Holdings or any other Person or to take any other action whatsoever with regard
to the Collateral or any part thereof. The powers conferred on the Agents and
the Lenders hereunder are solely to protect the Agents' and the Lenders'
interests in the Collateral and shall not impose any duty upon any Agents or
Lenders to exercise any such powers. The Agents and the Lenders shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to Holdings for any act or failure to
act hereunder, except for their own gross negligence or willful misconduct.
6.3 Authority of Administrative Agent. Holdings acknowledges that the
rights and responsibilities of the Administrative Agent under this Agreement
with respect to any action
12
taken by the Administrative Agent or the exercise or non-exercise by the
Administrative Agent of any option, voting right, request, judgment or other
right or remedy provided for herein or resulting or arising out of this
Agreement shall, as among the Agents and the Lenders, be governed by the Credit
Agreements and by such other agreements with respect thereto as may exist from
time to time among them, but, as among the Agents and Holdings, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Lenders with full and valid authority so to act or refrain from acting, and
Holdings shall not be under any obligation, or entitlement, to make any inquiry
respecting such authority.
SECTION 7. MISCELLANEOUS
7.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, restated, supplemented or otherwise modified
except in accordance with subsection 10.1 of each of the Credit Agreements.
7.2 Notices. All notices, requests and demands to or upon the Agents, the
Lenders or Holdings hereunder shall be effected in the manner provided for in
subsection 10.2 of each of the Credit Agreements.
7.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent, any other Agent, nor any Lender shall by any act (except
by a written instrument pursuant to Section 7.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of any of the Agents or Lenders, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by any of the Agents or Lenders of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Administrative Agent, on behalf of the other Agents and the
Lenders, would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
7.4 Enforcement Expenses; Indemnification.
(a) Holdings agrees to pay or reimburse each of the Lenders and the Agents
for all its reasonable costs and expenses incurred in collecting against
Holdings or otherwise enforcing or preserving any rights under this Agreement
and the other Credit Documents to which Holdings is a party, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent and of counsel to each of the other Agents and Lenders.
(b) Holdings agrees to pay, and to save the Agents and the Lenders harmless
from, any and all liabilities with respect to, or resulting from any delay in
paying, any and all stamp, excise, sales or other taxes which may be payable or
determined to be payable with respect to any of the Collateral or in connection
with any of the transactions contemplated by this Agreement.
13
(c) Holdings agrees to pay, and to save the Agents and the Lenders harmless
from, any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement to the extent Holdings would be required to do
so pursuant to subsection 10.5 of the applicable Credit Agreement.
(d) The agreements in this subsection 7.4 shall survive repayment of the
Obligations and all other amounts payable under each of the Credit Agreements
and the other Credit Documents.
7.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of Holdings and shall inure to the benefit of the Agents
and the Lenders and their successors and assigns; provided that Holdings may not
assign, transfer or delegate any of its rights or obligations under this
Agreement without the prior written consent of the Administrative Agent.
7.6 Set-Off. Holdings hereby irrevocably authorizes each of the Agents and
Lenders at any time and from time to time pursuant to subsection 10.7(b) of the
applicable Credit Agreement whenever an Event of Default shall have occurred and
be continuing, without notice to Holdings, any such notice being expressly
waived by Holdings, to set-off and appropriate and apply any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Agent or Lender to or for the credit or the account of
Holdings, or any part thereof in such amounts as such Agent or Lender may elect,
against and on account of the obligations and liabilities of Holdings to such
Agent or Lender hereunder and claims of every nature and description of such
Agent or Lender against Holdings, in any currency, whether arising hereunder,
under the Credit Agreements, any other Credit Document or otherwise, as such
Agent or Lender may elect, whether or not any Agent or Lender has made any
demand for payment and although such obligations, liabilities and claims may be
contingent or unmatured. Each of the Agents and Lenders shall notify Holdings
promptly of any such set-off and the application made by such Agent or Lender of
the proceeds thereof, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of the Agent and
Lender under this subsection 7.6 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Agent or
Lender may have.
7.7 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
7.8 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any
14
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
7.9 Section Headings. The Section headings used in this Agreement are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
7.10 Integration. This Agreement and the other Credit Documents represent
the agreement of Holdings, the Agents and the Lenders with respect to the
subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by any of the Agents or Lenders relative to the
subject matter hereof and thereof not expressly set forth or referred to herein
or in the other Credit Documents.
7.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
7.12 SUBMISSION TO JURISDICTION; WAIVERS. HOLDINGS HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT, AND THE OTHER CREDIT DOCUMENTS TO WHICH IT IS A
PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO
THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK,
THE COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) 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;
(c) 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 HOLDINGS AT ITS ADDRESS
REFERRED TO IN SUBSECTION 7.2 OR AT SUCH OTHER ADDRESS OF WHICH THE
ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN
ANY OTHER JURISDICTION; AND
15
(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY
HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN THIS
SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
7.13 Acknowledgments. Holdings hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents to which it is a
party;
(b) none of the Agents nor Lenders has any fiduciary relationship with or
duty to Holdings arising out of or in connection with this Agreement or any of
the other Credit Documents, and the relationship between Holdings, on the one
hand, and the Agents and Lenders, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit Documents or
otherwise exists by virtue of the transactions contemplated hereby among Agents,
among the Agents and/or the Lenders or among Holdings and the Agents and/or the
Lenders.
7.14 WAIVER OF JURY TRIAL. HOLDINGS AND, BY ACCEPTANCE OF THE BENEFITS
HEREOF, EACH OF THE LENDERS AND THE AGENTS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
7.15 Releases.
(a) At such time as the Loans, the Reimbursement Obligations and the other
Obligations shall have been paid in full, the Commitments have been terminated
and no Letters of Credit shall be outstanding, the Collateral shall be released
from the Liens created hereby, and this Agreement and all obligations (other
than those expressly stated to survive such termination) of the Administrative
Agent and Holdings hereunder shall terminate, all without delivery of any
instrument or performance of any act by any party, and all rights to the
Collateral shall revert to Holdings and the Administrative Agent shall deliver
to Holdings any Collateral held by the Administrative Agent hereunder, and
execute and deliver to Holdings such documents as Holdings shall reasonably
request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by Holdings in a transaction permitted by the Credit Agreements,
then the Administrative Agent, at the request and sole expense of Holdings,
shall execute and deliver to Holdings all releases or other documents reasonably
necessary or desirable for the release of the Liens created hereby on such
Collateral.
[SIGNATURE PAGE FOLLOWS]
16
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be
duly executed and delivered as of the date first above written.
L-3 COMMUNICATIONS HOLDINGS, INC.
By:
--------------------------------------------
Xxxxxxxxxxx X. Xxxxxxx
Vice President-General Counsel and Secretary
ADDRESS FOR NOTICES:
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx XxXxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Accepted on behalf of the Agents and
the Lenders as of the date first
above written:
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
By:
--------------------------------------
Name:
---------------------------
Title:
---------------------------
S-1
Schedule 1
DESCRIPTION OF PLEDGED STOCK
PLEDGED STOCK:
Issuer Class of Stock Stock Certificate No. No. of Shares
---------------------------------- -------------- -------------------- -------------
L-3 Communications Corporation Common 1 100
Sch. 1
Schedule 2
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
Jurisdiction of Organization Location of Chief Executive Office
---------------------------- ----------------------------------
Delaware 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Sch. 2
ACKNOWLEDGMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Second Amended
and Restated Parent Pledge Agreement dated as of _______ __, 2000 (the
"Agreement"), made by the parties thereto for the benefit of Bank of America,
N.A., as Administrative Agent. The undersigned agrees for the benefit of the
Administrative Agent, the other Agents and the Lenders as follows:
1. The undersigned will be bound by the terms of the Agreement and will
comply with such terms insofar as such terms are applicable to the undersigned.
2. The undersigned will notify the Administrative Agent promptly in writing
of the occurrence of any of the events described in Section 4.2(a) of the
Agreement.
3. The terms of Sections 5.1(a) and 5.5 of the Agreement shall apply to it,
mutatis mutandis, with respect to all actions that may be required of it
pursuant to Section 5.1(a) or 5.5 of the Agreement.
L-3 Communications Corporation
By:
--------------------------------------------
Xxxxxxxxxxx X. Xxxxxxx
Vice President-General Counsel and Secretary
ADDRESS FOR NOTICES:
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx XxXxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
EXHIBIT B-4A
TO CREDIT AGREEMENT
================================================================================
SECOND AMENDED AND RESTATED BORROWER PLEDGE AGREEMENT
made by
L-3 COMMUNICATIONS CORPORATION
in favor of
BANK OF AMERICA, N.A.,
as Administrative Agent
Dated as of April 24, 2000
================================================================================
TABLE OF CONTENTS
Page
----
Section 1. DEFINED TERMS.....................................................3
1.1 Definitions.......................................................3
1.2 Other Definitional Provisions.....................................4
1.3 Effect of Restatement.............................................4
Section 2. PLEDGE............................................................4
Section 3. REPRESENTATIONS AND WARRANTIES....................................5
3.1 Title; No Other Liens.............................................5
3.2 Perfected First Priority Liens....................................5
3.3 Chief Executive Office............................................5
3.4 Pledged Stock.....................................................5
Section 4. COVENANTS.........................................................6
4.1 Maintenance of Perfected Security Interest........................6
4.2 Pledged Stock.....................................................6
Section 4A. CERTAIN AFFIRMATIVE COVENANTS.....................................6
4A.1 Further Documentation.............................................6
4A.2 Payment of Obligations............................................6
4A.3 Notices...........................................................6
Section 5. REMEDIAL PROVISIONS...............................................8
5.1 Pledged Stock.....................................................8
5.2 Proceeds to be Turned Over To Administrative Agent................9
5.3 Application of Proceeds...........................................9
5.4 Code and Other Remedies...........................................9
5.5 Registration Rights..............................................10
5.6 Waiver; Deficiency...............................................11
Section 6. THE ADMINISTRATIVE AGENT.........................................11
6.1 Administrative Agent's Appointment as Attorney-in-Fact, etc......11
6.2 Duty of Administrative Agent.....................................12
6.3 Authority of Administrative Agent................................13
i
TABLE OF CONTENTS
Page
----
Section 7. MISCELLANEOUS....................................................13
7.1 Amendments in Writing............................................13
7.2 Notices..........................................................13
7.3 No Waiver by Course of Conduct; Cumulative Remedies..............13
7.4 Enforcement Expenses; Indemnification............................13
7.5 Successors and Assigns...........................................14
7.6 Set-Off..........................................................14
7.7 Counterparts.....................................................14
7.8 Severability.....................................................15
7.9 Section Headings.................................................15
7.10 Integration......................................................15
7.11 GOVERNING LAW....................................................15
7.12 SUBMISSION TO JURISDICTION; WAIVERS..............................15
7.13 Acknowledgments..................................................16
7.14 WAIVER OF JURY TRIAL.............................................16
7.15 Releases.........................................................16
7.16 Conflict.........................................................17
ii
SECOND AMENDED AND RESTATED BORROWER PLEDGE AGREEMENT
This SECOND AMENDED AND RESTATED BORROWER PLEDGE AGREEMENT,
dated as of April 24, 2000, is made by L-3 Communications Corporation, a
Delaware corporation (the "Borrower"), in favor of Bank of America, N.A. as
Administrative Agent (in such capacity, the "Administrative Agent") for (a) the
banks and other financial institutions or entities (collectively, the "Facility
A Lenders") from time to time parties to the Second Amended and Restated Credit
Agreement, dated as of April 24, 2000 (as amended, restated, supplemented or
otherwise modified from time to time, the "Facility A Credit Agreement"), among
L-3 Communications Corporation, a Delaware corporation (the "Borrower"), the
Facility A Lenders, Xxxxxx Commercial Paper Inc. ("LCPI"), as documentation
agent (in such capacity, the "Facility A Documentation Agent"), LCPI as
syndication agent (in such capacity, the "Facility A Syndication Agent"; and
together with the Facility A Documentation Agent and the Administrative Agent,
the "Facility A Agents"), LCPI and Banc of America Securities LLC (f/k/a
BancAmerica Xxxxxxxxx Xxxxxxxx) as arrangers (in such capacity, the "Facility A
Arrangers"), the Administrative Agent and certain other entities named therein
as Co-Agents, which amended and restated in its entirety that certain Amended
and Restated Credit Agreement dated as of August 13, 1998 (as amended, restated,
supplemented or otherwise modified prior to the date hereof, the "Original
Facility A Credit Agreement") among the Borrower, the Agents party thereto (the
"Original Facility A Agents", including the Administrative Agent party thereto,
the "Original Facility A Administrative Agent"), the lenders party thereto (the
"Original Facility A Lenders") and LCPI and BancAmerica Xxxxxxxxx Xxxxxxxx
(n/k/a Banc of America Securities LLC ) as arrangers, and (b) the banks and
other financial institutions or entities (the "Facility B Lenders"; and together
with the Facility A Lenders, the "Lenders"), from time to time parties to the
Amended and Restated 364 Day Credit Agreement, dated as of April 24, 2000 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Facility B Credit Agreement"), among the Borrower, the Administrative Agent,
LCPI as documentation agent (in such capacity, the "Facility B Documentation
Agent"), LCPI as syndication agent (in such capacity, the "Facility B
Syndication Agent"; and together with the Facility B Documentation Agent and the
Administrative Agent, the "Facility B Agents"), LCPI and Banc of America
Securities LLC (f/k/a BankAmerica Xxxxxxxxx Xxxxxxxx) as arrangers (in such
capacity, the "Facility B Arrangers"), the Administrative Agent and certain
other entities named therein as Co-Agents, which amended and restated in its
entirety that certain 364 Day Credit Agreement dated as of August 13, 1998 (as
amended, restated, supplemented or otherwise modified prior to the date hereof,
the "Original Facility B Credit Agreement"; and together with the Original
Facility A Credit Agreement, the "Original Credit Agreements") among the
Borrower, the Administrative Agent (the "Original Facility B Administrative
Agent"; and together with the Original Facility A Administrative Agent, the
"Original Administrative Agents"), the other Agents party thereto (together with
the Original Facility B Administrative Agent, the "Original Facility B Agents";
and together with the Original Facility A Agents, the Original Agents"), the
lenders party thereto (the "Original Facility B Lenders"; and together with the
Original Facility A Lenders, the "Original Lenders") and LCPI and BancAmerica
Xxxxxxxxx Xxxxxxxx (n/k/a Banc of America Securities LLC ) as arrangers, and (c)
the banks and other financial institutions or entities (the "Facility C
Lenders"; and together with the Facility A Lenders and the Facility B Lenders,
the
"Lenders"), from time to time parties to the New 364 Day Credit Agreement,
dated as of April 24, 2000 (as amended, restated, supplemented or otherwise
modified from time to time, the "Facility C Credit Agreement"; and together with
the Facility A Credit Agreement and the Facility B Credit Agreement, each a
"Credit Agreement", and collectively, the "Credit Agreements"), among the
Borrower, the Administrative Agent, LCPI as documentation agent (in such
capacity, the "Facility C Documentation Agent"), LCPI as syndication agent (in
such capacity, the "Facility C Syndication Agent"; and together with the
Facility C Documentation Agent and the Administrative Agent, the "Facility C
Agents"; and together with the Facility A Agents and the Facility B Agents, the
"Agents"), Xxxxxx Brothers, Inc. ("LBI") and Banc of America Securities LLC as
arrangers (in such capacity, the "Facility C Arrangers"; and together with the
Facility A Arrangers and the Facility B Arrangers, the "Arrangers"), the
Administrative Agent and certain other entities named therein as Managing
Agents.
W I T N E S S E T H:
WHEREAS, the Borrower executed and delivered to the Original
Administrative Agents a certain Amended and Restated Borrower Pledge and
Security Agreement (as amended, restated, supplemented or otherwise modified
from time to time prior to the date hereof, the "Existing Pledge Agreement") in
favor of the Original Administrative Agents for the ratable benefit of the
Original Lenders and the Original Agents to secure the Obligations (as defined
in the Existing Pledge Agreement);
WHEREAS, the Borrower and the Administrative Agent wish to
amend and restate the Existing Pledge Agreement (as so amended and restated
herein, this "Agreement") to, inter alia, reflect the amending and restating of
the Original Credit Agreements and the entering into of the Facility C Credit
Agreement;
WHEREAS, concurrently herewith, the Borrower has entered into
an Amended and Restated Charge Over Shares governed by the laws of England and
Wales, under which certain shares of capital stock of X-0 Xxxxxxxxxxxxxx X.X.
Ltd. owned by the Borrower have been pledged to the Administrative Agent (the
"Charge Over Shares"); and
WHEREAS, the Lenders have required, as a condition to the
extension of credit under the Credit Agreements that the Borrower execute and
deliver this Agreement.
NOW, THEREFORE, in consideration of the premises and to induce
the Agents and the Lenders to enter into the Credit Agreements, and to induce
the Lenders to make their respective extensions of credit to or for the benefit
of the Borrower thereunder, Borrower hereby agrees with the Administrative
Agent, for the ratable benefit of the Lenders and the Agents, to amend and
restate the Existing Pledge Agreement in its entirety to read as provided
herein:
2
SECTION 1. DEFINED TERMS
1.1 Definitions.
(a) Unless otherwise defined herein, terms defined in the
Credit Agreements and used herein shall have the collective meanings given to
them in each of the Credit Agreements.
(b) The following terms shall have the following meanings:
"Agreement": this Second Amended and Restated Borrower Pledge
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time.
"Collateral": as defined in Section 2.
"Issuers": the collective reference to each issuer of any
Pledged Stock.
"New York UCC": the Uniform Commercial Code as from time to
time in effect in the State of New York.
"Obligations": the collective reference to the unpaid
principal of and interest on the Loans and Reimbursement Obligations under each
of the Credit Agreements and all other obligations and liabilities of the
Borrower (including, without limitation), (i) interest accruing at the then
applicable rate provided in each of the Credit Agreements after the maturity of
the Loans and Reimbursement Obligations and interest accruing at the then
applicable rate provided in each of the Credit Agreements after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding
and (ii) any exposure of any Lender under any lockbox arrangement, controlled
disbursement arrangement, checking accounts or other similar arrangements
(collectively, "Cash Management Agreements") with or on behalf of the Borrower
and/or its Subsidiaries) to any Agent or any Lender (or, in the case of any
Interest Rate Agreement referred to below, any Affiliate of any Lender), whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, either of the Credit Agreements, this Agreement, the other Credit
Documents, any Letter of Credit or any Interest Rate Agreement entered into by
the Borrower with any Lender (or any Affiliate of any Lender) or any Cash
Management Agreement entered into by the Borrower or any Subsidiary of the
Borrower with any Lender or any other document made, delivered or given in
connection therewith, in each case whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to the
Agents and the Lenders that are required to be paid by the Borrower pursuant to
the terms of any of the foregoing agreements).
"Pledged Stock": the shares of Capital Stock listed on
Schedule 1, together with any other shares, stock certificates, options or
rights of any nature whatsoever in respect of the Capital Stock of any Person
that may be issued or granted to, or held by, the Borrower while this Agreement
is in effect; provided that, in no event shall the Pledged Stock include more
than 65.0
3
percent of the issued and outstanding stock of X-0 Xxxxxxxxxxxxxx X.X. Ltd. (the
"U.K. Issuer Pledge Limitation").
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of New York on
the date hereof and, in any event, shall include, without limitation, all
dividends or other income from the Pledged Stock, collections thereon or
distributions or payments with respect thereto.
"Securities Act": the Securities Act of 1933, as amended.
1.2 Other Definitional Provisions.
(a) The words "hereof," "herein", "hereto" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section and Schedule references are to this Agreement unless otherwise
specified.
(b) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the
Collateral or any part thereof shall refer to the Borrower's Collateral or the
relevant part thereof.
1.3 Effect of Restatement. This Agreement amends, restates and supersedes
the Existing Pledge Agreement; provided, that (i) the Liens in favor of
Administrative Agent for the benefit of Lenders securing payment of the
Obligations are in all respects continuing and in full force and effect with
respect to all Obligations and (ii) all references in the other Credit Documents
to the Existing Pledge Agreement shall be deemed to refer without further
amendment to this Agreement.
SECTION 2. PLEDGE
Borrower hereby pledges to the Administrative Agent, and
hereby grants to the Administrative Agent, for the ratable benefit of the Agents
and the Lenders, a first priority security interest in, all of the following
property now owned or at any time hereafter acquired by the Borrower or in which
the Borrower now has or at any time in the future may acquire any right, title
or interest (collectively, the "Collateral"), as collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations:
(a) all Pledged Stock; and
(b) to the extent not otherwise included, all Proceeds of any
and all of the foregoing and all collateral security and guarantees given by any
Person with respect to any of the foregoing.
4
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit
Agreements and to induce the Agents and the Lenders to make their respective
extensions of credit to or for the benefit of the Borrower thereunder, Borrower
hereby represents and warrants to each of the Agents and the Lenders that:
3.1 Title; No Other Liens. Except for the security interest granted to the
Administrative Agent for the ratable benefit of the Agents and the Lenders
pursuant to this Agreement and the other Liens permitted to exist on the
Collateral by the Credit Agreements, the Borrower owns each item of the
Collateral free and clear of any and all Liens or claims of others.
3.2 Perfected First Priority Liens. The security interests granted pursuant
to this Agreement:
(a) upon delivery by the Borrower to the Administrative Agent
of the original certificates evidencing such Pledged Stock together with undated
stock powers therefor, duly executed in blank will constitute valid perfected
security interests in all of the Collateral in favor of the Administrative
Agent, for the ratable benefit of the Agents and the Lenders, as collateral
security for the Obligations, enforceable in accordance with the terms hereof
against all creditors of the Borrower and any Persons purporting to purchase any
Collateral from the Borrower, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing; and
(b) are prior to all other Liens on the Collateral in
existence on the date hereof except for Liens permitted by the Credit Agreements
which have priority over the Liens on the Collateral by operation of law.
3.3 Chief Executive Office. On the date hereof, the Borrower's jurisdiction
of organization and the location of the Borrower's chief executive office is
specified on Schedule 2.
3.4 Pledged Stock.
(a) Except for the U.K. Issuer Pledge Limitation, the shares
of Pledged Stock pledged by the Borrower hereunder constitute all the issued and
outstanding shares of all classes of the Capital Stock of each Issuer owned by
the Borrower.
(b) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
(c) The Borrower is the record and beneficial owner of, and
has good and marketable title to, the Pledged Stock pledged by it hereunder,
free of any and all Liens or options in favor of, or claims of, any other
Person, except the security interest created by this Agreement and other Liens
permitted by the Credit Agreements which have priority by operation of law.
5
SECTION 4. COVENANTS
Borrower covenants and agrees with the Agents and the Lenders
that, from and after the date of this Agreement until the Obligations shall have
been paid in full, no Letter of Credit shall be outstanding and the Commitments
shall have terminated:
4.1 Maintenance of Perfected Security Interest. The Borrower shall maintain
the security interest created by this Agreement as a perfected security interest
having at least the priority described in subsection 3.2 and shall defend such
security interest against the claims and demands of all Persons whomsoever.
4.2 Pledged Stock.
(a) If the Borrower shall become entitled to receive or shall
receive any instruments, stock certificates (including, without limitation, any
certificate representing a stock dividend or a distribution in connection with
any reclassification, increase or reduction of capital or any certificate issued
in connection with any reorganization), options or rights in respect of the
Capital Stock of any Issuer, whether in addition to, in substitution of, as a
conversion of, or in exchange for, any shares of the Pledged Stock, or as a
dividend or distribution thereunder, or otherwise in respect thereof, and
subject to the U.K. Issuer Pledge Limitation, the Borrower shall accept the same
as the agent of the Agents and the Lenders, hold the same in trust for the
Agents and the Lenders and promptly (and in any event within 60 days) deliver
the same forthwith to the Administrative Agent in the exact form received, duly
endorsed by the Borrower to the Administrative Agent, if required, together with
an undated stock power or endorsement covering such certificate or instrument,
as applicable, duly executed in blank by the Borrower and with, if the
Administrative Agent so requests, signature guaranteed, to be held by the
Administrative Agent, subject to the terms hereof, as additional collateral
security for the Obligations. Any sums paid upon or in respect of the Pledged
Stock upon the liquidation or dissolution of any Issuer shall be promptly (and
in any event within 60 days) paid over to the Administrative Agent to be held by
it hereunder as additional collateral security for the Obligations, and in case
any distribution of capital shall be made on or in respect of the Pledged Stock
or any property shall be distributed upon or with respect to the Pledged Stock
pursuant to the recapitalization or reclassification of the capital of any
Issuer or pursuant to the reorganization thereof, the property so distributed
shall, unless otherwise subject to a perfected security interest in favor of the
Administrative Agent, be promptly (and in any event within 60 days) delivered to
the Administrative Agent to be held by it hereunder as additional collateral
security (or except as provided in the Credit Agreements) for the Obligations.
Except as provided in the Credit Agreements, if any sums of money or property so
paid or distributed in respect of the Pledged Stock under circumstances
described in this Section 4.2 shall be received by the Borrower, the Borrower
shall, until such money or property is paid or delivered to the Administrative
Agent, hold such money or property in trust for the Lenders, segregated from
other funds of the Borrower, as additional collateral security for the
Obligations.
(b) Except as provided in the Credit Agreements, without the
prior written consent of the Administrative Agent, the Borrower will not (i)
vote to enable, or take any other action to permit, any Issuer to issue any
stock or other equity securities of any nature or to issue
6
any other securities convertible into or granting the right to purchase or
exchange for any stock or other equity securities of any nature of any Issuer,
(ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant any
option with respect to, the Pledged Stock or Proceeds thereof (except pursuant
to a transaction expressly permitted by the Credit Agreements), (iii) create,
incur or permit to exist any Lien or option in favor of, or any claim of any
Person with respect to, any of the Pledged Stock or Proceeds thereof, or any
interest therein, except for the security interests created by this Agreement or
(iv) enter into any agreement or undertaking restricting the right or ability of
the Borrower or the Administrative Agent to sell, assign or transfer any of the
Pledged Stock or Proceeds thereof.
SECTION 4A. CERTAIN AFFIRMATIVE COVENANTS
Borrower covenants and agrees with the Agents and the Lenders
that, from and after the date of this Agreement until the Obligations shall have
been paid in full, no Letter of Credit shall be outstanding and the Commitments
shall have terminated:
4A.1 Further Documentation.
(a) The Borrower will furnish to the Agents and the Lenders
from time to time statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as the Administrative Agent may reasonably request, all in
reasonable detail.
(b) At any time and from time to time, upon the written
request of the Administrative Agent, and at the sole expense of the
Borrower, the Borrower will promptly and duly execute and deliver such
further instruments and documents and take such further actions as the
Administrative Agent may reasonably request for the purpose of
obtaining or preserving the full benefits of this Agreement and of the
rights and powers herein granted.
4A.2 Payment of Obligations. The Borrower will pay and
discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all material taxes, assessments and governmental
charges or levies imposed upon the Collateral or in respect of income or profits
therefrom, as well as all material claims of any kind (including, without
limitation, claims for labor, materials and supplies) against or with respect to
the Collateral, except that no such charge need be paid if the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings, reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower and such proceedings could not reasonably
be expected to result in the sale, forfeiture or loss of any material portion of
the Collateral or any interest therein.
4A.3 Notices. The Borrower will advise the Agents and the
Lenders promptly, in reasonable detail, of:
7
(a) any Lien (other than security interests created hereby or
Liens permitted under the Credit Agreements) on any of the Collateral
which would adversely affect the ability of the Administrative Agent to
exercise any of its remedies hereunder; and
(b) the occurrence of any other event of which it is aware
which could reasonably be expected to have a material adverse effect on
the enforceability, or perfection or priority of, the security
interests purported to be created hereby.
SECTION 5. REMEDIAL PROVISIONS
5.1 Pledged Stock.
(a) Unless an Event of Default shall have occurred and be
continuing and the Administrative Agent shall have given notice to the Borrower
of the Administrative Agent's intent to exercise its corresponding rights
pursuant to subsection 5.1(b), the Borrower shall be permitted to receive all
cash dividends paid in respect of the Pledged Stock paid in the normal course of
business of the relevant Issuer and consistent with past practice, to the extent
permitted in the Credit Agreements, and to exercise all voting and corporate
rights with respect to the Pledged Stock; provided, however, that no vote shall
be cast or corporate right exercised or other action taken which, in the
Administrative Agent's reasonable judgment, would materially impair the
Collateral or which would result in any violation of any provision of the Credit
Agreements, this Agreement or any other Credit Document.
(b) If an Event of Default shall occur and be continuing and
the Administrative Agent shall give notice of its intent to exercise such rights
to the Borrower, (i) the Administrative Agent shall have the right to receive
any and all cash dividends, payments or other Proceeds paid in respect of the
Pledged Stock and make application thereof to the Borrower Obligations in such
order as the Administrative Agent may determine, and (ii) any or all of the
Pledged Stock shall be registered in the name of the Administrative Agent or its
nominee, and the Administrative Agent or its nominee may thereafter exercise (x)
all voting, corporate and other rights pertaining to such Pledged Stock at any
meeting of shareholders of the relevant Issuer or Issuers or otherwise
(including giving or withholding written consents of shareholders and calling
special meetings of shareholders) and (y) any and all rights of conversion,
exchange and subscription and any other rights, privileges or options pertaining
to such Pledged Stock as if it were the absolute owner thereof (including,
without limitation, the right to exchange at its discretion any and all of the
Pledged Stock upon the merger, consolidation, reorganization, recapitalization
or other fundamental change in the corporate structure of any Issuer, or upon
the exercise by the Borrower or the Administrative Agent of any right, privilege
or option pertaining to such Pledged Stock, and in connection therewith, the
right to deposit and deliver any and all of the Pledged Stock with any
committee, depositary, transfer agent, registrar or other designated agency upon
such terms and conditions as the Administrative Agent may determine), all
without liability except to account for property actually received by it, but
the Administrative Agent shall have no duty to the Borrower to exercise any such
right, privilege or option and shall not be responsible for any failure to do so
or delay in so doing.
8
(c) The Borrower hereby authorizes and instructs each Issuer
of any Pledged Stock pledged by the Borrower hereunder to (i) comply with any
instruction received by it from the Administrative Agent in writing that (x)
states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from the Borrower, and the Borrower agrees that each Issuer
shall be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Pledged Stock directly to the Administrative Agent.
5.2 Proceeds to be Turned Over To Administrative Agent. If an Event of
Default shall occur and be continuing, all Proceeds received by the Borrower
consisting of cash, checks and other near-cash items shall be held by the
Borrower in trust for the Agents and the Lenders, segregated from other funds of
the Borrower, and shall, forthwith upon receipt by the Borrower, be turned over
to the Administrative Agent in the exact form received by the Borrower (duly
endorsed by the Borrower to the Administrative Agent, if required). All Proceeds
received by the Administrative Agent hereunder shall be held by the
Administrative Agent in a deposit account (a "Collateral Account") maintained
under its sole dominion and control. All Proceeds while held by the
Administrative Agent in a Collateral Account (or by the Borrower in trust for
the Administrative Agent and the Lenders) shall continue to be held as
collateral security for all the Obligations and shall not constitute payment
thereof until applied as provided in subsection 5.3.
5.3 Application of Proceeds. At such intervals as may be agreed upon by the
Borrower and the Administrative Agent, or, if an Event of Default shall have
occurred and be continuing, at any time at the Administrative Agent's election,
the Administrative Agent may apply all or any part of Proceeds held in any
Collateral Account in payment of the Obligations in such order as required by
the Credit Agreements, and any part of such funds which are not required as
collateral security for the Obligations shall be paid over from time to time by
the Administrative Agent to the Borrower or to whomsoever may be lawfully
entitled to receive the same. Any balance of such Proceeds remaining after the
Obligations shall have been paid in full, no Letters of Credit shall be
outstanding and the Commitments shall have terminated shall be paid over to the
Borrower or to whomsoever may be lawfully entitled to receive the same.
5.4 Code and Other Remedies. If an Event of Default shall occur and be
continuing, the Administrative Agent, on behalf of the Agents and the Lenders,
may exercise, in addition to all other rights and remedies granted to them in
this Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations, all rights and remedies of a secured party under
the New York UCC or any other applicable law. Without limiting the generality of
the foregoing, the Administrative Agent, without demand of performance or other
demand, presentment, protest, advertisement or notice of any kind (except any
notice required by law referred to below) to or upon the Borrower or any other
Person (all and each of which demands, defenses, advertisements and notices are
hereby waived), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease, assign, give option or options to purchase, or otherwise
dispose of and deliver the Collateral or any part thereof (or contract to do any
of the foregoing), in one or more parcels at public or private sale or sales, at
any exchange, broker's board or office of any of the
9
Agents or Lenders or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or for
future delivery without assumption of any credit risk. Any Agents or Lenders
shall have the right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to purchase the whole or
any part of the Collateral so sold, free of any right or equity of redemption in
the Borrower, which right or equity is hereby waived and released. The
Administrative Agent shall apply the net proceeds of any action taken by it
pursuant to this subsection 5.4, after deducting all reasonable costs and
expenses of every kind incurred in connection therewith or incidental to the
care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Agents and the Lenders hereunder, including,
without limitation, reasonable attorneys' fees and disbursements, to the payment
in whole or in part of the Obligations, in such order as the Administrative
Agent may elect, and only after such application and after the payment by the
Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the New York UCC, need the
Administrative Agent account for the surplus, if any, to the Borrower. To the
extent permitted by applicable law, the Borrower waives all claims, damages and
demands it may acquire against any Agents or Lenders arising out of the exercise
by them of any rights hereunder. If any notice of a proposed sale or other
disposition of Collateral shall be required by law, such notice shall be deemed
reasonable and proper if given at least 15 days before such sale or other
disposition.
5.5 Registration Rights.
(a) If the Administrative Agent shall determine to exercise
its right to sell any or all of the Pledged Stock pursuant to subsection 5.4,
and if in the opinion of the Administrative Agent it is necessary or advisable
to have the Pledged Stock, or that portion thereof to be sold, registered under
the provisions of the Securities Act, the Borrower will cause the Issuer thereof
to (i) execute and deliver, and cause the directors and officers of such Issuer
to execute and deliver, all such instruments and documents, and do or cause to
be done all such other acts as may be, in the opinion of the Administrative
Agent, necessary or advisable to register the Pledged Stock, or that portion
thereof to be sold, under the provisions of the Securities Act, (ii) use its
commercially reasonable efforts to cause the registration statement relating
thereto to become effective and to remain effective for a period of one year
from the date of the first public offering of the Pledged Stock, or that portion
thereof to be sold, and (iii) make all amendments thereto and/or to the related
prospectus which, in the opinion of the Administrative Agent, are necessary or
advisable, all in conformity with the requirements of the Securities Act and the
rules and regulations of the Securities and Exchange Commission applicable
thereto. The Borrower agrees to cause such Issuer to comply with the provisions
of the securities or "Blue Sky" laws of any and all jurisdictions which the
Administrative Agent shall designate and to make available to its security
holders, as soon as practicable, an earnings statement (which need not be
audited) which will satisfy the provisions of Section 11(a) of the Securities
Act.
(b) The Borrower recognizes that the Administrative Agent may
be unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for
10
investment and not with a view to the distribution or resale thereof. The
Borrower acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(c) The Borrower agrees to use its commercially reasonable
efforts to do or cause to be done all such other acts as may be necessary to
make such sale or sales of all or any portion of the Pledged Stock pursuant to
this subsection 5.5 valid and binding and in compliance with any and all other
applicable Requirements of Law. The Borrower further agrees that a breach of any
of the covenants contained in this subsection 5.5 will cause irreparable injury
to the Agents and the Lenders, that the Agents and the Lenders have no adequate
remedy at law in respect of such breach and, as a consequence, that each and
every covenant contained in this subsection 5.5 shall be specifically
enforceable against the Borrower, and the Borrower hereby waives and agrees not
to assert any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred under the
Credit Agreements.
5.6 Waiver; Deficiency. The Borrower waives and agrees not to assert any
rights or privileges which it may acquire under Section 9-112 of the New York
UCC. The Borrower shall remain liable for any deficiency if the proceeds of any
sale or other disposition of the Collateral are insufficient to pay its
Obligations and the fees and disbursements of any attorneys employed by the
Administrative Agent or any Lender to collect such deficiency.
SECTION 6. THE ADMINISTRATIVE AGENT
6.1 Administrative Agent's Appointment as Attorney-in-Fact, etc.
(a) The Borrower hereby irrevocably constitutes and appoints
the Administrative Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Borrower and in the name of
the Borrower or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, and, without limiting the generality of the
foregoing, the Borrower hereby gives the Administrative Agent the power and
right, on behalf of the Borrower, without notice to or assent by the Borrower,
to do any or all of the following:
(i) in the name of the Borrower or its own name, or
otherwise, take possession of and endorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of
moneys due under or with respect to any Collateral and file any claim
or take any other action or proceeding in any court of law or equity or
11
otherwise deemed appropriate by the Administrative Agent for the
purpose of collecting any and all such moneys due under or with respect
to any Collateral whenever payable;
(ii) pay or discharge taxes and Liens levied or placed
on or threatened against the Collateral; and
(iii) execute, in connection with any sale provided
for in subsections 5.4 or 5.5, any endorsements, assignments or other
instruments of conveyance or transfer with respect to the Collateral.
Anything in this subsection 6.1(a) to the contrary
notwithstanding, the Administrative Agent agrees that it will not exercise any
rights under the power of attorney provided for in this subsection 6.1(a) unless
an Event of Default shall have occurred and be continuing.
(b) If the Borrower fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the Administrative Agent incurred in
connection with actions undertaken as provided in this subsection 6.1, together
with interest thereon at a rate per annum equal to the rate per annum at which
interest would then be payable on past due Base Rate Loans under the Credit
Agreements, from the date of payment by the Administrative Agent to the date
reimbursed by the Borrower, shall be payable by the Borrower to the
Administrative Agent on demand.
(d) The Borrower hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
6.2 Duty of Administrative Agent. The Administrative Agent's sole duty with
respect to the custody, safekeeping and physical preservation of the Collateral
in its possession, under Section 9-207 of the New York UCC or otherwise, shall
be to deal with it in the same manner as the Administrative Agent deals with
similar property for its own account. Neither the Administrative Agent, and
other Agent, any Lender nor any of their respective officers, directors,
employees or agents shall be liable for failure to demand, collect or realize
upon any of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
the Borrower or any other Person or to take any other action whatsoever with
regard to the Collateral or any part thereof. The powers conferred on the Agents
and the Lenders hereunder are solely to protect the Agents' and the Lenders'
interests in the Collateral and shall not impose any duty upon any Agents or
Lenders to exercise any such powers. The Agents and the Lenders shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to the Borrower for any act or failure
to act hereunder, except for their own gross negligence or willful misconduct.
12
6.3 Authority of Administrative Agent. The Borrower acknowledges that the
rights and responsibilities of the Administrative Agent under this Agreement
with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by the Administrative Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Agreement shall, as among the Agents and the Lenders, be governed by
the Credit Agreements and by such other agreements with respect thereto as may
exist from time to time among them, but, as among the Agents and the Borrower,
the Administrative Agent shall be conclusively presumed to be acting as agent
for the Lenders with full and valid authority so to act or refrain from acting,
and the Borrower shall not be under any obligation, or entitlement, to make any
inquiry respecting such authority.
SECTION 7. MISCELLANEOUS
7.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, restated, supplemented or otherwise modified
except in accordance with subsection 10.1 of each of the Credit Agreements.
7.2 Notices. All notices, requests and demands to or upon the Agents, the
Lenders or the Borrower hereunder shall be effected in the manner provided for
in subsection 10.2 of each of the Credit Agreements.
7.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent, any other Agent nor any Lender shall by any act (except by
a written instrument pursuant to Section 7.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of any of the Agents or Lenders, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by any of the Agents or Lenders of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Administrative Agent, on behalf of the other Agents and the
Lenders, would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
7.4 Enforcement Expenses; Indemnification.
(a) The Borrower agrees to pay or reimburse each of the
Lenders and the Agents for all its reasonable costs and expenses incurred in
collecting against the Borrower or otherwise enforcing or preserving any rights
under this Agreement and the other Credit Documents to which the Borrower is a
party, including, without limitation, the reasonable fees and disbursements of
counsel to the Administrative Agent and of counsel to each of the other Agents
and Lenders.
(b) The Borrower agrees to pay, and to save the Agents and the
Lenders harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any
13
and all stamp, excise, sales or other taxes which may be payable or determined
to be payable with respect to any of the Collateral or in connection with any of
the transactions contemplated by this Agreement.
(c) The Borrower agrees to pay, and to save the Agents and the
Lenders harmless from, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement to the extent the Borrower
would be required to do so pursuant to subsection 10.5 of the applicable Credit
Agreement.
(d) The agreements in this subsection 7.4 shall survive
repayment of the Obligations and all other amounts payable under each of the
Credit Agreements and the other Credit Documents.
7.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of the Borrower and shall inure to the benefit of the
Agents and the Lenders and their successors and assigns; provided that the
Borrower may not assign, transfer or delegate any of its rights or obligations
under this Agreement without the prior written consent of the Administrative
Agent.
7.6 Set-Off. The Borrower hereby irrevocably authorizes each of the Agents
and Lenders at any time and from time to time pursuant to subsection 10.7(b) of
the applicable Credit Agreement whenever an Event of Default shall have occurred
and be continuing, without notice to the Borrower, any such notice being
expressly waived by the Borrower, to set-off and appropriate and apply any and
all deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Agent or Lender to or for the
credit or the account of the Borrower, or any part thereof in such amounts as
such Agent or Lender may elect, against and on account of the obligations and
liabilities of the Borrower to such Agent or Lender hereunder and claims of
every nature and description of such Agent or Lender against the Borrower, in
any currency, whether arising hereunder, under the Credit Agreements, any other
Credit Document or otherwise, as such Agent or Lender may elect, whether or not
any Agent or Lender has made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured. Each of the
Agents and Lenders shall notify the Borrower promptly of any such set-off and
the application made by such Agent or Lender of the proceeds thereof, provided
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Agent and Lender under this
subsection 7.6 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Agent or Lender may have.
7.7 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
14
7.8 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
7.9 Section Headings. The Section headings used in this Agreement are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
7.10 Integration. This Agreement and the other Credit Documents represent
the agreement of the Borrower, the Agents and the Lenders with respect to the
subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by any of the Agents or Lenders relative to the
subject matter hereof and thereof not expressly set forth or referred to herein,
the Credit Agreements or in the other Credit Documents.
7.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
7.12 SUBMISSION TO JURISDICTION; WAIVERS. THE BORROWER HEREBY IRREVOCABLY
AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, THE CREDIT AGREEMENTS AND THE OTHER
CREDIT DOCUMENTS TO WHICH IT IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF
ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF
THE COURTS OF THE STATE OF NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA
FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) 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;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED
MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO THE
BORROWER AT ITS ADDRESS REFERRED TO IN SUBSECTION 7.2 OR AT SUCH OTHER ADDRESS
OF WHICH THE ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO;
15
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT
THE RIGHT TO XXX IN ANY OTHER JURISDICTION; AND
(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED
TO IN THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
7.13 Acknowledgments. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Credit Documents to which
it is a party;
(b) none of the Agents nor Lenders has any fiduciary
relationship with or duty to the Borrower arising out of or in connection with
this Agreement or any of the other Credit Documents, and the relationship
between the Borrower, on the one hand, and the Agents and Lenders, on the other
hand, in connection herewith or therewith is solely that of debtor and creditor;
and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated hereby
among Agents, among the Agents and/or the Lenders or among the Borrower and the
Agents and/or the Lenders.
7.14 WAIVER OF JURY TRIAL. THE BORROWER AND, BY ACCEPTANCE OF THE BENEFITS
HEREOF, EACH OF THE LENDERS AND THE AGENTS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
7.15 Releases.
(a) At such time as the Loans, the Reimbursement Obligations
and the other Obligations shall have been paid in full, the Commitments have
been terminated and no Letters of Credit shall be outstanding, the Collateral
shall be released from the Liens created hereby, and this Agreement and all
obligations (other than those expressly stated to survive such termination) of
the Administrative Agent and the Borrower hereunder shall terminate, all without
delivery of any instrument or performance of any act by any party, and all
rights to the Collateral shall revert to the Borrower and the Administrative
Agent shall deliver to the Borrower any Collateral held by the Administrative
Agent hereunder, and execute and deliver to the Borrower such documents as the
Borrower shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by the Borrower in a transaction permitted by the Credit
Agreements, then the Administrative Agent, at the request and sole expense of
the Borrower, shall execute and deliver to the Borrower all releases or other
documents reasonably necessary or desirable for the release of the Liens created
hereby on such Collateral.
16
7.16 Conflict. In the event there is a conflict between the terms of this
Agreement and the Credit Agreements, the Credit Agreements shall control. In the
event that there is a dispute as to the charge or pledge of the Charged Shares
or the Pledged Stock of L-3 U.K. and a court of competent jurisdiction
determines that the laws of the United Kingdom shall govern such dispute, then
the Charge Over Shares shall control such dispute as to the Charged Shares and
Pledged Stock of L-3 U.K.; provided that, if such a court determines that the
laws of the State of New York shall govern such dispute, then this Borrower
Pledge Agreement shall control such dispute as to the Charged Shares and Pledged
Stock of L-3 U.K.
[Signature page follows]
17
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed and delivered as of the date first above written.
L-3 COMMUNICATIONS CORPORATION
By:
---------------------------------
Xxxxxxxxxxx X. Xxxxxxx
Vice President - General Counsel
and Secretary
ADDRESS FOR NOTICES:
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTENTION: Xxxxxx XxXxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
ACCEPTED ON BEHALF OF THE AGENTS AND
THE LENDERS AS OF THE DATE FIRST
ABOVE WRITTEN:
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT
By:
-----------------------------------
Name:
Title:
S-1
SCHEDULE 1
DESCRIPTION OF PLEDGED STOCK
PLEDGED STOCK:
Issuer Class of Stock Stock Certificate No. No. of Shares
------ -------------- --------------------- -------------
L-3 Communications Ilex Common 1 100
Systems, Inc.
Hygienetics Environmental Common 2 100
Services, Inc.
X-0 Xxxxxxxxxxxxxx X.X. Ltd. Ordinary Shares 3 65
L-3 Communications SPD Common 1 100
Technologies Inc.
L-3 Communications Aydin Common 1 1000
Corporation
Microdyne Corporation* Common 1 1000
* Represented by the stock certificate of X-X Acquisition Corporation
("X-X") which was converted to the stock of the surviving company in
the merger of X-X and Microdyne Corporation.
Schedule 2
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
Jurisdiction of Organization Location of Chief Executive Office
---------------------------- ----------------------------------
Delaware 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ACKNOWLEDGMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the
Second Amended and Restated Borrower Pledge Agreement dated as of _______ __,
2000 (the "Agreement"), made by the parties thereto for the benefit of Bank of
America, N.A, as Administrative Agent. The undersigned agrees for the benefit of
the Administrative Agent and the Lenders as follows:
1. The undersigned will be bound by the terms of the Agreement
and will comply with such terms insofar as such terms are applicable to the
undersigned.
2. The undersigned will notify the Administrative Agent
promptly in writing of the occurrence of any of the events described in Section
4.2(a) of the Agreement.
3. The terms of Sections 5.1(a) and 5.5 of the Agreement shall
apply to it, mutatis mutandis, with respect to all actions that may be required
of it pursuant to Section 5.1(a) or 5.5 of the Agreement.
HYGIENETICS ENVIRONMENTAL SERVICES, INC.
------------------------------------------------
Xxxxxxxxxxx X. Xxxxxxx
Vice President - General Counsel and Secretary
L-3 COMMUNICATIONS ILEX SYSTEMS, INC.
------------------------------------------------
Xxxxxxxxxxx X. Xxxxxxx
Vice President - General Counsel and Secretary
L-3 COMMUNICATIONS SPD TECHNOLOGIES INC.
------------------------------------------------
Xxxxxxxxxxx X. Xxxxxxx
Vice President - General Counsel and Secretary
L-3 COMMUNICATIONS AYDIN CORPORATION
------------------------------------------------
Xxxxxxxxxxx X. Xxxxxxx
Vice President - General Counsel and Secretary
MICRODYNE CORPORATION
Xxxxxxxxxxx X. Xxxxxxx
Vice President - General Counsel and Secretary
X-0 XXXXXXXXXXXXXX X.X. LTD.
------------------------------------------------
Name: -----------------------------------------
Title: -----------------------------------------
Address for Notices to all Signatories:
x/x X-0 Xxxxxxxxxxxxxx Xxxxxxxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
EXHIBIT B-4B
TO CREDIT AGREEMENT
================================================================================
AMENDED AND RESTATED CHARGE OVER SHARES
made by
L-3 COMMUNICATIONS CORPORATION
in favor of
BANK OF AMERICA, N.A.,
as Administrative Agent
Dated April 24, 2000
================================================================================
TABLE OF CONTENTS
Page
SECTION 1. DEFINED TERMS.............................................................3
1.1. Definitions............................................................3
1.2. Other Definitional Provisions..........................................4
1.3. Effect of Restatement..................................................4
SECTION 2. CHARGE....................................................................4
SECTION 3. REPRESENTATIONS AND WARRANTIES............................................5
3.1. Title; No Other Liens..................................................5
3.2. Perfected First Fixed Charge Over Shares...............................5
3.3. Chief Executive Office.................................................5
3.4. Charged Shares.........................................................5
SECTION 4. COVENANTS.................................................................6
4.1. Undertaking to Pay.....................................................6
4.2. Charged Shares.........................................................6
SECTION 4A. CERTAIN AFFIRMATIVE COVENANTS............................................7
4A.1 Maintenance of Perfected Security Interest; Further Assurances.........7
4A.2 Payment of Obligations.................................................8
4A.3 Notices................................................................9
SECTION 5. REMEDIAL PROVISIONS.......................................................9
5.1. Charged Shares.........................................................9
5.2. Payments to be Turned Over To Administrative Agent....................10
5.3. Application of Dividends and Other Payments...........................10
5.4. Right to Enforce Security.............................................10
5.5. Right to Take Possession, Exercise Rights, etc........................11
5.6. Law of Property Xxx 0000 Not Applicable...............................11
5.7. No Liability of Administrative Agent..................................11
SECTION 6. THE ADMINISTRATIVE AGENT.................................................11
6.1. Administrative Agent's Appointment as Attorney-in-Fact, etc...........11
6.2. Duty of Administrative Agent..........................................12
6.3. Authority of Administrative Agent.....................................13
i
SECTION 7. MISCELLANEOUS............................................................13
7.1. Amendments in Writing.................................................13
7.2. Notices...............................................................13
7.3. No Waiver by Course of Conduct; Cumulative Remedies...................13
7.4. Enforcement Expenses; Indemnification.................................13
7.5. Successors and Assigns................................................14
7.6. Set-Off...............................................................14
7.7. Counterparts..........................................................15
7.8. Severability..........................................................15
7.9. Section Headings......................................................15
7.10. Integration..........................................................15
7.11. GOVERNING LAW........................................................15
7.12. SUBMISSION TO JURISDICTION; WAIVERS..................................15
7.13. Acknowledgments......................................................16
7.14. WAIVER OF JURY TRIAL.................................................16
7.15. Releases.............................................................17
7.16. Conflict; New York Law Pledge Agreement..............................17
ii
AMENDED AND RESTATED CHARGE OVER SHARES
This AMENDED AND RESTATED CHARGE OVER SHARES, dated April 24, 2000, is
made between (i) L-3 Communications Corporation, a Delaware corporation (the
"Borrower"), and (ii) Bank of America, N.A., as Administrative Agent (in such
capacity, the "Administrative Agent") for (a) the banks and other financial
institutions or entities (collectively, the "Facility A Lenders") from time to
time parties to the Second Amended and Restated Credit Agreement, dated as of
April 24, 2000 (as amended, restated, supplemented or otherwise modified from
time to time, the "Facility A Credit Agreement"), among L-3 Communications
Corporation, a Delaware corporation (the "Borrower"), the Facility A Lenders,
Xxxxxx Commercial Paper Inc. ("LCPI"), as documentation agent (in such capacity,
the "Facility A Documentation Agent"), LCPI as syndication agent (in such
capacity, the "Facility A Syndication Agent"; and together with the Facility A
Documentation Agent and the Administrative Agent, the "Facility A Agents"),
Xxxxxx Brothers, Inc. ("LBI") and Banc of America Securities LLC (f/k/a
BancAmerica Xxxxxxxxx Xxxxxxxx) as arrangers (in such capacity, the "Facility A
Arrangers"), the Administrative Agent and certain other entities named therein
as Co-Agents, which amended and restated in its entirety that certain Amended
and Restated Credit Agreement dated as of August 13, 1998 (as amended, restated,
supplemented or otherwise modified prior to the date hereof, the "Original
Facility A Credit Agreement") among the Borrower, the Agents party thereto (the
"Original Facility A Agents", including the Administrative Agent party thereto,
the "Original Facility A Administrative Agent"), the lenders party thereto (the
"Original Facility A Lenders") and LCPI and BancAmerica Xxxxxxxxx Xxxxxxxx
(n/k/a Banc of America Securities LLC ) as arrangers, and (b) the banks and
other financial institutions or entities (the "Facility B Lenders"; and together
with the Facility A Lenders, the "Lenders"), from time to time parties to the
Amended and Restated 364 Day Credit Agreement, dated as of April 24, 2000 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Facility B Credit Agreement"), among the Borrower, the Administrative Agent,
LCPI as documentation agent (in such capacity, the "Facility B Documentation
Agent"), LCPI as syndication agent (in such capacity, the "Facility B
Syndication Agent"; and together with the Facility B Documentation Agent and the
Administrative Agent, the "Facility B Agents"), LCPI and Banc of America
Securities LLC (f/k/a BankAmerica Xxxxxxxxx Xxxxxxxx) as arrangers (in such
capacity, the "Facility B Arrangers"), the Administrative Agent and certain
other entities named therein as Co-Agents, which amended and restated in its
entirety that certain 364 Day Credit Agreement dated as of August 13, 1998 (as
amended, restated, supplemented or otherwise modified prior to the date hereof,
the "Original Facility B Credit Agreement"; and together with the Original
Facility A Credit Agreement, the "Original Credit Agreements") among the
Borrower, the Administrative Agent (the "Original Facility B Administrative
Agent"; and together with the Original Facility A Administrative Agent, the
"Original Administrative Agents"), the other Agents party thereto (together with
the Original Facility B Administrative Agent, the "Original Facility B Agents";
and together with the Original Facility A Agents, the Original Agents"), the
lenders party thereto (the "Original Facility B Lenders"; and together with the
Original Facility A Lenders, the "Original Lenders") and LCPI and BancAmerica
Xxxxxxxxx Xxxxxxxx (n/k/a Banc of America Securities LLC ) as arrangers, and (c)
the banks and other financial institutions or entities (the "Facility C
Lenders"; and together with the Facility A Lenders and the Facility B Lenders,
the
"Lenders"), from time to time parties to the New 364 Day Credit Agreement,
dated as of April 24, 2000 (as amended, restated, supplemented or otherwise
modified from time to time, the "Facility C Credit Agreement"; and together with
the Facility A Credit Agreement and the Facility B Credit Agreement, each a
"Credit Agreement", and collectively, the "Credit Agreements"), among the
Borrower, the Administrative Agent, LCPI as documentation agent (in such
capacity, the "Facility C Documentation Agent"), LCPI as syndication agent (in
such capacity, the "Facility C Syndication Agent"; and together with the
Facility C Documentation Agent and the Administrative Agent, the "Facility C
Agents"; and together with the Facility A Agents and the Facility B Agents, the
"Agents"), Xxxxxx Brothers, Inc. ("LBI") and Banc of America Securities LLC as
arrangers (in such capacity, the "Facility C Arrangers"; and together with the
Facility A Arrangers and the Facility B Arrangers, the "Arrangers"), the
Administrative Agent and certain other entities named therein as Managing
Agents.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower executed and delivered to the Original
Administrative Agents a certain Charge Over Shares (as amended, restated,
supplemented or otherwise modified from time to time prior to the date hereof,
the "Existing Charge Over Shares") in favour of the Original Administrative
Agents for the ratable benefit of the Original Lenders and the Original Agents
to secure the Obligations (as defined in the Existing Charge Over Shares);
WHEREAS, the Borrower and the Administrative Agent wish to amend and
restate the Existing Charge Over Shares (as so amended and restated herein, this
"Charge Over Shares") to, inter alia, reflect the amending and restating of the
Original Credit Agreements and the entering into of the Facility C Credit
Agreement;
WHEREAS, concurrently herewith, the Borrower has entered into a Second
Amended and Restated Borrower Pledge Agreement governed by the laws of the State
of New York, pursuant to which the Borrower has, inter alia, pledged to the
Administrative Agent certain shares of capital stock of L-3 Communications U.K.
Ltd. (as amended, restated, supplemented or otherwise modified from time to
time, the "New York Law Pledge Agreement"); and
WHEREAS, the Lenders have required, as a condition to the extension of
credit under the Credit Agreements that the Borrower execute and deliver this
Charge Over Shares.
NOW, THEREFORE, in consideration of the premises and to induce the
Agents and the Lenders to enter into the Credit Agreements, and to induce the
Lenders to make their respective extensions of credit to or for the benefit of
the Borrower thereunder, the Borrower hereby agrees with the Administrative
Agent, for the ratable benefit of the Lenders and the Agents, to amend and
restate the Existing Charge Over Shares in its entirety to read as provided
herein:
2
SECTION 1. DEFINED TERMS
1.1 Definitions.
(a) Unless otherwise defined herein, terms defined in the Credit
Agreements and used herein shall have the collective meanings given to them in
each of the Credit Agreements.
(b) The following terms shall have the following meanings:
"Charged Shares": the shares listed on Schedule 1, together with any
other shares, stock certificates, securities convertible into and warrants,
options, and other rights to purchase or otherwise acquire, or rights of any
nature whatsoever in respect of the share capital of any Person that may be
issued or granted to, or held by, the Borrower while this Charge Over Shares is
in effect; provided that, in no event shall the Charged Shares include more than
65.0 percent of the issued and outstanding capital shares of L-3 Communications
U.K. Ltd. ("L-3 U.K.") (the "U.K. Issuer Share Charge Limitation").
"Charge Over Shares": this Amended and Restated Charge Over Shares, as
the same may be amended, supplemented or otherwise modified from time to time.
"Collateral": as defined in Section 2.
"Issuers": the collective reference to each issuer of any Charged
Shares.
"Obligations": the collective reference to the unpaid principal of and
interest on the Loans and Reimbursement Obligations under each of the Credit
Agreements and all other obligations and liabilities of the Borrower (including,
without limitation, (i) interest accruing at the then applicable rate provided
in each of the Credit Agreements after the maturity of the Loans and
Reimbursement Obligations and interest accruing at the then applicable rate
provided in each of the Credit Agreements after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding and (ii) any exposure of
any Lender under any lockbox arrangement, controlled disbursement arrangement,
checking accounts or other similar arrangements (collectively, "Cash Management
Agreements") with or on behalf of the Borrower and/or its Subsidiaries) to any
Agent or any Lender (or, in the case of any Interest Rate Agreement referred to
below, any Affiliate of any Lender), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, either of the Credit Agreements,
this Charge Over Shares, the other Credit Documents, any Letter of Credit or any
Interest Rate Agreement entered into by the Borrower with any Lender (or any
Affiliate of any Lender) or any Cash Management Agreement entered into by the
Borrower or any Subsidiary of the Borrower with any Lender or any other document
made, delivered or given in connection therewith, in each case whether on
account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel
3
to the Agents and the Lenders that are required to be paid by the Borrower
pursuant to the terms of any of the foregoing agreements).
1.2 Other Definitional Provisions.
(a) The words "hereof," "herein", "hereto" and "hereunder" and words
of similar import when used in this Charge Over Shares shall refer to this
Charge Over Shares as a whole and not to any particular provision of this Charge
Over Shares, and Section and Schedule references are to this Charge Over Shares
unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or
any part thereof shall refer to the Borrower's Collateral or the relevant part
thereof.
(d) References to the Borrower, any Agent or the Lender include
references to any person for the time being deriving title under each of them
respectively.
1.3 Effect of Restatement. This Charge Over Shares amends, restates and
supersedes the Existing Charge Over Shares; provided, that (i) the Liens in
favor of Administrative Agent for the benefit of Lenders securing payment of the
Obligations are in all respects continuing and in full force and effect with
respect to all Obligations and (ii) all references in the other Credit Documents
to the Existing Change Over Shares shall be deemed to refer without further
amendment to this Charge Over Shares.
SECTION 2. CHARGE
The Borrower, as beneficial owner and as security for the payment and
discharge of all the Obligations, hereby charges in favor of the Administrative
Agent by way of a first fixed charge all of the following property now owned or
at any time hereafter acquired by the Borrower or in which the Borrower now has
or at any time in the future may acquire any right, title or interest
(collectively, the "Collateral"), as security for the prompt and complete
payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations:
(a) all Charged Shares;
(b) any other securities which the Borrower may, with the prior
consent of the Administrative Agent, from time to time substitute for all or any
of the Charged Shares; and
(c) all other securities and all rights, moneys (including, without
limitation, dividends) and property whatsoever which may from time to time at
any time be derived from, accrue on or be offered in respect of the Charged
Shares whether by way of redemption, exchange, conversion, rights, bonus,
capital reorganization or otherwise howsoever.
4
As security for its obligations under this Charge Over Shares, the
Borrower has delivered, or procured there to be delivered to the Administrative
Agent:
(i) all share certificates representing the Charged Shares; and
(ii) blank, undated stock transfer forms in respect of the
Charged Shares executed by the Borrower.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit Agreements
and to induce the Agents and the Lenders to make their respective extensions of
credit to or for the benefit of the Borrower thereunder, the Borrower hereby
represents and warrants as to itself and the Collateral charged by it hereunder
to each of the Agents and the Lenders that:
3.1 Title; No Other Liens. Except for the security interest and charge
granted to the Administrative Agent for the ratable benefit of the Agents and
the Lenders pursuant to this Charge Over Shares and the other Liens permitted to
exist on the Collateral by the Credit Agreements, the Borrower owns each item of
the Collateral free and clear of any and all Liens or claims of others.
3.2 Perfected First Fixed Charge Over Shares. The charge granted pursuant
to this Charge Over Shares:
(a) constitutes a valid perfected charge over all of the Collateral in
favor of the Administrative Agent, for the ratable benefit of the Agents and the
Lenders, as security for the Obligations, enforceable in accordance with the
terms hereof against all creditors of the Borrower and any Persons purporting to
purchase any Collateral from the Borrower, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing; and
(b) are prior to all other charges and Liens on the Collateral in
existence on the date hereof except for Liens permitted by the Credit Agreements
which have priority over the Liens on the Collateral by operation of law.
3.3 Chief Executive Office. On the date hereof, the Borrower's jurisdiction
of organization and the location of the Borrower's chief executive office is
specified on Schedule 2.
3.4 Charged Shares.
(a) The Charged Shares charged by the Borrower hereunder constitute
(i) 65 percent of the issued and outstanding shares of all classes of the
Capital Stock of L-3 U.K. and (ii) all outstanding warrants, options or other
rights to purchase, or other agreements outstanding with respect to, or property
that is now or hereafter convertible into, or that requires the issuance
5
or sale of, any Charged Shares and such Charged Shares have been validly charged
to the Administrative Agent pursuant hereto.
(b) All the Charged Shares have been duly and validly issued and are
fully paid and nonassessable.
(c) The Borrower is the record and beneficial owner of, and has good
and marketable title to, the Charged Shares charged by it hereunder, free of any
and all Liens or options in favor of, or claims of, any other Person, except the
security interest created by this Charge Over Shares and other Liens permitted
by the Credit Agreements which have priority by operation of law.
SECTION 4. COVENANTS
The Borrower covenants and agrees with the Agents and the Lenders
that, from and after the date of this Charge Over Shares until the Obligations
shall have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
4.1 Undertaking to Pay. The Borrower shall discharge each Obligation when
due in accordance with its terms or, in the case of an Obligation the terms of
which do not provide a time for payment, immediately on demand by the
Administrative Agent.
4.2 Charged Shares.
(a) If the Borrower shall become entitled to receive or shall receive
any instruments, stock certificates (including, without limitation, any
certificate representing a stock dividend or a distribution in connection with
any reclassification, increase or reduction of capital or any certificate issued
in connection with any reorganization), options or rights in respect of the
Capital Stock of any Issuer, whether in addition to, in substitution of, as a
conversion of, or in exchange for, any of the Charged Shares, or as a dividend
or distribution thereunder, or otherwise in respect thereof, and subject to the
U.K. Issuer Share Charge Limitation, the Borrower shall accept the same as the
agent of the Agents and the Lenders, hold the same in trust for the Agents and
the Lenders and promptly (and in any event within 60 days) deliver the same
forthwith to the Administrative Agent in the exact form received, duly endorsed
by the Borrower to the Administrative Agent, if required, together with an
undated stock transfer form or endorsement covering such certificate or
instrument, as applicable, duly executed in blank by the Borrower and with, if
the Administrative Agent so requests, signature guaranteed, to be held by the
Administrative Agent, subject to the terms hereof, as additional security for
the Obligations. Any sums paid upon or in respect of the Charged Shares upon the
liquidation or dissolution of any Issuer shall be promptly (and in any event
within 60 days) paid over to the Administrative Agent to be held by it hereunder
as additional security for the Obligations, and in case any distribution of
capital shall be made on or in respect of the Charged Shares or any property
shall be distributed upon or with respect to the Charged Shares pursuant to the
recapitalization or reclassification of the capital of any Issuer or pursuant to
the reorganization thereof, the property so distributed shall, unless otherwise
subject to a perfected security interest in favor of the Administrative Agent,
be promptly (and in any event within 60 days) delivered to the
6
Administrative Agent to be held by it hereunder as additional security (or
except as provided in the Credit Agreements) for the Obligations. Except as
provided in the Credit Agreements, if any sums of money or property so paid or
distributed in respect of the Charged Shares under circumstances described in
this Section 4.2(a) shall be received by the Borrower, the Borrower shall, until
such money or property is paid or delivered to the Administrative Agent, hold
such money or property in trust for the Lenders, segregated from other funds of
the Borrower, as additional security for the Obligations.
(b) Except as provided in the Credit Agreements, without the prior
written consent of the Administrative Agent, the Borrower will not (i) vote to
enable, or take any other action to permit, any Issuer to issue any shares or
other equity securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any shares or
other equity securities of any nature of any Issuer, (ii) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with respect
to, any of the Collateral (except pursuant to a transaction expressly permitted
by the Credit Agreements), (iii) create, incur or permit to exist any Lien or
option in favor of, or any claim of any Person with respect to, any of the
Collateral, or any interest therein, except for the security interests created
by this Charge Over Shares or (iv) enter into any agreement or undertaking
restricting the right or ability of the Borrower or the Administrative Agent to
sell, assign or transfer any of the Collateral.
SECTION 4A. CERTAIN AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with the Agents and the Lenders
that, from and after the date of this Charge Over Shares until the Obligations
shall have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
4A.1 Maintenance of Perfected Security Interest; Further Assurances.
(a) The Borrower shall:
(i) execute and deliver to the Administrative Agent (or as it may
direct) any assignment, mortgage, power of attorney, proxy or other
document, governed by the laws of England and Wales or such other country
as the Administrative Agent may, in any particular case, reasonably
specify;
(ii) effect any registration or notarization, give any notice or
take any other step, which the Administrative Agent may, by notice to the
Borrower and with the consent of the Required Lenders, reasonably specify
for any of the purposes described in Section 4A.1(b) or for any similar or
related purpose.
(b) Those purposes (which in each case the Administrative Agent shall
have determined are necessary or desirable to give effect to the terms of this
Charge Over Shares) are
(i) validly and effectively to create any Lien or right of any
kind which the Administrative Agent intended should be created by or
pursuant to this Charge Over Shares or the Credit Agreements;
7
(ii) to create a specific mortgage or assignment of any particular
part of the Collateral or otherwise to vest in the Administrative Agent the
title to any particular part of the Collateral;
(iii) to protect the priority, or increase the effectiveness, in
any jurisdiction of any Lien which is created, or which the Administrative
Agent intended should be created, by or pursuant to this Charge Over Shares
or the Credit Agreements;
(iv) to enable or assist the Administrative Agent to sell or
otherwise deal with any part of the Collateral to transfer title to, or
grant any interest or right relating to, any part of the Collateral or to
exercise any power which is referred to in Section 5 or which is conferred
by the Credit Agreements;
(v) to enable or assist the Administrative Agent to enter into any
transaction to commence, defend or conduct any proceedings and/or to take
any other action relating to the Collateral in any country or under the law
of any country.
(c) The Administrative Agent may specify the terms of any document to
be executed by the Borrower under Section 4A.1(a), and those terms may include
any covenants, powers and provisions which the Administrative Agent reasonably
considers appropriate to protect its own or any other Lender's or Agent's
interests.
(d) The Borrower shall comply with a notice under Section 4A.1(a) by
the date specified in the notice.
(e) At the same time as the Borrower delivers to the Administrative
Agent any document executed under 4.3(a)(i), the Borrower shall also deliver to
the Administrative Agent a certificate signed by two (2) of the Borrower's
directors which shall:
(i) set out the text of a resolution of the Borrower's directors
specifically authorizing the execution of the document specified by the
Administrative Agent; and
(ii) state either that the resolution was duly passed at a meeting
of the directors validly convened and held throughout which a quorum of
directors entitled to vote on the resolution was present or that the
resolution has been signed by all the directors and is valid under the
Borrower's by-laws or other constitutional documents.
4A.2 Payment of Obligations. The Borrower will pay and discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all material taxes, assessments and governmental charges or levies
imposed upon the Collateral or in respect of income or profits therefrom, as
well as all material claims of any kind (including, without limitation, claims
for labor, materials and supplies) against or with respect to the Collateral,
except that no such charge need be paid if the amount or validity thereof is
currently being contested in good faith by appropriate proceedings, reserves in
conformity with GAAP with respect thereto have been provided on the books of the
Borrower and such proceedings
8
could not reasonably be expected to result in the sale, forfeiture or loss of
any material portion of the Collateral or any interest therein.
4A.3 Notices. The Borrower will advise the Agents and the Lenders
promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or
Liens permitted under the Credit Agreements) on any of the Collateral which
would adversely affect the ability of the Administrative Agent to exercise
any of its remedies hereunder; and
(b) the occurrence of any other event of which it is aware which
could reasonably be expected to have a material adverse effect on the
enforceability, or perfection or priority of, the security interests
purported to be created hereby.
SECTION 5. REMEDIAL PROVISIONS
5.1 Charged Shares.
(a) Unless an Event of Default shall have occurred and be continuing
and the Administrative Agent shall have given notice to the Borrower of the
Administrative Agent's intent to exercise its corresponding rights pursuant to
subsections 5.4 and/or 5.5, the Borrower shall be permitted to receive all cash
dividends, principal and interest paid in respect of the Charged Shares paid in
the normal course of business of the relevant Issuer and consistent with past
practice, to the extent permitted in the Credit Agreements, and to exercise all
voting and corporate rights with respect to the Charged Shares; provided,
however, that no vote shall be cast or corporate right exercised or other action
taken which, in the Administrative Agent's reasonable judgment, would materially
impair the Collateral or which would result in any violation of any provision of
the Credit Agreements, this Charge Over Shares or any other Credit Document.
(b) THE BORROWER HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS THE
ADMINISTRATIVE AGENT AS THE PROXY AND ATTORNEY-IN-FACT OF THE BORROWER WITH
RESPECT TO THE COLLATERAL, INCLUDING THE RIGHT TO VOTE THE CHARGED SHARES, WITH
FULL POWER OF SUBSTITUTION TO DO SO UPON THE OCCURRENCE OF AN EVENT OF DEFAULT.
THE APPOINTMENT OF THE ADMINISTRATIVE AGENT AS PROXY AND ATTORNEY-IN-FACT IS
COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE UNTIL THE OCCURRENCE OF THE
LAST TERMINATION DATE. IN ADDITION TO THE RIGHT TO VOTE THE CHARGED SHARES, THE
APPOINTMENT OF THE ADMINISTRATIVE AGENT AS PROXY AND ATTORNEY-IN-FACT SHALL
INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS, PRIVILEGES AND REMEDIES
TO WHICH A HOLDER OF THE CHARGED SHARES WOULD BE ENTITLED (INCLUDING GIVING OR
WITHHOLDING WRITTEN CONSENTS OF SHAREHOLDERS, CALLING SPECIAL MEETINGS OF
SHAREHOLDERS AND VOTING AT SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE,
AUTOMATICALLY AND
9
WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY CHARGED
SHARES ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON (INCLUDING THE
ISSUER OF THE CHARGED SHARES OR ANY OFFICER OR AGENT THEREOF), UPON THE
OCCURRENCE OF AN EVENT OF DEFAULT. NOTWITHSTANDING THE FOREGOING, THE
ADMINISTRATIVE AGENT SHALL NOT HAVE ANY DUTY TO EXERCISE ANY SUCH RIGHT OR TO
PRESERVE THE SAME AND SHALL NOT BE RESPONSIBLE FOR ANY FAILURE TO DO SO OR FOR
ANY DELAY IN DOING SO.
Immediately following the occurrence of an Event of Default, the
Borrower shall give notice to the Secretary of L-3 U.K. of the appointment of
the Administrative Agent as the Borrower's proxy and the Borrower's attorney in
accordance with this Section 5.1 and Section 6 in relation to the Charged
Shares.
5.2 Payments to be Turned Over To Administrative Agent. If an Event of
Default shall occur and be continuing, all payments or other funds received in
respect of any of the Collateral (including all dividends, distributions or
other income in respect of the Collateral) by the Borrower consisting of cash,
checks and other near-cash items shall be held by the Borrower in trust for the
Agents and the Lenders, segregated from other funds of the Borrower, and shall,
forthwith upon receipt by the Borrower, be turned over to the Administrative
Agent in the exact form received by the Borrower (duly endorsed by the Borrower
to the Administrative Agent, if required). All such payments or other funds
received by the Administrative Agent hereunder shall be held by the
Administrative Agent in a deposit account (a "Collateral Account") maintained
under its sole dominion and control. All such payments or other funds while held
by the Administrative Agent in a Collateral Account (or by the Borrower in trust
for the Administrative Agent and the Lenders) shall continue to be held as
security for all the Obligations and shall not constitute payment thereof until
applied as provided in subsection 5.3.
5.3 Application of Dividends and Other Payments. At such intervals as may
be agreed upon by the Borrower and the Administrative Agent, or, if an Event of
Default shall have occurred and be continuing, at any time at the Administrative
Agent's election, the Administrative Agent may apply all or any part of amounts
held in any Collateral Account in payment of the Obligations in such order as
required by the Credit Agreements, and any part of such funds which are not
required as security for the Obligations shall be paid over from time to time by
the Administrative Agent to the Borrower or to whomsoever may be lawfully
entitled to receive the same. Any balance of such amounts held in any Collateral
Account remaining after the Obligations shall have been paid in full, no Letters
of Credit shall be outstanding and the Commitments shall have terminated shall
be paid over to the Borrower or to whomsoever may be lawfully entitled to
receive the same.
5.4 Right to Enforce Security. On the occurrence of an Event of Default
but without the necessity for any court order in any jurisdiction to the
effect that an Event of Default has occurred or that the security constituted
by this Charge Over Shares has become enforceable:
10
(a) the security constituted by this Charge Over Shares shall
immediately become enforceable;
(b) the Administrative Agent shall be entitled at any time or times to
exercise the powers set out in Section 5.5 and in the Credit Agreements; and
(c) the Administrative Agent shall be entitled at any time or times to
exercise all the powers possessed by it as chargee of the Collateral conferred
by the law of any country or territory the courts of which have or claim any
jurisdiction in respect of the Collateral concerned.
5.5 Right to Take Possession, Exercise Rights, etc. On the occurrence of an
Event of Default, the Administrative Agent shall be entitled then or at any
later time or times:
(a) to exercise the power of sale and other powers conferred by
Section 101 of the Law of Property Act, 1925 as varied or amended by this Charge
Over Shares;
(b) solely and exclusively to exercise all voting and/or consensual
powers pertaining to the Charged Shares or any thereof and may exercise such
powers in such manner as the Administrative Agent may think fit;
(c) in connection with, or in order to facilitate, a sale of the
Charged Shares, to remove the then existing Directors and Officers (with or
without cause); and/or
(d) to sell the Charged Shares or any part thereof at such place and
in such manner and at such price or prices as the Administrative Agent may
reasonably deem fit, and upon any such sale the Administrative Agent shall have
the right to deliver, assign and transfer to each purchaser thereof the Charged
Shares so sold.
5.6 Law of Property Xxx 0000 Not Applicable. The Borrower hereby waives the
entitlement conferred by section 93 of the Law of Property Xxx 0000 and agrees
that section 103 of that Act shall not apply to the security created by this
Charge Over Shares.
5.7 No Liability of Administrative Agent. The Administrative Agent shall
not be obliged to check the nature or sufficiency of any payment received by it
under this Charge Over Shares or to preserve, exercise or enforce any right
forming part of, or relating to, any Collateral.
SECTION 6. THE ADMINISTRATIVE AGENT
6.1 Administrative Agent's Appointment as Attorney-in-Fact, etc.
(a) The Borrower hereby irrevocably constitutes and appoints the
Administrative Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Borrower and in the name of
the Borrower or in its own name, for the purpose of carrying out the terms of
this Charge Over Shares, to take any and all appropriate action and to execute
any and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Charge Over Shares, and, without limiting the
generality of the foregoing, the Borrower
11
hereby gives the Administrative Agent the power and right, on behalf of the
Borrower, without notice to or assent by the Borrower, to do any or all of the
following:
(i) in the name of the Borrower or its own name, or otherwise,
take possession of and endorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under or
with respect to any Collateral and file any claim or take any other action
or proceeding in any court of law or equity or otherwise deemed appropriate
by the Administrative Agent for the purpose of collecting any and all such
moneys due under or with respect to any Collateral whenever payable;
(ii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral; and
(iii) execute, in connection with any sale provided for in
subsections 5.4 or 5.5, any endorsements, assignments or other instruments
of conveyance or transfer with respect to the Collateral.
Anything in this subsection 6.1(a) to the contrary notwithstanding,
the Administrative Agent agrees that it will not exercise any rights under the
power of attorney provided for in this subsection 6.1(a) unless an Event of
Default shall have occurred and be continuing.
(b) If the Borrower fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the Administrative Agent incurred in connection
with actions undertaken as provided in this subsection 6.1, together with
interest thereon at a rate per annum equal to the rate per annum at which
interest would then be payable on past due Base Rate Loans under the Credit
Agreements, from the date of payment by the Administrative Agent to the date
reimbursed by the Borrower, shall be payable by the Borrower to the
Administrative Agent on demand.
(d) The Borrower hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Charge Over Shares are coupled with an interest and
are irrevocable until this Charge Over Shares is terminated and the security
interests created hereby are released.
6.2 Duty of Administrative Agent. The Administrative Agent's sole duty with
respect to the custody, safekeeping and physical preservation of the Collateral
in its possession shall be to deal with it in the same manner as the
Administrative Agent deals with similar property for its own account. Neither
the Administrative Agent, any other Agent, any Lender nor any of their
respective officers, directors, employees or agents shall be liable for failure
to demand, collect or realize upon any of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of the Borrower or any other Person or to take any
other action whatsoever with regard to the Collateral or any part thereof. The
12
powers conferred on the Agents and the Lenders hereunder are solely to protect
the Agents' and the Lenders' interests in the Collateral and shall not impose
any duty upon any Agents or Lenders to exercise any such powers. The Agents and
the Lenders shall be accountable only for amounts that they actually receive as
a result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to the Borrower
for any act or failure to act hereunder, except for their own gross negligence
or willful misconduct.
6.3 Authority of Administrative Agent. The Borrower acknowledges that the
rights and responsibilities of the Administrative Agent under this Charge Over
Shares with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Charge Over Shares shall, as among the Agents
and the Lenders, be governed by the Credit Agreements and by such other
agreements with respect thereto as may exist from time to time among them, but,
as among the Agents and the Borrower, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Lenders with full and valid
authority so to act or refrain from acting, and the Borrower shall not be under
any obligation, or entitlement, to make any inquiry respecting such authority.
SECTION 7. MISCELLANEOUS
7.1 Amendments in Writing. None of the terms or provisions of this Charge
Over Shares may be waived, amended, restated, supplemented or otherwise modified
except in accordance with subsection 10.1 of each of the Credit Agreements.
7.2 Notices. All notices, requests and demands to or upon the Agents or the
Borrower hereunder shall be effected in the manner provided for in subsection
10.2 of each of the Credit Agreements.
7.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent, any other Agent nor any Lender shall by any act (except by
a written instrument pursuant to Section 7.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of any of the Agents or Lenders, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by any of the Agents or Lenders of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Administrative Agent, on behalf of the other Agents and the
Lenders, would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
7.4 Enforcement Expenses; Indemnification.
(a) The Borrower agrees to pay or reimburse each of the Lenders and
the Agents for all its reasonable costs and expenses incurred in collecting
against the Borrower or
13
otherwise enforcing or preserving any rights under this Charge Over Shares and
the other Credit Documents to which the Borrower is a party, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent and of counsel to each of the other Agents and Lenders.
(b) The Borrower agrees to pay, and to save the Agents and the Lenders
harmless from, any and all liabilities with respect to, or resulting from any
delay in paying, any and all stamp, excise, sales or other taxes which may be
payable or determined to be payable with respect to any of the Collateral or in
connection with any of the transactions contemplated by this Charge Over Shares.
(c) The Borrower agrees to pay, and to save the Agents and the Lenders
harmless from, any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Charge Over Shares to the extent the
Borrower would be required to do so pursuant to subsection 10.5 of the
applicable Credit Agreement.
(d) The agreements in this subsection 7.4 shall survive repayment of
the Obligations and all other amounts payable under each of the Credit
Agreements and the other Credit Documents.
7.5 Successors and Assigns. This Charge Over Shares shall be binding upon
the successors and assigns of the Borrower and shall inure to the benefit of the
Agents and the Lenders and their successors and assigns; provided that the
Borrower may not assign, transfer or delegate any of its rights or obligations
under this Charge Over Shares without the prior written consent of the
Administrative Agent.
7.6 Set-Off. The Borrower hereby irrevocably authorizes each of the Agents
and Lenders at any time and from time to time pursuant to subsection 10.7(b) of
the applicable Credit Agreement whenever an Event of Default shall have occurred
and be continuing, without notice to the Borrower, any such notice being
expressly waived by the Borrower, to set-off and appropriate and apply any and
all deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Agent or Lender to or for the
credit or the account of the Borrower, or any part thereof in such amounts as
such Agent or Lender may elect, against and on account of the obligations and
liabilities of the Borrower to such Agent or Lender hereunder and claims of
every nature and description of such Agent or Lender against the Borrower, in
any currency, whether arising hereunder, under the Credit Agreements, any other
Credit Document or otherwise, as such Agent or Lender may elect, whether or not
any Agent or Lender has made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured. Each of the
Agents and Lenders shall notify the Borrower promptly of any such set-off and
the application made by such Agent or Lender of the proceeds thereof, provided
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights
14
of the Agents and Lenders under this subsection 7.6 are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
which such Agents or Lenders may have.
7.7 Counterparts. This Charge Over Shares may be executed by one or more of
the parties to this Charge Over Shares on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. This Charge
Over Shares shall be effective when a counterpart which bears the signature of
the Borrower and a counterpart of the attached Acknowledgment and Consent which
bears the signature of L-3 U.K. shall have been delivered to the Administrative
Agent and the Administrative Agent shall have executed this Charge Over Shares.
7.8 Severability. Any provision of this Charge Over Shares which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
7.9 Section Headings. The Section headings used in this Charge Over Shares
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
7.10 Integration. This Charge Over Shares and the other Credit Documents
represent the agreement of the Borrower, the Agents and the Lenders with respect
to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by any of the Agents or Lenders
relative to the subject matter hereof and thereof not expressly set forth or
referred to herein, the Credit Agreements or in the other Credit Documents.
7.11 GOVERNING LAW. THIS CHARGE OVER SHARES AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF ENGLAND AND WALES.
7.12 SUBMISSION TO JURISDICTION; WAIVERS. THE BORROWER HEREBY IRREVOCABLY
AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS CHARGE OVER SHARES OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF ANY OF ENGLAND, 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;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH
COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR
15
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 AND THAT A JUDGMENT IN ANY PROCEEDINGS
BROUGHT IN ANY COMPETENT COURT SHALL BE CONCLUSIVE AND BINDING UPON THE BORROWER
AND MAY BE ENFORCED IN THE COURTS OF ANY OTHER JURISDICTION;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO THE BORROWER AT ITS
ADDRESS REFERRED TO IN SUBSECTION 7.2 OR AT SUCH OTHER ADDRESS OF WHICH THE
ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO AND WITH RESPECT
TO ANY ACTION BROUGHT IN ENGLAND BY DELIVERING A COPY THEREOF OF TO L-3 U.K.
WHICH THE BORROWER HEREBY APPOINTS AS ITS AGENT FOR SERVICE OF PROCESS IN
ENGLAND WITH RESPECT TO ANY ACTION BROUGHT AGAINST THE BORROWER UNDER OR
RELATING TO THIS CHARGE OVER SHARES OR ANY OF THE COLLATERAL;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO XXX IN ANY OTHER JURISDICTION; AND
(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT
MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN
THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
7.13 Acknowledgments. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Charge Over Shares and the other Credit Documents to which it
is a party;
(b) none of the Agents nor Lenders has any fiduciary relationship with
or duty to the Borrower arising out of or in connection with this Charge Over
Shares or any of the other Credit Documents, and the relationship between the
Borrower, on the one hand, and the Agents and Lenders, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated hereby
among Agents, among the Agents and/or the Lenders or among the Borrower and the
Agents and/or the Lenders.
7.14 WAIVER OF JURY TRIAL. THE BORROWER AND, BY ACCEPTANCE OF THE BENEFITS
HEREOF, EACH OF THE LENDERS AND THE AGENTS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN
16
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS CHARGE OVER SHARES OR ANY OTHER
CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
7.15 Releases.
(a) At such time as the Loans, the Reimbursement Obligations and the
other Obligations shall have been paid in full, the Commitments have been
terminated and no Letters of Credit shall be outstanding, the Collateral shall
be released from the Liens created hereby, and this Charge Over Shares and all
obligations (other than those expressly stated to survive such termination) of
the Administrative Agent and the Borrower hereunder shall terminate, all without
delivery of any instrument or performance of any act by any party, and all
rights to the Collateral shall revert to the Borrower and the Administrative
Agent shall deliver to the Borrower any Collateral held by the Administrative
Agent hereunder, and execute and deliver to the Borrower such documents as the
Borrower shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by the Borrower in a transaction permitted by the Credit Agreements,
then the Administrative Agent, at the request and sole expense of the Borrower,
shall execute and deliver to the Borrower all releases or other documents
reasonably necessary or desirable for the release of the Liens created hereby on
such Collateral.
7.16 Conflict; New York Law Pledge Agreement. In the event there is a
conflict between the terms of this Charge Over Shares and the Credit Agreements,
the Credit Agreements shall control. In the event that there is a dispute as to
the charge or pledge of the Charged Shares, and a court of competent
jurisdiction determines that the laws of the State of New York shall govern such
dispute, then the New York Law Pledge Agreement shall control such dispute as to
the Charged Shares; provided that, if such a court determines that the laws of
England and Wales shall govern such dispute, then this Charge Over Shares shall
control such dispute as to the Charged Shares.
[Signature page follows]
17
IN WITNESS whereof the parties hereto have caused this Charge Over
Shares to be duly executed as a Deed the day and year first before written.
Executed as a deed )
by L-3 COMMUNICATIONS CORPORATION ) SEAL
----
acting by______________________________________)
Signature of Secretary_________________________)
Signature of witness___________________________)
ADDRESS FOR NOTICES:
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTENTION: President
Phone: x0 000 000-0000
Fax: x0 000 000-0000
Executed as a deed )
by BANK OF AMERICA, N.A., )
AS ADMINISTRATIVE AGENT )
acting by______________________________________)
Signature of Assistant Secretary_______________)
Signature of witness___________________________)
S-1
ACKNOWLEDGMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Charge
Over Shares dated _______ __, 2000 (the "Charge Over Shares"), made by the
parties thereto for the benefit of Bank of America, N.A., as Administrative
Agent. The undersigned agrees for the benefit of the Administrative Agent and
the Lenders as follows:
1. The undersigned will be bound by the terms of the Charge Over
Shares and will comply with such terms insofar as such terms are applicable to
the undersigned.
2. The undersigned will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in Section 4.2(a) of
the Charge Over Shares.
3. The terms of Sections 5.1(a) and 5.5 of the Charge Over Shares
shall apply to it, mutatis mutandis, with respect to all actions that may be
required of it pursuant to Section 5.1(a) or 5.5 of the Charge Over Shares.
4. The undersigned accepts the appointment by the Borrower pursuant to
subsection 7.12(c) of the undersigned as agent for the Borrower for service of
process in England for any action brought against the Borrower under or relating
to the Charge Over Shares or any of the Collateral (as defined therein).
X-0 XXXXXXXXXXXXXX X.X. LTD.
_________________________________________
Name: ___________________________________
Title: __________________________________
Address for Notices:
x/x X-0 Xxxxxxxxxxxxxx Xxxxxxxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
SCHEDULE 1
DESCRIPTION OF CHARGED SHARES
CHARGED SHARES:
Issuer Class of Shares Share Certificate No. No. of Shares
------ --------------- --------------------- -------------
X-0 Xxxxxxxxxxxxxx X.X. Ltd. Ordinary 3 65
Schedule 2
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
Jurisdiction of Organization Location of Chief Executive Office
---------------------------- ----------------------------------
Delaware 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT B-5
TO CREDIT AGREEMENT
================================================================================
SECOND AMENDED AND RESTATED SUBSIDIARY PLEDGE AGREEMENT
made by
HYGIENETICS ENVIRONMENTAL SERVICES, INC.,
L-3 COMMUNICATIONS ILEX SYSTEMS, INC.,
L-3 COMMUNICATIONS SPD TECHNOLOGIES INC
L-3 COMMUNICATIONS AYDIN CORPORATION
and
MICRODYNE CORPORATION
in favor of
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
Dated as of April 24, 2000
================================================================================
TABLE OF CONTENTS
Page
Section 1. DEFINED TERMS...............................................................3
1.1 Definitions..........................................................................3
1.2 Other Definitional Provisions........................................................4
1.3 Effect of Restatement................................................................4
Section 2. PLEDGE......................................................................4
Section 3. REPRESENTATIONS AND WARRANTIES..............................................5
3.1 Representations in Credit Agreements.................................................5
3.2 Title; No Other Liens................................................................5
3.3 Perfected First Priority Liens.......................................................5
3.4 Chief Executive Office...............................................................6
3.5 Pledged Stock........................................................................6
Section 4. COVENANTS...................................................................6
4.1 Maintenance of Perfected Security Interest...........................................6
4.2 Pledged Stock........................................................................6
Section 4a. CERTAIN AFFIRMATIVE COVENANTS...............................................7
4A.1 Further Documentation................................................................8
4A.2 Payment of Obligations...............................................................8
4A.3 Notices..............................................................................8
Section 5. REMEDIAL PROVISIONS.........................................................8
5.1 Pledged Stock........................................................................8
5.2 Proceeds to be Turned Over To Administrative Agent...................................9
5.3 Application of Proceeds.............................................................10
5.4 Code and Other Remedies.............................................................10
5.5 Registration Rights.................................................................11
5.6 Waiver; Deficiency..................................................................12
Section 6. THE ADMINISTRATIVE AGENT...................................................12
6.1 Administrative Agent's Appointment as Attorney-in-Fact, etc.........................12
6.2 Duty of Administrative Agent........................................................13
6.3 Authority of Administrative Agent...................................................13
Section 7. MISCELLANEOUS..............................................................14
7.1 Amendments in Writing...............................................................14
7.2 Notices.............................................................................14
7.3 No Waiver by Course of Conduct; Cumulative Remedies.................................14
7.4 Enforcement Expenses; Indemnification...............................................14
7.5 Successors and Assigns..............................................................15
7.6 Set-Off.............................................................................15
7.7 Counterparts........................................................................15
7.8 Severability........................................................................15
7.9 Section Headings....................................................................16
7.10 Integration.........................................................................16
7.11 GOVERNING LAW.......................................................................16
7.12 SUBMISSION TO JURISDICTION; WAIVERS.................................................16
i
Page
7.13 Acknowledgments.....................................................................17
7.14 WAIVER OF JURY TRIAL................................................................17
7.15 Additional Grantors.................................................................17
7.16 Releases............................................................................17
ii
SECOND AMENDED AND RESTATED SUBSIDIARY PLEDGE AGREEMENT
This SECOND AMENDED AND RESTATED SUBSIDIARY PLEDGE AGREEMENT,
dated as of April 24, 2000, is made by each of the signatories hereto (together
with any other entity that may become a party hereto as provided herein, the
"Grantors"), in favor of Bank of America, N.A., as Administrative Agent (in such
capacity, the "Administrative Agent") for (a) the banks and other financial
institutions or entities (collectively, the "Facility A Lenders") from time to
time parties to the Second Amended and Restated Credit Agreement, dated as of
April 24, 2000 (as amended, restated, supplemented or otherwise modified from
time to time, the "Facility A Credit Agreement"), among L-3 Communications
Corporation, a Delaware corporation (the "Borrower"), the Facility A Lenders,
Xxxxxx Commercial Paper Inc. ("LCPI"), as documentation agent (in such capacity,
the "Facility A Documentation Agent"), LCPI as syndication agent (in such
capacity, the "Facility A Syndication Agent"; and together with the Facility A
Documentation Agent and the Administrative Agent, the "Facility A Agents"), LCPI
and Banc of America Securities LLC (f/k/a BancAmerica Xxxxxxxxx Xxxxxxxx) as
arrangers (in such capacity, the "Facility A Arrangers"), the Administrative
Agent and certain other entities named therein as Co-Agents, which amended and
restated in its entirety that certain Amended and Restated Credit Agreement
dated as of August 13, 1998 (as amended, restated, supplemented or otherwise
modified prior to the date hereof, the "Original Facility A Credit Agreement")
among the Borrower, the Agents party thereto (the "Original Facility A Agents",
including the Administrative Agent party thereto, the "Original Facility A
Administrative Agent"), the lenders party thereto (the "Original Facility A
Lenders") and LCPI and BancAmerica Xxxxxxxxx Xxxxxxxx (n/k/a Banc of America
Securities LLC) as arrangers, and (b) the banks and other financial
institutions or entities (the "Facility B Lenders"; and together with the
Facility A Lenders, the "Lenders"), from time to time parties to the Amended and
Restated 364 Day Credit Agreement, dated as of April 24, 2000 (as amended,
restated, supplemented or otherwise modified from time to time, the "Facility B
Credit Agreement"), among the Borrower, the Administrative Agent, LCPI as
documentation agent (in such capacity, the "Facility B Documentation Agent"),
LCPI as syndication agent (in such capacity, the "Facility B Syndication Agent";
and together with the Facility B Documentation Agent and the Administrative
Agent, the "Facility B Agents"), LCPI and Banc of America Securities LLC (f/k/a
BankAmerica Xxxxxxxxx Xxxxxxxx) as arrangers (in such capacity, the "Facility B
Arrangers"), the Administrative Agent and certain other entities named therein
as Co-Agents, which amended and restated in its entirety that certain 364 Day
Credit Agreement dated as of August 13, 1998 (as amended, restated, supplemented
or otherwise modified prior to the date hereof, the "Original Facility B Credit
Agreement"; and together with the Original Facility A Credit Agreement, the
"Original Credit Agreements") among the Borrower, the Administrative Agent (the
"Original Facility B Administrative Agent"; and together with the Original
Facility A Administrative Agent, the "Original Administrative Agents"), the
other Agents party thereto (together with the Original Facility B Administrative
Agent, the "Original Facility B Agents"; and together with the Original Facility
A Agents, the Original Agents"), the lenders party thereto (the "Original
Facility B Lenders"; and together with the Original Facility A Lenders, the
"Original Lenders") and LCPI and BancAmerica Xxxxxxxxx Xxxxxxxx (n/k/a Banc of
America Securities LLC ) as arrangers, and (c) the banks and other financial
institutions or entities (the
"Facility C Lenders"; and together with the Facility A Lenders and the Facility
B Lenders, the "Lenders"), from time to time parties to the New 364 Day Credit
Agreement, dated as of April 24, 2000 (as amended, restated, supplemented or
otherwise modified from time to time, the "Facility C Credit Agreement"; and
together with the Facility A Credit Agreement and the Facility B Credit
Agreement, each a "Credit Agreement", and collectively, the "Credit
Agreements"), among the Borrower, the Administrative Agent, LCPI as
documentation agent (in such capacity, the "Facility C Documentation Agent"),
LCPI as syndication agent (in such capacity, the "Facility C Syndication Agent";
and together with the Facility C Documentation Agent and the Administrative
Agent, the "Facility C Agents"; and together with the Facility A Agents and the
Facility B Agents, the "Agents"), Xxxxxx Brothers, Inc. ("LBI") and Banc of
America Securities LLC as arrangers (in such capacity, the "Facility C
Arrangers"; and together with the Facility A Arrangers and the Facility B
Arrangers, the "Arrangers"), the Administrative Agent and certain other entities
named therein as Managing Agents.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, each Grantor executed and delivered to the Original
Administrative Agents a certain Amended and Restated Subsidiary Pledge and
Security Agreement (as amended, restated, supplemented or otherwise modified
from time to time prior to the date hereof, the "Existing Pledge Agreement") in
favor of the Original Administrative Agents for the ratable benefit of the
Original Lenders and the Original Agents to secure the Obligations (as defined
in the Existing Pledge Agreement);
WHEREAS, each Grantor and the Administrative Agent wish to
amend and restate the Existing Pledge Agreement (as so amended and restated
herein, this "Agreement") to, inter alia, reflect the amending and restating of
the Original Credit Agreements and the entering into of the Facility C Credit
Agreement;
WHEREAS, the Borrower is a member of an affiliated group of
companies that includes each Grantor;
WHEREAS, the proceeds of the extensions of credit under the
Credit Agreements will be used in part to enable the Borrower to make valuable
transfers to one or more of the other Grantors in connection with the operation
of their respective businesses;
WHEREAS, the Borrower and the other Grantors are engaged in
related businesses, and each Grantor will derive substantial direct and indirect
benefit from the making of the extensions of credit under the Credit Agreements;
and
WHEREAS, the Lenders have required, as a condition to the
extension of credit under the Credit Agreements, that each Grantor execute and
deliver this Agreement
NOW, THEREFORE, in consideration of the premises and to induce
the Agents and the Lenders to enter into the Credit Agreements, and to induce
the Lenders to make their respective extensions of credit to or for the benefit
of the Borrower thereunder, each Grantor hereby agrees with the Administrative
Agent, for the ratable benefit of the Lenders and the
2
Agents, to amend and restate the Existing Pledge Agreement in its entirety to
read as provided herein:
SECTION 1. DEFINED TERMS
1.1 Definitions.
(a) Unless otherwise defined herein, terms defined in the
Credit Agreements and used herein shall have the collective meanings given to
them in each of the Credit Agreements.
(b) The following terms shall have the following meanings:
"Agreement": this Second Amended and Restated Subsidiary
Pledge Agreement, as the same may be amended, supplemented or
otherwise modified from time to time.
"Collateral": as defined in Section 2.
"Issuers": the collective reference to each issuer of any
Pledged Stock.
"New York UCC": the Uniform Commercial Code as from time
to time in effect in the State of New York.
"Obligations": the collective reference to the unpaid
principal of and interest on the Loans and Reimbursement
Obligations under each of the Credit Agreements and all other
obligations and liabilities of the Borrower and any other Credit
Party (including, without limitation), (i) interest accruing at the
then applicable rate provided in each of the Credit Agreements
after the maturity of the Loans and Reimbursement Obligations and
interest accruing at the then applicable rate provided in each of
the Credit Agreements after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization
or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such
proceeding and (ii) any exposure of any Lender under any lockbox
arrangement, controlled disbursement arrangement, checking accounts
or other similar arrangements (collectively, "Cash Management
Agreements") with or on behalf of the Borrower and/or its
Subsidiaries) to any Agent or any Lender (or, in the case of any
Interest Rate Agreement referred to below, any Affiliate of any
Lender), whether direct or indirect, absolute or contingent, due or
to become due, or now existing or hereafter incurred, which may
arise under, out of, or in connection with, either of the Credit
Agreements, this Agreement, the Subsidiary Guarantees, the other
Credit Documents, any Letter of Credit or any Interest Rate
Agreement entered into by the Borrower or any other Credit Party
with any Lender (or any Affiliate of any Lender) or any Cash
Management Agreement entered into by the Borrower or any Subsidiary
of the Borrower with any Lender or any other document made,
delivered or given in connection therewith, in each case whether on
account of principal, interest, reimbursement obligations, fees,
3
indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Agents and
the Lenders that are required to be paid by the Borrower pursuant
to the terms of any of the foregoing agreements).
"Pledged Stock": the shares of Capital Stock listed on
Schedule 1, together with any other shares, stock certificates,
options or rights of any nature whatsoever in respect of the
Capital Stock of any Person that may be issued or granted to, or
held by, any Grantor while this Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in
Section 9-306(1) of the Uniform Commercial Code in effect in the
State of New York on the date hereof and, in any event, shall
include, without limitation, all dividends or other income from the
Pledged Stock, collections thereon or distributions or payments
with respect thereto.
"Securities Act": the Securities Act of 1933, as amended.
1.2 Other Definitional Provisions.
(a) The words "hereof," "herein", "hereto" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section and Schedule references are to this Agreement unless otherwise
specified.
(b) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a Grantor, shall refer
to such Grantor's Collateral or the relevant part thereof.
1.3 Effect of Restatement. This Agreement amends, restates and
supersedes the Existing Pledge Agreement; provided, that (i) the Liens in favor
of Administrative Agent for the benefit of Lenders securing payment of the
Obligations are in all respects continuing and in full force and effect with
respect to all Obligations and (ii) all references in the other Credit Documents
to the Existing Pledge Agreement shall be deemed to refer without further
amendment to this Agreement.
SECTION 2. PLEDGE
Each Grantor hereby pledges to the Administrative Agent, and
hereby grants to the Administrative Agent, for the ratable benefit of the Agents
and the Lenders, a first priority security interest in all of the following
property now owned or at any time hereafter acquired by such Grantor or in which
such Grantor now has or at any time in the future may acquire any right, title
or interest (collectively, the "Collateral"), as collateral security for the
prompt
4
and complete payment and performance when due (whether at the stated maturity,
by acceleration or otherwise) of the Obligations:
(a) all Pledged Stock; and
(b) to the extent not otherwise included, all Proceeds of any
and all of the foregoing and all collateral security and guarantees given by any
Person with respect to any of the foregoing.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit
Agreements and to induce the Agents and the Lenders to make their respective
extensions of credit to or for the benefit of the Borrower thereunder, each
Grantor hereby represents and warrants to each of the Agents and the Lenders
that:
3.1 Representations in Credit Agreements. In the case of each
Grantor, the representations and warranties set forth in Section 4 of the Credit
Agreements as they relate to such Grantor, each of which is hereby incorporated
herein by reference, are true and correct, and each of the Agents and Lenders
shall be entitled to rely on each of them as if they were fully set forth
herein, provided that each reference in each such representation and warranty to
the Borrower's knowledge shall, for the purposes of this Section 3.1, be deemed
to be a reference to such Grantor's knowledge.
3.2 Title; No Other Liens. Except for the security interest
granted to the Administrative Agent for the ratable benefit of the Agents and
the Lenders pursuant to this Agreement and the other Liens permitted to exist on
the Collateral by the Credit Agreements, such Grantor owns each item of the
Collateral free and clear of any and all Liens or claims of others.
3.3 Perfected First Priority Liens. The security interests
granted pursuant to this Agreement:
(a) upon delivery by each of the Grantors to the
Administrative Agent of the original certificates evidencing such Pledged Stock
together with undated stock powers therefor duly executed in blank, will
constitute valid perfected security interests in all of the Collateral in favor
of the Administrative Agent, for the ratable benefit of the Agents and the
Lenders, as collateral security for the Obligations, enforceable in accordance
with the terms hereof against all creditors of such Grantor and any Persons
purporting to purchase any Collateral from such Grantor, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing; and
5
(b) are prior to all other Liens on the Collateral in
existence on the date hereof except for Liens permitted by the Credit Agreements
which have priority over the Liens on the Collateral by operation of law.
3.4 Chief Executive Office. On the date hereof, such Grantor's
jurisdiction of organization and the location of such Grantor's chief executive
office is specified on Schedule 2.
3.5 Pledged Stock.
(a) The shares of Pledged Stock pledged by such Grantor
hereunder constitute all the issued and outstanding shares of all classes of the
Capital Stock of each Issuer owned by such Grantor.
(b) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
(c) Such Grantor is the record and beneficial owner of, and
has good and marketable title to, the Pledged Stock pledged by it hereunder,
free of any and all Liens or options in favor of, or claims of, any other
Person, except the security interest created by this Agreement and other Liens
permitted by the Credit Agreements which have priority by operation of law.
SECTION 4. COVENANTS
Each Grantor covenants and agrees with the Agents and the
Lenders that, from and after the date of this Agreement until the Obligations
shall have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
4.1 Maintenance of Perfected Security Interest. Such Grantor
shall maintain the security interest created by this Agreement as a perfected
security interest having at least the priority described in subsection 3.3 and
shall defend such security interest against the claims and demands of all
Persons whomsoever.
4.2 Pledged Stock.
(a) If such Grantor shall become entitled to receive or shall
receive any instruments, stock certificates (including, without limitation, any
certificate representing a stock dividend or a distribution in connection with
any reclassification, increase or reduction of capital or any certificate issued
in connection with any reorganization), options or rights in respect of the
Capital Stock of any Issuer, whether in addition to, in substitution of, as a
conversion of, or in exchange for, any shares of the Pledged Stock, or as a
dividend or distribution thereunder, or otherwise in respect thereof, such
Grantor shall accept the same as the agent of the Agents and the Lenders, hold
the same in trust for the Agents and the Lenders and promptly (and in any event
within 60 days) deliver the same forthwith to the Administrative Agent in the
exact form received, duly endorsed by such Grantor to the Administrative Agent,
if required, together with an undated stock power or endorsement covering such
certificate or instrument, as applicable,
6
duly executed in blank by such Grantor and with, if the Administrative Agent so
requests, signature guaranteed, to be held by the Administrative Agent, subject
to the terms hereof, as additional collateral security for the Obligations. Any
sums paid upon or in respect of the Pledged Stock upon the liquidation or
dissolution of any Issuer shall be promptly (and in any event within 60 days)
paid over to the Administrative Agent to be held by it hereunder as additional
collateral security for the Obligations, and in case any distribution of capital
shall be made on or in respect of the Pledged Stock or any property shall be
distributed upon or with respect to the Pledged Stock pursuant to the
recapitalization or reclassification of the capital of any Issuer or pursuant to
the reorganization thereof, the property so distributed shall, unless otherwise
subject to a perfected security interest in favor of the Administrative Agent,
be promptly (and in any event within 60 days) delivered to the Administrative
Agent to be held by it hereunder as additional collateral security (or except as
provided in the Credit Agreements) for the Obligations. Except as provided in
the Credit Agreements, if any sums of money or property so paid or distributed
in respect of the Pledged Stock under circumstances described in this Section
4.2(a) shall be received by such Grantor, such Grantor shall, until such money
or property is paid or delivered to the Administrative Agent, hold such money or
property in trust for the Lenders, segregated from other funds of such Grantor,
as additional collateral security for the Obligations.
(b) Except as provided in the Credit Agreements, without the
prior written consent of the Administrative Agent, such Grantor will not (i)
vote to enable, or take any other action to permit, any Issuer to issue any
stock or other equity securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any stock or
other equity securities of any nature of any Issuer, (ii) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with respect
to, the Pledged Stock or Proceeds thereof (except pursuant to a transaction
expressly permitted by the Credit Agreements), (iii) create, incur or permit to
exist any Lien or option in favor of, or any claim of any Person with respect
to, any of the Pledged Stock or Proceeds thereof, or any interest therein,
except for the security interests created by this Agreement or (iv) enter into
any agreement or undertaking restricting the right or ability of such Grantor or
the Administrative Agent to sell, assign or transfer any of the Pledged Stock or
Proceeds thereof.
(c) In the case of each Grantor which is an Issuer, such
Issuer agrees that (i) it will be bound by the terms of this Agreement relating
to the Pledged Stock issued by it and will comply with such terms insofar as
such terms are applicable to it, (ii) it will notify the Administrative Agent
promptly in writing of the occurrence of any of the events described in
subsection 4.2(a) with respect to the Pledged Stock issued by it and (iii) the
terms of subsections 5.1(c) and 5.5 shall apply to it, mutatis mutandis, with
respect to all actions that may be required of it pursuant to subsections 5.1(c)
or 5.5 with respect to the Pledged Stock issued by it.
SECTION 4A. CERTAIN AFFIRMATIVE COVENANTS
Each Grantor covenants and agrees with the Agents and the
Lenders that, from and after the date of this Agreement until the Obligations
shall have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
7
4A.1 Further Documentation.
(a) Such Grantor will furnish to the Agents and the
Lenders from time to time statements and schedules further identifying
and describing the Collateral and such other reports in connection with
the Collateral as the Administrative Agent may reasonably request, all
in reasonable detail.
(b) At any time and from time to time, upon the
written request of the Administrative Agent, and at the sole expense of
such Grantor, such Grantor will promptly and duly execute and deliver,
such further instruments and documents and take such further actions as
the Administrative Agent may reasonably request for the purpose of
obtaining or preserving the full benefits of this Agreement and of the
rights and powers herein granted.
4A.2 Payment of Obligations.
Such Grantor will pay and discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all
material taxes, assessments and governmental charges or levies imposed upon the
Collateral or in respect of income or profits therefrom, as well as all material
claims of any kind (including, without limitation, claims for labor, materials
and supplies) against or with respect to the Collateral, except that no such
charge need be paid if the amount or validity thereof is currently being
contested in good faith by appropriate proceedings, reserves in conformity with
GAAP with respect thereto have been provided on the books of such Grantor and
such proceedings could not reasonably be expected to result in the sale,
forfeiture or loss of any material portion of the Collateral or any interest
therein.
4A.3 Notices. Such Grantor will advise the Agents and the
Lenders promptly, in reasonable detail, of:
(a) any Lien (other than security interests created
hereby or Liens permitted under the Credit Agreements) on any of the
Collateral which would adversely affect the ability of the
Administrative Agent to exercise any of its remedies hereunder; and
(b) the occurrence of any other event of which it is
aware which could reasonably be expected to have a material adverse
effect on the enforceability, or perfection or priority of, the
security interests purported to be created hereby.
SECTION 5. REMEDIAL PROVISIONS
5.1 Pledged Stock.
(a) Unless an Event of Default shall have occurred and be
continuing and the Administrative Agent shall have given notice to the relevant
Grantor of the Administrative Agent's intent to exercise its corresponding
rights pursuant to subsection 5.1(b), each Grantor
8
shall be permitted to receive all cash dividends paid in respect of the Pledged
Stock paid in the normal course of business of the relevant Issuer and
consistent with past practice, to the extent permitted in the Credit Agreements,
and to exercise all voting and corporate rights with respect to the Pledged
Stock; provided, however, that no vote shall be cast or corporate right
exercised or other action taken which, in the Administrative Agent's reasonable
judgment, would materially impair the Collateral or which would result in any
violation of any provision of the Credit Agreements, this Agreement or any other
Credit Document.
(b) If an Event of Default shall occur and be continuing and
the Administrative Agent shall give notice of its intent to exercise such rights
to the relevant Grantor or Grantors, (i) the Administrative Agent shall have the
right to receive any and all cash dividends, payments or other Proceeds paid in
respect of the Pledged Stock and make application thereof to the Obligations in
such order as the Administrative Agent may determine, and (ii) any or all of the
Pledged Stock shall be registered in the name of the Administrative Agent or its
nominee, and the Administrative Agent or its nominee may thereafter exercise (x)
all voting, corporate and other rights pertaining to such Pledged Stock at any
meeting of shareholders of the relevant Issuer or Issuers or otherwise
(including giving or withholding written consents of shareholders and calling
special meetings of shareholders) and (y) any and all rights of conversion,
exchange and subscription and any other rights, privileges or options pertaining
to such Pledged Stock as if it were the absolute owner thereof (including,
without limitation, the right to exchange at its discretion any and all of the
Pledged Stock upon the merger, consolidation, reorganization, recapitalization
or other fundamental change in the corporate structure of any Issuer, or upon
the exercise by any Grantor or the Administrative Agent of any right, privilege
or option pertaining to such Pledged Stock, and in connection therewith, the
right to deposit and deliver any and all of the Pledged Stock with any
committee, depositary, transfer agent, registrar or other designated agency upon
such terms and conditions as the Administrative Agent may determine), all
without liability except to account for property actually received by it, but
the Administrative Agent shall have no duty to any Grantor to exercise any such
right, privilege or option and shall not be responsible for any failure to do so
or delay in so doing.
(c) Each Grantor hereby authorizes and instructs each Issuer
of any Pledged Stock pledged by such Grantor hereunder to (i) comply with any
instruction received by it from the Administrative Agent in writing that (x)
states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees that each Issuer
shall be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Pledged Stock directly to the Administrative Agent.
5.2 Proceeds to be Turned Over To Administrative Agent. If an
Event of Default shall occur and be continuing, all Proceeds received by any
Grantor consisting of cash, checks and other near-cash items shall be held by
such Grantor in trust for the Agents and the Lenders, segregated from other
funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be
turned over to the Administrative Agent in the exact form received by such
Grantor (duly endorsed by such Grantor to the Administrative Agent, if
required). All Proceeds received
9
by the Administrative Agent hereunder shall be held by the Administrative Agent
in a deposit account (a "Collateral Account") maintained under its sole dominion
and control. All Proceeds while held by the Administrative Agent in a Collateral
Account (or by such Grantor in trust for the Administrative Agent and the
Lenders) shall continue to be held as collateral security for all the
Obligations and shall not constitute payment thereof until applied as provided
in subsection 5.3.
5.3 Application of Proceeds. At such intervals as may be
agreed upon by the Borrower and the Administrative Agent, or, if an Event of
Default shall have occurred and be continuing, at any time at the Administrative
Agent's election, the Administrative Agent may apply all or any part of Proceeds
held in any Collateral Account in payment of the Obligations in such order as
required by the Credit Agreements, and any part of such funds which are not
required as collateral security for the Obligations shall be paid over from time
to time by the Administrative Agent to the Borrower or to whomsoever may be
lawfully entitled to receive the same. Any balance of such Proceeds remaining
after the Obligations shall have been paid in full, no Letters of Credit shall
be outstanding and the Commitments shall have terminated shall be paid over to
the Borrower or to whomsoever may be lawfully entitled to receive the same.
5.4 Code and Other Remedies. If an Event of Default shall
occur and be continuing, the Administrative Agent, on behalf of the Agents and
the Lenders, may exercise, in addition to all other rights and remedies granted
to them in this Agreement and in any other instrument or agreement securing,
evidencing or relating to the Obligations, all rights and remedies of a secured
party under the New York UCC or any other applicable law. Without limiting the
generality of the foregoing, the Administrative Agent, without demand of
performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice required by law referred to below) to or upon any
Grantor or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, lease, assign, give option or options
to purchase, or otherwise dispose of and deliver the Collateral or any part
thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, at any exchange, broker's board or office of
any of the Agents or Lenders or elsewhere upon such terms and conditions as it
may deem advisable and at such prices as it may deem best, for cash or on credit
or for future delivery without assumption of any credit risk. Any Agents or
Lenders shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption in any Grantor, which right or equity is hereby waived and released.
The Administrative Agent shall apply the net proceeds of any action taken by it
pursuant to this subsection 5.4, after deducting all reasonable costs and
expenses of every kind incurred in connection therewith or incidental to the
care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Agents and the Lenders hereunder, including,
without limitation, reasonable attorneys' fees and disbursements, to the payment
in whole or in part of the Obligations, in such order as the Administrative
Agent may elect, and only after such application and after the payment by the
Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the New York UCC, need
10
the Administrative Agent account for the surplus, if any, to any Grantor. To the
extent permitted by applicable law, each Grantor waives all claims, damages and
demands it may acquire against any Agents or Lenders arising out of the exercise
by them of any rights hereunder. If any notice of a proposed sale or other
disposition of Collateral shall be required by law, such notice shall be deemed
reasonable and proper if given at least 15 days before such sale or other
disposition.
5.5 Registration Rights.
(a) If the Administrative Agent shall determine to exercise
its right to sell any or all of the Pledged Stock pursuant to subsection 5.4,
and if in the opinion of the Administrative Agent it is necessary or advisable
to have the Pledged Stock, or that portion thereof to be sold, registered under
the provisions of the Securities Act, the relevant Grantor will cause the Issuer
thereof to (i) execute and deliver, and cause the directors and officers of such
Issuer to execute and deliver, all such instruments and documents, and do or
cause to be done all such other acts as may be, in the opinion of the
Administrative Agent, necessary or advisable to register the Pledged Stock, or
that portion thereof to be sold, under the provisions of the Securities Act,
(ii) use its commercially reasonable efforts to cause the registration statement
relating thereto to become effective and to remain effective for a period of one
year from the date of the first public offering of the Pledged Stock, or that
portion thereof to be sold, and (iii) make all amendments thereto and/or to the
related prospectus which, in the opinion of the Administrative Agent, are
necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto. Each Grantor agrees to cause such Issuer to
comply with the provisions of the securities or "Blue Sky" laws of any and all
jurisdictions which the Administrative Agent shall designate and to make
available to its security holders, as soon as practicable, an earnings statement
(which need not be audited) which will satisfy the provisions of Section 11(a)
of the Securities Act.
(b) Each Grantor recognizes that the Administrative Agent may
be unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(c) Each Grantor agrees to use its commercially reasonable
efforts to do or cause to be done all such other acts as may be necessary to
make such sale or sales of all or any portion of the Pledged Stock pursuant to
this subsection 5.5 valid and binding and in compliance with any and all other
applicable Requirements of Law. Each Grantor further agrees that a
11
breach of any of the covenants contained in this subsection 5.5 will cause
irreparable injury to the Agents and the Lenders, that the Agents and the
Lenders have no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this subsection 5.5 shall
be specifically enforceable against such Grantor, and such Grantor hereby waives
and agrees not to assert any defenses against an action for specific performance
of such covenants except for a defense that no Event of Default has occurred
under the Credit Agreements.
5.6 Waiver; Deficiency. Each Grantor waives and agrees not to
assert any rights or privileges which it may acquire under Section 9-112 of the
New York UCC. Each Grantor shall remain liable for any deficiency if the
proceeds of any sale or other disposition of the Collateral are insufficient to
pay its Obligations and the fees and disbursements of any attorneys employed by
the Administrative Agent or any Lender to collect such deficiency.
SECTION 6. THE ADMINISTRATIVE AGENT
6.1 Administrative Agent's Appointment as Attorney-in-Fact,
etc.
(a) Each Grantor hereby irrevocably constitutes and appoints
the Administrative Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Grantor and in the name of
such Grantor or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, and, without limiting the generality of the
foregoing, each Grantor hereby gives the Administrative Agent the power and
right, on behalf of such Grantor, without notice to or assent by such Grantor,
to do any or all of the following:
(i) in the name of such Grantor or its own name, or
otherwise, take possession of and endorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of
moneys due under or with respect to any Collateral and file any claim
or take any other action or proceeding in any court of law or equity
or otherwise deemed appropriate by the Administrative Agent for the
purpose of collecting any and all such moneys due under or with
respect to any Collateral whenever payable;
(ii) pay or discharge taxes and Liens levied or
placed on or threatened against the Collateral; and
(iii) execute, in connection with any sale provided
for in subsections 5.4 or 5.5, any endorsements, assignments or other
instruments of conveyance or transfer with respect to the Collateral.
Anything in this subsection 6.1(a) to the contrary
notwithstanding, the Administrative Agent agrees that it will not exercise any
rights under the power of attorney provided for in this subsection 6.1(a) unless
an Event of Default shall have occurred and be continuing.
12
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the Administrative Agent incurred in
connection with actions undertaken as provided in this subsection 6.1, together
with interest thereon at a rate per annum equal to the rate per annum at which
interest would then be payable on past due Base Rate Loans under the Credit
Agreements, from the date of payment by the Administrative Agent to the date
reimbursed by the relevant Grantor, shall be payable by such Grantor to the
Administrative Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
6.2 Duty of Administrative Agent. The Administrative Agent's
sole duty with respect to the custody, safekeeping and physical preservation of
the Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Administrative
Agent deals with similar property for its own account. Neither the
Administrative Agent, any other Agent, any Lender nor any of their respective
officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of any Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Agents and the Lenders hereunder are solely to protect the
Agents' and the Lenders' interests in the Collateral and shall not impose any
duty upon any Agents or Lender to exercise any such powers. The Agents and the
Lenders shall be accountable only for amounts that they actually receive as a
result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to any Grantor for
any act or failure to act hereunder, except for their own gross negligence or
willful misconduct.
6.3 Authority of Administrative Agent. Each Grantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Agreement with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
voting right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as among the Agents and the
Lenders, be governed by the Credit Agreements and by such other agreements with
respect thereto as may exist from time to time among them, but, as among the
Agents and the Grantors, the Administrative Agent shall be conclusively presumed
to be acting as agent for the Lenders with full and valid authority so to act or
refrain from acting, and no Grantor shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.
13
SECTION 7. MISCELLANEOUS
7.1 Amendments in Writing. None of the terms or provisions of
this Agreement may be waived, amended, restated, supplemented or otherwise
modified except in accordance with subsection 10.1 of each of the Credit
Agreements.
7.2 Notices. All notices, requests and demands to or upon the
Agents, the Lenders or any Grantor hereunder shall be effected in the manner
provided for in subsection 10.2 of each of the Credit Agreements; provided, that
any such notice, request, or demand to or upon any Grantor shall be addressed to
such Grantor at its address set forth below its respective signature hereto.
7.3 No Waiver by Course of Conduct; Cumulative Remedies.
Neither the Administrative Agent, any other Agent nor any Lender shall by any
act (except by a written instrument pursuant to Section 7.1), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default. No failure to exercise,
nor any delay in exercising, on the part of any of the Agents or Lenders, any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by any of the Agents or Lenders of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Administrative Agent, on behalf of other Agents and the
Lenders, would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
7.4 Enforcement Expenses; Indemnification.
(a) Each Grantor agrees to pay or reimburse each of the
Lenders and the Agents for all its reasonable costs and expenses incurred in
collecting against such Grantor or otherwise enforcing or preserving any rights
under this Agreement and the other Credit Documents to which such Grantor is a
party, including, without limitation, the reasonable fees and disbursements of
counsel to the Administrative Agent and of counsel to each of the other Agents
and Lenders.
(b) Each Grantor agrees to pay, and to save the Agents and the
Lenders harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other taxes which
may be payable or determined to be payable with respect to any of the Collateral
or in connection with any of the transactions contemplated by this Agreement.
(c) Each Grantor agrees to pay, and to save the Agents and the
Lenders harmless from, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement to the
14
extent the Borrower would be required to do so pursuant to subsection 10.5 of
the applicable Credit Agreement.
(d) The agreements in this subsection 7.4 shall survive
repayment of the Obligations and all other amounts payable under each of the
Credit Agreements and the other Credit Documents.
7.5 Successors and Assigns. This Agreement shall be binding
upon the successors and assigns of each Grantor and shall inure to the benefit
of the Agents and the Lenders and their successors and assigns; provided that no
Grantor may assign, transfer or delegate any of its rights or obligations under
this Agreement without the prior written consent of the Administrative Agent.
7.6 Set-Off. Each Grantor hereby irrevocably authorizes each
of the Agents and Lenders at any time and from time to time pursuant to
subsection 10.7(b) of the applicable Credit Agreement whenever an Event of
Default shall have occurred and be continuing, without notice to such Grantor or
any other Grantor, any such notice being expressly waived by each Grantor, to
set-off and appropriate and apply any and all deposits (general or special, time
or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by Agent or Lender to or for the credit or the account of such Grantor, or
any part thereof in such amounts as such Agent or Lender may elect, against and
on account of the obligations and liabilities of such Grantor to such Agent or
Lender hereunder and claims of every nature and description of such Agent or
Lender against such Grantor, in any currency, whether arising hereunder, under
the Credit Agreements, any other Credit Document or otherwise, as such Agent or
Lender may elect, whether or not any Agent or Lender has made any demand for
payment and although such obligations, liabilities and claims may be contingent
or unmatured. Each of the Agents and Lenders shall notify such Grantor promptly
of any such set-off and the application made by such Agent or Lender of the
proceeds thereof, provided that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each Agent and
Lender under this subsection 7.6 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Agent or
Lender may have.
7.7 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
7.8 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
15
7.9 Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
7.10 Integration. This Agreement and the other Credit
Documents represent the agreement of the Grantors, the Agents and the Lenders
with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by any of the Agents or
Lenders relative to the subject matter hereof and thereof not expressly set
forth or referred to herein or in the other Credit Documents.
7.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
7.12 SUBMISSION TO JURISDICTION; WAIVERS. EACH GRANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS TO WHICH IT
IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT
OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) 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;
(c) 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
GRANTOR AT ITS ADDRESS REFERRED TO IN SUBSECTION 7.2 OR AT SUCH OTHER ADDRESS OF
WHICH THE ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT
THE RIGHT TO XXX IN ANY OTHER JURISDICTION; AND
(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION
16
OR PROCEEDING REFERRED TO IN THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
7.13 Acknowledgments. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Credit Documents to which
it is a party;
(b) none of the Agents nor Lenders has any fiduciary
relationship with or duty to any Grantor arising out of or in connection with
this Agreement or any of the other Credit Documents, and the relationship
between the Grantors, on the one hand, and the Agents and Lenders, on the other
hand, in connection herewith or therewith is solely that of debtor and creditor;
and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Agents, among the Agents and/or the Lenders or among the Grantors and
the Agents and/or the Lenders.
7.14 WAIVER OF JURY TRIAL. EACH GRANTOR AND, BY ACCEPTANCE OF
THE BENEFITS HEREOF, EACH OF THE LENDERS AND THE AGENTS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
7.15 Additional Grantors. Each Subsidiary of the Borrower that
is required to become a party to this Agreement pursuant to subsection 6.10 of
the Credit Agreement shall become a Grantor for all purposes of this Agreement
upon execution and delivery by such Subsidiary of an Assumption Agreement in the
form of Annex 1 attached to the Amended and Restated Subsidiary Guarantee
Agreement executed concurrently herewith.
7.16 Releases.
(a) At such time as the Loans, the Reimbursement Obligations
and the other Obligations shall have been paid in full, the Commitments have
been terminated and no Letters of Credit shall be outstanding, the Collateral
shall be released from the Liens created hereby, and this Agreement and all
obligations (other than those expressly stated to survive such termination) of
the Administrative Agent and each Grantor hereunder shall terminate, all without
delivery of any instrument or performance of any act by any party, and all
rights to the Collateral shall revert to the Grantors; provided, however, that
the Administrative Agent shall deliver to such Grantor any Collateral held by
the Administrative Agent hereunder, and execute and deliver to such Grantor such
documents as such Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by any Grantor in a transaction permitted by the Credit
Agreements, then the Administrative Agent, at the request and sole expense of
such Grantor, shall execute and deliver to such Grantor
17
all releases or other documents reasonably necessary or desirable for the
release of the Liens created hereby on such Collateral. At the request and sole
expense of the Borrower, a Grantor shall be released from its obligations
hereunder in the event that all the Capital Stock of such Grantor shall be sold,
transferred or otherwise disposed of in a transaction permitted by the Credit
Agreement.
[Signature page follows]
18
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed and delivered as of the date first above written.
HYGIENETICS ENVIRONMENTAL SERVICES, INC.
By:_____________________________________________________
Xxxxxxxxxxx X. Xxxxxxx
Vice President-General Counsel and Secretary
L-3 COMMUNICATIONS ILEX SYSTEMS, INC.
By:______________________________________________________
Xxxxxxxxxxx X. Xxxxxxx
Vice President-General Counsel and Secretary
L-3 COMMUNICATIONS SPD TECHNOLOGIES INC.
By:_______________________________________________________
Xxxxxxxxxxx X. Xxxxxxx
Vice President-General Counsel and Secretary
L-3 COMMUNICATIONS AYDIN CORPORATION
By:________________________________________________________
Xxxxxxxxxxx X. Xxxxxxx
Vice President-General Counsel and Secretary
MICRODYNE CORPORATION
By:________________________________________________________
Xxxxxxxxxxx X. Xxxxxxx
Vice President-General Counsel and Secretary
S-1
Address for Notices for each Grantor:
c/o L-3 Communications Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: President
Phone: (000) 000-0000
Fax: (000) 000-0000
Accepted on behalf of the Agents and
the Lenders as of the date first above
written:
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
By:_____________________________________
Name:________________________________
Title:_______________________________
S-2
Schedule 1
DESCRIPTION OF PLEDGED STOCK
PLEDGED STOCK:
------------------- -------------------- -------------- --------------------- -------------
------------------- -------------------- -------------- --------------------- -------------
Issuer Owner (Guarantor) Class of Stock Stock Certificate No. No. of Shares
Schedule 1
Schedule 2
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE(1)
Grantor Jurisdiction of Organization Location
------- ---------------------------- --------
Hygienetics Environmental Delaware 0000 Xxxxxxx Xxxxx
Services, Inc. Xxxxxxxx, XX 00000
L-3 Communications Ilex Delaware 0000 Xxxxxxx Xxxxx
Systems, Inc. Xxxxxxxx, XX 00000
L-3 Communications Delaware 000 Xxxxx Xxxxxx
Xxxxx Xxxxxxxxxxx Xxx Xxxx, XX 00000
L-3 Communications SPD Delaware 13500 Roosevelt Blvd.
Technologies Inc. Xxxxxxxxxxxx, XX 00000
Microdyne Corporation Maryland 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
--------------------
(1) Borrower to advise of Chief Executive Office for each Sub.
Schedule 2
ACKNOWLEDGMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the
Second Amended and Restated Subsidiary Pledge Agreement dated as of _________
____, 2000 (the "Agreement"), made by the Grantors party thereto for the benefit
of Bank of America, N.A., as Administrative Agent. The undersigned agrees for
the benefit of the Administrative Agent, the other Agents and the Lenders as
follows:
1. The undersigned will be bound by the terms of the Agreement
and will comply with such terms insofar as such terms are applicable to the
undersigned.
2. The undersigned will notify the Administrative Agent
promptly in writing of the occurrence of any of the events described in Section
4.2(a) of the Agreement.
3. The terms of Sections 5.1(a) and 5.5 of the Agreement shall
apply to it, mutatis mutandis, with respect to all actions that may be required
of it pursuant to Section 5.1(a) or 5.5 of the Agreement.
[NAME OF ISSUER]
___________________________________
Name:______________________________
Title:_____________________________
Address for Notices:
___________________________________
___________________________________
Fax:_______________________________
EXHIBIT C-1
to the Credit Agreement.
[LETTERHEAD OF XXXXXXX XXXXXXX & XXXXXXXX]
April 28, 0000
Xxxx xx Xxxxxxx, X.X., as Administrative Agent
Xxxxxx Commercial Paper Inc., as Syndication Agent
and Documentation Agent
Xxxxxx Brothers, Inc.
as Arranger
Banc of America Securities LLC
as Arranger
and
The Lenders listed on Schedule I hereto
which are parties to the Credit Agreement
on the date hereof
Re: Second Amended and Restated Credit Agreement dated as of April
24, 2000, Amended and Restated 364 Day Credit Agreement dated as
of April 24, 2000 and New 364 Day Credit Agreement dated as of
April 24, 2000
Ladies and Gentlemen:
We have acted as counsel to L-3 Communications Corporation, a Delaware
corporation (the "Borrower"), L-3 Communications Holdings, Inc., a Delaware
corporation (the "Parent Guarantor"), the subsidiaries of the Borrower named on
Schedule II attached hereto (each, a "Subsidiary Guarantor" and, collectively,
the "Subsidiary Guarantors"; (the Borrower , the Parent Guarantor and the
Subsidiary Guarantors being referred to herein collectively as the "Credit
Parties") in connection with the preparation, execution and delivery of the
following documents:
(a) the Second Amended and Restated Credit Agreement, dated as of
April 24, 2000 among the Borrower, the Lenders parties thereto,
Xxxxxx Commercial Paper Inc., as Syndication Agent, Documentation
Agent and an Arranger, Banc of America Securities LLC (f/k/a
BancAmerica Xxxxxxxxx Xxxxxxxx), as an Arranger, and Bank of
America, N.A. (f/k/a Bank of America, National Trust and Savings
Association), as Administrative Agent (the "Facility A Credit
Agreement");
(b) the Amended and Restated 364 Day Credit Agreement, dated as of
April 24, 2000 among the Borrower, the Lenders parties thereto,
Xxxxxx Commercial Paper Inc., as Syndication Agent, Documentation
Agent and an Arranger, Banc of America Securities LLC (f/k/a
BancAmerica Xxxxxxxxx Xxxxxxxx), as an Arranger and Bank of
America, N.A. (f/k/a Bank of America, National Trust and Savings
Association), as Administrative Agent (the "Facility B Credit
Agreement");
(c) the New 364 Day Credit Agreement, dated as of April 24, 2000
among the Borrower, the Lenders parties thereto, Xxxxxx
Commercial Paper Inc., as Syndication Agent and Documentation
Agent, Banc of America Securities LLC and Xxxxxx Brothers, Inc.,
as the Arrangers, Bank of America, N.A., as Administrative Agent
and the financial institutions named therein as Managing Agents
(the "Facility C Credit Agreement"; collectively with the
Facility A Credit Agreement and the Facility B Credit Agreement,
the "Credit Agreements"); (d) the Notes;
(e) the Parent Guarantee;
(f) the Subsidiary Guarantee;
(g) the Parent Pledge Agreement;
(h) the Borrower Pledge Agreement;
(i) the Subsidiary Pledge Agreement; and
(j) the Charge Over Shares.
The documents described in the foregoing clauses (a) through (j) are
collectively referred to herein as the "Credit Documents"; the documents
described in the foregoing clauses (g) through (j) are collectively referred to
herein as the "Security Documents". Unless otherwise indicated, capitalized
terms used but not defined herein shall have the respective meanings set forth
in the Credit Agreements. This opinion is furnished to you pursuant to Section
5.I(m) of the Credit Agreements.
In connection with this opinion, we have examined:
2
(A) the Credit Agreements, signed by each Credit Party party thereto, the
Administrative Agent, Syndication Agent, Documentation Agent, Arranger
and certain of the Lenders;
(B) each other Credit Document, signed by each Credit Party party thereto;
and
(C) forms of the Notes to be delivered after the date hereof.
We also have examined the originals, or duplicates or certified or conformed
copies, of such records; agreements, instruments and other documents and have
made such other investigations as we have deemed relevant and necessary in
connection with the opinions expressed herein. As to questions of fact material
to this opinion, we have relied upon certificates of public officials and of
officers and representatives of the Credit Parties. In addition, we have
examined, and have relied as to matters of fact upon, the representations made
in the Credit Documents.
In rendering the opinions set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as duplicates or certified
or conformed copies, and the authenticity of the originals of such latter
documents.
In addition, we have assumed that (1) the Credit Parties have rights in
the Collateral existing on the date hereof and will have rights in property
which becomes Collateral after the date hereof and (2) "value" (as defined in
Section 1-201(44) of the Uniform Commercial Code as in effect in the State of
New York (the "New York UCC")) has been given by the Lenders to the Borrower for
the security interests and other rights in the Collateral.
In rendering the opinion set forth in paragraph 6 below with respect to
the Notes, we have assumed that at the time of any execution and delivery of
Notes after the date hereof, the Board of Directors of the Borrower (or any
committee thereof acting pursuant to authority properly delegated to such
committee by the Board of Directors) has not taken any action to rescind or
otherwise reduce its prior authorization of the issuance of such Notes.
Based upon and subject to the foregoing, and subject to the
qualifications and limitations set forth herein, we are of the opinion that:
1. Each of the Borrower and the Parent Guarantor (a) has been duly
incorporated and is validly existing and in good standing as a corporation under
the laws of the State of Delaware, (b) has the corporate power and authority to
execute and deliver each of the Credit Documents to which it is a party, to
perform its obligations thereunder and to grant the security interests to be
granted by it pursuant to the Security Documents and (c) has duly authorized,
executed and delivered each Credit Document to which it is a party.
3
2. Each of the Subsidiary Guarantors (other than Microdyne Corporation
("MICRODYNE") as to which we express no opinion) has duly authorized, executed
and delivered each Credit Document to which it is a party.
3. The execution and delivery by each of the Borrower and the Parent
Guarantor of the Credit Documents to which it is a party, the borrowings by the
Borrower in accordance with the terms of the Credit Documents and the granting
of the security interests to be granted by the Borrower and the Parent Guarantor
pursuant to the Security Documents will not result in any violation of (1) the
Certificate of Incorporation or By-Laws of either the Borrower or the Parent
Guarantor, (2) assuming that proceeds of the borrowings will be used in
accordance with the terms of the Credit Agreement, any federal or New York
statute or the Delaware General Corporation Law or any rule or regulation issued
pursuant to any New York or Federal statute or the Delaware General Corporation
Law, but excluding any government procurement statute or regulations issued
pursuant thereto.
4. The execution and delivery by each Subsidiary Guarantor of the Credit
Documents to which it is a party and the granting of the security interests to
be granted by it pursuant to the Security Documents will not result in any
violation of, assuming that proceeds of the borrowings will be used in
accordance with the terms of the Credit Agreement, any federal or New York
statute or the Delaware General Corporation Law or any rule or regulation issued
pursuant to any New York or Federal statute or the Delaware General Corporation
Law, but excluding any government procurement statute or regulations issued
pursuant thereto.
5. No consent, approval, authorization, order, filing, registration or
qualification of or with any Federal or New York governmental agency or body or
any Delaware governmental agency or body acting pursuant to the Delaware General
Corporation Law is required for the execution and delivery by any Credit Party
of the Credit Documents to which it is a party, the borrowings by any Credit
Party in accordance with the terms of the Credit Documents or the granting of
any security interests under the Security Documents, except filings required for
the perfection of security interests granted pursuant to the Security Documents
and consents, waivers, approvals, filings and registrations described on
Schedule 4.4 to the Credit Agreement.
6. Assuming that each of the Credit Documents is a valid and legally binding
obligation of each of the Lenders parties thereto and assuming that (a)
Microdyne is validly existing and in good standing under the laws of the State
of Maryland and has duly authorized, executed and delivered the Credit Documents
to which it is a party in accordance with its Articles of Incorporation and
By-Laws, (b) execution, delivery and performance by any Credit Party of the
Credit Documents to which it is a party do not violate any applicable laws
(excepting the laws of the State of New York, the General Corporation Law of the
State of Delaware and the Federal laws of the United States, other than any
government procurement statute or regulations issued pursuant thereto) and (c)
execution, delivery and performance by each Credit Party of the Credit
4
Documents to which it is a party do not constitute a breach or violation of any
agreement or instrument which is binding upon such Credit Party, each Credit
Document (other than the Charge Over Shares) constitutes and each Note delivered
to a Lender after the date hereof, assuming the due execution and delivery by
the Borrower, will constitute the valid and legally binding obligation of each
Credit Party which is a party thereto, enforceable against such Credit Party in
accordance with its terms.
7. No Credit Party is an "investment company" within the meaning of and
subject to regulation under the Investment Company Act of 1940, as amended.
8. Assuming that the Borrower will comply with the provisions of the Credit
Agreements relating to the use of proceeds, the execution and delivery of the
Credit Agreements by the Borrower and the making of the Loans under the Credit
Agreements will not violate Regulation, T, U or X of the Board of Governors of
the Federal Reserve System.
9. The Parent Pledge Agreement and Borrower Pledge Agreement create in favor
of the Administrative Agent for the benefit of the Lenders a security interest
under the New York UCC in the Pledged Stock (as defined in the Pledge
Agreements) described on Schedule I to each of the Parent Pledge Agreement and
the Borrower Pledge Agreement (the "Pledged Securities").
10. The Administrative Agent will have a perfected security interest in the
Pledged Securities for the benefit of the Lenders under the New York UCC upon
delivery to the Administrative Agent for the benefit of the Lenders in the State
of New York of the certificates representing the Pledged Securities in
registered form, endorsed in blank by an effective endorsement or accompanied by
undated stock power with respect thereto duly endorsed in blank by an effective
endorsement.
11. The choice of New York Law to govern each Credit Document in which such
choice is stipulated is a valid and effective choice of law under the laws of
the State of New York.
Our opinions in paragraphs 6 and 9 above are subject to (i) the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (whether considered in a proceeding in equity or at
law) and (iii) an implied covenant of good faith and fair dealing. Our opinion
in paragraph 6 above also is subject to the qualification that certain
provisions of the Security Documents (other than the Charge Over Shares) (the
"U.S. Security Documents") in whole or in part, may not be enforceable, although
the inclusion of such provisions does not render the U.S. Security Documents
invalid, and the U.S. Security Documents and the laws of the State of New York
contain adequate remedial provisions for the practical realization of the rights
and benefits afforded thereby.
5
Our opinions in paragraphs 9 and 10 above are limited to Articles 8 and 9 of
the New York UCC, and therefore those opinion paragraphs do not address (i)
collateral of a type not subject to Article 9 or 8, as the case may be, of the
New York UCC, and (ii) under New York UCC'SS'9-103 what law governs perfection
of the security interests granted in the collateral covered by this opinion
letter.
We express no opinion with respect to:
(A) perfection of any security interest (1) in any Security Agreement
Article 9 Collateral of a type represented by a certificate of title, (2) in any
proceeds and (3) in any collateral consisting of money; .
(B) the effect of 'SS'9-306(2) of the New York UCC with respect to any
proceeds
of Collateral that are not identifiable;
(C) perfection of any security interest whose priority is subject to Section
9-313 of the New York UCC;
(D) the priority of any security interest;
(E) the effect of Section 552 of the Bankruptcy Code (11 U.S.C. 552)
(relating to property acquired by a pledgor after the commencement of a case
under the United States Bankruptcy Code with respect to such pledgor) and
Section 506(c) of the Bankruptcy Code (11 U.S.C. 506(c) (relating to certain
costs and expenses of a trustee in preserving or disposing of collateral;
(F) the effect of any provision of the Credit Documents which is intended to
establish any standard other than a standard set forth in the New York UCC as
the measure of the performance by any party thereto of such party's obligations
of good faith, diligence, reasonableness or care or of the fulfillment of the
duties imposed on any secured party with respect to the maintenance, disposition
or redemption of collateral, accounting for surplus proceeds of collateral or
accepting collateral in discharge of liabilities;
(G) the effect of any provision of the Credit Documents which is intended to
permit modification thereof only by means of an agreement signed in writing by
the parties thereto;
(H) the effect of any provision of the Credit Documents insofar as it
provides that any Person purchasing a participation from a Lender or other
Person may exercise set-off or similar rights with respect to such participation
or that any Lender or other Person may exercise set-off or similar rights other
than in accordance with applicable law;
6
(I) the effect of any provision of the Credit Documents imposing penalties
or forfeitures;
(J) the enforceability of any provision of any of the Credit Documents to
the extent that such provision constitutes a waiver of illegality as a defense
to performance of contract obligations; or
(K) the effect of any provision of the Credit Documents relating to
indemnification or exculpation in connection with violations of any securities
laws or relating to indemnification, contribution or exculpation in connection
with willful, reckless or criminal acts or gross negligence of the indemnified
or exculpated Person or the Person receiving contribution.
In connection with the provisions of the Credit Documents whereby
Credit Parties submit to the jurisdiction of the courts of the United States of
America for the Southern District of New York, we note the limitations of 28
U.S.C. 'SS' 'SS'1331 and 1332 on subject matter jurisdiction of the Federal
Court. In
connection with the provisions of the Credit Documents which relate to forum
selection of the courts of the United States for the Southern District of New
York, (including, without limitation, any waiver of any objection to venue or
any objection that a court is an inconvenient forum), we also note that such
court's discretion to transfer an action from one Federal court to another under
28 U.S.C. 'SS'1404(a).
We are members of the Bar of the State of New York, and we do not
express any opinion herein concerning any law other than the law of the State of
New York, the Federal law of the United States and the Delaware General
Corporation Law.
This opinion letter is rendered to you in connection with the above
described transactions. This opinion letter may not be relied upon by you for
any other purpose, or relied upon by, or furnished to, any other person, firm or
corporation without our prior written consent.
Very truly yours,
/s/ XXXXXXX XXXXXXX & XXXXXXXX
XXXXXXX XXXXXXX & XXXXXXXX
7
SCHEDULE I
LENDERS
XXXXXX COMMERCIAL PAPER INC.
BANK OF AMERICA, N.A.
THE BANK OF NEW YORK
THE BANK OF NOVA SCOTIA
CREDIT LYONNAIS
BANK ONE. N.A.
FIRST UNION COMMERCIAL CORPORATION
FLEET NATIONAL BANK
THE FUJI BANK, LIMITED
HSBC BANK USA
SOCIETE GENERALE
BANKBOSTON, N.A.
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE INC.
BANK OF IRELAND
BANQUE WORMS CAPITAL CORPORATION
CREDIT INDUSTRIEL ET COMMERCIAL
COMERICA BANK
THE DAI-ICHI KANGYO BANK, LTD.
DEN DANSKE BANK AKTIESELSKAB
DEUTSCHE GENOSSENSCHAFTSBANK XX
XXXXXXXX BANK AG
ERSTE BANK DER OESTERREICHISCHEN
GE CAPITAL COMMERCIAL FINANCE, INC.
THE INDUSTRIAL BANK OF JAPAN, LIMITED
MESS XXXXXXX CAPITAL CORP.
XXXXXX BANK PLC
THE MITSUBISHI TRUST AND BANKING CORPORATION
NATIONAL CITY BANK
THE ROYAL BANK OF SCOTLAND PLC
SUMMIT BANK
SUNTRUST BANK
XXXXXXX BANK
8
SCHEDULEII
BORROWER SUBSIDIARIES
HYGIENETICS ENVIRONMENTAL SERVICES, INC., a Delaware Corporation.
L-3 COMMUNICATIONS ILEX SYSTEMS, INC., a Delaware Corporation.
L-3 COMMUNICATIONS SPD TECHNOLOGIES INC., a Delaware Corporation.
L-3 COMMUNICATIONS AYDIN CORPORATION, a Delaware Corporation.
MICRODYNE CORPORATION, a Maryland Corporation.
9
[NOTE: TO BE REPLACED WITH FINAL DRAFT OF GENERAL COUNSEL'S OPINION.]
Exhibit C-2
to Credit Agreement
-------------------
L-3 COMMUNICATIONS CORPORATION
000 XXXXX XXXXXX, 00xx XXXXX
XXX XXXX, XXX XXXX 00000
April __, 2000
Bank of America, N.A.,
as Administrative Agent
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Commercial Paper Inc.,
as Arranger, Syndication Agent and Documentation Agent
3 World Financial Center, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Banc of America Securities LLC,
as Arranger
0 X 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers, Inc.,
as Arranger
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Lenders Listed on Schedule 1 hereto
Ladies and Gentlemen:
I have acted as counsel to L-3 Communications Holdings, Inc., a Delaware
corporation ("Holdings"), L-3 Communications Corporation, a Delaware corporation
(the "Borrower"), L-3 Communications Ilex Systems, Inc., a Delaware corporation
("Ilex"), Hygienetics Environmental Systems, Inc., a Delaware corporation
("HES"), L-3 Communications SPD Technologies Inc., a Delaware corporation
("SPD"), L-3 Communications Aydin Corporation, a Delaware corporation ("Aydin")
and Microdyne Corporation, a Maryland corporation ("Microdyne" and collectively
with Ilex, HES, SPD and Aydin, the "Subsidiaries", and together with Holdings
and the Borrower, the "Loan Parties"), in connection with (a) the
Second Amended and Restated Credit Agreement dated as of April 24, 2000 (the
"Facility A Credit Agreement") among the Borrower, the Lenders parties thereto,
Xxxxxx Commercial Paper Inc. ("LCPI"), as Syndication Agent, Documentation Agent
and an Arranger, Banc of America Securities LLC (f/k/a BancAmerica Xxxxxxxxx
Xxxxxxxx), as an Arranger, and Bank of America, N.A. (f/k/a Bank of America
National Trust & Savings Association), as Administrative Agent ("BOA"), (b) the
Amended and Restated 364 Day Credit Agreement dated as of April 24, 2000 (the
"Facility B Credit Agreement") among the Borrower, the Lenders parties thereto,
LCPI, as Syndication Agent, Documentation Agent and an Arranger, Banc of America
Securities LLC (f/k/a BancAmerica Xxxxxxxxx Xxxxxxxx), as an Arranger, and BOA,
as Administrative Agent and (c) the New 364 Day Credit Agreement dated as of
April 24, 2000 (the "Facility C Credit Agreement" and together with the Facility
A Credit Agreement and the Facility B Credit Agreement, the "Credit Agreements")
among the Borrower, the Lenders parties thereto, Banc of America Securities LLC
and Xxxxxx Brothers, Inc. as the Arrangers, Bank of America, N.A. as the
Administrative Agent, Xxxxxx Commercial Paper, Inc. as the Syndication Agent and
the Documentation Agent, and the financial institutions named therein as
Managing Agents. In that connection, you have requested this opinion in
connection with the following documents: (i) the Credit Agreements, (ii) the
Notes, (iii) the Parent Pledge Agreement, (iv) the Borrower Pledge Agreement,
(v) the Subsidiary Pledge Agreement, (vi) the Parent Guarantee, (vii) the
Subsidiary Guarantee and (viii) the Charge Over Shares (the documents referred
to in clauses (i) through (viii) are referred to herein collectively as the
"Loan Documents"). Terms defined in the Loan Documents are used herein as
therein collectively defined.
In connection with this opinion, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of each of the Loan
Documents. In addition, I have examined originals or copies, certified or
otherwise identified to my satisfaction, of such records, agreements,
instruments and other documents as I have deemed relevant and necessary as a
basis for the opinions hereinafter set forth.
For the purposes hereof, I have assumed, with your permission, the
genuineness of all signatures, the legal capacity of natural persons and the
authenticity and regularity of all documents examined by me. As to questions of
fact relevant to this opinion, I have relied upon, and assume the accuracy of,
the representations and warranties of the Loan Parties in the Loan Documents and
have relied upon certificates and oral or written statements and other
information of public officials, officers and representatives of the Loan
Parties and others and assume compliance on the part of all parties to the Loan
Documents with their covenants and agreements contained therein.
In rendering the opinions expressed below, I have assumed, with your
permission and without any independent investigation or verification of any
kind, that (a) the Loan Documents constitute the valid and legally binding
obligations of each party to the Loan Documents other than the Loan Parties,
enforceable against such parties in accordance with their respective terms, and
(b) the execution, delivery and performance by each Loan Party of each Loan
Document to which it is a party do not contravene, or require any order,
consent, approval, license, authorization, validation, filing, recording,
registration or exemption not obtained or
2
made under, any applicable provision of any law, statute, rule or regulation
(other than any law, statute, rule or regulation of the United States of America
or the State of New York).
Based upon the foregoing, and subject to the qualifications and limitations
stated herein, I am of the opinion that:
1. Ilex has been duly incorporated and is validly existing and in good
standing under the laws of the State of Delaware with corporate power and
authority to conduct its business as now conducted and to own, or hold under
lease, its assets and to enter into the Subsidiary Guarantee and the Subsidiary
Pledge Agreement (collectively, the "Subsidiary Documents") and perform its
obligations thereunder.
2. HES has been duly incorporated and is validly existing and in good
standing under the laws of the State of Delaware with corporate power and
authority to conduct its business as now conducted and to own, or hold under
lease, its assets and to enter into the Subsidiary Documents and perform its
obligations thereunder.
3. SPD has been duly incorporated and is validly existing and in good
standing under the laws of the State of Delaware with corporate power and
authority to conduct its business as now conducted and to own, or hold under
lease, its assets and to enter into the Subsidiary Documents and perform its
obligations thereunder.
4. Aydin has been duly incorporated and is validly existing and in good
standing under the laws of the State of Delaware with corporate power and
authority to conduct its business as now conducted and to own, or hold under
lease, its assets and to enter into the Subsidiary Documents and perform its
obligations thereunder.
5. Microdyne has been duly incorporated and is validly existing and in good
standing under the laws of the State of Maryland with corporate power and
authority to conduct its business as now conducted and to own, or hold under
lease, its assets and to enter into the Subsidiary Documents and perform its
obligations thereunder.
6. Microdyne, has duly authorized, executed and delivered each Credit
Document to which it is a party.
7. To my knowledge, there are no legal or governmental proceedings pending
or threatened against any of the Loan Parties or to which any of their
respective properties is subject which reasonably could be expected to have a
Material Adverse Effect other than as disclosed in Schedule 4.6 to the Credit
Agreements.
8. To my knowledge, except as could not reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect, the execution
and delivery of the Credit Agreements, the Notes, the Charge Over Shares and the
Borrower Pledge Agreement (collectively, the "Borrower Credit Documents") by the
Borrower, the borrowing and granting of security interests by the Borrower under
the Borrower Credit Documents and the consummation of the transactions
contemplated therein do not: (a) violate any order, writ, injunction or decree
of any court or other governmental authority binding upon the Borrower or, (b)
other than as disclosed in the Schedules to the Credit Agreements, result in (i)
the breach of or a default under
3
any material Contractual Obligation applicable to or binding upon the Borrower
or any of its properties or assets or (ii) the creation of any lien on any of
its properties or assets pursuant to any such material Contractual Obligation,
except for liens arising under the any of the Pledge Agreements and/or the
Guarantees (collectively, the "Security Documents").
9. To my knowledge, except as could not reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect, the execution
and delivery of the Subsidiary Documents by each of the Subsidiaries party
thereto, the making of the guarantee and granting of security interests by each
of the Subsidiaries under the Subsidiary Documents and the consummation of the
transactions contemplated therein do not: (a) violate any order, writ,
injunction or decree of any court of other governmental authority binding upon
any Subsidiary, (b) violate the provisions of any such Subsidiaries'
Constitutional Documents or, (c) other than as disclosed in the Schedules to the
Credit Agreements result in (i) the breach of or a default under any material
Contractual Obligation applicable to or binding upon any Subsidiary or any of
their respective properties or assets or (ii) the creation of any lien on any of
their respective properties or assets pursuant to any such material Contractual
Obligation, except for liens arising under the Security Documents.
10. To my knowledge, except as could not reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect, the execution
and delivery of the Parent Guarantee and the Parent Pledge Agreement
(collectively, the "Parent Documents") by Holdings, the making of the guarantee
and granting of security interests by Holdings under the Parent Documents and
the consummation of the transactions contemplated therein do not: (a) violate
any order, writ, injunction or decree of any court of other governmental
authority binding upon Holdings or, (b) other than as disclosed in the Schedules
to the Credit Agreements, result in (i) the breach of or a default under any
material Contractual Obligation applicable to or binding upon Holdings or any of
its properties or assets or (ii) the creation of any lien on any of its
properties or assets pursuant to any such material Contractual Obligation,
except for liens arising under the Security Documents.
11. Based solely on certificates from public officials, I confirm that the
Borrower is qualified to do business in each State where such qualification is
required, except where the failure to be so qualified could not reasonably be
expected to have a Material Adverse Effect. Based solely on certificates from
public officials, I confirm that Holdings is qualified to do business in New
York. Based solely on certificates from public officials, I confirm that Ilex is
qualified to do business in each State where such qualification is required,
except where the failure to be so qualified could not reasonably be expected to
have a Material Adverse Effect. Based solely on certificates from public
officials, I confirm that HES is qualified to do business in each State where
such qualification is required, except where the failure to be so qualified
could not reasonably be expected to have a Material Adverse Effect. Based solely
on certificates from public officials, I confirm that SPD is qualified to do
business in each State where such qualification is required, except where the
failure to be so qualified could not reasonably be expected to have a Material
Adverse Effect. Based solely on certificates from public officials, I confirm
that Aydin is qualified to do business in each State where such qualification is
required, except where the failure to be so qualified could not reasonably be
expected to have a Material Adverse Effect. Based solely on certificates from
public officials, I confirm that Microdyne is
4
qualified to do business in each State where such qualification is required,
except where the failure to be so qualified could not reasonably be expected to
have a Material Adverse Effect.
12. The Borrower's authorized capital stock consists of 100 shares of
common stock, all of which have been duly authorized and validly issued, are
fully paid and nonassessable, are free of preemptive rights and, based solely on
my review of the Borrower's stock records, are owned of record by Holdings free
and clear of all liens, claims, charges, or encumbrances other than Liens
created or permitted by the Security Documents. Holdings has no direct
Subsidiaries other than the Borrower.
13. Ilex's authorized capital stock consists of 100 shares of common stock,
all of which have been duly authorized and validly issued, are fully paid and
nonassessable, are free of preemptive rights and, based solely on my review of
Ilex's stock records, are owned of record by the Borrower free and clear of all
liens, claims, charges, or encumbrances other than Liens created or permitted by
the Security Documents.
14. HES' authorized capital stock consists of 100 shares of common stock,
all of which have been duly authorized and validly issued, are fully paid and
nonassessable, are free of preemptive rights and, based solely on my review of
HES' stock records, are owned of record by the Borrower free and clear of all
liens, claims, charges, or encumbrances other than Liens created or permitted by
the Security Documents.
15. SPD's authorized capital stock consists of [100] shares of common
stock, all of which have been duly authorized and validly issued, are fully paid
and nonassessable, are free of preemptive rights and, based solely on my review
of SPD's stock records, are owned of record by the Borrower free and clear of
all liens, claims, charges, or encumbrances other than Liens created or
permitted by the Security Documents.
16. Aydin's authorized capital stock consists of [100] shares of common
stock, all of which have been duly authorized and validly issued, are fully paid
and nonassessable, are free of preemptive rights and, based solely on my review
of Aydin's stock records, are owned of record by the Borrower free and clear of
all liens, claims, charges, or encumbrances other than Liens created or
permitted by the Security Documents.
17. Microdyne's authorized capital stock consists of [100] shares of common
stock, all of which have been duly authorized and validly issued, are fully paid
and nonassessable, are free of preemptive rights and, based solely on my review
of Microdyne's stock records, are owned of record by the Borrower free and clear
of all liens, claims, charges, or encumbrances other than Liens created or
permitted by the Security Documents.
I am a member of the Bar of the State of New York and I express no opinion
as to the laws of any jurisdiction other than the federal laws of the United
States of America, the laws of the State of New York, the Delaware General
Corporation Law and the [Maryland General Corporation Law].
This opinion is rendered to you in connection with the above-described
transactions in my capacity as counsel to the Loan Parties. This opinion may not
be relied upon
5
by you for any other purpose, or relied upon by any other person, firm or
corporation without my prior written approval.
Very truly yours,
6
Exhibit D
to Credit Agreement
-------------------
FORM OF BORROWING CERTIFICATE
FOR
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Pursuant to subsection 5.1(g) of the Second Amended and Restated Credit
Agreement, dated as of April 24, 2000 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") among L-3 Communications
Corporation, a Delaware corporation (the "Borrower"), the several banks and
other financial institutions from time to time parties thereto (the "Lenders"),
Bank of America, N.A. (f/k/a Bank of America National Trust & Savings
Association) ("BOA"), as administrative agent for the Lenders (in such capacity,
the "Administrative Agent "), Xxxxxx Commercial Paper Inc. ("LCPI") as
Syndication Agent and Documentation Agent, Banc of America Securities LLC (f/k/a
BancAmerica Xxxxxxxxx Xxxxxxxx) and LCPI, as Arrangers, and the financial
institutions named therein as Co-Agents and the undersigned hereby delivers this
Certificate.
The Borrower hereby requests that a [Eurodollar/Base Rate] Revolving Credit
Loan be made in the aggregate principal amount of _________ on ______________,
_______ [with an Interest Period of ___ months].
The undersigned hereby certifies as follows:
(a) The representations and warranties made by the Borrower and each
of its Subsidiaries and each of the other Credit Parties in the Credit
Documents are true and correct in all material respects on and as of the
date hereof with the same effect as if made on the date hereof (except to
the extent they relate to a particular date, in which case they shall
remain true and correct as of such date); and
(b) No Default or Event of Default has occurred and is continuing on
the date hereof or after giving effect to the Loans and other extensions of
credit requested to be made on such date.
Capitalized terms used herein and not otherwise defined shall have the
meanings given to them in the Credit Agreement.
The Borrower agrees that if prior to the time of the borrowing requested
hereby any matter certified to herein by it will not be true and correct in all
material respects at such time as if then made, it will immediately so notify
the Administrative Agent. Except to the extent, if any, that prior to the time
of the borrowing requested hereby the Administrative Agent shall receive written
notice to the contrary from the Borrower, each matter certified to herein shall
be deemed once again to be certified as true and correct in all material
respects at the date of such borrowing as if then made.
1
Please wire transfer the proceeds of the borrowing to the account of the
Borrower at ____________________ Routing No.:_____________________ (Account
No.______________), or as otherwise directed by the Borrower on the attached
Schedule 1.
The Borrower has caused this Borrowing Certificate to be executed and
delivered, and the certification and warranties contained herein to be made, by
its Responsible Officer this _____ day of _____, _____.
L-3 COMMUNICATION CORPORATION
By: _______________________________
Name:
Title:
2
Exhibit E to
Credit Agreement
----------------
FORM OF EXEMPTION CERTIFICATE OF NON-U.S. LENDER
FOR
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Reference is made to the Second Amended and Restated Credit Agreement,
dated as of April 24, 2000 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement") among L-3 Communications Corporation, a
Delaware Corporation (the "Borrower"), the several banks and other financial
institutions from time to time parties thereto (the "Lenders"), Bank of America,
N.A. (f/k/a Bank of America National Trust & Savings Association) ("BOA"), as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"), Xxxxxx Commercial Paper Inc. ("LCPI") as Syndication Agent and
Documentation Agent, Banc of America Securities LLC (f/k/a BancAmerica Xxxxxxxxx
Xxxxxxxx) and LCPI, as Arrangers, and the financial institutions named therein
as Co-Agents. Capitalized terms used herein that are not defined herein shall
have the meanings ascribed to them in the Credit Agreement. (the "Non-U.S.
Lender") is providing this certificate pursuant to subsection 2.15(b) of the
Credit Agreement. Under penalties of perjury, the Non-U.S. Lender hereby
represents and warrants that:
1. The Non-U.S. Lender is the sole record and beneficial owner of the
Note(s) in respect of which it is providing this certificate and it shall remain
the sole beneficial owner of such Note(s) at all times during which it is the
record holder of such Note(s).
2. The Non-U. S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "Code"). In
this regard, the Non-U.S. Lender further represents and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or other legal
requirements as a bank in any jurisdiction;
(b) the Non-U.S. Lender has not been treated as a bank for purposes of
any tax, securities law or other filing or submission made to any
Governmental Authority, any application made to a rating agency or
qualification for any exemption from tax, securities law or other legal
requirements;
(c) the Non-U. S. Lender is not a 10-percent shareholder within the
meaning of Section 881(c)(3)(B) of the Code;
(d) the Non-U.S. Lender is not a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code;
3. The Non-U.S. Lender meets all of the requirements under Code Section
871(h) or 881(c) to be eligible for a complete exemption from withholding of
U.S. Taxes on interest payments made to it under the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed this certificate.
[NAME OF NON-U.S. LENDER]
By:
Name:
Title:
Date:
2
Exhibit F
to Credit Agreement
-------------------
FORM OF
ASSIGNMENT AND ACCEPTANCE
FOR
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Reference is made to the Second Amended and Restated Credit Agreement,
dated as of April 24, 2000 (as amended, supplemented or otherwise modified prior
to the Effective Date (as defined below), the "Credit Agreement"), among L-3
Communication Corporation, a Delaware corporation, (the "Borrower"), the Lenders
and Co-Agents named therein, Bank of America N.A. (f/k/a Bank of America
National Trust & Savings Association) ("BOA"), as administrative agent for the
Lenders (in such capacity, the "Administrative Agent"), Xxxxxx Commercial Paper
Inc. ("LCPI"), as Syndication Agent and Documentation Agent, Banc of America
Securities LLC (f/k/a BancAmerica Xxxxxxxxx Xxxxxxxx) and LCPI as Arrangers.
Unless otherwise defined herein, terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
The Assignor identified on Schedule 1 hereto (the "Assignor") and the
Assignee identified on Schedule 1 hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), the interest described in Schedule 1 hereto
(the "Assigned Interest") in and to the Assignor's rights and obligations under
the Credit Agreement with respect to those credit facilities contained in the
Credit Agreement as set forth on Schedule 1 hereto (individually, an "Assigned
Facility"; collectively, the "Assigned Facilities"), in a principal amount for
each Assigned Facility as set forth on Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Credit Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim; (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, any of its Subsidiaries or any other
obligor or the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other Credit Document or any other instrument or
document furnished pursuant hereto or thereto; and (c) attaches any Notes held
by it evidencing the Assigned Facilities and (i) requests that the
Administrative Agent, upon request by the Assignee, exchange the attached Notes
for a new Note or Notes payable to the Assignee and (ii) if the Assignor has
retained any interest in any Assigned Facility, requests that the Administrative
Agent exchange
1
the attached Notes for a new Note or Notes payable to the Assignor, in each case
in amounts which reflect the assignment being made hereby (and after giving
effect to any other assignments which have become effective on the Effective
Date).
3. The Assignee (a) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (b) confirms that it has received
a copy of the Credit Agreement, together with copies of the financial statements
delivered pursuant to subsection 4.1 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance upon the Assignor, the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement, the other Credit
Documents or any other instrument or document furnished pursuant hereto or
thereto; (d) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
the Credit Agreement, the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to clause (b) of
subsection 2.15 of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be the
Effective Date of Assignment described in Schedule 1 hereto (the "Effective
Date"). Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance by it and recording by the
Administrative Agent pursuant to the Credit Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the Effective Date,
the Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignee. The Assignor and the Assignee shall make all appropriate
adjustments in payments by the Administrative Agent for periods prior to the
Effective Date or with respect to the making of this assignment directly between
themselves.
6. From and after the Effective Date, (a) the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Credit Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. THIS ASSIGNMENT AND ACCEPTANCE AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND
2
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
3
Schedule 1
to Assignment and Acceptance
Name of Assignor:_______________________
Name of Assignee:_______________________
Effective Date of Assignment:___________
Credit Facility Assigned Principal Amount Assigned Commitment Percentage Assign
------------------------ ------------------------- ----------------------------
$ ____________________ _______.____%
[Name of Assignee] [Name of Assignor]
By:_________________________ By:
Title: Title:
Accepted: Consented To:
BANK OF AMERICA, N.A., L-3 COMMUNICATION CORPORATION'2'
as Administrative Agent
By: ________________________
Title:
By:___________________________
Title:
Accepted:
BANK OF AMERICA, N.A.,
as Issuing Lender
By:________________________
Title:
Accepted:
XXXXXX COMMERCIAL PAPER INC.,
as Syndication Agent
By:_________________________
Title:
------------------
1 Calculate the Commitment Percentage that is assigned to at least 9 decimal
places and show as a percentage of the aggregate commitments of all
Lenders.
2 The Credit Agreement provides that the consent of the Borrower is required
unless the assignee (a) already is a Lender under the Credit Agreement, (b)
is an affiliate of a Lender, or (c) in the case of a Lender that is an
Investment Fund, any other such Investment Fund which is under common
management with such Lender. 4 CH DOCS\222542.4 [W9'7]
