1
Exhibit 10.47
CREDIT AGREEMENT
dated as of April 14, 1999,
among
XXXXXXXXX SEMICONDUCTOR CORPORATION,
FSC SEMICONDUCTOR CORPORATION,
THE LENDERS NAMED HEREIN
and
CREDIT SUISSE FIRST BOSTON,
as Lead Arranger and Administrative Agent
SALOMON BROTHERS HOLDING COMPANY INC
Syndication Agent
ABN AMRO BANK NV
and
FLEET NATIONAL BANK
Documentation Agents
2
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms............................................................... 2
SECTION 1.02. Terms Generally............................................................. 26
ARTICLE II
The Credits
SECTION 2.01. Commitments................................................................. 26
SECTION 2.02. Loans....................................................................... 27
SECTION 2.03. Borrowing Procedure......................................................... 28
SECTION 2.04. Evidence of Debt; Repayment of Loans........................................ 29
SECTION 2.05. Fees........................................................................ 29
SECTION 2.06. Interest on Loans........................................................... 30
SECTION 2.07. Default Interest............................................................ 31
SECTION 2.08. Alternate Rate of Interest.................................................. 31
SECTION 2.09. Termination and Reduction of Commitments.................................... 31
SECTION 2.10. Conversion and Continuation of Borrowings................................... 32
SECTION 2.11. Repayment of Term Borrowings................................................ 33
SECTION 2.12. Prepayment.................................................................. 35
SECTION 2.13. Mandatory Prepayments....................................................... 36
SECTION 2.14. Reserve Requirements; Change in Circumstances............................... 38
SECTION 2.15. Change in Legality.......................................................... 39
SECTION 2.16. Indemnity................................................................... 40
SECTION 2.17. Pro Rata Treatment.......................................................... 40
SECTION 2.18. Sharing of Setoffs.......................................................... 41
SECTION 2.19. Payments.................................................................... 41
SECTION 2.20. Taxes....................................................................... 42
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate......................................................... 43
SECTION 2.22. Swingline Loans............................................................. 44
SECTION 2.23. Letters of Credit........................................................... 45
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers........................................................ 49
SECTION 3.02. Authorization............................................................... 50
SECTION 3.03. Enforceability.............................................................. 50
SECTION 3.04. Governmental Approvals...................................................... 50
3
2
SECTION 3.05. Financial Statements........................................................ 50
SECTION 3.06. No Material Adverse Change.................................................. 51
SECTION 3.07. Title to Properties; Possession Under Leases................................ 51
SECTION 3.08. Subsidiaries................................................................ 51
SECTION 3.09. Litigation; Compliance with Laws............................................ 52
SECTION 3.10. Agreements.................................................................. 52
SECTION 3.11. Federal Reserve Regulations................................................. 52
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act.................. 52
SECTION 3.13. Use of Proceeds............................................................. 52
SECTION 3.14. Tax Returns................................................................. 53
SECTION 3.15. No Material Misstatements................................................... 53
SECTION 3.16. Employee Benefit Plans...................................................... 53
SECTION 3.17. Environmental Matters....................................................... 54
SECTION 3.18. Insurance................................................................... 54
SECTION 3.19. Security Documents.......................................................... 54
SECTION 3.20. Location of Real Property and Leased Premises............................... 55
SECTION 3.21. Labor Matters............................................................... 56
SECTION 3.22. Solvency.................................................................... 56
SECTION 3.23. Representatives and Warranties in Documents................................. 56
SECTION 3.24. Year 2000................................................................... 56
SECTION 3.25. Letters of Credit........................................................... 57
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events........................................................... 57
SECTION 4.02. First Credit Event.......................................................... 58
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties........................................ 61
SECTION 5.02. Insurance................................................................... 61
SECTION 5.03. Obligations and Taxes....................................................... 62
SECTION 5.04. Financial Statements, Reports, etc. ........................................ 63
SECTION 5.05. Litigation and Other Notices................................................ 65
SECTION 5.06. Employee Benefits........................................................... 65
SECTION 5.07. Maintaining Records; Access to Properties and Inspections................... 65
SECTION 5.08. Use of Proceeds............................................................. 65
SECTION 5.09. Compliance with Environmental Laws.......................................... 65
SECTION 5.10. Preparation of Environmental Reports........................................ 66
SECTION 5.11. Further Assurances.......................................................... 66
SECTION 5.12. Interest Rate Protection.................................................... 66
SECTION 5.13. Fiscal Year Change.......................................................... 66
SECTION 5.14. Xxxxxxxxx Korea Transactions ............................................... 67
4
3
SECTION 5.15. Korean Stock ............................................................... 67
SECTION 5.16. Survey of Utah Mortgaged Property........................................... 67
SECTION 5.17. VAT Refund.................................................................. 67
SECTION 5.18. Zoning...................................................................... 67
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness................................................................ 68
SECTION 6.02. Liens....................................................................... 69
SECTION 6.03. Sale and Lease-Back Transactions............................................ 71
SECTION 6.04. Investments, Loans and Advances............................................. 71
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions................... 73
SECTION 6.06. Dividends................................................................... 74
SECTION 6.07. Transactions with Affiliates................................................ 75
SECTION 6.08. Capital Expenditures........................................................ 76
SECTION 6.09. Consolidated Interest Coverage Ratio........................................ 77
SECTION 6.10. Consolidated Fixed Charge Coverage Ratio.................................... 77
SECTION 6.11. Maximum Leverage Ratio...................................................... 77
SECTION 6.12. Limitation on Modifications of Indebtedness; Modifications of
Certificate of Incorporation, By-laws and Certain Other Agreements,
etc......................................................................... 77
SECTION 6.13. Limitation on Certain Restrictions on Subsidiaries.......................... 78
SECTION 6.14. Limitation on Issuance of Capital Stock..................................... 79
SECTION 6.15. Limitation on Creation of Subsidiaries...................................... 79
SECTION 6.16. Business.................................................................... 79
SECTION 6.17. Designated Senior Indebtedness.............................................. 80
SECTION 6.18. Fiscal Year................................................................. 80
ARTICLE VII
Events of Default........................................................... 80
ARTICLE VIII
The Administrative Agent and the Collateral Agent........................... 82
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices..................................................................... 85
SECTION 9.02. Survival of Agreement....................................................... 85
SECTION 9.03. Binding Effect.............................................................. 85
5
4
SECTION 9.04. Successors and Assigns...................................................... 86
SECTION 9.05. Expenses; Indemnity......................................................... 89
SECTION 9.06. Right of Setoff............................................................. 90
SECTION 9.07. Applicable Law.............................................................. 90
SECTION 9.08. Waivers; Amendment.......................................................... 91
SECTION 9.09. Interest Rate Limitation.................................................... 92
SECTION 9.10. Entire Agreement............................................................ 92
SECTION 9.11. WAIVER OF JURY TRIAL........................................................ 92
SECTION 9.12. Severability................................................................ 92
SECTION 9.13. Counterparts................................................................ 93
SECTION 9.14. Headings.................................................................... 93
SECTION 9.15. Jurisdiction; Consent to Service of Process................................. 93
SECTION 9.16. Judgment Currency........................................................... 93
SECTION 9.17. Confidentiality............................................................. 94
Schedule 1.01(a) Mortgaged Properties
Schedule 1.01(b) Subsidiary Guarantors
Schedule 2.01 Lenders and Commitments
Schedule 3.04 Governmental Approvals
Schedule 3.07(c) Condemnation Proceedings
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.17 Environmental Matters
Schedule 3.18 Insurance
Schedule 3.19(d) Mortgage Filing Offices
Schedule 3.20(a) Real Property Owned In Fee
Schedule 3.20(b) Leased Real Property
Schedule 4.02(a) Other Local Counsel
Schedule 6.01 Outstanding Indebtedness on Closing Date
Schedule 6.02 Liens Existing on Closing Date
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Borrowing Request
Exhibit D Form of Indemnity, Subrogation and Contribution Agreement
Exhibit E-1 Form of Mortgage
Exhibit E-2 Form of Deed of Trust
Exhibit F Form of Parent Guarantee Agreement
Exhibit G Form of Pledge Agreement
Exhibit H Form of Security Agreement
Exhibit I Form of Subsidiary Guarantee Agreement
Exhibit J-1 Form of Opinion of Dechert, Price & Xxxxxx
Exhibit J-2 Form of Opinion of Xxx & Xxxxx
Exhibit J-3 Form of Opinion of Local Counsel
6
CREDIT AGREEMENT dated as of April 14, 1999,
among XXXXXXXXX SEMICONDUCTOR CORPORATION, a Delaware
corporation (the "Borrower"), FSC SEMICONDUCTOR
CORPORATION, a Delaware corporation ("Holdings"), the
Lenders (as defined in Article I), CREDIT SUISSE
FIRST BOSTON, a bank organized under the laws of
Switzerland, acting through its New York branch, as
swingline lender (in such capacity, the "Swingline
Lender"), as an Issuing Bank (as defined in Article
I), and as administrative agent (in such capacity,
the "Administrative Agent") and as collateral agent
(in such capacity, the "Collateral Agent") for the
Lenders, SALOMON BROTHERS HOLDING COMPANY INC, as
syndication agent (in such capacity, the "Syndication
Agent"), FLEET NATIONAL BANK, as an Issuing Bank and
as a documentation agent, and ABN AMRO BANK NV, as a
documentation agent (together with Fleet National
Bank in such capacity, the "Documentation Agents").
Pursuant to the Business Transfer Agreement (such term and each other
capitalized term used but not defined herein having the meaning given it in
Article I), Xxxxxxxxx Korea intends to acquire (the "Acquisition") the PD
Business of Samsung for $455,000,000 (or such lesser amount as may actually be
paid by Xxxxxxxxx Korea to consummate the acquisition) in cash (the "Cash
Consideration"), excluding the refinancing of indebtedness, the payment of
interest to Samsung on all or a portion of the Cash Consideration that may be
evidenced by a note or other instrument of the Borrower and Xxxxxxxxx Korea
prior to the Closing Date and the payment of fees and expenses, and subject to
adjustment as provided in the Business Transfer Agreement.
The Borrower has requested the Lenders to extend credit in the form of
(a) Tranche A Term Loans on the Closing Date, in an aggregate principal amount
not in excess of $100,000,000, (b) Tranche B Term Loans on the Closing Date, in
an aggregate principal amount not in excess of $210,000,000, and (c) Revolving
Loans at any time and from time to time prior to the Revolving Credit Maturity
Date, in an aggregate principal amount at any time outstanding not in excess of
$100,000,000. The Borrower has requested the Swingline Lender to extend credit,
at any time and from time to time prior to the Revolving Credit Maturity Date,
in the form of Swingline Loans. The Borrower has requested the Issuing Bank to
issue letters of credit, in an aggregate face amount at any time outstanding not
in excess of $25,000,000, to support payment obligations incurred in the
ordinary course of business by the Borrower and its Subsidiaries. The proceeds
of the Term Loans are to be used, together with the proceeds of the New Senior
Subordinated Notes and the proceeds of the Holdings Subordinated Note, solely
(i) to purchase the Xxxxxxxxx Korea Bond, (ii) to make the Xxxxxxxxx Korea
Acquisition Loan, (iii) to make the Xxxxxxxxx California Contribution, with the
proceeds thereof used by Xxxxxxxxx California to make the Xxxxxxxxx Korea
Investment (which, together with the proceeds of the sale of the Xxxxxxxxx Korea
Bond and a portion of the proceeds of the Xxxxxxxxx Korea Acquisition Loan, will
enable Xxxxxxxxx Korea to pay the Cash Consideration and any interim interest
thereon), (iv) to repay all amounts outstanding under the Existing Credit
Agreement and (v) to pay related fees and expenses. The proceeds of the
Revolving Loans and the Swingline Loans are to be used solely for general
corporate purposes.
The Lenders are willing to extend such credit to the Borrower and the
Issuing Bank is willing to issue letters of credit for the account of the
Borrower on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
7
2
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Term Loan or ABR Revolving Loan.
"ABR Revolving Loan" shall mean any Revolving Loan bearing interest at
a rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ABR Term Borrowing" shall mean a Borrowing comprised of ABR Term
Loans.
"ABR Term Loan" shall mean any Term Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Acquisition" shall have the meaning assigned to such term in the first
introductory paragraph hereof.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate
in effect for such Interest Period and (b) Statutory Reserves.
"Administrative Agent Fees" shall have the meaning assigned to such
term in Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A, or such other form as may be supplied
from time to time by the Administrative Agent.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified; provided, however, that for purposes of Section 6.07, the term
"Affiliate" shall also include any person that directly or indirectly owns more
than 5% of any class of capital stock of the person specified or that is an
officer or director of the person specified.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount
of the Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. If the Administrative Agent shall
have determined (which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Federal Funds Effective Rate for any reason,
including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms of
8
3
the definition thereof, the Alternate Base Rate shall be determined without
regard to clause (b) of the preceding sentence until the circumstances giving
rise to such inability no longer exist. Any change in the Alternate Base Rate
due to a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively. The term "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time by the Administrative
Agent as its prime rate in effect at its principal office in New York City; each
change in the Prime Rate shall be effective on the date such change is publicly
announced as being effective. The term "Federal Funds Effective Rate" shall
mean, for any day, the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for the day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Applicable Percentage" shall mean, for any day, with respect to any
Eurodollar Loan or ABR Loan, as the case may be, the applicable percentage set
forth below under the caption "Eurodollar Spread--Tranche A Term Loans and
Revolving Loans", "Eurodollar Spread--Tranche B Term Loans" or "ABR
Spread--Tranche A Term Loans and Revolving Loans" or "ABR Spread--
9
4
Tranche B Term Loans", as the case may be, based upon the Leverage Ratio as of
the relevant date of determination:
Eurodollar
Spread- ABR Spread-
Tranche A Tranche A Eurodollar
Term Loans and Term Loans Spread- ABR Spread-
Leverage Revolving and Revolving Tranche B Tranche B
Ratio Loans Loans Term Loans Term Loans
-------- -------------- ------------- ---------- -----------
Category 1 3.00% 2.00% 3.50% 2.50%
Equal to or greater than
4.00 to 1.00
Category 2 2.75% 1.75% 3.25% 2.25%
Equal to or greater than
3.50 to 1.00, but less than
4.00 to 1.00
Category 3 2.50% 1.50% 3.00% 2.00%
Equal to or greater than
3.25 to 1.00, but less than
3.50 to 1.00
Category 4 2.25% 1.25% 2.75% 1.75%
Equal to or greater than
3.00 to 1.00, but less than
3.25 to 1.00
Category 5 2.00% 1.00% 2.75% 1.75%
Equal to or greater than
2.75 to 1.00, but less than
3.00 to 1.00
Category 6 1.75% 0.75% 2.75% 1.75%
Less than 2.75 to 1.00
Each change in the Applicable Percentage resulting from a change in the
Leverage Ratio shall be effective with respect to all Loans and Letters of
Credit outstanding on and after the date of delivery to the Administrative Agent
of the financial statements and certificates required by Section 5.04(a) or (b)
and Section 5.04(d), respectively, indicating such change until the date
immediately preceding the next date of delivery of such financial statements and
certificates
10
5
indicating another such change. Notwithstanding the foregoing, until October 14,
1999, the Leverage Ratio shall be deemed to be in Category 2 for purposes of
determining the Applicable Percentage; provided, however, that (a) at any time
during which the Borrower has failed to deliver the financial statements and
certificates required by Section 5.04(a) or (b) and Section 5.04(d),
respectively, or (b) at any time after the occurrence and during the continuance
of an Event of Default, the Leverage Ratio shall be deemed to be in Category 1
for purposes of determining the Applicable Percentage.
"Asset Sale" shall mean the sale, transfer or other disposition (by way
of merger or otherwise) by Holdings, the Borrower or any of the Subsidiaries to
any person other than the Borrower or any Subsidiary Guarantor of (a) any
capital stock of any of the Subsidiaries (other than directors' qualifying
shares) or (b) any other assets of Holdings, the Borrower or any of the
Subsidiaries (other than (i) inventory, excess, damaged, obsolete or worn out
assets, scrap and Cash Equivalents, in each case disposed of in the ordinary
course of business, (ii) assets transferred for an aggregate purchase price not
exceeding $5,000,000 in any four consecutive fiscal quarters of the Borrower in
connection with the replacement or upgrade of a tangible asset of the Borrower
or any Subsidiary Guarantor with a tangible asset of comparable or greater value
within 270 days of such transfer, (iii) dispositions resulting in Casualty
Proceeds or Condemnation Proceeds, (iv) dispositions between or among Foreign
Subsidiaries or (v) the Mountain View Property, if it is disposed of in a
transaction which is consummated within ninety days of the Closing Date),
provided that any asset sale or series of related asset sales described in
clause (b) above having a value not in excess of $100,000 shall be deemed not to
be an "Asset Sale" for purposes of this Agreement.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B, or such other form as shall be approved by the
Administrative Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
"Bond Purchase Agreement" shall mean the Bond Purchase Agreement, dated
as of April 14, 1999, between the Borrower and Xxxxxxxxx Korea.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by the Borrower in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit C, or
such other form as shall be approved by the Administrative Agent.
"Business Day" shall mean any day other than a Saturday, Sunday or day
on which banks in New York City are authorized or required by law to close;
provided, however, that when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Business Transfer Agreement" shall mean the Business Transfer
Agreement dated December 20, 1998, between Samsung and the Borrower, as amended,
supplemented or otherwise modified from time to time in accordance with the
provisions hereof and thereof.
11
6
"Capital Expenditures" shall mean, with respect to any person, all
expenditures by such person that should be capitalized in accordance with GAAP,
including all such expenditures with respect to fixed or capital assets
(including expenditures for maintenance and repairs that should be capitalized
in accordance with GAAP) and the amount of Capital Lease Obligations incurred by
such person.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash Equivalents" shall mean, as to any person, (a) securities issued
or directly and fully guaranteed or insured by the United States or any agency
or instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support thereof) having maturities of not more than
one year from the date of acquisition by such person, (b) time deposits and
certificates of deposit of any commercial bank having, or which is the principal
banking subsidiary of a bank holding company organized under the laws of the
United States, any State thereof or the District of Columbia, having capital,
surplus and undivided profits aggregating in excess of $500,000,000, with
maturities of not more than one year from the date of acquisition by such
person, (c) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (a) above entered into
with any bank meeting the qualifications specified in clause (b) above, (d)
commercial paper issued by any person incorporated in the United States rated at
least A-1 or the equivalent thereof by Standard & Poor's Rating Service or at
least P-1 or the equivalent thereof by Xxxxx'x Investors Service, Inc., and in
each case maturing not more than one year after the date of acquisition by such
person, (e) investments in money market funds substantially all of whose assets
are comprised of securities of the types described in clauses (a) through (d)
above and (f) demand deposit accounts maintained in the ordinary course of
business.
"Casualty" shall have the meaning set forth in each of the Mortgages.
"Casualty Proceeds" shall have the meaning set forth in each of the
Mortgages.
A "Change in Control" shall be deemed to have occurred if (a) Holdings
shall at any time cease to own 100% of the capital stock of the Borrower, (b) at
any time a "Change of Control" under and as defined in either Senior
Subordinated Note Indenture, the Seller Note or in any documentation relating to
any Indebtedness refinancing all or any part thereof shall have occurred, (c) at
any time prior to the consummation of a Qualified Public Offering, and for any
reason whatsoever, (i) the CVC Permitted Holders shall own less than 40% of the
then outstanding Voting Stock at such time or (ii) the CVC Permitted Holders and
the Management Investors, taken together, shall own less than a majority or the
outstanding Voting Stock, (d) at any time after the consummation of a Qualified
Public Offering any "Person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act), excluding the CVC Permitted Holders and
the Management Investors, is or shall become the "beneficial owner" (as defined
in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of
more than 35% of the outstanding Voting Stock, or (e) at any time the Board of
Directors of Holdings shall cease to consist of a majority of Continuing
Directors.
"Closing Date" shall mean April 14, 1999.
12
7
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean all the "Collateral" as defined in any Security
Document and shall also include the Mortgaged Properties.
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment, Term Loan Commitment and Swingline Commitment.
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.05(a).
"Condemnation" shall have the meaning set forth in each of the
Mortgages.
"Condemnation Proceeds" shall have the meaning set forth in each of the
Mortgages.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated March 1999.
"Consolidated Current Assets" shall mean, at any time, the consolidated
current assets (other than cash and Cash Equivalents) of Holdings and its
consolidated Subsidiaries.
"Consolidated Current Liabilities" shall mean, at any time, the
consolidated current liabilities of Holdings and its consolidated Subsidiaries
at such time, but excluding (a) the current portion of any Indebtedness under
this Agreement and any other long-term Indebtedness which would otherwise be
included therein, (b) accrued but unpaid interest with respect to the
Indebtedness described in clause (a), and (c) the current portion of
Indebtedness constituting Capital Lease Obligations.
"Consolidated EBIT" shall mean, for any period, the Consolidated Net
Income for such period, before interest expense and provision for taxes based on
income and without giving effect to any extraordinary gains or losses or gains
or losses from sales of assets other than inventory sold in the ordinary course
of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT,
adjusted by adding thereto the amount of all amortization of intangibles and
depreciation, in each case that were deducted in arriving at Consolidated EBIT
for such period; provided, however, that for purposes of determining the
Leverage Ratio, (i) Consolidated EBITDA for the four fiscal quarter period
ending on August 31, 1999, November 30, 1999, December 31, 1999 and March 31,
2000 shall be deemed to equal Consolidated EBITDA for the period commencing on
June 1, 1999, and ending on (w) August 31, 1999, multiplied by 4, (x) November
30, 1999, multiplied by 2, (y) December 31, 1999, multiplied by 12/7 and (z)
March 31, 2000 multiplied by 6/5, respectively, (ii) Consolidated EBITDA for the
four fiscal quarter period ending on June 30, 2000 shall be deemed to equal
Consolidated EBITDA for the period commencing on July 1, 1999 and ending on June
30, 2000 and (iii) Consolidated EBITDA for the four fiscal quarter period ending
on September 30, 2000, shall be deemed to equal Consolidated EBITDA for the
period commencing on October 1, 1999 and ending on September 30, 2000.
"Consolidated Fixed Charge Coverage Ratio" for any period shall mean
the ratio of Consolidated EBITDA to Consolidated Fixed Charges for such period.
13
8
"Consolidated Fixed Charges" for any period shall mean the sum, without
duplication, of (a) Consolidated Interest Expense for such period, (b) the
amount of all Capital Expenditures made by Holdings and its Subsidiaries during
such period (other than Capital Expenditures to the extent made pursuant to
Section 6.08(c)), (c) all cash payments in respect of income taxes made during
such period (net of any cash refund in respect of income taxes actually received
during such period) and (d) the scheduled principal amount of all amortization
payments on all Indebtedness (including the principal component of all Capital
Lease Obligations) of Holdings and its Subsidiaries for such period (as
determined on the first day of the respective period).
"Consolidated Indebtedness" shall mean, as at any date of
determination, the aggregate stated balance sheet amount of all Indebtedness
(but including in any event the then outstanding principal amount of all Loans,
all Senior Subordinated Notes, all Capital Lease Obligations and all L/C
Exposure) of Holdings and its Subsidiaries on a consolidated basis as determined
in accordance with GAAP; provided that Indebtedness outstanding pursuant to (a)
the Seller Note, (b) the Holdings Junior Subordinated Debentures, (c) the
Holdings Subordinated Note and (d) trade payables and accrued expenses incurred
in the ordinary course of business shall be excluded in determining Consolidated
Indebtedness.
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio of (i) Consolidated EBITDA for such period to (ii) Consolidated Interest
Expense for such period.
"Consolidated Interest Expense" shall mean, for any period, the total
consolidated interest expense of Holdings and its consolidated Subsidiaries for
such period (calculated without regard to any limitations on the payment
thereof) plus, without duplication, the portion of Capital Lease Obligations of
Holdings and its consolidated Subsidiaries representing the interest factor for
such period, but excluding (a) the amortization of any deferred financing costs
incurred in connection with this Agreement or the issuance of the New Senior
Subordinated Notes and the Existing Senior Subordinated Notes and (b) any
interest expense in respect of (i) the Seller Note, (ii) the Holdings
Subordinated Note and (iii) the Holdings Junior Subordinated Debentures.
"Consolidated Net Income" shall mean, for any period, the consolidated
net after tax income of Holdings and its consolidated Subsidiaries determined in
accordance with GAAP.
"Contingent Obligation" shall mean, as to any person, any obligation of
such person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such person, whether or not contingent,
(a) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (b) to advance or supply funds (i) for the
purchase or payment of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (d) otherwise to assure or hold harmless the holder
of such primary obligation against loss in respect thereof; provided, however,
that the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business and any
products warranties for deposit or collection in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made (or, if less, the maximum
amount of such primary obligation
14
9
for which such person may be liable pursuant to the terms of the instrument
evidencing such Contingent Obligation) or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
person is required to perform thereunder) as determined by such person in good
faith.
"Continuing Directors" shall mean (a) the directors of Holdings on the
Closing Date and (b) each other director, if (i) such director's nomination for
election to the Board of Directors of Holdings is recommended by a majority of
then Continuing Directors or (ii) such director became a member of the Board of
Directors pursuant to, and in accordance with, Article V of the Securities
Purchase and Holders Agreement prior to the termination of the voting agreements
pursuant to Section 5.7 of the Securities Purchase and Holders Agreement.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Credit Event" shall have the meaning assigned to such term in Section
4.01.
"CVC" shall mean Citicorp Venture Capital Ltd.
"CVC Permitted Holders" shall mean (a) CVC, (b) any officer, employee
or director of CVC or any trust, partnership or other entity established solely
for the benefit of such officers, employees or directors and (c) Sterling (or
any successor) so long as CVC, employees, officers and directors of CVC and
corporations, partnerships and other entities at least a majority of the equity
in which is held in the aggregate by CVC and its employees, officers and
directors, hold no less than a majority of the aggregate economic interests in
Sterling or such successor.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Disqualified Stock" shall mean any capital stock which, by its terms
(or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, (a) matures (excluding any
maturity as the result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the first anniversary of the Tranche B Maturity Date, or (b) is
convertible into or exchangeable (unless at the sole option of the issuer
thereof) for (i) debt securities or (ii) any capital stock referred to in (a)
above, in each case at any time prior to the first anniversary of the Tranche B
Maturity Date, or (c) otherwise contains terms which are materially more
restrictive (or provide the holders thereof materially greater rights) than the
Holdings Series A Preferred Stock in the form issued on or prior to the Closing
Date.
"Dividend" with respect to any person shall mean that such person has
declared or paid a dividend or returned any equity capital to its stockholders
or authorized or made any other distribution, payment or delivery of property
(other than common stock of such person) or cash to its stockholders as such, or
redeemed, retired, purchased or otherwise acquired, directly or indirectly, for
a consideration any shares of any class of its capital stock outstanding on or
after the Closing Date (or any options or warrants issued by such person with
respect to its capital stock), or set aside
15
10
any funds for any of the foregoing purposes, or shall have permitted any of its
Subsidiaries to purchase or otherwise acquire for a consideration any shares of
any class of the capital stock of such person outstanding on or after the
Closing Date (or any options or warrants issued by such person with respect to
its capital stock). Without limiting the foregoing, "Dividends" with respect to
any person shall also include all payments made or required to be made by such
person with respect to any stock appreciation rights, plans, equity incentive or
achievement plans or any similar plans or setting aside of any funds for the
foregoing purposes.
"Documents" shall mean the Loan Documents and the Transaction
Documents.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof, the
District of Columbia, the United States Virgin Islands or Puerto Rico.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Claim" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, directive, cost recovery action or
other cause of action by, or on behalf of, any Governmental Authority or any
person for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon (a) the existence, or
the continuation of the existence, of a Release (including sudden or non-sudden,
accidental or non-accidental Releases), (b) exposure to any Hazardous Material,
(c) the presence, use, handling, transportation, storage, treatment or disposal
of any Hazardous Material or (d) the violation or alleged violation of any
Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present and
future treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, Release or
threatened Release of any Hazardous Material or to health and safety matters,
including the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986, 42 U.S.C. Sections 9601 et seq. (collectively "CERCLA"), the Solid
Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of
1976 and Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. Sections
6901 et seq., the Federal Water Pollution Control Act, as amended by the Clean
Water Act of 1977, 33 U.S.C. Sections 1251 et seq., the Clean Air Act of
1970, as amended 42 U.S.C. Sections 7401 et seq., the Toxic Substances
Control Act of 1976, 15 U.S.C. Sections 2601 et seq., the Occupational
Safety and Health Act of 1970, as amended, 29 U.S.C. Sections 651 et seq.,
the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
Sections 11001 et seq., the Safe Drinking Water Act of 1974, as amended,
42 U.S.C. Sections 300(f) et seq., the Hazardous Materials Transportation
Act, 49 U.S.C. Sections 5101 et seq., and any similar or implementing
state, local or foreign law, and all amendments or regulations promulgated under
any of the foregoing.
16
11
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any of its ERISA
Affiliates from the PBGC or a plan administrator of any notice relating to the
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of
any liability with respect to the withdrawal from any Plan or Multiemployer
Plan; (g) the receipt by the Borrower or any of its ERISA Affiliates of any
notice, or the receipt by any Multiemployer Plan from the Borrower or any of its
ERISA Affiliates of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of ERISA; and (h)
any Foreign Benefit Event.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" shall mean any Eurodollar Revolving Loan or
Eurodollar Term Loan.
"Eurodollar Revolving Loan" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Term Borrowing" shall mean a Borrowing comprised of
Eurodollar Term Loans.
"Eurodollar Term Loan" shall mean any Term Loan bearing interest at a
rate determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Excess Cash Flow" shall mean, for any fiscal year of Holdings, the
excess of (a) the sum, without duplication, of (i) Consolidated EBITDA for such
fiscal year, (ii) extraordinary cash receipts of Holdings and its consolidated
Subsidiaries, if any, during such fiscal year and not included in Consolidated
EBITDA (including any amounts received by Holdings or any of its Subsidiaries
pursuant to Section 2.4(d) of the Business Transfer Agreement) and (iii)
reductions to noncash
17
12
working capital of Holdings and its consolidated Subsidiaries for such fiscal
year (i.e., the decrease, if any, in Consolidated Current Assets minus
Consolidated Current Liabilities from the beginning to the end of such fiscal
year) over (b) the sum, without duplication, of (i) the amount of any cash
income taxes payable by Holdings and its consolidated Subsidiaries with respect
to such fiscal year, (ii) cash interest paid (net of cash interest received) by
Holdings and its consolidated Subsidiaries during such fiscal year, (iii)
Capital Expenditures made in cash in accordance with Section 6.08 during such
fiscal year, except to the extent financed with the proceeds of Indebtedness,
Casualty Proceeds or Condemnation Proceeds, (iv) permanent repayments of
Indebtedness made by Holdings and its consolidated Subsidiaries during such
fiscal year, (v) optional and mandatory prepayments of the principal of Loans
during such fiscal year, but only to the extent that such prepayments by their
terms cannot be reborrowed or redrawn and do not occur in connection with a
refinancing of all or any portion of the Loans, (vi) extraordinary cash expenses
paid by Holdings and its consolidated Subsidiaries, if any, during such fiscal
year and not included in Consolidated EBITDA, (vii) additions to noncash working
capital for such fiscal year (i.e., the increase, if any, in Consolidated
Current Assets minus Consolidated Current Liabilities from the beginning to the
end of such fiscal year) and (viii) if any amount representing permitted Capital
Expenditures is being carried forward from such fiscal year into the immediately
succeeding fiscal year pursuant to the provisions of Section 6.08(b), the amount
being so carried forward, net of any amount of permitted Capital Expenditures
carried forward into such fiscal year from the immediately preceding fiscal year
pursuant to the provisions of Section 6.08(b) to the extent such amount has
lapsed and terminated at the end of such fiscal year pursuant to the proviso to
Section 6.08(b); provided that to the extent otherwise included therein, the Net
Cash Proceeds of Asset Sales and dispositions resulting in Casualty Proceeds or
Condemnation Proceeds shall be excluded from the calculation of Excess Cash
Flow.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Excluded Taxes" shall mean, with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.21(a)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.20(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.20(a).
"Existing Credit Agreement" shall mean the Credit Agreement dated as of
March 11, 1997, as amended, among Holdings, the Borrower, various lenders,
Bankers Trust Company, as administrative agent, CSFB, as syndication agent, and
Canadian Imperial Bank of Commerce, as documentation agent.
18
13
"Existing L/C" shall mean letter of credit No. MS1063605 issued by
Fleet National Bank for the account of the Borrower in favor of Standard
Chartered Bank, with a face amount of $2,704,000.
"Existing Senior Subordinated Note Documents" shall mean the Existing
Senior Subordinated Notes, the Existing Senior Subordinated Note Indenture and
all other documents executed and delivered with respect to the Existing Senior
Subordinated Notes or the Existing Senior Subordinated Note Indenture.
"Existing Senior Subordinated Note Indenture" shall mean the indenture
dated as of March 11, 1997, between the Borrower and the Senior Subordinated
Note Indenture Trustee, as in effect on the Closing Date and as thereafter
amended from time to time in accordance with the requirements thereof and of
this Agreement.
"Existing Senior Subordinated Notes" shall mean the Borrower's 10-1/8%
Senior Subordinated Notes due 2007 issued pursuant to the Existing Senior
Subordinated Note Indenture and any notes issued by the Borrower in exchange
for, and as contemplated by, the Existing Senior Subordinated Notes with
substantially identical terms as the Existing Senior Subordinated Notes.
"Fairchild California" shall mean Xxxxxxxxx Semiconductor Corporation
of California, a Delaware corporation.
"Fairchild California Contribution" shall mean the contribution by the
Borrower on the Closing Date of $106,000,000 in cash as common equity to
Fairchild California.
"Fairchild Korea" shall mean Xxxxxxxxx Korea Semiconductor Ltd., a
corporation (xxxxxx xxxxx) organized under the laws of the Republic of Korea.
"Fairchild Korea Acquisition Loan" means the loan made by the Borrower
to Fairchild Korea pursuant to the Fairchild Korea Loan Agreement for the
purpose of enabling Fairchild Korea to pay the Cash Consideration to Samsung in
the amount of $50,000,000.
"Fairchild Korea Bond" shall mean the intercompany bond to be issued to
the Borrower by Fairchild Korea pursuant to the Bond Purchase Agreement in the
amount of $260,522,720.
"Fairchild Korea Investment" shall mean the contribution by Fairchild
California of $106,000,000 in cash as common equity to Fairchild Korea.
"Fairchild Korea Loan Agreement" shall mean the Loan Agreement dated as
of April 14, 1999 between the Borrower and Fairchild Korea.
"Fairchild Korea Stock" shall mean 65% of the capital stock of
Fairchild Korea, which shall be pledged by Fairchild California to the
Collateral Agent, for the ratable benefit of the Secured Parties, pursuant to
the Pledge Agreement.
"Fee Letter" shall mean the Senior Secured Credit Facilities Fee Letter
dated March 2, 1999, among the Borrower, Credit Suisse First Boston, Salomon
Brothers Holding Company Inc, ABN Amro Bank NV and Fleet National Bank.
19
14
"Fees" shall mean the Commitment Fees, the Administrative Agent's Fees,
the L/C Participation Fees and the Issuing Bank Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such
corporation.
"Foreign Lender" shall mean any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Pension Plan" shall mean any plan, fund (including any
superannuation fund) or other similar program established or maintained outside
the United States by Holdings or any one or more of its Subsidiaries primarily
for the benefit of employees of Holdings or such Subsidiaries residing outside
the United States, which plan, fund or other similar program provides, or
results in, retirement income, a deferral of income in contemplation of
retirement or payments to be made upon termination of employment, and which plan
is not subject to ERISA or the Code.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean generally accepted accounting principles applied on a
consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Granting Lender" has the meaning specified in Section 9.04(i).
"Guarantee Agreements" shall mean the Parent Guarantee Agreement and
the Subsidiary Guarantee Agreement.
"Guarantors" shall mean Holdings and the Subsidiary Guarantors.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes, hazardous or toxic substances or wastes, pollutants,
solid, liquid or gaseous wastes, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Holdings Junior Subordinated Debentures" shall have the meaning
provided in Section 6.01(l).
"Holdings Series A Preferred Stock" shall mean shares of Holding's 12%
Series A Cumulative Compounding Preferred Stock.
"Holdings Subordinated Note" shall mean the 12.5% Subordinated Note due
2008 of Holdings, in an aggregate principal amount of $50,000,000.
20
15
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid, (d) all obligations of such
person under conditional sale or other title retention agreements relating to
property or assets purchased by such person, (e) all obligations of such person
issued or assumed as the deferred purchase price of property or services
(excluding trade accounts payable and accrued obligations incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
person, whether or not the obligations secured thereby have been assumed, (g)
all Contingent Obligations of such person, (h) all Capital Lease Obligations of
such person, (i) all obligations of such person in respect of interest rate
protection agreements, foreign currency exchange agreements or other interest or
exchange rate hedging arrangements and (j) all obligations of such person as an
account party in respect of letters of credit and bankers' acceptances. The
Indebtedness of any person shall include the Indebtedness of any partnership in
which such person is a general partner.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit D, among the Borrower, the Subsidiary Guarantors and the Collateral
Agent.
"Interest Payment Date" shall mean, with respect to any Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurodollar Borrowing with an Interest Period of more
than three months' duration, each day that would have been an Interest Payment
Date had successive Interest Periods of three months' duration been applicable
to Borrowing, and, in addition, the date of any prepayment of a Eurodollar
Borrowing or conversion of a Eurodollar Borrowing to an ABR Borrowing.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the
Borrower may elect, and (b) as to any ABR Borrowing, the period commencing on
the date of such Borrowing and ending on the earlier of (i) the next succeeding
last Business Day of March, June, September or December, and (ii) the Revolving
Credit Maturity Date, the Tranche A Maturity Date or the Tranche B Maturity
Date, as applicable; provided, however, that if any Interest Period would end on
a day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of a Eurodollar Borrowing only,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or
similar agreement or arrangement designed to protect Holdings or any of its
Subsidiaries against fluctuations in interest rates, and not entered into for
speculation.
21
16
"Issuing Bank" shall mean, as the context may require, (a) Credit
Suisse First Boston, with respect to Letters of Credit issued by it, (b) Fleet
National Bank, with respect to the Existing L/C, (c) any other Lender that may
become an Issuing Bank pursuant to Section 2.23(i) or (k), with respect to
Letters of Credit issued by such Lender, or (d) collectively, all the foregoing.
"Issuing Bank Fees" shall have the meaning assigned to such term in
Section 2.05(c).
"Joint Venture" shall mean any person in which Holdings, the Borrower
and its Subsidiaries own, directly or indirectly, more than 5% but 50% or less
of the equity interests.
"L/C Commitment" shall mean the commitment of the Issuing Bank to issue
Letters of Credit pursuant to Section 2.23.
"L/C Disbursement" shall mean a payment or disbursement made by the
Issuing Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate principal amount of all L/C Disbursements that have not yet been
reimbursed at such time. The L/C Exposure of any Revolving Credit Lender at any
time shall mean its Pro Rata Percentage of the aggregate L/C Exposure at such
time.
"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.05(c).
"Lenders" shall mean (a) the financial institutions listed on Schedule
2.01 (other than any such financial institution that has ceased to be a party
hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance. Unless the context clearly indicates otherwise, the term "Lenders"
shall include the Swingline Lender.
"Letter of Credit" shall mean any letter of credit issued pursuant to
Section 2.23 and the Existing L/C.
"Leverage Ratio" shall mean, at any date of determination, the ratio of
Consolidated Indebtedness on such date to Consolidated EBITDA for the period of
four consecutive fiscal quarters of the Borrower most recently ended as of such
date.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, the rate per annum determined by the Administrative Agent
at approximately 11:00 a.m. (London time) on the date that is two Business Days
prior to the beginning of the relevant Interest Period by reference to the
British Bankers' Association Interest Settlement Rates for deposits in dollars
(as set forth by the Bloomberg Information Service or any successor thereto or
any other service selected by the Administrative Agent which has been nominated
by the British Bankers' Association as an authorized information vendor for the
purpose of displaying such rates) for a period equal to such Interest Period;
provided that, to the extent that an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition, the "LIBO Rate" shall be the
interest rate per annum determined by the Administrative Agent to be the average
of the rates per annum at which deposits in dollars are offered for such
relevant Interest Period to major banks in the London interbank
22
17
market in London, England by the Administrative Agent at approximately 11:00
a.m. (London time) on the date that is two Business Days prior to the beginning
of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Letters of Credit, the
Guarantee Agreements, the Security Documents and the Indemnity, Subrogation and
Contribution Agreement.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Loans" shall mean the Revolving Loans, the Term Loans and the
Swingline Loans.
"Management Investors" shall mean Xxxx X. Xxxx, Xxxxxx X. Xxxxxx and
certain other key employees of the Borrower who purchased capital stock of
Holdings pursuant to the Securities Purchase and Holders Agreement.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse effect on
the business, results of operations, prospects or condition, financial or
otherwise, of Holdings and its Subsidiaries, taken as a whole, (b) material
impairment of the ability of the Loan Parties to perform any of their
obligations under the Loan Documents or (c) material impairment of the rights of
or benefits available to the Lenders or the Collateral Agent under any Loan
Document.
"Mortgaged Properties" shall mean the owned real properties and
leasehold and subleasehold interests of the Loan Parties specified on Schedule
1.01(a).
"Mortgages" shall mean the mortgages, deeds of trust, leasehold
mortgages, assignments of leases and rents, modifications and other security
documents delivered pursuant to clause (i) of Section 4.02(j) or pursuant to
Section 5.11, each substantially in the form of Exhibit E.
"Mountain View Property" shall mean that certain parcel of land and
improvements thereon located at 000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the
cash proceeds (including cash proceeds subsequently received (as and when
received) in respect of noncash consideration initially received, net of (i)
selling expenses (including reasonable broker's fees or commissions, legal fees,
transfer and similar taxes and Holdings' good faith estimate of income taxes
paid or payable in connection with such sale), (ii) amounts provided as a
reserve, in accordance with GAAP, against any liabilities under any
indemnification obligations associated with such Asset Sale (provided that, to
the extent and at the time any such amounts are released from such reserve,
23
18
such amounts shall constitute Net Cash Proceeds), (iii) Holdings' good faith
estimate of payments required to be made with respect to unassumed liabilities
relating to the assets sold within 90 days of such Asset Sale (provided that, to
the extent such cash proceeds are not used to make payments in respect of such
unassumed liabilities within 90 days of such Asset Sale, such cash proceeds
shall constitute Net Cash Proceeds) and (iv) the principal amount, premium or
penalty, if any, interest and other amounts on any Indebtedness for borrowed
money which is secured by the asset sold in such Asset Sale and which is repaid
with such proceeds (other than any such Indebtedness assumed by the purchaser of
such asset), (b) with respect to any issuance or disposition of Indebtedness,
the cash proceeds thereof, net of all taxes and customary fees, commissions,
costs and other expenses incurred in connection therewith and (c) with respect
to any Public Equity Offering, the cash proceeds thereof, net of all customary
fees, commissions, costs and other expenses incurred in connection therewith.
"New Senior Subordinated Note Documents" shall mean the New Senior
Subordinated Notes, the New Senior Subordinated Note Indenture and all other
documents executed and delivered with respect to the New Senior Subordinated
Notes or the New Senior Subordinated Note Indenture.
"New Senior Subordinated Note Indenture" shall mean the indenture dated
as of April 7, 1999, between the Borrower and the Senior Subordinated Note
Indenture Trustee, as in effect on the Closing Date and as thereafter amended
from time to time in accordance with the requirements thereof and of this
Agreement.
"New Senior Subordinated Notes" shall mean the Borrower's 10-3/8%
Senior Subordinated Notes Due 2007 issued pursuant to the New Senior
Subordinated Note Indenture and any notes issued by the Borrower in exchange
for, and as contemplated by, the New Senior Subordinated Notes with
substantially identical terms as the New Senior Subordinated Notes.
"NSC" shall mean National Semiconductor Corporation, a Delaware
corporation.
"NSC Asset Purchase Agreement" shall mean the Asset Purchase Agreement
dated as of March 11, 1997, between the Borrower and NSC.
"Obligation Currency" shall have the meaning assigned to such term in
Section 9.16.
"Obligations" shall mean all obligations defined as "Obligations" in
the Guarantee Agreements and the Security Documents.
"Operating Agreements" shall mean the Intellectual Property License
Agreement, Transitional Services Agreement, Assembly and Test Services
Agreements, Trademark License Agreement, Foundry Sale Agreement, Product Supply
Agreement, Photo Mask Supply Agreement and EPI Services Agreement, all of which
as contemplated by the Business Transfer Agreement.
"Other Hedging Agreement" shall mean any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency or
commodity values.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made under any
24
19
Loan Document or from the execution, delivery or enforcement of, or otherwise
with respect to, any Loan Document.
"Parent Guarantee Agreement" shall mean the Parent Guarantee Agreement,
substantially in the form of Exhibit F, made by Holdings in favor of the
Collateral Agent for the benefit of the Secured Parties.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"PD Business" shall have the meaning assigned to the term "Business" in
the Business Transfer Agreement.
"Perfection Certificate" shall mean the Perfection Certificate
substantially in the form of Annex 2 to the Security Agreement.
"person" shall mean any natural person, corporation, business trust,
joint venture, association, company, limited liability company, partnership or
government, or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, substantially in
the form of Exhibit G, between the Borrower, Holdings, the Subsidiaries party
thereto and the Collateral Agent for the benefit of the Secured Parties.
"Pro Rata Percentage" of any Revolving Credit Lender at any time shall
mean the percentage of the Total Revolving Credit Commitment represented by such
Lender's Revolving Credit Commitment.
"Public Equity Offering" shall mean an underwritten public offering of
common stock of, and by, Holdings pursuant to a registration statement filed
with the Securities and Exchange Commission in accordance with the Securities
Act.
"Qualified Capital Stock" of any person shall mean any capital stock of
such person that is not Disqualified Stock; provided that in any event the
Holdings Series A Preferred Stock in the form issued on or prior to the Closing
Date shall constitute Qualified Capital Stock.
"Qualified Public Offering" shall mean an underwritten public offering
of common stock of, and by, Holdings pursuant to a registration statement filed
with the Securities and Exchange Commission in accordance with the Securities
Act, which public equity offering results in gross proceeds to Holdings of not
less than $50,000,000; provided, however, that the Net Cash Proceeds from any
such underwritten public offering are either (a) used by Holdings to prepay the
Seller Note
25
20
and/or the Holdings Subordinated Note and/or (b) contributed by Holdings to the
common equity of the Borrower.
"Recapitalization Agreement" shall mean the Agreement and Plan of
Recapitalization dated as of January 24, 1997, between Sterling and NSC, as in
effect on the Closing Date and as the same may be amended, modified or
supplemented from time to time pursuant to the terms hereof and thereof.
"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation T" shall mean Regulation T of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Fund" shall mean, with respect to any Lender that is a fund
that invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the environment.
"Remedial Action" shall mean (a) "remedial action" as such term is
defined in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions
required by any Governmental Authority to: (i) clean up, remove, treat, xxxxx or
in any other way address any Hazardous Material in the environment; (ii) prevent
the Release or threat of Release, or minimize the further Release of any
Hazardous Material so it does not migrate or endanger or threaten to endanger
public health, welfare or the environment; or (iii) perform studies and
investigations in connection with, or as a precondition to, (i) or (ii) above.
"Required Lenders" shall mean, at any time, Lenders having Loans
(excluding Swingline Loans), L/C Exposure, Swingline Exposure and unused
Revolving Credit and Term Loan Commitments representing at least a majority of
the sum of all Loans (excluding Swingline Loans) outstanding, L/C Exposure,
Swingline Exposure and unused Revolving Credit and Term Loan Commitments at such
time.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender,
the commitment of such Lender to make Revolving Loans hereunder as set forth on
Schedule 2.01, or in the
26
21
Assignment and Acceptance pursuant to which such Lender assumed its Revolving
Credit Commitment, as applicable, as the same may be (a) reduced from time to
time pursuant to Section 2.09 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender, plus the aggregate amount at such time of such
Lender's L/C Exposure, plus the aggregate amount at such time of such Lender's
Swingline Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving Credit
Commitment.
"Revolving Credit Maturity Date" shall mean March 31, 2004.
"Revolving Loans" shall mean the revolving loans made by the Lenders to
the Borrower pursuant to clause (c) of Section 2.01. Each Revolving Loan shall
be a Eurodollar Revolving Loan or an ABR Revolving Loan.
"Samsung" shall mean Samsung Electronics Co., Ltd., a corporation
organized under the laws of the Republic of Korea.
"Secured Parties" shall have the meaning assigned to such term in the
Security Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securities Purchase and Holders Agreement" shall mean the Securities
Purchase and Holders Agreement dated as of March 11, 1997, among Holdings,
Sterling, NSC and the Management Investors.
"Security Agreement" shall mean the Security Agreement, substantially
in the form of Exhibit H, among the Borrower, the Subsidiaries party thereto and
the Collateral Agent for the benefit of the Secured Parties.
"Security Documents" shall mean the Mortgages, the Security Agreement,
the Pledge Agreements and each of the security agreements, mortgages and other
instruments and documents executed and delivered pursuant to any of the
foregoing or pursuant to Section 5.11.
"Seller Note" shall mean the promissory note originally issued by
Holdings to NSC in the principal amount of $77,000,000 pursuant to the
Recapitalization Agreement.
"Senior Subordinated Note Documents" shall mean the Senior Subordinated
Notes, the Senior Subordinated Note Indentures and all other documents executed
and delivered with respect to the Senior Subordinated Notes or the Senior
Subordinated Note Indentures.
"Senior Subordinated Note Indentures" shall mean the Existing Senior
Subordinated Note Indenture and the New Senior Subordinated Note Indenture.
"Senior Subordinated Note Indenture Trustee" shall mean United States
Trust Company of New York.
27
22
"Senior Subordinated Notes" shall mean the Existing Senior Subordinated
Notes and the New Senior Subordinated Notes.
"SPC" has the meaning specified in Section 9.04(i).
"Statutory Reserves" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other banking authority, domestic or foreign,
to which the Administrative Agent or any Lender (including any branch,
Affiliate, or other fronting office making or holding a Loan) is subject for
Eurocurrency Liabilities (as defined in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities and to
be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any
Lender under such Regulation D. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Sterling" shall mean Sterling Holding Company, LLC, a Delaware limited
liability company.
"subsidiary" shall mean, with respect to any person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" shall mean any subsidiary of Holdings or the Borrower.
"Subsidiary Guarantee Agreement" shall mean the Subsidiary Guarantee
Agreement, substantially in the form of Exhibit I, made by the Subsidiary
Guarantors in favor of the Collateral Agent for the benefit of the Secured
Parties.
"Subsidiary Guarantor" shall mean each Subsidiary listed on Schedule
1.01(b), and each other Subsidiary that is or becomes a party to a Subsidiary
Guarantee Agreement.
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to make loans pursuant to Section 2.22, as the same may be reduced from
time to time pursuant to Section 2.09 or Section 2.22.
"Swingline Exposure" shall mean at any time the aggregate principal
amount at such time of all outstanding Swingline Loans. The Swingline Exposure
of any Revolving Credit Lender at any time shall equal its Pro Rata Percentage
of the aggregate Swingline Exposure at such time.
"Swingline Loan" shall mean any loan made by the Swingline Lender
pursuant to Section 2.22.
28
23
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Borrowing" shall mean a Borrowing comprised of Tranche A Term
Loans or Tranche B Term Loans.
"Term Loan Commitments" shall mean the Tranche A Commitments and the
Tranche B Commitments.
"Term Loan Repayment Dates" shall mean the Tranche A Term Loan
Repayment Dates and the Tranche B Term Loan Repayment Dates.
"Term Loans" shall mean the Tranche A Term Loans and the Tranche B Term
Loans.
"Tools and Molding Expenditures" shall mean all expenditures, other
than Capital Expenditures, related to assembly equipment components necessary
for the operation of the business of the Borrower and its Subsidiaries
(including the PD Business) which, under GAAP, are or will be required to be
accounted for as other assets with useful lives of 1-2 years.
"Total Revolving Credit Commitment" shall mean, at any time, the
aggregate amount of the Revolving Credit Commitments, as in effect at such time.
"Tranche A Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche A Term Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Term Loan Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.09 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
9.04
"Tranche A Maturity Date" shall mean March 31, 2004.
"Tranche A Term Borrowing" shall mean a Borrowing comprised of Tranche
A Term Loans.
"Tranche A Term Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(a)(i).
"Tranche A Term Loans" shall mean the term loans made by the Lenders to
the Borrower pursuant to clause (a) of Section 2.01. Each Tranche A Term Loan
shall be either a Eurodollar Term Loan or an ABR Term Loan.
"Tranche B Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche B Term Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Term Loan Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.09 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
9.04
"Tranche B Maturity Date" shall mean December 15, 2004.
29
24
"Tranche B Term Borrowing" shall mean a Borrowing comprised of Tranche
B Term Loans.
"Tranche B Term Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(a)(ii).
"Tranche B Term Loans" shall mean the term loans made by the Lenders to
the Borrower pursuant to clause (b) of Section 2.01. Each Tranche B Term Loan
shall be either a Eurodollar Term Loan or an ABR Term Loan.
"Transactions" shall mean, collectively, the transactions to occur on
or prior to the Closing Date (in the case of items (a)-(g) below) or as soon
thereafter as is legally permissible, but in no event later than April 17, 1999
(in the case of item (h) below), pursuant to the Documents, including (a) the
consummation of the Acquisition, the issuance to Samsung of a note or other
instrument to evidence the defined payment of all or any part of the Cash
Consideration and the payment in full of the Cash Consideration, (b) the
execution and delivery of the Loan Documents and the initial borrowings
hereunder, (c) the execution and delivery of the New Senior Subordinated Note
Documents and the issuance of the New Senior Subordinated Notes, (d) the
issuance of the Holdings Subordinated Note, (e) the Xxxxxxxxx California
Contribution, (f) the Xxxxxxxxx Korea Investment, (g) the payment of all interim
interest, fees and expenses to be paid on or prior to the Closing Date and owing
in connection with the foregoing and (h) the issuance of the Xxxxxxxxx Korea
Bond.
"Transaction Documents" shall mean the Business Transfer Agreement and
all other documents entered into or delivered in connection with the Business
Transfer Agreement (including the Operating Agreements).
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, the term "Rate" shall include
the Adjusted LIBO Rate and the Alternate Base Rate.
"VAT Loan" means a loan made by the Borrower to Xxxxxxxxx Korea for the
purpose of enabling Xxxxxxxxx Korea to pay the VAT Amount to the applicable
Korean taxing authority.
"VAT Amount" shall mean the amount, which shall not exceed $45,000,000,
of Korean value added tax that may be payable by Xxxxxxxxx Korea as a
consequence of the Acquisition.
"Voting Stock" shall mean any class or classes of capital stock of
Holdings pursuant to which the holders thereof have the general voting power
under ordinary circumstances to elect at least a majority of the Board of
Directors of Holdings.
"Wholly Owned Subsidiary" shall mean, as to any person, (a) any
corporation 100% of whose capital stock (other than directors's qualifying
shares) is at the time owned by such person and/or one or more Wholly Owned
Subsidiaries of such person and (b) any partnership, association, joint venture,
limited liability company or other entity in which such person and/or one or
more Wholly Owned Subsidiaries of such person has a 100% equity interest at such
time.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
30
25
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Article
VI or any related definition to eliminate the effect of any change in GAAP
occurring after the date of this Agreement on the operation of such covenant (or
if the Administrative Agent notifies the Borrower that the Required Lenders wish
to amend Article VI or any related definition for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, (a) to make a Tranche A Term Loan to the
Borrower on the Closing Date in a principal amount not to exceed its Tranche A
Commitment, (b) to make a Tranche B Term Loan to the Borrower on the Closing
Date in a principal amount not to exceed its Tranche B Commitment, and (c) to
make Revolving Loans to the Borrower, at any time and from time to time on or
after the date hereof, and until the earlier of the Revolving Credit Maturity
Date and the termination of the Revolving Credit Commitment of such Lender in
accordance with the terms hereof, in an aggregate principal amount at any time
outstanding that will not result in such Lender's Revolving Credit Exposure
exceeding such Lender's Revolving Credit Commitment. Within the limits set forth
in clause (c) of the preceding sentence and subject to the terms, conditions and
limitations set forth herein, the Borrower may borrow, pay or prepay and
reborrow Revolving Loans. Amounts paid or prepaid in respect of Term Loans may
not be reborrowed.
SECTION 2.02. Loans. (a) Each Loan (other than Swingline Loans) shall
be made as part of a Borrowing consisting of Loans made by the Lenders ratably
in accordance with their applicable Commitments; provided, however, that the
failure of any Lender to make any Loan shall not in itself relieve any other
Lender of its obligation to lend hereunder (it being understood, however, that
no Lender shall be responsible for the failure of any other Lender to make any
Loan required to be made by such other Lender). Except for Loans deemed made
pursuant to Section 2.02(f), the Loans comprising any Borrowing shall be in an
aggregate principal amount that is (i) an integral multiple of $1,000,000 and
not less than $5,000,000 or (ii) equal to the remaining available balance of the
applicable Commitments.
31
26
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
pursuant to Section 2.03. Each Lender may at its option make any Eurodollar Loan
by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of
this Agreement. Borrowings of more than one Type may be outstanding at the same
time; provided, however, that the Borrower shall not be entitled to request any
Borrowing that, if made, would result in more than 12 Eurodollar Borrowings
outstanding hereunder at any time. For purposes of the foregoing, Borrowings
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Borrowings.
(c) Except with respect to Loans made pursuant to Section 2.02(f), each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to such account in New
York City as the Administrative Agent may designate not later than 11:00 a.m.,
New York City time, and the Administrative Agent shall promptly credit the
amounts so received to an account as directed by the Borrower in the applicable
Borrowing Request or, if a Borrowing shall not occur on such date because any
condition precedent herein specified shall not have been met, return the amounts
so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, a rate determined by the Administrative Agent
to represent its cost of overnight or short-term funds (which determination
shall be conclusive absent manifest error). If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such Borrowing for purposes of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Revolving Credit Borrowing if the Interest
Period requested with respect thereto would end after the Revolving Credit
Maturity Date.
(f) If the Issuing Bank shall not have received from the Borrower the
payment required to be made by Section 2.23(e) within the time specified in such
Section, the Issuing Bank will promptly notify the Administrative Agent of the
L/C Disbursement and the Administrative Agent will promptly notify each
Revolving Credit Lender of such L/C Disbursement and its Pro Rata Percentage
thereof. Each Revolving Credit Lender shall pay by wire transfer of immediately
available funds to the Administrative Agent on such date (or, if such Revolving
Credit Lender shall have received such notice later than 12:00 (noon), New York
City time, on any day, not later than 10:00 a.m., New York City time, on the
immediately following Business Day), an amount equal to such Lender's Pro Rata
Percentage of such L/C Disbursement (it being understood that such amount
32
27
shall be deemed to constitute an ABR Revolving Loan of such Lender and such
payment shall be deemed to have reduced the L/C Exposure), and the
Administrative Agent will promptly pay to the Issuing Bank amounts so received
by it from the Revolving Credit Lenders. The Administrative Agent will promptly
pay to the Issuing Bank any amounts received by it from the Borrower pursuant to
Section 2.23(e) prior to the time that any Revolving Credit Lender makes any
payment pursuant to this paragraph (f); any such amounts received by the
Administrative Agent thereafter will be promptly remitted by the Administrative
Agent to the Revolving Credit Lenders that shall have made such payments and to
the Issuing Bank, as their interests may appear. If any Revolving Credit Lender
shall not have made its Pro Rata Percentage of such L/C Disbursement available
to the Administrative Agent as provided above, such Lender and the Borrower
severally agree to pay interest on such amount, for each day from and including
the date such amount is required to be paid in accordance with this paragraph to
but excluding the date such amount is paid, to the Administrative Agent for the
account of the Issuing Bank at (i) in the case of the Borrower, a rate per annum
equal to the interest rate applicable to Revolving Loans pursuant to Section
2.06(a), and (ii) in the case of such Lender, for the first such day, the
Federal Funds Effective Rate, and for each day thereafter, the Alternate Base
Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing
(other than a Swingline Loan or deemed Borrowing pursuant to Section 2.02(f), as
to which this Section 2.03 shall not apply), the Borrower shall hand deliver or
telecopy to the Administrative Agent a duly completed Borrowing Request (a) in
the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before a proposed Borrowing, and (b) in the case of an
ABR Borrowing, not later than 11:00 a.m., New York City time, on the day of a
proposed Borrowing. Each Borrowing Request shall be irrevocable, shall be signed
by or on behalf of the Borrower and shall specify the following information: (i)
whether the Borrowing then being requested is to be a Tranche A Term Borrowing,
a Tranche B Term Borrowing or a Revolving Credit Borrowing, and whether such
Borrowing is to be a Eurodollar Borrowing or an ABR Borrowing (provided that
until the Administrative Agent shall have notified the Borrower that the primary
syndication of the Commitments has been completed (which notice shall be given
as promptly as practicable and, in any event, within 14 days after the Closing
Date), the Borrower shall not be permitted to request a Eurodollar Borrowing);
(ii) the date of such Borrowing (which shall be a Business Day), (iii) the
number and location of the account to which funds are to be disbursed (which
shall be an account that complies with the requirements of Section 2.02(c));
(iv) the amount of such Borrowing; and (v) if such Borrowing is to be a
Eurodollar Borrowing, the Interest Period with respect thereto; provided,
however, that, notwithstanding any contrary specification in any Borrowing
Request, each requested Borrowing shall comply with the requirements set forth
in Section 2.02. If no election as to the Type of Borrowing is specified in any
such notice, then the requested Borrowing shall be an ABR Borrowing. If no
Interest Period with respect to any Eurodollar Borrowing is specified in any
such notice, then the Borrower shall be deemed to have selected an Interest
Period of one month's duration. The Administrative Agent shall promptly advise
the applicable Lenders of any notice given pursuant to this Section 2.03 (and
the contents thereof), and of each Lender's portion of the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent (i) for the
account of the Swingline Lender, the then unpaid principal amount of each
Swingline Loan, on the last day of the Interest Period applicable to such Loan
or, if earlier, on the Revolving Credit Maturity Date, (ii) for the account of
each Lender holding Term Loans, the principal amount of each Term Loan of such
Lender as provided in Section 2.11 and (iii) for the account of each Revolving
Credit Lender, the
33
28
then unpaid principal amount of each Revolving Loan of such Lender on the
Revolving Credit Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower or any Guarantor and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (c) above shall be prima facie evidence of the existence and amounts of
the obligations therein recorded; provided, however, that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of the Borrower to repay
the Loans in accordance with their terms.
(e) Any Lender may request that the Loans made by it hereunder be
evidenced by a promissory note. In such event, the Borrower shall execute and
deliver to such Lender a promissory note payable to such Lender and its
registered assigns and in a form and substance reasonably acceptable to the
Administrative Agent and the Borrower. Notwithstanding any other provision of
this Agreement, in the event any Lender shall request and receive such a
promissory note, the interests represented by such note shall at all times
(including after any assignment of all or part of such interests pursuant to
Section 9.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Lender,
through the Administrative Agent, on the last Business Day of March, June,
September and December in each year and on each date on which any Commitment of
such Lender shall expire or be terminated as provided herein, a commitment fee
(a "Commitment Fee") equal to 1/2 of 1% per annum on the average daily unused
amount of the Commitments of such Lender (other than the Swingline Commitment)
during the preceding quarter (or other period commencing with the date hereof or
ending with the Revolving Credit Maturity Date or the date on which the
Commitments of such Lender shall expire or be terminated). All Commitment Fees
shall be computed on the basis of the actual number of days elapsed in a year of
360 days. The Commitment Fee due to each Lender shall commence to accrue on the
date hereof and shall cease to accrue on the date on which the Commitment of
such Lender shall expire or be terminated as provided herein. For purposes of
calculating Commitment Fees only, no portion of the Revolving Credit Commitments
shall be deemed utilized under Section 2.17 as a result of outstanding Swingline
Loans.
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, the administrative fees separately agreed to by the Borrower and the
Administrative Agent (the "Administrative Agent Fees").
(c) The Borrower agrees to pay (i) to each Revolving Credit Lender,
through the Administrative Agent, on the last Business Day of March, June,
September and December of each
34
29
year and on the date on which the Revolving Credit Commitment of such Lender
shall be terminated as provided herein, a fee (an "L/C Participation Fee")
calculated on such Lender's Pro Rata Percentage of the average daily aggregate
L/C Exposure (excluding the portion thereof attributable to unreimbursed L/C
Disbursements) during the preceding quarter (or shorter period commencing with
the date hereof or ending with the Revolving Credit Maturity Date or the date on
which all Letters of Credit have been canceled or have expired and the Revolving
Credit Commitments of all Lenders shall have been terminated) at a rate equal to
the Applicable Percentage from time to time used to determine the interest rate
on Revolving Credit Borrowings comprised of Eurodollar Loans pursuant to Section
2.06, and (ii) to the Issuing Bank with respect to each Letter of Credit, on the
last Business Day of March, June, September and December of each year and on the
L/C Maturity Date, a fronting fee equal to 0.25% per annum on the aggregate
outstanding face amount of such Letter of Credit (the "Issuing Bank Fees"). All
L/C Participation Fees and Issuing Bank Fees shall be computed on the basis of
the actual number of days elapsed in a year of 360 days.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the Issuing Bank. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, the Loans comprising each ABR Borrowing, including each Swingline
Loan, shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be, when the Alternate
Base Rate is determined by reference to the Prime Rate and over a year of 360
days at all other times) at a rate per annum equal to the Alternate Base Rate
plus the Applicable Percentage in effect from time to time.
(b) Subject to the provisions of Section 2.07, the Loans comprising
each Eurodollar Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum equal
to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Percentage in effect from time to time.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest
Period or day within an Interest Period, as the case may be, shall be determined
by the Administrative Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, or under any other Loan Document,
the Borrower shall on demand from time to time pay interest, to the extent
permitted by law, on such defaulted amount to but excluding the date of actual
payment (after as well as before judgment) (a) in the case of overdue principal,
at the rate otherwise applicable to such Loan pursuant to Section 2.06 plus
2.00% per annum and (b) in all other cases, at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 365 or 366 days, as
the case may be, when determined by reference to the Prime Rate and over a year
of 360 days at all other times) equal to the rate that would be applicable to an
ABR Revolving Loan plus 2.00%.
35
30
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined that dollar deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London interbank market, or
that the rates at which such dollar deposits are being offered will not
adequately and fairly reflect the cost to any Lender of making or maintaining
its Eurodollar Loan during such Interest Period, or that reasonable means do not
exist for ascertaining the Adjusted LIBO Rate, the Administrative Agent shall,
as soon as practicable thereafter, give written or telecopy notice of such
determination to the Borrower and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, any request by the Borrower for a Eurodollar Borrowing pursuant to
Section 2.03 or 2.10 shall be deemed to be a request for an ABR Borrowing. Each
determination by the Administrative Agent hereunder shall be conclusive absent
manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The Term
Loan Commitments shall automatically terminate at 5:00 p.m., New York City time,
on the Closing Date. The Revolving Credit Commitments, the Swingline Commitment
and the L/C Commitment shall automatically terminate on the Revolving Credit
Maturity Date. Notwithstanding the foregoing, all the Commitments shall
automatically terminate at 5:00 p.m., New York City time, on April 17, 1999, if
the initial Credit Event shall not have occurred by such time.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Term Loan Commitments or the Revolving Credit Commitments; provided,
however, that (i) each partial reduction of the Term Loan Commitments or the
Revolving Credit Commitments shall be in an integral multiple of $1,000,000 and
in a minimum amount of $5,000,000 and (ii) the Total Revolving Credit Commitment
shall not be reduced to an amount that is less than the Aggregate Revolving
Credit Exposure at the time.
(c) Each reduction in the Term Loan Commitments or the Revolving Credit
Commitments hereunder shall be made ratably among the Lenders in accordance with
their respective applicable Commitments. The Borrower shall pay to the
Administrative Agent for the account of the applicable Lenders, on the date of
each termination or reduction, the Commitment Fees on the amount of the
Commitments so terminated or reduced accrued to but excluding the date of such
termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 11:00 am., New York City time, on the
day of conversion, to convert any Eurodollar Borrowing into an ABR Borrowing,
(b) not later than 10:00 a.m., New York City time, three Business Days prior to
conversion or continuation, to convert any ABR Borrowing into a Eurodollar
Borrowing or to continue any Eurodollar Borrowing as a Eurodollar Borrowing for
an additional Interest Period, and (c) not later than 10:00 a.m., New York City
time, three Business Days prior to conversion, to convert the Interest Period
with respect to any Eurodollar Borrowing to another permissible Interest Period,
subject in each case to the following:
(i) each conversion or continuation shall be made pro rata
among the Lenders in accordance with the respective principal amounts
of the Loans comprising the converted or continued Borrowing;
36
31
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified in Sections 2.02(a)
and 2.02(b) regarding the principal amount and maximum number of
Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the
new Loan of such Lender resulting from such conversion and reducing the
Loan (or portion thereof) of such Lender being converted by an
equivalent principal amount; accrued interest on any Eurodollar Loan
(or portion thereof) being converted shall be paid by the Borrower at
the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, the Borrower
shall pay, upon demand, any amounts due to the Lenders pursuant to
Section 2.16;
(v) any portion of a Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as
a Eurodollar Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be
converted into or continued as a Eurodollar Borrowing by reason of the
immediately preceding clause shall be automatically converted at the
end of the Interest Period in effect for such Borrowing into an ABR
Borrowing;
(vii) no Interest Period may be selected for any Eurodollar
Term Borrowing that would end later than a Term Loan Repayment Date
occurring on or after the first day of such Interest Period if, after
giving effect to such selection, the aggregate outstanding amount of
(A) the Eurodollar Term Borrowings comprised of Tranche A Term Loans or
Tranche B Term Loans, as applicable, with Interest Periods ending on or
prior to such Term Loan Repayment Date and (B) the ABR Term Borrowings
comprised of Tranche A Term Loans or Tranche B Term Loans, as
applicable, would not be at least equal to the principal amount of Term
Borrowings to be paid on such Term Loan Repayment Date;
(viii) upon notice to the Borrower from the Administrative
Agent given at the request of the Required Lenders, after the
occurrence and during the continuance of a Default or Event of Default,
no outstanding Loan may be converted into, or continued as, a
Eurodollar Loan; and
(ix) until the Administrative Agent shall have notified the
Borrower that the primary syndication of the Commitments has been
completed (which notice shall be given by the Administrative Agent as
promptly as practicable and, in any event, within 14 days after the
Closing Date), no ABR Borrowing may be converted into a Eurodollar
Borrowing.
Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the Borrower requests be converted or continued, (ii) whether
such Borrowing is to be converted to or continued as a Eurodollar Borrowing or
an ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a
37
32
Eurodollar Borrowing, the Borrower shall be deemed to have selected an Interest
Period of one month's duration. The Administrative Agent shall advise the
Lenders of any notice given pursuant to this Section 2.10 and of each Lender's
portion of any converted or continued Borrowing. If the Borrower shall not have
given notice in accordance with this Section 2.10 to continue any Borrowing into
a subsequent Interest Period (and shall not otherwise have given notice in
accordance with this Section 2.10 to convert such Borrowing), such Borrowing
shall, at the end of the Interest Period applicable thereto (unless repaid
pursuant to the terms hereof), automatically be continued into a new Interest
Period as an ABR Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a) (i) The Borrower shall
pay to the Administrative Agent, for the account of the Lenders, on the dates
set forth below, or if any such date is not a Business Day, on the next
preceding Business Day (each such date being a "Tranche A Term Loan Repayment
Date"), a principal amount of the Tranche A Term Loans (as adjusted from time to
time pursuant to Sections 2.11(b), 2.12 and 2.13(g)) equal to the amount set
forth below for such date, together in each case with accrued and unpaid
interest on the principal amount to be paid to but excluding the date of such
payment:
Date Amount
September 30, 1999 $4,000,000
December 31, 1999 $4,000,000
March 31, 2000 $4,000,000
June 30, 2000 $3,750,000
September 30, 2000 $3,750,000
December 31, 2000 $3,750,000
March 31, 2001 $3,750,000
June 30, 2001 $5,750,000
September 30, 2001 $5,750,000
December 31, 2001 $5,750,000
March 31, 2002 $5,750,000
June 30, 2002 $5,750,000
September 30, 2002 $5,750,000
December 31, 2002 $5,750,000
March 31, 2003 $5,750,000
June 30, 2003 $6,750,000
September 30, 2003 $6,750,000
December 31, 2003 $6,750,000
Tranche A Maturity Date $6,750,000
(ii) The Borrower shall pay to the Administrative Agent, for the
account of the Lenders, on the dates set forth below or, if any such date is not
a Business Day, on the next preceding Business Day (each such date being a
"Tranche B Term Loan Repayment Date"), a principal amount of the Tranche B Term
Loans (as adjusted from time to time pursuant to Sections 2.11(b), 2.12 and
38
33
2.13(g)) equal to the amount set forth below for such date, together in each
case with accrued and unpaid interest on the principal amount to be paid to but
excluding the date of such payment:
Date Amount
September 30, 1999 $ 700,000
December 31, 1999 $ 700,000
March 31, 2000 $ 700,000
June 30, 2000 $ 525,000
September 30, 2000 $ 525,000
December 31, 2000 $ 525,000
March 31, 2001 $ 525,000
June 30, 2001 $ 525,000
September 30, 2001 $ 525,000
December 31, 2001 $ 525,000
March 31, 2002 $ 525,000
June 30, 2002 $ 525,000
September 30, 2002 $ 525,000
December 31, 2002 $ 525,000
March 31, 2003 $ 525,000
June 30, 2003 $ 525,000
September 30, 2003 $ 525,000
December 31, 2003 $ 525,000
March 31, 2004 $ 525,000
June 30, 2004 $ 525,000
September 30, 2004 $ 525,000
Tranche B Maturity Date $ 198,450,000
(b) In the event and on each occasion that any Tranche A Commitment or
Tranche B Commitment shall be reduced or shall expire or terminate other than as
a result of the making of a Tranche A Term Loan or a Tranche B Term Loan, as the
case may be, the installments payable on each Tranche A Term Loan Repayment Date
and each Tranche B Term Loan Repayment Date, as the case may be, shall be
reduced pro rata by an aggregate amount equal to the amount of such reduction,
expiration or termination.
(c) To the extent not previously paid, all Tranche A Term Loans and
Tranche B Term Loans shall be due and payable on the Tranche A Maturity Date and
Tranche B Maturity Date, respectively, together with accrued and unpaid interest
on the principal amount to be paid to but excluding the date of payment.
(d) All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12. Prepayment. (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part, upon at
least three Business Days' prior written or telecopy notice (or telephone notice
promptly confirmed by written or telecopy notice) in the case of Eurodollar
Loans, or written or telecopy notice (or telephone notice promptly confirmed by
written or telecopy notice) on or prior to the date of prepayment in the case of
ABR Loans, to the Administrative Agent before 11:00 a.m., New York City time;
provided, however, that
39
34
each partial prepayment shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000.
(b) Optional prepayments of Term Loans shall be allocated pro rata
between the then-outstanding Tranche A Term Loans and Tranche B Term Loans and
applied pro rata against the remaining scheduled installments of principal due
in respect of the Tranche A Term Loans and Tranche B Term Loans under Sections
2.11(a)(i) and (ii), respectively.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.12 shall be subject to Section 2.16 but otherwise without premium or penalty.
All prepayments under this Section 2.12 shall be accompanied by accrued interest
on the principal amount being prepaid to the date of payment.
SECTION 2.13. Mandatory Prepayments. (a) In the event of any
termination of all the Revolving Credit Commitments, the Borrower shall, on the
date of such termination, repay or prepay all its outstanding Revolving Credit
Borrowings and all outstanding Swingline Loans and replace all outstanding
Letters of Credit and/or deposit an amount equal to the L/C Exposure in cash in
a cash collateral account established with the Collateral Agent for the benefit
of the Secured Parties. In the event of any partial reduction of the Revolving
Credit Commitments, then (i) at or prior to the effective date of such
reduction, the Administrative Agent shall notify the Borrower and the Revolving
Credit Lenders of the Aggregate Revolving Credit Exposure after giving effect
thereto and (ii) if the Aggregate Revolving Credit Exposure would exceed the
Total Revolving Credit Commitment after giving effect to such reduction or
termination, then the Borrower shall, on the date of such reduction or
termination, repay or prepay Revolving Credit Borrowings or Swingline Loans (or
a combination thereof) and/or replace or cash collateralize outstanding Letters
of Credit in an amount sufficient to eliminate such excess.
(b) Not later than the third Business Day following the receipt of any
Net Cash Proceeds of any Asset Sale, the Borrower shall apply 100% of the Net
Cash Proceeds received with respect thereto to prepay outstanding Term Loans in
accordance with Section 2.13(g).
(c) In the event and on each occasion that a Public Equity Offering
occurs, the Borrower shall, substantially simultaneously with (and in any event
not later than the third Business Day next following) the occurrence of such
Public Equity Offering, apply 50% of the Net Cash Proceeds therefrom to prepay
outstanding Term Loans in accordance with Section 2.13(g); provided, however,
that, so long as the Net Cash Proceeds of each such Public Equity Offering are
either (i) invested by Holdings in the Borrower as common equity and/or (ii)
used to prepay the Seller Note (but only to the extent permitted by Section
6.12(ii)) and/or the Holdings Subordinated Note, the Borrower shall not be
required to apply the first $50,000,000 of Net Cash Proceeds from all such
Public Equity Offerings to the prepayment of Term Loans in accordance with this
Section.
(d) No later than the earlier of (i) 90 days after the end of each
fiscal year of the Borrower, commencing with the fiscal year ending on December
31, 1999, and (ii) the date on which the financial statements with respect to
such period are delivered pursuant to Section 5.04(a), the Borrower shall prepay
outstanding Term Loans in accordance with Section 2.13(g) in an aggregate
principal amount equal to 75% of Excess Cash Flow for the fiscal year then
ended; provided, however, that
40
35
such percentage shall be decreased to 50% for any year if the Leverage Ratio at
the end of such year shall be less than 3.0 to 1.00.
(e) In the event that any Loan Party or any subsidiary of a Loan Party
shall receive Net Cash Proceeds from the issuance or other disposition of
Indebtedness for money borrowed of any Loan Party or any subsidiary of a Loan
Party (other than Indebtedness for money borrowed permitted pursuant to Section
6.01), the Borrower shall, substantially simultaneously with (and in any event
not later than the third Business Day next following) the receipt of such Net
Cash Proceeds by such Loan Party or such subsidiary, apply an amount equal to
100% of such Net Cash Proceeds to prepay outstanding Term Loans in accordance
with Section 2.13(g).
(f) In the event that there shall occur any Casualty or Condemnation
and, pursuant to the applicable Mortgage, the Casualty Proceeds or Condemnation
Proceeds, as the case may be, are required to be used to prepay the Term Loans,
then the Borrower shall apply an amount equal to 100% of such Casualty Proceeds
or Condemnation Proceeds, as the case may be, to prepay outstanding Term Loans
in accordance with Section 2.13(g).
(g) Mandatory prepayments of outstanding Term Loans under this
Agreement shall be allocated pro rata between the then-outstanding Tranche A
Term Loans and Tranche B Term Loans, and, subject to paragraph (j) below,
applied pro rata against the remaining scheduled installments of principal due
in respect of Tranche A Term Loans and Tranche B Term Loans under Sections
2.11(a)(i) and (ii), respectively.
(h) The Borrower shall deliver to the Administrative Agent, at the time
of each prepayment required under this Section 2.13, (i) a certificate signed
by a Financial Officer of the Borrower setting forth in reasonable detail the
calculation of the amount of such prepayment and (ii) to the extent practicable,
at least three days prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date, the Type of each Loan being
prepaid and the principal amount of each Loan (or portion thereof) to be
prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject
to Section 2.16, but shall otherwise be without premium or penalty.
(i) Amounts to be applied pursuant to this Section 2.13 to the
prepayment of Term Loans and Revolving Loans shall be applied, as applicable,
first to reduce outstanding ABR Term Loans and ABR Revolving Loans. Any amounts
remaining after each such application shall, at the option of the Borrower, be
applied to prepay Eurodollar Term Loans or Eurodollar Revolving Loans, as the
case may be, immediately and/or shall be deposited in the Prepayment Account (as
defined below). The Administrative Agent shall apply any cash deposited in the
Prepayment Account (i) allocable to Term Loans to prepay Eurodollar Term Loans
and (ii) allocable to Revolving Loans to prepay Eurodollar Revolving Loans, in
each case on the last day of their respective Interest Periods (or, at the
direction of the Borrower, on any earlier date) until all outstanding Term Loans
or Revolving Loans, as the case may be, have been prepaid or until all the
allocable cash on deposit with respect to such Loans has been exhausted. For
purposes of this Agreement, the term "Prepayment Account" shall mean an account
established by the Borrower with the Administrative Agent and over which the
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal for application in accordance with this paragraph
(i). The Administrative Agent will, at the request of the Borrower, invest
amounts on deposit in the Prepayment Account in Cash Equivalents that mature
prior to the last day of the applicable Interest Periods of the Eurodollar Term
Borrowings or Eurodollar Revolving Borrowings to be prepaid, as the case may be;
provided, however, that (i) the Administrative Agent shall not be required to
make any investment that, in its sole
41
36
judgment, would require or cause the Administrative Agent to be in, or would
result in any, violation of any law, statute, rule or regulation and (ii) the
Administrative Agent shall have no obligation to invest amounts on deposit in
the Prepayment Account if a Default or Event of Default shall have occurred and
be continuing. The Borrower shall indemnify the Administrative Agent for any
losses relating to the investments so that the amount available to prepay
Eurodollar Borrowings on the last day of the applicable Interest Period is not
less than the amount that would have been available had no investments been made
pursuant thereto. Other than any interest earned on such investments, the
Prepayment Account shall not bear interest. Interest or profits, if any, on such
investments shall be deposited in the Prepayment Account and reinvested and
disbursed as specified above. If the maturity of the Loans has been accelerated
pursuant to Article VII, the Administrative Agent may, in its sole discretion,
apply all amounts on deposit in the Prepayment Account to satisfy any of the
Obligations. The Borrower hereby grants to the Administrative Agent, for its
benefit and the benefit of the Issuing Bank and the Lenders, a security interest
in the Prepayment Account to secure the Obligations.
(j) Any Tranche B Lender may elect, by notice to the Administrative
Agent in writing (or by telephone or telecopy promptly confirmed in writing) at
least one Business Day prior to any prepayment of Tranche B Term Loans required
to be made by the Borrower for the account of such Lender pursuant to this
Section 2.13, to cause all or a portion of such prepayment to be applied instead
to prepay Tranche A Term Loans in accordance with paragraph (g) above.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of or
credit extended by any Lender or the Issuing Bank (except any such reserve
requirement which is reflected in the Adjusted LIBO Rate) or shall impose on
such Lender or the Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender or
any Letter of Credit or participation therein, and the result of any of the
foregoing shall be to increase the cost to such Lender or the Issuing Bank of
making or maintaining any Eurodollar Loan or increase the cost to any Lender of
issuing or maintaining any Letter of Credit or purchasing or maintaining a
participation therein or to reduce the amount of any sum received or receivable
by such Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise) by an amount deemed by such Lender or the Issuing Bank to be
material, then the Borrower will pay to such Lender or the Issuing Bank, as the
case may be, upon demand such additional amount or amounts as will compensate
such Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that the
adoption after the date hereof of any law, rule, regulation, agreement or
guideline regarding capital adequacy, or any change after the date hereof in any
such law, rule, regulation, agreement or guideline (whether such law, rule,
regulation, agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or the Issuing Bank or any Lender's or the
Issuing Bank's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Governmental Authority
has or would have the effect of reducing the rate of return on such Lender's or
the Issuing Bank's capital or on the capital of such Lender's or the Issuing
Bank's holding company, if any, as a consequence of this
42
37
Agreement or the Loans made or participations in Letters of Credit purchased by
such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank
pursuant hereto to a level below that which such Lender or the Issuing Bank or
such Lender's or the Issuing Bank's holding company could have achieved but for
such applicability, adoption, change or compliance (taking into consideration
such Lender's or the Issuing Bank's policies and the policies of such Lender's
or the Issuing Bank's holding company with respect to capital adequacy) by an
amount deemed by such Lender or the Issuing Bank to be material, then from time
to time the Borrower shall pay to such Lender or the Issuing Bank, as the case
may be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's holding company for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Bank, setting forth in
reasonable detail the reason therefor, the amount or amounts necessary to
compensate such Lender or the Issuing Bank or its holding company, as
applicable, as specified in paragraph (a) or (b) above, and the calculation
thereof, shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or the Issuing Bank the
amount shown as due on any such certificate delivered by it within 10 days after
its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be under any obligation to compensate any Lender or
the Issuing Bank under paragraph (a) or (b) above with respect to increased
costs or reductions with respect to any period prior to the date that is six
months prior to such request if such Lender or the Issuing Bank knew or could
reasonably have been expected to be aware of the circumstances giving rise to
such increased costs or reductions and of the fact that such circumstances would
in fact result in a claim for increased compensation by reason of such increased
costs or reductions; provided further that the foregoing limitation shall not
apply to any increased costs or reductions arising out of the retroactive
application of any law, regulation, rule, guideline or directive as aforesaid
within such six-month period. The protection of this Section shall be available
to each Lender and the Issuing Bank regardless of any possible contention of the
invalidity or inapplicability of the law, rule, regulation, agreement, guideline
or other change or condition that shall have occurred or been imposed.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision of this Agreement, if, after the date hereof, any change in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods and
ABR Loans will not thereafter (for such duration) be converted into
Eurodollar Loans), whereupon any request for a Eurodollar Borrowing (or
to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a
Eurodollar Borrowing for an additional Interest Period) shall, as to
such Lender only, be deemed a request for an ABR Loan (or a request to
continue an ABR Loan as such for an additional
43
38
Interest Period or to convert a Eurodollar Loan into an ABR Loan, as
the case may be), unless such declaration shall be subsequently
withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar
Loans made by it be converted to ABR Loans, in which event all such
Eurodollar Loans shall be automatically converted to ABR Loans as of
the effective date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense that such Lender may sustain or incur as a
consequence of (a) any event, other than a default by such Lender in the
performance of its obligations hereunder, which results in (i) such Lender
receiving or being deemed to receive any amount on account of the principal of
any Eurodollar Loan prior to the end of the Interest Period in effect therefor,
(ii) the conversion of any Eurodollar Loan to an ABR Loan, or the conversion of
the Interest Period with respect to any Eurodollar Loan, in each case other than
on the last day of the Interest Period in effect therefor, or (iii) any
Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to be
made pursuant to a conversion or continuation under Section 2.10) not being made
after notice of such Loan shall have been given by the Borrower hereunder (any
of the events referred to in this clause (a) being called a "Breakage Event") or
(b) any default in the making of any payment or prepayment required to be made
hereunder. In the case of any Breakage Event, such loss shall include an amount
equal to the excess, as reasonably determined by such Lender, of (i) its cost of
obtaining funds for the Eurodollar Loan that is the subject of such Breakage
Event for the period from the date of such Breakage Event to the last day of the
Interest Period in effect (or that would have been in effect) for such Loan over
(ii) the amount of interest likely to be realized by such Lender in redeploying
the funds released or not utilized by reason of such Breakage Event for such
period. A certificate of any Lender setting forth any amount or amounts which
such Lender is entitled to receive pursuant to this Section 2.16 shall be
delivered to the Borrower and shall be conclusive absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as provided below in this
Section 2.17 with respect to Swingline Loans and as required under Sections
2.13(j) and 2.15, each Borrowing, each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans, each payment of the Commitment
Fees, each reduction of the Term Loan Commitments or the Revolving Credit
Commitments and each conversion of any Borrowing to or continuation of any
Borrowing as a Borrowing of any Type shall be allocated pro rata among the
Lenders in accordance with their respective applicable Commitments (or, if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Loans). For purposes of
determining the available Revolving Credit Commitments of the Lenders at any
time, each outstanding Swingline Loan shall be deemed to have utilized the
Revolving Credit Commitments
44
39
of the Lenders (including those Lenders which shall not have made Swingline
Loans) pro rata in accordance with such respective Revolving Credit Commitments.
Each Lender agrees that in computing such Lender's portion of any Borrowing to
be made hereunder, the Administrative Agent may, in its discretion, round each
Lender's percentage of such Borrowing to the next higher or lower whole dollar
amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or Loans or L/C Disbursement as a result of which the unpaid principal
portion of its Tranche A Term Loans, Tranche B Term Loans and Revolving Loans
and participations in L/C Disbursements shall be proportionately less than the
unpaid principal portion of the Tranche A Term Loans, Tranche B Term Loans and
Revolving Loans and participations in L/C Disbursements of any other Lender, it
shall be deemed simultaneously to have purchased from such other Lender at face
value, and shall promptly pay to such other Lender the purchase price for, a
participation in the Tranche A Term Loans, Tranche B Term Loans and Revolving
Loans and L/C Exposure, as the case may be, of such other Lender, so that the
aggregate unpaid principal amount of the Tranche A Term Loans, Tranche B Term
Loans and Revolving Loans and L/C Exposure and participations in Tranche A Term
Loans, Tranche B Term Loans and Revolving Loans and L/C Exposure held by each
Lender shall be in the same proportion to the aggregate unpaid principal amount
of all Tranche A Term Loans, Tranche B Term Loans and Revolving Loans and L/C
Exposure then outstanding as the principal amount of its Tranche A Term Loans,
Tranche B Term Loans and Revolving Loans and L/C Exposure prior to such exercise
of banker's lien, setoff or counterclaim or other event was to the principal
amount of all Tranche A Term Loans, Tranche B Term Loans and Revolving Loans and
L/C Exposure outstanding prior to such exercise of banker's lien, setoff or
counterclaim or other event; provided, however, that if any such purchase or
purchases or adjustments shall be made pursuant to this Section 2.18 and the
payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest. The
Borrower and Holdings expressly consent to the foregoing arrangements and agree
that any Lender holding a participation in a Term Loan or Revolving Loan or L/C
Disbursement deemed to have been so purchased may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all moneys owing
by the Borrower and Holdings to such Lender by reason thereof as fully as if
such Lender had made a Loan directly to the Borrower in the amount of such
participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and under any other Loan Document not later
than 12:00 (noon), New York City time, on the date when due in immediately
available dollars, without setoff, defense or counterclaim. Each such payment
(other than (i) Issuing Bank Fees, which shall be paid directly to the Issuing
Bank, and (ii) principal of and interest on Swingline Loans, which shall be paid
directly to the Swingline Lender except as otherwise provided in Section
2.22(e)) shall be made to the Administrative Agent at its offices at Eleven
Madison Avenue, New York, New York.
(b) Except as otherwise expressly provided herein, whenever any payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder or under any other
45
40
Loan Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower or any Loan Party hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower or any Loan
Party shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) the Administrative Agent or such Lender (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower or such Loan Party shall make such
deductions and (iii) the Borrower or such Loan Party shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each
Lender, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower or any Loan Party hereunder or under any other
Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender,
or by the Administrative Agent on its behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower or any other Loan Party to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
(f) If the Administrative Agent or any Lender receives a refund in
respect of Indemnified Taxes or Other Taxes paid by the Borrower, which in the
good faith judgment of the Administrative Agent or such Lender is allocable to
such payment, it shall promptly pay such refund, together with any other amounts
paid by the Borrower in connection with such refunded Indemnified Taxes or Other
Taxes, to the Borrower, net of all out-of-pocket expenses (including any Taxes
to which such
46
41
Lender has become subject as a result of its receipt of such refund) of the
Administrative Agent or such Lender incurred in obtaining such refund and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, however, that the Borrower
agrees to promptly return such refund (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative
Agent or the applicable Lender, as the case may be, if it receives notice from
the Administrative Agent or the applicable Lender that the Administrative Agent
or such Lender is required to repay such refund to such Governmental Authority.
Nothing contained in this Section 2.20(f) shall require the Administrative Agent
or any Lender to make available its tax returns (or any other information
relating to its taxes which it deems to be confidential) to the Borrower or any
other person.
(g) Notwithstanding anything to the contrary in this Section, if the
Internal Revenue Service determines that a Lender is participating in a conduit
financing arrangement as defined in Section 7701(i) of the Code and the
regulations thereunder (a "Conduit Financing Arrangement"), then (i) any Taxes
that the Borrower is required to withhold from payments to such Lender shall be
excluded from the definition of "Indemnified Taxes" and (ii) such Lender shall
indemnify the Borrower in full for any and all Taxes for which the Borrower is
held directly liable under Section 1461 of the Code by virtue of such Conduit
Financing Arrangement. Each Lender represents that it is not participating in a
Conduit Financing Arrangement.
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate. (a) In the event (i) any Lender or the Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
the Issuing Bank delivers a notice described in Section 2.15 or (iii) the
Borrower is required to pay any additional amount to any Lender or the Issuing
Bank or any Governmental Authority on account of any Lender or the Issuing Bank
pursuant to Section 2.20, the Borrower may, at its sole expense and effort
(including with respect to the processing and recordation fee referred to in
Section 9.04(b)), upon notice to such Lender or the Issuing Bank and the
Administrative Agent, require such Lender or the Issuing Bank to transfer and
assign, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all of its interests, rights and obligations under
this Agreement to an assignee that shall assume such assigned obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that (x) such assignment shall not conflict with any law, rule or regulation or
order of any court or other Governmental Authority having jurisdiction, (y) the
Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Revolving Credit Commitment is being assigned, of the Issuing
Bank and the Swingline Lender), which consent shall not unreasonably be
withheld, and (z) the Borrower or such assignee shall have paid to the affected
Lender or the Issuing Bank in immediately available funds an amount equal to the
sum of the principal of and interest accrued to the date of such payment on the
outstanding Loans or L/C Disbursements of such Lender or the Issuing Bank and
the Swingline Lender, respectively, plus all Fees and other amounts accrued for
the account of such Lender or the Issuing Bank hereunder (including any amounts
under Section 2.14 and Section 2.16); provided further that, if prior to any
such transfer and assignment the circumstances or event that resulted in such
Lender's or the Issuing Bank's claim for compensation under Section 2.14 or
notice under Section 2.15 or the amounts paid pursuant to Section 2.20, as the
case may be, cease to cause such Lender or the Issuing Bank to suffer increased
costs or reductions in amounts received or receivable or reduction in return on
capital, or cease to have the consequences specified in Section 2.15, or cease
to result in amounts being payable under Section 2.20, as the case may be
(including as a result of any action taken by such Lender or the Issuing Bank
pursuant to paragraph (b) below), or if such Lender or the Issuing Bank shall
waive its right to claim further compensation under Section 2.14 in respect of
such
47
42
circumstances or event or shall withdraw its notice under Section 2.15 or shall
waive its right to further payments under Section 2.20 in respect of such
circumstances or event, as the case may be, then such Lender or the Issuing Bank
shall not thereafter be required to make any such transfer and assignment
hereunder.
(b) If (i) any Lender or the Issuing Bank shall request compensation
under Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice
described in Section 2.15 or (iii) the Borrower is required to pay any
additional amount to any Lender or the Issuing Bank or any Governmental
Authority on account of any Lender or the Issuing Bank, pursuant to Section
2.20, then such Lender or the Issuing Bank shall use reasonable efforts (which
shall not require such Lender or the Issuing Bank to incur an unreimbursed loss
or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or legal or regulatory restrictions or suffer any
disadvantage or burden deemed by it to be significant) (x) to file any
certificate or document reasonably requested in writing by the Borrower or (y)
to assign its rights and delegate and transfer its obligations hereunder to
another of its offices, branches or affiliates, if such filing or assignment
would reduce its claims for compensation under Section 2.14 or enable it to
withdraw its notice pursuant to Section 2.15 or would reduce amounts payable
pursuant to Section 2.20, as the case may be, in the future. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender or the
Issuing Bank in connection with any such filing or assignment, delegation and
transfer.
SECTION 2.22. Swingline Loans. (a) Swingline Commitment. Subject to the
terms and conditions and relying upon the representations and warranties herein
set forth, the Swingline Lender agrees to make loans to the Borrower at any time
and from time to time on and after the Closing Date and until the earlier of the
Revolving Credit Maturity Date and the termination of the Revolving Credit
Commitments in accordance with the terms hereof, in an aggregate principal
amount at any time outstanding that will not result in (i) the aggregate
principal amount of all Swingline Loans exceeding $10,000,000 or (ii) the
Aggregate Revolving Credit Exposure, after giving effect to any Swingline Loan,
exceeding the Total Revolving Credit Commitment. Each Swingline Loan shall be in
a principal amount that is an integral multiple of $250,000. The Swingline
Commitment may be terminated or reduced from time to time as provided herein.
Within the foregoing limits, the Borrower may borrow, pay or prepay and reborrow
Swingline Loans hereunder, subject to the terms, conditions and limitations set
forth herein.
(b) Swingline Loans. The Borrower shall notify the Administrative Agent
by telecopy, or by telephone (confirmed by telecopy), not later than 12:00 p.m.,
New York City time, on the day of a proposed Swingline Loan. Such notice shall
be delivered on a Business Day, shall be irrevocable and shall refer to this
Agreement and shall specify the requested date (which shall be a Business Day)
and amount of such Swingline Loan. The Administrative Agent will promptly advise
the Swingline Lender of any notice received from the Borrower pursuant to this
paragraph (b). The Swingline Lender shall make each Swingline Loan available to
the Borrower by means of a credit to an account as directed by the Borrower in
the notice requesting such Swingline Loan on the date such Swingline Loan is so
requested.
(c) Prepayment. The Borrower shall have the right at any time and from
time to time to prepay any Swingline Loan, in whole or in part, upon giving
written or telecopy notice (or telephone notice promptly confirmed by written,
or telecopy notice) to the Swingline Lender and to the Administrative Agent
before 12:00 (noon), New York City time on the date of prepayment at the
Swingline Lender's address for notices specified in Schedule 2.01. All principal
payments of
48
43
Swingline Loans shall be accompanied by accrued interest on the principal
amount being repaid to the date of payment.
(d) Interest. Each Swingline Loan shall be an ABR Loan and, subject to
the provisions of Section 2.07, shall bear interest as provided in Section
2.06(a).
(e) Participations. The Swingline Lender may by written notice given to
the Administrative Agent not later than 11:00 a.m., New York City time, on any
Business Day require the Revolving Credit Lenders to acquire participations on
such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which the
Revolving Credit Lenders will participate. The Administrative Agent will,
promptly upon receipt of such notice, give notice to each Revolving Credit
Lender, specifying in such notice such Lender's Pro Rata Percentage of such
Swingline Loan or Loans. In furtherance of the foregoing, each Revolving Credit
Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the
Swingline Lender, such Revolving Credit Lender's Pro Rata Percentage of such
Swingline Loan or Loans. Each Revolving Credit Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or an Event of Default, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Each Revolving Credit
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.02(c)
with respect to Loans made by such Lender (and Section 2.02(c) shall apply,
mutatis mutandis, to the payment obligations of the Lenders) and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Lenders. The Administrative Agent shall notify the
Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph and thereafter payments in respect of such Swingline Loan shall be
made to the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Borrower (or other party on behalf of
the Borrower) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower (or other party liable for obligations of the Borrower) of any
default in the payment thereof.
SECTION 2.23. Letters of Credit. (a) General. The Borrower may request
the issuance of a Letter of Credit for its own account, in a form reasonably
acceptable to the Administrative Agent and the Issuing Bank, at any time and
from time to time while the Revolving Credit Commitments remain in effect. This
Section shall not be construed to impose an obligation upon the Issuing Bank to
issue any Letter of Credit that is inconsistent with the terms and conditions of
this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. In order to request the issuance of a Letter of Credit (or to amend,
renew or extend an existing Letter of Credit), the Borrower shall hand deliver
or telecopy to the Issuing Bank and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended, renewed or extended, the date of issuance, amendment,
renewal or extension, the date on which such
49
44
Letter of Credit is to expire (which shall comply with paragraph (c) below), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare such Letter of
Credit. A Letter of Credit shall be issued, amended, renewed or extended only
if, and upon issuance, amendment, renewal or extension of each Letter of Credit
the Borrower shall be deemed to represent and warrant that, after giving effect
to such issuance, amendment, renewal or extension (i) the L/C Exposure shall not
exceed $25,000,000 and (ii) the Aggregate Revolving Credit Exposure shall not
exceed the Total Revolving Credit Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the earlier of the date one year after the date of the issuance of
such Letter of Credit and the date that is five Business Days prior to the
Revolving Credit Maturity Date, unless such Letter of Credit expires by its
terms on an earlier date.
(d) Participations. By the issuance of a Letter of Credit and without
any further action on the part of the Issuing Bank or the Lenders, the Issuing
Bank hereby grants to each Revolving Credit Lender, and each such Lender hereby
acquires from the applicable Issuing Bank, a participation in such Letter of
Credit equal to such Lender's Pro Rata Percentage of the aggregate amount
available to be drawn under such Letter of Credit, effective upon the issuance
of such Letter of Credit. In consideration and in furtherance of the foregoing,
each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay
to the Administrative Agent, for the account of the Issuing Bank, such Lender's
Pro Rata Percentage of each L/C Disbursement made by the Issuing Bank and not
reimbursed by the Borrower (or, if applicable, another party pursuant to its
obligations under any other Loan Document) forthwith on the date due as provided
in Section 2.02(f). Each Revolving Credit Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this paragraph in respect
of Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including the occurrence and continuance of a
Default or an Event of Default, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, the Borrower shall pay to the Administrative
Agent an amount equal to such L/C Disbursement not later than the end of the day
on which the Borrower shall have received notice from the Issuing Bank that
payment of such draft will be made, or, if the Borrower shall have received such
notice later than 10:00 a.m., New York City time, on any Business Day, not later
than 10:00 a.m., New York City time, on the immediately following Business Day.
(f) Obligations Absolute. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, setoff, defense or other
right that the Borrower, any other party guaranteeing, or otherwise
obligated with, the Borrower, any Subsidiary or other
50
45
Affiliate thereof or any other person may at any time have against the
beneficiary under any Letter of Credit, the Issuing Bank, the
Administrative Agent or any Lender or any other person, whether in
connection with this Agreement, any other Loan Document or any other
related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of
the Issuing Bank, the Lenders, the Administrative Agent or any other
person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of the
Borrower's obligations hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of the Issuing Bank. However, the
foregoing shall not be construed to excuse the Issuing Bank from liability to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
the Issuing Bank's gross negligence or wilful misconduct in determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof; it is understood that the Issuing Bank may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary and, in
making any payment under any Letter of Credit (i) the Issuing Bank's exclusive
reliance on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due to the
beneficiary thereunder equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be insufficient
in any respect, if such document on its face appears to be in order, and whether
or not any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement therein proves
to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance
in any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of the Issuing Bank.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall as promptly as possible
give telephonic notification, confirmed by telecopy, to the Administrative Agent
and the Borrower of such demand for payment and whether the Issuing Bank has
made or will make an L/C Disbursement thereunder; provided that any failure to
give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Revolving Credit Lenders with
respect to any such L/C Disbursement. The Administrative Agent shall promptly
give each Revolving Credit Lender notice thereof.
51
46
(h) Interim Interest. If the Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless the Borrower shall
reimburse such L/C Disbursement in full on such date, the unpaid amount thereof
shall bear interest for the account of the Issuing Bank, for each day from and
including the date of such L/C Disbursement, to but excluding the earlier of the
date of payment by the Borrower or the date on which interest shall commence to
accrue thereon as provided in Section 2.02(f), at the rate per annum that would
apply to such amount if such amount were an ABR Revolving Loan.
(i) Resignation or Removal of the Issuing Bank. The Issuing Bank may
resign at any time by giving 180 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower, and may be removed at any
time by the Borrower by notice to the Issuing Bank, the Administrative Agent and
the Lenders. Subject to the next succeeding paragraph, upon the acceptance of
any appointment as the Issuing Bank hereunder by a Lender that shall agree to
serve as successor Issuing Bank, such successor shall succeed to and become
vested with all the interests, rights and obligations of the retiring Issuing
Bank and the retiring Issuing Bank shall be discharged from its obligations to
issue additional Letters of Credit hereunder. At the time such removal or
resignation shall become effective, the Borrower shall pay all accrued and
unpaid fees pursuant to Section 2.05(c)(ii). The acceptance of any appointment
as the Issuing Bank hereunder by a successor Lender shall be evidenced by an
agreement entered into by such successor, in a form satisfactory to the Borrower
and the Administrative Agent, and, from and after the effective date of such
agreement, (i) such successor Lender shall have all the rights and obligations
of the previous Issuing Bank under this Agreement and the other Loan Documents
and (ii) references herein and in the other Loan Documents to the term "Issuing
Bank" shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require. After the resignation or removal of the Issuing Bank hereunder, the
retiring Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement and the other
Loan Documents with respect to Letters of Credit issued by it prior to such
resignation or removal, but shall not be required to issue additional Letters of
Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Credit Lenders holding participations in
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit) thereof and of the amount
to be deposited, deposit in an account with the Collateral Agent, for the
benefit of the Revolving Credit Lenders, an amount in cash equal to the L/C
Exposure as of such date. Such deposit shall be held by the Collateral Agent as
collateral for the payment and performance of the Obligations. The Collateral
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits in Permitted Investments, which investments shall be
made at the option and sole discretion of the Collateral Agent, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall (i) automatically be
applied by the Administrative Agent to reimburse the Issuing Bank for L/C
Disbursements for which it has not been reimbursed, (ii) be held for the
satisfaction of the reimbursement obligations of the Borrower for the L/C
Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Credit Lenders holding
participations in outstanding Letters of Credit representing greater than 50% of
the aggregate undrawn amount of all outstanding Letters of Credit), be applied
to satisfy the Obligations. If the Borrower is required to provide an amount of
cash collateral hereunder as a result of the occurrence of an Event of Default,
such amount (to the
52
47
extent not applied as aforesaid) shall be returned to the Borrower within three
Business Days after all Events of Default have been cured or waived.
(k) Additional Issuing Banks. The Borrower may, at any time and from
time to time with the consent of the Administrative Agent (which consent shall
not be unreasonably withheld) and such Lender, designate one or more additional
Lenders to act as an issuing bank under the terms of this Agreement. Any Lender
designated as an issuing bank pursuant to this paragraph (k) shall be deemed (in
addition to being a Lender) to be the Issuing Bank with respect to Letters of
Credit issued or to be issued by such Lender, and all references herein and in
the other Loan Documents to the term "Issuing Bank" shall, with respect to such
Letters of Credit, be deemed to refer to such Lender in its capacity as Issuing
Bank, as the context shall require.
(l) Existing Letter of Credit. The Existing L/C shall be deemed to be a
Letter of Credit issued hereunder, and on the Closing Date each Revolving Credit
Lender shall be deemed to have been granted and acquired a participation therein
pursuant to paragraph (d) above.
ARTICLE III
Representations and Warranties
Each of Holdings and the Borrower represents and warrants to the
Administrative Agent, the Collateral Agent, the Issuing Bank and each of the
Lenders that:
SECTION 3.01. Organization; Powers. Each of Holdings, the Borrower and
each of the Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has all
requisite power and authority to own its property and assets and to carry on its
business as now conducted and as proposed to be conducted, (c) is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required, except where the failure so to qualify could not
reasonably be expected to result in a Material Adverse Effect, and (d) has the
power and authority to execute, deliver and perform its obligations under each
of the Loan Documents and each other agreement or instrument contemplated hereby
to which it is or will be a party and, in the case of the Borrower, to borrow
hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by
each Loan Party of each of the Documents and the consummation by the Loan
Parties of the Transactions (including the borrowings hereunder) (a) have been
duly authorized by all requisite corporate and, if required, stockholder action
and (b) will not (i) violate (A) any provision of law, statute, rule or
regulation, or of the certificate or articles of incorporation or other
constitutive documents or by-laws of Holdings, the Borrower or any Subsidiary,
(B) any order of any Governmental Authority or (C) any provision of any
indenture, agreement or other instrument to which Holdings, the Borrower or any
Subsidiary is a party or by which any of them or any of their property is or may
be bound, (ii) be in conflict with, result in a breach of or constitute (alone
or with notice or lapse of time or both) a default under, or give rise to any
right to accelerate or to require the prepayment, repurchase or redemption of
any obligation under any such indenture, agreement or other instrument or (iii)
result in the creation or imposition of any Lien upon or with respect to any
property or assets now owned or hereafter acquired by Holdings, the Borrower or
any Subsidiary (other than any Lien created hereunder or under the Security
Documents).
53
48
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by Holdings and the Borrower and constitutes, and each other Loan
Document when executed and delivered by the each Loan Party thereto will
constitute, a legal, valid and binding obligation of such Loan Party enforceable
against such Loan Party in accordance with its terms.
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except for
(a) the filing of Uniform Commercial Code financing statements and filings with
the United States Patent and Trademark Office, the United States Copyright
Office, the Korean Intellectual Property Office and the appropriate intellectual
property filing offices in Germany, Japan, France and the United Kingdom, (b)
recordation of the Mortgages, (c) such as have been made or obtained and are in
full force and effect and (d) those filings required to be made following the
Closing Date which are set forth on Schedule 3.04.
SECTION 3.05. Financial Statements. (a) The Borrower has heretofore
furnished to the Lenders (i) its consolidated balance sheets and related
statements of income, stockholder's equity and cash flows (x) as of and for the
fiscal year ended May 31, 1998, audited by and accompanied by the opinion of
KPMG Peat Marwick LLP, independent public accountants, and (y) as of and for the
fiscal quarter and the portion of the fiscal year ended February 28, 1999,
certified by its chief financial officer, and (b) the statement of net assets
and related statements of operations and comprehensive income (loss) and cash
flows for the PD Business as of and for the fiscal year ended December 31, 1998,
audited by and accompanied by the opinion of PricewaterhouseCoopers LLP,
independent public accountants. Such financial statements present fairly the
financial condition and results of operations and cash flows of the Borrower and
its consolidated Subsidiaries and the PD Business, respectively, as of such
dates and for such periods. Such balance sheets and the notes thereto disclose
all material liabilities, direct or contingent, of the Borrower and its
consolidated Subsidiaries and the PD Business, respectively, as of the dates
thereof. Such financial statements were prepared in accordance with GAAP applied
on a consistent basis.
(b) The Borrower has heretofore delivered to the Lenders its unaudited
pro forma consolidated balance sheet and related statement of income as of
November 29, 1998, prepared giving effect to the Transactions as if they had
occurred, with respect to such balance sheet, on such date, and with respect to
such income statement, on May 26, 1997. Such pro forma financial statements have
been prepared in good faith by the Borrower, based on the assumptions used to
prepare the pro forma financial information contained in the Confidential
Information Memorandum (which assumptions are believed by the Borrower on the
date hereof and on the Closing Date to be reasonable), are based on the best
information available to the Borrower as of the date of delivery thereof,
accurately reflect all adjustments required to be made to give effect to the
Transactions and present fairly on a pro forma basis the estimated consolidated
financial position of the Borrower and its consolidated Subsidiaries as of such
dates, assuming that the Transactions had actually occurred at such dates.
SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the business, results of operations, prospects, condition,
financial or otherwise, or material agreements of Holdings, the Borrower and the
Subsidiaries, taken as a whole, since May 31, 1998.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of
Holdings, the Borrower and the Subsidiaries has good and marketable title to, or
valid leasehold interests in, all its material properties and assets (including
all Mortgaged Property), except for minor defects in title
54
48
that do not interfere with its ability to conduct its business as currently
conducted or to utilize such properties and assets for their intended purposes.
All such material properties and assets are free and clear of Liens, other than
Liens expressly permitted by Section 6.02.
(b) Each of Holdings, the Borrower and the Subsidiaries has complied
with all obligations under all material leases to which it is a party and all
such leases are in full force and effect. Each of Holdings, the Borrower and the
Subsidiaries enjoys peaceful and undisturbed possession under all such material
leases.
(c) Except as set forth on Schedule 3.07(c), neither Holdings nor the
Borrower has received any notice of, nor has any knowledge of, any pending or
contemplated condemnation proceeding affecting the Mortgaged Properties or any
sale or disposition thereof in lieu of condemnation.
(d) None of Holdings, the Borrower or any of the Subsidiaries is
obligated under any right of first refusal, option or other contractual right to
sell, assign or otherwise dispose of any Mortgaged Property or any interest
therein.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing
Date a list of all Subsidiaries and the percentage ownership interest of
Holdings or the Borrower therein. The shares of capital stock or other ownership
interests so indicated on Schedule 3.08 are fully paid and non-assessable and
are owned by Holdings or the Borrower, directly or indirectly, free and clear of
all Liens other than Liens created by the Pledge Agreement.
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth
on Schedule 3.09 or Schedule 3.17, there are not any actions, suits or
proceedings at law or in equity or by or before any Governmental Authority now
pending or, to the knowledge of Holdings or the Borrower, threatened against or
affecting Holdings or the Borrower or any Subsidiary or any business, property
or rights of any such person (i) that involve any Loan Document or the
Transactions or (ii) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect.
(b) Except for matters covered by Section 3.17, none of Holdings, the
Borrower or any of the Subsidiaries or any of their respective material
properties or assets is in violation of, nor will the continued operation of
their material properties and assets as currently conducted violate, any law,
rule or regulation (including any zoning or building ordinance, code or approval
or any building permits) or any restrictions of record or agreements affecting
the Mortgaged Property, or is in default with respect to any judgment, writ,
injunction, decree or order of any Governmental Authority, where such violation
or default could reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. Agreements. (a) None of Holdings, the Borrower or any of
the Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(b) None of Holdings, the Borrower or any of the Subsidiaries is in
default in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be expected to
result in a Material Adverse Effect.
55
50
SECTION 3.11. Federal Reserve Regulations. (a) None of Holdings, the
Borrower or any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the Regulations of the Board, including Regulation T, U
or X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act. None of Holdings, the Borrower or any Subsidiary is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of
the Loans and will request the issuance of Letters of Credit only for the
purposes specified in the preamble to this Agreement.
SECTION 3.14. Tax Returns. Each of Holdings, the Borrower and the
Subsidiaries has filed or caused to be filed all Federal tax returns and all
material, state, local and foreign tax returns or materials required to have
been filed by it and has paid or caused to be paid all taxes due and payable by
it and all assessments received by it, except taxes that are being contested in
good faith by appropriate proceedings and for which Holdings, the Borrower or
such Subsidiary, as applicable, shall have set aside on its books adequate
reserves.
SECTION 3.15. No Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule furnished by or on behalf of Holdings or the
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto contained, contains or will contain any material misstatement of fact or
omitted, omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were, are
or will be made, not misleading as of the date such information is dated or
certified; provided that to the extent any such information, report, financial
statement, exhibit or schedule was based upon or constitutes a forecast or
projection, each of Holdings and the Borrower represents only that it acted in
good faith and utilized reasonable assumptions and due care in the preparation
of such information, report, financial statement, exhibit or schedule.
SECTION 3.16. Employee Benefit Plans. (a) Each of the Borrower and its
ERISA Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in material liability of the Borrower or
any of its ERISA Affiliates. The present value of all benefit liabilities under
each Plan (based on those assumptions used to fund such Plan) did not, as of the
last annual valuation date applicable thereto, exceed by more than $200,000 the
fair market value of the assets of such Plan, and the present value of all
benefit liabilities of all underfunded Plans (based on those assumptions used to
fund each such Plan) did not, as of the last annual valuation dates applicable
thereto, exceed by more than $200,000 the fair market value of the assets of all
such underfunded Plans.
56
51
(b) Each Foreign Pension Plan is in compliance in all material respects
with all requirements of law applicable thereto and the respective requirements
of the governing documents for such plan except to the extent such
non-compliance could not reasonably be expected to result in a Material Adverse
Effect. With respect to each Foreign Pension Plan, none of the Holdings, its
Affiliates or any of its directors, officers, employees or agents has engaged in
a transaction that subject the Holdings or any of its Subsidiaries, directly or
indirectly, to a material tax or civil penalty. With respect to each Foreign
Pension Plan, reserves have been established in the financial statements
furnished to Lenders in respect of any unfunded liabilities in accordance with
applicable law and prudent business practice or, where required, in accordance
with ordinary accounting practices in the jurisdiction in which such Foreign
Pension Plan is maintained. The aggregate unfunded liabilities, with respect to
such Foreign Pension Plans could not reasonably be expected to result in a
Material Adverse Effect. There are no actions, suits or claims (other than
routine claims for benefits) pending or threatened against the Holdings or any
of its Affiliates with respect to any Foreign Pension Plan which could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.
SECTION 3.17. Environmental Matters. Except as set forth in Schedule
3.17:
(a) The properties owned or operated by Holdings, the Borrower and the
Subsidiaries (the "Properties") do not contain any Hazardous Materials in
amounts or concentrations which (i) constitute, or constituted a violation of,
(ii) require Remedial Action under, or (iii) could give rise to liability under,
Environmental Laws, which violations, Remedial Actions and liabilities, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;
(b) The Properties and all operations of the Borrower and the
Subsidiaries are in compliance, and in the last six years have been in
compliance, with all Environmental Laws and all necessary Environmental Permits
have been obtained and are in effect, except to the extent that such
non-compliance or failure to obtain any necessary permits, in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect;
(c) There have been no Releases or threatened Releases by the Borrower
or any Subsidiary or, to their knowledge, by any other party, at, from, under or
proximate to the Properties or otherwise in connection with the operations of
the Borrower or the Subsidiaries, which Releases or threatened Releases, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;
(d) None of Holdings, the Borrower or any of the Subsidiaries has
received any notice of an Environmental Claim in connection with the Properties
or the operations of the Borrower or the Subsidiaries or with regard to any
person whose liabilities for environmental matters Holdings, the Borrower or the
Subsidiaries has retained or assumed, in whole or in part, contractually, by
operation of law or otherwise, which, in the aggregate, could reasonably be
expected to result in a Material Adverse Effect; and
(e) Hazardous Materials have not been transported from the Properties
by or on behalf of Holdings, the Borrower or any Subsidiary, nor have Hazardous
Materials been generated, treated, stored or disposed of at, on or under any of
the Properties in a manner that could give rise to liability under any
Environmental Law, nor have the Borrower or the Subsidiaries retained or assumed
any liability, contractually or by operation of law, with respect to the
generation, treatment, storage or disposal of Hazardous Materials, which
transportation, generation, treatment, storage or disposal,
57
52
or retained or assumed liabilities, in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all insurance maintained by the Borrower or by the
Borrower for its Subsidiaries as of the date hereof and the Closing Date. As of
each such date, such insurance is in full force and effect and all premiums have
been duly paid. The Borrower and its Subsidiaries have insurance in such amounts
and covering such risks and liabilities as are in accordance with normal
industry practice.
SECTION 3.19. Security Documents. (a) The Pledge Agreement is effective
to create in favor of the Collateral Agent, for the ratable benefit of the
Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement) and, when the Collateral is
delivered to the Collateral Agent, the Pledge Agreement shall constitute a fully
perfected first priority Lien on, and security interest in, all right, title and
interest of the pledgors thereunder in such Collateral, in each case prior and
superior in right to any other person.
(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Security
Agreement) and, when financing statements in appropriate form are filed in the
offices specified on Schedule 6 to the Perfection Certificate, the Security
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the grantors thereunder in such Collateral
(other than the Intellectual Property, as defined in the Security Agreement), in
each case prior and superior in right to any other person, other than with
respect to Liens expressly permitted by Section 6.02.
(c) When the Security Agreement is filed in the United States Patent
and Trademark Office and the United States Copyright Office, the Security
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the grantors thereunder in the Intellectual
Property (as defined in the Security Agreement), in each case prior and superior
in right to any other person (it being understood that subsequent recordings in
the United States Patent and Trademark Office and the United States Copyright
Office may be necessary to perfect a lien on registered trademarks, trademark
applications and copyrights acquired by the grantors after the date hereof),
subject to Liens permitted by Section 6.02.
(d) The Mortgages are effective to create in favor of the Collateral
Agent, for the ratable benefit of the Secured Parties, a legal, valid and
enforceable Lien on all of the Loan Parties' right, title and interest in and to
the Mortgaged Property thereunder and the proceeds thereof, and when the
Mortgages are filed in the offices specified on Schedule 3.19(d), the Mortgages
shall constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties in such Mortgaged Property and the
proceeds thereof, in each case prior and superior in right to any other person,
other than with respect to the rights of persons pursuant to Liens expressly
permitted by Section 6.02.
SECTION 3.20. Location of Real Property and Leased Premises. (a)
Schedule 3.20(a) lists completely and correctly as of the Closing Date all real
property owned by the Borrower and the Subsidiaries and the addresses thereof.
The Borrower and the Subsidiaries own in fee all the real property set forth on
Schedule 3.20(a).
58
53
(b) Schedule 3.20(b) lists completely and correctly as of the Closing
Date all real property leased by the Borrower and the Subsidiaries and the
addresses thereof. The Borrower and the Subsidiaries have valid leases in all
the real property set forth on Schedule 3.20(b).
SECTION 3.21. Labor Matters As of the date hereof and the Closing Date,
there are no strikes, lockouts or slowdowns against Holdings, the Borrower or
any Subsidiary pending or, to the knowledge of Holdings or the Borrower,
threatened. The hours worked by and payments made to employees of Holdings, the
Borrower and the Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters in any manner which could reasonably be expected to
have a Material Adverse Effect. All payments due from Holdings, the Borrower or
any Subsidiary, or for which any claim may be made against Holdings, the
Borrower or any Subsidiary, on account of wages and employee health and welfare
insurance and other benefits, have been paid or accrued as a liability on the
books of Holdings, the Borrower or such Subsidiary except where the failure to
do so could not reasonably be expected to have a Material Adverse Effect. The
consummation of the Transactions will not give rise to any right of termination
or right of renegotiation on the part of any union under any collective
bargaining agreement to which Holdings, the Borrower or any Subsidiary is bound.
SECTION 3.22. Solvency. Immediately after the consummation of the
Transactions to occur on the Closing Date and immediately following the making
of each Loan and after giving effect to the application of the proceeds of each
Loan, (a) the fair value of the assets of the Loan Parties taken as a whole, at
a fair valuation, will exceed their debts and liabilities, subordinated,
contingent or otherwise; (b) the present fair saleable value of the property of
the Loan Parties taken as a whole will be greater than the amount that will be
required to pay the probable liability of their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) the Loan Parties taken as a whole will be able
to pay their debts and liabilities, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured; and (d) the Loan Parties
taken as a whole will not have unreasonably small capital with which to conduct
the businesses in which they are engaged as such businesses are now conducted
and are proposed to be conducted following the Closing Date.
SECTION 3.23. Representations and Warranties in Documents. All
representations and warranties set forth in the other Documents were true and
correct in all material respects at the time as of which such representations
and warranties were made (or deemed made), provided that to the extent the
representations and warranties in the Transaction Documents are made by persons
other than the Loan Parties and the CVC Permitted Holders, then the
representations and warranties so made by such persons shall be deemed to be
true and correct in all material respects for purposes of this Section 3.23
unless the aggregate effect of all misrepresentations made by such other persons
in the Transaction Documents are such as would evidence a material adverse
change in the operations, properties, condition (financial or otherwise) or
prospects of the PD Business from that which would have applied if all
representations made by such other persons in the Transaction Documents had been
true and correct in all respects.
SECTION 3.24. Year 2000. Any reprogramming required to permit the
proper functioning, in and following the year 2000, of (a) Holdings' and its
Subsidiaries' computer systems and (b) equipment containing embedded microchips
(including systems and equipment supplied by others or with which the Holdings'
or its Subsidiaries' systems interface) and the testing of all such systems and
equipment, as so reprogrammed, will be completed prior to June 30, 1999. The
cost to Holdings and its Subsidiaries of such reprogramming and testing and of
the reasonably
59
54
foreseeable consequences of the year 2000 (including reprogramming errors and
the failure of others' systems or equipment) will not result in a Material
Adverse Effect. Except for such of the reprogramming referred to in the
preceding sentence as may be necessary, the computer and management information
systems of Holdings and its Subsidiaries are and, with ordinary course upgrading
and maintenance, will continue for the term of this Agreement to be, sufficient
to permit Holdings and its Subsidiaries to conduct their business without
Material Adverse Effect.
SECTION 3.25. Letters of Credit. The Existing L/C and the trade letters
of credit referred to on Schedule 6.01 are the only letters of credit issued for
the account of Holdings or any of its Subsidiaries which are outstanding
immediately prior to the Closing Date and will remain outstanding after the
Closing Date.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit hereunder are subject to the satisfaction of the
following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing,
including each Borrowing of a Swingline Loan, and on the date of each issuance,
amendment, extension or renewal of a Letter of Credit (each such event being
called a "Credit Event"):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 (or such notice shall have been deemed
given in accordance with Section 2.03) or, in the case of the issuance,
amendment, extension or renewal of a Letter of Credit, the Issuing Bank and the
Administrative Agent shall have received a notice requesting the issuance,
amendment, extension or renewal of such Letter of Credit as required by Section
2.23(b) or, in the case of the Borrowing of a Swingline Loan, the Swingline
Lender and the Administrative Agent shall have received a notice requesting such
Swingline Loan as required by Section 2.22(b).
(b) The representations and warranties set forth in Article III hereof
or in any other Loan Document shall be true and correct in all material respects
on and as of the date of such Credit Event with the same effect as though made
on and as of such date, except to the extent such representations and warranties
expressly relate to an earlier date.
(c) The Borrower and each other Loan Party shall be in compliance in
all material respects with all the terms and provisions set forth herein and in
each other Loan Document on its part to be observed or performed, and at the
time of and immediately after such Credit Event, no Event of Default or Default
shall have occurred and be continuing.
Each Credit Event shall be deemed to constitute a representation and
warranty by the Borrower and Holdings on the date of such Credit Event as to the
matters specified in paragraphs (b) and (c) of this Section 4.01.
60
55
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of itself,
the Lenders and the Issuing Bank, a favorable written opinion of (i) Dechert,
Price & Xxxxxx, special counsel for Holdings and the Borrower, substantially to
the effect set forth in Exhibit J-1, (ii) Xxx & Xxxxx, Korean counsel for
Holdings, the Borrower and Xxxxxxxxx Korea, substantially to the effect set
forth in Exhibit J-2, and (iii) each other local counsel listed on Schedule
4.02(a), substantially to the effect set forth in Exhibit J-3, in each case (A)
dated the Closing Date, (B) addressed to the Issuing Bank, the Administrative
Agent and the Lenders, and (C) covering such other matters relating to the Loan
Documents and the Transactions as the Administrative Agent shall reasonably
request, and Holdings and the Borrower hereby request such counsel to deliver
such opinions.
(b) All legal matters incident to this Agreement, the Borrowings and
extensions of credit hereunder and the other Loan Documents shall be
satisfactory to the Lenders, to the Issuing Bank and to the Administrative
Agent.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments thereto, of
each Loan Party, certified as of a recent date by the Secretary of State of the
state of its organization, and a certificate as to the good standing of each
Loan Party as of a recent date, from such Secretary of State; (ii) a certificate
of the Secretary or Assistant Secretary of each Loan Party dated the Closing
Date and certifying (A) that attached thereto is a true and complete copy of the
by-laws of such Loan Party as in effect on the Closing Date and at all times
since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors of such Loan Party authorizing the execution,
delivery and performance of the Loan Documents to which such person is a party
and, in the case of the Borrower, the borrowings hereunder, and that such
resolutions have not been modified, rescinded or amended and are in full force
and effect, (C) that the certificate or articles of incorporation of such Loan
Party have not been amended since the date of the last amendment thereto shown
on the certificate of good standing furnished pursuant to clause (i) above, and
(D) as to the incumbency and specimen signature of each officer executing any
Loan Document or any other document delivered in connection herewith on behalf
of such Loan Party; (iii) a certificate of another officer as to the incumbency
and specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (ii) above; and (iv) such other documents as the
Lenders, the Issuing Bank or the Administrative Agent may reasonably request.
(d) The Administrative Agent shall have received a certificate, dated
the Closing Date and signed by a Financial Officer of the Borrower, confirming
compliance with the conditions precedent set forth in paragraphs (b) and (c) of
Section 4.01.
(e) The Administrative Agent shall have received all Fees and other
amounts due and payable on or prior to the Closing Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Borrower hereunder or under any other Loan
Document.
(f) The Pledge Agreement shall have been duly executed by the parties
thereto and delivered to the Collateral Agent and shall be in full force and
effect, and all the outstanding capital stock of the Borrower and the
Subsidiaries shall have been duly and validly pledged thereunder to the
Collateral Agent for the ratable benefit of the Secured Parties and certificates
representing such
61
56
shares, accompanied by instruments of transfer and stock powers endorsed in
blank, shall be in the actual possession of the Collateral Agent; provided that
to the extent to do so would cause adverse tax consequences to the Borrower, (i)
neither the Borrower nor any Domestic Subsidiary shall be required to pledge
more than 65% of the voting stock of any Foreign Subsidiary and (ii) no Foreign
Subsidiary shall be required to pledge the capital stock of any of its Foreign
Subsidiaries.
(g) The Security Agreement shall have been duly executed by the Loan
Parties party thereto and shall have been delivered to the Collateral Agent and
shall be in full force and effect on such date and each document (including each
Uniform Commercial Code financing statement) required by law or reasonably
requested by the Administrative Agent to be filed, registered or recorded in
order to create in favor of the Collateral Agent for the benefit of the Secured
Parties a valid, legal and perfected first-priority security interest in and
lien on the Collateral (subject to any Lien expressly permitted by Section 6.02)
described in such agreement shall have been delivered to the Collateral Agent.
(h) The Collateral Agent shall have received the results of a search of
the Uniform Commercial Code filings (or equivalent filings) made with respect to
the Loan Parties in the states (or other jurisdictions) in which the chief
executive office of each such person is located, any offices of such persons in
which records have been kept relating to accounts and the other jurisdictions in
which Uniform Commercial Code filings (or equivalent filings) are to be made
pursuant to the preceding paragraph, together with copies of the financing
statements (or similar documents) disclosed by such search, and accompanied by
evidence satisfactory to the Collateral Agent that the Liens indicated in any
such financing statement (or similar document) would be permitted under Section
6.02 or have been released.
(i) The Collateral Agent shall have received a Perfection Certificate
with respect to the Loan Parties dated the Closing Date and duly executed by a
Responsible Officer of the Borrower.
(j)(i) Each of the Security Documents, in form and substance
satisfactory to the Lenders, relating to each of the Mortgaged Properties shall
have been duly executed by the parties thereto and delivered to the Collateral
Agent and shall be in full force and effect, (ii) each of such Mortgaged
Properties shall not be subject to any Lien other than those permitted under
Section 6.02, (iii) each of such Security Documents shall have been filed and
recorded in the recording office as specified on Schedule 3.19(d) (or a lender's
title insurance policy, in form and substance acceptable to the Collateral
Agent, insuring such Security Document as a first lien on such Mortgaged
Property (subject to any Lien permitted by Section 6.02) shall have been
received by the Collateral Agent) and, in connection therewith, the Collateral
Agent shall have received evidence satisfactory to it of each such filing and
recordation and (iv) the Collateral Agent shall have received such other
documents, including a policy or policies of title insurance issued by a
nationally recognized title insurance company, together with such endorsements,
coinsurance and reinsurance as may be requested by the Collateral Agent and the
Lenders, insuring the Mortgages as valid first liens on the Mortgaged
Properties, free of Liens other than those permitted under Section 6.02,
together with such surveys, abstracts, appraisals and legal opinions required to
be furnished pursuant to the terms of the Mortgages or as reasonably requested
by the Collateral Agent or the Lenders.
(k) Each of the Parent Guarantee Agreement, the Subsidiary Guarantee
Agreement and the Indemnity, Subrogation and Contribution Agreement shall have
been duly executed by the parties thereto, shall have been delivered to the
Collateral Agent and shall be in full force and effect.
62
57
(l) The Administrative Agent shall have received a copy of, or a
certificate as to coverage under, the insurance policies required by Section
5.02 and the applicable provisions of the Security Documents, each of which
shall be endorsed or otherwise amended to include a "standard" or "New York"
lender's loss payable endorsement and to name the Collateral Agent as additional
insured, in form and substance satisfactory to the Administrative Agent.
(m) After giving effect to the Transactions, the PD Business shall for
the twelve-month period ended December 31, 1998, have minimum pro forma
Consolidated EBITDA of $115,000,000, calculated on a pro forma basis in
compliance with Regulation S-X under the Securities Act after giving effect to
the Acquisition and the addition and subtraction of expenses reasonably
acceptable to the Administrative Agent so as to reflect the continuing
operations of the PD Business apart from Samsung.
(n) The Transactions (other than the issuance of the Xxxxxxxxx Korea
Bond and the making of the Xxxxxxxxx Korea Acquisition Loan) shall have been
consummated or shall be consummated simultaneously on the Closing Date, in each
case in all material respects in accordance with the terms hereof and the terms
of the Transaction Documents (and without the waiver of any such terms not
approved by the Administrative Agent (such approval not to be unreasonably
withheld)).
(o) The New Senior Subordinated Notes shall be issued in the form
required by the terms of the New Senior Subordinated Note Indenture.
(p) The Agent shall have received a certificate reasonably satisfactory
in all respects to the Agent from the chief financial officer of Holdings to the
effect that, after giving effect to the Transactions, Holdings and its
subsidiaries (taken as a whole) will not (i) be insolvent, (ii) be rendered
insolvent by the indebtedness incurred in connection therewith, (iii) be left
with unreasonably small capital with which to engage in their business or (iv)
have incurred debts beyond their ability to pay such debts as they mature.
(q) After giving effect to the Transactions and the other transactions
contemplated hereby, neither Holdings nor any of its Subsidiaries shall have
outstanding any Indebtedness or preferred stock other than (i) the Loans and
extensions of credit hereunder, (ii) the New Senior Subordinated Notes, (iii)
the Holdings Subordinated Note, (iv) the Holdings Series A Preferred Stock, (v)
the Seller Note and (vi) Indebtedness listed on Schedule 6.01.
ARTICLE V
Affirmative Covenants
Each of Holdings and the Borrower covenants and agrees with each Lender
that so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document shall have
been paid in full and all Letters of Credit have been canceled or have expired
and all amounts drawn thereunder have been reimbursed in full, unless the
Required Lenders
63
58
shall otherwise consent in writing, each of Holdings and the Borrower will, and
will cause each of its Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.05.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and operated; comply
in all material respects with all applicable laws, rules, regulations (including
any zoning, building, Environmental Law, ordinance, code or approval or any
building permits or any restrictions of record or agreements affecting the
Mortgaged Properties) and decrees and orders of any Governmental Authority,
whether now in effect or hereafter enacted, except where the failure to comply
could not reasonably be expected to have a Material Adverse Effect; and at all
times maintain and preserve all property material to the conduct of such
business and keep such property in good repair, working order and condition and
from time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith may be properly conducted
at all times provided, however, that nothing in this Section 5.01(b) shall
prevent (i) sales of assets, consolidations or mergers by or involving Holdings,
the Borrower or any of their respective Subsidiaries in accordance with Section
6.05, (ii) the withdrawal by Holdings, the Borrower or any of their respective
Subsidiaries of their qualification as a foreign corporation in any jurisdiction
where such withdrawal could not reasonably be expected to have a Material
Adverse Effect or (iii) the abandonment by Holdings, the Borrower or any of
their respective Subsidiaries of any rights, franchises, licenses and patents
that the Borrower reasonably determines are not useful to its business.
SECTION 5.02. Insurance. (a) Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain such
other insurance, to such extent and against such risks, including fire and other
risks insured against by extended coverage, as is customary with companies in
the same or similar businesses operating in the same or similar locations,
including public liability insurance against claims for personal injury or death
or property damage occurring upon, in, about or in connection with the use of
any properties owned, occupied or controlled by it; and maintain such other
insurance as may be required by law.
(b) Cause all such policies covering any Collateral to be endorsed or
otherwise amended to include a "standard" or "New York" lender's loss payable
endorsement, in form and substance satisfactory to the Administrative Agent and
the Collateral Agent, which endorsement shall provide that, from and after the
Closing Date, if the insurance carrier shall have received written notice from
the Administrative Agent or the Collateral Agent of the occurrence of an Event
of Default which is continuing, the insurance carrier shall pay all proceeds
otherwise payable to the Borrower or the Loan Parties under such policies
directly to the Collateral Agent; cause all such policies to provide that
neither the Borrower, the Administrative Agent, the Collateral Agent nor any
other party shall be a coinsurer thereunder and to contain a "Replacement Cost
Endorsement", without any deduction for depreciation, and such other provisions
as the Administrative Agent or the Collateral Agent may reasonably require from
time to time to protect their interests; deliver original or certified copies of
all such policies to the Collateral Agent; cause each such policy to provide
that it shall not be
64
59
canceled, modified or not renewed (i) by reason of nonpayment of premium upon
not less than 10 days' prior written notice thereof by the insurer to the
Administrative Agent and the Collateral Agent (giving the Administrative Agent
and the Collateral Agent the right to cure defaults in the payment of premiums)
or (ii) for any other reason upon not less than 30 days' prior written notice
thereof by the insurer to the Administrative Agent and the Collateral Agent;
deliver to the Administrative Agent and the Collateral Agent, prior to the
cancellation, material modification or nonrenewal of any such policy of
insurance, a copy of a renewal or replacement policy (or other evidence of
renewal of a policy previously delivered to the Administrative Agent and the
Collateral Agent) together with evidence satisfactory to the Administrative
Agent and the Collateral Agent of payment of the premium therefor.
(c) If at any time the area in which the Premises (as defined in the
Mortgages) are located is designated (i) a "flood hazard area" in any Flood
Insurance Rate Map published by the Federal Emergency Management Agency (or any
successor agency), obtain flood insurance in such total amount as the
Administrative Agent, the Collateral Agent or the Required Lenders may from time
to time require, and otherwise comply with the National Flood Insurance Program
as set forth in the Flood Disaster Protection Act of 1973, as it may be amended
from time to time, or (ii) a "Zone 1" area, obtain earthquake insurance in such
total amount as the Administrative Agent, the Collateral Agent or the Required
Lenders may from time to time require.
(d) With respect to any Mortgaged Property, carry and maintain
comprehensive general liability insurance including the "broad form CGL
endorsement" and coverage on an occurrence basis against claims made for
personal injury (including bodily injury, death and property damage) and
comprehensive umbrella liability insurance, in no event for a combined single
limit of less than $25,000,000, naming the Collateral Agent as an additional
insured, on forms satisfactory to the Collateral Agent.
(e) Notify the Administrative Agent and the Collateral Agent
immediately whenever any separate insurance concurrent in form or contributing
in the event of loss with that required to be maintained under this Section 5.02
is taken out by the Borrower; and promptly deliver to the Administrative Agent
and the Collateral Agent a duplicate original copy of such policy or policies.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and other
obligations promptly and in accordance with their terms and pay and discharge
promptly when due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise that, if unpaid, might
give rise to a Lien upon such properties or any part thereof; provided, however,
that such payment and discharge shall not be required with respect to any such
tax, assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Borrower
shall have set aside on its books adequate reserves with respect thereto in
accordance with GAAP and such contest operates to suspend collection of the
contested obligation, tax, assessment or charge and enforcement of a Lien and,
in the case of a Mortgaged Property, there is no risk of forfeiture of such
property.
SECTION 5.04. Financial Statements, Reports, etc. In the case of
Holdings and the Borrower, furnish to the Administrative Agent and each Lender:
65
60
(a) within 90 days after the end of each fiscal year, its
consolidated and consolidating balance sheet and related statements of
income and cash flows showing the financial condition of each of
Holdings and the Borrower and their respective consolidated
Subsidiaries as of the close of such fiscal year and the results of its
operations and the operations of such Subsidiaries during such year,
all audited by KPMG Peat Marwick LLP or other independent public
accountants of recognized national standing and accompanied by an
opinion of such accountants (which shall not be qualified in any
material respect) to the effect that such consolidated financial
statements fairly present the financial condition and results of
operations of each of Holdings and the Borrower and their respective
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated and consolidating
balance sheet and related statements of income and cash flows showing
the financial condition of each of Holdings and the Borrower and their
respective consolidated Subsidiaries as of the close of such fiscal
quarter and the results of its operations and the operations of such
Subsidiaries during such fiscal quarter and the then elapsed portion of
the fiscal year, all certified by one of its Financial Officers as
fairly presenting the financial condition and results of operations of
each of Holdings and the Borrower and their respective consolidated
Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments;
(c) within 30 days after the end of the first two fiscal
months of each fiscal quarter, its consolidated balance sheet and
related statements of income and cash flows showing the financial
condition of Holdings and its consolidated Subsidiaries (which
statements shall contain a footnote providing the total consolidated
interest expense of the Borrower and its consolidated Subsidiaries)
during such fiscal month and the then elapsed portion of the fiscal
year, all certified by one of its Financial Officers as fairly
presenting the financial condition and results of operations of each of
Holdings and the Borrower and their respective consolidated
Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments;
(d) (i) concurrently with any delivery of financial statements
under sub-paragraph (a), (b) or (c) above, a certificate of a Financial
Officer opining on or certifying such statements certifying that no
Event of Default or Default has occurred or, if such an Event of
Default or Default has occurred, specifying the nature and extent
thereof and any corrective action taken or proposed to be taken with
respect thereto, (ii) concurrently with any delivery of financial
statements under sub-paragraph (a) or (b) above, a certificate of a
Financial Officer opining on or certifying such statements setting
forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the covenants
contained in Sections 6.08, 6.09, 6.10 and 6.11 and, in the case of
paragraph (a) above, setting forth Holdings' calculation of Excess Cash
Flow and (iii) in the case of paragraph (a) above, a report of the
accounting firm opining on or certifying such financial statements
stating that in the course of its regular audit of the financial
statements of Holdings, the Borrower and their respective Subsidiaries,
which audit was conducted in accordance with GAAP, such accounting firm
obtained no knowledge that any Event of Default or Default has occurred
or, if in the opinion of such accounting firm such an Event of Default
or Default has occurred, specifying the nature and extent thereof;
66
61
(e) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by Holdings or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of
the functions of said Commission, or with any national securities
exchange, or distributed to holders of its Indebtedness pursuant to the
terms of the documentation governing such Indebtedness (or any trustee,
agent or other representative therefor), as the case may be;
(f) promptly after the receipt thereof by Holdings, the
Borrower or any of their respective Subsidiaries, a copy of any
"management letter" received by any such person from its certified
public accountants and the management's responses thereto;
(g) no later than 30 days following the first day of each
fiscal year of Holdings, a budget in form reasonably satisfactory to
the Administrative Agent (including budgeted statements of income by
each of the Borrower's business units and sources and uses of cash and
balance sheets) prepared by Holdings for (i) each of the four quarters
of such fiscal year prepared in detail and (ii) each of the five years
immediately following such fiscal year prepared in summary form, in
each case, of Holdings and its Subsidiaries, accompanied by the
statement of a Financial Officer of Holdings to the effect that the
budget is a reasonable estimate for the period covered thereby.
(h) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
Holdings, the Borrower or any Subsidiary, or compliance with the terms
of any Loan Document, as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent, the Issuing Bank and each Lender prompt written notice of
the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) taken or proposed to
be taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Borrower or any Affiliate thereof
that could reasonably be expected to result in a Material Adverse
Effect; and
(c) any development that has resulted in, or could reasonably
be expected to result in, a Material Adverse Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material respects
with the applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent (i) as soon as possible after, and in any event within 10
days after any Responsible Officer of Holdings or any ERISA Affiliate knows or
has reason to know that, any ERISA Event has occurred that, alone or together
with any other ERISA Event could reasonably be expected to result in liability
of Holdings in an aggregate amount exceeding $200,000, a statement of a
Financial Officer of Holdings setting forth details as to such ERISA Event and
the action, if any, that Holdings proposes to take with respect thereto.
67
62
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law are made of
all dealings and transactions in relation to its business and activities. Each
Loan Party will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender to visit
and inspect the financial records and the properties of Holdings, the Borrower
or any Subsidiary at reasonable times and as often as reasonably requested and
to make extracts from and copies of such financial records, and permit any
representatives designated by the Administrative Agent or any Lender to discuss
the affairs, finances and condition of Holdings, the Borrower or any Subsidiary
with the officers thereof and independent accountants therefor.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and
request the issuance of Letters of Credit only for the purposes set forth in the
preamble to this Agreement.
SECTION 5.09. Compliance with Environmental Laws. Comply, and cause all
lessees and other persons occupying its Properties to comply, in all material
respects with all Environmental Laws and Environmental Permits applicable to its
operations and Properties; obtain and renew all material Environmental Permits
necessary for its operations and Properties; and conduct any Remedial Action in
accordance with Environmental Laws; provided, however, that none of Holdings,
the Borrower or any of the Subsidiaries shall be required to undertake any
Remedial Action required by Environmental Laws to the extent that its obligation
to do so is being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such circumstances in
accordance with GAAP.
SECTION 5.10. Preparation of Environmental Reports. If a Default caused
by reason of a breach of Section 3.17 or 5.09 shall have occurred and be
continuing for more than 20 days without the Borrower or its Subsidiaries
commencing activities reasonably likely to cure such Default, at the written
request of the Required Lenders through the Administrative Agent, provide to the
Lenders within 45 days after such request, at the expense of the Borrower, an
environmental site assessment report regarding the matters which are the subject
of such default prepared by an environmental consulting firm reasonably
acceptable to the Administrative Agent and indicating the presence or absence of
Hazardous Materials and the estimated cost of any compliance or Remedial Action
in connection with such Default.
SECTION 5.11. Further Assurances. Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust) that may be required under applicable
law, or that the Required Lenders, the Administrative Agent or the Collateral
Agent may reasonably request, in order to effectuate the transactions
contemplated by the Loan Documents and in order to grant, preserve, protect and
perfect the validity and first priority of the security interests created or
intended to be created by the Security Documents. Holdings will cause any
subsequently acquired or organized Domestic Subsidiary to execute a Subsidiary
Guarantee Agreement, Indemnity Subrogation and Contribution Agreement and each
applicable Security Document in favor of the Collateral Agent. In addition, from
time to time, the Borrower will, at its cost and expense, promptly secure the
Obligations by pledging or creating, or causing to be pledged or created,
perfected security interests with respect to such of its assets and properties
as the Administrative Agent or the Required Lenders shall designate, including
the Mountain View Property if the sale thereof has not been consummated by the
ninetieth day after the Closing Date (it being understood that it is the intent
of the parties that the Obligations shall be secured by, among
68
63
other things, substantially all the assets of Holdings, the Borrower and the
Subsidiaries (including real and other properties acquired subsequent to the
Closing Date)). Such security interests and Liens will be created under the
Security Documents and other security agreements, mortgages, deeds of trust and
other instruments and documents in form and substance satisfactory to the
Collateral Agent, and Holdings or the Borrower shall deliver or cause to be
delivered to the Lenders all such instruments and documents (including legal
opinions, title insurance policies and lien searches) as the Collateral Agent
shall reasonably request to evidence compliance with this Section. The Borrower
agrees to provide such evidence as the Collateral Agent shall reasonably request
as to the perfection and priority status of each such security interest and
Lien.
SECTION 5.12. Interest Rate Protection. No later than the 60th day
after the Closing Date, the Borrower shall enter into, and for a minimum of two
years thereafter maintain, Interest Rate Protection Agreements acceptable to the
Administrative Agent that results in at least 50% of the aggregate principal
amount of the Borrower's Consolidated Indebtedness being effectively subject to
a fixed or maximum interest rate acceptable to the Administrative Agent.
SECTION 5.13. Fiscal Year Change. With respect to Holdings and the
Borrower, take all action necessary to change the fiscal year-end of each
thereof to the Sunday on or immediately preceding December 31 of each year, such
change to become effective as of December 31, 1999.
SECTION 5.14. Xxxxxxxxx Korea Transactions. (a) Make the Xxxxxxxxx
Korea Acquisition Loan to Xxxxxxxxx Korea and cause Xxxxxxxxx Korea to issue the
Xxxxxxxxx Korea Bond to the Borrower, in each case as soon as is permissible
under the laws of the Republic of Korea, but in no event later than April 17,
1999, and (b) deliver to the Administrative Agent copies of the Xxxxxxxxx Korea
Loan Agreement and the Xxxxxxxxx Korea Bond, each certified by a Responsible
Officer to be true and correct, promptly following the execution and delivery
thereof.
SECTION 5.15. Korean Stock. Cause Xxxxxxxxx California to deliver the
Xxxxxxxxx Korea Stock to the Collateral Agent as soon as is permissible under
the laws of the Republic of Korea.
SECTION 5.16. Survey of Utah Mortgaged Property. In the case of the
Borrower, no later than 90 days after the Closing Date, deliver to the
Collateral Agent a revised survey of the Mortgaged Property located in the State
of Utah, certified to the Lenders on which each call in the metes and bounds
description which is printed on the survey of the Utah Mortgaged Property
previously delivered to the Collateral Agent is set forth next to that portion
of the perimeter description to which it relates and which is otherwise
reasonably acceptable to the Collateral Agent.
SECTION 5.17. VAT Refund. With respect to any VAT Amount, diligently
pursue a refund thereof from the applicable Korean taxing authority as promptly
as practicable after any such payment is made by Xxxxxxxxx Korea.
SECTION 5.18. Zoning. Within 90 days after the Closing Date furnish the
Collateral Agent with one of the following: (i) written confirmation from the
applicable zoning commission or other appropriate Governmental Authority stating
that with respect to each Mortgaged Property as built it complies with existing
land use and zoning ordinances, regulations and restrictions applicable to such
property, (ii) an opinion from local counsel reasonably acceptable to the
Administrative Agent to the same effect as the written confirmation contemplated
by clause (i) above, or (iii) a zoning endorsement satisfactory to the
Administrative Agent in connection with the Collateral Agent's mortgagee title
insurance policy of such Mortgaged Property.
69
64
ARTICLE VI
Negative Covenants
Each of Holdings and the Borrower covenants and agrees with each Lender
that, so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document have been paid
in full and all Letters of Credit have been cancelled or have expired and all
amounts drawn thereunder have been reimbursed in full, unless the Required
Lenders shall otherwise consent in writing, neither Holdings nor the Borrower
will, nor will they cause or permit any of their respective Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the
other Loan Documents;
(b) Indebtedness of the Borrower pursuant to the New Senior
Subordinated Notes in an aggregate principal amount not to exceed
$300,000,000 less the aggregate amount of all repayments of New Senior
Subordinated Notes effected after the Closing Date;
(c) Indebtedness actually outstanding on the Closing Date and
listed on Schedule 6.01, but not any refinancings or renewals thereof;
provided that Capital Lease Obligations assumed in connection with the
Acquisition and set forth on Schedule 6.01 may be refinanced or renewed
so long as (i) such refinanced Capital Lease Obligations are in an
aggregate principal amount not greater than the aggregate principal
amount of the Capital Lease Obligations being renewed or refinanced,
plus the amount of any premiums required to be paid thereon and fees
and expenses associated therewith, (ii) such refinanced Capital Lease
Obligations have a later or equal final maturity and longer or equal
weighted average life than the Capital Lease Obligations being renewed
or refinanced and (iii) the covenants, events of default and other
provisions thereof (including any guarantees thereof) shall be, in the
aggregate, no less favorable to the Lenders than those contained in the
Capital Lease Obligations being renewed or refinanced;
(d) Indebtedness under Interest Rate Protection Agreements
entered into in compliance with Section 5.12, and such other
non-speculative Interest Rate Protection Agreements which may be
entered into from time to time by the Borrower and which the Borrower
in good faith believes will provide protection against fluctuations in
interest rates with respect to floating rate Indebtedness then
outstanding, and permitted to remain outstanding, pursuant to the other
provisions of this Section 6.01;
(e) Indebtedness evidenced by Capital Lease Obligations to the
extent permitted pursuant to Section 6.08; provided that in no event
shall the aggregate principal amount of Capital Lease Obligations
permitted by this paragraph (e) exceed $10,000,000 at any time
outstanding;
70
65
(f) Indebtedness subject to Liens permitted under Section
6.02(f), so long as the outstanding amount of such Indebtedness does
not exceed the amount provided in said Section 6.02(f);
(g) intercompany Indebtedness of the Borrower and its
Subsidiaries outstanding to the extent permitted by Section 6.04(f),
(g) and (j);
(h) in addition to any Indebtedness permitted by the preceding
paragraph (g), Indebtedness of any Wholly Owned Subsidiary to the
Borrower or another Wholly Owned Subsidiary constituting the purchase
price in respect of intercompany transfers of goods and services made
in the ordinary course of business to the extent not constituting
Indebtedness for borrowed money;
(i) Indebtedness under performance bonds, letter of credit
obligations to provide security for worker's compensation claims and
bank overdrafts, in each case incurred in the ordinary course of
business; provided that any obligations arising in connection with such
bank overdraft Indebtedness is extinguished within five Business Days;
(j) Indebtedness evidenced by Other Hedging Agreements entered
into pursuant to Section 6.04(e);
(k) Indebtedness incurred by Foreign Subsidiaries from time to
time after the Closing Date so long as the aggregate principal amount
of all Indebtedness (including trade letters of credit) incurred
pursuant to this paragraph (k) at any time outstanding does not exceed
the excess of (x) $30,000,000 over (y) the aggregate principal amount
of all Indebtedness (including trade letters of credit) of Foreign
Subsidiaries then outstanding pursuant to paragraph (c) of this Section
6.01, with no more than $15,000,000 of the Indebtedness permitted
pursuant to this paragraph (k) directly or indirectly guaranteed by
Holdings, the Borrower, or any Domestic Subsidiaries of Holdings or the
Borrower;
(l) Indebtedness of Holdings constituting junior subordinated
debentures issued in exchange for the Holdings Series A Preferred Stock
pursuant to the terms of such Holdings Series A Preferred Stock
("Holdings Junior Subordinated Debentures"), so long as (i) the
Leverage Ratio for purposes of determining the Applicable Percentage
shall be in Category 6 both before and after giving effect to the
incurrence of such Indebtedness, (ii) such Indebtedness shall in no
event be incurred to exchange in the aggregate more than 50% of the
Holdings Series A Preferred Stock issued on or prior to the Closing
Date and (iii) the Holdings Junior Subordinated Debentures shall be in
the form provided in the certificate of incorporation of Holdings as in
effect on the Closing Date;
(m) Indebtedness of Holdings pursuant to the Holdings
Subordinated Note; and
(n) additional Indebtedness of the Borrower and its
Subsidiaries to the extent not permitted by the foregoing clauses of
this Section 6.01 not to exceed $20,000,000 in aggregate principal
amount at any time outstanding.
71
66
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien
on any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, except:
(a) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due and payable or Liens for taxes,
assessments or governmental charges or levies being contested in good
faith and by appropriate proceedings for which adequate reserves have
been established in accordance with GAAP in the United States (or the
equivalent thereof in any country in which a Foreign Subsidiary is
doing business, as applicable);
(b) Liens in respect of property or assets of the Borrower or
any of its Subsidiaries imposed by law, which were incurred in the
ordinary course of business and do not secure Indebtedness for borrowed
money, such as carriers', warehousemen's, materialmen's, landlord's and
mechanics' liens and other similar Liens arising in the ordinary course
of business, and (i) which do not in the aggregate materially detract
from the value of the property or assets of Holdings and its
Subsidiaries, taken as a whole, or the Borrower and do not materially
impair the use thereof in the operation of the business of Holdings and
its Subsidiaries, taken as a whole, or the Borrower, or (ii) which are
being contested in good faith by appropriate proceedings, which
proceedings (or orders entered in connection with such proceedings)
have the effect of preventing the forfeiture or sale of the property or
assets subject to any such Lien;
(c) Liens in existence on the Closing Date and set forth on
Schedule 6.02 (including Liens set out on any applicable title
insurance policy on the Closing Date); provided that (i) the aggregate
principal amount of the Indebtedness, if any, secured by such Liens
does not increase and (ii) such Liens do not encumber any additional
assets or properties of Holdings or any of its Subsidiaries;
(d) Liens created pursuant to the Security Documents;
(e) Liens upon assets of the Borrower and its Subsidiaries
subject to Capital Lease Obligations to the extent permitted by Section
6.01; provided that (i) such Liens only serve to secure the payment of
Indebtedness arising under such Capital Lease Obligation and (ii) the
Lien encumbering the asset giving rise to the Capital Lease Obligation
does not encumber any other asset (other than proceeds thereof) of the
Borrower or any Subsidiary of the Borrower;
(f) Liens placed upon assets used in the ordinary course of
business of the Borrower or any of its Subsidiaries at the time of
acquisition thereof by the Borrower or any such Subsidiary or within 90
days thereafter to secure Indebtedness incurred to pay all or a portion
of the purchase price thereof; provided that (i) the aggregate
outstanding principal amount of all Indebtedness secured by Liens
permitted by this paragraph (f) shall not at any time exceed
$10,000,000 and (ii) in all events, the Lien encumbering the assets so
acquired does not encumber any other asset (other than proceeds
thereof) of the Borrower or such Subsidiary;
(g) easements, rights-of-way, restrictions (including zoning
restrictions), covenants encroachments, protrusions and other similar
charges or encumbrances, and minor title deficiencies, in each case
whether now or hereafter in existence, not securing Indebtedness
72
67
and not materially interfering with the conduct of the business of
Holdings and its Subsidiaries taken as a whole or the Borrower;
(h) Liens arising out of judgments or awards in respect of
which the Borrower or any of its Subsidiaries shall in good faith be
prosecuting an appeal or proceedings for review in respect of which
there shall be secured a subsisting stay of execution pending
such appeal or proceedings; provided that the aggregate amount of all
such judgments or awards (and any cash and the fair market value of any
property subject to such Liens) does not exceed $3,000,000 at any time
outstanding;
(i) Liens (other than any Lien imposed by ERISA) (i) incurred
or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, (ii) to secure the performance of tenders, statutory
obligations (other than excise taxes), surety, stay, customs and appeal
bonds, statutory bonds, bids, leases, government contracts, trade
contracts, performance and return of money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed
money) or (iii) arising by virtue of deposits made in the ordinary
course of business to secure liability for premiums to insurance
carriers; provided that the aggregate amount of deposits at any time
pursuant to clause (ii) and clause (iii) shall not exceed $1,000,000 in
the aggregate;
(j) any interest or title of a lessor, sublessor, licensee or
licensor under any lease or license agreement permitted by this
Agreement;
(k) Liens in favor of customs and revenue authorities arising
as a matter of law to secure the payment of customs duties in
connection with the importation of goods;
(l) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into
by the Borrower or any of its Subsidiaries in the ordinary course of
business in accordance with the past practices of the Borrower and its
Subsidiaries;
(m) Liens on assets of Foreign Subsidiaries; provided that (i)
such Liens do not extend to, or encumber, assets which constitute
Collateral or the capital stock of the Borrower or any of its
Subsidiaries, (ii) such Liens extending to the assets of any Foreign
Subsidiary secure only Indebtedness incurred by such Foreign Subsidiary
pursuant to Section 6.01(k) and (iii) in the case of Xxxxxxxxx Korea
and its subsidiaries, such Liens do not apply to any of the property,
plant or equipment or such persons; and
(n) Liens not otherwise permitted by the foregoing paragraphs
(a) through (m) to the extent attaching to properties and assets with
an aggregate fair value not in excess of, and securing liabilities not
in excess of, $10,000,000 in the aggregate at any time outstanding.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred unless (i) the sale of such
property is permitted by Section
73
68
6.05 and (ii) any Liens arising in connection with its use of such property are
permitted by Section 6.02(e).
SECTION 6.04. Investments, Loans and Advances. Directly or indirectly,
lend money or credit or make advances to any person, or purchase or acquire any
stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any other person, or purchase or own a futures contract
or otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, except that
the following shall be permitted:
(a) the Borrower and its Subsidiaries may acquire and hold
accounts receivables owing to any of them;
(b) the Borrower and its Subsidiaries may make loans and
advances in the ordinary course of business to their respective
employees so long as the aggregate principal amount thereof at any time
outstanding (determined without regard to any write-downs or write-offs
of such loans and advances) shall not exceed $5,000,000;
(c) the Borrower may enter into Interest Rate Protection
Agreements to the extent permitted in Section 6.01(d);
(d) Holdings, the Borrower and the Subsidiaries may consummate
the Transactions;
(e) the Borrower may enter into and perform its obligations
under Other Hedging Agreements entered into in the ordinary course of
business and so long as any such Other Hedging Agreement is not
speculative in nature and is (i) related to income derived from foreign
operations of the Borrower or any Subsidiary or otherwise related to
purchases permitted hereunder from foreign suppliers or (ii) entered
into to protect the Borrower and/or its Subsidiaries against
fluctuations in the prices of raw materials used in their businesses;
(f) any Wholly Owned Subsidiary may make intercompany loans to
the Borrower or any Wholly Owned Subsidiary and the Borrower may make
intercompany loans and advances to any Wholly Owned Subsidiary;
provided that any promissory notes evidencing such intercompany loans
shall be pledged (and delivered) by the Borrower or the respective
Domestic Wholly Owned Subsidiary that is the lender of such
intercompany loan as Collateral pursuant to the Pledge Agreement,
provided further that (i) neither the Borrower nor any Domestic
Subsidiaries of the Borrower may make loans to any Foreign Subsidiaries
of the Borrower pursuant to this paragraph (f) and (ii) any loans made
by any Foreign Subsidiaries to the Borrower or any of its Domestic
Subsidiaries pursuant to this paragraph (f) shall be subordinated to
the obligations of the Loan Parties pursuant to subordinated provisions
in substantially the form of Exhibit K;
(g) the Borrower may (i) make or cause to be made the
Xxxxxxxxx California Contribution, (ii) purchase the Xxxxxxxxx Korea
Bond, (iii) make the Xxxxxxxxx Korea Loan and (iv) make the VAT Loan,
and Xxxxxxxxx California may make the Xxxxxxxxx Korea Investment;
74
69
(h) the Borrower and its Subsidiaries may sell or transfer
amounts to the extent permitted by Section 6.05;
(i) the Borrower may establish Subsidiaries to the extent
permitted by Section 6.15;
(j) the Borrower and its Domestic Wholly Owned Subsidiaries
may make loans and advances to, or other investments in, Foreign
Subsidiaries of the Borrower so long as the aggregate amount of any
loans, advances or other investments at any time outstanding
(determined without regard to any write-downs or write-offs thereof)
pursuant to this paragraph (j) shall not exceed $30,000,000; and
(k) in addition to investments permitted by clauses (a)
through (j) above, the Borrower and its Subsidiaries may make
investments in Joint Ventures so long as the aggregate amount invested
pursuant to this paragraph (k) does not exceed $50,000,000 in the
aggregate.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. Wind up, liquidate or dissolve its affairs or enter into any
transaction of merger or consolidation, or convey, sell, lease or otherwise
dispose of (or agree to do any of the foregoing at any future time) all or any
part of its property or assets, or purchase or otherwise acquire (in one or a
series of related transactions) any part of the property or assets (other than
purchases or other acquisitions of inventory, materials, equipment and
intangible assets in the ordinary course of business) of any person (or agree to
do any of the foregoing at any future time), except that:
(a) Capital Expenditures by the Borrower and its Subsidiaries
shall be permitted to the extent not in violation of Section 6.08;
(b) each of the Borrower and its Subsidiaries may (i) in the
ordinary course of business, sell, lease or otherwise dispose of any
assets which, in the reasonable judgment of such person, are obsolete,
worn out or otherwise no longer useful in the conduct of such person's
business, provided that any assets sold or otherwise disposed pursuant
to this clause (b)(i) shall be replaced with new assets performing
substantially the same function and (ii) subject to Section 2.13(b),
sell, lease or otherwise dispose of any assets, provided that the
aggregate consideration received in respect of all assets subject to
sales or other dispositions pursuant to this clause (b)(ii) shall not
exceed $10,000,000 in any four fiscal quarters of the Borrower;
(c) investments may be made to the extent permitted by Section
6.04;
(d) each of the Borrower and its Subsidiaries may lease (as
lessee) real or personal property in the ordinary course of business
(so long as any such lease does not create a Capital Lease Obligation
except to the extent permitted by Section 6.01);
(e) each of the Borrower and its Subsidiaries may make sales
or transfers of inventory in the ordinary course of business and
consistent with past practices (including without limitation sales or
transfers of inventory by the Borrower to its Subsidiaries);
(f) the Borrower and its Subsidiaries may sell or discount, in
each case without recourse and in the ordinary course of business,
overdue accounts receivable arising in the
75
70
ordinary course of business, but only in connection with the compromise
or collection thereof consistent with customary industry practice (and
not as part of any bulk sale);
(g) licenses, cross-licenses or sublicenses by the Borrower
and its Subsidiaries of software, trademarks and other intellectual
property in the ordinary course of business and which do not materially
interfere with the business of Holdings and its Subsidiaries, taken as
a whole, or the Borrower shall be permitted;
(h) the Acquisition shall be permitted;
(i) the Borrower or any Domestic Wholly Owned Subsidiary of
the Borrower may transfer assets or lease to or acquire or lease assets
from the Borrower or any other Domestic Wholly Owned Subsidiary or any
Domestic Wholly Owned Subsidiary may be merged into the Borrower (as
long as the Borrower is the surviving corporation of such merger as a
Wholly Owned Subsidiary of) or any other Domestic Wholly Owned
Subsidiary of the Borrower;
(j) the Borrower and its Subsidiaries may incur Tools and
Molding Expenditures in an aggregate amount not to exceed $15,000,000
during any fiscal year; and
(k) the Borrower (or its Subsidiary that is the fee owner of
the Mountain View Property) shall be permitted to consummate the sale
of the Mountain View Property, so long as (i) such sale is for fair
market value (as determined in good faith by the Board of Directors of
the Borrower (or such Subsidiary)), (ii) such sale results in
consideration consisting of at least 85% (for this purpose, taking the
amount of cash and the fair market value of all noncash consideration,
as determined in good faith by the Borrower (or such Subsidiary)) cash,
(iii) such sale is consummated on or prior to the ninetieth day after
the Closing Date and (iv) there shall exist no Default or Event of
Default (both before and after giving effect thereto).
To the extent the Required Lenders waive the provisions of this Section 6.05
with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 6.05, such Collateral (unless sold to Holdings or a
Subsidiary of Holdings) shall be sold free and clear of the Liens created by the
Security Documents, and the Administrative Agent and Collateral Agent shall be
authorized to take any actions deemed appropriate in order to effect the
foregoing.
SECTION 6.06. Dividends. Authorize, declare or pay any Dividends with
respect to Holdings or any of its Subsidiaries, except that:
(a) any Subsidiary of the Borrower (i) may pay cash Dividends
to the Borrower or any Wholly Owned Subsidiary of the Borrower and (ii)
if such Subsidiary is not a Wholly Owned Subsidiary, may pay cash
Dividends to its shareholders generally so long as the Borrower or its
respective Subsidiary which owns the equity interest or interests in
the Subsidiary paying such Dividends receives at least its
proportionate share thereof (based upon its relative holdings of equity
interests in the Subsidiary paying such Dividends and taking into
account the relative preferences, if any, of the various classes of
equity interests in such Subsidiary);
76
71
(b) so long as there shall exist no Default or Event of
Default (both before and after giving effect to the payment thereof),
Holdings may repurchase outstanding shares of its common stock (or
options to purchase such common stock) following the death, disability,
retirement or termination of employment of employees, officers or
directors of Holdings or any of its Subsidiaries; provided that (i) all
amounts used to effect such repurchases are obtained by Holdings from a
substantially concurrent issuance of its common stock (or options to
purchase such common stock) to other employees, members of management,
executive officers or directors of Holdings or any of its Subsidiaries
or (ii) to the extent the proceeds used to effect any repurchase
pursuant to this clause (ii) are not obtained as described in preceding
clause (i), the aggregate amount of Dividends paid by Holdings pursuant
to this paragraph (b) (exclusive of amounts paid as described pursuant
to preceding clause (i)) shall not exceed $1,000,000 in any fiscal year
of Holdings; provided that, in the event that the maximum amount which
is permitted to be expended in respect of Dividends during any fiscal
year pursuant to this clause (b)(ii) is not fully expended during such
fiscal year, the maximum amount which may be expended during the
immediately succeeding fiscal year pursuant to this clause (b) (ii)
shall be increased by such unutilized amount;
(c) the Borrower may pay cash Dividends to Holdings for the
purpose of paying, so long as all proceeds thereof are promptly used by
Holdings to pay, its operating expenses incurred in the ordinary course
of business and other corporate overhead costs and expenses (including,
without limitation, legal and accounting expenses and similar
expenses); provided that the aggregate amount of Dividends paid by
Holdings pursuant to this clause (c) shall not exceed $750,000 in any
fiscal year of Holdings;
(d) the Borrower may pay cash Dividends to Holdings for the
purpose of paying, so long as all proceeds thereof are promptly used by
Holdings to pay, franchise taxes and Federal, state and local income
taxes and interest and penalties with respect thereto, if any, payable
by Holdings; provided that any refund shall be promptly returned by
Holdings to the Borrower;
(e) the Borrower may pay cash Dividends to Holdings for the
purpose of enabling Holdings to pay the Dividends referred to in clause
(b) above, so long as all proceeds thereof are promptly used by
Holdings to pay such Dividends; and
(f) the exchange of Holdings Junior Subordinated Debentures
for Holdings Series A Preferred Stock, to the extent permitted as
provided in Section 6.01(l), shall be permitted.
SECTION 6.07. Transactions with Affiliates. Enter into any transaction
or series of related transactions, whether or not in the ordinary course of
business, with any Affiliate of Holdings or any of its Subsidiaries, other than
in the ordinary course of business and on terms and conditions substantially as
favorable to Holdings or such Subsidiary as would reasonably be obtained by
Holdings or such Subsidiary at that time in a comparable arm's-length
transaction with a person other than an Affiliate, except that:
(a) Dividends may be paid to the extent provided in Section
6.06;
(b) loans may be made and other transactions may be entered
into between and among the Borrower, Holdings, the Subsidiaries and
their respective Affiliates to the extent permitted by Sections 6.01
and 6.04;
77
72
(c) customary fees may be paid to non-officer directors of
Holdings;
(d) the Borrower may pay management fees to Holdings from time
to time in an amount not in excess of Holdings' compensation expenses
for its employees;
(e) Holdings and its Subsidiaries may enter into the Operating
Agreements; and
(f) the Acquisition shall be effected.
SECTION 6.08. Capital Expenditures. (a) Make any Capital Expenditures,
except that (i) during the period (taken as one accounting period) from January
1, 1999, through and including December 31, 1999, the Borrower and its
Subsidiaries may make Capital Expenditures in an aggregate amount not to exceed
$90,000,000, (ii) during each of the fiscal years ending on or about December
31, 2000 and December 31, 2001 (each such fiscal year taken as one accounting
period), the Borrower and its Subsidiaries may make Capital Expenditures in an
aggregate amount not to exceed $125,000,000, (iii) during the fiscal year ending
on or about December 31, 2002 (taken as one accounting period), the Borrower and
its Subsidiaries may make Capital Expenditures in an aggregate amount not to
exceed $130,000,000 and (iv) during each fiscal year thereafter (taken as one
accounting period), the Borrower and its Subsidiaries may make Capital
Expenditures in an aggregate amount not to exceed $135,000,000.
(b) Notwithstanding anything to the contrary contained in paragraph (a)
above, to the extent that the aggregate amount of Capital Expenditures made by
the Borrower and its Subsidiaries pursuant to Section 6.08(a) in any fiscal year
of the Borrower (or shorter period as set forth in Section 6.08(a)(i)) is less
than the amount permitted by Section 6.08(a) with respect to such fiscal year
(or shorter period), the amount of such difference, but in no case more than
$25,000,000, may be carried forward and used to make Capital Expenditures in the
immediately succeeding fiscal year (after the full amount of Capital
Expenditures otherwise permitted to be made under Section 6.08(a) in such fiscal
year, without regard to the provisions of this paragraph (b), have been made);
provided that amounts once carried forward to such succeeding fiscal year shall
lapse and terminate at the end of such fiscal year.
(c) In addition to the Capital Expenditures permitted pursuant to
preceding paragraphs (a) and (b), the Borrower and its Subsidiaries may make
additional Capital Expenditures consisting of the reinvestment of proceeds of
(i) Casualty Proceeds or Condemnation Proceeds not required to be applied to
prepay the Loans pursuant to Section 2.13(f) and (ii) the sale of the Mountain
View Property.
78
73
SECTION 6.09. Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for any period of four consecutive fiscal
quarters, in each case taken as one accounting period, ended on the last day of
a fiscal quarter described below to be less than the amount set forth opposite
such fiscal quarter below:
Fiscal Quarter Ended
in, or Closest to Ratio
August 1999 through December 1999 2.25:1.0
March 2000 through September 2000 2.35:1.0
December 2000 through September 2001 2.75:1.0
December 2001 through September 2002 3.00:1.0
December 2002 through September 2003 3.25:1.0
December 2003 and thereafter 3.50:1.0
SECTION 6.10. Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters, in each case taken as one accounting period, ended on the last
day of any fiscal quarter set forth below to be less than the amount set forth
opposite such fiscal quarter below:
Fiscal Quarter Ended
in, or Closest to Ratio
August 1999 through September 2000 1.0:1.0
December 2000 through September 2001 1.1:1.0
December 2001 through September 2002 1.15:1.0
December 2002 and thereafter 1.2:1.0
SECTION 6.11. Maximum Leverage Ratio. Permit the Leverage Ratio at any
time during a fiscal quarter set forth below to be greater than the ratio set
forth opposite such fiscal quarter below:
Fiscal Quarter Ended
in, or Closest to Ratio
August 1999 through September 2000 4.5:1.0
December 2000 through September 2001 4.0:1.0
December 2001 through September 2002 3.5:1.0
December 2002 through September 2003 3.0:1.0
December 2003 and thereafter 2.5:1.0
SECTION 6.12. Limitation on Modifications of Indebtedness;
Modifications of Certificate of Incorporation, By-laws and Certain Other
Agreements, etc. (i) amend or modify, or permit the amendment or modification
of, any provision of existing Indebtedness or of any agreement (including,
without limitation, any purchase agreement, indenture, loan agreement or
security agreement) relating thereto other than any amendments or modifications
to Indebtedness which do not in any way materially adversely affect the
interests of the Lenders and are otherwise permitted under Section 6.01(c), (ii)
make (or give any notice in respect of) any payment of any nature
79
74
whatsoever (whether principal, interest or otherwise) with respect to, or any
payment (including any prepayment) on or redemption or acquisition for value of
the Holdings Subordinated Note or the Seller Note (except that (x) a redemption
required by the first sentence of Section 4(c) of the Seller Note shall be
permitted to the extent required in accordance with the terms of such first
sentence as in effect on the Closing Date and (y) a redemption or prepayment of
the Holdings Subordinated Note shall be permitted, in each case so long as all
proceeds used to make any such redemption or prepayment are received from a
Public Equity Offering by Holdings) or any Holdings Junior Subordinated
Debentures, (iii) make (or give any notice in respect thereof) any voluntary or
optional payment or prepayment on or redemption or acquisition for value of, or
any prepayment or redemption as a result of any asset sale, change of control or
similar event of, any Senior Subordinated Notes, (iv) amend or modify, or permit
the amendment or modification of, any provision of any Senior Subordinated
Notes, the Seller Note, the Holdings Subordinated Note or (after the issuance of
each thereof) the Xxxxxxxxx Korea Bond, the Xxxxxxxxx Korea Loan Agreement, any
Holdings Junior Subordinated Debentures or any agreement (including, without
limitation, any Senior Subordinated Note Document) relating thereto other than
amendments or modifications which do not in any way materially adversely affect
the interests of the Lenders and which are effected to make technical
corrections to the respective documentation, (v) amend or modify, or permit the
amendment or modification of, the Business Transfer Agreement, any Operating
Agreement, any other Transaction Document, the Recapitalization Agreement, the
NSC Asset Purchase Agreement or any of the operating agreements entered into in
connection therewith or any tax sharing agreement, in each case except for
amendments or modifications which are not in any way adverse in any material
respect to the interests of the Lenders or (vi) amend, modify or change its
Certificate of Incorporation (including, without limitation, by the filing or
modification of any certificate of designation) or By-laws, or any agreement
entered into by it, with respect to its capital stock (including any
shareholders' agreement), or enter into any new agreement with respect to its
capital stock, other than any amendments, modifications or changes pursuant to
this clause (vi) or any such new agreements pursuant to this clause (vi) which
do not in any way materially adversely affect in any material respect the
interests of the Lenders; provided that nothing in this clause (vi) shall
prevent Holdings or any of its Subsidiaries from amending its Certificate of
Incorporation or By-laws to provide indemnification to any officer or director
of Holdings or any such Subsidiary to the maximum extent permitted by the law of
its jurisdiction of incorporation; and provided further that Holdings may issue
such capital stock as is not prohibited by Section 6.14 and may amend its
Certificate of Incorporation to authorize any such capital stock. Without
limiting the foregoing provisions, it is understood and agreed by all parties
hereto that (i) for purposes of the Holdings Subordinated Note and Section 1 of
the Seller Note, the provisions of clause (ii) of the immediately preceding
sentence prohibit the payment of interest on the Holdings Subordinated Note and
the Seller Note in cash and (ii) for purposes of Section 4(f) of the Seller
Note, the provisions of clause (ii) of the immediately preceding sentence
prohibit all partial or total redemptions of the Seller Note, except to the
extent expressly otherwise provided in said clause (ii).
SECTION 6.13. Limitation on Certain Restrictions on Subsidiaries.
Directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Subsidiary to (a)
pay dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any Subsidiary
of the Borrower, or pay any Indebtedness owed to the Borrower or a Subsidiary of
the Borrower, (b) make loans or advances to the Borrower or any of the
Borrower's Subsidiaries or (c) transfer any of its properties or assets to the
Borrower or any of the Borrower's Subsidiaries, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) this
Agreement and the other Loan Documents, (iii) the Senior Subordinated Note
Documents, (iv) customary
80
75
provisions restricting subletting or assignment of any lease governing a
leasehold interest of the Borrower or a Subsidiary of the Borrower, (v)
customary provisions restricting assignment of any agreement entered into by the
Borrower or a Subsidiary of the Borrower in the ordinary course of business,
(vi) any holder of a Lien permitted by Section 6.02 may restrict the transfer of
the asset or assets subject thereto and (vii) restrictions which are not more
restrictive than those contained in this Agreement contained in any documents
governing any Indebtedness incurred after the Closing Date in accordance with
the provisions of this Agreement.
SECTION 6.14. Limitation on Issuance of Capital Stock. (a) With respect
to Holdings, issue any capital stock that is not Qualified Capital Stock.
(b) Holdings will not permit any of its Subsidiaries to issue any
capital stock (including by way of sales of treasury stock) or any options or
warrants to purchase, or securities convertible into, capital stock, except (i)
for transfers and replacements of then outstanding shares of capital stock, (ii)
for stock splits, stock dividends and additional issuances which do not decrease
the percentage ownership of Holdings or any of its Subsidiaries in any class of
the capital stock of such Subsidiary, (iii) in the case of Foreign Subsidiaries
of the Borrower, to qualify directors to the extent required by applicable law,
and (iv) Subsidiaries of the Borrower formed after the Closing Date pursuant to
Section 6.15 may issue capital stock to the Borrower or the respective
Subsidiary of the Borrower which is to own such stock. All capital stock issued
in accordance with this Section 6.14(b) shall, to the extent required by the
Pledge Agreement, be delivered to the Collateral Agent for pledge pursuant to
the Pledge Agreement.
SECTION 6.15. Limitation on Creation of Subsidiaries. Establish, create
or acquire any additional Subsidiaries without the prior written consent of the
Required Lenders; provided that the Borrower may establish or create one or more
Wholly Owned Subsidiaries of the Borrower without such consent so long as (a)
100% of the capital stock of any new Domestic Subsidiary (or all capital stock
of any new Foreign Subsidiary which is owned by any Loan Party, except that not
more than 65% of the voting stock of any such Foreign Subsidiary shall be
required to be so pledged) is upon the creation or establishment of any such new
Subsidiary pledged and delivered to the Collateral Agent for the benefit of the
Secured Parties under the Pledge Agreement and (b) upon the creation or
establishment of any such new Domestic Subsidiary such Domestic Subsidiary
becomes a party to the applicable Security Documents in accordance with Section
5.11 and the other Loan Documents.
SECTION 6.16. Business. (a) With respect to Holdings, engage in any
business activities or have any assets or liabilities, other than (i) its
ownership of the capital stock of the Borrower and liabilities incident thereto,
including its liabilities pursuant to the Pledge Agreement and its guarantee
pursuant to the Parent Guarantee Agreement and its guarantee of the Senior
Subordinated Notes, (ii) its obligations pursuant to the Seller Note, the
Holdings Subordinated Note, the Holdings Series A Preferred Stock and the
Holdings Junior Subordinated Debentures, if issued and (iii) its employment of
members of management of the Borrower.
(b) With respect to the Borrower and its Subsidiaries, engage (directly
or indirectly) in any business other than the business in which the Borrower and
its Subsidiaries are engaged on the Closing Date and other businesses reasonably
related thereto.
81
76
SECTION 6.17. Designated Senior Indebtedness. Designate any
indebtedness as "Designated Senior Indebtedness" for purposes of the Senior
Subordinated Note Indentures unless the Required Lenders specifically consent
thereto in writing.
SECTION 6.18. Fiscal Year. With respect to Holdings and the Borrower,
change its fiscal year-end other than as provided in Section 5.13.
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings or issuances of Letters of
Credit hereunder, or any representation, warranty, statement or information
contained in any report, certificate, financial statement or other instrument
furnished in connection with or pursuant to any Loan Document, shall prove to
have been false or misleading in any material respect when so made, deemed made
or furnished;
(b) default shall be made in the payment of any principal of any Loan
or the reimbursement with respect to any L/C Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan or
any Fee or L/C Disbursement or any other amount (other than an amount referred
to in (b) above) due under any Loan Document, when and as the same shall become
due and payable, and such default shall continue unremedied for a period of
three Business Days;
(d) default shall be made in the due observance or performance by
Holdings, the Borrower or any Subsidiary of any covenant, condition or agreement
contained in Section 5.01(a), 5.05 or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by
Holdings, the Borrower or any Subsidiary of any covenant, condition or agreement
contained in any Loan Document (other than those specified in (b), (c) or (d)
above) and such default shall continue unremedied or shall not be waived for a
period of 20 days after written notice thereof from the Administrative Agent or
any Lender to the Borrower;
(f) Holdings, the Borrower or any Subsidiary shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any Indebtedness
(other than the Obligations) in a principal amount in excess of $5,000,000, when
and as the same shall become due and payable, or (ii) fail to observe or perform
any other term, covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any such Indebtedness if the effect of any
failure referred to in this clause (ii) is to cause, or to permit the holder or
holders of such Indebtedness or a trustee on
82
77
its or their behalf (with or without the giving of notice, the lapse of time or
both) to cause, such Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of Holdings, the Borrower or any Subsidiary, or of a substantial part
of the property or assets of Holdings, the Borrower or a Subsidiary, under Title
11 of the United States Code, as now constituted or hereafter amended, or any
other Federal, state or foreign bankruptcy, insolvency, receivership or similar
law, (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, the Borrower or any Subsidiary or
for a substantial part of the property or assets of Holdings, the Borrower or a
Subsidiary or (iii) the winding-up or liquidation of Holdings, the Borrower or
any Subsidiary; and such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of the foregoing shall
be entered;
(h) Holdings, the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11 of
the United States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described in
(g) above, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings, the
Borrower or any Subsidiary or for a substantial part of the property or assets
of Holdings, the Borrower or any Subsidiary, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its debts as they become
due or (vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 shall be rendered against Holdings, the Borrower,
any Subsidiary or any combination thereof and the same shall remain undischarged
for a period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor
to levy upon assets or properties of Holdings, the Borrower or any Subsidiary to
enforce any such judgment;
(j) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other such ERISA Events, could
reasonably be expected to result in liability of the Borrower and its ERISA
Affiliates in an aggregate amount exceeding $1,000,000;
(k) any security interest purported to be created by any Security
Document shall cease to be, or shall be asserted by the Borrower or any other
Loan Party not to be, a valid, perfected, first priority (except as otherwise
expressly provided in this Agreement or such Security Document) security
interest in the securities, assets or properties covered thereby, except to the
extent that any such loss of perfection or priority results from the failure of
the Collateral Agent to maintain possession of certificates representing
securities pledged under the Pledge Agreement and except to the extent that such
loss is covered by a lender's title insurance policy and the related insurer
promptly after such loss shall have acknowledged in writing that such loss is
covered by such title insurance policy;
83
78
(l) any of the Obligations shall cease to constitute "Senior
Indebtedness" under and as defined in either Senior Subordinated Note Indenture
or under the Holdings Subordinated Note or the Holdings Junior Subordinated
Debentures, if issued; or
(m) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to Holdings or
the Borrower described in paragraph (g) or (h) above), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrower,
take either or both of the following actions, at the same or different times:
(i) terminate forthwith the Commitments and (ii) declare the Loans then
outstanding to be forthwith due and payable in whole or in part, whereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall become
forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Borrower,
anything contained herein or in any other Loan Document to the contrary
notwithstanding; and in any event with respect to Holdings or the Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
ARTICLE VIII
The Administrative Agent and the Collateral Agent
In order to expedite the transactions contemplated by this Agreement,
Credit Suisse First Boston is hereby appointed to act as Administrative Agent
and Collateral Agent on behalf of the Lenders and the Issuing Bank (for purposes
of this Article VIII, the Administrative Agent and the Collateral Agent are
referred to collectively as the "Agents"). Each of the Lenders and each assignee
of any such Lender, hereby irrevocably authorizes the Agents to take such
actions on behalf of such Lender or assignee or the Issuing Bank and to exercise
such powers as are specifically delegated to the Agents by the terms and
provisions hereof and of the other Loan Documents, together with such actions
and powers as are reasonably incidental thereto. The Administrative Agent is
hereby expressly authorized by the Lenders and the Issuing Bank, without hereby
limiting any implied authority, (a) to receive on behalf of the Lenders and the
Issuing Bank all payments of principal of and interest on the Loans, all
payments in respect of L/C Disbursements and all other amounts due to the
Lenders hereunder, and promptly to distribute to each Lender or the Issuing Bank
its proper share of each payment so received; (b) to give notice on behalf of
each of the Lenders to the Borrower of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by the
Borrower or any other Loan Party pursuant to this Agreement or the other Loan
Documents as received by the Administrative Agent. Without limiting the
generality of the foregoing, the Agents are hereby expressly authorized to
execute any and all documents (including releases and supplements) with
84
79
respect to the Collateral and the rights of the Secured Parties with respect
thereto, as contemplated by and in accordance with the provisions of this
Agreement and the Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents, instruments or
agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility to the Borrower or any other
Loan Party on account of the failure of or delay in performance or breach by any
Lender or the Issuing Bank of any of its obligations hereunder or to any Lender
or the Issuing Bank on account of the failure of or delay in performance or
breach by any other Lender or the Issuing Bank or the Borrower or any other Loan
Party of any of their respective obligations hereunder or under any other Loan
Document or in connection herewith or therewith. Each of the Agents may execute
any and all duties hereunder by or through agents or employees and shall be
entitled to rely upon the advice of legal counsel selected by it with respect to
all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any
duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor. If no successor shall have been so appointed by
the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Agent gives notice of its resignation, then the retiring
Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a
bank with an office in New York, New York, having a combined capital and surplus
of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance
of any appointment as Agent hereunder by a successor bank, such successor shall
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent and the retiring Agent shall be discharged from its duties
and obligations hereunder. After the Agent's resignation hereunder, the
provisions of this Article and Section 9.05 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend
85
80
money to and generally engage in any kind of business with Holdings, the
Borrower or any Subsidiary or other Affiliate thereof as if it were not an
Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the
amount of its pro rata share (based on the aggregate amount of its outstanding
Term Loans and Revolving Credit Commitment hereunder) of any reasonable expenses
incurred for the benefit of the Lenders by the Agents, including reasonable
counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders, that shall not have been reimbursed by the Borrower
and (b) to indemnify and hold harmless each Agent and any of its directors,
officers, employees or agents, on demand, in the amount of such pro rata share,
from and against any and all liabilities, taxes, obligations, losses, damages,
penalties, actions, judgments, suits, costs, and reasonable expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by or asserted against it in its capacity as Agent or any of them in any way
relating to or arising out of this Agreement or any other Loan Document or any
action taken or omitted by it or any of them under this Agreement or any other
Loan Document, to the extent the same shall not have been reimbursed by the
Borrower or any other Loan Party, provided that no Lender shall be liable to an
Agent or any such other indemnified person for any portion of such liabilities,
taxes, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Agent or any of its directors, officers,
employees or agents. Each Revolving Credit Lender agrees to reimburse the
Issuing Bank and its directors, employees and agents, in each case, to the same
extent and subject to the same limitations as provided above for the Agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder. Each of the parties
hereto acknowledge and agrees that none of the Syndication Agent or either
Documentation Agent shall have any duties, responsibilities, obligations or
liabilities, as such, hereunder or under the other Loan Documents.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower or Holdings, to it at 000 Xxxxxxx
Xxxxxx, Xxxxx Xxxxxxxx, Xxxxx 00000, Attention of Xxxxxxx Xxxxx
(Telecopy No. (000) 000-0000) and Xxxxxx
Xxxxx (Telecopy No. (000) 000-0000);
86
81
(b) if to the Administrative Agent, to Credit Suisse First
Boston, Eleven Madison Avenue, New York, New York 10010, Attention of
Agency Administration (Telecopy No. (000) 000-0000); and
(c) if to a Lender, to it at its address (or telecopy number)
set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant
to which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower or Holdings herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the Issuing Bank and shall survive the
making by the Lenders of the Loans and the issuance of Letters of Credit by the
Issuing Bank, regardless of any investigation made by the Lenders or the Issuing
Bank or on their behalf, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any Fee or any other
amount payable under this Agreement or any other Loan Document is outstanding
and unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not been terminated. The provisions of Sections 2.14, 2.16, 2.20 and 9.05
shall remain operative and in full force and effect regardless of the expiration
of the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the expiration of the Commitments,
the expiration of any Letter of Credit, the invalidity or unenforceability of
any term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, the Collateral
Agent, any Lender or the Issuing Bank.
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower, Holdings and the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective permitted successors and
assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrower, Holdings, the
Administrative Agent, the Issuing Bank or the Lenders that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate or Related Fund of such Lender, (x) the Borrower and the
Administrative Agent (and, in the case of any assignment of a Revolving Credit
Commitment, the Issuing Bank and the Swingline Lender) must give their prior
written consent to such assignment (which consent shall not
87
82
be unreasonably withheld or delayed); provided, however, that the consent of the
Borrower shall not be required to any such assignment during the continuance of
any Event of Default described in subsection (g) or (h) of Article VII and (y)
the amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 (or, if less, the entire remaining amount of such Lender's
Commitment) or such lesser amount as the Borrower and the Administrative Agent
may from time to time agree (such agreement to be conclusively evidenced by the
execution of the related Assignment and Acceptance), (ii) the parties to each
such assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together (except in the case of an assignment to an
Affiliate or a Related Fund) with a processing and recordation fee of $3,500 and
(iii) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Upon acceptance and
recording pursuant to paragraph (e) of this Section 9.04, from and after the
effective date specified in each Assignment and Acceptance, (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement and (B) the assigning Lender thereunder shall, to the
extent of the interest assigned by 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 Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.16,
2.20 and 9.05, as well as to any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Term Loan Commitment and Revolving Credit Commitment, and the outstanding
balances of its Term Loans and Revolving Loans, in each case without giving
effect to assignments thereof which have not become effective, are as set forth
in such Assignment and Acceptance, (ii) except as set forth in (i) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements referred
to in Section 3.05(a) or delivered pursuant to Section 5.04 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Administrative Agent,
the Collateral Agent, such assigning Lender 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
this Agreement; (vi) such assignee appoints and authorizes the Administrative
Agent and the Collateral Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Administrative
Agent and the Collateral Agent, respectively, by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vii) such
88
83
assignee agrees that it will perform in accordance with their terms all the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive and the Borrower, the Administrative Agent, the Issuing Bank, the
Collateral Agent and the Lenders may treat each person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Bank, the Collateral Agent
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrower, the Swingline
Lender, the Issuing Bank and the Administrative Agent to such assignment, the
Administrative Agent shall (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Lenders, the Swingline Lender and the Issuing Bank. No
assignment shall be effective unless it has been recorded in the Register as
provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the Swingline
Lender, the Issuing Bank or the Administrative Agent sell participations to one
or more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.14, 2.16 and 2.20 to the same extent as if they were Lenders and (iv) the
Borrower, the Administrative Agent, the Issuing Bank and the Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrower relating to the
Loans or L/C Disbursements and to approve any amendment, modification or waiver
of any provision of this Agreement (other than amendments, modifications or
waivers decreasing any fees payable hereunder or the amount of principal of or
the rate at which interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans,
increasing or extending the Commitments or releasing any Guarantor or all or any
substantial part of the Collateral).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential
89
84
information on terms no less restrictive than those applicable to the Lenders
pursuant to Section 9.17.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to secure extensions of credit to such Lender or in support
of obligations owed by such Lender; provided that no such assignment shall
release a Lender from any of its obligations hereunder or substitute any such
assignee for such Lender as a party hereto.
(i) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPC"), identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrower, the option to provide to the
Borrower all or any part of any Loan that such Granting Lender would otherwise
be obligated to make to the Borrower pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to make any Loan and
(ii) if an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPC, it will not institute
against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this Section 9.04, any SPC
may (i) with notice to, but without the prior written consent of, the Borrower
and the Administrative Agent and without paying any processing fee therefore,
assign all or a portion of its interests in any Loans to the Granting Lender or
to any financial institutions (consented to by the Borrower and Administrative
Agent) providing liquidity and/or credit support to or for the account of such
SPC to support the funding or maintenance of Loans and (ii) disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPC.
(j) Neither Holdings nor the Borrower shall assign or delegate any of
its rights or duties hereunder without the prior written consent of the
Administrative Agent, the Issuing Bank and each Lender, and any attempted
assignment without such consent shall be null and void.
(k) In the event that Standard & Poor's Ratings Group, Xxxxx'x
Investors Service, Inc., and Xxxxxxxx'x BankWatch (or InsuranceWatch Ratings
Service, in the case of Lenders that are insurance companies (or Best's
Insurance Reports, if such insurance company is not rated by Insurance Watch
Ratings Service)) shall, after the date that any Lender becomes a Revolving
Credit Lender, downgrade the long-term certificate deposit ratings of such
Lender, and the resulting ratings shall be below BBB-, Baa3 and C (or BB, in the
case of a Lender that is an insurance company (or B, in the case of an insurance
company not rated by InsuranceWatch Ratings Service)), then the Issuing Bank
shall have the right, but not the obligation, at its own expense, upon notice to
such Lender and the Administrative Agent, to replace (or to request the Borrower
to use its reasonable efforts to replace) such Lender with an assignee (in
accordance with and subject to the restrictions contained in paragraph (b)
above), and such Lender hereby agrees to transfer and assign without
90
85
recourse (in accordance with and subject to the restrictions contained in
paragraph (b) above) all its interests, rights and obligations in respect of its
Revolving Credit Commitment to such assignee; provided, however, that (i) no
such assignment shall conflict with any law, rule and regulation or order of any
Governmental Authority and (ii) the Issuing Bank or such assignee, as the case
may be, shall pay to such Lender in immediately available funds on the date of
such assignment the principal of and interest accrued to the date of payment on
the Loans made by such Lender hereunder and all other amounts accrued for such
Lender's account or owed to it hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower and Holdings agree,
jointly and severally, to pay all out-of-pocket expenses incurred by the
Administrative Agent, the Collateral Agent, the Swingline Lender and the Issuing
Bank in connection with the syndication of the credit facilities provided for
herein and the preparation and administration of this Agreement and the other
Loan Documents or in connection with any amendments, modifications or waivers of
the provisions hereof or thereof (whether or not the transactions hereby or
thereby contemplated shall be consummated) or incurred by the Administrative
Agent, the Collateral Agent or any Lender in connection with the enforcement or
protection of its rights in connection with this Agreement and the other Loan
Documents or in connection with the Loans made or Letters of Credit issued
hereunder, including the fees, charges and disbursements of Cravath, Swaine &
Xxxxx, counsel for the Administrative Agent and the Collateral Agent, and, in
connection with any such enforcement or protection, the fees, charges and
disbursements of any other counsel for the Administrative Agent, the Collateral
Agent or any Lender.
(b) The Borrower and Holdings agree, jointly and severally, to
indemnify the Administrative Agent, the Collateral Agent, each Lender and the
Issuing Bank, each Affiliate of any of the foregoing persons and each of their
respective directors, officers, trustees, employees and agents (each such person
being called an "Indemnitee") against, and to hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel fees, charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or as
a result of (i) the execution or delivery of this Agreement or any other Loan
Document or any agreement or instrument contemplated thereby, the performance by
the parties thereto of their respective obligations thereunder or the
consummation of the Transactions and the other transactions contemplated
thereby, (ii) the use of the proceeds of the Loans or issuance of Letters of
Credit, (iii) any claim, litigation, investigation or proceeding relating to any
of the foregoing, whether or not any Indemnitee is a party thereto, or (iv) any
actual or alleged presence or Release of Hazardous Materials on any property
owned or operated by the Borrower or any of the Subsidiaries, or any
Environmental Claim related in any way to the Borrower or the Subsidiaries;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the expiration
of any Letter of Credit, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent, the Collateral Agent, any
Lender or the Issuing Bank. All amounts due under this Section 9.05 shall be
payable on written demand therefor accompanied by reasonable documentation with
respect to any reimbursement, indemnification or other amount requested.
91
86
SECTION 9.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, except to the extent prohibited by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower or Holdings against any of and all
the obligations of the Borrower or Holdings now or hereafter existing under this
Agreement and other Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or such other
Loan Document and although such obligations may be unmatured. The rights of each
Lender under this Section 9.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF
COMMERCE, PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT
GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank in
exercising any power or right hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower or any other Loan Party therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Borrower or Holdings in
any case shall entitle the Borrower or Holdings to any other or further notice
or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower, Holdings and the Required Lenders; provided,
however, that no such agreement shall (i) decrease the principal amount of, or
extend the maturity of or any scheduled principal payment date or date for the
payment of any interest on any Loan or any date for reimbursement of an L/C
Disbursement, or waive or excuse any such payment or any part thereof, or
decrease the rate of interest on any Loan or L/C Disbursement, without the prior
written consent of each Lender affected thereby, (ii) change or extend the
Commitment or decrease or extend the date for payment of the Commitment Fees of
any Lender without the prior written consent of such Lender, (iii) amend or
modify the pro rata requirements of Section 2.17, the provisions of Section
9.04(j), the provisions of this Section 9.08, the definition of the term
"Required Lenders" or release any Guarantor (other than in connection
92
87
with a transaction permitted hereunder) or all or any substantial part of the
Collateral, without the prior written consent of each Lender, (iv) change the
provisions of any Loan Document in a manner that by its terms adversely affects
the rights in respect of payments due to Lenders holding Tranche A Term Loans,
Tranche B Term Loans or Revolving Loans (as used in this Section, each a "Class"
of Loans) differently from the rights in respect of payments due to Lenders
holding any other Class of Loans without the prior written consent of Lenders
holding a majority of the aggregate outstanding principal amount of the Loans
(or, if no Revolving Loans are outstanding, the Revolving Commitments) of the
adversely affected Class of Loans, (v) change the rights of the Lenders holding
Tranche B Term Loans to reject prepayments under Section 2.13(j) without the
prior written consent of the Lenders holding a majority of the aggregate
outstanding principal amount of the Tranche B Term Loans or (vi) amend or modify
the protections afforded to an SPC pursuant to the provisions of Section 9.04(i)
without the written consent of such SPC; provided further that no such agreement
shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline
Lender hereunder or under any other Loan Document without the prior written
consent of the Administrative Agent, the Collateral Agent, the Issuing Bank or
the Swingline Lender, respectively.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and other
amounts which are treated as interest on such Loan or participation in such L/C
Disbursement under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan or
participation but were not payable as a result of the operation of this Section
9.09 shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or participations or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
SECTION 9.10. Entire Agreement. This Agreement, the Fee Letter and the
other Loan Documents constitute the entire contract between the parties relative
to the subject matter hereof. Any other previous agreement among the parties
with respect to the subject matter hereof is superseded by this Agreement and
the other Loan Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any party other than
the parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
93
88
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each of
Holdings and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent, the Collateral Agent, the Issuing Bank or
any Lender may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against the Borrower, Holdings or their
respective properties in the courts of any jurisdiction.
(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or here after have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
94
89
SECTION 9.16. Judgment Currency. (a) The obligations of the Borrower
and the other Loan Parties hereunder and under the other Loan Documents to make
payments in dollars (the "Obligation Currency") shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency, except to the
extent that such tender or recovery results in the effective receipt by the
Administrative Agent or a Lender or the Issuing Bank of the full amount of the
Obligation Currency expressed to be payable to the Administrative Agent or such
Lender or the Issuing Bank under this Agreement or the other Loan Documents. If,
for the purpose of obtaining or enforcing judgment against the Borrower or any
other Loan Party or in any court or in any jurisdiction, it becomes necessary to
convert into or from any currency other than the Obligation Currency (such other
currency being hereinafter referred to as the "Judgment Currency") an amount due
in the Obligation Currency, the conversion shall be made at the rate of exchange
(as quoted by the Administrative Agent or if the Administrative Agent does not
quote a rate of exchange on such currency, by a known dealer in such currency
designated by the Administrative Agent) determined, in each case, as of the date
immediately preceding the day on which the judgment is given (such Business Day
being hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, the Borrower covenants and agrees to pay, or cause to be paid, as a
separate obligation and notwithstanding any judgment, such additional amounts,
if any (but in any event not a lesser amount), as may be necessary to ensure
that the amount paid in the Judgment Currency, when converted at the rate of
exchange prevailing on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the amount of Judgment
Currency stipulated in the judgment or judicial award at the rate of exchange
prevailing on the Judgment Currency Conversion Date.
(c) For purposes of determining the rate of exchange for this Section,
such amounts shall include any premium and costs payable in connection with the
purchase of the Obligation Currency.
SECTION 9.17. Confidentiality. The Administrative Agent, the Collateral
Agent, the Issuing Bank and each of the Lenders agrees to keep confidential (and
to use its best efforts to cause its respective agents and representatives to
keep confidential) the Information (as defined below) and all copies thereof,
extracts therefrom and analyses or other materials based thereon, except that
the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender
shall be permitted to disclose Information (a) to such of its respective
officers, directors, employees, agents, affiliates and representatives as need
to know such Information, (b) to a potential assignee or participant of such
Lender or any direct or indirect contractual counterparty in any swap agreement
relating to the Loans or such potential assignee's or participant's or
counterparty's advisors who need to know such Information (provided that any
such potential assignee or participant or counterparty shall, and shall use its
best efforts to cause its advisors to, keep confidential all such information on
the terms set forth in this Section 9.17, (c) to the extent requested by any
regulatory authority, (d) to the extent otherwise required by applicable laws
and regulations or by any subpoena or similar legal process, (e) in connection
with any suit, action or proceeding relating to the enforcement of its rights
hereunder or under the other Loan Documents or (f) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section 9.17 or (ii) becomes available to the Administrative Agent, the
Issuing Bank, any Lender or the Collateral Agent on a nonconfidential basis from
a source other than the Borrower or Holdings. For the purposes of this Section,
"Information" shall mean all financial statements, certificates, reports,
agreements and information (including all analyses, compilations and studies
prepared by the Administrative Agent, the
95
90
Collateral Agent, the Issuing Bank or any Lender based on any of the foregoing)
that are received from the Borrower or Holdings and related to the Borrower or
Holdings, any shareholder of the Borrower or Holdings or any employee, customer
or supplier of the Borrower or Holdings, other than any of the foregoing that
were available to the Administrative Agent, the Collateral Agent, the Issuing
Bank or any Lender on a nonconfidential basis prior to its disclosure thereto by
the Borrower or Holdings, and which are in the case of Information provided
after the date hereof, clearly identified at the time of delivery as
confidential. The provisions of this Section 9.17 shall remain operative and in
full force and effect regardless of the expiration and term of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXXXXX SEMICONDUCTOR
CORPORATION,
by
--------------------------------
Name:
Title:
FSC SEMICONDUCTOR CORPORATION,
by
--------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
individually, and as
Administrative Agent,
Collateral Agent, Swingline
Lender and an Issuing Bank,
by
--------------------------------
Name:
Title:
by
--------------------------------
Name:
Title:
96
91
SALOMON BROTHERS HOLDING
COMPANY INC, individually, and as
Syndication Agent,
by:
------------------------------------
Name:
Title:
ABN AMRO BANK NV, individually, and as a
Documentation Agent,
by:
------------------------------------
Name:
Title:
FLEET NATIONAL BANK, individually, as an
Issuing Bank and as a Documentation Agent,
by:
------------------------------------
Name:
Title:
(OTHER BANKS),
by:
------------------------------------
Name:
Title:
97
SCHEDULE 1.01(A)
MORTGAGED PROPERTIES
================================================================================
Owner Interest Held Property Address
--------------------------------------------------------------------------------
3333 West 0000 Xxxxx
Xxxxxxxx Xxx Xxxxxx Xxxx Xxxxxx, Xxxx
--------------------------------------------------------------------------------
000 Xxxxxxx Xxx.
Borrower Fee Simple South Portland, Maine
================================================================================
98
SCHEDULE 1.01(B)
SUBSIDIARY GUARANTORS
Xxxxxxxxx Semiconductor Corporation of California
99
Schedule 2.01
Commitments
-----------------------------------------------------------------------------------------------
Contact Person, Telephone and
Lender Telecopy Number Commitments
------ --------------- -----------
-----------------------------------------------------------------------------------------------
CREDIT SUISSE FIRST Xxxxx Xxxxxxx Revolving: $8,000,000.00
BOSTON Telephone: 000-000-0000 Tranche A: S8,000,000.00
Telecopy: 000-000-0000 Tranche B: $113,750,000.00
-----------------------------------------------------------------------------------------------
SALOMON BROTHERS HOLDING Xxxx Xxxx Revolving: S7,500,000.00
COMPANY INC Telephone: 000-000-0000 Tranche A: $7,500,000.00
Telecopy: 000-000-0000 Tranche B: $0
-----------------------------------------------------------------------------------------------
ABN AMRO BANK NV Revolving: $7,500,000.00
Xxxxx Xxxxxx Telephone: Tranche A: $7,500,000.00
000-000-0000 Telecopy: 000-000-0000 Tranche B: $0
-----------------------------------------------------------------------------------------------
FLEET NATIONAL BANK Xxxx Xxxxxxxxxx Revolving: $7,500,000.00
Telephone: 000-000-0000 Tranche A: $7,500,000.00
Telecopy: 000-000-0000 Tranche B: $0
-----------------------------------------------------------------------------------------------
FUJI BANK LIMITED, NEW YORK Xxxxx Xxx Revolving: $7,500,000.00
BRANCH Telephone: 000-000-0000 Tranche A: $7,500,000.00
Telecopy: 000-000-0000 Tranche B: $0
-----------------------------------------------------------------------------------------------
XXXXXX FINANCIAL, INC. K. Xxxxx Xxxxxxxxx Revolving: $7,500,000.00
Telephone: 000-000-0000 Tranche A: $7,500,000.00
Telecopy: 000-000-0000 Tranche B: $0
-----------------------------------------------------------------------------------------------
IBM CREDIT CORPORATION Xxxxxx Xxxxx Revolving: $7,500,000.00
Telephone: 000-000-0000 Tranche A: $7,500,000.00
Telecopy: 000-000-0000 Tranche B: $0
-----------------------------------------------------------------------------------------------
BANKBOSTON, N.A. Xxxx Xxxxxx Revolving: S6,000,000.00
Telephone: 000-000-0000 Tranche A: $6,000,000.00
Telecopy: 000-000-0000 Tranche B: $0
-----------------------------------------------------------------------------------------------
BANK OF MONTREAL Xxx Xxxxxx Revolving: $6,000,000.00
Telephone: 000-000-0000 Tranche A: $6,000,000.00
Telecopy: 000-000-0000 Tranche B: $0
-----------------------------------------------------------------------------------------------
BANK OF SCOTLAND Xxxx Xxxxxx Revolving: $6,000,000.00
Telephone: 000-000-0000 Tranche A: $6,000,000.00
Telecopy: 000-000-0000 Tranche B: $0
-----------------------------------------------------------------------------------------------
GENERAL ELECTRIC CAPITAL Xxx Xxxxxx Revolving: $6,000,000.00
CORPORATION Telephone: 000-000-0000 Tranche A: $6,000,000.00
Telecopy: 000-000-0000 Tranche B: $0
-----------------------------------------------------------------------------------------------
100
-----------------------------------------------------------------------------------------------
Contact Person, Telephone and
Lender Telecopy Number Commitments
------ --------------- -----------
-----------------------------------------------------------------------------------------------
THE MITSUBUSHI TRUST
AND BANKING F. Xxxxx Xxxxxxx Revolving: S6,000,000.00
CORPORATION, LOS Telephone: 000-000-0000 Tranche A: S6,000,000.00
ANGELES AGENCY Telecopy: 000-000-0000 Tranche B: $0
-----------------------------------------------------------------------------------------------
XXXXXX XXXXXXX SENIOR Xxxxxx Xxxxxxx Revolving: $6,000,000.00
FUNDING, INC. Telephone: 000-000-0000 Tranche A: $6,000,000.00
Telecopy: 000-0000-0000 Tranche B: $0
-----------------------------------------------------------------------------------------------
THE BANK OF NOVA SCOTIA Xxxxx Xxxxx Revolving: $6,000,000.00
Telephone: 000-000-0000 Tranche A: $6,000,000.00
Telecopy: 000-000-0000 Tranche B: $0
-----------------------------------------------------------------------------------------------
TRANSAMERICA Xxxxx Xxxxxxx Revolving: $5,000,000.00
COMMERCIAL FINANCE Telephone: 000-000-0000 Tranche A: $5,000,000.00
CORPORATION Telecopy: 000-000-0000 Tranche B: $0
-----------------------------------------------------------------------------------------------
XXXXXXX XXXXX SENIOR Xxx Xxxxxxx Revolving: $0
FLOATING RATE FUND, INC. Telephone: 000-000-0000 Tranche A: $0
Telecopy: 000-000-0000 Tranche B: $5,750,000.00
-----------------------------------------------------------------------------------------------
XXXXXXX XXXXX SENIOR Xxx Xxxxxxx Revolving: $0
FLOATING RATE FUND II, Telephone: 000-000-0000 Tranche A: $0
INC. Telecopy: 000-000-0000 Tranche B: $1,500,000.00
-----------------------------------------------------------------------------------------------
PILGRIM PRIME RATE TRUST
Xxxx Xxxxxxx Revolving: $0
BY: PILGRIM INVESTMENTS, Telephone: 000-000-0000 Tranche A: $0
INC. AS ITS INVESTMENT Telecopy: 000-000-0000 Tranche B: $5,000,000.00
MANAGER
-----------------------------------------------------------------------------------------------
FIRST UNION NATIONAL Xxxx Xxxxxxx Revolving: $0
BANK Telephone: 000-000-0000 Tranche A: $0
Telecopy: 000-000-0000 Tranche B: $12,000,000
-----------------------------------------------------------------------------------------------
FRANKLIN FLOATING RATE Xxxxxxxx Xxxxxx Revolving: $0
TRUST Telephone: 000-000-0000 Tranche A: $0
Telecopy: 000-000-0000 Tranche B: $7,000,000.00
-----------------------------------------------------------------------------------------------
XXXXXXX NATIONAL LIFE Xxxxxxx DiRe Revolving: $0
INSURANCE Telephone: 000-000-0000 Tranche A:$0
COMPANY Telecopy: 000-000-0000 Tranche B: $7,000,000.00
BY:
PPM AMERICA, INC., AS
ATTORNEY IN FACT, ON
BEHALF OF XXXXXXX
NATIONAL LIFE INSURANCE
COMPANY
---------------------------------------------------------------------------------------
101
-----------------------------------------------------------------------------------------------
Contact Person, Telephone and
Lender Telecopy Number Commitments
------ --------------- -----------
-----------------------------------------------------------------------------------------------
BANKBOSTON, N.A., Mart Rose Revolving: $0
Telephone: 000-000-0000 Tranche A: $0
AS TRUST ADMINISTRATOR Telecopy: 000-000-0000 Tranche B: $7,000,000.00
FOR LONGLANE MASTER
TRUST IV
-----------------------------------------------------------------------------------------------
KZH APPALOOSA LLC Xxxxxxxx Xxxxxx Revolving: $0
Telephone: 000-000-0000 Tranche A: $0
Telecopy: 000-000-0000 Tranche B: $5,000,000.00
-----------------------------------------------------------------------------------------------
KZH CYPRESSTREE-1 LLC Xxxxxxxx Xxxxxx Revolving: $0
Telephone: 000-000-0000 Tranche A: $0
Telecopy: 000-000-0000 Tranche B: S3,500,000.00
-----------------------------------------------------------------------------------------------
KZH SHOSHONE LLC Xxxxxxxx Xxxxxx Revolving: $0
Telephone: 000-000-0000 Tranche A: $0
Telecopy: 000-000-0000 Tranche B: $5,000,000.00
-----------------------------------------------------------------------------------------------
KZH - SOLELY-2 LLC Xxxxxxxx Xxxxxx Revolving: $0
Telephone: 000-000-0000 Tranche A: $0
Telecopy: 000-000-0000 Tranche B: $7,000,000.00
-----------------------------------------------------------------------------------------------
KZH STERLING LLC Xxxxxxxx Xxxxxx Revolving: $0
Telephone: 000-000-0000 Tranche A: $0
Telecopy: 000-000-0000 Tranche B: $7,000,000.00
-----------------------------------------------------------------------------------------------
CYPRESSTREE SENIOR Xxxx Xxxxx Revolving: $0
FLOATING RATE FUND, Telephone: 000-000-0000 Tranche A: $0
Telecopy: 000-000-0000 Tranche B: $500,000.00
BY: CYPRESSTREE
INVESTMENT MANAGEMENT
COMPANY, INC. AS
PORTFOLIO MANAGER
-----------------------------------------------------------------------------------------------
NORTH AMERICAN SENIOR Xxxx Xxxxx Revolving: $0
FLOATING RATE FUND Telephone: 000-000-0000 Tranche A: $0
Telecopy: 000-000-0000 Tranche B: $1,000,000.00
BY: CYPRESSTREE
INVESTMENT MANAGEMENT
COMPANY, INC. AS
PORTFOLIO MANAGER
-----------------------------------------------------------------------------------------------
ARCHIMEDES FUNDING, Xxxx Xxxxxx Revolving: $0
L.L.C. Telephone: 000-000-0000 Tranche A: $0
Telecopy: 000-000-0000 Tranche B: $2,500,000.00
BY:
ING CAPITAL ADVISERS LLC
AS COLLATERAL MANAGER
-----------------------------------------------------------------------------------------------
102
-----------------------------------------------------------------------------------------------
Contact Person, Telephone and
Lender Telecopy Number Commitments
------ --------------- -----------
-----------------------------------------------------------------------------------------------
ARCHIMEDES FUNDING II, LTD. Xxxx Xxxxxx Revolving: $0
Telephone: 000-000-0000 Tranche A: $0
BY: Telecopy: 000-000-0000 Tranche B: $2,500,000.00
ING CAPITAL ADVISERS LLC
AS COLLATERAL MANAGER
-----------------------------------------------------------------------------------------------
METROPOLITAN LIFE Xxxxx Xxxxxxx Revolving: $0
INSURANCE COMPANY Telephone: 000-000-0000 Tranche A: $0
Telecopy: 000-000-0000 Tranche B: $5,000,000.00
-----------------------------------------------------------------------------------------------
TYLER TRADING, INC. Xxxxx Xxxxxx Revolving: $0
Telephone: 000-000-0000 Tranche A: $0
Telecopy: 000-000-0000 Tranche B: $5,000,000.00
-----------------------------------------------------------------------------------------------
SRF TRADING, INC. Xxxxx Xxxxxx Revolving: $0
Telephone: 000-000-0000 Tranche A: $0
Telecopy: 000-000-0000 Tranche B: $2,000,000.00
-----------------------------------------------------------------------------------------------
OSPREY INVESTMENTS Xxxxxxx Xxxxx Revolving: $0
PORTFOLIO Telephone: 000-000-0000 Tranche A: $0
BY: CITIBANK, N.A., AS Telecopy: 000-000-0000 Tranche B: S5,000,000.00
MANAGER
-----------------------------------------------------------------------------------------------
103
SCEDULE 3.04
POST CLOSING FILINGS
1. Filings necessary to cause certain environmental and warehousing permits
in Korea which are currently held in the name of Samsung to be placed in
the name of Fairchild Korea.
2. An issuer's report on the issue of the Fairchild Korea Bonds to the
Ministry of Finance and Economy of the Republic of Korea.
3. Acceptance of a report by Fairchild Korea's designated foreign exchange
bank in Korea with respect to the Fairchild Korea Loan Agreement.
4. Payment reports to Fairchild Korea's designated foreign exchange bank
pursuant to the regulations under the Foreign Exchange Management Act of
Korea at the time of each payment by Fairchild Korea under the Fairchild
Korea Bonds and the Fairchild Korea Loan Agreement.
104
SCHEDULE 3.07(C)
CONDEMNATION PROCEEDINGS
None.
105
SCHEDULE 3.08
SUBSIDIARIES
Xxxxxxxxx Semiconductor Corporation, a Delaware corporation, is a wholly owned
subsidiary of FSC Semiconductor Corporation, a Delaware corporation.
Xxxxxxxxx Semiconductor Corporation has the following wholly owned subsidiaries:
Name Jurisdiction of Organization
---- ----------------------------
Xxxxxxxxx Semiconductor Limited United Kingdom
Xxxxxxxxx Semiconductor GmbH Germany
Xxxxxxxxx Semiconductor Asia Pacific Pte. Ltd. Singapore
Xxxxxxxxx Semiconductor (Malaysia) Sdn. Bhd. Malaysia
Xxxxxxxxx Semiconductor Hong Kong Limited Hong Kong
Xxxxxxxxx Semiconductor Hong Kong (Holdings)
Limited Hong Kong
Xxxxxxxxx Semiconductor Japan K.K. Japan
Xxxxxxxxx Semiconductor Srl Italy
Xxxxxxxxx Semiconductors de Mexico S. de X.X.
de CV. Mexico
Xxxxxxxxx Semiconductor Corporation of California Delaware
Xxxxxxxxx Korea Semiconductor Ltd., a South Korean corporation, is a wholly
owned subsidiary of Xxxxxxxxx Semiconductor Corporation of California.
106
SCHEDULE 3.09
LITIGATION
None.
107
SCHEDULE 3.17
ENVIRONMENTAL MATTERS
None.
108
SCHEDULE 3.18
INSURANCE
BORROWER
--------------------------------------------------------------------------------
CORE COVERAGE'S MINIMUM AMOUNT REQUIRED DEDUCTIBLE
TO BE MAINTAINED
--------------------------------------------------------------------------------
Directors & Officers $15,000,000 0 Non-Ind
Executive Risk - 10 $250,000 Corp. Reimb.
MIL PRIMARY
Reliance - 5 MIL x
10
MIL
--------------------------------------------------------------------------------
Property $800,000,000 $250,000
Zurich, Royal
--------------------------------------------------------------------------------
Cargo
St. Xxxx $5,000,000 $15,000/Loss or Occurrence
$7,500/l1 On Shipment Sent
Via FedEx
--------------------------------------------------------------------------------
BORROWER AND SUBSIDIARIES OF BORROWER
CORE COVERAGE'S MINIMUM AMOUNT DEDUCTIBLE
REQUIRED TO BE
MAINTAINED
Foreign Commercial General $1,000,000 [NIL]
Liability/Auto/Excess Liability
AIU
Foreign Voluntary Worker's Comp. $1,000,000 [NIL]
AIU
General Liability $2,000,000/aggregate 1) $100,000/specific
St. Xxxx $1,000,000/occurrence 2) $500,000/aggregate
Auto Liability & Physical Damage $1,000,000 CSL $500 Comprehensive!
St. Xxxx Collision Deductible
Worker's Compensation Statutory Coverage A 1) $250,000/specific
Hanover $1,000,000 Coverage B 2) $650,000/aggregate
Stop Loss
Umbrella/Excess Liab. $1,000,000 N/A
109
CORE COVERAGE'S MINIMUM AMOUNT DEDUCTIBLE
REQUIRED TO BE
MAINTAINED
St. Paul, CHUBB, Reliance St. Xxxx $25 Million
Federal (CHUBB)
$50 MIL x $25 MIL
Reliance
$25 MIL x 75 MIL
Electronics Manufacturers $15,000,000 1) $100,000/specific
Errors & Omissions 2) $500,000/aggregate
St. Xxxx
Business Interruption $800,000,000 $50,000 PD/BI Combined at Mfg.
American Guarantee Liab. Ins. Co. (combined amount with $250,000 PD at Mfg. Sites
Royal/San Alliance Insurance Co. casualty insurance) $250,000 BI at Mfg. Sites
$250,000 PD/BI on Boiler &
Machinery
5% of 100% PD value
CORE COVERAGE'S MINIMUM AMOUNT DEDUCTIBLE
REQUIRED TO BE
MAINTAINED (unit: '000 Won)
(unit: '000 Won)
PACKAGE(PD+MB+B1):Bucheon
Owned
- Property Damage 492,259,000 500,000
- Machinery Breakdown 275,939,000 50,000
- Business Interruption 272,987,000 7 days
- MLOP 272,987,000 7 days
Leased Property
- Property Damage 28,721,335 500,000
- Machinery Breakdown 28,721,335 50,000
FIRE INSURANCE NIL
GENERAL LIABILITY
Facility Owner's Liability - B.I. : 500,000 5,000
- P.D. : 500,000 5,000
- Employer's Liability - Person : 100,000
- Accident : 500,000
110
CORE COVERAGE'S MINIMUM AMOUNT DEDUCTIBLE
REQUIRED TO BE
MAINTAINED (unit: '000 Won)
(unit: '000 Won)
WORKER'S COMPENSATION
GAS LIABILITY - B.I. : 10,000 XXXX
- X.X. : 100,000
* There are no policies in existence for Holdings, except for the Executive
Risk.
111
SCHEDULE 3.19(D)
MORTGAGE FILING OFFICES
================================================================================
Property Address Filing Office
--------------------------------------------------------------------------------
0000 Xxxx 0000 Xxxxx Xxxx Xxxx Xxxxxx Recorder
West Jordan, Utah
--------------------------------------------------------------------------------
000 Xxxxxxx Xxx. Xxxxxxxxxx Xxxxxx Registry of Deeds
South Portland, Maine
================================================================================
112
SCHEDULE 3.20(A)
REAL PROPERTY OWNED IN FEE
================================================================================
Owner Property Address
--------------------------------------------------------------------------------
Borrower 0000 Xxxx 0000 Xxxxx
Xxxx Xxxxxx, Xxxx
--------------------------------------------------------------------------------
Borrower 000 Xxxxxxx Xxx.
Xxxxx Xxxxxxxx, Xxxxx
--------------------------------------------------------------------------------
Xxxxxxxxx Semiconductor Corporation 000 Xxxxx Xxxxxx
xx Xxxxxxxxxx Xxxxxxxx Xxxx, Xxxxxxxxxx
--------------------------------------------------------------------------------
Xxxxxxxxx Korea Semiconductor Ltd. 00-0, Xxxxxx-Xxxx
Xxxxx Xxxxxxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
Xxxxxxxx of Korea
================================================================================
113
SCHEDULE 3.20(B)
LEASED REAL PROPERTY
--------------------------------------------------------------------------------
Tenant Location Description of Lease
--------------------------------------------------------------------------------
Borrower Building 10 Lease dated March 11, 0000
Xxxxxxx Xxxxxx between the Borrower and National
South Portland, Maine Semiconductor Corporation
--------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxxxx 00 & 23 Lease dated March 11, 0000
Xxxxxxx Xxxxxx between the Borrower and National
South Portland, Maine Semiconductor Corporation
--------------------------------------------------------------------------------
Borrower 0000 Xxx Xxxxxx Xxx Lease dated March 11, 1997
0000 Xxxxx Xxx between the Borrower and National
Santa Clara, California Semiconductor Corporation
--------------------------------------------------------------------------------
Borrower 000 X. Xxx Xxxxxxx
Xxxx.
Xxx. 000X
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
Borrower 0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxxxxxx Malaysia EPI Building Lease dated Xxxxx 0, 0000,
Xxxxx Lepas Free Trade under qualified (temporary)
Zone title no. HS(D) 44, for occupancy
Penang, Malaysia by Fairchild Malaysia, successor
to National Semiconductor Penang
("NSEP)
--------------------------------------------------------------------------------
Fairchild Malaysia EP2 Building Lease dated November 18, 1982,
Bayan Lepas Free Trade under qualified (temporary) title
Zone no. HS(D) 3400-MK12, for
Penang, Malaysia occupancy by Fairchild Malaysia,
successor to NSEP
--------------------------------------------------------------------------------
Fairchild Malaysia IP Building Lease dated May 22, 1973, under
Bayan Lepas Free Trade qualified (temporary) title no.
Zone HS(D) 19, for occupancy by
Penang, Malaysia Fairchild Malaysia, successor to
NSEP
--------------------------------------------------------------------------------
Fairchild Malaysia "Red Lease" premises Lease between Sri Pinang
Bayan Lepas Free Trade Development Sdn. Bhd., as
Zone landlord and Fairchild Malaysia,
Penang, Malaysia successor to NSEP, as tenant
--------------------------------------------------------------------------------
Fairchild Malaysia "Blue Lease" premises Agreement for Lease dated July
Bayan Lepas Free Trade 14, 1988, between Sri Pinang
Zone Development Sdn. Bhd., as
Penang, Malaysia landlord and Fairchild Malaysia,
successor to NSEP, as tenant
--------------------------------------------------------------------------------
114
SCHEDULE 3.20(B) page 2
--------------------------------------------------------------------------------
Fairchild Malaysia "Yellow Lease" premises Agreement for Lease dated July
Bayan Xxxxx 00, 0000, xxxxxxx Xxx Xxxxxx
Free Trade Zone Development Sdn. Bhd., as
Penang, Malaysia landlord and Fairchild Malaysia,
successor to National
Semiconductor Technology Sdn.
Bhd., as tenant
--------------------------------------------------------------------------------
Fairchild Hong Kong Premises in Mactan Lease Agreement dated October 10,
Export 1979, between Philippine Economic
Processing Zone zone Authority (successor to
Cebu, Philippines Export Processing Zone
Authority), ("PEZA") as landlord,
and Fairchild Hong Kong,
successor in interest to National
Semiconductor Hong Kong Limited,
as tenant
--------------------------------------------------------------------------------
Fairchild 0000 Xxxxxxxxx Xxxxx Lease dated June 30, 0000 xxxxxxx
Xxxxxxxxxxxxx Xxx Xxxxx, Xxxxxxxxxx Naoto Ohtsuki, lessor, and
Corporation of Borrower, successor to Raytheon
California Company, as lessee
--------------------------------------------------------------------------------
115
SCHEDULE 4.02(A)
OTHER LOCAL COUNSEL
Xxxxxxx Xxxxx & Xxxxxxx
One Utah Center
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Post Xxxxxx Xxx 00000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Xxxxxx Xxxxxx
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxx & Xxxxx
Xxxxxx Xxxxxxxx
000 Xxxxx-Xxxx
Xxxxxxx - XX
Xxxxx, Xxxxx
Attention: Mr. Y.J. Ro
116
SCHEDULE 6.01
OUTSTANDING INDEBTEDNESS ON CLOSING DATE
Current Outstanding Indebtedness
Lender Purpose of Facility Amount Available USD Amount Avail
------ ------------------- ---------------- ----------------
HSBC Bank (Malaysia)
Berhad Overdraft MYR 2,500,000.00 $ 657,894.74
HSBC Bank (Malaysia)
Berhad Banker's Guarantee MYR 4,150,000.00 $ 1,092,105.26
RHB Bank Berhad Overdraft MYR 500,000.00 $ 131,578.95
Ban Hin Xxx Bank
Berhad Banker's Guarantee MYR 4,000,000.00 $ 1,052,631.58
ABN AMRO (Korea) Overdraft Won 2.4B $ 2,000,000.00
Various Local Banks Issued Letters of
(Korea) Credit Won 36.0B $20,000,000.00
Sakura Bank Deferred VA tax Yen 170.0M $ 1,400,000.00
117
SCHEDULE 6.02
LIENS EXISTING ON CLOSING DATE
See attached Liens.
118
====================================================================================================================================
Location of Date of Recordation
Debtor Secured Party Filing Filing Number Collateral or Clear
====================================================================================================================================
Xxxxxxxxx Semiconductor Corporation Heritage Fincancial State of 2/24/98 9805860798 Various exercise machines
0000 Xxxxxxxx Xxx. Services California pursuant to lease.
Xxxxxxxxx, XX 00000 0000 Xxxxxxx Xxxxx,
Xxx. 000
Xxxxxx Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 5/16/97 1221001 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance Remarketing Agreement No. 412689155.
South Xxxxxxxx, XX 00000 Division
000 Xxxxx Xxx., Xxxx. 00
Xxxxxxxx Xxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Copelco Capital, Inc. State of Maine 6/6/97 1224042 Equipment Lease.
000 Xxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxx Xxx XXX
Xxxxx Xxxxxxxx, XX 00000 Suite 000 Xxxxxxxx
Xx. Xxxxxx, XX 00000 Micromaster II
H VLSI Tester Lease No.
0652952.
Xxxxxxxxx Semiconductor Corporation Copelco Capital, Inc. State of Maine 6/17/97 1225460 Equipment Lease.
000 Xxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxx One used Trillium
Xxxxx Xxxxxxxx, XX 00000 Suite 400 Micromaster Test System.
Xx. Xxxxxx, XX 00000 Lease No. 0760241 VI.
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 6/24/97 1226477 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 412688371.
South Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 6/24/97 1226478 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 412688372.
South Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 6/25/97 1226671 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 412688370.
South Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
119
====================================================================================================================================
Location of Date of Recordation
Debtor Secured Party Filing Filing Number Collateral or Clear
====================================================================================================================================
Xxxxxxxxx Semiconductor Corporation Xxxx Zeiss, Inc. State of Maine 8/25/97 1234188 One each laser scan
000 Xxxxxxx Xxxxxx One Zeiss Drive microscope as per
South Portland, ME 04106 Xxxxxxxxx, XX 00000 quotation
135-19250174-01.
Xxxxxxxxx Semiconductor Corporation Copelco Capital, Inc. State of Maine 9/25/97 1238290 Equipment Lease.
000 Xxxxxxx Xxxxxx 000 Xxxx Xxxx Xxxxx One refurbished fusion
Xxxxx Xxxxxxxx, XX 00000 Xx. Xxxxxx, XX 00000 ozone xxxxx. Model 200 ACV
Uni-cassete version
w/thru-the-wall
compatability bulkhead and
1 chiller backflow kit.
Equipment Lease No.
0760242.
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 10/15/97 1241104 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 2542.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx xxxx.
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 10/31/97 1243332 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 2756.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx xxxx. Amended 1/14/98 by Filing
Xxxxxxx, XX 00000 No. 1252255 to change
Lease No. 4144-87018.
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 10/31/97 1243333 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 0000
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx xxxx.
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 11/5/97 1243897 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 0000
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx xxxx.
Xxxxxxx, XX 00000
120
====================================================================================================================================
Location of Date of Recordation
Debtor Secured Party Filing Filing Number Collateral or Clear
====================================================================================================================================
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 11/5/97 1243898 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 0000
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 11/5/97 1243899 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 3066.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Rockford Industries, Inc. State of Maine 11/7/97 1244255 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx assigned to Xxxxx Xxxxxxxxx Xx. 00000-
Xxxxx Xxxxxxxx, XX 00000 Commerce Bank National 00000-000-000.
Assoc., as Trustee
000 Xxxxxx Xxxxxx, #000
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 12/1/97 1246816 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 3427.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 12/16/97 1249076 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 3625.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 1/22/98 1253103 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 4190.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
121
====================================================================================================================================
Location of Date of Recordation
Debtor Secured Party Filing Filing Number Collateral or Clear
====================================================================================================================================
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 1/22/98 1253104 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 4191.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 1/22/98 1253105 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 4192.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 1/22/98 1253106 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 4193.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 3/13/98 1259471 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 5370.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation AT&T Credit Corporation State of Maine 3/26/98 1261032 Equipment Lease No.
000 Xxxxxxx Xxxxxx 2 Gatehall Drive E8000073 - equipment
Xxxxx Xxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 located at
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 3/26/98 1261039 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 5395.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
122
====================================================================================================================================
Location of Date of Recordation
Debtor Secured Party Filing Filing Number Collateral or Clear
====================================================================================================================================
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 6/12/98 1272336 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 7339.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation AT&T Credit Corporation State of Maine 7/1/98 1274921 Equipment Lease No.
000 Xxxxxxx Xxxxxx as Lessor E8000073 - equipment
South Xxxxxxxx, XX 00000 0 Xxxxxxxx Xxxxx xxxxxxx xx
Xxxxxxxxxx, XX 00000 000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 7/22/98 1277891 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 8533.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 7/24/98 1278252 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 8754.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 8/18/98 1281476 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 412446177.
South Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 9/1/98 1283394 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 9672.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
123
====================================================================================================================================
Location of Date of Recordation
Debtor Secured Party Filing Filing Number Collateral or Clear
====================================================================================================================================
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 9/21/98 1285715 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 10087.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 9/21/98 1285716 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 10086.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 10/6/98 1288158 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 10673.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 11/25/98 1295007 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 11659.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 11/25/98 1295008 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 11653.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 12/29/98 1299178 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 11654.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
124
====================================================================================================================================
Location of Date of Recordation
Debtor Secured Party Filing Filing Number Collateral or Clear
====================================================================================================================================
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 12/29/98 1299179 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 11655.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 12/29/98 1299180 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 11657.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 12/31/98 1299474 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 13025.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Sun Microsystems Finance State of Maine 1/19/99 1301476 Equipment Lease. Various
000 Xxxxxxx Xxxxxx 0000 Xxxxxx Xxxx. xxxxxxxxx
Xxxxx Xxxxxxxx, XX 00000 Suite 725 Master Lease Agreement
Xxxxxx Xxxxxx, XX 00000 #SL2659.
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 2/10/99 1304383 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 14101.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation Hewlett-Packard Company State of Maine 2/25/99 1306303 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx Finance & Remarketing Agreement No. 14433.
Xxxxx Xxxxxxxx, XX 00000 Division
00 Xxxxxxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000.
125
====================================================================================================================================
Location of Date of Recordation
Debtor Secured Party Filing Filing Number Collateral or Clear
====================================================================================================================================
Xxxxxxxxx Semiconductor Corporation Copelco Capital, Inc. State of Maine 3/4/99 1307154 Equipment Lease. Financing
000 Xxxxxxx Xxxxxx 000 Xxxx Xxxx Xxxxx Xxxxxxxxx Xx. 0000000. 0
Xxxxx Xxxxxxxx, XX 00000 Xx. Xxxxxx, XX 00000 Xxxxx Model NV-8200 Ion
Implantation System; 1
ASML Model PAS 5500/200B
Automatic Wafer Steppee
System.
Xxxxxxxxx Semiconductor Corporation AT&T Credit Corporation State of Maine 1/16/98 9800009662 Mergin Legend System with
000 X. Xxx Xxxxxxx Xxxx. 0 Xxxxxxxx Xxxxx Intuity Audix and message
Xxx. 000X Xxxxxxxxxx, XX 00000 manager pursuant to Lease.
Xxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation AT&T Capital Leasing State of Utah 6/10/97 97-567970 Equipment Lease -
Services Inc. Millennia MXE P 166B, Mini
000 Xxxxxxxxxx Xx. Tower, 21" monitor.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
Xxxxxxxxx Semiconductor Corporation AT&T Capital Leasing State of Utah 5/31/98 98-604746 Equipment Lease -
Services, Inc. Transport XKE P266MHZ.
000 Xxxxxxxxxx Xx. 32 MB, 17" monitor.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
National Semiconductor Inc. Princeton Credit Cumberland 5/8/95 Bk. 11909 Various computer equipment
Corporation, County, Maine pg. 128 pursuant to lease
Cranbury NJ agreement
National Semiconductor Inc. Princeton Credit Cumberland 5/13/96 Bk. 12761 Various computer equipment
Corporation, County, Maine pg. 34 pursuant to lease
Cranbury NJ agreement
National Semiconductor Inc. Princeton Credit Cumberland 4/15/96 Bk. 12761 Various computer equipment
Corporation County, Maine pg. 32 pursuant to lease
Cranbury NJ agreement
126
====================================================================================================================================
Location of Date of Recordation
Debtor Secured Party Filing Filing Number Collateral or Clear
====================================================================================================================================
National Semiconductor Inc. Princeton Credit Cumberland 7/31/96 Bk. 12639 Various computer equipment
Corporation County, Maine (re- pg. 186 pursuant to lease
Cranbury NJ recorded) agreement
on Bk. 12800
11/4/96 pg. 290
127
EXHIBIT A
[Form of]
XXXXXXXXX SEMICONDUCTOR CORPORATION
ADMINISTRATIVE QUESTIONNAIRE
Please accurately complete the following information and return via Telecopy to
the attention of Xxxxx Xxxxxxx at Credit Suisse First Boston Agency
Administration as soon as possible, at Telecopy No. (000) 000-0000.
--------------------------------------------------------------------------------
LENDER LEGAL NAME TO APPEAR IN DOCUMENTATION:
GENERAL INFORMATION - DOMESTIC LENDING OFFICE:
Institution Name:
Street Address:
City, State, Zip Code:
GENERAL INFORMATION - EURODOLLAR LENDING OFFICE:
Institution Name:
Street Address:
City, State, Zip Code:
POST-CLOSING, ONGOING CREDIT CONTACTS/NOTIFICATION METHODS:
CREDIT CONTACTS:
Primary Contact:
Street Address:
City, State, Zip Code:
Phone Number:
Telecopy Number:
Backup Contact:
Street Address:
City, State, Zip Code:
128
Phone Number:
Telecopy Number:
TAX WITHHOLDING:
Nonresident Alien ___ Y* ___ N
* Form 4224 Enclosed
Tax ID Number _____________________
POST-CLOSING, ONGOING ADMIN. CONTACTS/NOTIFICATION METHODS:
ADMINISTRATIVE CONTACTS - BORROWINGS, PAYDOWNS, FEES, ETC.
Contact:
Street Address:
City, State, Zip Code:
Phone Number:
Telecopy Number:
PAYMENT INSTRUCTIONS:
Name of Bank to which funds are to be transferred:
Routing Transit/ABA number of Bank to which funds are to be transferred:
Name of Account, if applicable:
Account Number:
Additional information:
MAILINGS:
Please specify the person to whom the Borrower should send financial and
compliance information received subsequent to the closing (if different from
primary credit contact):
Name:
129
3
Street Address:
City, State, Zip Code:
It is very important that all the above information be accurately completed and
that this questionnaire be returned to the person specified in the introductory
paragraph of this questionnaire as soon as possible. If there is someone other
than yourself who should receive this questionnaire, please notify us of that
person's name and telecopy number and we will telecopy a copy of the
questionnaire. If you have any questions about this form, please call Xxxxx
Xxxxxxx at (000) 000-0000.
130
EXHIBIT B
[Form of]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of April 14, 1999
(the "Credit Agreement"), among Xxxxxxxxx Semiconductor Corporation, a Delaware
corporation (the "Borrower"), FSC Semiconductor Corporation, a Delaware
corporation, the lenders listed on Schedule 2.01 thereto (the "Lenders"), Credit
Suisse First Boston, a bank organized under the laws of Switzerland, acting
through its New York branch, as administrative agent for the Lenders (in such
capacity, the "Administrative Agent"), and as collateral agent, swingline lender
and Issuing Bank (as defined therein), Salomon Brothers Holding Company Inc, as
syndication agent, and Fleet National Bank, as Issuing Bank and as documentation
agent, and ABN Amro Bank, NV, as documentation agent. Terms defined in the
Credit Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Effective Date set forth below (but not prior
to the registration of the information contained herein in the Register pursuant
to Section 9.04(e) of the Credit Agreement), the interests set forth below (the
"Assigned Interest") in the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents, including, without limitation, the
amounts and percentages set forth below of (i) the Commitments of the Assignor
on the Effective Date set forth below (the "Effective Date"), (ii) the Loans
owing to the Assignor which are outstanding on the Effective Date and (iii)
participations in Letters of Credit and Swingline Loans which are outstanding on
the Effective Date. Each of the Assignor and the Assignee hereby makes and
agrees to be bound by all the representations, warranties and agreements set
forth in Section 9.04(c) of the Credit Agreement, a copy of which has been
received by each such party. From and after the Effective Date (i) the Assignee
shall be a party to and be bound by the provisions of the Credit Agreement and,
to the extent of the interests assigned by this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and under the Loan Documents
and (ii) the Assignor shall, to the extent of the interests assigned by this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
2. This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is organized under the
laws of a jurisdiction outside the United States, any forms referred to in
Section 2.20(e) of the Credit Agreement, duly completed and executed by such
Assignee, (ii) if the Assignee is not already a Lender under the Credit
Agreement, an Administrative Questionnaire in the form of Exhibit A to the
Credit Agreement.
131
3. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment:
132
3
Percentage Assigned of
Applicable Facility/Commitment
(set forth, to at least 8
decimals, as a percentage of
the Facility and the aggregate
Commitments of all Lenders
Principal Amount Assigned thereunder)
------------------------- ------------------------------
Facility/Commitment
Revolving Credit $ %
Term Loans $ %
The terms set forth above are
hereby agreed to: Accepted */
_________________, as Assignor * CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
by:___________________________ by:___________________________
Name: Name:
Title: Title:
by:___________________________
Name:
Title:
________________, as Assignee * XXXXXXXXX SEMICONDUCTOR
CORPORATION
by:___________________________ by:___________________________
Name: Name:
Title: Title:
Accepted */
* [Issuing Bank] * [Swingline Lender]
by:___________________________ by:___________________________
Name: Name:
Title: Title:
133
4
by:___________________________ by:___________________________
Name: Name:
Title: Title:
______________
*/ To be completed to the extent consents are required under Section 9.04(b)
of the Credit Agreement.
134
EXHIBIT C
FORM OF BORROWING REQUEST
Credit Suisse First Boston, as Administrative Agent for
the Lenders referred to below,
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention of [ ]
[Date]
Ladies and Gentlemen:
The undersigned, Xxxxxxxxx Semiconductor Corporation (the "Company"),
refers to the Credit Agreement dated as of April 14, 1999 (the "Credit
Agreement"), among the Company, FSC Semiconductor Corporation, the lenders from
time to time party thereto (the "Lenders") and Credit Suisse First Boston, as
administrative agent for the Lenders (in such capacity, the "Agent"), collateral
agent and issuing bank. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The Company hereby gives you notice pursuant to Section 2.03 of the Credit
Agreement that it requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the terms on which such Borrowing is requested to be
made:
(A) Date of Borrowing
(which is a Business Day) ______________________
(B) Principal Amount of
Borrowing (1) ______________________
---------------------
(1) Not less than $5,000,000 and in an integral multiple of $1,000,000,
but in any event not exceeding, as applicable, the available Total Revolving
Credit Commitment or the aggregate amount of the Term Loan Commitments available
at such time.
135
2
(C) Interest rate basis (2) ______________________
(D) Interest Period and the last
day thereof (3) ______________________
(E) Funds are requested to be disbursed to the Company's account with
Credit Suisse First Boston (Account No. ).
Upon acceptance of any or all of the Loans offered by the Lenders in
response to this request, the Company shall be deemed to have represented and
warranted that the conditions to lending specified in Sections 4.01(b) and (c)
of the Credit Agreement have been satisfied.
XXXXXXXXX SEMICONDUCTOR
CORPORATION,
by:
Name:
Title: [Responsible Officer]
---------------------
(2) Specify (a) Term Borrowing or Revolving Credit Borrowing and (b)
Eurodollar Borrowing or ABR Borrowing.
(3) Which shall be subject to the definition of "Interest Period" and
end not later than the Maturity Date (applicable only for Eurodollar Borrowings
only).
136
EXECUTION COPY
INDEMNITY, SUBROGATION and CONTRIBUTION AGREEMENT
dated as of April 14, 1999, among XXXXXXXXX SEMICONDUCTOR
CORPORATION, a Delaware corporation (the "Borrower"), each
Subsidiary of the Borrower listed on Schedule I hereto (the
"Guarantors") and CREDIT SUISSE FIRST BOSTON, a bank organized
under the laws of Switzerland, acting through its New York
branch ("CSFB"), as collateral agent (in such capacity, the
"Collateral Agent") for the Secured Parties (as defined in the
Credit Agreement referred to below).
Reference is made to (a) the Credit Agreement dated as of April 14,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, FSC SEMICONDUCTOR CORPORATION, a
Delaware corporation, the lenders from time to time party thereto (the
"Lenders"), CSFB, as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"), and as Collateral Agent, swingline lender and Issuing
Bank (as defined therein), Salomon Brothers Holding Company Inc, as syndication
agent, and Fleet National Bank, as Issuing Bank and as documentation agent and
ABN Amro Bank, NV, as documentation agent and (b) the Subsidiary Guarantee
Agreement dated as of April 14, 1999, among the Guarantors and the Collateral
Agent (the "Guarantee Agreement"). Capitalized terms used herein and not defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower, and the Issuing
Bank has agreed to issue Letters of Credit for the account of the Borrower,
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. The Guarantors have guaranteed such Loans and the other
Obligations (as defined in the Guarantee Agreement) of the Borrower under the
Credit Agreement pursuant to the Guarantee Agreement; certain Guarantors have
granted Liens on and security interests in certain of their assets to secure
such guarantees. The obligations of the Lenders to make Loans and of the Issuing
Bank to issue Letters of Credit are conditioned on, among other things, the
execution and delivery by the Borrower and the Guarantors of an agreement in the
form hereof.
137
Accordingly, the Borrower, each Guarantor and the Collateral Agent
agree as follows:
SECTION 1. Indemnity and Subrogation. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law (but
subject to Section 3), the Borrower agrees that (a) in the event a payment shall
be made by any Guarantor under the Guarantee Agreement, the Borrower shall
indemnify such Guarantor for the full amount of such payment and such Guarantor
shall be subrogated to the rights of the person to whom such payment shall have
been made to the extent of such payment and (b) in the event any assets of any
Guarantor shall be sold pursuant to any Security Document to satisfy a claim of
any Secured Party, the Borrower shall indemnify such Guarantor in an amount
equal to the greater of the book value or the fair market value of the assets so
sold.
SECTION 2. Contribution and Subrogation. Each Guarantor (a
"Contributing Guarantor") agrees (subject to Section 3) that, in the event a
payment shall be made by any other Guarantor under the Guarantee Agreement or
assets of any other Guarantor shall be sold pursuant to any Security Document to
satisfy a claim of any Secured Party and such other Guarantor (the "Claiming
Guarantor") shall not have been fully indemnified by the Borrower as provided in
Section 1, the Contributing Guarantor shall indemnify the Claiming Guarantor in
an amount equal to the amount of such payment or the greater of the book value
or the fair market value of such assets, as the case may be, in each case
multiplied by a fraction of which the numerator shall be the net worth of the
Contributing Guarantor on the date hereof and the denominator shall be the
aggregate net worth of all the Guarantors on the date hereof (or, in the case of
any Guarantor becoming a party hereto pursuant to Section 12, the date of the
Supplement hereto executed and delivered by such Guarantor). Any Contributing
Guarantor making any payment to a Claiming Guarantor pursuant to this Section 2
shall be subrogated to the rights of such Claiming Guarantor under Section 1 to
the extent of such payment.
SECTION 3. Subordination. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors under Sections 1 and 2
and all other rights of indemnity, contribution or subrogation under applicable
law or otherwise shall be fully subordinated to the indefeasible payment in full
in cash of the Obligations. No failure on the part of the Borrower or any
Guarantor to make the payments required by Sections 1 and 2 (or any other
payments required under applicable law or otherwise) shall in any respect limit
the obligations and liabilities of any Guarantor with respect to its obligations
hereunder, and each Guarantor shall remain liable for the full amount of the
obligations of such Guarantor hereunder.
SECTION 4. Termination. This Agreement shall survive and be in full
force and effect so long as any Obligation is outstanding and has not been
indefeasibly paid in full in cash, and so long as the L/C Exposure has not been
reduced to zero or any of the Commitments under the Credit Agreement have not
been terminated, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by any Secured Party or any Guarantor
upon the bankruptcy or reorganization of the Borrower, any Guarantor or other-
wise.
138
SECTION 5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. No Waiver; Amendment. (a) No failure on the part of the
Collateral Agent or any Guarantor to exercise, and no delay in exercising, any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or remedy by the
Collateral Agent or any Guarantor preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by law. None of
the Collateral Agent and the Guarantors shall be deemed to have waived any
rights here under unless such waiver shall be in writing and signed by such
parties.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Borrower, the Guarantors and the Collateral Agent, with the prior written
consent of the Required Lenders (except as otherwise provided in the Credit
Agreement).
SECTION 7. Notices. All communications and notices hereunder shall be
in writing and given as provided in the Guarantee Agreement and addressed as
specified therein.
SECTION 8. Binding Agreement; Assignments. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the parties that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns. Neither the Borrower nor any Guarantor may assign or transfer any of
its rights or obligations hereunder (and any such attempted assignment or
transfer shall be void) without the prior written consent of the Required
Lenders. Notwithstanding the foregoing, at the time any Guarantor is released
from its obligations under the Guarantee Agreement in accordance with such
Guarantee Agreement and the Credit Agreement, such Guarantor will cease to have
any rights or obligations under this Agreement.
SECTION 9. Survival of Agreement; Severability. (a) All covenants and
agreements made by the Borrower and each Guarantor herein and in the
certificates or other instruments prepared or delivered in connection with this
Agreement or the other Loan Documents shall be considered to have been relied
upon by the Collateral Agent, the other Secured Parties and each Guarantor and
shall survive the making by the Lenders of the Loans and the issuance of the
Letters of Credit by the Issuing Bank, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loans or any
other fee or amount payable under the Credit Agreement or this Agreement or
under any of the other Loan Documents is outstanding and unpaid or the L/C
Exposure does not equal zero and as long as the Commitments have not been
terminated.
(b) In case any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, no
party hereto shall be required to comply with such provision for so long as such
provision is held to be invalid, illegal or unenforceable, but the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby. The parties shall
139
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 10. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement shall be effective with
respect to any Guarantor when a counterpart bearing the signature of such
Guarantor shall have been delivered to the Collateral Agent. Delivery of an
executed signature page to this Agreement by facsimile transmission shall be as
effective as delivery of a manually signed counterpart of this Agreement.
SECTION 11. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 12. Additional Guarantors. Pursuant to Section 5.11 of the
Credit Agreement, each Domestic Subsidiary (other than any Inactive Subsidiary)
of the Borrower that was not in existence or not such a Subsidiary on the date
of the Credit Agreement is required to enter into the Guarantee Agreement as a
Guarantor upon becoming such a Subsidiary (or upon ceasing to be an Inactive
Subsidiary). Upon execution and delivery, after the date hereof, by the
Collateral Agent and such a Subsidiary of an instrument in the form of Annex 1
hereto, such Subsidiary shall become a Guarantor hereunder with the same force
and effect as if originally named as a Guarantor hereunder. The execution and
delivery of any instrument adding an additional Guarantor as a party to this
Agreement shall not require the consent of any Guarantor hereunder. The rights
and obligations of each Guarantor hereunder shall remain in full force and
effect notwithstanding the addition of any new Guarantor as a party to this
Agreement.
140
5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first appearing above.
XXXXXXXXX SEMICONDUCTOR
CORPORATION,
by:
---------------------------
Name:
Title:
EACH OF THE SUBSIDIARIES LISTED
ON SCHEDULE I HERETO, as a
Guarantor,
by:
---------------------------
Name:
Title: Authorized Officer
CREDIT SUISSE FIRST BOSTON, as
Collateral Agent,
by:
---------------------------
Name:
Title:
by:
---------------------------
Name:
Title:
141
SCHEDULE I
to the Indemnity Subrogation
and Contribution Agreement
Guarantors
Name Address
142
Annex 1 to
the Indemnity, Subrogation and
Contribution Agreement
SUPPLEMENT NO. ___ dated as of [ ], to the Indemnity,
Subrogation and Contribution Agreement dated as of April 14,
1999 (as the same may be amended, supplemented or otherwise
modified from time to time, the "Indemnity, Subrogation and
Contribution Agreement"), among XXXXXXXXX SEMICONDUCTOR
CORPORATION, a Delaware corporation (the "Borrower") each
Subsidiary of the Borrower listed on Schedule I thereto (the
"Guarantors"), and CREDIT SUISSE FIRST BOSTON, a bank
organized under the laws of Switzerland, acting through its
New York branch ("CSFB"), as collateral agent (the "Collateral
Agent") for the Secured Parties (as defined in the Credit
Agreement referred to below).
A. Reference is made to (a) the Credit Agreement dated as of April 14,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, FSC SEMICONDUCTOR CORPORATION, a
Delaware corporation, the lenders from time to time party thereto (the
"Lenders"), CSFB, as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"), and as Collateral Agent, swingline lender and Issuing
Bank (as defined therein), Salomon Brothers Holding Company Inc, as syndication
agent, Fleet National Bank, as Issuing Bank and as documentation agent and ABN
Amro Bank, NV, as documentation agent, and (b) the Subsidiary Guarantee
Agreement dated as of April 14, 1999, among the Guarantors and the Collateral
Agent (the "Guarantee Agreement").
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Indemnity, Subrogation and
Contribution Agreement and the Credit Agreement.
C. The Borrower and the Guarantors have entered into the Indemnity,
Subrogation and Contribution Agreement in order to induce the Lenders to make
Loans and the Issuing Bank to issue Letters of Credit. Pursuant to Section 5.11
of the Credit Agreement, each Domestic Subsidiary (other than any Inactive
Subsidiary) of the Borrower that was not in existence or not such a Subsidiary
on the date of the Credit Agreement is required to enter into the Guarantee
Agreement as a Guarantor upon becoming a Subsidiary (or ceasing to be an
Inactive Subsidiary). Section 12 of the Indemnity, Subrogation and Contribution
Agreement provides that additional Subsidiaries of the Borrower may become
Guarantors under the Indemnity, Subrogation and Contribution Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary of the Borrower (the "New Guarantor") is executing this
Supplement in accordance with the requirements of the Credit Agreement to become
a Guarantor under the Indemnity, Subrogation and Contribution Agreement in order
to induce the Lenders to make additional Loans and the Issuing Bank to issue
additional Letters of Credit and as consideration for Loans previously made and
Letters of Credit previously issued.
143
Accordingly, the Collateral Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 12 of the Indemnity, Subrogation
and Contribution Agreement, the New Guarantor by its signature below becomes a
Guarantor under the Indemnity, Subrogation and Contribution Agreement with the
same force and effect as if originally named therein as a Guarantor and the New
Guarantor hereby agrees to all the terms and provisions of the Indemnity,
Subrogation and Contribution Agreement applicable to it as a Guarantor
thereunder. Each reference to a "Guarantor" in the Indemnity, Subrogation and
Contribution Agreement shall be deemed to include the New Guarantor. The
Indemnity, Subrogation and Contribution Agreement is hereby incorporated herein
by reference.
SECTION 2. The New Guarantor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Guarantor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Indemnity,
Subrogation and Contribution Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Indemnity, Subrogation and Contribution Agreement shall not in
any way be affected or impaired. The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 7 of the Indemnity, Subrogation and
Contribution Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it at the address set forth under its signature.
SECTION 8. The New Guarantor agrees to reimburse the Collateral Agent
for its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
144
3
IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have
duly executed this Supplement to the Indemnity, Subrogation and Contribution
Agreement as of the day and year first above written.
[Name Of New Guarantor],
by:
--------------------------
Name:
Title:
Address:
CREDIT SUISSE FIRST BOSTON, as
Collateral Agent,
by:
--------------------------
Name:
Title:
by:
--------------------------
Name:
Title:
145
SCHEDULE I
to Supplement No.___ to the Indemnity
Subrogation and Contribution Agreement
Guarantors
Name Address
-
146
EXHIBIT E-1
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FINANCING STATEMENT
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FINANCING STATEMENT dated as of April
14, 1999 (this "Mortgage"), by XXXXXXXXX SEMICONDUCTOR
CORPORATION, a Delaware corporation, having an office at 000
Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxx, Xxxxx 00000 (the "Mortgagor"),
to CREDIT SUISSE FIRST BOSTON, a bank organized under the laws
of Switzerland, acting through its New York branch, having an
office at Eleven Madison Avenue, New York, New York 10010
("CSFB"), as collateral agent (in such capacity, the
"Collateral Agent") for the benefit of the Secured Parties (as
defined below) (the Collateral Agent, in such capacity, the
"Mortgagee");
WITNESSETH THAT:
A. Reference is made to the Credit Agreement dated as of April 14, 1999
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Mortgagor (the "Borrower"), FSC Semiconductor
Corporation, a Delaware corporation, the financial institutions party thereto as
lenders (together with the Swingline Lender (as defined below), the "Lenders"),
CSFB, as administrative agent (in such capacity, the "Agent"), and as Collateral
Agent, swingline lender (in such capacity, the "Swingline Lender") and Issuing
Bank (as defined therein), Salomon Brothers Holding Company Inc, as syndication
agent, and Fleet National Bank, as Issuing Bank and as documentation agent, and
ABN Amro Bank, NV, as documentation agent. As used herein, the term "Secured
Parties" shall mean (i) the Lenders, (ii) the Collateral Agent, (iii) the Agent,
(iii) the Issuing Bank, (iv) each counterparty to an Interest Rate Protection
Agreement entered into with the Borrower if such counterparty was a Lender at
the time the Interest Rate Protection Agreement was entered into, (v) the
beneficiaries of each indemnification obligation undertaken by the Borrower
under any Loan Document and (vi) the successors and permitted assigns of each of
the foregoing. Each capitalized term used herein but not defined herein shall
have the meaning assigned to such term in the Credit Agreement. Pursuant to the
Credit Agreement, (i) the Lenders have lent or agreed to lend to the Borrower
(a) on a term basis, Term Loans in an aggregate principal amount not in excess
of $310,000,000, and (b) on a revolving basis, Revolving Credit Loans, at any
time and from time to time prior to the Termination Date, in an aggregate
principal amount at any time outstanding not in excess of $100,000,000, (ii) the
Swingline Lender has agreed to lend, on a revolving basis, Swingline Loans, at
any time and from time to time prior to the Termination Date applicable thereto,
in an aggregate principal amount at any time outstanding not in excess of
$10,000,000 and (iii) the Issuing Bank has issued and has agreed to issue
Letters of Credit in an aggregate face amount at any time outstanding not in
excess of $25,000,000 (the loans and other extensions of credit described in
items (i)-(iii) together with any advances under
147
the Credit Agreement, collectively, the "Loans"), in each case on the terms and
subject to the conditions of the Credit Agreement.
B. In order to induce the Lenders to make Loans and the Issuing Bank to
issue Letters of Credit, the Subsidiaries have agreed to guarantee pursuant to
the Subsidiary Guarantee Agreement the due and punctual payment and performance
of Obligations (as defined in paragraph C below).
C. The obligations of the Lenders to make Loans and of the Issuing Bank
to issue Letters of Credit under the Credit Agreement are conditioned upon,
among other things, the execution and delivery by the Mortgagor of this Mortgage
in the form hereof, to secure (a) the due and punctual payment of (i) the
principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) each payment required to be
made by the Borrower under the Credit Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral,
(iii) all other monetary obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), of the Mortgagor and the Borrower to
the Secured Parties under the Credit Agreement, this Mortgage and the other Loan
Documents to which the Mortgagor or the Borrower is or is to be a party and (iv)
any future advances made to the Borrower pursuant to paragraph 5 of Appendix A
hereto, (b) the due and punctual performance of all covenants, agreements,
obligations and liabilities of the Mortgagor and the Borrower under or pursuant
to the Credit Agreement, this Mortgage and the other Loan Documents and (c) the
due and punctual payment and performance of all obligations of the Borrower
under each Interest Rate Agreement entered into with a counterparty that was a
Lender at the time such Interest Rate Agreement was entered into (all the
obligations referred to in this paragraph C being referred to collectively, as
the "Obligations").
D. Pursuant to the requirements of the Credit Agreement, the Mortgagor
is entering into this Mortgage to create a security interest in the Mortgaged
Property (as defined herein) to secure the performance and payment by the
Mortgagor and the Borrower of the Obligations. The Credit Agreement also
requires the granting by other Loan Parties of mortgages or Deed of Trusts (the
"Other Mortgages") that create security interests in certain Mortgaged
Properties other than the Mortgaged Property to secure the performance of the
Obligations.
148
3
Granting Clauses
NOW THEREFORE, IN CONSIDERATION OF the foregoing and in order to secure
(A) the due and punctual payment and performance of the Obligations, (B) the due
and punctual payment by the Mortgagor of all taxes and insurance premiums
relating to the Mortgaged Property and (C) all disbursements made by Mortgagee
for the payment of taxes, common area charges or insurance premiums, all fees,
expenses or advances in connection with or relating to the Mortgaged Property,
and interest on such disbursements and other amounts not timely paid in
accordance with the terms of the Credit Agreement, this Mortgage and the other
Loan Documents, Mortgagor hereby grants, conveys, mortgages, assigns and pledges
to the Mortgagee (for the ratable benefit of the Secured Parties), all the
following described property (the "Mortgaged Property") whether now owned or
held or hereafter acquired:
(1) all Mortgagor's right, title and interest in all the fee
estate in the land more particularly described on Exhibit A hereto (the
"Land"), together with all rights appurtenant thereto, including the
easements over certain other adjoining land granted by any easement
agreements, covenant or restrictive agreements and all air rights,
mineral rights, water rights, oil and gas rights and development
rights, if any, relating thereto, and also together with all of the
other easements, rights, privileges, interests, hereditaments and
appurtenances thereunto belonging or in anyway appertaining and all of
the estate, right, title, interest, claim or demand whatsoever of
Mortgagor therein and in the streets and ways adjacent thereto, either
in law or in equity, in possession or expectancy, now or hereafter
acquired (the "Premises");
(2) all Mortgagor's right, title and interest in all
buildings, improvements, structures, paving, parking areas, walkways
and landscaping now or hereafter erected or located upon the Land, and
all fixtures of every kind and type affixed to the Premises or attached
to or forming part of any structures, buildings or improvements and
replacements thereof now or hereafter erected or located upon the Land
(the "Improvements");
(3) all Mortgagor's right, title and interest in all
apparatus, movable appliances, building materials, equipment, fittings,
furnishings, furniture, machinery and other articles of tangible
personal property of every kind and nature, and replacements thereof,
now or at any time hereafter placed upon or used in any way in
connection with the use, enjoyment, occupancy or operation of the
Improvements or the Premises, including all of Mortgagor's books and
records relating thereto and including all pumps, tanks, goods,
machinery, tools, equipment, lifts (including fire sprinklers and alarm
systems, fire prevention or control systems, cleaning rigs, air
conditioning, heating, boilers, refrigerating, electronic monitoring,
water, loading, unloading, lighting, power, sanitation, waste removal,
entertainment, communications, computers, recreational, window or
structural, maintenance, truck or car repair and all other equipment of
every kind), restaurant, bar and all other
149
4
indoor or outdoor furniture (including tables, chairs, booths, serving
stands, planters, desks, sofas, racks, shelves, lockers and cabinets),
bar equipment, glasses, cutlery, uniforms, linens, memorabilia and
other decorative items, furnishings, appliances, supplies, inventory,
rugs, carpets and other floor coverings, draperies, drapery rods and
brackets, awnings, venetian blinds, partitions, chandeliers and other
lighting fixtures, freezers, refrigerators, walk-in coolers, signs
(indoor and outdoor), computer systems, cash registers and inventory
control systems, and all other apparatus, equipment, furniture,
furnishings, and articles used in connection with the use or operation
of the Improvements or the Premises, it being understood that the
enumeration of any specific articles of property shall in no way result
in or be held to exclude any items of property not specifically
mentioned (the property referred to in this subparagraph (3), the
"Personal Property");
(4) all Mortgagor's right, title and interest in all general
intangibles relating to design, development, operation, management and
use of the Premises or the Improvements, all certificates of occupancy,
zoning variances, building, use or other permits, approvals,
authorizations and consents obtained from and all materials prepared
for filing or filed with any governmental agency in connection with the
development, use, operation or management of the Premises and
Improvements, all construction, service, engineering, consulting,
leasing, architectural and other similar contracts concerning the
design, construction, management, operation, occupancy and/or use of
the Premises and Improvements, all architectural drawings, plans,
specifications, soil tests, feasibility studies, appraisals,
environmental studies, engineering reports and similar materials
relating to any portion of or all of the Premises and Improvements, and
all payment and performance bonds or warranties or guarantees relating
to the Premises or the Improvements, all to the extent assignable (the
"Permits, Plans and Warranties");
(5) Mortgagor's interest in and rights under any and all now
or hereafter existing leases or licenses (under which Mortgagor is
landlord or licensor) and subleases (under which Mortgagor is
sublandlord), concession, management, mineral or other agreements of a
similar kind that permit the use or occupancy of the Premises or the
Improvements for any purpose in return for any payment, or the
extraction or taking of any gas, oil, water or other minerals from the
Premises in return for payment of any fee, rent or royalty
(collectively, "Leases"), and all agreements or contracts for the sale
or other disposition of all or any part of the Premises or the
Improvements, now or hereafter entered into by Mortgagor, together with
all charges, fees, income, issues, profits, receipts, rents, revenues
or royalties payable thereunder ("Rents");
(6) all Mortgagor's right, title and interest in and to all
real estate tax refunds and all proceeds of the conversion, voluntary
or involuntary, of any of the Mortgaged Property into cash or
liquidated claims ("Proceeds"), including Proceeds of insurance
maintained by the Mortgagor and condemnation awards, any awards that
may
150
5
become due by reason of the taking by eminent domain or any transfer in
lieu thereof of the whole or any part of the Premises or Improvements
or any rights appurtenant thereto, and any awards for change of grade
of streets, together with any and all moneys now or hereafter on
deposit for the payment of real estate taxes, assessments or common
area charges levied against the Mortgaged Property, unearned premiums
on policies of fire and other insurance maintained by the Mortgagor
covering any interest in the Mortgaged Property or required by the
Credit Agreement; and
(7) all Mortgagor's right, title and interest in and to all
extensions, improvements, betterments, renewals, substitutes and
replacements of and all additions and appurtenances to, the Land, the
Premises, the Improvements, the Personal Property, the Permits, Plans
and Warranties and the Leases, hereinafter acquired by or released to
the Mortgagor or constructed, assembled or placed by the Mortgagor on
the Land, the Premises or the Improvements, and all conversions of the
security constituted thereby, immediately upon such acquisition,
release, construction, assembling, placement or conversion, as the case
may be, and in each such case, without any further mortgage, deed of
trust, conveyance, assignment or other act by the Mortgagor, all of
which shall become subject to the lien of this Mortgage as fully and
completely, and with the same effect, as though now owned by the
Mortgagor and specifically described herein.
TO HAVE AND TO HOLD the Mortgaged Property unto the Mortgagee, its
successors and assigns, for the ratable benefit of the Secured Parties,
forever, subject only to the Permitted Encumbrances (as hereinafter defined) and
to satisfaction and cancelation as provided in Section 3.04.
ARTICLE I
Representations, Warranties and Covenants of Mortgagor
Mortgagor agrees, covenants, represents and/or warrants as follows:
SECTION 1.01. Title. (a) Mortgagor has good and marketable title to an
indefeasible fee estate in the Land and Improvements subject to no lien, charge
or encumbrance, and this Mortgage is and will remain a valid and enforceable
first and prior lien on the Premises, Improvements and the Rents subject only
to, in each case, Liens permitted by Section 6.02 of the Credit Agreement and
the exceptions and encumbrances referred to in Schedule B to the title insurance
policy being issued to insure the lien of this Mortgage (collectively, the
"Permitted Encumbrances"). The Permitted Encumbrances do not materially
interfere with the current use, enjoyment or operation of the Mortgaged
Property.
(b) Mortgagor has good and marketable title to all the Personal
Property subject to no lien, charge or encumbrance other than this Mortgage and
the Permitted Encumbrances.
151
6
Except as permitted under the Credit Agreement, the Personal Property is not and
will not become the subject matter of any lease or other arrangement that is not
a Permitted Encumbrance whereby the ownership of any Personal Property will be
held by any person or entity other than Mortgagor; except as permitted under the
Credit Agreement, none of the Personal Property will be removed from the
Premises or the Improvements unless the same is no longer needed for the
continued operation of the Premises and the Improvements as currently operated
(or as then operated, to the extent that any change from the current manner of
operation was permitted by the Credit Agreement) or is replaced by other
Personal Property of substantially equal or greater utility and value; and
Mortgagor will not create or cause to be created (other than Permitted
Encumbrances) any security interest covering any of the Personal Property other
than the security interest in the Personal Property created in favor of
Mortgagee by this Mortgage or any other agreement collateral hereto. The
Mortgaged Property is served by water, gas, electric, septic, storm and sanitary
sewage facilities, and such utilities serving the Premises and the Improvements
are located in and in the future will be located fully within the Premises.
There is vehicular access to the Premises and the Improvements which is provided
by, either a public right-of-way abutting and contiguous with the Land or valid
recorded unsubordinated easements.
(c) Except as set forth on Schedule A hereto, there are no leases
affecting a material portion of the Mortgaged Property. Each Lease is in full
force and effect, and, except as set forth on Schedule A hereto, Mortgagor has
not given, nor to Mortgagor's knowledge has it received, any uncured or unwaived
notice of default with respect to any material obligation under any Lease. Each
Lease is subject to no lien, charge or encumbrance other than this Mortgage and
the Permitted Encumbrances. Mortgagor has not received any notice of, nor has
any knowledge of any pending or contemplated condemnation proceeding affecting
the Mortgaged Property or any sale or disposition thereof in lieu of
condemnation. Mortgagor is not obligated under any right of first refusal,
option or other contractual right to sell, assign or otherwise dispose of any
Mortgaged Property or any interest therein.
(d) All easement agreements, covenant or restrictive agreements,
supplemental agreements and any other instruments hereinabove referred to and
mortgaged hereby (collectively, the "Agreements") are and will remain valid,
subsisting and in full force and effect, unless the failure to remain valid,
subsisting and in full force and effect, individually or in the aggregate, could
not reasonably be expected to have a material adverse effect on the Mortgaged
Property, and Mortgagor is not in default thereunder and has fully performed the
material terms thereof required to be performed through the date hereof, and has
no knowledge of any default thereunder or failure to fully perform the terms
thereof by any other party, nor of the occurrence of any event that after notice
or the passage of time or both will constitute a default thereunder. Mortgagor
is in compliance, and shall comply, with all Agreements and Legal Requirements
(including land use and zoning ordinances, regulations and restrictions)
affecting the Mortgaged Property, except for any Agreements and Legal
Requirements, the failure to comply with which could not reasonably be expected
to have a material adverse effect on the Mortgaged Property.
152
7
(e) Mortgagor has good and lawful right and full power and authority to
mortgage the Mortgaged Property and will forever warrant and defend its title to
the Mortgaged Property, the rights of Mortgagee therein under this Mortgage and
the validity and priority of the lien of this Mortgage thereon against the
claims of all persons and parties except those having rights under Permitted
Encumbrances to the extent of those rights.
(f) This Mortgage, when duly recorded in the appropriate public records
and when financing statements are duly filed in the appropriate public records,
will create a valid, perfected and enforceable lien upon and security interest
in all the Mortgaged Property and there will be no defenses or offsets to this
Mortgage that will be asserted by Mortgagor or its Affiliates (or any third
party defense or offset now known to Mortgagor or its Affiliates) or to any of
the Obligations secured hereby for so long as any portion of the Obligations is
outstanding.
SECTION 1.02. Credit Agreement; Certain Amounts. (a) This Mortgage is
given pursuant to the Credit Agreement. Each and every term and provision of the
Credit Agreement (excluding the governing law provisions thereof), including the
rights, remedies, obligations, covenants, conditions, agreements, indemnities,
representations and warranties of the parties thereto shall be considered as if
a part of this Mortgage.
(b) To the extent there is a conflict between the terms of this
Mortgage and the terms of the Credit Agreement, (except with respect to Section
1.01 hereof), the terms of the Credit Agreement shall control.
(c) If any remedy or right of Mortgagee pursuant hereto is acted upon
by Mortgagee or if any actions or proceedings (including any bankruptcy,
insolvency or reorganization proceedings) are commenced in which Mortgagee is
made a party and is obliged to defend or uphold or enforce this Mortgage or the
rights of Mortgagee hereunder or the terms of any Lease, or if a condemnation
proceeding is instituted affecting the Mortgaged Property, Mortgagor will pay
all reasonable sums, including reasonable attorneys' fees and disbursements,
incurred by Mortgagee related to the exercise of any remedy or right of
Mortgagee pursuant hereto or for the reasonable expense of any such action or
proceeding together with all statutory or other costs, disbursements and
allowances, interest thereon from the date of demand for payment thereof at the
rate specified in clause (b) of Section 2.07 of the Credit Agreement (the
"Default Interest Rate"), and such sums and the interest thereon shall, to the
extent permissible by law, be a lien on the Mortgaged Property prior to any
right, title to, interest in or claim upon the Mortgaged Property attaching or
accruing subsequent to the recording of this Mortgage and shall be secured by
this Mortgage to the extent permitted by law. Any payment of amounts due under
this Mortgage not made on or before the due date for such payments shall accrue
interest daily without notice from the due date until paid at the Default
Interest Rate, and such interest at the Default Interest Rate shall be
immediately due upon demand by Mortgagee.
153
8
SECTION 1.03. Payment of Taxes, Liens and Charges. (a) Except as may be
permitted by the Credit Agreement, Mortgagor will pay and discharge from time to
time prior to the time when the same shall become delinquent, and before any
interest or penalty accrues thereon or attaches thereto, all taxes of every kind
and nature, all general and special assessments, levies, permits, inspection and
license fees, all water and sewer rents, all vault charges, and all other public
charges, and all service charges, common area charges, private maintenance
charges, utility charges and all other private charges, whether of a like or
different nature, imposed upon or assessed against the Mortgaged Property or
any part thereof or upon the Rents from the Mortgaged Property or arising in
respect of the occupancy, use or possession thereof.
(b) In the event of the passage of any state, Federal, municipal or
other governmental law, order, rule or regulation subsequent to the date hereof
(i) deducting from the value of real property for the purpose of taxation any
lien or encumbrance thereon or in any manner changing or modifying the laws now
in force governing the taxation of this Mortgage or debts secured by mortgages
or deeds of trust (other than laws governing income, franchise and similar taxes
generally) or the manner of collecting taxes thereon and (ii) imposing a tax to
be paid by Mortgagee, either directly or indirectly, on this Mortgage or any of
the Loan Documents or to require an amount of taxes to be withheld or deducted
therefrom, Mortgagor will promptly notify Mortgagee of such event. In such event
Mortgagor shall (i) agree to enter into such further instruments as may be
reasonably necessary or desirable to obligate Mortgagor to make any applicable
additional payments and (ii) Mortgagor shall make such additional payments.
(c) At any time that an Event of Default shall occur hereunder and be
continuing, or if required by any law applicable to Mortgagor or to Mortgagee,
Mortgagee shall have the right to direct Mortgagor to make an initial deposit on
account of real estate taxes and assessments, insurance premiums and common area
charges, levied against or payable in respect of the Mortgaged Property in
advance and thereafter semi-annually, each such deposit to be equal to one-half
of any such annual charges estimated in a reasonable manner by Mortgagee in
order to accumulate with Mortgagee sufficient funds to pay such taxes,
assessments, insurance premiums and charges.
SECTION 1.04. Payment of Closing Costs. Mortgagor shall pay all costs
in connection with, relating to or arising out of the preparation, execution and
recording of this Mortgage, including title company premiums and charges,
inspection costs, survey costs, recording fees and taxes, reasonable attorneys',
engineers', appraisers' and consultants' fees and disbursements and all other
similar reasonable expenses of every kind.
SECTION 1.05. Alterations and Waste; Plans. (a) Except as may be
permitted by the Credit Agreement, no Improvements will be materially altered or
demolished or removed in whole or in part by Mortgagor. Mortgagor will not erect
any additions to the existing Improvements or other structures on the Premises
which will materially interfere with the operation conducted thereon on the date
hereof, without the written consent of Mortgagee.
154
9
Mortgagor will not commit any waste on the Mortgaged Property or make any
alteration to, or change in the use of, the Mortgaged Property that will
materially diminish the utility thereof for the operation of the business except
as may be permitted under the Credit Agreement or materially increase any
ordinary fire or other hazard arising out of construction or operation, but in
no event shall any such alteration or change be contrary to the terms of any
insurance policy required to be kept pursuant to Section 1.06. Mortgagor will
maintain and operate the Improvements and Personal Property in good repair,
working order and condition, reasonable wear and tear excepted.
(b) To the extent the same exist on the date hereof or are obtained in
connection with future permitted alterations, Mortgagor shall maintain a
complete set of final plans, specifications, blueprints and drawings for the
Mortgaged Property either at the Mortgaged Property or in a particular office at
the headquarters of Mortgagor to which Mortgagee shall have access upon
reasonable advance notice and at reasonable times.
SECTION 1.06. Insurance. Mortgagor will keep or cause to be kept the
Improvements and Personal Property insured against such risks, and in the
manner, required by Section 5.02 of the Credit Agreement.
SECTION 1.07. Casualty and Condemnation. (a) Notwithstanding any other
provision of this Mortgage or the Credit Agreement, Mortgagee is authorized, at
its option (for the benefit of the Secured Parties), to collect and receive, to
the extent payable to any Loan Party, all insurance proceeds, damages, claims
and rights of action under any insurance policies with respect to any casualty
or other insured damage ("Casualty") to any portion of the Mortgaged Property
(collectively, "Casualty Proceeds"), unless the amount of the related Casualty
Proceeds is less than $2,500,000 and an Event of Default shall not have occurred
and be continuing, in which event Mortgagor may retain such Casualty Proceeds
for application in accordance with this Section 1.07 to the extent that the
Mortgagor has delivered a certificate to the Mortgagee within 10 days of such
Casualty, stating that such Casualty Proceeds shall be applied, or shall be
committed to be applied, within 180 days of such Casualty, in accordance with
this Section 1.07; provided that to the extent such Casualty Proceeds are (i)
not so applied, or committed to be so applied within 180 days of any such
Casualty or (ii) if committed to be so applied within 180 days of any such
Casualty, not so applied within one year of such Casualty, Mortgagor shall
promptly remit such Casualty Proceeds to Mortgagee to prepay the outstanding
Term Loans as provided in Section 2.13(f) of the Credit Agreement. Mortgagor
shall notify Mortgagee, in writing, promptly after Mortgagor obtains notice or
knowledge of any Casualty which Mortgagor reasonably believes will cost more
than $500,000 to repair, which notice shall set forth a description of such
Casualty and Mortgagor's good faith estimate of the amount of related damages.
Subject to the foregoing limitations, Mortgagor shall endorse and transfer or
cause to be endorsed or transferred any Casualty Proceeds received by it or any
other Loan Party to Mortgagee.
155
10
(b) Mortgagor will notify Mortgagee immediately upon obtaining
knowledge of the institution of any action or proceeding for the taking of the
Mortgaged Property, or any part thereof or interest therein, for public or
quasi-public use under the power of eminent domain, by reason of any public
improvement or condemnation proceeding, or in any other manner (a
"Condemnation"). No settlement or compromise of any claim in excess of $500,000
in connection with any such action or proceeding shall be made without the
consent of Mortgagee, which consent shall not be unreasonably withheld.
Mortgagee is authorized, at its option (for the benefit of the Secured Parties),
to collect and receive all proceeds of any such Condemnation (in each case, the
"Condemnation Proceeds") unless the amount of such Condemnation Proceeds is less
than $2,500,000 and an Event of Default shall not have occurred and be
continuing, in which event Mortgagor may retain such Condemnation Proceeds for
application in accordance with this Section 1.07 to the extent that the
Mortgagor has delivered a certificate to the Mortgagee within 10 days of such
Condemnation, stating that such Condemnation Proceeds shall be applied, or shall
be committed to be applied, within 180 days of such Condemnation, in accordance
with this Section 1.07; provided that to the extent such Condemnation Proceeds
are (i) not so applied, or committed to be so applied within 180 days of any
such Condemnation or (ii) if committed to be so applied within 180 days of any
such Condemnation, not so applied within one year of such Condemnation,
Mortgagor shall promptly remit such Condemnation Proceeds to Mortgagee to prepay
the outstanding Term Loans as provided in Section 2.13(f) of the Credit
Agreement. Subject to the foregoing limitations, Mortgagor shall execute or
cause to be executed such further assignments of any Condemnation Proceeds as
Mortgagee may reasonably require.
(c) In the event of a Condemnation of all or "substantially all" of the
Mortgaged Property (a "substantially all" Condemnation) (which determination
shall be made by Mortgagee in its reasonable discretion), unless Mortgagor shall
have notified Mortgagee in writing promptly after such Condemnation that it
intends to replace the Mortgaged Property (and no Default or Event of Default
shall have occurred and be continuing at the time of such election), Mortgagee
or Mortgagor, as applicable, shall apply the Condemnation Proceeds received as a
result of such Condemnation (less the reasonable costs, if any, incurred by
Mortgagee or Mortgagor in the recovery of such Condemnation Proceeds, including
reasonable attorneys' fees, other charges and disbursements) to prepay the
outstanding Term Loans as provided in Section 2.13(f) of the Credit Agreement,
with any remaining Condemnation Proceeds being returned to or retained by
Mortgagor. If Mortgagor shall elect to replace the Mortgaged Property as
contemplated above, (i) the replacement property shall be of utility or value
comparable to that of the replaced Mortgaged Property and (ii) the insufficiency
of any Condemnation Proceeds to defray the entire expense of the related
location, acquisition and replacement of such replacement property shall in no
way relieve Mortgagor of its obligation to complete the construction of any
replacement property if Mortgagor shall have made such election and shall have
acquired the related real property.
(d) In the event of any Condemnation of the Mortgaged Property, or any
part thereof (other than a Condemnation described in paragraph (c) above (unless
Mortgagor shall be
156
11
permitted and shall have elected to replace the Mortgaged Property, as provided
in paragraph (c) above) and subject to the provisions of paragraph (f) below),
Mortgagee or Mortgagor, as applicable, shall apply the Condemnation Proceeds
first, in the case of a partial Condemnation, to the repair or restoration of
any integrated structure subject to such Condemnation or, in the case of a
condemnation of all, or substantially all, of the Mortgaged Property, to the
location of a replacement property, acquisition of such replacement property and
construction of the replacement structures, and second, if the remainder of the
Condemnation Proceeds is less than $1,000,000, such Condemnation Proceeds (less
the reasonable costs, if any, incurred by Mortgagee or Mortgagor in the recovery
of such Condemnation Proceeds) shall be returned to or retained by (as
applicable) Mortgagor, or if the remainder of the Condemnation Proceeds is
$1,000,000 or greater, such Condemnation Proceeds (less the reasonable costs, if
any, incurred by Mortgagee or Mortgagor in the recovery of such Condemnation
Proceeds) shall be used to prepay the outstanding Term Loans as provided in
Section 2.13(f) of the Credit Agreement, with any remaining Condemnation
Proceeds being returned to or retained by (as applicable) Mortgagor.
(e) In the event of any Casualty, Mortgagor shall, subject to the
conditions contained in paragraph (f), restore the Mortgaged Property to
substantially its same condition immediately prior to such Casualty. If
Mortgagor shall be required to restore the Mortgaged Property, the insufficiency
of any Casualty Proceeds to defray the entire expense of such restoration shall
in no way relieve Mortgagor of such obligation so to restore. In the event
Mortgagor shall be required to restore, Mortgagor shall diligently and
continuously prosecute the restoration of the Mortgaged Property to completion.
In addition, there shall first be allowed to Mortgagor out of the related
Casualty Proceeds an amount sufficient to, and Mortgagor shall be obligated to,
place the remaining portion, if any, of the Mortgaged Property in a safe
condition that is otherwise in compliance with the provisions of this Mortgage
and the Credit Agreement.
(f) Except as otherwise specifically provided in this Section 1.07 with
respect to Casualty Proceeds and Condemnation Proceeds which may be retained by
Mortgagor, all Casualty Proceeds and all Condemnation Proceeds recovered by
Mortgagee (i) are to be applied to the restoration or replacement of the
Mortgaged Property (less the reasonable cost, if any, to Mortgagee or Mortgagor
of such recovery and of paying out such proceeds, including reasonable
attorneys' fees, other charges and disbursements and costs allocable to
inspecting the Work (as defined below)) and (ii) shall be applied by Mortgagee
to the payment of the cost of restoring or replacing the Mortgaged Property so
damaged, destroyed or taken or of the portion or portions of the Mortgaged
Property not so taken (the "Work") and (C) shall be paid out from time to time
to Mortgagor as and to the extent the Work (or the location and acquisition of
any replacement of the Mortgaged Property) progresses for the payment thereof,
but subject to each of the following conditions:
(i) Mortgagor must promptly commence the restoration process
or the location, acquisition and replacement process (in the case of a
total or "substantially all" Condemnation) in connection with the
Mortgaged Property;
157
12
(ii) the Work shall be in the charge of an independent
architect or engineer and before Mortgagor commences any Work, other
than temporary work to protect property or prevent interference with
business, Mortgagee shall have received the plans and specifications
and the general contract for the Work from Mortgagor. The plans and
specifications shall provide for such Work that, upon completion
thereof, the improvements shall (A) be in compliance with all
requirements of applicable Governmental Authorities such that all
representations and warranties of Mortgagor relating to the compliance
of such the Mortgaged Property with applicable laws, rules or
regulations in this Mortgage and the Credit Agreement will be correct
in all respects and (B) be at least equal in value and general utility
to the improvements that were on the Mortgaged Property (or that were
on the Mortgaged Property that has been replaced, if applicable) prior
to the Casualty or Condemnation, and in the case of a Condemnation,
subject to the effect of such Condemnation;
(iii) except as provided in (iv) below, each request for
payment shall be made on seven days' prior notice to Mortgagee and
shall be accompanied by a certificate to be made by such architect or
engineer, stating (A) that all the Work completed has been done in
substantial compliance with the plans and specifications, (B) that the
sum requested is justly required to reimburse Mortgagor for payments by
Mortgagor to, or is justly due to, the contractor, subcontractors,
materialmen, laborers, engineers, architects or other persons rendering
services or materials for the Work (giving a brief description of such
services and materials);
(iv) each request for payment in connection with the
acquisition of a replacement Mortgaged Property (in the case of a total
or "substantially all" Condemnation) shall be made on 30 days' prior
notice to Mortgagee and, in connection therewith, (A) each such request
shall be accompanied by a copy of the sales contract or other document
governing the acquisition of the replacement property by Mortgagor and
a certificate of Mortgagor stating that the sum requested represents
the sales price under such contract or document and the related
reasonable transaction fees and expenses (including brokerage fees) and
setting forth in sufficient detail the various components of such
requested sum and (B) Mortgagor shall (I) in addition to any other
items required to be delivered under this Section 1.07, provide
Mortgagee with such opinions, documents, certificates, title insurance
policies, surveys and other insurance policies as it may reasonably
request and (II) take such other actions as Mortgagee may reasonably
deem necessary or appropriate (including actions with respect to the
delivery to Mortgagee of a first priority Mortgage with respect to such
real property for the ratable benefit of the Secured Parties, which
opinions, documents, certificates, title insurance policies, surveys,
other insurance policies and mortgage shall be substantially comparable
to similar documents executed and/or delivered in connection with the
Closing Date under the Credit Agreement;
158
13
(v) if required by Mortgagee, each request for payment shall
be accompanied by a search prepared by a title company or licensed
abstractor or by other evidence satisfactory to Mortgagee, that there
has not been filed with respect to the Mortgaged Property any
mechanics' or other lien or instrument for the retention of title in
respect of any part of the Work not discharged of record or bonded to
the reasonable satisfaction of Mortgagee;
(vi) there shall be no Default or Event of Default that has
occurred and is continuing;
(vii) the request for any payment after the Work has been
completed shall be accompanied by a copy of any certificate or
certificates required by law to render occupancy of the improvements
being rebuilt, repaired or restored legal; and
(viii) after commencing the Work, Mortgagor shall continue to
perform the Work diligently and in good faith to completion in
accordance with the approved plans and specifications.
Upon completion of the Work and payment in full therefor, the amount of any
Casualty Proceeds or Condemnation Proceeds then or thereafter in the hands of
Mortgagee on account of the Casualty or Condemnation that necessitated such Work
will be applied as follows: (x) with respect to Casualty Proceeds, returned to
Mortgagor, (y) with respect to amounts then held for Condemnation Proceeds which
are less than $500,000, returned to Mortgagor and (z) with respect to amounts
then held for Condemnation Proceeds of $500,000 or more, to prepay the
outstanding Term Loans as provided in Section 2.13 of the Credit Agreement, with
any excess being returned to Mortgagor.
(g) Notwithstanding any other provisions of this Section 1.07, if
Mortgagor shall have elected to replace the Mortgaged Property in connection
with a total or "substantially all" Condemnation as contemplated in paragraph
(c) above, all Condemnation Proceeds held by Mortgagee in connection therewith
shall be applied to prepay the Term Loans as provided in Section 2.13 of the
Credit Agreement if (i) Mortgagor notifies Mortgagee that it does not intend to
replace the Mortgaged Property, (ii) Mortgagor shall not have notified Mortgagor
in writing that Mortgagor has acquired or has entered into a contract to acquire
the replacement property within six months after the related Condemnation or
(iii) Mortgagor shall have not notified Mortgagee in writing that it has begun
construction of the replacement structures within one year after the related
Condemnation.
(h) Nothing in this Section 1.07 shall prevent Mortgagee from applying
at any time all or any part of the Casualty Proceeds or Condemnation Proceeds to
(i) the curing of any Event of Default under the Credit Agreement or (ii) the
payment of any of the Obligations after the occurrence and during the
continuance of an Event of Default.
159
14
SECTION 1.08. Assignment of Leases and Rents. (a) Mortgagor hereby
irrevocably and absolutely grants, transfers and assigns all of its right title
and interest in all Leases, together with any and all extensions and renewals
thereof for purposes of securing and discharging the performance by Mortgagor of
the Obligations. Mortgagor has not assigned or executed any assignment of, and
will not assign or execute any assignment of, any other Lease or their
respective Rents to anyone other than Mortgagee.
(b) Without Mortgagee's prior written consent, Mortgagor will not (i)
modify, amend, terminate or consent to the cancelation or surrender of any Lease
if such modification, amendment, termination or consent would, in the reasonable
judgment of the Mortgagee, be adverse in any material respect to the interests
of the Lenders, the value of the Mortgaged Property or the lien created by this
Mortgage or (ii) consent to an assignment of any tenant's interest in any Lease
or to a subletting thereof covering a material portion of the Mortgaged
Property.
(c) Subject to Section 1.08(d), Mortgagor has assigned and transferred
to Mortgagee all of Mortgagor's right, title and interest in and to the Rents
now or hereafter arising from each Lease heretofore or hereafter made or agreed
to by Mortgagor, it being intended that this assignment establish, subject to
Section 1.08(d), an absolute transfer and assignment of all Rents and all Leases
to Mortgagee and not merely to grant a security interest therein. Subject to
Section 1.08(d), Mortgagee may in Mortgagor's name and stead (with or without
first taking possession of any of the Mortgaged Property personally or by
receiver as provided herein) operate the Mortgaged Property and rent, lease or
let all or any portion of any of the Mortgaged Property to any party or parties
at such rental and upon such terms as Mortgagee shall, in its sole discretion,
determine, and may collect and have the benefit of all of said Rents arising
from or accruing at any time thereafter or that may thereafter become due under
any Lease.
(d) So long as an Event of Default shall not have occurred and be
continuing, Mortgagee will not exercise any of its rights under Section 1.08(c),
and Mortgagor shall receive and collect the Rents accruing under any Lease; but
after the happening and during the continuance of any Event of Default,
Mortgagee may, at its option, receive and collect all Rents and enter upon the
Premises and Improvements through its officers, agents, employees or attorneys
for such purpose and for the operation and maintenance thereof. Mortgagor hereby
irrevocably authorizes and directs each tenant, if any, and each successor, if
any, to the interest of any tenant under any Lease, respectively, to rely upon
any notice of a claimed Event of Default sent by Mortgagee to any such tenant or
any of such tenant's successors in interest, and thereafter to pay Rents to
Mortgagee without any obligation or right to inquire as to whether an Event of
Default actually exists and even if some notice to the contrary is received from
the Mortgagor, who shall have no right or claim against any such tenant or
successor in interest for any such Rents so paid to Mortgagee. Each tenant or
any of such tenant's successors in interest from whom Mortgagee or any officer,
agent, attorney or employee of Mortgagee shall have collected any Rents, shall
be authorized to pay Rents to Mortgagor only after such tenant or any of their
successors in interest shall have
160
15
received written notice from Mortgagee that the Event of Default is no longer
continuing, unless and until a further notice of an Event of Default is given by
Mortgagee to such tenant or any of its successors in interest.
(e) Mortgagee will not become a mortgagee in possession so long as it
does not enter or take actual possession of the Mortgaged Property. In addition,
Mortgagee shall not be responsible or liable for performing any of the
obligations of the landlord under any Lease, for any waste by any tenant, or
others, for any dangerous or defective conditions of any of the Mortgaged
Property, for negligence in the management, upkeep, repair or control of any of
the Mortgaged Property or any other act or omission by any other person.
(f) Mortgagor shall furnish to Mortgagee, within 30 days after a
request by Mortgagee to do so, a written statement containing the names of all
tenants, subtenants and concessionaires of the Premises or Improvements, the
terms of any Lease, the space occupied and the rentals or license fees payable
thereunder.
SECTION 1.09. Restrictions on Transfers and Encumbrances. Except as
permitted by the Credit Agreement, Mortgagor shall not directly or indirectly
sell, convey, alienate, assign, lease, sublease, license, mortgage, pledge,
encumber or otherwise transfer, create, consent to or suffer the creation of any
lien, charges or any form of encumbrance upon any interest in or any part of the
Mortgaged Property, or be divested of its title to the Mortgaged Property or any
interest therein in any manner or way, whether voluntarily or involuntarily
(other than resulting from a condemnation), or engage in any common,
cooperative, joint, time-sharing or other congregate ownership of all or part
thereof; provided, however, that Mortgagor may in the ordinary course of
business within reasonable commercial standards, enter into easement or covenant
agreements that relate to and/or benefit the operation of the Mortgaged Property
and that do not materially or adversely affect the use and operation of the same
(except for customary utility easements that service the Mortgaged Property,
which are permitted).
SECTION 1.10. Security Agreement. This Mortgage is both a mortgage of
real property and a grant of a security interest in personal property, and shall
constitute and serve as a "Security Agreement" within the meaning of the uniform
commercial code as adopted in the state wherein the Premises are located
("UCC"). Mortgagor hereby grants unto Mortgagee a security interest in and to
all the Mortgaged Property described in this Mortgage that is not real property,
and simultaneously with the recording of this Mortgage, Mortgagor has filed or
will file UCC financing statements, and will file continuation statements prior
to the lapse thereof, at the appropriate offices in the state in which the
Premises are located to perfect the security interest granted by this Mortgage
in all the Mortgaged Property that is not real property. Mortgagor hereby
appoints Mortgagee as its true and lawful attorney-in-fact and agent, for
Mortgagor and in its name, place and stead, in any and all capacities, to
execute any document and to file the same in the appropriate offices (to the
extent it may lawfully do so), and to perform each and every act and thing
reasonably requisite and necessary to be done to perfect the security interest
contemplated by the preceding sentence.
161
16
Mortgagee shall have all rights with respect to the part of the Mortgaged
Property that is the subject of a security interest afforded by the UCC in
addition to, but not in limitation of, the other rights afforded Mortgagee
hereunder and under the Security Agreement.
SECTION 1.11. Filing and Recording. Mortgagor will cause this Mortgage,
any other security instrument creating a security interest in or evidencing the
lien hereof upon the Mortgaged Property and each instrument of further assurance
to be filed, registered or recorded in such manner and in such places as may be
required by any present or future law in order to publish notice of and fully to
protect the lien hereof upon, and the security interest of Mortgagee in, the
Mortgaged Property. Mortgagor will pay all filing, registration or recording
fees, and all reasonable expenses incidental to the execution and acknowledgment
of this Mortgage, any mortgage supplemental hereto, any security instrument with
respect to the Personal Property, and any instrument of further assurance and
all Federal, state, county and municipal recording, documentary or intangible
taxes and other taxes, duties, imposts, assessments and charges arising out of
or in connection with the execution, delivery and recording of this Mortgage,
any mortgage supplemental hereto, any security instrument with respect to the
Personal Property or any instrument of further assurance.
SECTION 1.12. Further Assurances. Upon demand by Mortgagee, Mortgagor
will, at the cost of Mortgagor and without expense to Mortgagee, do, execute,
acknowledge and deliver all such further acts, deeds, conveyances, mortgages,
assignments, notices of assignment, transfers and assurances as Mortgagee shall
from time to time reasonably require for the better assuring, conveying,
assigning, transferring and confirming unto Mortgagee the property and rights
hereby conveyed or assigned or intended now or hereafter so to be, or which
Mortgagor may be or may hereafter become bound to convey or assign to Mortgagee,
or for carrying out the intention or facilitating the performance of the terms
of this Mortgage, or for filing, registering or recording this Mortgage, and on
demand, Mortgagor will also execute and deliver and hereby appoints Mortgagee as
its true and lawful attorney-in-fact and agent, for Mortgagor and in its name,
place and stead, in any and all capacities, to execute and file to the extent it
may lawfully do so, one or more financing statements, chattel mortgages or
comparable security instruments reasonably requested by Mortgagee to evidence
more effectively the lien hereof upon the Personal Property and to perform each
and every act and thing requisite and necessary to be done to accomplish the
same.
SECTION 1.13. Additions to Mortgaged Property. All right, title and
interest of Mortgagor in and to all extensions, improvements, betterments,
renewals, substitutes and replacements of, and all additions and appurtenances
to, the Mortgaged Property hereafter acquired by or released to Mortgagor or
constructed, assembled or placed by Mortgagor upon the Premises or the
Improvements, and all conversions of the security constituted thereby,
immediately upon such acquisition, release, construction, assembling, placement
or conversion, as the case may be, and in each such case without any further
mortgage, conveyance, assignment or other act by Mortgagor, shall become subject
to the lien and security interest of this Mortgage as fully and completely and
with the same effect as though
162
17
now owned by Mortgagor and specifically described in the grant of the Mortgaged
Property above, but at any and all times Mortgagor will execute and deliver to
Mortgagee any and all such further assurances, mortgages, conveyances or
assignments thereof as Mortgagee may reasonably require for the purpose of
expressly and specifically subjecting the same to the lien and security interest
of this Mortgage.
SECTION 1.14. No Claims Against Mortgagee. Nothing contained in this
Mortgage shall constitute any consent or request by Mortgagee, express or
implied, for the performance of any labor or services or the furnishing of any
materials or other property in respect of the Mortgaged Property or any part
thereof, nor as giving Mortgagor any right, power or authority to contract for
or permit the performance of any labor or services or the furnishing of any
materials or other property in such fashion as would permit the making of any
claim against Mortgagee in respect thereof.
SECTION 1.15. Fixture Filing. Certain of the Mortgaged Property is or
will become "fixtures" (as that term is defined in the UCC) on the Land, and
this Mortgage upon being filed for record in the real estate records of the
county wherein such fixtures are situated shall operate also as a financing
statement filed as a fixture filing in accordance with the applicable provisions
of said UCC upon such of the Mortgaged Property that is or may become fixtures.
ARTICLE II
Defaults and Remedies
SECTION 2.01. Events of Default. Any Event of Default under the Credit
Agreement (as such term is defined therein) shall constitute an Event of Default
under this Mortgage.
SECTION 2.02. Demand for Payment. If an Event of Default shall occur
and be continuing, then, upon written demand of Mortgagee, Mortgagor will pay to
Mortgagee all amounts due hereunder and such further amount as shall be
sufficient to cover the costs and expenses of collection, including attorneys'
fees, disbursements and expenses incurred by Mortgagee and Mortgagee shall be
entitled and empowered to institute an action or proceedings at law or in equity
for the collection of the sums so due and unpaid, to prosecute any such action
or proceedings to judgment or final decree, to enforce any such judgment or
final decree against Mortgagor and to collect, in any manner provided by law,
all moneys adjudged or decreed to be payable.
SECTION 2.03. Rights To Take Possession, Operate and Apply Revenues.
(a) If an Event of Default shall occur and be continuing, Mortgagor shall, upon
demand of Mortgagee, forthwith surrender to Mortgagee actual possession of the
Mortgaged Property and, if and to the extent not prohibited by applicable law,
Mortgagee itself, or by such officers or
163
18
agents as it may appoint, may then enter and take possession of all the
Mortgaged Property without the appointment of a receiver or an application
therefor, exclude Mortgagor and its agents and employees wholly therefrom, and
have access to the books, papers and accounts of Mortgagor.
(b) If Mortgagor shall for any reason fail to surrender or deliver the
Mortgaged Property or any part thereof after such demand by Mortgagee, Mortgagee
may to the extent not prohibited by applicable law, obtain a judgment or decree
conferring upon Mortgagee the right to immediate possession or requiring
Mortgagor to deliver immediate possession of the Mortgaged Property to
Mortgagee, to the entry of which judgment or decree Mortgagor hereby
specifically consents. Mortgagor will pay to Mortgagee, upon demand, all
reasonable expenses of obtaining such judgment or decree, including reasonable
compensation to Mortgagee's attorneys and agents with interest thereon at the
Default Interest Rate; and all such expenses and compensation shall, until paid,
be secured by this Mortgage.
(c) Upon every such entry or taking of possession, Mortgagee may, to
the extent not prohibited by applicable law, hold, store, use, operate, manage
and control the Mortgaged Property, conduct the business thereof in a
commercially reasonable manner and, from time to time, (i) make all necessary
and proper maintenance, repairs, renewals, replacements, additions, betterments
and improvements thereto and thereon, (ii) purchase or otherwise acquire
additional fixtures, personalty and other property, (iii) insure or keep the
Mortgaged Property insured, (iv) manage and operate the Mortgaged Property and
exercise all the rights and powers of Mortgagor to the same extent as Mortgagor
could in its own name or otherwise with respect to the same, or (v) enter into
any and all agreements with respect to the exercise by others of any of the
powers herein granted Mortgagee, all as may from time to time be directed or
determined by Mortgagee to be in its best interest and Mortgagor hereby appoints
Mortgagee as its true and lawful attorney-in-fact and agent, for Mortgagor and
in its name, place and stead, in any and all capacities, to perform any of the
foregoing acts. Mortgagee may collect and receive all the Rents, issues, profits
and revenues from the Mortgaged Property, including those past due as well as
those accruing thereafter, and, after deducting (i) all expenses of taking,
holding, managing and operating the Mortgaged Property (including compensation
for the services of all persons employed for such purposes), (ii) the costs of
all such maintenance, repairs, renewals, replacements, additions, betterments,
improvements, purchases and acquisitions, (iii) the costs of insurance, (iv)
such taxes, assessments and other similar charges as Mortgagee may at its option
pay, (v) other proper charges upon the Mortgaged Property or any part thereof
and (vi) the compensation, expenses and disbursements of the attorneys and
agents of Mortgagee, Mortgagee shall apply the remainder of the moneys and
proceeds so received first to the payment of the Mortgagee for the satisfaction
of the Obligations, and second, if there is any surplus, to Mortgagor, subject
to the entitlement of others thereto under applicable law.
(d) Whenever, before any sale of the Mortgaged Property under Section
2.06, all Obligations that are then due shall have been paid and all Events of
Default fully cured,
164
19
Mortgagee will surrender possession of the Mortgaged Property back to Mortgagor,
its successors or assigns. The same right of taking possession shall, however,
arise again if any subsequent Event of Default shall occur and be continuing.
SECTION 2.04. Right To Cure Mortgagor's Failure to Perform. Should
Mortgagor fail in the payment, performance or observance of any term, covenant
or condition required by this Mortgage or the Credit Agreement (with respect to
the Mortgaged Property), Mortgagee may pay, perform or observe the same, and
all payments made or costs or expenses incurred by Mortgagee in connection
therewith shall be secured hereby and shall be, without demand, immediately
repaid by Mortgagor to Mortgagee with interest thereon at the Default Interest
Rate. Mortgagee shall be the judge using reasonable discretion of the necessity
for any such actions and of the amounts to be paid. Mortgagee is hereby
empowered to enter and to authorize others to enter upon the Premises or the
Improvements or any part thereof for the purpose of performing or observing any
such defaulted term, covenant or condition without having any obligation to so
perform or observe and without thereby becoming liable to Mortgagor, to any
person in possession holding under Mortgagor or to any other person.
SECTION 2.05. Right to a Receiver. If an Event of Default shall occur
and be continuing, Mortgagee, upon application to a court of competent
jurisdiction, shall be entitled as a matter of right to the appointment of a
receiver to take possession of and to operate the Mortgaged Property and to
collect and apply the Rents. The receiver shall have all of the rights and
powers permitted under the laws of the state wherein the Mortgaged Property is
located. Mortgagor shall pay to Mortgagee upon demand all reasonable expenses,
including receiver's fees, reasonable attorney's fees and disbursements, costs
and agent's compensation incurred pursuant to the provisions of this Section
2.05; and all such expenses shall be secured by this Mortgage and shall be,
without demand, immediately repaid by Mortgagor to Mortgagee with interest
thereon at the Default Interest Rate.
SECTION 2.06. Foreclosure and Sale. (a) If an Event of Default shall
occur and be continuing, Mortgagee may elect to sell the Mortgaged Property or
any part of the Mortgaged Property by exercise of the power of foreclosure or of
sale granted to Mortgagee by applicable law or this Mortgage. In such case,
Mortgagee may commence a civil action to foreclose this Mortgage, or it may
proceed and sell the Mortgaged Property to satisfy any Obligation. Mortgagee or
an officer appointed by a judgment of foreclosure to sell the Mortgaged
Property, may sell all or such parts of the Mortgaged Property as may be chosen
by Mortgagee at the time and place of sale fixed by it in a notice of sale,
either as a whole or in separate lots, parcels or items as Mortgagee shall deem
expedient, and in such order as it may determine, at public auction to the
highest bidder. Mortgagee or an officer appointed by a judgment of foreclosure
to sell the Mortgaged Property may postpone any foreclosure or other sale of all
or any portion of the Mortgaged Property by public announcement at such time and
place of sale, and from time to time thereafter may postpone such sale by public
announcement or subsequently noticed sale. Without further notice, Mortgagee or
an officer appointed to sell the Mortgaged Property may make such sale at the
time fixed by the last
165
20
postponement, or may, in its discretion, give a new notice of sale. Any person,
including Mortgagor or Mortgagee or any designee or affiliate thereof, may
purchase at such sale.
(b) The Mortgaged Property may be sold subject to unpaid taxes and
Permitted Encumbrances, and, after deducting all costs, fees and expenses of
Mortgagee (including costs of evidence of title in connection with the sale),
Mortgagee or an officer that makes any sale shall apply the proceeds of sale in
the manner set forth in Section 2.08.
(c) Any foreclosure or other sale of less than the whole of the
Mortgaged Property or any defective or irregular sale made hereunder shall not
exhaust the power of foreclosure or of sale provided for herein; and subsequent
sales may be made hereunder until the Obligations have been satisfied, or the
entirety of the Mortgaged Property has been sold.
(d) If an Event of Default shall occur and be continuing, Mortgagee may
instead of, or in addition to, exercising the rights described in Section
2.06(a) above and either with or without entry or taking possession as herein
permitted, proceed by a suit or suits in law or in equity or by any other
appropriate proceeding or remedy (i) to specifically enforce payment of some or
all of the Obligations, or the performance of any term, covenant, condition or
agreement of this Mortgage or any other Loan Document or any other right, or
(ii) to pursue any other remedy available to Mortgagee, all as Mortgagee shall
determine most effectual for such purposes.
SECTION 2.07. Other Remedies. (a) In case an Event of Default shall
occur and be continuing, Mortgagee may also exercise, to the extent not
prohibited by law, any or all of the remedies available to a secured party under
the uniform commercial code of the State wherein the Mortgaged Property is
located.
(b) In connection with a sale of the Mortgaged Property or any Personal
Property and the application of the proceeds of sale as provided in Section
2.08, Mortgagee shall be entitled to enforce payment of and to receive up to the
principal amount of the Obligations, plus all other charges, payments and costs
due under this Mortgage, and to recover a deficiency judgment for any portion of
the aggregate principal amount of the Obligations remaining unpaid, with
interest.
166
21
SECTION 2.08. Application of Sale Proceeds and Rents. After any
foreclosure sale of all or any of the Mortgaged Property, Mortgagee shall
receive the proceeds of sale, no purchaser shall be required to see to the
application of the proceeds and Mortgagee shall apply the proceeds of the sale
together with any Rents that may have been collected and any other sums that
then may be held by Mortgagee under this Mortgage as follows:
FIRST, to the payment of the costs and expenses of such sale,
including compensation to Mortgagee's attorneys and agents, and of any
judicial proceedings wherein the same may be made, and of all expenses,
liabilities and advances made or incurred by Mortgagee under this
Mortgage, together with interest at the Default Interest Rate on all
advances made by Mortgagee, including all taxes or assessments (except
any taxes, assessments or other charges subject to which the Mortgaged
Property shall have been sold) and the cost of removing any Permitted
Encumbrance (except any Permitted Encumbrance subject to which the
Mortgaged Property was sold);
SECOND, to the Mortgagee for the distribution to the Secured
Parties for the satisfaction of the Obligations owed to the Secured
Parties; and
THIRD, to the Mortgagor, its successors or assigns, or as a
court of competent jurisdiction may otherwise direct.
The Mortgagee shall have absolute discretion as to the time of application of
any such proceeds, moneys or balances in accordance with this Mortgage. Upon any
sale of the Mortgaged Property by the Mortgagee (including pursuant to a power
of sale granted by statute or under a judicial proceeding), the receipt of the
Mortgagee or of the officer making the sale shall be a sufficient discharge to
the purchaser or purchasers of the Mortgaged Property so sold and such purchaser
or purchasers shall not be obligated to see to the application of any part of
the purchase money paid over to the Mortgagee or such officer or be answerable
in any way for the misapplication thereof.
SECTION 2.09. Mortgagor as Tenant Holding Over. If Mortgagor remains in
possession of any of the Mortgaged Property after any foreclosure sale by
Mortgagee, at Mortgagee's election Mortgagor shall be deemed a tenant holding
over and shall forthwith surrender possession to the purchaser or purchasers at
such sale or be summarily dispossessed or evicted according to provisions of law
applicable to tenants holding over.
SECTION 2.10. Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. Mortgagor waives, to the extent not prohibited by law, (i) the
benefit of all laws now existing or that hereafter may be enacted providing for
any appraisement of any portion of the Mortgaged Property, (ii) the benefit of
all laws now existing or that may be hereafter enacted in any way extending the
time for the enforcement or the collection of amounts due under any of the
Obligations or creating or extending a period of redemption from any sale made
in collecting said debt or any other amounts due Mortgagee, (iii) any
167
22
right to at any time insist upon, plead, claim or take the benefit or advantage
of any law now or hereafter in force providing for any appraisement, homestead
exemption, valuation, stay, statute of limitations, extension or redemption, or
sale of the Mortgaged Property as separate tracts, units or estates or as a
single parcel in the event of foreclosure or notice of deficiency, and (iv) all
rights of redemption, valuation, appraisement, stay of execution, notice of
election to mature or declare due the whole of or each of the Obligations and
marshalling in the event of foreclosure of this Mortgage.
SECTION 2.11. Discontinuance of Proceedings. In case Mortgagee shall
proceed to enforce any right, power or remedy under this Mortgage by
foreclosure, entry or other wise, and such proceedings shall be discontinued or
abandoned for any reason, or shall be determined adversely to Mortgagee, then
and in every such case Mortgagor and Mortgagee shall be restored to their former
positions and rights hereunder, and all rights, powers and remedies of Mortgagee
shall continue as if no such proceeding had been taken.
SECTION 2.12. Suits To Protect the Mortgaged Property. Mortgagee shall
have power (a) to institute and maintain suits and proceedings to prevent any
impairment of the Mortgaged Property by any acts that may be unlawful or in
violation of this Mortgage, (b) to preserve or protect its interest in the
Mortgaged Property and in the Rents arising therefrom and (c) to restrain the
enforcement of or compliance with any legislation or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of or compliance with such enactment, rule or order would impair
the security or be prejudicial to the interest of Mortgagee hereunder.
SECTION 2.13. Filing Proofs of Claim. In case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other proceedings affecting Mortgagor, Mortgagee shall, to the extent permitted
by law, be entitled to file such proofs of claim and other documents as may be
necessary or advisable in order to have the claims of Mortgagee allowed in such
proceedings for the Obligations secured by this Mortgage at the date of the
institution of such proceedings and for any interest accrued, late charges and
additional interest or other amounts due or that may become due and payable
hereunder after such date.
SECTION 2.14. Possession by Mortgagee. Notwithstanding the appointment
of any receiver, liquidator or trustee of Mortgagor, any of its property or the
Mortgaged Property, Mortgagee shall be entitled, to the extent not prohibited by
law, to remain in possession and control of all parts of the Mortgaged Property
now or hereafter granted under this Mortgage to Mortgagee in accordance with the
terms hereof and applicable law.
SECTION 2.15. Waiver. (a) No delay or failure by Mortgagee to exercise
any right, power or remedy accruing upon any breach or Event of Default shall
exhaust or impair any such right, power or remedy or be construed to be a waiver
of any such breach or Event of Default or acquiescence therein; and every right,
power and remedy given by this Mortgage to Mortgagee may be exercised from time
to time and as often as may be deemed expedient by Mortgagee. No consent or
waiver by Mortgagee to or of any breach or default by
168
23
Mortgagor in the performance of the Obligations shall be deemed or construed to
be a consent or waiver to or of any other breach or Event of Default in the
performance of the same or any other Obligations by Mortgagor hereunder. No
failure on the part of Mortgagee to complain of any act or failure to act or to
declare an Event of Default, irrespective of how long such failure continues,
shall constitute a waiver by Mortgagee of its rights hereunder or impair any
rights, powers or remedies consequent on any future Event of Default by
Mortgagor.
(b) Even if Mortgagee (i) grants some forbearance or an extension of
time for the payment of any sums secured hereby, (ii) takes other or additional
security for the payment of any sums secured hereby, (iii) waives or does not
exercise some right granted herein or under the Loan Documents, (iv) releases a
part of the Mortgaged Property from this Mortgage, (v) agrees to change some of
the terms, covenants, conditions or agreements of any of the Loan Documents,
(vi) consents to the filing of a map, plat or replat affecting the Premises,
(vii) consents to the granting of an easement or other right affecting the
Premises or (viii) makes or consents to an agreement subordinating Mortgagee's
lien on the Mortgaged Property hereunder; no such act or omission shall preclude
Mortgagee from exercising any other right, power or privilege herein granted or
intended to be granted in the event of any breach or Event of Default then made
or of any subsequent default; nor, except as otherwise expressly provided in an
instrument executed by Mortgagee, shall this Mortgage be altered thereby. In the
event of the sale or transfer by operation of law or otherwise of all or part of
the Mortgaged Property, Mortgagee is hereby authorized and empowered to deal
with any vendee or transferee with reference to the Mortgaged Property secured
hereby, or with reference to any of the terms, covenants, conditions or
agreements hereof, as fully and to the same extent as it might deal with the
original parties hereto and without in any way releasing or discharging any
liabilities, obligations or undertakings.
SECTION 2.16. Remedies Cumulative. No right, power or remedy conferred
upon or reserved to Mortgagee by this Mortgage is intended to be exclusive of
any other right, power or remedy, and each and every such right, power and
remedy shall be cumulative and concurrent and in addition to any other right,
power and remedy given hereunder or now or hereafter existing at law or in
equity or by statute.
ARTICLE III
Miscellaneous
SECTION 3.01. Partial Invalidity. In the event any one or more of the
provisions contained in this Mortgage shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such validity, illegality or
unenforceability shall, at the option of Mortgagee, not affect any other
provision of this Mortgage, and this Mortgage shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein or
therein.
169
24
SECTION 3.02. Notices. All notices and communications hereunder shall
be in writing and given to Mortgagor in accordance with the terms of the Credit
Agreement at the address set forth on the first page of this Mortgage and to the
Agent or any Lender as provided in the Credit Agreement.
SECTION 3.03. Successors and Assigns. All of the grants, covenants,
terms, provisions and conditions herein shall run with the Premises and the
Improvements and shall apply to, bind and inure to, the benefit of the permitted
successors and assigns of Mortgagor and the successors and assigns of Mortgagee.
SECTION 3.04. Satisfaction and Cancellation. (a) The conveyance to
Mortgagee of the Mortgaged Property as security, created and consummated by this
Mortgage shall be null and void when all the Obligations have been indefeasibly
paid in full in accordance with the terms of the Loan Documents and the Lenders
have no further commitment to make Loans under the Credit Agreement, no Letters
of Credit are outstanding and the Issuing Lender has no further obligation to
issue Letters of Credit under the Credit Agreement.
(b) Upon a sale or financing by Grantor of all or any portion of the
Mortgaged Property that is permitted under the Credit Agreement and the
application of the Net Proceeds of such sale or financing in accordance with the
Credit Agreement, the lien of this Mortgage shall be released from the
applicable portion of the Mortgaged Property. Grantor shall give Beneficiary
reasonable written notice of any sale or financing of the Mortgaged Property
prior to the closing of such sale or financing.
(c) In connection with any termination or release pursuant to paragraph
(a), the Mortgage shall be marked "satisfied" by the Mortgagee, and this
Mortgage shall be canceled of record at the request and at the expense of the
Mortgagor. Mortgagee shall execute any documents reasonably requested by
Mortgagor to accomplish the foregoing or to accomplish any release contemplated
by paragraph (a) and Mortgagor will pay all costs and expenses, including
reasonable attorneys' fees, disbursements and other charges, incurred by
Mortgagee in connection with the preparation and execution of such documents.
SECTION 3.05. Definitions. As used in this Mortgage, the singular shall
include the plural as the context requires and the following words and phrases
shall have the following meanings: (a) "including" shall mean "including but not
limited to"; (b) "provisions" shall mean "provisions, terms, covenants and/or
conditions"; (c) "lien" shall mean "lien, charge, encumbrance, security
interest, mortgage or deed of trust"; (d) "obligation" shall mean "obligation,
duty, covenant and/or condition"; and (e) "any of the Mortgaged Property" shall
mean "the Mortgaged Property or any part thereof or interest therein". Any act
that Mortgagee is permitted to perform hereunder may be performed at any time
and from time to time by Mortgagee or any person or entity designated by
Mortgagee. Any act that is prohibited to Mortgagor hereunder is also prohibited
to all lessees of any of the Mortgaged Property. Each appointment of Mortgagee
as attorney-in-fact for Mortgagor under the Mortgage is irrevocable, with power
of substitution and coupled with an interest. Subject
170
25
to the applicable provisions hereof, Mortgagee has the right to refuse to grant
its consent, approval or acceptance or to indicate its satisfaction, in its sole
discretion, whenever such consent, approval, acceptance or satisfaction is
required hereunder.
SECTION 3.06. Multisite Real Estate Transaction. Mortgagor acknowledges
that this Mortgage is one of a number of Other Mortgages and Security Documents
that secure the Obligations. Mortgagor agrees that the lien of this Mortgage
shall be absolute and unconditional and shall not in any manner be affected or
impaired by any acts or omissions whatsoever of Mortgagee and without limiting
the generality of the foregoing, the lien hereof shall not be impaired by any
acceptance by the Mortgagee of any security for or guarantees of any of the
Obligations hereby secured, or by any failure, neglect or omission on the part
of Mortgagee to realize upon or protect any Obligation or indebtedness hereby
secured or any collateral security therefor including the Other Mortgages and
other Security Documents. The lien hereof shall not in any manner be impaired or
affected by any release (except as to the property released), sale, pledge,
surrender, compromise, settlement, renewal, extension, indulgence, alteration,
changing, modification or disposition of any of the Obligations secured or of
any of the collateral security therefor, including the Other Mortgages and other
Security Documents or of any guarantee thereof, and Mortgagee may at its
discretion foreclose, exercise any power of sale, or exercise any other remedy
available to it under any or all of the Other Mortgages and other Security
Documents without first exercising or enforcing any of its rights and remedies
hereunder. Such exercise of Mortgagee's rights and remedies under any or all of
the Other Mortgages and other Security Documents shall not in any manner impair
the indebtedness hereby secured or the lien of this Mortgage and any exercise of
the rights or remedies of Mortgagee hereunder shall not impair the lien of any
of the Other Mortgages and other Security Documents or any of Mortgagee's rights
and remedies thereunder. Mortgagor specifically consents and agrees that
Mortgagee may exercise its rights and remedies hereunder and under the Other
Mortgages and other Security Documents separately or concurrently and in any
order that it may deem appropriate and waives any rights of subrogation.
171
26
ARTICLE IV
Particular Provisions
This Mortgage is subject to the following provisions relating to the
particular laws of the state wherein the Premises are located:
SECTION 4.01. Applicable Law; Certain Particular Provisions. This
Mortgage shall be governed by and construed in accordance with the internal law
of the State of New York; provided, however, that the provisions of this
Mortgage relating to the creation, perfection and enforcement of the lien and
security interest created by this Mortgage in respect of the Mortgaged Property
and the exercise of each remedy provided hereby, including the power of
foreclosure or power of sale procedures set forth in this Mortgage, shall be
governed by and construed in accordance with the internal law of the state where
the Mortgaged Property is located, and Mortgagor and Mortgagee agree to submit
to jurisdiction and the laying of venue for any suit on this Mortgage in such
state. The terms and provisions set forth in Appendix A attached hereto are
hereby incorporated by reference as though fully set forth herein. In the event
of any conflict between the terms and provisions contained in the body of this
Mortgage and the terms and provisions set forth in Appendix A, the terms and
provisions set forth in Appendix A shall govern and control.
172
27
IN WITNESS WHEREOF, this Mortgage has been duly executed and delivered
to Mortgagee by Mortgagor on the date of the acknowledgment attached hereto.
XXXXXXXXX SEMICONDUCTOR
CORPORATION, a Delaware corporation,
by:________________________________
Name:
Title:
Attest:
by:______________________________
Name:
Title:
173
28
STATE OF........................)
) ss.:
COUNTY OF.......................)
Then personally appeared the above named ___________________________,
as __________________________ of Xxxxxxxxx Semiconductor Corporation and
acknowledged the foregoing instrument to be his free act and deed in his said
capacity and the free act and deed of said corporation.
Before me,
-------------------------------
Notary Public
-------------------------------
Typed or Printed Name
commission expires:
174
Exhibit A
to Mortgage
Legal Description
29
175
Schedule A
to Mortgage
Leases of Mortgaged Property
30
176
Appendix A
to Mortgage
Local Law Provisions
1. The Mortgaged Property is granted, mortgaged and conveyed WITH MORTGAGE
COVENANTS.
2. This Mortgage is given upon the STATUTORY CONDITION, which is
incorporated herein by reference, for breach of which Mortgagee shall
have the right to foreclose this Mortgage under any legal method of
foreclosure in existence at the time or now existing, or under any
other applicable law, including, without limitation, the STATUTORY
POWER OF SALE, which is expressly incorporated herein by reference, to
the extent authorized or allowed by any present or future law of the
State of Maine. In connection therewith, Mortgagor acknowledges that
this Mortgage secures a loan or loans for business and commercial
purposes and that this Mortgage is given primarily for a business,
commercial or agricultural purpose. In the event of a conflict between
the STATUTORY CONDITION and the terms and provisions of this Mortgage,
the terms and provisions of this Mortgage shall control, to the extent
permitted by Maine law.
3. Mortgagor agrees for itself, its successor and assigns, that the
acceptance, before the expiration of the right of redemption and after
the commencement of foreclosure proceedings of this Mortgage, of
insurance proceeds, eminent domain awards, rents or anything else of
value to be applied on or to the Obligations by Mortgagee or any person
or party holding under Mortgagee shall not constitute a waiver of such
foreclosure, and this agreement by Mortgagor shall be that agreement
referred to in 14 M.R.S.A.Section 6204, as amended, as necessary to
prevent such waiver of foreclosure. This agreement by Mortgagor is
intended to apply to the acceptance and such applications of any such
insurance proceeds, eminent domain awards, rents and other sums or
anything else of value, whether the same shall be accepted from, or for
the account of, Mortgagor or from any other sources whatsoever by
Mortgagee or by any person or party holding under Mortgagee at any time
or times in the future while any portion of the Obligations shall
remain outstanding.
4. Mortgagor is hereby notified and hereby confirms and acknowledges that,
pursuant to 10 M.R.S.A. Section 1146(2), to the extent applicable, in
order to maintain an action against the Mortgagee with respect to a
promise, contract or agreement to lend money, extend credit, forbear
from collection of a debt or make any other accommodation for the
repayment of a debt for more than $250,000, such promise, contract or
agreement (or some memorandum or note thereof) must be both (a) in
writing and (b) signed by Mortgagee.
1
177
5. This Mortgage is an open-end mortgage that secures existing
indebtedness, "Future Advances and "Protective Advances" as such terms
are defined in 33 M.R.S.A.Section 505. the maximum aggregate amount of
all debts or obligations secured by this Mortgage, including Future
Advances, but excluding Protective Advances, shall not at any time
exceed the total amount of $600,000,000. The future advances secured
hereby shall be made to or for the account of Mortgagor and may be made
under the Credit Agreement or any of the other Loan Documents, as the
same may be amended, or may be made pursuant to promissory notes, line
of credit agreements or other instruments evidencing such future
advances which may be hereafter executed and delivered by Mortgagor to
Mortgagee. In the event that any notice described in subsections 5(a)
and 5(b) of 33 M.R.S.A.Section 505 is recorded or is received by
Mortgagee, any commitment, agreement or obligation to make future
advances to or for the benefit of Mortgagor shall immediately cease.
6. This instrument constitutes a financing statement under Article 9 the
Maine Uniform Commercial Code covering the personal property and
fixtures, and the other items and types of collateral included within
the Mortgage Premises and described in this Mortgage. The debtor is
Mortgagor and the secured party is Mortgagee. The mailing address of
the secured party (Mortgagee) from which information concerning the
security interest may be obtained and the mailing address of the debtor
(Mortgagor), are set forth in the opening paragraph of this Mortgage.
7. If an Event of Default shall have occurred, Mortgagee, upon application
to a court of competent jurisdiction, shall be entitled as a matter of
strict right without notice and without regard to the occupancy or
value of any security for the Obligations or the solvency of any party
bound for its payment, to the appointment of a receiver to take
possession of and to operate the Mortgaged Premises and to collect and
apply the revenues. The receiver shall have all of the rights and
powers permitted under the laws of the State of Maine. Mortgagor will
pay to Mortgagee upon demand, all expenses, including receiver's fees,
attorneys' fees, costs and agent's compensation, incurred pursuant to
such appointment and all such expenses shall be included within the
Obligations secured hereby.
8. Notice Pursuant to 18-A M.R.S.A. Section 5-508.
Pursuant to various provisions and sections of this Mortgage,
Mortgagor has appointed Mortgagee as its Attorney-in-fact. To the
extent that such appointments by Mortgagor constitute the granting of a
Durable Power of Attorney within the meaning of 18-A M.R.S.A. Section
5-508, the following (to the extent applicable) shall apply:
Notice to the Principal (Mortgagor): As the "Principal," you
are using this Durable Power of Attorney to grant power to another
person (called the "Agent" or "Attorney-in-fact") to make decisions
about your money, property or both and to use your money, property or
both on your behalf. If this written Durable Power of Attorney does not
limit the powers that you give your Agent, your Agent will
2
178
have broad and sweeping powers to sell or otherwise dispose of your
property and spend your money without advance notice to you or approval
by you. Under this document, your Agent will continue to have these
powers after you become incapacitated, and you may also choose to
authorize your Agent to use these powers before you become
incapacitated. The powers that you give your Agent are explained more
fully in the Maine Revised Statutes, title 18-A, Section 5-501 to 5-508
and in Maine case law. You have the right to revoke or take back this
Durable Power of Attorney at any time as long as you are of sound mind.
If there is anything about this Durable Power of Attorney that you do
not understand, you should ask a lawyer to explain it to you.
Notice to the Agent (Mortgagee): As the "Agent" or
"Attorney-in-fact," you are given power under this Durable Power of
Attorney to make decisions about the money, property or both belonging
to the Principal and to spend the Principal's money, property or both
on that person's behalf in accordance with the terms of this Durable
Power of Attorney. This Durable Power of attorney is only valid if the
Principal is of sound mind when the Principal signs it. As the Agent,
you are under a duty (called a "fiduciary duty") to observe the
standards observed by a prudent person dealing with the property of
another. The duty is explained more fully in the Maine Revised
statutes, Title 18-A, sections 5-501 to 5-508 and 7-302 and in Maine
case law. As the Agent, you are not entitled to use the money or
property for your own benefit to make gifts to yourself for others
unless the Durable Power of Attorney specifically gives you the
authority to do so. As the Agent, your authority under this Durable
Power of Attorney will end when the Principal dies and you will not
have the authority to administer the estate unless you are authorized
to do so in accordance with the Maine Probate Code. If you violate your
fiduciary duty under this Durable Power of Attorney, you may be liable
for damages and may be subject to criminal prosecution. If there is
anything about this Durable Power of Attorney or your duties under it
that you do not understand, you should ask a lawyer to explain it to
you.
9. Waiver of Jury Trial. MORTGAGOR AND MORTGAGEE EXPRESSLY AND VOLUNTARILY
WAIVE ANY AND ALL RIGHTS, WHETHER ARISING UNDER THE UNITED STATES OR
ANY STATE CONSTITUTION, ANY RULES OF CIVIL PROCEDURE, COMMON LAW OR
OTHERWISE, TO DEMAND A TRIAL BY JURY IN ANY ACTION, LAWSUIT,
PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION PROCEDURE BASED UPON,
OR ARISING OUT OF, THIS MORTGAGE OR THE LOAN DOCUMENTS, ANY AGREEMENTS
ARISING UNDER OR RELATING TO THIS MORTGAGE, ANY COLLATERAL SECURING THE
OBLIGATIONS, OR THE DEALINGS OR RELATIONSHIPS BETWEEN OR AMONG
MORTGAGOR AND MORTGAGEE, OR ANY OF THEM. NEITHER MORTGAGOR NOR
MORTGAGEE, INCLUDING ANY ASSIGNEE OR SUCCESSOR OF MORTGAGOR OR
MORTGAGEE, SHALL SEEK A JURY TRIAL IN ANY SUCH ACTION. NEITHER
MORTGAGOR NOR MORTGAGEE SHALL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH
ANY OTHER ACTION WHEN A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
THESE PROVISIONS SHALL BE SUBJECT TO NO
3
179
EXCEPTIONS. NEITHER MORTGAGOR NOR MORTGAGEE HAS IN ANY WAY AGREED WITH OR
REPRESENTED TO THE OTHER THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY
ENFORCED IN ALL INSTANCES.
4
180
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FINANCING STATEMENT
THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FINANCING STATEMENT dated as of April
14, 1999 (this "Deed of Trust"), by XXXXXXXXX SEMICONDUCTOR
CORPORATION, a Delaware corporation, having an office at 000
Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxx, Xxxxx 00000 (the "Grantor"),
to EQUITY TITLE INSURANCE AGENCY, INC., having an office at
2180 South 0000 Xxxx #000, Xxxx Xxxx Xxxx, Xxxx 00000, as
trustee ("Trustee") for the benefit of CREDIT SUISSE FIRST
BOSTON, a bank organized under the laws of Switzerland,
operating through its New York branch, having an office at
Eleven Madison Avenue, New York, New York 10010 ("CSFB"), as
collateral agent (in such capacity, the "Collateral Agent")
for the benefit of the Secured Parties (as defined below) (the
Collateral Agent, in such capacity, the "Beneficiary");
WITNESSETH THAT:
A. Reference is made to the Credit Agreement dated as of April 14, 1999
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Grantor (the "Borrower"), FSC Semiconductor Corporation,
a Delaware corporation, the financial institutions party thereto as lenders
(together with the Swingline Lender (as defined below), the "Lenders"), CSFB, as
administrative agent (in such capacity, the "Agent"), and as Collateral Agent,
swingline lender (in such capacity, the "Swingline Lender") and Issuing Bank (as
defined therein), Salomon Brothers Holding Company Inc, as syndication agent,
and Fleet National Bank, as Issuing Bank and as documentation agent, and ABN
Amro Bank, NV, as documentation agent. As used herein, the term "Secured
Parties" shall mean (i) the Lenders, (ii) the Collateral Agent, (iii) the Agent,
(iii) the Issuing Bank, (iv) each counterparty to an Interest Rate Protection
Agreement entered into with the Borrower if such counterparty was a Lender at
the time the Interest Rate Protection Agreement was entered into, (v) the
beneficiaries of each indemnification obligation undertaken by the Borrower
under any Loan Document and (vi) the successors and permitted assigns of each of
the foregoing. Each capitalized term used herein but not defined herein shall
have the meaning assigned to such term in the Credit Agreement. Pursuant to the
Credit Agreement, (i) the Lenders have lent or agreed to lend to the Borrower
(a) on a term basis, Term Loans in an aggregate principal amount not in excess
of $310,000,000, and (b) on a revolving basis, Revolving Credit Loans, at any
time and from time to time prior to the Termination Date, in an aggregate
principal amount at any time outstanding not in excess of $100,000,000, (ii) the
Swingline Lender has agreed to lend, on a revolving basis, Swingline Loans at
any time and from time to time prior to the Termination Date applicable thereto,
in an aggregate principal amount at any time outstanding not in excess of
$10,000,000 and (iii) the Issuing Bank has issued and has agreed to issue
Letters of Credit in an
181
aggregate face amount at any time outstanding not in excess of $25,000,000 in
each case on the terms and subject to the conditions of the Credit Agreement.
B. In order to induce the Lenders to make Loans and the Issuing Bank to
issue Letters of Credit, the Subsidiaries have agreed to guarantee pursuant to
the Subsidiary Guarantee Agreement the due and punctual payment and performance
of Obligations (as defined in paragraph C below).
C. The obligations of the Lenders to make Loans and of the Issuing Bank
to issue Letters of Credit under the Credit Agreement are conditioned upon,
among other things, the execution and delivery by the Grantor of this Deed of
Trust in the form hereof, to secure (a) the due and punctual payment of (i) the
principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) each payment required to be
made by the Borrower under the Credit Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral, and
(iii) all other monetary obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), of the Grantor and the Borrower to the
Secured Parties under the Credit Agreement, this Deed of Trust and the other
Loan Documents to which the Grantor or the Borrower is or is to be a party, (b)
the due and punctual performance of all covenants, agreements, obligations and
liabilities of the Grantor and the Borrower under or pursuant to the Credit
Agreement, this Deed of Trust and the other Loan Documents and (c) the due and
punctual payment and performance of all obligations of the Borrower under each
Interest Rate Agreement entered into with a counterparty that was a Lender at
the time such Interest Rate Agreement was entered into (all the obligations
referred to in this paragraph C being referred to collectively, as the
"Obligations").
D. Pursuant to the requirements of the Credit Agreement, the Grantor is
entering into this Deed of Trust to create a security interest in the Trust
Property (as defined herein) to secure the performance and payment by the
Grantor and the Borrower of the Obligations. The Credit Agreement also requires
the granting by other Loan Parties of Mortgages or Deed of Trusts (the "Other
Mortgages") that create security interests in certain Mortgaged Properties other
than the Trust Property to secure the performance of the Obligations.
Granting Clauses
182
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and in order to
secure (A) the due and punctual payment and performance of the Obligations, (B)
the due and punctual payment by the Grantor of all taxes and insurance premiums
relating to the Trust Property and (C) all disbursements made by Beneficiary for
the payment of taxes, common area charges or insurance premiums, all fees,
expenses or advances in connection with or relating to the Trust Property, and
interest on such disbursements and other amounts not timely paid in accordance
with the terms of the Credit Agreement, this Deed of Trust and the other Loan
Documents, Grantor hereby grants, conveys, mortgages, assigns and pledges to the
Trustee, IN TRUST FOREVER, with power of sale, for the benefit of Beneficiary
(for the ratable benefit of the Secured Parties), a security interest in, all
the following described property (the "Trust Property") whether now owned or
held or hereafter acquired:
(1) all Grantor's right, title and interest in all the fee
estate in the land more particularly described on Exhibit A hereto (the
"Land"), together with all rights appurtenant thereto, including the
easements over certain other adjoining land granted by any easement
agreements, covenant or restrictive agreements and all air rights,
mineral rights, water rights, oil and gas rights and development
rights, if any, relating thereto, and also together with all of the
other easements, rights, privileges, interests, hereditaments and
appurtenances thereunto belonging or in anyway appertaining and all of
the estate, right, title, interest, claim or demand whatsoever of
Grantor therein and in the streets and ways adjacent thereto, either in
law or in equity, in possession or expectancy, now or hereafter
acquired (the "Premises");
(2) all Grantor's right, title and interest in all buildings,
improvements, structures, paving, parking areas, walkways and
landscaping now or hereafter erected or located upon the Land, and all
fixtures of every kind and type affixed to the Premises or attached to
or forming part of any structures, buildings or improvements and
replacements thereof now or hereafter erected or located upon the Land
(the "Improvements");
(3) all Grantor's right, title and interest in all apparatus,
movable appliances, building materials, equipment, fittings,
furnishings, furniture, machinery and other articles of tangible
personal property of every kind and nature, and replacements thereof,
now or at any time hereafter placed upon or used in any way in
connection with the use, enjoyment, occupancy or operation of the
Improvements or the Premises, including all of Grantor's books and
records relating thereto and including all pumps, tanks, goods,
machinery, tools, equipment, lifts (including fire sprinklers and alarm
systems, fire prevention or control systems, cleaning rigs, air
conditioning, heating, boilers, refrigerating, electronic monitoring,
water, loading, unloading, lighting, power, sanitation, waste removal,
entertainment, communications, computers, recreational, window or
structural, maintenance, truck or car repair and all other equipment of
every kind), restaurant, bar and all other indoor or outdoor furniture
(including tables, chairs, booths, serving stands, planters, desks,
sofas, racks, shelves, lockers and cabinets), bar equipment, glasses,
cutlery, uniforms, linens, memorabilia and other decorative items,
furnishings, appliances, supplies, inventory, rugs, carpets and other
floor coverings, draperies, drapery rods and brackets, awnings,
venetian blinds, partitions, chandeliers and other lighting fixtures,
freezers, refrigerators, walk-in coolers, signs (indoor and outdoor),
computer systems, cash registers and inventory control systems, and all
other apparatus, equipment, furniture,
3
183
furnishings, and articles used in connection with the use or operation
of the Improvements or the Premises, it being understood that the
enumeration of any specific articles of property shall in no way result
in or be held to exclude any items of property not specifically
mentioned (the property referred to in this subparagraph (3), the
"Personal Property");
(4) all Grantor's right, title and interest in all general
intangibles relating to design, development, operation, management and
use of the Premises or the Improvements, all certificates of occupancy,
zoning variances, building, use or other permits, approvals,
authorizations and consents obtained from and all materials prepared
for filing or filed with any governmental agency in connection with the
development, use, operation or management of the Premises and
Improvements, all construction, service, engineering, consulting,
leasing, architectural and other similar contracts concerning the
design, construction, management, operation, occupancy and/or use of
the Premises and Improvements, all architectural drawings, plans,
specifications, soil tests, feasibility studies, appraisals,
environmental studies, engineering reports and similar materials
relating to any portion of or all of the Premises and Improvements, and
all payment and performance bonds or warranties or guarantees relating
to the Premises or the Improvements, all to the extent assignable (the
"Permits, Plans and Warranties");
(5) Grantor's interest in and rights under any and all now or
hereafter existing leases or licenses (under which Grantor is landlord
or licensor) and subleases (under which Grantor is sublandlord),
concession, management, mineral or other agreements of a similar kind
that permit the use or occupancy of the Premises or the Improvements
for any purpose in return for any payment, or the extraction or taking
of any gas, oil, water or other minerals from the Premises in return
for payment of any fee, rent or royalty (collectively, "Leases"), and
all agreements or contracts for the sale or other disposition of all or
any part of the Premises or the Improvements, now or hereafter entered
into by Grantor, together with all charges, fees, income, issues,
profits, receipts, rents, revenues or royalties payable thereunder
("Rents");
(6) all Grantor's right, title and interest in and to all real
estate tax refunds and all proceeds of the conversion, voluntary or
involuntary, of any of the Trust Property into cash or liquidated
claims ("Proceeds"), including Proceeds of insurance maintained by the
Grantor and condemnation awards, any awards that may become due by
reason of the taking by eminent domain or any transfer in lieu thereof
of the whole or any part of the Premises or Improvements or any rights
appurtenant thereto, and any awards for change of grade of streets,
together with any and all moneys now or hereafter on deposit for the
payment of real estate taxes, assessments or common area charges levied
against the Trust Property, unearned premiums on policies of fire and
other insurance maintained by the Grantor covering any interest in the
Trust Property or required by the Credit Agreement; and
(7) all Grantor's right, title and interest in and to all
extensions, improvements, betterments, renewals, substitutes and
replacements of and all additions and appurtenances to, the Land, the
Premises, the Improvements, the Personal Property, the Permits, Plans
and Warranties and the Leases, hereinafter acquired by or released to
the Grantor or constructed, assembled or placed by the Grantor on the
Land, the
4
184
Premises or the Improvements, and all conversions of the security
constituted thereby, immediately upon such acquisition, release,
construction, assembling, placement or conversion, as the case may be,
and in each such case, without any further mortgage, deed of trust,
conveyance, assignment or other act by the Grantor, all of which shall
become subject to the lien of this Deed of Trust as fully and
completely, and with the same effect, as though now owned by the
Grantor and specifically described herein.
TO HAVE AND TO HOLD the Trust Property unto the Trustee, its successors
and assigns, for the benefit of Beneficiary (for the ratable benefit of the
Secured Parties), forever, subject only to the Permitted Encumbrances (as
hereinafter defined) and to satisfaction and cancelation as provided in Section
3.04. IN TRUST NEVERTHELESS, upon the terms and trust herein set forth for the
benefit and security of the Beneficiary.
ARTICLE I
Representations, Warranties and Covenants of Grantor
Grantor agrees, covenants, represents and/or warrants as follows:
SECTION 1.01. Title. (a) Grantor has good and marketable title to an
indefeasible fee estate in the Land and Improvements subject to no lien, charge
or encumbrance, and this Deed of Trust is and will remain a valid and
enforceable first and prior lien on the Premises, Improvements and the Rents
subject only to, in each case, Liens permitted by Section 6.02 of the Credit
Agreement and the exceptions and encumbrances referred to in Schedule B to the
title insurance policy being issued to insure the lien of this Deed of Trust
(collectively, the "Permitted Encumbrances"). The Permitted Encumbrances do not
materially interfere with the current use, enjoyment or operation of the Trust
Property.
(b) Grantor has good and marketable title to all the Personal Property
subject to no lien, charge or encumbrance other than this Deed of Trust and the
Permitted Encumbrances. Except as permitted under the Credit Agreement, the
Personal Property is not and will not become the subject matter of any lease or
other arrangement that is not a Permitted Encumbrance whereby the ownership of
any Personal Property will be held by any person or entity other than Grantor;
except as permitted under the Credit Agreement, none of the Personal Property
will be removed from the Premises or the Improvements unless the same is no
longer needed for the continued operation of the Premises and the Improvements
as currently operated (or as then operated, to the extent that any change from
the current manner of operation was permitted by the Credit Agreement) or is
replaced by other Personal Property of substantially equal or greater utility
and value; and Grantor will not create or cause to be created (other than
Permitted Encumbrances) any security interest covering any of the Personal
Property other than the security interest in the Personal Property created in
favor of Beneficiary by this Deed of Trust or any other agreement collateral
hereto. The Trust Property is served by water, gas, electric, septic, storm and
sanitary sewage facilities, and such utilities serving the Premises and the
Improvements are located in and in the future will be located fully within the
Premises. There is vehicular access to the Premises and the Improvements which
is provided by, either a public right-of-way abutting and contiguous with the
Land or valid recorded unsubordinated easements.
5
185
(c) Except as set forth on Schedule A hereto, there are no leases
affecting a material portion of the Trust Property. Each Lease is in full force
and effect, and, except as set forth on Schedule A hereto, Grantor has not
given, nor to Grantor's knowledge has it received, any uncured or unwaived
notice of default with respect to any material obligation under any Lease. Each
Lease is subject to no lien, charge or encumbrance other than this Deed of Trust
and the Permitted Encumbrances. Grantor has not received any notice of, nor has
any knowledge of any pending or contemplated condemnation proceeding affecting
the Trust Property or any sale or disposition thereof in lieu of condemnation.
Grantor is not obligated under any right of first refusal, option or other
contractual right to sell, assign or otherwise dispose of any Trust Property or
any interest therein.
(d) All easement agreements, covenant or restrictive agreements,
supplemental agreements and any other instruments hereinabove referred to and
mortgaged hereby (collectively, the "Agreements") are and will remain valid,
subsisting and in full force and effect, unless the failure to remain valid,
subsisting and in full force and effect, individually or in the aggregate, could
not reasonably be expected to have a material adverse effect on the Trust
Property, and Grantor is not in default thereunder and has fully performed the
material terms thereof required to be performed through the date hereof, and has
no knowledge of any default thereunder or failure to fully perform the terms
thereof by any other party, nor of the occurrence of any event that after notice
or the passage of time or both will constitute a default thereunder. Grantor is
in compliance, and shall comply, with all Agreements and Legal Requirements
(including land use and zoning ordinances, regulations and restrictions)
affecting the Trust Property, except for any Agreements and Legal Requirements,
the failure to comply with which could not reasonably be expected to have a
material adverse effect on the Trust Property.
(e) Grantor has good and lawful right and full power and authority to
mortgage the Trust Property and will forever warrant and defend its title to the
Trust Property, the rights of Beneficiary therein under this Deed of Trust and
the validity and priority of the lien of this Deed of Trust thereon against the
claims of all persons and parties except those having rights under Permitted
Encumbrances to the extent of those rights.
(f) This Deed of Trust, when duly recorded in the appropriate public
records and when financing statements are duly filed in the appropriate public
records, will create a valid, perfected and enforceable lien upon and security
interest in all the Trust Property and there will be no defenses or offsets to
this Deed of Trust that will be asserted by Grantor or its Affiliates (or any
third party defense or offset now known to Grantor or its Affiliates) or to any
of the Obligations secured hereby for so long as any portion of the Obligations
is outstanding.
SECTION 1.02. Credit Agreement; Certain Amounts. (a) This Deed of Trust
is given pursuant to the Credit Agreement. Each and every term and provision of
the Credit Agreement (excluding the governing law provisions thereof), including
the rights, remedies, obligations, covenants, conditions, agreements,
indemnities, representations and warranties of the parties thereto shall be
considered as if a part of this Deed of Trust.
(b) To the extent there is a conflict between the terms of this Deed of
Trust and the terms of the Credit Agreement, (except with respect to Section
1.01 hereof), the terms of the Credit Agreement shall control.
6
186
(c) If any remedy or right of Trustee or Beneficiary pursuant hereto is
acted upon by Trustee or Beneficiary or if any actions or proceedings (including
any bankruptcy, insolvency or reorganization proceedings) are commenced in which
Trustee or Beneficiary is made a party and is obliged to defend or uphold or
enforce this Deed of Trust or the rights of Trustee or Beneficiary hereunder or
the terms of any Lease, or if a condemnation proceeding is instituted affecting
the Trust Property, Grantor will pay all reasonable sums, including reasonable
attorneys' fees and disbursements, incurred by Trustee or Beneficiary related to
the exercise of any remedy or right of Trustee or Beneficiary pursuant hereto or
for the reasonable expense of any such action or proceeding together with all
statutory or other costs, disbursements and allowances, interest thereon from
the date of demand for payment thereof at the rate specified in clause (b) of
Section 2.07 of the Credit Agreement (the "Default Interest Rate"), and such
sums and the interest thereon shall, to the extent permissible by law, be a lien
on the Trust Property prior to any right, title to, interest in or claim upon
the Trust Property attaching or accruing subsequent to the recording of this
Deed of Trust and shall be secured by this Deed of Trust to the extent permitted
by law. Any payment of amounts due under this Deed of Trust not made on or
before the due date for such payments shall accrue interest daily without notice
from the due date until paid at the Default Interest Rate, and such interest at
the Default Interest Rate shall be immediately due upon demand by Trustee or
Beneficiary.
SECTION 1.03. Payment of Taxes, Liens and Charges. (a) Except as may be
permitted by the Credit Agreement, Grantor will pay and discharge from time to
time prior to the time when the same shall become delinquent, and before any
interest or penalty accrues thereon or attaches thereto, all taxes of every kind
and nature, all general and special assessments, levies, permits, inspection and
license fees, all water and sewer rents, all vault charges, and all other public
charges, and all service charges, common area charges, private maintenance
charges, utility charges and all other private charges, whether of a like or
different nature, imposed upon or assessed against the Trust Property or any
part thereof or upon the Rents from the Trust Property or arising in respect of
the occupancy, use or possession thereof.
(b) In the event of the passage of any state, Federal, municipal or
other governmental law, order, rule or regulation subsequent to the date hereof
(i) deducting from the value of real property for the purpose of taxation any
lien or encumbrance thereon or in any manner changing or modifying the laws now
in force governing the taxation of this Deed of Trust or debts secured by
mortgages or deeds of trust (other than laws governing income, franchise and
similar taxes generally) or the manner of collecting taxes thereon and (ii)
imposing a tax to be paid by Beneficiary, either directly or indirectly, on this
Deed of Trust or any of the Loan Documents or to require an amount of taxes to
be withheld or deducted therefrom, Grantor will promptly notify Beneficiary of
such event. In such event Grantor shall (i) agree to enter into such further
instruments as may be reasonably necessary or desirable to obligate Grantor to
make any applicable additional payments and (ii) Grantor shall make such
additional payments.
(c) At any time that an Event of Default shall occur hereunder and be
continuing, or if required by any law applicable to Grantor or to Beneficiary,
Beneficiary shall have the right to direct Grantor to make an initial deposit on
account of real estate taxes and assessments, insurance premiums and common area
charges, levied against or payable in
7
187
respect of the Trust Property in advance and thereafter semi-annually, each such
deposit to be equal to one-half of any such annual charges estimated in a
reasonable manner by Beneficiary in order to accumulate with Beneficiary
sufficient funds to pay such taxes, assessments, insurance premiums and charges.
SECTION 1.04. Payment of Closing Costs. Grantor shall pay all costs in
connection with, relating to or arising out of the preparation, execution and
recording of this Deed of Trust, including title company premiums and charges,
inspection costs, survey costs, recording fees and taxes, reasonable attorneys',
engineers', appraisers' and consultants' fees and disbursements and all other
similar reasonable expenses of every kind.
SECTION 1.05. Alterations and Waste; Plans. (a) Except as may be
permitted by the Credit Agreement, no Improvements will be materially altered or
demolished or removed in whole or in part by Grantor. Grantor will not erect any
additions to the existing Improvements or other structures on the Premises which
will materially interfere with the operation conducted thereon on the date
hereof, without the written consent of Beneficiary. Grantor will not commit any
waste on the Trust Property or make any alteration to, or change in the use of,
the Trust Property that will materially diminish the utility thereof for the
operation of the business except as may be permitted under the Credit Agreement
or materially increase any ordinary fire or other hazard arising out of
construction or operation, but in no event shall any such alteration or change
be contrary to the terms of any insurance policy required to be kept pursuant to
Section 1.06. Grantor will maintain and operate the Improvements and Personal
Property in good repair, working order and condition, reasonable wear and tear
excepted.
(b) To the extent the same exist on the date hereof or are obtained in
connection with future permitted alterations, Grantor shall maintain a complete
set of final plans, specifications, blueprints and drawings for the Trust
Property either at the Trust Property or in a particular office at the
headquarters of Grantor to which Beneficiary shall have access upon reasonable
advance notice and at reasonable times.
SECTION 1.06. Insurance. Grantor will keep or cause to be kept the
Improvements and Personal Property insured against such risks, and in the
manner, required by Section 5.02 of the Credit Agreement.
SECTION 1.07. Casualty and Condemnation. (a) Notwithstanding any other
provision of this Deed of Trust or the Credit Agreement, Beneficiary is
authorized, at its option (for the benefit of the Secured Parties), to collect
and receive, to the extent payable to any Loan Party, all insurance proceeds,
damages, claims and rights of action under any insurance policies with respect
to any casualty or other insured damage ("Casualty") to any portion of the Trust
Property (collectively, "Casualty Proceeds"), unless the amount of the related
Casualty Proceeds is less than $2,500,000 and an Event of Default shall not have
occurred and be continuing, in which event Grantor may retain such Casualty
Proceeds for application in accordance with this Section 1.07 to the extent that
the Grantor has delivered a certificate to the Beneficiary within 10 days of
such Casualty, stating that such Casualty Proceeds shall be applied, or shall be
committed to be applied, within 180 days of such Casualty, in accordance with
this Section 1.07; provided that to the extent such Casualty Proceeds are (i)
not so applied, or committed to be so applied within 180 days of any such
Casualty or (ii) if committed to be so applied within 180 days of any such
Casualty, not so
8
188
applied within one year of such Casualty, Grantor shall promptly remit such
Casualty Proceeds to Beneficiary to prepay the outstanding Term Loans as
provided in Section 2.13(f) of the Credit Agreement. Grantor shall notify
Beneficiary, in writing, promptly after Grantor obtains notice or knowledge of
any Casualty which Grantor reasonably believes will cost more than $500,000 to
repair, which notice shall set forth a description of such Casualty and
Grantor's good faith estimate of the amount of related damages. Subject to the
foregoing limitations, Grantor shall endorse and transfer or cause to be
endorsed or transferred any Casualty Proceeds received by it or any other Loan
Party to Beneficiary.
(b) Grantor will notify Beneficiary immediately upon obtaining
knowledge of the institution of any action or proceeding for the taking of the
Trust Property, or any part thereof or interest therein, for public or
quasi-public use under the power of eminent domain, by reason of any public
improvement or condemnation proceeding, or in any other manner (a
"Condemnation"). No settlement or compromise of any claim in excess of $500,000
in connection with any such action or proceeding shall be made without the
consent of Beneficiary, which consent shall not be unreasonably withheld.
Beneficiary is authorized, at its option (for the benefit of the Secured
Parties), to collect and receive all proceeds of any such Condemnation (in each
case, the "Condemnation Proceeds") unless the amount of such Condemnation
Proceeds is less than $2,500,000 and an Event of Default shall not have occurred
and be continuing, in which event Grantor may retain such Condemnation Proceeds
for application in accordance with this Section 1.07 to the extent that the
Grantor has delivered a certificate to the Beneficiary within 10 days of such
Condemnation, stating that such Condemnation Proceeds shall be applied, or shall
be committed to be applied, within 180 days of such Condemnation, in accordance
with this Section 1.07; provided that to the extent such Condemnation Proceeds
are (i) not so applied, or committed to be so applied within 180 days of any
such Condemnation or (ii) if committed to be so applied within 180 days of any
such Condemnation, not so applied within one year of such Condemnation, Grantor
shall promptly remit such Condemnation Proceeds to Beneficiary to prepay the
outstanding Term Loans as provided in Section 2.13(f) of the Credit Agreement.
Subject to the foregoing limitations, Grantor shall execute or cause to be
executed such further assignments of any Condemnation Proceeds as Beneficiary
may reasonably require.
(c) In the event of a Condemnation of all or "substantially all" of the
Trust Property (a "substantially all" Condemnation) (which determination shall
be made by Beneficiary in its reasonable discretion), unless Grantor shall have
notified Beneficiary in writing promptly after such Condemnation that it intends
to replace the Trust Property (and no Default or Event of Default shall have
occurred and be continuing at the time of such election), Beneficiary or
Grantor, as applicable, shall apply the Condemnation Proceeds received as a
result of such Condemnation (less the reasonable costs, if any, incurred by
Beneficiary or Grantor in the recovery of such Condemnation Proceeds, including
reasonable attorneys' fees, other charges and disbursements) to prepay the
outstanding Term Loans as provided in Section 2.13(f) of the Credit Agreement,
with any remaining Condemnation Proceeds being returned to or retained by
Grantor. If Grantor shall elect to replace the Trust Property as contemplated
above, (i) the replacement property shall be of utility or value comparable to
that of the replaced Trust Property and (ii) the insufficiency of any
Condemnation Proceeds to defray the entire expense of the related location,
acquisition and replacement of such replacement property shall in no way relieve
Grantor of its obligation to complete the construction of any replacement
property if Grantor shall have made such election and shall have acquired the
related real property.
9
189
(d) In the event of any Condemnation of the Trust Property, or any part
thereof (other than a Condemnation described in paragraph (c) above (unless
Grantor shall be permitted and shall have elected to replace the Trust Property,
as provided in paragraph (c) above) and subject to the provisions of paragraph
(f) below), Beneficiary or Grantor, as applicable, shall apply the Condemnation
Proceeds first, in the case of a partial Condemnation, to the repair or
restoration of any integrated structure subject to such Condemnation or, in the
case of a condemnation of all, or substantially all, of the Trust Property, to
the location of a replacement property, acquisition of such replacement property
and construction of the replacement structures, and second, if the remainder of
the Condemnation Proceeds is less than $1,000,000, such Condemnation Proceeds
(less the reasonable costs, if any, incurred by Beneficiary or Grantor in the
recovery of such Condemnation Proceeds) shall be returned to or retained by (as
applicable) Grantor, or if the remainder of the Condemnation Proceeds is
$1,000,000 or greater, such Condemnation Proceeds (less the reasonable costs, if
any, incurred by Beneficiary or Grantor in the recovery of such Condemnation
Proceeds) shall be used to prepay the outstanding Term Loans as provided in
Section 2.13(f) of the Credit Agreement, with any remaining Condemnation
Proceeds being returned to or retained by (as applicable) Grantor.
(e) In the event of any Casualty, Grantor shall, subject to the
conditions contained in paragraph (f), restore the Trust Property to
substantially its same condition immediately prior to such Casualty. If Grantor
shall be required to restore the Trust Property, the insufficiency of any
Casualty Proceeds to defray the entire expense of such restoration shall in no
way relieve Grantor of such obligation so to restore. In the event Grantor shall
be required to restore, Grantor shall diligently and continuously prosecute the
restoration of the Trust Property to completion. In addition, there shall first
be allowed to Grantor out of the related Casualty Proceeds an amount sufficient
to, and Grantor shall be obligated to, place the remaining portion, if any, of
the Trust Property in a safe condition that is otherwise in compliance with the
provisions of this Deed of Trust and the Credit Agreement.
(f) Except as otherwise specifically provided in this Section 1.07 with
respect to Casualty Proceeds and Condemnation Proceeds which may be retained by
Grantor, all Casualty Proceeds and all Condemnation Proceeds recovered by
Beneficiary (i) are to be applied to the restoration or replacement of the Trust
Property (less the reasonable cost, if any, to Beneficiary or Grantor of such
recovery and of paying out such proceeds, including reasonable attorneys' fees,
other charges and disbursements and costs allocable to inspecting the Work (as
defined below)) and (ii) shall be applied by Beneficiary to the payment of the
cost of restoring or replacing the Trust Property so damaged, destroyed or taken
or of the portion or portions of the Trust Property not so taken (the "Work")
and (C) shall be paid out from time to time to Grantor as and to the extent the
Work (or the location and acquisition of any replacement of the Trust Property)
progresses for the payment thereof, but subject to each of the following
conditions:
(i) Grantor must promptly commence the restoration process or
the location, acquisition and replacement process (in the case of a
total or "substantially all" Condemnation) in connection with the Trust
Property;
(ii) the Work shall be in the charge of an independent
architect or engineer and before Grantor commences any Work, other than
temporary work to protect property
10
190
or prevent interference with business, Beneficiary shall have received
the plans and specifications and the general contract for the Work from
Grantor. The plans and specifications shall provide for such Work that,
upon completion thereof, the improvements shall (A) be in compliance
with all requirements of applicable Governmental Authorities such that
all representations and warranties of Grantor relating to the
compliance of such the Trust Property with applicable laws, rules or
regulations in this Deed of Trust and the Credit Agreement will be
correct in all respects and (B) be at least equal in value and general
utility to the improvements that were on the Trust Property (or that
were on the Trust Property that has been replaced, if applicable) prior
to the Casualty or Condemnation, and in the case of a Condemnation,
subject to the effect of such Condemnation;
(iii) except as provided in (iv) below, each request for
payment shall be made on seven days' prior notice to Beneficiary and
shall be accompanied by a certificate to be made by such architect or
engineer, stating (A) that all the Work completed has been done in
substantial compliance with the plans and specifications, (B) that the
sum requested is justly required to reimburse Grantor for payments by
Grantor to, or is justly due to, the contractor, subcontractors,
materialmen, laborers, engineers, architects or other persons rendering
services or materials for the Work (giving a brief description of such
services and materials);
(iv) each request for payment in connection with the
acquisition of a replacement Trust Property (in the case of a total or
"substantially all" Condemnation) shall be made on 30 days' prior
notice to Beneficiary and, in connection therewith, (A) each such
request shall be accompanied by a copy of the sales contract or other
document governing the acquisition of the replacement property by
Grantor and a certificate of Grantor stating that the sum requested
represents the sales price under such contract or document and the
related reasonable transaction fees and expenses (including brokerage
fees) and setting forth in sufficient detail the various components of
such requested sum and (B) Grantor shall (I) in addition to any other
items required to be delivered under this Section 1.07, provide
Beneficiary with such opinions, documents, certificates, title
insurance policies, surveys and other insurance policies as it may
reasonably request and (II) take such other actions as Beneficiary may
reasonably deem necessary or appropriate (including actions with
respect to the delivery to Beneficiary of a first priority Deed of
Trust with respect to such real property for the ratable benefit of the
Secured Parties, which opinions, documents, certificates, title
insurance policies, surveys, other insurance policies and mortgage
shall be substantially comparable to similar documents executed and/or
delivered in connection with the Closing Date under the Credit
Agreement;
(v) if required by Beneficiary, each request for payment shall
be accompanied by a search prepared by a title company or licensed
abstractor or by other evidence satisfactory to Beneficiary, that there
has not been filed with respect to the Trust Property any mechanics' or
other lien or instrument for the retention of title in respect of any
part of the Work not discharged of record or bonded to the reasonable
satisfaction of Beneficiary;
(vi) there shall be no Default or Event of Default that has
occurred and is continuing;
11
191
(vii) the request for any payment after the Work has been
completed shall be accompanied by a copy of any certificate or
certificates required by law to render occupancy of the improvements
being rebuilt, repaired or restored legal; and
(viii) after commencing the Work, Grantor shall continue to
perform the Work diligently and in good faith to completion in
accordance with the approved plans and specifications.
Upon completion of the Work and payment in full therefor, the amount of any
Casualty Proceeds or Condemnation Proceeds then or thereafter in the hands of
Beneficiary on account of the Casualty or Condemnation that necessitated such
Work will be applied as follows: (x) with respect to Casualty Proceeds, returned
to Grantor, (y) with respect to amounts then held for Condemnation Proceeds
which are less than $500,000, returned to Grantor and (z) with respect to
amounts then held for Condemnation Proceeds of $500,000 or more, to prepay the
outstanding Term Loans as provided in Section 2.13 of the Credit Agreement, with
any excess being returned to Grantor.
(g) Notwithstanding any other provisions of this Section 1.07, if
Grantor shall have elected to replace the Trust Property in connection with a
total or "substantially all" Condemnation as contemplated in paragraph (c)
above, all Condemnation Proceeds held by Beneficiary in connection therewith
shall be applied to prepay the Term Loans as provided in Section 2.13 of the
Credit Agreement if (i) Grantor notifies Beneficiary that it does not intend to
replace the Trust Property, (ii) Grantor shall not have notified Grantor in
writing that Grantor has acquired or has entered into a contract to acquire the
replacement property within six months after the related Condemnation or (iii)
Grantor shall have not notified Beneficiary in writing that it has begun
construction of the replacement structures within one year after the related
Condemnation.
(h) Nothing in this Section 1.07 shall prevent Beneficiary from
applying at any time all or any part of the Casualty Proceeds or Condemnation
Proceeds to (i) the curing of any Event of Default under the Credit Agreement or
(ii) the payment of any of the Obligations after the occurrence and during the
continuance of an Event of Default.
SECTION 1.08. Assignment of Leases and Rents. (a) Grantor hereby
irrevocably and absolutely grants, transfers and assigns to the Trustee for the
benefit of Beneficiary all of its right title and interest in all Leases,
together with any and all extensions and renewals thereof for purposes of
securing and discharging the performance by Grantor of the Obligations. Grantor
has not assigned or executed any assignment of, and will not assign or execute
any assignment of, any other Lease or their respective Rents to anyone other
than to the Trustee for the benefit of Beneficiary.
(b) Without Beneficiary's prior written consent, Grantor will not (i)
modify, amend, terminate or consent to the cancelation or surrender of any Lease
if such modification, amendment, termination or consent to the Trustee for the
benefit of Beneficiary would, in the reasonable judgment of the Beneficiary, be
adverse in any material respect to the interests of the Lenders, the value of
the Trust Property or the lien created by this Deed of Trust or (ii) consent to
an assignment of any tenant's interest in any Lease or to a subletting thereof
covering a material portion of the Trust Property.
12
192
(c) Subject to Section 1.08(d), Grantor has assigned and transferred to
the Trustee for the benefit of Beneficiary all of Grantor's right, title and
interest in and to the Rents now or hereafter arising from each Lease heretofore
or hereafter made or agreed to by Grantor, it being intended that this
assignment establish, subject to Section 1.08(d), an absolute transfer and
assignment of all Rents and all Leases to Beneficiary and not merely to grant a
security interest therein. Subject to Section 1.08(d), Beneficiary may in
Grantor's name and stead (with or without first taking possession of any of the
Trust Property personally or by receiver as provided herein) operate the Trust
Property and rent, lease or let all or any portion of any of the Trust Property
to any party or parties at such rental and upon such terms as Beneficiary shall,
in its sole discretion, determine, and may collect and have the benefit of all
of said Rents arising from or accruing at any time thereafter or that may
thereafter become due under any Lease.
(d) So long as an Event of Default shall not have occurred and be
continuing, Beneficiary will not exercise any of its rights under Section
1.08(c), and Grantor shall receive and collect the Rents accruing under any
Lease; but after the happening and during the continuance of any Event of
Default, Beneficiary may, at its option, receive and collect all Rents and enter
upon the Premises and Improvements through its officers, agents, employees or
attorneys for such purpose and for the operation and maintenance thereof.
Grantor hereby irrevocably authorizes and directs each tenant, if any, and each
successor, if any, to the interest of any tenant under any Lease, respectively,
to rely upon any notice of a claimed Event of Default sent by Beneficiary to any
such tenant or any of such tenant's successors in interest, and thereafter to
pay Rents to Beneficiary without any obligation or right to inquire as to
whether an Event of Default actually exists and even if some notice to the
contrary is received from the Grantor, who shall have no right or claim against
any such tenant or successor in interest for any such Rents so paid to
Beneficiary. Each tenant or any of such tenant's successors in interest from
whom Beneficiary or any officer, agent, attorney or employee of Beneficiary
shall have collected any Rents, shall be authorized to pay Rents to Grantor only
after such tenant or any of their successors in interest shall have received
written notice from Beneficiary that the Event of Default is no longer
continuing, unless and until a further notice of an Event of Default is given by
Beneficiary to such tenant or any of its successors in interest.
(e) Beneficiary will not become a mortgagee in possession so long as it
does not enter or take actual possession of the Trust Property. In addition,
Beneficiary shall not be responsible or liable for performing any of the
obligations of the landlord under any Lease, for any waste by any tenant, or
others, for any dangerous or defective conditions of any of the Trust Property,
for negligence in the management, upkeep, repair or control of any of the Trust
Property or any other act or omission by any other person.
(f) Grantor shall furnish to Beneficiary, within 30 days after a
request by Beneficiary to do so, a written statement containing the names of all
tenants, subtenants and concessionaires of the Premises or Improvements, the
terms of any Lease, the space occupied and the rentals or license fees payable
thereunder.
SECTION 1.09. Restrictions on Transfers and Encumbrances. Except as
permitted by the Credit Agreement, Grantor shall not directly or indirectly
sell, convey, alienate, assign, lease, sublease, license, mortgage, pledge,
encumber or otherwise transfer, create, consent to
13
193
or suffer the creation of any lien, charges or any form of encumbrance upon any
interest in or any part of the Trust Property, or be divested of its title to
the Trust Property or any interest therein in any manner or way, whether
voluntarily or involuntarily (other than resulting from a condemnation), or
engage in any common, cooperative, joint, time-sharing or other congregate
ownership of all or part thereof; provided, however, that Grantor may in the
ordinary course of business within reasonable commercial standards, enter into
easement or covenant agreements that relate to and/or benefit the operation of
the Trust Property and that do not materially or adversely affect the use and
operation of the same (except for customary utility easements that service the
Trust Property, which are permitted).
SECTION 1.10. Security Agreement. This Deed of Trust is both a mortgage
of real property and a grant of a security interest in personal property, and
shall constitute and serve as a "Security Agreement" within the meaning of the
uniform commercial code as adopted in the state wherein the Premises are located
("UCC"). Grantor has hereby granted unto Beneficiary a security interest in and
to all the Trust Property described in this Deed of Trust that is not real
property, and simultaneously with the recording of this Deed of Trust, Grantor
has filed or will file UCC financing statements, and will file continuation
statements prior to the lapse thereof, at the appropriate offices in the state
in which the Premises are located to perfect the security interest granted by
this Deed of Trust in all the Trust Property that is not real property. Grantor
hereby appoints Beneficiary as its true and lawful attorney-in-fact and agent,
for Grantor and in its name, place and stead, in any and all capacities, to
execute any document and to file the same in the appropriate offices (to the
extent it may lawfully do so), and to perform each and every act and thing
reasonably requisite and necessary to be done to perfect the security interest
contemplated by the preceding sentence. Beneficiary shall have all rights with
respect to the part of the Trust Property that is the subject of a security
interest afforded by the UCC in addition to, but not in limitation of, the other
rights afforded Beneficiary hereunder and under the Security Agreement.
SECTION 1.11. Filing and Recording. Grantor will cause this Deed of
Trust, any other security instrument creating a security interest in or
evidencing the lien hereof upon the Trust Property and each instrument of
further assurance to be filed, registered or recorded in such manner and in such
places as may be required by any present or future law in order to publish
notice of and fully to protect the lien hereof upon, and the security interest
of Beneficiary in, the Trust Property. Grantor will pay all filing, registration
or recording fees, and all reasonable expenses incidental to the execution and
acknowledgment of this Deed of Trust, any mortgage supplemental hereto, any
security instrument with respect to the Personal Property, and any instrument of
further assurance and all Federal, state, county and municipal recording,
documentary or intangible taxes and other taxes, duties, imposts, assessments
and charges arising out of or in connection with the execution, delivery and
recording of this Deed of Trust, any mortgage supplemental hereto, any security
instrument with respect to the Personal Property or any instrument of further
assurance.
SECTION 1.12. Further Assurances. Upon demand by Beneficiary, Grantor
will, at the cost of Grantor and without expense to Trustee or Beneficiary, do,
execute, acknowledge and deliver all such further acts, deeds, conveyances,
mortgages, assignments, notices of assignment, transfers and assurances as
Beneficiary shall from time to time reasonably require for the better assuring,
conveying, assigning, transferring and confirming unto Beneficiary the property
and rights hereby conveyed or assigned or intended now or hereafter so to be, or
which Grantor may be or may hereafter become bound to convey or assign to
14
194
Beneficiary, or for carrying out the intention or facilitating the performance
of the terms of this Deed of Trust, or for filing, registering or recording this
Deed of Trust, and on demand, Grantor will also execute and deliver and hereby
appoints Beneficiary as its true and lawful attorney-in-fact and agent, for
Grantor and in its name, place and stead, in any and all capacities, to execute
and file to the extent it may lawfully do so, one or more financing statements,
chattel mortgages or comparable security instruments reasonably requested by
Beneficiary to evidence more effectively the lien hereof upon the Personal
Property and to perform each and every act and thing requisite and necessary to
be done to accomplish the same.
SECTION 1.13. Additions to Trust Property. All right, title and
interest of Grantor in and to all extensions, improvements, betterments,
renewals, substitutes and replacements of, and all additions and appurtenances
to, the Trust Property hereafter acquired by or released to Grantor or
constructed, assembled or placed by Grantor upon the Premises or the
Improvements, and all conversions of the security constituted thereby,
immediately upon such acquisition, release, construction, assembling, placement
or conversion, as the case may be, and in each such case without any further
mortgage, conveyance, assignment or other act by Grantor, shall become subject
to the lien and security interest of this Deed of Trust as fully and completely
and with the same effect as though now owned by Grantor and specifically
described in the grant of the Trust Property above, but at any and all times
Grantor will execute and deliver to Beneficiary any and all such further
assurances, mortgages, conveyances or assignments thereof as Beneficiary may
reasonably require for the purpose of expressly and specifically subjecting the
same to the lien and security interest of this Deed of Trust.
SECTION 1.14. No Claims Against Trustee or Beneficiary. Nothing
contained in this Deed of Trust shall constitute any consent or request by
Trustee or Beneficiary, express or implied, for the performance of any labor or
services or the furnishing of any materials or other property in respect of the
Trust Property or any part thereof, nor as giving Grantor any right, power or
authority to contract for or permit the performance of any labor or services or
the furnishing of any materials or other property in such fashion as would
permit the making of any claim against Trustee or Beneficiary in respect
thereof.
SECTION 1.15. Fixture Filing. Certain of the Trust Property is or will
become "fixtures" (as that term is defined in the UCC) on the Land, and this
Deed of Trust upon being filed for record in the real estate records of the
county wherein such fixtures are situated shall operate also as a financing
statement filed as a fixture filing in accordance with the applicable provisions
of said UCC upon such of the Trust Property that is or may become fixtures.
ARTICLE II
Defaults and Remedies
SECTION 2.01. Events of Default. Any Event of Default under the Credit
Agreement (as such term is defined therein) shall constitute an Event of Default
under this Deed of Trust.
15
195
SECTION 2.02. Demand for Payment. If an Event of Default shall occur
and be continuing, then, upon written demand of Beneficiary, Grantor will pay to
Beneficiary all amounts due hereunder and such further amount as shall be
sufficient to cover the costs and expenses of collection, including attorneys'
fees, disbursements and expenses incurred by Trustee or Beneficiary and Trustee
or Beneficiary shall be entitled and empowered to institute an action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, to prosecute any such action or proceedings to judgment or final decree,
to enforce any such judgment or final decree against Grantor and to collect, in
any manner provided by law, all moneys adjudged or decreed to be payable.
SECTION 2.03. Rights To Take Possession, Operate and Apply Revenues.
(a) If an Event of Default shall occur and be continuing, Grantor shall, upon
demand of Beneficiary, forthwith surrender to Beneficiary actual possession of
the Trust Property and, if and to the extent not prohibited by applicable law,
Beneficiary itself, or by such officers or agents as it may appoint, may then
enter and take possession of all the Trust Property without the appointment of a
receiver or an application therefor, exclude Grantor and its agents and
employees wholly therefrom, and have access to the books, papers and accounts of
Grantor.
(b) If Grantor shall for any reason fail to surrender or deliver the
Trust Property or any part thereof after such demand by Beneficiary, Beneficiary
may to the extent not prohibited by applicable law, obtain a judgment or decree
conferring upon Beneficiary the right to immediate possession or requiring
Grantor to deliver immediate possession of the Trust Property to Beneficiary, to
the entry of which judgment or decree Grantor hereby specifically consents.
Grantor will pay to Beneficiary, upon demand, all reasonable expenses of
obtaining such judgment or decree, including reasonable compensation to
Beneficiary's attorneys and agents with interest thereon at the Default Interest
Rate; and all such expenses and compensation shall, until paid, be secured by
this Deed of Trust.
(c) Upon every such entry or taking of possession, Beneficiary may, to
the extent not prohibited by applicable law, hold, store, use, operate, manage
and control the Trust Property, conduct the business thereof in a commercially
reasonable manner and, from time to time, (i) make all necessary and proper
maintenance, repairs, renewals, replacements, additions, betterments and
improvements thereto and thereon, (ii) purchase or otherwise acquire additional
fixtures, personalty and other property, (iii) insure or keep the Trust Property
insured, (iv) manage and operate the Trust Property and exercise all the rights
and powers of Grantor to the same extent as Grantor could in its own name or
otherwise with respect to the same, or (v) enter into any and all agreements
with respect to the exercise by others of any of the powers herein granted
Beneficiary, all as may from time to time be directed or determined by
Beneficiary to be in its best interest and Grantor hereby appoints Beneficiary
as its true and lawful attorney-in-fact and agent, for Grantor and in its name,
place and stead, in any and all capacities, to perform any of the foregoing
acts. Beneficiary may collect and receive all the Rents, issues, profits and
revenues from the Trust Property, including those past due as well as those
accruing thereafter, and, after deducting (i) all expenses of taking, holding,
managing and operating the Trust Property (including compensation for the
services of all persons employed for such purposes), (ii) the costs of all such
maintenance, repairs, renewals, replacements, additions, betterments,
improvements, purchases and acquisitions, (iii) the costs of insurance, (iv)
such taxes, assessments and other similar charges as Beneficiary may at its
option pay, (v) other proper charges upon the Trust Property or any part thereof
and (vi) the compensation, expenses and disbursements of the
16
196
attorneys and agents of Beneficiary, Beneficiary shall apply the remainder of
the moneys and proceeds so received first to the payment of the Beneficiary for
the satisfaction of the Obligations, and second, if there is any surplus, to
Grantor, subject to the entitlement of others thereto under applicable law.
(d) Whenever, before any sale of the Trust Property under Section 2.06,
all Obligations that are then due shall have been paid and all Events of Default
fully cured, Beneficiary will surrender possession of the Trust Property back to
Grantor, its successors or assigns. The same right of taking possession shall,
however, arise again if any subsequent Event of Default shall occur and be
continuing.
SECTION 2.04. Right To Cure Grantor's Failure to Perform. Should
Grantor fail in the payment, performance or observance of any term, covenant or
condition required by this Deed of Trust or the Credit Agreement (with respect
to the Trust Property), Beneficiary may pay, perform or observe the same, and
all payments made or costs or expenses incurred by Beneficiary in connection
therewith shall be secured hereby and shall be, without demand, immediately
repaid by Grantor to Beneficiary with interest thereon at the Default Interest
Rate. Beneficiary shall be the judge using reasonable discretion of the
necessity for any such actions and of the amounts to be paid. Beneficiary is
hereby empowered to enter and to authorize others to enter upon the Premises or
the Improvements or any part thereof for the purpose of performing or observing
any such defaulted term, covenant or condition without having any obligation to
so perform or observe and without thereby becoming liable to Grantor, to any
person in possession holding under Grantor or to any other person.
SECTION 2.05. Right to a Receiver. If an Event of Default shall occur
and be continuing, Beneficiary, upon application to a court of competent
jurisdiction, shall be entitled as a matter of right to the appointment of a
receiver to take possession of and to operate the Trust Property and to collect
and apply the Rents. The receiver shall have all of the rights and powers
permitted under the laws of the state wherein the Trust Property is located.
Grantor shall pay to Beneficiary upon demand all reasonable expenses, including
receiver's fees, reasonable attorney's fees and disbursements, costs and agent's
compensation incurred pursuant to the provisions of this Section 2.05; and all
such expenses shall be secured by this Deed of Trust and shall be, without
demand, immediately repaid by Grantor to Beneficiary with interest thereon at
the Default Interest Rate.
SECTION 2.06. Foreclosure and Sale. (a) If an Event of Default shall
occur and be continuing, Beneficiary may elect to sell or to cause and direct
the Trustee to sell the Trust Property or any part of the Trust Property by
exercise of the power of foreclosure or of sale granted to Trustee and/or
Beneficiary by applicable law or this Deed of Trust. In such case, Trustee or
Beneficiary may commence a civil action to foreclose this Deed of Trust, or
Trustee may proceed and sell the Trust Property to satisfy any Obligation.
Trustee or Beneficiary or an officer appointed by a judgment of foreclosure to
sell the Trust Property, may sell all or such parts of the Trust Property as may
be chosen by Trustee or Beneficiary at the time and place of sale fixed by it in
a notice of sale, either as a whole or in separate lots, parcels or items as
Trustee or Beneficiary shall deem expedient, and in such order as it may
determine, at public auction to the highest bidder. Trustee or Beneficiary or an
officer appointed by a judgment of foreclosure to sell the Trust Property may
postpone any foreclosure or other sale of all or any portion of the Trust
Property by public announcement at such time and place of sale, and from time to
time thereafter may postpone such sale by
17
197
public announcement or subsequently noticed sale. Without further notice,
Trustee or Beneficiary or an officer appointed to sell the Trust Property may
make such sale at the time fixed by the last postponement, or may, in its
discretion, give a new notice of sale. Any person, including Grantor or
Beneficiary or any designee or affiliate thereof, may purchase at such sale.
(b) The Trust Property may be sold subject to unpaid taxes and
Permitted Encumbrances, and, after deducting all costs, fees and expenses of
Trustee and Beneficiary (including costs of evidence of title in connection with
the sale), Trustee or Beneficiary or an officer that makes any sale shall apply
the proceeds of sale in the manner set forth in Section 2.08.
(c) Any foreclosure or other sale of less than the whole of the Trust
Property or any defective or irregular sale made hereunder shall not exhaust the
power of foreclosure or of sale provided for herein; and subsequent sales may be
made hereunder until the Obligations have been satisfied, or the entirety of the
Trust Property has been sold.
(d) If an Event of Default shall occur and be continuing, Trustee or
Beneficiary may instead of, or in addition to, exercising the rights described
in Section 2.06(a) above and either with or without entry or taking possession
as herein permitted, proceed by a suit or suits in law or in equity or by any
other appropriate proceeding or remedy (i) to specifically enforce payment of
some or all of the Obligations, or the performance of any term, covenant,
condition or agreement of this Deed of Trust or any other Loan Document or any
other right, or (ii) to pursue any other remedy available to Trustee or
Beneficiary, all as Trustee or Beneficiary shall determine most effectual for
such purposes.
SECTION 2.07. Other Remedies. (a) In case an Event of Default shall
occur and be continuing, Beneficiary may also exercise, to the extent not
prohibited by law, any or all of the remedies available to a secured party under
the uniform commercial code of the State wherein the Trust Property is located.
(b) In connection with a sale of the Trust Property or any Personal
Property and the application of the proceeds of sale as provided in Section
2.08, Beneficiary shall be entitled to enforce payment of and to receive up to
the principal amount of the Obligations, plus all other charges, payments and
costs due under this Deed of Trust, and to recover a deficiency judgment for any
portion of the aggregate principal amount of the Obligations remaining unpaid,
with interest.
18
198
SECTION 2.08. Application of Sale Proceeds and Rents. After any
foreclosure sale of all or any of the Trust Property, Trustee or Beneficiary
shall receive the proceeds of sale, no purchaser shall be required to see to the
application of the proceeds and Trustee or Beneficiary shall apply the proceeds
of the sale together with any Rents that may have been collected and any other
sums that then may be held by Trustee or Beneficiary under this Deed of Trust as
follows:
FIRST, to the payment of the costs and expenses of such sale,
including compensation to Trustee or to Beneficiary's attorneys and
agents, and of any judicial proceedings wherein the same may be made,
and of all expenses, liabilities and advances made or incurred by
Beneficiary under this Deed of Trust, together with interest at the
Default Interest Rate on all advances made by Beneficiary, including
all taxes or assessments (except any taxes, assessments or other
charges subject to which the Trust Property shall have been sold) and
the cost of removing any Permitted Encumbrance (except any Permitted
Encumbrance subject to which the Trust Property was sold);
SECOND, to the Beneficiary for the distribution to the Secured
Parties for the satisfaction of the Obligations owed to the Secured
Parties; and
THIRD, to the Grantor, its successors or assigns, or as a
court of competent jurisdiction may otherwise direct.
The Beneficiary shall have absolute discretion as to the time of application of
any such proceeds, moneys or balances in accordance with this Deed of Trust.
Upon any sale of the Trust Property by the Trustee or Beneficiary (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the Trustee or Beneficiary or of the officer making the sale
shall be a sufficient discharge to the purchaser or purchasers of the Trust
Property so sold and such purchaser or purchasers shall not be obligated to see
to the application of any part of the purchase money paid over to the Trustee or
Beneficiary or such officer or be answerable in any way for the misapplication
thereof.
SECTION 2.09. Grantor as Tenant Holding Over. If Grantor remains in
possession of any of the Trust Property after any foreclosure sale by Trustee or
Beneficiary, at Beneficiary's election Grantor shall be deemed a tenant holding
over and shall forthwith surrender possession to the purchaser or purchasers at
such sale or be summarily dispossessed or evicted according to provisions of law
applicable to tenants holding over.
SECTION 2.10. Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. Grantor waives, to the extent not prohibited by law, (i) the
benefit of all laws now existing or that hereafter may be enacted providing for
any appraisement of any portion of the Trust Property, (ii) the benefit of all
laws now existing or that may be hereafter enacted in any way extending the time
for the enforcement or the collection of amounts due under any of the
Obligations or creating or extending a period of redemption from any sale made
in collecting said debt or any other amounts due Beneficiary, (iii) any right to
at any time insist upon, plead, claim or take the benefit or advantage of any
law now or hereafter in force providing for any appraisement, homestead
exemption, valuation, stay, statute of limitations, extension or redemption, or
sale of the Trust Property as separate tracts, units or estates or as a single
parcel in the event of foreclosure or notice of deficiency, and (iv) all rights
of
19
199
redemption, valuation, appraisement, stay of execution, notice of election to
mature or declare due the whole of or each of the Obligations and marshalling in
the event of foreclosure of this Deed of Trust.
SECTION 2.11. Discontinuance of Proceedings. In case Trustee or
Beneficiary shall proceed to enforce any right, power or remedy under this Deed
of Trust by foreclosure, entry or otherwise, and such proceedings shall be
discontinued or abandoned for any reason, or shall be determined adversely to
Trustee or Beneficiary, then and in every such case Grantor, Trustee and
Beneficiary shall be restored to their former positions and rights hereunder,
and all rights, powers and remedies of Trustee or Beneficiary shall continue as
if no such proceeding had been taken.
SECTION 2.12. Suits To Protect the Trust Property. Trustee and/or
Beneficiary shall have power (a) to institute and maintain suits and proceedings
to prevent any impairment of the Trust Property by any acts that may be unlawful
or in violation of this Deed of Trust, (b) to preserve or protect its interest
in the Trust Property and in the Rents arising therefrom and (c) to restrain the
enforcement of or compliance with any legislation or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of or compliance with such enactment, rule or order would impair
the security or be prejudicial to the interest of Trustee or Beneficiary
hereunder.
SECTION 2.13. Filing Proofs of Claim. In case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other proceedings affecting Grantor, Beneficiary shall, to the extent permitted
by law, be entitled to file such proofs of claim and other documents as may be
necessary or advisable in order to have the claims of Beneficiary allowed in
such proceedings for the Obligations secured by this Deed of Trust at the date
of the institution of such proceedings and for any interest accrued, late
charges and additional interest or other amounts due or that may become due and
payable hereunder after such date.
SECTION 2.14. Possession by Beneficiary. Notwithstanding the
appointment of any receiver, liquidator or trustee of Grantor, any of its
property or the Trust Property, Beneficiary shall be entitled, to the extent not
prohibited by law, to remain in possession and control of all parts of the Trust
Property now or hereafter granted under this Deed of Trust to Beneficiary in
accordance with the terms hereof and applicable law.
SECTION 2.15. Waiver. (a) No delay or failure by Trustee or Beneficiary
to exercise any right, power or remedy accruing upon any breach or Event of
Default shall exhaust or impair any such right, power or remedy or be construed
to be a waiver of any such breach or Event of Default or acquiescence therein;
and every right, power and remedy given by this Deed of Trust to Trustee or
Beneficiary may be exercised from time to time and as often as may be deemed
expedient by Trustee or Beneficiary. No consent or waiver by Beneficiary to or
of any breach or default by Grantor in the performance of the Obligations shall
be deemed or construed to be a consent or waiver to or of any other breach or
Event of Default in the performance of the same or any other Obligations by
Grantor hereunder. No failure on the part of Beneficiary to complain of any act
or failure to act or to declare an Event of Default, irrespective of how long
such failure continues, shall constitute a waiver by Beneficiary of its rights
hereunder or impair any rights, powers or remedies consequent on any future
Event of Default by Grantor.
20
200
(b) Even if Beneficiary (i) grants some forbearance or an extension of
time for the payment of any sums secured hereby, (ii) takes other or additional
security for the payment of any sums secured hereby, (iii) waives or does not
exercise some right granted herein or under the Loan Documents, (iv) releases a
part of the Trust Property from this Deed of Trust, (v) agrees to change some of
the terms, covenants, conditions or agreements of any of the Loan Documents,
(vi) consents to the filing of a map, plat or replat affecting the Premises,
(vii) consents to the granting of an easement or other right affecting the
Premises or (viii) makes or consents to an agreement subordinating Beneficiary's
lien on the Trust Property hereunder; no such act or omission shall preclude
Beneficiary from exercising any other right, power or privilege herein granted
or intended to be granted in the event of any breach or Event of Default then
made or of any subsequent default; nor, except as otherwise expressly provided
in an instrument executed by Trustee and Beneficiary, shall this Deed of Trust
be altered thereby. In the event of the sale or transfer by operation of law or
otherwise of all or part of the Trust Property, Beneficiary is hereby authorized
and empowered to deal with any vendee or transferee with reference to the Trust
Property secured hereby, or with reference to any of the terms, covenants,
conditions or agreements hereof, as fully and to the same extent as it might
deal with the original parties hereto and without in any way releasing or
discharging any liabilities, obligations or undertakings.
SECTION 2.16. Remedies Cumulative. No right, power or remedy conferred
upon or reserved to Trustee or Beneficiary by this Deed of Trust is intended to
be exclusive of any other right, power or remedy, and each and every such right,
power and remedy shall be cumulative and concurrent and in addition to any other
right, power and remedy given hereunder or now or hereafter existing at law or
in equity or by statute.
ARTICLE III
Miscellaneous
SECTION 3.01. Partial Invalidity. In the event any one or more of the
provisions contained in this Deed of Trust shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such validity, illegality or
unenforceability shall, at the option of Beneficiary, not affect any other
provision of this Deed of Trust, and this Deed of Trust shall be construed as if
such invalid, illegal or unenforceable provision had never been contained herein
or therein.
SECTION 3.02. Notices. All notices and communications hereunder shall
be in writing and given to Grantor and Trustee in accordance with the terms of
the Credit Agreement at the address set forth on the first page of this Deed of
Trust and to the Agent or any Lender as provided in the Credit Agreement.
SECTION 3.03. Successors and Assigns. All of the grants, covenants,
terms, provisions and conditions herein shall run with the Premises and the
Improvements and shall apply to, bind and inure to, the benefit of the permitted
successors and assigns of Grantor and the successors and assigns of Beneficiary.
21
201
SECTION 3.04. Satisfaction and Cancellation. (a) The conveyance to
Trustee of the Trust Property as security and for the benefit of Beneficiary,
created and consummated by this Deed of Trust shall be null and void when all
the Obligations have been indefeasibly paid in full in accordance with the terms
of the Loan Documents and the Lenders have no further commitment to make Loans
under the Credit Agreement, no Letters of Credit are outstanding and the Issuing
Lender has no further obligation to issue Letters of Credit under the Credit
Agreement.
(b) Upon a sale or financing by Grantor of all or any portion of the
Trust Property that is permitted under the Credit Agreement and the application
of the Net Proceeds of such sale or financing in accordance with the Credit
Agreement, the lien of this Deed of Trust shall be released from the applicable
portion of the Trust Property. Grantor shall give Beneficiary reasonable written
notice of any sale or financing of the Trust Property prior to the closing of
such sale or financing.
(c) In connection with any termination or release pursuant to paragraph
(a), the Deed of Trust shall be marked "satisfied" by the Beneficiary and/or
Trustee, and this Deed of Trust shall be canceled of record at the request and
at the expense of the Grantor. Beneficiary and Trustee shall execute any
documents reasonably requested by Grantor to accomplish the foregoing or to
accomplish any release contemplated by paragraph (a) and Grantor will pay all
costs and expenses, including reasonable attorneys' fees, disbursements and
other charges, incurred by Beneficiary and Trustee in connection with the
preparation and execution of such documents.
SECTION 3.05. Definitions. As used in this Deed of Trust, the singular
shall include the plural as the context requires and the following words and
phrases shall have the following meanings: (a) "including" shall mean "including
but not limited to"; (b) "provisions" shall mean "provisions, terms, covenants
and/or conditions"; (c) "lien" shall mean "lien, charge, encumbrance, security
interest, mortgage or deed of trust"; (d) "obligation" shall mean "obligation,
duty, covenant and/or condition"; and (e) "any of the Trust Property" shall mean
"the Trust Property or any part thereof or interest therein". Any act that
Trustee or Beneficiary is permitted to perform hereunder may be performed at any
time and from time to time by Trustee or Beneficiary or any person or entity
designated by Trustee or Beneficiary. Any act that is prohibited to Grantor
hereunder is also prohibited to all lessees of any of the Trust Property. Each
appointment of Trustee or Beneficiary as attorney-in-fact for Grantor under the
Deed of Trust is irrevocable, with power of substitution and coupled with an
interest. Subject to the applicable provisions hereof, Beneficiary has the right
to refuse to grant its consent, approval or acceptance or to indicate its
satisfaction, in its sole discretion, whenever such consent, approval,
acceptance or satisfaction is required hereunder.
SECTION 3.06. Multisite Real Estate Transaction. Grantor acknowledges
that this Deed of Trust is one of a number of Other Mortgages and Security
Documents that secure the Obligations. Grantor agrees that the lien of this Deed
of Trust shall be absolute and unconditional and shall not in any manner be
affected or impaired by any acts or omissions whatsoever of Trustee or
Beneficiary and without limiting the generality of the foregoing, the lien
hereof shall not be impaired by any acceptance by the Trustee or Beneficiary of
any security for or guarantees of any of the Obligations hereby secured, or by
any failure, neglect or omission on the part of Trustee or Beneficiary to
realize upon or protect any Obligation or
22
202
indebtedness hereby secured or any collateral security therefor including the
Other Mortgages and other Security Documents. The lien hereof shall not in any
manner be impaired or affected by any release (except as to the property
released), sale, pledge, surrender, compromise, settlement, renewal, extension,
indulgence, alteration, changing, modification or disposition of any of the
Obligations secured or of any of the collateral security therefor, including the
Other Mortgages and other Security Documents or of any guarantee thereof, and
Trustee or Beneficiary may at its discretion foreclose, exercise any power of
sale, or exercise any other remedy available to it under any or all of the Other
Mortgages and other Security Documents without first exercising or enforcing any
of its rights and remedies hereunder. Such exercise of Trustee's or
Beneficiary's rights and remedies under any or all of the Other Mortgages and
other Security Documents shall not in any manner impair the indebtedness hereby
secured or the lien of this Deed of Trust and any exercise of the rights or
remedies of Trustee or Beneficiary hereunder shall not impair the lien of any of
the Other Mortgages and other Security Documents or any of Trustee or
Beneficiary's rights and remedies thereunder. Grantor specifically consents and
agrees that Trustee or Beneficiary may exercise its rights and remedies
hereunder and under the Other Mortgages and other Security Documents separately
or concurrently and in any order that it may deem appropriate and waives any
rights of subrogation.
ARTICLE IV
Particular Provisions
This Deed of Trust is subject to the following provisions relating to
the particular laws of the state wherein the Premises are located:
SECTION 4.01. Applicable Law; Certain Particular Provisions. This Deed
of Trust shall be governed by and construed in accordance with the internal law
of the State of New York; provided, however, that the provisions of this Deed of
Trust relating to the creation, perfection and enforcement of the lien and
security interest created by this Deed of Trust in respect of the Trust Property
and the exercise of each remedy provided hereby, including the power of
foreclosure or power of sale procedures set forth in this Deed of Trust, shall
be governed by and construed in accordance with the internal law of the state
where the Trust Property is located, and Grantor and Beneficiary agree to submit
to jurisdiction and the laying of venue for any suit on this Deed of Trust in
such state. The terms and provisions set forth in Appendix A attached hereto are
hereby incorporated by reference as though fully set forth herein. In the event
of any conflict between the terms and provisions contained in the body of this
Deed of Trust and the terms and provisions set forth in Appendix A, the terms
and provisions set forth in Appendix A shall govern and control.
SECTION 4.02. Trustee's Powers and Liabilities. (a) Trustee, by
acceptance hereof, covenants faithfully to perform and fulfill the trusts herein
created, being liable, however, only for gross negligence, bad faith or wilful
misconduct, and hereby waives any statutory fee and agrees to accept reasonable
compensation, in lieu thereof, for any services rendered by it in accordance
with the terms hereof. All authorities, powers and discretions given in this
Deed of Trust to Trustee and/or Beneficiary may be exercised by either, without
the other, with the same effect as if exercised jointly.
23
203
(b) Trustee may resign at any time upon giving 30 days' notice in
writing to Grantor and to Beneficiary.
(c) Beneficiary may remove Trustee at any time or from time to time and
select a successor trustee. In the event of the death, removal, resignation,
refusal to act, inability to act or absence of Trustee from the state in which
the premises are located, or in its sole discretion for any reason whatsoever,
Beneficiary may, upon notice to the Grantor and without specifying the reason
therefor and without applying to any court, select and appoint a successor
trustee, and all powers, rights, duties and authority of the former Trustee, as
aforesaid, shall thereupon become vested in such successor. Such substitute
trustee shall not be required to give bond for the faithful performance of his
duties unless required by Beneficiary. Such substitute trustee shall be
appointed by written instrument duly recorded in the county where the Land is
located. Grantor hereby ratifies and confirms any and all acts that the herein
named Trustee, or his successor or successors in this trust, shall do lawfully
by virtue hereof. Grantor hereby agrees, on behalf of itself and its heirs,
executors, administrators and assigns, that the recitals contained in any deed
or deeds executed in due form by any Trustee or substitute trustee, acting under
the provisions of this instrument, shall be prima facie evidence of the facts
recited, and that it shall not be necessary to prove in any court, otherwise
than by such recitals, the existence of the facts essential to authorize the
execution and delivery of such deed or deeds and the passing of title thereby.
(d) Trustee shall not be required to see that this Deed of Trust is
recorded, nor liable for its validity or its priority as a first deed of trust,
or otherwise, nor shall Trustee be answerable or responsible for performance or
observance of the covenants and agreements imposed upon Grantor or Beneficiary
by this Deed of Trust or any other agreement. Trustee, as well as Beneficiary,
shall have authority in their respective discretion to employ agents and
attorneys in the execution of this trust and to protect the interest of the
Beneficiary hereunder, and to the extent permitted by law they shall be
compensated and all expenses relating to the employment of such agents and/or
attorneys, including expenses of litigations, shall be paid out of the proceeds
of the sale of the Trust Property conveyed hereby should a sale be had, but if
no such sale be had, all sums so paid out shall be recoverable to the extent
permitted by law by all remedies at law or in equity.
(e) At any time, or from time to time, without liability therefor and
with 10 days' prior written notice to Grantor, upon written request of
Beneficiary and without affecting the effect of this Deed of Trust upon the
remainder of the Trust Property, Trustee may (i) reconvey any part of the Trust
Property, (ii) consent in writing to the making of any map or plat thereof, so
long as Grantor has consented thereto, (iii) join in granting any easement
thereon, so long as Grantor has consented thereto, or (iv) join in any extension
agreement or any agreement subordinating the lien or charge hereof.
24
204
IN WITNESS WHEREOF, this Deed of Trust has been duly executed and
delivered to Trustee and Beneficiary by Grantor on the date of the
acknowledgment attached hereto.
XXXXXXXXX SEMICONDUCTOR CORPORATION, a Delaware
corporation,
by: ________________________________________
Name:
Title:
Attest:
by _____________________________
Name:
Title:
25
205
STATE OF _________________ )
: ss.
COUNTY OF ________________ )
The foregoing instrument was acknowledged before me this
______ day of April, 1999 by _____________________, the __________________ of
Xxxxxxxxx Semiconductor Corporation, a Delaware corporation, on behalf of said
corporation.
_______________________________________
NOTARY PUBLIC
Residing at:___________________________
My Commission Expires:
_______________________________
26
206
Exhibit A
to Deed of Trust
Legal Description
207
Schedule A
to Deed of Trust
Leases of Trust Property
208
Appendix A
to Deed of Trust
Local Law Provisions
209
EXECUTION COPY
PARENT GUARANTEE AGREEMENT dated as of April 14,
1999, between FSC SEMICONDUCTOR CORPORATION, a Delaware
corporation (the "Guarantor") and CREDIT SUISSE FIRST BOSTON,
a bank organized under the laws of Switzerland, acting through
its New York branch ("CSFB"), as collateral agent (the
"Collateral Agent") for the Secured Parties (as defined in the
Credit Agreement referred to below).
Reference is made to the Credit Agreement dated as of April 14, 1999
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Xxxxxxxxx Semiconductor Corporation, a Delaware corporation
(the "Borrower"), the Guarantor, the lenders from time to time party thereto
(the "Lenders"), CSFB, as administrative agent for the Lenders (in such
capacity, the "Administrative Agent"), and as Collateral Agent, swingline lender
and Issuing Bank (as defined therein), Salomon Brothers Holding Company Inc, as
syndication agent, and Fleet National Bank, as Issuing Bank and as documentation
agent and ABN Amro Bank, NV, as documentation agent. Capitalized terms used
herein and not defined herein shall have the meanings assigned to such terms in
the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower, and the Issuing
Bank has agreed to issue Letters of Credit for the account of the Borrower,
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. As the owner of all of the issued and outstanding capital
stock of the Borrower, the Guarantor acknowledges that it will derive
substantial benefit from the making of the Loans by the Lenders and the issuance
of the Letters of Credit by the Issuing Bank. The obligations of the Lenders to
make Loans and of the Issuing Bank to issue Letters of Credit are conditioned
on, among other things, the execution and delivery by the Guarantor of a
Guarantee Agreement in the form hereof. As consideration therefor and in order
to induce the Lenders to make Loans and the Issuing Bank to issue Letters of
Credit, the Guarantor is willing to execute this Agreement.
210
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. The Guarantor unconditionally guarantees, as a
primary obligor and not merely as a surety, (a) the due and punctual payment of
(i) the principal of and premium, if any, and interest (including interest
accruing during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding) on the Loans, when and as due, whether at maturity, by acceleration,
upon one or more dates set for prepayment or otherwise, (ii) each payment
required to be made by the Borrower under the Credit Agreement in respect of any
Letter of Credit, when and as due, including payments in respect of
reimbursement of disbursements, interest thereon and obligations to provide cash
collateral and (iii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of the Loan Parties to the
Secured Parties under the Credit Agreement and the other Loan Documents, (b) the
due and punctual performance of all covenants, agreements, obligations and
liabilities of the Loan Parties under or pursuant to the Credit Agreement and
the other Loan Documents and (c) unless otherwise agreed upon in writing by the
applicable Lender party thereto, all obligations of the Borrower, monetary or
otherwise, under each Interest Rate Protection Agreement entered into with a
counterparty that was a Lender at the time such Interest Rate Protection
Agreement was entered into (all the monetary and other obligations referred to
in the preceding clauses (a) through (c) being collectively called the
"Obligations"). The Guarantor further agrees that the Obligations may be
extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Obligation.
SECTION 2. Obligations Not Waived. To the fullest extent permitted by
applicable law, the Guarantor waives presentment to, demand of payment from and
protest to the Borrower of any of the Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment. To the fullest
extent permitted by applicable law, the obligations of the Guarantor hereunder
shall not be affected by (a) the failure of the Collateral Agent or any other
Secured Party to assert any claim or demand or to enforce or exercise any right
or remedy against the Borrower or any other guarantor of the Obligations under
the provisions of the Credit Agreement, any other Loan Document or otherwise,
(b) any rescission, waiver, amendment or modification of, or any release from
any of the terms or provisions of this Agreement, any other Loan Document, any
Guarantee or any other agreement, including with respect to any other guarantor
of the Obligations or (c) the failure to perfect any security interest in, or
the release of, any of the security held by or on behalf of the Collateral Agent
or any other Secured Party.
SECTION 3. Security. The Guarantor authorizes the Collateral Agent and
each of the other Secured Parties to (a) take and hold security for the payment
of this Guarantee and the Obligations and exchange, enforce, waive and release
any such security, (b) apply such security and direct the order or manner of
sale thereof as they in their sole discretion may determine and (c) release or
substitute any one or more endorsees, other guarantors or other obligors.
SECTION 4. Guarantee of Payment. The Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Collateral Agent or
any other Secured Party to any of the security held for payment of the
Obligations or to any balance of any deposit account or credit on the books of
the Collateral Agent or any other Secured Party in favor of the Borrower or any
other person.
SECTION 5. No Discharge or Diminishment of Guarantee. The obligations
of the Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any of the Obligations, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason
211
3
of the invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of
the Guarantor hereunder shall not be discharged or impaired or otherwise
affected by the failure of the Collateral Agent or any other Secured Party to
assert any claim or demand or to enforce any remedy under the Credit Agreement,
any other Loan Document or any other agreement, by any waiver or modification of
any provision of any thereof, by any default, failure or delay, wilful or
otherwise, in the performance of the Obligations, or by any other act or
omission that may or might in any manner or to any extent vary the risk of the
Guarantor or that would otherwise operate as a discharge of the Guarantor as a
matter of law or equity (other than the indefeasible payment in full in cash of
all the Obligations).
SECTION 6. Defenses of Borrower Waived. To the fullest extent permitted
by applicable law, the Guarantor waives any defense based on or arising out of
any defense of the Borrower or the unenforceability of the Obligations or any
part thereof from any cause, or the cessation from any cause of the liability of
the Borrower, other than the final and indefeasible payment in full in cash of
the Obligations. The Collateral Agent and the other Secured Parties may, at
their election, foreclose on any security held by one or more of them by one or
more judicial or nonjudicial sales, accept an assignment of any such security in
lieu of foreclosure, compromise or adjust any part of the Obligations, make any
other accommodation with the Borrower or any other guarantor or exercise any
other right or remedy available to them against the Borrower or any other
guarantor, without affecting or impairing in any way the liability of the
Guarantor hereunder except to the extent the Obligations have been fully,
finally and indefeasibly paid in cash. To the fullest extent permitted by
applicable law, the Guarantor waives any defense arising out of any such
election even though such election operates, pursuant to applicable law, to
impair or to extinguish any right of reimbursement or subrogation or other right
or remedy of the Guarantor against the Borrower or any other guarantor, as the
case may be, or any security.
SECTION 7. Agreement to Pay; Subrogation. In furtherance of the
foregoing and not in limitation of any other right that the Collateral Agent or
any other Secured Party has at law or in equity against the Guarantor by virtue
hereof, upon the failure of the Borrower or any other Loan Party to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, the Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the Collateral Agent
or such other Secured Party as designated thereby in cash the amount of such
unpaid Obligations. Upon payment by the Guarantor of any sums to the Collateral
Agent or any Secured Party as provided above, all rights of the Guarantor
against the Borrower arising as a result thereof by way of right of subrogation,
contribution, reimbursement, indemnity or otherwise shall in all respects be
subordinate and junior in right of payment to the prior indefeasible payment in
full in cash of all the Obligations. In addition, any indebtedness of the
Borrower now or hereafter held by the Guarantor is hereby subordinated in right
of payment to the prior payment in full of the Obligations. If any amount shall
erroneously be paid to the Guarantor on account of (i) such subrogation,
contribution, reimbursement, indemnity or similar right or (ii) any such
indebtedness of the Borrower, such amount shall be held in trust for the benefit
of the Secured Parties and shall forthwith be paid to the Collateral Agent to be
credited against the payment of the Obligations, whether matured or unmatured,
in accordance with the terms of the Loan Documents.
SECTION 8. Information. The Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Obligations and the nature, scope and extent of the risks that the Guarantor
assumes and incurs hereunder, and agrees that none of the Collateral Agent or
the other Secured Parties will have any duty to advise the Guarantor of
information known to it or any of them regarding such circumstances or risks.
SECTION 9. Termination. The Guarantee made hereunder (a) shall
terminate when all the Obligations have been indefeasibly paid in full and the
Lenders have no further commitment to lend under the Credit Agreement, the L/C
Exposure has been reduced to zero and the Issuing Bank has
212
4
no further obligation to issue Letters of Credit under the Credit Agreement and
(b) shall continue to be effective or be reinstated, as the case may be, if at
any time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by any Secured Party or the Guarantor upon the bankruptcy
or reorganization of the Borrower, the Guarantor or otherwise.
SECTION 10. Binding Agreement; Assignments. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the Guarantor that are contained in this
Agreement shall bind and inure to the benefit of each party hereto and their
respective successors and assigns. This Agreement shall become effective when a
counterpart hereof executed on behalf of the Guarantor shall have been delivered
to the Collateral Agent and a counterpart hereof shall have been executed on
behalf of the Collateral Agent, and thereafter shall be binding upon the
Guarantor and the Collateral Agent and their respective successors and assigns,
and shall inure to the benefit of the Guarantor, the Collateral Agent and the
other Secured Parties, and their respective successors and assigns, except that
the Guarantor shall not have the right to assign its rights or obligations
hereunder or any interest herein (and any such attempted assignment shall be
void).
SECTION 11. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Agent hereunder
and of the other Secured Parties under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of this Agreement or consent to any departure by the
Guarantor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on the Guarantor in any case shall entitle the Guarantor to any
other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Guarantor and the Collateral Agent, with the prior written consent of the
Required Lenders (except as otherwise provided in the Credit Agreement).
SECTION 12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 13. Notices. All communications and notices hereunder shall be
in writing and given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it at
000 Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxx, Xxxxx 00000.
SECTION 14. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Guarantors herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Collateral Agent and the other Secured Parties and
shall survive the making by the Lenders of the Loans and the issuance of the
Letters of Credit by the Issuing Bank regardless of any investigation made by
the Secured Parties or on their behalf, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
other fee or amount payable under this Agreement or any other Loan Document is
outstanding and unpaid or the L/C Exposure does not equal zero and as long as
the Commitments and the L/C Commitment have not been terminated.
213
5
SECTION 15. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract, and shall become effective as
provided in Section 10. Delivery of an executed signature page to this Agreement
by facsimile transmission shall be as effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 16. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 of the Credit Agreement shall be applicable to this
Agreement.
214
6
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
FSC SEMICONDUCTOR CORPORATION, as
Guarantor,
by:
--------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as
Collateral Agent,
by:
--------------------------
Name:
Title:
by:
--------------------------
Name:
Title:
215
EXECUTION COPY
PLEDGE AGREEMENT dated as of April 14, 1999, among
XXXXXXXXX SEMICONDUCTOR CORPORATION, a Delaware corporation
(the "Borrower"), FSC SEMICONDUCTOR CORPORATION, a Delaware
corporation ("Holdings"), each Subsidiary of the Borrower
listed on Schedule I hereto (each such Subsidiary individually
a "Subsidiary Pledgor" and collectively, the "Subsidiary
Pledgors"; the Borrower, Holdings and the Subsidiary Pledgors
are referred to collectively herein as the "Pledgors") and
CREDIT SUISSE FIRST BOSTON, a bank organized under the laws of
Switzerland, acting through its New York branch ("CSFB"), as
collateral agent (in such capacity, the "Collateral Agent")
for the Secured Parties (as defined in the Credit Agreement
referred to below).
Reference is made to (a) the Credit Agreement dated as of April 14,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, Holdings, the lenders from time to time
party thereto (the "Lenders"), CSFB, as administrative agent for the Lenders,
and as Collateral Agent, swingline lender and Issuing Bank (as defined therein),
Salomon Brothers Holding Company Inc, as syndication agent, and Fleet National
Bank, as Issuing Bank and as documentation agent and ABN Amro Bank, NV, as
documentation agent, (b) the Parent Guarantee Agreement dated as of April 14,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Parent Guarantee Agreement"), between Holdings and the Collateral Agent and (c)
the Subsidiary Guarantee Agreement dated as of April 14, 1999 (as amended,
supplemented or otherwise modified from time to time, the "Subsidiary Guarantee
Agreement"; and, collectively with the Parent Guarantee Agreement, the
"Guarantee Agreements") among the Subsidiary Pledgors and the Collateral Agent.
The Lenders have agreed to make Loans to the Borrower and the Issuing
Bank has agreed to issue Letters of Credit for the account of the Borrower,
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. Holdings and the Subsidiary Guarantors have agreed to
guarantee, among other things, all the obligations of the Borrower under the
Credit Agreement. The obligations of the Lenders to make Loans and of the
Issuing Bank to issue Letters of Credit are conditioned upon, among other
things, the execution and delivery by the Pledgors of a Pledge Agreement in the
form hereof to secure (a) the due and punctual payment by the Borrower of (i)
the principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) each payment required to be
made by the Borrower under the Credit Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral and
(iii) all other monetary obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), of the Borrower to the Secured Parties
under the Credit Agreement and the other Loan Documents, (b) the due and
punctual performance of all covenants, agreements, obligations and liabilities
of the Borrower under or pursuant to the Credit Agreement and the other Loan
Documents, (c) the due and punctual payment and performance of all the
covenants, agreements, obligations and liabilities of Holdings under or pursuant
to the Parent Guarantee Agreement or the
216
other Loan Documents, (d) the due and punctual payment and performance of all
the covenants, agreements, obligations and liabilities of each Subsidiary
Pledgor under or pursuant to the Subsidiary Guarantee Agreement or the other
Loan Documents and (e) the due and punctual payment and performance of all
obligations of the Borrower under each Interest Rate Protection Agreement
entered into with any counterparty that was a Lender at the time such Interest
Rate Protection Agreement was entered into (all the monetary and other
obligations referred to in the preceding lettered clauses of this paragraph
being referred to collectively as the "Obligations"). Capitalized terms used
herein and not defined herein shall have meanings assigned to such terms in the
Credit Agreement.
Accordingly, the Pledgors and the Collateral Agent, on behalf of itself
and each Secured Party (and each of their respective successors or assigns),
hereby agree as follows:
SECTION 1. Pledge. As security for the payment and performance, as the
case may be, in full of the Obligations, each Pledgor hereby transfers, grants,
bargains, sells, conveys, hypothecates, pledges, sets over and delivers unto the
Collateral Agent, its successors and assigns, and hereby grants to the
Collateral Agent, its successors and assigns, for the ratable benefit of the
Secured Parties, a security interest in all of the Pledgor's right, title and
interest in, to and under (a) the shares of capital stock owned by it and listed
on Schedule II hereto and any shares of capital stock of the Borrower or any
Subsidiary obtained in the future by the Pledgor and the certificates
representing all such shares (the "Pledged Stock"); provided that the Pledged
Stock shall not include (i) more than 65% of the issued and outstanding shares
of stock of any Foreign Subsidiary or (ii) to the extent that applicable law
requires that a Subsidiary of the Pledgor issue directors' qualifying shares,
such qualifying shares; (b)(i) the debt securities listed opposite the name of
the Pledgor on Schedule II hereto, (ii) any debt securities in the future issued
to the Pledgor and (iii) the promissory notes and any other instruments
evidencing such debt securities (the "Pledged Debt Securities"); (c) all other
property that may be delivered to and held by the Collateral Agent pursuant to
the terms hereof; (d) subject to Section 5, all payments of principal or
interest, dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed, in respect of, in exchange for or
upon the conversion of the securities referred to in clauses (a) and (b) above;
(e) subject to Section 5, all rights and privileges of the Pledgor with respect
to the securities and other property referred to in clauses (a), (b), (c) and
(d) above; and (f) all proceeds of any of the foregoing (the items referred to
in clauses (a) through (f) above being collectively referred to as the
"Collateral"). Upon delivery to the Collateral Agent, (a) any stock
certificates, notes or other securities now or hereafter included in the
Collateral (the "Pledged Securities") shall be accompanied by stock powers duly
executed in blank or other instruments of transfer satisfactory to the
Collateral Agent and by such other instruments and documents as the Collateral
Agent may reasonably request and (b) all other property comprising part of the
Collateral shall be accompanied by proper instruments of assignment duly
executed by the applicable Pledgor and such other instruments or documents as
the Collateral Agent may reasonably request. Each delivery of Pledged Securities
shall be accompanied by a schedule describing the securities theretofore and
then being pledged hereunder, which schedule shall be attached hereto as
Schedule II and made a part hereof. Each schedule so delivered shall supersede
any prior schedules so delivered.
TO HAVE AND TO HOLD the Collateral, together with all right, title,
interest, powers, privileges and preferences pertaining or incidental thereto,
unto the Collateral Agent, its successors and assigns, for the ratable benefit
of the Secured Parties, forever; subject, however, to the terms, covenants and
conditions hereinafter set forth.
SECTION 2. Delivery of the Collateral. (a) Each Pledgor agrees promptly
to deliver or cause to be delivered to the Collateral Agent any and all Pledged
Securities, and any and all certificates or other instruments or documents
representing the Collateral.
217
3
(b) Each Pledgor will cause any Indebtedness for borrowed money owed to
the Pledgor by any person to be evidenced by a duly executed promissory note
that is pledged and delivered to the Collateral Agent pursuant to the terms
thereof.
SECTION 3. Representations, Warranties and Covenants. Each Pledgor
hereby represents, warrants and covenants, as to itself and the Collateral
pledged by it hereunder, to and with the Collateral Agent that:
(a) the Pledged Stock represents that percentage as set forth
on Schedule II of the issued and outstanding shares of each class of
the capital stock of the issuer with respect thereto;
(b) except for the security interest granted hereunder, the
Pledgor (i) is and will at all times continue to be the direct owner,
beneficially and of record, of the Pledged Securities indicated on
Schedule II, (ii) holds the same free and clear of all Liens except
those permitted by the Credit Agreement or any other Loan Document,
(iii) will make no assignment, pledge, hypothecation or transfer of, or
create or permit to exist any security interest in or other Lien on,
the Collateral, other than pursuant hereto, or as permitted by the
Credit Agreement or any other Loan Document and (iv) subject to Section
5, will cause any and all Collateral, whether for value paid by the
Pledgor or otherwise, to be forthwith deposited with the Collateral
Agent and pledged or assigned hereunder;
(c) the Pledgor (i) has the power and authority to pledge the
Collateral in the manner hereby done or contemplated and (ii) will
defend its title or interest thereto or therein against any and all
Liens (other than the Liens created by this Agreement or permitted by
the Credit Agreement or any other Loan Document), however arising, of
all persons whomsoever;
(d) no consent of any other person (including stockholders or
creditors of any Pledgor) and no consent or approval of any
Governmental Authority or any securities exchange was or is necessary
to the validity of the pledge effected hereby;
(e) by virtue of the execution and delivery by the Pledgors of
this Agreement, when the Pledged Securities, certificates or other
documents representing or evidencing the Collateral are delivered to
the Collateral Agent in accordance with this Agreement, the Collateral
Agent will obtain a valid and perfected first lien upon and security
interest in such Pledged Securities as security for the payment and
performance of the Obligations;
(f) the pledge effected hereby is effective to vest in the
Collateral Agent, on behalf of the Secured Parties, the rights of the
Collateral Agent in the Collateral as set forth herein;
(g) all of the Pledged Stock has been duly authorized and
validly issued and is fully paid and nonassessable;
(h) all information set forth herein relating to the Pledged
Stock is accurate and complete in all material respects as of the date
hereof; and
(i) the pledge of the Pledged Stock pursuant to this Agreement
does not violate Regulation T, U or X of the Federal Reserve Board or
any successor thereto as of the date hereof.
SECTION 4. Registration in Nominee Name; Denominations. The Collateral
Agent, on behalf of the Secured Parties, shall have the right following an Event
of Default which is continuing (in its sole and absolute discretion) to hold the
Pledged Securities in its own name as pledgee, the name of its nominee (as
pledgee or as sub-agent) or the name of the Pledgors, endorsed or assigned
218
4
in blank or in favor of the Collateral Agent. Each Pledgor will promptly give to
the Collateral Agent copies of any notices or other communications received by
it with respect to Pledged Securities registered in the name of such Pledgor.
The Collateral Agent shall at all times following an Event of Default which is
continuing have the right to exchange the certificates representing Pledged
Securities for certificates of smaller or larger denominations for any purpose
consistent with this Agreement.
SECTION 5. Voting Rights; Dividends and Interest, etc. (a) Unless and
until an Event of Default shall have occurred and be continuing:
(i) Each Pledgor shall be entitled to exercise any and all
voting and/or other consensual rights and powers inuring to an owner of
Pledged Securities or any part thereof for any purpose consistent with
the terms of this Agreement, the Credit Agreement and the other Loan
Documents; provided, however, that such Pledgor will not be entitled to
exercise any such right if the result thereof could materially and
adversely affect the rights inuring to a holder of the Pledged
Securities or the rights and remedies of any of the Secured Parties
under this Agreement or the Credit Agreement or any other Loan Document
or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall execute and deliver to each
Pledgor, or cause to be executed and delivered to each Pledgor, all
such proxies, powers of attorney and other instruments as such Pledgor
may reasonably request for the purpose of enabling such Pledgor to
exercise the voting and/or consensual rights and powers it is entitled
to exercise pursuant to subparagraph (i) above and to receive the cash
dividends it is entitled to receive pursuant to subparagraph (iii)
below.
(iii) Each Pledgor shall be entitled to receive and retain any
and all cash dividends, interest and principal paid on the Pledged
Securities to the extent and only to the extent that such cash
dividends, interest and principal are permitted by, and otherwise paid
in accordance with, the terms and conditions of the Credit Agreement,
the other Loan Documents and applicable laws. All noncash dividends,
interest and principal, and all dividends, interest and principal paid
or payable in cash or otherwise in connection with a partial or total
liquidation or dissolution, return of capital, capital surplus or
paid-in surplus, and all other distributions (other than distributions
referred to in the preceding sentence) made on or in respect of the
Pledged Securities, whether paid or payable in cash or otherwise,
whether resulting from a subdivision, combination or reclassification
of the outstanding capital stock of the issuer of any Pledged
Securities or received in exchange for Pledged Securities or any part
thereof, or in redemption thereof, or as a result of any merger,
consolidation, acquisition or other exchange of assets to which such
issuer may be a party or otherwise, shall be and become part of the
Collateral, and, if received by any Pledgor, shall not be commingled by
such Pledgor with any of its other funds or property but shall be held
separate and apart therefrom, shall be held in trust for the benefit of
the Collateral Agent and shall be forthwith delivered to the Collateral
Agent in the same form as so received (with any necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Pledgor to dividends, interest or principal that such
Pledgor is authorized to receive pursuant to paragraph (a)(iii) above shall
cease, and all such rights shall thereupon become vested in the Collateral
Agent, which shall have the sole and exclusive right and authority to receive
and retain such dividends, interest or principal. All dividends, interest or
principal received by the Pledgor contrary to the provisions of this Section 5
shall be held in trust for the benefit of the Collateral Agent, shall be
segregated from other property or funds of such Pledgor and shall be forthwith
delivered to the Collateral Agent upon demand in the same form as so received
(with any necessary endorsement). Any and all money and other property paid over
to or received by the Collateral Agent pursuant to the provisions of this
paragraph (b) shall be retained by the Collateral Agent in
219
5
an account to be established by the Collateral Agent upon receipt of such money
or other property and shall be applied in accordance with the provisions of
Section 7. After all Events of Default have been cured or waived, the Collateral
Agent shall, within five Business Days after all such Events of Default have
been cured or waived, repay to each Pledgor all cash dividends, interest or
principal (without interest), that such Pledgor would otherwise be permitted to
retain pursuant to the terms of paragraph (a)(iii) above and which remain in
such account.
(c) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Pledgor to exercise the voting and consensual rights
and powers it is entitled to exercise pursuant to paragraph (a)(i) of this
Section 5, and the obligations of the Collateral Agent under paragraph (a)(ii)
of this Section 5, shall cease, and all such rights shall thereupon become
vested in the Collateral Agent, which shall have the sole and exclusive right
and authority to exercise such voting and con sensual rights and powers,
provided that, unless otherwise directed by the Required Lenders, the Collateral
Agent shall have the right from time to time following and during the
continuance of an Event of Default to permit the Pledgors to exercise such
rights. After all Events of Default have been cured or waived, such Pledgor will
have the right to exercise the voting and consensual rights and powers that it
would otherwise be entitled to exercise pursuant to the terms of paragraph
(a)(i) above.
SECTION 6. Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default, subject to applicable regulatory and legal
requirements, the Collateral Agent may sell the Collateral, or any part thereof,
at public or private sale or at any broker's board or on any securities
exchange, for cash, upon credit or for future delivery as the Collateral Agent
shall deem appropriate. The Collateral Agent shall be authorized at any such
sale (if it deems it advisable to do so) to restrict the prospective bidders or
purchasers to persons who will represent and agree that they are purchasing the
Collateral for their own account for investment and not with a view to the
distribution or sale thereof, and upon consummation of any such sale the
Collateral Agent shall have the right to assign, transfer and deliver to the
purchaser or purchasers thereof the Collateral so sold. Each such purchaser at
any such sale shall hold the property sold absolutely free from any claim or
right on the part of any Pledgor, and, to the extent permitted by applicable
law, the Pledgors hereby waive all rights of redemption, stay, valuation and
appraisal any Pledgor now has or may at any time in the future have under any
rule of law or statute now existing or hereafter enacted.
The Collateral Agent shall give a Pledgor 10 days' prior written notice
(which each Pledgor agrees is reasonable notice within the meaning of Section
9-504(3) of the Uniform Commercial Code as in effect in the State of New York or
its equivalent in other jurisdictions) of the Collateral Agent's intention to
make any sale of such Pledgor's Collateral. Such notice, in the case of a public
sale, shall state the time and place for such sale and, in the case of a sale at
a broker's board or on a securities exchange, shall state the board or exchange
at which such sale is to be made and the day on which the Collateral, or portion
thereof, will first be offered for sale at such board or exchange. Any such
public sale shall be held at such time or times within ordinary business hours
and at such place or places as the Collateral Agent may fix and state in the
notice of such sale. At any such sale, the Collateral, or portion thereof, to be
sold may be sold in one lot as an entirety or in separate parcels, as the
Collateral Agent may (in its sole and absolute discretion) determine. The
Collateral Agent shall not be obligated to make any sale of any Collateral if it
shall determine not to do so, regardless of the fact that notice of sale of such
Collateral shall have been given. The Collateral Agent may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the same was so adjourned. In case any sale of all or any part of the
Collateral is made on credit or for future delivery, the Collateral so sold may
be retained by the Collateral Agent until the sale price is paid in full by the
purchaser or purchasers thereof, but the Collateral Agent shall not incur any
liability in case any such purchaser or purchasers shall fail to take up and pay
for the Collateral so sold and, in case of any such failure, such Collateral may
be sold again upon like notice. At any public (or, to the extent permitted by
applicable law, private) sale made pursuant to this Section 6, any Secured Party
may bid for or purchase, free from any right of redemption, stay or appraisal on
the part of any Pledgor
220
6
(all said rights being also hereby waived and released), the Collateral or any
part thereof offered for sale and may make payment on account thereof by using
any claim then due and payable to it from such Pledgor as a credit against the
purchase price, and it may, upon compliance with the terms of sale, hold, retain
and dispose of such property without further accountability to such Pledgor
therefor. For purposes hereof, (a) a written agreement to purchase the
Collateral or any portion thereof shall be treated as a sale thereof, (b) the
Collateral Agent shall be free to carry out such sale pursuant to such agreement
and (c) such Pledgor shall not be entitled to the return of the Collateral or
any portion thereof subject thereto, notwithstanding the fact that after the
Collateral Agent shall have entered into such an agreement all Events of Default
shall have been remedied and the Obligations paid in full. As an alternative to
exercising the power of sale herein conferred upon it, the Collateral Agent may
proceed by a suit or suits at law or in equity to foreclose upon the Collateral
and to sell the Collateral or any portion thereof pursuant to a judgment or
decree of a court or courts having competent jurisdiction or pursuant to a
proceeding by a court-appointed receiver. Any sale pursuant to the provisions of
this Section 6 shall be deemed to conform to the commercially reasonable
standards as provided in Section 9-504(3) of the Uniform Commercial Code as in
effect in the State of New York or its equivalent in other jurisdictions.
SECTION 7. Application of Proceeds of Sale. The proceeds of any sale of
Collateral pursuant to Section 6, as well as any Collateral consisting of cash,
shall be applied by the Collateral Agent as follows:
FIRST, to the payment of all costs and expenses incurred by
the Collateral Agent in connection with such sale or otherwise in
connection with this Agreement, any other Loan Document or any of the
Obligations, including all court costs and the reasonable fees and
expenses of its agents and legal counsel, the repayment of all advances
made by the Collateral Agent hereunder or under any other Loan Document
on behalf of any Pledgor and any other costs or expenses incurred in
connection with the exercise of any right or remedy hereunder or under
any other Loan Document;
SECOND, to the payment in full of the Obligations (the amounts
so applied to be distributed among the Secured Parties pro rata in
accordance with the amounts of the Obligations owed to them on the date
of any such distribution); and
THIRD, to the Pledgors, their successors or assigns, or as a
court of competent jurisdiction may otherwise direct.
The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the purchase money by the Collateral Agent or of the officer
making the sale shall be a sufficient discharge to the purchaser or purchasers
of the Collateral so sold and such purchaser or purchasers shall not be
obligated to see to the application of any part of the purchase money paid over
to the Collateral Agent or such officer or be answerable in any way for the
misapplication thereof.
SECTION 8. Reimbursement of Collateral Agent. (a) Each Pledgor agrees
to pay upon demand to the Collateral Agent the amount of any and all reasonable
expenses, including the reasonable fees, other charges and disbursements of its
counsel and of any experts or agents, that the Collateral Agent may incur in
connection with (i) the administration of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Collateral, (iii) the exercise or enforcement of any of the rights of the
Collateral Agent hereunder or (iv) the failure by such Pledgor to perform or
observe any of the provisions hereof.
(b) Without limitation of its indemnification obligations under the
other Loan Documents, each Pledgor agrees to indemnify the Collateral Agent and
the Indemnitees (as defined in
221
7
Section 9.05 of the Credit Agreement) against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel fees, other charges and disbursements, incurred by
or asserted against any Indemnitee arising out of, in any way connected with, or
as a result of (i) the execution or delivery of this Agreement or any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations thereunder or
the consummation of the Transactions and the other transactions contemplated
thereby or (ii) any claim, litigation, investigation or proceeding relating to
any of the foregoing, whether or not any Indemnitee is a party thereto, provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee.
(c) Any amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of this Section 8 shall remain operative and in full force and effect regardless
of the termination of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Obligations, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Document or any investigation made by or on behalf of the Collateral Agent or
any other Secured Party. All amounts due under this Section 8 shall be payable
on written demand therefor and shall bear interest at the rate specified in
Section 2.06 of the Credit Agreement.
SECTION 9. Collateral Agent Appointed Attorney-in-Fact. Each Pledgor
hereby appoints the Collateral Agent the attorney-in-fact of such Pledgor
following an Event of Default which is continuing for the purpose of carrying
out the provisions of this Agreement and taking any action and executing any
instrument that the Collateral Agent may deem necessary or advisable to
accomplish the purposes hereof, which appointment is irrevocable and coupled
with an interest. Without limiting the generality of the foregoing, the
Collateral Agent shall have the right, upon the occurrence and during the
continuance of an Event of Default, with full power of substitution either in
the Collateral Agent's name or in the name of such Pledgor, to ask for, demand,
xxx for, collect, receive and give acquittance for any and all moneys due or to
become due under and by virtue of any Collateral, to endorse checks, drafts,
orders and other instruments for the payment of money payable to the Pledgor
representing any interest or dividend or other distribution payable in respect
of the Collateral or any part thereof or on account thereof and to give full
discharge for the same, to settle, compromise, prose cute or defend any action,
claim or proceeding with respect thereto, and to sell, assign, endorse, pledge,
transfer and to make any agreement respecting, or otherwise deal with, the same;
provided, however, that nothing herein contained shall be construed as requiring
or obligating the Collateral Agent to make any commitment or to make any inquiry
as to the nature or sufficiency of any payment received by the Collateral Agent,
or to present or file any claim or notice, or to take any action with respect to
the Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby. The Collateral Agent and the other
Secured Parties shall be accountable only for amounts actually received as a
result of the exercise of the powers granted to them herein, and neither they
nor their officers, directors, employees or agents shall be responsible to any
Pledgor for any act or failure to act hereunder, except for their own gross
negligence or wilful misconduct.
SECTION 10. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Agent hereunder
and of the other Secured Parties under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provisions of this Agreement or consent to any departure by any
Pledgor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only
222
8
in the specific instance and for the purpose for which given. No notice or
demand on any Pledgor in any case shall entitle such Pledgor to any other or
further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Collateral Agent and the Pledgor or Pledgors with respect to which such
waiver, amendment or modification is to apply, subject to any consent required
in accordance with Section 9.08 of the Credit Agreement.
SECTION 11. Securities Act, etc. In view of the position of the
Pledgors in relation to the Pledged Securities, or because of other current or
future circumstances, a question may arise under the Securities Act of 1933, as
now or hereafter in effect, or any similar statute hereafter enacted analogous
in purpose or effect (such Act and any such similar statute as from time to time
in effect being called the "Federal Securities Laws") with respect to any
disposition of the Pledged Securities permitted hereunder. Each Pledgor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Collateral Agent if the Collateral Agent were
to attempt to dispose of all or any part of the Pledged Securities, and might
also limit the extent to which or the manner in which any subsequent transferee
of any Pledged Securities could dispose of the same. Similarly, there may be
other legal restrictions or limitations affecting the Collateral Agent in any
attempt to dispose of all or part of the Pledged Securities under applicable
Blue Sky or other state securities laws or similar laws analogous in purpose or
effect. Each Pledgor recognizes that in light of such restrictions and
limitations the Collateral Agent may, with respect to any sale of the Pledged
Securities, limit the purchasers to those who will agree, among other things, to
acquire such Pledged Securities for their own account, for investment, and not
with a view to the distribution or resale thereof. Each Pledgor acknowledges and
agrees that in light of such restrictions and limitations, the Collateral Agent,
in its sole and absolute discretion, (a) may proceed to make such a sale whether
or not a registration statement for the purpose of registering such Pledged
Securities or part thereof shall have been filed under the Federal Securities
Laws and (b) may approach and negotiate with a single potential purchaser to
effect such sale. Each Pledgor acknowledges and agrees that any such sale might
result in prices and other terms less favorable to the seller than if such sale
were a public sale without such restrictions. In the event of any such sale, the
Collateral Agent shall incur no responsibility or liability for selling all or
any part of the Pledged Securities at a price that the Collateral Agent, in its
sole and absolute discretion, may in good xxxxx xxxx reasonable under the
circumstances, notwithstanding the possibility that a substantially higher price
might have been realized if the sale were deferred until after registration as
aforesaid or if more than a single purchaser were approached. The provisions of
this Section 11 will apply notwithstanding the existence of a public or private
market upon which the quotations or sales prices may exceed substantially the
price at which the Collateral Agent sells.
SECTION 12. Registration, etc. Each Pledgor agrees that, upon the
occurrence and during the continuance of an Event of Default hereunder, if for
any reason the Collateral Agent desires to sell any of the Pledged Securities of
the Borrower at a public sale, it will, at any time and from time to time, upon
the written request of the Collateral Agent, use its best efforts to take or to
cause the issuer of such Pledged Securities to take such action and prepare,
distribute and/or file such documents, as are required or advisable in the
reasonable opinion of counsel for the Collateral Agent to permit the public sale
of such Pledged Securities. Each Pledgor further agrees to indemnify, defend and
hold harmless the Collateral Agent, each other Secured Party, any underwriter
and their respective officers, directors, affiliates and controlling persons
from and against all loss, liability, expenses, costs of counsel (including,
without limitation, reasonable fees and expenses to the Collateral Agent of
legal counsel), and claims (including the costs of investigation) that they may
incur insofar as such loss, liability, expense or claim arises out of or is
based upon any alleged untrue statement of a material fact contained in any
prospectus (or any amendment or supplement thereto) or in any notification or
offering circular, or arises out of or is based upon any alleged omission to
state a material fact required to be stated therein or necessary to make the
statements in any thereof not misleading, except insofar as the same may have
been caused by any untrue
223
9
statement or omission based upon information furnished in writing to such
Pledgor or the issuer of such Pledged Securities by the Collateral Agent or any
other Secured Party expressly for use therein. Each Pledgor further agrees, upon
such written request referred to above, to use its best efforts to qualify, file
or register, or cause the issuer of such Pledged Securities to qualify, file or
register, any of the Pledged Securities under the Blue Sky or other securities
laws of such states as may be requested by the Collateral Agent and keep
effective, or cause to be kept effective, all such qualifications, filings or
registrations. Each Pledgor will bear all costs and expenses of carrying out its
obligations under this Section 12. Each Pledgor acknowledges that there is no
adequate remedy at law for failure by it to comply with the provisions of this
Section 12 and that such failure would not be adequately compensable in damages,
and therefore agrees that its agreements contained in this Section 12 may be
specifically enforced.
SECTION 13. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the grant of a security interest in the Collateral and all
obligations of each Pledgor hereunder, shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document, any agreement with respect to any of the
Obligations or any other agreement or instrument relating to any of the
foregoing, (b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or waiver
of or any consent to any departure from the Credit Agreement, any other Loan
Document or any other agreement or instrument relating to any of the foregoing,
(c) any exchange, release or nonperfection of any other collateral, or any
release or amendment or waiver of or consent to or departure from any guaranty,
for all or any of the Obligations or (d) any other circumstance that might
otherwise constitute a defense available to, or a discharge of, any Pledgor in
respect of the Obligations or in respect of this Agreement (other than the
indefeasible payment in full of all the Obligations).
SECTION 14. Termination or Release. (a) This Agreement and the security
interests granted hereby shall terminate when all the Obligations have been
indefeasibly paid in full and the Lenders have no further commitment to lend
under the Credit Agreement, the L/C Exposure has been reduced to zero and the
Issuing Bank has no further obligation to issue Letters of Credit under the
Credit Agreement.
(b) Upon any sale or other transfer by any Pledgor of any Collateral
that is permitted under the Credit Agreement to any person that is not a
Pledgor, or, upon the effectiveness of any written consent to the release of the
security interest granted hereby in any Collateral pursuant to Section 9.08(b)
of the Credit Agreement, the security interest in such Collateral shall be
automatically released.
(c) In connection with any termination or release pursuant to paragraph
(a) or (b), the Collateral Agent shall execute and deliver to any Pledgor, at
such Pledgor's expense, all documents that such Pledgor shall reasonably request
to evidence such termination or release. Any execution and delivery of documents
pursuant to this Section 14 shall be without recourse to or warranty by the
Collateral Agent.
SECTION 15. Notices. All communications and notices hereunder shall be
in writing and given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to any Subsidiary Pledgor shall be given to
it in care of the Borrower.
SECTION 16. Further Assurances. Each Pledgor agrees to do such further
acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Collateral Agent may at any time
reasonably request in connection with the administration and enforcement of this
Agreement or with respect to the Collateral or any part thereof or in order
better to assure and confirm unto the Collateral Agent its rights and remedies
hereunder.
224
10
SECTION 17. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of any Pledgor that are contained in
this Agreement shall bind and inure to the benefit of its successors and
assigns. This Agreement shall become effective as to any Pledgor when a
counterpart hereof executed on behalf of such Pledgor shall have been delivered
to the Collateral Agent and a counterpart hereof shall have been executed on
behalf of the Collateral Agent, and thereafter shall be binding upon such
Pledgor and the Collateral Agent and their respective successors and assigns,
and shall inure to the benefit of such Pledgor, the Collateral Agent and the
other Secured Parties, and their respective successors and assigns, except that
no Pledgor shall have the right to assign its rights hereunder or any interest
herein or in the Collateral (and any such attempted assignment shall be void),
except as expressly contemplated by this Agreement or the other Loan Documents.
If all of the capital stock of a Pledgor is sold, transferred or otherwise
disposed of to a person that is not an Affiliate of the Borrower pursuant to a
transaction permitted by Section 6.05 of the Credit Agreement, such Pledgor
shall be released from its obligations under this Agreement without further
action. This Agreement shall be construed as a separate agreement with respect
to each Pledgor and may be amended, modified, supplemented, waived or released
with respect to any Pledgor without the approval of any other Pledgor and
without affecting the obligations of any other Pledgor hereunder.
SECTION 18. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by each Pledgor herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Collateral Agent and the other Secured Parties and
shall survive the making by the Lenders of the Loans and the issuance of the
Letters of Credit by the Issuing Bank, regardless of any investigation made by
the Secured Parties or on their behalf, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
other fee or amount payable under this Agreement or any other Loan Document is
outstanding and unpaid or the L/C Exposure does not equal zero and as long as
the Commitments and the L/C Commitments have not been terminated.
(b) In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 19. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 20. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute a single contract, and shall become effective
as provided in Section 17. Delivery of an executed counterpart of a signature
page to this Agreement by facsimile transmission shall be as effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 21. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 of the Credit Agreement shall be applicable to this
Agreement. Section headings used herein are for convenience of reference only,
are not part of this Agreement and are not to affect the construction of, or to
be taken into consideration in interpreting this Agreement.
225
11
SECTION 22. Jurisdiction; Consent to Service of Process. (a) Each
Pledgor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that, to the extent permitted by applicable law, all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Collateral Agent or
any other Secured Party may otherwise have to bring any action or proceeding
relating to this Agreement or the other Loan Documents against any Pledgor or
its properties in the courts of any jurisdiction.
(b) Each Pledgor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 15. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 23. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 24. Additional Pledgors. Pursuant to Section 5.11 of the Credit
Agreement, each Subsidiary of the Borrower that was not in existence or not a
Subsidiary on the date of the Credit Agreement is required to enter in this
Agreement as a Subsidiary Pledgor upon becoming a Subsidiary if such Subsidiary
owns or possesses property of a type that would be considered Collateral
hereunder. Upon execution and delivery by the Collateral Agent and a Subsidiary
of an instrument in the form of Annex 1, such Subsidiary shall become a
Subsidiary Pledgor hereunder with the same force and effect as if originally
named as a Subsidiary Pledgor herein. The execution and delivery of such
instrument shall not require the consent of any Pledgor hereunder. The rights
and obligations of each Pledgor hereunder shall remain in full force and effect
notwithstanding the addition of any new Subsidiary Pledgor as a party to this
Agreement.
SECTION 25. Xxxxxxxxx Korea Pledge. Schedule III attached hereto sets
forth the name of each Secured Party for whose benefit the Collateral Agent
holds Pledged Stock issued by Xxxxxxxxx Korea hereunder (the "Xxxxxxxxx Korea
Pledged Stock"). Solely for purposes of assuring each new Secured Party the
benefits of this Agreement with respect to the Xxxxxxxxx Korea Pledged Stock,
Xxxxxxxxx California hereby authorizes the Collateral Agent to, and grants to
the Collateral Agent an irrevocable power of attorney coupled with an interest
to, amend this Agreement by attaching hereto a new Schedule III setting forth
the names of the Secured Parties from time to time.
226
12
To the extent permitted by applicable law, the failure to so amend such Schedule
or any error contained therein shall not affect the validity or priority of the
pledge of the Collateral hereunder. In addition, to the extent a court of
competent jurisdiction determines that the creation or perfection of the
security interest hereunder in the Xxxxxxxxx Korea Pledged Stock, or the rights
and obligations of the parties with respect thereto, shall be governed by the
laws of the Republic of Korea rather than the laws of the State of New York,
then the parties hereto agree that the security interest intended to be created
in the Xxxxxxxxx Korea Pledged Stock hereunder shall be a "Xxx Xxxx" under the
Civil Code of Korea.
227
13
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXXXXXXX SEMICONDUCTOR
CORPORATION,
by: --------------------------------------------
Name:
Title:
FSC SEMICONDUCTOR CORPORATION,
by: --------------------------------------------
Name:
Title:
THE SUBSIDIARY PLEDGORS LISTED ON
SCHEDULE I HERETO,
by: --------------------------------------------
Name:
Title: Authorized Officer
CREDIT SUISSE FIRST BOSTON, as Collateral
Agent,
by: --------------------------------------------
Name:
Title:
by: --------------------------------------------
Name:
Title:
228
Schedule I to the
Pledge Agreement
SUBSIDIARY PLEDGORS
Name [Address]
229
Schedule II to the
Pledge Agreement
CAPITAL STOCK
Number of Registered Number of Percentage of
Issuer Certificate Owner Shares and Class Shares
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
230
Schedule III to the
Pledge Agreement
SECURED PARTIES
CREDIT SUISSE FIRST BOSTON
SALOMON BROTHERS HOLDING COMPANY INC
ABN AMRO BANK NV
FLEET NATIONAL BANK
FUJI BANK LIMITED, NEW YORK BRANCH
XXXXXX FINANCIAL, INC.
IBM CREDIT CORPORATION
BANKBOSTON, N.A.
BANK OF MONTREAL
BANK OF SCOTLAND
GENERAL ELECTRIC CAPITAL CORPORATION
THE MITSUBUSHI TRUST AND BANKING CORPORATION, LOS ANGELES AGENCY
XXXXXX XXXXXXX SENIOR FUNDING, INC.
THE BANK OF NOVA SCOTIA
TRANSAMERICA COMMERCIAL FINANCE CORPORATION
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.
XXXXXXX XXXXX SENIOR FLOATING RATE FUND II, INC.
PILGRIM PRIME RATE TRUST
FIRST UNION NATIONAL BANK
FRANKLIN FLOATING RATE TRUST
XXXXXXX NATIONAL LIFE INSURANCE COMPANY
BANKBOSTON, N.A., AS TRUST ADMINISTRATOR FOR LONGLANE MASTER TRUST IV
KZH APPALOOSA LLC
231
KZH CYPRESSTREE-1 LLC
KZH SHOSHONE LLC
KZH - SOLEIL-2 LLC
KZH STERLING LLC
CYPRESSTREE SENIOR FLOATING RATE FUND
NORTH AMERICAN SENIOR FLOATING RATE FUND
ARCHIMEDES FUNDING, L.L.C.
ARCHIMEDES FUNDING II, LTD.
METROPOLITAN LIFE INSURANCE COMPANY
TYLER TRADING, INC.
SRF TRADING, INC.
OSPREY INVESTMENTS PORTFOLIO
XXXXX XXXXX SENIOR DEBT PORTFOLIO
XXXXX XXXXX OXFORD STRATEGIC INCOME FUND
XXXXX XXXXX SENIOR INCOME TRUST
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
XXXXXXX XXXXX PRIME RATE PORTFOLIO
XXXXXX XXXXXXX XXXX XXXXXX PRIME INCOME TRUST
SEQUILS PILGRIM I, LTD.
ML CLO XV PILGRIM AMERICA (CAYMAN) LTD.
FIRST DOMINION FUNDING II
HIGHLAND CAPITAL MANAGMENT, LP
NORTHWOODS CAPITAL LIMITED
MAGNETITE ASSET INVESTORS
SAAR HOLDINGS CDO
MOUNTAIN CAPITAL CLO
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
232
18
BEAR XXXXXXX INVESTMENT PRODUCTS, INC.
FREMONT INVESTMENT & LOAN
233
Annex 1 to the
Pledge Agreement
SUPPLEMENT NO. dated as of , to the PLEDGE AGREEMENT
dated as of April 14, 1999, among XXXXXXXXX SEMICONDUCTOR
CORPORATION, a Delaware corporation (the "Borrower"), FSC
SEMICONDUCTOR CORPORATION, a Delaware corporation ("Holdings")
and each subsidiary of the Borrower listed on Schedule I
hereto (each such subsidiary individually a "Subsidiary
Pledgor" and collectively, the "Subsidiary Pledgors"; the
Borrower, Holdings and Subsidiary Pledgors are referred to
collectively herein as the "Pledgors") and CREDIT SUISSE FIRST
BOSTON, a bank organized under the laws of Switzerland, acting
through its New York branch ("CSFB"), as collateral agent (in
such capacity, the "Collateral Agent") for the Secured Parties
(as defined in the Credit Agreement referred to below).
A. Reference is made to (a) the Credit Agreement dated as of April 14,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, Holdings, the lenders from time to time
party thereto (the "Lenders"), CSFB, as administrative agent for the Lenders,
and as Collateral Agent, swingline lender and Issuing Bank (as defined therein),
Salomon Brothers Holding Company Inc, as syndication agent, and Fleet National
Bank, as Issuing Bank and as documentation agent and ABN Amro Bank, NV, as
documentation agent, (b) the Parent Guarantee Agreement dated as of April 14,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Parent Guarantee Agreement"), between Holdings and the Collateral Agent and (c)
the Subsidiary Guarantee Agreement dated as of April 14, 1999 (as amended,
supplemented or otherwise modified from time to time, the "Subsidiary Guarantee
Agreement"; and, collectively with the Parent Guarantee Agreement, the
"Guarantee Agreements") among the Subsidiary Pledgors and the Collateral Agent.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
C. The Pledgors have entered into the Pledge Agreement in order to
induce the Lenders to make Loans and the Issuing Bank to issue Letters of
Credit. Pursuant to Section 5.11 of the Credit Agreement, each Subsidiary of the
Borrower that was not in existence or not a Subsidiary on the date of the Credit
Agreement is required to enter into the Pledge Agreement as a Subsidiary Pledgor
upon becoming a Subsidiary if such Subsidiary owns or possesses property of a
type that would be considered Collateral under the Pledge Agreement. Section 24
of the Pledge Agreement provides that such Subsidiaries may become Subsidiary
Pledgors under the Pledge Agreement by execution and delivery of an instrument
in the form of this Supplement. The undersigned Subsidiary (the "New Pledgor")
is executing this Supplement in accordance with the requirements of the Credit
Agreement to become a Subsidiary Pledgor under the Pledge Agreement in order to
induce the Lenders to make additional Loans and the Issuing Bank to issue
additional Letters of Credit and as consideration for Loans previously made and
Letters of Credit previously issued.
Accordingly, the Collateral Agent and the New Pledgor agree as follows:
234
2
SECTION 1. In accordance with Section 24 of the Pledge Agreement, the
New Pledgor by its signature below becomes a Pledgor under the Pledge Agreement
with the same force and effect as if originally named therein as a Pledgor and
the New Pledgor hereby agrees (a) to all the terms and provisions of the Pledge
Agreement applicable to it as a Pledgor thereunder and (b) represents and
warrants that the representations and warranties made by it as a Pledgor
thereunder are true and correct on and as of the date hereof. In furtherance of
the foregoing, the New Pledgor, as security for the payment and performance in
full of the Obligations (as defined in the Pledge Agreement), does hereby create
and grant to the Collateral Agent, its successors and assigns, for the benefit
of the Secured Parties, their successors and assigns, a security interest in and
lien on all of the New Pledgor's right, title and interest in and to the
Collateral (as defined in the Pledge Agreement) of the New Pledgor. Each
reference to a "Subsidiary Pledgor" or a "Pledgor" in the Pledge Agreement shall
be deemed to include the New Pledgor. The Pledge Agreement is hereby
incorporated herein by reference.
SECTION 2. The New Pledgor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Collateral Agent shall have received counterparts of this Supplement that, when
taken together, bear the signatures of the New Pledgor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. The New Pledgor hereby represents and warrants that set
forth on Schedule I attached hereto is a true and correct schedule of all its
Pledged Securities.
SECTION 5. Except as expressly supplemented hereby, the Pledge
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Pledge Agreement shall not in any way be affected or impaired.
The parties hereto shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be in writing
and given as provided in Section 15 of the Pledge Agreement. All communications
and notices hereunder to the New Pledgor shall be given to it in care of the
Borrower.
SECTION 9. The New Pledgor agrees to reimburse the Collateral Agent for
its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
235
3
IN WITNESS WHEREOF, the New Pledgor and the Collateral Agent have duly
executed this Supplement to the Pledge Agreement as of the day and year first
above written.
[Name of New Pledgor],
by:
-------------------------------
Name:
Title:
Address:
CREDIT SUISSE FIRST BOSTON, as
Collateral Agent,
by:
-------------------------------
Name:
Title:
by:
-------------------------------
Name:
Title:
236
4
Schedule I to
Supplement No.
to the Pledge Agreement
Pledged Securities of the New Pledgor
CAPITAL STOCK
Number of Registered Number of Percentage of
Issuer Certificate Owner Shares and Class Shares
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
237
EXECUTION COPY
SECURITY AGREEMENT dated as of April 14, 1999, among
XXXXXXXXX SEMICONDUCTOR CORPORATION, a Delaware corporation
(the "Borrower"), each subsidiary of the Borrower listed on
Schedule I hereto (each such subsidiary individually a
"Subsidiary Guarantor" and collectively, the "Subsidiary
Guarantors"; the Subsidiary Guarantors and the Borrower are
referred to collectively herein as the "Grantors") and CREDIT
SUISSE FIRST BOSTON, a bank organized under the laws of
Switzerland, acting through its New York branch ("CSFB"), as
collateral agent (in such capacity, the "Collateral Agent")
for the Secured Parties (as defined herein).
Reference is made to (a) the Credit Agreement dated as of April 14,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, FSC Semiconductor Corporation, a
Delaware Corporation, the lenders from time to time party thereto (the
"Lenders"), CSFB, as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"), and as Collateral Agent, swingline lender and Issuing
Bank (as defined therein), Salomon Brothers Holding Company Inc, as syndication
agent, and Fleet National Bank, as Issuing Bank and as documentation agent and
ABN Amro Bank, NV, as documentation agent, and (b) the Subsidiary Guarantee
Agreement dated as of April 14, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Subsidiary Guarantee Agreement"), among the
Subsidiary Guarantors and the Collateral Agent.
The Lenders have agreed to make Loans to the Borrower, and the Issuing
Bank has agreed to issue Letters of Credit for the account of the Borrower,
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. Each of the Subsidiary Guarantors has agreed to guarantee,
among other things, all the obligations of the Borrower under the Credit
Agreement. The obligations of the Lenders to make Loans and of the Issuing Bank
to issue Letters of Credit are conditioned upon, among other things, the
execution and delivery by the Grantors of an agreement in the form hereof to
secure (a) the due and punctual payment by the Borrower of (i) the principal of
and premium, if any, and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) each payment required to be
made by the Borrower under the Credit Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral and
(iii) all other monetary obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), of the Borrower to the Secured Parties
under the Credit Agreement and the other Loan Documents, (b) the due and
punctual performance of all covenants, agreements, obligations and liabilities
of the Borrower under or pursuant to the Credit Agreement and the other Loan
Documents, (c) the due and punctual payment and performance of all the
covenants, agreements, obligations and liabilities of each Loan Party under or
pursuant to this Agreement and the other Loan Documents and (d) the due and
punctual payment and performance of all obligations of the Borrower under each
Interest Rate Protection Agreement entered into with any counterparty that was a
Lender at the time such Interest Rate Protection Agreement was entered into (all
the monetary and other obligations described in the preceding clauses (a)
through (d) being collectively called the "Obligations").
238
Accordingly, the Grantors and the Collateral Agent, on behalf of itself
and each Secured Party (and each of their respective successors or assigns),
hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definition of Terms Used Herein. Unless the context
otherwise requires, all capitalized terms used but not defined herein shall have
the meanings set forth in the Credit Agreement and all references to the Uniform
Commercial Code shall mean the Uniform Commercial Code in effect in the State of
New York on the date hereof.
SECTION 1.02. Definition of Certain Terms Used Herein. As used herein,
the following terms shall have the following meanings:
"Account Debtor" shall mean any person who is or who may become
obligated to any Grantor under, with respect to or on account of an Account.
"Accounts" shall mean any and all right, title and interest of any
Grantor to payment for goods and services sold or leased, including any such
right evidenced by chattel paper, whether due or to become due, whether or not
it has been earned by performance, and whether now or hereafter acquired or
arising in the future, including accounts receivable from Affiliates of the
Grantors.
"Accounts Receivable" shall mean all Accounts and all right, title and
interest in any returned goods, together with all rights, titles, securities and
guarantees with respect thereto, including any rights to stoppage in transit,
replevin, reclamation and resales, and all related security interests, liens and
pledges, whether voluntary or involuntary, in each case whether now existing or
owned or hereafter arising or acquired.
"Collateral" shall mean all (a) Accounts Receivable, (b) Documents, (c)
Equipment, (d) General Intangibles, (e) Inventory, (f) cash and cash accounts,
(g) Investment Property and (h) Proceeds except where (i) any Equipment is
subject to a purchase money lien permitted under the Credit Agreement in favor
of any person (other than the Collateral Agent) if the documents relating to
such lien do not permit other liens, or (ii) any General Intangible is the
subject of a written agreement which specifically prohibits assignment thereof
but only to the extent of such prohibition, and only to the extent that the
terms and provisions of a such written agreement, document or instrument
creating or evidencing such property or any rights relating thereto expressly
prohibit the granting of a security interest therein or condition the granting
of a security interest therein on the consent of a third party whose consent has
not been obtained or would cause, or allow a third party to cause, forfeiture of
such property upon the granting of a security interest therein or a breach under
any written agreement relating thereto.
"Commodity Account" shall mean an account maintained by a Commodity
Intermediary in which a Commodity Contract is carried out for a Commodity
Customer.
"Commodity Contract" shall mean a commodity futures contract, an option
on a commodity futures contract, a commodity option or any other contract that,
in each case, is (a) traded on or subject to the rules of a board of trade that
has been designated as a contract market for such a contract pursuant to the
federal commodities laws or (b) traded on a foreign commodity board of trade,
exchange or market, and is carried on the books of a Commodity Intermediary for
a Commodity Customer.
239
3
"Commodity Customer" shall mean a person for whom a Commodity
Intermediary carries a Commodity Contract on its books.
"Commodity Intermediary" shall mean (a) a person who is registered as a
futures commission merchant under the federal commodities laws or (b) a person
who in the ordinary course of its business provides clearance or settlement
services for a board of trade that has been designated as a contract market
pursuant to federal commodities laws.
"Copyright License" shall mean any written agreement, now or hereafter
in effect, granting any right to any third party under any Copyright now or
hereafter owned by any Grantor or which such Grantor otherwise has the right to
license, or granting any right to such Grantor under any Copyright now or
hereafter owned by any third party, and all rights of such Grantor under any
such agreement.
"Copyrights" shall mean all of the following now owned or hereafter
acquired by any Grantor: (a) all copyright rights in any work subject to the
copyright laws of the United States or any other country, whether as author,
assignee, transferee or otherwise, and (b) all registrations and applications
for registration of any such copyright in the United States or any other
country, including registrations, recordings, supplemental registrations and
pending applications for registration in the United States Copyright Office,
including those listed on Schedule II.
"Credit Agreement" shall have the meaning assigned to such term in the
preliminary statement of this Agreement.
"Documents" shall mean all instruments, files, records, ledger sheets
and documents covering or relating to any of the Collateral.
"Entitlement Holder" shall mean a person identified in the records of a
Securities Intermediary as the person having a Security Entitlement against the
Securities Intermediary. If a person acquires a Security Entitlement by virtue
of Section 8-501(b)(2) or (3) of the Uniform Commercial Code, such person is the
Entitlement Holder.
"Equipment" shall mean all equipment, furniture and furnishings, and
all tangible personal property similar to any of the foregoing, including tools,
parts and supplies of every kind and description, and all improvements,
accessions or appurtenances thereto, that are now or hereafter owned by any
Grantor. The term Equipment shall include Fixtures.
"Financial Asset" shall mean (a) a Security, (b) an obligation of a
person or a share, participation or other interest in a person or in property or
an enterprise of a person, which is, or is of a type, dealt with in or traded on
financial markets, or which is recognized in any area in which it is issued or
dealt in as a medium for investment or (c) any property that is held by a
Securities Intermediary for another person in a Securities Account if the
Securities Intermediary has expressly agreed with the other person that the
property is to be treated as a Financial Asset under Article 8 of the Uniform
Commercial Code. As the context requires, the term Financial Asset shall mean
either the interest itself or the means by which a person's claim to it is
evidenced, including a certificated or uncertificated Security, a certificate
representing a Security or a Security Entitlement.
240
4
"Fixtures" shall mean all items of Equipment, whether now owned or
hereafter acquired, of any Grantor that become so related to particular real
estate that an interest in them arises under any real estate law applicable
thereto.
"General Intangibles" shall mean all chooses in action and causes of
action and all other assignable intangible personal property of any Grantor of
every kind and nature (other than Accounts Receivable) now owned or hereafter
acquired by any Grantor, including all rights and interests in partnerships,
limited partnerships, limited liability companies and other unincorporated
entities, corporate or other business records, indemnification claims, contract
rights (including rights under leases, whether entered into as lessor or lessee,
Interest Rate Protection Agreements and other agreements), Intellectual
Property, goodwill, registrations, franchises, tax refund claims and any letter
of credit, guarantee, claim, security interest or other security held by or
granted to any Grantor to secure payment by an Account Debtor of any of the
Accounts Receivable.
"Intellectual Property" shall mean all intellectual and similar
property of any Grantor of every kind and nature now owned or hereafter acquired
by any Grantor, including inventions, designs, Patents, Copyrights, Licenses,
Trademarks, trade secrets, confidential or proprietary technical and business
information, know-how, show-how or other data or information, software and
databases and all embodiments or fixations thereof and related documentation,
registrations and franchises, and all additions, improvements and accessions to,
and books and records describing or used in connection with, any of the
foregoing.
"Inventory" shall mean all goods of any Grantor, whether now owned or
hereafter acquired, held for sale or lease, or furnished or to be furnished by
any Grantor under contracts of service, or consumed in any Grantor's business,
including raw materials, intermediates, work in process, packaging materials,
finished goods, semi-finished inventory, scrap inventory, manufacturing supplies
and spare parts, and all such goods that have been returned to or repossessed by
or on behalf of any Grantor.
"Investment Property" shall mean all Securities (whether certificated
or uncertificated), Security Entitlements, Securities Accounts, Commodity
Contracts and Commodity Accounts of any Grantor, whether now owned or hereafter
acquired by any Grantor.
"License" shall mean any Patent License, Trademark License, Copyright
License or other license or sublicense to which any Grantor is a party,
including those listed on Schedule III (other than those (i) license agreements
in existence on the date hereof and listed on Schedule III and (ii) those
license agreements entered into after the date hereof, which, in either case, by
their terms prohibit assignment or a grant of a security interest by such
Grantor as licensee thereunder).
"Obligations" shall have the meaning assigned to such term in the
preliminary statement of this Agreement.
"Patent License" shall mean any written agreement, now or hereafter in
effect, granting to any third party any right to make, use or sell any invention
on which a Patent, now or hereafter owned by any Grantor or which any Grantor
otherwise has the right to license, is in existence, or granting to any Grantor
any right to make, use or sell any invention on which a Patent, now or hereafter
owned by any third party, is in existence, and all rights of any Grantor under
any such agreement.
241
5
"Patents" shall mean all of the following now owned or hereafter
acquired by any Grantor: (a) all letters patent of the United States or any
other country, all registrations and recordings thereof, and all applications
for letters patent of the United States or any other country, including
registrations, recordings and pending applications in the United States Patent
and Trademark Office or any similar offices in any other country, including
those listed on Schedule IV, and (b) all reissues, continuations, divisions,
continuations-in-part, renewals or extensions thereof, and the inventions
disclosed or claimed therein, including the right to make, use and/or sell the
inventions disclosed or claimed therein.
"Perfection Certificate" shall mean a certificate substantially in the
form of Annex 2 hereto, completed and supplemented with the schedules and
attachments contemplated thereby, and duly executed by a Financial Officer and
the chief legal officer of the Borrower.
"Proceeds" shall mean any consideration received from the sale,
exchange, license, lease or other disposition of any asset or property that
constitutes Collateral, any value received as a consequence of the possession of
any Collateral and any payment received from any insurer or other person or
entity as a result of the destruction, loss, theft, damage or other involuntary
conversion of whatever nature of any asset or property which constitutes
Collateral, and shall include , (a) any claim of any Grantor against any third
party for (and the right to xxx and recover for and the rights to damages or
profits due or accrued arising out of or in connection with) (i) past, present
or future infringement of any Patent now or hereafter owned by any Grantor, or
licensed under a Patent License, (ii) past, present or future infringement or
dilution of any Trademark now or hereafter owned by any Grantor or licensed
under a Trademark License or injury to the goodwill associated with or
symbolized by any Trademark now or hereafter owned by any Grantor, (iii) past,
present or future breach of any License and (iv) past, present or future
infringement of any Copyright now or hereafter owned by any Grantor or licensed
under a Copyright License and (b) any and all other amounts from time to time
paid or payable under or in connection with any of the Collateral.
"Secured Parties" shall mean (a) the Lenders, (b) the Administrative
Agent, (c) the Collateral Agent, (d) the Issuing Bank, (e) each counterparty to
an Interest Rate Protection Agreement entered into with the Borrower if such
counterparty was a Lender at the time the Interest Rate Protection Agreement was
entered into, (f) the beneficiaries of each indemnification obligation
undertaken by any Grantor under any Loan Document and (g) the successors and
assigns of each of the foregoing.
"Securities" shall mean any obligations of an issuer or any shares,
participations or other interests in an issuer or in property or an enterprise
of an issuer which (a) are represented by a certificate representing a security
in bearer or registered form, or the transfer of which may be registered upon
books maintained for that purpose by or on behalf of the issuer, (b) are one of
a class or series or by its terms is divisible into a class or series of shares,
participations, interests or obligations and (c) (i) are, or are of a type,
dealt with or traded on securities exchanges or securities markets or (ii) are a
medium for investment and by their terms expressly provide that they are a
security governed by Article 8 of the Uniform Commercial Code.
"Securities Account" shall mean an account to which a Financial Asset
is or may be credited in accordance with an agreement under which the person
maintaining the account undertakes to
242
6
treat the person for whom the account is maintained as entitled to exercise
rights that comprise the Financial Asset.
"Securities Intermediary" shall mean (a) a clearing corporation or (b)
a person, including a bank or broker, that in the ordinary course of its
business maintains Securities Accounts for others and is acting in that
capacity.
"Security Entitlements" shall mean the rights and property interests of
an Entitlement Holder with respect to a Financial Asset.
"Security Interest" shall have the meaning assigned to such term in
Section 2.01.
"Trademark License" shall mean any written agreement, now or hereafter
in effect, granting to any third party any right to use any Trademark now or
hereafter owned by any Grantor or which any Grantor otherwise has the right to
license, or granting to any Grantor any right to use any Trademark now or
hereafter owned by any third party, and all rights of any Grantor under any such
agreement.
"Trademarks" shall mean all of the following now owned or hereafter
acquired by any Grantor: (a) all trademarks, service marks, trade names,
corporate names, company names, business names, fictitious business names, trade
styles, trade dress, logos, other source or business identifiers, designs and
general intangibles of like nature, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all registration and
recording applications filed in connection therewith, including registrations
and registration applications in the United States Patent and Trademark Office,
any State of the United States or any similar offices in any other country or
any political subdivision thereof, and all extensions or renewals thereof,
including those listed on Schedule V, (b) all goodwill associated therewith or
symbolized thereby and (c) all other assets, rights and interests that uniquely
reflect or embody such goodwill.
SECTION 1.03. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 of the Credit Agreement shall be applicable to this
Agreement.
243
7
ARTICLE II
Security Interest
SECTION 2.01. Security Interest. As security for the payment or
performance, as the case may be, in full of the Obligations, each Grantor hereby
bargains, sells, conveys, assigns, sets over, mortgages, pledges, hypothecates
and transfers to the Collateral Agent, its successors and assigns, for the
ratable benefit of the Secured Parties, and hereby grants to the Collateral
Agent, its successors and assigns, for the ratable benefit of the Secured
Parties, a security interest in, all of such Grantor's right, title and interest
in, to and under the Collateral (the "Security Interest"). Without limiting the
foregoing, the Collateral Agent is hereby authorized to file one or more
financing statements (including fixture filings), continuation statements,
filings with the United States Patent and Trademark Office or United States
Copyright Office (or any successor office or any similar office in any other
country) or other documents for the purpose of perfecting, confirming,
continuing, enforcing or protecting the Security Interest granted by each
Grantor, without the signature of any Grantor, and naming any Grantor or the
Grantors as debtors and the Collateral Agent as secured party.
SECTION 2.02. No Assumption of Liability. The Security Interest is
granted as security only and shall not subject the Collateral Agent or any other
Secured Party to, or in any way alter or modify, any obligation or liability of
any Grantor with respect to or arising out of the Collateral.
ARTICLE III
Representations and Warranties
The Grantors jointly and severally represent and warrant to the
Collateral Agent and the Secured Parties that:
SECTION 3.01. Title and Authority. Each Grantor has good and valid
rights in and title to the Collateral with respect to which it has purported to
grant a Security Interest hereunder and has full power and authority to grant to
the Collateral Agent the Security Interest in such Collateral pursuant hereto
and to execute, deliver and perform its obligations in accordance with the terms
of this Agreement, without the consent or approval of any other person other
than any consent or approval which has been obtained.
SECTION 3.02. Filings. (a) The Perfection Certificate has been duly
prepared, completed and executed and the information set forth therein is
correct and complete as of the date hereof. Fully executed Uniform Commercial
Code financing statements (including fixture filings, as applicable) or other
appropriate filings, recordings or registrations containing a description of the
Collateral have been delivered to the Collateral Agent for filing in each
governmental, municipal or other office specified in Schedule 6 to the
Perfection Certificate, which are all the filings, recordings and registrations
(other than filings required to be made in the United States Patent and
Trademark Office and the United States Copyright Office in order to perfect the
Security Interest in Collateral consisting of United States Patents, Trademarks
and Copyrights) that are necessary to publish notice of and protect the validity
of and to establish a legal, valid and perfected security interest in favor of
the Collateral Agent (for the ratable benefit of the Secured Parties) in respect
of
244
8
all Collateral in which the Security Interest may be perfected by filing,
recording or registration in the United States (or any political subdivision
thereof) and its territories and possessions, and no further or subsequent
filing, refiling, recording, rerecording, registration or reregistration is
necessary in any such jurisdiction, except as provided under applicable law with
respect to the filing of continuation statements.
(b) Each Grantor shall ensure that fully executed security agreements
in the form hereof and containing a description of all Collateral consisting of
Intellectual Property shall have been received and recorded within three months
after the execution of this Agreement with respect to United States Patents and
United States registered Trademarks (and Trademarks for which United States
registration applications are pending) and within one month after the execution
of this Agreement with respect to United Sates registered Copyrights by the
United States Patent and Trademark Office and the United States Copyright Office
pursuant to 35 U.S.C. Section 261, 15 U.S.C. Section 1060 or 17 U.S.C. Section
205 and the regulations thereunder, as applicable, and otherwise as may be
required pursuant to the laws of any other necessary jurisdiction, to protect
the validity of and to establish a legal, valid and perfected security interest
in favor of the Collateral Agent (for the ratable benefit of the Secured
Parties) in respect of all Collateral consisting of Patents, Trademarks and
Copyrights in which a security interest may be perfected by filing, recording or
registration in the United States (or any political subdivision thereof) and its
territories and possessions, or in any other necessary jurisdiction, and no
further or subsequent filing, refiling, recording, rerecording, registration or
reregistration is necessary (other than such actions as are necessary to perfect
the Security Interest with respect to any Collateral consisting of Patents,
Trademarks and Copyrights (or registration or application for registration
thereof) acquired or developed after the date hereof).
SECTION 3.03. Validity of Security Interest. The Security Interest
constitutes (a) a legal and valid security interest in all the Collateral
securing the payment and performance of the Obligations, (b) subject to the
filings described in Section 3.02 above, a perfected security interest in all
Collateral in which a security interest may be perfected by filing, recording or
registering a financing statement or analogous document in the United States (or
any political subdivision thereof) and its territories and possessions pursuant
to the Uniform Commercial Code or other applicable law in such jurisdictions and
(c) a security interest that shall be perfected in all Collateral in which a
security interest may be perfected upon the receipt and recording of this
Agreement with the United States Patent and Trademark Office and the United
States Copyright Office, as applicable, within the three month period
(commencing as of the date hereof) pursuant to 35 U.S.C. Section 261 or 15
U.S.C. Section 1060 or the one month period (commencing as of the date hereof)
pursuant to 17 U.S.C. Section 205 and otherwise as may be required pursuant to
the laws of any other necessary jurisdiction. The Security Interest is and shall
be prior to any other Lien on any of the Collateral, other than Liens expressly
permitted to be prior to the Security Interest pursuant to Section 6.02 of the
Credit Agreement.
SECTION 3.04. Absence of Other Liens. The Collateral is owned by the
Grantors free and clear of any Lien, except for Liens expressly permitted
pursuant to Section 6.02 of the Credit Agreement. The Grantor has not filed or
consented to the filing of (a) any financing statement or analogous document
under the Uniform Commercial Code or any other applicable laws covering any
Collateral, (b) any assignment in which any Grantor assigns any Collateral or
any security agreement or similar instrument covering any Collateral with the
United States Patent and Trademark Office or the United States Copyright Office
or (c) any assignment in which any Grantor assigns any Collateral or any
security agreement or similar instrument covering any Collateral with any
foreign governmental, municipal or other office, which financing statement or
analogous
245
9
document, assignment, security agreement or similar instrument is still in
effect, except, in each case, for Liens expressly permitted pursuant to Section
6.02 of the Credit Agreement.
ARTICLE IV
Covenants
SECTION 4.01. Change of Name; Location of Collateral; Records; Place of
Business. (a) Each Grantor agrees promptly to notify the Collateral Agent in
writing of any change (i) in its corporate name or in any trade name used to
identify it in the conduct of its business or in the ownership of its
properties, (ii) in the location of its chief executive office, its principal
place of business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by it
is located (including the establishment of any such new office or facility),
(iii) in its identity or corporate structure or (iv) in its Federal Taxpayer
Identification Number. Each Grantor agrees not to effect or permit any change
referred to in the preceding sentence unless all filings have been made under
the Uniform Commercial Code or otherwise that are required in order for the
Collateral Agent to continue at all times following such change to have a valid,
legal and perfected first priority security interest in all the Collateral. Each
Grantor agrees promptly to notify the Collateral Agent if any material portion
of the Collateral owned or held by such Grantor is damaged or destroyed.
(b) Each Grantor agrees to maintain, at its own cost and expense, such
complete and accurate records with respect to the Collateral owned by it as is
consistent with its current practices and in accordance with such prudent and
standard practices used in industries that are the same as or similar to those
in which such Grantor is engaged, but in any event to include complete
accounting records indicating all payments and proceeds received with respect to
any part of the Collateral, and, at such time or times as the Collateral Agent
may reasonably request, promptly to prepare and deliver to the Collateral Agent
a duly certified schedule or schedules in form and detail reasonably
satisfactory to the Collateral Agent showing the identity, amount and location
of any and all Collateral.
SECTION 4.02. Periodic Certification. Each year, at the time of
delivery of annual financial statements with respect to the preceding fiscal
year pursuant to Section 5.04 of the Credit Agreement, the Borrower shall
deliver to the Collateral Agent a certificate executed by a Financial Officer
and the chief legal officer of the Borrower (a) setting forth the information
required pursuant to Section 2 of the Perfection Certificate or confirming that
there has been no change in such information since the date of such certificate
or the date of the most recent certificate delivered pursuant to Section 4.02
and (b) certifying that all Uniform Commercial Code financing statements
(including fixture filings, as applicable) or other appropriate filings,
recordings or registrations, including all refilings, rerecordings and
reregistrations, containing a description of the Collateral have been filed of
record in each governmental, municipal or other appropriate office in each
jurisdiction identified pursuant to clause (a) above to the extent necessary to
protect and perfect the Security Interest for a period of not less than 18
months after the date of such certificate (except as noted therein with respect
to any continuation statements to be filed within such period). Each certificate
delivered pursuant to this Section 4.02 shall identify in the format of Schedule
II, III, IV or V, as applicable, all Intellectual Property of any Grantor in
existence on the date thereof and not then listed on such Schedules or
previously so identified to the Collateral Agent.
246
10
SECTION 4.03. Protection of Security. Each Grantor shall, at its own
cost and expense, take any and all actions necessary to defend title to the
Collateral against all persons and to defend the Security Interest of the
Collateral Agent in the Collateral and the priority thereof against any Lien not
expressly permitted pursuant to Section 6.02 of the Credit Agreement.
SECTION 4.04. Further Assurances. Each Grantor agrees, at its own
expense, to execute, acknowledge, deliver and cause to be duly filed all such
further instruments and documents and take all such actions as the Collateral
Agent may from time to time reasonably request to better assure, preserve,
protect and perfect the Security Interest and the rights and remedies created
hereby, including the payment of any fees and taxes required in connection with
the execution and delivery of this Agreement, the granting of the Security
Interest and the filing of any financing statements (including fixture filings)
or other documents in connection herewith or therewith. If any amount payable
under or in connection with any of the Collateral shall be or become evidenced
by any promissory note or other instrument, such note or instrument shall be
immediately pledged and delivered to the Collateral Agent, duly endorsed in a
manner satisfactory to the Collateral Agent.
Without limiting the generality of the foregoing, each Grantor hereby
authorizes the Collateral Agent, with prompt notice thereof to the Grantors, to
supplement this Agreement by supplementing Schedule II, III, IV or V hereto or
adding additional schedules hereto to specifically identify any asset or item
that may constitute Copyrights, Licenses, Patents or Trademarks; provided,
however, that any Grantor shall have the right, exercisable within 10 days after
it has been notified by the Collateral Agent of the specific identification of
such Collateral, to advise the Collateral Agent in writing of any inaccuracy of
the representations and warranties made by such Grantor hereunder with respect
to such Collateral. Each Grantor agrees that it will use its best efforts to
take such action as shall be necessary in order that all representations and
warranties hereunder shall be true and correct with respect to such Collateral
within 30 days after the date it has been notified by the Collateral Agent of
the specific identification of such Collateral.
SECTION 4.05. Inspection and Verification. The Collateral Agent and
such persons as the Collateral Agent may reasonably designate shall at
reasonable intervals and upon reasonable prior notice have the right, at the
Grantors' own cost and expense, to inspect the Collateral, all records related
thereto (and to make extracts and copies from such records) and the premises
upon which any of the Collateral is located, to discuss the Grantors' affairs
with the officers of the Grantors and their independent accountants and to
verify under reasonable procedures the validity, amount, quality, quantity,
value, condition and status of, or any other matter relating to, the Collateral,
including, in the case of Accounts or Collateral in the possession of any third
person, by contacting Account Debtors or the third person possessing such
Collateral for the purpose of making such a verification. The Collateral Agent
shall have the absolute right to share any information it gains from such
inspection or verification with any Secured Party (it being understood that any
such information shall be deemed to be "Information" subject to the provisions
of Section 9.17).
SECTION 4.06. Taxes; Encumbrances. At its option, upon prior written
notice to the applicable Grantor, the Collateral Agent may discharge past due
taxes, assessments, charges, fees, Liens, security interests or other
encumbrances at any time levied or placed on the Collateral and not permitted
pursuant to Section 6.02 of the Credit Agreement, and may pay for the
maintenance and preservation of the Collateral to the extent any Grantor fails
to do so as required by the Credit
247
11
Agreement or this Agreement, and each Grantor jointly and severally agrees to
reimburse the Collateral Agent on demand for any payment made or any expense
incurred by the Collateral Agent pursuant to the foregoing authorization;
provided, however, that nothing in this Section 4.06 shall be interpreted as
excusing any Grantor from the performance of, or imposing any obligation on the
Collateral Agent or any Secured Party to cure or perform, any covenants or other
promises of any Grantor with respect to taxes, assessments, charges, fees,
liens, security interests or other encumbrances and maintenance as set forth
herein or in the other Loan Documents.
SECTION 4.07. Assignment of Security Interest. If at any time any
Grantor shall take a security interest in any property of an Account Debtor or
any other person to secure payment and performance of an Account, such Grantor
shall promptly assign such security interest to the Collateral Agent. Such
assignment need not be filed of public record unless necessary to continue the
perfected status of the security interest against creditors of and transferees
from the Account Debtor or other person granting the security interest.
SECTION 4.08. Continuing Obligations of the Grantors. Each Grantor
shall remain liable to observe and perform all the conditions and obligations to
be observed and performed by it under each contract, agreement or instrument
relating to the Collateral, all in accordance with the terms and conditions
thereof, and each Grantor jointly and severally agrees to indemnify and hold
harmless the Collateral Agent and the Secured Parties from and against any and
all liability for such performance.
SECTION 4.09. Use and Disposition of Collateral. None of the Grantors
shall make or permit to be made an assignment, pledge or hypothecation of the
Collateral or shall grant any other Lien in respect of the Collateral, except as
expressly permitted by Section 6.02 of the Credit Agreement. None of the
Grantors shall make or permit to be made any transfer of the Collateral and each
Grantor shall remain at all times in possession (which possession shall include
(a) in the case of Investment Property, possession through one or more
Securities Intermediaries and (b) in the case of Inventory located on the
premises of any property leased and used by the Borrower or any Subsidiary in
the ordinary course of business, storage of Inventory on such property in the
ordinary course of business) of the Collateral owned by it, except that (a)
Inventory may be sold in the ordinary course of business and (b) unless and
until the Collateral Agent shall notify the Grantors that an Event of Default
shall have occurred and be continuing and that during the continuance thereof
the Grantors shall not sell, convey, lease, assign, transfer or otherwise
dispose of any Collateral (which notice may be given by telephone if promptly
confirmed in writing), the Grantors may use and dispose of the Collateral in any
lawful manner not inconsistent with the provisions of this Agreement, the Credit
Agreement or any other Loan Document. Without limiting the generality of the
foregoing, each Grantor agrees that it shall not permit any Inventory to be in
the possession or control of any warehouseman, bailee, agent or processor at any
time unless such warehouseman, bailee, agent or processor shall have been
notified of the Security Interest and shall have agreed in writing to hold the
Inventory subject to the Security Interest and the instructions of the
Collateral Agent and to waive and release any Lien held by it with respect to
such Inventory, whether arising by operation of law or otherwise.
SECTION 4.10. Limitation on Modification of Accounts. None of the
Grantors will, without the Collateral Agent's prior written consent, grant any
extension of the time of payment of any of the Accounts Receivable, compromise,
compound or settle the same for less than the full amount thereof, release,
wholly or partly, any person liable for the payment thereof or allow any
248
12
credit or discount whatsoever thereon, other than extensions, credits,
discounts, compromises or settlements granted or made in the ordinary course of
business and consistent with its current practices and in accordance with such
prudent and standard practices used in industries that are the same as or
similar to those in which such Grantor is engaged.
SECTION 4.11. Insurance. The Grantors, at their own expense, shall
maintain or cause to be maintained insurance covering physical loss or damage to
the Inventory and Equipment in accordance with Section 5.02 of the Credit
Agreement. Each Grantor irrevocably makes, constitutes and appoints the
Collateral Agent (and all officers, employees or agents designated by the
Collateral Agent) as such Grantor's true and lawful agent (and attorney-in-fact)
for the purpose, during the continuance of an Event of Default, of making,
settling and adjusting claims in respect of Collateral under policies of
insurance, endorsing the name of such Grantor on any check, draft, instrument or
other item of payment for the proceeds of such policies of insurance and for
making all determinations and decisions with respect thereto. In the event that
any Grantor at any time or times shall fail to obtain or maintain any of the
policies of insurance required hereby or to pay any premium in whole or part
relating thereto, the Collateral Agent may, following written notice to the
Grantors, without waiving or releasing any obligation or liability of the
Grantors hereunder or any Event of Default, in its sole discretion, obtain and
maintain such policies of insurance and pay such premium and take any other
actions with respect thereto as the Collateral Agent deems advisable. All sums
disbursed by the Collateral Agent in connection with this Section 4.11,
including reasonable attorneys' fees, court costs, expenses and other charges
relating thereto, shall be payable, upon demand, by the Grantors to the
Collateral Agent and shall be additional Obligations secured hereby.
SECTION 4.12. Legend. Each Grantor shall legend, in form and manner
satisfactory to the Collateral Agent, its Accounts Receivable and its books,
records and documents evidencing or pertaining thereto with an appropriate
reference to the fact that such Accounts Receivable have been assigned to the
Collateral Agent for the benefit of the Secured Parties and that the Collateral
Agent has a security interest therein.
SECTION 4.13. Covenants Regarding Patent, Trademark and Copyright
Collateral. (a) Each Grantor agrees that it will not, nor will it permit any of
its licensees to, do any act, or omit to do any act, whereby any Patent which is
material to the conduct of such Grantor's business may become invalidated or
dedicated to the public, and agrees that it shall continue to xxxx any products
covered by a Patent with the relevant patent number as necessary and sufficient
to establish and preserve its maximum rights under applicable patent laws.
(b) Each Grantor (either itself or through its licensees or its
sublicensees) will, for each Trademark material to the conduct of such Grantor's
business, (i) maintain such Trademark in full force free from any claim of
abandonment or invalidity for non-use, (ii) maintain the quality of products and
services offered under such Trademark, (iii) display such Trademark with notice
of Federal or foreign registration to the extent necessary and sufficient to
establish and preserve its maximum rights under applicable law and (iv) not
knowingly use or knowingly permit the use of such Trademark in violation of any
third party rights.
(c) Each Grantor (either itself or through licensees) will, for each
work covered by a material Copyright, continue to publish, reproduce, display,
adopt and distribute the work with
249
13
appropriate copyright notice as necessary and sufficient to establish and
preserve its maximum rights under applicable copyright laws.
(d) Each Grantor shall notify the Collateral Agent immediately if it
knows or has reason to know that any Patent, Trademark or Copyright material to
the conduct of its business may become abandoned, lost or dedicated to the
public, or of any adverse determination or development (including the
institution of, or any such determination or development in, any proceeding in
the United States Patent and Trademark Office, United States Copyright Office or
any court or similar office of any country) regarding such Grantor's ownership
of any Patent, Trademark or Copyright, its right to register the same, or to
keep and maintain the same.
(e) Each Grantor shall, within ten days after the end of each calendar
month, inform the Collateral Agent of each application for any Patent, Trademark
or Copyright (or for the registration of any Trademark or Copyright) with the
United States Patent and Trademark Office, United States Copyright Office or any
office or agency in any political subdivision of the United States or in any
other country or any political subdivision thereof filed during such calendar
month by such Grantor, either itself or through any agent, employee, licensee or
designee and, upon request of the Collateral Agent, each Grantor shall execute
and deliver any and all agreements, instruments, documents and papers as the
Collateral Agent may request to evidence the Collateral Agent's security
interest in such Patent, Trademark or Copyright, and each Grantor hereby
appoints the Collateral Agent as its attorney-in-fact to execute and file such
writings for the foregoing purposes, all acts of such attorney being hereby
ratified and confirmed; such power, being coupled with an interest, is
irrevocable.
(f) Each Grantor will take all necessary steps that are consistent with
the practice in any proceeding before the United States Patent and Trademark
Office, United States Copyright Office or any office or agency in any political
subdivision of the United States or in any other country or any political
subdivision thereof, to maintain and pursue each material application relating
to the Patents, Trademarks and/or Copyrights (and to obtain the relevant grant
or registration) and to maintain each issued Patent and each registration of the
Trademarks and Copyrights that is material to the conduct of any Grantor's
business, including timely filings of applications for renewal, affidavits of
use, affidavits of incontestability and payment of maintenance fees, and, if
consistent with good business judgment, to initiate opposition, interference and
cancelation proceedings against third parties.
(g) In the event that any Grantor has reason to believe that any
Collateral consisting of a Patent, Trademark or Copyright material to the
conduct of any Grantor's business has been or is about to be infringed,
misappropriated or diluted by a third party, such Grantor promptly shall notify
the Collateral Agent and shall, if consistent with good business judgment,
promptly xxx for infringement, misappropriation or dilution and to recover any
and all damages for such infringement, misappropriation or dilution, and take
such other actions as are appropriate under the circumstances to protect such
Collateral.
(h) Upon and during the continuance of an Event of Default, each
Grantor shall use its best efforts to obtain all requisite consents or approvals
by the licensor of each Copyright License, Patent License or Trademark License
to effect the assignment of all of such Grantor's right, title and interest
thereunder to the Collateral Agent or its designee.
250
14
ARTICLE V
Power of Attorney
Each Grantor irrevocably makes, constitutes and appoints the Collateral
Agent (and all officers, employees or agents designated by the Collateral Agent)
as such Grantor's true and lawful agent and attorney-in-fact, and in such
capacity the Collateral Agent shall have the right, with power of substitution
for each Grantor and in each Grantor's name or otherwise, for the use and
benefit of the Collateral Agent and the Secured Parties, upon the occurrence and
during the continuance of an Event of Default (a) to receive, endorse, assign
and/or deliver any and all notes, acceptances, checks, drafts, money orders or
other evidences of payment relating to the Collateral or any part thereof; (b)
to demand, collect, receive payment of, give receipt for and give discharges and
releases of all or any of the Collateral; (c) to sign the name of any Grantor on
any invoice or xxxx of lading relating to any of the Collateral; (d) to send
verifications of Accounts Receivable to any Account Debtor; (e) to commence and
prosecute any and all suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect or otherwise realize on all or any of
the Collateral or to enforce any rights in respect of any Collateral; (f) to
settle, compromise, compound, adjust or defend any actions, suits or proceedings
relating to all or any of the Collateral; (g) to notify, or to require any
Grantor to notify, Account Debtors to make payment directly to the Collateral
Agent; and (h) to use, sell, assign, transfer, pledge, make any agreement with
respect to or otherwise deal with all or any of the Collateral, and to do all
other acts and things necessary to carry out the purposes of this Agreement, as
fully and completely as though the Collateral Agent were the absolute owner of
the Collateral for all purposes; provided, however, that nothing herein
contained shall be construed as requiring or obligating the Collateral Agent or
any Secured Party to make any commitment or to make any inquiry as to the nature
or sufficiency of any payment received by the Collateral Agent or any Secured
Party, or to present or file any claim or notice, or to take any action with
respect to the Collateral or any part thereof or the moneys due or to become due
in respect thereof or any property covered thereby, and no action taken or
omitted to be taken by the Collateral Agent or any Secured Party with respect to
the Collateral or any part thereof shall give rise to any defense, counterclaim
or offset in favor of any Grantor or to any claim or action against the
Collateral Agent or any Secured Party. It is understood and agreed that the
appointment of the Collateral Agent as the agent and attorney-in-fact of the
Grantors for the purposes set forth above is coupled with an interest and is
irrevocable. The provisions of this Section shall in no event relieve any
Grantor of any of its obligations hereunder or under any other Loan Document
with respect to the Collateral or any part thereof or impose any obligation on
the Collateral Agent or any Secured Party to proceed in any particular manner
with respect to the Collateral or any part thereof, or in any way limit the
exercise by the Collateral Agent or any Secured Party of any other or further
right which it may have on the date of this Agreement or hereafter, whether
hereunder, under any other Loan Document, by law or otherwise.
251
15
ARTICLE VI
Remedies
SECTION 6.01. Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default, each Grantor agrees to deliver each item of
Collateral to the Collateral Agent on demand, and it is agreed that the
Collateral Agent shall have the right to take any of or all the following
actions at the same or different times: (a) with respect to any Collateral
consisting of Intellectual Property, on demand, to cause the Security Interest
to become an assignment, transfer and conveyance of any of or all such
Collateral by the applicable Grantors to the Collateral Agent, or to license or
sublicense, whether general, special or otherwise, and whether on an exclusive
or non-exclusive basis, any such Collateral throughout the world on such terms
and conditions and in such manner as the Collateral Agent shall determine (other
than in violation of any then-existing licensing arrangements to the extent that
waivers cannot be obtained), and (b) with or without legal process and with or
without prior notice or demand for performance, to take possession of the
Collateral and without liability for trespass to enter any premises where the
Collateral may be located for the purpose of taking possession of or removing
the Collateral and, generally, to exercise any and all rights afforded to a
secured party under the Uniform Commercial Code or other applicable law. Without
limiting the generality of the foregoing, each Grantor agrees that the
Collateral Agent shall have the right, subject to the mandatory requirements of
applicable law, to sell or otherwise dispose of all or any part of the
Collateral, at public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future delivery as the
Collateral Agent shall deem appropriate. The Collateral Agent shall be
authorized at any such sale (if it deems it advisable to do so) to restrict the
prospective bidders or purchasers to persons who will represent and agree that
they are purchasing the Collateral for their own account for investment and not
with a view to the distribution or sale thereof, and upon consummation of any
such sale the Collateral Agent shall have the right to assign, transfer and
deliver to the purchaser or purchasers thereof the Collateral so sold. Each such
purchaser at any such sale shall hold the property sold absolutely, free from
any claim or right on the part of any Grantor, and each Grantor hereby waives
(to the extent permitted by law) all rights of redemption, stay and appraisal
which such Grantor now has or may at any time in the future have under any rule
of law or statute now existing or hereafter enacted.
The Collateral Agent shall give the Grantors 10 days' written notice
(which each Grantor agrees is reasonable notice within the meaning of Section
9-504(3) of the Uniform Commercial Code as in effect in the State of New York or
its equivalent in other jurisdictions) of the Collateral Agent's intention to
make any sale of Collateral. Such notice, in the case of a public sale, shall
state the time and place for such sale and, in the case of a sale at a broker's
board or on a securities exchange, shall state the board or exchange at which
such sale is to be made and the day on which the Collateral, or portion thereof,
will first be offered for sale at such board or exchange. Any such public sale
shall be held at such time or times within ordinary business hours and at such
place or places as the Collateral Agent may fix and state in the notice (if any)
of such sale. At any such sale, the Collateral, or portion thereof, to be sold
may be sold in one lot as an entirety or in separate parcels, as the Collateral
Agent may (in its sole and absolute discretion) determine. The Collateral Agent
shall not be obligated to make any sale of any Collateral if it shall determine
not to do so, regardless of the fact that notice of sale of such Collateral
shall have been given. The Collateral Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for sale, and such sale may,
without further notice, be made at the time and place to which the same was so
adjourned. In
252
16
case any sale of all or any part of the Collateral is made on credit or for
future delivery, the Collateral so sold may be retained by the Collateral Agent
until the sale price is paid by the purchaser or purchasers thereof, but the
Collateral Agent shall not incur any liability in case any such purchaser or
purchasers shall fail to take up and pay for the Collateral so sold and, in case
of any such failure, such Collateral may be sold again upon like notice. At any
public (or, to the extent permitted by law, private) sale made pursuant to this
Section, any Secured Party may bid for or purchase, free (to the extent
permitted by law) from any right of redemption, stay, valuation or appraisal on
the part of any Grantor (all said rights being also hereby waived and released
to the extent permitted by law), the Collateral or any part thereof offered for
sale and may make payment on account thereof by using any claim then due and
payable to such Secured Party from any Grantor as a credit against the purchase
price, and such Secured Party may, upon compliance with the terms of sale, hold,
retain and dispose of such property without further accountability to any
Grantor therefor. For purposes hereof, a written agreement to purchase the
Collateral or any portion thereof shall be treated as a sale thereof; the
Collateral Agent shall be free to carry out such sale pursuant to such agreement
and no Grantor shall be entitled to the return of the Collateral or any portion
thereof subject thereto, notwithstanding the fact that after the Collateral
Agent shall have entered into such an agreement all Events of Default shall have
been remedied and the Obligations paid in full. As an alternative to exercising
the power of sale herein conferred upon it, the Collateral Agent may proceed by
a suit or suits at law or in equity to foreclose this Agreement and to sell the
Collateral or any portion thereof pursuant to a judgment or decree of a court or
courts having competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver.
SECTION 6.02. Application of Proceeds. The Collateral Agent shall apply
the proceeds of any collection or sale of the Collateral, as well as any
Collateral consisting of cash, as follows:
FIRST, to the payment of all costs and expenses incurred by
the Administrative Agent or the Collateral Agent (in its capacity as
such hereunder or under any other Loan Document) in connection with
such collection or sale or otherwise in connection with this Agreement
or any of the Obligations, including all court costs and the fees and
expenses of its agents and legal counsel, the repayment of all advances
made by the Collateral Agent hereunder or under any other Loan Document
on behalf of any Grantor and any other costs or expenses incurred in
connection with the exercise of any right or remedy hereunder or under
any other Loan Document;
SECOND, to the payment in full of the Obligations (the amounts
so applied to be distributed among the Secured Parties pro rata in
accordance with the amounts of the Obligations owed to them on the date
of any such distribution); and
THIRD, to the Grantors, their successors or assigns, or as a
court of competent jurisdiction may otherwise direct.
The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the Collateral Agent or of the officer making the sale shall be a
sufficient discharge to the purchaser or purchasers of the Collateral so sold
and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Collateral Agent
or such officer or be answerable in any way for the misapplication thereof.
253
17
SECTION 6.03. Grant of License to Use Intellectual Property. For the
purpose of enabling the Collateral Agent to exercise rights and remedies under
this Article at such time as the Collateral Agent shall be lawfully entitled to
exercise such rights and remedies, each Grantor hereby grants to the Collateral
Agent an irrevocable, non-exclusive license (exercisable without payment of
royalty or other compensation to the Grantors) to use, license or sub-license
any of the Collateral consisting of Intellectual Property now owned or hereafter
acquired by such Grantor, to the extent granting such license or sub-license
would not violate any agreement applicable to such Intellectual Property, and
wherever the same may be located, and including in such license reasonable
access to all media in which any of the licensed items may be recorded or stored
and to all computer software and programs used for the compilation or printout
thereof. The use of such license by the Collateral Agent shall be exercised, at
the option of the Collateral Agent, upon the occurrence and during the
continuation of an Event of Default; provided that any license, sub-license or
other transaction entered into by the Collateral Agent in accordance herewith
shall be binding upon the Grantors notwithstanding any subsequent cure of an
Event of Default.
ARTICLE VII
Miscellaneous
SECTION 7.01. Notices. All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and given as
provided in Section 9.01 of the Credit Agreement. All communications and notices
hereunder to any Subsidiary Guarantor shall be given to it at its address or
telecopy number set forth on Schedule I, with a copy to the Borrower.
SECTION 7.02. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the Security Interest and all obligations of the Grantors
hereunder shall be absolute and unconditional irrespective of (a) any lack of
validity or enforceability of the Credit Agreement, any other Loan Document, any
agreement with respect to any of the Obligations or any other agreement or
instrument relating to any of the foregoing, (b) any change in the time, manner
or place of payment of, or in any other term of, all or any of the Obligations,
or any other amendment or waiver of or any consent to any departure from the
Credit Agreement, any other Loan Document or any other agreement or instrument,
(c) any exchange, release or non-perfection of any Lien on other collateral, or
any release or amendment or waiver of or consent under or departure from any
guarantee, securing or guaranteeing all or any of the Obligations, or (d) any
other circumstance that might otherwise constitute a defense available to, or a
discharge of, any Grantor in respect of the Obligations or this Agreement.
SECTION 7.03. Survival of Agreement. All covenants, agreements,
representations and warranties made by any Grantor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Secured Parties and shall survive the making by the Lenders of the Loans, and
the execution and delivery to the Lenders of any notes evidencing such Loans,
regardless of any investigation made by the Lenders or on their behalf, and
shall continue in full force and effect until this Agreement shall terminate.
254
18
SECTION 7.04. Binding Effect; Several Agreement. This Agreement shall
become effective as to any Grantor when a counterpart hereof executed on behalf
of such Grantor shall have been delivered to the Collateral Agent and a
counterpart hereof shall have been executed on behalf of the Collateral Agent,
and thereafter shall be binding upon such Grantor and the Collateral Agent and
their respective successors and assigns, and shall inure to the benefit of such
Grantor, the Collateral Agent and the other Secured Parties and their respective
successors and assigns, except that no Grantor shall have the right to assign or
transfer its rights or obligations hereunder or any interest herein or in the
Collateral (and any such assignment or transfer shall be void) except as
expressly contemplated by this Agreement or the Credit Agreement. This Agreement
shall be construed as a separate agreement with respect to each Grantor and may
be amended, modified, supplemented, waived or released with respect to any
Grantor without the approval of any other Grantor and without affecting the
obligations of any other Grantor hereunder.
SECTION 7.05. Successors and Assigns. Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of any Grantor or the Collateral Agent that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
SECTION 7.06. Collateral Agent's Fees and Expenses; Indemnification.
(a) Each Grantor jointly and severally agrees to pay upon demand to the
Collateral Agent the amount of any and all reasonable expenses, including the
reasonable fees, disbursements and other charges of its counsel and of any
experts or agents, which the Collateral Agent may incur in connection with (i)
the administration of this Agreement, (ii) the custody or preservation of, or
the sale of, collection from or other realization upon any of the Collateral,
(iii) the exercise, enforcement or protection of any of the rights of the
Collateral Agent hereunder or (iv) the failure of any Grantor to perform or
observe any of the provisions hereof.
(b) Without limitation of its indemnification obligations under the
other Loan Documents, each Grantor jointly and severally agrees to indemnify the
Collateral Agent and the other Indemnitees against, and hold each of them
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including reasonable fees, disbursements and other charges of counsel,
incurred by or asserted against any of them arising out of, in any way connected
with, or as a result of, the execution, delivery or performance of this
Agreement or any claim, litigation, investigation or proceeding relating hereto
or to the Collateral, whether or not any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee.
(c) Any such amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of this Section 7.06 shall remain operative and in full force and effect
regardless of the termination of this Agreement or any other Loan Document, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by or on behalf
of the Collateral Agent or any Lender. All amounts due under this Section 7.06
shall be payable on written demand therefor.
255
19
SECTION 7.07. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.08. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Agent hereunder
and of the Collateral Agent, the Issuing Bank, the Administrative Agent and the
Lenders under the other Loan Documents are cumulative and are not exclusive of
any rights or remedies that they would otherwise have. No waiver of any
provisions of this Agreement or any other Loan Document or consent to any
departure by any Grantor therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Grantor in any case shall entitle such
Grantor or any other Grantor to any other or further notice or demand in similar
or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Collateral Agent and the Grantor or Grantors with respect to
which such waiver, amendment or modification is to apply, subject to any consent
required in accordance with Section 9.08 of the Credit Agreement.
SECTION 7.09. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.09.
SECTION 7.10. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7.11 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract (subject to Section 7.04),
and shall become effective as provided in
256
20
Section 7.04. Delivery of an executed signature page to this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.
SECTION 7.12. Headings. Article and Section headings used herein are
for the purpose of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
SECTION 7.13. Jurisdiction; Consent to Service of Process. (a) Each
Grantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Collateral Agent, the Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Loan Documents against any Grantor or its properties in the courts of
any jurisdiction.
(b) Each Grantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 7.01. Nothing in this
Agreement will affected the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 7.14. Termination. This Agreement and the Security Interest
shall terminate when all the Obligations have been indefeasibly paid in full,
the Lenders have no further commitment to lend, the L/C Exposure has been
reduced to zero and the Issuing Bank has no further commitment to issue Letters
of Credit under the Credit Agreement, at which time the Collateral Agent shall
execute and deliver to the Grantors, at the Grantors' expense, all Uniform
Commercial Code termination statements and similar documents which the Grantors
shall reasonably request to evidence such termination. Any execution and
delivery of termination statements or documents pursuant to this Section 7.14
shall be without recourse to or warranty by the Collateral Agent. A Subsidiary
Guarantor shall automatically be released from its obligations hereunder and the
Security Interest in the Collateral of such Subsidiary Guarantor shall be
automatically released in the event that all the capital stock of such
Subsidiary Guarantor shall be sold, transferred or otherwise disposed of to a
person that is not an Affiliate of the Borrower in accordance with the terms of
the Credit Agreement; provided that the Required Lenders shall have consented to
such sale, transfer or other disposition (to the extent required by the Credit
Agreement) and the terms of such consent did not provide otherwise.
257
21
SECTION 7.15. Additional Grantors. Upon execution and delivery by the
Collateral Agent and a Subsidiary of an instrument in the form of Annex 3
hereto, such Subsidiary shall become a Grantor hereunder with the same force and
effect as if originally named as a Grantor herein. The execution and delivery of
any such instrument shall not require the consent of any Grantor hereunder. The
rights and obligations of each Grantor hereunder shall remain in full force and
effect notwithstanding the addition of any new Grantor as a party to this
Agreement.
258
22
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXXXXXXX SEMICONDUCTOR
CORPORATION,
by:
---------------------------
Name:
Title:
EACH OF THE SUBSIDIARY
GUARANTORS LISTED ON
SCHEDULE I HERETO,
by:
---------------------------
Name:
Title: Authorized Officer
CREDIT SUISSE FIRST BOSTON,
as Collateral Agent,
by:
---------------------------
Name:
Title:
by:
---------------------------
Name:
Title:
259
SCHEDULE I
SUBSIDIARY GUARANTORS
260
SCHEDULE II
U.S. COPYRIGHTS OWNED BY GRANTORS
U.S. Copyright Registrations
Title Class Reg. Date Reg No.
None
Pending U.S. Copyright Applications for Registration
Title Class Date Application Filed
None
Non-U.S. Copyright Registrations
Country Title Class Reg. Date Reg. No.
None
Non-U.S. Pending Copyright Applications for Registration
Country Title Class Date Application Filed
None
261
SCHEDULE III
LICENSES
[Make a separate Schedule III for each Grantor, and if not a licensor/licensee
in a license/sublicense so state.]
PART I
LICENSES/SUBLICENSES OF [NAME OF GRANTOR] ON DATE HEREOF
A. Copyrights
[List First U.S. copyrights in numerical order by Reg. No., followed by non-U.S.
copyrights by country in alphabetical order, Reg. Nos. in numerical order.]
Licensee Name and Date of License/ Title of Class Xxx.Xxxx Reg. No.
Address Sublicense U.S.Copyrights
Licensee Name Date of License/ Title of Non-U.S. Country Class Xxx.Xxxx Reg. No.
and Address Sublicense Copyrights
B. Patents
[List first in numerical order by U.S. patent nos. followed by U.S. patent
application nos., followed in alphabetical order by country, non-U.S. patent
nos. followed by non-U.S. application nos. in numerical order.]
Licensee Name and Date of License/ Title of U.S. Patent Class Application Date Application/
Address Sublicense Filed/Issue Date Patent No.
Licensee Name and Date of License/ Title of Non- Country Class Application Application/
Address Sublicense U.S. Patent Date Field/Issue Patent No.
Date
262
C. Trademarks
[List first in numerical order by U.S. trademark nos., followed by U.S.
trademark application nos., followed in alphabetical order by country, non-U.S.
application nos. in numerical order.]
Licensee Name Date of License/ U.S. Xxxx Class Application Date Application/
and Address Sublicense Filed/Xxx.Xxxx Reg. No.
Licensee Name Date of License/ Title of Country Class Application Application/
and Address Sublicense Non-U.S.Xxxx Date Filed/ Reg. No.
Reg. Date
D. Others
Licensee Name and Address Date of License/ Subject Matter
Sublicense
PART 2
LICENSES/SUBLICENSES OF [NAME OF GRANTOR] AS LICENSEE ON DATE HEREOF
A. Copyrights
[List first U.S. copyrights in numerical order by Reg. No., followed by non-U.S.
copyright by country in alphabetical order, Reg. Nos. in numerical order.]
Licensor Name Date of License/ Title of Class Reg. Date Reg. No.
and Address Sublicense U.S. Copyright
Licensor Name Date of License/ Title of Non-U.S. Country Class Reg. Date Reg. No.
and Address Sublicense Copyrights
263
3
B. Patents
[List first in numerical order by U.S. Patent nos. followed by U.S. patent
application nos., followed in alphabetical order by country, non-U.S. patent
nos. followed by non-U.S. application nos. in numerical order.]
Licensor Name Date of License/ Title of Class Application Application/
and Address Sublicense U.S. Patent Date/Filed/ Patent No.
Issue Date
Licensor Name Date of License/ Title of Non- Country Class Application Application/
and Address Sublicense U.S. Patent Date/Filed/ Patent No.
Issue Date
C. Trademarks
[List first in numerical order by U.S. trademark nos., followed by U.S.
trademark application nos., followed in alphabetical order by country, non-U.S.
trademark nos. followed by non-U.S. application nos. in numerical order.]
Licensor Name and Date of License/ U.S. Xxxx Class Application Date Application
Address Sublicense Filed/Reg. Date Reg. No.
Licensor Date of License/ Title of Country Class Application Date Application/
Name and Sublicense Non-U.S. Xxxx Filed/Reg. Date Reg. No.
Address
D. Others
Licensor Name and Address Date of License/ Subject Matter
Sublicense
264
SCHEDULE IV
PATENTS OWNED BY [NAME OF GRANTOR]
[Make a separate Schedule IV for each Grantor and if no patents owned so state.
List in numerical order by Patent No./Patent Application No.]
U.S. Patent Registrations
Patent Name Class Issue Date Patent No.
U.S. Patent Applications
Patent Name Class Filing Date Patent Application No.
Non-U.S. Patent Registrations
[List in alphabetical order by country/numerical order by Patent No.]
Country Patent Name Class Issue Date Patent No.
Non-U.S. Patent Applications
Country Patent Name Class Filing Date Patent Application No.
265
SCHEDULE V
TRADEMARK/TRADE NAMES OWNED BY [NAME OF GUARANTOR]
[Make a separate Schedule V for each Grantor and if no trademarks/trade names
owned so state. List in numerical order by trademark registration/application
no.]
U.S. Trademark Registrations
Xxxx Class Reg. Date Reg. No.
U.S. Trademark Applications
Xxxx Class Filing Date Application No.
State Trademark Registrations
[List in alphabetical order by State/numerical order by trademark no.]
State Xxxx Class Reg. Date Reg. No.
State Trademark Applications
[List in alphabetical order by trademark application no.]
State Xxxx Class Filing Date Application No.
Non-U.S. Trademark Registrations
[List in alphabetical order by Country/numerical order by trademark no.]
Country Xxxx Class Reg. Date Reg. No.
Non-U.S. Trademark Applications
[List in alphabetical order by Country/numerical order by application no.]
Country Xxxx Class Filing Date Application No.
Trade Names
266
Annex 2 to the
Security Agreement
[Form Of]
PERFECTION CERTIFICATE
Reference is made to (a) the Credit Agreement dated as of April 14, 1999 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, FSC Semiconductor Corporation, a Delaware
corporation ("Holdings"), the lenders from time to time party thereto (the
"Lenders"), Credit Suisse First Boston, as administrative agent for the Lenders
(in such capacity, the "Administrative Agent"), and as Collateral Agent,
swingline lender and Issuing Bank (as defined therein), Salomon Brothers Holding
Company Inc, as syndication agent, and Fleet National Bank, as Issuing Bank and
as documentation agent and ABN Amro Bank, NV, as documentation agent and (b) the
Subsidiary Guarantee Agreement dated as of April 14, 1999 (as amended,
supplemented or otherwise modified from time to time, the "Subsidiary Guarantee
Agreement"), among the Subsidiary Guarantors and the Collateral Agent.
The undersigned, a Financial Officer and a Legal Officer, respectively, of
Holdings, hereby certify to the Collateral Agent and each other Secured Party as
follows:
1. Names.
(a) The exact corporate name of each Grantor, as such name appears in its
respective certificate of incorporation, is as follows:
(b) Set forth below is each other corporate name each Grantor has had in the
past five years, together with the date of the relevant change:
(c) Except as set forth in Schedule 1 hereto, no Grantor has changed its
identity or corporate structure in any way within the past five years. Changes
in identity or corporate structure would include mergers, consolidations and
acquisitions, as well as any change in the form, nature or jurisdiction of
corporate organization. If any such change has occurred, include in Schedule 1
the information required by Sections 1 and 2 of this certificate as to each
acquiree or constituent party to a merger or consolidation:
(d) The following is a list of all other names (including trade names or
similar appellations) used by each Grantor or any of its divisions or other
business units in connection with the conduct of its business or the ownership
of its properties at any time during the past five years:
(e) Set forth below is the Federal Taxpayer Identification Number of each
Grantor:
2. Current Locations.
(a) The chief executive office of each Grantor is located at the address set
forth opposite its name below:
Grantor Mailing Address County State
267
(b) Set forth below opposite the name of each Grantor are all locations where
such Grantor maintains any books or records relating to any Accounts Receivable
(with each location at which chattel paper, if any, is kept being indicated by
an "*"):
Grantor Mailing Address County State
(c) Set forth below opposite the name of each Grantor are all the places of
business of such Grantor not identified in paragraph (a) or (b) above:
Grantor Mailing Address County State
(d) Set forth below opposite the name of each Grantor are all the locations
where such Grantor maintains any Collateral not identified above:
Grantor Mailing Address County State
(e) Set forth below opposite the name of each Grantor are the names and
addresses of all persons other than such Grantor that have possession of any of
the Collateral of such Grantor:
Grantor Mailing Address County State
3. Unusual Transactions. All Accounts Receivable have been originated by the
Grantors and all Inventory has been acquired by the Grantors in the ordinary
course of business.
4. File Search Reports. Attached hereto as Schedule 4(A) are true copies of
file search reports from the Uniform Commercial Code filing offices where
filings described in Section 3.19 of the Credit Agreement are to be made.
Attached hereto as Schedule 4(B) is a true copy of each financing statement or
other filing identified in such file search reports.
5. UCC Filings. Duly signed financing statements on Form UCC-1 in
substantially the form of Schedule 5 hereto have been prepared for filing in the
Uniform Commercial Code filing office in each jurisdiction where a Grantor has
Collateral as identified in Section 2 hereof.
6. Schedule of Filings. Attached hereto as Schedule 6 is a schedule setting
forth, with respect to the filings described in Section 5 above, each filing and
the filing office in which such filing is to be made.
7. Filing Fees. All filing fees and taxes payable in connection with the
filings described in Section 5 above have been paid.
8. Stock Ownership. Attached hereto as Schedule 8 is a true and correct list
of all the duly authorized, issued and outstanding stock of each Subsidiary and
the record and beneficial owners of such stock. Also set forth on Schedule 8 is
each equity Investment of Holdings and each Subsidiary that represents 50% or
less of the equity of the entity in which such investment was made.
268
9. Notes. Attached hereto as Schedule 9 is a true and correct list of all
notes held by Holdings and each Subsidiary and all intercompany notes between
Holdings and each Subsidiary of Holdings and between each Subsidiary of Holdings
and each other such Subsidiary.
10. Advances. Attached hereto as Schedule 10 is (a) a true and correct list of
all advances made by Holdings to any Subsidiary of Holdings or made by any
Subsidiary of Holdings to Holdings or any other Subsidiary of Holdings, which
advances will be on and after the date hereof evidenced by one or more
intercompany notes pledged to the Collateral Agent under the Pledge Agreement,
and (b) a true and correct list of all unpaid intercompany transfers of goods
sold and delivered by or to Holdings or any Subsidiary of Holdings.
11. Mortgage Filings. Attached hereto as Schedule 11 is a schedule setting
forth, with respect to each Mortgaged Property, (i) the exact corporate name of
the corporation that owns such property as such name appears in its certificate
of incorporation, (ii) if different from the name identified pursuant to clause
(i), the exact name of the current record owner of such property reflected in
the records of the filing office for such property identified pursuant to the
following clause and (iii) the filing office in which a Mortgage with respect to
such property must be filed or recorded in order for the Collateral Agent to
obtain a perfected security interest therein.
IN WITNESS WHEREOF, the undersigned have duly executed this certificate on
this fourteenth day of April, 1999.
FSC SEMICONDUCTOR CORPORATION,
by: __________________________________
Name:
Title:[Financial Officer]
by: __________________________________
Name:
Title: [Legal Officer]
269
Annex 3 to the
Security Agreement
SUPPLEMENT NO. __ dated as of , to the
Security Agreement dated as of April 14, 1999, among XXXXXXXXX
SEMICONDUCTOR CORPORATION, a Delaware corporation (the
"Borrower"), each subsidiary of the Borrower listed on
Schedule I thereto (each such subsidiary individually a
"Subsidiary Guarantor" and collectively, the "Subsidiary
Guarantors"; the Subsidiary Guarantors and the Borrower are
referred to collectively herein as the "Grantors") and CREDIT
SUISSE FIRST BOSTON, a bank organized under the laws of
Switzerland, acting through its New York branch ("CSFB"), as
collateral agent (in such capacity, the "Collateral Agent")
for the Secured Parties (as defined herein).
A. Reference is made to (a) the Credit Agreement dated as of April 14,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, FSC Semiconductor Corporation, a
Delaware corporation, the lenders from time to time party thereto (the
"Lenders"), CSFB, as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"), and as Collateral Agent, swingline lender and Issuing
Bank (as defined therein), Salomon Brothers Holding Company Inc, as syndication
agent, and Fleet National Bank, as Issuing Bank and as documentation agent and
ABN Amro Bank, NV, as documentation agent and (b) the Subsidiary Guarantee
Agreement dated as of April 14, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Subsidiary Guarantee Agreement"), among the
Subsidiary Guarantors and the Collateral Agent.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Security Agreement and the
Credit Agreement.
C. The Grantors have entered into the Security Agreement in order to
induce the Lenders to make Loans and the Issuing Bank to issue Letters of
Credit. Section 7.15 of the Security Agreement provides that additional
Subsidiaries of the Borrower may become Grantors under the Security Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary (the "New Grantor") is executing this Supplement in
accordance with the requirements of the Credit Agreement to become a Grantor
under the Security Agreement in order to induce the Lenders to make additional
Loans and the Issuing Bank to issue additional Letters of Credit and as
consideration for Loans previously made and Letters of Credit previously issued.
Accordingly, the Collateral Agent and the New Grantor agree as follows:
SECTION 1. In accordance with Section 7.15 of the Security Agreement,
the New Grantor by its signature below becomes a Grantor under the Security
Agreement with the same force and effect as if originally named therein as a
Grantor and the New Grantor hereby (a) agrees to all the terms and provisions of
the Security Agreement applicable to it as a Grantor thereunder and (b)
represents and warrants that the representations and warranties made by it as a
Grantor thereunder are true and correct on and as of the date hereof. In
furtherance of the foregoing, the New Grantor, as security for the payment and
performance in full of the Obligations (as defined in the Security Agreement),
does hereby create and grant to the Collateral Agent, its successors and
assigns, for the benefit of the Secured Parties, their successors and assigns, a
security interest in and lien on all of the New Grantor's right, title and
interest in and to the Collateral (as defined in the Security Agreement) of the
New Grantor. Each reference to a "Grantor" in the Security Agreement shall be
deemed to include the New Grantor. The Security Agreement is hereby incorporated
herein by reference.
270
SECTION 2. The New Grantor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Grantor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. The New Grantor hereby represents and warrants that (a) set
forth on Schedule I attached hereto is a true and correct schedule of the
location of any and all Collateral of the New Grantor and (b) set forth under
its signature hereto, is the true and correct location of the chief executive
office of the New Grantor.
SECTION 5. Except as expressly supplemented hereby, the Security
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Security Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties hereto shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 8. All communications and notices hereunder shall be in writing
and given as provided in Section 7.01 of the Security Agreement. All
communications and notices hereunder to the New Grantor shall be given to it at
the address set forth under its signature below.
SECTION 9. The New Grantor agrees to reimburse the Collateral Agent for
its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
271
3
IN WITNESS WHEREOF, the New Grantor and the Collateral Agent have duly
executed this Supplement to the Security Agreement as of the day and year first
above written.
[Name Of New Grantor],
by: __________________________________
Name:
Title:
Address:
CREDIT SUISSE FIRST BOSTON,
as Collateral Agent,
by: __________________________________
Name:
Title:
by: __________________________________
Name:
Title:
272
SCHEDULE I
to Supplement No.___ to the
Security Agreement
LOCATION OF COLLATERAL
Description Location
273
Country(s) Where Used Trade Names
274
SCHEDULE I
to Supplement No.___ to the
Security Agreement
LOCATION OF COLLATERAL
Description Location
275
EXECUTION COPY
SUBSIDIARY GUARANTEE AGREEMENT dated as of April 14,
1999, among each of the subsidiaries listed on Schedule I
hereto (each such subsidiary individually, a "Guarantor" and
collectively, the "Guarantors") of XXXXXXXXX SEMICONDUCTOR
CORPORATION, a Delaware corporation (the "Borrower"), and
CREDIT SUISSE FIRST BOSTON, a bank organized under the laws of
Switzerland, acting through its New York branch, as collateral
agent (the "Collateral Agent") for the Secured Parties (as
defined in the Credit Agreement referred to below).
Reference is made to the Credit Agreement dated as of April 14, 1999
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the lenders from time to time party thereto
(the "Lenders"), Credit Suisse First Boston, as and Credit Suisse First Boston,
as issuing bank (in such capacity, the "Issuing Bank"). Capitalized terms used
herein and not defined herein shall have the meanings assigned to such terms in
the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower, and the Issuing
Bank has agreed to issue Letters of Credit for the account of the Borrower,
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. Each of the Guarantors is a wholly owned Subsidiary of the
Borrower and acknowledges that it will derive substantial benefit from the
making of the Loans by the Lenders, and the issuance of the Letters of Credit by
the Issuing Bank. The obligations of the Lenders to make Loans and of the
Issuing Bank to issue Letters of Credit are conditioned on, among other things,
the execution and delivery by the Guarantors of a Guarantee Agreement in the
form hereof. As consideration therefor and in order to induce the Lenders to
make Loans and the Issuing Bank to issue Letters of Credit, the Guarantors are
willing to execute this Agreement.
276
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. Each Guarantor unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary obligor and not
merely as a surety, (a) the due and punctual payment of (i) the principal of and
premium, if any, and interest (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on the Loans,
when and as due, whether at maturity, by acceleration, upon one or more dates
set for prepayment or otherwise, (ii) each payment required to be made by the
Borrower under the Credit Agreement in respect of any Letter of Credit, when and
as due, including payments in respect of reimbursement of disbursements,
interest thereon and obligations to provide cash collateral and (iii) all other
monetary obligations, including fees, costs, expenses and indemnities, whether
primary, secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Loan Parities to the Secured Parties under
the Credit Agreement and the other Loan Documents, (b) the due and punctual
performance of all covenants, agreements, obligations and liabilities of the
Loan Parties under or pursuant to the Credit Agreement and the other Loan
Documents and (c) unless otherwise agreed upon in writing by the applicable
Lender party thereto, all obligations of the Borrower, monetary or otherwise,
under each Interest Rate Protection Agreement entered into with a counterparty
that was a Lender at the time such Interest Rate Protection Agreement was
entered into (all the monetary and other obligations referred to in the
preceding clauses (a) through (c) being collectively called the "Obligations").
Each Guarantor further agrees that the Obligations may be extended or renewed,
in whole or in part, without notice to or further assent from it, and that it
will remain bound upon its guarantee notwithstanding any extension or renewal of
any Obligation.
Anything contained in this Agreement to the contrary notwithstanding,
the obligations of each Guarantor hereunder shall be limited to a maximum
aggregate amount equal to the greatest amount that would not render such
Guarantor's obligations hereunder subject to avoidance as a fraudulent transfer
or conveyance under Section 548 of Title 11 of the United States Code or any
provisions of applicable state law (collectively, the "Fraudulent Transfer
Laws"), in each case after giving effect to all other liabilities of such
Guarantor, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
Guarantor (a) in respect of intercompany indebtedness to the Borrower or
Affiliates of the Borrower to the extent that such indebtedness would be
discharged in an amount equal to the amount paid by such Guarantor hereunder and
(b) under any Guarantee of senior unsecured indebtedness or Indebtedness
subordinated in right of payment to the Obligations which Guarantee contains a
limitation as to maximum amount similar to that set forth in this paragraph,
pursuant to which the liability of such Guarantor hereunder is included in the
liabilities taken into account in determining such maximum amount) and after
giving effect as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights of such Guarantor
pursuant to (i) applicable law or (ii) any agreement providing for an equitable
allocation among such Guarantor and other Affiliates of the Borrower of
obligations arising under Guarantees by such parties (including the Indemnity,
Subrogation and Contribution Agreement).
SECTION 2. Obligations Not Waived. To the fullest extent permitted by
applicable law, each Guarantor waives presentment to, demand of payment from and
protest to the Borrower of any of the Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment. To the fullest
extent permitted by applicable law, the obligations of each Guarantor hereunder
shall not be affected by (a) the failure of the Collateral Agent or any other
Secured Party to assert any claim or demand or to enforce or exercise any right
or remedy against the Borrower or any other Guarantor under the provisions of
the Credit Agreement, any other Loan Document or otherwise, (b) any rescission,
waiver, amendment or modification of, or any release from any of the terms or
provisions of this Agreement, any other Loan Document, any Guarantee or any
other
277
agreement, including with respect to any other Guarantor under this Agreement or
(c) the failure to perfect any security interest in, or the release of, any of
the security held by or on behalf of the Collateral Agent or any other Secured
Party.
SECTION 3. Security. Each of the Guarantors authorizes the Collateral
Agent and each of the other Secured Parties, to (a) take and hold security for
the payment of this Guarantee and the Obligations and exchange, enforce, waive
and release any such security, (b) apply such security and direct the order or
manner of sale thereof as they in their sole discretion may determine and (c)
release or substitute any one or more endorsees, other guarantors of other
obligors.
SECTION 4. Guarantee of Payment. Each Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Collateral Agent or
any other Secured Party to any of the security held for payment of the
Obligations or to any balance of any deposit account or credit on the books of
the Collateral Agent or any other Secured Party in favor of the Borrower or any
other person.
SECTION 5. No Discharge or Diminishment of Guarantee. The obligations
of each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any of the Obligations, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Collateral Agent or any other Secured
Party to assert any claim or demand or to enforce any remedy under the Credit
Agreement, any other Loan Document or any other agreement, by any waiver or
modification of any provision of any thereof, by any default, failure or delay,
wilful or otherwise, in the performance of the Obligations, or by any other act
or omission that may or might in any manner or to any extent vary the risk of
any Guarantor or that would otherwise operate as a discharge of each Guarantor
as a matter of law or equity (other than the indefeasible payment in full in
cash of all the Obligations).
SECTION 6. Defenses of Borrower Waived. To the fullest extent permitted
by applicable law, each of the Guarantors waives any defense based on or arising
out of any defense of the Borrower or the unenforceability of the Obligations or
any part thereof from any cause, or the cessation from any cause of the
liability of the Borrower, other than the final and indefeasible payment in full
in cash of the Obligations. The Collateral Agent and the other Secured Parties
may, at their election, foreclose on any security held by one or more of them by
one or more judicial or nonjudicial sales, accept an assignment of any such
security in lieu of foreclosure, compromise or adjust any part of the
Obligations, make any other accommodation with the Borrower or any other
guarantor or exercise any other right or remedy available to them against the
Borrower or any other guarantor, without affecting or impairing in any way the
liability of any Guarantor hereunder except to the extent the Obligations have
been fully, finally and indefeasibly paid in cash. Pursuant to applicable law,
each of the Guarantors waives any defense arising out of any such election even
though such election operates, pursuant to applicable law, to impair or to
extinguish any right of reimbursement or subrogation or other right or remedy of
such Guarantor against the Borrower or any other Guarantor or guarantor, as the
case may be, or any security.
SECTION 7. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the Collateral Agent or
any other Secured Party has at law or in equity against any Guarantor by virtue
hereof, upon the failure of the Borrower or any other Loan Party to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the Collateral Agent
or such other Secured Party as designated thereby in cash the amount of such
unpaid Obligations. Upon payment by any Guarantor of any sums to the Collateral
Agent or any Secured Party as provided above, all rights of such Guarantor
278
against the Borrower arising as a result thereof by way of right of subrogation,
contribution, reimbursement, indemnity or otherwise shall in all respects be
subordinate and junior in right of payment to the prior indefeasible payment in
full in cash of all the Obligations. In addition, any indebtedness of the
Borrower now or hereafter held by any Guarantor is hereby subordinated in right
of payment to the prior payment in full of the Obligations. If any amount shall
erroneously be paid to any Guarantor on account of (i) such subrogation,
contribution, reimbursement, indemnity or similar right or (ii) any such
indebtedness of the Borrower, such amount shall be held in trust for the benefit
of the Secured Parties and shall forthwith be paid to the Collateral Agent to be
credited against the payment of the Obligations, whether matured or unmatured,
in accordance with the terms of the Loan Documents.
SECTION 8. Information. Each of the Guarantors assumes all
responsibility for being and keeping itself informed of the Borrower's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Obligations and the nature, scope and extent of the risks that
such Guarantor assumes and incurs hereunder, and agrees that none of the
Collateral Agent or the other Secured Parties will have any duty to advise any
of the Guarantors of information known to it or any of them regarding such
circumstances or risks.
SECTION 9. Representations and Warranties. Each of the Guarantors
represents and warrants as to itself that all representations and warranties
relating to it contained in the Credit Agreement are true and correct.
SECTION 10. Termination. The Guarantees made hereunder (a) shall
terminate when all the Obligations have been indefeasibly paid in full and the
Lenders have no further commitment to lend under the Credit Agreement, the L/C
Exposure has been reduced to zero and the Issuing Bank has no further obligation
to issue Letters of Credit under the Credit Agreement and (b) shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any Obligation is rescinded or must otherwise be restored
by any Secured Party or any Guarantor upon the bankruptcy or reorganization of
the Borrower, any Guarantor or otherwise.
SECTION 11. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Guarantors that are contained in
this Agreement shall bind and inure to the benefit of each party hereto and
their respective successors and assigns. This Agreement shall become effective
as to any Guarantor when a counterpart hereof executed on behalf of such
Guarantor shall have been delivered to the Collateral Agent, and a counterpart
hereof shall have been executed on behalf of the Collateral Agent, and
thereafter shall be binding upon such Guarantor and the Collateral Agent and
their respective successors and assigns, and shall inure to the benefit of such
Guarantor, the Collateral Agent and the other Secured Parties, and their
respective successors and assigns, except that no Guarantor shall have the right
to assign its rights or obligations hereunder or any interest herein (and any
such attempted assignment shall be void). If all of the capital stock of a
Guarantor is sold, transferred or otherwise disposed of pursuant to a
transaction permitted by Section 6.05 of the Credit Agreement, such Guarantor
shall be released from its obligations under this Agreement without further
action. This Agreement shall be construed as a separate agreement with respect
to each Guarantor and may be amended, modified, supplemented, waived or released
with respect to any Guarantor without the approval of any other Guarantor and
without affecting the obligations of any other Guarantor hereunder.
SECTION 12. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Agent hereunder
and of the other Secured Parties under the other Loan Documents are cumulative
and are not exclusive of any rights
279
or remedies that they would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by any Guarantor therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) below,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice or demand on any Guarantor in any
case shall entitle such Guarantor to any other or further notice or demand in
similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Guarantors with respect to which such waiver, amendment or modification
relates and the Collateral Agent, with the prior written consent of the Required
Lenders (except as otherwise provided in the Credit Agreement).
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Notices. All communications and notices hereunder shall be
in writing and given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it [in
care of the Borrower] [at its address set forth in Schedule I].
SECTION 15. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by the Guarantors herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Collateral Agent and the other Secured Parties and
shall survive the making by the Lenders of the Loans and the issuance of the
Letters of Credit by the Issuing Bank regardless of any investigation made by
the Secured Parties or on their behalf, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
other fee or amount payable under this Agreement or any other Loan Document is
outstanding and unpaid or the L/C Exposure does not equal zero and as long as
the Commitments and the L/C Commitment have not been terminated.
(b) In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 16. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract, and shall become effective as
provided in Section 11. Delivery of an executed signature page to this Agreement
by facsimile transmission shall be as effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 17. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 18. Jurisdiction; Consent to Service of Process. (a) Each
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment,
280
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Collateral Agent or
any other Secured Party may otherwise have to bring any action or proceeding
relating to this Agreement or the other Loan Documents against any Guarantor or
its properties in the courts of any jurisdiction.
(b) Each Guarantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents in any New York State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 14. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 19. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 19.
SECTION 20. Additional Guarantors. Pursuant to Section 5.11 of the
Credit Agreement, each Subsidiary of the Borrower that was not in existence on
the date of the Credit Agreement is required to enter into this Agreement as a
Guarantor upon becoming a Subsidiary. Upon execution and delivery after the date
hereof by the Collateral Agent and such a Subsidiary of an instrument in the
form of Annex 1, such Subsidiary shall become a Guarantor hereunder with the
same force and effect as if originally named as a Guarantor herein. The
execution and delivery of any instrument adding an additional Guarantor as a
party to this Agreement shall not require the consent of any other Guarantor
hereunder. The rights and obligations of each Guarantor hereunder shall remain
in full force and effect notwithstanding the addition of any new Guarantor as a
party to this Agreement.
SECTION 21. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Secured Party is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other Indebtedness at any time owing by such Secured Party to
or for the credit or the account of any Guarantor against any or all the
obligations of such Guarantor now or hereafter existing under this Agreement and
the other Loan Documents held by such Secured Party, irrespective of whether or
not such Secured Party shall have made any demand under this Agreement or any
other Loan Document and although such obligations may be unmatured. The rights
of each Secured Party under this Section 21 are in addition to other rights and
remedies (including other rights of setoff) which such Secured Party may have.
281
7
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
EACH OF THE SUBSIDIARIES
LISTED ON SCHEDULE I HERETO.
by:_____________________________
Name:
Title: Authorized Officer
CREDIT SUISSE FIRST BOSTON, as
Collateral Agent,
by:_____________________________
Name:
Title:
282
Schedule I to the
Guarantee Agreement
Guarantor [Address]
283
Annex 1 to the
Subsidiary Guarantee Agreement
SUPPLEMENT NO. dated as of , to
the Subsidiary Guarantee Agreement dated as of April 14 ,
1999, among each of the subsidiaries listed on Schedule I
thereto (each such subsidiary individually, a "Guarantor" and
collectively, the "Guarantors") of XXXXXXXXX SEMICONDUCTOR
CORPORATION, a Delaware corporation (the "Borrower"), and
CREDIT SUISSE FIRST BOSTON, a bank organized under the laws of
Switzerland, acting through its New York branch, as collateral
agent (the "Collateral Agent") for the Secured Parties (as
defined in the Credit Agreement referred to below).
A. Reference is made to the Credit Agreement dated as of April 14, 1999
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the lenders from time to time party thereto
(the "Lenders"), Credit Suisse First Boston, as and Credit Suisse First Boston,
as issuing bank (in such capacity, the "Issuing Bank"). Capitalized terms used
herein and not defined herein shall have the meanings assigned to such terms in
the Credit Agreement.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Guarantee Agreement and the
Credit Agreement.
C. The Guarantors have entered into the Guarantee Agreement in order to
induce the Lenders to make Loans and the Issuing Bank to issue Letters of
Credit. Pursuant to Section 5.11 of the Credit Agreement, each Subsidiary of the
Borrower that was not in existence or not a Subsidiary on the date of the Credit
Agreement is required to enter into the Guarantee Agreement as a Guarantor upon
becoming a Subsidiary. Section 20 of the Guarantee Agreement provides that
additional Subsidiaries of the Borrower may become Guarantors under the
Guarantee Agreement by execution and delivery of an instrument in the form of
this Supplement. The undersigned Subsidiary of the Borrower (the "New
Guarantor") is executing this Supplement in accordance with the requirements of
the Credit Agreement to become a Guarantor under the Guarantee Agreement in
order to induce the Lenders to make additional Loans and the Issuing Bank to
issue additional Letters of Credit and as consideration for Loans previously
made and Letters of Credit previously issued.
Accordingly, the Collateral Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 20 of the Guarantee Agreement,
the New Guarantor by its signature below becomes a Guarantor under the Guarantee
Agreement with the same force and effect as if originally named therein as a
Guarantor and the New Guarantor hereby (a) agrees to all the terms and
provisions of the Guarantee Agreement applicable to it as a Guarantor thereunder
and (b) represents and warrants that the representations and warranties made by
it as a Guarantor thereunder are true and correct on and as of the date hereof.
Each reference to a "Guarantor" in the Guarantee Agreement shall be deemed to
include the New Guarantor. The Guarantee Agreement is hereby incorporated herein
by reference.
SECTION 2. The New Guarantor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
284
SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Collateral Agent shall have received counterparts of this Supplement that, when
taken together, bear the signatures of the New Guarantor and the Collateral
Agent. Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guarantee
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guarantee Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 14 of the Guarantee Agreement. All
communications and notices hereunder to the New Guarantor shall be given to it
at the address set forth under its signature below, with a copy to the Borrower.
SECTION 8. The New Guarantor agrees to reimburse the Collateral Agent
for its out-of-pocket expenses in connection with this Supplement, including the
fees, disbursements and other charges of counsel for the Collateral Agent.
IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have
duly executed this Supplement to the Guarantee Agreement as of the day and year
first above written.
[Name Of New Guarantor],
by:_____________________________
Name:
Title:
Address:
CREDIT SUISSE FIRST BOSTON, as
Collateral Agent,
by:_____________________________
Name:
Title:
