DEBTOR-IN-POSSESSION
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF JULY 30, 1999
AMONG
▇▇▇▇ GRAPHIC SYSTEMS, INC.,
AS BORROWER,
THE LENDERS LISTED HEREIN,
AS LENDERS,
BANKERS TRUST COMPANY,
AS AGENT
AND
▇▇▇▇▇▇ BROTHERS
AS DOCUMENTATION AGENT,
AND
AMENDMENT TO
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF JULY 30, 1999
AMONG
▇▇▇▇ GRAPHIC SYSTEMS LIMITED,
▇▇▇▇ SYSTEMES GRAPHIQUES NANTES S.A.,
AND
▇▇▇▇ GRAPHIC SYSTEMS JAPAN CORPORATION,
AS BORROWERS,
THE LENDERS LISTED HEREIN,
AS LENDERS,
BANKERS TRUST COMPANY,
AS AGENT,
AND
▇▇▇▇▇▇ BROTHERS,
AS DOCUMENTATION AGENT
TABLE OF CONTENTS
PAGE
Section 1. DEFINITIONS...........................................................................3
1.1 Certain Defined Terms.................................................................3
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under
Agreement............................................................................39
1.3 Other Definitional Provisions........................................................39
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS; AMENDMENT OF EXISTING CREDIT
AGREEMENT............................................................................40
2.1 Commitments; Making of Loans; the Register; Notes....................................40
2.2 Interest on the Loans................................................................52
2.3 Fees.................................................................................55
2.4 Repayments, Prepayments and Voluntary Reductions in DIP/Bridge Loan Commitments;
General Provisions Regarding Payments................................................56
2.5 Use of Proceeds......................................................................61
2.6 Special Provisions Governing Offshore Rate Loans.....................................62
2.7 Increased Costs; Taxes; Capital Adequacy.............................................64
2.8 Obligations of Lenders and Issuing Lenders to Mitigate; Replacement of Lenders.......64
2.9 Indemnifying Lenders.................................................................64
2.10 Superpriority Nature of Obligations..................................................64
Section 3. LETTERS OF CREDIT....................................................................65
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations Therein........65
3.2 Letter of Credit Fees................................................................67
3.3 Drawings and Reimbursement of Amounts Drawn Under Letters of Credit..................69
3.4 Obligations Absolute.................................................................71
3.5 Indemnification; Nature of Issuing Lenders' Duties...................................72
3.6 Increased Costs and Taxes Relating to Letters of Credit..............................73
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Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT............................................74
4.1 Conditions to Initial Effectiveness..................................................75
4.2 Conditions to All Loans..............................................................80
4.3 Conditions to Letters of Credit......................................................81
4.4 Conditions to Foreign Bridge Loans...................................................82
Section 5. BORROWERS' REPRESENTATIONS AND WARRANTIES............................................83
5.1 Organization, Powers, Qualification, Good Standing, Business and Subsidiaries........84
5.2 Authorization of Borrowing, etc......................................................84
5.3 Financial Condition..................................................................86
5.4 No Material Adverse Change; No Restricted Junior Payments............................86
5.5 Title to Properties; Liens...........................................................87
5.6 Litigation; Adverse Facts............................................................87
5.7 Payment of Taxes.....................................................................87
5.8 Performance of Agreements; No Materially Adverse Agreements..........................88
5.9 Governmental Regulation..............................................................88
5.10 Securities Activities................................................................88
5.11 Employee Benefit Plans...............................................................88
5.12 [INTENTIONALLY OMITTED]..............................................................89
5.13 Environmental Protection.............................................................89
5.14 Employee Matters.....................................................................90
5.15 [INTENTIONALLY OMITTED]..............................................................91
5.16 Disclosure...........................................................................91
5.17 Inventory and Accounts...............................................................91
5.18 Orders...............................................................................92
Section 6. BORROWERS' AFFIRMATIVE COVENANTS.....................................................92
6.1 Financial Statements and Other Reports...............................................93
6.2 Corporate Existence, etc.............................................................99
6.3 Payment of Taxes and Claims; Tax Consolidation.......................................99
ii
6.4 Maintenance of Properties; Insurance; Application of Net Insurance/Condemnation
Proceeds.............................................................................99
6.5 Inspection; Records; Audits and Appraisals..........................................101
6.6 Compliance with Laws, etc...........................................................101
6.7 Environmental Disclosure and Inspection.............................................101
6.8 [INTENTIONALLY OMITTED].............................................................104
6.9 [INTENTIONALLY OMITTED].............................................................104
6.10 [INTENTIONALLY OMITTED].............................................................104
6.11 Year 2000 Covenant..................................................................104
6.12 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Equity Contribution; Investment Agreement...........................104
6.13 Cash Maintenance....................................................................105
6.14 Borrowing Base and Inventory Reports................................................105
6.15 Further Assurances..................................................................106
6.16 Waiver of Claims to Surcharge.......................................................107
6.17 Repayment of Certain Loans by ▇▇▇▇ Japan............................................107
Section 7. BORROWERS' NEGATIVE COVENANTS.......................................................108
7.1 Indebtedness........................................................................108
7.2 Liens and Related Matters...........................................................109
7.3 Investments; Joint Ventures.........................................................110
7.4 Contingent Obligations..............................................................110
7.5 Restricted Junior Payments; Payments of Prepetition Indebtedness....................111
7.6 Financial Covenants.................................................................112
7.7 Restriction on Fundamental Changes; Asset Sales and Acquisitions....................113
7.8 Consolidated Capital Expenditures...................................................114
7.9 Sales and Lease-Backs...............................................................114
7.10 Transactions with Shareholders and Affiliates.......................................114
7.11 Disposal of Subsidiary Stock........................................................115
7.12 Conduct of Business.................................................................115
7.13 [INTENTIONALLY OMITTED].............................................................115
7.14 Fiscal Year.........................................................................115
iii
7.15 Foreign Unfunded Pension Plans......................................................115
7.16 Chapter 11 Claims...................................................................115
7.17 Agreements..........................................................................116
7.18 Remedies of Agent...................................................................116
Section 8. EVENTS OF DEFAULT...................................................................116
8.1 Failure to Make Payments When Due...................................................116
8.2 Default in Other Agreements.........................................................116
8.3 Breach of Certain Covenants.........................................................116
8.4 Breach of Warranty..................................................................117
8.5 [INTENTIONALLY OMITTED].............................................................117
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc................................117
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc..................................117
8.8 Bankruptcy Proceeding Events........................................................118
8.9 Reorganization Plan; Final Borrowing Order..........................................119
8.10 Judgments and Attachments...........................................................119
8.11 Dissolution.........................................................................120
8.12 Employee Benefit Plans..............................................................120
8.13 Change in Control; Management.......................................................120
8.14 Invalidity of Loan Documents........................................................121
8.15 Failure of Security; Denial of Lock-Up Agreement....................................121
8.16 Amendment of Certain Documents of Holdings..........................................121
8.17 Conduct of Business Relating to Holdings............................................121
8.18 Failure to Perform under Investment Agreement.......................................122
8.19 Failure by Stonington to Make Equity Contributions..................................122
Section 9. AGENT...............................................................................124
9.1 Appointment.........................................................................124
9.2 Powers and Duties; General Immunity.................................................124
9.3 Representations and Warranties; No Responsibility For Appraisal of
Creditworthiness....................................................................126
iv
9.4 Right to Indemnity..................................................................126
9.5 Successor Agent.....................................................................126
9.6 Collateral Documents and Guaranties.................................................127
9.7 Documentation Agent.................................................................128
Section 10. MISCELLANEOUS.......................................................................128
10.1 Assignments and Participations in Loans and Letters of Credit.......................128
10.2 Expenses............................................................................131
10.3 Indemnity...........................................................................133
10.4 Set-Off; Security Interest in Deposit Accounts......................................134
10.5 Ratable Sharing.....................................................................134
10.6 Amendments and Waivers..............................................................135
10.7 Independence of Covenants...........................................................137
10.8 Notices.............................................................................137
10.9 Survival of Representations, Warranties and Agreements..............................137
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative...............................137
10.11 Marshalling; Payments Set Aside.....................................................138
10.12 Severability........................................................................138
10.13 Obligations Several; Independent Nature of Lenders' Rights..........................138
10.14 Headings............................................................................138
10.15 Applicable Law......................................................................138
10.16 Successors and Assigns..............................................................139
10.17 Consent to Jurisdiction and Service of Process......................................139
10.18 Waiver of Jury Trial................................................................139
10.19 Confidentiality.....................................................................140
10.20 Judgment Currency...................................................................141
10.21 Counterparts; Effectiveness.........................................................141
10.22 No Immunity.........................................................................141
10.23 Parties Including Trustees; Court Proceedings.......................................142
Signature pages .................................................................................... S-1
v
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF REQUEST FOR ISSUANCE OF LETTER OF CREDIT
IV FORM OF DIP/BRIDGE NOTE
V FORM OF DIP SWING LINE NOTE
VI FORM OF COMPLIANCE CERTIFICATE
VII FORM OF FINANCIAL CONDITION CERTIFICATE
VIII FORM OF OPINION OF ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
IX FORM OF ASSIGNMENT AGREEMENT
X FORM OF COLLATERAL ACCOUNT AGREEMENT
XI FORM OF GUARANTY
XII FORM OF SECURITY AGREEMENT
XIII [INTENTIONALLY OMITTED]
XIV FORM OF SUBSIDIARY SECURITY AGREEMENT
XV FORM OF NOTICE OF ALLOCATION
XVI FORM OF BORROWING BASE CERTIFICATE
XVII-A FORM OF INTERIM BORROWING ORDER
XVII-B FORM OF FINAL BORROWING ORDER
vi
SCHEDULES
1.1(a) BANK OF ENGLAND RELATIVE RESERVE RATIO REQUIREMENT
CALCULATION
1.1(b) CONTRIBUTED ACCOUNTS
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
5.1 SUBSIDIARIES OF COMPANY
5.4 MATERIAL ADVERSE CHANGES
5.6 LITIGATION
5.12 CERTAIN FEES
5.13 ENVIRONMENTAL MATTERS
7.1 CERTAIN EXISTING INDEBTEDNESS
7.2 CERTAIN EXISTING LIENS
7.3 CERTAIN EXISTING INVESTMENTS
7.4 CERTAIN EXISTING CONTINGENT OBLIGATIONS; EXISTING LETTERS
OF CREDIT
ANNEXES
A 2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY
B 2.8 OBLIGATIONS OF LENDERS AND ISSUING LENDERS TO MITIGATE
C 2.9 INDEMNIFYING LENDERS
vii
▇▇▇▇ GRAPHIC SYSTEMS, INC.
DEBTOR-IN-POSSESSION
MULTICURRENCY CREDIT AGREEMENT
AND
▇▇▇▇ GRAPHIC SYSTEMS LIMITED,
▇▇▇▇ SYSTEMES GRAPHIQUES NANTES S.A.,
AND
▇▇▇▇ GRAPHIC SYSTEMS JAPAN CORPORATION
AMENDMENT TO MULTICURRENCY CREDIT AGREEMENT
This DEBTOR-IN-POSSESSION MULTICURRENCY CREDIT AGREEMENT is
dated as of July 30, 1999 and entered into by and among ▇▇▇▇ GRAPHIC SYSTEMS,
INC., a corporation organized under the laws of the State of Delaware
("COMPANY") and whose registered office is at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, THE FINANCIAL INSTITUTIONS ACTING AS LENDERS AND LISTED ON THE
SIGNATURE PAGES HEREOF, THE FINANCIAL INSTITUTIONS ACTING AS INDEMNIFYING
LENDERS AND LISTED ON THE SIGNATURE PAGES HEREOF, BANKERS TRUST COMPANY
("BTCO"), as Agent for Lenders (in such capacity, including its successors and
assigns, "AGENT"), and whose registered office is at One Bankers Trust Plaza,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇ BROTHERS, as
Documentation Agent and whose registered office is at 3 World Financial Center,
New York, New York, 10285, and this AMENDMENT TO MULTICURRENCY CREDIT AGREEMENT
is dated as of the date hereof and entered into by and among ▇▇▇▇ GRAPHIC
SYSTEMS LIMITED (Company Number 3212468), a company organized under the laws of
England ("▇▇▇▇ UK") and whose registered office is at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇ SYSTEMES GRAPHIQUES NANTES S.A., a SOCIETE ANONYME
organized under the laws of the Republic of France ("▇▇▇▇ FRANCE") and whose
registered office is at ▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ GRAPHIC SYSTEMS
JAPAN CORPORATION, a corporation organized under the laws of Japan ("▇▇▇▇
JAPAN") and whose registered office is at Mitsuya ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇, THE FINANCIAL INSTITUTIONS ACTING AS
LENDERS AND LISTED ON THE SIGNATURE PAGES HEREOF, THE FINANCIAL INSTITUTIONS
ACTING AS INDEMNIFYING LENDERS AND LISTED ON THE SIGNATURE PAGES HEREOF, BANKERS
TRUST COMPANY ("BTCO"), as Agent for Prepetition Lenders (in such capacity,
including its successors and assigns, "AGENT") and whose registered office is at
One Bankers Trust Plaza, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and
▇▇▇▇▇▇ BROTHERS, as Documentation Agent and whose registered office is at 3
World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇.
1
R E C I T A L S
WHEREAS, on July 30, 1999 (the "PETITION DATE"), the Debtor
Entities (such term and other capitalized terms used in these Recitals without
definition have the meanings set forth in subsection 1.1 of this Agreement)
filed voluntary petitions for relief under the Bankruptcy Code with the United
States Bankruptcy Court for the District of Delaware (the "COURT") (such
proceedings jointly administered as Case No. 99-02756 are hereinafter referred
to as the "CHAPTER 11 CASES"), and each of the Debtor Entities continues to
operate its business and manage its properties as a debtor-in-possession
pursuant to Sections 1107 and 1108 of the Bankruptcy Code;
WHEREAS, Borrowers have requested Lenders to provide, subject
to the terms and conditions contained herein, revolving credit facilities (the
"FOREIGN BRIDGE FACILITY") under the Existing Credit Agreement of up to
$10,000,000 in the aggregate available to ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇ Japan
and revolving credit facilities (the "DIP FACILITY") of up to $50,000,000 in the
aggregate for Company (less amounts borrowed under the Foreign Bridge Facility)
(including a letter of credit subfacility of up to $20,000,000 (less amounts
with respect to Letters of Credit issued on behalf of ▇▇▇▇ UK, ▇▇▇▇ France and
▇▇▇▇ Japan) and a swing-line facility of up to $5,000,000), in each case to fund
working capital, issue Letters of Credit and make certain other payments during
the Chapter 11 Cases, all as set forth herein, and Lenders are willing to extend
such postpetition credit to Borrowers in accordance with and on the terms and
conditions set forth herein;
WHEREAS, Lenders are willing to provide such financing only if
all of the DIP Obligations of the Debtor Entities hereunder and under the other
DIP Loan Documents (a) constitute allowed administrative expense claims in the
Chapter 11 Cases as set forth herein and (b) are secured by a first priority
Lien on substantially all of Holdings' and Company's real, personal and mixed
property, including a pledge of all of the capital stock of Company, all of
Company's equity interests in ▇▇▇▇ Realty and 66% of the capital stock of each
of Company's Foreign Subsidiaries;
WHEREAS, Company has agreed to guarantee the Obligations of
the Borrowers (other than Company) hereunder and, subject to approval by the
Court, desires to secure all of its Obligations thereunder, under this Agreement
and under the other Loan Documents by granting in favor of Agent, on behalf of
Lenders, a first priority Lien on substantially all of its real, personal and
mixed property, including a pledge of all of its equity interests in ▇▇▇▇ Realty
and 66% of the capital stock of each of its Foreign Subsidiaries;
WHEREAS, each of ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇ Japan desires
to secure all of its Foreign Bridge Obligations by granting in favor of Agent,
on behalf of Lenders, first priority Liens on substantially all of its real,
personal and mixed property, including a pledge of all of the capital stock of
its Subsidiaries, but excluding the Sayama Excluded Collateral, on a
2
PARI PASSU basis with the Liens securing the obligations of ▇▇▇▇ UK, ▇▇▇▇ France
and ▇▇▇▇ Japan under the Existing Credit Agreement on the Petition Date;
WHEREAS, Holdings has agreed to guarantee the Obligations
hereunder and under the other Loan Documents, and subject to approval by the
Court, desires to secure its guarantee by granting to Agent, on behalf of
Lenders, a first priority Lien on substantially all of its personal and mixed
property, including a pledge of all of the capital stock of Company;
WHEREAS, Prepetition Lenders currently have Liens on
substantially all of the assets of Holdings and Company;
WHEREAS, Prepetition Lenders have agreed to consent to the
granting of first priority Liens to secure the Obligations of Holdings and
Company hereunder pursuant to the Adequate Protection Stipulation and the Lender
Consent entered into by the parties to the Existing Credit Agreement;
WHEREAS, Borrowers are in default under the Existing Credit
Agreement and no advances are permitted to be made to any Borrower under the
Existing Credit Agreement; and
WHEREAS, Borrowers have requested that Prepetition Lenders
amend, and Prepetition Lenders have agreed to amend, the Existing Credit
Agreement pursuant to this Agreement and waive certain defaults under the
Existing Credit Agreement only to the extent necessary to permit (i) Lenders to
make the Loans under the Foreign Bridge Facility hereunder, and (ii) the
Obligations of ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇ Japan under the Foreign Bridge
Facility be secured on a PARI PASSU basis with the obligations of ▇▇▇▇ UK, ▇▇▇▇
France and ▇▇▇▇ Japan to the Prepetition Lenders under the Existing Credit
Agreement on the Petition Date.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Borrowers, Lenders and
Agent agree as follows:
SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the
following meanings:
"ACCOUNT" means, with respect to any Person, all present and
future rights of such Person to payment for goods sold or leased or for services
rendered (except those evidenced by instruments or chattel paper), whether now
existing or hereafter arising and wherever arising, and whether or not they have
been earned by performance.
"ADEQUATE PROTECTION STIPULATION" means the stipulation
entered into by Company and Prepetition Lenders providing Prepetition Lenders
the adequate protection set forth therein.
3
"ADJUSTED OFFSHORE RATE" means, for any Interest Rate
Determination Date with respect to an Interest Period for an Offshore Rate Loan,
the rate per annum equal to the sum of (x) the rate determined by Agent to be
the arithmetic mean (rounded upwards, if necessary, to the nearest five decimal
places) of the offered quotations for deposits (for delivery on the first day of
such Interest Period) in the Applicable Currency with maturities comparable to
such Interest Period as of approximately 11:00 A.M. (London time) on such
Interest Rate Determination Date as set forth on Telerate Display Screen page
number 3740 or 3750 (or such other page(s) as may replace such page(s) from time
to time on such Telerate system) (PROVIDED that in the event the rate referenced
in the preceding clause (x) does not appear on such Telerate page 3740 or 3750
(or otherwise), such rate shall be the offered quotation (rounded upwards, if
necessary, to the nearest five decimal places) to first class banks in the
London interbank market by Agent for deposits (for delivery on the first day of
such Interest Period) in the Applicable Currency of amounts in Same Day Funds
comparable to the principal amount of the Offshore Rate Loan of the Agent for
which the Adjusted Offshore Rate is then being determined with maturities
comparable to such Interest Period as of approximately 11:00 A.M. (London time)
on such Interest Rate Determination Date) PLUS (y) the additional cost
(expressed as a percentage per annum and rounded upwards, if necessary, to the
nearest five decimal places) to Lenders of complying with (i) the relative
reserve asset ratio required by the Bank of England from time to time, if any,
expressed as a percentage per annum and calculated in the manner set forth in
SCHEDULE 1.1(a), or (ii) any analogous requirement of any central banking or
financial regulatory authority imposed in respect of the funding or maintenance
of Commitments or Loans of the type contemplated hereby and applicable to the
Applicable Currency.
"AFFECTED LENDER" has the meaning assigned to that term in
subsection 2.6C.
"AFFILIATE", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise; PROVIDED that no Agent shall be considered to be an
"Affiliate" of Holdings or any of its Subsidiaries.
"AGENT" has the meaning assigned to that term in the
introduction to this Agreement, and includes any Affiliates of Agent performing
such functions or acting as collateral agent with respect to Offshore Currency
Loans, and in each case includes any such successor Agent appointed pursuant to
subsection 9.5. In no event shall Agent include Documentation Agent or
Documentation Agent be deemed to be Agent under any circumstances under the
terms of this Agreement.
"AGREEMENT" means, collectively, this Debtor-in-Possession
Multicurrency Credit Agreement dated as of July 30, 1999 by and among Company,
Lenders, Indemnifying
4
Lenders and Agent, and this Amendment to Multicurrency Credit Agreement dated as
of July 30, 1999 by and among ▇▇▇▇ UK, ▇▇▇▇ France, ▇▇▇▇ Japan, Lenders,
Indemnifying Lenders and Agent, in each case as it may be amended, supplemented
or otherwise modified from time to time.
"APPLICABLE CURRENCY" means with respect to any particular
Loan or Letter of Credit, Dollars or the applicable Offshore Currency in which
such Loan or Letter of Credit is denominated or payable.
"ASSET SALE" means the sale, assignment or other transfer for
value by Company or any of its Subsidiaries to any Person other than Company or
any of its wholly-owned Subsidiaries of (i) any of the stock of any of Company's
Subsidiaries, (ii) substantially all of the assets of any division or line of
business of Company or any of its Subsidiaries, or (iii) any other assets
(whether tangible or intangible) of Company or any of its Subsidiaries (other
than (a) inventory sold in the ordinary course of business, (b) the sale of
obsolete, surplus or excess equipment and machinery in the ordinary course of
business or consistent with past practice, and (c) the sale of equipment and
machinery returned by or taken in trade from a customer in the ordinary course
of business and consistent with past practice).
"ASSIGNMENT AGREEMENT" means an Assignment Agreement in
substantially the form of EXHIBIT IX annexed hereto.
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any successor statute,
and any similar or comparable law of any applicable Governmental Authority.
"BANKRUPTCY RULE" means a rule promulgated as part of the
Federal Rules of Bankruptcy Procedure, as now or hereafter in effect.
"BASE RATE" means, at any time, the higher of (x) the Prime
Rate or (y) the rate which is 1/2 of 1% in excess of the Federal Funds Effective
Rate.
"BASE RATE LOANS" means Loans bearing interest at rates
determined by reference to the Base Rate as provided in subsection 2.2A.
"BORROWER" means (i) with respect to DIP Loans and DIP Swing
Line Loans, Company, (ii) with respect to UK Bridge Loans, ▇▇▇▇ UK, (iii) with
respect to French Bridge Loans, ▇▇▇▇ France, and (iv) with respect to Japanese
Bridge Loans, ▇▇▇▇ Japan, and "BORROWERS" means any combination thereof,
collectively.
"BORROWING BASE" means, as at any date of determination, an
aggregate amount equal to
5
(i) eighty-five percent (85%) of Eligible Accounts
Receivable of Company, PLUS
(ii) sixty-five percent (65%) of Eligible Inventory of
Company, PLUS
(iii) fifty percent (50%) of Eligible Equipment of Company,
PLUS
(iv) fifty percent (50%) of Eligible Real Property of
Company, MINUS
(v) the aggregate amount of reserves, if any, established
by Agent in the exercise of its Permitted Discretion against Eligible
Accounts Receivable, Eligible Inventory, Eligible Equipment and Eligible
Real Property of Company;
PROVIDED that Agent, in the exercise of its Permitted Discretion, may (a)
increase or decrease reserves against Eligible Accounts Receivable, Eligible
Inventory, Eligible Equipment and Eligible Real Property of Company and (b)
reduce the advance rates provided in this definition, or restore such advance
rates to any level equal to or below the advance rates in effect as of the
Closing Date.
"BORROWING BASE CERTIFICATE" means a certificate substantially
in the form of EXHIBIT XVI annexed hereto delivered by Company pursuant to
subsection 6.1(xx).
"BORROWING ORDERS" means the Interim Borrowing Order and the
Final Borrowing Order.
"BUSINESS DAY" means (i) for all purposes other than as
covered by clauses (ii) and (iii) below, any day excluding Saturday, Sunday and
any day which is a legal holiday under the laws of the State of New York or is a
day on which banking institutions located in either such state are authorized or
required by law or other governmental action to close, (ii) with respect to all
notices, determinations, fundings and payments in connection with the Adjusted
Offshore Rate or any Offshore Rate Loans, any day that is a Business Day
described in clause (i) above and that is also a day for trading by and between
banks in Dollar deposits in the London interbank market, and (iii) with respect
to all notices, determinations, fundings and payments in any Offshore Currency
in connection with the Adjusted Offshore Rate or any Offshore Rate Loans, any
day that is a Business Day described in clause (i) above and that is also a day
on which banks and foreign exchange markets are open for foreign exchange
business in London and on which banks and foreign exchange markets are also open
for foreign exchange business in the principal financial center of the country
of that Offshore Currency.
"CAPITAL LEASE", as applied to any Person, means any lease of
any property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"CASH" means money, currency or a credit balance in a Deposit
Account.
6
"CASH EQUIVALENTS" means, as at any date of determination, (i)
(a) marketable securities (1) issued or directly and unconditionally guaranteed
as to interest and principal by the United States Government or (2) issued by
any agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within thirty days
after such date; (b) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof, in each case maturing within thirty days after
such date and having, at the time of the acquisition thereof, the highest rating
obtainable from either Standard & Poor's Ratings Group ("S&P") or ▇▇▇▇▇'▇
Investors Service, Inc. ("MOODY'S"); (c) commercial paper maturing no more than
one year from the date of creation thereof and having, at the time of the
acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
Moody's; (d) certificates of deposit or bankers' acceptances maturing within
thirty days after such date and issued or accepted by any Lender or by any
commercial bank organized under the laws of the United States of America or any
state thereof or the District of Columbia that (1) is at least "adequately
capitalized" (as defined in the regulations of its primary Federal banking
regulator) and (2) has Tier 1 capital (as defined in such regulations) of not
less than $100,000,000; and (e) shares of any money market mutual fund that (1)
has at least 95% of its assets invested continuously in the types of investments
referred to in clauses (a) and (b) above, (2) has net assets of not less than
$500,000,000, and (3) has the highest rating obtainable from either S&P or
Moody's, and (ii) with respect to ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan, such other
European, Japanese or Australian investments which are comparable in term and
credit quality to those described in the foregoing clause (i)(a)-(e).
"CERTIFICATE RE NON-BANK STATUS" means a certificate in form
and substance satisfactory to Agent delivered by a Lender to Agent pursuant to
subsection 2.7B(iii) (as fully set forth in ANNEX A) pursuant to which such
Lender certifies, under penalty of perjury, that it is not (i) a "bank" as such
term is defined in subsection 881(c)(3) of the Internal Revenue Code; (ii) a 10
percent shareholder of Company within the meaning of Section 871(h)(3)(B) or
Section 881(c)(3)(B) of the Internal Revenue Code; or (iii) a "controlled"
foreign corporation related to Company within the meaning of Section 864(d)(4)
of the Internal Revenue Code.
"CHAPTER 11 CASES" means the Chapter 11 Cases as defined in
the recital clauses of this Agreement.
"CLOSING DATE" means the date on or before July 30, 1999, on
which the conditions precedent to the effectiveness of this Agreement set forth
in subsection 4.1 are satisfied.
"COLLATERAL" means, collectively, all of the real, personal
and mixed property (including capital stock) in which Liens are purported to be
granted by the Collateral Documents.
"COLLATERAL ACCOUNT" has the meaning assigned to that term in
the Collateral Account Agreement.
7
"COLLATERAL ACCOUNT AGREEMENT" means the Collateral Account
Agreement executed and delivered by Company, pursuant to which Company may
pledge cash to Agent to secure the obligations of Company to reimburse an
Issuing Lender for payments made under one or more Letters of Credit as provided
in Section 3, substantially in the form of EXHIBIT X annexed hereto, as such
Collateral Account Agreement may hereafter be amended, supplemented or otherwise
modified from time to time.
"COLLATERAL DOCUMENTS" means the DIP Collateral Documents and
the Foreign Collateral Documents.
"COMMERCIAL LETTER OF CREDIT" means any letter of credit or
similar instrument issued for the purpose of providing the primary payment
mechanism in connection with the purchase of any materials, goods or services by
a Borrower or any of its Subsidiaries in the ordinary course of business of such
Borrower or such Subsidiary.
"COMMITMENT TERMINATION DATE" means the earliest of (i) the
date that is six (6) months after the Interim Borrowing Order Date, (ii) the
effective date of a plan of reorganization in the Chapter 11 Cases, (iii) the
date of distributions to any class of creditors, equity holders or other
claimants under any plan of reorganization in the Chapter 11 Cases, (iv) the
date of termination in whole of the Commitments pursuant to Section 8, (v) the
date that is fifteen (15) days after the Petition Date, if neither the Interim
Borrowing Order nor the Final Borrowing Order has been entered by the Court by
such date, and (vi) the date that is forty-five (45) days after the Petition
Date if the Final Borrowing Order has not been entered by the Court by such
date.
"COMMITMENTS" means the DIP Loan Commitments, the DIP Swing
Line Loan Commitment, the UK Bridge Loan Commitments, the French Bridge Loan
Commitments, the Japanese Bridge Loan Commitments or any combination thereof.
"COMPANY" has the meaning assigned to that term in the
introduction to this Agreement.
"COMPANY COMMON STOCK" means the common stock of Company, par
value $0.01 per share.
"COMPLIANCE CERTIFICATE" means a certificate substantially in
the form of EXHIBIT VI annexed hereto delivered to Agent and Lenders by Company
pursuant to subsection 6.1(iv).
"COMPUTATION DATE" has the meaning assigned to that term in
subsection 2.1F(i).
"CONSOLIDATED ADJUSTED EBITDA" means, for any period, (a) the
sum, without duplication, of the amounts for such period of (i) Consolidated Net
Income, (ii) Consolidated Interest Expense, (iii) provisions for taxes based on
income, (iv) total depreciation expense, (v)
8
total amortization expense, (vi) amount of non-recurring restructuring charges
relating to the Chapter 11 Cases, and (vii) other non-cash items reducing
Consolidated Net Income LESS (b) the sum, without duplication, of the amounts
for such period of other non-cash items increasing Consolidated Net Income, all
of the foregoing determined on a consolidated basis for Company and its
Subsidiaries in conformity with GAAP.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
sum of the aggregate of all expenditures (whether paid in cash or other
consideration or accrued as a liability and including that portion of Capital
Leases which is capitalized on the consolidated balance sheet of Company and its
Subsidiaries) by Company and its Subsidiaries during that period that, in
conformity with GAAP, are included in "additions to property, plant or
equipment" or comparable items reflected in the consolidated statement of cash
flows of Company and its Subsidiaries.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total
interest expense (including that portion attributable to Capital Leases in
accordance with GAAP and capitalized interest) of Company and its Subsidiaries
on a consolidated basis with respect to Consolidated Total Debt, including,
without limitation, all commissions, discounts and other fees and charges owed
with respect to letters of credit, but EXCLUDING, HOWEVER, (x) any amounts
referred to in subsection 2.3 payable to Agent and Lenders on or before the
Closing Date and (y) any net interest income.
"CONSOLIDATED NET INCOME" means, for any period, the net
income (or loss) of Company and its Subsidiaries on a consolidated basis for
such period taken as a single accounting period determined in conformity with
GAAP; PROVIDED that there shall be excluded (i) the income (or loss) of any
Person (other than a Subsidiary of Company) in which any other Person (other
than Company or any of its Subsidiaries) has a joint interest, except to the
extent of the amount of dividends or other distributions actually paid to
Company or any of its Subsidiaries by such Person during such period, (ii) the
income (or loss) of any Person accrued prior to the date it becomes a Subsidiary
of Company or is merged into or consolidated with Company or any of its
Subsidiaries or that Person's assets are acquired by Company or any of its
Subsidiaries, (iii) the income of any Subsidiary of Company to the extent that
the declaration or payment of dividends or similar distributions by that
Subsidiary of that income is not at the time permitted by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Subsidiary, (iv) any
after-tax gains or losses attributable to Asset Sales or returned surplus assets
of any Pension Plan, and (v) (to the extent not included in clauses (i) through
(iv) above) any net extraordinary gains or net non-cash extraordinary losses.
"CONSOLIDATED TOTAL SALES" means, as at any date of
determination, the aggregate stated income statement amount of all sales of
Company and its Subsidiaries, determined on a consolidated basis in accordance
with GAAP.
9
"CONTINGENT OBLIGATION", as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person (i) with
respect to any Indebtedness, lease, dividend or other obligation of another if
the primary purpose or intent thereof by the Person incurring the Contingent
Obligation is to provide assurance to the obligee of such obligation of another
that such obligation of another will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected (in whole or in part) against loss in respect
thereof, (ii) with respect to any letter of credit issued for the account of
that Person or as to which that Person is otherwise liable for reimbursement of
drawings, or (iii) under Currency Agreements. Contingent Obligations shall
include, without limitation, (a) the direct or indirect guaranty, endorsement
(other than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such Person of the
obligation of another, (b) the obligation to make take-or-pay or similar
payments if required regardless of non-performance by any other party or parties
to an agreement, and (c) any liability of such Person for the obligation of
another through any agreement (contingent or otherwise) (X) to purchase,
repurchase or otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation (whether in the
form of loans, advances, stock purchases, capital contributions or otherwise) or
(Y) to maintain the solvency or any balance sheet item, level of income or
financial condition of another if, in the case of any agreement described under
subclauses (X) or (Y) of this sentence, the primary purpose or intent thereof is
as described in the preceding sentence. The amount of any Contingent Obligation
shall be equal to the amount of the obligation so guaranteed or otherwise
supported or, if less, the amount to which such Contingent Obligation is
specifically limited.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"COURT" has the meaning assigned to that term in the recitals
to this Agreement.
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement, futures contract, option contract, synthetic cap or
other similar agreement or arrangement.
"DEBTOR ENTITIES" means, collectively, the Holdings, Company
and ▇▇▇▇ Realty.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or
like account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"DIP COLLATERAL DOCUMENTS" means the Collateral Account
Agreement and the Security Agreement, and any other security agreements, pledge
agreements, assignments, financing statements or other agreement, document,
instrument or certificate delivered by
10
Holdings or Company pursuant to this Agreement, any other Loan Document executed
by Holdings and/or Company or an applicable order of the Court granting to
Agent, on behalf of Lenders, a Lien on any real, personal or mixed property of
Holdings and Company as security for the Obligations.
"DIP LENDER" and "DIP LENDERS" means the Lenders that have DIP
Loan Commitments or a DIP Swing Line Loan Commitment or that have DIP Loans or
DIP Swing Line Loans outstanding, together with their successors and permitted
assigns pursuant to subsection 10.1, and the term "DIP LENDERS" shall include
DIP Swing Line Lender unless the context otherwise requires.
"DIP LOAN COMMITMENT" means the commitment of a DIP Lender (i)
to make DIP Loans to Company pursuant to subsection 2.1A(i)(a)(1), (ii) to issue
and/or purchase participations in Letters of Credit for the account of Company
pursuant to Section 3, and (iii) except for DIP Swing Line Lender, to purchase
participations in DIP Swing Line Loans pursuant to subsection 2.1A(ii), and "DIP
LOAN COMMITMENTS" means such commitments of all such Lenders in the aggregate.
"DIP LOAN EXPOSURE" means, with respect to any DIP Lender as
of any date of determination (i) prior to the termination of the DIP Loan
Commitments, that Lender's DIP Loan Commitment and (ii) after the termination of
the DIP Loan Commitments, the sum of (a) the aggregate outstanding principal
amount of the DIP Loans of that Lender PLUS (b) in the event that Lender is an
Issuing Lender, the aggregate Letter of Credit Usage in respect of all Letters
of Credit issued by that Lender for the benefit of Company (in each case net of
any participations purchased by other Lenders in such Letters of Credit or any
unreimbursed drawings thereunder) PLUS (c) the aggregate amount of all
participations purchased by that Lender in any outstanding Letters of Credit for
the benefit of Company or any unreimbursed drawings under any such Letters of
Credit PLUS (d) in the case of DIP Swing Line Lender, the aggregate outstanding
principal amount of all DIP Swing Line Loans (net of any participations therein
purchase by other Lenders) PLUS (e) the aggregate amount of all participations
purchased by that Lender in any outstanding DIP Swing Line Loans.
"DIP LOANS" means the Loans made by Lenders to Company
pursuant to subsection 2.1A(i)(a)(1).
"DIP OBLIGATIONS" means all obligations of every nature of
Company under this Agreement and the other Loan Documents to which it is a
party, including, without limitation, any liability of Company on any claim,
whether or not the right to payment in respect of such claim is reduced to
judgment, liquidated, unliquidated, fixed or contingent, matured, disputed,
undisputed, legal, equitable, secured or unsecured, and whether or not such
claim is discharged, stayed or otherwise affected by any bankruptcy, insolvency,
reorganization or other similar proceeding. Without limiting the generality of
the foregoing, the DIP Obligations of Company include the obligations to (a) pay
principal, interest, charges, expenses, fees, attorneys' fees and
11
disbursements, indemnities and other amounts payable by Company under this
Agreement or any other Loan Document to which it is a party and (b) reimburse
any amount in respect of any of the foregoing that Agent or any Lender, in its
sole discretion, may elect to pay or advance on behalf of Company.
"DIP SWING LINE LENDER" means BTCo, or any Person serving as
successor Agent hereunder, in its capacity as DIP Swing Line Lender hereunder.
"DIP SWING LINE LOAN COMMITMENT" means the commitment of DIP
Swing Line Lender to make DIP Swing Line Loans to Company pursuant to subsection
2.1A(ii).
"DIP SWING LINE LOANS" means the Loans made by DIP Swing Line
Lender to Company pursuant to subsection 2.1A(ii).
"DIP SWING LINE NOTES" means (i) the promissory notes of
Company issued pursuant to subsection 2.1E on the Closing Date and (ii) any
promissory notes issued by Company to any successor Agent and DIP Swing Line
Lender pursuant to the last sentence of subsection 10.1B(i), in each case
substantially in the form of EXHIBIT V annexed hereto, as it may be amended,
supplemented or otherwise modified from time to time.
"DIP/BRIDGE LOAN COMMITMENTS" means the DIP Loan Commitments,
the UK Bridge Loan Commitments, the French Bridge Loan Commitments, the Japanese
Bridge Loan Commitments or any combination thereof.
"DIP/BRIDGE LOANS" means the DIP Loans, the UK Bridge Loans,
the French Bridge Loans or the Japanese Bridge Loans or any combination thereof.
"DIP/BRIDGE NOTES" means (i) the promissory notes of Borrowers
issued pursuant to subsection 2.1E on the Closing Date and (ii) any promissory
notes issued by Borrowers pursuant to the last sentence of subsection 10.1B(i)
in connection with assignments of DIP/Bridge Loan Commitments and DIP/Bridge
Loans of any Lender, in each case substantially in the form of EXHIBIT IV
annexed hereto, as they may be amended, supplemented or otherwise modified from
time to time.
"DIVIDEND PROCEEDS" means any Cash payments or proceeds
received by any Borrower or any of such Borrower's Subsidiaries with respect to
dividends or other similar payments from Company's Joint Venture interests in
▇▇▇▇ Graphic Systems Co., Ltd.
"DOCUMENTATION AGENT" means ▇▇▇▇▇▇ Brothers. The Documentation
Agent, in its capacity as Documentation Agent, shall have no duties or
responsibilities in addition to those of a Lender as provided under this
Agreement.
"DOLLAR EQUIVALENTS" means, at any time, (x) as to any amount
denominated in Dollars, the amount thereof at such time, and (y) as to any
amount denominated in an Offshore
12
Currency or any other currency other than Dollars, the equivalent amount in
Dollars as determined by Agent at such time on the basis of the Exchange Rate
for the purchase of Dollars with such Offshore Currency or other currency on the
most recent Computation Date provided for in subsection 2.1F(i) or such other
time as may be reasonably specified by Agent.
"DOLLARS" and the sign "$" mean the lawful money of the United
States of America.
"DOMESTIC SUBSIDIARY" means a direct or indirect Subsidiary of
Company that is incorporated or organized under the laws of a state of the
United States of America.
"ELIGIBLE ACCOUNTS RECEIVABLE" means the aggregate amount of
all Accounts of Company deemed by Agent in the exercise of its Permitted
Discretion to be eligible for inclusion in the calculation of the Borrowing
Base. In determining the amount to be so included, the face amount of such
Accounts shall be reduced by the amount of all returns, discounts, deductions,
claims, credits, charges, or other allowances. Unless otherwise approved in
writing by Agent, an Account shall not be an Eligible Account Receivable if:
(a) it arises out of a sale made by Company to an
Affiliate; or
(b) the goods giving rise to such Account have been
shipped, delivered and invoiced, and title has passed, to the account
debtor and such Account is classified by Company in accordance with its
past practices and procedures as an "account receivable not yet due"
(collectively, the "EXTENDED PAYMENT ACCOUNTS"), but only to the extent
(1) the aggregate amount of all such Extended Payment Accounts of
Company exceeds 20% of all Accounts of Company or (2) final payment on
such an Extended Payment Account shall not be received by Company
within 270 days after shipment and delivery of the goods giving rise to
such Extended Payment Account; or
(c) it is unpaid more than 90 days after the original
payment due date; or
(d) it is from the same account debtor or its Affiliate
and fifty percent (50%) or more of all Accounts from that account
debtor (and its Affiliates) are ineligible under (c) above; or
(e) when aggregated with all other Accounts of an account
debtor, such Account exceeds 25% in face value of all Accounts of
Company then outstanding, but only to the extent of such excess, unless
such excess is supported by an irrevocable letter of credit
satisfactory to Agent (as to form, substance and issuer) and assigned
to Agent; or
(f) the account debtor for such Account is a creditor of
Company, has or has asserted a right of setoff against Company, or has
disputed its liability or otherwise has made any claim with respect to
such Account or any other Account which has not been resolved, in each
case to the extent of the amount owed by Company to such account
13
debtor, the amount of such actual or asserted right of setoff, or the
amount of such dispute or claim, as the case may be; or
(g) the account debtor is (or its assets are) the subject
of any of the events described in subsection 8.6 or 8.7; or
(h) (1) such Account is not payable in Dollars or (2) the
account debtor for such Account is located outside the United States or
Canada; or
(i) the sale to the account debtor is on a ▇▇▇▇-and-hold,
guarantied sale, sale-and-return, sale on approval or consignment basis
or made pursuant to any other written agreement providing for
repurchase or return; or
(j) Agent determines by its own credit analysis that
collection of such Account is uncertain or that such Account may not be
paid; or
(k) the account debtor is any federal, state, local,
provincial, or other comparable or similar governmental authority,
agency or instrumentality; or
(l) such Account does not comply with all requirements of
all applicable laws, rules, regulations and orders of any governmental
authority, including without limitation the Federal Consumer Credit
Protection Act, the Federal Truth in Lending Act, Regulation Z of the
Board of Governors of the Federal Reserve System and all Environmental
Laws; or
(m) such Account arises as a result of any progress
billing or such Account is subject to any adverse security deposit,
progress payment or other similar advance made by or for the benefit of
the applicable account debtor; or
(n) [intentionally omitted]; or
(o) it is not subject to a valid and perfected first
priority Lien in favor of Agent or does not otherwise conform to the
representations and warranties contained in the Loan Documents; or
(p) it is an Account with a customer credit balance that
is unpaid more than 90 days after the original payment date for which a
debit balance exists; or
(q) it is not owned solely by Company or Company does not
have good, valid and marketable title thereto;
PROVIDED that Agent, in the exercise of its Permitted Discretion, may impose
additional restrictions (or eliminate the same) to the standards of eligibility
set forth in this definition.
14
"ELIGIBLE ASSIGNEE" means (A) (i) a commercial bank organized
under the laws of the United States or any state thereof; (ii) a savings and
loan association or savings bank organized under the laws of the United States
or any state thereof; (iii) a commercial bank organized under the laws of any
other country or a political subdivision thereof; PROVIDED that (x) such bank is
acting through a branch or agency located in the United States or (y) such bank
is organized under the laws of a country that is a member of the Organization
for Economic Cooperation and Development or a political subdivision of such
country; and (iv) any other entity which is an "accredited investor" (as defined
in Regulation D under the Securities Act) which extends credit or buys loans as
one of its businesses including, but not limited to, insurance companies, mutual
funds and lease financing companies, in each case (under clauses (i) through
(iv) above) that is reasonably acceptable to Agent; (B) any Lender and any
Affiliate of any Lender; and (C) the Stonington Lender; PROVIDED that no
Affiliate of Company (other than the Stonington Lender) shall be an Eligible
Assignee.
"ELIGIBLE EQUIPMENT" means the aggregate amount of all
Equipment of Company deemed by Agent in the exercise of its Permitted Discretion
to be eligible for inclusion in the calculation of the Borrowing Base. In
determining the amount to be so included, such Equipment shall be valued at the
liquidation value of such Equipment. Unless otherwise approved in writing by
Agent, an item of Equipment shall not be included in Eligible Equipment if:
(a) it is not owned solely by Company or Company does not
have good, valid and marketable title thereto; or
(b) it is not located in the United States; or
(c) it is not subject to a valid and perfected first
priority Lien in favor of Agent; or
(d) it is not first-quality goods, is obsolete or slow
moving, or does not otherwise conform to the representations and
warranties contained in the Loan Documents;
PROVIDED that Agent, in the exercise of its Permitted Discretion, may impose
additional restrictions (or eliminate the same) to the standards of eligibility
set forth in this definition.
"ELIGIBLE INVENTORY" means the aggregate amount of Inventory
of Company deemed by Agent in the exercise of its Permitted Discretion to be
eligible for inclusion in the calculation of the Borrowing Base. In determining
the amount to be so included, such Inventory shall be valued at the lower of
cost or market, on a basis consistent Company's current and historical
accounting practice. Unless otherwise approved in writing by Agent, an item of
Inventory shall not be included in Eligible Inventory if:
15
(a) it is not owned solely by Company or Company does not
have good, valid and marketable title thereto; or
(b) it is not located in the United States; or
(c) it consists of goods or Inventory (including
consigned goods or Inventory) not located on property owned or leased
by any Borrower or in a contract warehouse; PROVIDED that such goods or
Inventory (other than consigned goods or Inventory) shall not be
excluded under this clause (c) if such goods are located on property
owned or leased by the Company or in a contract warehouse, in each case
that is subject to a collateral access agreement (in form and substance
satisfactory to Agent) executed by any applicable mortgagee, lessor or
contract warehouseman, as the case may be, and such goods are
segregated or otherwise separately identifiable from goods of others,
if any, stored on the premises; or
(d) it is not subject to a valid and perfected first
priority Lien in favor of Agent except, with respect to Inventory
stored at sites described in clause (c) above, for Liens for unpaid
rent or normal and customary warehousing charges; or
(e) it consists of goods (1) inspected by the Company and
determined by the Company to be returnable to the supplier or (2)
returned or rejected by Company's customers, or goods in transit to
third parties (other than to warehouse sites covered by a collateral
access agreement (in form and substance satisfactory to Agent); or
(f) it consists of raw materials constituting Inventory
which are sub-assemblies or works in process or other partially
manufactured goods constituting Inventory; or
(g) it consists of raw materials located at the ▇▇▇▇▇▇▇,
Pennsylvania Facility not assigned to a specific contract with
customers; or
(h) it consists of raw materials, such as castings, that
are not currently used by Company in the manufacture of goods for its
customers; or
(i) it is not first-quality goods, is obsolete or slow
moving, or is not accountable due to loss or shrinkage or valuation
capitalization, or does not otherwise conform to the representations
and warranties contained in the Loan Documents; or
(j) it consists of Inventory to be included in finished
goods and such Inventory has been assigned to specific contracts with
customers who have made advance payments with respect to such Inventory
on such contracts;
PROVIDED that Agent, in the exercise of its Permitted Discretion, may impose
additional restrictions (or eliminate the same) to the standards of eligibility
set forth in this definition.
16
"ELIGIBLE REAL PROPERTY" means the aggregate amount of all
Real Property Assets of Company deemed by Agent in the exercise of its Permitted
Discretion to be eligible for inclusion in the calculation of the Borrowing
Base. In determining the amount to be so included, such Real Property Assets
shall be valued at fair market value. Unless otherwise approved in writing by
Agent, an item of Real Property Assets shall not be included in Eligible Real
Property Assets if:
(a) it is not owned solely by a Company or such Company
does not have good, valid and marketable title thereto; or
(b) it is not located in the United States; or
(c) it is not subject to a valid and perfected first
priority Lien in favor of Agent, or does not otherwise conform to the
representations and warranties contained in the Loan Documents;
PROVIDED that Agent, in the exercise of its Permitted Discretion, may impose
additional restrictions (or eliminate the same) to the standards of eligibility
set forth in this definition.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as
defined in Section 3(3) of ERISA which is, or was at any time, maintained or
contributed to by Company or any of its ERISA Affiliates. Any such plan of a
former ERISA Affiliate of the Company shall continue to be considered an
Employee Benefit Plan within the meaning of this definition solely with respect
to the period during which such former ERISA Affiliate was an ERISA Affiliate of
the Company and with respect to liabilities existing after such period for which
the Company could be liable under the Internal Revenue Code or ERISA.
"ENVIRONMENTAL CLAIM" means any allegation, notice of
violation, claim, demand, abatement order or other direction (conditional or
otherwise) by any Governmental Authority or any Person for any damage,
including, without limitation, personal injury (including sickness, disease or
death), tangible or intangible property damage, contribution, indemnity,
indirect or consequential damages, damage to the environment, nuisance,
pollution, contamination or other adverse effects on the environment, or for
fines, penalties or restrictions, in each case relating to, resulting from or in
connection with Hazardous Materials and relating to Company, any of its
Subsidiaries, any of their respective Affiliates or any Facility.
"ENVIRONMENTAL LAWS" means all statutes, ordinances, orders,
rules, regulations, plans, policies or decrees and requirements having the force
of law of any Governmental Authority relating to (i) environmental matters,
including, without limitation, those relating to fines, injunctions, penalties,
damages, contribution, cost recovery compensation, losses or injuries resulting
from the Release or threatened Release, (ii) the generation, use, storage,
transportation or disposal of Hazardous Materials, or (iii) occupational safety
and health, industrial hygiene, land use or the protection of human, plant or
animal health or welfare from environmental hazards, in any manner applicable to
Company or any of its Subsidiaries or any of
17
their respective properties, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. Section 9601
ET SEQ.) ("CERCLA"), the Hazardous Materials Transportation Act (49 U.S.C.
Section 1801 ET SEQ.), the Resource Conservation and Recovery Act (42 U.S.C.
Section 6901 ET SEQ.), the Federal Water Pollution Control Act ( 33 U.S.C.
Section 1251 ET SEQ.), the Clean Air Act (42 U.S.C. Section 7401 ET SEQ.), the
Toxic Substances Control Act (15 U.S.C. Section 2601 ET SEQ.), the Federal
Insecticide, Fungicide and Rodenticide Act (7 U.S.C. Section 136 ET SEQ.), the
Occupational Safety and Health Act (29 U.S.C. Section 651 ET SEQ.) and the
Emergency Planning and Community Right-to-Know Act (42 U.S.C. Section 11001 ET
SEQ.), each as amended, and any analogous future or present local, state and
federal laws, statutes and regulations promulgated pursuant thereto, each as in
effect and applicable as of the date of determination.
"EQUIPMENT" means, with respect to a Person, all equipment in
all of its forms, all parts thereof and all accessions thereto owned or held by
such Person, including without limitation all equipment, parts and accessions
relating to the manufacture, production, servicing, maintenance or repair of
press systems, printing presses and related finished goods and spare parts;
PROVIDED that "Equipment" shall not include any materials or other items that
would otherwise constitute "Inventory".
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute, and any similar
or comparable laws in a jurisdiction outside of the U.S. applicable to Company
or any of its Subsidiaries.
"ERISA AFFILIATE", as applied to any Person, means (i) any
corporation which is a member of a controlled group of corporations within the
meaning of Section 414(b) of the Internal Revenue Code of which that Person is a
member; (ii) any trade or business (whether or not incorporated) which is a
member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which that Person is a
member; and (iii) except for purposes of Title IV of ERISA, any member of an
affiliated service group within the meaning of Section 414(m) or (o) of the
Internal Revenue Code of which that Person, any corporation described in clause
(i) above or any trade or business described in clause (ii) above is a member.
Any former ERISA Affiliate of a Person shall continue to be considered an ERISA
Affiliate within the meaning of this definition solely with respect to the
period during which such entity was an ERISA Affiliate of the Person and with
respect to liabilities arising after such period for which the Person could be
liable under the Internal Revenue Code or ERISA.
"ERISA EVENT" means (i) a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations issued thereunder with
respect to any Pension Plan (excluding those for which the provision for 30-day
notice to the PBGC has been waived by regulation); (ii) the failure to meet the
minimum funding standard of Section 412 of the Internal Revenue Code with
respect to any Pension Plan (whether or not waived in accordance with Section
412(d) of the Internal Revenue Code) or the failure to make by its due date a
required
18
installment under Section 412(m) of the Internal Revenue Code with respect to
any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan
pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such
plan in a distress termination described in Section 4041(c) of ERISA; (iv) the
withdrawal by Company or any of its ERISA Affiliates from any Pension Plan with
two or more contributing sponsors or the termination of any such Pension Plan
resulting in liability pursuant to Sections 4063 or 4064 of ERISA; (v) the
institution by the PBGC of proceedings to terminate any Pension Plan, or the
occurrence of any event or condition which could reasonably be expected to
constitute grounds under ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan; (vi) the imposition of liability on
Company or any of its ERISA Affiliates pursuant to Section 4062(e) or 4069 of
ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the
withdrawal by Company or any of its ERISA Affiliates in a complete or partial
withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any
Multiemployer Plan if there is any potential liability therefor, or the receipt
by Company or any of its ERISA Affiliates of notice from any Multiemployer Plan
that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of
ERISA, or that it intends to terminate or has terminated under Section 4041A or
4042 of ERISA; (viii) the occurrence of an act or omission which could
reasonably be expected to give rise to the imposition on Company or any of its
ERISA Affiliates of material fines, penalties, taxes or related charges under
Chapter 43 of the Internal Revenue Code or under Section 409 or 502(c), (i) or
(l) or 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the assertion
of a material claim (other than routine claims for benefits) against any
Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or
against Company or any of its ERISA Affiliates in connection with any such
Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice
of the failure of any Pension Plan (or any other Employee Benefit Plan intended
to be qualified under Section 401(a) of the Internal Revenue Code) to qualify
under Section 401(a) of the Internal Revenue Code, or the failure of any trust
forming part of any Pension Plan to qualify for exemption from taxation under
Section 501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien
pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan; PROVIDED that any event
described in the foregoing clauses shall not be an ERISA Event if Company and/or
its Subsidiaries are (or would be) liable for any potential liability resulting
from such event solely because of their affiliation with an ERISA Affiliate
(excluding Company and all Subsidiaries) and (i) such events could not
reasonably be expected to result (individually or in the aggregate) in liability
(including joint and several liability) of Company and its Subsidiaries of more
than $1,000,000, or (ii) neither Company and its Subsidiary could reasonably be
expected to be liable (either individually or on a joint and several basis) for
any potential liability resulting from such event; PROVIDED FURTHER that any
event described in the foregoing proviso shall be an ERISA Event if the PBGC or
any other governmental authority notifies Company or one of its Subsidiaries
that Company or one of its Subsidiaries is liable for any potential liability
resulting from such event.
"EU" means the European Union.
19
"EVENT OF DEFAULT" means each of the events set forth in
Section 8.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute, and any comparable or
similar laws in a jurisdiction outside of the United States applicable to
Company or any of its Subsidiaries.
"EXCHANGE RATE" means, with respect to any currency other than
Dollars, the rate of exchange quoted by the Wall Street Journal on the date of
determination as applicable to trading among banks at 4:00 P.M. (New York time)
on the immediately preceding Business Day (or at such other time and on such
other date specified in the Wall Street Journal) in the New York foreign
exchange market for such other currency.
"EXISTING CREDIT AGREEMENT" means that certain Amended and
Restated Multicurrency Credit Agreement dated as of January 29, 1998, as amended
through the Closing Date, among Borrowers, the Prepetition Lenders and Bankers
Trust Company, as administrative agent, as such Existing Credit Agreement may be
amended, supplemented or otherwise modified from time to time.
"FACILITIES" means the manufacturing plants, offices,
warehouses and all other real property (including, without limitation, all
buildings, fixtures or other improvements located thereon) and related
facilities now, hereafter or heretofore owned, leased, operated or used by
Company or any of its Subsidiaries or any of their respective predecessors or
Affiliates.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a
fluctuating interest rate equal for each day during such period to 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 for such
day (or, if such day is not a Business Day, for the next preceding 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 such day
on such transactions received by Agent from three Federal funds brokers of
recognized standing selected by Agent.
"FEE PROPERTY" means a Real Property Asset consisting of a fee
interest in real property.
"FINAL BORROWING ORDER" means an order of the Court entered in
the Chapter 11 Cases after a final hearing under Bankruptcy Rule 4001(c)(2) in
substantially the form attached hereto as EXHIBIT XVII-B with any modifications
thereto approved by Agent in its sole discretion, as the same may be amended,
supplemented or otherwise modified from time to time with the express written
consent or joinder of Requisite Lenders (PROVIDED that the Stonington Lender
shall not be disparately treated from the other Lenders) and approved by the
Court.
"FINAL BORROWING ORDER DATE" means the date of entry of the
Final Borrowing Order by the Court.
20
"FIRST DAY ORDERS" means those orders entered by the Court as
a result of motions and applications filed by Company with the Court on the
Petition Date, in each case in form and substance as approved by Agent pursuant
to Section 4.1.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Company and its
Subsidiaries ending on December 31 of each calendar year.
"FLOOD HAZARD PROPERTY" means a Mortgaged Property located in
an area in the United States designated by the Federal Emergency Management
Agency as having special flood or mud slide hazards.
"FORECAST" means the consolidated and consolidating forecast
balance sheet of Company and its Subsidiaries (by Region) and the related
consolidated and consolidating statements of projected income and cash flow (x)
for each month of 1999 and 2000 delivered by Company to Agent on or before the
Closing Date pursuant to subsection 4.1H, and (y) for each Fiscal Year delivered
by Company to Agent pursuant to subsection 6.1(xxi).
"FOREIGN BRIDGE FACILITY" has the meaning assigned to that
term in the recitals to this Agreement and is the revolving credit facility
provided to ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇ Japan under this Agreement.
"FOREIGN BRIDGE FACILITY AVAILABILITY DATE" means, with
respect to each of ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇ Japan, the date on which such
Borrower has satisfied all of the conditions set forth in Section 4 (and
specifically subsection 4.4) applicable to such Borrower, in each case as
approved by Agent in its sole discretion, and on and after such date such
Borrower may request, and the applicable Lenders may make, the applicable Loans
to such Borrower under the Foreign Bridge Facility.
"FOREIGN BRIDGE LOAN COMMITMENTS" means the UK Bridge Loan
Commitments, the French Bridge Loan Commitments, the Japanese Bridge Loan
Commitments or any combination thereof.
"FOREIGN BRIDGE LOANS" means the UK Bridge Loans, the French
Bridge Loans or the Japanese Bridge Loans or any combination thereof
"FOREIGN BRIDGE OBLIGATIONS" means all obligations of every
nature of ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇ Japan under the Foreign Bridge Facility
and the Foreign Collateral Documents, including, without limitation, any
liability of such Borrower on any claim, whether or not the right to payment in
respect of such claim is reduced to judgment, liquidated, unliquidated, fixed or
contingent, matured, disputed, undisputed, legal, equitable, secured or
unsecured, and whether or not such claim is discharged, stayed or otherwise
affected by any bankruptcy, insolvency, reorganization or other similar
proceeding. Without limiting the
21
generality of the foregoing, the Foreign Bridge Obligations of ▇▇▇▇ UK, ▇▇▇▇
France and ▇▇▇▇ Japan include the obligations to (a) pay principal, interest,
charges, expenses, fees, attorneys' fees and disbursements, indemnities and
other amounts payable by any Borrower under the Foreign Bridge Facility or any
Foreign Collateral Document and (b) reimburse any amount in respect of any of
the foregoing that Agent or any Lender, in its sole discretion, may elect to pay
or advance on behalf of such Borrower.
"FOREIGN COLLATERAL DOCUMENTS" means any security agreements,
pledge agreements, assignments, mortgages, debentures, financing statements or
any other agreement, document, instrument or certificate (including any
amendments, supplements or other modifications to any of the foregoing)
delivered by ▇▇▇▇ UK, ▇▇▇▇ France and/or ▇▇▇▇ Japan granting in favor of Agent,
on behalf of Prepetition Lenders, and to Agent, on behalf of Lenders, a Lien on
any real, personal or mixed property of that ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇ Japan
as security for the Foreign Bridge Obligations.
"FOREIGN SUBSIDIARY" means a direct or indirect Subsidiary of
Company that is incorporated or organized under the laws of a jurisdiction other
than that of the United States of America.
"FOREIGN UNFUNDED PENSION PLAN" means a Pension Plan described
in Section 4(b)(4) of ERISA that is not required to be funded pursuant to
applicable foreign law.
"FRANCS" and the sign "FF" mean the lawful money of the
Republic of France.
"FRENCH BRIDGE INDEMNIFYING LENDER" means each financial
institution that is designated as a French Bridge Indemnifying Lender on
SCHEDULE 2.1 annexed hereto, and each financial institution which is designated,
with the approval of Agent, as a French Bridge Indemnifying Lender in an
Assignment Agreement.
"FRENCH BRIDGE LENDER" and "FRENCH BRIDGE LENDERS" means the
Lenders that have French Bridge Loan Commitments or that have French Bridge
Loans outstanding, together with their successors and permitted assigns pursuant
to subsection 10.1.
"FRENCH BRIDGE LOAN EXPOSURE" means, with respect to any
French Bridge Lender as of any date of determination (i) prior to the
termination of the French Bridge Loan Commitments, that Lender's French Bridge
Loan Commitment and (ii) after the termination of the French Bridge Loan
Commitments, the sum of (a) the aggregate outstanding principal amount of the
French Bridge Loans of that Lender PLUS (b) in the event that Lender is an
Issuing Lender, the aggregate Letter of Credit Usage in respect of all Letters
of Credit issued by that Lender for the benefit of ▇▇▇▇ France (in each case net
of any participations purchased by other Lenders in such Letters of Credit or
any unreimbursed drawings thereunder) PLUS (c) the aggregate amount of all
participations purchased by that Lender in any outstanding Letters of Credit for
the benefit of ▇▇▇▇ France or any unreimbursed drawings under any such Letters
of Credit.
22
"FRENCH BRIDGE LOAN COMMITMENT" means the commitment of a
French Bridge Lender (i) to make French Bridge Loans to ▇▇▇▇ France pursuant to
subsection 2.1A(i)(a)(2) and (ii) to issue and/or purchase participations in
Letters of Credit for the account of ▇▇▇▇ France pursuant to Section 3, and
"FRENCH BRIDGE LOAN COMMITMENTS" means such commitments of all such Lenders in
the aggregate.
"FRENCH BRIDGE LOANS" means the Loans made by Lenders to ▇▇▇▇
France pursuant to subsection 2.1A(i)(a)(2).
"FUNDING DATE" means the date of the funding of a Loan.
"FUNDING AND PAYMENT OFFICE" means (i) the office or offices
of Agent and/or DIP Swing Line Lender set forth on SCHEDULE 1.1(a) annexed
hereto, or (ii) such other office or offices of Agent and/or DIP Swing Line
Lender as may from time to time hereafter be designated as such in a written
notice delivered by Agent and/or DIP Swing Line Lender to Borrowers and Lenders.
"GAAP" means, subject to the limitations on the application
thereof set forth in subsection 1.2, generally accepted accounting principles
set forth in opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, in each case as the same are applicable to the
circumstances as of the date of determination.
"▇▇▇▇ FRANCE" has the meaning assigned to that term in the
introduction to this Agreement and is a wholly-owned Subsidiary of Company.
"▇▇▇▇ JAPAN" has the meaning assigned to that term in the
introduction to this Agreement and is a wholly-owned Subsidiary of Company.
"▇▇▇▇ REALTY" means ▇▇▇▇ Realty, L.L.C., a limited liability
company organized under the laws of Delaware and a wholly-owned Subsidiary of
Company.
"▇▇▇▇ UK" has the meaning assigned to that term in the
introduction to this Agreement and is a wholly-owned Subsidiary of Company.
"GOVERNMENTAL AUTHORITY" means any federal, state or local
governmental authority, agency or court in the United States, or other
comparable or similar governmental authority, agency or court in a jurisdiction
outside of the United States, in each case applicable to Company or any of its
Subsidiaries.
"GOVERNMENTAL AUTHORIZATION" means any permit, license,
authorization, plan, directive, consent order or consent decree of or from any
Governmental Authority.
23
"GUARANTOR" means, at any time, Holdings, Company or ▇▇▇▇
Realty that is then a party to any of the Guaranties.
"GUARANTY" means the Guaranty executed and delivered by
Company, Holdings and ▇▇▇▇ Realty on the Closing Date substantially in the form
of EXHIBIT XI attached hereto, and any other guaranty, document or instrument
with a similar or comparable effect, in form and substance satisfactory to
Agent, in each case as such Guaranty may be amended, supplemented or otherwise
modified from time to time, and "GUARANTIES" means all such Guaranties,
collectively.
"HAZARDOUS MATERIALS" means (i) any chemical, material or
substance which, at the time of determination, is defined as or included in the
definition of "hazardous substances", "hazardous wastes", "hazardous materials",
"extremely hazardous waste", "restricted hazardous waste", "infectious waste",
"toxic substances" or any other formulations intended to define, list or
classify substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, "TCLP
toxicity" or "EP toxicity" or words of similar meaning and regulatory effect
under any applicable Environmental Laws; (ii) any oil, petroleum, petroleum
fraction or petroleum derived substance; (iii) any drilling fluids, produced
waters and other wastes associated with the exploration, development or
production of crude oil, natural gas or geothermal resources; (iv) any flammable
substances or explosives; (v) any radioactive materials; (vi) asbestos in any
form; (vii) urea formaldehyde foam insulation; (viii) electrical equipment which
contains any dielectric fluid containing a mixture of polychlorinated biphenyls
("PCB") in excess of fifty parts per million of PCB's; (ix) pesticides; and (x)
any other chemical, material or substance, exposure to which is prohibited,
limited, regulated or determined by any Governmental Authority or which may or
could pose a hazard to the health and safety of the owners, occupants or any
Persons in the vicinity of the Facilities.
"HOLDINGS" means GGS Holdings, Inc., a corporation organized
under the laws of the State of Delaware.
"INDEBTEDNESS", as applied to any Person, means, without
duplication, (i) all indebtedness for borrowed money, (ii) that portion of
obligations with respect to Capital Leases that is properly classified as a
liability on a balance sheet in conformity with GAAP, (iii) notes payable and
drafts accepted representing extensions of credit whether or not representing
obligations for borrowed money, (iv) any obligation owed for all or any part of
the deferred purchase price of property or services (excluding any such
obligations incurred under ERISA), which purchase price is (a) due more than six
months from the date of incurrence of the obligation in respect thereof or (b)
evidenced by a note or similar written instrument, and (v) all indebtedness
secured by any Lien on any property or asset owned or held by that Person
regardless of whether the indebtedness secured thereby shall have been assumed
by that Person or is nonrecourse to the credit of that Person. Obligations under
Currency Agreements constitute Contingent Obligations and not Indebtedness.
24
"INDEMNITEE" has the meaning assigned to that term in
subsection 10.3.
"INDEMNIFYING LENDER" means each UK Bridge Indemnifying
Lender, each French Bridge Indemnifying Lender and each Japanese Bridge
Indemnifying Lender, and "INDEMNIFYING LENDERS" means, collectively, all such
financial institutions.
"INDEMNITY AMOUNT" means for each Indemnifying Lender which is
a signatory hereto the amount and the percentage that is so designated and set
forth opposite such Indemnifying Lender's name on SCHEDULE 2.1 annexed hereto,
and for each financial institution which becomes an Indemnifying Lender pursuant
to an Assignment Agreement the amount and the percentage that is so designated
in such Assignment Agreement.
"INDEMNITY PARTICIPATION" shall have the meaning set forth
therefor in subsection 2.9.
"INTEREST PAYMENT DATE" means with respect to any Loan, the
last Business Day of each month of each year, commencing on the first such date
to occur after the Closing Date.
"INTEREST PERIOD" has the meaning assigned to that term in
subsection 2.2B.
"INTEREST RATE DETERMINATION DATE" means, (i) with respect to
any Interest Period relating to any Loan (other than Loans denominated in
Sterling), the second Business Day prior to the first day of such Interest
Period, and (ii) with respect to any Interest Period relating to any Loan
denominated in Sterling, the first day of such Interest Period.
"INTERIM BORROWING ORDER" means an order of the Court entered
in the Chapter 11 Cases after an interim hearing under Bankruptcy Rule
4001(c)(2) in substantially the form attached hereto as EXHIBIT XVII-A with any
modifications thereto approved by Agent in its sole discretion, as the same may
be amended, supplemented or otherwise modified from time to time with the
express written consent or joinder of Requisite Lenders (PROVIDED that the
Stonington Lender shall not be disparately treated from the other Lenders) and
approved by the Court.
"INTERIM BORROWING ORDER DATE" means the date of entry of the
Interim Borrowing Order by the Court.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended to the date hereof and from time to time hereafter, and any
successor statute, and any similar or comparable laws in a jurisdiction outside
of the United States applicable to Company or any of its Subsidiaries.
"INVENTORY" means, with respect to a Person, all goods,
merchandise and other personal property which are held by such Person for sale
or lease, including those held for display or demonstration or out on lease or
consignment or to be furnished under a contract of service, including without
limitation (but without duplication) raw materials, components, works
25
in process, finished goods (including without limitation all completed offset
newspaper press systems, insert web offset press systems and commercial web
offset printing presses, or accessories thereto, and other related goods and
merchandise, in each case constituting finished goods which are held for sale or
lease by such Person, including those held for display or demonstration), spare
parts (including without limitation all components, goods, merchandise or spare
parts relating to press equipment held for sale or lease by such Person in
connection with the servicing, maintenance or repair of finished goods sold or
leased by such Person), or other materials used or consumed, or to be used or
consumed, in the business of such Person; PROVIDED that "Inventory" shall not
include any materials or other items that would otherwise constitute
"Equipment".
"INVESTMENT" means (i) any direct or indirect purchase or
other acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, any Securities of any other Person (other than a Person that prior
to such purchase or acquisition was a wholly-owned Domestic Subsidiary of
Company), (ii) any direct or indirect redemption, retirement, purchase or other
acquisition for value, by any Subsidiary of Company from any Person other than
Company or any of its Subsidiaries, of any equity Securities of such Subsidiary,
or (iii) any direct or indirect loan, advance (other than advances to employees
for moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital contribution by
Company or any of its Subsidiaries to any other Person other than a wholly-owned
Domestic Subsidiary of Company, including all indebtedness and accounts
receivable from that other Person that are not current assets or did not arise
from sales to that other Person in the ordinary course of business. The amount
of any Investment shall be the original cost of such Investment plus the cost of
all additions thereto and minus returns of capital thereon, without any
adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment. The definition of "INVESTMENT" shall
not include any Accounts that are current assets and that arose from sales of
goods and services in the ordinary course of business of Company and its
Subsidiaries.
"INVESTMENT AGREEMENT" means that certain Investment Agreement
dated as of January 13, 1999 entered into by and between Stonington Financing II
LLC, a Delaware limited liability company, and Holdings, as such agreement may
be amended, supplemented or otherwise modified from time to time.
"ISSUING LENDER" means, with respect to any Letter of Credit,
the Lender which agrees or is otherwise obligated to issue such Letter of
Credit, determined as provided in subsection 3.1B(ii).
"JAPANESE BRIDGE INDEMNIFYING LENDER" means each financial
institution that is designated as a Japanese Bridge Indemnifying Lender on
SCHEDULE 2.1 annexed hereto, and each financial institution which is designated,
with the approval of Agent, as a Japanese Bridge Indemnifying Lender in an
Assignment Agreement.
26
"JAPANESE BRIDGE LENDER" and "JAPANESE BRIDGE LENDERS" means
the Lenders that have Japanese Bridge Loan Commitments or that have Japanese
Bridge Loans outstanding, together with their successors and permitted assigns
pursuant to subsection 10.1.
"JAPANESE BRIDGE LOAN EXPOSURE" means, with respect to any
Japanese Bridge Lender as of any date of determination (i) prior to the
termination of the Japanese Bridge Loan Commitments, that Lender's Japanese
Bridge Loan Commitment and (ii) after the termination of the Japanese Bridge
Loan Commitments, the sum of (a) the aggregate outstanding principal amount of
the Japanese Bridge Loans of that Lender PLUS (b) in the event that Lender is an
Issuing Lender, the aggregate Letter of Credit Usage in respect of all Letters
of Credit issued by that Lender for the benefit of ▇▇▇▇ Japan (in each case net
of any participations purchased by other Lenders in such Letters of Credit or
any unreimbursed drawings thereunder) PLUS (c) the aggregate amount of all
participations purchased by that Lender in any outstanding Letters of Credit for
the benefit of ▇▇▇▇ Japan or any unreimbursed drawings under any such Letters of
Credit.
"JAPANESE BRIDGE LOAN COMMITMENT" means the commitment of a
Japanese Bridge Lender (i) to make Japanese Bridge Loans to ▇▇▇▇ Japan pursuant
to subsection 2.1A(i)(a)(2) and (ii) to issue and/or purchase participations in
Letters of Credit for the account of ▇▇▇▇ Japan pursuant to Section 3, and
"JAPANESE BRIDGE LOAN COMMITMENTS" means such commitments of all such Lenders in
the aggregate.
"JAPANESE BRIDGE LOANS" means the Loans made by Lenders to
▇▇▇▇ Japan pursuant to subsection 2.1A(i)(a)(2).
"JOINT VENTURE" means a joint venture, partnership, limited
liability company or other similar arrangement, whether in corporate,
partnership, limited liability company or other legal form; PROVIDED that in no
event shall any corporate Subsidiary of any Person be considered to be a Joint
Venture to which such Person is a party.
"LENDER" and "LENDERS" means the DIP Lenders, the UK Bridge
Lenders, the French Bridge Lenders, the Japanese Bridge Lenders or any
combination thereof; PROVIDED that the term "Lenders," when used in the context
of a particular Commitment, shall mean Lenders having that Commitment; PROVIDED
FURTHER that prior to the Settlement Date (as such term is defined and used in
the (Stonington Assignment Agreement) the term "Lenders" shall not include the
Stonington Lender.
"LENDER CONSENT" means that certain Consent and Waiver to
Credit Agreement dated as of July 30, 1999 by and among Borrowers, Prepetition
Lenders and Agent.
"LENDING OFFICE" means, with respect to any Lender, the office
or offices of such Lender specified as its "Lending Office" or "Domestic Lending
Office" or "Offshore Lending Office", as the case may be, on the signature pages
hereof, or such other office or offices as such Lender may from time to time
notify Borrowers and Agent.
27
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means Commercial
Letters of Credit and Standby Letters of Credit issued or to be issued by
Issuing Lenders for the account of a Borrower pursuant to subsection 3.1.
"LETTERS OF CREDIT SUBALLOCATION" means, as of any date of
determination, for any Borrower, the Dollar Equivalent of the amount of
DIP/Bridge Loan Commitments allocated to such Borrower to be made available for
issuing Letters of Credit for the account of such Borrower as set forth in the
most recent Notice of Allocation delivered to Agent pursuant to subsection
2.1A(i)(b); PROVIDED that the Letters of Credit Suballocation shall be
automatically adjusted in accordance with the second proviso contained in
subsection 2.1A(i)(b); PROVIDED FURTHER that (x) the sum of the Letters of
Credit Suballocation for such Borrower PLUS the Loan Suballocation for such
Borrower shall always equal the Maximum DIP/Bridge Loan Commitments for such
Borrower, and (y) the sum of the Letters of Credit Suballocations for all
Borrowers shall not exceed the lesser of (x) $20,000,000 and (y) the Maximum
DIP/Bridge Loan Commitment then effect.
"LETTER OF CREDIT USAGE" means, as at any date of
determination, for any Borrower the Dollar Equivalent of the sum of (i) the
maximum aggregate amount which is or at any time thereafter may become available
for drawing under all Letters of Credit then outstanding issued for the account
of such Borrower PLUS (ii) the aggregate amount of all drawings under such
Letters of Credit honored by Issuing Lenders not theretofore reimbursed.
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"LOAN" or "LOANS" means one or more of the DIP/Bridge Loans or
DIP Swing Line Loans or any combination thereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Letters
of Credit (and any applications for, or reimbursement agreements or other
documents or certificates executed by a Borrower in favor of an Issuing Lender
relating to, the Letters of Credit), the Guaranties, the Collateral Documents,
the Stonington Commitment Documents, and, solely for purposes of the use of the
term "Loan Documents" in the definition of the term "DIP Obligations," the
Currency Agreements to which Company and any Lender or any of its Affiliates is
a party.
"LOAN EXPOSURE" means the DIP Loan Exposure, the UK Bridge
Loan Exposure, French Bridge Loan Exposure, or the Japanese Bridge Loan Exposure
or any combination thereof.
"LOAN PARTIES" means each of the Borrowers, the Guarantors or
any of Company's Subsidiaries executing any other Loan Document.
28
"LOAN SUBALLOCATION" means, as of any date of determination,
for any Borrower, the Dollar Equivalent of the amount of DIP/Bridge Loan
Commitments allocated to such Borrower to be made available for making
DIP/Bridge Loans to such Borrower as set forth in the most recent Notice of
Allocation delivered to Agent pursuant to subsection 2.1A(i)(b); PROVIDED that
the Loan Suballocation shall be automatically adjusted in accordance with the
second proviso contained in subsection 2.1A(i)(b); PROVIDED FURTHER that the sum
of the Loan Suballocation for such Borrower PLUS the Letters of Credit
Suballocation for such Borrower shall always equal the Maximum DIP/Bridge Loan
Commitments for such Borrower.
"LOCAL TIME" means (i) with respect to Base Rate Loans, New
York time, and (ii) with respect to Offshore Rate Loans, London time.
"LOCK-UP AGREEMENT" means that certain Forbearance, Lock-Up
and Voting Agreement, dated as of July 30, 1999, by and among the Debtor
Entities, Stonington Fund, Stonington Equity Sub, holders of the Senior
Subordinated Notes, BTCo and Prepetition Lenders.
"MARGIN STOCK" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System as in
effect from time to time.
"MARKS" and the sign "DM" mean the lawful money of the Federal
Republic of Germany.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect
upon the business, operations, properties, assets, condition (financial or
otherwise) or prospects (other than the filing of the Chapter 11 Cases) of (a)
Company and its Domestic Subsidiaries, taken as a whole, (b) ▇▇▇▇ UK and its
Subsidiaries, taken as a whole, (c) ▇▇▇▇ France and its Subsidiaries, taken as a
whole, (d) ▇▇▇▇ Japan and its Subsidiaries, taken as a whole, or (e) Company and
its Subsidiaries, taken as a whole; PROVIDED that in the event of the occurrence
of a material adverse effect as described in the foregoing clauses (a), (b), (c)
or (d), such Borrower shall have five days after receipt of notice from Agent to
cure such material adverse effect (without causing a material adverse effect for
any other Borrower) before it shall become a "Material Adverse Effect" as
defined in this clause (i); (ii) the impairment in any material respect of the
ability of any Loan Party to perform, or of Agent or any Lender to enforce, the
Obligations; or (iii) a material adverse effect on the value of the Collateral
or the amount which Agent or any Lender would be likely to receive (after giving
consideration to delays in payment and costs of enforcement) in the liquidation
of the Collateral.
"MATERIAL CONTRACT" means any contract or other arrangement to
which any Borrower or any of its Subsidiaries is a party (other than the Loan
Documents) for which breach, nonperformance, cancellation or failure to renew
could reasonably be expected to have a Material Adverse Effect.
29
"MATERIAL LEASEHOLD" means a Real Property Asset consisting of
a leasehold interest in an Operating Lease or a Capital Lease which is
reasonably determined by Agent to be of material value as collateral for the
Obligations.
"MATERIAL SUBSIDIARY" means any Subsidiary of Holdings that
(i) owns 5% or more of the assets of Holdings and its Subsidiaries, measured on
a consolidated basis, or (ii) accounts for 5% or more of Consolidated Net
Income.
"MAXIMUM DIP/BRIDGE LOAN COMMITMENTS" means, as of any date of
determination, (x) for any Borrower, the Dollar Equivalent of the DIP/Bridge
Loan Commitments available to such Borrower as set forth in the most recent
Notice of Allocation delivered by Borrowers to Agent pursuant to subsection
2.1A(i)(b), and (y) for all Borrowers, the Dollar Equivalent of $50,000,000 LESS
the aggregate amount of all reductions made to all DIP/Bridge Loan Commitments
pursuant to subsection 2.4A(ii).
"MINIMUM AMOUNT" means (i) in the case of DIP Swing Line
Loans, $100,000 and integral multiples of $100,000 in excess of that amount,
(ii) in the case of Base Rate Loans denominated in Dollars, $100,000 and
integral multiples of $100,000 in excess of that amount, (iii) in the case of
Offshore Rate Loans denominated in Dollars and having a particular Interest
Period, $1,000,000 and integral multiples of $100,000, (iv) in the case of
Offshore Rate Loans denominated in Sterling and having a particular Interest
Period, L1,000,000 and integral multiples of L100,000 in excess of that amount,
(v) in the case of Offshore Rate Loans denominated in Francs and having a
particular Interest Period, FF6,000,000 and integral multiples of FF600,000 in
excess of that amount, (vi) in the case of Offshore Rate Loans denominated in
Marks and having a particular Interest Period, DM3,000,000 and integral
multiples of DM300,000 in excess of that amount, and (vii) in the case of
Offshore Rate Loans denominated in Yen and having a particular Interest Period,
Y150,000,000 and integral multiples of Y15,000,000 in excess of that amount.
"MORTGAGE" means an instrument (whether designated as a deed
of trust, a trust deed or a mortgage or by any similar title) executed and
delivered by any Borrower or any of its Subsidiaries encumbering a Fee Property
or a Material Leasehold, as such instrument may be amended, supplemented or
otherwise modified from time to time, and "MORTGAGES" means all such
instruments.
"MORTGAGED PROPERTY" means any property so identified on
SCHEDULE 5.5 of the Existing Credit Agreement.
"MULTIEMPLOYER PLAN" means a "multiemployer plan", as defined
in Section 3(37) of ERISA, to which Company or any of its ERISA Affiliates is
contributing, or ever has contributed, or to which Company or any of its ERISA
Affiliates has, or ever has had, an obligation to contribute.
30
"NET ASSET SALE PROCEEDS" means, with respect to any Asset
Sale, Cash payments (including any Cash received by way of deferred payment
pursuant to, or by monetization of, a note receivable or otherwise, but only as
and when so received) received from such Asset Sale, net of any bona fide direct
costs incurred in connection with such Asset Sale (including without limitation
income taxes reasonably estimated to be actually payable as a result of such
Asset Sale within two years of the date of such Asset Sale) and approved by the
Court, if such approval is necessary pursuant to the Bankruptcy Code.
"NET INSURANCE/CONDEMNATION PROCEEDS" means any Cash payments
or proceeds received by Agent or by any Borrower or any of such Borrower's
Subsidiaries (i) under any business interruption or casualty insurance policy in
respect of a covered loss thereunder or (ii) as a result of the taking of any
assets of any Borrower or any of its respective Subsidiaries by any Person
pursuant to the power of eminent domain, condemnation or otherwise, or pursuant
to a sale of any such assets to a purchaser with such power under threat of such
a taking, in each case net of any actual and reasonable documented costs
incurred by such Borrower or any of its respective Subsidiaries in connection
with the adjustment or settlement of any claims of such Borrower or such
Subsidiary in respect thereof; PROVIDED, HOWEVER, that "Net
Insurance/Condemnation Proceeds" shall not include any such proceeds arising
from or otherwise relating to the Sayama Excluded Collateral or any property
owned by ▇▇▇▇ Realty.
"NET SETTLEMENT PROCEEDS" means any Cash payments or proceeds
received by any Borrower or any of such Borrower's Subsidiaries as a result of
or in connection with any settlement of any claim, action or proceeding, before
any court, arbitrator or other governmental body involving such Borrower or such
Subsidiary (including any trade action existing as of the Closing Date), net of
legal fees relating to such settlement and income taxes reasonably estimated to
be actually payable as a result of such settlement within two years of the date
of such settlement.
"NOTES" means one or more of the DIP/Bridge Notes or DIP Swing
Line Notes or any combination thereof.
"NOTICE OF ALLOCATION" means a notice substantially in the
form of EXHIBIT XII annexed hereto delivered by Borrowers to Agent pursuant to
subsection 2.1A(i)(b) for the purpose of (i) allocating the DIP/Bridge Loan
Commitments among the DIP Loan Commitments, the UK Bridge Loan Commitments, the
French Bridge Loan Commitments and the Japanese Bridge Loan Commitments, and
(ii) suballocating such DIP/Bridge Loan Commitment amounts for each Borrower
between the Loan Suballocation and Letters of Credit Suballocation for each
Borrower.
"NOTICE OF BORROWING" means a notice substantially in the form
of EXHIBIT I annexed hereto delivered by a Borrower to Agent pursuant to
subsection 2.1B with respect to a proposed borrowing.
31
"NOTICE OF CONVERSION/CONTINUATION" means a notice
substantially in the form of EXHIBIT II annexed hereto delivered by a Borrower
to Agent pursuant to subsection 2.2D with respect to a proposed conversion or
continuation of the applicable basis for determining the interest rate with
respect to the Loans specified therein.
"OBLIGATIONS" means collectively the DIP Obligations and
Foreign Bridge Obligations.
"OFFICERS' CERTIFICATE" means, as applied to any corporation,
a certificate executed on behalf of such corporation by its chairman of the
board (if an officer) or its president or one of its vice presidents (or
comparable officer in the case of ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan) and by its
chief financial officer or its treasurer; PROVIDED that any Officers'
Certificate required to be delivered by any Loan Party on the Closing Date may
be executed on behalf of such Loan Party by any one of the foregoing officers;
PROVIDED FURTHER that every Officers' Certificate with respect to the compliance
with a condition precedent to the making of any Loans hereunder shall include
(i) a statement that the officer or officers making or giving such Officers'
Certificate have read such condition and any definitions or other provisions
contained in this Agreement relating thereto, (ii) a statement that, in the
opinion of the signers, they have made or have caused to be made such
examination or investigation as is necessary to enable them to express an
informed opinion as to whether or not such condition has been complied with, and
(iii) a statement as to whether, in the opinion of the signers, such condition
has been complied with.
"OFFSHORE CURRENCY" means Sterling, Francs, Marks, or Yen.
"OFFSHORE CURRENCY LOANS" means any Loans denominated in an
Offshore Currency.
"OFFSHORE RATE LOANS" means Loans bearing interest at rates
determined by reference to the Adjusted Offshore Rate as provided in subsection
2.2A.
"OPERATING LEASE" means, as applied to any Person, any lease
(including, without limitation, leases that may be terminated by the lessee at
any time) of any property (whether real, personal or mixed) that is not a
Capital Lease other than any such lease under which that Person is the lessor.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor thereto), or any similar or comparable governmental agency or
authority in a jurisdiction outside of the United States applicable to Company
or any of its Subsidiaries.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
32
"PERMITTED DISCRETION" means Agent's good faith judgment based
upon any factor which it believes in good faith: (i) will or could adversely
affect the value of any Collateral, the enforceability or priority of Agent's
Liens thereon or the amount which Agent and Lenders would be likely to receive
(after giving consideration to delays in payment and costs of enforcement) in
the liquidation of such Collateral; (ii) suggests that any collateral report or
financial information delivered to Agent by any Person on behalf of any Loan
Party is incomplete, inaccurate or misleading in any material respect; or (iii)
creates or reasonably could be expected to create a Potential Event of Default
or Event of Default.
"PERMITTED ENCUMBRANCES" means the following types of Liens
(other than any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of
the Internal Revenue Code or by ERISA):
(i) Liens for taxes, assessments or governmental charges
or claims the payment of which is not, at the time, required by
subsection 6.3 (other than any Lien relating to or imposed in
connection with any Environmental Claim);
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics and materialmen and other Liens imposed by law
incurred in the ordinary course of business for sums not yet delinquent
or being contested in good faith, if such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made
therefor;
(iii) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to secure
the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, trade contracts, performance
and return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money); PROVIDED, HOWEVER, that
"Permitted Encumbrances" shall not include Liens for the benefit of any
customer of Company or any of its Subsidiaries or for any advances,
deposits, progress payments or other similar payments made to Company
or any of its Subsidiaries by a customer;
(iv) any attachment or judgment Lien not constituting an
Event of Default under subsection 8.8 (other than any Lien relating to
or imposed in connection with any Environmental Claim);
(v) leases or subleases granted to others not interfering
in any material respect with the ordinary conduct of the business of
Company or any of its Subsidiaries;
(vi) easements, rights-of-way, restrictions, covenants,
declarations, encroachments, minor defects or irregularities in title,
and other similar charges or encumbrances not interfering in any
material respect with the ordinary conduct of the business of Company
or any of its Subsidiaries;
33
(vii) any (a) restriction or encumbrance that the interest
or title of a lessor or sublessor may be subject to, or (b)
subordination of the interest of the lessee or sublessee under a lease
to any restriction or encumbrance referred to in the preceding clause
(a);
(viii) Liens arising from filing UCC financing statements
relating solely to leases permitted by this Agreement;
(ix) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods;
(x) licenses of patents, trademarks and other
intellectual property rights granted by Company or any of its
Subsidiaries in the ordinary course of business and not interfering in
any material respect with the ordinary conduct of the business of
Company or such Subsidiary; and
(xi) the title exceptions approved by Agent and shown on
Schedule B of the Mortgages set forth on SCHEDULE 5.5 of the Existing
Credit Agreement.
"PERSON" means and includes natural persons, corporations,
limited partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments and agencies and
political subdivisions thereof.
"PETITION DATE" means the Petition Date as defined in the
recitals to this Agreement.
"POTENTIAL EVENT OF DEFAULT" means a condition or event that,
after notice or passage of time or both, would constitute an Event of Default.
"PREPETITION INDEBTEDNESS" means Indebtedness or other
liability of any Loan Party or claim against any Loan Party (within the meaning
of Bankruptcy Code section 101(5)) outstanding on the Petition Date, including
Prepetition Lenders' Claims.
"PREPETITION LENDERS" means the parties identified as lenders
and indemnifying lenders under the Existing Credit Agreement in their capacities
as lenders under the Existing Credit Agreement as of the Petition Date, together
with their successors and permitted assigns.
"PREPETITION LENDERS' CLAIMS" means the claims of Prepetition
Lenders against Debtor Entities for amounts owing under the Existing Credit
Agreement as of the Petition Date (including Contingent Obligations arising as
the result of outstanding letters of credit) plus interest, fees and charges
accruing after such date.
34
"PRIME RATE" means the rate that BTCo announces from time to
time as its prime lending rate as in effect from time to time. The Prime Rate is
a reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. Agent or any other Lender may make commercial
loans or other loans at rates of interest at, above or below the Prime Rate.
"PRO RATA SHARE" means, on any date of determination, with
respect to all payments, computations and other matters relating to a Type of
DIP/Bridge Loan Commitment or a Type of DIP/Bridge Loans of any Lender or any
Letters of Credit of such Type or participations in such DIP/Bridge Loans or
Letters of Credit purchased by any Lender, the percentage obtained by DIVIDING
(x) the Loan Exposure of such Type of that Lender BY (y) the aggregate Loan
Exposure of such Type of all Lenders, as such percentage may be adjusted by
assignments permitted pursuant to subsection 10.1. The initial Pro Rata Share of
each Lender is set forth opposite the name of that Lender in SCHEDULE 2.1
annexed hereto.
"REAL PROPERTY ASSETS" means all real property from time to
time owned in fee by any Loan Party and all rights, title and interest in and to
any and all leases of real property as to which any Loan Party has a leasehold
or license interest, including without limitation any such fee or leasehold or
license interests acquired by any Loan Party after the date hereof.
"RECEIPTS AND DISBURSEMENTS FORECAST" means the thirteen week
forecast of anticipated Cash receipts and disbursements delivered by Company to
Agent on or before the Closing Date pursuant to subsection 4.1H, and thereafter
delivered by Company to Agent pursuant to subsection 6.1(xxii), in each case in
form and substance satisfactory to Agent.
"REFUNDED DIP SWING LINE LOANS" has the meaning assigned to
that term in subsection 2.1A(ii).
"REGISTER" has the meaning assigned to that term in subsection
2.1D.
"REGULATION D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time, and any similar or
comparable laws in the UK, France or Japan.
"REIMBURSEMENT DATE" has the meaning assigned to that term in
subsection 3.3B.
"RELEASE" means any release, spill, emission, leaking,
pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal,
dumping, leaching or migration of Hazardous Materials into the environment
(including, without limitation, the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Materials), or
into or out of any Facility, including the movement of any Hazardous Material
through the air, soil, surface water or groundwater.
35
"REORGANIZATION PLAN" means the plan of reorganization for the
Debtor Entities containing the terms set forth in Exhibit A attached to the
Lock-Up Agreement.
"REQUEST FOR ISSUANCE OF LETTER OF CREDIT" means a notice
substantially in the form of EXHIBIT III annexed hereto delivered by a Borrower
to Agent pursuant to subsection 3.1B(i) with respect to the proposed issuance of
a Letter of Credit.
"REQUISITE LENDERS" means Lenders (other than the Stonington
Lender) having or holding a majority of the aggregate Loan Exposure of all Types
of all Lenders (but excluding the Loan Exposure of all Types of the Stonington
Lender).
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
of Company now or hereafter outstanding, (ii) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of stock of Company now or hereafter
outstanding, (iii) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class
of stock of Company now or hereafter outstanding, and (iv) any payment or
prepayment of principal of, premium, if any, or interest on, or redemption,
purchase, retirement, defeasance (including in-substance or legal defeasance),
sinking fund or similar payment with respect to, any Subordinated Indebtedness.
"SAME DAY FUNDS" means (i) with respect to disbursements and
payments in Dollars, immediately available funds, and (ii) with respect to
disbursements and payments in an Offshore Currency, same day or other funds as
may be determined by Agent to be customary in the place of disbursement or
payment for the settlement of international banking transactions in the relevant
Offshore Currency.
"SAYAMA EXCLUDED COLLATERAL" means the Facilities located at
▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ Prefecture, Japan,
together with all contract rights, rents, issues, royalties, income, revenue,
proceeds, profits, security deposits, accounts or similar interests derived from
such Facilities.
"SAYAMA SUB" means a corporation organized under the laws of
Japan and a wholly-owned Subsidiary of ▇▇▇▇ Japan.
"SECURITIES" means any stock, shares, partnership interests,
equity interests, voting trust certificates, certificates of interest or
participation in any profit-sharing agreement or arrangement, whether
certificated or uncertificated, options, warrants, bonds, debentures, notes, or
other evidences of indebtedness, secured or unsecured, convertible, subordinated
or otherwise, or in general any instruments commonly known as "securities" or
any certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.
36
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, and any successor statute, and any comparable or similar laws
in a jurisdiction outside of the United States applicable to Company or any of
its Subsidiaries.
"SECURITY AGREEMENT" means each Security Agreement executed
and delivered by Holdings and Company on the Closing Date, substantially in the
form of EXHIBIT XII annexed hereto, as such Security Agreement may be amended or
supplemented or otherwise modified from time to time, and "SECURITY AGREEMENTS"
means all such Security Agreements, collectively.
"SENIOR SUBORDINATED NOTE INDENTURE" means the senior
subordinated indenture dated as of October 15, 1996 by and between Company and
The Bank of New York, as Trustee, pursuant to which the Senior Subordinated
Notes are issued, as such indenture may be amended from time to time to the
extent permitted under subsection 7.13.
"SENIOR SUBORDINATED NOTES" means the 12% senior subordinated
unsecured notes issued by Company pursuant to the Senior Subordinated Note
Indenture in the aggregate principal amount of $225,000,000, as such notes may
be amended from time to time to the extent permitted under subsection 7.13.
"STANDBY LETTER OF CREDIT" means any standby letter of credit
or similar instrument issued for the purpose of supporting (i) Indebtedness of
Company or any of its Subsidiaries in respect of industrial revenue or
development bonds or financings; (ii) workers' compensation liabilities of
Company or any of its Subsidiaries; (iii) the obligations of third party
insurers of Company or any of its Subsidiaries arising by virtue of the laws of
any jurisdiction requiring third party insurers; (iv) obligations with respect
to Capital Leases or Operating Leases of Company or any of its Subsidiaries; (v)
performance, payment, deposit or surety obligations of Company or any of its
Subsidiaries, in any case if required by law or governmental rule or regulation
or in accordance with custom and practice in the industry; and (vi) Currency
Agreements with respect to customer contracts for the sale of finished goods
entered into in the ordinary course of business and consistent with past
practices; PROVIDED that Standby Letters of Credit may not be issued for the
purpose of supporting (a) trade payables or (b) any Indebtedness constituting
"antecedent debt" (as that term is used in the Bankruptcy Code).
"STERLING" and the sign "L" mean the lawful money of the UK.
"STONINGTON ASSIGNMENT AGREEMENT" means that certain
Assignment Agreement, dated as of July 30, 1999, by and among Stonington Equity
Sub, as assignee, BTCo, as assignor, and Agent.
"STONINGTON CASH COLLATERAL ACCOUNT AGREEMENT" means that
certain Stonington Cash Collateral Account Agreement, dated as of July 30, 1999,
by and between Stonington Equity Sub and Agent.
37
"STONINGTON COMMITMENT" means the $25,000,000 aggregate
Commitment of the Stonington Lender (i) to make Loans to Borrowers pursuant to
subsections 2.1A(i)(a)(1) and (2), (ii) to issue and/or purchase participations
in Letters of Credit for the account of Borrowers pursuant to Section 3, and
(iii) to purchase participations in DIP Swing Line Loans pursuant to subsection
2.1A(ii).
"STONINGTON COMMITMENT DOCUMENTS" means, collectively, (i) the
Stonington Assignment Agreement, (ii) the Stonington Cash Collateral Account
Agreement, (iii) that certain Equity Subscription Agreement, dated July 30,
1999, by and among (1) Stonington Fund, Stonington General Partner, as general
partner, Stonington Partners, as initial management company, and the limited
partners party thereto, on the one hand, and (2) Stonington Equity Sub, on the
other hand, (iv) that certain Assignment of Equity Proceeds, dated as of July 30
, 1999, by and between Stonington Equity Sub and Agent, and
(v) that certain General Partner Undertaking, dated as of July 30, 1999,
executed by Stonington General Partner, as general partner of the Stonington
Fund.
"STONINGTON EQUITY SUB" means Stonington Financing III LLC, a
Delaware limited liability company.
"STONINGTON FUND" means Stonington Capital Appreciation 1994
Fund, L.P., a Delaware limited partnership.
"STONINGTON GENERAL PARTNER" means Stonington Partners, L.P.,
a Delaware limited partnership and the general partner of the Stonington Fund.
"STONINGTON LENDER" means, on and after the Settlement Date
(as such term is defined and used in the Stonington Assignment Agreement) only,
Stonington Equity Sub, in its capacity as a Lender under this Agreement and the
other Loan Documents.
"STONINGTON PARTNERS" means Stonington Partners, Inc., a
corporation organized under the laws of Delaware.
"SUBSIDIARY" means, with respect to any Person, any
corporation, partnership, limited liability company, association, joint venture
or other business entity of which more than 50% of the total voting power of
shares of stock or other ownership interests entitled (without regard to the
occurrence of any contingency) to vote in the election of the Person or Persons
(whether directors, managers, trustees or other Persons performing similar
functions) having the power to direct or cause the direction of the management
and policies thereof is at the time owned or controlled, directly or indirectly,
by that Person or one or more of the other Subsidiaries of that Person or a
combination thereof.
"TAX" or "TAXES" means any present or future tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature and whatever
called, by whomsoever, on
38
whomsoever and wherever imposed, levied, collected, withheld or assessed;
PROVIDED that "TAX ON THE OVERALL NET INCOME" of a Person shall be construed as
a reference to a tax imposed by the jurisdiction in which that Person's
principal office (and/or, in the case of a Lender, its lending office) is
located or in which that Person is deemed to be doing business on all or part of
the net income, profits or gains of that Person (whether worldwide, or only
insofar as such income, profits or gains are considered to arise in or to relate
to a particular jurisdiction, or otherwise).
"TAX REFUND PROCEEDS" means any tax refunds or other similar
or comparable payments, prepayments or proceeds received by any Borrower or any
of such Borrower's Subsidiaries from any Tax or other Governmental Authority.
"TOTAL UTILIZATION OF COMMITMENTS" means, as at any date of
determination, for any Borrower the Dollar Equivalent of the sum of (i) the
aggregate principal amount of all outstanding DIP/Bridge Loans made to such
Borrower (other than DIP/Bridge Loans made for the purpose of repaying any
Refunded DIP Swing Line Loans in the case of Company, or reimbursing the
applicable Issuing Lender for any amount drawn under any Letter of Credit but
not yet so applied in the case of all Borrowers) PLUS (ii) the Letter of Credit
Usage with respect to all Letters of Credit issued for the account of such
Borrower PLUS (iii) in the case of Company, the aggregate principal amount of
all outstanding DIP Swing Line Loans made to Company.
"TRIGGERING EVENT" means (i) the occurrence and continuation
of any Event of Default under subsection 8.1, 8.6 or 8.7 or (ii) the
acceleration of the maturity of the Obligations as a result of any Event of
Default, which acceleration has not been rescinded in accordance with the
provisions of Section 8.
"TYPE" means (i) with respect to a Commitment, a DIP/Bridge
Loan Commitment or a DIP Swing Line Loan Commitment, (ii) with respect to a
DIP/Bridge Loan Commitment, a DIP Loan Commitment, a UK Bridge Loan Commitment,
a French Bridge Loan Commitment or a Japanese Bridge Loan Commitment, (iii) with
respect to a Loan, a DIP/Bridge Loan or a DIP Swing Line Loan and (iv) with
respect to a DIP/Bridge Loan, a DIP Loan, a UK Bridge Loan, a French Bridge Loan
or a Japanese Bridge Loan.
"UK" means the United Kingdom of Great Britain and Northern
Ireland.
"UK BRIDGE INDEMNIFYING LENDER" means each financial
institution that is designated as a UK Bridge Indemnifying Lender on SCHEDULE
2.1 annexed hereto, and each financial institution which is designated, with the
approval of the Agent, as a UK Bridge Indemnifying Lender in an Assignment
Agreement.
"UK BRIDGE LENDER" and "UK BRIDGE LENDERS" means the Lenders
that have UK Bridge Loan Commitments or that have UK Bridge Loans outstanding,
together with their successors and permitted assigns pursuant to subsection
10.1.
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"UK BRIDGE LOAN EXPOSURE" means, with respect to any UK Bridge
Lender as of any date of determination (i) prior to the termination of the UK
Bridge Loan Commitments, that Lender's UK Bridge Loan Commitment and (ii) after
the termination of the UK Bridge Loan Commitments, the sum of (a) the aggregate
outstanding principal amount of the UK Bridge Loans of that Lender PLUS (b) in
the event that Lender is an Issuing Lender, the aggregate Letter of Credit Usage
in respect of all Letters of Credit issued by that Lender for the benefit of
▇▇▇▇ UK (in each case net of any participations purchased by other Lenders in
such Letters of Credit or any unreimbursed drawings thereunder) PLUS (c) the
aggregate amount of all participations purchased by that Lender in any
outstanding Letters of Credit for the benefit of ▇▇▇▇ UK or any unreimbursed
drawings under any such Letters of Credit.
"UK BRIDGE LOAN COMMITMENT" means the commitment of a UK
Bridge Lender (i) to make UK Bridge Loans to ▇▇▇▇ UK pursuant to subsection
2.1A(i)(a)(2) and (ii) to issue and/or purchase participations in Letters of
Credit for the account of ▇▇▇▇ UK pursuant Section 3, and "UK BRIDGE LOAN
COMMITMENTS" means such commitments of all such Lenders in the aggregate.
"UK BRIDGE LOANS" means the Loans made by the Lenders to ▇▇▇▇
UK pursuant to subsection 2.1A(i)(a)(2).
"UK DOUBLE TAX TREATY LENDER" means a Person resident in a
jurisdiction with a double tax treaty with the UK under which payments of
interest by ▇▇▇▇ UK to such Person may be made without withholding or deduction
for or on account of Tax.
"UK QUALIFYING LENDER" means a Person entitled to receive
payments of interest in respect of each UK Bridge Loan under this Agreement free
of withholding or deduction for or on account of UK income tax under Section
349(3)(a) of the Income and Corporation Taxes ▇▇▇ ▇▇▇▇ of the UK.
"VARIANCE REPORT" means a report to be delivered by Borrowers
to Agent pursuant to subsection 6.1(xxiii), in form and substance satisfactory
to Agent and certified as being true and correct to his or her knowledge after
diligent inquiry by the chief financial officer of Company reflecting the actual
Cash receipts and disbursements on a line item basis for the preceding four week
period (and on a cumulative basis since the Petition Date), the percentage
variance of such amounts from those set forth on the Receipts and Disbursements
Forecast for the preceding four week period (and cumulatively) and containing a
narrative analysis of Borrowers' performance for the preceding four week period
and any variance from such period in the Receipts and Disbursements Forecast.
"WEEKLY REPORT" means a report to be delivered by Borrowers to
Agent pursuant to subsection 6.1(xxiv), in form and substance satisfactory to
Agent, and certified as being true and correct to his or her knowledge after
diligent inquiry by the chief financial officer of Company reflecting the actual
Cash receipts and disbursements on a line item basis for the preceding week.
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"YEAR 2000 PROBLEM" means any significant risk that computer
hardware, software or equipment containing embedded microchips essential to the
business or operations of Company or any of its Subsidiaries will not, in the
case of dates or time periods occurring after December 31, 1999, function at
least as effectively and reliably as in the case of times or time periods
occurring before January 1, 2000, including the making of accurate leap year
calculations.
"YEN" and the sign "Y" mean the lawful money of Japan.
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS
UNDER AGREEMENT.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Company to Lenders pursuant to clauses (i), (ii),
(iii) and (xiii) of subsection 6.1 shall be prepared in accordance with GAAP (to
the extent GAAP is applicable thereto) as in effect at the time of such
preparation (and delivered together with the reconciliation statements provided
for in subsection 6.1(v)). Calculations in connection with the definitions,
covenants and other provisions of this Agreement shall utilize accounting
principles and policies in conformity with those used to prepare the financial
statements referred to in subsection 5.3.
1.3 OTHER DEFINITIONAL PROVISIONS.
References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Agreement unless otherwise
specifically provided. Any of the terms defined in subsection 1.1 may, unless
the context otherwise requires, be used in the singular or the plural, depending
on the reference. An Event of Default shall "continue" or be "continuing" until
such Event of Default has been waived in accordance with subsection 10.6 hereof.
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS; AMENDMENT OF
EXISTING CREDIT AGREEMENT
2.1 COMMITMENTS; MAKING OF LOANS; THE REGISTER; NOTES.
A. COMMITMENTS. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of
Borrowers set forth herein, Lenders hereby severally agree to make the
DIP/Bridge Loans described in subsections 2.1A(i)(a)(1) and 2.1A(i)(a)(2) and
DIP Swing Line Lender hereby agrees to make the DIP Swing Line Loans described
in subsection 2.1A(ii):
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(i) DIP/BRIDGE LOANS.
(a)(1) DIP LOAN COMMITMENTS AND DIP LOANS. Each DIP
Lender severally agrees, subject to the limitations set forth in
subsection 2.1(A)(i)(b) and 2.1(A)(i)(c), to lend to Company from time
to time during the period from the Closing Date to but excluding the
Commitment Termination Date an aggregate amount in the Applicable
Currency, when valued in Dollar Equivalents, not exceeding its Pro Rata
Share of the aggregate amount of the applicable DIP Loan Commitments as
in effect from time to time to be used for the purposes identified in
subsection 2.5A. The original amount of each Lender's applicable DIP
Loan Commitment is set forth opposite its name on SCHEDULE 2.1 annexed
hereto and the Dollar Equivalent of the aggregate original amount of all
DIP Loan Commitments plus all Foreign Bridge Loan Commitments is
$50,000,000, and the Dollar Equivalent of the aggregate original amount
of the DIP Loan Commitments, Loan Suballocations and Letters of Credit
Suballocations allocated to each Borrower are set forth on SCHEDULE 2.1;
PROVIDED that the DIP Loan Commitments, the Loan Suballocations and the
Letters of Credit Suballocations shall be adjusted to give effect to any
Notice of Allocation pursuant to subsection 2.1A(i)(b); PROVIDED FURTHER
that the applicable DIP Loan Commitments of Lenders shall be adjusted to
give effect to any assignments of the DIP Loan Commitments pursuant to
subsection 10.1B; PROVIDED FURTHER that the amount of the DIP Loan
Commitments shall be reduced from time to time by the amount of any
reductions thereto made pursuant to subsections 2.4A(ii) and 2.4A(iii);
and PROVIDED FURTHER that DIP Loans may be made only in Dollars or any
Offshore Currency. Each Lender's applicable DIP Loan Commitment shall
expire on the Commitment Termination Date and all DIP Loans and all
other amounts owed hereunder with respect to the DIP Loans and the DIP
Loan Commitments shall be paid in full no later than that date. Amounts
borrowed under this subsection 2.1A(i)(a)(1) may be repaid and
reborrowed to but excluding the Commitment Termination Date.
(a)(2) FOREIGN BRIDGE LOAN COMMITMENTS AND FOREIGN
BRIDGE LOANS.
As more fully set forth in this subsection
2.1A(i)(a)(2), the Prepetition Lenders hereby amend the Existing Credit
Agreement by adding the Foreign Bridge Facility as an additional tranche
of revolving loan commitments thereunder. The Existing Credit Agreement
is amended hereunder only to the extent necessary to permit the making
of the Foreign Bridge Loans under the Foreign Bridge Facility and all
terms contained herein referring to Foreign Bridge Loans and Foreign
Bridge Loan Commitments are only applicable to Loans and Commitments
under such Foreign Bridge Facility under this Credit Agreement and shall
not in any way amend or modify any of the terms contained in the
Existing Credit Agreement, which terms shall remain in full force and
effect.
Each UK Bridge Lender, French Bridge Lender and
Japanese Bridge Lender severally agrees, subject to the limitations set
forth in subsection 2.1(A)(i)(b) and
42
2.1(A)(i)(c), to lend to ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇ Japan,
respectively, from time to time during the period from the applicable
Foreign Bridge Facility Availability Date to but excluding the
Commitment Termination Date an aggregate amount in the Applicable
Currency, when valued in Dollar Equivalents, not exceeding its Pro Rata
Share of the aggregate amount of the applicable Foreign Bridge Loan
Commitments as in effect from time to time to be used for the purposes
identified in subsection 2.5A. During the period from the Closing Date
to but excluding the applicable Foreign Bridge Facility Availability
Date, in no event shall any of ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan, as
the case may be, request, and no UK Bridge Lender, French Bridge Lender
or Japanese Bridge Lender, respectively, will make, any UK Bridge Loans,
French Bridge Loans or Japanese Bridge Loans, respectively, under the
Foreign Bridge Facility. The original amount of each Lender's applicable
Foreign Bridge Loan Commitment is set forth opposite its name on
SCHEDULE 2.1 annexed hereto and the Dollar Equivalent of the aggregate
original amount of all Foreign Bridge Loan Commitments plus all DIP Loan
Commitments is $50,000,000, and the Dollar Equivalent of the aggregate
original amount of the Foreign Bridge Loan Commitments, Loan
Suballocations and Letters of Credit Suballocations allocated to each
Borrower are set forth on SCHEDULE 2.1; PROVIDED that the Foreign Bridge
Loan Commitments shall not exceed $10,000,000 at any time; PROVIDED
FURTHER that the Foreign Bridge Loan Commitments, the Loan
Suballocations and the Letters of Credit Suballocations shall be
adjusted to give effect to any Notice of Allocation pursuant to
subsection 2.1A(i)(b); PROVIDED FURTHER that the applicable Foreign
Bridge Loan Commitments of Lenders shall be adjusted to give effect to
any assignments of the Foreign Bridge Loan Commitments pursuant to
subsection 10.1B; PROVIDED FURTHER that the amount of the Foreign Bridge
Loan Commitments shall be reduced from time to time by the amount of any
reductions thereto made pursuant to subsections 2.4A(ii) and 2.4A(iii);
and PROVIDED FURTHER that (x) UK Bridge Loans may be made only in
Sterling, Marks or Dollars, (y) French Bridge Loans may be made only in
Francs or Dollars, and (z) Japanese Bridge Loans may be made only in Yen
or Dollars. Each Lender's applicable Foreign Bridge Loan Commitment
shall expire on the Commitment Termination Date and all Foreign Bridge
Loans and all other amounts owed hereunder with respect to the Foreign
Bridge Loans and the Foreign Bridge Loan Commitments shall be paid in
full no later than that date. Amounts borrowed under this subsection
2.1A(i)(a)(2) may be repaid and reborrowed to but excluding the
Commitment Termination Date.
(b) ALLOCATION OF DIP/BRIDGE LOAN COMMITMENTS;
NOTICES OF ALLOCATION. The initial amounts allocated to the DIP/Bridge
Loan Commitments, the Loan Suballocations and the Letters of Credit
Suballocations for each Borrower are set forth in SCHEDULE 2.1 annexed
hereto. Borrowers may change the amount of the DIP/Bridge Loan
Commitments, the Loan Suballocations and the Letters of Credit
Suballocations allocated to each Borrower at any time by delivering a
Notice of Allocation to Agent at least three (3) Business Days prior to
the date upon which such allocation is to be effective. Such Notice of
Allocation shall specify the new amounts for
43
each of (i) the DIP Loan Commitments, the Loan Suballocation for Company
and the Letters of Credit Suballocation for Company, (ii) the UK Bridge
Loan Commitments, the Loan Suballocation for ▇▇▇▇ UK and the Letters of
Credit Suballocation for ▇▇▇▇ UK, (iii) the French Bridge Loan
Commitments, the Loan Suballocation for ▇▇▇▇ France and the Letters of
Credit Suballocation for ▇▇▇▇ France, and (iv) the Japanese Bridge Loan
Commitments, the Loan Suballocation for ▇▇▇▇ Japan and the Letters of
Credit Suballocation of ▇▇▇▇ Japan; PROVIDED that:
(1) the sum of all DIP/Bridge Loan Commitments
for all Borrowers shall always equal the Maximum DIP/Bridge Loan
Commitments for all Borrowers then in effect;
(2) the sum of the Loan Suballocation for any
Borrower plus the Letters of Credit Suballocation for such Borrower
shall always equal the Maximum DIP/Bridge Loan Commitments for such
Borrower;
(3) the sum of the Loan Suballocation PLUS the
Letters of Credit Suballocation for Company shall not exceed the
Maximum DIP/Bridge Loan Commitments less the sum of (a) the Loan
Suballocations PLUS (b) the Letters of Credit Suballocations for
▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇ Japan;
(4) the sum of the Loan Suballocations PLUS the
Letters of Credit Suballocations for ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇
Japan shall not exceed the lesser of (x) $10,000,000 and (y) the
Maximum DIP/Bridge Loan Commitment then effect;
(5) the sum of the Letters of Credit
Suballocations for all Borrowers shall not exceed the lesser of (x)
$20,000,000 and (y) the Maximum DIP/Bridge Loan Commitment then
effect;
(6) the DIP/Bridge Loan Commitments for any
Borrower shall not in any event be reduced to an amount that is less
than the Total Utilization of Commitments for such Borrower;
(7) the Loan Suballocation for any Borrower shall
not in any event be reduced to an amount that is less than the
Dollar Equivalent of the sum of the aggregate principal amount of
all outstanding DIP/Bridge Loans made to such Borrower (other than
DIP/Bridge Loans made for the purpose of repaying any Refunded DIP
Swing Line Loans in the case of Company, or reimbursing the
applicable Issuing Lender for any amount drawn under any Letter of
Credit but not yet so applied in the case of all Borrowers) PLUS in
the case of Company, the aggregate principal amount of all
outstanding DIP Swing Line Loans made to Company; and
44
(8) the Letters of Credit Suballocation for any
Borrower shall not in any event be reduced to an amount less than
the Letter of Credit Usage with respect to all Letters of Credit
issued for the account of such Borrower;
PROVIDED FURTHER that in the event that DIP/Bridge Loans are made with
respect to any Borrower pursuant to subsection 3.3B to reimburse an
Issuing Lender for honoring a drawing under a Letter of Credit, then (x)
the Loan Suballocation for such Borrower shall be increased
automatically by an amount equal to the amount of such DIP/Bridge Loans
made and (y) the Letters of Credit Suballocation for such Borrower shall
be reduced automatically by an equal amount, in each case such increase
or decrease shall occur without any further action by any Borrower or
Agent. Agent shall promptly notify each Lender of any requested change
in the allocation of the DIP/Bridge Loan Commitments and the amount of
such Lender's Pro Rata Share of the new DIP Loan Commitments, the UK
Bridge Loan Commitments, the French Bridge Loan Commitments and the
Japanese Bridge Loan Commitments, as the case may be.
(c) LIMITATION ON DIP/BRIDGE LOANS. Anything contained in
this Agreement to the contrary notwithstanding, the DIP/Bridge Loans and
the DIP/Bridge Loan Commitments shall be subject to the limitations that:
(1) in no event shall the Total Utilization of
Commitments for all Borrowers then in effect exceed the Maximum
DIP/Bridge Loan Commitments for all Borrowers then in effect;
(2) in no event shall the Total Utilization of
Commitments for any Borrower then in effect exceed the Maximum
DIP/Bridge Loan Commitments for such Borrower then in effect;
(3) in no event shall the Total Utilization of
Commitments for all Borrowers exceed the Borrowing Base then in
effect;
(4) in no event shall the Total Utilization of
Commitments for Company then in effect exceed the Maximum DIP/Bridge
Loan Commitments then in effect LESS the Total Utilization of
Commitments for ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇ Japan then in effect;
(5) in no event shall the Total Utilization of
Commitments for ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇ Japan then in effect
exceed the lesser of (x) $10,000,000 and (y) the Maximum DIP/Bridge
Loan Commitments then in effect;
(6) in no event shall the Total Utilization of
Commitments for all Borrowers then in effect exceed the amount
permitted to be outstanding hereunder
45
pursuant to the Interim Borrowing Order or Final Borrowing Order, as
applicable; and
(7) with respect to any Borrower, in no event shall
the Dollar Equivalent of the sum of (x) the aggregate principal amount
of all outstanding DIP/Bridge Loans made to such Borrower (other than
DIP/Bridge Loans made for the purpose of repaying any Refunded DIP
Swing Line Loans in the case of Company, or reimbursing the applicable
Issuing Lender for any amount drawn under any Letter of Credit but not
yet so applied in the case of all Borrowers) PLUS (y) in the case of
Company, the aggregate principal amount of all outstanding DIP Swing
Line Loans made to Company, exceed the Loan Suballocation for such
Borrower then in effect.
(ii) DIP SWING LINE LOANS. DIP Swing Line Lender agrees,
subject to the limitations set forth below with respect to the maximum amount of
DIP Swing Line Loans permitted to be outstanding from time to time, to make a
portion of the DIP Loan Commitments available to Company, from time to time
during the period from the Closing Date to but excluding the Commitment
Termination Date by making DIP Swing Line Loans in Dollars to Company, in an
aggregate amount not exceeding the amount of the applicable DIP Swing Line Loan
Commitment to be used for the purposes identified in subsection 2.5A,
notwithstanding the fact that such DIP Swing Line Loans, when aggregated with
DIP Swing Line Lender's outstanding DIP Loans and such DIP Swing Line Lender's
Pro Rata Share of the Letter of Credit Usage for Company then in effect, may
exceed such DIP Swing Line Lender's DIP Loan Commitment. The original amount of
the DIP Swing Line Loan Commitment is $5,000,000; PROVIDED that any reduction of
the DIP Loan Commitments made pursuant to subsection 2.4A(ii) or 2.4A(iii) which
reduces the aggregate DIP Loan Commitments to an amount less than the then
current amount of the DIP Swing Line Loan Commitment shall result in an
automatic corresponding reduction of the DIP Swing Line Loan Commitment to the
amount of the DIP Loan Commitments, as so reduced, without any further action on
the part of Company, Agent or the DIP Swing Line Lender. The DIP Swing Line Loan
Commitment shall expire on the Commitment Termination Date and all DIP Swing
Line Loans and all other amounts owed hereunder with respect to the DIP Swing
Line Loans shall be paid in full no later than that date. Amounts borrowed under
this subsection 2.1A(ii) may be repaid and reborrowed to but excluding the
Commitment Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the DIP Swing Line Loans and the DIP Swing Line Loan Commitment
shall be subject to the limitations that:
(1) in no event shall the Total Utilization of
Commitments for all Borrowers then in effect exceed the Maximum
DIP/Bridge Loan Commitments for all Borrowers then in effect;
46
(2) in no event shall the Total Utilization of
Commitments for Company then in effect exceed the Maximum DIP/Bridge
Loan Commitments for Company then in effect;
(3) in no event shall the Total Utilization of
Commitments for all Borrowers exceed the Borrowing Base then in effect;
(4) in no event shall the Total Utilization of
Commitments for Company then in effect exceed the Maximum DIP/Bridge
Loan Commitments then in effect LESS the Total Utilization of
Commitments for ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇ Japan then in effect;
(5) in no event shall the Total Utilization of
Commitments for all Borrowers exceed the amount permitted to be
outstanding hereunder pursuant to the Interim Borrowing Order or Final
Borrowing Order, as applicable; and
(6) in no event shall the Dollar Equivalent of the sum of (x)
the aggregate principal amount of all outstanding DIP/Bridge Loans made
to Company (other than DIP/Bridge Loans made for the purpose of
repaying any Refunded DIP Swing Line Loans, or reimbursing the
applicable Issuing Lender for any amount drawn under any Letter of
Credit but not yet so applied) PLUS (y) the aggregate principal amount
of all outstanding DIP Swing Line Loans made to Company, exceed the
Loan Suballocation for Company then in effect.
With respect to DIP Swing Line Loans which have not been
voluntarily prepaid by Company pursuant to subsection 2.4A(i), DIP Swing Line
Lender may, at any time in its sole and absolute discretion, deliver to Agent
(with a copy to Company), no later than 12:00 P.M. (New York time) on the first
Business Day in advance of the proposed Funding Date, a notice (which shall be
deemed to be a Notice of Borrowing given by Company) requesting the DIP Lenders
to make DIP Loans that are Base Rate Loans on such Funding Date in an amount
equal to the amount of such DIP Swing Line Loans (the "REFUNDED DIP SWING LINE
LOANS") outstanding on the date such notice is given which DIP Swing Line Lender
requests such DIP Lenders to prepay. Anything contained in this Agreement to the
contrary notwithstanding, (i) the proceeds of such DIP Loans made by such DIP
Lenders other than DIP Swing Line Lender shall be immediately delivered by Agent
to DIP Swing Line Lender (and not to Company) and applied to repay a
corresponding portion of such Refunded DIP Swing Line Loans and (ii) on the day
such DIP Loans are made, DIP Swing Line Lender's Pro Rata Share of such Refunded
DIP Swing Line Loans shall be deemed to be paid with the proceeds of a DIP Loan
made by DIP Swing Line Lender, and such portion of such DIP Swing Line Loans
deemed to be so paid shall no longer be outstanding as DIP Swing Line Loans and
shall no longer be due under the DIP Swing Line Note of DIP Swing Line Lender
but shall instead constitute part of DIP Swing Line Lender's outstanding DIP
Loans and shall be due under the DIP Note of DIP Swing Line Lender. Company
hereby authorizes Agent and DIP Swing Line Lender to charge Company's accounts
47
with Agent and DIP Swing Line Lender (up to the amount available in each such
account) in order to immediately pay DIP Swing Line Lender the amount of such
Refunded DIP Swing Line Loans to the extent the proceeds of such DIP Loans made
by the DIP Lenders, including the DIP Loan deemed to be made by DIP Swing Line
Lender, are not sufficient to repay in full such Refunded DIP Swing Line Loans.
If any portion of any such amount paid (or deemed to be paid) to DIP Swing Line
Lender should be recovered by or on behalf of Company from DIP Swing Line Lender
in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss
of the amount so recovered shall be ratably shared among all DIP Lenders in the
manner contemplated by subsection 10.5.
If for any reason (a) DIP Loans are not made upon the request
of DIP Swing Line Lender as provided in the immediately preceding paragraph in
an amount sufficient to repay any amounts owed to DIP Swing Line Lender in
respect of any outstanding DIP Swing Line Loans or (b) the DIP Loan Commitments
are terminated at a time when any DIP Swing Line Loans are outstanding, each DIP
Lender shall be deemed to, and hereby agrees to, have purchased a participation
in such outstanding DIP Swing Line Loans in an amount equal to its Pro Rata
Share (calculated, in the case of the foregoing clause (b), immediately prior to
such termination of the DIP Loan Commitments) of the unpaid amount of such DIP
Swing Line Loans together with accrued interest thereon. Upon one Business Day's
notice from DIP Swing Line Lender, each DIP Lender shall deliver to DIP Swing
Line Lender an amount equal to its respective participation in Same Day Funds at
the Funding and Payment Office. In the event any such DIP Lender fails to make
available to DIP Swing Line Lender the amount of such DIP Lender's participation
as provided in this paragraph, DIP Swing Line Lender shall be entitled to
recover such amount on demand from such DIP Lender together with interest
thereon at the rate customarily used by DIP Swing Line Lender for the correction
of errors among banks for three Business Days and thereafter at the Base Rate.
In the event DIP Swing Line Lender receives a payment of any amount in which
other DIP Lenders have purchased participations as provided in this paragraph,
DIP Swing Line Lender shall promptly distribute to each such other DIP Lender
its Pro Rata Share of such payment.
Anything contained herein to the contrary notwithstanding,
each DIP Lender's obligation to make DIP Loans for the purpose of repaying any
Refunded DIP Swing Line Loans pursuant to the second preceding paragraph and
each DIP Lender's obligation to purchase a participation in any unpaid DIP Swing
Line Loans pursuant to the immediately preceding paragraph shall be absolute and
unconditional and shall not be affected by any circumstance, including (a) any
set-off, counterclaim, recoupment, defense or other right which such DIP Lender
may have against DIP Swing Line Lender, Company or any other Person for any
reason whatsoever; (b) the occurrence or continuation of an Event of Default or
a Potential Event of Default; (c) any adverse change in the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of Company or any of its Subsidiaries; (d) any breach of this Agreement or any
other Loan Document by any party thereto; or (e) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing;
PROVIDED that such obligations of each DIP Lender are subject to the condition
that (X) DIP Swing Line Lender
48
believed in good faith that all conditions under Section 4 to the making of the
applicable Refunded DIP Swing Line Loans or other unpaid DIP Swing Line Loans,
as the case may be, were satisfied at the time such Refunded DIP Swing Line
Loans or unpaid DIP Swing Line Loans were made or (Y) the satisfaction of any
such condition not satisfied had been waived in accordance with subsection 10.6
prior to or at the time such Refunded DIP Swing Line Loans or other unpaid DIP
Swing Line Loans were made.
B. BORROWING MECHANICS.
(i) MINIMUM AMOUNTS. DIP/Bridge Loans made on any Funding
Date (other than DIP Loans made pursuant to a request by a DIP Swing Line Lender
pursuant to subsection 2.1A(ii) for the purpose of repaying any Refunded DIP
Swing Line Loans or DIP/Bridge Loans made pursuant to subsection 3.3B for the
purpose of reimbursing any Issuing Lender for the amount of a drawing under a
Letter of Credit issued by it) as Base Rate Loans or as Offshore Rate Loans
shall be in an aggregate minimum amount equal to the applicable Minimum Amount.
DIP Swing Line Loans made on any Funding Date shall be in an aggregate minimum
amount equal to the applicable Minimum Amount.
(ii) NOTICE OF BORROWING. Whenever a Borrower desires that
Lenders make DIP/Bridge Loans it shall deliver to Agent a Notice of Borrowing
(1) no later than 12:00 Noon (London time) at least three Business Days in
advance of the proposed Funding Date in the case of an Offshore Rate Loan or (2)
no later than 12:00 Noon (New York time) at least one Business Day in advance of
the proposed Funding Date in the case of a DIP/Bridge Loan made as a Base Rate
Loan. Whenever a Borrower desires that DIP Swing Line Lender make a DIP Swing
Line Loan, it shall deliver to Agent a Notice of Borrowing no later than 1:30
P.M. (Chicago time) on the proposed Funding Date. The Notice of Borrowing shall
specify (i) the Borrower, (ii) the proposed Funding Date (which shall be a
Business Day), (iii) the amount and Type of Loans requested, (iv) in the case of
DIP Swing Line Loans and any DIP Loans made on the Closing Date, that such Loans
shall be Base Rate Loans, (v) in the case of any DIP Loans not made on the
Closing Date, whether such Loans shall be Base Rate Loans or Offshore Rate
Loans, (vi) in the case of any DIP/Bridge Loans other than DIP Loans made after
the Closing Date, that such Loans shall be Offshore Rate Loans, (vii) in the
case of any DIP/Bridge Loans requested to be made as Offshore Rate Loans, the
initial Interest Period requested therefor, and (viii) the Applicable Currency
the Loan is to be made in.
(iii) CONTINUATION/CONVERSION. (a) DIP/Bridge Loans
denominated in Dollars may be continued as or converted into Base Rate Loans and
Offshore Rate Loans and (b) DIP/Bridge Loans denominated in an Offshore Currency
may be continued as Offshore Rate Loans and may not be converted into Base Rate
Loans, in each case in the manner provided in subsection 2.2D.
(iv) TELEPHONIC NOTICE. In lieu of delivering the
above-described Notice of Borrowing, a Borrower may give Agent telephonic notice
by the required time of any proposed
49
borrowing under this subsection 2.1B; PROVIDED that such notice shall be
promptly confirmed in writing by delivery of a Notice of Borrowing to Agent on
or before the applicable Funding Date.
Neither Agent nor any Lender shall incur any liability to
Borrower in acting upon any telephonic notice referred to above that Agent
believes in good faith to have been given by a duly authorized officer or other
person authorized to borrow on behalf of such Borrower or for otherwise acting
in good faith under this subsection 2.1B, and upon funding of Loans by Lenders
in accordance with this Agreement pursuant to any such telephonic notice such
Borrower shall have effected Loans hereunder.
(v) CERTIFICATION OF CERTAIN ITEMS. The applicable
Borrower shall notify Agent prior to the funding of any Loans in the event that
any of the matters to which such Borrower is required to certify in the
applicable Notice of Borrowing is no longer true and correct as of the
applicable Funding Date, and the acceptance by such Borrower of the proceeds of
any Loans shall constitute a re-certification by such Borrower, as of the
applicable Funding Date, as to the matters to which such Borrower is required to
certify in the applicable Notice of Borrowing.
(vi) OFFSHORE RATE LOANS. Except as otherwise provided in
subsections 2.6B, 2.6C and 2.6G, a Notice of Borrowing for an Offshore Rate Loan
(or telephonic notice in lieu thereof) shall be irrevocable on and after the
related Interest Rate Determination Date, and the Borrower giving such notice
shall be bound to make a borrowing in accordance therewith.
C. DISBURSEMENT OF FUNDS.
(i) Subject to this subsection 2.1C and subsection 2.1D,
(a) all DIP Loans under this Agreement shall be made by DIP Lenders
simultaneously and proportionately to their respective Pro Rata Shares of the
DIP Loan Commitments, (b) all UK Bridge Loans under this Agreement shall be made
by UK Bridge Lenders simultaneously and proportionately to their respective Pro
Rata Shares of the UK Bridge Loan Commitments, (c) all French Bridge Loans under
this Agreement shall be made by French Bridge Lenders simultaneously and
proportionately to their respective Pro Rata Shares of the French Bridge Loan
Commitments, and (d) all Japanese Bridge Loans under this Agreement shall be
made by Japanese Bridge Lenders simultaneously and proportionately to their
respective Pro Rata Shares of the Japanese Bridge Loan Commitments, in each case
it being understood that no Lender shall be responsible for any default by any
other Lender in that other Lender's obligation to make a DIP/Bridge Loan
requested hereunder nor shall the DIP/Bridge Loan Commitment of any Lender be
increased or decreased as a result of a default by any other Lender in that
other Lender's obligation to make a DIP/Bridge Loan requested hereunder.
(ii) Promptly after receipt by Agent of a Notice of
Borrowing pursuant to subsection 2.1B (or telephonic notice in lieu thereof),
Agent shall notify each applicable Lender or DIP Swing Line Lender, as the case
may be, of the proposed borrowing. Each such Lender shall make the amount of its
DIP/Bridge Loan available to Agent, at the applicable Funding and Payment
Office, not later than 12:00 Noon (Local Time) on the applicable Funding Date,
and
50
DIP Swing Line Lender shall make the amount of its DIP Swing Line Loan available
to Agent not later than 3:00 P.M. (Chicago time) on the applicable Funding Date,
in each case in Same Day Funds in the Applicable Currency, at the Funding and
Payment Office. Except as provided in subsection 2.1A (ii) and subsection 3.3B
with respect to DIP/Bridge Loans used to repay Refunded DIP Swing Line Loans or
to reimburse any Issuing Lender for the amount of a drawing under a Letter of
Credit issued by it, upon satisfaction or waiver of the conditions precedent
specified in subsection 4.1 (in the case of Loans made on the Closing Date) and,
subject to the provisions set forth in the immediately preceding paragraph,
subsection 4.2 (in the case of all Loans), Agent shall make the proceeds of such
Loans available to the applicable Borrower on the applicable Funding Date by
causing an amount of Same Day Funds in the Applicable Currency equal to the
proceeds of all such Loans received by Agent from Lenders or DIP Swing Line
Lender, as the case may be, to be credited to the account of such Borrower at
the Funding and Payment Office.
Unless Agent shall have been notified by any Lender prior to
the Funding Date for any DIP/Bridge Loans that such Lender does not intend to
make available to Agent the amount of such Lender's DIP/Bridge Loan requested on
such Funding Date, Agent may assume that such Lender has made such amount
available to Agent on such Funding Date and Agent may, in its sole discretion,
but shall not be obligated to, make available to Borrower a corresponding amount
on such Funding Date. If such corresponding amount is not in fact made available
to Agent by such Lender, Agent shall be entitled to recover such corresponding
amount on demand from such Lender together with interest thereon, for each day
from such Funding Date until the date such amount is paid to Agent at the
customary rate set by Agent for the correction of errors among banks for three
Business Days and thereafter at the Base Rate. If such Lender does not pay such
corresponding amount forthwith upon Agent's demand therefor, Agent shall
promptly notify Borrower and Borrower shall immediately pay such corresponding
amount in the Applicable Currency to Agent together with interest thereon, for
each day from such Funding Date until the date such amount is paid to Agent at
the rate payable under this Agreement for Base Rate Loans. Nothing in this
subsection 2.1C shall be deemed to relieve any Lender from its obligation to
fulfill its DIP/Bridge Loan Commitments hereunder or to prejudice any rights
that Borrower may have against any Lender as a result of any default by such
Lender hereunder.
D. THE REGISTER.
(i) Agent shall maintain, at its address referred to in
subsection 10.8, a register for the recordation of the names and addresses of
Lenders and the Commitments and Loans of each Lender from time to time (the
"REGISTER"). The Register shall be available for inspection by any Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(ii) Agent shall record in the Register the DIP/Bridge
Loan Commitments and DIP/Bridge Loans from time to time of each Lender, the DIP
Swing Line Loan Commitment and the DIP Swing Line Loans from time to time of DIP
Swing Line Lender, and each repayment or
51
prepayment in respect of the principal amount of the DIP/Bridge Loans of each
Lender or the DIP Swing Line Loans of DIP Swing Line Lender. Any such
recordation shall be conclusive and binding on each Borrower and each Lender,
absent manifest error; PROVIDED that failure to make any such recordation, or
any error in such recordation, shall not affect any Lender's DIP/Bridge Loan
Commitment or any Borrower's Obligations in respect of the applicable Loans.
(iii) Each Lender shall record on its internal records
(including, without limitation, the Notes held by such Lender) the amount of
each DIP/Bridge Loan made by it and each payment in respect thereof. Any such
recordation shall be conclusive and binding on each Borrower, absent manifest
error; PROVIDED that failure to make any such recordation, or any error in such
recordation, shall not affect Lender's DIP/Bridge Loan Commitment or any
Borrower's Obligations in respect of the applicable Loans; and PROVIDED FURTHER
that in the event of any inconsistency between the Register and any Lender's
records, the recordations in the Register shall govern.
(iv) Borrowers, Agent and Lenders shall deem and treat the
Persons listed as Lenders in the Register as the holders and owners of the
corresponding Commitments and Loans listed therein for all purposes hereof, and
no assignment or transfer of any such Commitment or Loan shall be effective, in
each case unless and until an Assignment Agreement effecting the assignment or
transfer thereof shall have been accepted by Agent and recorded in the Register
as provided in subsection 10.1B(ii). Prior to such recordation, all amounts owed
with respect to the applicable Commitment or Loan shall be owed to the Lender
listed in the Register as the owner thereof, and any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Lender shall be conclusive
and binding on any subsequent holder, assignee or transferee of the
corresponding Commitments or Loans.
(v) Each Borrower hereby designates BTCo to serve as such
Borrower's agent solely for purposes of maintaining the Register as provided in
this subsection 2.1D, and each Borrower hereby agrees that, to the extent BTCo
serves in such capacity, BTCo and its officers, directors, employees, agents and
affiliates shall constitute Indemnitees for all purposes under subsection 10.3.
E. NOTES. Company shall execute and deliver on the
Closing Date (a) to each applicable DIP Lender (or to Agent for that DIP
Lender) a DIP/Bridge Note, substantially in the form of EXHIBIT IV annexed
hereto, to evidence that DIP Lender's DIP/Bridge Loans, in the principal
amount of that DIP Lender's applicable DIP/Bridge Loans and with other
appropriate insertions, and (b) to DIP Swing Line Lender (or to Agent for
that Lender) a DIP Swing Line Note, substantially in the form of EXHIBIT V
annexed hereto, to evidence DIP Swing Line Lender's DIP Swing Line Loans, in
the principal amount of the DIP Swing Line Loan Commitment and with other
appropriate insertions. Each of ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇ Japan shall
execute and deliver on its applicable Foreign Bridge Facility Availability
Date (a) to each applicable UK Bridge Lender, French Bridge Lender and
Japanese Bridge Lender, as the
52
case may be (or to Agent for such Lender), a DIP/Bridge Note, substantially in
the form of EXHIBIT IV annexed hereto, to evidence such Lender's DIP/Bridge
Loans, in the principal amount of such Lender's applicable DIP/Bridge Loans and
with other appropriate insertions. Until the Settlement Date (as such term is
defined and used in the Stonington Assignment Agreement) and satisfaction by
Stonington Equity Sub of the terms and conditions of the Stonington Commitment
Documents, no Borrower shall be required to execute and deliver a DIP/Bridge
Note to the Stonington Lender.
Agent may deem and treat the payee of any Note as the owner
thereof for all purposes hereof unless and until an Assignment Agreement
effecting the assignment or transfer thereof shall have been accepted by
Administrative Agent as provided in subsection 10.1B(ii). Any request,
authorization or consent of any person or entity who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall be
conclusive and binding on any subsequent holder, assignee or transferee of that
Note or of any Note or Notes issued in exchange therefor.
F. SPECIAL PROVISIONS GOVERNING OFFSHORE CURRENCY LOANS
AND OFFSHORE CURRENCY LETTERS OF CREDIT. Notwithstanding any other provision of
this Agreement to the contrary, the following provisions shall govern with
respect to Offshore Currency Loans and to Letters of Credit denominated in a
currency other than Dollars, in each case as to the matters covered:
(i) CALCULATION OF DOLLAR EQUIVALENT AMOUNT OF OFFSHORE
CURRENCY LOANS AND FOREIGN CURRENCY LETTERS OF CREDIT. For purposes of
determining (1) whether the Total Utilization of Commitments exceeds
the Maximum DIP/Bridge Loan Commitments then in effect or (2) the
Letter of Credit Usage, Agent shall determine the Dollar Equivalent
amounts with respect to any DIP/Bridge Loans that are Offshore Currency
Loans and with respect to any Letters of Credit denominated in a
currency other than Dollars (a) at the time a Notice of Allocation is
given, (b) on the first Business Day of each month of each calendar
year, and (c) at such other dates as Agent may reasonably require (each
such date under clauses (a) - (c) being a "COMPUTATION DATE"). Agent
shall determine the Dollar Equivalent amount for a particular
DIP/Bridge Loan at the time a Notice of Borrowing or a Notice of
Conversion/Continuation is given with respect to such DIP/Bridge Loan
and for a particular Letter of Credit at the time a Request for
Issuance of Letter of Credit is given with respect to such Letter of
Credit.
(ii) EUROPEAN ECONOMIC AND MONETARY UNION. The European
Economic and Monetary Union (the "EUROPEAN MONETARY UNION") anticipates
the introduction of a single currency and the substitution of such
currency for the national currencies of the member states participating
in the European Monetary Union. On the date on which any Offshore
Currency is replaced by such single currency, it is hereby acknowledged
and agreed that "Sterling," "Francs" and "Marks," each as defined
herein, shall include any such single currency and that conversion of
any outstanding Loans denominated in such
53
Offshore Currency into such single currency shall take effect; PROVIDED
that the original Offshore Currency shall be retained for so long as
legally permissible; PROVIDED FURTHER that any such conversion shall be
based on the rate of conversion officially fixed by the European
Monetary Union on the date such single currency replaces the applicable
Offshore Currency. Notwithstanding anything contained herein to the
contrary, none of the introduction of such single currency, the
substitution of such currency for any Offshore Currency, the fixing of
such official rate of conversion nor any economic consequences that
arise from any of the aforementioned events or otherwise in connection
with the European Monetary Union shall give rise to any right to
terminate prematurely, contest, cancel, rescind, modify or renegotiate
this Agreement or any of its provisions or to raise any other
objections and/or exceptions or to assert any claims for compensation.
2.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. Subject to the provisions of subsections
2.6 and 2.7, each DIP/Bridge Loan shall bear interest on the unpaid principal
amount thereof from the date made through maturity (whether by acceleration or
otherwise) at a rate determined by reference to the Base Rate or to the Adjusted
Offshore Rate. Subject to the provisions of subsection 2.7, each DIP Swing Line
Loan shall bear interest on the unpaid principal amount hereof from the date
made through maturity (whether by acceleration or otherwise) at a rate
determined by reference to the Base Rate. The applicable basis for determining
the rate of interest with respect to any DIP/Bridge Loan shall be selected by
the Borrower initially at the time a Notice of Borrowing is given with respect
to such Loan pursuant to subsection 2.1B, and the basis for determining the
interest rate with respect to any DIP/Bridge Loan may be changed from time to
time pursuant to subsection 2.2D. If on any day a DIP/Bridge Loan denominated in
Dollars is outstanding with respect to which notice has not been delivered to
Agent in accordance with the terms of this Agreement specifying the applicable
basis for determining the rate of interest, then for that day that Loan shall
bear interest determined by reference to the Base Rate. If on any day a
DIP/Bridge Loan denominated in an Offshore Currency is outstanding with respect
to which notice has not been delivered to Agent in accordance with the terms of
this Agreement specifying the applicable basis for determining the rate of
interest, then such DIP/Bridge Loan shall bear interest determined by reference
to the Offshore Rate Loan with an Interest Period of, and the applicable
Interest Period shall be deemed to be, one month.
Subject to the provisions of subsections 2.2E and 2.7, the
DIP/Bridge Loans shall bear interest through maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base Rate
PLUS 2.25%; or
(b) if an Offshore Rate Loan, then at the sum of the
Adjusted Offshore Rate PLUS 3.25%.
Subject to the provisions of subsections 2.2E and 2.7, the DIP
Swing Line Loans shall bear interest through maturity at the sum of the Base
Rate PLUS 2.25% MINUS 0.50%.
54
B. INTEREST PERIODS. In connection with each Offshore
Rate Loan, a Borrower may, pursuant to the applicable Notice of Borrowing or
Notice of Conversion/Continuation, as the case may be, select an interest period
(each an "INTEREST PERIOD") to be applicable to such Loan, which Interest Period
shall be a one month period; PROVIDED that:
(i) the initial Interest Period for any such Loan shall
commence on the Funding Date in respect of such Loan, in the case of a Loan
initially made as an Offshore Rate Loan or on the date specified in the
applicable Notice of Conversion/Continuation, in the case of a Loan converted to
an Offshore Rate Loan;
(ii) in the case of immediately successive Interest
Periods applicable to an Offshore Rate Loan continued as such pursuant to a
Notice of Conversion/Continuation, each successive Interest Period shall
commence on the day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; PROVIDED that, if any Interest Period would otherwise
expire on a day that is not a Business Day but is a day of the month after which
no further Business Day occurs in such month, such Interest Period shall expire
on the next preceding Business Day;
(iv) 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, subject to clause (v) of this subsection 2.2B, end on the last Business
Day of a calendar month;
(v) no Interest Period with respect to any portion of the
DIP/Bridge Loans shall extend beyond the Commitment Termination Date;
(vi) there shall be no more than five (5) Interest Periods
for any Borrower outstanding at any time; and
(vii) in the event a Borrower fails to specify an Interest
Period for any Offshore Rate Loan in the applicable Notice of Borrowing or
Notice of Conversion/Continuation, such Borrower shall be deemed to have
selected an Interest Period of one month.
C. INTEREST PAYMENTS. Subject to the provisions of
subsection 2.2E, interest on each Loan shall be payable in arrears on and to
each Interest Payment Date applicable to that Loan, upon any prepayment of that
Loan (to the extent accrued on the amount being prepaid) and at maturity
(including final maturity); PROVIDED that in the event any DIP Swing Line Loans
or any DIP/Bridge Loans that are Base Rate Loans are prepaid pursuant to
subsection 2.4A(i), interest accrued on such DIP Swing Line Loans or DIP/Bridge
Loans through the date of such
55
prepayment shall be payable on the next succeeding Interest Payment Date
applicable to Base Rate Loans (or, if earlier, at final maturity).
D. CONVERSION OR CONTINUATION. Subject to the provisions of
subsection 2.6, a Borrower shall have the option (i) to convert at any time all
or any part of its outstanding DIP/Bridge Loans denominated in Dollars equal to
the Minimum Amount from Loans bearing interest at a rate determined by reference
to one basis to Loans bearing interest at a rate determined by reference to an
alternative basis, or (ii) upon the expiration of any Interest Period applicable
to any Offshore Rate Loan to continue all or any portion of such Loan equal to
the Minimum Amount as an Offshore Rate Loan; PROVIDED, HOWEVER, that any
Offshore Rate Loan denominated in Dollars may only be converted into a Base Rate
Loan on the expiration date of an Interest Period applicable thereto; PROVIDED
FURTHER that DIP/Bridge Loans denominated in an Offshore Currency may not be
converted into Base Rate Loans and that DIP/Bridge Loans denominated in one
currency may not be converted into DIP/Bridge Loans denominated in another
currency.
A Borrower shall deliver a Notice of Conversion/Continuation
to Agent no later than 12:00 Noon (Local Time) at least one Business Day in
advance of the proposed conversion date (in the case of a conversion of an
Offshore Rate Loan denominated in Dollars to a Base Rate Loan) and at least
three Business Days in advance of the proposed conversion/continuation date (in
the case of a conversion to, or a continuation of, an Offshore Rate Loan). A
Notice of Conversion/Continuation shall specify (i) the proposed
conversion/continuation date (which shall be a Business Day), (ii) the amount
and Type of the Loan to be converted/continued, (iii) the nature of the proposed
conversion/continuation, (iv) in the case of a conversion to, or a continuation
of, an Offshore Rate Loan, the requested Interest Period, and (v) in the case of
a conversion to, or a continuation of, an Offshore Rate Loan, that no Potential
Event of Default or Event of Default has occurred and is continuing. In lieu of
delivering the above-described Notice of Conversion/Continuation, a Borrower may
give Agent telephonic notice by the required time of any proposed
conversion/continuation under this subsection 2.2D; PROVIDED that such notice
shall be promptly confirmed in writing by delivery of a Notice of
Conversion/Continuation to Agent on or before the proposed
conversion/continuation date.
Upon receipt of written or telephonic notice of any proposed
conversion/continuation under this subsection 2.2D, Agent shall promptly
transmit said notice by telefacsimile or telephone to each applicable Lender.
Neither Agent nor any Lender shall incur any liability to any
Borrower in acting upon any telephonic notice referred to above that Agent
believes in good faith to have been given by a duly authorized officer or other
person authorized to act on behalf of such Borrower or for otherwise acting in
good faith under this subsection 2.2D, and upon conversion or continuation of
the applicable basis for determining the interest rate with respect to any Loans
in accordance with this Agreement pursuant to any such telephonic notice any
Borrower shall have effected a conversion or continuation, as the case may be,
hereunder.
56
Except as otherwise provided in subsections 2.6B, 2.6C and
2.6G, a Notice of Conversion/Continuation for conversion to, or continuation of,
an Offshore Rate Loan (or telephonic notice in lieu thereof) shall be
irrevocable on and after the related Interest Rate Determination Date, and
Borrower shall be bound to effect a conversion or continuation in accordance
therewith.
E. DEFAULT RATE. Upon the occurrence and during the
continuation of any Event of Default, the outstanding principal amount of all
Loans and, to the extent permitted by applicable law, any interest payments
thereon not paid when due and any fees and other amounts then due and payable
hereunder, shall thereafter bear interest (including post-petition interest in
any proceeding under the Bankruptcy Code) payable upon demand at a rate that is
3.75% per annum in excess of the interest rate otherwise payable under this
Agreement with respect to Base Rate Loans. Payment or acceptance of the
increased rates of interest provided for in this subsection 2.2E is not a
permitted alternative to timely payment and shall not constitute a waiver of any
Event of Default or otherwise prejudice or limit any rights or remedies of Agent
or any Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans (other than
Loans denominated in Sterling) shall be computed on the basis of a 360-day year
and interest on Loans denominated in Sterling shall be computed on the basis of
a 365-day year, in each case for the actual number of days elapsed in the period
during which it accrues. In computing interest on any Loan, (i) the date of the
making of such Loan or the first day of an Interest Period applicable to such
Loan or, with respect to a Base Rate Loan being converted from an Offshore Rate
Loan, the date of conversion of such Offshore Rate Loan to such Base Rate Loan
shall be included, and (ii) the date of payment of such Loan or the expiration
date of an Interest Period applicable to such Loan or, with respect to a Base
Rate Loan being converted to an Offshore Rate Loan, the date of conversion of
such Base Rate Loan to such Offshore Rate Loan shall be excluded; PROVIDED that
if a Loan is repaid on the same day on which it is made, no interest shall be
paid on that Loan.
G. EFFECTIVE GLOBAL RATE. For the purposes of Articles L 313-1
to L 313-6 of the French CODE DE LA CONSUMMATION, the parties acknowledge that
the TAUX EFFECTIF GLOBAL for Offshore Rate Loans denominated in Francs may only
be determined during the course of the Offshore Rate Loans denominated in
Francs.
2.3 FEES.
A. COMMITMENT FEES.
(i) Company agrees to pay to Agent in Dollars, for
distribution to each Lender in proportion to that Lender's Pro Rata Share of the
Commitments, commitment fees for the period from and including the Interim
Borrowing Order Date to and excluding the Commitment Termination Date in an
amount equal to (x) 0.500% MULTIPLIED BY (y) the average of the daily excess of
all Commitments over the sum of (i) the Dollar Equivalent of the aggregate
57
principal amount of outstanding Loans (but not any outstanding DIP Swing Line
Loans) of all Borrowers PLUS (ii) the Dollar Equivalent of the Letter of Credit
Usage of all Borrowers.
(ii) CALCULATION. Such commitment fees shall be calculated
on the basis of a 360-day year and the actual number of days elapsed and be
payable monthly in arrears on each date that is three (3) Business Days after
the last Business Days of each month of each year, commencing on the first such
date to occur after the Closing Date, and on the Commitment Termination Date.
For purposes of calculating commitment fees under this subsection 2.3A, the
Dollar Equivalent amount of the aggregate principal amount of any outstanding
Offshore Currency Loans shall be determined based upon the Exchange Rate as of
the last Business Day of each month of each year with respect to such Offshore
Currency Loan. Agent shall provide to Borrowers on each first Business Day after
the last Business Day of each month of each year a report specifying the
commitment fees payable by each Borrower and including the calculations of such
commitment fees and the Exchange Rate used, and Borrowers shall pay such
commitment fees no later than two (2) Business Days after delivery of such
report.
B. FACILITY FEES. Borrowers shall pay to Agent in
Dollars, for distribution to each Lender in proportion to that Lender's Pro Rata
Share of the DIP/Bridge Loan Commitments, facility fees in an amount equal to
2.00% of the aggregate original Commitments, such facility fees to be pro rated
based on the aggregate amount of Loans authorized in the Interim Borrowing Order
and the Final Borrowing Order so that a ratable portion of such facility fees
are payable on the first Business Day after the Interim Borrowing Order Date and
the remainder of such fees are payable on the first Business Day after the Final
Borrowing Order Date.
C. ADMINISTRATIVE FEE. On or before the Closing Date,
Company shall pay to Agent an administrative fee of $100,000.
D. OTHER FEES. Each Borrower agrees to pay to Agent such
other fees in the amounts and at the times separately agreed upon between such
Borrower and Agent.
2.4 REPAYMENTS, PREPAYMENTS AND VOLUNTARY REDUCTIONS IN DIP/BRIDGE LOAN
COMMITMENTS; GENERAL PROVISIONS REGARDING PAYMENTS.
A. PREPAYMENTS AND REDUCTIONS IN DIP/BRIDGE LOAN COMMITMENTS.
(i) VOLUNTARY PREPAYMENTS. Company may, upon written or
telephonic notice to Agent on or prior to 12:00 Noon (New York time) on the date
of prepayment, which notice, if telephonic, shall be promptly confirmed in
writing, at any time from time to time prepay any DIP Swing Line Loan on any
Business Day in whole or in part in an aggregate minimum amount equal to the
applicable Minimum Amount. Each Borrower may, upon not less than one Business
Day's prior written or telephonic notice, in the case of Base Rate Loans, and
three Business Days' prior written or telephonic notice, in the case of Offshore
Rate Loans, in each case given to Agent by 12:00 Noon (Local Time) on the date
required and, if given by telephone, promptly
58
confirmed in writing to Agent (which original written or telephonic notice Agent
will promptly transmit by telefacsimile or telephone to each Lender), at any
time and from time to time prepay any Loans on any Business Day in whole or in
part in an aggregate minimum amount equal to the applicable Minimum Amount;
PROVIDED, HOWEVER, that an Offshore Rate Loan may not be prepaid prior to the
expiration of the Interest Period applicable thereto unless such Borrower pays
to each Lender all such amounts as are payable pursuant to subsection 2.6D.
Notice of prepayment having been given as aforesaid, the principal amount of the
Loans specified in such notice shall become due and payable on the prepayment
date specified therein. Any such voluntary prepayment shall be applied as
specified in subsection 2.4A(iv).
(ii) VOLUNTARY REDUCTIONS OF DIP/BRIDGE LOAN COMMITMENTS.
Company may, upon not less than three Business Days' prior written or telephonic
notice confirmed in writing to Agent (which original written or telephonic
notice such Agent will promptly transmit by telefacsimile or telephone to each
Lender), at any time and from time to time terminate in whole or permanently
reduce in part, without premium or penalty, the DIP/Bridge Loan Commitments in
an amount up to the amount by which the DIP/Bridge Loan Commitments exceed the
Total Utilization of Commitments with respect to all Borrowers; PROVIDED that
any such partial reduction of the DIP/Bridge Loan Commitments shall be in an
aggregate minimum amount equal to the applicable Minimum Amount. Company's
notice to Agent shall designate the date (which shall be a Business Day) of such
termination or reduction and the amount of any partial reduction, and such
termination or reduction of such DIP/Bridge Loan Commitments shall be effective
on the date specified in such notice and shall reduce such DIP/Bridge Loan
Commitment of each Lender proportionately to its Pro Rata Share.
(iii) MANDATORY PREPAYMENTS OF DIP/BRIDGE LOANS. The Loans
shall be prepaid in the amounts and under the circumstances set forth below, all
such prepayments to be applied as set forth below or as more specifically
provided in subsection 2.4A(iv):
(a) PREPAYMENTS FROM NET ASSET SALE PROCEEDS.
Subject to clause (z) set forth in the proviso contained in subsection
7.7, no later than the first Business Day following the date of receipt
by any Borrower or any of its Subsidiaries of any Net Asset Sale
Proceeds in respect of any Asset Sale, (1) such Borrower shall prepay
its Loans in an aggregate amount equal to 100% of such Net Asset Sale
Proceeds, and (2) to the extent that any such Net Asset Sale Proceeds
remain after the applications required pursuant to the foregoing clause
(1), such Borrower shall cause the excess of such Net Asset Sale
Proceeds to be applied to prepay the remaining outstanding Loans of all
other Borrowers on a pro rata basis (in accordance with the respective
outstanding amount of DIP/Bridge Loans).
(b) PREPAYMENTS FROM NET INSURANCE/CONDEMNATION
PROCEEDS. No later than the first Business Day following the date of
receipt by Agent or by any Borrower or any of its Subsidiaries of any
Net Insurance/Condemnation Proceeds that are required to be applied to
prepay the Loans pursuant to the provisions of subsection 6.4C, (1)
such
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Borrower shall prepay its Loans in an aggregate amount equal to 100% of
such Net Insurance/Condemnation Proceeds, and (2) to the extent that
any such Net Insurance/Condemnation Proceeds remain after the
applications required pursuant to the foregoing clause (1), such
Borrower shall cause the excess of such Net Insurance/Condemnation
Proceeds to be applied to prepay the remaining outstanding Loans of all
other Borrowers on a pro rata basis (in accordance with the respective
outstanding amount of DIP/Bridge Loans).
(c) PREPAYMENTS DUE TO REVERSION OF SURPLUS
ASSETS OF PENSION PLANS. On the date of return to any Borrower or any
of its Subsidiaries of any surplus assets of any pension plan of such
Borrower or any of its Subsidiaries, (1) such Borrower shall prepay its
Loans in an aggregate amount (such amount being the "NET REVERSION
AMOUNT") equal to 100% of such returned surplus assets, net of
transaction costs and expenses incurred in obtaining such return,
including incremental taxes payable as a result thereof, and (2) to the
extent that any such Net Reversion Amount remains after the
applications required pursuant to the foregoing clause (1), such
Borrower shall cause the excess of such Net Reversion Amount to be
applied to prepay the remaining outstanding Loans of all other
Borrowers on a pro rata basis (in accordance with the respective
outstanding amount of DIP/Bridge Loans).
(d) PREPAYMENTS FROM TAX REFUND PROCEEDS. No
later than the first Business Day following the date of receipt by
Agent or by any Borrower or any of its Subsidiaries of any Tax Refund
Proceeds, (1) such Borrower shall prepay its Loans in an aggregate
amount equal to 100% of such Tax Refund Proceeds, and (2) to the extent
that any such Tax Refund Proceeds remain after the applications
required pursuant to the foregoing clause (1), such Borrower shall
cause the excess of such Tax Refund Proceeds to be applied to prepay
the remaining outstanding Loans of all other Borrowers on a pro rata
basis (in accordance with the respective outstanding amount of
DIP/Bridge Loans).
(e) PREPAYMENTS FROM NET SETTLEMENT PROCEEDS. No
later than the first Business Day following the date of receipt by
Agent or by any Borrower or any of its Subsidiaries of any Net
Settlement Proceeds, (1) such Borrower shall prepay its Loans in an
aggregate amount equal to 100% of such Net Settlement Proceeds, and (2)
to the extent that any such Net Settlement Proceeds remain after the
applications required pursuant to the foregoing clause (1), such
Borrower shall cause the excess of such Net Settlement Proceeds to be
applied to prepay the remaining outstanding Loans of all other
Borrowers on a pro rata basis (in accordance with the respective
outstanding amount of DIP/Bridge Loans).
(f) PREPAYMENTS FROM DIVIDEND PROCEEDS. No later
than the first Business Day following the date of receipt by Agent or
by any Borrower or any of its Subsidiaries of any Dividend Proceeds,
(1) such Borrower shall prepay its Loans in an aggregate amount equal
to 100% of such Dividend Proceeds, and (2) to the extent that any
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such Dividend Proceeds remain after the applications required pursuant
to the foregoing clause (1), such Borrower shall cause the excess of
such Dividend Proceeds to be applied to prepay the remaining
outstanding Loans of all other Borrowers on a pro rata basis (in
accordance with the respective outstanding amount of DIP/Bridge Loans).
(g) CALCULATIONS OF NET PROCEEDS AMOUNTS;
ADDITIONAL PREPAYMENTS BASED ON SUBSEQUENT CALCULATIONS. Concurrently
with any prepayment of the Loans and/or reduction of the DIP/Bridge
Loan Commitments pursuant to subsections 2.4A(iii)(a)-(f), Borrower
shall deliver to Agent an Officers' Certificate demonstrating the
calculation of the amount (the "NET PROCEEDS AMOUNT") of the applicable
Net Asset Sale Proceeds, Net Insurance/Condemnation Proceeds, Tax
Refund Proceeds, Net Settlement Proceeds or Dividend Proceeds or the
applicable Net Pension Proceeds (as such term is defined in subsections
2.4A(iii)(c)), as the case may be, that gave rise to such prepayment.
In the event that Borrower shall subsequently determine that the actual
Net Proceeds Amount was greater than the amount set forth in such
Officers' Certificate, Borrower shall promptly make an additional
prepayment of the Loans in an amount equal to the amount of such
excess, and Borrower shall concurrently therewith deliver to Agent an
Officers' Certificate demonstrating the derivation of the additional
Net Proceeds Amount resulting in such excess.
(h) PREPAYMENTS DUE TO RESTRICTIONS OF
DIP/BRIDGE LOAN COMMITMENTS OR CURRENCY FLUCTUATIONS. If (I) on any
Computation Date Agent shall have determined that the Total Utilization
of Commitments exceeds the Maximum DIP/Bridge Loan Commitments (whether
for a particular Borrower or all Borrowers) because of a change in
applicable rates of exchange between Dollars and Offshore Currencies,
(II) at any time the Total Utilization of Commitments for all Borrowers
exceeds the Maximum DIP/Bridge Loan Commitments for all Borrowers then
in effect, (III) the Total Utilization of Commitments for any Borrower
exceeds the Maximum DIP/Bridge Loan Commitments for such Borrower then
in effect, (IV) the Total Utilization of Commitments for all Borrowers
exceeds the Borrowing Base then in effect, or (V) the Total Utilization
of Commitments for all Borrowers exceeds the amount permitted to be
outstanding hereunder pursuant to the Interim Borrowing Order or Final
Borrowing Order, as applicable, then Agent shall give notice to the
applicable Borrower(s) that a prepayment is required under this
subsection 2.4A(iii)(g), and (1) in the case of Company, Company shall
promptly (x) prepay FIRST its DIP Swing Line Loans and second its
DIP/Bridge Loans and/or (y) cash collateralize its outstanding Letters
of Credit, and (2) in the case of a Borrower other than Company, such
Borrower shall promptly (x) prepay its DIP/Bridge Loans and/or (y) cash
collateralize its outstanding Letters of Credit, in each case to the
extent necessary so that the Total Utilization of Commitments shall not
exceed the Maximum DIP/Bridge Loan Commitments (whether for such
Borrower or all Borrowers) then in effect or the Borrowing Base for all
Borrowers then in effect, as the case may be.
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(iv) APPLICATION OF PREPAYMENTS.
(a) APPLICATION OF VOLUNTARY PREPAYMENTS BY TYPE
OF LOANS. Any voluntary prepayments pursuant to subsection 2.4A(i)
shall be applied (x) in the case of Company FIRST to repay Company's
outstanding DIP Swing Line Loans to the full extent thereof, and SECOND
to repay Company's outstanding DIP/Bridge Loans to the full extent
thereof, or (y) in case of any Borrower other than Company to repay
such Borrower's outstanding DIP/Bridge Loans to the full extent
thereof.
(b) APPLICATION OF MANDATORY PREPAYMENTS BY TYPE
OF LOANS. Any amount (the "APPLIED AMOUNT") required to be applied as a
mandatory prepayment of the Loans pursuant to subsections
2.4A(iii)(a)-(f) shall be applied, (x) in the case of Company, FIRST to
prepay the DIP Swing Line Loans to the full extent thereof, and SECOND,
to the extent of any remaining portion of the Applied Amount, to prepay
the DIP Loans to the full extent, and THIRD, to the extent of any
remaining portion of the Applied Amount, to prepay on a pro rata basis
the UK Bridge Loans, the French Bridge Loans and the Japanese Bridge
Loans to the full extent thereof, and (y) in the case of any Borrower
other than Company, FIRST to prepay the DIP/Bridge Loans of that
Borrower to the full extent thereof and SECOND, to the extent of any
remaining portion of the Applied Amount, to prepay on a pro rata basis
the DIP/Bridge Loans of each of the other Borrowers to the full extent
thereof.
(c) APPLICATION OF PREPAYMENTS OF DIP/BRIDGE
LOANS TO BASE RATE LOANS AND OFFSHORE RATE LOANS. Any prepayment of the
DIP/Bridge Loans shall be applied FIRST to Base Rate Loans to the full
extent thereof before application to Offshore Rate Loans, in each case
in a manner which minimizes the amount of any payments required to be
made by Borrowers pursuant to subsection 2.6D.
B. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) MANNER AND TIME OF PAYMENT. Borrowers shall make all
payments in respect of any Loan denominated in an Applicable Currency in the
same Applicable Currency. All payments by Borrower of (x) principal and interest
in respect of Loans hereunder and under any Notes shall be made in the same
Applicable Currency as incurred, and (y) except as may be otherwise provided
elsewhere in this Agreement, all fees and all other Obligations hereunder and
under any Notes shall be made in Dollars (amounts denominated in a currency
other than Dollars shall be converted into Dollars by reference to the
applicable Exchange Rate), in each case in Same Day Funds and without defense,
setoff, counterclaim or other deduction, free of any restriction or condition,
and delivered to Agent not later than 12:00 Noon (Local Time) on the date due to
the applicable Funding and Payment Office. Funds received by Agent after the
times specified above on the due dates specified above shall be deemed to have
been paid by Borrowers on the next succeeding Business Day. Each Borrower hereby
authorizes Agent to charge its accounts with Agent in order to cause timely
payment to be made to Agent of all
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principal, interest, fees and expenses due hereunder (subject to sufficient
funds being available in its accounts for that purpose).
(ii) APPLICATION OF PAYMENTS TO PRINCIPAL AND INTEREST.
Except as provided in subsection 2.2C, all payments in respect of the principal
amount of any Loan shall include payment of accrued interest on the principal
amount being repaid or prepaid, and all such payments (and, in any event, any
payments in respect of any Loan on a date when interest is due and payable with
respect to such Loan) shall be applied to the payment of interest before
application to principal.
(iii) APPORTIONMENT OF PAYMENTS. Aggregate principal and
interest payments in respect of DIP/Bridge Loans shall be apportioned among all
outstanding Loans to which such payments relate, in each case proportionately to
such Lenders' respective Pro Rata Shares. Agent shall promptly distribute to the
applicable Lender, at its primary address set forth below its name on the
appropriate signature page hereof or at such other address as such Lender may
request, its Pro Rata Share of all such payments received by Agent and the
commitment fees of such Lender when received by Agent pursuant to subsection
2.3. Notwithstanding the foregoing provisions of this subsection 2.4B(iii), if,
pursuant to the provisions of subsection 2.6C, any Notice of
Conversion/Continuation is withdrawn as to any Affected Lender or if any
Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any
Offshore Rate Loans, Agent shall give effect thereto in apportioning payments
received thereafter.
(iv) PAYMENTS ON BUSINESS DAYS. Whenever any payment to be
made hereunder shall be stated to be due on a day that is not a Business Day,
such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the payment of
interest hereunder or of the commitment fees hereunder, as the case may be.
(v) NOTATION OF PAYMENT. Each Lender agrees that before
disposing of any DIP/Bridge Note held by it, or any part thereof (other than by
granting participations therein), that Lender will make a notation thereon of
all DIP/Bridge Loans evidenced by that DIP/Bridge Note and all principal
payments previously made thereon and of the date to which interest thereon has
been paid; PROVIDED that the failure to make (or any error in the making of) a
notation of any DIP/Bridge Loan made under such DIP/Bridge Note shall not limit
or otherwise affect the obligations of any Borrower hereunder or under such
DIP/Bridge Note with respect to any DIP/Bridge Loan or any payments of principal
or interest on such DIP/Bridge Note.
2.5 USE OF PROCEEDS.
A. DIP/BRIDGE LOANS; DIP SWING LINE LOANS. The proceeds
of the DIP/Bridge Loans and DIP Swing Line Loans shall be used for working
capital and general corporate purposes relating to Borrowers' post-petition
operations, including the making of intercompany loans by Company to ▇▇▇▇ UK,
▇▇▇▇ France and ▇▇▇▇ Japan for their own working capital and general corporate
purposes in accordance with subsection 7.1(vi); PROVIDED
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that no proceeds or any other portion of the Loans shall be used, directly or
indirectly, to (i) finance or make any payments prohibited under subsection 7.5;
(ii) finance in any way any adversary action, suit, arbitration, proceeding or
other litigation of any type relating to or in connection with the Existing
Credit Agreement or any of the loan documents or instruments entered into in
connection therewith, including, without limitation, any challenges to the
Prepetition Lenders' Claims or the validity, perfection, priority or
enforceability of any of the Liens securing such claims or any payment made
thereunder; PROVIDED that, during the period prior to the date that is 60 days
after the Petition Date, proceeds of the Loans may be used by an official
committee of creditors, if any, appointed in the Chapter 11 Cases to analyze the
Prepetition Lenders' Claims and any Liens securing such claims (subject to the
requirements for payment of fees in the Bankruptcy Code and the rights of DIP
Lenders to object thereto); or (iii) make any payment in settlement of any
claim, action or proceeding, before any court, arbitrator or other governmental
body.
B. MARGIN REGULATIONS. No portion of the proceeds of any
borrowing under this Agreement shall be used by any Borrower or any of its
Subsidiaries in any manner that might cause the borrowing or the application of
such proceeds to violate Regulation U, Regulation T or Regulation X of the Board
of Governors of the Federal Reserve System or any other regulation of such Board
or to violate the Exchange Act, or to violate any other similar or comparable
laws of the UK, France or Japan in each case as in effect on the date or dates
of such borrowing and such use of proceeds.
2.6 SPECIAL PROVISIONS GOVERNING OFFSHORE RATE LOANS.
Notwithstanding any other provision of this Agreement to the
contrary, the following provisions shall govern with respect to Offshore Rate
Loans as to the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as
practicable after 11:00 A.M. (London time) on each Interest Rate Determination
Date, Agent shall determine (which determination shall, absent manifest error,
be final, conclusive and binding upon all parties) the interest rate that shall
apply to the Offshore Rate Loans for which an interest rate is then being
determined for the applicable Interest Period and shall promptly give notice
thereof (in writing or by telephone confirmed in writing) to the Borrower and
each applicable Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In
the event that Agent shall have determined (which determination shall be final
and conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date with respect to any Offshore Rate Loans that by reason of
circumstances affecting the interbank Eurodollar market adequate and fair means
do not exist for ascertaining the interest rate applicable to such Loans on the
basis provided for in the definition of Adjusted Offshore Rate, Agent shall on
such date give notice (by telefacsimile or by telephone confirmed in writing) to
the Borrower and each applicable Lender, of such determination, whereupon (i) no
Loans may be made as, or converted to, Offshore Rate Loans until such time as
Agent notifies such Borrower and such Lenders that the circumstances
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giving rise to such notice no longer exist and (ii) any Notice of Borrowing or
Notice of Conversion/Continuation given by a Borrower with respect to the Loans
in respect of which such determination was made shall be deemed to be rescinded
by such Borrower.
C. ILLEGALITY OR IMPRACTICABILITY OF OFFSHORE RATE
LOANS. In the event that on any date any Lender shall have determined (which
determination shall be final and conclusive and binding upon all parties hereto
but shall be made only after consultation with the Borrower and Agent) that the
making, maintaining or continuation of its Offshore Rate Loans (i) has become
unlawful as a result of compliance by such Lender in good faith with any law,
treaty, governmental rule, regulation, guideline or order (or would conflict
with any such treaty, governmental rule, regulation, guideline or order not
having the force of law even though the failure to comply therewith would not be
unlawful) or (ii) has become impracticable, or would cause such Lender material
hardship, as a result of contingencies occurring after the date of this
Agreement which materially and adversely affect the interbank Eurodollar market
or the position of such Lender in that market, then, and in any such event, such
Lender shall be an "AFFECTED LENDER" and it shall on that day give notice (by
telefacsimile or by telephone confirmed in writing) to the Borrower and Agent of
such determination (which notice Agent shall promptly transmit to each other
applicable Lender). Thereafter (a) the obligation of the Affected Lender to make
Loans as, or to convert Loans to, Offshore Rate Loans shall be suspended until
such notice shall be withdrawn by the Affected Lender, (b) to the extent such
determination by the Affected Lender relates to an Offshore Rate Loan then being
requested by a Borrower pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, the Affected Lender shall make such Loan as (or convert
such Loan to, as the case may be) a Base Rate Loan, (c) the Affected Lender's
obligation to maintain its outstanding Offshore Rate Loans (the "AFFECTED
LOANS"), shall be terminated at the earlier to occur of the expiration of the
Interest Period then in effect with respect to the Affected Loans or when
required by law, and (d) the Affected Loans shall automatically convert into
applicable Base Rate Loans on the date of such termination. Notwithstanding the
foregoing, to the extent a determination by an Affected Lender as described
above relates to an Offshore Rate Loan then being requested by a Borrower
pursuant to a Notice of Borrowing or a Notice of Conversion/Continuation, such
Borrower shall have the option, subject to the provisions of subsection 2.6D, to
rescind such Notice of Borrowing or Notice of Conversion/Continuation as to all
Lenders by giving notice (by telefacsimile or by telephone confirmed in writing)
to Agent of such rescission on the date on which the Affected Lender gives
notice of its determination as described above (which notice of rescission Agent
shall promptly transmit to each other applicable Lender). Except as provided in
the immediately preceding sentence, nothing in this subsection 2.6C shall affect
the obligation of any Lender other than an Affected Lender to make or maintain
Loans as, or to convert Loans to, Offshore Rate Loans in accordance with the
terms of this Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF
INTEREST PERIODS. A Borrower shall compensate each Lender, upon written request
by that Lender (which request shall set forth in reasonable detail the basis for
requesting such amounts), for all reasonable losses, expenses and liabilities
(including, without limitation, any interest paid by that
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Lender to lenders of funds borrowed by it to make or carry its Offshore Rate
Loans, and any loss, expense or liability sustained by that Lender in connection
with the liquidation or re-employment of such funds) which that Lender may
sustain: (i) if for any reason (other than a default by that Lender) a borrowing
of any Offshore Rate Loan does not occur on a date specified therefor in a
Notice of Borrowing or a telephonic request for borrowing, or a conversion to or
continuation of any Offshore Rate Loan does not occur on a date specified
therefor in a Notice of Conversion/Continuation or a telephonic request for
conversion or continuation, (ii) if any prepayment or other principal payment or
any conversion of any of its Offshore Rate Loans occurs on a date prior to the
last day of an Interest Period applicable to that Loan, (iii) if any prepayment
of any of its Offshore Rate Loans is not made on any date specified in a notice
of prepayment given by the Borrower, or (iv) as a consequence of any other
default by the Borrower in the repayment of its Offshore Rate Loans when
required by the terms of this Agreement.
E. BOOKING OF OFFSHORE RATE LOANS. Any Lender may make,
carry or transfer Offshore Rate Loans at, to, or for the account of any of its
branch offices or the office of an Affiliate of that Lender.
F. ASSUMPTIONS CONCERNING FUNDING OF OFFSHORE RATE
LOANS. Calculation of all amounts payable to a Lender under this subsection 2.6
and under subsection 2.7A (as fully set forth in Annex A) shall be made as
though that Lender had actually funded each of its relevant Offshore Rate Loans
through the purchase of a Eurodollar deposit bearing interest at the rate
obtained pursuant to clause (i) of the definition of Adjusted Offshore Rate in
an amount equal to the amount of such Offshore Rate Loan and having a maturity
comparable to the relevant Interest Period and through the transfer of such
Eurodollar deposit from an offshore office of that Lender to a domestic office
of that Lender; PROVIDED, HOWEVER, that each Lender may fund each of its
Offshore Rate Loans in any manner it sees fit and the foregoing assumptions
shall be utilized only for the purposes of calculating amounts payable under
this subsection 2.6 and under subsection 2.7A.
G. OFFSHORE RATE LOANS AFTER DEFAULT. After the
occurrence of and during the continuation of a Potential Event of Default or an
Event of Default, (i) Borrowers may elect to have an Offshore Rate Loan
denominated in an Offshore Currency made or maintained as an Offshore Rate Loan,
but may not elect to have a Base Rate Loan denominated in Dollars converted to
an Offshore Rate Loan, after the expiration of any Interest Period then in
effect for that Loan and (ii) subject to the provisions of subsection 2.6D, any
Notice of Borrowing or Notice of Conversion/Continuation given by any Borrower
with respect to a requested borrowing or conversion/continuation that has not
yet occurred shall be deemed to be rescinded by such Borrower.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
Provisions regarding increased costs, taxes, and capital
adequacy are set forth in ANNEX A attached hereto and such ANNEX A is
incorporated herein by this reference.
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2.8 OBLIGATIONS OF LENDERS AND ISSUING LENDERS TO MITIGATE; REPLACEMENT OF
LENDERS.
Provisions regarding obligations of Lenders and Issuing
Lenders to mitigate are set forth in ANNEX B attached hereto and such ANNEX B is
incorporated herein by this reference.
2.9 INDEMNIFYING LENDERS.
Provisions regarding Indemnifying Lenders are set forth in
ANNEX C attached hereto and such ANNEX C is incorporated herein by this
reference.
2.10 SUPERPRIORITY NATURE OF OBLIGATIONS.
All DIP Obligations of Company (x) shall be secured by
first priority Liens in and security interests in the assets of Company
pursuant to this Agreement and the DIP Collateral Documents and the Borrowing
Orders, and (y) shall constitute allowed administrative expense claims in the
Chapter 11 Cases with priority under Section 364(c)(1) of the Bankruptcy Code
over any and all other administrative expenses of the kind specified or
ordered pursuant to any provision of the Bankruptcy Code, including, but not
limited to, Sections 105, 326, 328, 330, 331, 503(b), 506(c), 507(a) and
507(b) of the Bankruptcy Code; PROVIDED that, the priority status of the DIP
Obligations and the Liens securing the same shall be subject to: (i) after
and from the date of the occurrence of an Event of Default, professional fees
and expenses allowed in the Chapter 11 Cases in an aggregate amount
(determined without regard to fees and expenses awarded or otherwise paid on
an interim basis) not to exceed $1,500,000, and (ii) fees payable to the
clerk of the Court or the United States Trustee pursuant to 28 U.S.C. Section
1930(a)(6).
SECTION 3. LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF PARTICIPATIONS
THEREIN.
A. LETTERS OF CREDIT. In addition to Borrowers
requesting that Lenders make DIP/Bridge Loans pursuant to subsection 2.1A(i)(a)
and that DIP Swing Line Lender makes DIP Swing Line Loans pursuant to subsection
2.1A(ii), Borrowers may request, in accordance with the provisions of this
subsection 3.1, from time to time during the period from the Closing Date to but
excluding the date which is (x) the fifth Business Day prior to the Commitment
Termination Date (in the case of Standby Letters of Credit) and (y) the
thirtieth Business Day prior to the Commitment Termination Date (in the case of
Commercial Letters of Credit), that one or more Lenders issue Letters of Credit
payable on a sight basis for the account of such Borrower for the purposes
specified in the definitions of Commercial Letters of Credit and Standby Letters
of Credit. Subject to the terms and conditions of this Agreement and in reliance
upon the representations and warranties of Borrowers set forth herein, any one
or more Lenders may, but (except as provided in subsection 3.1B(ii)) shall not
be obligated to, issue such Letters of Credit in accordance with the provisions
of this subsection 3.1; PROVIDED that Borrowers shall not request that any
Lenders issue (and no Lender shall issue):
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(i) any Letter of Credit if, after giving effect to such
issuance, (1) the Total Utilization of Commitments for all Borrowers
would exceed (x) the Maximum DIP/Bridge Loan Commitments for all
Borrowers then in effect or (y) the Borrowing Base for all Borrowers
then in effect, or (2) the Total Utilization of Commitments for any
Borrower would exceed the Maximum DIP/Bridge Loan Commitments for such
Borrower then in effect;
(ii) any Letter of Credit if, after giving effect to such
issuance, (1) the Letter of Credit Usage of any Borrower would exceed
the Letters of Credit Suballocation for such Borrower then in effect,
and (2) the Letter of Credit Usage for all Borrowers would exceed the
lesser of (x) $20,000,000 and (y) the Maximum DIP/Bridge Loan
Commitment then effect;
(iii) any Letter of Credit to Company if, after giving
effect to such issuance, the Letter of Credit Usage of Company would
exceed (x) $20,000,000 LESS (y) the Letter of Credit Usage of ▇▇▇▇ UK,
▇▇▇▇ France and ▇▇▇▇ Japan;
(iv) any Standby Letter of Credit having an expiration
date later than the earlier of (a) the date which is five Business Days
prior to the Commitment Termination Date and (b) the date which is one
year from the date of issuance of such Standby Letter of Credit;
PROVIDED that the immediately preceding clause (b) shall not prevent
any Issuing Lender from agreeing that a Standby Letter of Credit will
automatically be extended for one or more successive periods not to
exceed one year each unless such Issuing Lender elects not to extend
for any such additional period; and PROVIDED FURTHER that such Issuing
Lender shall elect not to extend such Standby Letter of Credit if it
has knowledge that an Event of Default has occurred and is continuing
(and has not been waived in accordance with subsection 10.6) at the
time such Issuing Lender must elect whether or not to allow such
extension; or
(v) any Commercial Letter of Credit having an expiration
date (a) later than the earlier of (X) the date which is thirty
Business Days prior to the Revolving Commitment Termination Date and
(Y) the date which is 180 days from the date of issuance of such
Commercial Letter of Credit or (b) that is otherwise unacceptable to
the applicable Issuing Lender in its reasonable discretion.
B. MECHANICS OF ISSUANCE.
(i) REQUEST FOR ISSUANCE. Whenever any Borrower desires
the issuance of a Letter of Credit, it shall deliver to Agent a Request
for Issuance of Letter of Credit substantially in the form of EXHIBIT
III annexed hereto no later than 12:00 Noon (New York time) at least
two (2) Business Days, or such shorter period as may be agreed to by
the Issuing Lender in any particular instance, in advance of the
proposed date of issuance. The Request for Issuance of Letter of Credit
shall specify (a) the proposed date of issuance (which shall be a
Business Day), (b) the face amount of the Letter of Credit, (c)
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the currency the Letter of Credit is requested to be denominated in,
(d) the expiration date of the Letter of Credit, (e) the name and
address of the beneficiary, and (f) either the verbatim text of the
proposed Letter of Credit or the proposed terms and conditions thereof,
including a precise description of any documents to be presented by the
beneficiary which, if presented by the beneficiary prior to the
expiration date of the Letter of Credit, would require the Issuing
Lender to make payment under the Letter of Credit; PROVIDED that the
Issuing Lender, in its reasonable discretion, may require changes in
the text of the proposed Letter of Credit or any such documents.
Such Borrower shall notify the applicable Issuing
Lender (and Agent, if Agent is not such Issuing Lender) prior to the
issuance of any Letter of Credit in the event that any of the matters
to which it is required to certify in the applicable Request for
Issuance of Letter of Credit is no longer true and correct as of the
proposed date of issuance of such Letter of Credit, and upon the
issuance of any Letter of Credit such Borrower shall be deemed to have
re-certified, as of the date of such issuance, as to the matters to
which it is required to certify in the applicable Request for Issuance
of Letter of Credit.
(ii) DETERMINATION OF ISSUING LENDER. Upon receipt by
Agent of a Request for Issuance of Letter of Credit pursuant to
subsection 3.1B(i) requesting the issuance of a Letter of Credit, in
the event Agent elects to issue such Letter of Credit, Agent shall
promptly so notify Borrower, and Agent shall be the Issuing Lender with
respect thereto. In the event that Agent, in its sole discretion,
elects not to issue such Letter of Credit, Agent shall promptly notify
Borrower, whereupon Borrower may request any other Lender to issue such
Letter of Credit by delivering to such Lender a copy of the applicable
Request for Issuance of Letter of Credit. Any Lender so requested to
issue such Letter of Credit shall promptly notify Borrower and Agent
whether or not, in its sole discretion, it has elected to issue such
Letter of Credit, and any such Lender which so elects to issue such
Letter of Credit shall be the Issuing Lender with respect thereto. In
the event that all other Lenders shall have declined to issue such
Letter of Credit, notwithstanding the prior election of Agent not to
issue such Letter of Credit, Agent shall be obligated to issue such
Letter of Credit and shall be the Issuing Lender with respect thereto,
notwithstanding the fact that the Letter of Credit Usage with respect
to such Letter of Credit and with respect to all other Letters of
Credit issued by the Agent, when aggregated with Agent's outstanding
DIP/Bridge Loans and DIP Swing Line Loans, may exceed Agent's
DIP/Bridge Loan Commitments for such Borrower then in effect.
(iii) ISSUANCE OF LETTER OF CREDIT. Upon satisfaction or
waiver (in accordance with subsection 10.6) of the conditions set forth
in subsection 4.3, the Issuing Lender shall issue the requested Letter
of Credit in accordance with the Issuing Lender's standard operating
procedures.
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(iv) NOTIFICATION TO LENDERS. Upon the issuance of any
Letter of Credit the applicable Issuing Lender shall promptly notify
Agent of such issuance which notice shall be accompanied by a copy of
such Letter of Credit. Promptly after receipt of such notice (or, if
Agent is the Issuing Lender, together with such notice), Agent shall
notify each Lender, of the amount of such Lender's respective
participation in such Letter of Credit, determined in accordance with
subsection 3.1C.
(v) REPORTS TO LENDERS. In the event that the Issuing
Lender is other than Agent, such Issuing Lender will send by facsimile
transmission to Agent, promptly on the first Business Day of each week,
its daily maximum amount available to be drawn under the Letters of
Credit issued by such Issuing Lender for the previous week. Agent shall
deliver to each Lender upon each calendar month end, and upon each
Letter of Credit fee payment, a report setting forth the daily maximum
amount available to be drawn for all Issuing Lenders during such
period.
C. REVOLVING LENDERS' PURCHASE OF PARTICIPATIONS IN
LETTERS OF CREDIT. Immediately upon the issuance of each Letter of Credit for
the benefit of Company, ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan, as the case may be,
each applicable Lender shall be deemed to, and hereby agrees to, have
irrevocably purchased from the Issuing Lender a participation in such Letter of
Credit and drawings thereunder in an amount equal to such Lender's Pro Rata
Share of the DIP/Bridge Loan Commitment of the maximum amount which is or at any
time may become available to be drawn thereunder.
3.2 LETTER OF CREDIT FEES.
Each Borrower agrees to pay the following amounts with respect
to Letters of Credit issued hereunder for such Borrower's account:
(i) with respect to each Standby Letter of Credit, (a) a
fronting fee, payable in Dollars directly to the applicable Issuing
Lender for its own account, equal to the greater of (X) $500 and (Y)
0.25% per annum of the Dollar Equivalent of the daily maximum amount
available to be drawn under such Standby Letter of Credit, and (b) a
letter of credit fee, payable in Dollars to Agent for the account of
Lenders, equal to (x) the Dollar Equivalent of the daily maximum amount
available to be drawn under such Standby Letter of Credit MULTIPLIED by
(y) 3.25%, in each case payable in arrears on and to (but excluding)
the date that is three (3) Business Days after the last Business Day of
each month of each year and computed on the basis of a 360-day year for
the actual number of days elapsed;
(ii) with respect to each Commercial Letter of Credit, (a)
a fronting fee, payable in Dollars directly to the applicable Issuing
Lender for its own account, equal to the greater of (X) $500 and (Y)
0.25% per annum of the Dollar Equivalent of the daily maximum amount
available to be drawn under such Commercial Letter of Credit, and (b) a
letter of credit fee, payable in Dollars to Agent for the account of
Lenders, equal to
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(x) the Dollar Equivalent of the daily maximum amount available to be
drawn under such Commercial Letter of Credit MULTIPLIED BY (y) 3.25%,
in each case payable in arrears on and to (but excluding) the date that
is three (3) Business Days after the last Business Day of each month of
each year and computed on the basis of a 360-day year for the actual
number of days elapsed; and
(iii) with respect to the issuance, amendment or transfer
of each Letter of Credit and each payment of a drawing made thereunder
(without duplication of the fees payable under clauses (i) and (ii)
above), documentary and processing charges payable directly to the
applicable Issuing Lender for its own account in accordance with such
Issuing Lender's standard schedule for such charges in effect at the
time of such issuance, amendment, transfer or payment, as the case may
be.
For purposes of calculating any fees payable under clauses (i)
or (ii) of this subsection 3.2, (1) the Dollar Equivalent of the daily amount
available to be drawn under any Letter of Credit shall be determined as of the
close of business on any date of determination, (2) any amount which is
denominated in a currency other than Dollars shall be determined based on the
applicable Exchange Rate for such currency as of each first Business Day after
the last Business Day of each month of each year, and (3) Agent shall provide to
Borrowers on each first Business Day after the last Business Day of each month
of each year a report specifying the Letter of Credit fees payable by each
Borrower and including the calculations of such fees and the Exchange Rate used,
and Borrowers shall pay such fees no later than two (2) Business Days after
delivery of such report. Promptly upon receipt by Agent of any amount described
in clause (i)(b) and (ii)(b) of this subsection 3.2, Agent shall distribute to
each other applicable Lender its Pro Rata Share of such amount.
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO
DRAWINGS. In determining whether to honor any drawing under any Letter of Credit
by the beneficiary thereof, the Issuing Lender shall be responsible only to
exercise reasonable care to determine that the documents required to be
delivered under such Letter of Credit have been delivered and that they
substantially comply on their face with the requirements of such Letter of
Credit.
B. REIMBURSEMENT BY BORROWERS OF AMOUNTS DRAWN UNDER
LETTERS OF CREDIT. In the event an Issuing Lender has determined to honor a
drawing under a Letter of Credit issued by it, (i) such Issuing Lender shall
immediately notify the Borrower and Agent and (ii) Borrower shall reimburse such
Issuing Lender on or before the Business Day immediately following the date on
which such drawing is honored (the "REIMBURSEMENT DATE") in an amount in same
day funds in Dollars (which amount, in the case of a drawing under a Letter of
Credit which is denominated in a currency other than Dollars, shall be
calculated by reference to the applicable Exchange Rate) equal to the amount of
such drawing; PROVIDED that, anything contained in this Agreement to the
contrary notwithstanding, (i) unless the Borrower shall have
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notified Agent and such Issuing Lender prior to 12:00 Noon (New York time) on
the date such drawing is honored that such Borrower intends to reimburse such
Issuing Lender for the amount of such drawing with funds other than the proceeds
of DIP/Bridge Loans, such Borrower shall be deemed to have given a timely Notice
of Borrowing to Agent requesting Lenders to make DIP/Bridge Loans that are (x)
Base Rate Loans (in the case of Company) or (y) Offshore Rate Loans with an
Interest Period of one week (in the case of ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan)
on the Reimbursement Date in an amount in Dollars (which amount, in the case of
a drawing under a Letter of Credit which is denominated in a currency other than
Dollars, shall be calculated by reference to the applicable Exchange Rate) equal
to the amount of such drawing and (ii) subject to satisfaction or waiver of the
conditions specified in subsection 4.2C, Lenders shall, on the Reimbursement
Date, make DIP/Bridge Loans denominated in Dollars that are (x) Base Rate Loans
(in the case of Company) or (y) Offshore Rate Loans with an Interest Period of
one week (in the case of ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan) in the amount of
such drawing, the proceeds of which shall be applied directly by Agent to
reimburse such Issuing Lender for the amount of such drawing; and PROVIDED
FURTHER that if for any reason proceeds of DIP/Bridge Loans are not received by
such Issuing Lender on the Reimbursement Date in an amount equal to the amount
of such drawing, such Borrower shall reimburse such Issuing Lender, on demand,
in an amount in same day funds equal to the excess of the amount of such drawing
over the aggregate amount of such DIP/Bridge Loans, if any, which are so
received. Nothing in this subsection 3.3B shall be deemed to relieve any Lender
from its obligation to make DIP/Bridge Loans on the terms and conditions set
forth in this Agreement, and such Borrower shall retain any and all rights it
may have against any Lender resulting from the failure of such Lender to make
such DIP/Bridge Loans under this subsection 3.3B.
C. PAYMENT BY LENDERS OF UNREIMBURSED DRAWINGS UNDER LETTERS OF
CREDIT.
(i) PAYMENT BY LENDERS. In the event that the Borrower
shall fail for any reason to reimburse any Issuing Lender as provided
in subsection 3.3B in an amount (calculated in the case of a drawing
under a Letter of Credit denominated in an Offshore Currency, by
reference to the applicable Exchange Rate) equal to the amount of any
drawing honored by such Issuing Lender under a Letter of Credit issued
by it, such Issuing Lender shall promptly notify each other Lender
having a DIP/Bridge Loan Commitment of such Type, of the unreimbursed
amount of such drawing and having a DIP/Bridge Loan Commitment of such
Type, of such other Lender's respective participation therein based on
such Lender's Pro Rata Share. Each such Lender shall make available to
such Issuing Lender an amount equal to its respective participation in
same day funds in Dollars, at the office of such Issuing Lender
specified in such notice, not later than 12:00 Noon (New York time) on
the first business day (under the laws of the jurisdiction in which
such office of such Issuing Lender is located) after the date notified
by such Issuing Lender. In the event that any such Lender fails to make
available to such Issuing Lender on such business day the amount of
such Lender's participation in such Letter of Credit or the amount of
the unreimbursed drawing regarding such Letter of Credit as provided in
this subsection 3.3C, such Issuing Lender shall be entitled to
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recover such amount on demand from such Lender together with interest
thereon at the rate customarily used by such Issuing Lender for the
correction of errors among banks for three Business Days and thereafter
at the Base Rate. Nothing in this subsection 3.3C shall be deemed to
prejudice the right of any such Lender to recover from any Issuing
Lender any amounts made available by such Lender to such Issuing Lender
pursuant to this subsection 3.3C in the event that it is determined by
the final judgment of a court of competent jurisdiction that the
payment with respect to a Letter of Credit by such Issuing Lender in
respect of which payment was made by such Lender constituted gross
negligence or willful misconduct on the part of such Issuing Lender.
(ii) DISTRIBUTION TO LENDERS OF REIMBURSEMENTS RECEIVED
FROM BORROWERS. In the event any Issuing Lender shall have been
reimbursed by other Lenders pursuant to subsection 3.3C(i) for all or
any portion of any drawing honored by such Issuing Lender under a
Letter of Credit issued by it, such Issuing Lender shall distribute to
each other Lender which has paid all amounts payable by it under
subsection 3.3C(i) with respect to such drawing such other Lender's Pro
Rata Share of all payments subsequently received by such Issuing Lender
from a Borrower in reimbursement of such drawing when such payments are
received. Any such distribution shall be made to a Lender at its
primary address set forth below its name on the appropriate signature
page hereof or at such other address as such Lender may request.
D. INTEREST ON AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
(i) PAYMENT OF INTEREST BY BORROWERS. Each Borrower
agrees to pay to Issuing Lender, with respect to drawings made under
any Letters of Credit issued by such Issuing Lender at such Borrower's
request, interest on the amount paid by such Issuing Lender in respect
of each such drawing from the date of such drawing to but excluding the
date such amount is reimbursed by the Borrower (including any such
reimbursement out of the proceeds of DIP/Bridge Loans pursuant to
subsection 3.3B) at a rate equal to (a) for the period from the date of
such drawing to but excluding the Reimbursement Date, the rate then in
effect under this Agreement with respect to DIP/Bridge Loans that are
Base Rate Loans and (b) thereafter, a rate which is 2.00% per annum in
excess of the rate of interest otherwise payable under this Agreement
with respect to DIP/Bridge Loans that are Base Rate Loans. Interest
payable pursuant to this subsection 3.3D(i) shall be computed on the
basis of a 360-day year for the actual number of days elapsed in the
period during which it accrues and shall be payable on demand or, if no
demand is made, on the date on which the related drawing under a Letter
of Credit is reimbursed in full.
(ii) DISTRIBUTION OF INTEREST PAYMENTS BY ISSUING LENDER.
Promptly upon receipt by any Issuing Lender of any payment of interest
pursuant to subsection 3.3D(i) with respect to a drawing under a Letter
of Credit issued by it, (a) such Issuing Lender shall distribute to
each other applicable Lender, out of the interest received by such
Issuing Lender in respect of the period from the date of such drawing
to but excluding the
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date on which such Issuing Lender is reimbursed for the amount of such
drawing (including any such reimbursement out of the proceeds of
DIP/Bridge Loans pursuant to subsection 3.3B), the amount that such
other Lender would have been entitled to receive in respect of the
letter of credit fee that would have been payable in respect of such
Letter of Credit for such period pursuant to subsection 3.2 if no
drawing had been made under such Letter of Credit, and (b) in the event
such Issuing Lender shall have been reimbursed by other Lenders
pursuant to subsection 3.3C(i) for all or any portion of such drawing,
such Issuing Lender shall distribute to each other Lender which has
paid all amounts payable by it under subsection 3.3C(i) with respect to
such drawing such other Lender's Pro Rata Share of any interest
received by such Issuing Lender in respect of that portion of such
drawing so reimbursed by such other Lender for the period from the date
on which such Issuing Lender was so reimbursed by such other Lender to
but excluding the date on which such portion of such drawing is
reimbursed by the Borrower. Any such distribution shall be made to a
Lender at its primary address set forth below its name on the
appropriate signature page hereof or at such other address as such
Lender may request.
3.4 OBLIGATIONS ABSOLUTE.
The obligation of a Borrower to reimburse an Issuing Lender
for drawings made under the Letters of Credit issued by it and to repay any
DIP/Bridge Loans made by Lenders pursuant to subsection 3.3B and the obligations
of Lenders under subsection 3.3C(i) shall be subject to subsection 2.10 and be
unconditional and irrevocable, and any such payments shall be made strictly in
accordance with the terms of this Agreement under all circumstances including,
without limitation, the following circumstances:
(i) any lack of validity or enforceability of any Letter
of Credit;
(ii) the existence of any claim, set-off, defense or other
right which any Borrower or any Lender may have at any time against a
beneficiary or any transferee of any Letter of Credit (or any Persons
for whom any such transferee may be acting), any Issuing Lender or
other Lender or any other Person or, in the case of a Lender, against
any Borrower, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction
(including any underlying transaction between Borrower or one of its
Subsidiaries and the beneficiary for which any Letter of Credit was
procured);
(iii) any draft or document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(iv) payment by the applicable Issuing Lender under any
Letter of Credit against presentation of a draft or document which does
not substantially comply with the terms of such Letter of Credit;
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(v) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of
Borrower or any of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan
Document by any party thereto;
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential
Event of Default shall have occurred and be continuing;
PROVIDED, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question
(as determined by a final judgment of a court of competent jurisdiction).
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDERS' DUTIES.
A. INDEMNIFICATION. In addition to amounts payable as
provided in subsection 3.6, each Borrower hereby agrees to protect, indemnify,
pay and save harmless each Issuing Lender from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses (including
reasonable fees, expenses and disbursements of counsel and reasonable allocated
costs of internal counsel) which such Issuing Lender may incur or be subject to
as a consequence, direct or indirect, of (i) the issuance of any Letter of
Credit by such Issuing Lender, other than as a result of (a) the gross
negligence or willful misconduct of such Issuing Lender as determined by a final
judgment of a court of competent jurisdiction or (b) subject to the following
clause (ii), the wrongful dishonor by such Issuing Lender of a proper demand for
payment made under any Letter of Credit issued by it or (ii) the failure of such
Issuing Lender to honor a drawing under any such Letter of Credit as a result of
any act or omission, whether rightful or wrongful, of any Governmental Authority
(all such acts or omissions herein called "GOVERNMENTAL ACTS").
B. NATURE OF ISSUING LENDERS' DUTIES. As between any
Borrower on the one hand and any Issuing Lender on the other hand, Borrower
assumes all risks of the acts and omissions of, or misuse of the Letters of
Credit issued by such Issuing Lender by, the respective beneficiaries of such
Letters of Credit. In furtherance and not in limitation of the foregoing, such
Issuing Lender shall not be responsible (absent a determination of a court of
competent jurisdiction of gross negligence or willful misconduct by Issuing
Lender) for: (i) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any document submitted by any party in connection with the application
for and issuance of any such Letter of Credit, even if it should in fact prove
to be in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any such Letter of Credit or the
rights or benefits thereunder or proceeds
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thereof, in whole or in part, which may prove to be invalid or ineffective for
any reason; (iii) failure of the beneficiary of any such Letter of Credit to
comply fully with any conditions required in order to draw upon such Letter of
Credit; (iv) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether
or not they be in cipher; (v) errors in interpretation of technical terms; (vi)
any loss or delay in the transmission or otherwise of any document required in
order to make a drawing under any such Letter of Credit or of the proceeds
thereof; (vii) the misapplication by the beneficiary of any such Letter of
Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any
consequences arising from causes beyond the control of such Issuing Lender,
including without limitation any Governmental Acts, and none of the above shall
affect or impair, or prevent the vesting of, any of such Issuing Lender's rights
or powers hereunder.
In furtherance and extension and not in limitation of the
specific provisions set forth in the first paragraph of this subsection 3.5B,
any action taken or omitted by any Issuing Lender under or in connection with
the Letters of Credit issued by it or any documents and certificates delivered
thereunder, if taken or omitted in good faith, shall not put such Issuing Lender
under any resulting liability to any Borrower.
Notwithstanding anything to the contrary contained in this
subsection 3.5, each Borrower shall retain any and all rights it may have
against any Issuing Lender for any liability arising solely out of the gross
negligence or willful misconduct of such Issuing Lender, as determined by a
final judgment of a court of competent jurisdiction or out of a wrongful
dishonor by Issuing Lender of a proper demand for payment made under any Letter
of Credit.
3.6 INCREASED COSTS AND TAXES RELATING TO LETTERS OF CREDIT.
In the event that any Issuing Lender or Lender shall determine
(which determination shall, absent manifest error, be final and conclusive and
binding upon all parties hereto) that any law, treaty or governmental rule,
regulation or order, or any change therein or in the interpretation,
administration or application thereof (including the introduction of any new
law, treaty or governmental rule, regulation or order), or any determination of
a court or governmental authority, in each case that becomes effective after the
date hereof, or compliance by any Issuing Lender or Lender with any guideline,
request or directive issued or made after the date hereof by any central bank or
other governmental or quasi-governmental authority (whether or not having the
force of law):
(i) subjects such Issuing Lender or Lender (or its
applicable lending or letter of credit office) to any additional Tax
(other than any Tax on the overall net income of such Issuing Lender or
Lender) with respect to the issuing or maintaining of any Letters of
Credit or the purchasing or maintaining of any participations therein
or any other obligations under this Section 3, whether directly or by
such being imposed on or suffered by any particular Issuing Lender;
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(ii) imposes, modifies or holds applicable any reserve
(including without limitation any marginal, emergency, supplemental,
special or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement in respect of any Letters of Credit
issued by any Issuing Lender or participations therein purchased by any
Lender; or
(iii) imposes any other condition (other than with respect
to a Tax matter) on or affecting such Issuing Lender or Lender (or its
applicable lending or letter of credit office) regarding this Section 3
or any Letter of Credit or any participation therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Lender or Lender of agreeing to issue, issuing or maintaining any Letter of
Credit or agreeing to purchase, purchasing or maintaining any participation
therein or to reduce any amount received or receivable by such Issuing Lender or
Lender (or its applicable lending or letter of credit office) with respect
thereto in an amount deemed by such Issuing Lender or Lender (in its sole
discretion) to be material; then, in any case, such Borrower shall promptly pay
to such Issuing Lender or Lender, upon receipt of the statement referred to in
the next sentence, such additional amount or amounts as may be necessary to
compensate such Issuing Lender or Lender for any such increased cost or
reduction in amounts received or receivable hereunder. Such Issuing Lender or
Lender shall deliver to the Borrower a written statement, setting forth in
reasonable detail the basis for calculating the additional amounts owed to such
Issuing Lender or Lender under this subsection 3.6, which statement shall be
conclusive and binding upon all parties hereto absent manifest error.
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of
Letters of Credit hereunder to each Borrower are subject to the satisfaction of
the following conditions by such Borrower.
4.1 CONDITIONS TO INITIAL EFFECTIVENESS.
The obligations of Lenders to purchase or make any DIP Loans
and/or DIP Swing Line Loans on the Closing Date are, in addition to the
conditions precedent specified in subsection 4.2, subject to prior or concurrent
satisfaction of the following conditions:
A. COMPANY AND OTHER BORROWER DOCUMENTS. On or before
the Closing Date, Company (and, if so indicated, each other Borrower) shall
deliver or cause to be delivered to Lenders (or to Agent for Lenders with
sufficient originally executed copies, where appropriate, for each Lender and
its counsel) the following, each, unless otherwise noted, dated the Closing
Date:
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(i) Certified copies of the Certificate or Articles of
Incorporation of Company, together with a good standing certificate
from the Secretary of State of Delaware and each other state in which
it is qualified as a foreign corporation to do business and, to the
extent generally available, a certificate or other evidence of good
standing as to payment of any applicable franchise or similar taxes
from the appropriate taxing authority of each of such jurisdictions,
each dated a recent date prior to the Closing Date;
(ii) Copies of the Bylaws of Company, certified as of the
Closing Date by its corporate secretary or an assistant secretary,
certified as of the Closing Date by a duly authorized officer;
(iii) Resolutions of the Board of Directors of Company
approving and authorizing the execution, delivery and performance of
this Agreement and the other Loan Documents to which it is a party,
certified as of the Closing Date by its corporate secretary, an
assistant secretary or other duly authorized officer as being in full
force and effect without modification or amendment;
(iv) Signature and incumbency certificates of the officers
of Company executing this Agreement and the other Loan Documents to
which it is a party;
(v) Executed and acknowledged (where applicable)
originals of this Agreement (executed by each Borrower), the Notes
(duly executed by Company in accordance with subsection 2.1E, drawn to
the order of each applicable Lender and with appropriate insertions)
and the other Loan Documents to which Company is a party, which Loan
Documents shall include: a Collateral Account Agreement, a Guaranty of
the Obligations of ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇ Japan and a Security
Agreement; PROVIDED that with respect to the DIP/Bridge Notes delivered
on the Closing Date by Company, Company shall execute and deliver two
such DIP/Bridge Notes to BTCo, one for a principal amount of
$25,000,000, and the other for a principal amount equal to the
remainder of BTCo's Commitment;
(vi) An Officers' Certificate from Company as to
authorized signatories of that Borrower for Notices of Borrowing,
Notices of Conversion/Continuation, Requests of Issuance of Letters of
Credit and Notices of Allocation; and
(vii) Such other documents as Agent may reasonably request.
B. HOLDINGS DOCUMENTS. On or before the Closing Date,
Company shall cause Holdings to deliver to Lenders (or to Agent for Lenders with
sufficient originally executed copies, where appropriate, for each Lender and
its counsel) the following, each, unless otherwise noted, dated the Closing
Date:
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(i) Certified copies of the Certificate or Articles of
Incorporation of Holdings, together with a good standing certificate
from the Secretary of State of the State of its jurisdiction of
incorporation and each other state in which Holdings is qualified as a
foreign corporation to do business and, to the extent generally
available, a certificate or other evidence of good standing as to
payment of any applicable franchise or similar taxes from the
appropriate taxing authority of each of such jurisdictions, each dated
a recent date prior to the Closing Date;
(ii) Copies of the Bylaws of Holdings, certified as of the
Closing Date by Holdings' corporate secretary or an assistant
secretary;
(iii) Resolutions of the Board of Directors of Holdings
approving and authorizing the execution, delivery and performance of
the Loan Documents to which it is a party, certified as of the Closing
Date by the corporate secretary, an assistant secretary or other duly
authorized officer of Holdings as being in full force and effect
without modification or amendment;
(iv) Signature and incumbency certificates of the officers
of Holdings executing the Loan Documents to which it is a party;
(v) Executed originals of the Loan Documents to which
Holdings is a party, which Loan Documents shall include a Guaranty of
the Obligations of each Borrower, and, with respect to such Guaranty, a
Security Agreement; and
(vi) Such other documents as Agent may reasonably request.
C. NECESSARY CONSENTS. Company and its Subsidiaries
shall have obtained all Governmental Authorizations and all consents of other
Persons, in each case that are necessary or advisable in connection with the
continued operation of the business to be conducted by Company and its
Subsidiaries, and each of the foregoing shall be in full force and effect, in
each case other than those the failure to obtain, which either individually or
in the aggregate, would not be reasonably likely to have a Material Adverse
Effect. No action, request for stay, petition for review or rehearing,
reconsideration or appeal with respect to any of the foregoing shall be pending,
and the time for any applicable agency to take action to set aside its consent
on its own motion shall have expired. Agent shall have received an Officer's
Certificate of Company to the effect set forth in this subsection 4.1C.
D. ENVIRONMENTAL INDEMNITY. If requested by Agent, Agent
shall have received from Company and each applicable Subsidiary Guarantor, an
environmental indemnity agreement, satisfactory in form and substance to Agent
and its counsel, with respect to the indemnification of Agent and Lenders for
any liabilities that may be imposed on or incurred by any of them as a result of
any Hazardous Materials Activity.
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E. SECURITY INTERESTS IN PERSONAL AND MIXED PROPERTY.
Agent shall have received evidence satisfactory to it that Holdings and Company
shall have taken or caused to be taken such actions, executed and delivered or
caused to be executed and delivered all such agreements, documents and
instruments, and made or caused to be made all such filings and recordings
(other than the filing or recording of items described in clauses (ii), (iii)
and (v) below) that may be necessary or, in the opinion of Agent, desirable in
order to create in favor of Agent, for the benefit of Lenders, a valid and (upon
such filing and recording) perfected first priority security interest as of such
date in the entire personal and mixed property Collateral of Holdings and
Company. Such actions shall include, without limitation, the following:
(i) STOCK CERTIFICATES AND INSTRUMENTS. Delivery to Agent
of (a) certificates (which certificates shall be registered in the name
of Agent or properly endorsed in blank for transfer or accompanied by
irrevocable undated stock powers duly endorsed in blank, all in form
and substance satisfactory to Agent) representing the capital stock
pledged pursuant to the Security Agreements and (b) all promissory
notes or other instruments (duly endorsed, where appropriate, in a
manner satisfactory to Agent) evidencing any Collateral.
(ii) UCC FINANCING STATEMENTS AND OTHER FILINGS. Delivery
to Agent of UCC financing statements duly executed by each applicable
Loan Party with respect to all personal and mixed property Collateral
of such Loan Party, for filing in all jurisdictions as may be necessary
or, in the opinion of Agent, desirable to perfect the security
interests created in such Collateral pursuant to the Collateral
Documents.
(iii) SECURITY AGREEMENTS, ETC. If requested by the Agent,
delivery to Agent of the Security Agreements, together with accurate
and complete schedules thereto and any cover sheets or other documents
or instruments required for filing with the United States Patent and
Trademark Office (the "PTO") or any comparable Governmental Authority
outside of the United States.
(iv) OTHER DOCUMENTS. Delivery to Agent of such other
documents and instruments that Agent reasonably deems necessary or
advisable to establish, preserve and perfect the first priority Liens
granted to Agent on behalf of Lenders under the Collateral Documents.
(v) EVIDENCE OF OTHER FILINGS. Evidence reasonably
satisfactory to Agent that all other filings (including, without
limitation, UCC termination statements and comparable instruments under
the laws and regulations of Governmental Authorities outside of the
United States), recordings and other actions Agent deems necessary or
advisable to establish, preserve and perfect the first priority Liens
granted to Agent.
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F. ORDERS; RELATED CONSENTS.
(i) The Interim Borrowing Order shall have been entered
by the Court and shall be unstayed by the Court, and such Interim
Borrowing Order shall provide, among other things, that (a) upon
delivery of ten (10) days written notice to Borrowers, statutory
committees and the U.S. Trustee, Agent may pursue its remedies upon the
occurrence of an Event of Default under Section 8 of this Agreement,
and (b) any claims to surcharge Agent's security interest in the
Collateral under section 506(c) of the Bankruptcy Court are waived.
(ii) An order of the Court shall have been entered by the
Court approving the Adequate Protection Stipulation after an interim
hearing pursuant to Bankruptcy Rule 4001(c)(2) and such order shall be
unstayed.
(iii) All First Day Orders entered by the Court shall be in
form and substance satisfactory to Agent.
(iv) Holders of a majority of the Prepetition Lenders'
Claims shall have executed and delivered a consent and waiver, in form
and substance satisfactory to Agent, waiving the defaults under the
Existing Credit Agreement to permit the advances hereunder and
consenting to, among other matters, the subordination of the Liens
granted in favor of the Prepetition Lenders under the Existing Credit
Agreement.
G. PLEADINGS. No pleading or application shall have been
filed in the Court by any party in interest which is not withdrawn, dismissed or
denied within 15 days after filing seeking (i) to dismiss or convert any of the
Chapter 11 Cases to a Chapter 7 Case, (ii) the appointment of a Chapter 11
trustee in any of the Chapter 11 Cases, (iii) the appointment of an examiner
having enlarged powers relating to the operation of the business of Borrowers
(beyond those set forth under Section 1106(a)(3) and (4) of the Bankruptcy Code)
under Section 1106(b) of the Bankruptcy Code, (iv) the granting of a
super-priority claim or a Lien pari passu or senior to that of Agent granted
pursuant to the DIP Collateral Documents, the Interim Borrowing Order and the
Final Borrowing Order, (v) to stay, reverse, vacate, or otherwise modify the
Interim Borrowing Order or the Final Borrowing Order without the prior written
consent of Agent and Lenders, or (vi) relief from the automatic stay (or any
other injunction having similar effect) so as to allow a third party to proceed
against any material property or assets of Borrowers.
H. FINANCIAL INFORMATION. On or before the Closing Date,
Agent shall have received (x) the initial Forecast and the initial Receipts and
Disbursements Forecast, in each case form and substance satisfactory to Agent,
and (y) the monthly financial statements and related materials for the months of
May and June 1999 and the quarterly financial statements and related materials
for the Fiscal Quarter ended March 31, 1999, in each as required to be delivered
by Borrowers pursuant to subsections 6.1(i) and (ii) of the Existing Credit
Agreement.
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I. COLLATERAL REVIEW; BORROWING BASE. On or before the
Closing Date, Agent shall have received an updated review and analysis of all
Collateral, in form and substance satisfactory to Agent, from a financial
advisor, appraiser or auditor satisfactory to Agent. On or before the Closing
Date, Agent shall have received a Borrowing Base Certificate certifying the
Borrowing Base as of such date, in form and substance satisfactory to Agent.
J. EXECUTION OF LOCK-UP AGREEMENT. On or before the
Closing Date, Agent shall have received true and correct copies of the Lock-Up
Agreement executed by (i) Company, (ii) 67% in amount of the holders of the
Senior Subordinated Notes, (iii) 67% in amount and more than 50% in number of
the Prepetition Lenders' Claims, and (iv) Stonington Fund and Stonington Equity
Sub pursuant to which the parties to such Lock-Up Agreement agree to support the
confirmation of the Reorganization Plan.
K. STONINGTON COMMITMENT. On or before the Closing Date,
Agent shall have received evidence, in form and substance satisfactory to Agent,
that Stonington Fund, Stonington General Partner, Stonington Partners and
Stonington Equity Sub each has taken, or has caused to be taken, all actions
necessary to make and otherwise fund the Stonington Commitment, such actions to
include, without limitation, (i) Stonington General Partner delivering a capital
demand notice to the limited partners of the Stonington Fund and (ii) Stonington
Fund, Stonington General Partner, Stonington Partners and Stonington Equity Sub
executing and delivering the Stonington Commitment Documents, in each case
copies of which shall have been received by Agent on or before the Closing Date.
L. OPINIONS OF BORROWERS' COUNSEL. Lenders shall have
received originally executed copies of one or more favorable opinions of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to Borrowers, in form and substance satisfactory to
Agent and its counsel, dated as of the Closing Date and setting forth
substantially the matters in the opinions designated in EXHIBIT VIII annexed
hereto and such other matters as Agent, acting on behalf of Lenders, may
reasonably request.
M. EXPENSES AND FEES. Company shall have paid to Agent,
for distribution (as appropriate) to Agent and Lenders, the fees payable on the
Closing Date referred to in subsection 2.3. Company shall have paid to Agent all
of the Agent's costs and expenses incurred in connection with the consummation
of the transactions contemplated hereby and shall have paid all of the fees,
costs and expenses of all of Agent's experts, consultants, auditors, appraisers,
counsel and other advisors, including without limitation the fees and expenses
of O'Melveny & ▇▇▇▇▇ LLP and of local and foreign counsel to Agent.
N. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF
AGREEMENTS. Each Borrower shall have delivered to Agent an Officers'
Certificate, in form and substance satisfactory to Agent, to the effect that the
representations and warranties in Section 5 hereof are true, correct and
complete in all material respects on and as of the Closing Date to the same
extent as though made on and as of that date (or, to the extent such
representations and warranties specifically relate to an earlier date, that such
representations and warranties were
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true, correct and complete in all material respects on and as of such earlier
date) and that such Borrower shall have performed in all material respects all
agreements and satisfied all conditions which this Agreement provides shall be
performed or satisfied by it on or before the Closing Date except as otherwise
disclosed to and agreed to in writing by Agent and Requisite Lenders.
O. LENDER APPROVAL AND CONSENT. Each Lender hereby
agrees that by its execution and delivery of its signature pages thereto and by
the funding of its loans to be made on the Closing Date, such Lender approves of
and consents to each of the matters set forth in this subsection 4.1 which must
be approved by, or which must be satisfactory to, all or Requisite Lenders;
PROVIDED that in the case of any agreement or document which must be approved
by, or which must be satisfactory to, all or Requisite Lenders, Agent or Company
shall have delivered a copy of such agreement or document in substantially the
form in which executed or delivered to such Lender on or prior to the Closing
Date.
4.2 CONDITIONS TO ALL LOANS.
The obligations of Lenders to make Loans on each Funding Date
are subject to the following further conditions precedent:
A. Agent shall have received before that Funding Date,
(i) in accordance with the provisions of subsection 2.1B, an originally executed
Notice of Borrowing, in each case signed by the chief executive officer, the
chief financial officer or the treasurer of the Borrower or by any other
authorized signatory of such Borrower, and (ii) a certificate executed by the
chief financial officer of Company certifying to Agent that, such chief
financial officer is not aware of any information contained in the Forecast
which is false or misleading or of any omission of information which causes such
Forecast to be false or misleading and that the proceeds of the Loans requested
on such Funding Date shall be applied in a manner consistent with, and for the
purposes identified in, such Forecast.
B. As of that Funding Date:
(i) The representations and warranties contained herein
and in the other Loan Documents shall be true, correct and complete in
all material respects on and as of that Funding Date to the same extent
as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date,
in which case such representations and warranties shall have been true,
correct and complete in all material respects on and as of such earlier
date;
(ii) No event shall have occurred and be continuing or
would result from the consummation of the borrowing contemplated by
such Notice of Borrowing that would constitute an Event of Default or a
Potential Event of Default;
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(iii) Borrower shall have performed in all material
respects all agreements and satisfied all conditions which this
Agreement provides shall be performed or satisfied by it on or before
that Funding Date;
(iv) No order, judgment or decree of any court (including,
without limitation, the Court), arbitrator or governmental authority
shall purport to enjoin or restrain any Lender from making the Loans to
be made by it on that Funding Date;
(v) The Interim Borrowing Order and/or the Final
Borrowing Order, as applicable, shall be unstayed;
(vi) The making of the Loans requested on such Funding
Date shall not violate any law including, without limitation,
Regulation T, Regulation U or Regulation X of the Board of Governors of
the Federal Reserve System or any other comparable or similar law of
any Governmental Authority; and
(vii) There shall not be pending or, to the knowledge of
Borrower, threatened, any action, suit, proceeding, governmental
investigation or arbitration against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries that
has not been disclosed by any Borrower in writing pursuant to
subsection 5.6 or 6.1(x) prior to the making of the last preceding
Loans (or, in the case of the initial Loans, prior to the execution of
this Agreement), and there shall have occurred no development not so
disclosed in any such action, suit, proceeding, governmental
investigation or arbitration so disclosed, that, in either event, in
the opinion of Agent or of Requisite Lenders, would be expected to have
a Material Adverse Effect; and no injunction or other restraining order
shall have been issued and no hearing to cause an injunction or other
restraining order to be issued shall be pending or noticed with respect
to any action, suit or proceeding seeking to enjoin or otherwise
prevent the consummation of, or to recover any damages or obtain relief
as a result of, the transactions contemplated by this Agreement or the
making of Loans hereunder.
4.3 CONDITIONS TO LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder (whether or not
the Issuing Lender is obligated to issue such Letter of Credit) is subject to
the following conditions precedent:
A. On or before the date of issuance of the initial
Letter of Credit pursuant to this Agreement, the initial Loans shall have been
made.
B. On or before the date of issuance of such Letter of
Credit, Agent shall have received, (i) in accordance with the provisions of
subsection 3.1B(i), an originally executed Request for Issuance of Letter of
Credit, in each case signed by the chief executive officer, the chief financial
officer or the treasurer of Borrower, or by any other authorized signatory of
Borrower, together with all other information specified in subsection 3.1B(i)
and such other
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documents or information as the Issuing Lender may reasonably require in
connection with the issuance of such Letter of Credit, and (ii) a certificate
executed by the chief financial officer of Company certifying to Agent that,
such chief financial officer is not aware of any information contained in the
Forecast which is false or misleading or of any omission of information which
causes such Forecast to be false or misleading and that the Letters of Credit
requested on such issuance date shall be used in a manner consistent with, and
for the purposes identified in, such Forecast.
C. On the date of issuance of such Letter of Credit, (x)
with respect to Company, all conditions precedent described in subsection 4.2B
shall be satisfied to the same extent as if the issuance of such Letter of
Credit were the making of a Loan and the date of issuance of such Letter of
Credit were a Funding Date, and (y) with respect to ▇▇▇▇ UK, ▇▇▇▇ France and
▇▇▇▇ Japan, as the case may be, all conditions precedent described in
subsections 4.2B and 4.4 shall be satisfied to the same extent as if the
issuance of such Letter of Credit were the making of a Loan and the date of
issuance of such Letter of Credit were a Funding Date.
4.4 CONDITIONS TO FOREIGN BRIDGE LOANS.
The obligations of Lenders to purchase or make any Foreign
Bridge Loans under the Foreign Bridge Facility on the applicable Foreign Bridge
Facility Availability Date are, in addition to the conditions precedent
specified in subsections 4.1 and 4.2, subject to prior or concurrent
satisfaction of the following conditions:
A. BORROWER DOCUMENTS. On or before the applicable
Foreign Bridge Facility Availability Date, each of ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇
Japan shall deliver or cause to be delivered to Lenders (or to Agent for Lenders
with sufficient originally executed copies, where appropriate, for each Lender
and its counsel) the following, each, unless otherwise noted, dated the
applicable Foreign Bridge Facility Availability Date:
(i) Certified copies of its Certificate or Articles of
Incorporation, together with a good standing certificate from the
appropriate Governmental Authority jurisdiction of incorporation and
each other jurisdiction in which it is qualified as a foreign
corporation to do business and, to the extent generally available, a
certificate or other evidence of good standing as to payment of any
applicable franchise or similar taxes from the appropriate taxing
authority of each of such jurisdictions, or in each case the comparable
or equivalent documentation under the laws of the applicable
Governmental Authority, each dated a recent date prior to the
applicable Foreign Bridge Facility Availability Date;
(ii) Copies of its Bylaws or the comparable or equivalent
documentation, certified as of the applicable Foreign Bridge Facility
Availability Date by a duly authorized officer;
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(iii) Resolutions of its Board of Directors (or comparable
body) approving and authorizing the execution, delivery and performance
of this Agreement and the other Loan Documents to which it is a party,
certified as of the applicable Foreign Bridge Facility Availability
Date by its corporate secretary, an assistant secretary or other duly
authorized officer as being in full force and effect without
modification or amendment;
(iv) Signature and incumbency certificates
of its officers executing this Agreement and the other Loan Documents
to which it is a party;
(v) An Officers' Certificate from each Borrower as to
authorized signatories of that Borrower for Notices of Borrowing,
Notices of Conversion/Continuation, Requests of Issuance of Letters of
Credit and Notices of Allocation;
(v) Executed and acknowledged (where applicable)
originals of the Notes (duly executed by ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇
Japan, as the case may be, in accordance with subsection 2.1E, drawn to
the order of each applicable Lender and with appropriate insertions)
and the other Loan Documents to which ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇
Japan is a party, which Loan Documents shall include any Foreign
Collateral Documents required to be delivered on or before the
applicable Foreign Bridge Facility Availability Date pursuant to
subsection 4.4B; and
(vi) Such other documents as Agent may reasonably request.
B. FOREIGN SECURITY DOCUMENTS. On or before the
applicable Foreign Bridge Facility Availability Date, Agent shall have received
evidence satisfactory to it that ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇ Japan, as the
case may be, shall have (i) taken or caused to be taken such actions, (ii)
executed and delivered or caused to be executed and delivered all such
agreements, amendments, documents and instruments and, if requested by Agent,
legal opinions (in each case, in form and substance satisfactory to Agent and
its counsel), and (iii) made or caused to be made all such filings and
recordings, in each case of clauses (i), (ii) and (iii) that may be necessary
or, in the opinion of Agent, desirable to, maintain and continue in favor of
Agent, for the benefit of Lenders, a valid and perfected first priority security
interest as of such date in the entire real, personal and mixed property
Collateral of ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇ Japan, as the case may be, and Agent
shall have received executed copies of all such agreements, amendments,
documents and instruments and, if requested by Agent, legal opinions, and such
other documents and instruments as may be requested by Agent.
SECTION 5. BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to
make the Loans, to induce Issuing Lenders to issue Letters of Credit and to
induce other Lenders to purchase participations therein, each Borrower
represents and warrants to each Lender, on the date of this
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Agreement, on each Funding Date and on the date of issuance of each Letter of
Credit, that the following statements are true, correct and complete:
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES.
A. ORGANIZATION AND POWERS. Each Loan Party is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation. Subject to compliance with any applicable
provisions of the Bankruptcy Code, each Loan Party has all requisite corporate
power and authority to own and operate its properties, to carry on its business
as now conducted and as proposed to be conducted, to enter into the Loan
Documents to which it is a party and to carry out the transactions contemplated
thereby and, to issue and pay the Notes. Each Borrower is in compliance with its
organizational, formation and governing documents and all applicable orders of
the Court.
B. QUALIFICATION AND GOOD STANDING. Each Loan Party is
qualified to do business and in good standing in every jurisdiction where its
assets are located and wherever necessary to carry out its business and
operations, except in jurisdictions, individually or in the aggregate for all
such jurisdictions, where the failure to be so qualified or in good standing has
not had and will not have a Material Adverse Effect.
C. CONDUCT OF BUSINESS. Company and its Subsidiaries are
engaged only in the businesses permitted to be engaged in pursuant to subsection
7.12.
D. SUBSIDIARIES. All of the Subsidiaries of Holdings are
identified in SCHEDULE 5.1 annexed hereto. The capital stock of each of the
Subsidiaries of Holdings identified in SCHEDULE 5.1 annexed hereto is duly
authorized, validly issued, fully paid and nonassessable and none of such
capital stock constitutes Margin Stock. Each of the Subsidiaries of Holdings
identified in SCHEDULE 5.1 annexed hereto is a corporation duly organized,
validly existing and in good standing under the laws of its respective
jurisdiction of incorporation set forth therein, has all requisite corporate
power and authority to own and operate its properties and to carry on its
business as now conducted and as proposed to be conducted, and is qualified to
do business and in good standing in every jurisdiction where its assets are
located and wherever necessary to carry out its business and operations, in each
case except where failure to be so qualified or in good standing or a lack of
such corporate power and authority, individually or in the aggregate, has not
had and will not have a Material Adverse Effect. SCHEDULE 5.1 annexed hereto
correctly sets forth, the ownership interest of Holdings and each of its
Subsidiaries in each of the Subsidiaries of Holdings identified therein.
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5.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery
and performance of the Loan Documents and the issuance, delivery and payment of
the Notes (i) have been duly authorized by all necessary corporate action on the
part of each Loan Party that is a party thereto and (ii) have been or by the
Closing Date will be duly authorized by the Court.
B. NO CONFLICT. The execution, delivery and performance
by any Loan Party of the Loan Documents to which it is a party and the
consummation of the transactions contemplated by the Loan Documents, and the
issuance, delivery and payment of the Notes, do not and will not (i) subject to
Court approval, violate any provision of any law or any governmental rule or
regulation applicable to any Loan Party, the Certificate or Articles of
Incorporation or Bylaws, or other organizational, formation or governing
documents, of any Loan Party or any order, judgment or decree of any court or
other Governmental Authority (including, without limitation, the Court) binding
on any Loan Party, (ii) conflict with, result in a breach of or constitute (with
due notice or lapse of time or both) a default under (x) any Contractual
Obligation of any Loan Party (performance or enforceability of which has not
been excused by the Bankruptcy Code or an applicable order of the Court), except
for such breaches, conflicts and defaults which could not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect, or (y) any
applicable order of the Court, (iii) result in or require the creation or
imposition of any Lien upon any of the properties or assets of any Loan Party
(other than any Liens created under any of the Loan Documents in favor of Agent
on behalf of Lenders), or (iv) require any approval of stockholders or any
approval or consent of any Person under any Contractual Obligation of any Loan
Party (performance or enforceability of which has not been waived or excused by
the Bankruptcy Code or an applicable order of the Court), except for such
approvals or consents or any applicable order of the Court (a) which will be
obtained on or before the Closing Date and disclosed on SCHEDULE 5.2 annexed
hereto or (b) which (other than with respect to any applicable order of the
Court) the failure to obtain could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
C. GOVERNMENTAL CONSENTS. Except as set forth on
SCHEDULE 5.2 annexed hereto, the execution, delivery and performance by any Loan
Party of the Loan Documents and the consummation of the transactions
contemplated by the Loan Documents do not and will not require any registration
with, consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body, except for
filings that may be made in connection with the perfection of security interests
granted pursuant to the Loan Documents, and such other registrations, consents,
approvals, notices or other actions which have been or will be made, obtained,
given or taken on or before the Closing Date or which the failure to obtain or
take could not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.
D. BINDING OBLIGATION. Upon Court approval, each of the
Loan Documents will be duly executed and delivered by each Loan Party that is a
party thereto and will be the
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legally valid and binding obligation of such Loan Party, enforceable against
such Loan Party in accordance with its respective terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
E. VALID ISSUANCE OF COMPANY COMMON STOCK, HOLDINGS
COMMON STOCK AND HOLDINGS PREFERRED STOCK. The issued and outstanding shares of
Company Common Stock, the common stock of Holdings and the 6-1/2% Redeemable
Pay-in-Kind Preferred Stock of Holdings are validly issued. Except as provided
in that certain Stockholders Agreement, dated as of October 15, 1996, among
Holdings, Stonington Fund and certain management investors, no stockholder of
Company or Holdings has any preemptive rights to subscribe to additional
Securities issued by Company or Holdings.
F. RESTRICTIONS ON TRANSFER. There are no restrictions
on any Borrower or any of its Subsidiaries which prohibit or otherwise restrict
the transfer of cash or other assets from one to another, other than
prohibitions or restrictions existing under or by reason of (i) this Agreement
and the other Loan Documents, (ii) applicable law (including the Bankruptcy Code
and any applicable orders of the Court), (iii) customary non-assignment
provisions entered into in the ordinary course of business and consistent with
past practices, and (iv) any documents or instruments governing the terms of any
Indebtedness or other obligations secured by Liens permitted by subsection 7.2
(each of which document or instrument is set forth on, and each of which
document and instrument is described on, SCHEDULE 5.2F annexed hereto); PROVIDED
that (x) such prohibitions or restrictions apply only to the assets subject to
such Liens, and (y) the prohibitions or restrictions set forth in clauses (iii)
or (iv) only apply to the extent enforceable under the Bankruptcy Code and the
applicable orders of the Court.
G. PRE-PETITION INDEBTEDNESS. Prepetition Indebtedness
(and all amounts owing in respect thereof) of Debtor Entities as of the Petition
Date is set forth on the Debtors' Schedule of Assets and Liabilities filed with
the Court, as they may be amended in accordance with the Bankruptcy Rules.
H. CHAPTER 11 CASES. The Chapter 11 Cases were commenced
on the Petition Date in accordance with applicable law and proper notice thereof
and of the hearing for the approval of the Final Borrowing Order has been given
as identified in the Certificate of Service filed with the Court.
5.3 FINANCIAL CONDITION.
Company has heretofore delivered to Lenders, at Lenders'
request, the financial statements and information described in subsection
4.1H. All such statements (other than the projected financial statements of
Company and its Subsidiaries) were prepared in conformity with GAAP and
fairly present the financial position (on a consolidated and, where
applicable, consolidating basis) of the entities described in such financial
statements as at the respective dates thereof and the results of operations
and cash flows (on a consolidated and, where
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applicable, consolidating basis) of the entities described therein for each
of the periods then ended, subject, in the case of any such unaudited
financial statements, to changes resulting from audit and normal year-end
adjustments. None of the Loan Parties has any Contingent Obligation,
contingent liability or liability for taxes, long-term lease or unusual
forward or long-term commitment that is not reflected in the foregoing
financial statements or the notes thereto and which in any such case is
material in relation to the business, operations, properties, assets,
condition (financial or otherwise) or prospects of Company and its
Subsidiaries, taken as a whole.
5.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR PAYMENTS.
Since December 31, 1998, no event or change has occurred that
has caused or evidences, either in any case or in the aggregate, a Material
Adverse Effect, other than the commencement of the Chapter 11 Cases and the
occurrence of the events described in SCHEDULE 5.4 annexed hereto. Since April
15, 1999, neither Company nor any of its Subsidiaries has directly or indirectly
declared, ordered, paid or made, or set apart any sum or property for, any
Restricted Junior Payment or agreed to do so except as permitted by subsection
7.5.
5.5 TITLE TO PROPERTIES; LIENS.
Holdings, Company and their respective Subsidiaries have (i)
good, sufficient and legal title to (in the case of fee interests in real
property), (ii) valid leasehold interests in (in the case of leasehold interests
in real or personal property), or (iii) good title to (in the case of all other
personal property), all of their respective properties and assets reflected in
the financial statements referred to in subsection 5.3 or in the most recent
financial statements delivered pursuant to subsection 6.1, in each case except
for assets disposed of since the date of such financial statements in the
ordinary course of business or as otherwise permitted under subsection 7.2.
Except for (x) Permitted Encumbrances and (y) Liens permitted under subsection
7.2, all such properties and assets are free and clear of Liens.
5.6 LITIGATION; ADVERSE FACTS.
Except as set forth in SCHEDULE 5.6 annexed hereto or, with
respect to Environmental Claims, as set forth on SCHEDULE 5.13 annexed hereto,
there are no actions, suits, proceedings, arbitrations or governmental
investigations (whether or not purportedly on behalf of Holdings, Company or any
of their respective Subsidiaries) at law or in equity or before or by any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, pending or, to the
knowledge of any Borrower, threatened against or affecting Holdings, Company or
any of their respective Subsidiaries or any property of Holdings, Company or any
of their respective Subsidiaries that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. Neither Holdings
nor Company nor any of their respective Subsidiaries is (i) in violation of any
applicable laws (excluding Environmental Laws which are covered in subsection
5.13) that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect or (ii) subject to or
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in default with respect to any final judgments, writs, injunctions, decrees,
rules or regulations of any court or any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.
5.7 PAYMENT OF TAXES.
Except to the extent permitted by subsection 6.3 and to the
extent payment has been excused by the Bankruptcy Code or an applicable order of
the Court, all material Tax returns and reports of Holdings, Company and their
respective Subsidiaries required to be filed by any of them have been timely
filed, and all material taxes, assessments, fees and other governmental charges
upon Holdings, Company and their respective Subsidiaries and upon their
respective properties, assets, income, businesses and franchises which are due
and payable have been paid when due and payable. None of the Borrowers knows of
any material proposed Tax assessment against Holdings, Company or any of their
respective Subsidiaries which is not being actively contested by Holdings,
Company or such Subsidiary in good faith and by appropriate proceedings;
PROVIDED that such reserves or other appropriate provisions, if any, as shall be
required in conformity with GAAP shall have been made or provided therefor.
5.8 PERFORMANCE OF AGREEMENTS; NO MATERIALLY ADVERSE AGREEMENTS.
A. Except as excused the Bankruptcy Code or applicable
order of the Court, neither Holdings nor Company nor any of their respective
Subsidiaries is in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any of its Contractual
Obligations, and no condition exists that, with the giving of notice or the
lapse of time or both, would constitute such a default, except where the
consequences, direct or indirect, of such default or defaults, if any,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
B. Neither Holdings nor Company nor any of their
respective Subsidiaries is a party to or is otherwise subject to any agreements
or instruments or any charter or other internal restrictions which, individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect.
C. The Contractual Obligations of each of Holdings and
Company and their respective Subsidiaries are in full force and effect and no
defaults, except as excused the Bankruptcy Code or applicable order of the
Court, that could reasonably be expected to result in a Material Adverse Effect
currently exist thereunder.
5.9 GOVERNMENTAL REGULATION.
Neither Holdings nor Company nor any of their respective
Subsidiaries is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, the Interstate Commerce Act or the
Investment Company Act of 1940 or under any other federal or
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state statute or regulation (other than the Bankruptcy Code) or under any other
comparable or similar laws of any Governmental Authority which may limit its
ability to incur Indebtedness or which may otherwise render all or any portion
of the Obligations unenforceable.
5.10 SECURITIES ACTIVITIES.
Neither Holdings nor Company nor any of their respective
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying any
Margin Stock.
5.11 EMPLOYEE BENEFIT PLANS.
A. Holdings and Company and each of their respective
Subsidiaries are in compliance in all material respects with all applicable
provisions and requirements of ERISA and the regulations and published
interpretations thereunder and the terms of each Employee Benefit Plan, and have
performed all their material obligations under each Employee Benefit Plan.
B. No ERISA Event has occurred or is reasonably expected
to occur that could reasonably be expected to result in an aggregate liability
to the Company or any of its Subsidiaries of more than $1,000,000.
C. In accordance with the most recent actuarial
valuation for any Pension Plan, the excess of the aggregated accumulated benefit
obligations, as defined in Statement of Financial Accounting Standards No. 87,
over the aggregate total fair market value for all such Pension Plans (excluding
for purposes of such computation (1) any Pension Plans with respect to which the
fair market value of the assets exceeds such accumulated benefit obligations and
(2) any Foreign Unfunded Pension Plan), does not exceed $12,000,000.
5.12 [INTENTIONALLY OMITTED]
5.13 ENVIRONMENTAL PROTECTION.
Except as set forth in SCHEDULE 5.13 annexed hereto:
(i) the operations of Company and each of its
Subsidiaries (including, without limitation, all operations and
conditions at or in the Facilities) comply in all material respects
with all Environmental Laws;
(ii) Company and each of its Subsidiaries have obtained
all Governmental Authorizations under Environmental Laws necessary to
their respective operations, and all such Governmental Authorizations
are being maintained in good standing, and Company and each of its
Subsidiaries are in compliance in all material respects with such
Governmental Authorizations;
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(iii) neither Company nor any of its Subsidiaries has
received (a) any notice or claim to the effect that it is or may be
liable to any Person as a result of or in connection with any Hazardous
Materials or (b) any letter or request for information under Section
104 of the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Section 9604) or comparable state laws, and,
to the best of the Borrowers' knowledge, none of the operations of
Company or any of its Subsidiaries is the subject of any federal or
state investigation relating to or in connection with any Hazardous
Materials at any Facility or at any other location except for such of
the foregoing which would not reasonably be expected to have a Material
Adverse Effect;
(iv) none of the operations of Company or any of its
Subsidiaries is subject to any judicial or administrative proceeding
alleging the violation of or liability under any Environmental Laws
which if adversely determined could reasonably be expected to have a
Material Adverse Effect;
(v) neither Company nor any of its Subsidiaries nor any
of their respective Facilities or operations are subject to any
outstanding written order or agreement with any governmental authority
or private party relating to (a) any actual or potential violation of
or liability under Environmental Laws or (b) any Environmental Claims
except for such of the foregoing which would not reasonably be expected
to have a Material Adverse Effect;
(vi) neither Company nor any of its Subsidiaries has any
contingent liability in connection with any Release by Company or any
of its Subsidiaries except for such of the foregoing which would not
reasonably be expected to have a Material Adverse Effect;
(vii) neither Company nor any of its Subsidiaries nor, to
the best knowledge of the Borrowers, any predecessor of Company or any
of its Subsidiaries has filed any notice under any Environmental Law
indicating past or present treatment, storage or disposal of hazardous
waste at any Facility, as defined under 40 C.F.R. Parts 260-270 or any
state equivalent;
(viii) no Hazardous Materials exist on, under or about any
Facility in a manner that would reasonably be expected to give rise to
an Environmental Claim having a Material Adverse Effect, and neither
Company nor any of its Subsidiaries has filed any notice or report of a
Release that would reasonably be expected to give rise to an
Environmental Claim having a Material Adverse Effect;
(ix) neither Company nor any of its Subsidiaries nor, to
the best knowledge of Company, any of their respective predecessors has
disposed of any Hazardous Materials in a manner that would reasonably
be expected to give rise to an Environmental Claim having a Material
Adverse Effect;
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(x) to the best knowledge of Company, no underground
storage tanks or surface impoundments are on or at any Facility; and
(xi) no Lien in favor of any Person relating to or in
connection with any Environmental Claim has been filed or has been
attached to any Facility except for any such Lien which would not
reasonably be expected to have a Material Adverse Effect.
Notwithstanding anything in this subsection 5.13 to the
contrary, no event or condition has occurred with respect to the Loan Parties
relating to any Environmental Laws or any Release of any Hazardous Materials at
any Facility or any other location, including without limitation any matter
disclosed in SCHEDULE 5.13 annexed hereto which, individually or in the
aggregate, has had or could reasonably be expected to have, a Material Adverse
Effect.
5.14 EMPLOYEE MATTERS.
There is no strike or work stoppage in existence or threatened
involving Company or any of its Subsidiaries that could reasonably be expected
to have a Material Adverse Effect.
5.15 [INTENTIONALLY OMITTED]
5.16 DISCLOSURE.
No representation or warranty of Company or any of its
Subsidiaries contained in any Loan Document or in any other document,
certificate or written statement furnished to Lenders by or on behalf of Company
or any of its Subsidiaries for use in connection with the transactions
contemplated by this Agreement contains any untrue statement of a material fact
or omits to state a material fact (known to any Borrower, in the case of any
document not furnished by it) necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in
which the same were made. Any projections and pro forma financial information
contained in such materials are based upon good faith estimates and assumptions
believed by the Borrowers to be reasonable at the time made, it being recognized
by Lenders that such projections as to future events are not to be viewed as
facts and that actual results during the period or periods covered by any such
projections may differ from the projected results. There are no facts known (or
which should upon the reasonable exercise of diligence be known) to the
Borrowers (other than matters of a general economic nature) that, individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect and that have not been disclosed herein or in such other
documents, certificates and statements furnished to Lenders for use in
connection with the transactions contemplated hereby.
5.17 INVENTORY AND ACCOUNTS.
Except as disclosed in the written information provided to
Lender by Borrowers under subsection 6.1(xx) or otherwise disclosed to Agent in
writing, with respect to all Inventory and Accounts:
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(i) Agent may rely upon all statements, warranties, or
representations made in any Borrowing Base Certificate or other written
report regarding Inventory and Accounts delivered hereunder by
Borrowers in determining which items of Inventory or Accounts are to be
deemed Eligible Inventory or Eligible Accounts Receivable, as the case
may be;
(ii) No Inventory or Account is subject to any Lien
whatsoever, except for Liens of Lenders under the Collateral Documents
and other Liens permitted hereunder;
(iii) No such Inventory has been consigned to any Person;
(iv) All Inventory located in the United States of America
has been produced in accordance with all applicable requirements of the
Federal Fair Labor Standards Act of 1938, as amended and all rules,
regulations and orders related thereto;
(v) All Inventory has been and shall be used in
Borrowers' business and not for personal, family, household or farming
use;
(vi) Each Eligible Accounts Receivable represents a valid
and legally enforceable indebtedness based upon an actual and bona fide
sale and delivery of goods or rendition of services in the ordinary
course of Borrowers' business which has been finally accepted by the
account debtor and for which the account debtor is unconditionally
liable to make payment of the amount stated in each invoice, document
or instrument evidencing the Eligible Accounts Receivable in accordance
with the terms thereof, without offset, defense or counterclaim and
will be paid in full at maturity;
(vii) All statements made and all unpaid balances appearing
in the invoices, documents and instruments evidencing each Eligible
Accounts Receivable are true and correct in all material respects and
are in all material respects what they purport to be and, to the best
of Borrowers' knowledge, all signatures and endorsements that appear
thereon are genuine and all signatories and endorsers have full
capacity to contract and each account debtor is solvent and financially
able to pay in full the Eligible Accounts Receivable when it matures;
(viii) None of the transactions underlying or giving rise to
any Account violate any state or federal laws or regulations, and all
documents relating to the Accounts are legally sufficient under such
laws or regulations and are legally enforceable in accordance with
their terms and all recording, filing and other requirements of giving
public notice under any applicable law have been duly complied with;
and
(ix) All sales, excise and similar taxes relating to
Accounts of Borrowers have been paid when due.
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5.18 ORDERS.
On the date of the making of the initial Loans hereunder, the
Interim Borrowing Order (or, if there is no Interim Borrowing Order, the Final
Borrowing Order) will have been entered and shall be unstayed. On the date of
the making of any Loan, the Interim Borrowing Order or the Final Borrowing
Order, as the case may be, shall be unstayed. Upon the maturity (whether by
acceleration or otherwise) of any of the Obligations of the Borrowers hereunder
and under the other Loan Documents, Lenders shall be entitled to immediate
payment of such Obligations, and to enforce the remedies provided for hereunder,
without further application to or order by the Court subject to the notice
procedures set forth in the second to the last paragraph of Section 8.
SECTION 6. BORROWERS' AFFIRMATIVE COVENANTS
Each Borrower covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior written
consent, such Borrower shall perform, and shall cause each of its Subsidiaries
to perform, all covenants in this Section 6.
6.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Each Borrower will maintain, and cause each of its
Subsidiaries to maintain, a system of accounting established and administered in
accordance with sound business practices to permit preparation of financial
statements in conformity with GAAP. Company will deliver to Agent and Lenders:
(i) MONTHLY FINANCIALS: as soon as available and in any
event within 30 days after the end of each month ending after the
Closing Date, (a) the consolidated and consolidating (by geographic
region, which regions shall consist of the United States, Europe and
Asia, each, a "REGION") balance sheets of each Borrower and its
Subsidiaries as at the end of such month and the related consolidated
and consolidating (by Region) statements of income, stockholders'
equity and cash flows of such Borrower and its Subsidiaries for such
month and for the period from the beginning of the then current Fiscal
Year to the end of such month and setting forth in comparative form the
corresponding figures for the corresponding periods of the previous
Fiscal Year and the corresponding figures from the Forecast for the
current Fiscal Year, all in reasonable detail and certified by the
chief financial officer of Company that they fairly present, in all
material respects, the financial condition of such Borrower and its
Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, subject to
changes resulting from audit and normal year-end adjustments, and (b) a
report describing the operations of such Borrower and its Subsidiaries
in the form prepared for presentation to senior management for such
month and for the period from
96
the beginning of the then current Fiscal Year to the end of such month,
and (c) a report comparing the achievements of Company with respect to
contract margin improvement, collection of Accounts and disposition of
stale Inventory against the corresponding figures from the Forecast for
the current Fiscal Year;
(ii) QUARTERLY FINANCIALS: as soon as available and in any
event within 45 days after the end of each Fiscal Quarter, (a) the
consolidated and consolidating (by Region) balance sheets of each
Borrower and its Subsidiaries as at the end of such Fiscal Quarter and
the related consolidated and consolidating (by Region) statements of
income, stockholders' equity and cash flows of such Borrower and its
Subsidiaries for such Fiscal Quarter and for the period from the
beginning of the then current Fiscal Year to the end of such Fiscal
Quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous
Fiscal Year and the corresponding figures from the Forecast for the
current Fiscal Year, all in reasonable detail and certified by the
chief financial officer of Company that they fairly present, in all
material respects, the financial condition of such Borrower and its
Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, subject to
changes resulting from audit and normal year-end adjustments, and (b) a
narrative report describing the operations of such Borrower and its
Subsidiaries in the form prepared for presentation to senior management
for such Fiscal Quarter and for the period from the beginning of the
then current Fiscal Year to the end of such Fiscal Quarter;
(iii) YEAR-END FINANCIALS: as soon as available and in any
event within 100 days after the end of each Fiscal Year, (a) the
consolidated and consolidating (by Region) balance sheets of such
Borrower and its Subsidiaries as at the end of such Fiscal Year and the
related consolidated and consolidating (by Region) statements of
income, stockholders' equity and cash flows of such Borrower and its
Subsidiaries for such Fiscal Year, setting forth in each case in
comparative form the corresponding figures for the previous Fiscal Year
and the corresponding figures from the Forecast for the Fiscal Year
covered by such financial statements, all in reasonable detail and
certified by the chief financial officer of Company that they fairly
present, in all material respects, the financial condition of such
Borrower and its Subsidiaries as at the dates indicated and the results
of their operations and their cash flows for the periods indicated, (b)
a narrative report describing the operations of such Borrower and its
Subsidiaries in the form prepared for presentation to senior management
for such Fiscal Year, and (c) in the case of such consolidated
financial statements with respect to Company and its Subsidiaries, a
report thereon of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or other independent certified
public accountants of recognized national standing selected by Company
and satisfactory to Agent, which report shall be unqualified as to
scope of audit, shall express no doubts about the ability of Company
and its Subsidiaries to continue as a going concern, and shall state
that such consolidated financial statements fairly present, in all
material respects, the consolidated financial position of Company and
its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated in conformity
with
97
GAAP applied on a basis consistent with prior years (except as
otherwise disclosed in such financial statements) and that the
examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally
accepted auditing standards;
(iv) OFFICERS' AND COMPLIANCE CERTIFICATES: (a) together
with each delivery of financial statements of each Borrower and its
Subsidiaries pursuant to subdivisions (i), (ii) and (iii) above, an
Officers' Certificate of Company stating that the signers have reviewed
the terms of this Agreement and have made, or caused to be made under
their supervision, a review in reasonable detail of the transactions
and condition of each Borrower and its Subsidiaries during the
accounting period covered by such financial statements and that such
review has not disclosed the existence during or at the end of such
accounting period, and that the signers do not have knowledge of the
existence as at the date of such Officers' Certificate, of any
condition or event that constitutes an Event of Default or Potential
Event of Default, or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and what action
Borrowers have taken, are taking and propose to take with respect
thereto; and (b) together with each delivery of financial statements
pursuant to subdivision (ii) and (iii) above, a Compliance Certificate
demonstrating in reasonable detail compliance during and at the end of
the applicable accounting periods with the restrictions contained in
Section 7;
(v) RECONCILIATION STATEMENTS: if, as a result of any
change in accounting principles and policies from those used in the
preparation of the audited financial statements referred to in
subsection 5.3, the consolidated financial statements of Company and
its Subsidiaries delivered pursuant to subdivisions (i), (ii), (iii) or
(xiii) of this subsection 6.1 will differ in any material respect from
the consolidated financial statements that would have been delivered
pursuant to such subdivisions had no such change in accounting
principles and policies been made, then (a) together with the first
delivery of financial statements pursuant to subdivision (i), (ii),
(iii) or (xiii) of this subsection 6.1 following such change,
consolidated financial statements of Company and its Subsidiaries for
(y) the current Fiscal Year to the effective date of such change and
(z) the full Fiscal Year immediately preceding the Fiscal Year in which
such change is made, in each case prepared on a pro forma basis as if
such change had been in effect during such periods, and (b) together
with each delivery of financial statements pursuant to subdivision (i),
(ii), (iii) or (xiii) of this subsection 6.1 following such change, a
written statement of the chief accounting officer or chief financial
officer of Company setting forth the differences (including without
limitation any differences that would affect any calculations relating
to the financial covenants set forth in subsection 7.6) which would
have resulted if such financial statements had been prepared without
giving effect to such change;
(vi) ACCOUNTANTS' CERTIFICATION: together with each
delivery of consolidated financial statements of Company and its
Subsidiaries pursuant to subdivision (iii) above,
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a written statement by the independent certified public accountants
giving the report thereon (a) stating that their audit examination has
included a review of the terms of this Agreement and the other Loan
Documents as they relate to accounting matters, (b) stating whether, in
connection with their audit examination, any condition or event that
constitutes an Event of Default or Potential Event of Default has come
to their attention and, if such a condition or event has come to their
attention, specifying the nature and period of existence thereof;
PROVIDED that such accountants shall not be liable by reason of any
failure to obtain knowledge of any such Event of Default or Potential
Event of Default that would not be disclosed in the course of their
audit examination, and (c) stating that based on their audit
examination nothing has come to their attention that causes them to
believe either or both that the information contained in the
certificates delivered therewith pursuant to subdivision (iv) above is
not correct or that the matters set forth in the Compliance
Certificates delivered therewith pursuant to subdivision (iv) above for
the applicable Fiscal Year are not stated in accordance with the terms
of this Agreement;
(vii) ACCOUNTANTS' REPORTS: promptly upon receipt thereof
(unless restricted by applicable professional standards), copies of all
reports submitted to any Borrower by independent certified public
accountants in connection with each annual, interim or special audit of
the financial statements of any Borrower and its Subsidiaries made by
such accountants, including, without limitation, any comment letter
submitted by such accountants to management in connection with their
annual audit;
(viii) SEC FILINGS AND PRESS RELEASES: promptly upon their
becoming available, copies of (a) all financial statements, reports,
notices and proxy statements sent or made available generally by any
Borrower to its security holders or by any Subsidiary of any Borrower
to its security holders other than any Borrower or another Subsidiary
of a Borrower, (b) all regular and periodic reports and all
registration statements (other than on Form S-8 or a similar form) and
prospectuses, if any, filed by a Borrower or any of its Subsidiaries
with any securities exchange or with the Securities and Exchange
Commission or any governmental or private regulatory authority, and (c)
all press releases and other statements made available generally by a
Borrower or any of its Subsidiaries to the public concerning material
developments in the business of such Borrower or any of its
Subsidiaries;
(ix) EVENTS OF DEFAULT, ETC.: promptly upon any officer of
any Loan Party obtaining knowledge (a) of any condition or event that
constitutes an Event of Default or Potential Event of Default, or
becoming aware that any Lender has given any notice (other than to
Agent) or taken any other action with respect to a claimed Event of
Default or Potential Event of Default, (b) that any Person has given
any notice to a Borrower or any of its Subsidiaries or taken any other
action with respect to a claimed default or event or condition of the
type referred to in subsection 8.2, (c) of any condition or event that
would be required to be disclosed in a current report filed by a
Borrower with the
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Securities and Exchange Commission on Form 8-K (Items 1, 2, 4, 5 and 6
of such Form as in effect on the date hereof) if such Borrower were
required to file such reports under the Exchange Act, or (d) of the
occurrence of any event or change that has caused or evidences, either
in any case or in the aggregate, a Material Adverse Effect, an
Officers' Certificate specifying the nature and period of existence of
such condition, event or change, or specifying the notice given or
action taken by any such Person and the nature of such claimed Event of
Default, Potential Event of Default, default, event or condition, and
what action Borrowers have taken, are taking and propose to take with
respect thereto;
(x) LITIGATION OR OTHER PROCEEDINGS: (a) promptly upon
any officer of any Loan Party obtaining knowledge of (X) the
institution of, or non-frivolous threat of, any action, suit,
proceeding (whether administrative, judicial or otherwise),
governmental investigation or arbitration against or affecting such
Borrower or any of its Subsidiaries or any property of such Borrower or
any of its Subsidiaries (collectively, "PROCEEDINGS") not previously
disclosed in writing by Company or any of its Subsidiaries to Lenders
or (Y) any material development in any Proceeding that, in any case:
(1) could reasonably be expected to result in a
Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as
a result of, the transactions contemplated hereby;
written notice thereof together with such other information as
may be reasonably available to such Borrower to enable Lenders
and their counsel to evaluate such matters; and (b) within
twenty days after the end of each Fiscal Quarter, a schedule
of all Proceedings involving an alleged liability of, or
claims against or affecting, any Borrower or any of its
Subsidiaries equal to or greater than $500,000, and promptly
after request by Agent such other information as may be
reasonably requested by Agent to enable Agent and its counsel
to evaluate any of such Proceedings;
(xi) ERISA EVENTS: promptly upon becoming aware of the
occurrence of or forthcoming occurrence of any ERISA Event, a written
notice specifying the nature thereof, what action Company or any of its
ERISA Affiliates has taken, is taking or proposes to take with respect
thereto and, when known, any action taken or threatened by the Internal
Revenue Service, the Department of Labor or the PBGC with respect
thereto;
(xii) ERISA NOTICES: with reasonable promptness, copies of
(a) each Schedule B (Actuarial Information) to the annual report (Form
5500 Series) filed by Company or any of its ERISA Affiliates with the
Internal Revenue Service with respect to each Pension Plan; (b) all
notices received by Company or any of its ERISA Affiliates from a
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Multiemployer Plan sponsor concerning an ERISA Event; and (c) such
other documents or governmental reports or filings relating to any
Employee Benefit Plan as Agent shall reasonably request;
(xiii) [intentionally omitted];
(xiv) INSURANCE: as soon as practicable and in any event by
the last day of each Fiscal Year, a report in form and substance
satisfactory to Agent outlining all material insurance coverage
maintained as of the date of such report by Company and its
Subsidiaries and all material insurance coverage planned to be
maintained by Company and its Subsidiaries in the immediately
succeeding Fiscal Year and confirming the status of Agent as loss payee
under all such insurance to the extent required by subsection 6.4;
(xv) BOARD OF DIRECTORS: with reasonable promptness,
written notice of any change in the Board of Directors of any Borrower;
(xvi) [intentionally omitted];
(xvii) BANKRUPTCY INFORMATION: promptly after the same is
available, Company shall furnish or cause to be furnished to counsel
for Agent all pleadings, motions, applications, judicial information,
financial information and other documents filed by or on behalf of
Holdings and Company with the Court or the United States Trustee in the
Chapter 11 Cases or distributed by or on behalf of Holdings and Company
to any official committee appointed in the Chapter 11 Cases and,
without limiting the generality of the foregoing, Borrowers shall
promptly deliver to, and discuss with, Agent and its counsel any and
all information and developments in connection with any proposed Asset
Sale, including, without limitation, any letters of intent, commitment
letters or engagement letters received by any Borrower, and any other
event or condition which is reasonably likely to have a material effect
on Holdings, Company or any of the other Borrowers or the Chapter 11
Cases, including, without limitation, the progress of any disclosure
statement or any proposed Chapter 11 plan of reorganization;
(xviii) UCC SEARCH REPORT: as promptly as practicable after
the date of delivery to Agent of any UCC financing statement executed
by any Loan Party pursuant to subsection 4.1E or 6.8A, copies of
completed UCC searches evidencing the proper filing, recording and
indexing of all such UCC financing statements and listing all other
effective financing statements in that jurisdiction that name such Loan
Party as debtor, together with copies of all such financing statements
not previously delivered to Agent by or on behalf of any Borrower or
such Loan Party;
(xix) [intentionally omitted];
(xx) BORROWING BASE CERTIFICATE: no later than 12:00 noon
(New York City time) of the fifteenth (15th) day after the end of each
calendar month, a Borrowing Base
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Certificate dated and certifying the Borrowing Base as of the last day
of the immediately preceding month, together with any additional
schedules and other information as Agent may reasonably request, and
such Borrowing Base Certificate shall, with respect to Equipment and
Real Property Assets, use the most recently available appraised values
for Equipment and Real Property Assets;
(xxi) FORECASTS: as soon as practicable and in any event no
later than forty-five (45) days after the beginning of each Fiscal
Year, a Forecast for such Fiscal Year, including without limitation (a)
a forecasted consolidated and consolidating (by Region) balance sheet
and forecasted consolidated and consolidating (by Region) statements of
income and cash flows of each Borrower and its Subsidiaries for such
Fiscal Year, together with a PRO FORMA Compliance Certificate for such
Fiscal Year and an explanation of the assumptions on which such
forecasts are based, and (b) forecasted consolidated and consolidating
(by Region) balance sheet and forecasted consolidated and consolidating
(by Region) statements of income and cash flows of each Borrower and
its Subsidiaries for each month of such Fiscal Year, together with an
explanation of the assumptions on which such forecasts are based;
(xxii) VARIANCE REPORTS: as soon as available and in any
event no later than the fifteenth (15th) day after the last day of each
calendar month, Company shall deliver to Agent a Variance Report for
the four week period ending on or prior to the last day of such
calendar month;
(xxiii) RECEIPTS AND DISBURSEMENTS FORECAST: as soon as
available and in any event no later than the fifteenth (15th) day after
the last day of each calendar month, Company shall deliver to Agent an
updated Receipts and Disbursements Forecast for the thirteen (13) week
period commencing on the first day of such calendar month;
(xxiv) WEEKLY REPORTS: as soon as available, and in any
event no later than the Friday following the applicable one week
period, a Weekly Report for such week; and
(xxv) OTHER INFORMATION: with reasonable promptness, such
other information and data with respect to any Borrower or any of its
Subsidiaries as from time to time may be reasonably requested by Agent
on its own behalf or on behalf of any Lender.
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6.2 CORPORATE EXISTENCE, ETC.
Except as permitted under subsection 7.7, each Borrower will,
and will cause each of its Subsidiaries to, at all times preserve and keep in
full force and effect its corporate existence and all rights and franchises
material to its business.
6.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
A. Except as allowed by this Agreement or excused by the
Bankruptcy Code or an applicable order of the Court, each Borrower will, and
will cause each of its Subsidiaries to, pay all Taxes, assessments and other
governmental charges imposed upon it or any of its properties or assets or in
respect of any of its income, businesses or franchises before any material
penalty accrues thereon, and all claims (including, without limitation, claims
for labor, services, materials and supplies) for sums that have become due and
payable and that by law have or may become a material Lien upon any of its
properties or assets, prior to the time when any material penalty or fine shall
be incurred with respect thereto; PROVIDED that no such charge or claim need be
paid if being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted and if such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made therefor.
B. None of the Borrowers will nor will any such Borrower
permit any of its Subsidiaries to, file or consent to the filing of any
consolidated income Tax return with any Person (other than Holdings or any of
its Subsidiaries).
6.4 MAINTENANCE OF PROPERTIES; INSURANCE; APPLICATION OF NET
INSURANCE/CONDEMNATION PROCEEDS.
A. MAINTENANCE OF PROPERTIES. Each Borrower will, and
will cause each of its Subsidiaries to, maintain or cause to be maintained in
good repair, working order and condition, ordinary wear and tear excepted, all
of their respective material properties used or useful in the business of such
Borrower and its Subsidiaries (including, without limitation, all patents,
trademarks, tradenames, copyrights, registered names, service marks, technology,
know-how and processes used in or necessary for the conduct of the business of
Company and its Subsidiaries as currently conducted that are material to the
condition (financial or otherwise), business or operations of Company and its
Subsidiaries) and from time to time will make or cause to be made all
appropriate repairs, renewals and replacements thereof such that the properties
will remain in substantially the same condition and working order, ordinary wear
and tear excepted, that exists as of the Closing Date.
B. INSURANCE. Each Borrower will maintain or cause to be
maintained, with financially sound and reputable insurers, insurance with
respect to its properties and business and the properties and businesses of its
Subsidiaries against loss or damage of the kinds customarily carried or
maintained under similar circumstances by corporations of established reputation
engaged in similar businesses. Without limiting the generality of the foregoing,
each Borrower
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will maintain or cause to be maintained (i) flood insurance with respect to each
Flood Hazard Property to the extent that such Flood Hazard Property is located
in a community that participates in the National Flood Insurance Program and
(ii) public liability insurance, third party property damage insurance and
replacement value insurance on the Collateral under such policies of insurance,
with such insurance companies, in such amounts and covering such risks as are at
all times satisfactory to Agent in its commercially reasonable judgment. Each
such policy of insurance that insures against loss or damage with respect to any
Collateral or against losses due to business interruption shall name Agent for
the benefit of Lenders as the loss payee thereunder for any covered loss in
excess of $500,000 and shall provide for at least 30 days (15 days in the event
of non-payment of premium) prior written notice to Agent of any modification or
cancellation of such policy.
C. APPLICATION OF NET INSURANCE/CONDEMNATION PROCEEDS.
Upon receipt by Agent of any Net Insurance/Condemnation Proceeds as loss payee
(i) in respect of any such business interruption insurance constituting Net
Insurance/Condemnation Proceeds, (a) Agent shall, so long as no Event of Default
shall have occurred and be continuing, deliver such Net Insurance/Condemnation
Proceeds to the applicable Borrower, and (b) if an Event of Default shall have
occurred and be continuing, Agent shall, and Borrowers hereby authorize Agent
to, apply such Net Insurance/ Condemnation Proceeds to prepay the Loans as
provided in subsection 2.4A(iii)(b), and (ii) in respect of any such insurance
against loss or damage with respect to any Collateral, (a) to the extent that
any Borrower or any of its Subsidiaries intends to use any such insurance
proceeds to repair, restore or replace the assets of such Borrower or Subsidiary
in respect of which such Net Insurance/Condemnation Proceeds were received,
Agent shall, so long as no Event of Default shall have occurred and be
continuing, (A) in the event the aggregate amount of such Net
Insurance/Condemnation Proceeds in respect of any covered loss does not exceed
$2,500,000, deliver such Net Insurance/Condemnation Proceeds to such Borrower,
and such Borrower shall, or shall cause such Subsidiary to, use such Net
Insurance/Condemnation Proceeds to effect such repair, restoration or
replacement, and (B) in the event the aggregate amount of such Net Insurance/
Condemnation Proceeds exceeds $2,500,000, hold such proceeds in a cash
collateral account and so long as any Borrower or any of its Subsidiaries
proceeds to repair, restore or replace the assets of such Borrower or such
Subsidiary in respect of which such Net Insurance/ Condemnation Proceeds were
received, Agent shall from time to time disburse to such Borrower or such
Subsidiary amounts necessary to pay the cost of such repair, restoration or
replacement after the receipt by Agent of invoices or other documentation
reasonably satisfactory to Agent describing the amount of costs so incurred;
PROVIDED, HOWEVER, that if in the reasonable good faith belief of Agent, such
Borrower or such Subsidiary is not proceeding diligently with the repair,
restoration or replacement, Agent shall, and Borrowers hereby authorize Agent
to, apply such insurance proceeds to prepay the Loans as provided in subsection
2.4A(iii)(b), and (b) if an Event of Default shall have occurred and be
continuing or to the extent that neither the applicable Borrower nor any of its
Subsidiaries intends to use any such Net Insurance/ Condemnation Proceeds to
repair, restore or replace assets of such Borrower or any of its Subsidiaries
as described above, Agent shall, and Borrowers hereby authorize Agent to, apply
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such Net Insurance/Condemnation Proceeds to prepay the Loans as provided in
subsection 2.4A(iii)(b).
6.5 INSPECTION; RECORDS; AUDITS AND APPRAISALS.
A. INSPECTION RIGHTS; RECORDS. Each Borrower shall, and
shall cause each of its Subsidiaries to, permit any authorized representatives
designated by Agent (which may include representatives of any Lender at such
Lender's expense) to visit and inspect any of the properties of such Borrower or
any of its Subsidiaries, including its and their financial and accounting
records, and to make copies and take extracts therefrom, and to discuss its and
their affairs, finances and accounts with its and their officers and independent
public accountants (PROVIDED that such Borrower may, if it so chooses, be
present at or participate in any such discussion). Each Borrower shall, and
shall cause each of its Subsidiaries to, maintain all of their financial and
accounting records in accordance with GAAP (or the equivalent of GAAP in
jurisdictions outside of the United States).
B. AUDITS AND APPRAISALS. Upon the request of Agent,
each Borrower shall, and shall cause each of its Subsidiaries to, permit any
authorized representatives designated by Agent to conduct one or more audits of
all Accounts and Inventory of Loan Parties, all upon reasonable notice and at
such reasonable times during normal business hours and as often as may be
reasonably requested.
6.6 COMPLIANCE WITH LAWS, ETC.
Each Borrower shall, and shall cause each of its Subsidiaries
to, comply with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority (including without limitation all
Environmental Laws), noncompliance with which could reasonably be expected to
cause, individually or in the aggregate at any time, a Material Adverse Effect.
6.7 ENVIRONMENTAL DISCLOSURE AND INSPECTION.
A. COMPLIANCE WITH ENVIRONMENTAL LAWS. Each Borrower
shall, and shall cause each of its Subsidiaries to, exercise all due diligence
in order to comply in all material respects and cause (i) all tenants under any
leases or occupancy agreements affecting any portion of the Facilities and (ii)
all other Persons on or occupying such property, to comply in all material
respects with all Environmental Laws.
B. ENVIRONMENTAL REVIEW AND INSPECTION. Each Borrower
agrees that Agent may, from time to time and in its reasonable discretion,
retain, at Borrower's expense, an independent professional consultant to review
any report relating to Hazardous Materials prepared by or for Borrower and, upon
a reasonable belief that any Borrower has breached any covenant or
representation with respect to environmental matters or that there has been a
material violation of Environmental Laws at any Facility or by any Borrower, to
conduct its own
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reasonable investigation of such matter at any Facility currently owned, leased,
operated or used by Borrower or any of its Subsidiaries, and Borrower agrees to
use its best efforts to obtain permission for Agent's professional consultant to
conduct its own investigation of any such matter at any Facility previously
owned, leased, operated or used by Borrower or any of its Subsidiaries. Each
Borrower hereby grants to Agent and its agents, employees, consultants and
contractors the right to enter into or onto the Facilities currently owned,
leased, operated or used by Borrower or any of its Subsidiaries upon reasonable
notice to Borrower to perform such assessments on such property as are
reasonably necessary to conduct such a review and/or investigation. Any such
investigation of any Facility shall be conducted, unless otherwise agreed to by
Borrower and Agent, during normal business hours and, to the extent reasonably
practicable, shall be conducted so as not to interfere with the ongoing
operations at any such Facility or to cause any damage or loss to any property
at such Facility. Borrowers and Agent hereby acknowledge and agree that any
report of any investigation conducted at the request of Agent pursuant to this
subsection 6.7B will be obtained and shall be used by Agent and Lenders for the
purposes of Lenders' internal credit decisions, to monitor and police the Loans
and to protect Lenders' security interests, if any, created by the Loan
Documents. Agent agrees to deliver a copy of any such report to Borrower with
the understanding that each Borrower acknowledges and agrees that (i) it will
indemnify and hold harmless Agent and each Lender from any costs, losses or
liabilities relating to such Borrower's use of or reliance on such report, (ii)
neither Agent nor any Lender makes any representation or warranty with respect
to such report, and (iii) by delivering such report to Borrower, neither Agent
nor any Lender is requiring or recommending the implementation of any
suggestions or recommendations contained in such report.
C. ENVIRONMENTAL DISCLOSURE. Each Borrower and its
Subsidiaries will deliver to Agent and Lenders:
(i) ENVIRONMENTAL AUDITS AND REPORTS. As soon as
practicable following receipt thereof, copies of all environmental
audits, investigations, analyses and reports of any kind or character,
whether prepared by personnel of Borrower or any of its Subsidiaries or
by independent consultants, governmental authorities or any other
Persons, with respect to significant environmental matters at any
Facility which, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect or with respect to any
Environmental Claims which, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect;
(ii) NOTICE OF CERTAIN RELEASES, REMEDIAL ACTIONS, ETC.
Each Borrower shall promptly advise Agent and Lenders in writing and in
reasonable detail of (i) any Release required to be reported to any
Governmental Authority under any applicable Environmental Laws, (ii)
any and all written communications with respect to any Environmental
Claims made to or on such Borrower or any of its Subsidiaries or
Affiliates that could reasonably be expected to give rise to a Material
Adverse Effect or with respect to any Release required to be reported
to any Governmental Authority,
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(iii) any remedial action taken by such Borrower or any other Person in
response to (x) any Hazardous Materials on, under or about any
Facility, the existence of which could reasonably be expected to give
rise to an Environmental Claim having a Material Adverse Effect, or (y)
any Environmental Claim made to or on such Borrower or any of its
Subsidiaries or Affiliates that could have a Material Adverse Effect,
(iv) such Borrower's discovery of any occurrence or condition on any
real property adjoining or in the vicinity of any Facility that could
cause such Facility or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or use
thereof under any Environmental Laws, and (v) any request for
information from any Governmental Authority that suggests such agency
is investigating whether such Borrower or any of its Subsidiaries may
be potentially responsible for a Release, except for in each case those
matters set forth on SCHEDULE 5.13.
(iii) NOTICE OF CERTAIN PROPOSED ACTIONS HAVING
ENVIRONMENTAL IMPACT. Each Borrower shall promptly notify Agent and
Lenders of (i) any proposed acquisition of stock, assets, or property
by Borrower or any of its Subsidiaries that could reasonably be
expected to expose Borrower or any of its Subsidiaries to, or result
in, Environmental Claims that could reasonably be expected to have a
Material Adverse Effect or that could reasonably be expected to have a
material adverse effect on any Governmental Authorization then held by
Borrower or any of its Subsidiaries and (ii) any proposed action to be
taken by Borrower or any of its Subsidiaries to commence manufacturing,
industrial or other operations (beyond those presently undertaken) that
could reasonably be expected to subject Borrower or any of its
Subsidiaries to material additional obligations or requirements under
Environmental Laws.
(iv) OTHER INFORMATION. Each Borrower shall, at its own
expense, provide copies of such documents or information as Agent
may reasonably request in relation to any matters disclosed pursuant
to this subsection 6.7.
D. BORROWER'S REMEDIAL ACTION REGARDING HAZARDOUS MATERIALS.
(i) REMEDIAL ACTIONS RELATING TO HAZARDOUS MATERIALS
ACTIVITIES. Each Borrower shall promptly take, and shall cause each of
its Subsidiaries promptly to take, any and all remedial action in
connection with the presence, storage, use, disposal, transportation or
Release on, under or about any Facility in order to comply in all
material respects with all applicable Environmental Laws and
Governmental Authorizations. In the event any Borrower or any of its
Subsidiaries undertakes any remedial action with respect to any
Hazardous Materials on, under or about any Facility, Borrower or such
Subsidiary shall conduct and complete such remedial action in
compliance in all material respects with all applicable Environmental
Laws, and in accordance with the applicable policies, orders and
directives of all Governmental Authorities with jurisdiction except
when, and only to the extent that, Borrower's or such Subsidiary's
liability for such presence, storage, use, disposal, transportation or
discharge
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of any Hazardous Materials is being contested in good faith by Borrower
or such Subsidiary.
(ii) ACTIONS WITH RESPECT TO ENVIRONMENTAL CLAIMS AND
VIOLATIONS OF ENVIRONMENTAL LAWS. Each Borrower shall promptly take,
and shall cause each of its Subsidiaries promptly to take, any and all
actions necessary to (i) cure any violation of applicable Environmental
Laws by Borrower or its Subsidiaries that could reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect
(provided Borrower may reasonably contest alleged violations so long as
the delay in the cure by reason of such contest could not reasonably be
expected to have a Material Adverse Effect) and (ii) make an
appropriate response to any Environmental Claim made to or on Borrower
or any of its Subsidiaries and discharge any obligations it may have to
any Person thereunder where failure to do so could reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect.
6.8 [INTENTIONALLY OMITTED]
6.9 [INTENTIONALLY OMITTED]
6.10 [INTENTIONALLY OMITTED]
6.11 YEAR 2000 COVENANT.
Each Borrower has reviewed, or will expeditiously review, its
operations and those of its Subsidiaries with a view to assessing whether its
businesses, or the businesses of any of its Subsidiaries, will be vulnerable to
a Year 2000 Problem or to the effects of a Year 2000 Problem suffered by any of
Company's or any of its Subsidiaries' major commercial counter-parties. Each
Borrower shall take all actions necessary and commit adequate resources to
assure that its computer-based and other systems (and those of all Subsidiaries)
are able to effectively process data, including dates before, on and after
January 1, 2000, without experiencing any Year 2000 Problem that could cause a
Material Adverse Effect. At the request of Agent, each Borrower will provide
Agent with assurances and substantiations (including without limitation the
results of internal or external audit reports prepared in the ordinary course of
business) reasonably acceptable to Agent as to the capability of each Borrower
and its Subsidiaries to conduct its and their businesses and operations before,
on and after January 1, 2000 without experiencing a Year 2000 Problem causing a
Material Adverse Effect. Each Borrower represents and warrants that it has a
reasonable basis to believe that no Year 2000 Problem will cause a Material
Adverse Effect.
6.12 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ EQUITY CONTRIBUTION; INVESTMENT AGREEMENT.
None of the parties to the Investment Agreement shall enter
into any agreement which purports to materially amend, supplement or otherwise
modify the Investment Agreement without the written consent of Requisite
Lenders, as contemplated under the Investment
108
Agreement. In the event that Company has not collected the full amount of the
Contributed Accounts on or before November 25, 1999, Holdings shall deliver the
Notice of Investment Date and Amount (as defined in the Investment Agreement) to
Stonington Financing II LLC within the times specified in the Investment
Agreement and Stonington Financing II LLC shall invest in Holdings an amount in
Cash of up to $5,000,000 (the "INVESTMENT AMOUNT") within the times specified in
the Investment Agreement, but in any event no later than December 31, 1999, in
each case pursuant to the Investment Agreement; PROVIDED, HOWEVER, that in the
event that Company, through Holdings, exchanges uncollected or deficient
Contributed Accounts for such Investment Amount, the face value of such
uncollected or deficient Contributed Accounts so exchanged shall not exceed the
Investment Amount. Upon receipt of the Investment Amount, Holdings shall
immediately apply such Investment Amount to its guaranty of the repayment of the
obligations under the Existing Credit Agreement.
6.13 CASH MAINTENANCE.
Company shall, and shall cause each of its Domestic
Subsidiaries to, (x) deposit, transfer and otherwise maintain all Cash in
Deposit Accounts established and maintained with Lenders and (y) maintain all
Cash Equivalents with Lenders. Any Cash of Company or any of its Domestic
Subsidiaries not on deposit or otherwise maintained in a Deposit Account
established and maintained with a Lender and any Cash Equivalents not maintained
with a Lender, in each case as of the Closing Date, shall be transferred by
Company or such Subsidiariy to a Deposit Account established and maintained with
a Lender or to a Lender, as the case may be, no later than thirty (30) days
after the Closing Date. In the event that a Lender is replaced pursuant to
subsection 2.8 or a financial institution is no longer a Lender under this
Agreement, then all Cash and Cash Equivalents maintained with such former Lender
shall be transferred to a Lender no later than thirty (30) days after such
former Lender is replaced or is no longer a Lender, as the case may be.
6.14 BORROWING BASE AND INVENTORY REPORTS.
(i) BORROWING BASE CERTIFICATES. Company shall deliver
Borrowing Base Certificates pursuant to, and in accordance with,
subsection 6.1(xx). Promptly following receipt of each such Borrowing
Base Certificate, Agent shall determine or, as the case may be,
redetermine the Borrowing Base in accordance with the definition
thereof, using the information contained in such Borrowing Base
Certificate, and shall notify Borrowers of the Borrowing Base so
determined and so redetermined. Each such Borrowing Base so determined
or redetermined by Agent shall remain in effect until notice of a
redetermined Borrowing Base shall have been given by Agent in
accordance with the provisions of this subsection 6.14.
(ii) INVENTORY REPORTS.
(a) Borrowers shall at all times hereafter
maintain a perpetual inventory, keeping correct and accurate records
itemizing and describing the kind, type,
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quality and quantity of Inventory, Borrowers' cost therefor and daily
withdrawals therefrom and additions thereto, all of which records shall
be available during Borrower's usual business hours upon reasonable
prior request of Agent.
(b) [intentionally omitted]
(c) Upon Agent's request, at any time and from
time to time, Borrowers shall, at Borrowers' sole cost and expense,
execute and deliver to Agent written reports or appraisals of the
Inventory listing all items and categories thereof, describing the
condition of same and setting forth the value thereof (the lower of
cost or market value of the Inventory), in such form as is reasonably
satisfactory to Agent. Agent, in its reasonable discretion, and at
Borrowers' expense, may review or have an outside consultant selected
by them review, upon reasonable notice and at reasonable times, the
quality and amount of inventory.
(iii) ACCOUNTS
(a) Borrowers shall immediately upon obtaining
knowledge thereof report to Agent all reclaimed, repossessed or
returned goods, account debtor claims and any other matter affecting
the value, enforceability or collectability of Accounts.
(b) At Agent's request, any goods reclaimed or
repossessed by or returned to Borrowers will be set aside, marked with
Agent's name and held by Borrower for Agent's account and subject to
Agent's security interest.
(c) Borrowers shall pay all sales, excise or
similar taxes relating to Accounts when due.
6.15 FURTHER ASSURANCES.
A. ASSURANCES. Without expense or cost to Agent or Lenders, each
Borrower shall from time to time hereafter execute, acknowledge, file, record,
do and deliver all and any further acts, deeds, conveyances, mortgages, deeds of
trust, deeds to secure debt, security agreements, hypothecations, pledges,
charges, assignments, financing statements and continuations thereof, notices of
assignment, transfers, certificates, assurances and other instruments as Agent
may from time to time reasonably request and that do not involve a material
expansion of Borrowers' obligations or liabilities hereunder in order to carry
out more effectively the purposes of this Agreement, the other Loan Documents,
the Interim Borrowing Order or the Final Borrowing Order, including to subject
any Collateral, intended to now or hereafter be covered, to the Liens created by
the Collateral Documents, to perfect and maintain such Liens, and to assure,
convey, assign, transfer and confirm unto Agent the property and rights thereby
conveyed and assigned or intended to now or hereafter be conveyed or assigned or
that any Borrower may be or may hereafter become bound to convey or to assign to
Agent or for carrying out the intention of or facilitating the performance of
the terms of this Agreement, any other Loan Documents, the
110
Interim Borrowing Order or the Final Borrowing Order, registering or recording
this Agreement or any other Loan Document. Without limiting the generality of
the foregoing, Borrowers shall deliver to Agent, promptly upon receipt thereof,
all instruments received by Borrowers after the Closing Date and take all
actions and execute all documents necessary or reasonably requested by Agent to
perfect Agent's Liens in any such instrument or any other Investment acquired by
any Borrower.
B. FILING AND RECORDING OBLIGATIONS. Except as excused by the
Bankruptcy Code or applicable orders of the Court, each Borrower shall jointly
and severally pay all filing, registration and recording fees and all expenses
incident to the execution and acknowledgement of any Mortgage or other Loan
Document, including any instrument of further assurance described in subsection
6.15A, and shall pay all mortgage recording taxes, transfer taxes, general
intangibles taxes and governmental stamp and other taxes, duties, imposts,
assessments and charges arising out of or in connection with the execution,
delivery, filing, recording or registration of any Mortgage or other Loan
Document, including any instrument of further assurance described in subsection
6.15A, or by reason of its interest in, or measured by amounts payable under,
the Notes, the Mortgages or any other Loan Document, including any instrument of
further assurance described in subsection 6.15A, (excluding income, franchise
and doing business taxes), and shall pay all stamp taxes and other taxes
required to be paid on the Notes or any other Loan Document; PROVIDED, HOWEVER,
that such Borrower may contest in good faith and through appropriate
proceedings, any such taxes, duties, imposts, assessments and charges; PROVIDED
FURTHER, HOWEVER, that such Borrower shall pay all such taxes, duties, imposts
and charges when due to the appropriate taxing authority during the pendency of
any such proceedings if required to do so to stay enforcement thereof. If any
Borrower fails to make any of the payments described in the preceding sentence
within ten (10) days after notice thereof from Agent (or such shorter period as
is necessary to protect the loss of or diminution in value of any Collateral by
reason of tax foreclosure or otherwise, as determined by Agent) accompanied by
documentation verifying the nature and amount of such payments, Agent may (but
shall not be obligated to) pay the amount due and Borrowers shall jointly and
severally reimburse all amounts in accordance with the terms hereof.
C. COSTS OF DEFENDING AND UPHOLDING THE LIEN. Agent may, upon at
least five (5) days' prior notice to Borrowers, (i) appear in and defend any
action or proceeding, in the name and on behalf of Agent, Lenders or any
Borrower, in which Agent or any Lender is named or which Agent in its sole
discretion determines is reasonably likely to materially adversely affect any
Mortgaged Property, any other Collateral, any Mortgage, the Lien thereof or any
other Loan Document and (ii) institute any action or proceeding which Agent
reasonably determines should be instituted to protect the interest or rights of
Agent and Lenders in any Mortgaged Property or other Collateral or under this
Agreement or any other Loan Document. Borrowers, jointly and severally, agree
that all reasonable costs and expenses expended or otherwise incurred pursuant
to this subsection (including reasonable attorneys' fees and disbursements) by
Agent shall be paid pursuant to subsection 10.2 hereof.
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6.16 WAIVER OF CLAIMS TO SURCHARGE.
In accordance with the Borrowing Orders, each Borrower hereby
waives, and shall cause each of its Subsidiaries to waive, any and all claims to
any surcharge of the security interests of Agent in the Collateral under section
506(c) of the Bankruptcy Code.
6.17 REPAYMENT OF CERTAIN LOANS BY ▇▇▇▇ JAPAN.
Pursuant to the terms of that certain Limited Waiver dated as
of July 28, 1999 by and among Borrowers, Prepetition Lenders and Bankers Trust
Company (the "▇▇▇▇ JAPAN WAIVER"), ▇▇▇▇ Japan shall repay Prepetition Lenders
the full outstanding principal amount of loans borrowed under the Existing
Credit Agreement pursuant to such ▇▇▇▇ Japan Waiver, such repayment to be made
no later than August 6, 1999.
SECTION 7. BORROWERS' NEGATIVE COVENANTS
Each Borrower covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior written
consent, such Borrower shall perform, and shall cause each of its Subsidiaries
to perform, all covenants in this Section 7.
7.1 INDEBTEDNESS.
Each Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) Borrowers may become and remain liable with respect
to the Obligations;
(ii) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations permitted by subsection
7.4;
(iii) (x) Debtor Entities may remain liable with respect to
Prepetition Indebtedness, in each case as set forth on the Schedule of
Assets and Liabilities as filed with the Court (as the same may be
amended in accordance with the Bankruptcy Rules), and (y) ▇▇▇▇ UK, ▇▇▇▇
France and ▇▇▇▇ Japan may remain liable with respect to Indebtedness
described on SCHEDULE 7.1 annexed hereto, in each case without giving
effect to any extensions, renewals, refinancings, supplemental
borrowings or other incurrences thereof;
(iv) Debtor Entities may become and remain liable with
respect to Indebtedness incurred in connection with the rejection of
unexpired leases and executory
112
contracts in the Chapter 11 Cases; provided that the obligations of
Company or any of its Subsidiaries in respect of such Indebtedness
shall be determined by the Court order entered at the time of such
rejection, to be a general, unsecured, non-priority claim; and
(v) Company and its Subsidiaries may become and remain
liable with respect to Capital Leases and other Indebtedness, in each
case not in existence on the Petition Date, in an aggregate principal
amount not exceed $3,000,000 at any time outstanding; and
(vi) during the thirty (30) day period immediately
following the Closing Date only, Company may become and remain liable
with respect to intercompany Indebtedness to any of ▇▇▇▇ UK, ▇▇▇▇
France and ▇▇▇▇ Japan in an aggregate principal amount not to exceed
$15,000,000 outstanding at any time during such period; PROVIDED that
(a) Agent, in its sole discretion, may extend such thirty (30) day
period; (b) all such intercompany Indebtedness owed by any of ▇▇▇▇ UK,
▇▇▇▇ France or ▇▇▇▇ Japan to Company shall be reduced dollar for dollar
by any Foreign Bridge Loans made to ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan,
respectively, on and after the applicable Foreign Bridge Facility
Availability Date; (c) to the extent not already reduced to zero
pursuant to the immediately preceding clause (b), any intercompany
Indebtedness owed by any of ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan to
Company after such 30 day period (or such longer period if extended by
Agent) shall be immediately repaid by such Person to Company so that
after such period there exists no intercompany Indebtedness; and (d)
all such intercompany Indebtedness shall be evidenced by promissory
notes that are pledged to Agent pursuant to the terms of the applicable
Collateral Documents.
7.2 LIENS AND RELATED MATTERS.
A. PROHIBITION ON LIENS. No Borrower shall, nor shall
any Borrower permit any of its Subsidiaries to, directly or indirectly, create,
incur, assume or permit to exist any Lien on or with respect to any property or
asset of any kind (including any document or instrument in respect of goods or
accounts receivable) of such Borrower or any of its Subsidiaries, whether now
owned or hereafter acquired, or any income or profits therefrom, or file or
permit the filing of, or permit to remain in effect, any financing statement or
other similar notice of any Lien with respect to any such property, asset,
income or profits under the Uniform Commercial Code of any State or under any
similar recording or notice statute, or apply to the Court for the authority to
do any of the foregoing, except:
(i) Permitted Encumbrances;
(ii) Liens created in favor of Agent (for the benefit of
Lenders) (a) pursuant to the applicable Collateral Documents or (b)
authorized by the Interim Borrowing Order or the Final Borrowing Order;
113
(iii) Liens granted in favor of Prepetition Lenders
pursuant to the Existing Credit Agreement and the collateral documents
entered into in connection therewith and Liens granted pursuant to the
order approving the Adequate Protection Stipulation; and
(iv) Liens existing as of the Petition Date described in
Schedule 7.2 annexed hereto.
B. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO
BORROWERS OR OTHER SUBSIDIARIES. Except as provided herein, no Borrower will,
nor will any Borrower permit any of its Subsidiaries to, create or otherwise
cause or suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any such Subsidiary to (i) pay
dividends or make any other distributions on any of such Subsidiary's capital
stock owned by such Borrower or any other Subsidiary of such Borrower, (ii)
repay or prepay any Indebtedness owed by such Subsidiary to such Borrower or any
other Subsidiary of such Borrower, (iii) make loans or advances to such Borrower
or any other Subsidiary of such Borrower, or (iv) transfer any of its property
or assets to such Borrower or any other Subsidiary of such Borrower; provided
that the mortgage Indebtedness of each of ▇▇▇▇ Realty and Sayama Sub permitted
under subsection 7.1(vii) may create or otherwise cause or suffer to exist or
become effective encumbrances or restrictions on such Subsidiary's ability to
pay dividends on its capital stock.
7.3 INVESTMENTS; JOINT VENTURES.
No Borrower shall, nor shall any Borrower permit any of its
Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, including any Joint Venture, except:
(i) Company and its Subsidiaries may make and own
Investments in Cash Equivalents;
(ii) Company and its Subsidiaries may continue to own the
Investments owned by them and described in SCHEDULE 7.3 annexed hereto;
(iii) Company and its Subsidiaries may (x) continue to own
the Investments owned by them as of the Closing Date in their
respective Foreign Subsidiaries and (y) make intercompany loans to the
extent permitted under subsection 7.1(vi);
(iv) Company and its Subsidiaries may make and maintain
investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and
suppliers, in each case arising in the ordinary course of business; and
(v) Company and its Subsidiaries may make Consolidated
Capital Expenditures permitted by subsection 7.8.
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7.4 CONTINGENT OBLIGATIONS.
No Borrower shall nor shall any Borrower permit any of its
Subsidiaries to, directly or indirectly, create or become or remain liable with
respect to any Contingent Obligation, except:
(i) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations arising under their
respective Guaranties;
(ii) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations in respect of Letters of
Credit;
(iii) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations in respect of customary
indemnification and purchase price adjustment obligations incurred in
connection with Asset Sales or other sales of Assets; and
(iv) Company and its Subsidiaries, as applicable, may
become and remain liable with respect to Contingent Obligations in
existence on the Petition Date as described on SCHEDULE 7.4 annexed
hereto;
(viii) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations under Currency Agreements
entered into in the ordinary course of business;
(ix) Company may become and remain liable with respect to
Contingent Obligations in respect of performance guarantees entered
into in favor of a customer of ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan, in
the ordinary course of business and consistent with past practice,
whereby Company guarantees the performance obligations of ▇▇▇▇ UK, ▇▇▇▇
France or ▇▇▇▇ Japan in connection with the manufacture and delivery of
any printing press and/or other machinery or equipment, including
without limitation the repayment of any downpayment or other customer
advance amount; and
(x) Company may become and remain liable with respect to
Contingent Obligations in respect of performance bonds in favor of a
customer (or designee of such customer) of ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇
Japan, in the ordinary course of business and consistent with past
practice, in an aggregate amount not to exceed $10,000,000.
7.5 RESTRICTED JUNIOR PAYMENTS; PAYMENTS OF PREPETITION INDEBTEDNESS.
No Borrower shall nor shall any Borrower permit any of its
Subsidiaries to, directly or indirectly, (1) declare, order, pay, make or set
apart any sum for any Restricted Junior Payment, (2) make any payment or
prepayment on or redemption or acquisition for value (including, without
limitation, by way of depositing with the trustee with respect thereto money
115
or securities before due for the purpose of paying when due) of any Prepetition
Indebtedness or other pre-Petition Date obligations of such Person, (3) pay any
interest on any Prepetition Indebtedness of such Person (whether in cash, in
kind securities or otherwise), or (4) make any payment or create or permit any
Lien pursuant to any provision of the Bankruptcy Code, or apply to the Court for
the authority to do any of the foregoing; PROVIDED that Borrowers may make:
(i) Restricted Junior Payments in the form of certain
Purchased Loans and Purchased Receivables (as each such term is defined
in the Investment Agreement) in exchange for the Investment Amount (as
defined in and determined in accordance with the Investment Agreement);
PROVIDED that such Investment Amount shall be used to repay the
Prepetition Lenders' Claims;
(ii) payments to Bankers Trust Company, as administrative
agent under the Existing Credit Agreement, for distribution to the
Prepetition Lenders in accordance to each such Prepetition Lender's pro
rata share of the revolving loan commitments thereunder, in the
following manner and amounts: (a) monthly Cash payments of interest on
the loans outstanding under the Existing Credit Agreement and (b) all
fees, expenses, disbursements and other costs or liabilities of any
financial advisors, accountants, auditors, appraisers, attorneys and
other professionals retained by Prepetition Lenders (including, without
limitation, reasonable time-charges of in-house counsel); PROVIDED that
such loans outstanding under the Existing Credit Agreement shall bear
interest at the applicable non-default rate of interest and such
interest shall be calculated in accordance with subsection 2.2 of the
Existing Credit Agreement; PROVIDED FURTHER that in consideration of
such monthly Cash payments, Prepetition Lenders shall separately agree
to waive any and all claims for default interest under the Existing
Credit Agreement;
(iii) payments permitted under subsection 2.10;
(iv) payments with respect to any post-Petition Date
expense incurred in the ordinary course of business, including usual
and customary post-Petition Date employee salaries and benefits;
PROVIDED that Borrower shall not implement or make any payments in
respect of bonus, retention, severance or similar arrangements with
respect to any of their respective officers, employees, directors or
advisors, except pursuant to motions not objected to by Agent;
(v) [intentionally omitted];
(vi) payments of Prepetition Indebtedness or other
post-Petition Date Obligations pursuant to First Day Motions and other
motions, applications or stipulations not objected to by Agent; and
(vii) as specifically permitted by Agent.
116
7.6 FINANCIAL COVENANTS.
A. MINIMUM CONSOLIDATED ADJUSTED EBITDA. Company shall
not permit Consolidated Adjusted EBITDA for any of the one, two, three, four,
five or six month periods ending during any of the periods set forth below to be
less than the correlative amount indicated:
MINIMUM CONSOLIDATED
PERIOD ADJUSTED EBITDA
--------------------- --------------------
August 1, 1999 through August 31, 1999 $(5,000,000)
August 1, 1999 through September 30, 1999 $(2,000,000)
August 1, 1999 through October 31, 1999 $0
August 1, 1999 through November 30, 1999 $3,000,000
August 1, 1999 through December 31, 1999 $6,000,000
B. MINIMUM CONSOLIDATED TOTAL SALES. Company shall not
permit Consolidated Total Sales for any of the one, two, three, four, five or
six month periods ending during any of the periods set forth below to be less
than the correlative amount indicated:
MINIMUM CONSOLIDATED
PERIOD TOTAL SALES
--------------------- --------------------
July 1, 1999 through August 31, 1999 $ 55,000,000
July 1, 1999 through September 30, 1999 $100,000,000
July 1, 1999 through October 31, 1999 $150,000,000
July 1, 1999 through November 30, 1999 $200,000,000
July 1, 1999 through December 31, 1999 $250,000,000
7.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS.
No Borrower shall nor shall any Borrower permit any of its
Subsidiaries to:
(i) alter the corporate, capital or legal structure of
such Borrower or any of its Subsidiaries, or enter into any transaction
of merger or consolidation, or liquidate, wind-up or dissolve itself
(or suffer any liquidation or dissolution); or
(ii) make any Asset Sales or otherwise convey, sell, lease
or sub-lease (as lessor or sub-lessor), transfer or otherwise dispose
of, in one transaction or a series of transactions, all or any part of
its business, property or fixed assets (including without limitation
any Accounts or other accounts receivables), whether now owned or
hereafter acquired; or
117
(iii) acquire by purchase or otherwise all or substantially
all the business, property or fixed assets of, or stock or other
evidence of beneficial ownership of, any Person or any division or line
of business of any Person; or
(iv) or acquire by purchase or otherwise any Inventory
(other than as required by executed contracts or as required by
Company's replacement parts operations);
PROVIDED that Company and its Subsidiaries may make Asset Sales of:
(a) the Real Property Assets located in Westmont,
Illinois (with respect to the headquarters of Company only) and in
▇▇▇▇▇▇▇, Pennsylvania; and
(b) other assets having a fair market value of less than
$5,000,000, whether in any single transaction or related series of
transactions or in the aggregate; PROVIDED, HOWEVER, that:
(x) with respect to any Asset Sale to be made by
Company or any of its Subsidiaries in excess of such
$5,000,000 amount, any such Asset Sale of assets having a fair
market value in excess of $100,000, whether in any single
transaction or related series of transactions, shall require
the prior written approval of Requisite Lenders;
(y) the consideration received for all such
assets shall be in Cash in an amount at least equal to the
fair market value thereof; and
(z) the Net Asset Sale Proceeds of any Asset
Sales, to the extent such proceeds exceed $250,000, whether in
any single transaction or related series of transactions,
shall be applied as mandatory prepayments as required by
subsection 2.4A(iii)(a) in an amount equal to such Net Asset
Sale Proceeds.
7.8 CONSOLIDATED CAPITAL EXPENDITURES.
No Borrower shall nor shall any Borrower permit any of its
Subsidiaries to make or incur Consolidated Capital Expenditures, in any period
indicated below, in an aggregate amount in excess of the corresponding amount
set forth below opposite such period:
MAXIMUM CONSOLIDATED
PERIOD CAPITAL EXPENDITURES
--------------------- --------------------
July 1, 1999 through August 31, 1999 $2,700,000
July 1, 1999 through September 30, 1999 $3,700,000
July 1, 1999 through October 31, 1999 $4,250,000
July 1, 1999 through November 30, 1999 $4,500,000
July 1, 1999 through December 31, 1999 $4,700,000
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7.9 SALES AND LEASE-BACKS.
No Borrower shall nor shall any Borrower permit any of its
Subsidiaries to, directly or indirectly, become or remain liable as lessee or as
a guarantor or other surety with respect to any lease, whether an Operating
Lease or a Capital Lease, of any property (whether real, personal or mixed),
whether now owned or hereafter acquired, (i) which such Borrower or any of its
Subsidiaries has sold or transferred or is to sell or transfer to any other
Person (other than such Borrower or any of its Subsidiaries) or (ii) which such
Borrower or any of its Subsidiaries intends to use for substantially the same
purpose as any other property which has been or is to be sold or transferred by
such Borrower or any of its Subsidiaries to any Person (other than such Borrower
or any of its Subsidiaries) in connection with such lease.
7.10 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
No Borrower shall nor shall any Borrower permit any of its
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with any holder of 5%
or more of any class of equity Securities of Holdings or Company or with any
Affiliate of Holdings or Company or of any such holder, on terms that are less
favorable to Holdings or Company or that Subsidiary, as the case may be, than
those that might be obtained at the time from Persons who are not such a holder
or Affiliate; PROVIDED that the foregoing restriction shall not apply to (i) any
transaction between Company and any of its wholly-owned Subsidiaries or between
any of its wholly-owned Subsidiaries, (ii) reasonable and customary fees paid to
members of the Boards of Directors of Company and its Subsidiaries, (iii) fees
paid to Stonington Partners or any of its Affiliates pursuant to this Agreement
and (iv) arms-length transactions in the ordinary course of business with other
companies managed by Stonington Partners.
7.11 DISPOSAL OF SUBSIDIARY STOCK.
Except pursuant to the Collateral Documents, no Borrower
shall:
(i) directly or indirectly sell, assign, pledge or
otherwise encumber or dispose of any shares of capital stock or other
equity Securities of any of its Subsidiaries, except to qualify
directors if required by applicable law; or
(ii) permit any of its Subsidiaries directly or indirectly
to sell, assign, pledge or otherwise encumber or dispose of any shares
of capital stock or other equity Securities of any of its Subsidiaries
(including such Subsidiary), except to Company, another Subsidiary of
Company, or to qualify directors if required by applicable law.
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7.12 CONDUCT OF BUSINESS.
From and after the Closing Date, no Borrower shall, nor shall
any Borrower permit any of its Subsidiaries to, engage in any business other
than (i) the businesses engaged in by such Borrower and its Subsidiaries on the
Closing Date and similar or related businesses and (ii) such other lines of
business as may be consented to by Requisite Lenders.
7.13 [INTENTIONALLY OMITTED]
7.14 FISCAL YEAR.
None of Company nor any of its Subsidiaries shall change its
Fiscal Year-end from December 31 without giving 60 days notice to Agent and
Lenders of such change.
7.15 FOREIGN UNFUNDED PENSION PLANS.
No Borrower shall, nor shall any Borrower permit any of its
Subsidiaries to, adopt or amend any Foreign Unfunded Pension Plan if such
adoption or amendment could reasonably be expected to result in a Material
Adverse Effect.
7.16 CHAPTER 11 CLAIMS.
Without limiting the provisions of subsection 7.2 hereof, no
Borrower shall, nor shall any Borrower permit any of its Subsidiaries to, (i)
incur, create, assume, suffer or permit any claim or Lien or encumbrance against
it or any of its property or assets in any Chapter 11 Case (other than the
claims specifically referred to in subsection 2.10 and the Borrowing Orders, but
only to the extent therein described) to be PARI PASSU with or senior to the
claims of Agent and Lenders against any Borrower in respect of the DIP
Obligations hereunder, or apply to the Court for authority to do so, except to
the extent permitted herein, or (ii) incur or permit any other administrative
expense claim (other than those specifically referred to in subsection 2.10)
having any priority over, or being PARI PASSU with, the administrative expense
priority of the DIP Obligations in respect of any of the Chapter 11 Cases.
7.17 AGREEMENTS.
Borrowers shall not, and shall not permit any of their
Subsidiaries to, assume, reject, cancel, terminate, breach or modify (whether
pursuant to Section 365 of the Bankruptcy Code, or any other applicable law) any
Material Contract.
7.18 REMEDIES OF AGENT.
Borrowers shall not, and shall not permit any of their
Subsidiaries to, seek to obtain any stay on the exercise of the remedies
available to Agent under this Agreement.
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SECTION 8. EVENTS OF DEFAULT
Notwithstanding the provisions of Section 362 of the
Bankruptcy Code and without application or motion to, or order from, the Court,
the occurrence of any one or more of the following conditions or events,
regardless of the reason therefore, shall constitute an "EVENT OF DEFAULT"
hereunder:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by any Borrower to pay any installment of principal of
any Loan, whether at stated maturity, by acceleration, by notice of voluntary
prepayment, by mandatory prepayment or otherwise; failure by any Borrower to pay
when due any amount payable to an Issuing Lender in reimbursement of any drawing
under a Letter of Credit; or failure by any Borrower within five (5) days after
the date due to pay interest on any Loan or any fee or any other amount due
under this Agreement; or
8.2 DEFAULT IN OTHER AGREEMENTS.
Holdings or any Borrower shall default in the performance of
or compliance with any term contained in the Agreement or the other Loan
Documents other than those referred to in subsections 8.1, 8.3 or 8.4 and such
default shall not have been remedied or waived within thirty (30) days after
receipt by Holding or such Borrower, as the case may be, of notice from Agent of
any such default; or
8.3 BREACH OF CERTAIN COVENANTS.
Failure of any Borrower to perform or comply with any term or
condition contained in subsection 2.5 or 6.2 or Section 7 of this Agreement; or
8.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement
made by any Borrower or any of its Subsidiaries in any Loan Document or in any
statement or certificate at any time given by any Borrower or any of its
Subsidiaries in writing pursuant hereto or thereto or in connection herewith or
therewith shall be false in any material respect on the date as of which made;
or
8.5 [INTENTIONALLY OMITTED].
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of any Borrower (other than
Company) or any of its Material Subsidiaries in an involuntary case
under the Bankruptcy Code which decree or order is not stayed; or (ii)
an involuntary case shall be commenced against any Borrower (other than
Company)
121
or any of its Material Subsidiaries under the Bankruptcy Code; or a
decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian
or other officer having similar powers over any Borrower (other than
Company) or any of its Material Subsidiaries, or over all or a
substantial part of its property, shall have been entered; or there
shall have occurred the involuntary appointment of an interim receiver,
trustee or other custodian of any Borrower (other than Company) or any
of its Material Subsidiaries for all or a substantial part of its
property; or a warrant of attachment, execution or similar process
shall have been issued against any substantial part of the property of
any Borrower (other than Company) or any of its Material Subsidiaries,
and any such event described in this clause (ii) shall continue for 60
days unless dismissed, bonded or discharged; or (iii) with respect to
▇▇▇▇ France: (a) ▇▇▇▇ France ceases or threatens or announces an
intention to cease or suspend payment of its debts whether pursuant to
Article 3 of law No. 85-89 dated 25 January 1985 or otherwise, (b) ▇▇▇▇
France becomes insolvent or has any moratorium declared in respect of
any of its indebtedness, (c) ▇▇▇▇ France applies for the appointment of
a CONCILIATOR pursuant to law ▇▇. ▇▇-▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇, (▇) ▇▇▇▇
▇▇▇▇▇▇ applies for the appointment of a MANDATAIRE ad hoc, (e) ▇▇▇▇
France becomes the object of a judgment declaring its REDRESSMENT
JUDICIARE (after notice to terminate addressed to the ADMINISTRATEUR
remaining without response for one month or upon the ADMINISTRATEUR
electing to terminate) or LIQUIDATION JUDICIAIRE pursuant to law No.
85-998 of 25 January 1985 or subject to a plan for the transfer of the
whole or part of its business, or (f) an administrator, receiver,
liquidator or similar officer is appointed with respect to ▇▇▇▇ France
or its assets or any petition or proceedings for any such appointment
is brought or a resolution for such appointment is passed; or
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Any Borrower (other than Company) or any of its Material
Subsidiaries (other than ▇▇▇▇ Realty) shall have an order for relief
entered with respect to it or commence a voluntary case under the
Bankruptcy Code, or shall consent to the entry of an order for relief
in an involuntary case, or to the conversion of an involuntary case to
a voluntary case, under any such law, or shall consent to the
appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; or any
Borrower (other than Company) or any of its Material Subsidiaries
(other than ▇▇▇▇ Realty) shall make any assignment for the benefit of
creditors; or (ii) any Borrower (other than Company) or any of its
Material Subsidiaries (other than ▇▇▇▇ Realty) shall be unable, or
shall fail generally, or shall admit in writing its inability, to pay
its debts as such debts become due; or the Board of Directors of any
Borrower (other than Company) or any of its Material Subsidiaries
(other than ▇▇▇▇ Realty) (or any committee thereof) shall adopt any
resolution or otherwise authorize any action to approve any of the
actions referred to in clause (i) above or this clause (ii); or
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8.8 BANKRUPTCY PROCEEDING EVENTS
With respect to the Chapter 11 Cases, (i) the entry of an
order, which has not been withdrawn, dismissed or reversed:
(a) authorizing any Debtor Entity in any of the Chapter
11 Cases to obtain additional financing under Section 364(c) or (d) of
the Bankruptcy Code, or authorizing any Person to recover from any
portions of the Collateral any costs or expenses of preserving or
disposing of such Collateral under Section 506(c) of the Bankruptcy
Code, or (except as provided in the Interim Borrowing Order or the
Final Borrowing Order) authorizing the use of Cash collateral without
Requisite Lenders prior written consent under Section 363(c) of the
Bankruptcy Code; or
(b) appointing an interim or permanent trustee in any of
the Chapter 11 Cases or the appointment of an examiner in any of the
Chapter 11 Cases; or
(c) without the prior written consent of Lenders,
dismissing of any of the Chapter 11 Cases, or converting of any of the
Chapter 11 Cases to a case under Chapter 7 of the Bankruptcy Code; or
(d) the entry of an order granting relief from or
modifying the automatic stay of Section 362 of the Bankruptcy Code with
respect to assets having a value in excess of $1,000,000 in the
aggregate (x) to allow any creditor to execute upon or enforce a Lien
on any Collateral or on any other property or assets of Holdings or
Company or (y) with respect to any Lien of, or the granting of any Lien
on any Collateral or any other property or assets of any Borrower to,
any State or local environmental or regulatory agency or authority; or
(e) amending, supplementing, staying, reversing, vacating
or otherwise modifying any of the Interim Borrowing Order, the Final
Borrowing Order or this Agreement or any other Loan Document or any of
Agent's or Lenders' rights, benefits, privileges or remedies under the
Interim Borrowing Order, the Final Borrowing Order, this Agreement or
any other Loan Document without the written consent of Requisite
Lenders; or
(f) without the prior written consent of Lenders, filing
a plan of reorganization for Company or any modification thereto other
than the Reorganization Plan; or
(g) consolidating or combining Holdings or Company with
any other Person (other than Holdings or Company), except pursuant to a
confirmed plan of reorganization with the prior written consent of
holders of 67% of the Prepetition Lenders' Claims as contemplated in
the plan of reorganization; or
123
(h) approving, or there shall arise, any other
administrative expense claim (other than those specifically referred to
in subsection 2.10) having any priority over, or being PARI PASSU with,
the administrative expense priority of the DIP Obligations in respect
of any of the Chapter 11 Cases; or
(ii) the filing by any Borrower of a motion, application or other petition to
effect or consent to any order referred to in the foregoing clause (i); or
8.9 REORGANIZATION PLAN; FINAL BORROWING ORDER.
Debtor Entities shall fail to file the Reorganization Plan and
a disclosure statement describing such Reorganization Plan within twenty-one
(21) days of the Petition Date; or the withdrawal or modification of such
Reorganization Plan after its filing without the consent of Requisite Lenders;
or such Reorganization Plan shall fail to have become effective within 120 days
after the Petition Date; or the Court shall fail to enter a Final Borrowing
Order within forty-five (45) days after the Petition Date approving, among other
things, this Agreement and the other Loans Documents and the transactions
contemplated hereunder and thereunder; or
8.10 JUDGMENTS AND ATTACHMENTS.
(i) Any money judgment, writ, warrant of attachment or order
or similar process as to post-Petition Date liability or Indebtedness involving
(i) in any individual case an amount in excess of $1,000,000 or (ii) in the
aggregate at any time an amount in excess of $2,500,000 (in either case to the
extent not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) shall be entered or
filed against Holdings, any Borrower or any of its Subsidiaries or any of their
respective assets and shall remain undischarged, unvacated, unbonded or unstayed
for a period of 60 days (or in any event later than five days prior to the date
of any proposed sale thereunder); or (ii) any non-monetary judgement or order
with respect to a post-Petition Date event shall be rendered against Holdings,
any Borrower or any of its Subsidiaries which could reasonably be expected to
result in a Material Adverse Effect and there shall be a period of 60
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
8.11 DISSOLUTION.
Any order, judgment or decree shall be entered against
Holdings, any Borrower or any of its Subsidiaries decreeing the dissolution or
split up of Holdings, any Borrower or that Subsidiary and such order shall
remain undischarged or unstayed for a period in excess of 60 days; or
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8.12 EMPLOYEE BENEFIT PLANS.
There shall occur one or more ERISA Events which individually
or in the aggregate results in or might reasonably be expected to result in
liability of any Borrower or any of its Subsidiaries in excess of $2,500,000
during the term of this Agreement; or there shall exist an excess of aggregated
accumulated benefit obligations, as defined in Statement of Financial Accounting
Standards No. 87, over the aggregate total fair market value for all Pension
Plans (excluding for purposes of such computation (1) each Pension Plan with
respect to which the fair market value of the assets exceeds such accumulated
benefit obligations and (2) each Foreign Unfunded Pension Plan), which exceeds
$12,000,000; or
8.13 CHANGE IN CONTROL; MANAGEMENT.
(i) A change shall occur in the Board of Directors of
Holdings so that a majority of the Board of Directors of Holdings
ceases to consist of the individuals who constituted the Board of
Directors of Holdings on the Petition Date (or individuals whose
election or nomination for election was approved by a vote of at least
75% of the directors then in office who either were directors of
Holdings on the Petition Date or whose election or nomination for
election previously was so approved); or
(ii) any Person or Group (within the meaning of Rule 13d-3
of the Securities and Exchange Commission), other than Stonington
Partners and its Affiliates, shall become or be the owner, directly or
indirectly, beneficially or of record, of shares representing more than
30% of the aggregate ordinary voting power represented by the issued
and outstanding capital stock of Holdings on a fully diluted basis,
unless Stonington Partners and its Affiliates shall own and continue to
so own capital stock representing not less than a majority of such
aggregate ordinary voting power; or
(iii) Holdings shall cease to beneficially own and control,
directly or indirectly, 100% of the issued and outstanding shares of
capital stock of Company or shall cease to have the ability to elect
all of the Board of Directors of Company; or
(iv) Company shall cease to beneficially own and control,
directly or indirectly, 100% of the issued and outstanding shares of
capital stock of each of the other Borrowers (other than directors'
qualifying shares) or Company shall cease to have the ability to elect
all of the Board of Directors of each of the other Borrowers; or
(v) ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall no longer serve as an executive
officer of Company or ▇▇▇ ▇▇▇▇▇▇ shall no longer serve as an executive
officer of Company and the position vacated by either of them is not
filled by an individual acceptable to Requisite Lenders within 120
days; or
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8.14 INVALIDITY OF LOAN DOCUMENTS.
Any Guaranty for any reason, other than the satisfaction in
full of all Obligations, ceases to be in full force and effect (other than in
accordance with its terms) or is declared to be null and void; or any Loan Party
denies that it has any further liability, including without limitation with
respect to future advances by Lenders, under any Loan Document to which it is a
party, or gives notice to such effect; or the validity of any Loan Document
shall be contested by any Governmental Authority (whether by a general
suspension of payments or a moratorium on the payment of any class of
indebtedness or otherwise); or any treaty, law, regulation, communique, decree,
ordinance or policy of any Governmental Authority shall purport to render any
provision of any Loan Document invalid or unenforceable or shall purport to
prevent or materially delay the performance or observance by any Loan Party of
its obligations under any Loan Documents; or
8.15 FAILURE OF SECURITY; DENIAL OF LOCK-UP AGREEMENT.
(i) Any Collateral Document shall, at any time, cease to be in
full force and effect (other than by reason of a release of Collateral in
accordance with the terms thereof) or shall be declared null and void, or the
validity or enforceability thereof shall be contested by any Loan Party, or
Agent shall not have or shall cease to have a valid and perfected first priority
security interest in the Collateral or (ii) any party to the Lock-Up Agreement
other than a Lender or Agent shall file a motion with the Court, or otherwise
file any action, suit, proceeding or arbitration, disputing the validity or
enforceability of the Lock-Up Agreement; or
8.16 AMENDMENT OF CERTAIN DOCUMENTS OF HOLDINGS.
Holdings shall agree to any material amendment to, or waive
any of its material rights under, or otherwise change any material terms of, any
of Holdings' Certificate of Designation of 6-1/2% Redeemable Pay-in-Kind
Preferred Stock or the Stockholders Agreement dated as of October 15, 1996 by
and among Holdings, Stonington Fund and certain management investors party
thereto, in each case as in effect on the Closing Date, in a manner adverse to
Holdings or any of its Subsidiaries or to Lenders without the prior written
consent of Agent and Requisite Lenders; or
8.17 CONDUCT OF BUSINESS RELATING TO HOLDINGS.
Holdings shall engage in any business other than owning 100%
of the capital stock of Company and entering into and performing its obligations
under and in accordance with the Loan Documents to which it is a party, or shall
own any assets other than (a) the capital stock of Company and (b) Cash and Cash
Equivalents in an amount not to exceed $1,000,000 at any one time for the
purpose of paying general operating expenses of Holdings or shall incur or
permit to exist any Indebtedness or any other liabilities other than liabilities
related to the permitted business of Holdings and which are not material in
amount, either individually or in the aggregate
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8.18 FAILURE TO PERFORM UNDER INVESTMENT AGREEMENT.
Holdings shall have failed to deliver the Notice of Investment
Date and Amount (as defined in the Investment Agreement) to Stonington Financing
II LLC within the times specified in the Investment Agreement or Holdings shall
have failed to perform its other obligations under the Investment Agreement, or
Stonington Financing II LLC shall have failed to invest in Holdings, within the
times specified in, and subject to the terms and conditions of, the Investment
Agreement, the full amount of the Investment Amount (as defined in subsection
6.12) in Cash; or
8.19 FAILURE BY STONINGTON TO MAKE EQUITY CONTRIBUTIONS.
(i) Stonington Equity Sub shall have failed to receive
$25,000,000 to fund the Stonington Commitment pursuant to the Stonington
Commitment Documents by the Settlement Date (as such term is defined and used in
the Stonington Assignment Agreement); or (ii) Stonington Equity Sub shall have
failed to transfer or otherwise deposit $25,000,000 into the Collateral Account
(as such term is defined and used in the Stonington Cash Collateral Account
Agreement) by the Settlement Date (as such term is defined and used in the
Stonington Assignment Agreement); or (iii) Stonington Equity Sub shall have
failed to convert the Stonington Commitment in an aggregate amount of
$25,000,000 (regardless of the aggregate principal amount of DIP/Bridge Loans
outstanding or the Commitments then in effect on the date of the effectiveness
of the Reorganization Plan) into equity in the reorganized Holdings or
contribute such additional capital so that Stonington Equity Sub shall
contribute not less than $50,000,000 in the aggregate of equity to the
reorganized Holdings upon the effectiveness of the Reorganization Plan, in each
case pursuant to the Lock-Up Agreement:
THEN upon the occurrence and during the continuation of any Event of Default,
Agent, upon the written request or with the written consent of Requisite
Lenders, shall (notwithstanding the provisions of Section 362 of the Bankruptcy
Code and without application or motion to, or order from, the Court), by written
notice to each Borrower, declare all or any portion of (a) the unpaid principal
amount of and accrued interest on the Loans, (b) an amount equal to the maximum
amount that may at any time be drawn under all Letters of Credit then
outstanding (whether or not any beneficiary under any such Letter of Credit
shall have presented, or shall be entitled at such time to present, the drafts
or other documents or certificates required to draw under such Letter of
Credit), and (c) all other Obligations to be, and the same shall forthwith
become, immediately due and payable, without presentment, demand, protest or
other requirements of any kind, all of which are hereby expressly waived by each
Borrower, and the obligation of each Lender to make any Loan, the obligation or
right of any Issuing Lender to issue any Letter of Credit hereunder shall
thereupon terminate; PROVIDED that the foregoing shall not affect in any way the
obligations of Lenders under subsection 3.3C(i).
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Any amounts described in clause (b) above, when received by
Agent, shall be held by Agent pursuant to the terms of the Collateral Account
Agreement and shall be applied as therein provided.
Notwithstanding anything contained in the second preceding
paragraph, if at any time within 60 days after an acceleration of the Loans
pursuant to such paragraph each Borrower shall pay all arrears of interest and
all payments on account of principal which shall have become due otherwise than
as a result of such acceleration (with interest on principal and, to the extent
permitted by law, on overdue interest, at the rates specified in this Agreement)
and all Events of Default and Potential Events of Default (other than
non-payment of the principal of and accrued interest on the Loans, in each case
which is due and payable solely by virtue of acceleration) shall be remedied or
waived pursuant to subsection 10.6, then Requisite Lenders, by written notice to
each Borrower, may at their option rescind and annul such acceleration and its
consequences; but such action shall not affect any subsequent Event of Default
or Potential Event of Default or impair any right consequent thereon. The
provisions of this paragraph are intended merely to bind Lenders to a decision
which may be made at the election of Requisite Lenders and are not intended to
benefit any Borrower and do not grant any Borrower the right to require Lenders
to rescind or annul any acceleration hereunder, even if the conditions set forth
herein are met.
Further upon the occurrence and during the continuance of any
Event of Default, Agent may (i) exercise all rights and remedies of Agent set
forth in any of the Collateral Documents, in addition to all rights and remedies
allowed by, the United States and of any state thereof, including but not
limited to the UCC, and (ii) revoke Borrowers' rights to use cash collateral in
which Agent has an interest; PROVIDED that, any other provision of this
Agreement or any other Loan Document to the contrary notwithstanding, with
respect to the foregoing, Agent shall give Loan Parties and counsel to any
official committees in respect of the Chapter 11 Cases and the office of the
United States Trustee ten (10) days prior written notice (which notice shall be
delivered by facsimile or overnight courier) of the exercise of its rights and
remedies with respect to the Collateral and file a copy of such notice with the
clerk of the Court. Neither Agent nor Lenders shall have any obligation of any
kind to make a motion or application to the Court to exercise their rights and
remedies set forth or referred to in this Agreement or in the other Loan
Documents. The enumeration of the foregoing rights and remedies is not intended
to be exhaustive and the exercise of any right or remedy shall not preclude the
exercise of any other rights or remedies, all of which shall be cumulative and
not alternative.
Each Borrower hereby waives (i) presentment, demand and
protest and notice of presentment, dishonor, notice of intent to accelerate,
notice of acceleration, protest, default, nonpayment, maturity, release,
compromise, settlement, extension or renewal of any or all commercial paper,
accounts, contract rights, documents, instruments, chattel paper and guaranties
or other property at any time held by Agent or Lenders on which Loan Parties may
in any way be liable and hereby ratify and confirm whatever Agent and Lenders
may lawfully do in this regard, (ii) subject to the notice provisions of the
preceding paragraph, all rights to notice
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and hearing prior to Agent's taking possession or control of, or to Agent or
Lenders reply, attachment or levy upon, the Collateral, or any bond or security
which might be required by any court prior to allowing Agent or Lenders to
exercise any of their remedies, and (iii) the benefit of all valuation,
appraisal and exemption laws. Each Borrower acknowledges that it has been
advised by counsel of its choice with respect to the effect of the foregoing
waivers and this Agreement, the other Loan Documents and the transactions
evidenced by this Agreement and the other Loan Documents.
SECTION 9. AGENT
9.1 APPOINTMENT.
BTCo and its applicable Affiliates are hereby appointed by
each Lender as the Agent so appointed hereunder and under the other Loan
Documents, and each such Lender hereby authorizes Agent to act as its agent in
accordance with the terms of this Agreement and the other Loan Documents. Agent
agrees to act upon the express conditions contained in this Agreement and the
other Loan Documents, as applicable. The provisions of this Section 9 are solely
for the benefit of Agent and Lenders and Borrowers shall have no rights as a
third party beneficiary of any of the provisions thereof. In performing its
functions and duties under this Agreement, Agent shall act solely as an agent of
Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for any Borrower
or any of its Subsidiaries.
9.2 POWERS AND DUTIES; GENERAL IMMUNITY.
▇. ▇▇▇▇▇▇; DUTIES SPECIFIED. Each Lender irrevocably
authorizes Agent to take such action on such Lender's behalf and to exercise
such powers, rights and remedies hereunder and under the other Loan Documents as
are specifically delegated or granted to Agent by the terms hereof and thereof,
together with such powers, rights and remedies as are reasonably incidental
thereto. Agent shall have only those duties and responsibilities that are
expressly specified in this Agreement and the other Loan Documents. Agent may
exercise such powers, rights and remedies and perform such duties by or through
its agents or employees. Agent shall not have, by reason of this Agreement or
any of the other Loan Documents, a fiduciary relationship in respect of any
Lender; and nothing in this Agreement or any of the other Loan Documents,
expressed or implied, is intended to or shall be so construed as to impose upon
Agent any obligations in respect of this Agreement or any of the other Loan
Documents except as expressly set forth herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. Agent shall
not be responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any
other Loan Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or
in any financial or other statements, instruments, reports or certificates or
any other documents
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furnished or made by Agent to Lenders or by or on behalf of any Borrower to
Agent or any Lender in connection with the Loan Documents and the transactions
contemplated thereby or for the financial condition or business affairs of any
Borrower or any other Person liable for the payment of any Obligations, nor
shall Agent be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements
contained in any of the Loan Documents or as to the use of the proceeds of the
Loans or the use of the Letters of Credit or as to the existence or possible
existence of any Event of Default or Potential Event of Default. Anything
contained in this Agreement to the contrary notwithstanding, Agent shall not
have any liability arising from confirmations of the amount of outstanding Loans
or the Letter of Credit Usage or the component amounts thereof.
C. EXCULPATORY PROVISIONS. Neither Agent nor any of its
officers, directors, employees or agents shall be liable to Lenders for any
action taken or omitted by Agent under or in connection with any of the Loan
Documents except to the extent caused by such party's gross negligence or
willful misconduct. If Agent shall request instructions from Lenders with
respect to any act or action (including the failure to take an action) in
connection with this Agreement or any of the other Loan Documents, Agent shall
be entitled to refrain from such act or taking such action unless and until
Agent shall have received instructions from Requisite Lenders. Without prejudice
to the generality of the foregoing, (i) Agent shall be entitled to rely, and
shall be fully protected in relying, upon any communication, instrument or
document believed by it to be genuine and correct and to have been signed or
sent by the proper person or persons, and shall be entitled to rely and shall be
protected in relying on opinions and judgments of attorneys (who may be
attorneys for Borrowers and their Subsidiaries), accountants, experts and other
professional advisors selected by it; and (ii) no Lender shall have any right of
action whatsoever against Agent or any of its officers, directors, employees or
agents as a result of Agent acting or (where so instructed) refraining from
acting under this Agreement or any of the other Loan Documents in accordance
with the instructions of Requisite Lenders. Agent shall be entitled to refrain
from exercising any power, discretion or authority vested in it under this
Agreement or any of the other Loan Documents unless and until it has obtained
the instructions of Requisite Lenders.
D. AGENT ENTITLED TO ACT AS LENDER. The agency hereby
created shall in no way impair or affect any of the rights and powers of, or
impose any duties or obligations upon, Agent in its individual capacity as a
Lender hereunder. With respect to their participation in the Loans and the
Letters of Credit, Agent shall have the same rights and powers hereunder as any
other Lender and may exercise the same as though it were not performing the
duties and functions delegated to it hereunder, and the term "Lender" or
"Lenders" or any similar term shall, unless the context clearly otherwise
indicates, includes Agent, in each case in its individual capacity. Agent and
each of its respective Affiliates may accept deposits from, lend money to and
generally engage in any kind of banking, trust, financial advisory or other
business with any Borrower or any of its Affiliates as if it were not performing
the duties specified herein, and may accept fees and other consideration from
any Borrower for services in connection with this Agreement and otherwise
without having to account for the same to Lenders.
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9.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR APPRAISAL OF
CREDITWORTHINESS.
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of each
Borrower and its Subsidiaries in connection with the making of the Loans and the
issuance of Letters of Credit hereunder and that it has made and shall continue
to make its own appraisal of the creditworthiness of each Borrower and its
Subsidiaries. Agent shall not have any duty or responsibility, either initially
or on a continuing basis, to make any such investigation or any such appraisal
on behalf of Lenders or to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter, and Agent shall not have
any responsibility with respect to the accuracy of or the completeness of any
information provided to Lenders.
9.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally
agrees to indemnify Agent and its respective officers, directors, employees or
agents to the extent that Agent and such officers, directors, employees or
agents shall not have been reimbursed by Borrowers, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits
and reasonable costs and expenses (including, without limitation, reasonable
counsel fees and disbursements) or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against Agent and
such officers, directors, employees or agents in exercising its or their powers,
rights and remedies or performing its or their duties hereunder or under the
other Loan Documents or otherwise in its or their capacity as Agent or as an
officer, director, employee or agent of Agent in any way relating to or arising
out of this Agreement or the other Loan Documents; PROVIDED that no Lender shall
be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from Agent's or such officer's, director's, employee's or agent's gross
negligence or willful misconduct. If any indemnity furnished to Agent or any
such officer, director, employee or agent for any purpose shall, in the opinion
of Agent or such officer, director, employee or agent be insufficient or become
impaired, Agent or such officer, director, employee or agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished.
9.5 SUCCESSOR AGENT.
Agent may resign at any time by giving 30 days' prior written
notice thereof to Lenders and each Borrower, and Agent may be removed at any
time with or without cause by an instrument or concurrent instruments in writing
delivered to each Borrower and Agent, as the case may be, and signed by
Requisite Lenders. Upon any such notice of resignation or any such removal,
Requisite Lenders shall have the right, upon five Business Days' notice to each
Borrower, to appoint a successor Agent. Upon the acceptance of any appointment
as Agent
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hereunder by a successor Agent that successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring or removed Agent and the retiring or removed Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring or
removed Agent's resignation or removal hereunder as Agent, the provisions of
this Section 9 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Agent under this Agreement.
9.6 COLLATERAL DOCUMENTS AND GUARANTIES.
Each Lender hereby further authorizes Agent to enter into each
Collateral Document as secured party on behalf of and for the benefit of Lenders
and agrees to be bound by the terms of each Collateral Document; PROVIDED that,
subject to any provision of subsection 10.6 requiring the consent of any
additional Lenders, Agent shall not enter into or consent to any amendment,
modification, termination or waiver of any provision contained in any Collateral
Document or any Guaranty without the prior consent of Requisite Lenders, but
Agent may (i) release any Lien covering any items of Collateral that are the
subject of a sale or other disposition of assets permitted by this Agreement or
to which Requisite Lenders have consented and (ii) release any Guarantor (other
than any Borrower or Holdings) from its Guaranty if all of the capital stock of
such Guarantor is sold to a Person that is not any Affiliate of Company pursuant
to a sale or other disposition permitted hereunder or to which Requisite Lenders
have consented. Each Lender hereby further authorizes Agent to execute and
deliver on behalf of and for the benefit of Lenders, if Agent determines to be
necessary or desirable, a "REITERATION ET RESERVATION HYPOTHECAIRE" to be
executed before a "NOTAIRE" (notary) in France. Anything contained in any of the
Loan Documents to the contrary notwithstanding, each Lender agrees that no
Lender shall have any right individually to realize upon any of the Collateral
under any Collateral Document or to enforce any of the Guaranties, it being
understood and agreed that all rights and remedies under the Collateral
Documents and the Guaranties may be exercised solely by Agent for the benefit of
Lenders in accordance with the terms thereof.
It is herein specified that obligations of ▇▇▇▇ France under
this Agreement shall be in addition to its obligations resulting from the
Existing Credit Agreement, and that Agent hereby reserves, as provided under
Article 1278 of the French Civil Code, as security for the obligations of ▇▇▇▇
France under this Agreement, the benefit of the security interest created by the
"REITERATION DELEGATION ET AFFECTATION HYPOTHECAIRE" (mortgage agreement) dated
October 15, 1996 (registered with the Mortgage Registry of Nantes on November
25, 1996, Volume ▇▇▇▇▇, ▇▇▇▇. 5627) between Agent and ▇▇▇▇ France (formerly
named Rockwell Systemes Graphiques Nantes, S.A.) and by the "REITERATION DE
CONTRAT DECREDIT MODIFIE ET RESERVE DE GARANTIE HYPOTHECAIRE" (mortgage
amendment) dated March 2, 1998 between Agent and ▇▇▇▇ France.
It is herein specified that obligations of Company under this
Agreement shall be in addition to its obligations resulting from the Existing
Credit Agreement, and that therefore Agent hereby reserves, as provided under
Article 1278 of the French Civil Code, as security for
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the obligations of Company under this Agreement, the benefit of the security
interest created by the Share Pledge Agreement dated October 15, 1996 among
Company and Agent relating to the pledge of ▇▇▇▇ France's shares by Company,
and the Amendment Agreement dated January 29, 1998 among Company and Agent
relating to the Share Pledge Agreement dated October 15, 1996.
9.7 DOCUMENTATION AGENT
Any Lender identified on the facing page, or signature pages of this
Agreement, as "documentation agent" shall have no right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Lenders as such. Without limiting the foregoing, any Lender
so identified as "documentation agent" shall not have or be deemed to have
any fiduciary relationship with any Lender. Each Lender acknowledges that it
has not relied, and will not rely, on any of Lenders so identified in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
SECTION 10. MISCELLANEOUS
10.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS AND LETTERS OF CREDIT.
A. GENERAL. Subject to subsection 10.1B, each Lender
shall have the right at any time to (i) sell, assign or transfer to any Eligible
Assignee, or (ii) sell participations to any Person in, all or any part of its
Commitments or any Loan or Loans made by it or its Letters of Credit or
participations therein or any other interest herein or in any other Obligations
owed to it; PROVIDED that no such sale, assignment, transfer or participation
shall, without the consent of Company, require Company to file a registration
statement with the Securities and Exchange Commission or apply to qualify such
sale, assignment, transfer or participation under the securities laws of any
state; PROVIDED FURTHER that no such sale, assignment or transfer described in
clause (i) above shall be effective unless and until an Assignment Agreement
effecting such sale, assignment or transfer shall have been accepted by Agent
and recorded in the Register as provided in subsection 10.1B(ii); and PROVIDED
FURTHER that no such sale, assignment, transfer or participation of any Letter
of Credit or any participation therein may be made separately from a sale,
assignment, transfer or participation of a corresponding interest in the
DIP/Bridge Loan Commitment and the DIP/Bridge Loans of the Lender effecting such
sale, assignment, transfer or participation. Except as otherwise provided in
this subsection 10.1, no Lender shall, as between Borrowers and such Lender, be
relieved of any of its obligations hereunder as a result of any sale, assignment
or transfer of, or any granting of participations in, all or any part of its
Commitments or the Loans, the Letters of Credit or participations therein, or
the other Obligations owed to such Lender.
B. ASSIGNMENTS.
(i) AMOUNTS AND TERMS OF ASSIGNMENTS. Each Commitment,
Loan, Letter of Credit or participation therein, or other Obligation
may (a) be assigned in any amount to
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another Lender, or to an Affiliate of the assigning Lender or another
Lender, with the giving of notice to Company and Agent or (b) be
assigned in an aggregate amount of not less than $5,000,000 (or such
lesser amount as shall constitute the aggregate amount of the
Commitments, Loans, Letters of Credit and participations therein, and
other Obligations of the assigning Lender) to any other Eligible
Assignee with the consent of Agent and, in the case of an assignment of
an Indemnity Amount or an Indemnity Participation, the consent of Agent
(which consent of Agent shall not be unreasonably withheld); PROVIDED
that any such assignment by a Lender in accordance with either clause
(a) or (b) above shall effect a pro rata assignment of each Type of
Commitment and each Type of Loan of the assigning Lender, and in the
event that any such assigning Lender is an Indemnifying Lender, shall
also effect a pro rata assignment of any Indemnity Participation and
Indemnity Amount; PROVIDED FURTHER that notwithstanding the foregoing,
in the event that an Indemnifying Lender is making an assignment to any
other Lender or Eligible Assignee, which Lender or Eligible Assignee
desires to become a UK Bridge Lender, a French Bridge Lender or a
Japanese Bridge Lender hereunder, as the case may be, Agent shall be
entitled to assign to such other Lender or Eligible Assignee, without
making a pro rata assignment of any other Type of Commitment or Type of
Loan of Agent, that portion of its UK Bridge Loan Commitment, its
French Bridge Loan Commitment or its Japanese Bridge Loan Commitment,
as the case may be, which represents the portion of the Indemnity
Participation and Indemnity Amount being assigned to such other Lender
or Eligible Assignee by such Indemnifying Lender, and upon such
assignment by Agent, such other Lender or Eligible Assignee shall
become a UK Bridge Lender, a French Bridge Lender or a Japanese Bridge
Lender hereunder, as the case may be. To the extent of any such
assignment in accordance with either clause (a) or (b) above, the
assigning Lender shall be relieved of its obligations with respect to
its Commitments, Loans, Letters of Credit or participations therein, or
other Obligations or the portion thereof so assigned. The parties to
each such assignment shall execute and deliver to Agent, for its
acceptance and recording in the Register, an Assignment Agreement,
together with a processing and recordation fee of $3,500, and with such
forms, certificates or other evidence, if any, with respect to any
withholding tax matters as the assignee under such Assignment Agreement
may be required to deliver to Agent or the appropriate persons, as the
case may be, pursuant to subsection 2.7B(iii)(a) (as fully set forth in
ANNEX A). Upon such execution, delivery, acceptance and recordation,
from and after the effective date specified in such Assignment
Agreement, (y) the assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and (z) the assigning Lender
thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment Agreement,
relinquish its rights and be released from its obligations under this
Agreement (and, in the case of an Assignment Agreement covering all or
the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto;
PROVIDED that, anything contained in any of the Loan Documents to the
contrary notwithstanding, if such Lender is the Issuing Lender
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with respect to any outstanding Letters of Credit such Lender shall
continue to have all rights and obligations of an Issuing Lender with
respect to such Letters of Credit until the cancellation or expiration
of such Letters of Credit and the reimbursement of any amounts drawn
thereunder). The Commitments hereunder shall be modified to reflect the
Commitment of such assignee and any remaining Commitment of such
assigning Lender and, if any such assignment occurs after the issuance
of the Notes hereunder, the assigning Lender shall, upon the
effectiveness of such assignment or as promptly thereafter as
practicable, surrender its applicable Notes to Agent for cancellation,
and thereupon new Notes shall be issued to the assignee and/or to the
assigning Lender, substantially in the form of EXHIBIT IV or EXHIBIT V
annexed hereto, as the case may be, with appropriate insertions, to
reflect the new Commitments and/or outstanding Loans, as the case may
be, of the assignee and/or the assigning Lender.
(ii) ACCEPTANCE BY AGENT; RECORDATION IN REGISTER. Upon
its receipt of an Assignment Agreement executed by an assigning Lender
and an assignee representing that it is an Eligible Assignee, together
with the processing and recordation fee referred to in subsection
10.1B(i) and any forms, certificates or other evidence with respect to
any withholding tax matters that such assignee may be required to
deliver to Agent or the appropriate persons, as the case may be,
pursuant to subsection 2.7B(iii) (as fully set forth in ANNEX A), Agent
shall, if Agent and Company have consented to the assignment evidenced
thereby (in each case to the extent such consent is required pursuant
to subsection 10.1B(i)), (a) accept such Assignment Agreement by
executing a counterpart thereof as provided therein (which acceptance
shall evidence any required consent of Agent to such assignment), (b)
record the information contained therein in the Register, and (c) give
prompt notice thereof to Company. Agent shall maintain a copy of each
Assignment Agreement delivered to and accepted by it as provided in
this subsection 10.1B(ii).
C. PARTICIPATIONS. The holder of any participation
(other than any holder of any Indemnity Participation), other than an Affiliate
of the Lender granting such participation, shall not be entitled to require such
Lender to take or omit to take any action hereunder except action directly
affecting (i) the extension of the scheduled final maturity date of any Loan
allocated to such participation or (ii) a reduction of the principal amount of
or the rate of interest payable on any Loan allocated to such participation, and
all amounts payable by Borrowers hereunder (including without limitation amounts
payable to such Lender pursuant to subsections 2.6D, 2.7 and 3.6) shall be
determined as if such Lender had not sold such participation. Each Borrower and
each Lender hereby acknowledges and agrees that, solely for purposes of
subsections 10.4 and 10.5, (a) any participation will give rise to a direct
obligation of such Borrower to the participant and (b) the participant shall be
considered to be a "Lender".
D. ASSIGNMENTS TO FEDERAL RESERVE BANKS. In addition to
the assignments and participations permitted under the foregoing provisions of
this subsection 10.1, any Lender may assign and pledge all or any portion of its
Loans, the other Obligations owed to such Lender,
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and its Notes to any Federal Reserve Bank as collateral security pursuant to
Regulation A of the Board of Governors of the Federal Reserve System and any
operating circular issued by such Federal Reserve Bank; PROVIDED that (i) no
Lender shall, as between any Borrower and such Lender, be relieved of any of its
obligations hereunder as a result of any such assignment and pledge and (ii) in
no event shall such Federal Reserve Bank be considered to be a "Lender" or be
entitled to require the assigning Lender to take or omit to take any action
hereunder.
E. INFORMATION. Each Lender may furnish any information
concerning Company and its Subsidiaries in the possession of that Lender from
time to time to assignees and participants (including prospective assignees and
participants), subject to subsection 10.19.
10.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, each Borrower agrees to pay promptly (i) all the actual and
reasonable costs and expenses of preparation of the Loan Documents and any
consents, amendments, waivers or other modifications thereto; (ii) all the
actual and reasonable costs of furnishing all opinions by counsel for any
Borrower (including without limitation any opinions requested by Lenders as to
any legal matters arising hereunder) and of any Borrower's performance of and
compliance with all agreements and conditions on its part to be performed or
complied with under this Agreement and the other Loan Documents including,
without limitation, with respect to confirming compliance with environmental and
insurance requirements; (iii) the actual and reasonable fees, expenses and
disbursements of counsel to Agent (including actual and reasonable allocated
costs of internal counsel) in connection with the negotiation, preparation,
execution and administration of the Loan Documents and any consents, amendments,
waivers or other modifications thereto and any other documents or matters
requested by any Borrower; (iv) all the actual and reasonable costs and expenses
of creating and perfecting Liens in favor of Agent, on behalf of Lenders,
pursuant to the Loan Documents, including without limitation costs of conducting
record searches, examining Collateral, costs of title insurance premiums, real
estate survey costs, and fees and taxes in connection with the filing of
financing statements, costs of preparing and recording Loan Documents, fees and
expenses of counsel for providing such opinions as Agent or Requisite Lenders
may reasonably request, and fees and expenses of legal counsel to Agent; (v) all
the actual costs and reasonable expenses of obtaining and reviewing any
appraisals provided for under this Agreement and any environmental audits or
reports provided for under this Agreement; (vi) all other actual and reasonable
costs and expenses incurred by Agent in connection with the syndication of the
Commitments and the negotiation, preparation and execution of the Loan Documents
and any consents, amendments, waivers or other modifications thereto and the
transactions contemplated thereby; (vii) all costs and expenses, including
reasonable attorneys' fees (including actual and reasonable allocated costs of
internal counsel) and costs of settlement, incurred by Agent and Lenders in
enforcing any Obligations of or in collecting any payments due from any Loan
Party hereunder or under the other Loan Documents or in connection with any
refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a "work-out" or pursuant to the Chapter 11 Cases or
any other
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insolvency or bankruptcy proceedings, and (viii) all fees, expenses,
disbursements and other costs or liabilities of any financial advisors,
accountants, auditors or appraisers retained by Agent or its counsel in
connection with this Agreement or any other Loan Document or the transactions
contemplated thereby. Without limiting the generality of the foregoing, if, at
any time or times, regardless of the existence of an Event of Default, Agent or
any Lender shall incur reasonable expenses itself or employ counsel or other
professional advisors, including, but not limited to, environmental, financial
and management consultants, for advice or other representation or shall incur
legal, appraisal, accounting, consulting or other reasonable costs and expenses
in connection with:
(i) any litigation, contest, dispute, suit, proceeding or
action (whether instituted by Agent, any Lender, any Borrower or any
other Person) in any way relating to the Collateral, any of the Loan
Documents, or any other agreements to be executed or delivered in
connection therewith or herewith, including any litigation, contest,
dispute, suit, case, proceeding or action, and any appeal or review
thereof, in connection with a case or proceeding commenced by or
against any Borrower or any other Person that may be obligated to Agent
or any Lender by virtue of the Loan Documents, under the Bankruptcy
Code, or any other applicable Federal, state, or foreign bankruptcy or
other similar law;
(ii) any attempt to enforce any rights or remedies of
Agent or any Lender against any Borrower, or any other Person that may
be obligated to Agent or any Lender by virtue of being a party to any
of the Loan Documents;
(iii) any attempt to appraise, inspect, verify, protect,
collect, sell, liquidate or otherwise dispose of the Collateral,
including without limitation, obtaining and reviewing any environmental
audits or reports provided for under subsection 4.1; or
(iv) any Chapter 11 Case (including, without limitation,
the on-going monitoring by Agent of the Chapter 11 Cases, including
attendance by Agent and their counsel at hearings or other proceedings
and the on-going review of documents filed with a Court in respect
thereof) and Agent's and Lenders' interests with respect to any
Borrower (including, without limitation, the on-going review of any
Borrower's business, assets, operations, prospects or financial
condition as Agent shall deem necessary), the Collateral or the
Obligations;
then, and in any such event, the reasonable fees and expenses incurred by Agent,
such Lender and such attorneys and other professional advisors and consultants
arising from such services, including those of any appellate proceedings, and
all reasonable expenses, costs, charges and other fees incurred by such counsel
(including actual and reasonable allocated costs of internal counsel) or other
professionals in any way or respect arising in connection with or relating to
any of the events or actions described in this subsection 10.2 shall be payable,
on demand, by Borrowers to Agent and such Lender and shall be additional
Obligations secured under the
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Collateral Documents and the other Loan Documents. Without limiting the
generality of the foregoing, such expenses, costs, charges and fees may include:
paralegal fees, costs and expenses; accountants' and experts' fees, costs and
expenses; appraisers' fees, costs and expenses; management and other
consultants' fees, costs and expenses; court costs and expenses; photocopying
and duplicating expenses; court reporter fees, costs and expenses; long distance
telephone charges; communication charges, air express charges; telegram charges;
secretarial overtime charges; and expenses for travel, lodging and food paid or
incurred in connection with the performance of such legal or other professional
services.
10.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection
10.2, whether or not the transactions contemplated hereby shall be consummated,
each Borrower agrees to defend, indemnify, pay and hold harmless Agent and
Lenders, and the officers, directors, employees, attorneys, agents and
affiliates of Agent and Lenders (collectively called the "INDEMNITEES") from and
against any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and disbursements of any kind
or nature whatsoever (including without limitation the reasonable fees and
disbursements of counsel for such Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnitee shall be designated as a party or
a potential party thereto), whether direct, indirect or consequential and
whether based on any federal, state or foreign laws, statutes, rules or
regulations (including without limitation securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of this Agreement or the other Loan Documents or the Chapter 11
Cases or the transactions contemplated hereby or thereby (including without
limitation Lenders' agreement to make the Loans hereunder or the use or intended
use of the proceeds of any of the Loans or the issuance of Letters of Credit
hereunder or the use or intended use of any of the Letters of Credit) or the
statements contained in the commitment letter delivered by any Lender to any
Borrower with respect thereto (collectively called the "INDEMNIFIED
LIABILITIES"); PROVIDED that Borrowers shall not have any obligation to any
Indemnitee hereunder with respect to any Indemnified Liabilities to the extent
such Indemnified Liabilities arise solely from the gross negligence or willful
misconduct of that Indemnitee as determined by a final judgment of a court of
competent jurisdiction. To the extent that the undertaking to defend, indemnify,
pay and hold harmless set forth in the preceding sentence may be unenforceable
because it is violative of any law or public policy, each Borrower shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by the Indemnitees or any of them.
Without limiting the generality of the foregoing, each
Borrower further agrees to fully and promptly pay, perform, discharge, defend
(subject to Indemnitee's selection of counsel), indemnify and hold harmless each
Indemnitee from and against any Indemnified
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Environmental Liabilities; PROVIDED that Borrowers shall not have any obligation
to any Indemnitee hereunder with respect to any Indemnified Environmental
Liabilities to the extent such Indemnified Environmental Liabilities arise
solely from the gross negligence or willful misconduct of that Indemnitee as
determined by a final judgment of a court of competent jurisdiction. To the
extent that the undertaking to defend, indemnify, pay and hold harmless set
forth in the preceding sentence may be unenforceable because it is violative of
any law or public policy, each Borrower shall contribute the maximum portion
that it is permitted to pay and satisfy under applicable law to the payment and
satisfaction of all Indemnified Environmental Liabilities incurred by the
Indemnitees or any of them. As used herein, "INDEMNIFIED ENVIRONMENTAL
LIABILITIES" means any liabilities, obligations, losses, damages (including,
without limitation, natural resource damages), penalties, actions, judgments,
suits, claims (including Environmental Claims), costs (including, without
limitation, the costs of any investigation, study, sampling, testing, abatement,
cleanup, removal, remediation, or other response action necessary to remove,
remediate, clean up, or ▇▇▇▇▇ any Hazardous Materials or any activity relating
to Hazardous Materials that is in violation of any Environmental Laws or that
presents a material risk of giving rise to an Environmental Claim), expenses and
disbursements of any kind or nature whatsoever, whether direct, indirect or
consequential and whether based on any federal, state or foreign laws, statutes,
rules or regulations (including without limitation securities and commercial
laws, statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of: (i) any Release, threatened Release or disposal of any Hazardous
Materials at any of the Facilities; (ii) the Release, threatened Release, or
disposal at any location of any Hazardous Materials generated at or originating
from any of the Facilities by or at the direction of Company or any of its
Subsidiaries; (iii) any Environmental Claim in connection with any of the
Facilities; or (iv) the operation of or violation of any Environmental Law at
any of the Facilities.
10.4 SET-OFF; SECURITY INTEREST IN DEPOSIT ACCOUNTS.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, and
notwithstanding the provisions of Section 362 of the Bankruptcy Code and without
application or motion to, or order from, the Court, upon the occurrence of any
Event of Default and consultation with Agent each Lender is hereby authorized by
each Borrower at any time or from time to time, without notice to any Borrower
or to any other Person, any such notice being hereby expressly waived, to set
off and to appropriate and to apply any and all deposits (general or special,
including, but not limited to, Indebtedness evidenced by certificates of
deposit, whether matured or unmatured, but not including trust accounts) and any
other Indebtedness at any time held or owing by that Lender or any of its
Affiliates to or for the credit or the account of such Borrower against and on
account of the obligations and liabilities of such Borrower under this
Agreement, the Letters of Credit and participations therein and the other Loan
Documents, including, but not limited to, all claims of any nature or
description arising out of or connected with this Agreement, the Letters of
Credit
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and participations therein or any other Loan Document, irrespective of whether
or not (i) that Lender shall have made any demand hereunder or (ii) the
principal of or the interest on the Loans or any amounts in respect of the
Letters of Credit or any other amounts due hereunder shall have become due and
payable pursuant to Section 8 and although said obligations and liabilities, or
any of them, may be contingent or unmatured. Each Borrower hereby further grants
to Agent and each Lender for the benefit of all Lenders a security interest in
all deposits and accounts maintained with Agent or such Lender as security for
the Obligations.
10.5 RATABLE SHARING
Lenders hereby agree among themselves that if any of them
shall, whether by voluntary payment, by realization upon security, through the
exercise of any right of set-off or banker's lien, by counterclaim or cross
action or by the enforcement of any right under the Loan Documents or otherwise,
or as adequate protection of a deposit treated as cash collateral under the
Bankruptcy Code, receive payment or reduction of a proportion of the aggregate
amount of principal, interest, amounts payable in respect of Letters of Credit,
fees and other amounts then due and owing to that Lender from a Borrower
hereunder or under the other Loan Documents (collectively, the "AGGREGATE
AMOUNTS DUE" to such Lender) which is greater than the proportion received by
any other Lender in respect of the Aggregate Amounts Due to such other Lender,
then the Lender receiving such proportionately greater payment shall (i) notify
Agent and each other Lender of the receipt of such payment and (ii) apply a
portion of such payment to purchase participations (which it shall be deemed to
have purchased from each seller of a participation simultaneously upon the
receipt by such seller of its portion of such payment) in the Aggregate Amounts
Due to the other Lenders so that all such recoveries of Aggregate Amounts Due
shall be shared by all Lenders in proportion to the Aggregate Amounts Due to
them; PROVIDED that if all or part of such proportionately greater payment
received by such purchasing Lender is thereafter recovered from such Lender upon
the bankruptcy or reorganization of such Borrower or otherwise, those purchases
shall be rescinded and the purchase prices paid for such participations shall be
returned to such purchasing Lender ratably to the extent of such recovery, but
without interest. Each Borrower expressly consents to the foregoing arrangement
and agrees that any holder of a participation so purchased may exercise any and
all rights of banker's lien, set-off or counterclaim with respect to any and all
monies owing by such Borrower to that holder with respect thereto as fully as if
that holder were owed the amount of the participation held by that holder.
10.6 AMENDMENTS AND WAIVERS.
No amendment, modification, termination or waiver of any
provision of this Agreement or of the Notes, and no consent to any departure by
any Borrower therefrom, shall in any event be effective without the written
concurrence of such Borrower and Requisite Lenders; provided that the Stonington
Lender shall not be treated disparately from the other Lenders; provided further
that any such amendment, modification, termination, waiver or consent which:
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(a) extends the final scheduled maturity of any Loan or
Note, or extends the stated maturity of any Letter of Credit beyond the
Commitment Termination Date, or reduces the rate or extends the time of
payment of interest or fees thereon (except in connection with a waiver
of applicability of any post-default increase in interest rates), or
reduces the principal amount thereof (except to the extent repaid in
cash); or
(b) releases all or substantially all of (x) the
Collateral (except as expressly provided in the Loan Documents) under
all the Collateral Documents, or (y) the Guarantors (except as
expressly provided in the Loan Documents) from their obligations under
any of the Guaranties; or
(c) amends, modifies or waives any provision of this
subsection 10.6; or
(d) reduces the percentage specified in the definition
"Requisite Lenders"; or
(e) consents to the assignment or transfer by any
Borrower of any of its rights and obligations under this Agreement or
any other Loan Document; or
(f) increases the advance rates provided for in the
definition of "Borrowing Base" to any level above the advance rates in
effect as of the Closing Date;
shall be effective only if (x) evidenced in a writing signed by or on behalf of
all Lenders (other than the Stonington Lender) with respect to clauses (a), (b)
and (d)-(f) above (with Obligations being directly affected in the case of
clause (a) above), and (y) evidenced in a writing signed by or on behalf of all
Lenders (including the Stonington Lender) with respect to clause (c) above only;
PROVIDED that in the case of (x) above the Stonington Lender shall not be
treated disparately from the other Lenders.
In addition, (i) no amendment, modification, termination or
waiver of any provision of any Note shall be effective without the written
concurrence of the Lender (other than the Stonington Lender) which is the holder
of that Note, (ii) to the extent related to (a) UK Bridge Indemnifying Lenders
or UK Bridge Loan Commitments, (b) French Bridge Indemnifying Lenders or French
Bridge Loan Commitments, or (c) Japanese Bridge Indemnifying Lenders or Japanese
Bridge Loan Commitments, no amendment, modification, termination or waiver of
any provision of subsection 2.9 or of related definitions shall be effective
without the written concurrence of, respectively, (x) the UK Bridge Indemnifying
Lenders (other than the Stonington Lender) holding a majority of the UK Bridge
Loan Exposure and of Agent, (y) the French Bridge Indemnifying Lenders (other
than the Stonington Lender) holding a majority of the French Bridge Loan
Exposure and of Agent, and (z) the Japanese Bridge Indemnifying Lenders (other
than the Stonington Lender) holding a majority of the Japanese Bridge Loan
Exposure and of Agent, and (iii) no amendment, modification, termination or
waiver of any provision of Section 9 or of any other provision of this Agreement
which, by its
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terms, expressly requires the approval or concurrence of Agent shall be
effective without the written concurrence of Agent.
Agent may, but shall have no obligation to, with the
concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of that Lender. Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was given. No
notice to or demand on any Borrower in any case shall entitle such Borrower to
any other or further notice or demand in similar or other circumstances. Any
amendment, modification, termination, waiver or consent effected in accordance
with this subsection 10.6 shall be binding upon each Lender (including the
Stonington Lender) at the time outstanding, each future Lender and, if signed by
any Borrower, on such Borrower. Neither this subsection 10.6 nor any other
provision of this Agreement or in any other Loan Document shall give any Lender,
in its capacity as a Lender hereunder, any right, privilege or vote to amend,
modify, terminate or waive any provision of the Existing Credit Agreement, any
notes issued thereunder, any of the other loan documents entered into in
connection therewith or any Liens granted in favor of Prepetition Lenders
thereunder.
10.7 INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or would
otherwise be within the limitations of, another covenant shall not avoid the
occurrence of an Event of Default or Potential Event of Default if such action
is taken or condition exists.
10.8 NOTICES.
Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and may be personally served, telexed or sent by telefacsimile or mail or
courier service and shall be deemed to have been given when delivered in person
or by courier service, upon receipt of telefacsimile or telex, or three Business
Days after depositing it in the mail with postage prepaid and properly
addressed; PROVIDED that notices to Agent shall not be effective until received.
For the purposes hereof, the address of each party hereto shall be as set forth
under such party's name on the signature pages hereof or (i) as to Borrowers and
Agent, such other address as shall be designated by such Person in a written
notice delivered to the other parties hereto and (ii) as to each other party,
such other address as shall be designated by such party in a written notice
delivered to Agent.
10.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
A. All representations, warranties and agreements made
herein shall survive the execution and delivery of this Agreement and the making
of the Loans and the issuance of the Letters of Credit hereunder.
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B. Notwithstanding anything in this Agreement or implied
by law to the contrary, the agreements of Borrowers set forth in subsections
2.6D, 2.7, 3.5A, 3.6, 10.2, 10.3 and 10.4 and the agreements of Lenders set
forth in subsections 9.2C, 9.4 and 10.5 shall survive the payment of the Loans,
the cancellation or expiration of the Letters of Credit and the reimbursement of
any amounts drawn thereunder, and the termination of this Agreement.
10.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of Agent or any Lender in the
exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
10.11 MARSHALLING; PAYMENTS SET ASIDE.
None of Agent or any Lender shall be under any obligation to
marshal any assets in favor of any Borrower or any other party or against or in
payment of any or all of the Obligations. To the extent that any Borrower makes
a payment or payments to Agent or Lenders (or to Agent for the benefit of
Lenders), or Agent or Lenders enforce any security interests or exercise their
rights of setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law, any other state
or federal law, common law or any equitable cause, then, to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied,
and all Liens, rights and remedies therefor or related thereto, shall be revived
and continued in full force and effect as if such payment or payments had not
been made or such enforcement or setoff had not occurred.
10.12 SEVERABILITY.
In case any provision in or obligation under this Agreement or
the Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
10.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS.
The obligations of Lenders hereunder are several and no Lender
shall be responsible for the obligations or Commitments of any other Lender
hereunder. Nothing contained herein or in any other Loan Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute
Lenders as a partnership, an association, a joint venture
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or any other kind of entity. The amounts payable at any time hereunder to each
Lender shall be a separate and independent debt, and each Lender shall be
entitled to protect and enforce its rights arising out of this Agreement and it
shall not be necessary for any other Lender to be joined as an additional party
in any proceeding for such purpose.
10.14 HEADINGS.
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
10.15 APPLICABLE LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES EXCEPT TO THE EXTENT
PREEMPTED BY FEDERAL BANKRUPTCY LAW.
10.16 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the parties hereto and
their respective successors and assigns and shall inure to the benefit of the
parties hereto and the successors and assigns of Lenders (it being understood
that Lenders' rights of assignment are subject to subsection 10.1). None of
Borrowers' rights or obligations hereunder nor any interest therein may be
assigned or delegated by any Borrower without the prior written consent of all
Lenders.
10.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ▇▇▇▇ UK, ▇▇▇▇ FRANCE
AND/OR ▇▇▇▇ JAPAN ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR ANY OBLIGATION MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY
OF THIS AGREEMENT EACH BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS
AGREEMENT, SUCH OTHER LOAN DOCUMENT OR SUCH OBLIGATION. Each Borrower hereby
agrees that service of all process in any such proceeding in any such court may
be made by registered or certified mail,
144
return receipt requested, to such Borrower at its address provided in subsection
10.8, such service being hereby acknowledged by such Borrower to be sufficient
for personal jurisdiction in any action against such Borrower in any such court
and to be otherwise effective and binding service in every respect. Nothing
herein shall affect the right to serve process in any other manner permitted by
law or shall limit the right of any Lender to bring proceedings against any
Borrower in the courts of any other jurisdiction.
10.18 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE
ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR
THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this transaction,
including without limitation contract claims, tort claims, breach of duty claims
and all other common law and statutory claims. Each party hereto acknowledges
that this waiver is a material inducement to enter into a business relationship,
that each has already relied on this waiver in entering into this Agreement, and
that each will continue to rely on this waiver in their related future dealings.
Each party hereto further warrants and represents that it has reviewed this
waiver with its legal counsel and that it knowingly and voluntarily waives its
jury trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING
(OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION
10.18 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the event of litigation,
this Agreement may be filed as a written consent to a trial by the court.
10.19 CONFIDENTIALITY.
Each Lender shall hold all non-public information obtained
pursuant to the requirements of this Agreement which has been identified in
writing as confidential by any Borrower in accordance with such Lender's
customary procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices, it being understood and agreed
by each Borrower that in any event a Lender may make disclosures to Affiliates
of such Lender, to the legal counsel and accountants of such Lender or of such
Affiliates, or disclosures reasonably required by any bona fide assignee,
transferee or participant (who shall have agreed to the confidentiality of the
same) in connection with the contemplated
145
assignment or transfer by such Lender of any Loans or any participations therein
or disclosures required or requested by any governmental agency or
representative thereof or pursuant to legal process; PROVIDED that, unless
specifically prohibited by applicable law or court order, each Lender shall
notify Company of any request by any governmental agency or representative
thereof (other than any such request in connection with any examination of the
financial condition of such Lender by such governmental agency) for disclosure
of any such non-public information prior to disclosure of such information; and
PROVIDED FURTHER that in no event shall any Lender be obligated or required to
return any materials furnished by Company or any of its Subsidiaries.
10.20 JUDGMENT CURRENCY.
(a) If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder in any currency (the
"ORIGINAL CURRENCY") into another currency (the "OTHER CURRENCY"), the parties
hereto agree, to the fullest extent permitted by law, that the rate of exchange
used shall be that at which in accordance with normal banking procedures Agent
or a Lender could purchase the Original Currency with such Other Currency in New
York, New York on the Business Day immediately preceding the day on which any
such judgment, or any relevant part thereof, is given.
(b) The obligations of each Borrower in respect of any
sum due from it to Agent or any Lender hereunder shall, notwithstanding any
judgment in such Other Currency, be discharged only to the extent that on the
Business Day following receipt by Agent or Lender of any sum adjudged to be so
due in such Other Currency Agent or Lender may in accordance with normal banking
procedures purchase the Original Currency with such Other Currency; if the
Original Currency so purchased is less than the sum originally due Agent or
Lender in the Original Currency, such Borrower agrees, as a separate obligation
and notwithstanding any such judgment, to indemnify Agent or Lender against such
loss, and if the Original Currency so purchased exceed the sum originally due to
Agent or Lender in the Original Currency, Lender shall remit such excess to such
Borrower.
10.21 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by each Borrower
and Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
146
10.22 NO IMMUNITY.
To the extent that any Borrower has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, such
Borrower hereby irrevocably waives such immunity in respect of its obligations
under this Agreement and, without limiting the generality of the foregoing,
agrees that the waivers set forth in this subsection 10.22 shall have the
fullest scope permitted under the Foreign Sovereign Immunities Act of 1976 of
the United States and are intended to be irrevocable for purposes of such Act.
10.23 PARTIES INCLUDING TRUSTEES; COURT PROCEEDINGS.
This Agreement and the other Loan Documents shall be binding
upon, and inure to the benefit of, the successors of Agent and each Lender, and
the assigns, transferees and endorsees of Agent and each Lender. The security
interests and Liens created in this Agreement, the Collateral Documents and the
other Loan Documents shall be and remain valid and perfected, and the claims of
Agent and Lenders hereunder valid and enforceable in accordance with the terms
hereof, notwithstanding the discharge of any Borrower pursuant to 11 U.S.C.
Section 1141, the conversion of any Chapter 11 Case or any other bankruptcy case
of any Loan Party to a case under Chapter 7 of the Bankruptcy Code, the
dismissal of any Chapter 11 Case or any subsequent Chapter 7 case or the release
of any Collateral from the property of any Loan Party. The security interests
and Liens created in this Agreement, the Collateral Documents and the other Loan
Documents shall be and remain valid and perfected without the necessity that
Agent file financing statements or otherwise perfect its security interests or
Liens under applicable law. This Agreement, the claims of Agent and Lenders
hereunder, and all security interests or Liens created hereby or pursuant hereto
or by or pursuant to the Collateral Documents or any other Loan Document shall
at all times be binding upon Loan Parties, the estates of Loan Parties and any
trustee appointed in any Chapter 11 Case or any Chapter 7 case, or any other
successor in interest to Borrowers. This Agreement shall not be subject to
Section 365 of the Bankruptcy Code.
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147
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
[Signature pages intentionally omitted]
S-1
ANNEX A
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS AND TAXES. Subject
to the provisions of subsection 2.7B, in the event that any Lender shall
determine (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto) that any law, treaty or
governmental rule, regulation or order, or any change therein or in the
interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or governmental authority, in each case that
becomes effective after the date hereof, or compliance by such Lender with any
guideline, request or directive issued or made after the date hereof by any
central bank or other governmental or quasi-governmental authority (whether or
not having the force of law):
(i) subjects such Lender (or its applicable lending
office) to any additional Tax (other than any Tax on the overall net
income of such Lender) with respect to this Agreement or any of its
obligations hereunder or any payments to such Lender (or its applicable
lending office) of principal, interest, commitment fees or any other
amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve
(including without limitation any marginal, emergency, supplemental,
special or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement against assets held by, or deposits or
other liabilities in or for the account of, or advances or loans by, or
other credit extended by, or any other acquisition of funds by, any
office of such Lender (other than any such reserve or other
requirements with respect to Offshore Rate Loans that are reflected in
the definition of Adjusted Offshore Rate); or
(iii) imposes any other condition (other than with respect
to a Tax matter) on or affecting such Lender (or its applicable lending
office) or its obligations hereunder or the interbank Eurodollar market
for the Applicable Currency;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable lending office) with
respect thereto in an amount deemed by such Lender (in its sole discretion) to
be material; then, in any such case, the applicable Borrower shall promptly pay
to such Lender, upon receipt of the statement referred to in the next sentence,
such additional amount or amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as may be necessary to compensate such Lender
for any such increased cost or reduction in amounts received or receivable
hereunder. Such Lender shall deliver to the applicable Borrower (with a copy to
Agent) a written statement, setting forth in reasonable detail the basis for
calculating the
Annex A-1
additional amounts owed to such Lender under this subsection 2.7A, which
statement shall be conclusive and binding upon all parties hereto absent
manifest error.
B. WITHHOLDING OF TAXES.
(i) PAYMENTS TO BE FREE AND CLEAR. All sums payable by
Borrowers under this Agreement and the other Loan Documents shall be
paid free and clear of, and, except to the extent required by law,
without any deduction or withholding on account of, any Tax (other than
a Tax on the overall net income of any Lender) imposed, levied,
collected, withheld or assessed by or within the United States of
America, the UK, France or Japan or any political subdivision in or of
the United States of America, the UK, France or Japan or any other
jurisdiction from or to which a payment is made by or on behalf of any
Borrower or by any federation or organization of which the United
States of America, the UK, France or Japan or any such jurisdiction is
a member at the time of payment.
(ii) GROSSING-UP OF PAYMENTS. If any Borrower or any other
Person (including any Funding Lender with respect to any payments made
to an Indemnifying Lender under subsection 2.9) is required by law to
make any deduction or withholding on account of any such Tax from any
sum paid or payable by any Borrower to Agent or any Lender under any of
the Loan Documents or by any Funding Lender with respect to any
payments made to an Indemnifying Lender under subsection 2.9:
(a) such Borrower shall notify Agent of any such
requirement or any change in any such requirement as soon as
such Borrower becomes aware of it;
(b) such Borrower shall pay any such Tax before
the date on which penalties attach thereto, such payment to be
made (if the liability to pay is imposed on such Borrower) for
its own account or (if that liability is imposed on Agent or
any such Lender, as the case may be) on behalf of and in the
name of Agent or any such Lender;
(c) the sum payable by such Borrower or by such
Funding Lender in respect of which the relevant deduction,
withholding or payment is required shall be increased to the
extent necessary to ensure that, after the making of that
deduction, withholding or payment, Agent, such Lender or
Indemnifying Lender, as the case may be, receives on the due
date a net sum equal to what it would have received had no
such deduction, withholding or payment been required or made;
and
(d) within 30 days after paying any sum from
which it is required by law to make any deduction or
withholding, and within 30 days after the due date of payment
of any Tax which it is required by clause (b) above to pay,
such Borrower shall deliver to Agent evidence reasonably
satisfactory to the other
Annex A-2
affected parties of such deduction, withholding or payment and
of its making payment thereof to the relevant taxing or other
authority;
PROVIDED that no such additional amount of United States Tax shall be
required to be paid to any Lender under clause (c) above except to the
extent that any change after the date hereof (in the case of each
Lender listed on the signature pages hereof) or after the date of the
Assignment Agreement pursuant to which such Lender became a Lender (in
the case of each other Lender) in any such requirement for a deduction,
withholding or payment as is mentioned therein shall result in an
increase in the rate of such deduction, withholding or payment from
that in effect at the date of this Agreement or at the date of such
Assignment Agreement, as the case may be, in respect of payments to
such Lender; PROVIDED FURTHER that any such additional amount of UK,
French, or Japanese Tax, as the case may be, shall be required to be
paid by Borrower to Agent, any applicable Indemnifying Lender or to any
other Lender under clause (c) above whether or not any such payment
shall be required as a result of any change in applicable laws and
regulations after the date hereof (i.e., Borrower shall be required to
pay such additional amount of UK, French, or Japanese Tax, as the case
may be, even if the obligation to make such payment shall have arisen
under applicable laws and regulations as in effect on the date hereof);
and PROVIDED FURTHER that notwithstanding anything to the contrary
contained in this Agreement or in any other Loan Document, to the
extent that Agent is required by any applicable law or regulation,
whether or not in effect on the date hereof, to make any deduction or
withholding on account of any such UK, French, or Japanese Tax from any
sum paid or payable by Agent to any Indemnifying Lender pursuant to
subsection 2.9, (a) Borrower shall pay any such Tax before the date on
which penalties attach thereto, such payment to be made (if the
liability to pay is imposed on such Borrower) for its own account or
(if that liability is imposed on Agent or such Indemnifying Lender, as
the case may be) on behalf of and in the name of Agent or such
Indemnifying Lender; and (b) the sum payable by such Borrower or by
Agent in respect of which the relevant deduction, withholding or
payment is required shall be increased to the extent necessary to
ensure that, after the making of that deduction, withholding or
payment, Agent or Indemnifying Lender, as the case may be, receives on
the due date a net sum equal to what it would have received had no such
deduction, withholding or payment been required or made. Borrower shall
indemnify Agent and each applicable Indemnifying Lender for any Tax
(other than a Tax on the overall net income of any Lender) imposed,
levied, collected, withheld or assessed by or under any applicable
Governmental Authority with respect to the payments to be made pursuant
to subsection 2.9.
(iii) EVIDENCE OF EXEMPTION FROM WITHHOLDING TAXES.
(a) (1) Each Lender that is organized under
the laws of any jurisdiction other than the United States or
any state or other political subdivision thereof (for purposes
of this subsection 2.7B(iii), a "NON-US LENDER") shall
Annex A-3
deliver to Agent for transmission to Company, on or prior to
the Closing Date (in the case of each Lender listed on the
signature pages hereof) or on or prior to the date of the
Assignment Agreement pursuant to which it becomes a Lender (in
the case of each other Lender), and at such other times as may
be necessary in the determination of Company or Agent (each in
the reasonable exercise of its discretion), (X) two original
copies of Internal Revenue Service Form 1001 or 4224 (or any
successor forms), properly completed and duly executed by such
Non-US Lender, together with any other certificate or
statement of exemption required under the Internal Revenue
Code or the regulations issued thereunder to establish that
such Non-US Lender is not subject to deduction or withholding
of United States federal income tax with respect to any
payments to such Non-US Lender of principal, interest, fees or
other amounts payable under any of the Loan Documents or (Y)
if such Non-US Lender is not a "bank" or other Person
described in Section 881(c)(3) of the Internal Revenue Code
and cannot deliver either Internal Revenue Service Form 1001
or 4224 pursuant to clause (X) above, a Certificate re
Non-Bank Status together with two original copies of Internal
Revenue Service Form W-8 (or any successor form), properly
completed and duly executed by such Non-US Lender, together
with any other certificate or statement of exemption required
under the Internal Revenue Code or the regulations issued
thereunder to establish that such Non-US Lender is not subject
to deduction or withholding of United States federal income
tax with respect to any payments to such Non-US Lender of
interest payable under any of the Loan Documents.
(2) Each UK Bridge Lender (other than a
UK Qualifying Lender; PROVIDED that this clause
2.7B(iii)(a)(3) shall apply to a UK Qualifying Lender who
loses such status, other than through a change in any
applicable law, treaty or governmental rule, regulation or
order, or any change in the interpretation, administration or
application thereof after the Relevant Date (as defined below)
as set out in clause 2.7B(iii)(c), from the date of such loss)
shall deliver to the appropriate Person such application
forms, certificates, documents or other evidence as may be
required from time to time, properly completed and duly
executed by such UK Bridge Lender, to enable ▇▇▇▇ UK to be
able to pay interest on the UK Bridge Loans from it without
withholding or deduction for or on account of any UK income
tax. Each UK Bridge Lender severally warrants to ▇▇▇▇ UK that
on the Relevant Date (as defined in clause 2.7B(iii)(c)) (i)
it is a UK Qualifying Lender or (ii) it is a UK Double Tax
Treaty Lender that has or will timely fulfill its obligations
under subsection 2.7B(iii).
(3) Each French Bridge Lender that is
organized under the laws of any jurisdiction other than France
or any political subdivision thereof (for purposes of this
subsection 2.7B(iii), a "NON-FRENCH BRIDGE LENDER") agrees to
deliver to ▇▇▇▇ France and Agent upon request such
certificates, documents or other evidence as may be required
from time to time, properly completed and duly
Annex A-4
executed by such Non-French Bridge Lender, to establish the
basis for any applicable exemption from or reduction of Taxes
with respect to any payments to such Non-French Bridge Lender
of principal, interest, fees, commissions or any other amount
payable under this Agreement or the French Bridge Loans.
(4) Each Japanese Bridge Lender that is
organized under the laws of any jurisdiction other than Japan
or any political subdivision thereof (for purposes of this
subsection 2.7B(iii), a "NON-JAPANESE BRIDGE LENDER") agrees
to deliver to ▇▇▇▇ Japan and Agent upon request such
certificates, documents or other evidence as may be required
from time to time, properly completed and duly executed by
such Non-Japanese Bridge Lender, to establish the basis for
any applicable exemption from or reduction of Taxes with
respect to any payments to such Non-Japanese Bridge Lender of
principal, interest, fees, commissions or any other amount
payable under this Agreement or the Japanese Bridge Loans.
(b) Each Lender required to deliver any forms,
certificates or other evidence with respect to United States
federal income tax withholding matters or UK, French or
Japanese income tax withholding matters pursuant to subsection
2.7B(iii)(a) hereby agrees, from time to time after the
initial delivery by such Lender of such forms, certificates or
other evidence, whenever a lapse in time or change in
circumstances renders such forms, certificates or other
evidence obsolete or inaccurate in any material respect, that
such Lender shall (1)(W) in the case of any Non-US Lender,
promptly deliver to Agent for transmission to Company two new
original copies of Internal Revenue Service Form 1001 or 4224,
or a Certificate re Non-Bank Status and two original copies of
Internal Revenue Service Form W-8, as the case may be, (X) in
the case of any Non-French Bridge Lender, promptly deliver to
Agent for transmission to ▇▇▇▇ France such certificates,
documents or other evidence as may be required from time to
time under the third paragraph of subsection 2.7B(iii)(a), (Y)
in the case of any Non-Japanese Bridge Lender, promptly
deliver to Agent for transmission to ▇▇▇▇ Japan such
certificates, documents or other evidence as may be required
from time to time under the fourth paragraph of subsection
2.7B(iii)(a), or (Z) in the case of any UK Bridge Lender,
promptly deliver to the appropriate Persons such application
forms, certificates, documents or other evidence as may be
required from time to time under the second paragraph of
subsection 2.7B(iii)(a), in each case properly completed and
duly executed by such Lender, together with any other
certificate or statement of exemption required in order to
confirm or establish that such Lender is not subject to
deduction or withholding of United States, French, Japanese or
UK (as applicable) Tax with respect to payments to such Lender
under the Loan Documents or (2) notify Agent and Borrower of
its inability to deliver any such forms, certificates or other
evidence.
Annex A-5
(c) The Borrower shall not be required to pay
any additional amount to or in respect of any payment to any
Non-US Lender, Non-French Bridge Lender, Non-Japanese Bridge
Lender or UK Bridge Lender that is not a UK Bridge
Indemnifying Lender in respect of that payment, as the case
may be, under clause (c) of subsection 2.7B(ii) if such Lender
shall both (i) have failed to satisfy the requirements of
clause (a) or (b) (PROVIDED that for the purpose of this
subsection 2.7B(iii)(c) its obligations under such clause (b)
shall not be considered to be duly fulfilled by its
notification to Agent and Borrower of its inability to deliver
any form, certificate or other evidence) of this subsection
2.7B(iii) and (ii) is not a UK Qualifying Lender; PROVIDED
FURTHER that if such Lender shall have satisfied the
requirements of subsection 2.7B(iii)(a) (in the case of any
payment, or part thereof, connected with any Commitment, Loan,
Letter of Credit or Indemnity Participation, sold, assigned or
transferred pursuant to an Assignment Agreement) after the
date of such Assignment Agreement or (in any other case) after
the Closing Date (hereinafter, the "RELEVANT DATE"), or is a
UK Qualifying Lender on the Relevant Date, as the case may be,
nothing in this subsection 2.7B(iii)(c) shall relieve the
Borrower of its obligation to pay any additional amounts
pursuant to clause (c) of subsection 2.7B(ii) in the event
that, as a result of any change in any applicable law, treaty
or governmental rule, regulation or order, or any change in
the interpretation, administration or application thereof,
such Lender either is no longer a UK Qualifying Lender or is
no longer properly entitled to deliver forms, certificates or
other evidence at a subsequent date establishing the fact that
such Lender is exempt from withholding tax or is subject to
withholding tax at a rate higher than on the Relevant Date, as
described in subsection 2.7B(iii)(a), as the case may be.
(d) The Borrower shall not be required to pay
any additional amount under clause (c) of subsection 2.7B(ii)
to any French Bridge Indemnifying Lender if Agent is not
either a French Bridge corporation or a bank which has and
acts through a permanent establishment in France and holds a
valid Certificate of Exemption from withholding tax for
foreign corporations or non-residents, PROVIDED, HOWEVER, that
nothing in this subsection 2.7(iii) shall relieve the
applicable Borrower of its obligation to pay any additional
amounts pursuant to clause (c) of subsection 2.7B(ii) to an
Indemnifying Lender which becomes a French Bridge Lender,
Japanese Bridge Lender or a UK Bridge Lender, as the case may
be, upon the occurrence of a Triggering Event under subsection
2.9A, notwithstanding the fact that such Indemnifying Lender
is not properly entitled to deliver forms, certificates or
other evidence establishing that such Indemnifying Lender is
exempt from Tax (other than Tax on its overall net income)
with respect to payments received from such Borrower, whether
or not as a result of any change in applicable law, treaty or
governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof after
the Closing Date.
Annex A-6
(e) The Borrower shall not be required to pay
any additional amount under clause (c) of subsection 2.7B(ii)
to any Japanese Bridge Indemnifying Lender if Agent is not
either a Japanese corporation or a bank which has and acts
through a permanent establishment in Japan and holds a valid
Certificate of Exemption from withholding tax for foreign
corporations or non-residents, PROVIDED, HOWEVER, that nothing
in this subsection 2.7(iii) shall relieve the applicable
Borrower of its obligation to pay any additional amounts
pursuant to clause (c) of subsection 2.7B(ii) to an
Indemnifying Lender which becomes a Japanese Bridge Lender, a
French Bridge Lender or a UK Bridge Lender, as the case may
be, upon the occurrence of a Triggering Event under subsection
2.9A, notwithstanding the fact that such Indemnifying Lender
is not properly entitled to deliver forms, certificates or
other evidence establishing that such Indemnifying Lender is
exempt from Tax (other than Tax on its overall net income)
with respect to payments received from such Borrower, whether
or not as a result of any change in applicable law, treaty or
governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof after
the Closing Date.
(e) If:
(i) ▇▇▇▇ UK makes a payment under
paragraph (c) of subsection 2.7B(ii) (a "TAX PAYMENT") in
respect of a payment to a UK Double Tax Treaty Lender (that
had duly fulfilled its obligations under subsection
2.7B(iii)), such payment having been made prior to ▇▇▇▇ UK
receiving a notice from the Inland Revenue permitting it to
pay gross, and
(ii) that UK Double Tax Treaty Lender
determines that it has obtained a refund of Tax or obtained
and used a credit against Tax on its Overall Net Income (a
"TAX CREDIT") which that UK Bridge Lender is attributable to
that Tax Payment
then, if in its absolute discretion it can do so without any
adverse consequences, that UK Double Tax Treaty Lender shall
reimburse ▇▇▇▇ UK such amount as that UK Double Tax Treaty
Lender shall reasonably determine to be such proportion of
that Tax Credit as will leave that UK Double Tax Treaty Lender
(after that reimbursement) in no better or worse position in
respect of its world wide Tax liabilities than it would have
been in if no Tax Payment had been required. No UK Double Tax
Treaty Lender shall be obliged to disclose any information
regarding its Tax affairs and computations.
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have
determined that the adoption, effectiveness, phase-in or applicability after the
date hereof of any law, rule or regulation (or any provision thereof) regarding
capital adequacy, or any change therein or in the
Annex A-7
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its applicable lending office) with any
guideline, request or directive regarding capital adequacy (whether or not
having the force of law) of any such governmental authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on the capital of such Lender or any corporation controlling such Lender as a
consequence of, or with reference to, such Lender's Loans, Commitments or
Letters of Credit or any participations therein or any other obligations
hereunder with respect to the Loans or the Letters of Credit, in the case of any
Lender, to a level below that which such Lender or such controlling corporation
could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy and
in an amount deemed by such Lender (in its sole discretion) to be material),
then from time to time, within five Business Days after receipt by the Borrower
from such Lender of the statement referred to in the next sentence, Borrowers
shall pay to such Lender such additional amount or amounts as will compensate
such Lender or such controlling corporation on an after-tax basis for such
reduction. Such Lender shall deliver to the Borrower (with a copy to Agent) a
written statement, setting forth in reasonable detail the basis of the
calculation of such additional amounts, which statement shall be conclusive and
binding upon all parties hereto absent manifest error. Notwithstanding any
provision of this subsection 2.7 to the contrary, Borrowers shall pay, on terms
and conditions consistent with this subsection 2.7, any additional amount or
amounts as will compensate any Lender or any corporation controlling such Lender
on an after-tax basis for any reduction in the rate of return on the capital of
such Lender or such controlling entity because of any overlap of the DIP/Bridge
Loan Commitments, whether or not as a result of any change in applicable law,
treaty or governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof.
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Annex A-8
ANNEX B
2.8 OBLIGATION OF LENDERS AND ISSUING LENDERS TO MITIGATE; REPLACEMENT OF
LENDERS.
A. Each Lender and Issuing Lender agrees that, as
promptly as practicable after the officer of such Lender or Issuing Lender
responsible for administering the Loans or Letters of Credit of such Lender or
Issuing Lender, as the case may be, becomes aware of the occurrence of an event
or the existence of a condition that would cause such Lender to become an
Affected Lender or that would entitle such Lender or Issuing Lender to receive
payments under subsection 2.7 or subsection 3.6, it will, to the extent not
inconsistent with the internal policies of such Lender or Issuing Lender and any
applicable legal or regulatory restrictions, use reasonable efforts (i) to make,
issue, fund or maintain the Commitments of such Lender or the affected Loans or
Letters of Credit of such Lender or Issuing Lender through another lending or
letter of credit office of such Lender or Issuing Lender, or (ii) take such
other measures as such Lender or Issuing Lender may deem reasonable, if as a
result thereof the circumstances which would cause such Lender to be an Affected
Lender would cease to exist or the additional amounts which would otherwise be
required to be paid to such Lender or Issuing Lender pursuant to subsection 2.7
or subsection 3.6 would be materially reduced and if, as determined by such
Lender or Issuing Lender in its sole discretion, the making, issuing, funding or
maintaining of such Commitments or Loans or Letters of Credit through such other
lending or letter of credit office or in accordance with such other measures, as
the case may be, would not otherwise materially adversely affect such
Commitments or Loans or Letters of Credit or the interests of such Lender or
Issuing Lender; PROVIDED that such Lender or Issuing Lender will not be
obligated to utilize such other lending or letter of credit office pursuant to
this subsection 2.8 unless the applicable Borrower agrees to pay all incremental
expenses incurred by such Lender or Issuing Lender as a result of utilizing such
other lending or letter of credit office as described in clause (i) above or if
the use of such other office is inconsistent with the internal policies of such
Lender or any applicable legal or regulatory restrictions. A certificate as to
the amount of any such expenses payable by a Borrower pursuant to this
subsection 2.8 (setting forth in reasonable detail the basis for requesting such
amount) submitted by such Lender or Issuing Lender to such Borrower (with a copy
to Agent) shall be conclusive absent manifest error.
B. If any Borrower receives a notice pursuant to
subsection 2.6C, Borrowers shall have the right, if no Potential Event of
Default or Event of Default then exists, to replace such Lender (a "REPLACED
LENDER") with one or more Eligible Assignees (collectively, the "REPLACEMENT
LENDER") acceptable to Agent; PROVIDED that (i) at the time of any replacement
pursuant to this subsection 2.8B, the Replacement Lender shall enter into one or
more Assignment Agreements pursuant to subsection 10.1B (and with all fees
payable pursuant to such subsection 11.1B to be paid by the Replacement Lender)
pursuant to which the Replacement Lender shall acquire all of the outstanding
Loans and Commitments of, and in each case participations in Letters of Credit
and DIP Swing Line Loans by, the Replaced Lender and, in connection therewith,
shall pay to (x) the Replaced Lender in respect thereof an amount equal
Annex B-1
to the sum of (A) an amount equal to the principal of, and all accrued interest
on, all outstanding Loans of the Replaced Lender, (B) an amount equal to all
unpaid drawings with respect to Letters of Credit that have been funded by (and
not reimbursed to) such Replaced Lender, together with all then unpaid interest
with respect thereto at such time and (C) an amount equal to all accrued, but
theretofore unpaid, fees owing to the Replaced Lender with respect thereto, (y)
the appropriate Issuing Lender an amount equal to such Replaced Lender's Pro
Rata Share of any unpaid drawings with respect to Letters of Credit (which at
such time remains an unpaid drawing) issued by it to the extent such amount was
not theretofore funded by such Replaced Lender, and (z) DIP Swing Line Lender an
amount equal to such Replaced Lender's Pro Rata Share of any Refunded DIP Swing
Line Loans to the extent such amount was not theretofore funded by such Replaced
Lender, and (ii) all obligations (including without limitation all such amounts,
if any, owing under subsection 2.6D) of Company owing to the Replaced Lender
(other than those specifically described in clause (i) above in respect of which
the assignment purchase price has been, or is concurrently being, paid), shall
be paid in full to such Replaced Lender concurrently with such replacement. Upon
the execution of the respective Assignment Agreements, recordation of such
assignment in the Register by Agent pursuant to subsection 2.1D, the payment of
amounts referred to in clauses (i) and (ii) above and delivery to the
Replacement Lender of the appropriate Note or Notes executed by Borrowers, the
Replacement Lender shall become a Lender hereunder and the Replaced Lender shall
cease to constitute a Lender hereunder except with respect to indemnification
provisions under this Agreement which by the terms of this Agreement survive the
termination of this Agreement, which indemnification provisions shall survive as
to such Replaced Lender. Notwithstanding anything to the contrary contained
above, no Issuing Lender may be replaced hereunder at any time while it has
Letters of Credit outstanding hereunder unless arrangements satisfactory to such
Issuing Lender (including the furnishing of a Standby Letter of Credit in form
and substance, and issued by an issuer, satisfactory to such Issuing Lender or
the furnishing of cash collateral in amounts and pursuant to arrangements
satisfactory to such Issuing Lender) have been made with respect to such
outstanding Letters of Credit.
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Annex B-2
ANNEX C
2.9 INDEMNIFYING LENDERS.
A. PURCHASE OF PARTICIPATIONS BY INDEMNIFYING LENDERS.
Upon the execution of this Agreement or an Assignment Agreement, as the case may
be, (1) each UK Bridge Indemnifying Lender shall be deemed to, and hereby agrees
to, have irrevocably purchased an Indemnity Participation (as defined below)
from Agent in the UK Bridge Loan Commitment of Agent, including without
limitation the UK Bridge Loans and the participations purchased by Agent
pursuant to subsection 3.1C in the Letters of Credit issued by Agent for the
benefit of ▇▇▇▇ UK and any drawings thereunder, (2) each French Bridge
Indemnifying Lender shall be deemed to, and hereby agrees to, have irrevocably
purchased an Indemnity Participation (as defined below) from Agent in the French
Bridge Loan Commitment of Agent, including without limitation the French Bridge
Loans and the participations purchased by Agent pursuant to subsection 3.1C in
the Letters of Credit issued by Agent for the benefit of ▇▇▇▇ France and any
drawings thereunder, and (3) each Japanese Bridge Indemnifying Lender shall be
deemed to, and hereby agrees to, have irrevocably purchased a participation (the
"INDEMNITY PARTICIPATION") from Agent in the Japanese Bridge Loan Commitment of
Agent, including without limitation the Japanese Bridge Loans and the
participations purchased by Agent pursuant to subsection 3.1C in the Letters of
Credit issued by the Agent and any drawings thereunder, in each case in a
proportionate amount based on such Indemnifying Lender's Indemnity Amount. Upon
the occurrence of a Triggering Event, each Indemnifying Lender, upon one
Business Day's notice from Agent, shall deliver to Agent by wire transfer in
immediately available funds its proportionate share based on its Indemnity
Amount of the aggregate unpaid principal amount of Agent's UK Bridge Loans,
French Bridge Loans or Japanese Bridge Loans, as the case may be, and any
accrued and unpaid interest thereon and the aggregate unreimbursed amount of any
payments made by Agent pursuant to subsection 3.3C to the applicable Issuing
Lender with respect to any unreimbursed drawings on Letters of Credit issued by
such Issuing Lender. Each Indemnifying Lender's obligations under this
subsection 2.9 shall be absolute and unconditional and shall not be affected by
any circumstance, including, without limitation, (a) any set-off, counterclaim,
recoupment, defense or other right which Agent or any Lender may have against
Agent, Loan Party or other Person for any reason whatsoever; (b) the occurrence
or continuance of an Event of Default or a Potential Event of Default; (c) any
adverse change in the condition (financial or otherwise) of any Loan Party; (d)
any breach of this Agreement by any Loan Party, Agent or any Lender; or (e) any
other circumstance, happening, or event whatsoever, whether or not similar to
any of the foregoing; PROVIDED that the obligations of each Indemnifying Lender
are subject to the condition that at the time such UK Bridge Loan, French Bridge
Loan or Japanese Bridge Loan, as the case may be, was made or such Letter of
Credit was issued the duly authorized officer of Agent responsible for the
administration of the credit relationship with ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇
Japan, as the case may be, believed in good faith that either (x) no Event of
Default had occurred and was continuing or (y) any Event of Default that had
occurred and was continuing had been waived by Requisite Lenders at the time
such UK Bridge Loan,
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French Bridge Loan or Japanese Bridge Loan, as the case may be, was made or such
Letter of Credit was issued.
B. PAYMENT OF INDEMNITY FEES. Agent shall promptly pay
by wire transfer of immediately available funds to each applicable Indemnifying
Lender, as an indemnity fee for the Indemnity Participation provided to Agent by
such Indemnifying Lender in this subsection 2.9, the following amounts, in each
case in proportion to such Indemnifying Lender's Indemnity Amount: (i) with
respect to the UK Bridge Loans, French Bridge Loans or Japanese Bridge Loans, as
the case may be, an amount equal to (x) the excess of the interest received by
Agent pursuant to subsection 2.2C from ▇▇▇▇ UK, from ▇▇▇▇ France or ▇▇▇▇ Japan,
as the case may be, over the Adjusted Offshore Rate on such UK Bridge Loans,
French Bridge Loans or Japanese Bridge Loans less (y) 0.125% per annum to be
retained by Agent as an Indemnity Participation fee; (ii) with respect to
Letters of Credit, (x) letter of credit fees received by Agent pursuant to
subsections 3.2(i)(b) and 3.2(ii)(b) from the applicable Issuing Lender LESS (y)
0.125% per annum to be retained by Agent as an Indemnity Participation fee; and
(iii) commitment fees received by Agent pursuant to subsection 2.3A from Agent;
PROVIDED that if any such indemnity fee is less than $10,000, Agent shall not be
required to so promptly pay such indemnity fee to an Indemnifying Lender until
the aggregate unpaid amount of indemnity fees accumulates to an amount exceeding
$10,000. The excess, if any, of the interest payable to Agent on the UK Bridge
Loans, the French Bridge Loans or Japanese Bridge Loans, as the case may be,
over the interest distributable to an Indemnifying Lender under this subsection
2.9B in respect thereof, and the excess, if any, of the letter of credit and
commitment fees payable to Agent over and in addition to the letter of credit
and commitment fees distributable to such Indemnifying Lender under this
subsection 2.9B, shall be retained by Agent.
C. OTHER PAYMENTS. Provided that an Indemnifying Lender
shall have made any payments to Agent required by this subsection 2.9, including
the payments required to be made upon the occurrence of a Triggering Event
pursuant to subsection 2.9A, Agent shall promptly pay by wire transfer of
immediately available funds to such Indemnifying Lender any principal or other
payments thereafter recovered by Agent from ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan,
as the case may be, to the extent allocable to such Indemnifying Lender's
Indemnity Participation. If Agent shall pay any amount to an Indemnifying Lender
pursuant to this subsection 2.9 in the belief or expectation that a related
payment has been or will be received or collected and such related payment is
not received or collected by Agent, then such Indemnifying Lender will promptly
on demand by Agent return such amount to Agent, together with interest thereon
at such rate as Agent shall determine to be customary between banks for
correction of errors. If Agent determines at any time that any amount received
or collected by Agent pursuant to this Agreement is to be returned to ▇▇▇▇ UK,
▇▇▇▇ France or ▇▇▇▇ Japan, as the case may be, under this Agreement or paid to
any other Person or entity pursuant to any insolvency law, any sharing clause in
this Agreement, or otherwise, then, notwithstanding any other provision of this
Agreement, Agent shall not be required to distribute any portion thereof to any
Indemnifying Lender, and each Indemnifying Lender will promptly on demand by
Agent repay any portion that Agent shall have distributed to such Indemnifying
Lender, together with interest thereon at such
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rate, if any, as Agent shall pay to ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan, as the
case may be, or such other Person or entity with respect thereto. If any amounts
returned by Agent to ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan, as the case may be,
pursuant to this subsection 2.9 are later recouped by Agent, Agent shall
promptly pay to each Indemnifying Lender a proportionate amount based on such
Indemnifying Lender's Indemnity Amount.
D. INDEMNITY FOR COSTS AND EXPENSES. If Agent incurs any
costs or expenses (including, without limitation, in indemnifying Agent pursuant
to subsection 9.4) in connection with any effort to enforce or protect Agent's
or any Indemnifying Lender's rights or interests with respect to this Agreement
or the other Loan Documents, then, other than in the case of Agent's gross
negligence or willful misconduct, each Indemnifying Lender will reimburse Agent
on demand for each such Indemnifying Lender's proportionate share based on such
Indemnifying Lender's Indemnity Amount of any portion of such costs or expenses
which is not reimbursed by or on behalf of ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan,
as the case may be. If Agent recovers any amounts for which Agent has previously
been reimbursed by an Indemnifying Lender hereunder, Agent shall promptly
distribute to such Indemnifying Lender such Indemnifying Lender's proportionate
share thereof based on such Indemnifying Lender's Indemnity Amount.
E. CERTAIN TAX MATTERS. Each Indemnifying Lender agrees
to deliver to Agent from time to time upon request such certificates,
statements, documents, forms or other evidence, properly completed and executed
by such Indemnifying Lender, as may be required at any time in order to comply
with any applicable tax laws or regulations or to confirm or maintain in effect
such Indemnifying Lender's entitlement to exemption from or reduction of any
applicable withholding tax on any payments hereunder. Each Indemnifying Lender
hereby agrees to indemnify and hold harmless Agent from any applicable taxes,
penalties, interest and other expenses, costs and losses incurred or payable by
Agent as a result of either (i) such Indemnifying Lender's failure to submit any
statement, document, form or certificate or other evidence that such
Indemnifying Lender is required to provide pursuant to this subsection or (ii)
Agent's reliance on any such statement, document, form or certificate or other
evidence which such Indemnifying Lender has provided to Agent pursuant to this
subsection.
F. INDEMNIFYING LENDER CONSENT. Notwithstanding any
provision to the contrary contained in this Agreement or the other Loan
Documents and so long as an Indemnifying Lender has not failed to make any
payments required to be made by such Indemnifying Lender under this subsection
2.9 or is not otherwise in default under its obligations under this subsection
2.9, Agent hereby agrees that, to the extent of but only to the extent of such
Indemnifying Lender's proportionate share based on its Indemnity Amount, Agent
will not agree to any amendment, modification, termination or waiver of any
provision of this Agreement or the other Loan Documents, or to any departure by
▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan, as the case may be, therefrom, in each case
related to the Indemnity Participation without the prior written consent of such
Indemnifying Lender. Nothing herein contained shall prevent Agent from
consenting to any amendment, modification, termination or waiver of any
provision of this
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Agreement or the other Loan Documents, or to any departure by ▇▇▇▇ UK, ▇▇▇▇
France or ▇▇▇▇ Japan, as the case may be, therefrom, to the extent unrelated to
the Indemnity Participation or to the extent that Agent's interests or Pro Rata
Share is not related to the Indemnity Participation or the Indemnity Amount.
G. FAILURE TO MAKE REQUIRED PAYMENTS. In the event that
any Person obligated to make a payment to any other Person pursuant to this
subsection 2.9 fails to make available to the Person entitled to receive such
payment the amount of such payment, the Person entitled to receive such payment
shall be entitled to recover such amount on demand from such other Person,
together with interest at the customary rate set by Agent for the correction of
errors among Lenders for three Business Days and thereafter at the sum of the
Base Rate PLUS 1.50% per annum.
H. ASSIGNMENT MATTERS. Agent may from time to time sell
or transfer to other Persons assignments or participations or other interests in
Agent's UK Bridge Loans and UK Bridge Loan Commitments, French Bridge Loans and
French Bridge Loan Commitments or Japanese Bridge Loans and Japanese Bridge Loan
Commitments, as the case may be, but not in the portion thereof allocated to the
Indemnity Participation hereunder. An Indemnifying Lender's Indemnity
Participation may not be sold, pledged, assigned, or otherwise transferred (i)
without Agent's prior written consent; PROVIDED that this restriction shall not
apply to any such transfer to any of such Indemnifying Lender's Affiliates; or
(ii) without a pro rata assignment in accordance with subsection 10.1B of each
Type of DIP/Bridge Loan Commitment and DIP/Bridge Loan held by such Indemnifying
Lender.
I. MISCELLANEOUS. In no event shall the Indemnity
Participation be construed as a loan or other extension of credit by an
Indemnifying Lender to Agent. In no event shall this Agreement be construed to
require an Indemnifying Lender to make any Loans or to otherwise extend any
credit to ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan, as the case may be, or to Agent
under this Agreement or under the other Loan Documents. In no event shall this
Agreement be construed to require an Indemnifying Lender to fund or pay to Agent
such Indemnifying Lender's Indemnity Amount except upon the occurrence of a
Triggering Event pursuant to subsection 2.9A. Each Indemnifying Lender agrees
that Agent may take legal action to enforce or protect an Indemnifying Lender's
or Agent's interests in respect of this Agreement and the other Loan Documents.
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Annex C-4