EXECUTION COPY
Exhibit 10.20
ACTERNA LLC
_____________________________
SHORT-TERM CREDIT AGREEMENT
dated as of June 29, 2001
______________________________
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
THE CHASE MANHATTAN BANK,
as Syndication Agent
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS........................................................................................................ 1
1.1 Defined Terms...................................................................................................... 1
1.2 Other Definitional Provisions...................................................................................... 7
SECTION 2. [RESERVED]......................................................................................................... 8
SECTION 3. [RESERVED]......................................................................................................... 8
SECTION 4. [RESERVED]......................................................................................................... 8
SECTION 5. [RESERVED]......................................................................................................... 8
SECTION 6. AMOUNT AND TERMS OF COMMITMENTS.................................................................................... 8
6.1 Commitments........................................................................................................ 8
6.2 Procedure for Borrowing............................................................................................ 8
6.3 Use of Proceeds of Loans........................................................................................... 9
SECTION 7. [RESERVED]......................................................................................................... 9
SECTION 8. [RESERVED]......................................................................................................... 9
SECTION 9. PROVISIONS RELATING TO THE LOANS; FEES AND PAYMENTS................................................................ 9
9.1 Repayment of Loans; Evidence of Debt............................................................................... 9
9.2 Fees............................................................................................................... 9
9.3 Optional Prepayments............................................................................................... 10
9.4 Optional Termination or Reduction of Aggregate Commitment.......................................................... 10
9.5 Termination of Aggregate Commitment and Repayment.................................................................. 10
9.6 Conversion and Continuation Options................................................................................ 10
9.7 Minimum Amounts and Maximum Number of Tranches..................................................................... 11
9.8 Interest Rates and Payment Dates................................................................................... 11
9.9 [Reserved]......................................................................................................... 11
9.10 Computation of Interest............................................................................................ 12
9.11 Inability to Determine Interest Rate............................................................................... 12
9.12 Pro Rata Treatment and Payments.................................................................................... 12
9.13 Illegality......................................................................................................... 13
9.14 Requirements of Law................................................................................................ 14
9.15 Taxes.............................................................................................................. 15
9.16 Indemnity.......................................................................................................... 17
9.17 [RESERVED]......................................................................................................... 18
9.18 Certain Rules Relating to the Payment of Additional Amounts........................................................ 18
SECTION 10. REPRESENTATIONS AND WARRANTIES..................................................................................... 20
10.1 Financial Condition................................................................................................ 20
10.2 No Change.......................................................................................................... 20
10.3 Corporate Existence; Compliance with Law........................................................................... 20
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Page
10.4 Corporate Power; Authorization; Enforceable Obligations............................................................ 21
10.5 No Legal Bar....................................................................................................... 21
10.6 Representations and Warranties in Existing Credit Agreement........................................................ 21
10.7 No Default......................................................................................................... 21
10.8 Federal Regulations................................................................................................ 21
10.9 Accuracy and Completeness of Information........................................................................... 22
10.10 Senior Indebtedness................................................................................................ 22
SECTION 11. CONDITIONS PRECEDENT............................................................................................... 22
11.1 Conditions to Closing Date......................................................................................... 22
11.2 Conditions to Each Loan............................................................................................ 23
SECTION 12. PREPAYMENTS IN RESPECT OF EXISTING CREDIT AGREEMENT................................................................ 24
12.1 Prepayments under Existing Credit Agreement. The Borrower agrees that it will not elect to make any prepayments
of Revolving Credit Loans under (and as defined in) the Existing Credit Agreement at any time when any Loans are
outstanding hereunder.............................................................................................. 24
SECTION 13. [RESERVED]......................................................................................................... 24
SECTION 14. [RESERVED]......................................................................................................... 24
SECTION 15. EVENTS OF DEFAULT.................................................................................................. 24
15.1 Certain Bankruptcy Events.......................................................................................... 24
15.2 Other Events of Default. If any of the following events shall occur and be continuing:............................ 24
15.3 Certain Waivers.................................................................................................... 25
SECTION 16. THE ADMINISTRATIVE AGENT........................................................................................... 25
16.1 Appointment........................................................................................................ 25
16.2 Delegation of Duties............................................................................................... 25
16.3 Exculpatory Provisions............................................................................................. 26
16.4 Reliance by Administrative Agent................................................................................... 26
16.5 Notice of Default.................................................................................................. 26
16.6 Acknowledgments and Representations by Lenders..................................................................... 27
16.7 Indemnification.................................................................................................... 27
16.8 Administrative Agent in its Individual Capacity.................................................................... 27
16.9 Successor Administrative Agent..................................................................................... 28
16.10 Syndication Agent.................................................................................................. 28
SECTION 17. MISCELLANEOUS...................................................................................................... 28
17.1 Amendments and Waivers............................................................................................. 28
17.2 Notices............................................................................................................ 29
17.3 No Waiver; Cumulative Remedies..................................................................................... 30
17.4 Survival of Representations and Warranties......................................................................... 30
17.5 Payment of Expenses and Taxes...................................................................................... 30
17.6 Successors and Assigns; Participations and Assignments............................................................. 31
17.7 Adjustments; Set-off............................................................................................... 33
17.8 Counterparts....................................................................................................... 34
17.9 Severability....................................................................................................... 34
17.10 Integration........................................................................................................ 34
17.11 GOVERNING LAW...................................................................................................... 34
17.12 Submission To Jurisdiction; Waivers................................................................................ 34
17.13 Acknowledgements................................................................................................... 35
17.14 WAIVERS OF JURY TRIAL.............................................................................................. 35
17.15 Confidentiality.................................................................................................... 35
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SCHEDULES
Schedule I Lenders; Commitments
Schedule II Addresses for Notices
Schedule 10.4(a) Required Consents, Authorizations and Filings*
EXHIBITS
Exhibit A Form of Note*
Exhibit B [Reserved]
Exhibit C-1 Form of Opinion of Debevoise & ▇▇▇▇▇▇▇▇*
Exhibit C-2 Form of Opinion of ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇*
Exhibit D Form of Assignment and Acceptance*
Exhibit E-1 Form of Notice of Borrowing (Drawings)*
Exhibit E-2 Form of Notice of Borrowing (Conversions)*
Exhibit E-3 Form of Notice of Borrowing (Continuations)*
Exhibit F [Reserved]
Exhibit G Form of U.S. Tax Compliance Certificate*
* Not included with this filing
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(a) ACTERNA LLC, a Delaware limited liability company (the "Borrower");
(b) the Lenders from time to time parties hereto (the "Lenders");
(c) THE CHASE MANHATTAN BANK, as syndication agent (in such capacity, the
"Syndication Agent"); and
(d) CREDIT SUISSE FIRST BOSTON, as administrative agent (in such capacity, the
"Administrative Agent") for the Lenders;
W I T N E S S E T H :
---------------------
WHEREAS, the Borrower has requested the Lenders to make available a
short-term revolving credit facility; and
WHEREAS, the Lenders are willing to provide the requested short-term
revolving credit facility upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, 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:
"ABR": for any day, a rate per annum equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1%. Any change in the ABR due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be
effective as of the opening of business on the effective day of such change
in the Prime Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is based
upon the ABR.
"Administrative Agent": as defined in the preamble hereto.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) 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 20% 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.
"Aggregate Outstanding Extensions of Credit": as to any Lender at any
time, the aggregate outstanding principal amount of all Loans made by such
Lender.
"Aggregate Commitment": $40,000,000, as such amount may be reduced
from time to time pursuant to this Agreement.
"Agreement": this Short-Term Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Applicable Margin": (a) with respect to Eurodollar Loans, 4.00% and
(b) with respect to ABR Loans, 3.00%.
"Assignee": as defined in subsection 17.6(c).
"Available Commitment": as to any Lender, at any time, an amount
equal to the excess, if any, of (a) such Lender's Commitment at such time
over (b) such Lender's Aggregate Outstanding Extensions of Credit.
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a Notice of Borrowing
pursuant to subsection 6.2 as a date on which the Borrower requests the
Lenders to make Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law
to close.
"Closing Date": the date on which the conditions precedent set forth
in subsection 11.1 shall be satisfied or waived.
"Commitment": as to any Lender, its obligation to make Loans to the
Borrower hereunder in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender's name
on Schedule I (as deemed amended by any Assignment and Acceptance) under
the heading "Commitment"; collectively, as to all the Lenders, the
"Commitments".
"Commitment Percentage": as to any Lender at any time prior to the
expiration or termination of the Aggregate Commitment, the percentage which
such Lender's Commitment then constitutes of the Aggregate Commitment (or,
at any time after the Aggregate Commitment shall have expired or
terminated, the percentage which the aggregate principal amount of such
Lender's Loans then outstanding constitutes of the aggregate principal
amount of the Loans then outstanding).
"Commitment Period": the period from and including the Closing Date
to but not including the Termination Date or such earlier date on which the
Aggregate Commitment shall terminate as provided herein.
"Contractual Obligation": as to any Person, any provision of any
material security issued by such Person or of any material agreement,
instrument or other undertaking to which such Person is a party or by which
it or any of its property is bound.
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"Credit Agreement Event of Default": any "Event of Default", as
defined in the Existing Credit Agreement.
"Credit Documents": this Agreement and the Notes.
"Default": any of the events specified in subsections 15.1 or 15.2,
whether or not any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Eurodollar Base Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum determined by
the Administrative Agent at approximately 11:00 a.m. (London time) on the
date which is two Business Days prior to the beginning of such Interest
Period (as specified in the applicable Notice of Borrowing) by reference to
the applicable Telerate Page for deposits in Dollars for a period equal to
such Interest Period (rounded, if necessary, upward to the nearest whole
multiple of 1/100th of 1%); provided that, to the extent that an interest
rate is not ascertainable pursuant to the foregoing provisions of this
definition, the "Eurodollar Base Rate" shall be the interest rate per annum
determined by the Administrative Agent to be the average (rounded, if
necessary, upward to the nearest whole multiple of 1/100th of 1% per annum,
if such average is not such a multiple) of the rates per annum at which
deposits in Dollars are offered for such Interest Period to major banks in
the London interbank market in London, England by Credit Suisse First
Boston at approximately 11:00 a.m. (London time) on the date which is two
Business Days prior to the beginning of such Interest Period.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
Eurodollar funding (currently referred to as "Eurodollar Liabilities" in
Regulation D of such Board) maintained by a member bank of such System.
"Eurodollar Loans": Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in subsections 15.1
or 15.2, provided that any requirement for the giving of notice, the lapse
of time, or both, or any other condition, has been satisfied.
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"Existing Credit Agreement": the Credit Agreement, dated as of May
23, 2000, among the Borrower, the German Borrowers parties thereto, the
lenders parties thereto, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Administrative Agent, and others, as such agreement may from time to time
be amended, supplemented or otherwise modified.
"Federal Funds Effective Rate": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by
the Administrative Agent from three federal funds brokers of recognized
standing selected by it.
"Fee Letter": the Fee Letter, dated as of the date hereof, among the
Borrower, Credit Suisse First Boston and The Chase Manhattan Bank.
"Funding Office": the office of the Administrative Agent specified in
subsection 17.2 or such other office in the United States as may be
specified by the Administrative Agent as its funding office by written
notice to the Borrower and the Lenders.
"GAAP": generally accepted accounting principles in the United States
of America as in effect from time to time.
"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, counterindemnity 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, any such obligation of the guaranteeing
person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the purchase or payment
of any such primary obligation or (2) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal
to the stated or determinable amount of the primary obligation in respect
of which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee
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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.
"Interest Payment Date": (a) as to any ABR Loan, the last Business
Day of each March, June, September and December and (b) as to any
Eurodollar Loan, the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two or three months thereafter, as selected by
the Borrower in its Notice of Borrowing given with respect thereto;
and
(b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan and
ending one, two or three months thereafter, as selected by the
Borrower by irrevocable notice to the Administrative Agent not less
than three Business Days prior to the last day of the then current
Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods
are subject to the following:
(1) if any Interest Period 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;
(2) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date;
(3) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(4) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"Lenders": as defined in the preamble hereto.
"Loan": as defined in subsection 6.1.
"Majority Lenders": Lenders holding more than 50% of the amount of
(a) at any time prior to the termination of the Aggregate Commitment, the
Aggregate Commitment
5
then in effect or (b) at any time after the termination or expiration of
the Aggregate Commitment, the Aggregate Outstanding Extensions of Credit
then outstanding
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of the
Borrower and its Subsidiaries taken as a whole or (b) the validity or
enforceability of the Credit Documents as to the Borrower or the rights and
remedies of the Administrative Agent or the Lenders hereunder and
thereunder taken as a whole.
"Non-U.S Lender": as defined in subsection 9.15(c).
"Note": as defined in subsection 9.1(e); collectively, the "Notes."
"Notice of Borrowing": with respect to (a) any borrowing of Loans, a
Notice of Borrowing (Drawings), substantially in the form of Exhibit E-1,
(b) any conversion of Loans, a Notice of Borrowing (Conversions),
substantially in the form of Exhibit E-2 and (c) any continuation of
Eurodollar Loans, a Notice of Borrowing (Continuations), substantially in
the form of Exhibit E-3 hereto.
"Parent": Acterna Corporation, a Delaware corporation and the holder
of all outstanding capital stock of the Borrower.
"Participant": as defined in subsection 17.6(b).
"Payment Office": the office in the United States specified from time
to time by the Administrative Agent as its payment office by notice to the
Borrower and the Lenders.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime rate
in effect at its principal office in New York City.
"Register": as defined in subsection 17.6(d).
"Regulation U": Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation 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; provided that the
foregoing shall not apply to any non-binding recommendation of any
Governmental Authority.
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"Responsible Officer": the chief executive officer and the president
of the Borrower or, with respect to financial or benefits matters, the
chief financial officer of the Borrower.
"Senior Subordinated Note Indenture": as defined in the Existing
Credit Agreement.
"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, or the
management of which is otherwise controlled, directly or indirectly through
one or more intermediaries, or both, 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.
"Syndication Agent": as defined in the preamble hereto.
"Termination Date": December 31, 2001.
"Tranche": the collective reference to Eurodollar Loans, the then
current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall
originally have been made on the same day); Tranches may be identified as
"Eurodollar Tranches".
"Transferee": as defined in subsection 17.6(f).
"Type": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
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 Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in any Notes, 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.
The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
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SECTION 2. [RESERVED]
SECTION 3. [RESERVED]
SECTION 4. [RESERVED]
SECTION 5. [RESERVED]
SECTION 6. AMOUNT AND TERMS OF COMMITMENTS
6.1 Commitments. (a) Subject to the terms and conditions hereof,
each Lender severally agrees to make Loans ("Loans") in Dollars to the Borrower
from time to time during the Commitment Period in an aggregate principal amount
at any one time outstanding which does not exceed the amount of such Lender's
Commitment then in effect; provided that, after giving effect to the making of
such Loan, the Aggregate Outstanding Extensions of Credit of all Lenders shall
not exceed the Aggregate Commitment then in effect. During the Commitment Period
the Borrower may use the Aggregate Commitment by borrowing, prepaying the Loans
in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
(b) The Loans may from time to time be (i) Eurodollar Loans, (ii) ABR
Loans or (iii) a combination of Eurodollar Loans and ABR Loans, as determined by
the Borrower and notified to the Administrative Agent in accordance with
subsections 6.2 and 9.6, provided that (x) no Loan shall be made as a Eurodollar
Loan after the day that is one month prior to the Termination Date and (y) any
Loans to be made on the Closing Date initially shall be made as ABR Loans.
6.2 Procedure for Borrowing. The Borrower may borrow under the
Aggregate Commitment during the 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 12:00 Noon, New
York City time, (a) at least three Business Days prior to the requested
Borrowing Date, if all or any part of the requested Loans are to be initially
Eurodollar Loans, or (b) on the requested Borrowing Date, otherwise), specifying
(i) the amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether
the borrowing is to be of Eurodollar Loans, ABR Loans or a combination thereof
and (iv) if the borrowing is to be entirely or partly of Eurodollar Loans, the
amount of such Type of Loan and the length of the initial Interest Period
therefor. Each borrowing under the Aggregate Commitment shall be in an amount
equal to (x) in the case of ABR Loans, $500,000 or a whole multiple of $100,000
in excess thereof (or, if the then Available Commitments are less than
$5,000,000, such lesser amount) and (y) in the case of Eurodollar Loans,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of
any such notice from the Borrower, the Administrative Agent shall promptly
notify each Lender thereof. Each Lender will make the amount of its pro rata
share of each borrowing available to the Administrative Agent for the account of
the Borrower at the Funding Office 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 crediting the account of the Borrower on the books of such office 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.
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6.3 Use of Proceeds of Loans. The proceeds of the Loans shall be
utilized by the Borrower for working capital and other general corporate
purposes.
SECTION 7. [RESERVED]
SECTION 8. [RESERVED]
SECTION 9. PROVISIONS RELATING TO THE LOANS;
FEES AND PAYMENTS
-----------------
9.1 Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender the then unpaid principal amount of each Loan of such Lender on the
Termination Date (or such earlier date on which the Loans become due and payable
pursuant to Section 15). The Borrower hereby further agrees to pay interest on
the unpaid principal amount of the Loans made to it from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in subsection 9.8.
(b) 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.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 17.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, the Type thereof and each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) both the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 9.1(c) 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 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.
(e) The Borrower agrees that, upon request of any Lender through the
Administrative Agent (which request is made on or prior to the date on which
such Lender becomes a Lender), the Borrower will execute and deliver to such
Lender a promissory note, substantially in the form of Exhibit A (each, a
"Note"), evidencing the Loans made by such Lender to the Borrower.
9.2 Fees. The Borrower agrees to pay to the Administrative Agent for
the account of the Lenders, the fees required to be paid pursuant to the Fee
Letter in the amounts and on the date set forth therein.
9
9.3 Optional Prepayments. The Borrower may at any time and from time
to time prepay the Loans, in whole or in part, without premium or penalty, upon
at least three Business Days' (or, in the case of prepayments of ABR Loans, same
day) irrevocable notice to the Administrative Agent (which notice must be
received by the Administrative Agent prior to 12:00 Noon, New York City time on
the date when such notice is due), specifying (i) the date and amount of such
prepayment and (ii) whether the prepayment is of Eurodollar Loans, ABR 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 Lender thereof. If any such notice is given by the Borrower, the
amount specified in such notice shall be due and payable on the date specified
therein, together with any amounts payable pursuant to subsection 9.16 and,
except in the case of prepayments of ABR Loans, accrued interest to such date on
the amount prepaid.
9.4 Optional Termination or Reduction of Aggregate Commitment. The
Borrower shall have the right, upon not less than five Business Days' notice to
the Administrative Agent, to terminate the Aggregate Commitment or, from time to
time, to reduce the amount thereof; provided that no such termination or
reduction shall be permitted if, after giving effect thereto and to any
prepayments of the Loans made on the effective date thereof, the aggregate
principal amount of the Loans then outstanding would exceed the Aggregate
Commitment then in effect. Any such reduction shall be in an amount equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof and shall reduce
permanently the Aggregate Commitment then in effect.
9.5 Termination of Aggregate Commitment and Repayment. (a) The
Aggregate Commitment shall terminate on the Termination Date and all amounts
outstanding thereunder shall be due and payable on the Termination Date.
9.6 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by delivering to the
Administrative Agent an irrevocable Notice of Borrowing by 10:00 A.M., New York
City time, at least one Business Day prior to the requested date of conversion;
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 ABR Loans to Eurodollar Loans by delivering to the
Administrative Agent an irrevocable Notice of Borrowing by 10:00 A.M., New York
City time, at least three Business Days' prior to the requested conversion date.
Any such Notice of Borrowing with respect to a conversion to Eurodollar Loans
shall specify the length of the initial Interest Period or Interest Periods
therefor. Upon receipt of any such Notice of Borrowing, the Administrative Agent
shall promptly notify each Lender thereof. All or any part of outstanding
Eurodollar Loans and ABR 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 continuing and the Administrative Agent has or the
Lenders have determined that such a conversion is not appropriate and the
Administrative Agent has given notice to the Borrower that no conversion may be
made and (ii) no Loan may be converted into a Eurodollar Loan after the date
that is one month prior to the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower
delivering to the Administrative Agent an irrevocable Notice of Borrowing, in
accordance with the applicable provisions of the term "Interest Period" set
forth in subsection 1.1, setting forth (among other
10
things) the length of the next Interest Period to be applicable to such Loans,
provided that (i) no Loan may be continued as a Eurodollar Loan when any Event
of Default has occurred and is continuing and the Administrative Agent has or
the Lenders have determined that such a continuation is not appropriate and the
Administrative Agent has given notice to the Borrower that no such continuations
may be made and (ii) no Loan may be continued as a Eurodollar Loan after the
date that is one month prior to the Termination Date and provided, further, that
if the Borrower shall fail to give such notice or if such continuation is not
permitted such Loans shall be automatically converted to ABR Loans on the last
day of such then expiring Interest Period. Upon receipt of any such Notice of
Borrowing, the Administrative Agent shall promptly notify each Lender thereof.
9.7 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 Tranche of Eurodollar Loans shall be equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. In no event
shall there be more than five Eurodollar Tranches outstanding at any time.
9.8 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 with respect thereto.
(b) Each ABR Loan shall bear interest at a rate per annum equal to
the ABR plus the Applicable Margin with respect thereto.
(c) If all or a portion of (i) any principal of any Loan, (ii) any
interest payable thereon, or (iii) any other amount payable hereunder shall not
be paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue 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 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 or other amount is paid in full (after as well
as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
(e) It is the intention of the parties hereto to comply strictly with
applicable usury laws; accordingly, it is stipulated and agreed that the
aggregate of all amounts which constitute interest under applicable usury laws,
whether contracted for, charged, taken, reserved, or received, in connection
with the indebtedness evidenced by this Agreement or any Notes, or any other
document relating or referring hereto or thereto, now or hereafter existing,
shall never exceed under any circumstance whatsoever the maximum amount of
interest allowed by applicable usury laws.
9.9 [Reserved]
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9.10 Computation of Interest. (a) Whenever it is calculated on the
basis of the Prime Rate, interest shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed; and, otherwise,
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 ABR 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 9.10(a).
9.11 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period the Administrative Agent shall have reasonably determined
(which determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for 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 (a) any Eurodollar Loans requested to be made on the first
day of such Interest Period shall be made as ABR Loans and (b) any Loans that
were to have been converted to or continued as Eurodollar Loans on the first day
of such Interest Period shall be converted to ABR Loans. Until such notice has
been withdrawn by the Administrative Agent, no further Eurodollar Loans shall be
made or continued as such, nor shall the Borrower have the right to convert any
Loans to Eurodollar Loans.
9.12 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrower from the Lenders hereunder, and any reduction of the Commitments of the
Lenders shall be allocated by the Administrative Agent pro rata according to the
respective Commitment Percentages of the Lenders. Each payment (including each
prepayment) by the Borrower on account of principal of and interest on the Loans
shall be allocated by the Administrative Agent pro rata according to the
respective outstanding principal amounts of Loans then held by the Lenders.
Except as otherwise set forth herein, all payments (including prepayments) to be
made by the Borrower hereunder, whether on account of principal, interest, fees
or otherwise, shall be made without set off or counterclaim in immediately
available funds and shall be made prior to 1:00 P.M., New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders, at
the Payment Office, in Dollars. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. Except
as otherwise set forth herein, if any payment hereunder (other than payments on
Eurodollar Loans) becomes due and payable on a day other than a Business Day,
the maturity of 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). If any payment on a
Eurodollar Loan becomes due and payable on a day other than a Business Day, the
maturity of such payment shall be extended to the next succeeding Business Day
(and,
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with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension) unless the result of such extension
would be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day.
(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, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower in respect of such borrowing 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 9.12 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 notify the Borrower of the
failure of such Lender to make such amount available to the Administrative Agent
and the Administrative Agent shall also be entitled to recover such amount with
interest thereon at the rate per annum applicable to ABR Loans, upon three
Business Days after receipt by the Borrower of written notice from the
Administrative Agent specifying the amount such Lender failed to make available
to the Administrative Agent, from the Borrower. Nothing contained in this
subsection 9.12(b) shall prejudice any claims otherwise available to the
Borrower against any Lender as a result of such Lender's failure to make its
share of any borrowing available to the Administrative Agent for the account of
the Borrower.
(c) Notwithstanding anything to the contrary contained herein, in the
event that the Administrative Agent shall make any payment to a Lender on
account of amounts owing to such Lender by the Borrower hereunder and the
Administrative Agent either (i) shall not receive the corresponding amount from
the Borrower or (ii) shall be required to be return such amount to the Borrower,
such Lender shall (upon the request of the Administrative Agent) promptly return
to the Administrative Agent the amount of such payment.
9.13 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 to the Borrower as contemplated by this Agreement ("Affected
Eurodollar Loans"), (a) such Lender shall promptly give written notice of such
circumstances to Borrower and the Administrative Agent (which notice shall be
withdrawn whenever such circumstances no longer exist), (b) the commitment of
such Lender hereunder to make Affected Eurodollar Loans, continue Affected
Eurodollar Loans as such and convert ABR Loans to Affected Eurodollar Loans
shall forthwith be canceled and, until such time as it shall no longer be
unlawful for such Lender to make or maintain such Affected Eurodollar Loans,
such Lender shall then have a commitment only to make an ABR Loan when an
Affected Eurodollar Loan is requested and (c) such Lender's Loans then
outstanding as Affected Eurodollar Loans, if any, shall be converted
automatically to ABR Loans on the respective last days of the then current
Interest Periods with respect to such Loans
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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 9.16.
9.14 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable to
any Lender 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 (or, if later, the date on which
such Lender becomes a Lender):
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to any Eurodollar Loan made by it or its obligation to
make Eurodollar Loans or change the basis of taxation of payments to
such Lender in respect thereof (except for Non-Excluded Taxes covered
by subsection 9.15 (including Non-Excluded Taxes imposed solely by
reason of any failure of such Lender to comply with its obligations
under subsection 9.15(c) or 9.15(d)) and changes in taxes measured by
or imposed upon the overall net income, or franchise taxes, or taxes
measured by or imposed upon overall capital or net worth, or branch
taxes (in the case of such capital, net worth or branch taxes, imposed
in lieu of such net income tax), of such Lender or its applicable
lending office, branch, or any affiliate thereof);
(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 excluding
any tax of any kind whatsoever;
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 to reduce any amount receivable
hereunder in respect thereof, then, in any such case, upon notice to the
Borrower from such Lender, through the Administrative Agent, in accordance
herewith, the Borrower shall promptly pay such Lender, upon its demand, any
additional amount or amounts necessary to compensate such Lender for such
increased cost or reduced amount receivable with respect to such Eurodollar
Loans, provided that the Borrower may elect to convert Eurodollar Loans made by
such Lender hereunder to ABR Loans by giving the Administrative Agent at least
one Business Day's notice of such election, in which case the Borrower shall
promptly pay to such Lender, upon demand, without duplication, amounts
theretofore required to be paid to such Lender pursuant to this subsection
9.14(a) and such amounts, if any, as may be required pursuant to subsection
9.16. If any Lender becomes entitled to claim any additional amounts pursuant
to this subsection, it shall provide prompt notice thereof to the Borrower,
through the Administrative Agent, certifying (x) that one of the events
described in this paragraph (a) has occurred and describing in reasonable detail
the nature of such event, (y) as to the increased cost or reduced amount
resulting from such event and (z) as to
14
the additional amount demanded by such Lender and a reasonably detailed
explanation of the calculation thereof.
(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, in each case, made subsequent to the Closing Date (or, if later, the
date on which such Lender becomes a Lender) shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of such Lender's obligations hereunder 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, within ten Business Days
after submission by such Lender to the Borrower (with a copy to the
Administrative Agent) of a written request therefor certifying (x) that one of
the events described in this paragraph (b) has occurred and describing in
reasonable detail the nature of such event, (y) as to the reduction of the rate
of return on capital resulting from such event and (z) as to the additional
amount or amounts demanded by such Lender or corporation and a reasonably
detailed explanation of the calculation thereof, the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender or
corporation for such reduction.
(c) Any certificate provided pursuant to (a) or (b) above as to any
additional amounts payable pursuant to this subsection to a Lender submitted by
such Lender, through the Administrative Agent, to the Borrower 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.
9.15 Taxes. (a) 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 excluding taxes measured by or imposed upon the overall
net income of the Administrative Agent or any Lender or its applicable lending
office, or any branch or affiliate of either, and all franchise taxes, branch
taxes, taxes on doing business or taxes measured by or imposed upon the overall
capital or net worth of the Administrative Agent or any Lender or its applicable
lending office, or any branch or affiliate of either, in each case imposed: (i)
by the jurisdiction under the laws of which the Administrative Agent or such
Lender, applicable lending office, branch or affiliate is organized or is
located, or in which the principal executive office of the Administrative Agent
or any Lender is located, or any nation within which such jurisdiction is
located or any political subdivision thereof; or (ii) by reason of any present
or former connection between the jurisdiction imposing such tax and the
Administrative Agent or such Lender, applicable lending office, branch or
affiliate other than a connection arising solely from the Administrative Agent
or such Lender having executed, delivered or performed its obligations under, or
received 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 by the Borrower
from any amounts payable to the Administrative Agent or any Section 9.15 Lender
hereunder or
15
under any Note, the amounts so payable to the Administrative Agent or such
Section 9.15 Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Section 9.15 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 be entitled to deduct and withhold any Non-Excluded Taxes and
shall not be required to increase any such amounts payable to any Section 9.15
Lender that is not organized under the laws of the United States of America or a
state thereof if such Section 9.15 Lender fails to comply with the requirements
of paragraph (c) or (d) of this subsection. Whenever any Non-Excluded Taxes are
payable by the Borrower, as promptly as possible thereafter the Borrower shall
send to the Administrative Agent for its own account or for the account of such
Section 9.15 Lender, as the case may be, a certified copy of an original
official receipt or other documentary evidence acceptable to the Administrative
Agent 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 Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Administrative Agent and
the Section 9.15 Lenders for any incremental taxes, interest or penalties that
may become payable by the Administrative Agent or any Section 9.15 Lender as a
result of any such failure.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (a "Non-U.S. Lender") shall:
(X)(i) on or before the date of any payment by the Borrower under
this Agreement or any Note to such Lender, deliver to the Borrower and the
Administrative Agent two duly completed copies of United States Internal
Revenue Service Form W-8BEN or W-8ECI, or successor applicable form,
certifying that such Lender is entitled to an exemption from deduction or
withholding of United States federal income taxes and United States backup
withholding taxes with respect to payments under this Agreement and any
Notes, together with such other forms, documentation or certifications as
may be necessary to establish this exemption.
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and completing
such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent; and
(Y) in the case of any such Non-U.S. Lender that is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Code and that cannot
comply with the requirements of subsection 9.15(c)(x) above, (i) represent
to the Borrower (for the benefit of the Borrower and the Administrative
Agent) that it is not a bank within the meaning of Section 881(c)(3)(A) of
the Code, (ii) agree to furnish to the Borrower on or before the date of
any payment by the Borrower, with a copy to the Administrative Agent, (A) a
certificate substantially in the form of Exhibit G (any such certificate a
"U.S. Tax Compliance Certificate") and (B) two accurate and complete
original signed copies of
16
Internal Revenue Service Form W-8BEN, or successor applicable form
certifying to such Lender's legal entitlement at the date of such
certificate to an exemption from U.S. withholding tax under the provisions
of Section 881(c) of the Code and United States backup withholding taxes
with respect to payments to be made under this Agreement and any Notes (and
to deliver to the Borrower and the Administrative Agent two further copies
of such form on or before the date it expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recently
provided form, and, if necessary, obtain any extensions of time reasonably
requested by the Borrower or the Administrative Agent for filing and
completing such forms), and (iii) agree, to the extent legally entitled to
do so, upon reasonable request by the Borrower, to provide to the Borrower
(for the benefit of the Borrower and the Administrative Agent) such other
forms as may be reasonably required in order to establish the legal
entitlement of such Lender to an exemption from withholding with respect to
payments under this Agreement and any Notes;
(c) unless in any such case, any change in treaty, law or regulation
has occurred after the date such Person becomes a Lender hereunder which renders
all such forms inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it and such Lender so
advises the Borrower and the Administrative Agent. Each Person that shall become
a Lender or a Participant pursuant to subsection 17.6 shall, upon the
effectiveness of the related transfer, be required to provide all of the forms
and statements required pursuant to this subsection, provided that in the case
of a Participant such Participant shall furnish all such required forms,
documentation or certifications to the Lender from which the related
participation shall have been purchased, and such Lender shall in turn furnish
all such required forms (including without limitation Internal Revenue Service
Form W-8IMY), documentation and certifications to the Borrower and the
Administrative Agent. Notwithstanding the foregoing, a Non-U.S. Lender shall not
be required to deliver any form pursuant to this paragraph that such Lender is
not legally able to deliver.
(d) The agreements in this subsection 9.15 shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
9.16 Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense (other than through such
Lender's gross negligence or willful misconduct) 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 by the Borrower of Eurodollar Loans
on a day which is not the last day of an Interest Period with respect thereto.
Such indemnification 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 (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would
17
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. If
any Lender becomes entitled to claim any amounts under the indemnity contained
in this subsection 9.16, it shall provide prompt notice thereof to the Borrower,
through the Administrative Agent, certifying (x) that one of the events
described in clause (a), (b) or (c) has occurred and describing in reasonable
detail the nature of such event, (y) as to the loss or expense sustained or
incurred by such Lender as a consequence thereof and (z) as to the amount for
which such Lender seeks indemnification hereunder and a reasonably detailed
explanation of the calculation thereof. Such a certificate as to any
indemnification pursuant to this subsection submitted by such Lender, through
the Administrative Agent, to the Borrower shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
9.17 [RESERVED]
9.18 Certain Rules Relating to the Payment of Additional Amounts. (a)
Upon the request, and at the expense, of the Borrower, each Section 9.15 Lender
to which the Borrower is required to pay any additional amount pursuant to
subsection 9.14 or 9.15, and any Participant in respect of whose participation
such payment is required, shall reasonably afford the Borrower the opportunity
to contest, and reasonably cooperate with the Borrower in contesting, the
imposition of any Non-Excluded Tax giving rise to such payment; provided that
(i) such Section 9.15 Lender shall not be required to afford the Borrower the
opportunity to so contest unless the Borrower shall have confirmed in writing to
such Section 9.15 Lender its obligation to pay such amounts pursuant to this
Agreement and (ii) the Borrower shall reimburse such Section 9.15 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
Tax.
(b) If a Section 9.15 Lender changes its applicable lending office
(other than pursuant to paragraph (c) below) and the effect of the change, as of
the date of the change, would be to cause the Borrower to become obligated to
pay any additional amount under subsection 9.14 or 9.15, the Borrower shall not
be obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the
passage of time or giving of notice, result in the payment of any additional
amount to any Section 9.15 Lender by the Borrower pursuant to subsection 9.14 or
9.15, such Section 9.15 Lender shall take such steps as may reasonably be
available to it and acceptable to the Borrower to mitigate the effects of such
condition or event (which shall include efforts to rebook the Loans held by such
Section 9.15 Lender at another lending office, or through another branch or an
affiliate, of such Section 9.15 Lender); provided that such Section 9.15 Lender
shall not be required to take any step that, in its reasonable judgment, would
be materially disadvantageous to its business or operations or would require it
to incur additional costs (unless the Borrower that would be required to pay
such additional amounts agrees to reimburse such Lender for the reasonable
incremental out-of-pocket costs thereof). If a condition or event occurs which
would, or would upon the passage of time or giving of notice, result in the
payment of any additional amount to any Lender by the Borrower pursuant to
subsection 9.14(a)(i) (i.e. increased costs for taxes) such Lender shall
promptly notify the Borrower and the Administrative Agent; provided that a
failure on the part of a Lender to notify the Borrower shall not result in any
liability to such Lender and shall not reduce the amount of any additional
amounts payable hereunder to such Lender to the
18
extent that such failure to notify the Borrower does not result in the payment
of any additional amount by the Borrower pursuant to subsection 9.14(a)(i) which
payment could have been avoided or reduced had the Lender notified the Borrower
in accordance with this subsection 9.18(c).
(d) If the Borrower shall become obligated to pay additional amounts
pursuant to subsection 9.14 or 9.15 and any affected Lender shall not have
promptly taken steps necessary to avoid the need for payments under subsection
9.14 or 9.15, the Borrower shall have the right, for so long as such obligation
remains, (x) with the assistance of the Administrative Agent, to seek one or
more substitute Lenders reasonably satisfactory to the Administrative Agent and
the Borrower to purchase the affected Loan, in whole or in part, at an aggregate
price no less than such Loan's principal amount plus accrued interest, and
assume the affected obligations under this Agreement, or (y) to the extent that
no Default or Event of Default under subsection 15.2(a) or subsection 15.2(d)
(with respect to violations of covenants in Section 13 of the Existing Credit
Agreement) shall have occurred of which the Borrower has actual knowledge and is
then continuing, upon at least four Business Days irrevocable notice to the
Administrative Agent, to prepay the affected Loan, in whole or in part, subject
to subsection 9.16, without premium or penalty. In the case of the substitution
of a Lender, the Borrower, the Administrative Agent, the affected Lender, and
any substitute Lender shall execute and deliver an appropriately completed
Assignment and Acceptance pursuant to subsection 17.6(c) to effect the
assignment of rights to, and the assumption of obligations by, the substitute
Lender. In the case of a prepayment of an affected Loan, the amount specified in
the notice shall be due and payable on the date specified therein, together with
any accrued interest to such date on the amount prepaid. In the case of each of
the substitution of a Lender and of the prepayment of an affected Loan, the
Borrower shall first pay the affected Lender any additional amounts owing under
subsections 9.14, 9.15 and 9.16 (as well as any commitment fees and other
amounts then due and owing to such Lender) prior to such substitution or
prepayment.
(e) If the Administrative Agent or any Section 9.15 Lender receives a
refund in respect of taxes for which the Borrower has made additional payments
pursuant to subsection 9.14(a) or 9.15(a), the Administrative Agent or such
Section 9.15 Lender, as the case may be, shall promptly pay such refund
(together with any interest with respect thereto received from the relevant
taxing authority) to the Borrower, provided, however, that the Borrower agrees
promptly to return such refund (together with any interest with respect thereto
due to the relevant taxing authority) (free of all Non-Excluded Taxes) to the
Administrative Agent or the applicable Lender, as the case may be, upon receipt
of a notice that such refund is required to be repaid to the relevant taxing
authority. Notwithstanding anything to the contrary contained in this clause
(e), no Lender shall have any obligation to disclose to the Borrower any of such
Lender's books, records or tax filings.
(f) For the purposes of subsections 9.14 and 9.15, a change in
treaty, law, rule or regulation shall not include (i) the ratification or entry
into force of the income tax treaty between Luxembourg and the United States of
America or (ii) the new United States withholding regulations (Treasury Decision
8734, Treasury Decision 8804, Treasury Decision 8856 and Treasury Decision 8881)
which become effective on January 1, 2001.
(g) The obligations of the Administrative Agent and each Section 9.15
Lender or Participant under this subsection 9.18 shall survive the termination
of this Agreement and the payment of the Loans and all amounts payable
hereunder.
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SECTION 10. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans, the Borrower hereby represents and warrants to
the Administrative Agent and each Lender that:
10.1 Financial Condition. The audited consolidated balance sheets of
the Parent and its Subsidiaries as at March 31, 1999 and March 31, 2000, and the
related consolidated statements of income and of cash flows for the fiscal years
ended on such dates, reported on by and accompanied by an unqualified report
from PricewaterhouseCoopers, present fairly, in all material respects, the
consolidated financial condition of the Parent and its Subsidiaries as at such
date, and the consolidated results of its operations and its consolidated cash
flows for the respective fiscal years then ended. The unaudited consolidated
balance sheet of the Parent and its Subsidiaries as at December 31, 2000, and
the related unaudited consolidated statements of income and cash flows for the
nine-month period ended on such date, on the basis disclosed in the footnotes to
such financial statements, present fairly, in all material respects, the
consolidated financial condition of the Parent and its Subsidiaries as at such
date, and the consolidated results of its operations and its consolidated cash
flows for the nine-month period then ended (subject to the omission of certain
footnotes and normal year-end audit and other adjustments). All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by a Responsible Officer, and disclosed in any such
schedules and notes, and except that such unaudited financial statements do not
contain certain footnotes). All material Guarantee Obligations, material
contingent liabilities and liabilities for taxes, or all material long-term
leases or unusual forward or long-term commitments, including, without
limitation, any interest rate or foreign currency swap or exchange transaction
or other obligation in respect of derivatives, which according to GAAP must be
reflected in such financial statements or the notes thereto are so reflected.
During the period from December 31, 2000 to and including the date hereof there
has been no disposition by the Parent or any of its Subsidiaries of any business
or property that would be material to the Parent and its Subsidiaries taken as a
whole, other than any such disposition which is reflected in the foregoing
financial statements or in the notes thereto, or which has otherwise been
disclosed in writing to the Lenders on or prior to the Closing Date.
10.2 No Change. Since March 31, 2000, there has been no development
or event relating to or affecting the Parent or its Subsidiaries which has had
or would reasonably be expected to have a Material Adverse Effect.
10.3 Corporate Existence; Compliance with Law. The Borrower (a) is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the organizational 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, except to the extent that the failure to have such legal
right would not be reasonably expected to have a Material Adverse Effect, (c) is
duly qualified as a foreign entity 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, other than in such jurisdictions
where the failure to be so qualified and in good standing would not be
reasonably expected to have a Material Adverse Effect and (d) is in compliance
with all Requirements of
20
Law except to the extent that the failure to comply therewith would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
10.4 Corporate Power; Authorization; Enforceable Obligations. (a) The
Borrower has the corporate or other organizational power and authority, and the
legal right, to make, deliver and perform the Credit Documents and to borrow
hereunder and has taken all necessary corporate or other organizational action
to authorize the execution, delivery and performance of the Credit Documents and
the borrowings on the terms and conditions of this Agreement and any Notes. No
consent or authorization of, filing with, notice to or other similar act by or
in respect of, any Governmental Authority or any other Person is required to be
obtained or made by or on behalf of the Borrower or any other Subsidiary of the
Parent in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of the Credit Documents,
except for (i) consents, authorizations, notices and filings described in
Schedule 10.4(a), all of which have been obtained or made or have the status
described therein and (ii) consents, authorizations, notices and filings which
the failure to obtain or make would not reasonably be expected to have a
Material Adverse Effect.
(b) This Agreement has been, and each of the other Credit Documents
and any other agreement to be entered into pursuant hereto will be, duly
executed and delivered on behalf of the Borrower. This Agreement constitutes,
and each of the other Credit Documents and any other agreement to be entered
into by the Borrower pursuant hereto will constitute upon execution and
delivery, the legal, valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, or similar laws relating to or affecting creditors' rights generally
and by general equitable principles (regardless of whether enforcement is sought
in a proceeding in equity or at law) and an implied covenant of good faith and
fair dealing.
10.5 No Legal Bar. The execution, delivery and performance of each
Credit Document by the Borrower, the incurrence of the Loans and the use of the
proceeds of the Loans (a) will not violate any Requirement of Law or any
Contractual Obligation applicable to or binding upon the Parent, the Borrower,
any other Subsidiary of the Parent or any of their respective properties or
assets in any respect that would reasonably be expected to have a Material
Adverse Effect and (b) will not result in the creation or imposition of any Lien
on any of their properties or assets pursuant to any Requirement of Law
applicable to it, as the case may be, or any of its Contractual Obligations.
10.6 Representations and Warranties in Existing Credit Agreement. The
representations and warranties made by the Borrower and its Affiliates in or
pursuant to the Existing Credit Agreement are, except to the extent that they
relate to a particular date, true and correct in all material respects on and as
of the date hereof as if made on and as of the date hereof.
10.7 No Default. No Default or Event of Default has occurred and is
continuing; and no Default under (and as defined in) the Existing Credit
Agreement has occurred and is continuing.
10.8 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
21
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. If requested by any
Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form G-3 or FR Form U-1 referred to in
said Regulation U.
10.9 Accuracy and Completeness of Information. The factual statements
contained in the financial statements referred to in subsection 10.1, the Credit
Documents (including the schedules thereto, but excluding any statements by the
Administrative Agent or any Lender) and any other certificates or documents
furnished by or on behalf of the Borrower or any of its Subsidiaries to the
Administrative Agent or the Lenders from time to time in connection with this
Agreement, taken as a whole, did not as of the Closing Date, to the best
knowledge of the Borrower, contain any material misstatement of fact or omit to
state a material fact necessary in order to make the statements contained
therein, in light of the circumstances in which the same were made, not
materially misleading; all except as otherwise qualified herein or therein, and
such knowledge qualification being given only with respect to factual statements
made by Persons other than the Borrower or any of its Subsidiaries. It is
understood that no representation or warranty is made concerning any forecasts,
estimates, pro forma information, projections and statements as to anticipated
future performance or conditions, and the assumptions on which they were based,
contained in any such financial statements, certificates or documents except
that as of the date such forecasts, estimates, pro forma information,
projections and statements were generated, (i) such forecasts, estimates, pro
forma information, projections and statements were based on the good faith
assumptions of the management of the Borrower and (ii) such assumptions were
believed by such management to be reasonable. Such forecasts, estimates, pro
forma information and statements, and the assumptions on which they were based,
may or may not prove to be correct.
10.10 Senior Indebtedness. The monetary obligations of the Borrower
under this Agreement and the Notes constitute "Senior Indebtedness" under and as
defined in the Senior Subordinated Note Indenture.
SECTION 11. CONDITIONS PRECEDENT
11.1 Conditions to Closing Date. The Closing Date shall be the date of
satisfaction of the following conditions precedent:
(a) Credit Agreement. The Administrative Agent shall have received
this Agreement, executed and delivered by a duly authorized officer of the
Borrower.
(b) Corporate Proceedings. The Administrative Agent shall have
received, with a photocopy for each Lender, a copy of the resolutions, in
form and substance reasonably satisfactory to the Administrative Agent, of
the Board of Directors or comparable body of the Borrower authorizing (i)
the execution, delivery and performance of each Credit Document and (ii)
the borrowings contemplated hereunder, certified by the Secretary, an
Assistant Secretary or other officer 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 except as any later such resolution may modify any earlier such
resolution.
22
(c) Incumbency Certificate. The Administrative Agent shall have
received, with a photocopy 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 a Responsible
Officer and the Secretary or any Assistant Secretary or other officer the
Borrower.
(d) Corporate Documents. The Administrative Agent shall have
received, with a photocopy for each Lender, complete and correct copies of
the certificate of incorporation and by-laws (or analogous documents) of
the Borrower, certified as of the Closing Date as complete and correct
copies thereof by the Secretary, an Assistant Secretary or other officer of
the Borrower.
(e) Consents, Licenses and Approvals. If there are any consents,
authorizations or filings referred to in Schedule 10.4(a), the
Administrative Agent shall have received, with a photocopy for each Lender,
a certificate of a Responsible Officer of the Borrower stating that all
such consents, authorizations and filings referred to in Schedule 10.4(a)
are in full force and effect or have the status described therein, and the
Administrative Agent shall have received evidence thereof reasonably
satisfactory to it.
(f) Legal Opinions. The Administrative Agent shall have received,
with a photocopy counterpart for each Lender, the following executed legal
opinions:
(i) the legal opinion of Debevoise & ▇▇▇▇▇▇▇▇, special New York
counsel to the Borrower, substantially in the form of Exhibit C-1; and
(ii) the legal opinion of ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇, Esq., internal
counsel to the Borrower, substantially in the form of Exhibit C-2.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative
Agent may reasonably require.
(g) Fees. The Administrative Agent and the Lenders shall have
received all fees, costs, and expenses due and payable on or prior to the
Closing Date, including, without limitation, the fees referred to in
subsection 9.2 and subsection 9.17.
If requested by the Borrower, the Borrower will receive an acknowledgment by the
Administrative Agent and each Lender that each of the conditions precedent set
forth in this subsection 11.1 shall have been satisfied in accordance with its
respective terms or shall have been irrevocably waived by such Person.
11.2 Conditions to Each Loan. The agreement of each Lender to make
any Loan requested to be made by it on any date (including, without limitation,
any Loan to be made on the Closing Date) is subject to the satisfaction or
waiver of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower in or pursuant to the Credit Documents
shall, except to
23
the extent that they relate to a particular date, be true and correct in
all material respects on and as of such date as if made on and as of such
date.
(b) No Default. No Default or Event of Default, and no Default under
(and as defined in) the Existing Credit Agreement, shall have occurred and
be continuing on such date or after giving effect to the Loans requested to
be made on such date.
(c) Availability under Existing Credit Agreement. The aggregate
amount of the Available Revolving Credit Commitments (as defined in the
Existing Credit Agreement) of all lenders under the Existing Credit
Agreement shall be less than $1,000,000, after giving effect to the Loans
requested to be made on such date and the use of the proceeds thereof.
Each borrowing by 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 12. PREPAYMENTS IN RESPECT OF EXISTING CREDIT AGREEMENT
12.1 Prepayments under Existing Credit Agreement. The Borrower agrees
that it will not elect to make any prepayments of Revolving Credit Loans under
(and as defined in) the Existing Credit Agreement at any time when any Loans are
outstanding hereunder.
SECTION 13. [RESERVED]
SECTION 14. [RESERVED]
SECTION 15. EVENTS OF DEFAULT
15.1 Certain Bankruptcy Events. If any Credit Agreement Event of
Default under clause (a) or (b) of subsection 15.1 of the Existing Credit
Agreement with respect to the Borrower shall occur and be continuing,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement shall immediately become due and payable
15.2 Other 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 when due
in accordance with the terms thereof, 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
(b) Any representation or warranty made or deemed made by the
Borrower herein or in any other Credit Document or which is contained in
any certificate furnished by it at any time under or pursuant to 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;
or
24
(c) The Borrower shall default in the observance or performance of
any other agreement contained in this Agreement (other than as provided in
paragraphs (a) and (b) of this subsection 15.2), and such default shall
continue unremedied for a period ending on the earlier of (i) the date 30
days after a Responsible Officer of the Borrower shall have discovered or
should have discovered such default and (ii) the date 15 days after written
notice has been given to the Borrower by the Administrative Agent; or
(d) Any Credit Agreement Event of Default (other than those specified
in subsection 15.1) shall occur;
then, and in any such event, either or both of the following actions may be
taken:
(i) with the consent of the Lenders, the Administrative Agent
may, or upon the request of the 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 Lenders, the Administrative Agent
may, or upon the request of the Lenders, the Administrative Agent
shall, by notice to the Borrower, declare the Loans hereunder (with
accrued interest thereon) and all other amounts owing on account
thereof under this Agreement to be due and payable forthwith,
whereupon the same shall immediately become due and payable.
15.3 Certain Waivers. Except as expressly provided above in this
Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived.
SECTION 16. THE ADMINISTRATIVE AGENT
16.1 Appointment. (a) Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Credit Documents, and each such Lender irrevocably
authorizes the Administrative Agent, 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 the Administrative 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, the
Administrative Agent shall not 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 the Administrative Agent.
16.2 Delegation of Duties. The Administrative Agent may execute any
of its 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. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agent or attorneys
in-fact selected by it with reasonable care.
25
16.3 Exculpatory Provisions. Neither the Administrative Agent nor any
of its 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 the Administrative 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. The Administrative Agent shall be under no
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 Credit Document, or to inspect the properties, books or records
of the Borrower.
16.4 Reliance by Administrative Agent. The Administrative Agent 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 the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent 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 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. With respect to any action permitted to be
taken by the Administrative Agent hereunder or under any other Credit Document,
the Administrative Agent shall take such action if directed to do so by the
Lenders. The Administrative Agent 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 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..
16.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative 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
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Lenders; provided that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
26
16.6 Acknowledgments and Representations by Lenders. Each Lender
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Administrative
Agent hereinafter taken, including any review of the affairs of the Borrower,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to each other party
hereto that it has, independently and without reliance upon the Administrative
Agent 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
creditworthiness of the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents to each
other party hereto that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit 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. Each Lender
represents to each other party hereto that it is a bank, savings and loan
association or other similar savings institution, insurance company, investment
fund or company or other financial institution that makes or acquires commercial
loans in the ordinary course of its business, that it is participating hereunder
as a Lender for such commercial purposes, and that it has the knowledge and
experience to be and is capable of evaluating the merits and risks of being a
Lender hereunder. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent hereunder,
the Administrative Agent shall have no 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
the Borrower which may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
16.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity 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 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 the Administrative Agent 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 the Administrative Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Administrative Agent. The agreements in
this subsection shall survive the payment of the Loans and all other amounts
payable hereunder.
16.8 Administrative Agent in its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower or any Affiliate
thereof as though the Administrative Agent
27
were not the Administrative Agent hereunder and under the other Credit
Documents. With respect to the Loans made by it, the Administrative 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 the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
16.9 Successor Administrative Agent. (a) The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders.
(b) If the Administrative Agent shall resign as "Administrative
Agent" under this Agreement and the other Credit Documents, then the Lenders
shall appoint from among the Lenders a successor Administrative Agent (which
shall be a bank) for the Lenders, which successor Administrative Agent (provided
that, to the extent that no Default or Event of Default is continuing at the
time of such appointment, such Administrative Agent shall have been approved by
the Borrower), shall succeed to the rights, powers and duties of the
Administrative Agent hereunder. Effective upon such appointment and approval,
the term "Administrative Agent" shall mean such successor Administrative Agent,
and the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans. After any retiring Administrative
Agent's resignation as Administrative Agent, the provisions of this Section 16
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 and the other Credit
Documents.
16.10 Syndication Agent. The Syndication Agent shall no duties or
responsibilities hereunder in its capacity as such.
SECTION 17. MISCELLANEOUS
17.1 Amendments and Waivers. (a) Neither this Agreement nor any other
Credit Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection 17.1.
(b) Except as set forth in the succeeding paragraphs of this
subsection 17.1, the Majority Lenders may, or, with the written consent of the
Majority Lenders, the Administrative Agent may, from time to time, (i) 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 (ii) waive
at the Borrower's request on such terms and conditions as the Majority 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 (any such amendment,
supplement, modification or waiver, a "Specified Change"); provided, that (y)
without the written consent of the then Administrative Agent, no Specified
Change shall amend, modify or waive any provision of Section 16 or any other
provision of this Agreement governing the rights or obligations of the
Administrative Agent and (z) without the written consent of all the Lenders, no
Specified Change shall reduce any percentage specified in the definition of
"Majority Lenders".
28
(c) Without the written consent of each Lender directly affected
thereby, no Specified Change shall reduce the amount or extend the scheduled
date of maturity of any Loan, or reduce the stated rate of any interest payable
hereunder or extend the scheduled date of any payment thereof, or increase the
amount or extend the expiration date of any Lender's Commitment or amend, modify
or waive any provision of this subsection 17.1.
(d) Without the written consent of all the Lenders, no Specified
Change shall consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement and the other Credit Documents.
(e) 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 Administrative Agent and all future holders
of the Loans. In the case of any waiver, each of the Borrower, the Lenders and
the Administrative Agent 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.
17.2 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; (c) in the case of delivery by a
nationally recognized overnight courier, when received or (d) in the case of
delivery by facsimile transmission, when sent and receipt has been confirmed,
addressed as follows in the case of the Borrower and the Administrative Agent,
and as set forth in Schedule II in the case of the other parties hereto, or to
such other address as may be hereafter notified by the respective parties hereto
and any future holders of the Loans:
The
Borrower: Acterna LLC
3 New England Executive Park
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇,
Corporate Vice President and General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agent: Credit Suisse First ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Agency Group
Fax: ▇▇▇-▇▇▇-▇▇▇▇
29
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsections 2.2, 9.3, 9.4, 9.6 or 9.12(b) shall not
be effective until received.
17.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent, any Lender or the
Borrower, 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.
17.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Credit Documents and in any
certificate delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the making of the Loans
hereunder.
17.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse each of the Administrative Agent for all its reasonable out-of-pocket
costs and expenses incurred in connection with the 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 and disbursements of counsel to the Administrative Agent; (b) to pay or
reimburse each Lender and the Administrative Agent for all its reasonable 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 reasonable fees and disbursements
of counsel to the Administrative Agent and the several Lenders; (c) to pay,
indemnify, and hold each Lender and the Administrative Agent 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 harmless each Lender and the Administrative Agent 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, the other Credit Documents and any such other
documents, or the use of the proceeds of the Loans and other extensions of
credit hereunder (all the foregoing in this clause (d), collectively, the
"indemnified liabilities"), provided that the Borrower shall have no obligation
hereunder to the Administrative Agent or any Lender with respect to indemnified
liabilities arising from (i) the gross negligence or willful misconduct of the
30
Administrative Agent or such Lender, as the case may be, (or any of their
respective directors, trustees, officers, employees, agents, successors and
assigns) or (ii) claims made or legal proceedings commenced against the
Administrative Agent or any such Lender by any securityholder or creditor
thereof arising out of and based upon rights afforded any such securityholder or
creditor solely in its capacity as such. Notwithstanding the foregoing, except
as provided in clauses (b) and (c) above, the Borrower shall have no obligation
under this subsection 17.5 to the Administrative Agent or any Lender with
respect to any tax, levy, impost, duty, charge, fee, deduction or withholding
imposed, levied, collected, withheld or assessed by any Governmental Authority.
The agreements in this subsection shall survive repayment of the Loans and all
other amounts payable hereunder.
17.6 Successors and Assigns; Participations and Assignments. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Lenders, the Administrative Agent and their respective successors and assigns,
except that the Borrower may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("Participants") participating interests in any Loan owing to such
Lender, any Commitment of such Lender or any other interest of such Lender
hereunder and under the other Credit Documents; provided that (unless the
Borrower and the Administrative Agent otherwise consent in writing) no such
participating interests shall be in an aggregate principal amount of less than
$5,000,000 in the aggregate (or, if less, the full amount of such selling
Lender's Loans and Commitments). 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 Administrative Agent
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. Any agreement pursuant to which any Lender shall sell any such
participating interest shall provide that such Lender shall retain the sole
right and responsibility to exercise such Lender's rights and enforce the
Borrower's obligations hereunder, including the right to consent to any
amendment, supplement, modification or waiver of any provision of this Agreement
or any of the other Credit Documents, and 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, provided that such participation agreement may
provide that, without the consent of the Participant, such Lender will not agree
to any amendment, supplement, modification or waiver reducing the amount or rate
of, or extending the due date of, any payment hereunder, or consenting to the
transfer by the Borrower of any of its rights or obligations hereunder. The
Borrower also agrees that each Lender shall be entitled to the benefits of
subsections 9.14, 9.15 and 9.16 without regard to whether it has granted any
participating interests, and that all amounts payable to a Lender under
subsections 9.14, 9.15 and 9.16 shall be determined as if such Lender had not
granted any such participating interests.
(c) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to (A)
any Lender or any Affiliate
31
thereof, or (B) with the consent of the Administrative Agent and the Borrower
(which, in each case, shall not be unreasonably withheld), to any additional
bank or financial institution (any such assignee, 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 D, executed by such Assignee, such assigning Lender (and, to the extent
required pursuant to (B) above, by the Borrower) and delivered to the
Administrative Agent for its acceptance and recording in the Register, provided
that (x) in the case of any such assignment, the sum (without duplication) of
the aggregate principal amount of the Loans and the aggregate amount of the
Available Commitment being assigned is not less than $5,000,000 (or, if less,
the full amount of such selling Lender's Loans and Commitments), or such lesser
amount as may be agreed to by the Borrower and the Administrative Agent, and (y)
if any Lender assigns all or any part of its rights and obligations under this
Agreement to one of its Affiliates in connection with or in contemplation of the
sale or other disposition of its interest in such Affiliate, the Borrower's
prior written consent shall be required for such assignment. 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 the foregoing, no Assignee, which as of the date
of any assignment to it pursuant to this subsection 17.6(c) would be entitled to
receive any greater payment under subsection 9.14 or 9.15 than the assigning
Lender would have been entitled to receive as of such date under such
subsections with respect to the rights assigned, shall be entitled to receive
such payments unless the Borrower has consented in writing to the assignment and
agreed in writing to waive the benefit of this sentence.
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent, referred to in subsection
17.2 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 the Commitments of, and principal amounts of the Loans owing to, each Lender
from time to time. The entries in the Register shall be conclusive, 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 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 or other obligation hereunder whether or not evidenced by a Note shall
be effective only upon appropriate entries with respect thereto being made in
the Register (and each Note shall expressly provide so). The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Upon 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 and the Administrative
Agent), together with payment to the Administrative Agent of a registration and
processing fee of $2,500, 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
32
notice of such acceptance and recordation to the Lenders and the Borrower. On or
prior to such effective date, the assigning Lender shall surrender any
outstanding Note held by it all or a portion of which are being assigned, and
each Borrower, at its own expense, shall, upon the request to the Administrative
Agent execute and deliver to the Administrative Agent (in exchange for the
outstanding Note of the assigning Lender) a new Note to the order of such
Assignee in an amount equal to (i) the amount of such Assignee's Commitment
after giving effect to such Assignment and Acceptance and, if the assigning
Lender has retained a Commitment hereunder, a new Note to the order of the
assigning Lender in an amount equal to the amount of such Lender's Commitment
after giving effect to such Assignment and Acceptance. Any such new Notes shall
be dated the Closing Date and shall otherwise be in the form of the Note
replaced thereby. Any Notes surrendered by the assigning Lender shall be
returned by the Administrative Agent to the Borrower marked "canceled".
(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 17.15, 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. No assignment or
participation made or purported to be made to any Transferee shall be effective
without the prior written consent of the Borrower if it would require the
Borrower to make any filing with any Governmental Authority or qualify any Loan
or Note under the laws of any jurisdiction, and the Borrower shall be entitled
to request and receive such information and assurances as it may reasonably
request from any Lender or any Transferee to determine whether any such filing
or qualification is required or whether any assignment or participation is
otherwise in accordance with applicable law.
(g) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this subsection concerning assignments of Loans and Notes
do not prohibit any pledge by a Lender of any Loan or Note to any Federal
Reserve Bank in accordance with applicable law.
17.7 Adjustments; Set-off. (a) If any Lender (a "benefitted Lender")
shall at any time receive any payment of all or part of any of its Loans, or
interest thereon, pursuant to a guarantee or otherwise, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off
or otherwise), in a greater proportion than any such payment to and collateral
received by any other Lender, if any, in respect of such other Lender's Loans or
interest thereon, such benefitted Lender shall purchase for cash from the other
Lender such portion of each such other Lender's Loans, or shall provide such
other Lender with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest. The Borrower agrees that each Lender so
purchasing a portion of another Lender's Loans may exercise all rights of
payment (including, without limitation, rights of set-off) with respect to such
portion as fully as if such purchasing Lender were the direct holder of such
portion.
33
(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 the occurrence of an Event of Default under subsection
15.2(a) to set-off and appropriate and apply against any amount then due and
payable by the Borrower under such subsection 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.
17.8 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 delivered to the Borrower and the
Administrative Agent.
17.9 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.
17.10 Integration. This Agreement and the other Credit Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Borrower, the Administrative
Agent or any Lender relative to subject matter hereof not expressly set forth or
referred to herein or in the other Credit Documents.
17.11 GOVERNING LAW. THIS AGREEMENT AND ANY NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND ANY NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
17.12 Submission To Jurisdiction; Waivers. Each party hereto 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
34
action or proceeding in any such court or that such action or proceeding
was brought in an inconvenient forum 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 or the applicable Lender, as the case may be, at its address set
forth in subsection 17.2 or at such other address of which the
Administrative Agent, any such Lender and the Borrower 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 ▇▇▇ 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 punitive damages.
17.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents;
(b) none of the Administrative Agent or 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 Administrative Agent and 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.
17.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE LENDERS 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.
17.15 Confidentiality. (a) Each Lender and the Administrative Agent
agrees (on behalf of itself and each of its affiliates, directors, officers,
employees, agents, advisors and representatives) to keep confidential any
Confidential Information, and in connection therewith comply with their
customary procedures for handling confidential information of this nature and
with safe and sound lending practices; provided that nothing herein shall limit
its disclosure of any such information (i) to the extent required by statute,
rule, regulation or judicial process, (ii) to counsel for any of the Lenders or
the Administrative Agent, (iii) to bank examiners, insurance commissioners or
other Governmental Authorities, having jurisdiction over the disclosing Lender,
or to such Lender's auditors or accountants, (iv) to the Administrative Agent or
any other Lender, (v) by the Administrative Agent or any Lender to an Affiliate
thereof, (vi) in
35
connection with any enforcement of any of the Credit Documents or (vii) to any
Transferee or prospective Transferee or to any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and its obligations that agrees to comply with this subsection and
(in the case of any such Person that at the time of such disclosure has not yet
become a Lender) executes and delivers to the Borrower a written instrument in
favor of the Borrower confirming such agreement, in form and substance
reasonably satisfactory to the Borrower; provided that (x) in the case of the
preceding clauses (i) and (iii), such Lender shall, to the extent legally
permissible, notify the Borrower of the proposed disclosure as far in advance as
is reasonably practicable under the circumstances, (y) in the case of the
preceding clauses (ii) and (iii), such Lender shall inform each such counsel,
auditor or accountant of the agreement under this subsection 17.15 and take
reasonable actions to cause compliance by any such Person with this agreement
(including, where appropriate, to cause any such Person to acknowledge its
agreement to be bound by the agreement under this subsection 17.15) and (z) in
the case of the preceding clause (v), such Lender or the Administrative Agent
shall be responsible for any failure by such Affiliate of the Lender or the
Administrative Agent to comply with this subsection. For purposes of this
subsection 17.15, "Confidential Information" shall mean, with respect to the
Administrative Agent or any Lender (an "Affected Party"), information delivered
to such Affected Party by or on behalf of the Borrower, the Administrative Agent
or any other Lender in connection with the transactions contemplated by or
otherwise pursuant to this Agreement or information obtained by the Affected
Party in the course of any review of the books or records of the Parent or the
Borrower; provided that such term shall not include information (i) that was
publicly known or otherwise known to such Affected Party prior to the time of
such disclosure on a nonconfidential basis without a duty of confidentiality to
any Credit Party or Subsidiary thereof being violated, (ii) that subsequently
becomes publicly known through no act or omission by any Affected Party or any
Person acting on the Affected Party's behalf, (iii) that becomes known to such
Affected Party on a nonconfidential basis without a duty of confidentiality to
the Borrower or Subsidiary thereof being violated and other than through
disclosure by or on behalf of the Borrower or (iv) that constitutes financial
information delivered to any Affected Party that is otherwise publicly available
through no act or omission of any Affected Party or Person acting on such
Affected Person's behalf.
36
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.
ACTERNA LLC, as Borrower
By:
---------------------------
Name:
Title:
37
CREDIT SUISSE FIRST BOSTON, as Administrative
Agent and as a Lender
By:
---------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as Syndication Agent and
as a Lender
By:
---------------------------
Name:
Title:
38
SCHEDULE I
LENDERS; COMMITMENTS
Lender Commitment
------ ----------
Credit Suisse First Boston $20,000,000
The Chase Manhattan Bank $20,000,000
-----------
Total: $40,000,000
39
SCHEDULE II
ADDRESSES FOR NOTICES
CREDIT SUISSE FIRST BOSTON
Eleven Madison Avenue
20th Floor
New York, NY 10010-3629
Attn: ▇▇▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE CHASE MANHATTAN BANK
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
40