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364 DAY CREDIT AGREEMENT
AMONG
L-3 COMMUNICATIONS CORPORATION,
A DELAWARE CORPORATION,
AS BORROWER,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
THE CERTAIN FINANCIAL INSTITUTIONS NAMED AS CO-AGENTS HEREIN,
BANCAMERICA XXXXXXXXX XXXXXXXX
AND
XXXXXX COMMERCIAL PAPER INC.,
AS ARRANGERS,
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION,
AS ADMINISTRATIVE AGENT
AND
XXXXXX COMMERCIAL PAPER INC.,
AS DOCUMENTATION AGENT AND SYNDICATION AGENT
DATED AS OF AUGUST 13, 1998
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS......................................................1
1.1. Defined Terms.....................................................1
1.2. Other Definitional Provisions....................................24
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS AND LOANS........................25
2.1. Commitments......................................................25
2.2. Procedure for Borrowing..........................................26
2.3. Commitment Fee...................................................27
2.4. Termination or Reduction of Revolving 364 Day
Commitments.....................................................27
2.5. Extension of Revolving 364 Day Termination Date;
Conversion Option; Repayment of Loans; Evidence of
Debt............................................................27
2.6. Optional Prepayments; Mandatory Prepayments and
Reduction of Commitments........................................31
2.7. Conversion and Continuation Options..............................33
2.8. Minimum Amounts and Maximum Number of Tranches...................34
2.9. Interest Rates and Payment Dates.................................34
2.10. Computation of Interest and Fees................................35
2.11. Inability to Determine Interest Rate............................35
2.12. Pro Rata Treatment and Payments.................................36
2.13. Illegality......................................................38
2.14. Requirements of Law.............................................38
2.15. Taxes...........................................................40
2.16. Indemnity.......................................................42
2.17. Replacement of Lenders..........................................43
2.18. Certain Fees....................................................44
2.19. Certain Rules Relating to the Payment of Additional
Amounts.........................................................44
SECTION 3. LETTERS OF CREDIT................................................44
3.1. L/C Commitment...................................................44
3.2. Procedure for Issuance of Letters of Credit......................45
3.3. Fees, Commissions and Other Charges..............................46
3.4. L/C Participation................................................46
3.5. Reimbursement Obligation of the Borrower.........................48
3.6. Obligations Absolute.............................................48
3.7. Letter of Credit Payments........................................49
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3.8. Application......................................................49
3.9. Determination of Exchange Rate...................................49
SECTION 4. REPRESENTATIONS AND WARRANTIES...................................50
4.1. Financial Condition..............................................50
4.2. No Change........................................................50
4.3. Corporate Existence; Compliance with Law.........................50
4.4. Corporate Power; Authorization; Enforceable
Obligations.....................................................51
4.5. No Legal Bar.....................................................51
4.6. No Material Litigation...........................................51
4.7. No Default.......................................................51
4.8. Ownership of Property; Liens.....................................52
4.9. Intellectual Property............................................52
4.10. Taxes...........................................................52
4.11. Federal Regulations.............................................52
4.12. ERISA...........................................................52
4.13. Investment Company Act; Other Regulations.......................53
4.14. Subsidiaries....................................................53
4.15. Purpose of Loans................................................53
4.16. Environmental Matters...........................................53
4.17. Collateral Documents............................................55
4.18. Accuracy and Completeness of Information........................55
4.19. Labor Matters...................................................55
SECTION 5. CONDITIONS PRECEDENT.............................................55
5.1. Conditions to Initial Loans......................................55
5.2. Conditions to Each Extension of Credit...........................58
SECTION 6. AFFIRMATIVE COVENANTS............................................59
6.1. SEC Filings......................................................59
6.2. Certificates; Other Information..................................59
6.3. Payment of Obligations...........................................60
6.4. Conduct of Business; Maintenance of Existence and
Property; Compliance with Law...................................60
6.5. Insurance........................................................61
6.6. Inspection of Property; Books and Records; Discussions...........61
6.7. Notices..........................................................61
6.8. Environmental Laws...............................................62
6.9. Further Assurances...............................................63
6.10. Additional Collateral...........................................63
6.11. [Intentionally Omitted.]........................................63
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6.12. Foreign Jurisdictions...........................................64
6.13. Government Contracts............................................64
6.14. Lien Searches...................................................64
SECTION 7. NEGATIVE COVENANTS...............................................64
7.1. Financial Condition Covenants....................................64
7.2. Limitation on Indebtedness.......................................65
7.3. Limitation on Liens..............................................67
7.4. Limitation on Guarantee Obligations..............................69
7.5. Limitation on Fundamental Changes................................69
7.6. Limitation on Sale of Assets.....................................70
7.7. Limitation on Dividends..........................................70
7.8. Limitation on Capital Expenditures...............................71
7.9. Limitation on Investments, Loans and Advances....................71
7.10. Limitation on Optional Payments and Modifications of
Instruments and Agreements......................................72
7.11. Limitation on Transactions with Affiliates......................73
7.12. Limitation on Sales and Leasebacks..............................73
7.13. Limitation on Changes in Fiscal Year............................74
7.14. Limitation on Negative Pledge Clauses...........................74
7.15. Limitation on Lines of Business.................................74
7.16. Designated Senior Debt..........................................74
SECTION 8. EVENTS OF DEFAULT................................................74
SECTION 9. THE AGENTS; THE ARRANGERS........................................78
9.1. Appointment......................................................78
9.2. Delegation of Duties.............................................78
9.3. Exculpatory Provisions...........................................78
9.4. Reliance by Agents...............................................78
9.5. Notice of Default................................................79
9.6. Non-Reliance on Agents and Other Lenders.........................79
9.7. Indemnification..................................................80
9.8. Agents, in Their Individual Capacities...........................80
9.9. Successor Administrative Agent, Syndication Agent and
Documentation Agent.............................................80
9.10. The Arrangers and the Co-Agents.................................81
SECTION 10. MISCELLANEOUS...................................................81
10.1. Amendments and Waivers..........................................81
10.2. Notices.........................................................82
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10.3. No Waiver; Cumulative Remedies..................................84
10.4. Survival of Representations and Warranties......................84
10.5. Payment of Expenses and Taxes...................................85
10.6. Successors and Assigns; Participation and Assignments...........85
10.7. Adjustments; Set-off............................................89
10.8. Counterparts....................................................90
10.9. Severability....................................................90
10.10. Integration....................................................90
10.11. GOVERNING LAW..................................................91
10.12. SUBMISSION TO JURISDICTION; WAIVERS............................91
10.13. Acknowledgments................................................91
10.14. WAIVERS OF JURY TRIAL..........................................92
10.15. Confidentiality................................................92
10.16. Conversion of Currencies.......................................92
10.17. Year 2000......................................................93
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EXHIBITS
Exhibit A-1 Form of Revolving 364 Day Note
Exhibit A-2 Form of Term Note
Exhibit B-1 Form of Parent Guarantee
Exhibit B-2 Form of Subsidiary Guarantee
Exhibit B-3 Form of Parent Pledge Agreement
Exhibit B-4A Form of Borrower Pledge Agreement
Exhibit B-4B Form of Charge Over Shares
Exhibit B-5 Form of Subsidiary Pledge Agreement
Exhibit C-1 Form of Legal Opinion of Xxxxxxx Xxxxxxx and Xxxxxxxx
Exhibit C-2 Form of Internal Counsel Opinion
Exhibit D Form of Borrowing Certificate
Exhibit E Form of Certificate of Non-U.S. Lender
Exhibit F Form of Assignment and Acceptance
Exhibit G Form of Increased Commitment Agreement
Exhibit H Form of Lender Addition Agreement
SCHEDULES
Schedule I Lenders and Commitments
Schedule II Pricing Grid
Schedule III Transaction Documents
Schedule 4.4 Required Consents
Schedule 4.5 No Legal Bar
Schedule 4.6 Material Litigation
Schedule 4.8 Real Property
Schedule 4.9 Intellectual Property Claims
Schedule 4.10 Taxes
Schedule 4.14 Subsidiaries
Schedule 7.2(f) Existing Indebtedness
Schedule 7.3(f) Existing Liens
Schedule 7.4 Existing Guarantee Obligations
Schedule 7.9(c) Officers
Schedule 7.9(g) Existing Investments
Schedule 7.9(k) Approved Investments
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THIS 364 DAY CREDIT AGREEMENT, dated as of August 13, 1998, is among
L-3 Communications Corporation, a Delaware corporation (the "Borrower") which
is wholly owned by L-3 Communications Holdings, Inc., a Delaware corporation
("Holdings"), the several banks and other financial institutions or entities
from time to time parties hereto (the "Lenders"), Xxxxxx Commercial Paper Inc.
("LCPI") and BancAmerica Xxxxxxxxx Xxxxxxxx, as arrangers (each, in such
capacity, an "Arranger" and together, the "Arrangers"), LCPI, as syndication
agent and documentation agent (in such capacity, the "Syndication Agent" and
the "Documentation Agent"), Bank of America National Trust & Savings
Association ("BOA"), as administrative agent for the Agents (as defined below)
and the Lenders (in such capacity, the "Administrative Agent"), and certain
financial institutions named as Co-Agents (as amended, supplemented, restated
or otherwise modified from time to time, is hereinafter referred to as this
"Agreement" or the "Credit Agreement").
WHEREAS, the Borrower has requested that the Lenders extend credit to
it for working capital and general corporate purposes of the Borrower and its
Subsidiaries upon the terms and subject to conditions set forth herein; and
WHEREAS, the Lenders are willing to extend such credit to the Borrower
upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"Acquired Business": a company or business unit acquired by the
Borrower or any of its Subsidiaries, provided that the Borrower has
delivered to the Administrative Agent historical financial statements of
such company or business unit prepared in accordance with GAAP.
"Adjustment Date": the fifth day following the receipt by the
Administrative Agent of the financial statements for the most recently
completed fiscal period furnished pursuant to subsection 6.1 and the
compliance certificate with respect to such financial statements furnished
pursuant to subsection 6.2(c). For purposes of determining the Applicable
Margin and the Commitment Fee Rate, the first "Adjustment Date" shall mean
the date on which the financial statements for the fiscal quarter ended
December 31, 1998 furnished pursuant to subsection 6.1 and the related
compliance certificate furnished pursuant to subsection 6.2(c) are
delivered to the Administrative Agent pursuant to subsection 6.1 and
6.2(c), respectively.
"Administrative Agent": BOA, or following the resignation of BOA as
Administrative Agent, any other Lender which may be appointed as
Administrative Agent pursuant to subsection 9.9.
"Affected Class": as defined in subsection 10.1.
"Affected Lender": as defined in subsection 10.7.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person
means the power, directly or indirectly, either to (a) vote 10% or more of
the securities having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.
"Agents": the collective reference to the Syndication Agent, the
Documentation Agent and the Administrative Agent.
"Aggregate Outstanding Extensions of Credit": as to any Lender with
respect to any Type of Loan at any time, an amount equal to the sum of (a)
the aggregate principal amount of all Loans of such Type made by such
Lender then outstanding and (b) such Lender's Commitment Percentage of the
L/C Obligations then outstanding.
"Agreement": this Credit Agreement, as amended, restated, supplemented
or otherwise modified from time to time.
"Agreement Currency": as defined in subsection 10.16(b).
"Alternative Currency": any currency which as of the time of any
issuance or renewal, as applicable, of a Foreign L/C is freely tradeable
and convertible into Dollars and has been approved as an "Alternative
Currency" for the purposes of this Agreement by the Issuing Lender.
"Applicable Converted Commitment": as defined in subsection 2.5(b).
"Applicable Creditor": as defined in subsection 10.16(b).
"Applicable Holdback": as defined in subsection 2.6(b)(ii).
"Applicable Issuing Lender": an Issuing Lender as to which (a) any
proposed New Lender under subsection 2.1(a) shall become an L/C Participant
upon giving effect to the relevant Lender Addition Agreement and/or (b) any
proposed Assignee under subsection 10.6 shall become an L/C Participant
upon giving effect to the relevant Assignment and Acceptance.
"Applicable Margin": at any time, the percentages set forth on
Schedule II under the relevant column heading opposite the level of the
Debt Ratio most recently determined; provided that (a) the Applicable
Margins commencing on the Closing Date shall be those set forth in Schedule
II opposite a Debt Ratio captioned "greater than or equal to 4.25 until the
first Adjustment Date, (b) the Applicable Margins determined for any
Adjustment Date (including the first Adjustment Date) shall remain in
effect until a subsequent Adjustment Date for which the Debt Ratio falls
within a different level and (c) if the financial statements and related
compliance certificate for any fiscal period are
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not delivered by the date due pursuant to subsections 6.1 and 6.2, the
Applicable Margins shall be (i) for the first 35 days subsequent to such
due date, the Applicable Margin in effect prior to such due date and (ii)
thereafter, those set forth opposite a Debt Ratio captioned "greater than
or equal to 4.75," in either case, until the date of delivery of such
financial statements and compliance certificate.
"Application": an application, in such form as the Issuing Lender may
specify from time to time, requesting the Issuing Lender to issue a Letter
of Credit.
"Asset Contribution": as defined in the recitals to the Original
Credit Agreement.
"Asset Sale": any sale, sale-leaseback, or other disposition by any
Person or any Subsidiary thereof of any of its property or assets,
including the stock of any Subsidiary of such Person, except sales and
dispositions permitted by subsection 7.6 other than subsection 7.6(b)
or (e).
"Assignee": as defined in subsection 10.6(c).
"Attributable Debt": in respect of a sale and leaseback transaction
means, at the time of determination, the present value (discounted at the
rate of interest implicit in such transaction, determined in accordance
with GAAP) of the obligation of the lessee for net rental payments during
the remaining term of the lease included in such sale and leaseback
transaction (including any period for which such lease has been extended or
may, at the option of the lessor, be extended).
"Available Commitment": as to any Lender and any Type of Loan, at any
time, an amount equal to the excess, if any, of (a) such Lender's
Commitment with respect to such Type of Loan over (b) such Lender's
Aggregate Outstanding Extensions of Credit with respect to such Type of
Loan.
"Base Rate": for any day, the higher of: (a) 0.50% per annum above the
latest Federal Funds Rate; and (b) the rate of interest in effect for such
day as publicly announced from time to time by BOA in San Francisco,
California, as its "reference rate." (The "reference rate" is a rate set by
BOA based upon various factors including BOA's costs and desired return,
general economic conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above, or below such
announced rate.)
"Base Rate Loans": Loans the rate of interest applicable to which is
based upon the Base Rate.
"BOA": as defined in the recitals to this Agreement.
"Borrower Pledge Agreement": the Amended and Restated Borrower Pledge
Agreement substantially in the form of Exhibit B-4A, to be executed and
delivered by the Borrower, as the same may be amended, supplemented or
otherwise modified.
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"Borrowing Date": any Business Day specified in a notice pursuant to
subsection 2.2 as a date on which the Borrower requests the Lenders to make
Loans hereunder.
"Business": as defined in subsection 4.16.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City or San Francisco, California are
authorized or required by law to close and, if the applicable Business Day
relates to Eurodollar Loans or Foreign L/Cs, any day on which dealings are
carried on in the applicable London interbank market.
"Calculation Date": with respect to each Foreign L/C, during the
period that such Foreign L/C is outstanding (or the Reimbursement
Obligation in connection therewith has not been fully satisfied) (i) the
last Business Day of a fiscal month, (ii) the date on which such Letter of
Credit is to be issued or renewed by the Issuing Lender, (iii) the date on
which any draft presented under such Letter of Credit is paid by the
Issuing Lender, (iv) such other dates as the Borrower may reasonably
request from time to time, and (v) such other dates as the Issuing Lender
or the Administrative Agent may select from time to time, provided that the
Borrower receives prompt notice thereof.
"Capital Expenditures" for any fiscal period, the aggregate of all
expenditures that, in conformity with GAAP (but excluding capitalized
interest), are or are required to be included as additions during such
period to property, plant or equipment reflected on the consolidated
balance sheet of the Borrower and its Subsidiaries, excluding the
expenditures relating to the Transaction.
"Capital Lease Obligations": of any Person as of the date of
determination, the aggregate liability of such Person under Financing
Leases reflected on a balance sheet of such Person under GAAP.
"Capital Partners": Xxxxxx Brothers Capital Partners III, L.P.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Cash Equivalents": (a) securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed or insured by the
United States Government or any agency thereof, (b) certificates of deposit
and time deposits with maturities of one year or less from the date of
acquisition and overnight bank deposits of any Lender or of any commercial
bank having capital and surplus in excess of $500,000,000, (c) repurchase
obligations of any Lender or of any commercial bank satisfying the
requirements of clause (b) of this definition, having a term of not more
than 90 days with respect to securities issued or fully guaranteed or
insured by the United States Government, (d) commercial paper of a domestic
issuer rated at least A-2 by Standard
4
and Poor's Ratings Group ("S&P") or P-2 by Xxxxx'x Investors Service,
Inc. ("Moody's"), or carrying an equivalent rating by a nationally
recognized rating agency if both of S&P and Moody's cease publishing
ratings of investments, (e) securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least A by S&P or A by
Moody's, (f) securities with maturities of one year or less from the date
of acquisition backed by standby letters of credit issued by any Lender or
any commercial bank satisfying the requirements of clause (b) of this
definition or (g) shares of money market mutual or similar funds which
invest exclusively in assets satisfying the requirements of clauses (a)
through (f) of this definition.
"Change of Control": the occurrence of any of the following events:
(i) the Principals and their Related Parties, as a whole, shall at any
time cease to own, directly or indirectly, 51% of the Voting Stock of
Holdings (measured by voting power rather than number of shares),
determined on a fully diluted basis, and any "person" (as such term is
defined in Section 13(d)(3) of the Exchange Act) other than the Principals
and their Related Parties shall become the "beneficial owner" (as such term
is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly
or indirectly, of more than 25% of the Voting Stock of Holdings (measured
by voting power rather than number of shares);
(ii) a majority of the members of the Board of Directors of Holdings
fail to be (a) members of the Board of Directors incumbent as of the
Closing Date, or (b) members nominated by the members of the Board of
Directors incumbent on the Closing Date, or (c) members appointed by
members of the Board nominated under clause (a) or (b);
(iii) Holdings shall, at any time, cease to own 100% of the Capital
Stock of the Borrower; or
(iv) a "Change of Control" shall have occurred under the Indenture or
the New Subordinated Debt Indenture.
"Charge Over Shares": the Charge Over Shares substantially in the form
of Exhibit B-4B, to be executed and delivered by the Borrower, as the same
may be amended, supplemented or otherwise modified.
"Class": (i) Lenders having Loan Exposure (taken together as a single
class) and (ii) Facility A Lenders having Facility A Loan Exposure (taken
together as a single class).
"Closing Date": the date on which the conditions precedent set forth
in subsection 5.1 are satisfied.
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"Co-Agents": collectively, Fleet National Bank, The Bank of New York,
The Bank of Nova Scotia, Credit Lyonnais New York Branch, The First
National Bank of Chicago, First Union Commercial Corporation, Marine
Midland Bank, and Societe Generale, New York Branch.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all assets of the Credit Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by any
Pledge Agreement.
"Commitment": as to any Lender, such Lender's Revolving 364 Day
Commitment and, subject to satisfaction of the conditions precedent in
subsection 2.5(b) hereto, Term Loan Commitment.
"Commitment Fee Rate": at any time, the applicable rates per annum on
Schedule II under the relevant column heading for the Revolving 364 Day
Facility set forth opposite the level of the Debt Ratio most recently
determined; provided that (a) the Commitment Fee Rate commencing on the
Closing Date shall be that set forth in Schedule II opposite a Debt Ratio
captioned "greater than or equal to 4.25" until the first Adjustment Date,
(b) the Commitment Fee Rate determined for any Adjustment Date (including
the first Adjustment Date) shall remain in effect until a subsequent
Adjustment Date for which the Debt Ratio falls within a different level and
(c) if the financial statements and related compliance certificate for any
fiscal period are not delivered by the date due pursuant to subsections 6.1
and 6.2, the Commitment Fee Rate shall be (i) for the first 35 days
subsequent to such due date, the Commitment Fee Rate in effect prior to
such due date and (ii) thereafter, that set forth opposite a Debt Ratio
captioned "greater than or equal to 4.75," in either case, until the date
of delivery of such financial statements and compliance certificate.
"Commitment Percentage": as to the Commitment of any Lender with
respect to any Type of Loan at any time, the percentage which the
Commitment of such Lender with respect to such Type of Loan then
constitutes of the aggregate Commitments with respect to such Type of Loan
(or, at any time after such Commitments shall have expired or terminated,
the percentage which the aggregate amount of the Aggregate Outstanding
Extensions of Credit of such Lender with respect to such Type of Loan
constitutes of the aggregate amount of the Aggregate Outstanding Extensions
of Credit of all Lenders with respect to such Type of Loan).
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Borrower within the meaning of
Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414 (b) or (c) of the
Code.
"Consolidated EBITDA": as of the last day of any fiscal quarter,
Consolidated Net Income of the Borrower, its Subsidiaries and, without
duplication, the Acquired Businesses (excluding, without duplication, (x)
extraordinary gains and losses in
6
accordance with GAAP, (y) gains and losses in connection with asset
dispositions whether or not constituting extraordinary gains and losses and
(z) gains or losses on discontinued operations) for such period, plus (i)
Consolidated Interest Expense of the Borrower, its Subsidiaries and,
without duplication, the Acquired Businesses for such period, plus (ii) to
the extent deducted in computing such Consolidated Net Income of the
Borrower, its Subsidiaries and, without duplication, the Acquired
Businesses, the sum of income taxes, depreciation and amortization for the
four fiscal quarters ended on such date.
"Consolidated Cash Interest Expense": as of the last day of any fiscal
quarter, the amount of interest expense, paid in cash, of the Borrower and
its Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP for the four fiscal quarters ended on such date.
"Consolidated Interest Expense": for any Person, as of the last day of
any fiscal quarter, the amount of interest expense of such Person for such
period, determined on a consolidated basis in accordance with GAAP for the
four fiscal quarters ended on such date.
"Consolidated Net Income": for any Person and for any fiscal period,
net income of such Person, determined on a consolidated basis in accordance
with GAAP.
"Consolidated Total Assets": at any date, all assets of the Borrower
and its Subsidiaries as determined according to the consolidated balance
sheet contained in the SEC filing most recently delivered pursuant to
subsection 6.1 or, if no such SEC filing has yet been delivered, the
balance sheet referred to in subsection 4.1(a)(ii).
"Consolidated Total Debt": at any date, all Indebtedness of the
Borrower and its Subsidiaries outstanding on such date for borrowed money
or the deferred purchase price of property, including, without limitation,
in respect of Financing Leases but excluding Indebtedness permitted
pursuant to subsection 7.2(g).
"Consolidated Working Capital": at any date, the excess of (a) the sum
of all amounts (other than cash and Cash Equivalents) that would, in
accordance with GAAP, be set forth opposite the caption "total current
assets" (or any like caption) on a consolidated balance sheet of the
Borrower and its Subsidiaries at such date over (b) the sum of all amounts
that would, in accordance with GAAP, be set forth opposite the caption
"total current liabilities" (or any like caption) on a consolidated balance
sheet of the Borrower and its Subsidiaries on such date (excluding, to the
extent it would otherwise be included under current liabilities, any
short-term Consolidated Total Debt and the current portion of any long-term
Consolidated Total Debt).
"Constitutional Documents": as to any Person, the articles or
certificate of incorporation and by-laws, partnership agreement or other
organizational documents of such Person.
7
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Conversion Option": as defined in subsection 2.5(b).
"Credit Documents": this Agreement, the Notes, the Applications, the
Guarantees and the Pledge Agreements.
"Credit Parties": the Borrower, Holdings, and each Subsidiary of the
Borrower which is a party to a Credit Document.
"Debt Ratio": as at the last day of any fiscal quarter, the ratio of
(a) Consolidated Total Debt minus Designated Cash Balances on such date to
(b) Consolidated EBITDA.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Designated Cash Balances": at any time, the lesser of (a) actual
unrestricted cash balances on hand of Borrower and its Subsidiaries which
are not subject to any Liens in favor of any Person (other than those
described in subsection 7.3(o) hereof) and (b) $50,000,000.
"Dollar Equivalent": at any time, (a) as to any amount denominated in
Dollars, the amount thereof at such time, and (b) as to any amount
denominated in an Alternative Currency, the equivalent amount in Dollars as
determined on the basis of the Exchange Rate for the purchase of Dollars
with such Alternative Currency as of the most recent Calculation Date.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Domestic L/C": a Letter of Credit denominated in Dollars.
"Dow Xxxxx Page 3750": the display designated as page "3750" on the
Dow Xxxxx Market Service (formerly known as the Telerate Service) or such
other page as may replace the "3750" page on that service or such other
service or services as may be nominated by the British Bankers' Association
for the purpose of displaying London interbank offered rates for Dollar
deposits.
"Environmental Laws": any and all laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, or other legally enforceable
requirement (including, without limitation, common law) of any foreign
government, the United States, or any state, local, municipal or other
governmental authority, regulating, relating to or imposing liability or
standards of conduct concerning protection of the environment or of human
health as affected by the environment as has been, is now, or may at any
time hereafter be, in effect, including, but not limited to, the
Comprehensive Environmental Response,
8
Compensation and Liability Act of 1980, as amended, 42 U.S.C. ss. ss.
9601 et seq.; the Toxic Substance Control Act, 15 U.S.C. ss. ss. 9601 et
seq.; the Hazardous Materials Transportation Act, 49 U.S.C. ss. ss. 1802 et
seq.; the Resource Conservation and Recovery Act, 42 U.S.C. ss. ss. 6901 et
seq.; the Clean Water Act; 33 U.S.C. ss. ss. 1251 et seq.; the Clean Air
Act, 42 U.S.C. ss. ss. 7401 et seq.; or other similar federal and/or state
environmental laws.
"Environmental Permits": any and all permits, licenses, registrations,
notifications, exemptions and any other authorization required under any
applicable Environmental Law.
"Equity Documents": the Stockholders Agreement, the Subscription
Agreements and the Option Agreements.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": means for any day for any
Interest Period the maximum reserve percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1%) in effect on such day (whether or
not applicable to any Lender) under regulations issued from time to time by
the FRB for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect
to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities").
"Eurodollar Business Day": means any Business Day on which commercial
banks are open in London for the transaction of international business,
including dealings in Dollar deposits in the international interbank
markets.
"Eurodollar Loans": Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
"Eurodollar Loans Maturity Date": (a) For any date on which any
Eurodollar Loans are outstanding, the Business Day on which the Interest
Period for all such outstanding Eurodollar Loans concurrently terminate and
(b) for any date on which no Eurodollar Loans are outstanding, any Business
Day.
"Eurodollar Rate": means, for any Interest Period, with respect to
Eurodollar Loans comprising part of the same borrowing, the rate of
interest per annum (rounded upward to the next 1/100th of 1%) determined by
the Administrative Agent as follows:
Eurodollar Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage": for any day for any Interest Period
the maximum reserve percentage (expressed as a decimal, rounded upward to
the next 1/100th of 1%) in effect on such day (whether or not applicable to
any Lender) under
9
regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding
(currently referred to as "Eurocurrency liabilities").
"Event of Default": any of the events specified in Section 8, provided
that any requirement for the giving of notice, the lapse of time, or both,
or any other condition, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the excess of
(a) the sum, without duplication, of (i) Consolidated Net Income for the
Borrower and its Subsidiaries for such fiscal year, (ii) the net decrease,
if any, in Consolidated Working Capital during such fiscal year, (iii) to
the extent deducted in computing such Consolidated Net Income for the
Borrower and its Subsidiaries, non-cash interest expense, depreciation and
amortization for such fiscal year, (iv) extraordinary non-cash losses
during such fiscal year subtracted in the determination of Consolidated Net
Income for the Borrower and its Subsidiaries for such fiscal year, (v)
change in deferred tax liability of the Borrower for such fiscal year, (vi)
non-cash losses in connection with asset dispositions whether or not
constituting extraordinary losses and (vii) non-cash ordinary losses less
(b) the sum, without duplication, of (i) the aggregate amount of permitted
cash Capital Expenditures made by the Borrower and its Subsidiaries during
such fiscal year, (ii) the net increase, if any, in Consolidated Working
Capital during such fiscal year, (iii) the aggregate amount of payments of
principal in respect of any Indebtedness not prohibited hereunder during
such fiscal year (other than prepayments of (x) Revolving 364 Day Loans not
accompanied by reductions of the Commitments hereunder and/or (y) Facility
A Loans not accompanied by reductions of Facility A Commitments), (iv)
deferred income tax credit of the Borrower for such fiscal year, (v)
extraordinary non-cash gains during such fiscal year added in the
determination of Consolidated Net Income for the Borrower and its
Subsidiaries for such fiscal year, (vi) non-cash gains in connection with
asset dispositions whether or not constituting extraordinary gains and
(vii) non-cash ordinary gains.
"Exchange Act": the Securities Exchange Act of 1934, as amended.
"Exchange Rate": on any day, with respect to any Alternative Currency,
the spot rate at which Dollars are offered on such day by the Issuing
Lender in San Francisco, California (or such other location selected by the
Issuing Lender) for such Alternative Currency.
"Extending Lender": any Lender consenting to the Extension Option.
"Extension Option": as defined in subsection 2.5(a).
"Facility A Administrative Agent": the "Administrative Agent" as
defined in the Facility A Credit Agreement.
10
"Facility A Agents": the "Agents" as defined in the Facility A Credit
Agreement.
"Facility A Commitments": the "Commitments" as defined in the Facility
A Credit Agreement.
"Facility A Credit Agreement": that certain Amended and Restated
Credit Agreement of even date herewith among the Borrower, the Facility A
Lenders, BOA as administrative agent, LCPI as syndication agent and
documentation agent, LCPI and BankAmerica Xxxxxxxxx Xxxxxxxx as arrangers
and certain financial institutions named as co-agents, as the same may be
amended, supplemented, restated or otherwise modified from time to time.
"Facility A Credit Documents": the "Credit Documents" as defined in
the Facility A Credit Agreement.
"Facility A Eurodollar Tranche": "Eurodollar Tranche" as defined in
the Facility A Credit Agreement.
"Facility A L/C Obligations": the "L/C Obligations" as defined in the
Facility A Credit Agreement.
"Facility A Lenders": the "Lenders" as defined in the Facility A
Credit Agreement.
"Facility A Loan Exposure": the "Loan Exposure" as defined in the
Facility A Credit Agreement.
"Facility A Loans": the "Loans" as defined in the Facility A Credit
Agreement.
"Facility A Notes": the "Notes" as defined in the Facility A Credit
Agreement.
"Facility A Reimbursement Obligations": the "Reimbursement
Obligations" as defined in the Facility A Credit Agreement.
"Federal Funds Effective Rate": for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the FRB (including any such successor,
"H.15(519)") for such day opposite the caption "Federal Funds (Effective)".
If on any relevant day the appropriate rate for such previous day is not
yet published in H.15(519), the rate for such day will be the arithmetic
mean of the rates for the last transaction in overnight Federal funds
arranged prior to 9:00 a.m. (New York City time) on that day by each of
three leading brokers of Federal funds transactions in New York City
selected by the Administrative Agent.
"Financial L/C": a standby Letter of Credit not constituting a
Performance L/C.
11
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Foreign L/C": a Letter of Credit denominated in an Alternative
Currency.
"Foreign L/C Obligations": at any time, an amount equal to the sum of
(i) the Dollar Equivalent of the aggregate then undrawn and unexpired face
amount of all then outstanding Foreign L/Cs and (ii) the Dollar Equivalent
of the aggregate amount of all drawings under Foreign L/Cs which have not
then been reimbursed pursuant to subsection 3.5.
"Foreign Subsidiary": any Subsidiary which is organized under the laws
of any jurisdiction outside the United States or under the laws of the U.S.
Virgin Islands.
"FRB": means the Board of Governors of the Federal Reserve System, and
any governmental authority succeeding to any of its principal functions.
"GAAP": generally accepted accounting principles in the United States
of America in effect on the Closing Date.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has issued a
reimbursement or similar obligation, in either case guaranteeing or in
effect guaranteeing any Indebtedness, leases, dividends or other
obligations (the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly,
including, without limitation, reimbursement obligations under letters of
credit and any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary obligation
or (2) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor,
(iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the
lower of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation is made
and (b) the maximum amount for
12
which such guaranteeing person may be liable pursuant to the terms of
the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in
good faith.
"Guarantees": the Parent Guarantee and the Subsidiary Guarantees.
"Immaterial Subsidiary": any Subsidiary of the Borrower having assets
not exceeding five percent (5%) of the Consolidated Total Assets.
"Increased Commitment Agreement": as defined in subsection 2.1(a)(i).
"Indebtedness": of any Person at any date, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities incurred in the
ordinary course of business and payable in accordance with customary
practices and accrued expenses incurred in the ordinary course of
business), (b) any other indebtedness of such Person which is evidenced by
a note, bond, debenture or similar instrument, (c) all obligations of such
Person under Financing Leases, (d) all obligations of such Person in
respect of acceptances issued or created for the account of such Person and
all reimbursement and other obligations with respect to any letters of
credit and surety bonds, whether or not matured or drawn, (e) all
liabilities secured by any Lien on any property owned by such Person even
though such Person has not assumed or otherwise become liable for the
payment thereof and (f) all Attributable Debt of such Person with respect
to sale and leaseback transactions of such Person.
"Indenture": the Indenture between the Borrower and The Bank of New
York, as trustee, pursuant to which the Subordinated Notes are issued.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any Base Rate Loan, the last
Business Day of each March, June, September and December, (b) as to any
Eurodollar Loan having an Interest Period of three months or less, the last
Business Day of such Interest Period, and (c) as to any Eurodollar Loan
having an interest period longer than three months, (i) each Business Day
which is three months or a whole multiple thereof after the first day of
such Interest Period and (ii) the last Business Day of such Interest
Period.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one,
13
two, three, six or, if made available by the Administrative Agent
and the Lenders, nine or twelve months thereafter, as selected by the
Borrower in its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto;
(b) thereafter, each period commencing on the last day of the
preceding Interest Period applicable to such Eurodollar Loan and
ending one, two, three or six or, if made available by the
Administrative Agent and Lenders, nine or twelve months thereafter, as
selected by the Borrower by irrevocable notice to the Administrative
Agent not less than three Business Days prior to the last day of the
then current Interest Period with respect thereto; and
(c) solely for the purpose of permitting the Borrower to (i)
convert Revolving 364 Day Loans into Term Loans on the Revolving 364
Day Termination Date pursuant to the exercise of the Conversion
Option, (ii) repay Revolving 364 Day Loans owing to Nonconsenting
Lenders on the Revolving 364 Day Termination Date in connection with
the exercise of the Extension Option, (iii) fund any scheduled
amortization payment pursuant to subsection 2.5(b) in respect of any
Term Loans then outstanding and (iv) permit the addition of any New
Lender or increase the Revolving 364 Day Commitment of any existing
Lender pursuant to subsection 2.1(a)(i), a period commencing on the
last day of the preceding Interest Period applicable to such
Eurodollar Loan and ending on a Business Day which is no less than
seven (7) and no more than thirty (30) days thereafter, as selected by
the Borrower by irrevocable notice to the Administrative Agent not
less than three Business Days prior to the last day of the then
current Interest Period with respect thereto.
provided that, all of the foregoing provisions relating to Interest Periods
are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Loan would
otherwise end on a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless the result of
such extension would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) any Interest Period for any Loan that would otherwise extend
beyond the applicable Termination Date shall end on the applicable
Termination Date;
(iii) any Interest Period pertaining to a Eurodollar Loan that begins
on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month in which such
Interest Period would otherwise be scheduled to end) shall end on the last
Business Day of the appropriate calendar month; and
(iv) no Interest Period with respect to any portion of any Type of
Term Loan shall extend beyond a date on which the Borrower is required to
make a scheduled
14
payment of principal of Term Loans of such Type unless the sum of (a)
the aggregate principal amount of Term Loans of such Type that are Base
Rate Loans plus (b) the aggregate principal amount of Term Loans of such
Type that are Eurodollar Rate Loans with Interest Periods expiring on or
before such date equals or exceeds the principal amount required to be paid
on Term Loans of such Type on such date.
"Interest Rate Agreement": any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement.
"Interest Rate Agreement Obligations": the obligations of the Borrower
or any of its Subsidiaries to make payments to counterparties under
Interest Rate Agreements in the event of the occurrence of a termination
event thereunder.
"Issuing Lender": BOA, in its capacity as issuer of any Letter of
Credit or, at the election of BOA, such other Lender or Lenders that agrees
to act as Issuing Lender at the request of the Borrower, or upon
resignation by BOA as an Issuing Lender at any time upon notice to the
other parties to this Agreement, such other Lender or Lenders that agree to
act as Issuing Lender at the request of the Borrower and to whom the
Required Lenders consent in writing.
"Judgment Currency": as defined in subsection 10.16 (b).
"LCPI": as defined in the recitals to this Agreement.
"L/C Fee Payment Date": the last Business Day of each March, June,
September and December.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
Dollar Equivalent of the aggregate then undrawn and unexpired amount of the
then outstanding Letters of Credit and (b) the Dollar Equivalent of the
aggregate amount of drawings under Letters of Credit which have not then
been reimbursed pursuant to subsection 3.5.
"L/C Participants": a collective reference to all the Revolving 364
Day Lenders other than the Applicable Issuing Lender.
"Lender" and "Lenders": the persons identified as Lenders and listed
on the signature pages of this Agreement (including the Issuing Lender),
together with their successors and permitted assigns pursuant to subsection
10.6; provided that the term "Lenders", when used in the context of a
particular Commitment, shall mean Lenders having that Commitment.
"Lender Addition Agreement": as defined in subsection 2.1(a)(i).
"Letters of Credit": as defined in subsection 3.1(a).
"LIBOR": as to any Interest Period, the rate per annum determined on
the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on
15
the first day of such Interest Period quoted on the second Eurodollar
Business Day prior to the first day of such Interest Period, as such rate
appears on the Dow Xxxxx Page 3750 as of 11:00 A.M. (London time) on such
date, as determined by the Administrative Agent and notified to the Lenders
and the Borrower on such second prior Eurodollar Business Day. If LIBOR
cannot be determined based on the Dow Xxxxx Page 3750, LIBOR means the rate
per annum, as supplied to the Administrative Agent, quoted by BOA's London
Branch to prime banks in the London interbank market for deposits in
Dollars at approximately 11:00 A.M. (London time) two Eurodollar Business
Days prior to the first day of such Interest Period in an amount
approximately equal to the principal amount of the Loans to which such
Interest Period is to apply and for a period of time comparable to such
Interest Period.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement
and any Financing Lease having substantially the same economic effect as
any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Account": as defined in subsection 2.5(g).
"Loan Exposure": with respect to any Lender as of any date of
determination, (i) if there are no outstanding Letters of Credit or
Revolving 364 Day Loans, that Lender's Revolving 364 Day Commitment, and
(ii) otherwise, the sum of (a) the aggregate outstanding principal amount
of the Revolving 364 Day Loans of that Lender plus (b) in the event that
Lender is an Issuing Lender, the Dollar Equivalent of the aggregate stated
or face amount in respect of all Letters of Credit issued by that Lender
and outstanding (in each case net of any participations purchased by other
Lenders in such Letters of Credit or any unreimbursed drawings thereunder)
plus (c) in the event that Lender is a Term Lender, the outstanding
principal amount of the Term Loans of that Lender plus (d) the Dollar
Equivalent of the aggregate amount of all participations purchased by that
Lender in any outstanding Letters of Credit or any unreimbursed drawings
under any Letters of Credit.
"Material Adverse Effect": a material adverse effect on (a) the
business, assets, operations, property or condition (financial or
otherwise) of Holdings and its Subsidiaries taken as a whole or (b) the
validity or enforceability of this or any of the other Credit Documents or
the rights or remedies of the Agents or the Lenders hereunder or
thereunder.
"Materials of Environmental Concern": any hazardous or toxic
substances, materials or wastes, defined or regulated as such in or under,
or that could give rise to liability under, any applicable Environmental
Law, including, without limitation,
16
asbestos, polychlorinated biphenyls, urea-formaldehyde insulation,
gasoline or petroleum (including crude oil or any fraction thereof) or
petroleum products.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Proceeds": the aggregate cash proceeds (including Cash
Equivalents) received by Holdings or any of its Subsidiaries in respect of:
(a) any issuance by the Borrower or any of its Subsidiaries of
Indebtedness after the Closing Date;
(b) any Asset Sale; and
(c) any cash payments received in respect of promissory notes or
other evidences of indebtedness delivered to Holdings or such
Subsidiary in respect of an Asset Sale;
in each case net of (without duplication) (i), (A) in the case of an
Asset Sale, the amount required to repay any Indebtedness (other than
the Loans) secured by a Lien on any assets of Holdings or a Subsidiary
of Holdings that are sold or otherwise disposed of in connection with
such Asset Sale and (B) reasonable and appropriate amounts established
by Holdings or such Subsidiary, as the case may be, as a reserve
against liabilities associated with such Asset Sale and retained by
Holdings or such Subsidiary, (ii) the reasonable expenses (including
legal fees and brokers' and underwriters' commissions, lenders fees,
credit enhancement fees, accountants' fees, investment banking fees,
survey costs, title insurance premiums and other customary fees, in
any case, paid to third parties or, to the extent permitted hereby,
Affiliates) incurred in effecting such issuance or sale and (iii) any
taxes reasonably attributable to such sale and reasonably estimated by
Holdings or such Subsidiary to be actually payable.
"New Investment Sublimit" shall mean, as of any date of determination
thereof, an amount equal to (a) $100,000,000 plus (b) (i) Net Proceeds
derived from Asset Sales during the immediately preceding twelve (12) month
period and (ii) Net Proceeds from any Asset Sale that were reinvested
within the twelve (12) month period following such Asset Sale for the
purposes permitted in subsection 7.9(k) to the extent not included in
subclause (i) of this clause (b) plus (c) net cash proceeds derived from
the issuance of any equity securities of Holdings which are contributed to
the Borrower as additional equity capital minus the amount of any Capital
Expenditures funded in any fiscal year of the Borrower and its Subsidiaries
which exceeds the amounts permitted during such fiscal year pursuant to
subsection 7.8 hereof (without giving effect to the second proviso thereto
referring to subsection 7.9(k)).
"New IPO": the issuance of 6,900,000 shares of common stock of
Holdings to the public on or about May 22, 1998.
17
"New Lender": as defined in subsection 2.1(a)(i).
"New Subordinated Debt Documents": the New Subordinated Notes, the New
Subordinated Notes Indenture, the Underwriting Agreement dated as of May
18, 1998 among Borrower, its domestic Subsidiaries, Xxxxxx Brothers Inc.,
and BancAmerica Xxxxxxxxx Xxxxxxxx and any other documents or agreements
executed in connection therewith.
"New Subordinated Debt Indenture": the Indenture between the Borrower
and the Bank of New York, as trustee, pursuant to which the New
Subordinated Notes were issued.
"New Subordinated Notes": the Borrower's 8 1/2% Senior Subordinated
Notes, due 2008 ("Initial New Subordinated Notes") issued on or about May
22, 1998 and any notes, having the same terms as the Initial New
Subordinated Notes, issued in exchange for the Initial New Subordinated
Notes as contemplated by the documents governing the issuance of the
Initial New Subordinated Notes.
"Non-Excluded Taxes": as defined in subsection 2.15.
"Non-U.S. Lender": as defined in subsection 2.15(b).
"Nonconsenting Lenders": as defined in subsection 2.17.
"Notes": The Revolving 364 Day Notes and the Term Notes (or any of
them).
"Obligations": as defined in the Guarantees and the Pledge Agreements.
"Option Agreements": the Option Agreements between Holdings and each
of Xxxxx X. Xxxxx and Xxxxxx X. XxXxxxx, each dated as of the Original
Closing Date.
"Original Agents": the "Agents" under and as defined in the Original
Credit Agreement.
"Original Closing Date": April 30, 1997.
"Original Credit Agreement": as defined in the Facility A Credit
Agreement.
"Original Lenders": as defined in the Facility A Credit Agreement.
"Parent Distributions": as defined in the Parent Guarantee.
"Parent Guarantee": the Amended and Restated Parent Guarantee
substantially in the form of Exhibit B-1, to be executed and delivered by
Holdings, as the same may be amended, supplemented or otherwise modified.
18
"Parent Pledge Agreement": the Amended and Restated Parent Pledge
Agreement substantially in the form of Exhibit B-3, to be executed and
delivered by Holdings, as the same may be amended, supplemented or
otherwise modified.
"Participant": as defined in subsection 10.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA, or any successor thereto. "Performance
L/C": a standby Letter of Credit issued to ensure the performance of
services and/or delivery of goods by or on behalf of the Borrower.
"Permitted Liens": Liens permitted to exist under subsection 7.3.
"Permitted Stock Payments": (A) dividends by the Borrower to Holdings
in amounts equal to the amounts required for Holdings to (i) pay franchise
taxes and other fees required to maintain its legal existence and (ii)
provide for other operating costs of up to $1,000,000 per fiscal year, (B)
dividends by the Borrower to Holdings in amounts equal to amounts required
for Holdings to pay federal, state and local income taxes to the extent
such income taxes are actually due and owing; provided that the aggregate
amount paid under this clause (B) does not exceed the amount that the
Borrower would be required to pay in respect of the income of the Borrower
and its Subsidiaries if the Borrower were a stand alone entity that was not
owned by Holdings, and (C) from and after May 1, 1999, dividends by the
Borrower to Holdings payable solely out of Excess Cash Flow, provided that,
with respect to this clause (C), (i) as of the last day of the most
recently completed fiscal quarter the Debt Ratio is less than or equal to
3.5 to 1, and (ii) the aggregate amount of dividends paid by the Borrower
to Holdings under this clause (C) since the date of this Agreement does not
exceed $5,000,000.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan covered by
ERISA and in respect of which the Borrower or any Commonly Controlled
Entity maintains, administers, contributes to or is required to contribute
to, or under which the Borrower or any Commonly Controlled Entity may incur
any liability.
"Pledge Agreements": the collective reference to the Parent Pledge
Agreement, the Borrower Pledge Agreement, the Charge Over Shares, the
Subsidiary Pledge Agreement, and any other security documents hereafter
delivered to the Administrative Agent granting a Lien on any asset or
assets of any Person to secure the obligations and liabilities of the
Borrower hereunder and under any of the other Credit Documents or to secure
any guarantee of any such obligations and liabilities.
"Principals": each of Xxxxxx Brothers Holdings, Inc., Capital
Partners, the Seller, Xxxxx X. Xxxxx and Xxxxxx X. XxXxxxx.
19
"Properties": as defined in subsection 4.16.
"Purchase Agreement": the Purchase Agreement, dated as of April 25,
1997, among the Borrower and each of Xxxxxx Brothers, Inc. and BancAmerica
Securities, Inc.
"Register": as defined in subsection 10.6(d).
"Registration Rights Agreement": the Registration Rights Agreement,
dated as of April 30, 1997, among the Borrower and each of Xxxxxx Brothers,
Inc. and BancAmerica Securities, Inc.
"Regulation U": Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.
"Reimbursement Amount": as defined in subsection 3.5(a).
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to subsection 3.5 for amounts drawn
under Letters of Credit.
"Related Party": with respect to the Principals, (a) any controlling
stockholder, 51% (or more) owned Subsidiary, or spouse or immediate family
member (in the case of an individual) of such Principal or (b) a trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding an 51% or more controlling
interest of which consist of the Principals and/or such other Persons
referred to in the immediately preceding clause (a).
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty-day notice period is
waived under the regulations of the PBGC.
"Required Lenders": at any time, Lenders the Loan Exposure for all
Types of Loans of which aggregate more than 50%.
"Requirement of Law": as to any Person, the Constitutional Documents
of such Person, and any law, treaty, rule or regulation or determination of
an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Requisite Class Lenders": at any time, (a) for the Class of Lenders
having Loan Exposure, Lenders having or holding 66 2/3% of the aggregate
Loan Exposure of all Lenders, and (b) for the Class of Facility A Lenders
having Facility A Loan Exposure, Facility A Lenders having or holding 66
2/3% of the aggregate Facility A Loan Exposure of all Facility A Lenders.
20
"Responsible Officer": the chief executive officer, the president or
vice president of the Borrower or, with respect to financial matters, the
chief financial officer, vice president-finance or treasurer of the
Borrower.
"Restricted Government Contracts": as defined in the Pledge
Agreements.
"Revolving Credit Commitment": as defined in the Facility A Credit
Agreement.
"Revolving 364 Day Commitment": the commitment of a Lender, as set
forth on Schedule I hereto as amended from time to time pursuant to this
Agreement, to make Revolving 364 Day Loans to the Borrower pursuant to
Subsection 2.1(a)(i); and "Revolving 364 Day Commitments" means such
commitments of all Lenders in the aggregate, which shall initially be
$150,000,000 and, subject to the terms of subsection 2.1(a)(i), may
hereafter be increased to an amount not to exceed $200,000,000 at any time.
"Revolving 364 Day Commitment Period": the period from and including
the date hereof to but not including the Revolving 364 Day Termination Date
or such earlier date on which the Revolving 364 Day Commitments shall
terminate as provided herein.
"Revolving 364 Day Lender": any Lender or Lenders having a Revolving
364 Day Commitment or a Revolving 364 Day Loan outstanding.
"Revolving 364 Day Loans": the Loans made by Revolving 364 Day Lenders
to the Borrower pursuant to Subsection 2.1(a)(i).
"Revolving 364 Day Notes": (i) the promissory notes of the Borrower,
if any, issued pursuant to subsection 2.5(i) on the Closing Date to
evidence the Revolving 364 Day Loans of any Lender and (ii) any promissory
notes issued by the Borrower pursuant to subsection 10.6(d) in connection
with assignments of the Revolving 364 Day Commitments and Revolving 364 Day
Loans of any Lenders, in each case substantially in the form of Exhibit A-1
annexed hereto, as they may be amended, supplemented or otherwise modified
from time to time.
"Revolving 364 Day Termination Date": the date which is 364 days from
the Closing Date (or if such day is not a Business Day, the Business Day
immediately preceding such date), as the same may be extended in accordance
with subsection 2.5(a) hereof.
"SPD Technologies": SPD Technologies Inc., a Delaware corporation.
"SPD Technologies Acquisition Agreement": the Agreement and Plan of
Merger, dated as of July 2, 1998, among L-3 Communications Corporation, SPD
Merger Co., SPD Technologies, Inc. and Midmark Capital L.P.
"SEC": the Securities and Exchange Commission.
21
"Securities Act": Securities Act of 1933, as amended.
"Seller": Lockheed Xxxxxx Corporation, a Maryland corporation.
"Similar Business": a business, at least a majority of whose revenues
in the most recently ended calendar year were derived from (i) the sale of
defense products, electronics, communications systems, aerospace products,
avionics products and/or communications products, (ii) any services related
thereto, (iii) any business or activity that is reasonably similar thereto
or a reasonable extension, development or expansion thereof or ancillary
thereto or any business of the Borrower and/or its Subsidiaries existing as
of the Closing Date, and (iv) any combination of any of the foregoing.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Stockholders Agreement": the Stockholders Agreement, dated as of
April 30, 1997, by and among the Borrower, Holdings, the Seller, the
Principals and any other party that may from time to time become a party
thereto as provided therein, as the same may be amended, supplemented or
otherwise modified from time to time.
"Subordinated Debt": indebtedness outstanding under the Subordinated
Notes and indebtedness outstanding under the New Subordinated Notes.
"Subordinated Debt Documents": the Indenture, the Registration Rights
Agreement, the Purchase Agreement and the Subordinated Notes.
"Subordinated Notes": the Borrower's 10 3/8 % Senior Subordinated
Notes, due 2007 (the "Initial Subordinated Notes"), issued on the Original
Closing Date, and any subordinated notes of the Borrower, having the same
terms as the Initial Subordinated Notes, issued in exchange for the Initial
Subordinated Notes as contemplated by the Subordinated Debt Documents.
"Subscription Agreements": the Common Stock Subscription Agreements
between Holdings and each of Xxxxx X. Xxxxx, Xxxxxx X. XxXxxxx, Capital
Partners and the Seller, each dated as of the Original Closing Date.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, directly or
indirectly, by such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
22
"Subsidiary Guarantees": the Amended and Restated Subsidiary Guarantee
substantially in the form of Exhibit B-2, to be executed and delivered by
the Borrower's Subsidiaries (other than any Immaterial Subsidiary or
Foreign Subsidiary of the Borrower), as the same may be amended,
supplemented or otherwise modified.
"Subsidiary Pledge Agreement": the Amended and Restated Subsidiary
Pledge Agreement substantially in the form of Exhibit B-5, to be executed
and delivered by the Borrower's Subsidiaries (other than any Immaterial
Subsidiary or Foreign Subsidiary of the Borrower), as the same may be
amended, supplemented or otherwise modified.
"Swing Line Lender": as defined in the Facility A Credit Agreement.
"Term Loan Commitment or Term Loan Commitments": the commitments of a
Lender to convert all outstanding Revolving 364 Day Loans as of the
Revolving 364 Day Termination Date into Term Loans pursuant to subsection
2.5(b); and Term Loan Commitments means such commitments of all Lenders in
the aggregate, which shall not exceed an amount equal to the lesser of (x)
the aggregate amount of Revolving 364 Day Loans outstanding as of the
Revolving 364 Day Termination Date and (y) the aggregate amount of the
Revolving 364 Day Commitments existing on the Revolving 364 Day Termination
Date.
"Term Lender": any Lender having a Term Loan Commitment or a Term Loan
outstanding.
"Term Loans": the Loans made or deemed made by the Term Lenders to the
Borrower pursuant to subsection 2.1(a)(ii).
"Term Notes": (i) the promissory notes of the Borrower, if any, which
may be hereafter issued pursuant to subsection 2.5(b) on or about the
Revolving 364 Day Termination Date to evidence all Revolving 364 Day Loans
which were converted into Term Loans of any Lender and (ii) any promissory
notes issued by the Borrower pursuant to subsection 10.6(d) in connection
with assignments of the Term Loan Commitments and Term Loans of any Lender,
in each case substantially in the form of Exhibit A-2 annexed hereto, as
they may be amended, supplemented or otherwise modified from time to time.
"Termination Date": (i) with respect to the Term Loans, if any, March
31, 2003, and (ii) with respect to the Revolving 364 Day Commitments, the
Revolving 364 Day Termination Date.
"Tranche": the collective reference to Eurodollar Loans with
then-current Interest Periods which all begin on the same date and end on
the same date (whether or not such Loans shall originally have been made on
the same day); Tranches may be identified as "Eurodollar Tranches".
"Transaction": the transactions contemplated by the Transaction
Documents.
23
"Transaction Agreement": that certain Transaction Agreement, dated as
of March 28, 1997 by and among Lockheed Xxxxxx Corporation, a Maryland
corporation, Holdings, Capital Partners and its Affiliates, Xxxxx X. Xxxxx
and Xxxxxx X. XxXxxxx.
"Transaction Documents": (i) the Transaction Agreement, the Schedules
thereto and the documents set forth on Schedule III hereto, (ii) the Equity
Documents, (iii) the Subordinated Debt Documents and (iv) the New
Subordinated Debt Documents.
"Transferee": as defined in subsection 10.6(f).
"Type": a Revolving 364 Day Loan or a Term Loan, as applicable.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be amended from time to time.
"U.S. Taxes": any tax, assessment, or other charge or levy and any
liabilities with respect thereto, including any penalties, additions to
tax, fines or interest thereon, imposed by or on behalf of the United
States or any taxing authority thereof.
"Voting Stock": of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"Year 2000 Problem": any significant risk that computer hardware,
software or equipment containing embedded microchips essential to the
business or operations of the Borrower or any of its Subsidiaries will not,
in the case of dates or time periods occurring after December 31, 1999,
function at least as effectively and reliably as in the case of dates or
time periods occurring before January 1, 2000, including the making of
accurate leap year calculations.
1.2. Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined
meanings when used in any Credit Document or any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in any Credit Document, and any
certificate or other document made or delivered pursuant hereto,
accounting terms relating to the Borrower and its Subsidiaries not
defined in subsection 1.1 and accounting terms partly defined in
subsection 1.1, to the extent not defined, shall have the respective
meanings given to them under GAAP.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and Section, subsection, Schedule and Exhibit references
are to this Agreement unless otherwise specified.
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(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS AND LOANS
2.1. Commitments. (a) Subject to the terms and conditions hereof, each
Lender severally agrees to make the loans described in this subsection
2.1(a) as applicable to the Borrower.
(i) Revolving 364 Day Loans. Each Revolving 364 Day Lender severally
agrees to make revolving credit loans to the Borrower, from time to time
during the Revolving 364 Day Commitment Period, in an aggregate principal
amount at any one time outstanding which, when added to such Lender's
Commitment Percentage with respect to Revolving 364 Day Loans of the then
outstanding L/C Obligations, does not exceed the amount of such Lender's
Revolving 364 Day Commitment. During the Revolving 364 Day Commitment
Period, the Borrower may use the Revolving 364 Day Commitments by
borrowing, prepaying the Revolving 364 Day Loans, in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. Prior
to the Revolving 364 Day Termination Date, the Borrower may increase the
aggregate Revolving 364 Day Commitments by (A) entering into a binding
written agreement, substantially in the form of Exhibit G attached hereto,
with any Lender to increase the Revolving 364 Day Commitment of such Lender
(an "Increased Commitment Agreement") which Increased Commitment Agreement
shall be presented to the Administrative Agent for acknowledgment and
acceptance (which shall not be withheld unless the effect thereof would be
to exceed the maximum permitted amount herein for all Revolving 364 Day
Commitments in the aggregate) and/or (B) subject to the prior written
approval of the Agents and each Applicable Issuing Lender, entering into a
binding written agreement substantially in the form of Exhibit H hereto (a
"Lender Addition Agreement") with any bank, financial institution or
Investment Fund to become a Lender under this Agreement by making a
Revolving 364 Day Commitment and causing such Person to take all other
actions required to become a new Revolving 364 Day Lender hereunder (a "New
Lender"); provided that, the aggregate Revolving 364 Day Commitments of all
Lenders (including New Lenders) may not exceed $200,000,000 at any time. In
order to become a New Lender, a party must execute a Lender Addition
Agreement attached hereto and deliver the same to the Administrative Agent,
the Syndication Agent, each Applicable Issuing Lender and the Borrower for
counter-execution. On the Eurodollar Loans Maturity Date (or, subject to
compliance with subsection 2.16, on any Business Day) occurring on or
immediately following the date that (i) the Administrative Agent has
acknowledged its acceptance of any Increased Commitment Agreement delivered
pursuant to clause (A) above or (ii) any Lender Addition Agreement has been
executed by all necessary parties and delivered to the Administrative
Agent, the increase in any such Lender's 364 Day Commitment contemplated
thereby shall become effective and/or the New Lender shall become a party
to this Agreement, as applicable. Promptly thereafter, the Administrative
Agent shall amend Schedule I hereto to accurately reflect the Revolving 364
Day Commitments of the Revolving 364 Day Lenders then in existence,
whereupon such amended Schedule I shall
25
be substituted for the pre-existing Schedule I, be deemed a part of
this Agreement without any further action or consent of any party and be
promptly distributed to each Lender and the Borrower by the Administrative
Agent. The Agents shall cooperate with the Borrower in adding New Lenders
to this Agreement and each Agent, in its capacity as a Lender, agrees that,
without the prior written consent of the Borrower, it will maintain for a
period of 90 days following the Closing Date, Commitments under this
Agreement and Revolving Credit Commitments under the Facility A Credit
Agreement in an aggregate amount of not less than $40,000,000 (the "minimum
hold position"); provided that, following the termination of such 90 day
period, each of the Agents shall be permitted to assign all or any portion
of their respective commitments in accordance with subsection 10.6 hereof
and/or subsection 10.6 of the Facility A Credit Agreement without regard to
any such minimum hold position.
(ii) Term Loans. In the event the conditions in subsection 2.5(b) to
the exercise of the Conversion Option are satisfied, each Extending Lender
severally agrees to convert, effective upon the Revolving 364 Day
Termination Date, a principal amount of Revolving 364 Day Loans of such
Lender into a Term Loan of such Lender to the Borrower in an aggregate
principal amount which does not exceed the lesser of (a) the principal
amount of Revolving 364 Day Loans of such Lender outstanding on the
Revolving 364 Day Termination Date and (b) the principal amount of such
Lender's 364 Day Commitment outstanding on the Revolving 364 Day
Termination Date. Amounts borrowed under this subsection 2.1(a)(ii) and
subsequently repaid may not be reborrowed.
(b) The Loans may from time to time be (i) Eurodollar Loans, (ii)
Base Rate Loans or (iii) a combination thereof, as determined by the
Borrower and notified to the Administrative Agent in accordance with
subsections 2.2 and 2.7, provided that, except as contemplated in
clause (c) of the definition of Interest Period, no Revolving 364 Day
Loan shall be made as a Eurodollar Loan after the day that is one
month prior to the applicable Termination Date.
2.2. Procedure for Borrowing. The Borrower may borrow under the
Revolving 364 Day Commitments during the Revolving 364 Day Commitment Period on
any Business Day, provided that the Borrower shall give the Administrative
Agent irrevocable notice (which notice must be received by the Administrative
Agent prior to (a) 11:00 A.M., New York City time, three Business Days prior to
the requested Borrowing Date, if all or any part of the requested Loans are to
be initially Eurodollar Loans, (b) 11:00 A.M., New York City time, on the
requested Borrowing Date in the case of a Base Rate Loan), specifying (i) the
amount to be borrowed of each Type of Loan, (ii) the requested Borrowing Date,
(iii) whether the borrowing is to be of Eurodollar Loans, Base Rate Loans or a
combination thereof and (iv) if the borrowing is to be entirely or partly of
Eurodollar Loans, the respective lengths of the initial Interest Periods
therefor. Each borrowing under the Commitments shall be in an amount equal to
(x) in the case of Base Rate Loans, $2,000,000 or a whole multiple of $100,000
in excess thereof (or, if the then Available Commitments are less than
$2,000,000, such lesser amount), and (y) in the case of Eurodollar Loans,
$5,000,000 or a whole multiple of $100,000 in excess thereof; provided that the
Borrower may nevertheless borrow amounts below such minimum amounts in clauses
(x) or (y) above solely for the purpose of (i) converting Revolving 364 Day
Loans into Term Loans on
26
the Revolving 364 Day Termination Date, (ii) repaying Revolving 364 Day Loans
owing to any Nonconsenting Lenders on the Revolving 364 Day Termination Date,
(iii) funding any scheduled amortization payment pursuant to subsection 2.5(b)
in respect of any Term Loans then outstanding and (iv) permitting the addition
of any New Lender or increasing the Revolving 364 Day Commitment of any
existing Lender pursuant to subsection 2.1(a)(i). Upon receipt of any such
notice from the Borrower, the Administrative Agent shall promptly notify each
Lender thereof. Each Lender will make the amount of its pro rata share of each
borrowing available to the Administrative Agent for the account of the Borrower
at the office of the Administrative Agent specified in subsection 10.2 prior to
11:00 A.M., New York City time (in the case of Eurodollar Loans) or 2:30 P.M.,
New York City time (in the case of Base Rate Loans), on the Borrowing Date
requested by the Borrower in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent in accordance with the Borrower's payment instructions
with the aggregate of the amounts made available to the Administrative Agent by
the Lenders and in like funds as received by the Administrative Agent. All
notices given by the Borrower under this subsection 2.2 may be made by
telephonic notice promptly confirmed in writing.
2.3. Commitment Fee.
The Borrower agrees to pay to the Administrative Agent for the account
of each Revolving 364 Day Lender a commitment fee for the period from and
including the first day of the Revolving 364 Day Commitment Period to and
including the Revolving 364 Day Termination Date, computed at the Commitment
Fee Rate on the daily amount of the Available Commitment of such Revolving 364
Day Lender during the period for which payment is made, payable quarterly in
arrears on the last Business Day of each March, June, September and December
and on the Termination Date, commencing on the first of such dates to occur
after the date hereof.
2.4. Termination or Reduction of Revolving 364 Day Commitments.
The Borrower shall have the right, upon not less than three Business
Days' written notice to the Administrative Agent, to terminate the Revolving
364 Day Commitments or, from time to time, to reduce the amount of the
Revolving 364 Day Commitments ratably among the Revolving 364 Day Lenders;
provided that no such termination or reduction shall be permitted if, after
giving effect thereto and to any prepayments of the Revolving 364 Day Loans
made on the effective date thereof, the aggregate principal amount of the
Revolving 364 Day Loans then outstanding, when added to the then outstanding
L/C Obligations, would exceed the Revolving 364 Day Commitments then in effect.
Any such reduction shall be in an amount equal to $2,000,000 or a whole
multiple of $500,000 in excess thereof and shall reduce permanently the
Revolving 364 Day Commitments then in effect.
2.5. Extension of Revolving 364 Day Termination Date; Conversion
Option; Repayment of Loans; Evidence of Debt.
(a) Extension of Revolving 364 Day Termination Date. The Borrower
may elect to forward to the Administrative Agent (for distribution to
each Lender)
27
no earlier than sixty (60) but no later than fifty-five (55) days
prior to the initially scheduled Revolving 364 Day Termination Date a
written request asking each Revolving 364 Day Lender to consent to the
extension of the Revolving 364 Day Termination Date for one (1)
additional 364 day period. Not later than 30 days after receipt of
such written request, each Lender shall advise the Administrative
Agent and the Borrower in writing whether such Lender consents to the
proposed extension if all the conditions, including those set forth in
subsection 5.2 of this Agreement, thereto have been satisfied. If all
of the Revolving 364 Day Lenders have consented in writing to such
extension and all conditions set forth in subsection 5.2 shall have
been satisfied, then effective on the initially scheduled Revolving
364 Day Termination Date, the Revolving 364 Day Termination Date shall
be deemed automatically extended by an additional 364 day period
(herein, the "Extension Option"). If less than all of the Revolving
364 Day Lenders consent to the exercise of the proposed Extension
Option (the "Extending Lenders"), the Borrower may replace all, some
or none of such Nonconsenting Lenders on or before the initially
scheduled Revolving 364 Day Termination Date pursuant to subsection
2.17 and repay all outstanding Revolving 364 Day Loans owing to each
Nonconsenting Lender that is not being replaced, if any, on the
initially scheduled Revolving 364 Day Termination Date (without giving
effect to the Extension Option); provided that if the Extending
Lenders do not hold more than 50% of the outstanding Revolving 364 Day
Commitments, the Borrower will not be entitled to exercise the
Extension Option with respect to any Extending Lenders nor shall any
Lender failing to consent to the Extension Option be deemed a
Nonconsenting Lender and be subject to replacement under subsection
2.17 as a result thereof. Subject to the foregoing proviso, if the
Borrower desires to exercise the Extension Option with the Extending
Lenders, Borrower shall provide the Administrative Agent (for
distribution to each Lender) with not less than five (5) days prior
written notice thereof in addition to satisfying all conditions
precedent set forth above (other than the requirement that all
Revolving 364 Day Lenders have timely consented to the Extension
Option). On the date the Extension Option becomes effective, Schedule
I hereto shall be deemed amended to accurately reflect the Revolving
364 Day Commitments of the Revolving 364 Day Lenders then in existence
and the Administrative Agent shall promptly deliver a copy of such
amended Schedule I to each Lender and the Borrower.
(b) Conversion Option. Subject to the terms of this subsection
2.5(b), whether or not the Extension Option is utilized, the Borrower
shall be entitled as of the Revolving 364 Day Termination Date to
convert the principal amount of any or all Revolving 364 Day Loans
(but not any obligations in respect of any Letters of Credit)
outstanding as of the Revolving 364 Day Termination Date into Term
Loans so long as each of the following conditions are met as of the
effective date of such conversion to the satisfaction of the
Administrative Agent (the "Conversion Option"): (i) each of the
conditions precedent set forth in subsection 5.2 of this Agreement
shall be satisfied, (ii) not later than five (5) Business Days
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before the Revolving 364 Day Termination Date, all Letters of
Credit shall have terminated and/or been released and canceled to the
satisfaction of the Issuing Lender and the Administrative Agent and
all outstanding L/C Obligations in respect of any Letters of Credit
shall have been paid in full in cash or cash collateralized on terms
deemed satisfactory by the Administrative Agent and the Issuing Lender
and (iii) not later than five (5) days before the Revolving 364 Day
Termination Date, the Borrower shall have provided the Administrative
Agent (for distribution to each Lender) (x) written notice of the
Borrower's desire to exercise the Conversion Option, (y) a certificate
of a Responsible Officer of the Borrower specifying the aggregate
amount of Revolving 364 Day Loans to be paid in full and the amount of
such Loans which will be converted to Term Loans, in each case, on the
Revolving 364 Day Termination Date and certifying that all conditions
precedent to exercise of the Conversion Option are satisfied and will
remain satisfied on the Revolving 364 Day Termination Date and (z)
Term Notes in the form of Exhibit A-2 hereto for each Lender that
requests a Term Note pursuant to subsection 2.5(g)(ii) in the amount
of each such Lender's respective Revolving 364 Day Loans which are to
be converted into Term Loans of such Lender. If the Conversion Option
is exercised, the Term Loans shall be repaid by the Borrower in nine
(9) consecutive quarterly installments commencing on March 31, 2001,
by funding on each amortization payment date set forth below an amount
necessary to cause the aggregate principal amount of Term Loans
outstanding on any such date to not exceed an amount equal to the
product of (x) the "Applicable Percentage" set forth opposite such
amortization payment date multiplied by (y) the aggregate amount of
Revolving 364 Day Commitments of all Lenders in existence on the
Revolving 364 Day Termination Date (the "Applicable Converted
Commitment"):
Applicable Percentage of the
Amortization Payment Date Applicable Converted Commitment
------------------------- -------------------------------
3/31/01 90.0%
6/30/01 80.0%
9/30/01 70.0%
12/31/01 60.0%
3/31/02 50.0%
6/30/02 40.0%
9/30/02 30.0%
12/31/02 20.0%
3/31/03 0.0%
provided that the scheduled installments of principal of the Term Loans set
forth above shall be reduced in connection with any voluntary or mandatory
prepayments of the Term Loans in accordance with subsection 2.6 (as provided in
such subsection); and provided further that the Term Loans and all other
amounts owed hereunder with respect to the Term Loans shall be paid in full no
later than March 31, 2003, and the final installment payable by the Borrower in
respect
29
of the Term Loans on such date shall be in an amount, if such amount is
different from that specified above, sufficient to repay all amounts owing by
the Borrower under this Agreement with respect to the Term Loans.
(c) Replacement of Nonconsenting Lenders. If any Revolving 364
Day Lender declines to consent or fails to timely indicate its consent
to the exercise by Borrower of the Extension Option and the Extending
Lenders hold more than 50% of the Revolving 364 Day Commitments, such
Lender shall be deemed a Nonconsenting Lender and be subject to
replacement in accordance with the terms of subsection 2.17 hereof.
(d) Payments on Revolving 364 Day Loans. Subject to the exercise
of the Conversion Option in accordance with the terms of subsection
2.5(b), the Borrower hereby unconditionally promises to pay to the
Administrative Agent on the Revolving 364 Day Termination Date (or
such earlier date on which the Loans become due and payable pursuant
to Section 8) for the account of each Revolving 364 Day Lender the
then unpaid principal amount of each Revolving 364 Day Loan of such
Lender.
(e) Interest. The Borrower hereby further agrees to pay interest
on the unpaid principal amount of the Loans from time to time
outstanding from the date such Loans are made until payment in full
thereof at the rates per annum, and on the dates, set forth in
subsection 2.9.
(f) Recording. Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of the
Borrower to such Lender resulting from each Loan of such Lender from
time to time, including the amounts of principal and interest payable
and paid to such Lender from time to time under this Agreement.
(g) Loan Accounts and Register; Notes. (i) The Loans made by, and
the Commitments of, each Lender shall be evidenced by one or more loan
accounts ("Loan Accounts") maintained by such Lender and by the Register
maintained by the Administrative Agent in the ordinary course of business.
The Register maintained by the Administrative Agent shall, in the event of
a discrepancy between the entries in the Administrative Agent's books and
any Lender's books relating to such matters, be controlling and, absent
manifest error, shall be conclusive as to the amount of the Loans made by
the Lender to the Borrower, the interest and payments thereon and any other
amounts owing in respect of this Agreement. The Borrower hereby designates
the Administrative Agent to serve as the Borrower's agent, solely for
purposes of this subsection 2.5(g) and subsection 10.6, to maintain the
Register on which it will record the Commitments from time to time of each
of the Lenders, the Loans made by each of the Lenders and each repayment in
respect of the principal amount of the Loans of each Lender. The Borrower
agrees to indemnify the Administrative Agent from and against any and all
losses, claims, damages and liabilities of whatsoever nature which may be
imposed on, asserted against or incurred by the Administrative Agent in
performing its
30
duties under this subsection 2.5(g) and subsection 10.6 (other than any
losses, claims, damages and liabilities to the extent incurred by reason of
the gross negligence or willful misconduct of the Administrative Agent).
(ii) If requested by any Lender, the Borrower shall execute and
deliver to such Lender (and deliver a copy thereof to the Administrative
Agent) one or more promissory notes evidencing the Loans owing to such
Lender pursuant to this Agreement in accordance with subsection 2.5(i).
(h) Prima Facie Evidence. The entries made in the Register and
the Loan Accounts of each Lender maintained pursuant to subsection
2.5(g) shall, to the extent permitted by applicable law, be prima
facie evidence of the existence and amounts of the obligations of the
Borrower therein recorded; provided, however, that the failure of any
Lender or the Administrative Agent to maintain the Register or any
such Loan Account, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay (with applicable
interest) the Loans made to the Borrower by such Lender in accordance
with the terms of this Agreement. For the avoidance of doubt, the
existence or non-existence of any Note representing any Obligations
owing to any Lender hereunder shall not affect the existence, amount,
validity or enforceability of such Obligations, which in all events
shall be absolute and unconditional.
(i) Notes. The Borrower agrees that the Borrower will execute and
deliver to each Lender that requests any such Note pursuant to
subsection 2.5(g)(ii), a promissory note of the Borrower evidencing
the Revolving 364 Day Loans of such Lender, substantially in the form
of Exhibit A-1 with appropriate insertions as to date and principal
amount (a "Revolving 364 Day Note").
2.6. Optional Prepayments; Mandatory Prepayments and Reduction of
Commitments.
(a) Subject to subsections 2.12 and 2.16, the Borrower may at any
time and from time to time prepay any Loans, in whole or in part,
without premium or penalty, upon irrevocable notice to the
Administrative Agent prior to 11:00 A.M., New York City time, three
Business Days prior to the date of prepayment in the case of
Eurodollar Loans or on any Business Day in the case of Base Rate
Loans, specifying the date and amount of prepayment, the Type of Loan
to be prepaid (which Loans shall be prepaid on a pro rata basis among
the applicable Lenders) and whether the prepayment is of Eurodollar
Loans, Base Rate Loans or a combination thereof, and, if of a
combination thereof, the amount allocable to each. Upon receipt of any
such notice, the Administrative Agent shall promptly notify each
applicable Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date
specified therein, together with any amounts payable pursuant to
subsection 2.16. Partial prepayments shall be in an aggregate
principal amount of $2,000,000 or a whole multiple of $100,000 in
excess thereof. In the event of any voluntary prepayment
31
of the Term Loans, such voluntary prepayment shall be deemed
applied to the next scheduled amortization payment(s) as described in
subsection 2.5(b) (rather than be applied in inverse order of
maturity).
(b) (i) If, subsequent to the Closing Date, Holdings or any of
its Subsidiaries shall incur or permit the incurrence of any Indebtedness
(other than Indebtedness permitted pursuant to subsection 7.2), 100% of the
Net Proceeds thereof shall be promptly ratably applied toward the
prepayment of the Loans and the Facility A Loans and permanent reduction of
the Commitments and the Facility A Commitments as set forth in clause (iv)
of this subsection 2.6(b). Nothing in this paragraph (b) shall be deemed to
permit any Indebtedness not permitted by subsection 7.2.
(ii) If, subsequent to the Closing Date, Holdings or any of its
Subsidiaries shall receive Net Proceeds from any Asset Sale, such Net
Proceeds, subject to the Applicable Holdback (defined below) shall be
promptly and ratably applied toward the prepayment of the Loans and the
Facility A Loans and permanent reduction of the Commitments and the
Facility A Commitments as set forth in clause (iv) of this subsection
2.6(b); provided that Net Proceeds from any Asset Sales shall not be
required to be so applied to the extent that such Net Proceeds are used by
the Borrower or such Subsidiary to acquire assets to be employed in the
business of the Borrower or its Subsidiaries within 365 days of receipt
thereof, but if such Net Proceeds, subject to the Applicable Holdback (as
defined below), are not so used, 100% of the amount of such Net Proceeds
not so used shall be applied toward the prepayment of the Loans and the
permanent reduction of the Commitments as set forth in clause (iv) of this
subsection 2.6(b) on the earlier of (x) the 366th day after receipt of such
Net Proceeds and (y) the date on which the Borrower has determined that
such Net Proceeds shall not be so used. As used herein, "Applicable
Holdback" shall mean an amount of Net Proceeds not in excess of $20,000,000
derived from any Asset Sales occurring since the Closing Date that has not
been applied toward the prepayment of Loans and the permanent reduction of
the Commitments as set forth in clause (iv) of subsection 2.6(b) which
Borrower and/or its applicable Subsidiary may retain and not apply as a
mandatory prepayment without the requirement of utilizing the same to
acquire assets to be employed in the business of the Borrower or such
applicable Subsidiary; provided, that if any Event of Default shall have
occurred and be continuing, the Applicable Holdback amount shall be
automatically reduced to zero unless and until such Event of Default is
acknowledged in writing by the Required Lenders (or all the Lenders in
cases where the unanimous consent of the Lenders is required) as cured or
waived.
(iii) [Intentionally Omitted]
(iv) Except during any period in which an Event of Default has
occurred and is continuing, any mandatory prepayments required by this
subsection 2.6 shall be applied ratably to the outstanding principal amount
of Loans and Facility A Loans with a corresponding ratable permanent
reduction of the Revolving Credit Commitments and the Revolving 364 Day
Commitments (or, if applicable, the Term Loans on a pro rata basis to
reduce the unpaid scheduled installments of principal of the Term Loans in
inverse order
32
of maturity). Revolving Credit Commitment and Revolving 364 Day
Commitment reductions made pursuant to subsections 2.6(b)(i) and (ii)
hereof (and the corresponding subsections of the Facility A Credit
Agreement) shall be applied to each Lender's respective Revolving 364 Day
Commitment and/or each Facility A Lender's Revolving Credit Commitment, as
applicable, on a pro rata basis and shall reduce permanently such
Commitments and Revolving Credit Commitments. At any time that an Event of
Default has occurred and is continuing, all mandatory prepayments shall be
applied in accordance with the terms of subsection 2.12 hereof (and the
corresponding subsection of the Facility A Credit Agreement). Mandatory
prepayments shall not be subject to any minimum amount requirement.
(v) If after giving effect to (i) any reduction of the Revolving 364
Day Commitments under subsection 2.4, 2.5 or 2.6 or (ii) any recalculation
of the Exchange Rate pursuant to subsection 3.9, the aggregate outstanding
principal amount of Revolving 364 Day Loans plus the aggregate outstanding
amount of L/C Obligations shall exceed the aggregate amount of the
Revolving 364 Day Commitments, such reduction or recalculation shall be
accompanied by prepayment in the amount of such excess to be applied to the
Revolving 364 Day Loans; provided that if the aggregate principal amount of
Revolving 364 Day Loans then outstanding is less than the amount of such
excess (because Letters of Credit constitute a portion of such excess), the
Borrower shall immediately, without notice or demand, to the extent of the
balance of such excess, replace outstanding Letters of Credit and/or
deposit an amount (but in no event greater than such balance) in a cash
collateral account opened by the Administrative Agent for the benefit of
the Revolving 364 Day Lenders (such deposit to be in Dollars with respect
to Domestic L/Cs and the applicable Alternative Currency with respect to
Foreign L/Cs). The Borrower hereby grants to the Administrative Agent, for
the benefit of the Issuing Lender and the L/C Participants in such Letters
of Credit, a security interest in such cash collateral to secure all
obligations of the Borrower under this Agreement and the other Credit
Documents. Any amounts deposited in such accounts shall be released to the
Borrower on any Calculation Date on which the aggregate outstanding
principal amount of Revolving 364 Day Loans plus the aggregate outstanding
amount of L/C Obligations equals or is less than the aggregate amount of
the Revolving 364 Day Commitments, provided that no Default or Event of
Default has occurred and is continuing.
2.7. Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to Base Rate Loans, by
giving the Administrative Agent prior irrevocable notice of such
election at or before 11:00 A.M. New York City time, on the Business
Day immediately preceding the date of the proposed conversion and of
the amount and Type of Loan to be converted, provided that any such
conversion of Eurodollar Loans may only be made on the last day of an
Interest Period with respect thereto. The Borrower may elect from time
to time to convert Base Rate Loans to Eurodollar Loans by giving the
Administrative Agent prior irrevocable notice of such election at or
before 11:00 A.M., New York City time, on the third Business Day
immediately preceding the date of the proposed conversion and of the
amount and Type of Loan to be converted. Any such notice of conversion
to Eurodollar Loans shall specify the
33
length of the initial Interest Period or Interest Periods therefor.
Upon receipt of any such notice the Administrative Agent shall
promptly notify each applicable Lender thereof. All or any part of
outstanding Eurodollar Loans and Base Rate Loans may be converted as
provided herein, provided that (i) no Loan may be converted into a
Eurodollar Loan when any Event of Default has occurred and is then
continuing and (ii) no Loan may be converted into a Eurodollar Loan
after the date that is one month prior to the Termination Date with
respect to such Loan.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by
the Borrower giving notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth
in subsection 1.1, of the length of the next Interest Period to be
applicable to such Loans and of the amount and Type of Loan to be
converted, provided that no Eurodollar Loan may be continued as such
(i) when any Event of Default has occurred and is then continuing or
(ii) after the date that is one month prior to the Termination Date
with respect to such Loan and provided, further, that if the Borrower
shall fail to give such notice or if such continuation is not
permitted such Loans shall be automatically converted to Base Rate
Loans on the last day of such then expiring Interest Period.
(c) All notices given by Borrower under this subsection 2.7 may
be made by telephonic notice promptly confirmed in writing.
2.8. Minimum Amounts and Maximum Number of Tranches. All borrowings,
conversions and continuations of Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Loans comprising each Eurodollar Tranche shall be equal to $5,000,000 or
a whole multiple of $100,000 in excess thereof; provided that the Borrower may
nevertheless borrow amounts in any Eurodollar Tranche below such minimum
amounts solely for the purpose of (i) converting Revolving 364 Day Loans into
Term Loans on the Revolving 364 Day Termination Date, (ii) repaying Revolving
364 Day Loans owing to any Nonconsenting Lenders on the Revolving 364 Day
Termination Date (iii) funding any scheduled amortization payment pursuant to
subsection 2.5(b) in respect of any Term Loans then outstanding or (iv)
permitting the addition of any New Lender or any increasing the Revolving 364
Day Commitment of any existing Lender pursuant to subsection 2.1(a)(i). All
Loans hereunder may be converted or continued into Base Rate Loans without
reference to the minimum principal amount requirements for new Base Rate
borrowings set forth in subsection 2.2 above. In no event shall the number of
outstanding Eurodollar Tranches under this Agreement plus the number of
outstanding Facility A Eurodollar Tranches exceed 15 at any time.
2.9. Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined
for such day plus the Applicable Margin.
34
(b) Each Base Rate Loan shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any Loan, (ii)
any interest payable thereon, (iii) any commitment fee or (iv) any
other amount payable hereunder shall not be paid when due (whether at
the stated maturity, by acceleration or otherwise), the principal of
the Loans and any such overdue interest, commitment fee or other
amount shall bear interest at a rate per annum which is (x) in the
case of principal, the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this subsection plus 2% or (y)
in the case of any such overdue interest, commitment fee or other
amount, the rate described in paragraph (b) of this subsection plus
2%, in each case from the date of such non-payment until such overdue
principal, interest, commitment fee or other amount is paid in full
(as well after as before judgment).
(d) Interest shall be payable with respect to each Loan in
arrears on each Interest Payment Date and on the Termination Date with
respect to such Loan, provided that interest accruing pursuant to
paragraph (c) of this subsection shall be payable from time to time on
demand.
2.10. Computation of Interest and Fees. (a) Interest on Base Rate
Loans and fees shall be calculated on the basis of a 365- (or 366-, as
the case may be) day year for the actual days elapsed; all other
interest shall be calculated on the basis of a 360-day year for the
actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of each determination
of a Eurodollar Rate. Any change in the interest rate on a Loan
resulting from a change in the Base Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on
the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the Borrower and the Lenders
of the effective date and the amount of each such change in interest
rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive
and binding on the Borrower and the Lenders in the absence of manifest
error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to
subsection 2.9(a) or (c).
2.11. Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the eurodollar market, adequate
and reasonable means do not exist for ascertaining the Eurodollar Rate
for such Interest Period, or
35
(b) the Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such
Interest Period, the Administrative Agent shall give telecopy or
telephonic notice thereof to the Borrower and the Lenders as soon as
practicable thereafter. If such notice is given (x) any Eurodollar
Loans requested to be made on the first day of such Interest Period
shall be made as Base Rate Loans, (y) any Loans that were to have been
converted on the first day of such Interest Period to Eurodollar Loans
shall be converted to or continued as Base Rate Loans and (z) any
outstanding Eurodollar Loans shall be converted, on the first day of
such Interest Period, to Base Rate Loans. Until such notice has been
withdrawn in writing by the Administrative Agent (which the
Administrative Agent agrees to do when the Administrative Agent has
determined, or has been instructed by the Required Lenders that, the
circumstances that prompted the delivery of such notice no longer
exist), no further Eurodollar Loans shall be made or continued as
such, nor shall the Borrower have the right to convert Loans to
Eurodollar Loans.
2.12. Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrower from the Revolving 364 Day Lenders hereunder, each payment by
the Borrower on account of any commitment fee hereunder and any
reduction of the Revolving 364 Day Commitments of Revolving 364 Day
Lenders shall be made pro rata according to the respective Commitment
Percentages of the Revolving 364 Day Lenders. Except during any period
in which an Event of Default has occurred and is continuing, each
payment (including each prepayment) by the Borrower on account of
principal of and interest on any Term Loans and/or the Revolving 364
Day Loans, and any application by the Administrative Agent of the
proceeds of any Collateral, shall be made pro rata according to the
respective outstanding principal amounts of such Loans then held by
the Lenders. All payments (including prepayments) to be made by the
Borrower hereunder in respect of any Loan, whether on account of
principal, interest, Reimbursement Obligations (whether in respect of
Domestic L/Cs or Foreign L/Cs), fees, expenses or otherwise, shall be
made without set off or counterclaim and shall be made prior to 11:00
A.M., New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders with respect to
such Loans, at the Administrative Agent's office specified in
subsection 10.2, in Dollars and in immediately available funds;
provided, that, with respect to any Reimbursement Obligations of the
Borrower arising from the presentment to the Issuing Lender of a draft
under a Foreign L/C, the Borrower may make payment in the applicable
Alternative Currency if such payment is received by the Issuing Lender
on the date such draft is paid by the Issuing Lender. At any time that
an Event of Default has occurred and is continuing, all payments
(including prepayments) made by Borrower hereunder and any application
by the Administrative Agent of the proceeds of any Collateral shall be
applied in the following order: (1) to the
36
ratable payment of all amounts due and owing by the Borrower pursuant
to subsection 10.5 of this Agreement or subsection 10.5 of the
Facility A Credit Agreement to the Agents and/or the Facility A
Agents, and after payment in full thereof, to any other Lender or
Facility A Lender; (2) to the ratable payment of all interest, fees
and commissions due and owing under this Agreement or the Facility A
Credit Agreement to the Agents, the Facility A Agents, the Swing Line
Lender, any Lender or any Facility A Lender; (3) to the ratable
payment (or cash collateralization) of the aggregate outstanding
principal amount of Loans and Facility A Loans and the aggregate L/C
Obligations and Facility A L/C Obligations; and (4) to the ratable
payment of all other obligations of the Borrower to the Agents, the
Facility A Agents, the Swing Line Lender, any Lender or any Facility A
Lender under any Credit Document or Facility A Credit Document. For
purposes of applying payments and proceeds distributed under clause 3
above, each Lender will first apply such amounts to all outstanding
Loans of such Lender before such amounts will be held as cash
collateral for L/C Obligations in which such Lender is a L/C
Participant. The Administrative Agent and the Facility A
Administrative Agent shall ratably distribute such payments to the
applicable Lenders and the Facility A Lenders promptly upon receipt in
like funds as received. If any payment hereunder becomes due and
payable on a day other than a Business Day, such payment shall be
extended to the next succeeding Business Day, and, with respect to
payments of principal, interest thereon shall be payable at the then
applicable rate during such extension.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not
make the amount that would constitute its Commitment Percentage of
such borrowing available to the Administrative Agent, the
Administrative Agent may assume that such Lender is making such amount
available to the Administrative Agent on such Borrowing Date, and the
Administrative Agent may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. If such amount is
not made available to the Administrative Agent by the required time on
the Borrowing Date therefor, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon at
a rate equal to the daily average Federal Funds Effective Rate for the
period until such Lender makes such amount immediately available to
the Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error. If
such Lender's Commitment Percentage of such borrowing is not made
available to the Administrative Agent by such Lender within three
Business Days of such Borrowing Date, the Administrative Agent shall
also be entitled to recover such amount with interest thereon at the
rate per annum applicable to Base Rate Loans hereunder, on demand,
from the Borrower. The failure of any Lender to make any Loan to be
made by it shall not relieve any other Lender of its obligation
hereunder to make its Loan on such Borrowing Date.
37
2.13. Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such
and convert Base Rate Loans to Eurodollar Loans shall forthwith be canceled and
(b) such Lender's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to Base Rate Loans on the respective last days of the
then current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurodollar Loan occurs
on a day which is not the last day of the then current Interest Period with
respect thereto, the Borrower shall pay to such Lender such amounts, if any, as
may be required pursuant to subsection 2.16. If circumstances subsequently
change so that any affected Lender shall determine that it is no longer so
affected, such Lender will promptly notify the Borrower and the Administrative
Agent, and upon receipt of such notice, the obligations of such Lender to make
or continue Eurodollar Loans or to convert Base Rate Loans into Eurodollar
Loans shall be reinstated.
2.14. Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not
having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Note, any Letter of Credit, any Application
or any Eurodollar Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded Taxes
covered by subsection 2.15 and changes in the rate of net income taxes
(including branch profits taxes and minimum taxes) or franchise taxes
(imposed in lieu of net income taxes) of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender
upon written demand such additional amount or amounts as will compensate such
Lender for such increased cost or reduced amount receivable; provided that
before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions and
so long as such efforts would not be disadvantageous to it, in its reasonable
discretion, in any legal, economic or regulatory manner) to designate a
different
38
Eurodollar lending office if the making of such designation would allow the
Lender or its Eurodollar lending office to continue to perform its obligations
to make Eurodollar Loans or to continue to fund or maintain Eurodollar Loans
and avoid the need for, or reduce the amount of, such increased cost. If any
Lender becomes entitled to claim any additional amounts pursuant to this
subsection, it shall promptly notify the Borrower, through the Administrative
Agent, of the event by reason of which it has become so entitled. If the
Borrower so notifies the Administrative Agent within five Business Days after
any Lender notifies the Borrower of any increased cost pursuant to the
foregoing provisions of this Section, the Borrower may convert all Eurodollar
Loans of such Lender then outstanding into Base Rate Loans in accordance with
the terms hereof. Each Lender shall notify the Borrower within 120 days after
it becomes aware of the imposition of such costs; provided that if such Lender
fails to so notify the Borrower within such 120-day period, such Lender shall
not be entitled to claim any additional amounts pursuant to this subsection for
any period ending on a date which is prior to 120 days before such
notification.
(b) If any Lender shall have determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in
the interpretation or application thereof or compliance by such Lender
or any corporation controlling such Lender with any request or
directive regarding capital adequacy (whether or not having the force
of law) from any Governmental Authority made subsequent to the date
hereof shall have the effect of reducing the rate of return on such
Lender's or such corporation's capital as a consequence of its
obligations hereunder or under any Letter of Credit to a level below
that which such Lender or such corporation could have achieved but for
such adoption, change or compliance (taking into consideration such
Lender's or such corporation's policies with respect to capital
adequacy) by an amount deemed by such Lender to be material, then from
time to time, after submission by such Lender to the Borrower (with a
copy to the Administrative Agent) of a prompt written request
therefor, the Borrower shall promptly pay to such Lender such
additional amount or amounts as will compensate such Lender for such
reduction. Each Lender shall notify the Borrower within 120 days after
it becomes aware of the imposition of such additional amount or
amounts; provided that if such Lender fails to so notify the Borrower
within such 120-day period, such Lender shall not be entitled to claim
any additional amount or amounts pursuant to this subsection for any
period ending on a date which is prior to 120 days before such
notification.
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the
Borrower (with a copy to the Administrative Agent) of the event by
reason of which it has become so entitled. A certificate as to any
additional amounts payable pursuant to this subsection, showing the
calculation thereof in reasonable detail, submitted by such Lender to
the Borrower (with a copy to the Administrative Agent) shall be
conclusive in the absence of manifest error. The agreements in this
subsection shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
39
2.15. Taxes. (a) Except as provided in this subsection 2.15, all
payments made by the Borrower under this Agreement and any Notes shall
be made free and clear of, and without deduction or withholding for or
on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by
any Governmental Authority ("Taxes"), excluding Taxes on net income
(including, without limitation, branch profits taxes and minimum
taxes) and franchise taxes (imposed in lieu of net income taxes)
imposed on any Agent or any Lender as a result of a present or former
connection between any Agent or such Lender and the jurisdiction of
the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any
such connection arising solely from such Agent or such Lender having
executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any Note). If any such
non-excluded taxes, levies, imposts, duties, charges, fees deductions
or withholdings ("Non-Excluded Taxes") are required to be withheld
from any amounts payable to any Agent or any Lender hereunder or under
any Note, the amounts so payable to such Agent or such Lender shall be
increased to the extent necessary to yield to such Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts
specified in this Agreement, provided, however, that the Borrower
shall not be required to increase any such amounts payable to any
Lender that is not organized under the laws of the United States of
America or a state thereof with respect to any Taxes that are imposed
on amounts payable to such Lender at the time such Lender becomes a
party to this Agreement or that are attributable to such Lender's
failure to comply with the requirements of paragraph (b) of this
subsection. Whenever any Non-Excluded Taxes are payable by the
Borrower, as promptly as possible thereafter, the Borrower shall send
to the relevant Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official
receipt, if any, received by the Borrower showing payment thereof. If
the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the relevant Agent
the required receipts or other required documentary evidence, the
Borrower shall indemnify the Agents and the Lenders for any
incremental taxes, interest or penalties that may become payable by
any Agent or any Lender as a result of any such failure. The
agreements in this subsection shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable
hereunder.
(b) Each Lender, Assignee and Participant that is not a citizen
or resident of the United States of America, a corporation,
partnership created or organized in or under the laws of the United
States of America, any estate that is subject to U.S. federal income
taxation regardless of the source of its income or any trust which is
subject to the supervision of a court within the United States and the
control of a United States fiduciary as described in Section
7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver to the
Borrower and the
40
Administrative Agent, and if applicable, the assigning Lender (or, in
the case of a Participant, to the Lender from which the related
participation shall have been purchased) on or before the date on
which it becomes a party to this Agreement (or, in the case of a
Participant, on or before the date on which such Participant purchases
the related participation) either:
(A) two duly completed and signed copies of either Internal Revenue
Service Form 1001 (relating to such Non-U.S. Lender and entitling it to a
complete exemption from withholding of U.S. Taxes on all amounts to be
received by such Non-U.S. Lender pursuant to this Agreement and the other
Credit Documents) or Form 4224 (relating to all amounts to be received by
such Non-U.S. Lender pursuant to this Agreement and the other Credit
Documents), or successor and related applicable forms, as the case may be;
or
(B) in the case of a Non-U.S. Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code and that does not comply with
the requirements of clause (A) hereof, (x) a statement in the form of
Exhibit E (or such other form of statement as shall be reasonably requested
by the Borrower from time to time) to the effect that such Non-U.S. Lender
is eligible for a complete exemption from withholding of U.S. Taxes under
Code Section 871(h) or 881(c), and (y) two duly completed and signed copies
of Internal Revenue Service Form W-8 or successor and related applicable
form (it being understood and agreed that no Participant and, without the
prior written consent of the Borrower described in clause (B) of the
proviso to the first sentence of subsection 10.6(c), no Assignee shall be
entitled to deliver any forms or statements pursuant to this clause (B),
but rather shall be required to deliver forms pursuant to clause (A) of
this subsection 2.15(b)).
Further, each Non-U.S. Lender agrees (i) to deliver to the Borrower and the
Administrative Agent, and if applicable, the assigning Lender (or, in the case
of a Participant, to the Lender from which the related participation shall have
been purchased) two further duly completed and signed copies of such Forms 1001
or 4224, as the case may be, or successor and related applicable forms, on or
before the date that any such form expires or becomes obsolete and promptly
after the occurrence of any event requiring a change from the most recent
form(s) previously delivered by it to the Borrower (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) in accordance with applicable U.S. laws and regulations and (ii) in
the case of a Non-U.S. Lender that delivers a statement in the form of Exhibit
E (or such other form of statement as shall have been requested by the
Borrower), to deliver to the Borrower and the Administrative Agent, and if
applicable, the assigning Lender, such statement on an annual basis on the
anniversary of the date on which such Non-U.S. Lender became a party to this
Agreement and to deliver promptly to the Borrower and the Administrative Agent,
and if applicable, the assigning Lender, such additional statements and forms
as shall be reasonably requested by the Borrower from time to time unless, in
any such case, any change in law or regulation has occurred subsequent to the
date such Lender became a party to this Agreement (or in the case of a
Participant, the date on which such Participant purchased the related
participation) which renders all such forms inapplicable or which would prevent
such Lender (or Participant) from properly completing and executing any such
41
form with respect to it and such Lender promptly notifies the Borrower and the
Administrative Agent (or, in the case of a Participant, the Lender from which
the related participation shall have been purchased) if it is no longer able to
deliver, or if it is required to withdraw or cancel, any form or statement
previously delivered by it pursuant to this subsection 2.15(b). Each Non-U.S.
Lender agrees to indemnify and hold harmless the Borrower from and against any
taxes, penalties, interest or other costs or losses (including, without
limitation, reasonable attorneys' fees and expenses) incurred or payable by the
Borrower as a result of the failure of the Borrower to comply with its
obligations to deduct or withhold any U.S. Taxes from any payments made
pursuant to this Agreement to such Non-U.S. Lender or the Administrative Agent
which failure resulted from the Borrower's reliance on any form, statement,
certificate or other information provided to it by such Non-U.S. Lender
pursuant to clause (B) or clause (ii) of this subsection 2.15(b). The Borrower
hereby agrees that for so long as a Non-U.S. Lender complies with this
subsection 2.15(b), the Borrower shall not withhold any amounts from any
payments made pursuant to this Agreement to such Non-U.S. Lender, unless the
Borrower reasonably determines that it is required by law to withhold or deduct
any amounts from any payments made to such Non-U.S. Lender pursuant to this
Agreement. A Non-U.S. Lender shall not be required to deliver any form or
statement pursuant to the immediately preceding sentences in this subsection
2.15(b) that such Non-U.S. Lender is not legally able to deliver (it being
understood and agreed that the Borrower shall withhold or deduct such amounts
from any payments made to such Non-U.S. Lender that the Borrower reasonably
determines are required by law and that payments resulting from a failure to
comply with this paragraph (b) shall not be subject to payment or indemnity by
the Borrower pursuant to subsection 2.15(a)). If any Credit Party other than
the Borrower makes any payment to any Non-U.S. Lender under any Credit
Document, the foregoing provisions of this subsection 2.15 shall apply to such
Non-U.S. Lender and such Credit Party as if such Credit Party were the Borrower
(but a Non-U.S. Lender shall not be required to provide any form or make any
statement to any such Credit Party unless such Non-U.S. Lender has received a
request to do so from such Credit Party and has a reasonable time to comply
with such request).
(c) If a Lender shall become aware that it is entitled to receive
a refund (whether by way of a direct payment or by offset) in respect
of a Non-Excluded Tax paid by the Borrower, which refund, in the good
faith judgment of such Lender, is allocable to such payment made
pursuant to this Section, it shall promptly notify the Borrower of the
availability of such refund and shall, within 30 days after the
receipt of a request from the Borrower, apply for such refund at the
Borrower's sole expense. If any Lender receives such refund (as
described in the preceding sentence), it shall repay the amount of
such refund (together with any interest received thereon) to the
Borrower if all the payments due under this Section has been paid in
full.
2.16. Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day which is not the
42
last day of an Interest Period with respect thereto (but excluding loss of
margin). Such indemnification under this subsection 2.16 may include an amount
equal to the excess, if any, of (i) the amount of interest which would have
accrued on the amount so prepaid, or not so borrowed, converted or continued,
for the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of such Interest Period (or, in the case of
a failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Loans provided for herein (but excluding loss of margin) over
(ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. Each Lender claiming any payment pursuant to this subsection 2.16 shall
do so by giving notice thereof to the Borrower and the Administrative Agent
(showing calculation of the amount claimed in reasonable detail) within 60
Business Days after a failure to borrow, convert or continue Eurodollar Loans,
or to prepay, after notice or after a prepayment of Eurodollar Loans on a day
which is not the last day of an Interest Period therefor. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.17. Replacement of Lenders. If at any time (a) the Borrower becomes
obligated to pay additional amounts described in subsections 2.13, 2.14 or 2.15
as a result of any condition described in such subsections, (b) any Lender
ceases to make Eurodollar Loans pursuant to subsection 2.13, (c) any Lender
becomes insolvent and its assets become subject to a receiver, liquidator,
trustee, custodian or other Person having similar powers or (d) any Lender
becomes a "Nonconsenting Lender" (hereinafter defined), then the Borrower may,
on five (5) Business Days' prior written notice to the Administrative Agent and
such Lender, replace such Lender by causing such Lender to (and such Lender
shall) assign pursuant to subsection 10.6 all of its rights and obligations
under this Agreement to a Lender or other entity selected by the Borrower and
acceptable to the Administrative Agent for a purchase price equal to the
outstanding principal amount of such Lender's Loans and all accrued interest
and fees and other amounts payable hereunder (including amounts payable under
subsection 2.16 as though such Loans were being paid instead of being
purchased); provided that (i) the Borrower shall have no right to replace the
Administrative Agent, (ii) neither the Administrative Agent nor any Lender
shall have any obligation to the Borrower to find a replacement Lender, (iii)
in the event of a replacement of a Nonconsenting Lender or a Lender to which
the Borrower becomes obligated to pay additional amounts under one of the
subsections described in clause (a) above, in order for the Borrower to be
entitled to replace such a Lender, such replacement must take place no later
than 180 days after (A) the date the Nonconsenting Lender shall have notified
the Borrower and the Administrative Agent of its failure to agree to any
requested consent, waiver or amendment or (B) the Lender shall have demanded
payment of additional amounts under one of the subsections described in clause
(a) above, as the case may be, and (iv) in no event shall the Lender hereby
replaced be required to pay or surrender to its replacement Lender or other
entity any of the fees received by such Lender hereby replaced pursuant to this
Agreement. In the case of a replacement of a Lender to which the Borrower
becomes obligated to pay additional amounts pursuant to this subsection 2.17,
the Borrower shall pay such additional amounts to such Lender prior to such
Lender being replaced and the payment of such additional amounts shall be a
43
condition to the replacement of such Lender. In the event that (x) the Borrower
or the Administrative Agent has requested the Lenders to consent to a departure
or waiver of any provisions of the Credit Documents or to agree to any
amendment thereto or consent to the Extension Option, (y) the consent, waiver
or amendment in question requires the agreement of all Lenders in accordance
with the terms of subsection 10.1 or relates to a request to exercise the
Extension Option under subsection 2.5(a) and (z) the Required Lenders have
agreed to such consent, waiver or amendment, then any Lender who does not agree
to such consent, waiver or amendment shall be deemed a "Nonconsenting Lender."
2.18. Certain Fees. The Borrower agrees to pay to the Administrative
Agent, for its own account, the non-refundable fees at the times and in the
amounts as set forth in that certain fee letter between the Administrative
Agent and the Borrower dated on or about the date hereof.
2.19. Certain Rules Relating to the Payment of Additional Amounts. (a)
Upon the request, and at the expense, of the Borrower, each Lender to
which the Borrower is required to pay any additional amount pursuant
to subsection 2.14 or 2.15 shall reasonably afford the Borrower the
opportunity to contest, and reasonably cooperate with the Borrower in
contesting, the imposition of any Non-Excluded Taxes or other amounts
giving rise to such payment; provided that (i) such Lender shall not
be required to afford the Borrower the opportunity to so contest
unless the Borrower shall have confirmed in writing to such Lender its
obligation to pay such amounts pursuant to this Agreement and (ii) the
Borrower shall reimburse such Lender for its reasonable attorneys' and
accountants' fees and disbursements incurred in so cooperating with
the Borrower in contesting the imposition of such Non-Excluded Taxes.
(b) Each Lender agrees that if it makes any demand for payment
under subsection 2.14 or 2.15(a), or if any adoption or change of the
type described in subsection 2.13 shall occur with respect to it, it
will use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions and so long as such efforts would
not be disadvantageous to it, as determined in its reasonable
discretion) to designate a different lending office if the making of
such a designation would allow the Lender to continue to make and
maintain Eurodollar Loans and would reduce or obviate the need for the
Borrower to make payments under subsection 2.14 or 2.15(a), or would
eliminate or reduce the effect of any adoption or change described in
subsection 2.13.
SECTION 3. LETTERS OF CREDIT
3.1. L/C Commitment. (a) Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the Revolving 364
Day Lenders set forth in subsection 3.4(a), agrees to issue letters of
credit ("Letters of Credit") for the account of the Borrower on any
Business Day during the Revolving 364 Day Commitment Period in such
form as may be approved from time to time by the Issuing Lender;
provided that the Issuing Lender shall have no obligation to
44
issue any Letter of Credit if, after giving effect to such issuance,
(x) the L/C Obligations would exceed the L/C Commitment or (y) the
Available Commitment with respect to Revolving 364 Day Loans of all
Revolving 364 Day Lenders then outstanding would be less than zero.
(b) Each Domestic L/C shall (i) be denominated in Dollars, (ii)
be a Performance L/C or a Financial L/C issued to support obligations
of the Borrower or any of its Subsidiaries, contingent or otherwise,
or be a commercial letter of credit for the purchase of goods and
(iii) expire no later than the fifth Business Day prior to the
Revolving 364 Day Termination Date.
(c) Each Foreign L/C shall (i) be denominated in an Alternative
Currency, (ii) be a Performance L/C or a Financial L/C issued to
support obligations of the Borrower or any of its Subsidiaries,
contingent or otherwise, or be a commercial letter of credit for the
purchase of goods, and (iii) expire no later than the fifth Business
Day prior to the Revolving 364 Day Termination Date. For purposes of
this Agreement, the amount deemed outstanding under each Foreign L/C
at any time, and the amount of the Borrower's Reimbursement
Obligations under subsection 3.5 for any amounts paid by the Issuing
Lender in connection with any Foreign L/C, shall be the Dollar
Equivalent, as determined on the most recent Calculation Date, of (x)
such Letter of Credit or (y) the Reimbursement Amount (as defined in
Subsection 3.5(a)), as applicable.
(d) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, Domestic L/Cs shall
also be subject to the laws of the State of New York.
(e) The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if (i) such issuance would
conflict with, or cause the Issuing Lender or any L/C Participant to
exceed any limits imposed by, any applicable Requirement of Law or any
policies of the Issuing Lender or (ii) in the case of any Foreign L/C,
it has determined that it cannot provide such Letter of Credit in the
applicable Alternative Currency.
3.2. Procedure for Issuance of Letters of Credit. The Borrower may
from time to time request that the Issuing Lender issue a Letter of Credit at
any time prior to the fifth Business Day prior to the Revolving 364 Day
Termination Date by delivering to the Issuing Lender with a copy to the
Administrative Agent at its address for notices specified herein an Application
therefor, completed to the satisfaction of the Issuing Lender, and such other
certificates, documents and other papers and information as the Issuing Lender
may reasonably request. Upon receipt of any Application, the Issuing Lender
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the
45
original of such Letter of Credit to the beneficiary thereof or as otherwise
may be agreed by the Issuing Lender and the Borrower. The Issuing Lender shall
furnish a copy of such Letter of Credit to the Borrower and the Administrative
Agent (with copies for each Lender) promptly following the issuance thereof.
3.3. Fees, Commissions and Other Charges. (a) The Borrower shall pay
to the Administrative Agent, for the account of the Issuing Lender and
the L/C Participants, a letter of credit fee with respect to each
Letter of Credit, computed for the period from and including the date
of issuance of such Letter of Credit to the expiration date of such
Letter of Credit at a rate per annum equal to (i) in the case of any
such Letter of Credit issued as a Performance L/C, one-half (1/2) of
the Applicable Margin then in effect for Eurodollar Loans, of the
Dollar Equivalent of the aggregate face amount of such Letters of
Credit outstanding and (ii) in the case of any other Letter of Credit
(except for the type described in clause (i) above), the Applicable
Margin then in effect for Eurodollar Loans, of the Dollar Equivalent
of the aggregate face amount of such Letters of Credit outstanding,
payable, in each such case, in arrears on each L/C Fee Payment Date
and on the Termination Date; provided, that, with respect to any
Foreign L/C, the Dollar Equivalent of the face amount of such Letter
of Credit shall be recalculated on each Calculation Date during the
period that such Letter of Credit is outstanding. Such fees shall be
payable to the Administrative Agent to be shared ratably among the
Revolving 364 Day Lenders in accordance with their respective
Commitment Percentages with respect to Revolving 364 Day Loans. In
addition, the Borrower shall pay to the Issuing Lender, for its sole
account, a fee equal to 0.1250% per annum of the Dollar Equivalent of
the aggregate face amount of all outstanding Letters of Credit payable
quarterly in arrears on each L/C Fee Payment Date and on the Revolving
364 Day Termination Date; provided, that, with respect to any Foreign
L/C, the Dollar Equivalent of the face amount of such Letter of Credit
shall be recalculated on each Calculation Date during the period that
such Letter of Credit is outstanding.
(b) In addition to the foregoing fees and commissions, the
Borrower shall pay or reimburse the Issuing Lender for such normal and
customary costs and expenses as are incurred or charged by the Issuing
Lender in issuing, effecting payment under, amending or otherwise
administering any Letter of Credit.
(c) The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Lender and the relevant L/C
Participants all fees and commissions received by the Administrative
Agent for their respective accounts pursuant to this subsection.
3.4. L/C Participation. (a) The Issuing Lender irrevocably agrees to
sell and hereby sells to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit hereunder, each L/C
Participant irrevocably agrees to accept and purchase and hereby
accepts and purchases from the Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account
and risk
46
an undivided interest equal to such L/C Participant's Commitment
Percentage with respect to Revolving 364 Day Loans from time to time
in effect in the Issuing Lender's obligations and rights under each
Letter of Credit issued hereunder and the amount of each draft paid by
the Issuing Lender thereunder. Each L/C Participant unconditionally
and irrevocably agrees with the Issuing Lender that, if a draft is
paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower in accordance with the terms of
this Agreement or any such reimbursement payment received by the
Issuing Lender is avoided or required to be returned in accordance
with applicable law, such L/C Participant shall pay to the Issuing
Lender upon demand in Dollars at the Issuing Lender's address for
notices specified herein an amount equal to such L/C Participant's
then Commitment Percentage with respect to Revolving 364 Day Loans of
the Dollar Equivalent of the amount of such draft (determined on the
date such draft is paid), or any part thereof, which is not so
indefeasibly reimbursed; provided that, if such demand is made prior
to 11:00 A.M., New York City time, on a Business Day, such L/C
Participant shall make such payment to the Issuing Lender prior to the
end of such Business Day and otherwise such L/C Participant shall make
such payment on the next succeeding Business Day.
(b) If any amount required to be paid by any L/C Participant to
the Issuing Lender pursuant to subsection 3.4(a) in respect of any
portion of any payment made by the Issuing Lender under any Letter of
Credit is paid to the Issuing Lender within three Business Days after
the date such payment is due, such L/C Participant shall pay to the
Issuing Lender on demand an amount equal to the product of (i) such
amount, times (ii) the daily average Federal Funds Effective Rate, as
quoted by the Issuing Lender, during the period from and including the
date such payment is required to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction
the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. If any such amount
required to be paid by any L/C Participant pursuant to subsection
3.4(a) is not in fact made available to the Issuing Lender by such L/C
Participant within three Business Days after the date such payment is
due, the Issuing Lender shall be entitled to recover from such L/C
Participant, on demand, such amount with interest thereon calculated
from such due date at the rate per annum applicable to Base Rate Loans
hereunder. A certificate of the Issuing Lender submitted to any L/C
Participant with respect to any amounts owing under this subsection
shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C
Participant its pro rata share of such payment in accordance with
subsection 3.4(a), the Issuing Lender receives any payment related to
such Letter of Credit (whether directly from the Borrower or
otherwise, including proceeds of collateral applied thereto by the
Issuing Lender), or any payment of interest on account thereof, the
Issuing Lender will, if such payment is received prior to 11:00 A.M.,
New York City time, on a Business Day, distribute to such L/C
Participant its pro rata share thereof prior to
47
the end of such Business Day and otherwise the Issuing Lender
will distribute such payment on the next succeeding Business Day;
provided, however, that in the event that any such payment received by
the Issuing Lender and distributed to the L/C Participants shall be
required to be returned by the Issuing Lender, each such L/C
Participant shall return to the Issuing Lender the portion thereof
previously distributed by the Issuing Lender to it.
3.5. Reimbursement Obligation of the Borrower. (a) The Borrower agrees
to reimburse the Issuing Lender on the same Business Day on which the
Issuing Lender notifies the Borrower of the date and amount of a draft
presented under any Letter of Credit and paid by the Issuing Lender
provided such notice is received by 1:00 P.M., New York City time, on
such Business Day, and the next Business Day if such notice is
received after such time. The Issuing Lender shall provide notice to
the Borrower on each Business Day on which a draft is presented
indicating the Dollar Equivalent of the amount of (i) such draft so
paid (and, in the case of a Foreign L/C, the amount of such draft so
paid stated in the applicable Alternative Currency) and (ii) any
taxes, fees, charges or other costs or expenses incurred by the
Issuing Lender in connection with such payment ((i) and (ii)
collectively with any interest accruing pursuant to paragraph (b)
below, the "Reimbursement Amount"). Each such payment shall be made to
the Issuing Lender at its address for notices specified herein in
lawful money of the United States of America and in immediately
available funds; provided, that, with respect to any Reimbursement
Obligations of the Borrower arising from the presentment to the
Issuing Lender of a draft under a Foreign L/C, the Borrower may make
payment in the applicable Alternative Currency if such payment is
received by the Issuing Lender on the date such draft is paid by the
Issuing Lender.
(b) Interest shall be payable on the Dollar Equivalent of any and
all amounts remaining unpaid by the Borrower under this subsection
from the date a draft presented under any Letter of Credit is paid by
the Issuing Lender until payment in full (i) at the rate which would
be payable on any Loans that are Base Rate Loans at such time until
such payment is required to be made pursuant to subsection 3.5(a), and
(ii) thereafter, at the rate which would be payable on any Loans that
are Base Rate Loans at such time which were then overdue.
(c) For the avoidance of doubt, subject to the provisos in the
third sentence of subsection 2.12(a) and the last sentence of
subsection 3.5(a) of this Agreement, all payments due from the
Borrower hereunder in respect of Foreign L/Cs (and Reimbursement
Obligations in connection therewith) shall be made in Dollars as
provided in subsection 2.12 of this Agreement.
3.6. Obligations Absolute. (a) The Borrower's obligations under
subsection 3.5(a) shall be absolute and unconditional under any and
all circumstances and irrespective of any set-off, counterclaim or
defense to payment which the Borrower may have or have had against the
Issuing Lender, any L/C Participant or any beneficiary of a Letter of
Credit.
48
(b) The Borrower also agrees with the Issuing Lender that the
Issuing Lender shall not be responsible for, and the Borrower's
Reimbursement Obligations under subsection 3.5(a) shall not be
affected by, among other things, (i) the validity or genuineness of
documents or of any endorsements thereon, even though such documents
shall in fact prove to be invalid, fraudulent or forged (unless the
Issuing Lender has knowledge of such invalidity, fraud or forgery),
(ii) any dispute between or among the Borrower and any beneficiary of
any Letter of Credit or any other party to which such Letter of Credit
may be transferred, or (iii) any claims whatsoever of the Borrower
against any beneficiary of such Letter of Credit or any such
transferee.
(c) Neither the Issuing Lender nor any L/C Participant shall be
liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions
caused by the Issuing Lender's gross negligence or willful misconduct.
(d) The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross
negligence or willful misconduct and in accordance with the standards
of care specified in the Uniform Commercial Code of the State of New
York, shall be binding on the Borrower and shall not result in any
liability of the Issuing Lender or any L/C Participant to the
Borrower.
3.7. Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Lender shall promptly notify
the Borrower and the Administrative Agent of the date and the Dollar Equivalent
of the amount thereof (and, in the case of a Foreign L/C, the amount thereof
stated in the applicable Alternative Currency). If any draft shall be presented
for payment under any Letter of Credit, the responsibility of the Issuing
Lender to the Borrower in connection with such draft shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment appear on their face to be
in conformity with such Letter of Credit.
3.8. Application. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 3, the provisions of this Section 3 shall govern and control.
3.9. Determination of Exchange Rate. On each Calculation Date with
respect to each outstanding Foreign L/C, the Issuing Lender shall determine the
Exchange Rate as of such Calculation Date with respect to the applicable
Alternative Currency and shall promptly notify the Administrative Agent and the
Borrower thereof and of the Dollar Equivalent of all Foreign L/Cs outstanding
on such Calculation Date. The Exchange Rate so determined shall become
effective on such Calculation Date and shall remain effective until the next
succeeding Calculation Date.
49
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents, the Issuing Lender, and the Lenders to enter
into this Agreement and to make the Loans and issue or participate in the
Letters of Credit, the Borrower hereby represents and warrants to the Agents,
the Issuing Lender, and each Lender that:
4.1. Financial Condition.
(a) The following financial statements concerning Borrower and
its Subsidiaries have been delivered to the Agents and the Lenders and
have been prepared in accordance with GAAP consistently applied
throughout the periods covered (except as disclosed therein and
except, with respect to unaudited financial statements, for the
absence of footnotes and normal year-end audit adjustments) and
present fairly in all material respects the financial position of the
Persons covered thereby as at the dates thereof and the results of
their operations and cash flows for the periods then ended:
(i) The audited consolidated balance sheets at December 31, 1997 and
the related statements of income and cash flows of Borrower and its
Subsidiaries for the fiscal year then ended, certified by Price Waterhouse
Coopers L.L.P.
(ii) The unaudited condensed consolidated balance sheet(s) at
March 31, 1998 and the related statement(s) of income and cash flows of
Borrower and its Subsidiaries for the fiscal quarter then ended.
(b) The unaudited pro forma consolidated balance sheet of the
Borrower and its consolidated Subsidiaries which has been delivered
pursuant to subsection 5.1(o) has been prepared based on the best
information available to the Borrower as of the date of delivery
thereof and presents fairly on a pro forma basis the estimated
financial position of the Borrower and its consolidated Subsidiaries,
as at June 30, 1998, adjusted to give effect to the acquisition of SPD
Technologies.
4.2. No Change. Since December 31, 1997 there has been no development,
event or circumstance which has had or could reasonably be expected to have a
Material Adverse Effect.
4.3. Corporate Existence; Compliance with Law. Each of Holdings, the
Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is, or will be on or before the
date set forth in subsection 6.12, duly qualified as a foreign corporation and
in good standing under the laws of each jurisdiction where its ownership, lease
or operation of property or the conduct of its business requires such
qualification, except to the extent that the failure to so qualify could not,
in the aggregate, reasonably be expected to have a Material Adverse Effect and
(d) is in
50
compliance with all Requirements of Law except to the extent that the failure
to comply therewith could not, in the aggregate, reasonably be expected to have
a Material Adverse Effect.
4.4. Corporate Power; Authorization; Enforceable Obligations. Each of
Holdings, the Borrower and its Subsidiaries has the corporate power and
authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party and, in the case of the Borrower, to borrow
hereunder and has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Agreement and to authorize the
execution, delivery and performance of such Credit Documents. No consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the
borrowings hereunder or with the execution, delivery, performance, validity or
enforceability of the Credit Documents to which the Borrower and each other
Credit Party is a party, except those referred to in subsections 4.17 and 6.13
and those set forth on Schedule 4.4. This Agreement has been, and each other
Credit Document will be, duly executed and delivered on behalf of the Borrower
and each other Credit Party. This Agreement constitutes, and each other Credit
Document to which it is a party when executed and delivered will constitute, a
legal, valid and binding obligation of each Credit Party thereto enforceable
against each such Credit Party, as the case may be, in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered
in a proceeding in equity or at law) and an implied covenant of good faith and
fair dealing.
4.5. No Legal Bar. Except as set forth on Schedule 4.5 or as could not
reasonably be expected to, individually or in the aggregate, have a Material
Adverse Effect, the execution, delivery and performance of each Credit
Document, the borrowing and use of the proceeds of the Loans and the
consummation of the transactions contemplated by the Credit Documents: (a) will
not violate any Requirement of Law or any Contractual Obligation applicable to
or binding upon Holdings, the Borrower or any Subsidiary of the Borrower or any
of their respective properties or assets and (b) will not result in the
creation or imposition of any Lien on any of its properties or assets pursuant
to any Requirement of Law applicable to it or any of its Contractual
Obligations, except for the Liens arising under the Pledge Agreements.
4.6. No Material Litigation. Except as set forth on Schedule 4.6, no
litigation by, investigation by, or proceeding of or before any arbitrator or
any Governmental Authority is pending or, to the knowledge of the Borrower,
overtly threatened by or against the Borrower or any of its Subsidiaries or
against any of its or their respective properties or revenues with respect to
any Credit Document or any of the transactions contemplated hereby or thereby
or which could reasonably be expected to have a Material Adverse Effect.
4.7. No Default. Neither Holdings, the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a
Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
51
4.8. Ownership of Property; Liens. Each of Holdings, the Borrower and
its Subsidiaries (i) has good record and insurable title in fee simple to all
the real property listed on Schedule 4.8, (ii) has good record and insurable
title in fee simple to, or a valid leasehold interest in, all its other
material real property, (iii) has good title to, or a valid leasehold interest
in, all its other material property and (iv) none of such property in clauses
(i) through (iii) is or shall be subject to any Lien except as permitted by
subsection 7.3.
4.9. Intellectual Property. Holdings, the Borrower and each of its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those the failure to own or license
which could not reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). To the best of the Borrower's knowledge, and except
as set forth on Schedule 4.9, no claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, nor does the
Borrower know of any valid basis for any such claim which could reasonably be
expected to have a Material Adverse Effect. The use of such Intellectual
Property by Holdings, the Borrower and its Subsidiaries does not infringe on
the rights of any Person, except for such claims and infringements that, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
4.10. Taxes. Except as set forth on Schedule 4.10, each of Holdings,
the Borrower and its Subsidiaries has filed or caused to be filed all material
tax returns which, to the knowledge of the Borrower, are required to be filed
and has paid all taxes shown to be due and payable on said returns or on any
assessments made against it or any of its property and all other material
taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of Holdings, the Borrower or its Subsidiaries, as the case may be); no
tax Lien has been filed, and, to the knowledge of the Borrower, no claim is
being asserted, with respect to any such tax, fee or other charge.
4.11. Federal Regulations. No part of the proceeds of any Loans will
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect.
4.12. ERISA. The Borrower has provided to the Agents a true and
correct copy of all Agreements, arrangements and understandings relating to the
transfer of Plans from the Seller to the Borrower (the "Transfer Agreements").
The Transfer Agreements are in full force and effect and have not been waived
or modified without the consent of the Agents (which shall not be unreasonably
withheld) except to the extent any such waiver or modification, singly or in
the aggregate, could not be reasonably expected to have a Material Adverse
Effect. Except as could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect, no Reportable Event has occurred
with respect to any Single Employer Plan, all contributions required to be made
with respect to a Plan have been timely made; none of the Borrower or any of
its Subsidiaries nor any Commonly Controlled Entity has incurred any
52
material liability to or on account of a Plan pursuant to Section 409, 502(i),
502(1), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section
401(a)(29), 4971, 4975 or 4980 of the Code or expects to incur any liability
(including any indirect, contingent or secondary liability) under any of the
foregoing Sections with respect to any Plan; no termination or, or institution
of proceedings to terminate or appoint a trustee to administer, a Single
Employer Plan has occurred; and each Plan has complied in all material respects
with the applicable provisions of ERISA and the Code (except that with respect
to any Multiemployer Plan, such representation is deemed made only to the
knowledge of the Borrower). No "accumulated funding deficiency" (within the
meaning of Section 412 of the Code or Section 302 of ERISA), extension of any
amortization period (within the meaning of Section 412 of the Code) or Lien in
favor of the PBGC or a Plan has arisen or has occurred during the five-year
period prior to the date on which this representation is made or deemed made
with respect to any Single Employer Plan. As of the last annual valuation date
prior to the date on which this representation is made or deemed made, the fair
market value of the assets available for benefits under each Single Employer
Plan did not exceed the actuarial present value of all accumulated benefit
obligations under such Plan by more than $20,000,000, all as determined in
accordance with Statement of Financial Accounting Standards No. 87. Neither the
Borrower nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan for which there is any outstanding
liability, and neither the Borrower nor any Commonly Controlled Entity would
become subject to any liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made in an amount which would be reasonably
likely to have a Material Adverse Effect. To the best knowledge of the
Borrower, no such Multiemployer Plan is in Reorganization or Insolvent.
4.13. Investment Company Act; Other Regulations. None of the Borrower
or any of its Subsidiaries is an "investment company," or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended. None of the Borrower or any of its
subsidiaries is not subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board of Governors of the Federal
Reserve System) which limits its ability to incur Indebtedness.
4.14. Subsidiaries. The Subsidiaries of the Borrower and their
respective jurisdictions of incorporation shall be as set forth on Schedule
4.14.
4.15. Purpose of Loans. The proceeds of the Loans shall be used by the
Borrower (i) to pay fees and expenses related to the preparation and
negotiation of this Agreement and the other Credit Documents and (ii) for
general corporate and working capital purposes in the ordinary course of
business of the Borrower and its Subsidiaries, including, without limitation,
the making of Investments permitted under subsection 7.9.
4.16. Environmental Matters.
Except insofar as any exception to any of the following, or any
aggregation of such exceptions, is not reasonably likely to result in a
Material Adverse Effect:
53
(a) The facilities and properties owned, leased or operated
Holdings, by the Borrower or any of its Subsidiaries (the
"Properties") do not contain, and have not previously contained, any
Materials of Environmental Concern in amounts or concentrations which
(i) constitute or constituted a violation of, or (ii) could reasonably
be expected to give rise to liability under, any applicable
Environmental Law.
(b) None of Holdings, the Borrower nor any of its Subsidiaries
has received any written notice of violation, alleged violation,
non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with
regard to any of the Properties or the Business, nor does the Borrower
have knowledge or reason to believe that any such notice will be
received or is being threatened.
(c) Materials of Environmental Concern have not been transported
or disposed of from the Properties in violation of, or in a manner or
to a location which could reasonably be expected to give rise to
liability under, any applicable Environmental Law, nor have any
Materials of Environmental Concern been generated, treated, stored or
disposed of at, on or under any of the Properties in violation of, or
in a manner that could reasonably be expected to give rise to
liability under, any applicable Environmental Law.
(d) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Borrower, threatened,
under any Environmental Law to which Holdings, the Borrower or any
Subsidiary is or, to the knowledge of the Borrower, will be named as a
party or with respect to the Properties or the Business, nor are there
any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to
the Properties or the Business.
(e) There has been no release or threat of release of Materials
of Environmental Concern at or from the Properties, or arising from or
related to the operations of Holdings, the Borrower or any Subsidiary
in connection with the Properties or otherwise in connection with the
Business, in violation of or in amounts or in a manner that could
reasonably give rise to liability under any applicable Environmental
Laws.
(f) The Properties and all operations at the Properties are in
compliance, and have in the last 3 years been in compliance, in all
material respects with all applicable Environmental Laws, and there is
no contamination at, under or about the Properties or violation of any
applicable Environmental Law with respect to the Properties or the
business operated by Holdings, the Borrower or any of its Subsidiaries
(the "Business") which could materially interfere with the continued
operation of the Properties or materially impair the fair saleable
value thereof.
54
(g) Holdings, the Borrower and its Subsidiaries hold and are in
compliance with all Environmental Permits necessary for their
operations.
4.17. Collateral Documents. Upon execution and delivery thereof by the
parties thereto, each Pledge Agreement will be effective to create in favor of
the Administrative Agent, for the ratable benefit of the Lenders, a legal,
valid and enforceable security interest in the pledged stock described therein
and, when stock certificates representing or constituting the pledged stock
described therein are delivered to the Administrative Agent, together with
undated stock powers executed in blank therefor, such security interest shall,
subject to the existence of Permitted Liens, constitute a perfected first lien
on, and security interest in, all right, title and interest of the pledgor
party thereto in the pledged stock described therein.
4.18. Accuracy and Completeness of Information. No fact is known to
Holdings, the Borrower or any of its Subsidiaries which has had or could
reasonably be expected to have a Material Adverse Effect, which has not been
disclosed to the Lenders by Holdings, the Borrower or its Subsidiaries in
writing prior to the date hereof. Neither Holdings, the Borrower nor any
Subsidiary of the Borrower is aware of any material liability of the Borrower
or any of its Subsidiaries which is not fully disclosed in the most recent
financial statements delivered to the Agents and Lenders pursuant to
subsections 4.1 and 6.1 hereto.
4.19. Labor Matters. There are no strikes pending or, to the
Borrower's knowledge, overtly threatened against Holdings, the Borrower or any
of its Subsidiaries which, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect. The hours worked and payments
made to employees of Holdings, the Borrower and each of its Subsidiaries (and
their predecessors) have not been in violation of the Fair Labor Standards Act
or any other applicable Requirement of Law, except to the extent such
violations could not, or in the aggregate, be reasonably expected to have a
Material Adverse Effect.
SECTION 5. CONDITIONS PRECEDENT
5.1. Conditions to Initial Loans. The agreement of each Lender to make
the initial extension of credit requested to be made by it is subject to the
satisfaction, immediately prior to or concurrently with the making of such
extension of credit (including the making of any Loan or the issuance of any
Letter of Credit) on the Closing Date, of the following conditions precedent:
(a) Credit Documents. The Administrative Agent shall have
received (i) this Agreement, (ii) the Guarantees and (iii) the Pledge
Agreements, in each case executed, duly acknowledged and delivered by
duly authorized officers of each party thereto, with a counterpart or
a conformed copy for each Lender. Notwithstanding the foregoing, no
Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be
required to execute a Subsidiary Guarantee or Subsidiary Pledge
Agreement, and no more than 65% of the capital stock of or equity
interests in any Foreign Subsidiary of the Borrower or any of its
Subsidiaries if more than 65% of the assets of such Subsidiary are
securities of foreign
55
companies (such determination to be made on the basis of fair
market value), shall be required to be pledged hereunder.
(b) Fees and Expenses. The Agents, the Arrangers and the Lenders
shall have received all fees, expenses and other consideration
required to be paid on or before the Closing Date and all attorneys
fees and disbursements incurred by the Agents in connection with this
Agreement shall have been paid on or before the Closing Date.
(c) Good Standing Certificates. The Administrative Agent shall
have received certificates of good standing for each Credit Party
issued by the Secretary of State (or other relevant governmental
officers) of the jurisdiction of incorporation of each Credit Party.
(d) Consents, Authorizations and Filings, Etc. All consents,
authorizations and filings, if any, required in connection with the
execution, delivery and performance by the Credit Parties, and the
validity and enforceability against the Credit Parties, of the Credit
Documents to which any of them is a party, shall have been obtained or
made, and such consents, authorizations and filings shall be in full
force and effect, except such consents, authorizations and filings,
the failure to obtain which would not have a Material Adverse Effect.
(e) Insurance. The Lenders shall have received (i) a reasonably
satisfactory schedule describing all insurance maintained by the
Borrower and its Subsidiaries pursuant to subsection 6.5, and (ii)
binders (or other customary evidence as to the obtaining and
maintenance by the Borrower and its Subsidiaries of such insurance)
for each policy set forth on such schedule insuring against casualty
and other usual and customary risks.
(f) Litigation. On the Closing Date, there shall be no actions,
suits or proceedings pending or threatened against any Credit Party
(a) with respect to this Agreement or any other Credit Document or any
Transaction Document or the transactions contemplated hereby or
thereby or (b) which the Agents or the Required Lenders shall
determine could reasonably be expected to have a Material Adverse
Effect.
(g) Borrowing Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of the
Borrower, dated the Closing Date, substantially in the form of Exhibit
D, with appropriate insertions and attachments, reasonably
satisfactory in form and substance to the Administrative Agent,
executed by the President or any Vice President and the Secretary or
any Assistant Secretary of the Borrower.
(h) Corporate Proceedings of the Borrower. The Administrative
Agent shall have received, with a counterpart for each Lender, a copy
of the resolutions, in form and substance reasonably satisfactory to
the Administrative Agent, of the
56
Board of Directors of the Borrower authorizing (i) the execution,
delivery and performance of the Credit Documents to which it is a
party, (ii) the borrowings contemplated hereunder, and (iii) the stock
pledges pursuant to the Borrower Pledge Agreement, certified by the
Secretary or an Assistant Secretary of the Borrower as of the Closing
Date, which certificate shall be in form and substance reasonably
satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked
or rescinded.
(i) Borrower Incumbency Certificate. The Administrative Agent
shall have received, with a counterpart for each Lender, a Certificate
of the Borrower, dated the Closing Date, as to the incumbency and
signature of the officers of the Borrower executing any Credit
Document reasonably satisfactory in form and substance to the
Administrative Agent, executed by the President or any Vice President
and the Secretary or any Assistant Secretary of the Borrower.
(j) Corporate Proceedings of Other Credit Parties. The
Administrative Agent shall have received, with a counterpart for each
Lender, a copy of the resolutions, in form and substance satisfactory
to the Administrative Agent, of the Board of Directors of each Credit
Party (other than the Borrower) authorizing (i) the execution,
delivery and performance of the Credit Documents to which it is a
party, and (ii) the granting by it of the Liens created pursuant to
the Pledge Agreements to which it is a party, certified by the
Secretary or an Assistant Secretary of each such Credit Party as of
the Closing Date, which certificate shall be in form and substance
reasonably satisfactory to the Administrative Agent and shall state
that the resolutions thereby certified have not been amended,
modified, revoked or rescinded.
(k) Credit Party Incumbency Certificates. The Administrative
Agent shall have received, with a counterpart for each Lender, a
certificate of each Credit Party (other than the Borrower), dated the
Closing Date, as to the incumbency and signature of the officers of
such Credit Party executing any Credit Document, reasonably
satisfactory in form and substance to the Administrative Agent,
executed by the President or any Vice President and the Secretary or
any Assistant Secretary of each such Credit Party.
(l) Corporate Documents. The Administrative Agent shall have
received, with a counterpart for each Lender, true and complete copies
of the certificate of incorporation and by-laws of each Credit Party,
certified as of the Closing Date as complete and correct copies
thereof by the Secretary or an Assistant Secretary of the such Credit
Party.
(m) Legal Opinions. The Administrative Agent shall have received,
with a counterpart for each Lender the executed legal opinion of each
of Xxxxxxx Xxxxxxx and Xxxxxxxx, special counsel to the Credit
Parties, and Xxxxxxxxxxx X. Xxxxxxx, Vice President - General Counsel
and Secretary of the Borrower and
57
counsel to the other Credit Parties, substantially in the form of
Exhibits C-1 and C-2, respectively. Each such legal opinion shall
cover such other matters incident to the transactions contemplated by
this Agreement as the Agents may reasonably require.
(n) Pledged Stock; Stock Powers. The Administrative Agent shall
have received the certificates representing the shares pledged
pursuant to each of the Pledge Agreements together with an undated
stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof.
(o) Pro Forma Financials. The Lenders shall have received a
reasonably satisfactory unaudited pro forma consolidated balance sheet
of the Borrower and its Subsidiaries as of June 30, 1998 (after the
issuance of the New Subordinated Debt and the consummation of the New
IPO) which shall present fairly, in all material respects, on a pro
forma basis, the estimated financial condition of the Borrower and its
Subsidiaries as of such date, as adjusted to give effect to the
acquisition by the Borrower of SPD Technologies pursuant to the SPD
Technologies Acquisition Agreement.
(p) Projections. Each Lender shall have received financial
projections of the Borrower in form and substance reasonably
satisfactory to the Agents prepared by the Borrower.
(q) No Default. No Default or Event of Default shall have
occurred and be continuing.
(r) Facility A Credit Agreement. All conditions set forth in
clauses (a) through (q) of subsection 5.1 of the Facility A Credit
Agreement shall have been satisfied.
5.2. Conditions to Each Extension of Credit. The agreement of each
Lender to make any extension of credit (including the issuance of any Letter of
Credit) requested to be provided by it on any date (including, without
limitation, its initial Loan and Letter(s) of Credit) is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations
and warranties made by any Credit Party in or pursuant to the Credit
Documents shall be true and correct in all material respects on and as
of such date as if made on and as of such date, except for any
representation and warranty which is expressly made as of an earlier
date, which representation and warranty shall have been true and
correct in all material respects as of such earlier date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or will occur or exist after
giving effect to the extensions of credit requested to be made on such
date. Borrower shall not be in violation of Section 4.09 {Incurrence
of Indebtedness and Issuance of Preferred
58
Stock} of either the Indenture or the New Subordinated Debt
Indenture on such date nor will such a violation occur or exist after
giving effect to the extensions of credit requested to be made on such
date.
(c) Additional Matters. All corporate and other proceedings, and
all documents, instruments and other legal matters in connection with
the transactions contemplated by this Agreement and the other Credit
Documents shall be satisfactory in form and substance to the Agents,
and the Administrative Agent shall have received such other documents
and legal opinions in respect of any aspect or consequence of the
transactions contemplated hereby or thereby as it shall reasonably
request.
Each borrowing by, and each Letter of Credit issued on behalf of, the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date thereof that the conditions contained in this subsection have been
satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect or any amount is owing to any Lender or any Agent hereunder or under any
other Credit Document, the Borrower shall and (except in the case of delivery
of financial information, reports and notices) shall cause each of its
Subsidiaries to:
6.1. SEC Filings. The Borrower will file on a timely basis with the
SEC, to the extent such filings are accepted by the SEC and whether or not the
Borrower has a class of securities registered under the Exchange Act, the
annual reports, quarterly reports (including with respect to the fourth quarter
of each fiscal year) and other documents that the Borrower would be required to
file if the Borrower were subject to section 13(a) or 15(d) of the Exchange
Act. The Borrower will also be required (i) to deliver to the Administrative
Agent and each Lender, copies of such reports and documents within five days
after the date on which the Borrower files such reports and documents with the
SEC or the date on which the Borrower would be required to file such reports
and documents if the Borrower were so required and (ii) if filing such reports
and documents with the SEC is not accepted by the SEC or is prohibited under
the Exchange Act, to promptly notify the Administrative Agent in writing of the
occurrence of any such event and to supply at the Borrower's cost copies of
such reports and documents to the Administrative Agent and any Lender upon
request.
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2. Certificates; Other Information. Furnish to the Administrative
Agent with copies for each Lender:
59
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1, a certificate of the independent
certified public accountants reporting on such financial statements
stating that, in performing their audit, nothing came to their
attention that caused them to believe that the Borrower failed to
comply with the provisions of subsection 7.1, except as specified in
such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsection 6.1, a certificate of a Responsible Officer
stating that, to the best of such Officer's knowledge, during such
period (i) no Subsidiary has been formed or acquired (or, if any such
Subsidiary has been formed or acquired, the Borrower has complied with
the requirements of subsection 6.10 with respect thereto) and (ii)
such Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate;
(c) concurrently with the delivery of financial statements
pursuant to subsection 6.1, a certificate of a Responsible Officer of
the Borrower setting forth, in reasonable detail, the computations, as
applicable, of (i) the Debt Ratio and (ii) the financial covenants set
forth in subsection 7.1, as of such last day or for the fiscal period
then ended, as the case may be;
(d) not later than 60 days after the end of each fiscal year of
the Borrower, a copy of the projections by the Borrower of the
operating budget and cash flow budget of the Borrower and its
Subsidiaries for the succeeding fiscal year, such projections to be
accompanied by a certificate of a Responsible Officer to the effect
that such projections have been prepared on the basis of sound
financial planning practice and that such Officer has no reason to
believe they are incorrect or misleading in any material respect;
(e) within five days after the same are sent, copies of all
financial statements and reports which the Borrower or Holdings sends
to its stockholders; and
(f) promptly, such additional financial and other information as
any Lender may from time to time reasonably request.
6.3. Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be.
6.4. Conduct of Business; Maintenance of Existence and Property;
Compliance with Law. Except as permitted by subsection 7.5 and subsection 7.6,
(a) continue to engage in business of the same general type as now conducted by
it; (b) preserve, renew and keep in full force and effect its corporate
existence and take all reasonable action to maintain all rights,
60
privileges and franchises necessary or desirable in the normal conduct of its
business; (c) keep all property useful and necessary in its business in good
working order and condition (ordinary wear and tear and damage by fire and/or
other casualty or taking by condemnation excepted) except if (i) in the
reasonable business judgment of the Borrower or such Subsidiary, as the case
may be, it is in its best economic interest not to preserve and maintain such
rights, privileges or franchises, and (ii) such failure to preserve and
maintain such privileges, rights or franchises would not materially adversely
affect the rights of the Lenders hereunder or the value of the Collateral, and
except as otherwise permitted pursuant to subsection 7.5; and (d) comply with
all Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not, in the aggregate, be reasonably expected
to have a Material Adverse Effect.
6.5. Insurance. The Borrower will, and will cause each of its
Subsidiaries to maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks as are customarily
maintained by companies of similar stature engaged in the same or similar
businesses operating in the same or similar locations.
6.6. Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records (except to the
extent any such access is restricted by a Requirement of Law) at any reasonable
time on a Business Day and as often as may reasonably be desired and to discuss
the business, operations, properties and financial and other condition of the
Borrower and its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and with its independent certified public accountants;
provided that the Administrative Agent or such Lender shall notify the Borrower
prior to any contact with such accountants and give the Borrower the
opportunity to participate in such discussions; provided, further, that the
Borrower shall notify the Administrative Agent of any such visits, inspections
or discussions prior to each occurrence thereof.
6.7. Notices. Promptly give notice to the Administrative Agent and
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries, (ii)
litigation, investigation or proceeding which may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental
Authority, which in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect or (iii) any material asset sale (describing
in reasonable detail the assets sold, the consideration received
therefor and the proposed use of the proceeds thereof);
61
(c) any other litigation or proceeding affecting the Borrower or
any of its Subsidiaries in which the amount involved is $7,500,000 or
more and not covered by insurance or in which injunctive or similar
relief is sought; and
(d) the following events, as soon as possible and in any event
within 45 days after the Borrower knows or has reason to know thereof:
(i) the incurrence of an accumulated funding deficiency or the filing
of an application to the Secretary of the Treasury for a waiver or
modification of the minimum funding standard (including any required
installment payments) or an extension of any amortization period under
Section 412 of the Code with respect to a Plan, the creation of any
Lien in favor of the PBGC or a Plan, the occurrence of any "Trigger
Event" (as defined in the Transfer Agreements) and the reassumption by
the Seller of sponsorship of any Single Employer Plan, (ii) except
where such event or liability could not reasonably be expected to have
a Material Adverse Effect, the occurrence or expected occurrence of
any Reportable Event with respect to any Plan (other than a Multiple
Employer Plan), or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan, or a failure
to make any required contribution to a Plan, (iii) the institution of
proceedings by the PBGC with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Single Employer Plan
or Multiemployer Plan or (iv) except as could not reasonably be
expected to have a Material Adverse Effect, the institution of
proceedings or the taking of any other action with respect to the
withdrawal from or termination of any Single Employer Plan;
Each notice pursuant to this subsection shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto.
6.8. Environmental Laws. (a)(i) Comply in all material respects with
all Environmental Laws applicable to it, and obtain, comply in all
material respects with and maintain any and all material Environmental
Permits necessary for its operations as conducted and as planned; and
(ii) take all reasonable efforts to ensure that all of its tenants,
subtenants, contractors, subcontractors, and invitees comply in all
material respects with all applicable Environmental Laws, and obtain,
comply in all material respects with and maintain any and all material
Environmental Permits, applicable to any of them. Notwithstanding the
foregoing, upon learning of any actual or suspected noncompliance, the
Borrower or one or more of its Subsidiaries, as appropriate, shall
promptly undertake all reasonable efforts to achieve material
compliance.
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions in each case
required under applicable Environmental Laws and promptly comply in
all material respects with all lawful orders and directives of all
Governmental Authorities regarding applicable Environmental Laws
except to the extent that the same are being
62
contested in good faith by appropriate proceedings and the pendency of
such proceedings could not be reasonably expected to have a Material
Adverse Effect.
6.9. Further Assurances. Upon the reasonable request of the
Administrative Agent, promptly perform or cause to be performed any and all
acts and execute or cause to be executed and delivered any and all documents
which are necessary or advisable to maintain in favor of the Administrative
Agent, for the benefit of the Lenders, Liens on the Collateral that are duly
perfected in accordance with all applicable Requirements of Law.
6.10. Additional Collateral. (a) With respect to any Capital Stock of
any newly created or acquired Subsidiary or any newly issued Capital
Stock of any existing Subsidiary acquired after the Closing Date by
the Borrower or any of its Subsidiaries that is intended to be subject
to the Lien created by any of the Pledge Agreements but which is not
so subject, promptly (and in any event within 30 days after the
acquisition thereof): (i) execute and deliver to the Administrative
Agent such amendments to the relevant Pledge Agreements or such other
documents as the Administrative Agent shall deem necessary or
advisable to grant to the Administrative Agent, for the benefit of the
Lenders, a Lien on such Capital Stock, (ii) take all actions necessary
or advisable to cause such Lien to be duly perfected in accordance
with all applicable Requirements of Law, including delivering all such
original certificates evidencing such Capital Stock to the
Administrative Agent together with undated stock powers executed in
blank therefor, and (iii) if requested by the Administrative Agent or
the Required Lenders, deliver to the Administrative Agent legal
opinions relating to the matters described in clauses (i) and (ii)
immediately preceding, which opinions shall be in form and substance,
and from counsel, reasonably satisfactory to the Administrative Agent.
(b) With respect to any Person that, subsequent to the Closing
Date, becomes a direct or indirect Subsidiary of the Borrower,
promptly (and in any event within 30 days after such Person becomes a
Subsidiary): (i) cause such new Subsidiary to become a party to the
Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if
requested by the Administrative Agent or the Required Lenders, deliver
to the Administrative Agent legal opinions relating to the matters
described in clause (i) immediately preceding, which opinions shall be
in form and substance, and from counsel, reasonably satisfactory to
the Administrative Agent. Notwithstanding the foregoing, no Immaterial
Subsidiary or Foreign Subsidiary of the Borrower shall be required to
execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no
more than 65% of the Capital Stock of or equity interests in any
Foreign Subsidiary of the Borrower or any of its Subsidiaries if more
than 65% of the assets of such Subsidiary are securities of foreign
companies (such determination to be made on the basis of fair market
value), shall be required to be pledged hereunder.
6.11. [Intentionally Omitted.]
63
6.12. Foreign Jurisdictions. Maintain due qualification as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification, except to the extent that the failure to so
qualify could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
6.13. Government Contracts. The Borrower and its Subsidiaries shall
apply for and maintain all material facility security clearances and personnel
security clearances required of the Borrower under all Requirements of Law to
perform and deliver under any and all Government Contracts and as otherwise may
be necessary to continue to perform the business of the Borrower and its
Subsidiaries.
6.14. Lien Searches. Not later than 45 days following the Closing
Date, the Borrower shall deliver to the Administrative Agent the results of a
search of Uniform Commercial Code, tax and judgment filings made with respect
to each of the Borrower and its Subsidiaries (other than any Immaterial
Subsidiaries) in each jurisdiction in which the Borrower or such applicable
Subsidiary maintains its principal place of business or any material assets and
a certificate of a Responsible Officer certifying that such lien search results
do not disclose any Liens, except for Liens permitted hereunder.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as any portion of the
Commitments remain in effect or any amount is owing to any Lender or any of the
Agents hereunder or under any other Credit Document, the Borrower shall not,
and (except with respect to subsection 7.1), shall not permit any of its
Subsidiaries to, directly or indirectly:
7.1. Financial Condition Covenants.
(a) Debt Ratio. Permit the Debt Ratio at the last day of any
fiscal quarter to be greater than the ratio set forth below opposite
the fiscal quarter during which such fiscal quarter occurs:
Fiscal Quarter Ending Ratio
--------------------- -----
September 30, 1998 5.00
December 31, 1998 5.00
March 31, 1999 5.00
June 30, 1999 5.00
September 30, 1999 4.75
December 31, 1999 4.75
March 31, 2000 4.75
June 30, 2000 4.75
64
September 30, 2000 4.50
December 31, 2000 4.50
March 31, 2001 4.50
June 30, 2001 4.50
September 30, 2001 3.75
December 31, 2001 3.75
March 31, 2002 3.75
June 30, 2002 3.75
September 30, 2002 3.25
and thereafter
(b) Interest Coverage. Permit the ratio of (i) Consolidated
EBITDA to (ii) Consolidated Cash Interest Expense during any Test
Period to be less than the ratio set forth opposite such period below
(such ratio, the "Interest Coverage Ratio"):
Test Period Interest Coverage Ratio
----------- -----------------------
7/1/98 - 9/30/98 2.00
10/1/98 - 12/31/98 2.00
1/1/99 - 3/31/99 2.00
4/1/99 - 6/30/99 2.00
7/1/99 - 9/30/99 2.25
10/1/99 - 12/31/99 2.25
1/1/00 - 3/31/00 2.25
4/1/00 - 6/30/00 2.25
7/1/00 - 9/30/00 2.50
10/1/00 - 12/31/00 2.50
1/1/01 - 3/31/01 2.50
4/1/01 - 6/30/01 2.50
7/1/01 - 9/30/01 2.75
10/1/01 - 12/31/01 2.75
1/1/02 - 3/31/02 2.75
4/1/02 - 6/30/02 2.75
7/1/02 - 9/30/02 3.00
10/1/02 - and thereafter 3.00
7.2. Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness (including in respect of Interest Rate Agreements),
except:
65
(a) Indebtedness of the Borrower under this Agreement and the
Facility A Credit Agreement;
(b) Indebtedness of the Borrower incurred to finance the
acquisition of fixed or capital assets (whether pursuant to a loan, a
Financing Lease or otherwise) in an aggregate principal amount not
exceeding $25,000,000 at any time outstanding;
(c) Indebtedness assumed in connection with any Investment
permitted pursuant to subsection 7.9(k) hereof.
(d) additional Indebtedness of the Borrower not exceeding
$50,000,000 in aggregate principal amount at any one time outstanding
(of which up to $35,000,000 may be secured by Liens permitted pursuant
to subsection 7.3(i) hereof);
(e) Indebtedness of the Borrower in respect of not more than (i)
$225,000,000 principal amount of Subordinated Notes issued on the
Original Closing Date and (ii) $180,000,000 principal amount of New
Subordinated Notes issued on May 22, 1998;
(f) the Indebtedness of the Borrower and its Subsidiaries
outstanding on the Closing Date and reflected on Schedule 7.2(f), and
refundings or refinancings thereof, provided that no such refunding or
refinancing shall shorten the maturity or increase the principal
amount of the original Indebtedness;
(g) Guarantee Obligations permitted by subsection 7.4;
(h) the incurrence by any Credit Party of intercompany
Indebtedness between or among the Credit Parties; provided, however,
that if the Borrower is the obligor on such Indebtedness, such
Indebtedness is expressly subordinated to the prior payment in full in
cash of all Obligations;
(i) Indebtedness secured by Permitted Liens;
(j) Indebtedness of the Borrower or any of its Subsidiaries
(other than as described under subsection 7.2(a) above) incurred in
connection with the issuance of any surety bonds, performance letters
of credit or other similar performance bonds required pursuant to any
Contractual Obligation or Requirement of Law to which Borrower or any
of its Subsidiaries are subject in an aggregate principal amount not
exceeding $100,000,000 at any time outstanding, less, without
duplication, the aggregate amount of then existing Guarantee
Obligations permitted under 7.4(g); and
(k) Up to $30,000,000 of purchase money Indebtedness the proceeds
of which are utilized to acquire the real property (including
improvements thereon) and related assets currently utilized by the
Borrower's communications
66
systems - west division in Salt Lake City, Utah, on terms reasonably
satisfactory to the Agents.
7.3. Limitation on Liens. Create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings, provided that adequate reserves
with respect thereto are maintained on the books of the Borrower or
its Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(e) easements, rights-of-way, zoning restrictions, other
restrictions and other similar encumbrances previously or hereafter
incurred in the ordinary course of business which, in the aggregate,
are not substantial in amount and which do not in any case materially
detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the Borrower or
such Subsidiary;
(f) Liens in existence on the date hereof listed on Schedule
7.3(f), securing Indebtedness permitted by subsection 7.2(f), provided
that no such Lien is expanded to cover any additional property (other
than after-acquired title in or on such property and proceeds of the
existing collateral in accordance with the instrument creating such
Lien) after the Closing Date and that the amount of Indebtedness
secured thereby is not increased and extensions, renewals or
replacements thereof provided that no such extension, renewal or
replacement shall shorten the fixed maturity or increase the principal
amount of the original Indebtedness; and provided, further, that the
assets of the Borrower and its Subsidiaries encumbered by such Liens
are existing equipment and other existing tangible assets;
67
(g) Liens securing Indebtedness of the Borrower and its
Subsidiaries permitted by subsections 7.2(b) and 7.2(k) incurred to
finance the acquisition of fixed or capital assets, provided that (i)
such Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (ii) such Liens do not at
any time encumber any property other than the property financed by
such Indebtedness (other than after acquired title in or on such
property and proceeds of the existing collateral in accordance with
the instrument creating such Lien) and (iii) the principal amount of
Indebtedness secured by any such Lien shall at no time exceed 100% of
the original purchase price of such property of such property at the
time it was acquired;
(h) Liens on the property or assets of a corporation which
becomes a Subsidiary after the date hereof securing Indebtedness
permitted by subsection 7.2(c), provided that (i) such Liens existed
at the time such corporation became a Subsidiary and were not created
in anticipation thereof, (ii) any such Lien is not expanded to cover
any property or assets of such corporation after the time such
corporation becomes a Subsidiary (other than after acquired title in
or on such property and proceeds of the existing collateral in
accordance with the instrument creating such Lien), and (iii) the
amount of Indebtedness secured thereby is not increased;
(i) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Borrower and all Subsidiaries)
$35,000,000 in aggregate amount at any time outstanding;
(j) Liens created pursuant to the Pledge Agreements;
(k) Liens on the property of the Borrower or any of its
Subsidiaries in favor of landlords securing licenses, subleases or
leases entered into in the ordinary course of business;
(l) licenses, leases or subleases permitted hereunder granted to
other Persons not interfering in any material respect in the business
of the Borrower or any of its Subsidiaries;
(m) so long as no Default or Event of Default shall have occurred
and be continuing under clause (f) of Section 8, attachment or
judgment Liens in an aggregate amount outstanding at any one time not
in excess of $7,500,000;
(n) Liens arising from precautionary Uniform Commercial Code
financing statement filings with respect to operating leases or
consignment arrangements entered into by the Borrower, or any of its
subsidiaries in the ordinary course of business; and
(o) Liens in favor of a banking institution arising by operation
of law encumbering deposits (including the right of set-off) held by
such banking
68
institutions incurred in the ordinary course of business and
which are within the general parameters customary in the banking
industry.
7.4. Limitation on Guarantee Obligations. Create, incur, assume or
suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date hereof and
listed on Schedule 7.4 and extensions, renewals and replacements
thereof, provided, however, that no such extension, renewal or
replacement shall shorten the fixed maturity or increase the principal
amount of the Indebtedness guaranteed by the original guarantee;
(b) Guarantee Obligations incurred after the date hereof in an
aggregate amount not to exceed $30,000,000 at any one time outstanding
for the Borrower and its Subsidiaries;
(c) guarantees made by the Subsidiaries of the Borrower pursuant
to the Subordinated Debt Documents and the New Subordinated Debt
Documents;
(d) Guarantee Obligations under the Credit Documents and the
Facility A Credit Documents;
(e) L/C Obligations and the Facility A L/C Obligations;
(f) Guarantee Obligations of the Borrower or any Subsidiary in
respect of obligations of a Subsidiary permitted to be incurred by
such Subsidiary by this Agreement; and
(g) Guarantee Obligations in respect of surety bonds and/or
performance letters of credit which shall not exceed $100,000,000 at
any time less, without duplication, the amount of outstanding
Indebtedness permitted under subsection 7.2(j).
7.5. Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all of its property,
business or assets, or make any material change in its present method of
conducting business, except:
(a) any Subsidiary of the Borrower may be merged or consolidated
with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any one or more
wholly owned Subsidiaries of the Borrower (provided that the wholly
owned Subsidiary or Subsidiaries shall be the continuing or surviving
corporations); and
69
(b) any wholly owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any other wholly owned
Subsidiary of the Borrower that is a Credit Party.
7.6. Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person other than the
Borrower or any wholly owned Subsidiary, except:
(a) the sale or other disposition of obsolete or worn out
property in the ordinary course of business;
(b) the sale of any property or assets not otherwise permitted by
this subsection 7.6; provided that the Net Proceeds thereof shall be
applied pursuant to subsection 2.6(b)(ii);
(c) as permitted pursuant to subsection 7.5(b);
(d) the sale, lease, transfer or exchange of inventory in the
ordinary course of business;
(e) transfers resulting from any casualty or condemnation of
property or assets;
(f) intercompany sales or transfers of assets made in the
ordinary course of business;
(g) licenses, leases or subleases of tangible property in the
ordinary course of business;
(h) any consignment arrangements or similar arrangements for the
sale of assets in the ordinary course of business;
(i) the sale or discount of overdue accounts receivable arising
in the ordinary course of business, but only in connection with the
compromise or collection thereof; and
(j) the conveyance, sale, assignment or contribution to any new
Subsidiary of the Borrower or any existing Subsidiary of the Borrower
assets of the Borrower or any Subsidiary of the Borrower not exceeding
five percent (5%) of the Consolidated Total Assets.
7.7. Limitation on Dividends. Declare or pay any dividend (other than
dividends payable solely in common stock of the Borrower) on, or make any
payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or other acquisition
of, any shares of any class of Capital Stock of the Borrower or any warrants or
options to purchase any such Capital Stock, whether now or
70
hereafter outstanding, or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in obligations of
the Borrower or any Subsidiary other than Permitted Stock Payments.
7.8. Limitation on Capital Expenditures. Make or commit to make (by
way of the acquisition of securities of a Person or otherwise) any expenditure
in respect of the purchase or other acquisition of fixed or capital assets
(excluding any such asset acquired in connection with normal replacement and
maintenance programs properly charged to current operations) except for capital
expenditures in the ordinary course of business not exceeding $45,000,000 in
the aggregate for the Borrower and its Subsidiaries during any fiscal year of
the Borrower; provided, that up to 50% of any such amount not so expended in
the fiscal year for which it is permitted above may be carried over for
expenditure in the next following fiscal year; provided, further, that Borrower
and/or its Subsidiaries may exceed the annual limit on capital expenditures set
forth above by utilizing any amounts available for Investments permitted under
subsection 7.9(k) hereto to fund such additional Capital Expenditures.
7.9. Limitation on Investments, Loans and Advances. Make any advance,
loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets constituting a
business unit of, or make any other investment in, any Person ("Investments"),
except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) loans to officers of the Borrower listed on Schedule 7.9(c)
in aggregate principal amounts outstanding not to exceed the
respective amounts set forth for such officers on said Schedule;
(d) loans and advances to employees of the Borrower or its
Subsidiaries for travel, entertainment and relocation expenses in the
ordinary course of business in an aggregate amount for the Borrower
and its Subsidiaries not to exceed $1,000,000 at any one time
outstanding;
(e) investments by the Borrower in its Subsidiaries that are
Credit Parties and investments by such Subsidiaries in the Borrower
and in other Subsidiaries that are Credit Parties;
(f) so long as no Event of Default has occurred and is
continuing, loans by the Borrower to its employees (other than any
Principals or their Related Parties) in connection with (i) management
incentive plans, (ii) management stock purchase plans, and (iii)
obligations of employee option-holders of Storm Control Systems, Inc.
to fund the exercise of such options, which loans in (i), (ii) and
(iii) in the aggregate do not exceed $5,000,000;
(g) Investments in existence on the Closing Date set forth on
Schedule 7.9(g) and extensions, renewals, modifications or
restatements or replacements thereof;
71
provided that no such extension, renewal, modification or
restatement shall increase the amount of the original loan, advance or
investment;
(h) promissory notes and other similar non-cash consideration
received by the Borrower and its Subsidiaries in connection with the
dispositions permitted by subsection 7.6(b);
(i) Investments permitted by subsection 7.6(b) and subsection
7.6(j);
(j) Investments (including debt obligations and Capital Stock)
received in connection with the bankruptcy or reorganization of
suppliers and customers and in settlement of delinquent obligations
of, and other disputes with, customers and suppliers arising in the
ordinary course of business;
(k) Investments made to acquire (i) all or any portion of the
Capital Stock, or all or any portion of the assets, of any Person
(other than the Borrower or any of its Subsidiaries) that is engaged
in a Similar Business, or (ii) all or substantially all of the assets
of any division of any Person (other than the Borrower or any of its
Subsidiaries) that is engaged in a Similar Business; provided, that,
(a) if such Investment is an acquisition of a majority of the Voting
Stock of any Person, such Person's board of directors or similar
governing body shall have approved such acquisition and (b) at the
time of each such Investment described above in clauses (i) and (ii)
(both before and after giving effect to such Investment), there shall
exist no Default or Event of Default and the aggregate consideration
paid (regardless of form, including in the case of an acquisition of
assets, any assumed obligations) in connection with all Investments
made pursuant to this subsection 7.9(k) shall not exceed the New
Investment Sublimit (without deducting therefrom (x) the portion of
any purchase price for any Investment funded with Capital Stock of
Holdings, (y) consideration paid by the Borrower in connection with
the acquisition of SPD Technologies pursuant to the SPD Technologies
Acquisition Agreement and (z) any consideration paid after the Closing
Date by the Borrower in connection with any Investment which (I) has
already been approved or consented to under the Original Credit
Agreement or any Investment for which the Borrower has provided a
compliance certificate pursuant to Section 7.9(p) of the Original
Credit Agreement and (II) is listed on Schedule 7.9(k) hereto);
provided, further, that in connection with each individual, or series
of related, Investments made pursuant to this subsection 7.9(k) with
an aggregate consideration (i) equal to or less than $100,000,000, the
Borrower shall deliver to the Administrative Agent, on or prior to the
date which is one Business Day prior to the consummation of such
Investment or Investments, a certificate of a Responsible Officer that
certifies that no Default or Event of Default has occurred and is
continuing or will be caused as a result of consummating such proposed
Investment.
7.10. Limitation on Optional Payments and Modifications of Instruments
and Agreements. (a) Make any optional payment or prepayment on or
redemption or purchase of, or deliver any funds to any trustee for the
prepayment, redemption or defeasance of, any Subordinated Debt or
amend, modify or change, or consent or agree to any
72
amendment, modification or change to any of the material terms of any
such Subordinated Debt Documents or New Subordinated Debt Documents
(other than any such amendment, modification or change which would
extend the maturity or reduce the amount of any payment of principal
thereof or which would reduce the rate or extend the date for payment
of interest thereon).
(b) Amend its Constitutional Documents in any manner which could
adversely affect the rights of the Lenders under the Credit Documents
or their ability to enforce the same.
(c) Modify or amend, or waive any provision or condition
contained in, any of the Transaction Documents in any manner that
could reasonably be expected to be adverse to the Lenders.
7.11. Limitation on Transactions with Affiliates. (a) Enter into any
transaction, including, without limitation, any purchase, sale, lease
or exchange of property or the rendering of any service, with any
Affiliate unless such transaction is (i) otherwise permitted under
this Agreement, (ii) in the ordinary course of the Borrower's or such
Subsidiary's business and (iii) upon fair and reasonable terms no less
favorable to the Borrower or such Subsidiary, as the case may be, than
it would obtain in a comparable arm's length transaction with a Person
which is not an Affiliate.
(b) In addition, notwithstanding the foregoing, the Borrower and
its Subsidiaries shall be entitled to make the following payments
and/or to enter into the following transactions:
(i) the payment of reasonable and customary fees and reimbursement of
expenses payable to directors of the Borrower and Holdings;
(ii) the employment arrangements with respect to the procurement of
services of directors, officers and employees in the ordinary course of
business and the payment of reasonable fees in connection therewith;
(iii) payments to directors and officers of the Borrower and its
Subsidiaries in respect of the indemnification of such Persons in such
respective capacities from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements, as the case may be, pursuant to the
Constitutional Documents or other corporate action of the Borrower or its
Subsidiaries, respectively, or pursuant to applicable law; and
(iv) transactions described in the Transaction Documents.
7.12. Limitation on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the
73
security of such property or rental obligations of the Borrower or such
Subsidiary; provided that the Borrower may enter into a sale and leaseback
transaction if the Borrower could have (a) incurred Indebtedness in an amount
equal to the Attributable Debt relating to such sale and leaseback transaction
and (b) incurred a Lien to secure such Indebtedness, in each case in accordance
with the restrictions contained in this Agreement and the other Credit
Documents.
7.13. Limitation on Changes in Fiscal Year. Permit the fiscal year of
the Borrower to end on a day other than December 31.
7.14. Limitation on Negative Pledge Clauses. Enter into with any
Person any agreement, other than (a) this Agreement and the Facility A Credit
Agreement, (b) the Subordinated Debt Documents and the New Subordinated Debt
Documents and (c) any industrial revenue bonds, purchase money mortgages or
Financing Leases permitted by this Agreement (in which cases, any prohibition
or limitation shall only be effective against the assets financed thereby other
than after acquired title in or on such property and proceeds of the existing
collateral in accordance with the instrument creating such Lien), which
prohibits or limits the ability of the Borrower or any of its Subsidiaries to
create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired.
7.15. Limitation on Lines of Business. Enter into any business, either
directly or through any Subsidiary (other than an Immaterial Subsidiary),
except for Similar Businesses.
7.16. Designated Senior Debt. Designate any Indebtedness or other
obligation, other than Indebtedness under the Credit Documents, as "Designated
Senior Debt," as such term is defined in the Indenture as in effect on the
Original Closing Date or the New Subordinated Debt Indenture as in effect on
May 22, 1998, or any comparable designation that confers upon the holders of
such Indebtedness or other obligation (or any Person acting on their behalf)
the right to initiate blockage periods under the Indenture or the New
Subordinated Debt Indenture or any other Indebtedness or other obligation of
the Borrower and its Subsidiaries (other than as a result of a payment
default).
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or any
Reimbursement Obligation when due in accordance with the terms thereof or
hereof; or the Borrower shall fail to pay any interest on any Loan, or any
other amount payable hereunder, within five days after any such interest or
other amount becomes due in accordance with the terms thereof or hereof;
(b) Any representation or warranty made or deemed made by the Borrower
or any other Credit Party herein or in any other Credit Document or which
is contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or
any such other Credit Document shall prove to have been incorrect in any
material respect on or as of the date made or deemed made;
74
(c) The Borrower or any other Credit Party shall default in the
observance or performance of any agreement contained in Section 7 or
subsection 6.7(a) of this Agreement, Section 4 of the Parent Guarantee,
Section 4 of the Subsidiary Guarantee, Section 4 of the Parent Pledge
Agreement, Section 4 of the Borrower Pledge Agreement, or Section 4 of the
Subsidiary Pledge Agreement;
(d) The Borrower or any other Credit Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Credit Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days;
(e) The Borrower or any of its Subsidiaries shall (i) default (x) in
any payment of principal of or interest of any Indebtedness (other than the
Loans, the L/C Obligations and any intercompany debt) or Interest Rate
Agreement Obligations or (y) in the payment of any Guarantee Obligation
(excluding any guaranties of the Obligations), beyond the period of grace,
if any, provided in the instrument or agreement under which such
Indebtedness, Interest Rate Agreement Obligation or Guarantee Obligation
was created; or (ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness, Interest Rate
Agreement Obligation or Guarantee Obligation or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation
(or a trustee or agent on behalf of such holder or holders or beneficiary
or beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable; provided, however, that no Default or Event
of Default shall exist under this paragraph unless (i) the aggregate amount
of Indebtedness, Interest Rate Agreement Obligations and/or Guarantee
Obligations in respect of which any default or other event or condition
referred to in this paragraph shall have occurred shall be equal to at
least $7,500,000 and (ii) such default continues for a period in excess of
10 days;
(f) (i) Holdings, the Borrower or any of its Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment
of a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or Holdings, the
Borrower or any of its Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against
Holdings, the Borrower or any of its Subsidiaries any case, proceeding or
other action of a nature referred to in clause (i) above which (A) results
in the entry of an order for relief or any such adjudication or appointment
or (B) remains undismissed, undischarged or unbonded for a period of 60
days; or (iii) there shall be commenced against the Holdings, Borrower or
any of its
75
Subsidiaries any case, proceeding or other action seeking issuance of
a warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or
(iv) Holdings, the Borrower or any of its Subsidiaries shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) Holdings, the Borrower or any of its Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due;
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, reasonably likely to result in the termination of
such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v) the Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other similar event or condition shall occur or exist with
respect to a Plan that is not in the ordinary course; and in each case in
clauses (i) through (vi) above, such event or condition, together with all
other such events or conditions, if any, could reasonably be expected to
have a Material Adverse Effect;
(h) One or more judgments or decrees shall be entered against
Holdings, the Borrower or any of its Subsidiaries involving in the
aggregate a liability (not paid or fully covered by insurance (which
coverage has been acknowledged by the appropriate insurers)) of $7,500,000
or more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the entry
thereof;
(i) (i) Any of the Pledge Agreements shall cease, for any reason, to
be in full force and effect (unless released by the Administrative Agent at
the direction of the requisite Lenders or as otherwise permitted under this
Agreement or the other Credit Documents), or the Borrower or any other
Credit Party which is a party to any of the Pledge Agreements shall so
assert or (ii) the Lien created by any of the Pledge Agreements shall cease
to be enforceable and of the same effect and priority purported to be
created thereby (and, if such invalidity is such so as to be amenable to
cure without materially disadvantaging the position of the Administrative
Agent and the Lenders, as the case may be, as secured parties thereunder,
the Credit Party shall have failed to cure such invalidity within 30 days
after notice from the Administrative Agent);
76
(j) The Guarantee Obligation of any Credit Party under the Credit
Documents shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or any
Credit Party or any Person acting on behalf of any Credit Party, shall deny
or disaffirm its obligations under such Guarantee Obligation;
(k) There shall have occurred a Change in Control; or
(l) An "Event of Default" as defined in the Facility A Credit
Agreement shall have occurred and be continuing;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section above with respect to
the Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder) and the Notes
shall immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken: (i)
with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, by notice
to the Borrower declare the Commitments to be terminated forthwith, whereupon
the Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice of default to the
Borrower, declare the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) and the Notes to be due and payable forthwith, whereupon the same
shall immediately become due and payable.
With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Borrower shall at such time deposit in
a cash collateral account opened by the Administrative Agent an amount equal to
the Dollar Equivalent of the aggregate then undrawn and unexpired amount of
such Letters of Credit. The Borrower hereby grants to the Administrative Agent,
for the benefit of the Issuing Lender and the L/C Participants (and the benefit
of each such "Issuing Lender" and the "L/C Participants" as defined in the
Facility A Credit Agreement), a security interest in such cash collateral to
secure all obligations of the Borrower under this Agreement, the Facility A
Credit Agreement, the other Credit Documents and the other Facility A Credit
Documents. Amounts held in such cash collateral account shall be applied by the
Administrative Agent in accordance with subsection 2.12 hereof. The Borrower
shall execute and deliver to the Administrative Agent, for the account of the
Issuing Lender and the L/C Participants (and each applicable "Issuing Lender"
and the "L/C Participants" as defined in the Facility A Credit Agreement), such
further documents and instruments as the Administrative Agent may request to
evidence the creation and perfection of the within security interest in such
cash collateral account.
77
EXCEPT AS EXPRESSLY PROVIDED ABOVE IN THIS SECTION, PRESENTMENT,
DEMAND, PROTEST AND ALL OTHER NOTICES OF ANY KIND ARE HEREBY EXPRESSLY WAIVED.
SECTION 9. THE AGENTS; THE ARRANGERS
9.1. Appointment. Each Lender hereby irrevocably designates and
appoints each of the Agents as the agent of such Lender under this Agreement
and the other Credit Documents, and each such Lender irrevocably authorizes
each of the Agents, in such capacity, to take such action on its behalf under
the provisions of this Agreement and the other Credit Documents and to exercise
such powers and perform such duties as are expressly delegated to such Agent by
the terms of this Agreement and the other Credit Documents, together with such
other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, none of the Agents shall
have any duties or responsibilities, except those expressly set forth herein,
or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Credit Document or otherwise exist against any
of the Agents.
9.2. Delegation of Duties. The Agents may execute any of their duties
under this Agreement and the other Credit Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. None of the Agents shall be responsible for
the negligence or misconduct of any agents or attorneys in-fact selected by it
with reasonable care.
9.3. Exculpatory Provisions. Neither any of the Agents nor any of
their officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Credit
Document (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrower or any
officer thereof contained in this Agreement or any other Credit Document or in
any certificate, report, statement or other document referred to or provided
for in, or received by such Agent under or in connection with, this Agreement
or any other Credit Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
Credit Document or for any failure of the Borrower to perform its obligations
hereunder or thereunder. None of the Agents shall be under any obligation to
any Lender to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Credit Document, or to inspect the properties, books or records of the
Borrower.
9.4. Reliance by Agents. The Agents shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrower), independent accountants and other
experts selected by such Agent. The Agents may deem and treat the payee of any
Note as the owner thereof for all purposes
78
unless a written notice of assignment, negotiation or transfer thereof shall
have been filed with such Agent. Except as expressly provided in this
Agreement, the Agents shall be fully justified in failing or refusing to take
any action under this Agreement or any other Credit Document unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agents shall in all cases
be fully protected in acting, or in refraining from acting, under this
Agreement and the other Credit Documents in accordance with a request of the
Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders
of the Loans.
9.5. Notice of Default. No Agent shall be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless
such Agent has received notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that any Agent receives such a
notice, such Agent shall give notice thereof to the Lenders. Each Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided that unless and until
such Agent shall have received such directions, such Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
9.6. Non-Reliance on Agents and Other Lenders. Each Lender expressly
acknowledges that neither any of the Agents nor any of their officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by any of the Agents
hereafter taken, including any review of the affairs of the Borrower, shall be
deemed to constitute any representation or warranty by any of the Agents to any
Lender. Each Lender represents to each of the Agents that it has, independently
and without reliance upon any of the Agents or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and credit worthiness of the Borrower and made
its own decision to make its Loans hereunder and enter into this Agreement.
Each Lender also represents that it will, independently and without reliance
upon any of the Agents or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Credit Documents, and to make such investigation
as it deems necessary to inform itself as to the business, operations,
property, financial and other condition and creditworthiness of the Borrower.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by any of the Agents hereunder (or copies of which
have been provided to the Administrative Agent pursuant to this Agreement),
none of the Agents shall have any duty or responsibility to provide any Lender
with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
any Credit Party which may come into the possession of such Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
79
9.7. Indemnification. The Lenders agree to indemnify each of the
Agents in their respective capacities as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Commitment Percentages with respect to
all Types of Loans in effect on the date on which indemnification is sought,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Loans) be imposed on, incurred by or asserted
against any of the Agents in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Credit Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by any of the
Agents under or in connection with any of the foregoing provided that no Lender
shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from such Agent's gross negligence
or willful misconduct. The agreements in this subsection shall survive the
payment of the Loans and all other amounts payable hereunder.
9.8. Agents, in Their Individual Capacities. The Agents and their
respective Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower as though the Agents were not
acting in such capacities hereunder and under the other Credit Documents. With
respect to the Loans made or renewed by it and any Note issued to it or Loan
Account maintained by it and with respect to any Letter of Credit issued or
participated in by it, each Agent shall have the same rights and powers under
this Agreement and the other Credit Documents as any Lender and may exercise
the same as though it were not an Agent, and the terms "Lender" and "Lenders"
shall include the Agents in their individual capacities.
9.9. Successor Administrative Agent, Syndication Agent and
Documentation Agent.
The Administrative Agent may resign as Administrative Agent upon 30
days' notice to the Lenders. If the Administrative Agent resigns under this
Agreement, the Required Lenders shall appoint from among the Lenders a
successor administrative agent for the Lenders, which successor administrative
agent shall, unless a Default or Event of Default shall have occurred and be
continuing, be approved by the Borrower. If no successor administrative agent
is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders and the Borrower, a successor administrative agent from among
the Lenders. Upon the acceptance of its appointment as successor administrative
agent hereunder, such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent and the term
"Administrative Agent" shall mean such successor administrative agent and the
retiring Administrative Agent's appointment, powers and duties as
Administrative Agent shall be terminated. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Section 9 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement. If no
successor administrative agent has accepted appointment as Administrative Agent
by the date which is 30
80
days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor administrative agent as provided for above. Similarly, the
Syndication Agent and/or the Documentation Agent may resign as Syndication
Agent and/or Documentation Agent, as the case may be, upon 30 days' notice to
the Lenders. The procedure for replacement and effective date of resignation
for the Syndication Agent and the Documentation Agent shall be identical to
that provided above for the Administrative Agent.
9.10. The Arrangers and the Co-Agents. Except as expressly set forth
herein, each of the Arrangers and the Co-Agents, in their respective capacities
as such, shall have no duties or responsibilities, and shall incur no
liabilities, under this Agreement or the other Credit Documents.
SECTION 10. MISCELLANEOUS
10.1. Amendments and Waivers. Neither this Agreement nor any other
Credit Document, nor any terms hereof or thereof may be amended, supplemented,
waived or modified except in accordance with the provisions of this subsection.
The Required Lenders may, or, with the written consent of the Required Lenders,
the Administrative Agent may, from time to time, (a) enter into with the
Borrower written amendments, supplements or modifications hereto and to the
other Credit Documents for the purpose of adding any provisions to this
Agreement or the other Credit Documents or changing in any manner the rights of
the Lenders or of the Borrower hereunder or thereunder or (b) waive, on such
terms and conditions as the Required Lenders or the Administrative Agent, as
the case may be, may specify in such instrument, any of the requirements of
this Agreement or the other Credit Documents or any Default or Event of Default
and its consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (i) reduce the amount or extend any
scheduled date of maturity of any Loan, extend the expiration of any Letter of
Credit beyond the Revolving 364 Day Termination Date, or reduce the stated rate
or amount of any interest or fee payable hereunder or extend the scheduled date
of any payment thereof, in each case without the consent of each Lender
affected thereby, or increase the commitment of any Lender or extend the expiry
of the commitment of any Lender without the consent of such Lender, (ii) amend,
modify or waive the definition of Required Lenders, or consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Credit Documents, in each case without the
written consent of all the Lenders, (iii) release all or substantially all of
the Collateral or release all or substantially all of the Credit Parties from
their Guarantee Obligations under the Credit Documents without the consent of
all Lenders, (iv) amend, modify or waive any provision of Section 9 without the
written consent of the then Agents, or (v) amend, modify or waive any provision
of this Agreement or any other Credit Document which would directly and
adversely affect the Arrangers or the Agents or the Issuing Lender without the
written consent of the Arrangers, the Agents or the Issuing Lender, as the case
may be. In addition to the foregoing, (A) no amendment, modification,
termination or waiver of any provision of subsection 2.5, subsection 2.6 or
subsection 2.12 which has the effect of changing any interim scheduled
payments, voluntary or mandatory prepayments, the application of any scheduled
payment or voluntary or mandatory prepayment, the application of proceeds of
any Collateral or any
81
Commitment reductions applicable to any Class (an "Affected Class") in a manner
that disproportionately disadvantages such Class relative to the other Class
shall be effective without the written concurrence of the Requisite Class
Lenders of the Affected Class (it being understood and agreed that any
amendment, modification, termination or waiver of any provision which only
postpones or reduces any interim scheduled payment, voluntary or mandatory
prepayment or Commitment reduction from those set forth in subsection 2.6 with
respect to only one Class shall be deemed to not disproportionately
disadvantage the other Class and, therefore, shall not require the consent of
Requisite Class Lenders of such other Class), (B) no amendment, modification,
termination or waiver of any provision of any Guarantee or Pledge Agreement
shall be effective without the written concurrence of the Requisite Class
Lenders for each Class and (C) no amendment, modification or waiver with
respect to any provision of this subsection 10.1 or to the definition of
"Requisite Class Lenders" shall be effective without the written concurrence of
all Lenders and all Facility A Lenders. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and shall
be binding upon the Borrower, the Lenders, the Agents and the Issuing Lender
and all future holders of the Loans. Any extension of a Letter of Credit by the
Issuing Lender shall be treated hereunder as issuance of a new Letter of
Credit. In the case of any waiver, the Borrower, the Lenders and the Agents and
the Issuing Lender shall be restored to their former positions and rights
hereunder and under the other Credit Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereon.
10.2. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three days after being
deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of the Borrower, the Administrative Agent, Issuing Lender,
the Syndication Agent and the Documentation Agent, and as set forth in Schedule
I in the case of the other parties hereto, or to such other address as may be
hereafter notified by the respective parties hereto:
Holdings, the Borrower
or any of its
Subsidiaries: L-3 Communications Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx XxXxxxx
Fax: (000) 000-0000
with a copy to
Attention: Xxxxxxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
82
The Administrative
Agent: Addresses for notices of borrowing,
prepayments and other
administrative matters:
Bank of America NT & SA
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Agency Administrative
Services #5596
Xxxxxxxxx X. Xxxxxx,
Vice President
Fax: (000) 000-0000
Tel: (000) 000-0000
Addresses for all other notices
(including with respect to amendments
and waivers):
Bank of America NT & SA
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Agency Management #10831
Xxxxxxx Xxxxxx, Vice
President
Fax: (000) 000-0000
Tel: (000) 000-0000
with a copy to:
Bank of America NT & SA
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
83
The Issuing Lender:
Bank of America NT & SA
000 X. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx XX 00000-0000
Attention: Trade Operations Center -
Standby Letters of Credit
#22621
Xxxxxx X. Xxxx, Vice
President
Fax: (000) 000-0000
Tel: (000) 000-0000
The Documentation
Agent: Xxxxxx Commercial Paper Inc.
3 World Financial Center, 9th Floor
New York, New York 10285
Attention: Xxxxxxxx Xxxxxxx
Fax: (000) 000-0000
The Syndication
Agent: Xxxxxx Commercial Paper Inc.
3 World Financial Center, 9th Floor
New York, New York 10285
Attention: Xxxxxxxx Xxxxxxx
Fax: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.2, 2.4, 2.6, 2.7, 2.12 or 3.2 shall not
be effective until received.
10.3. No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder or under the other Credit Documents shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
10.4. Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Credit Documents and in any
document, certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement and the
making of the Loans hereunder.
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10.5. Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse each of the Agents for all of their respective reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement and the other Credit Documents and any other documents prepared
in connection herewith or therewith, and the consummation and administration of
the transactions contemplated hereby and thereby, including, without
limitation, the reasonable fees, charges and disbursements of a single counsel
for the Lenders (in addition to any local counsel), (b) to pay or reimburse
each Lender and each Agent for all its costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Credit Documents and any such other documents, including,
without limitation, the fees and disbursements of counsel to each Lender and of
counsel to any Agent, (c) to pay, indemnify, and hold each Lender and each
Agent and each Issuing Lender harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any delay
in paying, stamp, excise and other similar taxes, if any, which may be payable
or determined to be payable in connection with the execution and delivery of,
or consummation or administration of any of the transactions contemplated by,
or any amendment, supplement or modification of, or any waiver or consent under
or in respect of, this Agreement, the other Credit Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender and each Arranger,
each Agent and each Issuing Lender harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement or the other Credit Documents or the use of the proceeds of
the Loans in connection with the Transaction, including, without limitation,
any of the foregoing relating to the violation of, noncompliance with or
liability under, any Environmental Law applicable to the operations of the
Borrower, any of its Subsidiaries or any of the Properties (all the foregoing
in this clause (d), collectively, the "indemnified liabilities"), it being
understood that the Borrower shall have an obligation hereunder to the Lender
or any Agent with respect to any indemnified liabilities incurred by any
Agents, Arranger or the Issuing Lender or any Lender as a result of any
Materials of Environmental Concern that are first manufactured, emitted,
generated, treated, released, spilled, stored or disposed of on, at or from any
Property or any violation of any Environmental Law, which in any case first
occurs on or with respect to such Property (i) after the Property is
transferred to any Agent, Arranger, Issuing Lender or any Lender or their
successors or assigns by foreclosure sale, deed in lieu of foreclosure, or
similar transfer or, following such transfer, (ii) in connection with, but
prior to, the sale, leasing or other transfer of such Property by such Agent,
Arranger, Issuing Lender, or any Lender or their successors or assigns to one
or more third parties; provided, however, that the Borrower shall have no
obligation hereunder to any Agent or the Issuing Lender or any Lender with
respect to otherwise indemnified liabilities arising from the gross negligence
or willful misconduct of such Agent or the Issuing Lender or any such Lender,
or with respect to otherwise indemnified liabilities following the sale,
leasing or other transfer of such Property to one or more third parties. The
agreements in this subsection shall survive repayment of the Loans and all
other amounts payable hereunder.
10.6. Successors and Assigns; Participation and Assignments. (a) This
Agreement shall be binding upon and inure to the benefit of the
Borrower, the
85
Lenders, the Agents and their respective successors and assigns,
except that the Borrower may not assign or transfer any of its rights
or obligations under this Agreement without the prior written consent
of each Lender.
(b) Any Lender may, in the ordinary course of its business and in
accordance with applicable law and the limitations set forth in
subsection 2.1(a)(ii), at any time sell to one or more banks or other
entities ("Participants") participating interests in any Loan owing to
such Lender or any other interest of such Lender hereunder and under
the other Credit Documents. In the event of any such sale by a Lender
of a participating interest to a Participant, such Lender's
obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the
other Credit Documents, and the Borrower and the Agents shall continue
to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and the other
Credit Documents. No Lender shall be entitled to create in favor of
any Participant, in the participation agreement pursuant to which such
Participant's participating interest shall be created or otherwise,
any right to vote on, consent to or approve any matter relating to
this Agreement or any other Credit Document except for those specified
in clauses (i), (ii) and (iii) of the proviso to subsection 10.1. The
Borrower agrees that if amounts outstanding under this Agreement are
due or unpaid, or shall have been declared or shall have become due
and payable upon the occurrence of an Event of Default, each
Participant shall, to the maximum extent permitted by applicable law,
be deemed to have the right of setoff in respect of its participating
interest in amounts owing under this Agreement to the same extent as
if the amount of its participating interest were owing directly to it
as a Lender under this Agreement; provided that, in purchasing such
participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in
subsection 10.7(a) as fully as if it were a Lender hereunder. The
Borrower also agrees that each Participant shall be entitled to the
benefits of subsections 2.14, 2.15 and 2.16 with respect to its
participation in the Letters of Credit, the Commitments and the Loans
outstanding from time to time as if it was a Lender; provided that in
the case of subsection 2.15, such Participant shall have complied with
the requirements of said subsection; provided, further, that no
Participant shall be entitled to receive any greater amount pursuant
to any such subsection than the transferor Lender would have been
entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such
transfer occurred.
(c) Any Lender may, in the ordinary course of its business and in
accordance with applicable law and the limitations set forth in
subsection 2.1(a)(ii), at any time and from time to time assign to any
Lender, any affiliate thereof or, in the case of Lender that is an
investment fund which is regularly engaged in making, purchasing or
investing in loans or securities (an "Investment
86
Fund"), any other such Investment Fund which is under common
management with such Lender, or, with the consent of the Borrower, the
Administrative Agent, the Syndication Agent and each Applicable
Issuing Lender (which in each case shall not be unreasonably
withheld), to an additional bank, Investment Fund or financial
institution (an "Assignee") all or any part of its rights and
obligations under this Agreement and the other Credit Documents
pursuant to an Assignment and Acceptance, substantially in the form of
Exhibit F, executed by such Assignee, such assigning Lender (and, in
the case of an Assignee that is not then a Lender or an affiliate
thereof, by the Borrower, the Administrative Agent, the Syndication
Agent and each Applicable Issuing Lender) and delivered to the
Administrative Agent for its acceptance and recording in the Register
with a copy to the Syndication Agent, provided that, in the case of
any such assignment to an additional bank or financial institution,
(A) either (x) such assignment is of all the rights and obligations of
the assigning Lender or (y) the sum of the aggregate principal amount
of the Loans, the aggregate amount of the L/C Obligations and the
aggregate amount of the unused Commitments being assigned and, if such
assignment is of less than all of the rights and obligations of the
assigning Lender, the sum of the aggregate principal amount of the
Loans, the aggregate amount of the L/C Obligations and the aggregate
amount of the unused Commitments remaining with the assigning Lender
are each not less than $5,000,000 (or such lesser amount as may be
agreed to by the Borrower and the Administrative Agent) and (B) each
Assignee which is a Non-U.S. Lender shall comply with the provisions
of clause (A) of subsection 2.15(b) hereof, or, with the prior written
consent of the Borrower, which shall not be unreasonably withheld, the
provisions of clause (B) of subsection 2.15(b) hereof (and, in either
case, with all of the other provisions of subsection 2.15(b) hereof).
Upon such execution, delivery, acceptance and recording, from and
after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and,
to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with a Commitment as set
forth therein and (y) the assigning Lender thereunder shall, to the
extent provided in such Assignment and Acceptance, be released from
its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such
assigning Lender shall cease to be a party hereto). Notwithstanding
any provision of this paragraph (c) and paragraph (f) of this
subsection, the consent of the Borrower shall not be required for any
assignment which occurs at any time when any of the events described
in clause (f) of Section 8 shall have occurred and be continuing.
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in
subsection 10.2 a copy of each Assignment and Acceptance delivered to
it and a register (the "Register") for the recordation of the names
and addresses of the Lenders and Commitments of and principal amounts
of the Loans of each Type owing to each
87
Lender from time to time and the registered owners of the
Obligations evidenced by the Notes and the Loan Accounts. The entries
in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Administrative Agent and the Lenders shall treat
each Person whose name is recorded in the Register as the owner of a
Loan, a Note or other Obligation hereunder as the owner thereof for
all purposes of this Agreement and the other Credit Documents,
notwithstanding any notice to the contrary. Any assignment of any
Loan, Commitment or other obligation evidenced by a Note or a Loan
Account shall be effective only upon appropriate entries with respect
thereto being made in the Register, and prior to such recordation, all
amounts owing to the assignor with respect thereto shall remain owing
to the assignor. Any assignment or transfer of all or part of an
Obligation evidenced by a Note shall be registered in the Register
only upon surrender for registration of assignment or transfer of the
Note evidencing such Obligation, duly endorsed by (or accompanied by a
written instrument of assignment or transfer duly executed by) the
holder thereof, and thereupon one or more new Notes shall be issued to
the designated Assignee, if requested, and the old Note shall be
returned by the Administrative Agent to the Borrower marked
"canceled."
(e) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an Assignee (and, in the case of an Assignee
that is not then a Lender or an affiliate thereof, by the Borrower the
Administrative Agent, the Syndication Agent and each Applicable
Issuing Lender) together with payment to the Administrative Agent of a
registration and processing fee of $3,000 (provided that no such
payment shall be required whenever LCPI or BOA is the assigning
Lender), the Administrative Agent shall (i) promptly accept such
Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the
Lenders and the Borrower. Following the effective date of any such
Assignment and Acceptance, the Administrative Agent shall be entitled
to update Schedule I hereto to reflect the then outstanding
Commitments of each Lender whereupon such amended Schedule I shall be
substituted for the pre-existing Schedule I and be deemed a part of
this Agreement without any further action or consent of any party and
the Administrative Agent shall promptly deliver a copy of such amended
Schedule I to each Lender and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective
Transferee, subject to the provisions of subsection 10.15, any and all
financial information in such Lender's possession concerning the
Borrower and its Affiliates which has been delivered to such Lender by
or on behalf of the Borrower pursuant to this Agreement or which has
been delivered to such Lender by or on behalf of the Borrower in
connection with such Lender's credit evaluation of the Borrower and
its Affiliates prior to becoming a party to this Agreement.
88
(g) If, pursuant to this subsection 10.6, any interest in this
Agreement or any Loan is transferred to any Transferee which would be
a Non-U.S. Lender upon the effectiveness of such transfer, the
assigning Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the assigning
Lender (for the benefit of the assigning Lender, the Administrative
Agent and the Borrower) that under applicable law and treaties no U.S.
Taxes will be required to be withheld by the Administrative Agent, the
Borrower or the assigning Lender with respect to any payments to be
made to such Transferee in respect of the Loans, (ii) to furnish to
the assigning Lender (and, in the case of any Assignee registered in
the Register, the Administrative Agent and the Borrower such Internal
Revenue Service Forms required to be furnished pursuant to subsection
2.15(b) and (iii) to agree (for the benefit of the assigning Lender,
the Administrative Agent and the Borrower) to be bound by the
provisions of subsection 2.15(b).
(h) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning
assignments of Loans and Notes relate only to absolute assignments and
that such provisions do not prohibit assignments creating security
interests, including, without limitation, any pledge or assignment by
a Lender of any Loan or Note to any Federal Reserve Bank in accordance
with applicable law.
(i) Notwithstanding any other provision contained in this
Agreement or any other Credit Document to the contrary, (x) any Lender
may assign all or any portion of the Loans held by it to any Federal
Reserve Bank or the United States Treasury as collateral security
pursuant to Regulation A of the Federal Reserve Board and any
Operating Circular issued by such Federal Reserve Bank, provided that
any payment in respect of such assigned Loans made by the Borrower to
or for the account of the assigning or pledging Lender in accordance
with the terms of this Agreement shall satisfy the Borrower's
obligations hereunder in respect to such assigned Loans to the extent
of such payments and (y) with the consent of the Administrative Agent
(not to be unreasonably withheld), any Lender which is an Investment
Fund may pledge all or any portion of its Loans to its trustee in
support of its obligations to its trustee. No such assignment shall
release the assigning Lender from its obligations hereunder.
10.7. Adjustments; Set-off. (a) If any Lender (a "benefited
Lender") shall at any time receive any payment of all or part of its
Loans or the Reimbursement Obligations owing to it, or interest
thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in clause (f) of Section 8, or
otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender or Facility A Lender (any such
affected Lender or Facility A Lender, hereinafter, an "Affected
Lender"), if any, in respect of the Borrower's obligations owing to
such other Affected Lender, whether under this Agreement or the
Facility A Credit Agreement, including any interest thereon, such
benefited
89
Lender shall purchase for cash from each other Affected Lender a
participating interest in such portion of each such other Affected
Lender's Loans or the Reimbursement Obligations owing to it and/or
Facility A Loans or Facility A Reimbursement Obligations owing to it,
or shall provide such other Affected Lenders with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary to
cause such benefited Lender to share the excess payment or benefits of
such collateral or proceeds ratably with each of the Affected Lenders;
provided, however, that if all or any portion of such excess payment
or benefits is thereafter recovered from such benefited Lender, such
purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior
notice to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, upon any amount
becoming due and payable by the Borrower hereunder (whether at the
stated maturity, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such
Lender or any branch or agency thereof to or for the credit or the
account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and
application.
10.8. Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall
be deemed to constitute one and the same instrument. A set of the copies of
this Agreement signed by all the parties shall be lodged with the Borrower and
the Administrative Agent.
10.9. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10. Integration. This Agreement and the other Credit Documents
represent the agreement of the Borrower, the Agents and the Lenders with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by any Agent or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or in the other
Credit Documents.
90
10.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12. SUBMISSION TO JURISDICTION; WAIVERS. THE BORROWER HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS TO
WHICH IT IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH
COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL
(OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO THE
BORROWER AT ITS ADDRESS SET FORTH IN SUBSECTION 10.2 OR AT SUCH OTHER
ADDRESS OF WHICH THE ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT
THERETO;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO XXX IN ANY OTHER JURISDICTION; AND
(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT
MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO
IN THIS SUBSECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES.
10.13. Acknowledgments. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents;
91
(b) none of the Arrangers, the Agents nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection
with this Agreement or any of the other Credit Documents, and the
relationship between any of the Agents and the Lenders, on one hand, and
the Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
10.14. WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS, THE ARRANGERS,
THE LENDERS AND THE OTHER PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.15. Confidentiality. Each Lender agrees to keep confidential all
non-public information provided to it by the Borrower pursuant to this
Agreement that is designated by the Borrower in writing as confidential
(excluding any such information already in the possession of such Lender or
provided to such Lender by a third party not in violation of this Agreement
which, in either case, is not, to the knowledge of such Lender, subject to a
confidentiality agreement); provided that nothing herein shall prevent any
Lender from disclosing any such information (i) to any Agent or any other
Lender or any of its Affiliates, (ii) to any Transferee or prospective
Transferee or to any direct or indirect contractual counterparties in swap
agreements or such contractual counterparties' professional advisors which
receives such information and agrees to be bound by the confidentiality
provisions hereof, (iii) to its employees, directors, agents, attorneys,
accountants and other professional advisors, (iv) upon the request or demand of
any Governmental Authority having jurisdiction over such Lender, (v) in
response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (vi) which has been
publicly disclosed other than in breach of this Agreement, or (vii) in
connection with the exercise of any remedy hereunder.
10.16. Conversion of Currencies. (a) If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto
agrees, to the fullest extent that it may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal
banking procedures in the relevant jurisdiction the first currency
could be purchased with such other currency on the Business Day
immediately preceding the date on which final judgment is given.
(b) The obligations of the Borrower in respect of any sum due to
any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a
currency (the "Judgment Currency") other than the currency in which
such sum is stated to be due hereunder (the "Agreement Currency"), be
discharged only to the extent that, on the Business Day following
receipt by the Applicable Creditor of any sum
92
adjudged to be so due in the Judgment Currency, the Applicable
Creditor may in accordance with normal banking procedures in the
relevant jurisdiction purchase the Agreement Currency with the
Judgment Currency; if the amount of the Agreement Currency so
purchased is less than the sum originally due to the Applicable
Creditor in the Agreement Currency, the Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrower
contained in this subsection 10.16 shall survive the termination of
this Agreement and the payment of all other amounts owing hereunder.
10.17. Year 2000. The Borrower has reviewed, or will expeditiously
review, its operations and those of its Subsidiaries with a view to assessing
whether its businesses, or the businesses of any of its Subsidiaries, will be
vulnerable to a Year 2000 Problem. The Borrower shall take all actions
necessary and commit adequate resources to assure that its computer-based and
other systems (and those of all of its Subsidiaries) are able to effectively
process data, including dates before, on and after January 1, 2000, without
experiencing any Year 2000 Problem that could reasonably be expected to cause a
Material Adverse Effect. At the request of the Required Lenders, the Borrower
will provide the Administrative Agent with assurances and substantiations
(including, but not limited to, the results of internal or external audit
reports prepared in the ordinary course of business) reasonably acceptable to
the Administrative Agent as to the capability of the Borrower and its
Subsidiaries to conduct its and their businesses and operations before, on and
after January 1, 2000 without experiencing a Year 2000 Problem causing a
Material Adverse Effect. The Borrower represents and warrants that it has a
reasonable basis to believe that no Year 2000 Problem will cause a Material
Adverse Effect.
[SIGNATURE PAGES FOLLOW]
93
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
L-3 COMMUNICATIONS CORPORATION
By:
------------------------------------
Title:
XXXXXX COMMERCIAL PAPER INC.,
as Documentation Agent, Syndication
Agent, an Arranger and as a Lender
By:
------------------------------------
Title:
BANK OF AMERICA NT & SA
as Administrative Agent
By:
------------------------------------
Title:
BANK OF AMERICA NT & SA
as a Lender
By:
------------------------------------
Title:
BANCAMERICA XXXXXXXXX XXXXXXXX,
as an Arranger
By:
------------------------------------
Title:
Signature pages to 364 Day Credit Agreement
BANK OF AMERICA NT & SA
as an Issuing Lender
By:
------------------------------------
Title:
Signature pages to 364 Day Credit Agreement
THE BANK OF NEW YORK
By:
------------------------------------
Title:
Signature pages to 364 Day Credit Agreement
THE BANK OF NOVA SCOTIA
By:
------------------------------------
Title:
Signature pages to 364 Day Credit Agreement
CREDIT LYONNAIS NEW YORK BRANCH
By:
------------------------------------
Title:
Signature pages to 364 Day Credit Agreement
THE FIRST NATIONAL BANK OF CHICAGO
By:
------------------------------------
Title:
Signature pages to 364 Day Credit Agreement
FIRST UNION COMMERCIAL CORPORATION
By:
------------------------------------
Title:
Signature pages to 364 Day Credit Agreement
FLEET NATIONAL BANK
By:
------------------------------------
Title:
Signature pages to 364 Day Credit Agreement
THE FUJI BANK, LIMITED NEW YORK BRANCH
By:
------------------------------------
Title:
Signature pages to 364 Day Credit Agreement
MARINE MIDLAND BANK
By:
------------------------------------
Title:
Signature pages to 364 Day Credit Agreement
SOCIETE GENERALE, NEW YORK BRANCH
By:
------------------------------------
Title:
Signature pages to 364 Day Credit Agreement
Schedule I
To Credit Agreement
Lenders/Address for Notices Revolving 364 Day Commitment
XXXXXX COMMERCIAL PAPER INC. $19,285,714.28
3 World Financial Xxxxxx, 0xx
Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Fax : (000) 000-0000
BANK OF AMERICA NATIONAL TRUST $19,285,714.28
AND SAVINGS ASSOCIATION
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
with a copy to other parties
listed in ss.10.2 for BOA.
CREDIT LYONNAIS NEW YORK BRANCH $12,857,142.86
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx Xxxxxxxx
Xxxx Xxxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
FLEET NATIONAL BANK $12,857,142.86
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
I-1
MARINE MIDLAND BANK $12,857,142.86
000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx XxXxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
THE BANK OF NOVA SCOTIA $12,857,142.86
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
THE FIRST NATIONAL BANK OF $12,857,142.86
CHICAGO
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxx Xxxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
THE FUJI BANK, LIMITED NEW YORK $8,571,428.56
BRANCH
Xxx Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxx Xxxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
SOCIETE GENERALE, NEW YORK $12,857,142.86
BRANCH
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
X-0
XXX XXXX XX XXX XXXX $12,857,142.86
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
FIRST UNION COMMERCIAL $12,857,142.86
CORPORATION
0000 Xxxxx Xxxxxx Xxxx, 0xx Xxxxx
XxXxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
I-3
Schedule II
to Credit Agreement
PRICING GRID**
REVOLVING 364 DAY
FACILITY AND TERM REVOLVING 364 DAY
LOAN APPLICABLE FACILITY AND TERM REVOLVING 364
MARGIN-EURODOLLAR LOAN APPLICABLE DAY COMMITMENT
DEBT RATIO RATE* MARGIN-BASE RATE* FEE
-----------------------------------------------------------------------------------------------
(is greater than or equal to) 4.75x 187.5 87.5 30
(is greater than or equal to) 4.25x 162.5 62.5 30
(is greater than or equal to) 3.75x 137.5 37.5 25
(is greater than or equal to) 3.25x 112.5 12.5 20
(is greater than or equal to) 2.75x 87.5 0.0 15
(is less than or equal to) 2.75x 62.5 0.0 12.5
-------------------
* Notwithstanding the foregoing grid: (a) the Applicable Margin for the
Revolving 364 Day Facility for the period following the Closing Date
through but excluding the first Adjustment Date under this Agreement will
be .625% for Base Rate Loans and 1.625% for Eurodollar Loans, and (b) the
Commitment Fee Rate for the Revolving 364 Day Facility for the period
following the Closing Date through but excluding the first Adjustment
Date under this Agreement will be 0.30%.
** Pricing Grid (except for Debt Ratio) reflects basis points.
