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EXHIBIT 4.4
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SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of
June 5, 1997
among
VIASYSTEMS GROUP, INC.,
as Guarantor,
VIASYSTEMS, INC.,
as US Borrower,
CIRCO CRAFT CO. INC.,
PCB INVESTMENTS PLC.,
FORWARD GROUP PLC,
CHIPS ACQUISITION LIMITED,
INTERCONNECTION SYSTEMS (HOLDINGS) LIMITED,
and the other Foreign Subsidiary Borrowers
from time to time parties hereto,
The Several Lenders
from Time to Time Parties Hereto
THE CHASE MANHATTAN BANK OF CANADA,
CHASE MANHATTAN INTERNATIONAL LIMITED
and the other Foreign Agents
from time to time appointed hereunder
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
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CHASE SECURITIES INC.,
as Arranger
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . 39
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS . . . . . . . . . . . . . . . 40
2.1 Revolving Credit Commitments . . . . . . . . . . . . . . . . . 40
2.2 Procedure for Revolving Credit Borrowing . . . . . . . . . . . 41
2.3 Commitment Fee; Facility Fee; Administrative Agent Fees . . . 41
2.4 Termination or Reduction of Revolving Credit Commitments . . . 42
2.5 US Term Loans . . . . . . . . . . . . . . . . . . . . . . . . 43
2.6 Foreign Subsidiary Term Loans. . . . . . . . . . . . . . . . 47
2.9 Optional Prepayments . . . . . . . . . . . . . . . . . . . . . 51
2.10 Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . 52
2.11 Conversion and Continuation Options . . . . . . . . . . . . . 55
2.12 Bankers' Acceptances . . . . . . . . . . . . . . . . . . . . . 56
2.13 Existing Canadian B/As . . . . . . . . . . . . . . . . . . . . 58
2.14 Minimum Amounts of Tranches . . . . . . . . . . . . . . . . . 58
2.15 Swing Line Commitment . . . . . . . . . . . . . . . . . . . . 58
SECTION 3. ACCOMMODATIONS . . . . . . . . . . . . . . . . . . . . . . . . 60
3.1 The Accommodation Commitments . . . . . . . . . . . . . . . . 60
3.2 Procedure for Issuance of Specified Accommodations . . . . . . 61
3.3 Fees, Commissions and Other Charges . . . . . . . . . . . . . 61
3.4 Accommodation Participations . . . . . . . . . . . . . . . . . 62
3.5 Reimbursement Obligation of the Specified Borrower . . . . . . 64
3.6 Obligations Absolute . . . . . . . . . . . . . . . . . . . . . 64
3.7 Accommodation Payments . . . . . . . . . . . . . . . . . . . . 65
3.8 Letter of Credit Applications . . . . . . . . . . . . . . . . 65
SECTION 4. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 65
4.1 Interest Rates and Payment Dates . . . . . . . . . . . . . . . 65
4.2 Computation of Interest and Fees . . . . . . . . . . . . . . . 66
4.3 Inability to Determine Interest Rate . . . . . . . . . . . . . 66
4.4 Pro Rata Treatment and Payments . . . . . . . . . . . . . . . 67
4.5 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . 70
4.6 Requirements of Law . . . . . . . . . . . . . . . . . . . . . 71
4.7 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
4.8 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . 75
4.9 Replacement of Specified Lender . . . . . . . . . . . . . . . 75
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SECTION 5. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 76
5.1 Financial Condition . . . . . . . . . . . . . . . . . . . . . 76
5.2 No Change . . . . . . . . . . . . . . . . . . . . . . . . . . 78
5.3 Corporate Existence; Compliance with Law . . . . . . . . . . . 78
5.4 Corporate Power; Authorization; Enforceable Obligations . . . 78
5.5 No Legal Bar . . . . . . . . . . . . . . . . . . . . . . . . . 79
5.6 No Material Litigation . . . . . . . . . . . . . . . . . . . . 79
5.7 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . 79
5.8 Ownership of Property; Liens . . . . . . . . . . . . . . . . . 79
5.9 Intellectual Property . . . . . . . . . . . . . . . . . . . . 80
5.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
5.11 US Federal Regulations . . . . . . . . . . . . . . . . . . . . 80
5.12 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
5.13 Canadian Benefit and Pension Plans . . . . . . . . . . . . . . 81
5.14 Investment Company Act; Other Regulations . . . . . . . . . . 81
5.15 Subsidiaries, Etc . . . . . . . . . . . . . . . . . . . . . . 82
5.16 Environmental Matters . . . . . . . . . . . . . . . . . . . . 82
5.17 Delivery of Acquisition Documents . . . . . . . . . . . . . . 83
5.18 Representations and Warranties Contained in the Acquisition
Documents . . . . . . . . . . . . . . . . . . . . . . . . . 83
5.19 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . 83
5.20 Guarantee and Collateral Agreement; Mortgages. . . . . . . . . 84
5.21 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
5.22 No Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
5.23 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 6. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . 85
6.1 Conditions to Chips Closing Date . . . . . . . . . . . . . . . 85
6.2 Conditions to Each Specified Loan . . . . . . . . . . . . . . 88
SECTION 7. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . 89
7.1 Financial Statements . . . . . . . . . . . . . . . . . . . . . 89
7.2 Certificates; Other Information . . . . . . . . . . . . . . . 90
7.3 Payment of Obligations . . . . . . . . . . . . . . . . . . . . 91
7.4 Conduct of Business and Maintenance of Existence . . . . . . . 91
7.5 Maintenance of Property; Insurance . . . . . . . . . . . . . . 91
7.6 Inspection of Property; Books and Records; Discussions . . . . 92
7.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
7.8 Canadian Benefit and Pension Plans . . . . . . . . . . . . . . 93
7.9 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . 93
7.10 Pledge of After Acquired Property . . . . . . . . . . . . . . 94
7.11 Pledge During Event of Default. . . . . . . . . . . . . . . . 94
7.12 Additional Subsidiaries . . . . . . . . . . . . . . . . . . . 95
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7.13 Intellectual Property. . . . . . . . . . . . . . . . . . . . . 95
7.14 Compulsory Acquisition; Whitewash. . . . . . . . . . . . . . . 95
7.15 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . 96
7.16 Interest Rate Protection Agreements . . . . . . . . . . . . . 96
7.17 Currency Hedging Agreements . . . . . . . . . . . . . . . . . 96
SECTION 8. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . 96
8.1 Financial Condition Covenants . . . . . . . . . . . . . . . . 96
8.2 Limitation on Indebtedness . . . . . . . . . . . . . . . . . . 100
8.3 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . 102
8.4 Limitation on Guarantee Obligations . . . . . . . . . . . . . 104
8.5 Limitation on Fundamental Changes . . . . . . . . . . . . . . 105
8.6 Limitation on Sale of Assets . . . . . . . . . . . . . . . . . 105
8.7 Limitation on Dividends . . . . . . . . . . . . . . . . . . . 106
8.8 Limitation on Capital Expenditures . . . . . . . . . . . . . . 107
8.9 Limitation on Investments, Loans and Advances . . . . . . . . 108
8.10 Limitation on Optional Payments and Modifications of Subordinated
Debt Instruments . . . . . . . . . . . . . . . . . . . . . . 110
8.11 Limitation on Transactions with Affiliates . . . . . . . . . 111
8.12 Limitation on Sales and Leasebacks . . . . . . . . . . . . . 111
8.13 Limitation on Changes in Fiscal Year . . . . . . . . . . . . 111
8.14 Restrictions Affecting Subsidiaries . . . . . . . . . . . . . 112
8.15 Limitation on Lines of Business . . . . . . . . . . . . . . . 112
8.16 Amendments to Corporate Documents; Acquisition Agreement;
Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . 112
8.17 Passive Status of International Holdings Bankruptcy Remote
Nature of Bisto. . . . . . . . . . . . . . . . . . . . . . . 112
SECTION 9. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . 112
SECTION 10. THE AGENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 116
10.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . 116
10.2 Delegation of Duties . . . . . . . . . . . . . . . . . . . . 116
10.3 Exculpatory Provisions . . . . . . . . . . . . . . . . . . . 116
10.4 Reliance by the Specified Agents . . . . . . . . . . . . . . 117
10.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . 117
10.6 Non-Reliance on Agent and Lenders . . . . . . . . . . . . . . 117
10.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . 118
10.8 Agents in Their Individual Capacity . . . . . . . . . . . . . 118
10.9 Successor Agents . . . . . . . . . . . . . . . . . . . . . . 118
10.10 Additional Ministerial Powers of the Specified Agents . . . . 119
10.11 Specified Issuing Lender and Collateral Agent. . . . . . . . 119
10.12 English Agent as Trustee. . . . . . . . . . . . . . . . . . . 119
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SECTION 11. GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . 120
11.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . 120
11.2 Waiver of Subrogation . . . . . . . . . . . . . . . . . . . . 120
11.3 Modification of Obligations . . . . . . . . . . . . . . . . . 120
11.4 Waiver by Holdings . . . . . . . . . . . . . . . . . . . . . 121
11.5 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . 122
11.6 Negative Covenants . . . . . . . . . . . . . . . . . . . . . 122
SECTION 12. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 122
12.1 Amendments and Waivers . . . . . . . . . . . . . . . . . . . 122
12.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
12.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . 126
12.4 Survival of Representations and Warranties . . . . . . . . . 126
12.5 Payment of Expenses and Taxes . . . . . . . . . . . . . . . . 126
12.6 Successors and Assigns; Participations and Assignments . . . 127
12.7 Adjustments; Set-off . . . . . . . . . . . . . . . . . . . . 130
12.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 130
12.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . 131
12.10 Integration . . . . . . . . . . . . . . . . . . . . . . . . . 131
12.11 Judgment Currency . . . . . . . . . . . . . . . . . . . . . . 131
12.12 Risks of Superior Force . . . . . . . . . . . . . . . . . . . 131
12.13 Language . . . . . . . . . . . . . . . . . . . . . . . . . . 132
12.14 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . 132
12.15 Submission To Jurisdiction; Waivers . . . . . . . . . . . . . 132
12.16 Acknowledgements . . . . . . . . . . . . . . . . . . . . . . 133
12.17 WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . 133
12.18 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . 133
12.19 Sharing Agreement. . . . . . . . . . . . . . . . . . . . . . 134
12.20 No Guarantee of Domestic Obligations by Foreign Subsidiaries
of US Borrower. . . . . . . . . . . . . . . . . . . . . . . 134
12.21 Section 151 of the Companies Act of 1985. . . . . . . . . . . 134
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EXHIBITS
A-1 Form of Revolving Credit Note
A-2 Form of Term Note
A-3 Form of Swing Line Note
B Participation Certificate
C Swing Line Loan Participation Certificate
D Assignment and Acceptance
E Form of Opinion of ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP,
Counsel to the Borrower and Holdings
F Closing Certificate
G Solvency Certificate
H Perfection Certificate
I Acknowledgement and Consent
SCHEDULES
Administrative Schedule
1.1 Commitments
1.1(B) Eurocurrency Rate Formula
2.12 Form of Canadian B/As
5.1(a) Financial Condition
5.4 Required Consents
5.6 Litigation
5.9 Intellectual Property
5.10 Taxes
5.13 Canadian Pension Plans
5.15 Subsidiaries, Joint Ventures, etc.
5.20 Filing Locations and Properties
5.22 Fees
8.2 Existing Indebtedness
8.3 Existing Liens
8.4 Existing Guarantee Obligations
8.9 Existing Investments
9(e) Certain Defaults
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 5,
1997, among VIASYSTEMS GROUP, INC., a Delaware corporation ("Holdings"),
VIASYSTEMS, INC., a Delaware corporation (the "US Borrower"), CIRCO CRAFT CO.
INC., a Quebec corporation (the "Canadian Borrower"), PCB INVESTMENTS PLC, a
corporation organized under the laws of England and Wales ("English Bidco"),
FORWARD GROUP PLC, a corporation organized under the laws of England and Wales
(the "English Borrower"), CHIPS ACQUISITION LIMITED, a private limited company
organized under the laws of England and Wales ("Chips Limited"),
INTERCONNECTION SYSTEMS (HOLDINGS) LIMITED, a private limited company organized
under the laws of England and Wales ("ISL"), the several banks and other
financial institutions from time to time parties to this agreement (the
"Lenders"), THE CHASE MANHATTAN BANK OF CANADA ("Chase Canada"), as
administrative agent for the Canadian Lenders (in such capacity, the "Canadian
Agent"), CHASE MANHATTAN INTERNATIONAL LIMITED, as administrative agent for the
English Lenders (in such capacity, the "English Agent"), any Future Foreign
Agent which may from time to time be appointed hereunder and THE CHASE
MANHATTAN BANK ("Chase"), as administrative agent for the Lenders (in such
capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, pursuant to a Merger Agreement dated as of the Chips
Closing Date (the "Holdings Merger Agreement"), Chips Holdings, Inc., a
Delaware corporation ("Chips Holdings"), will merge with and into Holdings,
with Holdings as the surviving corporation (the "Holdings Merger"); and
WHEREAS, following the Holdings Merger, pursuant to a Merger
Agreement, dated as of the Chips Closing Date (the "US Borrower Merger
Agreement", with the US Borrower Merger Agreement and the Holdings Merger
Agreement being collectively referenced to as the "Chips Acquisition
Agreement"), Chips Acquisition, Inc., a Delaware corporation and a direct
subsidiary of Chips Holdings ("Chips Inc."), which indirectly, through Chips
Limited acquired ISL on April 21, 1997, will merge with and into US Borrower,
with the US Borrower as the surviving corporation (the "Chips Acquisition
Merger"); and
WHEREAS, following the Chips Acquisition Merger, US Borrower will
contribute the stock of Chips Limited to the capital of International Holdings;
and
WHEREAS, International Holdings will contribute the stock of
Chips Limited to the capital of English Holding Company; and
WHEREAS, at the same time as the foregoing transactions, Holdings
is undergoing a recapitalization pursuant to which Series A preferred stock and
Series C preferred stock of Holdings is being exchanged for common stock of
Holdings (the "Stock Exchange"); and
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WHEREAS, in connection with the acquisition of ISL, Chips
Holdings issued its unsecured Loan Notes due March 31, 2003 (as amended,
supplemented or otherwise modified from time to time, the "Chips Loan Notes"),
the payment of principal of and up to 6.22% interest on which is supported by
an irrevocable direct pay letter of credit issued by Chase Manhattan Bank
Delaware (as amended, supplemented, extended, renewed, replaced or otherwise
modified from time to time, "Chips Letter of Credit"); and
WHEREAS, Chips Holdings' other direct subsidiary, Bisto Funding,
Inc., a Delaware corporation intended to be a bankruptcy remote entity
("Bisto"), has assumed reimbursement obligations in respect of the Chips Letter
of Credit relating to the first $118,250,000 of principal of Chips Loan Notes
and a corresponding proportion of interest and letter of credit commissions
(not to exceed the investment earnings on the cash collateral account described
below less $1,000). Recourse to Bisto for its reimbursement obligations is
limited to a $118,250,000 cash collateral account and investment earnings
thereon less ordinary course operating expenses and $1,000; and
WHEREAS, Chips Inc. (and following the merger of Chips Inc. into
the US Borrower, the US Borrower) is liable for the balance of the
reimbursement obligations under or in respect of the Chips Letter of Credit
(including any interest or fees not paid by Bisto); provided that, (a) the
first $249,250,000 of principal drawings for which the US Borrower is
responsible will initially be converted to term loans of the US Borrower which,
when drawn in full, will be refinanced with term loans of Chips Limited
denominated in Pounds Sterling based on the spot exchange rate at such time and
(b) the remaining $70,000,000 of principal drawings will be converted to term
loans of the US Borrower; and
WHEREAS, to provide for (a) the mergers of (i) Holdings and Chips
Holdings and (ii) the US Borrower and Chips Inc. and the other transactions
contemplated by the Chips Acquisition Agreement, (b) the financing of the US
Borrower's principal reimbursement obligations under the Chips Letter of Credit
as described above, (c) to refinance a L.27,600,000 revolving credit facility
of Chips Limited, (d) the issuance of up to $400,000,000 of Senior Subordinated
Notes of the US Borrower and the application of proceeds thereof and (e)
certain other amendments to the Existing Credit Agreement provided herein,
Holdings, the Existing Borrowers, Chips Limited and ISL have requested that the
Amended and Restated Credit Agreement, dated as of April 11, 1997 (the
"Existing Credit Agreement") among Holdings, US Borrower, Canadian Borrower,
English Bidco and English Borrower (collectively, the "Existing Borrowers"),
the several lenders parties thereto (the "Existing Lenders"), The Chase
Manhattan Bank of Canada, Chase Manhattan International Limited and The Chase
Manhattan Bank, as administrative agent, be amended and restated as follows:
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree that, effective on
the Chips Closing Date, the Existing Credit Agreement shall be and hereby is
amended and restated in its entirety to read as follows:
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SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"5M": a company organized under the laws of the Netherlands.
"5M Acquisition": the acquisition by US Borrower of
approximately 88% of the Capital Stock of 5M for consideration not to
exceed the Equivalent Amount of $8,000,000.
"Acceptance Fee": a fee payable in C$ by the Canadian Borrower
to a Canadian Lender with respect to the acceptance of a B/A, calculated
on the face amount of the Canadian B/A at the rate per annum equal to
the Applicable Margin on the basis of the number of days in the
applicable Canadian Contract Period and a year of 365 days.
"Accommodations": the collective reference to the Letters of
Credit and bankers acceptances (other than Canadian B/As) issued or
created for the accounts of the Specified Borrowers by the Specified
Agents in accordance with the terms hereof pursuant to the Accommodation
Commitments (including for all purposes hereof the portion of the Chips
Letter of Credit for which the US Borrower is responsible, which shall
be deemed an Accommodation issued on the Chips Closing Date).
"Accommodation Commitment": (a) as to any Specified Issuing
Lender, its obligation to issue or accept Accommodations for the account
of the Specified Borrower as identified in the Administrative Schedule
or the applicable Joinder Agreement and (b) as to any Specified
Revolving Credit Lender, its unconditional obligation to participate in
Accommodations of such Specified Borrower.
"Accommodation Outstandings": as to any Specified Borrower, at
any date, the sum of (a) the aggregate amount then available to be drawn
or the amount issued under all outstanding Specified Accommodations and
(b) the aggregate amount of drawings or payments under Specified
Accommodations which have not then been reimbursed pursuant to
subsection 3.5.
"Acquisition Documents": the collective reference to the
Richmond Acquisition Documents, the PCB Acquisition Documents, the
documents relating to the acquisition of the Canadian Borrower, the
Chips Acquisition Agreement and any Future Acquisition Documents.
"Administrative Agent": as defined in the preamble hereto.
"Administrative Schedule": the Administrative Schedule attached
hereto, as amended, supplemented or otherwise modified from time to
time.
"Affected Eurocurrency Loans": as defined in subsection 2.10(h).
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"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (i) vote 51% or more of the securities
having ordinary voting power for the election of directors of such
Person or (ii) direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.
"Agents": the collective reference to the Administrative Agent,
the Collateral Agent and the Foreign Agents.
"Agreement": this Second Amended and Restated Credit Agreement,
as amended, amended and restated, supplemented or otherwise modified
from time to time.
"Amendment Documents": as defined in subsection 6.1(a).
"Applicable Margin": for each Type of Loan and for purposes of
subsection 2.3, the rate per annum set forth under the relevant column
heading below:
Base Rate Loans
---------------
Type Applicable Margin
---- -----------------
Tranche A Term Loans 1.50%
Canadian Term Loans 1.50%
Tranche B Term Loans 2.00%
Tranche C Term Loans 2.50%
Revolving Credit Loans 1.50%
(including Swing Line Loans)
Eurocurrency Loans and B/As
---------------------------
Type Applicable Margin
---- -----------------
Tranche A Term Loans 2.50%
Canadian Term Loans 2.50%
Tranche B Term Loans 3.00%
Tranche C Term Loans 3.50%
Revolving Credit Loans 2.50%
(including Letters of Credit and
Accommodations)
Facility Fee; Commitment Fee Applicable Margin
---------------------------- -----------------
0.50%
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; provided that (i) the Applicable Margin with respect to the extensions
of credit under the Canadian Revolving Credit Commitments shall be
reduced by the amount of the corresponding Applicable Margin for the
Facility Fee thereunder and (ii) in the event that the ratio of
Consolidated Total Debt of US Borrower and its Subsidiaries to
Consolidated EBITDA of US Borrower and its Subsidiaries, as most
recently determined in accordance with subsection 8.1(c), is as set
forth in the relevant column heading below for any quarterly period, any
such Applicable Margin with respect to Tranche A Term Loans, Canadian
Term Loans, and Revolving Credit Loans (including Swing Line Loans) and
the Facility Fee and Commitment Fee shall be as provided in the relevant
column heading below, (subject to reductions in Applicable Margins for
the Canadian Revolving Credit Commitments as specified in (i) above) but
in no event shall any such reductions be effective prior to December 31,
1997:
Relevant Ratio Applicable Applicable
of Consolidated Total Margin For Applicable Margin for
Debt to Consolidated Eurocurrency Margin for Facility Fee and
EBITDA Loans and B/As Base Rate Loans Commitment Fee
--------------------- -------------- --------------- --------------
4.00x and above 2.50% 1.50% 0.500%
3.25x to but excluding 4.00x 2.00% 1.00% 0.500%
3.00 to but excluding 1.75% 0.75% 0.375%
3.25x
Below 3.00x 1.50% 0.50% 0.375%
if and in the event the financial statements required to be delivered
pursuant to subsection 7.1(a) or 7.1(b), as applicable, and the related
compliance certificate required to be delivered pursuant to subsection
7.2(b), are delivered on or prior to the date when due (or, in the case
of the fourth quarterly period of each fiscal year of the US Borrower,
if financial statements which satisfy the requirements of, and are
delivered within the time period specified in, subsection 7.l(b) and a
related compliance certificate which satisfies the requirements of, and
is delivered within the time period specified in, subsection 7.2(b),
with respect to any such quarterly period are so delivered within such
time periods), then the Applicable Margin in respect of the Revolving
Credit Loans, the Canadian Term Loans, and the Tranche A Term Loans and
the Commitment Fee and Facility Fee during the period from the date upon
which such financial statements were delivered shall be the Applicable
Margin as set forth in the relevant column heading above; provided,
however, that in the event that the financial statements delivered
pursuant to subsection 7.1(a) or 7.1(b), as applicable, and the related
compliance certificate required to be delivered pursuant to subsection
7.2(b), are not delivered when due, then:
(a) if such financial statements and certificate are
delivered after the date such financial statements and
certificate were required to be delivered
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(without giving effect to any applicable cure period) and the
Applicable Margin increases from that previously in effect as a
result of the delivery of such financial statements, then the
Applicable Margin in respect of Revolving Credit Loans (including
in the case of Base Rate Loans, Swing Line Loans), the Canadian
Term Loans, and Tranche A Term Loans and the Commitment Fee and
Facility Fee during the period from the date upon which such
financial statements were required to be delivered (without
giving effect to any applicable cure period) until the date upon
which they actually are delivered shall, except as otherwise
provided in clause (c) below, be the Applicable Margin as so
increased;
(b) if such financial statements and certificate are
delivered after the date such financial statements and
certificate were required to be delivered and the Applicable
Margin decreases from that previously in effect as a result of
the delivery of such financial statements, then such decrease in
the Applicable Margin shall not become applicable until the date
upon which the financial statements and certificate actually are
delivered; and
(c) if such financial statements and certificate are not
delivered prior to the expiration of the applicable cure period,
then, effective upon such expiration, for the period from the
date upon which such financial statements and certificate were
required to be delivered (after the expiration of the applicable
cure period) until two (2) Business Days following the date upon
which they actually are delivered, the Applicable Margin in
respect of Revolving Credit Loans (including in the case of Base
Rate Loans, Swing Line Loans), Canadian Term Loans, and Tranche A
Term Loans shall be 2-1/2%, in the case of Eurocurrency Loans and
Canadian B/As, and 1-1/2%, in the case of Base Rate Loans, and
1/2%, in the case of Facility Fees and Commitment Fees payable
under subsection 2.3 (it being understood that the foregoing
shall not limit the rights of each of the Agents and the Lenders
set forth in Section 9).
"Asset Sale": any sale, transfer or other disposition (including
any sale and leaseback of assets and any sale of accounts receivable in
connection with a receivable financing transaction) by Holdings, or any
of its Subsidiaries of any property of Holdings or any such Subsidiary
(including property subject to any Lien under any Loan Document), other
than as permitted pursuant to subsection 8.6(a), (b), (c) (provided
that, except with respect to the loss or condemnation of all or
substantially all of the assets of Holdings and its Subsidiaries, the
proceeds from such casualty or condemnation (including insurance) are
used to replace or rebuild the lost or condemned assets within the time
period specified in subsection 2.10(f)) and (d) through (h) and (j).
"Assignment": the Assignment dated as of November 30, 1996 made
by VTC in favor of the Collateral Agent for the ratable benefit of the
Secured Parties, as the same may be amended, supplemented or otherwise
modified from time to time.
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"Assignee": as defined in subsection 12.6(c).
"Assignment and Acceptance": an assignment and acceptance
entered into by a Lender and an assignee, substantially in the form of
Exhibit D.
"Available Revolving Credit Commitment": as to any Specified
Revolving Credit Lender, with respect to any Specified Borrower at any
time, an amount equal to the excess, if any, of (a) the amount of such
Specified Revolving Credit Lender's Specified Revolving Credit
Commitment over (b) the aggregate of (i) the aggregate unpaid principal
amount at such time of all Specified Revolving Credit Loans made by such
Specified Revolving Credit Lender, (ii) an amount equal to such
Specified Revolving Credit Lender's Specified Revolving Credit
Commitment Percentage of the aggregate unpaid principal amount at such
time of all Specified Swing Line Loans of the Specified Borrower, and
(iii) an amount equal to such Specified Revolving Credit Lender's
Specified Revolving Credit Commitment Percentage of the Specified
Accommodation Outstandings of the Specified Lender at such time;
collectively, as to all the Specified Revolving Credit Lenders, the
"Available Revolving Credit Commitments."
"Base Rate": as to any Specified Borrower in any Specified
currency, the interest rate identified as the Base Rate therefor in the
Administrative Schedule or, in the case of any Future Foreign Subsidiary
Borrower, the Joinder Agreement with respect thereto.
"Base Rate Loan": any Loan bearing interest by reference to the
applicable Base Rate.
"Base Rate Payment Date": as to any Specified Borrower, the
Specified Interest Payment Date for the Specified Base Rate Loans set
forth in the Administrative Schedule or the applicable Joinder
Agreement.
"benefitted Specified Lender": as defined in subsection 12.7.
"Bisto": as defined in the recitals hereto.
"Board": the Board of Governors of the Federal Reserve System
(or any successor thereto).
"Borrowers": the collective reference to the US Borrower and the
Foreign Subsidiary Borrowers.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.2, 2.5(e) 2.6(f) or 2.15 as a date on which the
Specified Borrower requests the Specified Lenders to make Specified
Loans hereunder.
"Business Day": as to any Borrower, a day other than a Saturday,
Sunday or other day on which commercial banks in the city in which the
principal office of the
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Specified Agent is located are authorized or required by law to close,
provided that when used in connection with a Eurocurrency Loan, the term
"Business Day" shall also exclude any day on which commercial banks are
not open for dealing in deposits in the London interbank market in the
applicable currency, provided further, that with respect to any day on
which any payments are to be made under this Agreement in a particular
currency, the term Business Day shall also exclude a day on which
commercial banks in the principal financial center of the country of the
applicable currency are located are authorized or required by law to
close.
"Canadian Agent": as defined in the preamble hereto.
"Canadian Bankers' Acceptance" and "Canadian B/A" and "B/A": a
▇▇▇▇ of exchange denominated in C$, drawn by the Canadian Borrower and
accepted by a Canadian Lender or a Specified Participant in accordance
with this Agreement.
"Canadian Benefit Plans": all material employee benefit plans
maintained or contributed to by a Credit Party that are not pension
plans accepted for registration under the ITA or SPPAQ or other
applicable pension benefits or tax laws of Canada or a province or
territory thereof including, without limitation, all profit sharing,
savings, supplemental retirement, retiring allowance, severance,
deferred compensation, welfare, bonus, supplementary unemployment
benefit plans or arrangements and all life, health, dental and
disability plans and arrangements in which the employees or former
employees of the Credit Party employed in Canada participate or are
eligible to participate but excluding all stock option or stock purchase
plans.
"Canadian Borrower": as defined in the preamble hereto.
"Canadian Contract Period": the term of a Canadian B/A selected
by the Canadian Borrower in accordance with subsection 2.12 commencing
on the Borrowing Date, rollover date, or conversion date, as applicable,
of such Canadian B/A and expiring on a Business Day which shall be
either thirty (30) days, sixty (60) days, ninety (90) days, one hundred
twenty (120) days, or one hundred eighty (180) days thereafter, in all
cases subject to availability, provided that no Canadian Contract Period
shall extend beyond the Specified Revolving Credit Commitment
Termination Date, or such earlier date, if any, upon which the Canadian
Revolving Credit Commitments shall be terminated hereunder.
"Canadian Dollars" and "C$": lawful currency of Canada.
"Canadian Issuing Lender": Chase Canada or any other Canadian
Lender, as designated by Chase Canada as reasonably consented to by the
Canadian Borrower.
"Canadian Lenders": Lenders holding Canadian Loans or Canadian
Revolving Credit Commitments.
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"Canadian Letter of Credit": any Letter of Credit issued for the
account of the Canadian Borrower by the Canadian Issuing Lender.
"Canadian Loans": any loan made to the Canadian Borrower by, or
any Canadian B/A accepted by, any Canadian Lender pursuant to this
Agreement.
"Canadian Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the Canadian Loans and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Canadian Borrower,
whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) the Canadian Loans and all other obligations
and liabilities of the Canadian Borrower to the Canadian Agent or to the
Canadian Lenders, whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may
arise under, out of, or in connection with, this Agreement, any Notes
hereunder or the other Loan Documents or any Interest Rate Agreement
entered into with a Canadian Lender and any other document made,
delivered or given in connection therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all fees and
disbursements of counsel to the Canadian Agent or to the Canadian
Lenders that are required to be paid by the Canadian Borrower pursuant
to the terms of this Agreement) or otherwise.
"Canadian Pension Plan": any plan, program, arrangement, or
understanding that is a pension plan for the purposes of any applicable
pension benefits or tax laws of Canada or a province or territory
thereof (whether or not registered under any such laws) which is
maintained, administered, or contributed to by (or to which there is or
may be an obligation to contribute by) a Credit Party in respect to any
person's employment in Canada or a province or territory thereof with
the Credit Party and all related funding agreements.
"Canadian Reference Lenders": Chase Canada and any other
Canadian Lender appointed as such by the Canadian Agent and acceptable
to the Canadian Borrower.
"Canadian Refinancing": the refinancing on November 30, 1996 of
Indebtedness incurred in connection with the acquisition of the Canadian
Borrower by Holdings on October 1, 1996.
"Canadian Revolving Credit Commitment": as to any Canadian
Revolving Credit Lender, its obligation to maintain any Existing
Canadian Revolving Credit Loan and to make additional Canadian Revolving
Credit Loans to the Canadian Borrower pursuant to subsection 2.1 and to
participate in Swing Line Loans and Canadian Letters of Credit in an
aggregate amount not to exceed at any one time outstanding the amount
set forth opposite such Canadian Revolving Credit Lender's name in
Schedule 1.1 under the heading "Canadian Revolving Credit Commitment",
as such amount may be reduced from time to time as provided herein;
collectively, as
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to all the Canadian Revolving Credit Lenders, the "Canadian Revolving
Credit Commitments."
"Canadian Revolving Credit Lender": any Canadian Lender having a
Canadian Revolving Credit Commitment or that holds outstanding Canadian
Revolving Credit Loans or Specified Accommodation Participating
Interests hereunder.
"Canadian Revolving Credit Loans": Canadian Loans made by any
Canadian Revolving Credit Lender to the Canadian Borrower pursuant to
subsection 2.1.
"Canadian Swing Line Lender": any Canadian Lender having a Swing
Line Commitment or that holds outstanding Swing Line Loans.
"Canadian Term Loans": as to any Canadian Term Loan Lender, its
term loan to the Canadian Borrower described in subsection 2.6(a).
"Canadian Term Loan Lender": any Canadian Lender that holds
outstanding Canadian Term Loans.
"Capital Expenditures": expenditures (including, without
limitation, obligations created under Financing Leases and purchase
money Indebtedness in the year in which created but excluding payments
made thereon) of US Borrower and its Subsidiaries in respect of the
purchase or other acquisition of fixed or capital assets (excluding any
such asset acquired (w) in connection with normal replacement and
maintenance programs properly expensed in accordance with GAAP, (x) with
the proceeds of any casualty insurance or condemnation award (with such
expenditures to be made, to the extent subsection 2.10(f) is applicable,
in accordance with subsection 2.10(f)), (y) with the cash proceeds of
any asset sale made pursuant to subsections 8.6(c) or (d), applied or
contractually committed to be applied within 180 days from receipt of
such proceeds and (z) in any Permitted Acquisition).
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"Caribe": Circo Caribe Corporation, a corporation formed under
the laws of Puerto Rico and a Subsidiary of the Canadian Borrower.
"Cash Equivalents": as to any currency, the investments set
forth on the Administrative Schedule for such currency or in any Joinder
Agreement.
"Change in Control": the earlier to occur of (A) Hicks, Muse,
▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇, their principals and their Affiliates
and management ("HMTFI") shall cease to have the power, directly or
indirectly, to vote or direct the voting of securities having a majority
of the ordinary voting power for the election of directors
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of Holdings, provided that the occurrence of the foregoing event shall
not be deemed a Change of Control if (a) at any time prior to the
consummation of an Initial Public Offering, and for any reason whatever,
(i) HMTFI otherwise has the right to designate (and does so designate) a
majority of the board of directors of Holdings or (ii) HMTFI and their
employees, directors and officers (the "HMTFI Group") own of record and
beneficially an amount of common stock of Holdings equal to at least 50%
of the amount of common stock of Holdings owned by the HMTFI Group of
record and beneficially as of the Closing Date and such ownership by the
HMTFI Group represents the largest single block of voting securities of
Holdings held by any Person or related group for purposes of Section
13(d) of the Securities Exchange Act of 1934, as amended, or (b) at any
time after the consummation of an Initial Public Offering, and for any
reason whatever, (i) no "Person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended), excluding the HMTFI Group, shall become the "beneficial owner"
(as defined in Rules 13(d)-3 and 13(d)-5 under such Act), directly or
indirectly, of more than the greater of (x) 15% of the shares
outstanding or (y) the percentage of the then outstanding voting stock
of Holdings owned by the HMTFI Group and (ii) the board of directors of
Holdings shall consist of a majority of Continuing Directors, and (B) of
a Change of Control as defined in any document pertaining to the Senior
Subordinated Indebtedness.
"Chase": as defined in the preamble hereto.
"Chase Canada": as defined in the preamble hereto.
"Chase Delaware": Chase Manhattan Bank Delaware together with
its successors and assigns.
"Chips Acquisition": the merger of Chips Inc. with and into the
US Borrower, pursuant to the Chips Acquisition Agreement.
"Chips Acquisition Agreement": as defined in the recitals
hereto.
"Chips Acquisition Term Loan Commitment": as to any US Lender,
its obligation to make Chips Acquisition Term Loans pursuant to
subsection 2.5(d) in an aggregate not to exceed such Chips Acquisition
Term Loan Lender's name in Schedule 1.1 under the heading "Chips
Acquisition Term Loan Commitment"; collectively, as to all Chips
Acquisition Term Loan Lenders, the "Chips Acquisition Term Loan
Commitments."
"Chips Acquisition Term Loan Lender": any US Lender that holds
(a) a Specified Accommodation Participating Interest in the Chips Letter
of Credit to be converted to Chips Acquisition Term Loans or (b)
outstanding Chips Acquisition Term Loans, which collectively for
purposes of subsection 12.1 shall be deemed to be a class of Specified
Foreign Subsidiary Term Loan Lenders.
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"Chips Acquisition Term Loans": term loans made by US Lenders to
US Borrower pursuant to subsection 2.5(d)(i).
"Chips Closing Date": the date of the satisfaction of all
conditions precedent in subsection 6.1.
"Chips Holdings": as defined in the recitals hereto.
"Chips Inc.": as defined in the recitals hereto.
"Chips Inc. Credit Agreement": the Credit Agreement dated as of
April 21, 1997 among Chips Inc., Chips Holdings, the several lenders
from time to time parties thereto, Chase Delaware, as issuing lender,
and Chase, as administrative agent for the lenders and the issuing
lender, as amended, supplemented or otherwise modified to the Chips
Closing Date.
"Chips Intercompany Note": as defined in subsection 2.6.
"Chips Letter of Credit": as defined in the recitals hereto.
"Chips Limited": as defined in the preamble hereto.
"Chips Limited Credit Agreement": the Agreement, dated 22 April,
1997 among Chips Limited, the financial parties thereto and Chase
Manhattan International Limited, as amended, supplemented or otherwise
modified to the Chips Closing Date.
"Chips Limited Term Loan Commitment": as to any US Lender, its
obligation to (a) make Chips Limited Term Loans to the US Borrower
pursuant to subsection 2.5(c) and (b) refinance such loans with Chips
Limited Term Loans to Chips Limited pursuant to subsection 2.6(f) and
(c) acquire Specified Accommodation Participating Interests in the
interest portion of the Chips Letter of Credit in an aggregate amount
not to exceed such Chips Limited Term Loan Lender's name in Schedule 1.1
under the heading "Chips Limited Term Loan Commitment"; collectively, as
to all Chips Limited Term Loan Lenders, the "Chips Limited Term Loan
Commitments."
"Chips Limited Term Loan Lender": any US Lender or English
Lender, as the case may be, that holds (a) a Specified Accommodation
Participating Interest in the Chips Letter of Credit to be converted to
Chips Limited Term Loans or in respect of the interest portion of the
Chips Letter of Credit or (b) outstanding Chips Limited Term Loans,
which collectively for purposes of subsection 12.1 shall be deemed to be
a class of Specified Foreign Subsidiary Term Loan Lenders.
"Chips Limited Term Loans": term loans made by US Lenders or
English Lenders, as the case may be, to the US Borrower or Chips
Limited, as the case may be, pursuant to subsection 2.5(c) or 2.6(f), as
the case may be.
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"Chips Loan Notes": as defined in the recitals hereto.
"Chips Loans": any loan made to Chips Limited or ISL, as the
case may be, by any English Lender pursuant to this Agreement.
"Chips Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the Chips Loans and interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to Chips Limited or ISL, as the case may be,
whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) the Chips Loans and all other obligations
and liabilities of Chips Limited or ISL, as the case may be, to the
English Agent or to the English Lenders, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any notes thereunder or the other Specified Loan
Documents, any Interest Rate Agreement entered into with a Lender, and
any other document made, delivered or given in connection therewith,
whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including, without limitation, all
fees and disbursements of counsel to the English Agent or to the English
Lenders that are required to be paid by Chips Limited or ISL, as the
case may be, or pursuant to the terms of this Agreement) or otherwise.
"Chips Pro Forma Balance Sheet": as defined in subsection 5.1(d).
"Chips Reimbursement Agreement": the Reimbursement Agreement
dated as of April 21, 1997 among Bisto, as assignee of Chips Holdings,
the several lenders from time to time parties thereto, Chase Delaware,
as issuing lender, and Chase, as administrative agent for the lenders
and the issuing lender, as amended, supplemented or otherwise modified
from time to time.
"Chips Revolving Credit Commitment": as to any English Lender,
its obligation to make Chips Revolving Credit Loans to ISL pursuant to
subsection 2.1 and to participate in Specified Accommodations in an
aggregate amount not to exceed at any one time outstanding the amount
set forth opposite such English Lender's name in Schedule 1.1 under the
heading "Chips Revolving Credit Commitment", as such amount may be
reduced from time to time as provided herein; collectively, as to all
the English Lenders, the "Chips Revolving Credit Commitments."
"Chips Revolving Credit Loans": Chips Loans made by any English
Revolving Credit Lender to ISL pursuant to subsection 2.1.
"Civil Code Notice": as defined in subsection 9(m).
"Closing Date": November 30, 1996.
"Code": the Internal Revenue Code of 1986, as amended from time
to time.
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"Collateral Agent": Chase in its capacity as collateral agent
for the Secured Parties under the Loan Documents and the Sharing
Agreement.
"Commitments": the collective reference to the Revolving Credit
Commitments, Chips Acquisition Term Loan Commitments, Chips Limited Term
Loan Commitments, the Swing Line Commitments, and the Accommodation
Commitments; individually, a "Commitment."
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes
the Borrower and which is treated as a single employer under Section 414
of the Code.
"Compulsory Acquisition": as defined in subsection 7.14.
"Consent to Assignment": the Consent to Assignment dated
November 30, 1996 made by Lucent Technologies Inc in favor of the
Collateral Agent for the ratable benefit of the Secured Parties, as the
same may be amended, supplemented or otherwise modified from time to
time.
"Consolidated Current Assets": at any date, the amount which, in
conformity with GAAP, would be set forth opposite the caption "Total
Current Assets" (or any like caption) on a consolidated balance sheet of
US Borrower and its Subsidiaries at such date, except that there shall
be excluded therefrom cash and Cash Equivalents and equipment and other
fixed assets held for sale.
"Consolidated Current Liabilities": at any date, the amount
which, in conformity with GAAP, would be set forth opposite the caption
"Total Current Liabilities" (or any like caption) on a consolidated
balance sheet of US Borrower and its Subsidiaries at such date, except
that there shall be excluded therefrom the current portion of (a) all
Loans and, (b) all long-term Indebtedness for borrowed money (including
Financing Leases) in each case, to the extent included therein.
"Consolidated EBITDA": for any period, with respect to any
Person, Consolidated Net Income of such Person for such period (A) plus,
without duplication and to the extent reflected as a charge in the
statement of such Net Income for such period, the sum of (i) total
income and franchise tax expense, (ii) interest expense, amortization or
writeoff of debt discount and debt issuance costs and commissions and
discounts and other fees and charges associated with Indebtedness, (iii)
depreciation and amortization expense, (iv) amortization of intangibles
(including, but not limited to, goodwill and organization costs
(including, with respect to the US Borrower, costs associated with the
Acquisition)), (v) other noncash charges (including any writeoffs of
purchased technology) and (vi) any extraordinary and unusual losses
(including losses on sales of assets other than inventory sold in the
ordinary course of business) other than any loss from any discontinued
operation and (B) minus, without duplication, (i) any extraordinary and
unusual gains (including gains on the sales of assets, other than
inventory sold in the ordinary course of business) other than any
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income from discontinued operations and (ii) non cash gains included in
Consolidated Net Income.
"Consolidated Net Income": for any period, with respect to any
Person, the amount which, in conformity with GAAP, would be set forth
opposite the caption "Net Income/(Loss)" (or any like caption) on a
consolidated statement of operations of such Person and its Subsidiaries
for such period.
"Consolidated Total Debt": at a particular date, with respect to
US Borrower, the aggregate principal amount of Indebtedness under this
Agreement, Financing Leases, purchase money Indebtedness, the Senior
Subordinated Indebtedness, and any other Indebtedness for borrowed money
of the US Borrower and its Subsidiaries at such date in conformity with
GAAP, provided, that any cash collateral applied to secure the
reimbursement obligations of the US Borrower under the Chips Letter of
Credit, pursuant to subsections 2.5(c) or (d) or 2.10(d) shall be
subtracted from the calculation of Consolidated Total Debt.
"Consolidated Working Capital": at any date, the excess of
Consolidated Current Assets at such date over Consolidated Current
Liabilities at such date.
"Continuing Directors": the directors of Holdings on the Closing
Date and each other director, if, in each case, such other director's
nomination for election to the board of directors of Holdings is
recommended by a majority of the then Continuing Directors or such other
director receives the vote of HMTFI in his or her election by the
shareholders.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Contribution": as defined in subsection 6.1(d).
"Credit Parties": the collective reference to Holdings, each of
the Borrowers and each of their respective Subsidiaries which from time
to time is a party to any Loan Document.
"CSI": Chase Securities Inc.
"Default": any of the events specified in Section 9, whether or
not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Denominated Currency": as defined in subsection 12.11.
"Discount Proceeds": for any Canadian B/A, an amount (rounded to
the nearest whole cent, and with one-half of one cent being rounded up)
calculated on the applicable Borrowing Date, rollover date or conversion
date by multiplying:
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(i) the face amount of the Canadian B/A; by
(ii) the quotient of one divided by the sum of one plus the
product of:
1. the Discount Rate (expressed as a decimal) applicable to
such Canadian B/A, and
2. a fraction, the numerator of which is the Canadian
Contract Period of the Canadian B/A and the denominator of
which is 365, being the number of days in the applicable
year,
with such quotient being rounded up or down to the fifth decimal place
and .000005 being rounded up.
"Discount Rate": with respect to any Canadian Lender, as
applicable to a Canadian B/A being purchased by such Canadian Lender on
any day, the average (as determined by the Canadian Agent) of the
respective percentage discount rates (expressed to two decimal places
and rounded upward, if necessary, to the nearest 0.01%) quoted to the
Canadian Agent and by each Canadian Reference Lender as the percentage
discount rate at which such Canadian Reference Lender would, in
accordance with its normal practices, at or about 10:00 a.m., Toronto
time, on such day, be prepared to purchase Bankers' Acceptances accepted
by such Canadian Reference Lender having a face amount and term
comparable to the face amount and term of such Canadian B/A.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Domestic Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to any Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the
Loans and all other obligations and liabilities of the US Borrower to
the Secured Parties, whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may
arise under, out of, or in connection with, this Agreement, any Notes,
the Guarantee and Collateral Agreement, or the other Loan Documents, or
any Interest Rate Agreement entered into with a Lender and any other
document made, delivered or given in connection therewith or herewith,
whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including, without limitation, all
fees and disbursements of counsel to the Secured Parties that are
required to be paid by the US Borrower pursuant to the terms of this
Agreement) or otherwise.
"Domestic Subsidiary": as to any Person, any Subsidiary of such
Person other than a Foreign Subsidiary of such Person.
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"English Accommodations": the collective reference to (a)
Accommodations issued by the English Issuing Lender for the account of
the English Borrower and (b) the English Bidco Loan Note Letter of
Credit.
"English Agent": as defined in the preamble hereto.
"English Bidco": as defined in the preamble hereto.
"English Bidco Loan Note Letter of Credit": a standby Letter of
Credit issued by the English Issuing Lender for the account of English
Bidco in an amount equal to the obligations guaranteed by Chase in
respect of the loan notes of English Bidco issued in connection with the
Offer in the aggregate amount of L.16,000,000 and maturing July 31,
1999.
"English Borrower": as defined in the preamble hereto.
"English Borrower Acquisition": the acquisition of all issued and
outstanding ordinary shares of the English Borrower by Partnership,
through English Bidco, an indirect wholly-owned special purpose English
subsidiary.
"English Holding Company": PCB Acquisition Limited, a private
limited company organized under the laws of England and Wales.
"English Holding Company Acquisition": the acquisition of English
Holding Company by Holdings, pursuant to a definitive merger agreement,
dated as of April 11, 1997, by and between Holdings and Partnership.
"English Issuing Lender": Chase, acting through its London
Branch.
"English Lenders": the collective reference to Lenders holding
Chips Limited Term Loans made to Chips Limited, Chips Revolving Credit
Commitments, English Loans or English Revolving Credit Commitments and
to Chase in its capacity as guarantor of the Guaranteed Loan Notes.
"English Loans": any loan made to English Borrower by any
English Lender pursuant to this Agreement.
"English Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the English Loans and interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the English Borrower or English Bidco,
whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) the English Loans and all other obligations
and liabilities of the English Borrower or English Bidco to Chase, the
English Agent or to the English Lenders, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any notes thereunder or the other Specified Loan
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Documents, any Interest Rate Agreement entered into with a English
Lender, or any obligations of English Bidco in respect of its loan notes
issued in connection with the Offer and Chase's guarantee thereof and
any other document made, delivered or given in connection therewith,
whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including, without limitation, all
fees and disbursements of counsel to the English Agent or to the English
Lenders that are required to be paid by the English Borrower or the
English Bidco pursuant to the terms of this Agreement) or otherwise.
"English Revolving Credit Commitment": as to any English Lender,
its obligation to maintain any existing English Revolving Credit Loans
and to make any additional English Revolving Credit Loans to the English
Borrower pursuant to subsection 2.1 and to participate in English
Accommodations in an aggregate amount not to exceed at any one time
outstanding the amount set forth opposite such English Lender's name in
Schedule 1.1 under the heading "English Revolving Credit Commitment", as
such amount may be reduced from time to time as provided herein;
collectively, as to all the English Lenders, the "English Revolving
Credit Commitments."
"English Revolving Credit Lender": any English Lender having an
English Revolving Credit Commitment or a Chips Revolving Credit
Commitment or that holds outstanding English Revolving Credit Loans,
Chips Revolving Credit Loans or Specified Accommodation Participating
Interests hereunder.
"English Revolving Credit Loans": English Loans made by any
English Revolving Credit Lender to the English Borrower pursuant to
subsection 2.1.
"English Shares": all issued and outstanding ordinary shares of
the English Borrower.
"Environmental Laws": any applicable foreign, federal, state,
provincial, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, legally binding requirements of
any Governmental Authority or other Requirements of Law (including
common law) regulating, relating to or imposing liability or standards
of conduct concerning protection of human health or the environment, as
now or may at any time hereafter be in effect.
"Equivalent Amount": at any time of determination, with respect
to any amount in any currency denominated in a different currency, the
amount at which such amount of different currency could be converted
into the determination currency at such time as reasonably determined by
the Specified Agent.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Base Rate": as to any Specified Borrower in any
Specified currency, the interest rate identified as the Eurocurrency
Base Rate therefor in the
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Administrative Schedule or, in the case of any Future Foreign Subsidiary
Borrower, the Joinder Agreement with respect thereto.
"Eurocurrency Rate": with respect to each day during each
Interest Period pertaining to a Eurocurrency Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurocurrency Base Rate
------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurocurrency Loan": any Loan bearing interest by reference to
the applicable Eurocurrency Rate.
"Eurocurrency Reserve Requirements": for any day as applied to
any Eurocurrency Loan, the aggregate (without duplication) of the
maximum rates (expressed as a decimal fraction) of reserve requirements
in effect on such day (including, without limitation, basic,
supplemental, marginal and emergency reserves) under any regulations of
any applicable Governmental Authority for the Specified Borrower dealing
with reserve requirements prescribed for eurocurrency funding (in the
case of the US Borrower, currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board).
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Excess Cash Flow": for any fiscal year of US Borrower, the
excess of (a) the sum, without duplication, of (i) Consolidated EBITDA
for such fiscal year, (ii) the amount of returned surplus assets of any
Plan during such fiscal year to the extent not included in Consolidated
Net Income to determine Consolidated EBITDA for such fiscal year, (iii)
decreases in Consolidated Working Capital of the US Borrower and its
Subsidiaries for such fiscal year, (iv) the amount of any refund
received by Holdings and its Subsidiaries on taxes paid by US Borrower
and its Subsidiaries, (v) cash dividends, cash interest and other
similar cash payments received by Holdings in respect of investments to
the extent not included in Consolidated Net Income to determine
Consolidated EBITDA for such fiscal year and (vi) extraordinary cash
gains to the extent subtracted or otherwise not included in Consolidated
Net Income to determine Consolidated EBITDA for such fiscal year over
(b) the sum, without duplication, of (i) the aggregate amount of cash
Capital Expenditures made by US Borrower and its Subsidiaries during
such fiscal year and permitted hereunder (other than Capital
Expenditures permitted under subsection 8.8(c)), (ii) the aggregate
amount of all reductions of the Revolving Credit Commitments or payments
or prepayments of the Term Loans during such fiscal year other than
pursuant to subsection 2.10(a), (b) or (c), (iii) the aggregate amount
of payments of principal in respect of any Indebtedness permitted
hereunder during such fiscal year (other than under this Agreement),
(iv) increases in Consolidated Working Capital of US Borrower and its
Subsidiaries for such fiscal year, (v) cash interest expense of US
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Borrower and its Subsidiaries for such fiscal year, (vi) taxes actually
paid in such fiscal year or to be paid in the subsequent fiscal year on
account of such fiscal year to the extent added to Consolidated Net
Income to determine Consolidated EBITDA for such fiscal year, (vii)
extraordinary cash losses to the extent added to Consolidated Net Income
to determine Consolidated EBITDA for such fiscal year and (viii) the
amount of all Investments made in such fiscal year as permitted by
clauses (d), (h) and (j) of subsection 8.9, provided that (x) increases
or decreases in Consolidated Working Capital resulting from any
acquisition shall be excluded from the calculation of Excess Cash Flow
and (y) net income of any Foreign Subsidiary of the US Borrower which is
not a Credit Party will only be included to the extent distributed to a
Credit Party. Notwithstanding the foregoing, all payments made and
received in connection with the Chips Acquisition, the Forward
Acquisition and the refinancing of the Senior Subordinated Indebtedness
shall be excluded from the calculation of Excess Cash Flow.
"Excluded Leased Properties": the collective reference to the
real properties leased by Holdings or any of its Subsidiaries described
on Part III of Schedule 5.20, including all buildings, improvements,
structures and fixtures now or subsequently located thereon.
"Existing Borrowers": as defined in the recitals hereto.
"Existing Canadian Lenders": the several Canadian banks and
other financial institutions parties to the Existing Credit Agreement,
as Canadian Lenders on the Chips Closing Date.
"Existing Canadian Revolving Credit Loans": as defined in
subsection 2.1(b).
"Existing Canadian Term Loans": as defined in subsection 2.6(a).
"Existing Credit Agreement": as defined in the recitals hereto.
"Existing English Lenders": the several banks and other
financial institutions parties to the Existing Credit Agreement, as
English Lenders on the Chips Closing Date.
"Existing English Revolving Credit Loans": as defined in
subsection 2.1.
"Existing Lenders": as defined in the recitals hereto.
"Existing Revolving Credit Loans": as defined in subsection
2.1(c).
"Existing US Lenders": the several banks and other financial
institutions parties to the Existing Credit Agreement, as US Lenders on
the Chips Closing Date.
"Existing US Revolving Credit Loans": as defined in subsection
2.1(a).
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"Existing US Term Loans": as defined in subsection 2.5.
"Facility Fee": as defined in subsection 2.3(b).
"Fee Properties": the collective reference to the real
properties owned in fee by Holdings and its Subsidiaries described on
Part I of Schedule 5.20, including all buildings, improvements,
structures and fixtures now or subsequently located thereon.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Foreign Accommodations": any Accommodation issued for the
account of any Foreign Subsidiary Borrower by the Specified Issuing
Lender.
"Foreign Agents": the collective reference to the Canadian Agent,
the English Agent, and any Future Foreign Agent.
"Foreign Issuing Lenders": the collective reference to the
Canadian Issuing Lender, the English Issuing Lender, and the Future
Foreign Issuing Lender.
"Foreign Lenders": the collective reference to the Canadian
Lenders, the English Lenders, and any Future Foreign Subsidiary Lenders.
"Foreign Loans": the collective reference to the Canadian Loans,
the Chips Loans, the English Loans, and any Future Foreign Subsidiary
Loans.
"Foreign Obligations": the collective reference to the Canadian
Obligations, the Chips Obligations, the English Obligations, and any
Future Foreign Subsidiary Obligations.
"Foreign Revolving Credit Commitments": the collective reference
to the Canadian Revolving Credit Commitments, the Chips Revolving Credit
Commitments, the English Revolving Credit Commitments and any Future
Foreign Subsidiary Revolving Credit Commitments."
"Foreign Revolving Credit Lenders": the collective reference to
the Canadian Revolving Credit Lenders, the English Revolving Credit
Lenders, and any Future Foreign Subsidiary Revolving Credit Lenders."
"Foreign Revolving Credit Loans": the collective reference to
the Canadian Revolving Credit Loans, the Chips Revolving Credit Loans,
the English Revolving Credit Loans, and any Future Foreign Subsidiary
Revolving Credit Loans.
"Foreign Subsidiary": as to any Person any Subsidiary of such
Person which is organized under the laws of any jurisdiction outside of
the country in which such Person is organized.
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"Foreign Subsidiary Borrowers": the collective reference to the
Canadian Borrower, the English Borrower, English Bidco, Chips Limited,
ISL and any Future Foreign Subsidiary Borrower.
"Foreign Subsidiary Term Loans": the collective reference to the
Canadian Term Loans, Chips Limited Term Loans (to the extent converted
to Loans of Chips Limited as provided in subsection 2.6(f)) and any
Future Foreign Subsidiary Term Loans.
"Foreign Subsidiary Term Loan Lenders": the collective reference
to the Canadian Term Loan Lenders, Chips Limited Term Loan Lenders (to
the extent made to Chips Limited) and any Future Foreign Subsidiary Term
Loan Lender.
"Foreign Swing Line Lenders": the collective reference to the
Canadian Swing Line Lender and any Future Foreign Subsidiary Swing Line
Lenders.
"Future Acquisition Documents": any documents evidencing a
Permitted Acquisition or any other acquisition permitted in any
amendment hereto.
"Future Foreign Agent": any administrative agent appointed for
any Future Foreign Subsidiary Lenders .
"Future Foreign Issuing Lender": any issuing lender for
Accommodations for the account of a Future Foreign Subsidiary Borrower
appointed pursuant to any Joinder Agreement.
"Future Foreign Subsidiary Borrower": any Subsidiary of
International Holdings that becomes a borrower hereunder pursuant to any
Joinder Agreement.
"Future Foreign Subsidiary Lenders": as to any Future Foreign
Subsidiary Borrower, the Lenders to such Future Foreign Subsidiary
Borrower.
"Future Foreign Subsidiary Loans": as to any Future Foreign
Subsidiary Borrower, the Loans made by the Future Foreign Subsidiary
Lenders to such Future Foreign Subsidiary Borrower.
"Future Foreign Subsidiary Obligations": with respect to any
Future Foreign Subsidiary Borrower, the unpaid principal of and interest
on (including, without limitation, interest accruing after the maturity
of the Specified Loans of such Future Foreign Subsidiary Borrower and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding,
relating to the such Future Foreign Subsidiary Borrower, whether or not
a claim for post-filing or post-petition interest is allowed in such
proceeding) the Specified Loans of such Future Foreign Subsidiary
Borrower and all other obligations and liabilities of such Future
Foreign Subsidiary Borrower to the Specified Agent or to the Specified
Lenders, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise
under, out of, or
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in connection with, this Agreement, any notes thereunder or the other
Specified Loan Documents or any Interest Rate Agreement entered into
with a Specified Lender of such Foreign Subsidiary Borrower and any
other document made, delivered or given in connection therewith, whether
on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, all fees
and disbursements of counsel to the Specified Agent or to such Specified
Lenders that are required to be paid by such Future Foreign Subsidiary
Borrower pursuant to the terms of this Agreement) or otherwise.
"Future Foreign Subsidiary Revolving Credit Commitments": as to
any Future Foreign Subsidiary Borrower, the obligation of each Specified
Revolving Credit Lender with respect thereto to make Specified Revolving
Credit Loans to such Future Foreign Subsidiary Borrower pursuant to the
applicable Joinder Agreement and, to the extent applicable, to
participate in Specified Swing Line Loans and Specified Accommodations
in an aggregate amount not to exceed at any one time outstanding the
amount set forth opposite such Specified Lender's name in the amount set
forth in the applicable Joinder Agreement, as such amount may be reduced
from time to time as provided herein.
"Future Foreign Subsidiary Revolving Credit Lenders": as to any
Future Foreign Subsidiary Borrower, any Lenders holding Specified Future
Foreign Subsidiary Revolving Credit Commitments.
"Future Foreign Subsidiary Revolving Credit Loans": as to any
Future Foreign Subsidiary Borrower, any revolving credit loans made to
such Future Foreign Subsidiary Borrower by the Future Foreign Subsidiary
Revolving Credit Lenders.
"Future Foreign Subsidiary Swing Line Lender": as to any Future
Foreign Subsidiary Borrower, any Lender having a Specified Swing Line
Commitment or that holds outstanding Specified Swing Line Loans.
"Future Foreign Subsidiary Term Loans": as to any Future Foreign
Subsidiary Borrower, any term loans made to such Future Foreign
Subsidiary Borrower by the Specified Lenders.
"Future Foreign Subsidiary Term Loan Lender": any Future Foreign
Subsidiary Lender that holds outstanding Future Foreign Subsidiary Term
Loans.
"GAAP": the generally accepted accounting principles in the
United States of America (or, in the case of financial statements for
any period prior to the date it became a Foreign Subsidiary Borrower,
any Foreign Subsidiary Borrower and its Subsidiaries and in the case of
subsections 7.3, 8.3(b), 5.1(b) and (c), and 5.10, in the country of
organization of such Foreign Subsidiary Borrower) as in effect from time
to time set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and the statements and pronouncements of the Financial
Accounting Standards Board and the rules and regulations of the
Securities and Exchange Commission (or in the case of a
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Foreign Subsidiary Borrower, for any period prior to the date it became
a Foreign Subsidiary Borrower and in the case of subsections 7.3,
8.3(b), 5.1(b) and (c), and 5.10, the applicable authority in such
country of organization of such Foreign Subsidiary Borrower), or in such
other statements by such other entity as may be in general use by
significant segments of the accounting profession, which are applicable
to the circumstances of Holdings as of the date of determination except
that for purposes of subsection 8.1, GAAP shall be determined on the
basis of such principles in effect on the date hereof and consistent
with those used in the preparation of the financial statements referred
to in subsections 5.1(a) and (b), as the case may be. In the event that
any "Accounting Change" (as defined below) shall occur and such change
results in a change in the method of calculation of financial covenants,
standards or terms in this Agreement, then Holdings, the Borrowers and
the Administrative Agent agree to enter into negotiations in order to
amend such provisions of this Agreement so as to equitably reflect such
Accounting Changes with the desired result that the criteria for
evaluating Holdings' financial condition shall be the same after such
Accounting Changes as if such Accounting Changes had not been made.
Until such time as such an amendment shall have been executed and
delivered by Holdings, the Borrowers, the Administrative Agent and the
Required Lenders, all financial covenants, standards and terms in this
Agreement shall continue to be calculated or construed as if such
Accounting Changes had not occurred. "Accounting Changes" means:
changes in accounting principles required by the promulgation of any
rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public
Accountants or, if applicable, the Securities and Exchange Commission
(or successors thereto or agencies with similar functions).
"Governmental Authority": any nation or government, any state,
province, municipality, or other political subdivision thereof and any
entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guarantee and Collateral Agreement": the Amended and Restated
Guarantee and Collateral Agreement dated as of April 11, 1997 made by
Holdings, the US Borrower and its Domestic Subsidiaries in favor of the
Collateral Agent for the ratable benefit of the Secured Parties, as the
same may be amended, supplemented or otherwise modified from time to
time.
"Guaranteed Loan Notes": loan notes of English Bidco issued
pursuant to the Offer at the election of holders of English Shares
having the term contained in the Guaranteed Loan Note Instrument and
guaranteed by Chase.
"Guaranteed Loan Note Instrument": the Guaranteed Loan Note
Instrument between Chase and English Bidco, dated as of April 8, 1997,
as the same may be amended, supplemented, or otherwise modified from
time to time in accordance with its terms.
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"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of
the guaranteeing person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may
be liable are not stated or determinable, in which case the amount of
such Guarantee Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as determined by the
board of directors of such Person in good faith.
"HMTFI" and "HMTFI Group": as defined in the definition of
"Change of Control".
"Holdings": as defined in the preamble hereto.
"Holdings Contribution": the contribution on April 11, 1997 by
Holdings of the Capital Stock of (i) VTC, (ii) Canadian Borrower and
(iii) to the extent directly owned by Holdings, English Holding Company
to the US Borrower and the contribution by the US Borrower of the
Capital Stock of English Holding Company to International Holdings.
"Indebtedness": of any Person at any date, without duplication
(a) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than current
trade liabilities incurred in the ordinary course of business and
payable in accordance with customary practices and accrued expenses
incurred in the ordinary course of business) or which is evidenced by a
note, bond, debenture or similar instrument, (b) all obligations of such
Person under Financing Leases, (c) all obligations of such Person in
respect of bankers' acceptances or similar
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instruments issued or created for the account of such Person, (d) all
liabilities secured by any Lien on any property owned by such Person
even though such Person has not assumed or otherwise become liable for
the payment thereof; provided however, that the amount of such
Indebtedness of any Person described in this clause (d) shall, for
purposes of this Agreement, be deemed to be equal to the lesser of (i)
the aggregate unpaid amount of such Indebtedness and (ii) the fair
market value of the property or asset encumbered, as determined by such
Person in good faith; and (e) the Accommodation Obligations of the US
Borrower with respect to the principal portion of the Chips Letter of
Credit.
"Initial Public Offering": means an underwritten public offering
of common stock of Holdings pursuant to a registration statement filed
with the Securities and Exchange Commission in accordance with the
Securities Act of 1933, as amended.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245
of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": as defined in subsection 5.9.
"Interest Coverage Ratio": for any period, with respect to US
Borrower, the ratio of (a) Consolidated EBITDA to (b) consolidated cash
interest expense (including any such cash interest expense in respect of
Indebtedness under Financing Leases and purchase money Indebtedness
permitted under subsection 8.2(e)) of US Borrower and its Subsidiaries
net of cash interest income (such consolidated cash interest expense to
include fees payable on account of letters of credit and banker's
acceptances but to exclude amortization of debt discount (including
discount of liabilities and reserves established under Accounting
Principles Board Opinion No. 16 as in effect on the date hereof) and
costs of debt issuance).
"Interest Payment Date": (a) as to any Base Rate Loan, the Base
Rate Payment Date set forth on the Administrative Schedule or the
applicable Joinder Agreement, (b) as to any Eurocurrency Loan having an
Interest Period of three months or less, the last day of such Interest
Period and (c) as to any Eurocurrency Loan having an Interest Period
longer than three months, each day which is three months or a whole
multiple thereof, after the first day of such Interest Period as well as
the last day of such Interest Period.
"Interest Period": with respect to any Eurocurrency Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
Eurocurrency Loan and ending at the end of any Permitted Interest
Period, as selected by the Specified Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with
respect thereto; and
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(b) thereafter, each period commencing on the last day of
the immediately preceding Interest Period applicable to such
Eurocurrency Loan and ending at the end of any Permitted Interest
Period, as selected by the Specified Borrower by irrevocable
notice to the Specified Agent not less than three Business Days
prior to the last day of the then current Interest Period with
respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a Eurocurrency
Loan would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(2) no Interest Period shall extend beyond the Scheduled
Revolving Credit Commitment Termination Date in the case of
Revolving Credit Loans or the scheduled date final payment is due
on any tranche or class of Term Loans in the case of such tranche
or class of Term Loans;
(3) no Interest Period with respect to any tranche or
class of the Term Loans shall extend beyond any date upon which
repayment of principal thereof is required to be made if, after
giving effect to the selection of such Interest Period, the
aggregate principal amount of such tranche or class of Term Loans
with Interest Periods ending after such date would exceed the
aggregate principal amount of such tranche or class of Term Loans
permitted to be outstanding after such scheduled repayment; and
(4) any Interest Period pertaining to a Eurocurrency Loan
that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month.
"Interest Rate Agreement": any interest rate protection
agreement, interest rate, commodity or currency future, interest rate
option, interest rate cap or other interest rate, commodity or currency
hedge arrangement, to or under which Holdings or its Subsidiaries is a
party or a beneficiary on the date hereof or becomes a party or a
beneficiary after the date hereof.
"International Holdings": Viasystems International, Inc., a
Delaware corporation.
"Investments": as defined in subsection 8.9.
"ISL": as defined the preamble hereto.
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"Issuing Lenders": the collective reference to the US Issuing
Lender and the Foreign Issuing Lenders.
"ITA": the Income Tax Act (Canada) and the regulations
promulgated thereunder, as amended or re-enacted from time to time.
"Joinder Agreement": a Joinder Agreement duly completed and
executed by (i) the US Borrower, Holdings and a Subsidiary of
International Holdings, (ii) the Administrative Agent, (iii) the
Specified Agent and (iv) each Specified Lender, and consented to by the
Required Lenders (such consent to be given or withheld in the reasonable
discretion of each Lender) and the Domestic Subsidiaries of the US
Borrower, pursuant to which (a) such Subsidiary agrees to become a
Foreign Subsidiary Borrower hereunder, (b) the Specified Agent agrees to
act on behalf of the Specified Lenders and, to the extent not already an
Agent, agrees to become an Agent hereunder, (c) each Specified Lender
agrees to make extensions of credit to or for the account of the
Specified Foreign Subsidiary Borrower to the extent set forth in such
Joinder Agreement and, to the extent not already a Lender, agrees to
become a Lender hereunder and (d) Holdings, the US Borrower and its
Domestic Subsidiaries confirm their guarantees in respect of the
Specified Obligations and which sets forth (x) the information for the
Specified Borrower, the Specified Loans and Specified Accommodations
required by the Administrative Schedule and any other administrative
provisions (including amortization schedules, and Applicable Margins)
not inconsistent with this Agreement and (y) the legal opinions, closing
certificates, guarantees and collateral security documents to be
delivered in connection therewith.
"Judgment Conversion Date": as defined in subsection 12.11(a).
"Judgment Currency": as defined in subsection 12.11(a).
"Leased Properties": the collective reference to the real
properties leased by Holdings and its Subsidiaries described on Part II
of Schedule 5.20 (other than the Excluded Leased Properties) including
all buildings, improvements, structures and fixtures now or subsequently
located thereon and owned or leased by the Borrower.
"Lenders": the collective reference to the US Lenders and the
Foreign Lenders.
"Letter of Credit": any Standby L/C or Trade L/C, collectively,
the "Letters of Credit."
"Letter of Credit Application": with respect to (a) a Standby
L/C, a Standby L/C Application and (b) a Trade L/C, a Trade L/C
Application; collectively, the "Letter of Credit Applications".
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest
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or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and
any Financing Lease having substantially the same economic effect as any
of the foregoing).
"Loan Documents": the collective reference to this Agreement,
the Notes, the Letter of Credit Applications, the Assignment, the
Guarantee and Collateral Agreement, any other document, instrument or
agreement guaranteeing, or granting a Lien to secure any Obligations
and, as it relates to the Secured Parties only, the Sharing Agreement.
"Loans": the collective reference to the US Loans, Canadian
Loans, Chips Loans, English Loans, and any Future Foreign Subsidiary
Loans.
"Majority Class Lenders": as defined in subsection 12.1.
"Material Adverse Change": any event, development, or
circumstance that has had or could reasonably be expected to have a
Material Adverse Effect.
"Material Adverse Effect": a material adverse effect on (a) the
Transactions (b) the business, operations, property, condition
(financial or otherwise) or prospects of Holdings and its Subsidiaries,
taken as a whole, (c) the ability of Holdings and its Subsidiaries,
taken as a whole, to perform their respective obligations under this
Agreement, any of the other Loan Documents, or documents relating to the
Transactions or (d) the validity or enforceability of this Agreement or
any of the other Loan Documents or the rights or remedies of the Secured
Parties hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or
regulated as such in or under any Environmental Law, including, without
limitation, friable asbestos, polychlorinated biphenyls and urea-
formaldehyde insulation.
"▇▇▇▇▇": ▇▇▇▇▇ & Partners, Inc.
"Mortgaged Properties": the collective reference to the Fee
Properties owned by the Borrower and its Subsidiaries listed on Part IV
of Schedule 5.20.
"Mortgages": the collective reference to the mortgages and deeds
of trust encumbering each of the Mortgaged Properties to be executed and
delivered by the US Borrower or its Domestic Subsidiaries, substantially
in the form of Exhibit B-2, with such modifications as are determined by
the Administrative Agent as necessary or desirable to create a valid and
enforceable first mortgage Lien securing the obligations and liabilities
of any Borrower or any guarantor under any Loan Document, as the same
may be amended, supplemented, replaced, restated, or otherwise modified
from time to time.
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"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale
(including any sale and leaseback of assets and any sale of accounts
receivable in connection with a receivables financing transaction) the
cash proceeds (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale net of all reasonable legal fees, notarial
fees, accountants' fees, investment banking fees, survey costs, title
insurance premiums, required debt payments (other than pursuant hereto)
and other customary fees actually incurred and satisfactorily documented
in connection therewith and net of taxes paid or reasonably expected to
be payable as a result thereof and net of purchase price adjustments
reasonably expected to be payable in connection therewith and (b) in
connection with any issuance by Holdings or any of its Subsidiaries of
equity or debt securities or instruments or any Permitted Issuance or
the incurrence of loans other than Indebtedness permitted by subsection
8.2, the cash proceeds received from such issuance, net of all
reasonable investment banking fees, legal fees, notarial fees,
accountants fees, underwriting discounts and commissions and other
customary fees and expenses, actually incurred and satisfactorily
documented in connection therewith; provided however that, with respect
to any issuance of debt instruments or securities as described in clause
(b) above, only in the event that such net cash proceeds are used to
refinance any Indebtedness permitted by this Agreement, then such net
cash proceeds shall not constitute "Net Cash Proceeds" for the purpose
of this Agreement.
"Non-Excluded Taxes": as defined in subsection 4.7.
"Non-Funding Lender": as defined in subsection 4.4(c).
"Nonconsenting Lender": as defined in subsection 4.9.
"Notes": the collective reference to the Revolving Credit Notes,
the Swing Line Notes, and the Term Notes.
"Obligations": the collective reference to the Domestic
Obligations, Canadian Obligations, Chips Obligations, English
Obligations, and any Future Foreign Subsidiary Obligations.
"Offer": as defined in the Existing Credit Agreement.
"Participation Certificate": a certificate in substantially the
form of Exhibit B.
"Partnership": HMTF Acquisition, L.P., a Delaware limited
partnership organized and formed by Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇
Incorporated and ▇▇▇▇▇ and Partners, which was merged into Holdings on
April 11, 1997 pursuant to the English Holding Company Acquisition.
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"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"PCB Acquisition Agreement": the definitive merger agreement,
dated as of April 11, 1997, by and between Holdings and Partnership.
"PCB Acquisition Documents": the PCB Acquisition Agreement and
all other agreements, instruments or certificates delivered in
connection with the English Holding Company Acquisition.
"Permitted Acquisition": the acquisition by a Subsidiary of
Holdings of a business related to Holdings' and its Subsidiaries'
business as approved by the board of directors of Holdings.
"Permitted Interest Period": as to any Eurocurrency Loan, the
permitted interest period lengths set forth in the Administrative
Schedule, or, in the case of a Future Foreign Subsidiary Borrower, set
forth in the applicable Joinder Agreement.
"Permitted Issuance": (a) the issuance by Holdings of shares of
Capital Stock as dividends on issued and outstanding Capital Stock of
the same class of Holdings or pursuant to any dividend reinvestment
plan, (b) the issuance by Holdings of options or other equity securities
of Holdings to outside directors, members of management or employees of
Holdings or any Subsidiary of Holdings, (c) the issuance of securities
as interest or dividends on pay-in-kind debt or preferred equity
securities permitted hereunder and under the other Loan Documents, (d)
the issuance to Holdings or any Subsidiary (or any director, with
respect to directors' qualifying shares) by any of its Subsidiaries of
any of their respective Capital Stock, in each case with respect to this
clause (d) to the extent such Capital Stock is pledged to the Collateral
Agent or the Specified Foreign Agent, as the case may be, pursuant to
the applicable Loan Document (provided that (i) only 65% of the voting
Capital Stock of any direct Foreign Subsidiary of the US Borrower is
required to be so pledged and (ii) no voting Capital Stock of any
indirect Foreign Subsidiary of the US Borrower is required to be so
pledged unless such Foreign Subsidiary is also a Subsidiary of a Foreign
Subsidiary Borrower, in which case subsection 7.12 shall be complied
with), (e) the issuance by Holdings of shares of its common stock in
connection with a Permitted Acquisition, (f) cash payments made in lieu
of issuing fractional shares of Holdings Capital Stock in an aggregate
amount not to exceed $100,000, (g) the Stock Exchange and (h) the
issuance by Holdings of shares of Capital Stock of Holdings to infuse
additional capital into Holdings in an aggregate amount not to exceed
$25,000,000.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or,
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if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledged Securities": as defined in the Guarantee and Collateral
Agreement.
"Pounds Sterling": legal currency of the United Kingdom.
"Process Agent": as defined in subsection 12.15(f).
"Properties": as defined in subsection 5.16.
"Qualified Issuer": as defined in Section VI of the
Administrative Schedule.
"Ratable Portion": for each Specified Lender, the amount of such
Lender's pro rata portion of any applicable Specified Loan.
"Regulation G, T, U or X": Regulation G, T, U or X of the Board
as in effect from time to time.
"Related Business" means any business which is the same as or
related, ancillary or complementary to any of the businesses of the US
Borrower and its Subsidiaries on the Chips Closing Date, as reasonably
determined by the US Borrower's Board of Directors.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA and the regulations thereunder, other than those events
as to which the thirty day notice period is waived under subsections
.13, .14, .16, .18, .19 or .20 of PBGC Reg. Section 2615.
"Required Lenders": at any time, Lenders the Total Credit
Percentages of which aggregate at least a majority.
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents
of such Person, and any present or future law, treaty, statute, rule,
regulation, common law or determination of an arbitrator or a court or
other Governmental Authority and all official directives, consents,
approvals, authorizations, guidelines, restrictions and policies of any
Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its
property is subject.
"Responsible Officer": as to any Person, the chief executive
officer, the president, the chief financial officer, managing or other
director, any vice president, secretary, any assistant secretary,
treasurer or any assistant treasurer of such Person.
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"Restricted Payments": as defined in subsection 8.7.
"Revolving Credit Commitments": the collective reference to the
US Revolving Credit Commitments and the Foreign Revolving Credit
Commitments.
"Revolving Credit Commitment Percentage": as to any Specified
Revolving Credit Lender, the percentage of the aggregate Specified
Revolving Credit Commitments constituted by its Specified Revolving
Credit Commitment.
"Revolving Credit Lenders": the collective reference to the US
Revolving Credit Lenders and the Foreign Revolving Credit Lenders.
"Revolving Credit Loans": the collective reference to the US
Revolving Credit Loans and the Foreign Revolving Credit Loans.
"Revolving Credit Note" and "Revolving Credit Notes": as defined
in subsection 2.8(e).
"Richmond Acquisition": the acquisition on November 30, 1996 by
VTC of the Richmond Business pursuant to the Richmond Acquisition
Agreement.
"Richmond Acquisition Agreement": the Acquisition Agreement
dated as of November 26, 1996, among VTC and Lucent Technologies Inc.,
together with all schedules and exhibits thereto, as amended,
supplemented or otherwise modified from time to time in accordance with
subsection 8.16.
"Richmond Acquisition Documents": the Richmond Acquisition
Agreement and all other agreements, instruments or certificates
delivered in connection with the Richmond Acquisition.
"Richmond Business": the business of designing, manufacturing
and marketing printed circuit boards, back planes and related products
and components for telecommunications and other applications of the
Interconnection Technologies Unit of Lucent Technologies Inc.
"Scheduled Revolving Credit Commitment Termination Date":
November 30, 2002 or, if such date is not a Business Day, the Business
Day next preceding such date.
"Secured Parties": the collective reference to the Collateral
Agent, the Administrative Agent, the Foreign Agents, and the Lenders.
"Senior Subordinated Financing": $216,000,000 of existing senior
subordinated indebtedness of the US Borrower incurred to finance the
English Holding Company Acquisition pursuant to a Senior Subordinated
Loan Agreement dated as of April 11, 1997.
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"Senior Subordinated Indebtedness": unsecured senior subordinated
Indebtedness of the US Borrower (including, the Senior Subordinated
Financing and any permanent refinancing thereof); provided such
indebtedness has (i) no maturity, amortization, mandatory redemption or
purchase option (other than with asset sale proceeds, subject to the
provisions of this Agreement, or following a change of control) or
sinking fund payment prior to the tenth anniversary of the Chips Closing
Date, (ii) no financial maintenance covenants, (iii) such other terms
and conditions (including without limitation, interest rate, events of
default, subordination and covenants) as shall be reasonably
satisfactory to the Administrative Agent and (iv) any permanent
refinancing shall not be less favorable to the US Borrower and the
Lenders as the Senior Subordinated Financing taken as a whole.
"Senior Subordinated Notes": as defined in subsection 6.1(f).
"Sharing Agreement": the Amended and Restated Sharing Agreement
dated as of April 11, 1997 among the Collateral Agent, the
Administrative Agent and the Foreign Agents, as the same may be amended,
supplemented or otherwise modified from time to time.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvent" and "Solvency": with respect to any Person on a
particular date, that on such date, (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair saleable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and matured, (c)
such Person does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay as such debts
and liabilities mature, and (d) such Person is not engaged in business
or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute an
unreasonably small capital; provided for purposes of any Person
organized under the laws of England and Wales, the term "Solvent" shall
mean that with respect to such Person on a particular date, that on such
date, such Person has the ability to pay its debts as and when they fall
due and could not be deemed to be insolvent for purposes of the
Insolvency Act of 1986.
"Specified": when used in relation to any Borrower, any Loans
(or portion, type or class thereof), Accommodations, Assignee,
Commitment, Agent, Issuing Lender, Lenders (or subclass thereof),
Obligations (or portion thereof), Accommodation Outstandings and/or any
other defined term herein, the applicable Borrower and/or the Loans to,
Accommodations for the benefit of, Commitments to, Agent in respect of,
Issuing Lender in respect of, Lenders to, Obligations owing by, and
other terms relating to such Borrower or defined term, as the context
may require.
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"Specified Accommodation Obligation": in respect of any
Specified Borrower the obligation of such Specified Borrower to
reimburse the Specified Issuing Lender in accordance with the terms of
this Agreement and any related Letter of Credit Application for any
payment made or honored by the Specified Issuing Lender under any
Accommodation.
"Specified Accommodation Participating Interest": with respect
to any Accommodation, (a) in the case of the Specified Issuing Lender
with respect thereto, its interest in such Accommodation after giving
effect to the granting of participating interests therein, if any,
pursuant hereto and (b) in the case of each Specified Participating
Lender, its undivided participating interest in such Accommodation
relating thereto.
"Specified Borrower Percentage": with respect to any Specified
Borrower, at any date of determination, the percentage of the Term Loans
at such date constituted by the Specified Term Loans of such Specified
Borrower at such time.
"Specified Notice Time": as to any notice of borrowing,
prepayment, conversion or rollover by any Specified Borrower, the
Specified Notice Time set forth in the Administrative Schedule, or in
the case of any Future Foreign Subsidiary Borrower, the applicable
Joinder Agreement.
"Specified Participant": as defined in subsection 12.6(b).
"Specified Participating Lender": with respect to any
Accommodation, any Specified Revolving Credit Lender (other than the
Specified Issuing Lender) any Chips Acquisition Term Loan Lender or any
Chips Limited Term Loan Lender with respect to its Specified
Accommodation Participating Interest in such Accommodation.
"Specified Refunded Swing Line Loans": as defined in subsection
2.15(b).
"Specified Register": as defined in subsection 12.6(d).
"Specified Revolving Credit Commitment Period": with respect to
any Specified Borrower, the Specified Revolving Credit Commitment Period
set forth in the Administrative Schedule, or in the case of any Future
Foreign Subsidiary Borrower, the applicable Joinder Agreement.
"Specified Revolving Credit Commitment Termination Date": with
respect to any Specified Borrower, the Specified Revolving Credit
Commitment Termination Date set forth in the Administrative Schedule, or
in the case of any Future Foreign Subsidiary Borrower, the applicable
Joinder Agreement.
"SPPAQ": the Supplemental Pensions Plan Act (Quebec), as
amended, and any successor thereto, and any regulations promulgated
thereunder.
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"Standby L/C": an irrevocable letter of credit issued by a
Specified Issuing Lender pursuant to this Agreement for the account of
the related Specified Borrower in respect of obligations of such
Specified Borrower incurred pursuant to contracts made or performances
undertaken or to be undertaken or like matters relating to contracts to
which such Specified Borrower is or proposes to become a party,
including, without limiting the foregoing, for insurance purposes.
"Standby L/C Application": as defined in subsection 3.2.
"Stock Exchange": as defined in the recitals hereto.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled, directly
or indirectly through one or more intermediaries, or both, by such
Person, including, as to any Person incorporated in England or Wales,
(A) a subsidiary within the meaning of Section 736 of the Companies ▇▇▇
▇▇▇▇, and (B) unless the context otherwise requires, a subsidiary
undertaking within the meaning of Section 258 of the Companies ▇▇▇ ▇▇▇▇.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of US Borrower.
"Supply Agreement": the Supply Agreement dated November 26, 1996
between Lucent Technologies Inc. and VTC substantially in the form of
Exhibit 5.7(d) to the Richmond Acquisition Agreement, as amended,
supplemented or otherwise modified from time to time.
"Swing Line Commitment": any Specified Swing Line Lender's
obligation to make Specified Swing Line Loans pursuant to subsection
2.15 as set forth in the Administrative Schedule or, in the case of a
Future Foreign Subsidiary Borrower, the applicable Joinder Agreement.
"Swing Line Lenders": the collective reference to the US Swing
Line Lenders and the Foreign Swing Line Lenders.
"Swing Line Loan Participation Certificate": a certificate in
substantially the form of Exhibit C.
"Swing Line Loans": as to any Specified Swing Line Lender, the
Specified Swing Line Loans of such Specified Swing Line Lender.
"Swing Line Note": as defined in subsection 2.8(e).
"Term Loans": the collective reference to the US Term Loans, the
Chips Acquisition Term Loans, the Foreign Subsidiary Term Loans and to
the extent not
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included therein, the Chips Limited Term Loans; provided all references
to the Term Loans (except in subsection 2.9) shall include any portion
of the reimbursement obligations of the US Borrower under the Chips
Letter of Credit to be converted to Chips Acquisition Term Loans or
Chips Limited Term Loans.
"Term Loan Lenders": the collective reference to the US Term
Loan Lenders, the Chips Acquisition Term Loan Lenders, the Chips Limited
Term Loan Lenders and the Foreign Subsidiary Term Loan Lenders.
"Term Note" and "Term Notes": as defined in subsection 2.8(e).
"Total Credit Percentage": as to any Lender at any time, the
percentage of the aggregate Revolving Credit Commitments and outstanding
Term Loans then constituted by its Revolving Credit Commitments and its
outstanding Term Loans (or, if the Revolving Credit Commitments have
terminated or expired, the percentage of the aggregate outstanding Loans
and risk interests in the aggregate Accommodation Outstandings and Swing
Line Loans then constituted by its outstanding Loans, and risk interests
in Accommodation Outstandings and Swing Line Loans).
"Trade L/C": a commercial documentary letter of credit issued by
a Specified Issuing Lender pursuant to subsection 3.1 for the account of
a Specified Borrower for the purchase of goods in the ordinary course of
business.
"Trade L/C Application": as defined in subsection 3.2.
"Tranche": the reference to Eurocurrency Loans or Canadian B/As,
as applicable, of a Specified Borrower the Interest Periods or Canadian
Contract Periods, as applicable, with respect to all of which begin on
the same date and end on the same later date (whether or not such Loans
shall originally have been made on the same day); Tranches may be
identified as "Eurocurrency Tranches" or "Canadian B/A Tranches", as
applicable.
"Tranche A Term Loans": as to any Tranche A Term Loan Lender,
its term loan to the US Borrower described in subsection 2.5(b)(i).
"Tranche A Term Loan Lender": any US Lender that holds
outstanding Tranche A Term Loans.
"Tranche A Term Loan Percentage": as to any Tranche A Term Loan
Lender, the percentage of the aggregate outstanding Tranche A Term Loans
constituted by its Tranche A Term Loan.
"Tranche B Term Loan": as to any Tranche B Term Loan Lender, its
term loan to the US Borrower described in subsection 2.5(b)(ii).
"Tranche B Term Loan Lender": any US Lender that holds
outstanding Tranche B Term Loans.
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"Tranche B Term Loan Percentage": as to any Tranche B Term Loan
Lender, the percentage of the aggregate outstanding Tranche B Term Loans
constituted by its Tranche B Term Loan.
"Tranche C Term Loan": as to any Tranche C Term Loan Lender, its
term loan to the US Borrower described in subsection 2.5(b)(iii).
"Tranche C Term Loan Lender": any US Lender that holds
outstanding Tranche C Term Loans.
"Tranche C Term Loan Percentage": as to any Tranche C Term Loan
Lender, the percentage of the aggregate outstanding Tranche C Term Loans
constituted by its Tranche C Term Loan.
"Transactions": the refinancing of the existing indebtedness of
the US Borrower with the proceeds of the Senior Subordinated Notes, the
English Borrower Acquisition, the English Holding Company Acquisition,
the Holdings Contribution and the Chips Acquisition.
"Transferee": as defined in subsection 12.6(f).
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurocurrency Loan, or as Canadian B/A in the case of a Canadian Loan.
"Underlying Lease": as defined in subsection 5.8.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, and any revisions thereof.
"US Borrower": as defined in the preamble hereto.
"US Issuing Lender": Chase or Chase Delaware with respect to the
Chips Letter of Credit or any future Letters of Credit issued by Chase
Delaware for the account of the US Borrower.
"US Lenders": Lenders holding US Loans or US Revolving Credit
Commitments.
"US Letters of Credit": any Letter of Credit issued for the
account of the US Borrower by the US Issuing Lender.
"US Loan": any loan made by a US Lender to US Borrower pursuant
to this Agreement.
"US Revolving Credit Commitment": as to any US Revolving Credit
Lender, its obligation to maintain any Existing US Revolving Credit Loan
and to make
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additional US Revolving Credit Loans to the US Borrower pursuant to
subsection 2.1 and to participate in Swing Line Loans and US Letters of
Credit in an aggregate amount not to exceed at any one time outstanding
the amount set forth opposite such Revolving Credit Lender's name in
Schedule 1.1 under the heading "Revolving Credit Commitment", as such
amount may be reduced from time to time as provided herein;
collectively, as to all the US Revolving Credit Lenders, the "US
Revolving Credit Commitments."
"US Revolving Credit Lender": any US Lender having a US
Revolving Credit Commitment or that holds outstanding US Revolving
Credit Loans or Specified Accommodation Participating Interests
hereunder.
"US Revolving Credit Loans": US Loans made by any US Revolving
Credit Lender to the US Borrower pursuant to subsection 2.1.
"US Swing Line Lender": any US Lender having a Swing Line
Commitment or that holds outstanding Swing Line Loans.
"U.S. Tax Compliance Certificate": as defined in subsection
4.7(b)(ii)
"US Term Loans": as to any US Term Loan Lender, its term loans
to the US Borrower described in subsection 2.5.
"US Term Loan Lenders": the collective reference to the Tranche
A Term Loan Lenders, the Tranche B Term Loan Lenders, and the Tranche C
Term Loan Lenders.
"VTC": Viasystems Technologies Corp. (formerly known as Circo
Technologies Inc.), a Delaware corporation.
"Wholly Owned Subsidiary": as to any Person, any Subsidiary of
which such Person owns, directly or indirectly, all of the Capital Stock
of such Subsidiary other than directors' qualifying shares or any shares
held by nominees.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any Note or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any Note, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to
Holdings and its Subsidiaries not defined in subsection 1.1 and accounting
terms partly defined in subsection 1.1, to the extent not defined, shall have
the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
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(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) US Borrower's
Confirmation. The US Borrower acknowledges and confirms that the Existing US
Lenders have made revolving credit loans to it under the Existing Credit
Agreement (such revolving credit loans, the "Existing US Revolving Credit
Loans"). The US Borrower hereby represents, warrants, agrees, covenants and
reaffirms that: (i) it has no (and it permanently and irrevocably waives, and
releases the Administrative Agent and the Existing US Lenders from, any, to the
extent arising on or prior to the Chips Closing Date) defense, setoff, claim or
counterclaim against the Administrative Agent or any Existing US Lender in
regard to its Domestic Obligations in respect of such Existing US Revolving
Credit Loans and (ii) reaffirms its obligation to pay such Existing US
Revolving Credit Loans in accordance with the terms and provisions of this
Agreement and the other Loan Documents.
(b) Canadian Borrower's Confirmation. The Canadian Borrower
acknowledges and confirms that the Existing Canadian Lenders have made
revolving credit loans to it under the Existing Credit Agreement (such
revolving credit loans, the "Existing Canadian Revolving Credit Loans"). The
Canadian Borrower hereby represents, warrants, agrees, covenants and reaffirms
that: (i) it has no (and it permanently and irrevocably waives, and releases
the Canadian Agent and the Existing Canadian Lenders from, any, to the extent
arising on or prior to the Chips Closing Date) defense, setoff, claim or
counterclaim against the Canadian Agent or any Existing Canadian Lender in
regard to its Canadian Obligations in respect of such Existing Canadian
Revolving Credit Loans and (ii) reaffirms its obligation to pay such Existing
Canadian Revolving Credit Loans in accordance with the terms and provisions of
this Agreement and the other Loan Documents.
(c) English Borrower's Confirmation. The English Borrower
acknowledges and confirms that the Existing English Lenders have made revolving
credit loans to it under the Existing Credit Agreement (such revolving credit
loans, the "Existing English Revolving Credit Loans" and, together with the
Existing US Revolving Credit Loans and the Existing Canadian Revolving Credit
Loans, the "Existing Revolving Credit Loans"). The English Borrower hereby
represents, warrants, agrees, covenants and reaffirms that: (i) it has no (and
it permanently and irrevocably waives, and releases the English Agent and the
Existing English Lenders from, any, to the extent arising on or prior to the
Chips Closing Date) defense, setoff, claim or counterclaim against the English
Agent or any Existing English Lender in regard to its English Obligations in
respect of such Existing English Revolving Credit Loans and (ii) reaffirms its
obligation to pay such Existing English Revolving Credit Loans in accordance
with the terms and provisions of this Agreement and the other Loan Documents.
(d) The Lenders' Commitments. Subject to the terms and
conditions hereof, each Specified Revolving Credit Lender severally agrees to
maintain its Existing Revolving Credit Loans and to make additional Revolving
Credit Loans to the related Specified
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Borrower from time to time during the Specified Revolving Credit Commitment
Period in an aggregate principal amount or Equivalent Amount thereof in the
relevant currency, if applicable, at any one time outstanding, when added to
such Specified Lender's Specified Revolving Credit Commitment Percentage of all
Specified Accommodation Outstandings and outstanding Specified Swing Line Loans
(and Indebtedness under subsection 8.2(n)(ii) in the case of the US Borrower),
not to exceed the amount of such Specified Lender's Specified Revolving Credit
Commitment. During the Specified Revolving Credit Commitment Period, the
Specified Borrower may use the Specified Revolving Credit Commitments by
borrowing, prepaying the Specified Revolving Credit Loans in whole or in part,
and reborrowing, all in accordance with the terms and conditions hereof.
The Specified Revolving Credit Loans may from time to time be of
any available Type, as determined by the Specified Borrower and notified to the
Specified Agent in accordance with subsections 2.2 and 2.11.
2.2 Procedure for Revolving Credit Borrowing. Any Specified
Borrower may borrow under the related Specified Revolving Credit Commitment
during the Specified Revolving Credit Commitment Period on any Business Day,
provided that such Specified Borrower shall give the Specified Agent
irrevocable notice by the Specified Notice Time specifying (i) the amount and
currency to be borrowed, (ii) the requested Borrowing Date, (iii) the Type or
Types of Loan, (iv) in the case of the Canadian Borrower, if the borrowing is
to be entirely or partially of Canadian B/As, the respective amounts and
lengths of the initial Canadian Contract Period thereof, and (v) if the
borrowing is to be entirely or partly of Eurocurrency Loans, the respective
amounts of each such Type of Specified Loan and the respective lengths of the
initial Interest Periods therefor. Each borrowing under the Specified
Revolving Credit Commitments shall be in a minimum amount equal to (A) in the
case of Base Rate Loans, the Equivalent Amount of $500,000 (or, if the then
Specified Available Revolving Credit Commitments are less than the Equivalent
Amount of $500,000, such lesser amount) and (B)(x) in the case of Eurocurrency
Loans, the Equivalent Amount of $1,000,000 and (y) in the case of Canadian
B/As, C$1,600,000 or a whole multiple of C$100,000 in excess thereof. Upon
receipt of any such notice from the Specified Borrower, the Specified Agent
shall promptly notify each Specified Revolving Credit Lender thereof. Each
Specified Revolving Credit Lender will make the amount of its pro rata share of
each borrowing available to the Specified Agent for the account of the
Specified Borrower at the office of the Specified Agent specified in subsection
12.2 or any Joinder Agreement, as the case may be, prior to 11:00 a.m. local
time of the Specified Agent, on the Borrowing Date requested by the Specified
Borrower in funds immediately available to the Specified Agent. Such borrowing
will then be made available to the Specified Borrower by the Specified Agent
crediting the account of the Specified Borrower on the books of such office
with the aggregate of the amounts made available to the Specified Agent by the
Specified Revolving Credit Lenders and in like funds as received by the
Specified Agent.
2.3 Commitment Fee; Facility Fee; Administrative Agent Fees.
(a) Each Specified Borrower (other then the Canadian Borrower) agrees to pay
to the Specified Agent for the account of each Specified Revolving Credit
Lender a commitment fee for the period from and including the first day of the
Specified Revolving Credit Commitment Period to the Specified Revolving Credit
Commitment Termination Date, computed at a rate per annum
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equal to the Applicable Margin for Commitment Fees on the average daily
Specified Available Revolving Credit Commitment of such Specified Revolving
Credit Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September, and December and on the
Specified Revolving Credit Commitment Termination Date.
(b) The Canadian Borrower agrees to pay to the Canadian Agent
for the account of each Canadian Revolving Credit Lender a facility fee
("Facility Fee") for the period from and including the first day of the
Specified Revolving Credit Commitment Period to the Specified Revolving Credit
Commitment Termination Date, computed at a rate per annum equal to the
Applicable Margin for Facility Fees on the Canadian Revolving Credit Commitment
of such Canadian Lender during the period for which payment is made, payable
quarterly in arrears on the last day of each March, June, September, and
December and on the Specified Revolving Credit Commitment Termination Date.
(c) Each Borrower shall pay to Chase and the other Agents the
amounts payable by it set forth in the Fee Letters dated October 17, 1996,
March 2, 1997, March 20, 1997 and June 5, 1997 in the amounts and on the dates
set forth therein.
2.4 Termination or Reduction of Revolving Credit Commitments.
(a) Any Specified Borrower shall have the right, upon not less than five (5)
Business Days' notice to the Specified Agent, to terminate the Specified
Revolving Credit Commitments or, from time to time, reduce the unutilized
portion of the amount of the Specified Revolving Credit Commitments, provided
that any such termination of the Specified Revolving Credit Commitments shall
be accompanied by prepayment (or payment of cash collateral, as applicable in
the case of Specified Accommodations or Canadian B/As) in full of the Specified
Revolving Credit Loans, Specified Swing Line Loans and Specified Accommodation
Obligations then outstanding, together with accrued interest thereon to the
date of such prepayment, cancellation of all Specified Accommodations and the
payment of any unpaid commitment fee or Facility Fee then accrued hereunder.
Any such reduction shall be in a minimum Equivalent Amount of $500,000, and
shall reduce permanently the amount of the Specified Revolving Credit
Commitments then in effect and shall further include any amounts due in respect
thereof under subsection 4.8. Upon termination of the Specified Revolving
Credit Commitments, any Specified Accommodation (or Canadian B/A, if
applicable) then outstanding which has been fully cash collateralized shall no
longer be considered a "Specified Accommodation" (or "Canadian B/A", if
applicable) as defined in subsection 1.1, and any Specified Accommodation
Participating Interest heretofore granted by the Specified Issuing Lender to
the Specified Revolving Credit Lenders in such Specified Accommodation shall be
deemed terminated but the fees payable under subsection 3.3 shall continue to
accrue to the Specified Issuing Lender with respect to such Specified Letter of
Credit until the expiry thereof.
(b) In the case of any reduction of any Specified Revolving
Credit Commitments hereunder, to the extent, if any, that the sum of the
Specified Revolving Credit Loans, Specified Swing Line Loans and the Specified
Accommodation Outstandings exceeds the Specified Revolving Credit Commitments
as so reduced, the Specified Borrower shall make a prepayment equal to such
excess amount, the proceeds of which shall be applied
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first, to payment of the Specified Swing Line Loans then outstanding, second,
to payment of the Specified Revolving Credit Loans, except Canadian B/As (if
applicable), then outstanding, third, to payment of any Specified Accommodation
Obligations then outstanding and last, to cash collateralize any outstanding
Canadian B/As (if applicable) and Specified Accommodation on terms reasonably
satisfactory to the Specified Lenders holding a majority of the Specified
Revolving Credit Commitments.
(c) Any Specified Revolving Credit Commitments once terminated
or reduced may not be reinstated.
2.5 US Term Loans. (a) US Borrower's Confirmation. The US
Borrower acknowledges and confirms that the Existing US Lenders have previously
made term loans to, or assumed by, it (collectively, the "Existing US Term
Loans") in an aggregate principal amount of $155,000,000. The US Borrower
hereby represents, warrants, agrees, covenants and reaffirms that: (i) it has
no (and it permanently and irrevocably waives, and releases the Administrative
Agent and the Existing US Lenders from, any, to the extent arising on or prior
to the Chips Closing Date) defense, setoff, claim or counterclaim against the
Administrative Agent or any Existing US Lender in regard to its Domestic
Obligations in respect of the Existing US Term Loans and (ii) reaffirms its
obligation to pay the Existing US Term Loans in accordance with the terms and
provisions of this Agreement and the other Loan Documents.
(b) US Term Loan Lenders' Commitments. Subject to the terms and
conditions hereof, each US Term Loan Lender severally agrees to maintain its
Existing US Term Loans.
(i) Amortization of Tranche A Loans. The aggregate Tranche A
Term Loans of all the Tranche A Term Loan Lenders shall be payable in
twelve (12) consecutive semi-annual installments on the dates and in a
principal amount equal to the amount set forth below (together with all
accrued interest thereon) opposite the applicable installment date (or,
if less, the aggregate amount of the Tranche A Term Loans then
outstanding):
Installment Amount
----------- ------
June 30, 1997 $ 0
December 31, 1997 0
June 30, 1998 0
December 31, 1998 0
June 30, 1999 0
December 31, 1999 0
June 30, 2000 0
December 31, 2000 5,500,000
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June 30, 2001 8,000,000
December 31, 2001 8,000,000
June 30, 2002 11,750,000
December 31, 2002 11,750,000
(ii) Amortization of Tranche B Loans. The aggregate Tranche B
Term Loans of all the Tranche B Term Loan Lenders shall be payable in
fifteen (15) consecutive semi-annual installments on the dates and in a
principal amount equal to the amount set forth below (together with all
accrued interest thereon) opposite the applicable installment date (or,
if less, the aggregate amount of the Tranche B Term Loans then
outstanding):
Installment Amount
----------- ------
June 30, 1997 $ 250,000
December 31, 1997 250,000
June 30, 1998 250,000
December 31, 1998 250,000
June 30, 1999 250,000
December 31, 1999 250,000
June 30, 2000 250,000
December 31, 2000 250,000
June 30, 2001 250,000
December 31, 2001 250,000
June 30, 2002 250,000
December 31, 2002 250,000
June 30, 2003 16,000,000
December 31, 2003 16,000,000
June 30, 2004 20,000,000
(iii) Amortization of Tranche C Term Loans. The aggregate
Tranche C Term Loans of all the Tranche C Term Loan Lenders shall be
payable in seventeen (17) consecutive semi-annual installments on the
dates and in a principal amount equal to the amount set forth below
(together with all accrued interest thereon) opposite the applicable
installment date (or, if less, the aggregate amount of the Tranche C
Term Loans then outstanding):
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Installment Amount
----------- ------
June 30, 1997 $ 250,000
December 31, 1997 250,000
June 30, 1998 250,000
December 31, 1998 250,000
June 30, 1999 250,000
December 31, 1999 250,000
June 30, 2000 250,000
December 31, 2000 250,000
June 30, 2001 250,000
December 31, 2001 250,000
June 30, 2002 250,000
December 31, 2002 250,000
June 30, 2003 250,000
December 31, 2003 250,000
June 30, 2004 10,000,000
December 31, 2004 10,000,000
June 30, 2005 31,500,000
(c) Chips Limited Term Loan Lenders' Commitments. (i) Subject
to the terms and conditions hereof, each Chips Limited Term Loan Lender
severally agrees to make Chips Limited Term Loans on the date of any drawing
under the Chips Letter of Credit in respect of the first $249,250,000 principal
on the Chips Loan Notes which the US Borrower is obligated to reimburse for the
purpose of reimbursing such drawing, in the amount not to exceed the amount set
forth opposite such Chips Limited Term Loan Lenders' name on Schedule 1.1.
(ii) Amortization of Chips Limited Term Loans. The aggregate
Chips Limited Term Loans of all the Chips Limited Term Loan Lenders
shall be payable in ten (10) consecutive semi-annual installments on the
dates and in a principal amount equal to the amount set forth below
(together with all accrued interest thereon) opposite the applicable
installment date (or, if less, the aggregate amount of the Chips Limited
Term Loans then outstanding). Such installments shall be applied first
to repay any outstanding Chips Limited Term Loans and second to cash
collateralize the reimbursement obligations of the US Borrower under the
Chips Letter of Credit.
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Installment Amount
----------- ------
Dec. 31, 1998 $11,711,041.50
Jun. 30, 1999 $12,101,409.55
Dec. 31, 1999 $12,101,409.55
Jun. 30, 2000 $24,593,187.16
Dec. 31, 2000 $24,593,187.16
Jun. 30, 2001 $24,815,696.95
Dec. 31, 2001 $24,815,696.95
Jun. 30, 2002 $25,022,592.01
Dec. 31, 2002 $25,022,592.01
Apr. 30, 2003 $64,473,187.16
(d) Chips Acquisition Term Loan Lenders' Commitments. (i)
Subject to the terms and conditions hereof, each Chips Acquisition Term Loan
Lender severally agrees to make Chips Acquisition Term Loans on the date of any
drawing under the Chips Letter of Credit in respect of principal on the Chips
Loan Notes which the US Borrower is obligated to reimburse in excess of
$249,250,000 for the purpose of reimbursing such drawing, in the amount not to
exceed the amount set forth opposite such Chips Acquisition Term Loan Lender's
name on Schedule 1.1.
(ii) Amortization of Chips Acquisition Term Loans. The
aggregate Chips Acquisition Term Loans of all the Chips Acquisition Term
Loan Lenders shall be payable in ten (10) consecutive semi-annual
installments on the dates and in a principal amount equal to the amount
set forth below (together with all accrued interest thereon) opposite
the applicable installment date (or, if less, the aggregate amount of
the Chips Acquisition Term Loans then outstanding). Such installments
shall be applied first to repay any outstanding Chips Acquisition Term
Loans and second to cash collateralize the reimbursement obligations of
the US Borrower under the Chips Letter of Credit.
Installment Amount
----------- ------
Dec. 31, 1998 $3,288,958.60
Jun. 30, 1999 $3,398,590.45
Dec. 31, 1999 $3,398,590.45
Jun. 30, 2000 $6,906,812.84
Dec. 31, 2000 $6,906,812.84
Jun. 30, 2001 $6,969,303.05
Dec. 31, 2001 $6,969,303.05
Jun. 30, 2002 $7,027,407.99
Dec. 31, 2002 $7,027,407.99
Apr. 30, 2003 $18,106,812.84
(e) Procedure for Chips Acquisition and Chips Limited Term Loan
Borrowings. Subject to the limitations of this subsection 2.5 and 7.15, the US
Borrower shall give the Administrative Agent irrevocable notice by the
Specified Notice Time
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requesting that the Chips Limited Term Loan Lenders or the Chips Acquisition
Term Loan Lenders, as the case may be, make Chips Limited Term Loans or Chips
Acquisition Term Loans, as the case may be, on the Business Day of any
principal drawing on the Chips Letter of Credit for which the US Borrower is
responsible. Each borrowing shall be in an amount equal to the applicable
principal reimbursement obligations. Upon receipt of any such notice from the
US Borrower, the Administrative Agent shall promptly notify each Chips Limited
Term Loan Lender or Chips Acquisition Term Loan Lender, as the case may be,
thereof. Each Chips Limited Term Loan Lender or Chips Acquisition Term Loan
Lender, as the case may be, will make the amount of its pro rata share of each
borrowing available to the Administrative Agent for the account of the US
Borrower at the office of the Administrative Agent specified in subsection 12.2
for same day value, on the Borrowing Date requested by the US Borrower in funds
immediately available to the Administrative Agent. Such borrowing will then be
made available to the US Borrower by applying (and the US Borrower hereby
irrevocably requests and instructs that the Administrative Agent apply) such
amounts to directly reimburse the US Issuing Lender for the applicable
reimbursement obligations.
2.6 Foreign Subsidiary Term Loans. (a) Canadian Borrower's
Confirmation. The Canadian Borrower acknowledges and confirms that certain of
the Existing Canadian Lenders have previously made term loans (collectively,
the "Existing Canadian Term Loans") to it in an aggregate principal amount of
C$86,750,000. The Canadian Borrower hereby represents, warrants, agrees,
covenants and reaffirms that: (i) it has no (and it permanently and irrevocably
waives, and releases the Canadian Agent and the Existing Canadian Lenders from,
any, to the extent arising on or prior to the Chips Closing Date) defense,
setoff, claim or counterclaim against the Canadian Agent or any Existing
Canadian Lender in regard to its Obligations in respect of the Existing
Canadian Term Loans and (ii) reaffirms its obligation to pay the Existing
Canadian Term Loans in accordance with the terms and provisions of this
Agreement and the other Specified Loan Documents.
(b) Canadian Term Loan Lenders' Commitments. Subject to the
terms and conditions hereof, each Canadian Term Loan Lender severally agrees to
maintain its Existing Canadian Term Loan.
(i) Amortization of Canadian Term Loans The aggregate Canadian
Term Loans of all the Canadian Term Loan Lenders shall be payable in
twelve (12) consecutive semi-annual installments on the dates and in a
principal amount equal to the amount set forth below (together with all
accrued interest thereon) opposite the applicable installment date (or,
if less, the aggregate amount of the Canadian Term Loans then
outstanding):
Installment Amount
----------- ------
June 30, 1997 C$667,307
December 31, 1997 C$667,307
June 30, 1998 C$3,002,885
December 31, 1998 C$3,002,885
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June 30, 1999 C$5,838,942
December 31, 1999 C$5,838,942
June 30, 2000 C$7,507,212
December 31, 2000 C$7,507,212
June 30, 2001 C$10,676,923
December 31, 2001 C$10,676,923
June 30, 2002 C$15,681,731
December 31, 2002 C$15,681,731
(c) English Bidco's Confirmation. English Bidco acknowledges
and confirms that (i) Chase guaranteed the Guaranteed Loan Notes under the
Guaranteed Loan Note Instrument in an aggregate principal amount not to exceed
L.20,000,000 and (ii) English Bidco agreed to reimburse Chase on each date on
which Chase notifies English Bidco of the date and amount of a demand presented
under any Guaranteed Loan Note and paid by Chase for the amount of (a) such
demand so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by Chase in connection with such payment. English Bidco hereby
represents, warrants, agrees, covenants and reaffirms that: (i) it has no (and
it permanently and irrevocably waives, and releases Chase from, any, to the
extent arising on or prior to the Chips Closing Date) defense, setoff, claim,
or counterclaim against Chase in regard to its English Obligations in respect
of the Guaranteed Loan Notes and Chase's guarantee thereof and (ii) reaffirms
its obligation to reimburse Chase as set forth above.
(d) Future Foreign Subsidiary Term Loans. Subject to the terms
and conditions hereof and the applicable Joinder Agreement, each Specified
Future Foreign Subsidiary Term Loan Lender severally agrees to make a term loan
to the Specified Future Foreign Subsidiary Borrower on a date certain in an
aggregate principal amount set forth in the applicable Joinder Agreement.
(e) Type of Foreign Subsidiary Term Loans. The Term Loans may
from time to time be of any available Type, as determined by the Specified
Borrower and notified to the Specified Agent in accordance with subsection 2.11
and in the applicable Joinder Agreement.
(f) Conversion of Chips Limited Term Loans. On the fifth
Business Day following the date on which the Chips Limited Term Loans have been
fully drawn upon, subject to the terms and conditions hereof, the Chips Limited
Term Loans shall be refinanced by the deemed repayment on the Promissory Note
from Chips Limited to US Borrower (the "Chips Intercompany Note"), which in
turn will be financed with the proceeds of loans to Chips Limited denominated
in Pounds Sterling based on the spot exchange rate on such fifth Business Day
(as reasonably determined by the Administrative Agent). The amortization
schedule for the loan to Chips Limited shall be the same as the amortization
schedule contained in subsection in 2.5(c) but shall be converted to Pounds
Sterling on such date at the same exchange rate. Each Chips Limited Term Loan
Lender or its English Affiliate shall
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credit on its books a Chips Limited Term Loan of Chips Limited the proceeds of
which shall be deemed to have been used by Chips Limited to repay the Chips
Intercompany Note (and Chips Limited hereby irrevocably requests such loan and
instructs the Chips Limited Term Loan Lenders to use such proceeds to make
payment on its behalf under such Chips Intercompany Note) which in turn shall
be used by the US Borrower to repay the corresponding Chips Limited Term Loan
with the US Borrower (and US Borrower hereby irrevocably agrees to accept such
repayment on the Chips Intercompany Note and to utilize such amount to repay
the corresponding Chips Limited Term Loan of the US Borrower). The
Administrative Agent shall give US Borrower, Chips Limited and each Chips
Limited Term Loan Lenders three Business Days notice of such refinancing.
(g) European Currency. In the event that the legal currency of
the United Kingdom becomes the Euro prior to the date referred to in subsection
2.6(f), each Chips Limited Term Loan Lender shall remain obligated to refinance
its Chips Limited Term Loans and any references to Pounds Sterling shall be
deemed references to the Euro converted at the appropriate exchange rate (as
reasonably determined by the Administrative Agent).
2.7 Procedure for Future Foreign Subsidiary Term Loan Borrowing.
The Specified Future Foreign Subsidiary Borrower shall give the Specified Agent
irrevocable notice by the Specified Notice Time requesting that the Specified
Term Loan Lenders make the Specified Term Loans on a date certain and
specifying the amount to be borrowed. Upon receipt of such notice the
Specified Agent shall promptly notify each Specified Term Loan Lender thereof.
On such date, each Specified Term Loan Lender shall make available to the
Specified Agent at its office specified in the applicable Joinder Agreement an
amount in immediately available funds equal to the Specified Term Loans to be
made by such Lender. The Specified Agent shall on such date credit the account
of such Specified Borrower on the books of such office of the Specified Agent
with the aggregate of the amounts made available to the Specified Agent by the
Specified Term Loan Lenders.
2.8 Repayment of Loans. (a) Each Specified Borrower hereby
unconditionally promises to pay to the Specified Agent for the account of: (i)
each Specified Revolving Credit Lender, the then unpaid principal amount of
each Specified Revolving Credit Loan of such Specified Lender, on the Specified
Revolving Credit Commitment Termination Date (or such earlier date on which the
Specified Revolving Credit Loans become due and payable pursuant to Section 9);
(ii) each Specified Swing Line Lender, the then unpaid principal amount of the
Specified Swing Line Loans of such Swing Line Lender, on the Specified
Revolving Credit Commitment Termination Date (or such earlier date on which the
Specified Swing Line Loans become due and payable pursuant to Section 9); (iii)
each Tranche A Term Loan Lender, such Specified Lender's Ratable Portion of the
amounts specified in subsection 2.5(b)(i) (or, if less, the aggregate amount of
the Tranche A Term Loans of such Specified Lender then outstanding), on the
dates specified in subsection 2.5(b)(i) (or such earlier date on which the
Tranche A Term Loans become due and payable pursuant to Section 9); (iv) each
Tranche B Term Loan Lender, such Specified Lender's Ratable Portion of the
amounts specified in subsection 2.5(b)(ii) (or, if less, the aggregate amount
of the Tranche B Term Loans of such Specified Lender then outstanding), on the
dates specified in subsection 2.5(b)(ii) (or such earlier date on which the
Tranche B Term Loans become due and payable pursuant to Section 9); (v) each
Tranche C Term Loan
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Lender, such Specified Lender's Ratable Portion of the amounts specified in
subsection 2.5(b)(iii) (or, if less, the aggregate amount of the Tranche C Term
Loans of such Specified Lender then outstanding), on the dates specified in
subsection 2.5(b)(iii) (or such earlier date on which the Tranche C Term Loans
become due and payable pursuant to Section 9); (vi) each Canadian Term Loan
Lender, such Specified Lender's Ratable Portion of the amounts specified in
subsection 2.6 (or, if less, the aggregate amount of the Canadian Term Loans of
such Lender then outstanding), on the dates specified in subsection 2.6 (or
such earlier date on which the Canadian Term Loans become due and payable
pursuant to Section 9); and (vii) each Chips Acquisition Term Loan Lender,
such Specified Lender's Ratable Portion of the amounts specified in subsection
2.5(d)(ii) (or, if less, the aggregate amount of the Chips Acquisition Term
Loans of such Specified Lender then outstanding), on the dates specified in
subsection 2.5(d)(ii) (or such earlier date on which the Chips Acquisition Term
Loans become due and payable pursuant to Section 9); (viii) each Chips Limited
Term Loan Lender, such Specified Lender's Ratable Portion of the amounts
specified in subsection 2.5(c)(ii) (or, if less, the aggregate amount of the
Chips Limited Term Loans of such Specified Lender then outstanding), on the
dates specified in subsection 2.5(c)(ii) (or such earlier date on which the
Chips Limited Term Loans become due and payable pursuant to Section 9) and (ix)
each Future Foreign Subsidiary Term Loan Lender, such Specified Lender's
Ratable Portion of the amounts specified in the applicable Joinder Agreement
(or, if less, the aggregate amount of the Specified Future Foreign Subsidiary
Term Loans of such Lender then outstanding), on the dates specified in an
applicable Joinder Agreement (or such earlier date on which the Specified
Future Foreign Subsidiary Term Loans become due and payable pursuant to Section
9). Each Specified Borrower hereby further agrees to pay interest on the
unpaid principal amount of its Specified Loans from time to time outstanding
from the date hereof until payment in full thereof at the rates per annum, and
on the dates, set forth in subsection 4.1.
(b) Each Specified Lender (including each Specified Swing Line Lender)
shall maintain in accordance with its usual practice an account or accounts
evidencing indebtedness of the Specified Borrower to such Specified Lender
resulting from each Specified Loan of such Specified Lender from time to time,
including the amounts of principal and interest payable and paid to such
Specified Lender from time to time under this Agreement.
(c) Each Specified Agent shall maintain a Specified Register pursuant
to subsection 12.6(d), and a subaccount therein for each Specified Lender, in
which shall be recorded (i) the amount of each Specified Loan made hereunder,
the Type thereof and each Interest Period or Canadian Contract Period, if any,
applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Specified Borrower to each
Specified Lender hereunder and (iii) both the amount of any sum received by
such Specified Agent hereunder from each Specified Borrower and each Specified
Lender's share thereof.
(d) The entries made in each Specified Register and the accounts of
each Specified Lender maintained pursuant to subsection 2.8(b) shall, to the
extent permitted by applicable law and absent manifest error, be prima facie
evidence of the existence and amounts of the obligations of each Specified
Borrower therein recorded; provided, however, that the failure of any Specified
Lender or any Specified Agent to maintain the applicable Specified Register
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or any such account, or any error therein, shall not in any manner affect the
obligation of each Specified Borrower to repay (with applicable interest) its
Specified Loans owing to the Specified Lender in accordance with the terms of
this Agreement.
(e) Each Specified Borrower (other than the English Borrower) agrees
that, upon request to the Specified Agent by any Specified Lender, such
Specified Borrower will execute and deliver to such Specified Lender (i) a
promissory note of such Specified Borrower evidencing the Specified Revolving
Credit Loans of such Specified Lender, substantially in the form of Exhibit A-1
with appropriate insertions as to Borrower, currency, date and principal amount
(each as amended, supplemented, replaced or otherwise modified from time to
time, a "Revolving Credit Note"), and/or (ii) a promissory note of the
Specified Borrower evidencing the Specified Term Loan of such Specified Lender,
substantially in the form of Exhibit A-2 with appropriate insertions as to
Borrower, currency, date and principal amount (each as amended, supplemented,
replaced or otherwise modified from time to time, a "Term Note"), and/or (iii)
a promissory note of such Specified Borrower evidencing the Specified Swing
Line Loans of the Specified Swing Line Lender, substantially in the form of
Exhibit A-3 with appropriate insertions as to date and principal amount (as
amended, supplemented, replaced or otherwise modified from time to time, the
"Swing Line Note").
2.9 Optional Prepayments. The US Borrower may, at any time and from
time to time, prepay, or cause any Foreign Subsidiary Borrower to prepay, such
Specified Borrower's Specified Loans, in whole or in part, without premium or
penalty, upon at least three (3) Business Days' irrevocable notice to the
Specified Agent, specifying the date and amount of prepayment and whether the
prepayment is of (i) a specific Type of Loan and, if of a combination thereof,
the amount allocable to each and (ii) (1) Tranche A Term Loans, Tranche B Term
Loans, and/or Tranche C Term Loans, (2) Chips Acquisition Term Loans, (3)
Canadian Term Loans, (4) Chips Limited Term Loans, (5) Future Foreign
Subsidiary Term Loans, (6) Specified Revolving Credit Loans, or (7) a
combination thereof, as the case may be, and if of a combination thereof, the
amount allocable to each. Upon receipt of any such notice the Specified Agent
shall promptly notify each Specified Term Loan Lender or Specified Revolving
Credit Lender, as the case may be, thereof. If any such notice is given, the
amount specified in such notice shall be due and payable on the date specified
therein, together with, in the case of prepayments of the Eurocurrency Loans
only, accrued interest to such date on the amount prepaid.
Optional prepayments of the Term Loans shall be applied, with respect to
the first $10,000,000 (or the Equivalent Amount thereof) following the Chips
Closing Date, as the US Borrower may elect and, with respect to any amount of
such prepayments in excess of $10,000,000 (or the Equivalent Amount thereof),
such prepayments shall be applied (i) pro rata to each class or tranche of Term
Loans ratably based upon the then outstanding principal amounts of such Term
Loans (with each class or tranche of Term Loans, to be allocated that
percentage of the amount to be applied as is equal to a fraction (expressed as
a percentage), the numerator of which is the then outstanding principal amount
of such class or tranche of Term Loans, and the denominator of which is equal
to the then outstanding principal amount of all Term Loans) and (ii) to reduce
the then remaining installments of such Term Loans based upon the then
remaining number of installments (i.e. each then remaining installment of the
applicable Term Loans shall be reduced by an amount equal to the aggregate
amount
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to be applied to such Term Loan divided by the number of the then remaining
installments for such Term Loans); provided, that if the amount to be applied
to any installment required by this Agreement would exceed the then remaining
amount of such installment, then an amount equal to such excess shall be
applied to the next succeeding installment after giving effect to all prior
reductions thereto (including the amount of prepayments theretofore allocated
pursuant to the preceding portion of this sentence). Amounts prepaid on
account of any Term Loans may not be reborrowed; provided, that, if any Foreign
Subsidiary Borrower desires to prepay its Specified Term Loans and ratable
prepayment of the Term Loans of any other Specified Borrower would result in
any adverse tax impact, the affected Term Loans shall not be required to be
ratably prepaid. Partial prepayments shall be in an aggregate principal
Equivalent Amount of at least $500,000 and shall include any amounts due in
respect thereof under subsection 4.8. Canadian B/As may not be optionally
prepaid.
2.10 Mandatory Prepayments.
(a) Subsequent to the Chips Closing Date, unless the Required
Lenders and the US Borrower shall otherwise agree, if Holdings or any of its
Subsidiaries shall issue any class of Capital Stock other than a Permitted
Issuance or incur any Indebtedness other than any Indebtedness permitted
pursuant to subsection 8.2 (excluding Indebtedness to refinance the Senior
Subordinated Financing if there are any Net Cash Proceeds after giving effect
to such refinancing) or 11.6, on the date of such issuance or incurrence, each
Borrower shall prepay an amount of its Specified Term Loans equal to its
Specified Borrower Percentage of 100% of the Net Cash Proceeds thereof (or
Equivalent Amount thereof, as the case may be) as set forth in paragraph (d) of
this subsection 2.10.
(b) Unless the Required Lenders and the US Borrower shall
otherwise agree, if Holdings or any of its Subsidiaries shall consummate any
Asset Sale (including the sale and leaseback of assets and any sale of accounts
receivable in connection with a receivable financing transaction), on the date
of consummation of such Asset Sale, each Borrower shall prepay an amount of its
Specified Term Loans equal to its Specified Borrower Percentage of 100% of the
Net Cash Proceeds thereof (or the Equivalent Amount thereof, as the case may
be) as set forth in paragraph (d) of this subsection 2.10.
(c) Unless the Required Lenders and the US Borrower shall
otherwise agree, if for any fiscal year, commencing with the fiscal year ending
December 31, 1997, there shall be Excess Cash Flow for such fiscal year, each
Borrower shall prepay an amount of its Specified Term Loans equal to its
Specified Borrower Percentage of 75% of such Excess Cash Flow (or Equivalent
Amount thereof, as the case may be) as set forth in paragraph (d) of this
subsection 2.10. Each such prepayment shall be made on or before the date
which is seven (7) Business Days after the earlier of (A) the date on which the
financial statements referred to in subsection 7.1(a) are required to be
delivered to the Lenders and (B) the date on which said financial statements
are actually delivered.
(d) Mandatory prepayments of the Term Loans shall be applied (i)
pro rata to each class or tranche of Term Loans ratably based upon the then
outstanding principal amounts of the Term Loans (with each class or tranche of
Term Loan to be allocated that percentage of the amount to be applied as is
equal to a fraction (expressed as a percentage),
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the numerator of which is the then outstanding principal amount of such class
or tranche of Term Loans, as the case may be, and the denominator of which is
equal to the then outstanding principal amount of all Term Loans); (ii) to
reduce the then remaining installments of such Term Loans based upon the then
remaining number of installments of such Term Loans (i.e. each then remaining
installment of such Term Loans shall be reduced by an amount equal to the
aggregate amount to be applied to such class or tranche of Term Loans divided
by the number of the then remaining installments for such class or tranche of
Term Loans) and (iii) subject to clauses (i) and (ii), prepayments shall be
applied first to Base Rate Loans and second, pro rata, to Eurocurrency Loans
and to cash collateralize 100% of the face amount of Canadian B/As until their
maturity; provided, that if the amount to be applied to any installment as
required by this Agreement would exceed the then remaining amount of such
installment, then an amount equal to such excess shall be applied to the next
succeeding installment after giving effect to all prior reductions thereto
(including the amount of prepayments theretofore allocated pursuant to the
preceding portion of this sentence), provided, that in the event the mandatory
prepayment of any class or tranche of Term Loans as a result of an asset sale
or disposition by any Foreign Subsidiary Borrower or any of its Subsidiaries
would result in any adverse tax impact to the US Borrower or any other Foreign
Subsidiary Borrower, the portion allocable to the Term Loans of each affected
Borrower shall instead be applied to the Term Loans of the applicable Foreign
Subsidiary Borrower. Amounts prepaid on account of any of the Term Loans may
not be reborrowed;
Notwithstanding the foregoing, (a) any Net Cash Proceeds of any
refinancing of the Senior Subordinated Financing, issued on the Chips Closing
Date, after giving effect to such refinancing shall be applied first to the
Tranche A Term Loans in direct order of maturity, second to the Canadian Term
Loans in direct order of maturity, third to the repayment of English Revolving
Credit Loans, Chips Revolving Credit Loans or Canadian Revolving Credit Loans,
as and in the amounts the US Borrower shall elect and fourth to the Tranche C
Term Loans in the direct order of maturity, (b) if mandatory prepayments of
Chips Acquisition Term Loans or Chips Limited Term Loans exceeds the
outstanding amount of the Chips Acquisitions Term Loans or the Chips Limited
Term Loans, as the case may be, the balance shall be applied to cash
collateralize the US Borrower's reimbursement obligations in respect of the
Chips Letter of Credit and (c) the proceeds of the Chips Limited Term Loans of
Chips Limited will be applied as provided in subsection 2.6(f).
(e) With respect to any Specified Borrower, if at any time the
sum of its Specified Revolving Credit Loans, Specified Swing Line Loans and
Specified Accommodation Outstandings (or the sum of the Equivalent Amounts
thereof in the relevant currency, if applicable) exceeds the Specified
Revolving Credit Commitments (including at any time after any reduction of the
Specified Revolving Credit Commitments pursuant to subsection 2.4), the
Specified Borrower shall make a payment in the amount of such excess which
payment shall be applied in the order and in the manner set forth in subsection
2.4(b). To the extent that after giving effect to any prepayment of the
Specified Loans required by the preceding sentence, the sum of the Specified
Revolving Credit Loans, Specified Swing Line Loans and Specified Accommodation
Outstandings exceeds the Specified Revolving Credit Commitments then in effect,
the Specified Borrower shall, without notice or demand, immediately cash
collateralize the then outstanding Specified Accommodation Obligations and
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Canadian B/As in an amount equal to such excess upon terms reasonably
satisfactory to the Specified Agent.
(f) If at any time Holdings or any Subsidiary shall receive any
cash proceeds of any casualty or condemnation in excess of the Equivalent
Amount of $2,000,000 pursuant to subsection 8.6(c), such proceeds shall be
deposited with the Collateral Agent (or, in the case of a Foreign Subsidiary
Borrower and its Subsidiaries, the Specified Foreign Agent) who shall hold such
proceeds in a cash collateral account reasonably satisfactory to it. From time
to time upon request, the Collateral Agent or Specified Foreign Agent, as the
case may be, will release such proceeds to Holdings or such Subsidiary, as
necessary, to pay for replacement or rebuilding of the assets lost or
condemned. If such assets are not replaced or rebuilt within one (1) year
(subject to reasonable extension for force majeure or weather delays) following
the condemnation or casualty or if the Specified Borrower fails to notify the
Collateral Agent or Specified Foreign Agent, as the case may be, in writing on
or before 180 days after such casualty or condemnation that the Specified
Borrower shall commence the replacement or rebuilding of such asset, then, in
either case, the Collateral Agent or Specified Foreign Agent, as the case may
be, may apply any amounts in the cash collateral account to the ratable
repayment of the Specified Term Loans or, in the case of a casualty or
condemnation affecting the US Borrower or its Domestic Subsidiaries, the Term
Loans as Net Cash Proceeds of an Asset Sale in accordance with subsection
2.10(b).
(g) The provisions of this subsection 2.10 shall not be in
derogation of any other covenant or obligation of Holdings and its Subsidiaries
under the Loan Documents and shall not be construed as a waiver of, or a
consent to departure from, any such covenant or obligation.
(h) Notwithstanding the foregoing provisions of this subsection
2.10, if at any time the mandatory prepayment of any Specified Term Loans
pursuant to this Agreement would result, after giving effect to the procedures
set forth in this Agreement, in the Specified Borrower incurring costs, under
subsection 4.5, 4.6 or 4.7 as a result of Eurocurrency Loans ("Affected
Eurocurrency Loans") being prepaid other than on the last day of an Interest
Period applicable thereto, which costs are required to be paid pursuant to
subsection 4.8, then, the Specified Borrower may, in its sole discretion,
initially deposit a portion (up to 100%) of the amounts that otherwise would
have been paid in respect to the Affected Eurocurrency Loans with the Specified
Agent (which deposit must be equal in amount to the amount of the Affected
Eurocurrency Loans not immediately prepaid) to be held as security for the
obligations of the Specified Borrower to make such mandatory prepayment
pursuant to a cash collateral agreement to be entered into in form and
substance reasonably satisfactory to the Specified Agent, with such cash
collateral to be directly applied upon the first occurrence (or occurrences)
thereafter of the last day of an Interest Period applicable to the relevant
Specified Term Loan that is a Eurocurrency Loan (or such earlier date or dates
as shall be requested by the Specified Borrower), to repay an aggregate
principal amount of such Specified Term Loan equal to the Affected Eurocurrency
Loans not initially repaid pursuant to this sentence.
(i) Notwithstanding anything to the contrary contained herein,
nothing herein shall require any Foreign Subsidiary Borrower to make any
payment to any Lenders (other
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than its Specified Lenders), it being acknowledged that no Foreign Subsidiary
Borrower is in any way liable for any of the Domestic Obligations or any
Obligations of any other Foreign Subsidiary Borrower.
(j) In the case of Canadian B/As, the Canadian Agent may, in its
discretion, adjust the amount of any mandatory prepayment upward or downward to
the nearest C$100,000 between the Canadian Lenders.
2.11 Conversion and Continuation Options. (a) Subject to the
terms and conditions hereof and to the extent available to it, any Specified
Borrower may elect from time to time to convert its Base Rate Loans to
Eurocurrency Loans by giving the Specified Agent at least three (3) Business
Days' prior irrevocable notice of such election; provided that at no time may
any Specified Borrower elect to convert any or all of its Specified Swing Line
Loans from Base Rate Loans to Eurocurrency Loans. Any such notice of
conversion to Eurocurrency Loans shall specify the length of the initial
Interest Period or Interest Periods therefor. Upon receipt of any such notice
the Specified Agent shall promptly notify each affected Specified Term Loan
Lender or Specified Revolving Credit Lender, as the case may be, thereof. All
or any part of outstanding Base Rate Loans may be converted as provided herein,
provided that (i) no Base Rate Loan may be converted into a Eurocurrency Loan
when any Event of Default has occurred and is continuing and the Specified
Agent has or the Required Lenders have determined that such a conversion is not
appropriate and (ii) any such conversion may only be made if, after giving
effect thereto, subsection 2.14 shall not have been contravened.
(b) Any Eurocurrency Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Specified Borrower giving notice to the Specified Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection
1.1, of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurocurrency Loan may be continued as such (i) when any Event
of Default has occurred and is continuing and the Specified Agent has or the
Required Lenders have determined that such a continuation is not appropriate or
(ii) if, after giving effect thereto, subsection 2.14 would be contravened and
provided, further, that if the Specified Borrower shall fail to give any
required notice as described above in this paragraph or if such continuation is
not permitted pursuant to the preceding proviso, such Eurocurrency Loans shall
be automatically continued as Eurocurrency Loans on the last day of such then
expiring Interest Period with a new Interest Period of one (1) month.
(c) Subject to the terms and conditions hereof and to the extent
available to it, any Specified Borrower may elect from time to time to convert
its Eurocurrency Loans to Base Rate Loans, by giving the Specified Agent at
least two (2) Business Days' prior irrevocable notice of such election,
provided that, unless such Specified Borrower elects to deposit with the
Specified Agent the amount of any breakage costs and other Eurocurrency Loan
related costs to be incurred by such Specified Borrower under this Agreement
with respect to the prepayment or conversion of such Eurocurrency Loan prior to
the end of an Interest Period, any such conversion of Eurocurrency Loans may
only be made on the last day of an Interest Period with respect thereto.
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(d) For greater certainty, the conversion of any Loan to another
basis of Loan, as provided in this subsection 2.11, shall not constitute a
repayment of amounts owing under the Specified Loans under this Agreement nor a
new advance of funds hereunder.
2.12 Bankers' Acceptances. (a) Subject to the terms and
conditions of this Agreement, the Canadian Borrower may request a borrowing
denominated in Canadian Dollars by presenting drafts for acceptance and
purchase as Canadian B/As by the Canadian Lenders.
(b) No Canadian Contract Period with respect to a Canadian B/A
shall extend beyond the final payment of the Canadian Term Loans or the
Specified Revolving Credit Commitment Termination Date, as applicable.
(c) To facilitate availment of the borrowings by way of Canadian
B/As, the Canadian Borrower hereby appoints each Canadian Lender as its
attorney to sign and endorse on its behalf, in handwriting or by facsimile or
mechanical signature as and when deemed necessary by such Canadian Lender,
blank forms of Canadian B/As substantially in the form of Schedule 2.12. In
this respect, it is each Canadian Lender's responsibility to maintain an
adequate supply of blank forms of Canadian B/As for acceptance under this
Agreement. The Canadian Borrower recognizes and agrees that all Canadian B/As
signed and/or endorsed on its behalf by a Canadian Lender shall bind the
Canadian Borrower as fully and effectually as if signed in the handwriting of
and duly issued by the proper signing officers of the Canadian Borrower. Each
Canadian Lender is hereby authorized to issue such B/As endorsed in blank in
such face amounts as may be determined by such Canadian Lender; provided that
the aggregate amount thereof is equal to the aggregate amount of Canadian B/As
required to be accepted and purchased by such Canadian Lender. No Canadian
Lender shall be liable for any damage, loss or other claim arising by reason of
any loss or improper use of any such instrument except the gross negligence or
wilful misconduct of the Canadian Lender or its officers, employees, agents or
representatives. Each Canadian Lender shall maintain a record with respect to
Canadian B/As (a) received by it from the Canadian Agent in blank hereunder,
(b) voided by it for any reason, (c) accepted and purchased by it hereunder,
and (d) cancelled at their respective maturities. Each Canadian Lender further
agrees to retain such records in the manner and for the statutory periods
provided in the various provincial or federal statutes and regulations which
apply to such Canadian Lender. Each Canadian Lender agrees to provide such
records to the Canadian Borrower at the Canadian Borrower's expense upon
request. On request by or on behalf of the Canadian Borrower, a Canadian
Lender shall cancel all forms of Canadian B/A which have been pre-signed or
pre-endorsed on behalf of the Canadian Borrower and which are held by the said
Canadian Lender and are not required to be issued in accordance with the
Canadian Borrower's irrevocable notice.
(d) Drafts of the Canadian Borrower to be accepted as Canadian
B/As hereunder shall be signed as set forth in this subsection 2.12.
Notwithstanding that any Person whose signature appears on any Canadian B/A may
no longer be an authorized signatory for any of the Canadian Lenders or the
Canadian Borrower at the date of issuance of a Canadian B/A, such signature
shall nevertheless be valid and sufficient for all purposes as if such
authority had remained in force at the time of such issuance and any such
Canadian B/A so signed shall be binding on the Canadian Borrower.
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(e) Promptly following receipt of a notice of borrowing,
rollover or conversion in such form as shall be reasonably approved by the
Canadian Agent by way of Canadian B/As, the Canadian Agent shall so advise the
Canadian Lenders and shall advise each Canadian Lender of the aggregate face
amount of the Canadian B/As to be accepted by it and the applicable Canadian
Contract Period (which shall be identical for all Canadian Lenders). The
aggregate face amount of the Canadian B/As to be accepted by a Canadian Lender
shall be determined by the Canadian Agent by reference to such Canadian
Lender's Ratable Portion of such Canadian Loan.
(f) Upon acceptance of a Canadian B/A by a Canadian Lender, such
Canadian Lender shall purchase, or arrange the purchase of, each Canadian B/A
from the Canadian Borrower at the Discount Rate for such Canadian Lender
applicable to such B/A accepted by it and provide to the Canadian Agent the
Discount Proceeds for the account of the Canadian Borrower. The Acceptance Fee
payable by the Canadian Borrower to a Canadian Lender under subsection 4.1 in
respect of each Canadian B/A accepted by such Canadian Lender shall be set off
against the Discount Proceeds payable by such Canadian Lender under this
subsection 2.12.
(g) Each Canadian Lender may at any time and from time to time
hold, sell, rediscount or otherwise dispose of any or all Canadian B/As
accepted and purchased by it.
(h) With respect to each Loan which is outstanding hereunder by
way of Canadian B/As, at or before 11:00 a.m. two (2) Business Days before the
maturity date of such B/As, the Canadian Borrower shall notify the Canadian
Agent at the Canadian Agent's address set forth in subsection 12.2 by
irrevocable telephone notice, followed by a notice of rollover on the same day,
if the Canadian Borrower intends to issue Canadian B/As on such maturity date
to provide for the payment of such maturing B/As. If the Canadian Borrower
fails to notify the Canadian Agent of its intention to issue Canadian B/As on
such maturity date, the Canadian Borrower shall provide payment to the Canadian
Agent on behalf of the Canadian Lenders of an amount equal to the aggregate
face amount of such B/As on the maturity date of such B/As. If the Canadian
Borrower fails to make such payment, such maturing B/As shall be deemed to have
been converted on their maturity date into a Base Rate Loan in an amount equal
to the face amount of such B/As and the Canadian Borrower shall on demand pay
any penalties that may have been incurred by the Canadian Agent and any
Canadian Lender due to the failure of the Canadian Borrower to make such
payment.
(i) The Canadian Borrower waives presentment for payment and any
other defence to payment of any amounts due to a Canadian Lender in respect of
a Canadian B/A accepted and purchased by it pursuant to this Agreement which
might exist solely by reason of such B/A being held, at the maturity thereof,
by such Canadian Lender in its own right and the Canadian Borrower agrees not
to claim any days of grace if such Canadian Lender as holder sues the Canadian
Borrower on the Canadian B/A for payment of the amount payable by the Canadian
Borrower thereunder. On the specified maturity date of a Canadian B/A, or such
earlier date as may be required or permitted pursuant to the provisions of this
Agreement, the Canadian Borrower shall pay the Canadian Lender that has
accepted and purchased such B/A the full face amount of such Canadian B/A and
after such payment, the Canadian Borrower shall have no further liability in
respect of such Canadian B/A and such
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Canadian Lender shall be entitled to all benefits of, and be responsible for
all payments due to third parties under, such B/A.
(j) If a Canadian Lender grants a participation in a portion of
its rights under this Agreement to a Specified Participant, then in respect of
any Loans by way of Canadian B/As, a portion thereof may, at the option of such
Canadian Lender, be by way of Canadian B/A accepted by such Specified
Participant. In such event, the Canadian Borrower shall upon request of the
Canadian Agent or the Canadian Lender granting the participation execute and
deliver a form of Canadian Bankers' Acceptance undertaking in favor of such
Specified Participant for delivery to such Specified Participant.
2.13 Existing Canadian B/As. Canadian B/As issued by the
Canadian Issuing Lender under the Existing Credit Agreement shall be deemed to
be Canadian B/As issued hereunder.
2.14 Minimum Amounts of Tranches. All borrowings, conversions
and continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the Loans
comprising each Eurocurrency Tranche or Canadian B/A Tranche shall be in a
minimum Equivalent Amount of $1,600,000 and so that there shall not be more
than ten (10) Eurocurrency Tranches or Canadian B/A Tranches of any Specified
Borrower at any one time outstanding.
2.15 Swing Line Commitments. (a) Subject to the terms and
conditions hereof, each Specified Swing Line Lender agrees to make Swing Line
Loans to the Specified Borrower from time to time during the Specified
Revolving Credit Commitment Period in an aggregate principal amount at any one
time outstanding not to exceed the Specified Swing Line Commitment of such
Specified Swing Line Lender, provided that at no time may the sum of the
Specified Swing Line Loans, the Specified Revolving Credit Loans and Specified
Accommodation Outstandings exceed the Specified Revolving Credit Commitments.
During the Specified Revolving Credit Commitment Period, the Specified Borrower
may use the Specified Swing Line Commitment by borrowing, prepaying the
Specified Swing Line Loans in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof. All Specified Swing Line
Loans shall be Base Rate Loans. The Specified Borrower shall give the
Specified Swing Line Lender irrevocable notice (which notice must be received
by the Specified Swing Line Lender prior to 12:00 noon local time of the
Specified Swing Line Lender) on the requested Borrowing Date specifying the
amount of the requested Specified Swing Line Loan which shall be in an
aggregate minimum Equivalent Amount of $150,000. The proceeds of the Specified
Swing Line Loan will be made available by the Specified Swing Line Lender to
the Specified Borrower at the office of the Specified Swing Line Lender by 2:00
p.m. local time on the Borrowing Date by crediting the account of the Specified
Borrower at such office with such proceeds. The Specified Borrower may at any
time and from time to time, prepay the Specified Swing Line Loans, in whole or
in part, without premium or penalty, by notifying the Specified Swing Line
Lender prior to 12:00 noon local time on any Business Day of the date and
amount of prepayment. If any such notice is given, the amount specified in
such notice shall be due and payable on the date
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specified therein. Partial prepayments shall be in an aggregate principal
Equivalent Amount of $150,000.
(b) Any Specified Swing Line Lender, at any time in its sole and
absolute discretion may, on behalf of the Specified Borrower (which hereby
irrevocably directs the Specified Swing Line Lender to act on its behalf), and
without regard to the minimum amounts in subsection 2.2, request each Specified
Revolving Credit Lender including the Specified Swing Line Lender to make a
Specified Revolving Credit Loan in an amount equal to such Specified Lender's
Revolving Credit Commitment Percentage of the amount of the Specified Swing
Line Loans outstanding on the date such notice is given (the "Specified
Refunded Swing Line Loans"). Unless any of the events described in paragraph
(f) of Section 9 shall have occurred with respect to the Specified Borrower (in
which event the procedures of paragraph (d) of this subsection 2.15 shall
apply) each Specified Revolving Credit Lender shall make the proceeds of its
Specified Revolving Credit Loan available to the Specified Agent for the
account of the Specified Swing Line Lender at the office of the Specified Agent
specified in subsection 12.2 prior to 1:00 p.m. local time of a Specified Agent
in funds immediately available on the Business Day next succeeding the date
such notice is given. The proceeds of such Specified Revolving Credit Loans
shall be immediately applied to repay the Specified Refunded Swing Line Loans.
Effective on the day such Specified Revolving Credit Loans are made, the
portion of such Loans so paid shall no longer be outstanding as Specified Swing
Line Loans, shall no longer be due under any Specified Swing Line Note and
shall be Specified Revolving Credit Loans made by the Specified Revolving
Credit Lenders in accordance with their respective Specified Revolving Credit
Commitment Percentages. Each Specified Borrower authorizes the Specified Swing
Line Lender to charge its accounts with the Specified Agent (up to the amount
available in each such account) in order to immediately pay the amount of such
Specified Refunded Swing Line Loans to the extent amounts received from the
Specified Revolving Credit Lenders are not sufficient to repay in full such
Specified Refunded Swing Line Loans.
(c) Notwithstanding anything herein to the contrary, no
Specified Swing Line Lender shall be obligated to make any Specified Swing Line
Loans if the conditions set forth in subsection 6.2 have not been satisfied.
(d) If prior to the making of a Specified Revolving Credit Loan
pursuant to paragraph (b) of this subsection 2.15 one of the events described
in paragraph (f) of Section 9 shall have occurred and be continuing with
respect to the Specified Borrower, each Specified Revolving Credit Lender will,
on the date such Specified Revolving Credit Loan was to have been made pursuant
to the notice in subsection 2.15(b), purchase an undivided participating
interest in the Specified Refunded Swing Line Loan in an amount equal to (i)
its Specified Revolving Credit Commitment Percentage times (ii) the Specified
Refunded Swing Line Loans. Each Specified Revolving Credit Lender will
immediately transfer to the Specified Swing Line Lender, in immediately
available funds, the amount of its participation, and upon receipt thereof the
Specified Swing Line Lender will deliver to such Specified Revolving Credit
Lender a Specified Swing Line Loan Participation Certificate dated the date of
receipt of such funds and in such amount.
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(e) Whenever, at any time after any Specified Revolving Credit
Lender has purchased a participating interest in a Specified Swing Line Loan,
the Specified Swing Line Lender receives any payment on account thereof, the
Specified Swing Line Lender will distribute to such Specified Revolving Credit
Lender its participating interest in such amount (appropriately adjusted, in
the case of interest payments, to reflect the period of time during which such
Specified Revolving Credit Lender's participating interest was outstanding and
funded); provided, however, that in the event that such payment received by the
Specified Swing Line Lender is required to be returned, such Specified
Revolving Credit Lender will return to the Specified Swing Line Lender any
portion thereof previously distributed by the Specified Swing Line Lender to
it.
(f) Each Specified Revolving Credit Lender's obligation to make
the Loans referred to in subsection 2.15(b) and to purchase participating
interests pursuant to subsection 2.15(d) shall be absolute and unconditional
and shall not be affected by any circumstance, including, without limitation,
(i) any set-off, counterclaim, recoupment, defense or other right which such
Specified Revolving Credit Lender or the Specified Borrower may have against
the Specified Swing Line Lender, the Specified Borrower or any other Person for
any reason whatsoever; (ii) the occurrence or continuance of a Default or an
Event of Default; (iii) any adverse change in the condition (financial or
otherwise) of the Specified Borrower; (iv) any breach of this Agreement or any
other Specified Loan Document by the Specified Borrower, Holdings, any
Subsidiary or any other Specified Lender; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
SECTION 3. ACCOMMODATIONS
3.1 The Accommodation Commitments. (a) Subject to the terms
and conditions hereof, each Specified Issuing Lender, in reliance on the
agreements of the other Specified Revolving Credit Lenders set forth in
subsection 3.4(a), agrees to issue or accept Specified Accommodations for the
account of the Specified Borrower on any Business Day during the Specified
Revolving Credit Commitment Period in such form as may be approved from time to
time by the Specified Issuing Lender; provided, that, no Specified Issuing
Lender shall issue or accept any Specified Accommodation if, after giving
effect to such issuance, (i) the Specified Accommodation Outstandings would
exceed the Specified Issuing Lender's Accommodation Commitment or (ii) the sum
of the Specified Revolving Credit Loans, Specified Swing Line Loans, and
Specified Accommodation Outstandings of the Specified Revolving Credit Lenders
would exceed the Specified Revolving Credit Commitments of the Specified
Revolving Credit Lenders. Each Specified Accommodation shall (i) be (w) the
Chips Letter of Credit, (x) a Standby L/C, (y) a Trade L/C or (z) a bankers'
acceptance, to the extent included in the Specified Accommodation Commitment
and (ii) expire or mature no later than five (5) Business Days prior to the
Scheduled Revolving Credit Commitment Termination Date. No Accommodation
(other than the English Bidco Loan Note Letter of Credit and the Chips Letter
of Credit) shall have an expiry or maturity date more than one year after its
date of issuance or creation; provided, that, any Specified Letter of Credit
(other than the English Bidco Loan Note Letter of Credit) may provide for the
renewal thereof for additional periods not to exceed one (1) year (which shall
in no event extend beyond the Scheduled Revolving Credit Commitment Termination
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Date) and the Chips Letter of Credit shall mature April 30, 2003; provided,
further, that in no case shall any Accommodation (other than the Chips Letter
of Credit) have an expiry or maturity date later than five (5) Business Days
prior to the Scheduled Revolving Credit Commitment Termination Date. Each
Specified Accommodation shall be denominated in the currency of the Specified
Revolving Credit Commitment.
(b) Each Specified Letter of Credit shall be subject to the
Uniform Customs and, to the extent not inconsistent therewith, the laws of the
jurisdiction of the Specified Issuing Lender's office.
(c) No Specified Issuing Lender shall at any time be obligated
to issue or accept any Specified Accommodation hereunder if such issuance would
conflict with, or cause the Specified Issuing Lender or any Specified
Participating Lender to exceed any limits imposed by, any applicable
Requirement of Law.
3.2 Procedure for Issuance of Specified Accommodations. Any
Specified Borrower may from time to time request that the Specified Issuing
Lender issue or accept a Specified Accommodation by delivering to the Specified
Issuing Lender and the Specified Agent at their respective address for notices
specified herein a draft of the Specified Accommodation to be accepted by the
Specified Issuing Lender, or a commercial letter of credit application in the
Issuing Lender's then customary form (a "Trade L/C Application"), or a standby
letter of credit application in the Specified Issuing Lender's then customary
form (a "Standby L/C Application"), completed to the satisfaction of the
Specified Issuing Lender, and such other certificates, documents and other
papers and information as may be customary for Accommodations of the kind being
requested and as the Specified Issuing Lender may reasonably request. Upon
receipt of any Letter of Credit Application and appropriate documentation, the
Specified Issuing Lender will process such documents, certificates and other
papers and information delivered to it in connection therewith in accordance
with its customary procedures and, upon receipt by the Specified Issuing Lender
of confirmation from the Specified Agent that issuance of such Specified
Accommodation will not contravene subsection 3.1, the Specified Issuing Lender
shall promptly issue or accept the Specified Accommodation requested thereby
(but in no event shall the Specified Issuing Lender be required to issue or
accept any Specified Letter of Credit earlier than three (3) Business Days
after its receipt of the appropriate documentation therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Specified Letter of Credit to the beneficiary
thereof or as otherwise may be agreed by the Specified Issuing Lender and the
Specified Borrower or delivering the accepted draft to the Specified Borrower
(or as directed by it). The Specified Issuing Lender shall furnish a copy of
such Specified Letter of Credit to the Specified Borrower and the Specified
Agent promptly following the issuance thereof.
3.3 Fees, Commissions and Other Charges. (a)(i) Each Specified
Borrower shall pay to the Specified Agent, for the account of the Specified
Issuing Lender and the Specified Participating Lenders, a letter of credit
commission or acceptance fee, as applicable, with respect to each Specified
Accommodation, in an amount equal to the Applicable Margin applicable to
Specified Revolving Credit Loans (or, in the case of the Chips Letter of
Credit, Tranche A Terms Loans) bearing interest at the Eurocurrency Rate of
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the average daily face amount of such Specified Accommodation (or portion
thereof for which the US Borrower is primarily responsible), payable quarterly
in arrears on the last day of each March, June, September and December and on
the Specified Revolving Credit Commitment Termination Date (or, in the case of
the Chips Letter of Credit, April 30, 2003), provided that, notwithstanding the
foregoing, acceptance fees with respect to Canadian B/As shall be paid as set
forth in subsection 2.12.(f). A portion of such commission or fee, as
applicable, equal to 1/4 (or, in the case of the Chips Letter of Credit, 1/8)
of 1% of the average daily face amount of such Specified Accommodation shall be
payable to the Specified Issuing Lender for its own account, and the remaining
portion of such commission shall be payable to the Specified Issuing Lender and
the Specified Participating Lenders to be shared ratably among them in
accordance with their respective Specified Revolving Credit Commitment
Percentages (or, in the case of the Chips Letter of Credit, the Chips Limited
Term Loan Commitments or Chips Acquisition Term Loan Commitments, as the case
may be). Such commission and fee shall be nonrefundable.
(ii) The US Borrower shall pay to Chase, for the account of the
US Issuing Lender and the Participating Lenders (as defined in the Chips
Reimbursement Agreement), a letter of credit commission with respect to the
Chips Letter of Credit calculated at a rate per annum equal to 1/4 of 1% of
that portion of the average daily face amount of the Chips Letter of Credit
which is in excess of $346,462,500, payable quarterly in arrears on the last
day of each March, June, September and December and on April 30, 2003, provided
that the US Borrower shall not be required to pay any letter of credit
commissions pursuant to this clause (a)(ii) to the extent that such commissions
are paid pursuant to subsection 3.2(a) of the Chips Reimbursement Agreement.
(b) In addition to the foregoing fees and commissions, each
Specified Borrower shall pay or reimburse the Specified Issuing Lender for such
normal and customary costs and expenses as are incurred or charged by such
Specified Issuing Lender in issuing, effecting payment under, amending or
otherwise administering any Specified Accommodation.
(c) The Specified Agent shall, promptly following its receipt
thereof, distribute to the Specified Issuing Lender and the Specified
Participating Lenders all fees and commissions received by the Specified Agent
for their respective accounts pursuant to this subsection.
3.4 Accommodation Participations. (a) Effective on the date of
issuance or acceptance of each Specified Accommodation, the Specified Issuing
Lender irrevocably agrees to grant and hereby grants to each Specified
Participating Lender, and each Specified Participating Lender irrevocably
agrees to accept and purchase and hereby accepts and purchases from the
Specified Issuing Lender, on the terms and conditions hereinafter stated, for
such Specified Participating Lender's own account and risk an undivided
interest equal to such Specified Participating Lender's Specified Revolving
Credit Commitment Percentage (or, in the case of the Chips Letter of Credit,
Chips Acquisition Term Loan Commitment or Chips Limited Term Loan Commitment,
as the case may be) in the Specified Issuing Lender's obligations and rights
under each Specified Accommodation issued by such Specified Issuing Lender and
the amount of each draft paid by the Specified Issuing Lender
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thereunder. Each Specified Participating Lender unconditionally and
irrevocably agrees with the Specified Issuing Lender that, if a draft is paid
under any Specified Accommodation (including a draft drawn by Chase under the
English Bidco Loan Note Letter of Credit) for which such Specified Issuing
Lender is not reimbursed in full by the Specified Borrower in accordance with
the terms of this Agreement, such Specified Participating Lender shall pay to
the Specified Agent, for the account of the Specified Issuing Lender, upon
demand at the Specified Agent's address specified in subsection 12.2, an amount
equal to such Specified Participating Lender's Specified Revolving Credit
Commitment Percentage (or, in the case of the Chips Letter of Credit, Chips
Acquisition Term Loan Commitment (in the case of the principal portion only) or
Chips Limited Term Loan Commitment (in the case of the principal portion or
interest portion), as the case may be) of the amount of such draft, or any part
thereof, which is not so reimbursed. On the date that any Specified Assignee
becomes a Specified Revolving Credit Lender (or, in the case of the Chips
Letter of Credit, a Chips Limited Term Loan Lender or Chips Acquisition Term
Loan Lender) party to this Agreement in accordance with subsection 12.6,
participating interests in any outstanding Specified Accommodation held by the
transferor Specified Revolving Credit Lender (or, in the case of the Chips
Letter of Credit, a Chips Limited Term Loan Lender or Chips Acquisition Term
Loan Lender) from which such Assignee acquired its interest hereunder shall be
proportionately reallotted between such Specified Assignee and such transferor
Specified Revolving Credit Lender (or, in the case of the Chips Letter of
Credit, a Chips Limited Term Loan Lender or Chips Acquisition Term Loan
Lender). Each Specified Participating Lender hereby agrees that its obligation
to participate in each Specified Accommodation, and to pay or to reimburse the
Specified Issuing Lender for its participating share of the drafts drawn or
amounts otherwise paid thereunder, is absolute, irrevocable and unconditional
and shall not be affected by any circumstances whatsoever (including, without
limitation, the occurrence or continuance of any Default or Event of Default),
and that each such payment shall be made without offset, abatement, withholding
or other reduction whatsoever.
(b) If any amount required to be paid by any Specified
Participating Lender to the Specified Issuing Lender pursuant to subsection
3.4(a) in respect of any unreimbursed portion of any draft paid by the
Specified Issuing Lender under any Specified Letter of Credit is paid to the
Specified Issuing Lender after the date such payment is due, such Specified
Participating Lender shall pay to the Specified Agent, for the account of the
Specified Issuing Lender, on demand, an amount equal to the product of (i) such
amount, times (ii) the daily average Base Rate (or if there is no Base Rate
available, daily Eurocurrency Rate) for the Specified Borrower during the
period from and including the date such payment is required to the date on
which such payment is immediately available to the Specified Issuing Lender,
times (iii) a fraction the numerator of which is the number of days that elapse
during such period and the denominator of which is 360 for Eurocurrency Loans,
or 365 or 366 for Base Rate Loans, as applicable. A certificate of the
Specified Issuing Lender submitted to any Specified Participating Lender with
respect to any amounts owing under this subsection shall be conclusive in the
absence of manifest error.
(c) Whenever, at any time after any Specified Issuing Lender has
paid a draft under any Specified Accommodation and has received from any
Specified Participating Lender its pro rata share of such payment in accordance
with subsection 3.4(a), such Specified Issuing Lender receives any
reimbursement on account of such unreimbursed
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portion, or any payment of interest on account thereof, the Specified Issuing
Lender will pay to the Specified Agent, for the account of such Specified
Participating Lender, its pro rata share thereof; provided, however, that in
the event that any such payment received by the Specified Issuing Lender shall
be required to be returned by the Specified Issuing Lender, such Specified
Participating Lender shall return to the Specified Agent for the account of the
Specified Issuing Lender, the portion thereof previously distributed to it.
3.5 Reimbursement Obligation of the Specified Borrower. Each
Specified Borrower agrees to reimburse its Specified Issuing Lender on each
date on which such Specified Issuing Lender notifies such Specified Borrower of
the date and amount of a draft presented under any Specified Accommodation and
paid by the Specified Issuing Lender for the amount of (a) such draft so paid
and (b) any taxes, fees, charges or other costs or expenses incurred by the
Specified Issuing Lender in connection with such payment. Each such payment
shall be made to the Specified Issuing Lender at its address for notices
specified herein in lawful money of the currency in which such Specified
Accommodation is issued and in immediately available funds. Interest shall be
payable on any and all amounts remaining unpaid by the Specified Borrower under
this subsection from the date such amounts become payable until payment in
full, at the rate which would be payable on Specified Revolving Credit Loans
which are Base Rate Loans, denominated in the same currency as the relevant
Specified Accommodation (or, if there is no Base Rate available, daily
Eurocurrency Rate). Notwithstanding anything herein to the contrary, US
Borrower shall not have any reimbursement obligations in respect of drawings
under the Chips Letter of Credit for principal of the Chips Loan Notes until
such drawings exceed $118,250,000.
3.6 Obligations Absolute. Each Specified Borrower's obligations
under this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which such Specified Borrower or any other Person may have or have had
against its Specified Issuing Lender or any beneficiary of a Specified
Accommodation. Each Specified Borrower also agrees with its Specified Issuing
Lender that such Specified Issuing Lender shall not be responsible for, and
such Specified Borrower's obligations under subsection 3.5 shall not be
affected by, among other things, the enforceability, validity or genuineness of
documents or of any endorsements thereon, even though such documents shall in
fact prove to be unenforceable, invalid, fraudulent or forged, or any dispute
between or among the Specified Borrower and any beneficiary of any Specified
Accommodation or any other party to which such Specified Accommodation may be
transferred or any claims whatsoever of the Specified Borrower against any
beneficiary of such Specified Accommodation or any such transferee, except for
errors or omissions caused by the Specified Issuing Lender's gross negligence
or wilful misconduct. The Specified Issuing Lender shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Specified
Accommodation, except for errors or omissions caused by the Specified Issuing
Lender's gross negligence or wilful misconduct. The Specified Borrower agrees
that any action taken or omitted by the Specified Issuing Lender under or in
connection with any Specified Accommodation or the related drafts or documents,
if done in the absence of gross negligence or wilful misconduct and in
accordance with the standards of care specified in the Uniform Commercial Code
of the State of New York, including, without limitation, Article V thereof or
the standards of care
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specified in the laws of the jurisdiction of the Specified Issuing Lender's
issuing office, as applicable, shall be binding on the Specified Borrower and
shall not result in any liability of such Specified Issuing Lender to the
Specified Borrower.
3.7 Accommodation Payments. If any draft shall be presented for
payment under any Specified Accommodation, the Specified Issuing Lender shall
promptly notify the Specified Borrower and the Specified Agent of the date and
amount thereof. The responsibility of the Specified Issuing Lender to the
Specified Borrower in connection with any draft presented for payment under any
Specified Accommodation shall, in addition to any payment obligation expressly
provided for in such Specified Accommodation, be limited to determining that
the documents (including each draft) delivered under such Specified
Accommodation in connection with such presentment are in conformity with such
Specified Accommodation.
3.8 Letter of Credit Applications. To the extent that any
provision of any Specified Letter of Credit Application, including any
reimbursement provisions contained therein, related to any Specified Letter of
Credit is inconsistent with the provisions of this Section 3, the provisions of
this Section 3 shall prevail.
3.9 Existing Letters of Credit. The Letters of Credit issued by
the US Issuing Lender, the Canadian Issuing Lender and the English Issuing
Lender, if any, under the Existing Credit Agreement and the Chips Inc. Credit
Agreement shall be deemed to be Specified Accommodations issued hereunder on
the Chips Closing Date.
SECTION 4. GENERAL PROVISIONS
4.1 Interest Rates and Payment Dates. (a) Each Eurocurrency
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurocurrency Rate determined for such
day plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum
equal to the Specified Base Rate plus the Applicable Margin.
(c) Upon the occurrence and during the continuance of any Event
of Default specified in subsection 9(a), the Specified Loans and any overdue
amounts hereunder shall bear interest at a rate per annum which is (x) in the
case of the Specified Loans, the rate that would otherwise be applicable
thereto pursuant to the foregoing provisions of this subsection plus 2% per
annum or (y) in the case of overdue interest, commitment fee, Facility Fee, or
other amount, the rate described in paragraph (b) (or, if no Base Rate is
available, paragraph (a) for Interest Periods of one day) of this subsection
4.1 plus 2% per annum.
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
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(e) Each Canadian B/A shall be subject to an Acceptance Fee
which is a rate per annum equal to the Applicable Margin for Canadian B/As
payable as set forth in subsection 2.12(f).
4.2 Computation of Interest and Fees. (a) Unless otherwise
indicated in the Administrative Schedule or the applicable Joinder Agreement,
interest on Loans, fees, interest on overdue interest, and other amounts
payable hereunder shall be calculated, on the basis of a 365-or 366-day year,
in each case, for the actual days elapsed. The Specified Agent shall as soon
as practicable notify the Specified Borrower and the Specified Revolving Credit
Lenders or the Specified Term Loan Lenders, as the case may be, of each
determination of a Eurocurrency Rate. Any change in the interest rate on a
Specified Loan resulting from a change in the Specified Base Rate or the
Specified Eurocurrency Rate shall become effective as of the opening of
business on the day on which such change becomes effective. The Specified
Agent shall as soon as practicable notify the Specified Borrower and the
Specified Revolving Credit Lenders or the Specified Term Loan Lenders, as the
case may be, of the effective date and the amount of each such change in
interest rate.
(b) Each determination of an interest rate by a Specified Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Specified Borrower and the Specified Lenders and the other parties hereto
in the absence of manifest error. The Specified Agent shall, at the request of
the Specified Borrower, deliver to the Specified Borrower a statement showing
the quotations used by the Specified Agent in determining any interest rate
pursuant to subsection 4.1(a) or (b).
(c) For the purposes of the Interest Act (Canada) and disclosure
thereunder, whenever interest to be paid under any Loan Document is to be
calculated on the basis of a year of 360 days or any other period of time that
is less than a calendar year, the yearly rate of interest to which the rate
determined pursuant to such calculation is equivalent is the rate so determined
multiplied by the actual number of days in the calendar year in which the same
is to be ascertained and divided by either 360 or such other period of time, as
the case may be.
(d) If any provision of any Loan Document would oblige any
Borrower to make any payment of interest or other amount payable to any Lender
in an amount or calculated at a rate which would be prohibited by law or would
result in a receipt by that Lender of interest at a criminal rate (as such
terms are construed under the applicable Requirement of Law), then
notwithstanding such provision, such amount or rate shall be deemed to have
been adjusted with retroactive effect to the maximum amount or rate of
interest, as the case may be, as would not be so prohibited by law or so result
in a receipt by that Lender of interest at a criminal rate, such adjustment to
be effected, to the extent necessary, as follows:
(i) firstly, by reducing the amount or rate of interest
required to be paid to the affected Lender under subsection 4.1; and
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(ii) thereafter, by reducing any fees, commissions, premiums
and other amounts required to be paid to the affected Lender which would
constitute interest for purposes of any applicable Requirement of Law.
4.3 Inability to Determine Interest Rate. If prior to the first
day of any Interest Period:
(a) the Specified Agent shall have determined (which
determination, absent manifest error, shall be conclusive and binding
upon the Specified Borrower) that, by reason of circumstances affecting
the relevant market, adequate and reasonable means do not exist for
ascertaining the Specified Eurocurrency Rate for such Interest Period,
or
(b) the Specified Agent shall have received notice from holders
of a majority of the Specified Loans subject to such Interest Period
that the Specified Eurocurrency Rate determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost to
such Specified Lenders (as conclusively certified by such Specified
Lenders) of making or maintaining their affected Specified Loans during
such Interest Period,
the Specified Agent shall give telecopy or telephonic notice thereof to the
Specified Borrower and the Specified Lenders as soon as practicable thereafter.
If such notice is given (x) any Specified Eurocurrency Loans requested to be
made on the first day of such Interest Period shall be made as Base Rate Loans,
(y) any Specified Loans that were to have been converted on the first day of
such Interest Period to Eurocurrency Loans shall be converted to or continued
as Base Rate Loans and (z) any outstanding Specified Eurocurrency Loans shall
be converted, on the last day of the Interest Periods therefor, to Base Rate
Loans. Until such notice has been withdrawn by the Specified Agent (which the
Specified Agent agrees to do when the circumstances that prompted the delivery
of such notice no longer exist), no further Eurocurrency Loans shall be made or
continued as such, nor shall the Specified Borrower have the right to convert
such Specified Loans to Eurocurrency Loans. Notwithstanding the foregoing,
until such notice has been withdrawn by the Specified Agent (which the
Specified Agent agrees to do when the circumstances that prompted the delivery
of such notice no longer exist), if a Base Rate is not available to the
Specified Borrower, any Specified Loans or Specified Obligations or other
amounts due hereunder not subject to an Interest Period determined prior to
such notice shall bear interest at a rate determined from time to time by the
Specified Agent to be its cost of maintaining its share of such Specified
Loans, specified Obligations or other amounts plus the Applicable Margin and
any applicable overdue percentage pursuant to Section 4.1(c).
4.4 Pro Rata Treatment and Payments. (a) Each borrowing,
conversion or continuation pursuant to subsection 2.11, of Specified Loans
(other than Swing Line Loans) by a Specified Borrower from the Specified
Lenders and any reduction of the Specified Commitments of the Specified Lenders
hereunder shall be made pro rata, to the nearest C$100,000, only in the case of
Canadian B/As, according to the respective principal amounts of such Specified
Loans held by the Specified Lenders or the respective Specified Commitments of
the Specified Lenders, as the case may be.
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(b) Whenever (i) any payment received by a Specified Agent under
this Agreement or any Specified Note or (ii) any other amounts received by such
Specified Agent for or on behalf of the Specified Borrower (including, without
limitation, proceeds of collateral or payments under any guarantee) is
insufficient to pay in full all amounts then due and payable to such Specified
Agent and the Specified Lenders under this Agreement and any Specified Note and
the other Loan Documents, such payment shall be distributed by the Specified
Agent and applied by the Specified Agent and the Specified Lenders in the
following order: First, to the payment of fees and expenses due and payable to
the Specified Agent under and in connection with this Agreement and the other
Specified Loan Documents; Second, to the payment of all expenses due and
payable under subsection 12.5, ratably among the Specified Agent and the
Specified Lenders in accordance with the aggregate amount of such payments owed
to the Specified Agent and each such Specified Lenders; Third, to the payment
of fees due and payable under subsections 2.3 and 3.3(a) (in the case of the
Specified Lenders, shall be distributed ratably among such Lenders in
accordance with the Specified Revolving Credit Commitment Percentage (or, in
the case of the Chips Letter of Credit, Commitments) of each such Lender and,
in the case of the Specified Issuing Lender, the amount retained by such
Specified Issuing Lender for its own account pursuant to subsection 3.3(a)) and
to the payment of interest then due and payable under the Specified Loans,
ratably in accordance with the aggregate amount of interest and fees owed to
each such Specified Lender; Fourth, to the payment of the principal amount of
the Specified Loans and the Specified Accommodation Obligations (including any
amounts required to be cash collateralized) then due and payable and, in the
case of proceeds of collateral or payments under any guarantee, to the payment
of any other Obligations to any Secured Party Lender not covered in First
through Third above ratably secured by such collateral or ratably guaranteed
under any such guarantee, ratably among the Secured Parties Lenders in
accordance with the aggregate principal amount and, in the case of proceeds of
collateral or payments under any guarantee, the obligations secured or
guaranteed thereby owed to each such Specified Lender.
(c) If any Specified Revolving Credit Lender, Chips Acquisition
Term Loan Lender, Chips Limited Term Loan Lender (a "Non-Funding Lender") has
(x) failed to make a Specified Revolving Credit Loan, Chips Limited Term Loan
or Chips Acquisition Term Loan, as the case may be, required to be made by it
hereunder, and the Specified Agent has determined that such Specified Lender is
not likely to make such Specified Loan or (y) given notice to the Specified
Borrower or the Specified Agent that it will not make, or that it has
disaffirmed or repudiated any obligation to make, any Specified Loans, in each
case by reason of the provisions of the Financial Institutions Reform, Recovery
and Enforcement Act of 1989 or otherwise, any payment made on account of the
principal of the Specified Loans outstanding shall be made as follows:
(i) in the case of any such payment made on any date when and to
the extent that, in the determination of the Specified Agent, the
Specified Borrower would be able, under the terms and conditions hereof,
to reborrow the amount of such payment under the Specified Commitments
and to satisfy any applicable conditions precedent set forth in
subsection 6.2 to such reborrowing, such payment shall be made on
account of the outstanding Specified Revolving Credit Loan, Chips
Acquisition Term Loan or Chips Limited Term Loans, as the case may be,
held by the Specified
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Lenders other than the Non-Funding Lender pro rata according to the
respective outstanding principal amounts of the Specified Revolving
Credit Loan, Chips Acquisition Term Loan or Chips Limited Term Loan, as
the case may be, of such Specified Lenders;
(ii) otherwise, such payment shall be made on account of the
outstanding Specified Revolving Credit Loans, Chips Acquisition Term
Loans or Chips Limited Term Loans, as the case may be, held by the
Specified Revolving Credit Lenders, Chips Acquisition Term Loan Lenders
or Chips Limited Term Loan Lenders, pro rata according to the respective
outstanding principal amounts of such Loans; and
(iii) any payment made on account of interest on the Specified
Revolving Credit Loans, Chips Acquisition Term Loans or Chips Limited
Term Loans, as the case may be, shall be made pro rata according to the
respective amounts of accrued and unpaid interest due and payable on
such Loans with respect to which such payment is being made.
The Specified Borrower agrees to give the Specified Agent such assistance in
making any determination pursuant to this paragraph as the Specified Agent may
reasonably request. Any such determination by the Specified Agent shall be
conclusive and binding on the Specified Lenders.
(d) All payments (including prepayments) to be made by the
Specified Borrower on account of principal, interest and fees shall be made
without set-off or counterclaim and shall be made to the Specified Agent, for
the account of the Specified Lenders at the Specified Agent's office listed in
subsection 12.2, in the currency in which such amounts are denominated and in
immediately available funds. The Specified Agent shall promptly distribute
such payments in accordance with the provisions of subsections 4.4(b) and (c)
promptly upon receipt in like funds as received. If any payment hereunder
(other than payments on the Eurocurrency Loans or Canadian B/As) would become
due and payable on a day other than a Business Day, such payment shall become
due and payable on the next succeeding Business Day and, with respect to
payments of principal, interest thereon shall be payable at the applicable rate
during such extension. If any payment on a Eurocurrency Loan or Canadian B/A
becomes due and payable on a day other than a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day (and with respect
to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension), unless the result of such extension
would be to extend such payment into another calendar month in which event such
payment shall be made on the immediately preceding Business Day.
(e) Unless the Specified Agent shall have been notified in
writing by any Lender prior to a Borrowing Date that such Specified Lender will
not make the amount that would constitute its relevant Ratable Portion of the
Specified Loans on such date available to the Specified Agent, the Specified
Agent may assume that such Specified Lender has made such amount available to
the Specified Agent on such Borrowing Date, and the Specified Agent may, in
reliance upon such assumption, make available to the Specified Borrower a
corresponding amount. If such amount is made available to the Specified Agent
on a date
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after such Borrowing Date, such Specified Lender shall pay to the Specified
Agent on demand an amount equal to the product of (i) the daily average Base
Rate (or, if a Base Rate is not available to such Specified Borrower, a
Eurocurrency Rate with an Interest Period of one day) during such period, times
(ii) the amount of such Specified Lender's relevant Ratable Portion of such
Specified Loans, times (iii) a fraction the numerator of which is the number of
days that elapse from and including such Borrowing Date to the date on which
such Specified Lender's relevant Ratable Portion of such Specified Loans shall
have become immediately available to the Specified Agent and the denominator of
which is 365/366 or 360, as applicable. A certificate of the Specified Agent
submitted to any Specified Lender with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error. If such
Specified Lender's relevant Ratable Portion of such Specified Loans is not in
fact made available to the Specified Agent by such Specified Lender within
three (3) Business Days of such Borrowing Date, the Specified Agent shall be
entitled to recover such amount with interest thereon at the rate per annum
applicable to Base Rate Loans denominated in the relevant currency (or, if a
Base Rate is not available to the Specified Borrower, a Eurocurrency Rate with
an Interest Period of one day), on demand, from the Specified Borrower. The
failure of any Specified Lender to make any Specified Loan to be made by it
shall not relieve any other Specified Lender of its obligation, if any,
hereunder to make its Specified Loan on such Borrowing Date, but no Specified
Lender shall be responsible for the failure of any other Specified Lender to
make the Specified Loan to be made by such other Specified Lender on such
Borrowing Date.
4.5 Illegality. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Specified
Lender to make or maintain Eurocurrency Loans or Canadian B/As as contemplated
by this Agreement, (a) the commitment of such Specified Lender hereunder to
make Eurocurrency Loans or Canadian B/As, continue Eurocurrency Loans or
Canadian B/As as such and convert Base Rate Loans to Eurocurrency Loans or
Canadian B/As, as applicable, shall forthwith be cancelled and (b) such
Specified Lender's Loans then outstanding as Eurocurrency Loans or Canadian
B/As, if any, shall be converted automatically to Specified Base Rate Loans on
the respective last days of the then current Interest Periods or Canadian
Contract Periods, as applicable, with respect to such Specified Loans or within
such earlier period as required by law; provided that before making any such
demand, each Specified Lender agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions and so long as such
efforts would not be disadvantageous to it, in its reasonable discretion, in
any legal, economic or regulatory manner) to designate a different lending
office if the making of such a designation would allow the Specified Lender or
its lending office to continue to perform its obligations to make Eurocurrency
Loans or Canadian B/As. If any such conversion of a Eurocurrency Loan or
Canadian B/A occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the Specified Borrower shall pay to such
Specified Lender such amounts, if any, as may be required pursuant to
subsection 4.8. If circumstances subsequently change so that any affected
Lender shall determine that it is no longer so affected, such Specified Lender
will promptly notify the Specified Borrower and the Specified Agent, and upon
receipt of such notice, the obligations of such Specified Lender to make or
continue Eurocurrency Loans or Canadian B/As or to convert Base Rate Loans into
Eurocurrency Loans or Canadian B/As, as applicable, shall be reinstated.
Notwithstanding
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the foregoing, until such notice has been withdrawn by the Specified Lender
(which the Specified Lender agrees to do when the circumstances that prompted
the delivery of such notice no longer exist), if a Base Rate is not available
to the Specified Borrower, any Specified Loans or Specified Obligations or
other amounts due hereunder not subject to an Interest Period determined prior
to such notice shall bear interest at a rate determined from time to time by
the Specified Lender to be its cost of maintaining its share of such Specified
Loans, specified Obligations or other amounts plus the Applicable Margin and
any applicable overdue percentage pursuant to subsection 4.1(c).
4.6 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Specified Lender with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) shall subject any Specified Lender to any tax of any kind
whatsoever with respect to this Agreement, any Specified Eurocurrency
Loan, any Specified Note, any Specified Accommodation, Letter of Credit
Application, or Canadian B/As or change the basis of taxation of
payments to such Specified Lender in respect thereof (except for taxes
covered by subsection 4.7 and the establishment of a tax based on the
net income of such Specified Lender or changes in the rate of tax on the
net income of such Specified Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit (including, without
limitation, letters of credit or bankers acceptances) by, or any other
acquisition of funds by, any office of such Lender; or
(iii) shall impose on such Specified Lender any other condition;
and the result of any of the foregoing is to increase the cost to such
Specified Lender, by an amount which such Specified Lender deems to be
material, of making, converting into, continuing or maintaining Eurocurrency
Loans or Canadian B/As or to increase the cost to such Specified Lender, by an
amount which such Specified Lender deems to be material, of issuing or
maintaining any Specified Accommodation or participation therein or to reduce
any amount receivable hereunder in respect thereof, then, in any such case, the
Specified Borrower shall promptly pay such Specified Lender, upon its demand,
any additional amounts necessary to compensate such Specified Lender for such
increased cost or reduced amount receivable, provided, in respect of
Eurocurrency Loans or Canadian B/As, that before making any such demand, each
Specified Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions and so long as such efforts would
not be disadvantageous to it, in its reasonable discretion, in any legal,
economic or regulatory manner) to designate a different Eurocurrency or
Canadian B/A lending office if the making of such designation would allow the
Specified Lender or its Eurocurrency Loan or Canadian B/A lending office to
continue to perform its obligations to make Eurocurrency Loans or Canadian B/As
or to continue to fund or maintain Eurocurrency Loans or Canadian B/As and
avoid the need for, or materially reduce the amount of, such
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increased cost. If any Specified Lender becomes entitled to claim any
additional amounts pursuant to this subsection, it shall promptly notify (in
any event no later than ninety (90) days after such Specified Lender becomes
entitled to make such claim) the Specified Borrower, through the Specified
Agent, of the event by reason of which it has become so entitled. A
certificate as to any additional amounts payable pursuant to this subsection
submitted by such Specified Lender, through the Specified Agent, to the
Specified Borrower shall be conclusive in the absence of manifest error. If
the Specified Borrower so notifies the Specified Agent within five (5) Business
Days after any Specified Lender notifies the Specified Borrower of any
increased cost pursuant to the foregoing provisions of this subsection 4.6, the
Specified Borrower may convert all Eurocurrency Loans or Canadian B/As of such
Specified Lender then outstanding into Base Rate Loans if a Base Rate option is
available in accordance with subsection 2.11 and, additionally, reimburse such
Specified Lender for any cost in accordance with subsection 4.8. This covenant
shall survive the termination of this Agreement and the payment of the
Specified Loans and all other amounts payable hereunder for nine (9) months
following such termination and repayment.
(b) If any Specified Lender shall have determined that the
adoption of or any change in any Requirement of Law regarding capital adequacy
or in the interpretation or application thereof or compliance by such Specified
Lender or any corporation controlling such Specified Lender with any request or
directive regarding capital adequacy (whether or not having the force of law)
from any Governmental Authority made subsequent to the date hereof does or
shall have the effect of reducing the rate of return on such Specified Lender's
or such corporation's capital as a consequence of its obligations hereunder or
under any Specified Accommodation to a level below that which such Specified
Lender or such corporation could have achieved but for such change or
compliance (taking into consideration such Specified Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Specified Lender to be material, then from time to time, after submission
by such Specified Lender to the Specified Borrower (with a copy to the
Specified Agent) of a prompt written request therefor, the Specified Borrower
shall pay to such Specified Lender such additional amount or amounts as will
compensate such Specified Lender for such reduction. This covenant shall
survive the termination of this Agreement and the payment of the Specified
Loans and all other amounts payable hereunder for nine months following such
termination and repayment.
4.7 Taxes. (a) Except as provided below in this subsection,
all payments made by each Specified Borrower under this Agreement and any
Specified Notes shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any Specified
Governmental Authority, excluding net income taxes and franchise taxes imposed
in lieu of net income taxes. If any such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions or withholdings ("Non-Excluded Taxes") are
required to be withheld from any amounts payable to the Specified Agent or any
Specified Lender hereunder or under any Specified Notes, the amounts so payable
to the Specified Agent or such Specified Lender shall be increased to the
extent necessary to yield to the Specified Agent or such Specified Lender
(after payment of all Non-Excluded Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this
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Agreement and any Specified Notes, provided, however, that the Specified
Borrower shall be entitled to deduct and withhold any Non-Excluded Taxes and
shall not be required to increase any such amounts payable to any Specified
Lender if such Specified Lender fails or is unable to comply with the
requirements of paragraph (b) of this subsection or if such Specified Lender
fails to comply with the requirements of paragraphs (c) or (d) of this
subsection 4.7. Whenever any Non-Excluded Taxes are payable by the Specified
Borrower, as promptly as possible thereafter the Specified Borrower shall send
to the Specified Agent for its own account or for the account of such Specified
Lender, as the case may be, a certified copy of an original official receipt
received by the Specified Borrower showing payment thereof. If the Specified
Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Specified Agent the required receipts or
other required documentary evidence, the Specified Borrower shall indemnify the
Specified Agent and the Specified Lenders for any incremental taxes, interest
or penalties that may become payable by the Specified Agent or any Specified
Lender as a result of any such failure. The agreements in this subsection
shall survive the termination of this Agreement and the payment of the
Specified Loans and all other amounts payable hereunder for a period of nine
(9) months thereafter.
(b) With respect to US Lenders, each US Lender that is not
incorporated under the laws of the United States of America or a state thereof
shall:
(i) (x) on or before the date of any payment by the US
Borrower under this Agreement or any Notes to such US Lender,
deliver to the US Borrower and the Administrative Agent (A) two
duly completed copies of United States Internal Revenue Service
Form 1001 or 4224, or successor applicable form, as the case may
be, certifying that it is entitled to receive payments under this
Agreement and any Notes without any deduction or withholding of
any United States federal income taxes and (B) a duly completed
Internal Revenue Service Form W-8 or W-9, or successor applicable
form, as the case may be, certifying that it is entitled to an
exemption from United States backup withholding tax;
(y) deliver to the US Borrower and the
Administrative Agent two further copies of any such form
or certification on or before the date that any such form
or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most
recent form previously delivered by it to the US Borrower;
and
(z) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be
requested by the US Borrower or the Administrative Agent;
or
(ii) in the case of any such US Lender that is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and
that does not comply
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with sub-paragraph (i) of this paragraph (b), (x) represent to
the US Borrower (for the benefit of the US Borrower and the
Administrative Agent) that it is not a bank within the meaning of
Section 881(c)(3)(A) of the Code, (y) deliver to the US Borrower
on or before the date of any payment by the US Borrower, with a
copy to the Administrative Agent, (A) a certificate stating that
such US Lender (1) is not a "bank" under Section 881(c)(3)(A) of
the Code, is not subject to regulatory or other legal
requirements as a bank in any jurisdiction, and has not been
treated as a bank for purposes of any tax, securities law or
other filing or submission made to any Governmental Authority,
any application made to a rating agency or qualification for any
exemption from tax, securities law or other legal requirements,
(2) is not a 10-percent shareholder within the meaning of Section
881(c)(3)(B) of the Code and (3) is not a controlled foreign
corporation receiving interest from a related person within the
meaning of Section 881(c)(3)(C) of the Code (any such certificate
a "U.S. Tax Compliance Certificate") and (B) two duly completed
copies of Internal Revenue Service Form W-8, or successor
applicable form, certifying to such US Lender's legal entitlement
at the date of such certificate to an exemption from U.S.
withholding tax under the provisions of Section 881(c) of the
Code with respect to payments to be made under this Agreement and
any US Notes (and to deliver to the US Borrower and the
Administrative Agent two further copies of Form W-8 on or before
the date it expires or becomes obsolete and after the occurrence
of any event requiring a change in the most recently provided
form and, if necessary, obtain any extensions of time reasonably
requested by the US Borrower or the Administrative Agent for
filing and completing such forms), and (z) agree, to the extent
legally entitled to do so, upon reasonable request by the US
Borrower, to provide to the US Borrower (for the benefit of the
US Borrower and the Administrative Agent) such other forms as may
be reasonably required in order to establish the legal
entitlement of such US Lender to an exemption from withholding
with respect to payments under this Agreement and any Notes; or
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a US Lender hereunder which renders all such
forms and certificates inapplicable or which would prevent such US Lender from
duly completing and delivering any such form or certificate with respect to it
and such US Lender so advises the US Borrower and the Administrative Agent.
Each Person that shall become a US Lender or a Specified Participant pursuant
to subsection 12.6 shall, upon the effectiveness of the related transfer, be
required to provide all of the forms, certifications and statements required
pursuant to this subsection; provided that in the case of a Specified
Participant the obligations of such Specified Participant pursuant to this
paragraph (b) shall be determined as if such Specified Participant were a US
Lender except that such Specified Participant shall furnish all such required
forms, certifications and statements to the US Lender from which the related
participation shall have been purchased.
(c) Each Specified Lender shall, upon request by the Specified
Borrower, deliver to the Specified Borrower or the applicable Governmental
Authority, as the case may be, any form or certificate required in order that
any payment by the Specified Borrower under this
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Agreement or any Specified Notes may be made free and clear of, and without
deduction or withholding for or on account of any Non-Excluded Taxes (or to
allow any such deduction or withholding to be at a reduced rate) imposed on
such payment under the laws of any jurisdiction, provided that such Specified
Lender is legally entitled to complete, execute and deliver such form or
certificate and such completion, execution or submission would not materially
prejudice the legal position of such Specified Lender.
(d) Each English Lender represents to the English Borrower, Chips
Limited or ISL, as the case may be, that at the date hereof it is (and each of
its transferees shall represent and it shall be a condition precedent to the
sale of an English Lender's participating interest in any English Loan or Chips
Loan to a Specified Participant and the assignment of all or part of its rights
or obligations under any English Loan or Chips Loan to any English Lender or
any affiliate thereof that such Specified Participant, English Lender or
affiliate shall so represent at the time of the sale or assignment that it is
at the date of the sale or assignment) either (i) a bank as defined in Section
840A of the Income and Corporation Taxes Act of 1988 and is within the charge
to United Kingdom corporation tax in respect of all interest received by it
under this Agreement or (ii) entitled by virtue of an applicable double tax
treaty to claim such exemption or relief from United Kingdom income tax as will
allow interest payments hereunder by the English Borrower, ISL or Chips
Limited, as the case may be, to be made to it free of United Kingdom taxes and
has filed such a claim with all of the appropriate supporting documents and a
gross payment direction will be (or should be issued in due course) to the
English Borrower, ISL or Chips Limited, as the case may be, by the Inland
Revenue; provided no English Lender shall be entitled to payments under
subsection 4.7(a) pending the issuance of a gross payment direction under this
clause (ii).
4.8 Indemnity. Each Specified Borrower agrees to indemnify each
Specified Lender and to hold each Specified Lender harmless from any loss or
expense which such Specified Lender may sustain or incur as a consequence of
(a) default by the Specified Borrower in payment when due of the principal
amount of or interest on any Eurocurrency Loan or Canadian B/A, (b) default by
the Specified Borrower in making a borrowing of, conversion into or
continuation of Eurocurrency Loans or Canadian B/As after the Specified
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (c) default by the Specified Borrower in making
any prepayment after the Specified Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (d) the making of a
prepayment of Eurocurrency Loans or Canadian B/As on a day which is not the
last day of an Interest Period or Canadian Contract Period with respect
thereto, including, without limitation, in each case, any such loss or expense
(but excluding loss of margin) arising from the reemployment of funds obtained
by it or from fees payable to terminate the deposits from which such funds were
obtained. Calculation of all amounts payable to a Specified Lender under this
subsection 4.8 shall be made as though such Specified Lender had actually
funded its relevant Eurocurrency Loan or Canadian B/A through the purchase of a
deposit bearing interest at the Eurocurrency Rate in an amount equal to the
amount of such Eurocurrency Loan or Canadian B/A and having a maturity
comparable to the relevant Interest Period or Canadian Contract Period;
provided, however, that each Specified Lender may fund each of its Eurocurrency
Loans or Canadian B/As in any manner it sees fit, and the foregoing assumption
shall be utilized only for the calculation of amounts payable under this
subsection 4.8. This covenant shall survive the termination of
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this Agreement and the payment of the Specified Loans and all other amounts
payable hereunder for a period of nine (9) months thereafter.
4.9 Replacement of Specified Lender. If at any time (a) the
Specified Borrower becomes obligated to pay additional amounts described in
subsections 4.5, 4.6 or 4.7 as a result of any condition described in such
subsections or any Specified Lender ceases to make Eurocurrency Loans or
Canadian B/As pursuant to subsection 4.5, (b) any Specified Lender becomes
insolvent and its assets become subject to a receiver, liquidator, trustee,
custodian or other Person having similar powers, (c) any Specified Lender
becomes a "Nonconsenting Lender" (as defined below in this subsection 4.9) or
(d) any Specified Lender becomes a "Non-Funding Lender", then the Specified
Borrower may, on ten (10) Business Days' prior written notice to the Specified
Agent and such Specified Lender, replace such Specified Lender by causing such
Specified Lender to (and such Specified Lender shall) assign pursuant to
subsection 12.6(c) all of its rights and obligations under this Agreement to a
Specified Lender or other entity selected by the Specified Borrower and
acceptable to the Specified Agent for a purchase price equal to the outstanding
principal amount of such Lender's Specified Loans and all accrued interest and
fees and other amounts payable hereunder; provided that (i) the Specified
Borrower shall have no right to replace the Specified Agent, (ii) neither the
Specified Agent nor any Specified Lender shall have any obligation to the
Specified Borrower to find a replacement Specified Lender or other such entity,
(iii) in the event of a replacement of a Nonconsenting Lender or a Specified
Lender to which the Specified Borrower becomes obligated to pay additional
amounts pursuant to clause (a) of this subsection 4.9, in order for the
Specified Borrower to be entitled to replace such a Specified Lender, such
replacement must take place no later than 180 days after (A) the date the
Nonconsenting Lender shall have notified the Specified Borrower and the
Specified Agent of its failure to agree to any requested consent, waiver or
amendment or (B) the Specified Lender shall have demanded payment of additional
amounts under one of the subsections described in clause (a) of this subsection
4.9, as the case may be, and (iv) in no event shall the Specified Lender hereby
replaced be required to pay or surrender to such replacement Specified Lender
or other entity any of the fees received by such Specified Lender hereby
replaced pursuant to this Agreement. In the case of a replacement of a
Specified Lender to which the Specified Borrower becomes obligated to pay
additional amounts pursuant to clause (a) of this subsection 4.9, the Specified
Borrower shall pay such additional amounts to such Specified Lender prior to
such Specified Lender being replaced and the payment of such additional amounts
shall be a condition to the replacement of such Specified Lender. In the event
that (x) the Specified Borrower or the Specified Agent has requested the
Lenders to consent to a departure or waiver of any provisions of the Specified
Loan Documents or to agree to any amendment thereto, (y) the consent, waiver or
amendment in question requires the agreement of all Lenders in accordance with
the terms of subsection 12.1 and (z) Required Lenders have agreed to such
consent, waiver or amendment, then any Specified Lender who does not agree to
such consent, waiver or amendment shall be deemed a "Nonconsenting Lender." The
Specified Borrower's right to replace a Non-Funding Lender pursuant to this
subsection 4.9 is, and shall be, in addition to, and not in lieu of, all other
rights and remedies available to the Specified Borrower against such Non-
Funding Lender under this Agreement, at law, in equity, or by statute.
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SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement
and to make their respective Loans and to issue and participate in
Accommodations, Holdings, and the US Borrower (and each Foreign Subsidiary
Borrower, only as to itself, and its Subsidiaries) hereby represent and warrant
to the Agents and each Lender that:
5.1 Financial Condition. (a) The audited consolidated
financial statements of Holdings dated December 31, 1996, copies of which have
been furnished to each Lender on or before the Chips Closing Date, have been
prepared using accounting methods, procedures and policies which, except as set
forth in Schedule 5.1(a), are in accordance with GAAP and present fairly in all
material respects the financial positions of the US Borrower, its predecessors
and its Subsidiaries on a consolidated basis, in each case, as at the dates
thereof, and the results of operations and statements of cash flows for the
periods then ended (as to any unaudited interim financial statements, subject
to normal year-end audit adjustments and the absence of footnotes). Neither
Holdings nor any of its Subsidiaries had, to the knowledge of the US Borrower
and Holdings, as at the date of the most recent balance sheet referred to
above, any material Guarantee Obligation, contingent liability or liability for
taxes, or any long-term lease or unusual forward or long-term commitment,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction, which is not reflected in the foregoing statements or in
the notes thereto and which, to the knowledge of the US Borrower and Holdings,
has any reasonable likelihood of resulting in a material cost or loss.
(b) The audited consolidated financial statements of the
Canadian Borrower dated December 31, 1995 and 1994, copies of which have been
furnished to each Lender on or before the Chips Closing Date, have been
prepared using accounting methods, procedures and policies which are in
accordance with GAAP applied on a basis consistent with that of prior years and
present fairly in all material respects the financial positions of the Canadian
Borrower, its predecessors and its Subsidiaries on a consolidated basis, in
each case, as at the dates thereof, and the results of operations and
statements of cash flows for the periods then ended (as to any unaudited
interim financial statements, subject to normal year-end audit adjustments and
the absence of footnotes). Neither the Canadian Borrower nor any of its
Subsidiaries had, to the knowledge of the Canadian Borrower and Holdings, as at
the date of the most recent balance sheet referred to above, any material
Guarantee Obligation, contingent liability or liability for taxes, or any
long-term lease or unusual forward or long-term commitment, including, without
limitation, any interest rate or foreign currency swap or exchange transaction,
which is not reflected in the foregoing statements or in the notes thereto and
which, to the knowledge of the Canadian Borrower and Holdings, has any
reasonable likelihood of resulting in a material cost or loss.
(c) The audited consolidated financial statements of the English
Borrower dated January 31, 1996, and, to the knowledge of Holdings and the
English Borrower, the audited consolidated financial statements of the English
Borrower dated January 31, 1995 and 1994, copies of which have been furnished
to each Lender on or before the Chips Closing Date, have been prepared using
accounting methods, procedures and policies which are in accordance with GAAP
applied on a basis consistent with that of prior years and present
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fairly in all material respects the financial positions of the English
Borrower, its predecessors and its Subsidiaries on a consolidated basis, in
each case, as at the dates thereof, and the results of operations and
statements of cash flows for the periods then ended (as to any unaudited
interim financial statements, subject to normal year-end audit adjustments and
the absence of footnotes). Neither the English Borrower nor any of its
Subsidiaries had, to the knowledge of the English Borrower and Holdings, as at
the date of the most recent balance sheet referred to above, any material
Guarantee Obligation, contingent liability or liability for taxes, or any
long-term lease or unusual forward or long-term commitment, including, without
limitation, any interest rate or foreign currency swap or exchange transaction,
which is not reflected in the foregoing statements or in the notes thereto and
which, to the knowledge of the English Borrower and Holdings, has any
reasonable likelihood of resulting in a material cost or loss.
(d) The revised pro forma balance sheet of the US Borrower and
its Subsidiaries (the "Chips Pro Forma Balance Sheet"), certified by the
Responsible Officer of US Borrower, copies of which have been heretofore
furnished to each Lender, is, to the best knowledge of the US Borrower, the
unaudited balance sheet of the US Borrower as at March 31, 1997, adjusted to
give effect to (i) the Chips Acquisition and (ii) the contribution of (x) the
capital stock of Chips Limited to International Holdings and (y) the capital
stock of Chips Limited by International Holdings to English Holding Company and
the financings contemplated by this Agreement and (iii) the other Transactions.
The Chips Pro Forma Balance Sheet, together with the notes thereto, were
prepared based on good faith assumptions and are based on the best information
available to the US Borrower as of the date of delivery thereof, and reflect on
a pro forma basis the financial position of the US Borrower and its combined
Subsidiaries as at the Chips Closing Date.
5.2 No Change. (a) Since December 31, 1996, there has been no
Material Adverse Change and (b) since the Closing Date no dividends or other
distributions have been declared, paid or made upon the Capital Stock of the
Credit Parties except as permitted hereby nor, except for the Transactions,
has any of the Capital Stock of the Credit Parties been redeemed, retired,
purchased or otherwise acquired for value by the Credit Parties or any of their
Subsidiaries.
5.3 Corporate Existence; Compliance with Law. Holdings and each
of its Subsidiaries (a) is duly organized, validly existing or validly
subsisting and in good standing, as the case may be, under the laws of the
jurisdiction of its organization or incorporation, (b) has the power and
authority, and the legal right, to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, except to the extent that the failure to so qualify could not,
in the aggregate, reasonably be expected to have a Material Adverse Effect and
(d) is in compliance with all Requirements of Law except to the extent that the
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Affect.
5.4 Corporate Power; Authorization; Enforceable Obligations.
Each Credit Party has the power and authority, and the legal right, to make,
deliver and perform this
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Agreement, any of the Specified Notes and the other Specified Loan Documents to
which it is a party and, with respect to each Specified Borrower, to borrow
hereunder and has taken all necessary action to authorize the borrowings on the
terms and conditions of, or the granting of any security interests under, this
Agreement and any of the Specified Notes and the other Specified Loan Documents
and to authorize the execution, delivery and performance of this Agreement, any
of the Specified Notes and the other Specified Loan Documents to which it is a
party. No consent or authorization of, filing with, notice to or other act by
or in respect of, any Governmental Authority or any other Person is required in
connection with the borrowings under this Agreement or with the execution,
delivery, performance, validity or enforceability of, or the granting of any
security interests under, this Agreement, any of the Specified Notes or the
other Specified Loan Documents to which any Credit Party is a party, except for
(i) those set forth on Schedule 5.4, each of which have been or will be made or
taken and are or will be in full force and effect, (ii) consents under
immaterial Contractual Obligations or (iii) those referred to subsection 5.20.
This Agreement, any Specified Note and each of the other Specified Loan
Documents has been duly executed and delivered on behalf of the Credit Party
party thereto. This Agreement, any Specified Note and each of the other
Specified Loan Documents constitutes a legal, valid and binding obligation of
the Credit Party party thereto enforceable against such Credit Party in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
5.5 No Legal Bar. The execution, delivery and performance of
this Agreement, any of the Notes and the other Loan Documents, the borrowings
hereunder and thereunder and the use of the proceeds thereof will not violate
any Requirement of Law or any material Contractual Obligation of any Credit
Party or of any of their Subsidiaries.
5.6 No Material Litigation. Except as set forth in Schedule
5.6, no litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of Holdings or any
Specified Borrower, threatened by or against any of the Credit Parties or any
of their Subsidiaries or against any of their respective properties or revenues
(a) with respect to this Agreement, the other Loan Documents, or any of the
transactions contemplated hereby or thereby, (b) with respect to any
Acquisition Document or any transactions contemplated thereby, which affects
any material provision or any material transaction contemplated thereby, or (c)
which could reasonably be expected to have a Material Adverse Effect.
5.7 No Default. None of the Credit Parties or any of their
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a
Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
5.8 Ownership of Property; Liens. Each of the Credit Parties
and their Subsidiaries has good and valid title or title in fee simple to, as
applicable, or a valid leasehold interest in, all its material real and
immovable property, and good title to, or a valid leasehold interest in, all
its other material property, and none of such property is
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subject to any Lien except as permitted by subsection 8.3. Such real and other
properties comprise all of the properties the use of which is necessary for the
conduct of Holdings' and its Subsidiaries' business as presently conducted and
as proposed to be conducted by it. As of the date hereof, the Fee Properties
as listed on Part I of Schedule 5.20 constitute all the real and immovable
properties owned by good and valid title or title in fee simple, as applicable,
by Holdings or its Subsidiaries, the Leased Properties as listed on Part II of
Schedule 5.20 together with the Excluded Leased Properties as listed on Part
III of Schedule 5.20 constitute all of the real and immovable properties leased
by Holdings or its Subsidiaries. As of the date hereof, each of the Leased
Properties listed on Part II of Schedule 5.20 which may be made subject to a
recorded Lien without violating the terms of the applicable Underlying Lease,
and each lease agreement under which an interest in any material Leased
Property is held (as amended, an "Underlying Lease") is in full force and
effect.
5.9 Intellectual Property. Each of the Credit Parties and their
Subsidiaries owns, or is validly licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those the failure to own or license
which could not reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). To the best knowledge of any Specified Borrower and
Holdings, and except as set forth on Schedule 5.9, no claim has been asserted
and is pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor do the Credit Parties know of any valid basis for any such claim
which could reasonably be expected to have a Material Adverse Effect. The use
of such Intellectual Property by the Credit Parties and their Subsidiaries does
not infringe on the rights of any Person, except for such claims and
infringements that, in the aggregate, could not reasonably be expected to have
a Material Adverse Effect.
5.10 Taxes. Except as set forth on Schedule 5.10, each of the
Credit Parties and their Subsidiaries has filed or caused to be filed all
federal and all other material tax returns which, to the knowledge of the
Credit Parties, are required to be filed and has paid all taxes shown to be due
and payable on said returns or on any assessments made against it or any of its
property (including without limitation the Mortgaged Properties) and all other
material taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than (i) any such taxes, assessments, fees,
or other charges the amount or validity of which are currently being contested
in good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Credit Parties or
their Subsidiaries, as the case may be, and (ii) taxes, assessments, fees or
other charges imposed by any Governmental Authority, other than income taxes
imposed by any Governmental Authority, with respect to which the failure to
make payments could not, by reason of the amount thereof or of remedies
available to such Governmental Authorities, reasonably be expected to have a
Material Adverse Effect); no tax Lien has been filed, and, to the knowledge of
the Credit Parties, no claim is being asserted, with respect to any such tax,
fee or other charge other than those being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Credit Parties or their
Subsidiaries, as the case may be.
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5.11 US Federal Regulations. No part of the proceeds of any
Loans will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulations G, T, U or X
as now and from time to time hereafter in effect or for any purpose which
violates the provisions of the Regulations of the Board. If requested by any
US Lender or the Administrative Agent, the US Borrower will furnish to the
Specified Agent and each Specified Lender a statement to the foregoing effect
in conformity with the requirements of FR Form U-1 or G-3 referred to in said
Regulation U or G.
5.12 ERISA. Except where the liability, individually or in the
aggregate, which could reasonably be expected to result has not had or could
not reasonably be expected to have a Material Adverse Effect: (i) neither a
Reportable Event nor an "accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Single Employer Plan; (ii) each Plan (other
than a Multiemployer Plan) has complied in all material respects with the
applicable provisions of ERISA and the Code; (iii) no termination of a Single
Employer Plan has occurred, and no Lien in favor of the PBGC or a Single
Employer Plan has arisen and remains outstanding, during such five-year period;
(iv) the present value of all accrued benefits under each Single Employer Plan
(based on those assumptions used to fund such Plans) did not, as of the last
annual valuation date prior to the date on which this representation is made or
deemed made, exceed the value of the assets of such Plan allocable to such
accrued benefits by an amount which could reasonably be expected to have a
Material Adverse Effect; (v) none of the Credit Parties nor any Commonly
Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and, to the best knowledge of the Credit Parties, none of
the Credit Parties nor any Commonly Controlled Entity would become subject to
any liability under ERISA if the Credit Parties or any such Commonly Controlled
Entity were to withdraw completely from all Multiemployer Plans as of the
valuation date most closely preceding the date on which this representation is
made or deemed made; (vi) no such Multiemployer Plan is in Reorganization or
Insolvent; and (vii) the present value (determined using actuarial and other
assumptions which are reasonable in respect of the benefits provided and the
employees participating) of the liability of the Credit Parties and each
Commonly Controlled Entity for post retirement benefits to be provided to their
current and former employees under Plans which are welfare benefit plans (as
defined in Section 3(1) of ERISA) does not, in the aggregate, exceed the assets
under all such Plans allocable to such benefits.
5.13 Canadian Benefit and Pension Plans. The Canadian Pension
Plans are duly registered under the provisions of the ITA and any other
Requirements of Law applicable to a Credit Party and no event has occurred
which is reasonably likely to cause the loss of such registered status. The
Canadian Pension Plans and the Canadian Benefits Plans have been administered
in accordance with the ITA and all other Requirements of Law applicable to a
Credit Party. All material obligations of each Credit Party (including
fiduciary and funding obligations) required to be performed in connection with
the Canadian Pension Plans and the funding media therefor have been performed.
There have been no improper withdrawals or applications of the assets of the
Canadian Pension Plans or the Canadian Benefit Plans which could reasonably be
expected to have a Material Adverse
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Effect. Except as disclosed in Schedule 5.13 as of the most current evaluation
date, each of the Canadian Pension Plans is fully funded and there exist no
going concern unfunded actuarial liabilities or solvency deficiencies in
respect of such plans.
5.14 Investment Company Act; Other Regulations. Neither
Holdings nor any of its Subsidiaries is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended. No Specified Borrower is subject to
regulation under any Requirement of Law which limits its ability to incur
Indebtedness.
5.15 Subsidiaries, Etc. As of the date hereof, the only
Subsidiaries of Holdings, and the only partnerships, limited liability
companies or other joint ventures in which Holdings or any of its Subsidiaries
has an interest are those listed on Schedule 5.15. As of the date hereof,
Holdings owns the percentage of the Capital Stock or other evidences of the
ownership of each Subsidiary, partnership, limited liability company or other
joint venture listed on Schedule 5.15 as set forth on such Schedule. As of the
date hereof, no such Subsidiary, partnership, limited liability company, or
other joint venture has issued any securities convertible into shares of its
Capital Stock, and the outstanding stock and securities (or other evidence of
ownership) of such Subsidiaries, partnerships, limited liability companies, or
other joint ventures owned by Holdings and its Subsidiaries are so owned free
and clear of all Liens, warrants, options or rights of others of any kind
except as set forth in Schedule 5.15.
5.16 Environmental Matters. After taking into account the
environmental indemnities in the Acquisition Documents: (a) The facilities
and properties owned, leased or operated by Holdings or any of its Subsidiaries
(the "Properties") do not contain, and have not previously contained, any
Materials of Environmental Concern in amounts or concentrations or under such
conditions which (i) constitute or constituted a violation of, or could
reasonably be expected to give rise to liability under, any Environmental Law
in effect at the time of the making of this representation, or (ii) could
materially and adversely interfere with the continued operation of the
Properties, or (iii) materially impair the fair saleable value thereof except
in each case insofar as such violation, liability, interference, or reduction
in fair market value, or any aggregation thereof, is not reasonably likely to
result in a Material Adverse Effect.
(b) The business of Holdings and its Subsidiaries, the
Properties and all operations at the Properties are, and to the knowledge of
the US Borrower and Holdings have been, in compliance in all material respects
with all applicable Environmental Laws except for noncompliance which is not
reasonably likely to result in a Material Adverse Effect.
(c) Neither Holdings nor any of its Subsidiaries has received
any written notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the business of
Holdings and its Subsidiaries, nor does Holdings or any Specified Borrower have
knowledge or reason to believe that any such notice will be received or is
being threatened except insofar as such notice or threatened notice, or any
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aggregation thereof, does not involve a matter or matters that is or are
reasonably likely to result in a Material Adverse Effect.
(d) Materials of Environmental Concern have not been transported
or disposed of from the Properties in violation of, or in a manner or to a
location which could reasonably be expected to give rise to liability under,
any Environmental Law in effect at the time of the making of this
representation, nor have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of the Properties in
violation of, or in a manner that could reasonably be expected to give rise to
liability under, any applicable Environmental Law in effect at the time of the
making of this representation except insofar as any such violation or liability
referred to in this paragraph, or any aggregation thereof, is not reasonably
likely to result in a Material Adverse Effect.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of any Specified Borrower or Holdings,
threatened, under any Environmental Law to which Holdings or any Subsidiary is
or will be named as a party with respect to the Properties or the business of
Holdings and its Subsidiaries, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to the Properties or the business of Holdings and its Subsidiaries
except insofar as such proceeding, action, decree, order or other requirement,
or any aggregation thereof, is not reasonably likely to result in a Material
Adverse Effect.
(f) There has been no release or, to the best knowledge of any
Specified Borrower and Holdings, threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations of Holdings or any Subsidiary in connection with the Properties
or otherwise in connection with the business of Holdings and its Subsidiaries,
in violation of or in amounts or in a manner that could reasonably give rise to
liability under Environmental Laws in effect at the time of making this
representation except insofar as any such violation or liability referred to in
this paragraph, or any aggregation thereof, is not reasonably likely to result
in a Material Adverse Effect.
5.17 Delivery of Acquisition Documents. Each Specified Agent
has received for itself and for each Specified Lender a complete copy of each
of the Acquisition Documents (including all exhibits, schedules and disclosure
letters referred to therein or delivered pursuant thereto, if any) and all
amendments thereto, waivers relating thereto and other side letters or
agreements affecting the terms thereof.
5.18 Representations and Warranties Contained in the Acquisition
Documents. Each of the Acquisition Documents has been duly executed and
delivered by the Credit Parties party thereto and, to the best knowledge of the
US Borrower and Holdings, all other parties thereto and is full force and
effect. The representations and warranties of Holdings and its Subsidiaries
and, to the best knowledge of the US Borrower and Holdings, the other parties,
in each of the Acquisition Documents are true and correct in all material
respects.
5.19 Disclosure. No information, financial statement, report,
certificate or other document prepared or furnished by or on behalf of any
Credit Party to any Agent or
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any Lender in connection with this Agreement, any other Specified Loan
Document, or any of the Acquisition Documents (but excluding all projections
and pro forma financial statements which shall have been prepared in good faith
and based upon reasonable assumptions) contains any untrue statement of a
material fact or omits to state any material fact necessary to make the
statements herein or therein not misleading. As of the Chips Closing Date,
there is no fact known to the US Borrower or Holdings (other than general
economic conditions, which conditions are commonly known and affect businesses
generally) which has, or which could reasonably be expected to have, in the
reasonable judgment of such Credit Party, a Material Adverse Effect.
5.20 Guarantee and Collateral Agreement; Mortgages. (a) The
Guarantee and Collateral Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Pledged Securities described
therein and proceeds thereof and all actions have been taken to cause the
Guarantee and Collateral Agreement to constitute a fully perfected first Lien
on, and security interest in, all right, title and interest of Holdings, and
its Domestic Subsidiaries, respectively, in such Pledged Securities described
therein and in proceeds thereof superior in right to any other Person.
(b) The Guarantee and Collateral Agreement and the Assignment
are effective to create in favor of the Collateral Agent, for the benefit of
the Secured Parties, a legal, valid and enforceable security interest in the
respective collateral described therein and proceeds thereof, and the Guarantee
and Collateral Agreement constitutes fully perfected, first priority Liens on,
and security interests in, all right, title and interest of Holdings, and its
Domestic Subsidiaries in such collateral and the proceeds thereof superior in
right to any other Person other than Liens permitted hereby.
(c) The properties listed on Schedule 5.20 constitute all
material real properties owned by Holdings or any of its Subsidiaries. The
Mortgages are each effective to create in favor of the Collateral Agent, for
the benefit of the Secured Parties, a legal, valid and enforceable Lien on the
properties described therein owned by the US Borrower and its Domestic
Subsidiaries and proceeds thereof, subject to obtaining necessary consents
(which consents shall be obtained on or prior to the Chips Closing Date) and
when amendments to the Mortgages are filed in the offices specified on Schedule
5.20, the Mortgages shall constitute a fully perfected, first priority Lien on,
and security interest in, all right, title and interest of the US Borrower and
its Domestic Subsidiaries in the Mortgaged Properties and the proceeds thereof,
superior in right to any other Person other than Liens permitted hereby.
(d) Each other Loan Document to which any Credit Party is a
party and which purports to ▇▇▇▇▇ ▇ ▇▇▇▇ on any property of such Credit Party
to secure the Specified Obligations is effective to create in favor of the
Specified Agent, for the benefit of the Specified Lenders, a legal, valid and
enforceable security interest in the respective collateral described therein
and proceeds thereof, and when appropriate filings and notices have been taken
or given, such Loan Document shall constitute fully perfected, first priority
Liens on, and security interests in, all right, title and interest of such
Credit Party in such collateral
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and the proceeds thereof superior in right to any other Person other than Liens
permitted hereby.
(e) Schedule 5.20 also sets out, as of the Chips Closing Date,
the nations and the states and/or provinces in which the Canadian Borrower's
account debtors are located, together with the aggregate amount of account
receivable owing by such account debtors in each relevant jurisdiction, in each
case where the aggregate amount of such accounts receivable in such relevant
jurisdiction exceeds the Equivalent Amount of $1,000,000.
5.21 Solvency. Each of Holdings and each Specified Borrower is,
individually and together with its Subsidiaries, Solvent.
5.22 No Fees. Neither Holdings nor any Subsidiary is under any
obligation to pay any broker's fees, finder's fee, commission, transaction fee
or expenses in connection with the transactions contemplated by this Agreement
or the Chips Acquisition Agreement other than fees and expenses listed on
Schedule 5.22.
5.23 Insurance. The insurance maintained by or reserved against
on the books of Holdings, the Borrowers and their respective Subsidiaries is
sufficient to protect Holdings and its Subsidiaries against such risks as are
usually insured against in the same general area by companies engaged in the
same or similar business. None of the Credit Parties or any of their
Subsidiaries is in default under any provisions of any such policy of insurance
or has received notice of cancellation of any such insurance (other than in
connection with the replacement of any such policy). None of the Credit
Parties or any of their Subsidiaries has made any claims under any policy of
insurance with respect to which the insurance carrier has denied liability.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Chips Closing Date. The effectiveness of this
Agreement and the amendment and restatement of the Credit Agreement is subject
to the satisfaction, on the Chips Closing Date, of the following conditions
precedent on or prior to July 3, 1997:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a Responsible
Officer of each Borrower, Chips Limited, ISL, Chase Delaware, the
Agents, the Majority Class Lenders, the US Revolving Credit Lenders and
the Canadian Revolving Credit Lenders, with a copy for each Lender, (ii)
for the account of each of the Chips Acquisition Term Loan Lenders and
the Chips Limited Term Loan Lenders who have requested a Term Note of
Chips Inc. pursuant to subsection 2.8(e), a Term Note of US Borrower
executed and delivered by a Responsible Officer of the US Borrower;
(iii) a Supplement to the Amended and Restated Guarantee and Collateral
Agreement in form and substance reasonably satisfactory to the
Administrative Agent executed and delivered by a Responsible Officer of
the US Borrower with respect to the Chips Limited intercompany note
between US Borrower and Chips Limited for $302,000,000, (iv) a
Supplement to the Amended and Restated Sharing Agreement among the
Agents dated
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April 11, 1997 executed by each of the Specified Agents and the
Collateral Agent in form and substance satisfactory to the
Administrative Agent with respect to the sharing of the Chips
Obligations, (v) a pledge by English Holding Company of all of the
Capital Stock of Chips Limited to secure the Chips Obligations, (vi) a
pledge by Chips Limited of all of the Capital Stock of ISL to secure the
Chips Obligations, (vii) a pledge by ISL and its Subsidiaries of all of
their material unencumbered assets, to secure the Chips Obligations owed
or owing by ISL, (viii) a guarantee executed by ISL's Subsidiaries to
secure the Chips Obligations owed or owing by ISL and (ix) a guarantee
by Chips Limited of the Chips Obligations owed or owing by ISL
(collectively, the "Amendment Documents").
(b) Corporate Proceedings of the Credit Parties. The
Administrative Agent shall have received, with a copy for each Lender, a
copy of the resolutions, in form and substance reasonably satisfactory
to the Administrative Agent, of the Board of Directors or duly
authorized committee of each of Holdings, each Borrower and its
applicable Subsidiaries authorizing (i) the execution, delivery and
performance of this Agreement, the other Amendment Documents to which it
is a party, (ii) the borrowings contemplated hereunder, and (iii) if
applicable, the Chips Acquisition and the Contribution, certified by the
Secretary, Assistant Secretary, or comparable officer of such Person as
of the Chips Closing Date, which certificate shall state that the
resolutions thereby certified have not been amended, modified, revoked
or rescinded and shall be in form and substance reasonably satisfactory
to the Specified Agent.
(c) Incumbency Certificates. The Administrative Agent shall
have received, with a copy for each Lender, a certificate of the
Secretary or an Assistant Secretary (or comparable officer) of each of
Holdings, each Borrower and its applicable Subsidiaries, dated the Chips
Closing Date, as to the incumbency and signature of the officers of such
Person executing each Amendment Document to which it is a party and any
certificate or other document to be delivered by it pursuant hereto and
thereto, together with evidence of the incumbency of such Secretary,
Assistant Secretary, or comparable officer.
(d) Contributions. (i) The Borrower shall have contributed all
of the Capital Stock of Chips Limited to International Holdings and (ii)
International Holdings shall in turn have contributed all of the Capital
Stock of Chips Limited to English Holding Company. All documents,
instruments, and other matters relating to the Contribution shall be
reasonably satisfactory to the Administrative Agent in all respects
(collectively, the "Contribution").
(e) The Chips Acquisition. The Chips Acquisition shall have
been consummated for a net cash purchase price (after taking into
account the issuance of any new equity of Holdings to purchase equity of
Chips Holdings) not to exceed the sum of outstanding indebtedness of
Chips Limited and ISL (other than indebtedness refinanced with the Chips
Revolving Credit Commitments), pursuant to the Chips Acquisition
Agreement which shall be reasonably satisfactory to the Administrative
Agent and none of the material terms and conditions shall have been
waived without the consent of the Administrative Agent.
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(f) Senior Subordinated Notes. The US Borrower shall have
issued not less than $216,000,000 and up to $400,000,000 of Senior
Subordinated Notes of the Borrower to refinance the outstanding Senior
Subordinated Indebtedness having (i) no maturity, amortization,
mandatory redemption or purchase option (other than with asset sale
proceeds, to the extent permitted by the Loan Documents, or following a
change of control) or sinking fund payment prior to the tenth
anniversary of the Chips Closing Date, (ii) no financial maintenance
covenants, and (iii) such other terms and conditions (including without
limitation, interest rate, events of default, subordination and
covenants) as shall be reasonably satisfactory to the Administrative
Agent; provided such terms are no less favorable taken as a whole to the
Credit Parties and the Lenders than the Senior Subordinated Indebtedness
being refinanced (the "Senior Subordinated Notes").
(g) Fees. The Lenders, the Agents, and CSI shall have received
the fees and expenses to be received on the Chips Closing Date.
(h) Consents, Licenses and Approvals. (i) All governmental and
material third party approvals (including material landlords' and other
consents) reasonably necessary or advisable in connection with the Chips
Acquisition, the Contribution and financings related thereto, and the
continuing operations of Holdings and its Subsidiaries shall have been
obtained and be in full force and effect, (ii) all applicable waiting
periods shall have expired without any action being taken or threatened
by any competent Governmental Authority which would restrain, prevent or
otherwise impose adverse conditions on the Chips Acquisition, the
Contribution and/or the financings thereof, and (iii) the Administrative
Agent shall have received, with a counterpart for each US Lender, a
certificate of a Responsible Officer of the US Borrower (A) attaching
copies of all consents, authorizations and filings referred to in
subsection 5.4 required to be obtained on or before the Chips Closing
Date, and (B) stating that such consents, licenses and filings are in
full force and effect, and each such consent, authorization and filing
shall be in form and substance reasonably satisfactory to the
Administrative Agent.
(i) Financial Information. The Administrative Agent shall have
received the Chips Pro Forma Balance Sheet.
(j) Solvency. The Lenders shall have received (i) an opinion
satisfactory in form and substance to them from Brownstone Associates
Incorporated which shall document the Solvency of Holdings and the US
Borrower on a consolidated basis after giving effect to the Chips
Acquisition and the other transactions contemplated hereby and (ii) a
solvency certificate in the form of Exhibit G.
(k) Perfection. All filings and other actions required to
create and perfect a first priority security interest in all collateral
granted to any Specified Agent pursuant to any Loan Documents shall have
been duly made or taken (or the Specified Agent shall be satisfied that
such action shall be taken or will be promptly taken), and all such
collateral shall be free and clear of other Liens except as permitted
hereby.
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(l) Perfection Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a Perfection Certificate
in the form of Exhibit H duly completed by US Borrower and its Domestic
Subsidiaries.
(m) Legal Opinions. The Administrative Agent shall have
received, with a counterpart for each Lender, the following executed
legal opinions, each dated the Chips Closing Date:
(i) the executed legal opinion of ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP,
US counsel to the Credit Parties, substantially in the form of Exhibit
E; and
(ii) the executed legal opinion of ▇▇▇▇▇ & Overy, English
counsel to the Secured Parties, in form and substance reasonably
satisfactory to the Administrative Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent
may require.
(n) Chips Inc. Credit Agreement and Chips Limited Credit
Agreement. The Chips Inc. Credit Agreement shall have been terminated
and all amounts thereunder paid or refinanced in full. The
Administrative Agent shall have received evidence that the Chips Limited
Credit Agreement will be terminated and refinanced in full upon the
first borrowing by Chips Limited under this Agreement.
(o) Closing Certificate. The Administrative Agent shall have
received, with a copy for each Lender, a Closing Certificate
substantially in the form of Exhibit F hereto and dated the Chips
Closing Date, executed by a Responsible Officer of the US Borrower and
Holdings.
(p) Acknowledgement and Consent. The Administrative Agent shall
have received from each Credit Party, with a counterpart for each
Lender, an Acknowledgment and Consent, substantially in the form of
Exhibit I.
6.2 Conditions to Each Specified Loan. The agreement of each
Specified Lender to make any Specified Loan requested to be made by it on any
date (including the Chips Closing Date) or of the Specified Revolving Credit
Lenders and the Specified Issuing Lender to issue, accept or participate in any
Specified Accommodation is subject to the satisfaction of the following
conditions precedent:
(a) Representations and Warranties. Each of the representations
and warranties made by the Credit Parties and their Subsidiaries in or
pursuant to the Loan Documents shall be true and correct in all material
respects on and as of such date as if made on and as of such date,
except for any representation and warranty which is expressly made as of
an earlier date, which representation and warranty shall have been true
and correct in all material respects as of such earlier date.
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(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Specified Loans requested to be made, or Specified Accommodation
requested to be issued or accepted, on such date.
(c) Letter of Credit Application. With respect to the issuance
of any Specified Letter of Credit, the Specified Issuing Bank shall have
received a Specified Letter of Credit Application, completed to its
reasonable satisfaction and duly executed by a Responsible Officer;
provided that if such Specified Letter of Credit is being issued to
support the repayment of any Indebtedness of any Subsidiary of the
Specified Borrower, such Subsidiary shall also execute such Specified
Letter of Credit Application and shall agree to be jointly and severally
liable with the Specified Borrower for any and all obligations arising
under or in connection with such Specified Letter of Credit or the
Specified Letter of Credit Application related thereto.
Each borrowing by a Specified Borrower hereunder and issuance of any
Specified Accommodation shall constitute a representation and warranty
by Holdings, US Borrower and the Specified Borrower as of the date of
such Specified Loan or issuance or acceptance, as the case may be, that
the conditions contained in this subsection 6.2 have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The US Borrower, each Foreign Subsidiary Borrower, as to itself
and its Subsidiaries, and Holdings each hereby agrees that, so long as any
Commitment remains in effect, any Loan remains outstanding and unpaid, any
Accommodation is outstanding, or any other Obligations are owing to any Secured
Party, the US Borrower, each Foreign Subsidiary Borrower, as to itself and its
Subsidiaries, and Holdings shall and (except in the case of delivery of
financial information, reports and notices) shall cause each of its
Subsidiaries to:
7.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90 (or, in the
case of the year ending December 31, 1996, 120) days after the end of
each fiscal year of US Borrower, a copy of the consolidated (and
unaudited consolidating) balance sheet of US Borrower and its
consolidated Subsidiaries as at the end of such year and the
consolidated (and unaudited consolidating) statements of income and
retained earnings and consolidated statement of cash flows for such
year, setting forth in each case in comparative form the figures for the
previous year except in the case of the financial statements for the
years ending December 31, 1996 and 1997, reported on without a "going
concern" or like qualification or exception, or qualification arising
out of the scope of the audit, by independent certified public
accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three (3) quarterly periods of
each fiscal year of US Borrower, the unaudited consolidating and
consolidated balance sheet of US Borrower and its
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consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidating and consolidated statements of income and
retained earnings and consolidated statement of cash flows of US
Borrower and its consolidated Subsidiaries for such quarter and the
portion of the fiscal year through the end of such quarter, setting
forth in each case in comparative form (i) the figures for the previous
year commencing with the quarter ending March 31, 1998 and (ii)
commencing with the quarter ending March 31, 1997, the figures set forth
in the relevant budgets required to be delivered in accordance with
subsection 7.2(c), certified by a Responsible Officer as being fairly
stated in all material respects when considered in relation to the
consolidated financial statements of US Borrower and its consolidated
Subsidiaries (subject to normal year-end audit adjustments);
(c) as soon as available, but in any event not later than 45
days after the end of each month (other than a month the last day of
which coincides with the last day of any fiscal quarter) of each fiscal
year of US Borrower, the consolidated balance sheet of US Borrower and
its consolidated Subsidiaries as at the end of such month and the
related unaudited consolidated statements of income and retained
earnings and consolidated statement of cash flows of Holdings and its
consolidated Subsidiaries for such month and the portion of the fiscal
year through the end of such month, setting forth in each case in
comparative form (i) the figures for the previous year commencing with
the 1998 fiscal year and (ii) commencing with March 1997, the figures
set forth in the relevant budgets required to be delivered in accordance
with subsection 7.2(c);
all such financial statements shall fairly present in all material respects the
consolidated financial position of the US Borrower and its Subsidiaries as of
such date and shall be prepared in reasonable detail and in accordance with
GAAP applied consistently throughout the periods reflected therein and with
prior periods (except as approved by such accountants or officer, as the case
may be, and disclosed therein).
7.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default relating to the
covenants contained in subsection 8.1, except as specified in such
certificate.
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and 7.1(b), a certificate of a
Responsible Officer (i) stating that, to the best of such Responsible
Officer's knowledge, Holdings and the US Borrower and its Subsidiaries
during such period has observed or performed all of its covenants and
other agreements, and satisfied every condition, contained in this
Agreement, in the Notes and the other Loan Documents to which it is a
party to be observed, performed or satisfied by it, in all material
respects, and that such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as specified in such
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certificate, (ii) stating that all such financial statements fairly
present in all material respects (subject, in the case of interim
statements, to normal year-end audit adjustments) and have been prepared
in reasonable detail and in accordance with GAAP applied consistently
throughout the periods reflected therein (except as disclosed therein)
and (iii) showing in detail the calculations supporting such statement
in respect of subsections 8.1, 8.8 and 8.9;
(c) as soon as available but not later than forty-five (45) days
subsequent to the end of each fiscal year of US Borrower, a copy of the
projections by US Borrower of the operating budget and cash flow budget
of US Borrower and its Subsidiaries for the succeeding fiscal year, such
projections to be accompanied by a certificate of a Responsible Officer
to the effect that such projections have been prepared in good faith and
based upon reasonable assumptions;
(d) within five (5) days after the same are filed, copies of all
financial statements and reports which Holdings or any Subsidiary may
make to, or file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority; and
(e) promptly, such additional financial and other information as
any Lender may from time to time reasonably request.
7.3 Payment of Obligations. Pay, discharge or otherwise satisfy
at or before maturity or before they become delinquent, as the case may be, all
its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of Holdings or its Subsidiaries, as the case may be;
provided that, notwithstanding the foregoing, Holdings and each of its
Subsidiaries shall have the right to pay any such obligation and in good faith
contest, by proper legal actions or proceedings, the validity or amount of such
claims.
7.4 Conduct of Business and Maintenance of Existence. Except as
provided in subsection 8.5, continue to engage in business of the same general
type as now conducted by it and preserve, renew and keep in full force and
effect its corporate existence and take all reasonable action to maintain all
rights, privileges and franchises necessary or desirable in the normal conduct
of its business except if (i) in the reasonable business judgment of Holdings
or such Subsidiary, as the case may be, it is in its best economic interest not
to preserve and maintain such rights or franchises, and (ii) such failure to
preserve and maintain such privileges, rights or franchises would not
materially adversely affect the rights of the Secured Parties under the Loan
Documents or the value of the collateral security for the Specified
Obligations, and as otherwise permitted pursuant to subsection 8.5; comply with
all Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not, in the aggregate, be reasonably expected
to have a Material Adverse Effect.
7.5 Maintenance of Property; Insurance. (a) Keep all property
(including the Mortgaged Properties) useful and necessary in its business in
good working order and
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condition; maintain with financially sound and reputable insurance companies
insurance on all its property in at least such amounts and against at least
such risks (but including in any event public liability, product liability and
business interruption) as are usually insured against in the same general area
by companies engaged in the same or a similar business or as otherwise
reasonably requested by the Specified Agent; and furnish to each Lender, upon
written request, full information as to the insurance carried except to the
extent that the failure to do any of the foregoing with respect to any such
property could not reasonably be expected to materially adversely affect the
value or usefulness of such property.
(b) With respect to Inventory and Equipment (as defined in the
Guarantee and Collateral Agreement) (i) maintain, with financially sound and
reputable companies, insurance policies insuring the Inventory and Equipment
against loss by fire, explosion, theft and such other casualties as may be
reasonably satisfactory to the Collateral Agent and (ii) insuring the US
Borrower, its Domestic Subsidiary or Holdings, as the case may be, the
Collateral Agent and the Secured Parties, against liability for personal injury
and property damage relating to such Inventory and Equipment, such policies to
be in such form and amounts and having such coverage as may be reasonably
satisfactory to the Collateral Agent and the Secured Parties.
(c) All such insurance shall (i) provide that no cancellation,
material reduction in amount or material change in coverage thereof shall be
effective until at least thirty (30) days after receipt by the Collateral Agent
of written notice thereof, (ii) name the Collateral Agent as insured party or
loss payee, and (iii) if reasonably requested by the Collateral Agent, include
a breach of warranty clause.
7.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of
all dealings and transactions in relation to its business and activities; and
permit representatives of any Specified Lender to visit and inspect any of its
properties and examine and make abstracts from any of its books and records
upon reasonable advance notice at any reasonable time on any Business Day and
as often as may reasonably be desired and to discuss the business, operations,
properties and financial and other condition of Holdings and its Subsidiaries
with officers and employees of Holdings and its Subsidiaries and with its
independent certified public accountants; provided that the Specified Agent or
such Specified Lender shall notify US Borrower prior to any contact with such
accountants and give US Borrower the opportunity to participate in such
discussions.
7.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of Holdings or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between Holdings
or any of its Subsidiaries and any Governmental Authority, which in
either case, if not cured or if adversely
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determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
(c) the following events, if, individually or in the aggregate,
the liability that could reasonably be expected to result would be
material to Holdings and its Subsidiaries, taken as a whole: (i) the
occurrence or expected occurrence of any Reportable Event with respect
to any Single Employer Plan, a failure to make any required contribution
to a Plan, the creation of any Lien in favor of the PBGC or a Single
Employer Plan or any withdrawal from, or the termination, Reorganization
or Insolvency of, any Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the PBGC or the US
Borrower or any Commonly Controlled Entity or any Multiemployer Plan
with respect to the withdrawal from, or the terminating, Reorganization
or Insolvency of, any Single Employer Plan or Multiemployer Plan;
(d) the occurrence of any Material Adverse Change; and
(e) the receipt by Holdings or any Subsidiary of any complaint,
order, citation, notice or other written communication from any Person
with respect to the existence or alleged existence of a violation of any
Environmental Laws or Materials of Environmental Concern or any other
environmental, health or safety matter including the occurrence of any
spill, discharge or release in a quantity that is reportable under any
Environmental Law on any Mortgaged Property or any other property owned,
leased or utilized by Holdings or any Subsidiary of Holdings but only to
the extent that such complaint, order, citation, notice or written
communication individually or in the aggregate could reasonably be
expected to result in material liability or a material obligation under
any Environmental Law.
Each notice pursuant to this subsection shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action Holdings or the applicable Commonly Controlled
Entity proposes to take with respect thereto.
7.8 Canadian Benefit and Pension Plans.
(a) For each existing Canadian Pension Plan and Canadian Benefit
Plan and for any Canadian Pension Plan or Canadian Benefit Plan
hereafter adopted, the Canadian Borrower and each of its Subsidiaries
shall in a timely fashion perform all obligations (including fiduciary,
funding, investment and administration obligations) required to be
performed in connection with such plan and the funding media therefor in
accordance with the terms of such plan and any Requirement of Law.
(b) The Canadian Borrower and each of its Subsidiaries shall
deliver to the Canadian Agent, if requested by the Canadian Agent,
acting reasonably, promptly after the filing thereof with any applicable
Governmental Authority, copies of each annual and other return, report
or valuation with respect to each Canadian Pension Plan, copies of any
actuarial report with respect to each Canadian Pension Plan (only
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if required by any Governmental Authority), and a copy of the audited
annual financial report with respect to each Canadian Pension Plan
(whether or not required by any Governmental Authority) and promptly
after receipt thereof, a copy of any direction, notice or other
communication in respect of any breach of any Requirement of Law, which
would have the effect of increasing the funding obligation in respect of
each such plan, or which could result in the imposition of any Lien on
any of the properties or assets of a Credit Party, and any order or
ruling that such Credit Party may receive from any applicable
Governmental Authority with respect to any Canadian Pension Plan.
7.9 Environmental Laws.
(a) Comply in all material respects with, and will use
reasonable best efforts to ensure compliance in all material respects by
all tenants and subtenants, if any, with, all applicable Environmental
Laws;
(b) Conduct and complete (or cause to be conducted and
completed) all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws
and in a timely fashion comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are being
contested in good faith by appropriate proceedings and the pendency of
such proceedings could not be reasonably expected to have a Material
Adverse Effect; and
(c) Defend, indemnify and hold harmless the Specified Agent and
the Specified Lenders, and their respective employees, agents, officers,
directors and controlling persons, from and against any and all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable
to the operations of Holdings, any of its Subsidiaries or the
Properties, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable
attorney's and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the
extent that any of the foregoing arise out of or relate to the gross
negligence or wilful misconduct of, or any post-foreclosure actions not
taken in accordance with the Assets Conservation, Lender Liability and
Deposit Insurance Protection Act of 1996 or any similar foreign law or
otherwise in the ordinary course of business consistent with past
practices of the party seeking indemnification therefor. The agreements
in this paragraph shall survive repayment of all Specified Loans and all
other amounts payable hereunder.
7.10 Pledge of After Acquired Property. If at any time
following the Chips Closing Date any Specified Borrower or any Subsidiary shall
acquire at any time property of any nature whatsoever with a monetary value on
the date of such acquisition in excess of the Equivalent Amount of $1,000,000
in the aggregate, the Specified Borrower and any such Subsidiary shall grant to
the Specified Agent for the ratable benefit of the Specified Lenders
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a first priority or first ranking Lien on and security interest in such
property as collateral security for the Specified Obligations pursuant to
documentation reasonably satisfactory to the Specified Agent and take such
actions as the Specified Agent shall reasonably require to ensure the priority
and perfection of such Lien, provided that (i) only 65% of the voting Capital
Stock of any direct Foreign Subsidiary of International Holdings need be so
pledged, (ii) no voting Capital Stock of any indirect Foreign Subsidiary of
International Holdings need be so pledged unless such Foreign Subsidiary is
also a Subsidiary of a Foreign Subsidiary Borrower and such pledge is only to
secure the Specified Obligations of such Foreign Subsidiary Borrower, in which
case subsection 7.12 shall be complied with, (iii) with respect to real or
immovable property, only fee owned real estate or immovable property in excess
of the Equivalent Amount of $1,000,000 need be mortgaged, and (iv) property
subject to a Lien permitted by subsection 8.3(h) or falling within 8.14(a)(ii)
need not be so pledged.
7.11 Pledge During Event of Default. At any time during the
continuance of an Event of Default, upon the request of the Specified Agent,
grant to the Specified Agent for the ratable benefit of the Specified Lenders a
first priority or first ranking Lien on and security interest in any
unencumbered property of the Specified Borrower and its Subsidiaries of any
nature whatsoever, as collateral security for the Specified Obligations,
pursuant to documentation reasonably satisfactory to the Specified Agent and
take such actions the Specified Agent shall reasonably require to ensure the
priority and perfection of such Lien, provided, however, that if the grant of
such Lien would be reasonably likely to result in Holdings incurring income tax
liability (as determined by Holdings and agreed to by the Specified Agent)
pursuant to Subpart F of the Code, the property pledged pursuant hereto will be
that property which can be pledged without incurring such liability; provided,
further, that (i) only 65% of the voting Capital Stock of any direct Foreign
Subsidiary of International Holdings need be so pledged and (ii) no voting
Capital Stock of any indirect Foreign Subsidiary of International Holdings need
be so pledged unless such Foreign Subsidiary is also a Subsidiary of a Foreign
Subsidiary Borrower and such pledge is only to secure the Specified Obligations
of such Foreign Subsidiary Borrower, in which case subsection 7.12 shall be
complied with.
7.12 Additional Subsidiaries. If, at any time, any Specified
Borrower or any of its Subsidiaries shall form any new Subsidiary after the
date of this Agreement (this subsection not constituting authority to form a
Subsidiary), such Specified Borrower or such Subsidiary, as the case may be,
shall, subject to applicable Requirements of Law (i) cause such new Subsidiary
to guarantee the Specified Obligations, and (ii) cause each holder of any
Capital Stock of such Subsidiary to pledge 100% of such Capital Stock to the
Specified Agent which shall be accompanied by such resolutions, incumbency
certificates and legal opinions as are reasonably requested by the Specified
Agent; provided, that (i) in the event such Subsidiary is a direct Foreign
Subsidiary of International Holdings, only 65% of the voting Capital Stock of
such Foreign Subsidiary need be pledged to the Collateral Agent and (ii) no
voting Capital Stock of any indirect Foreign Subsidiary of International
Holdings need be so pledged unless such Foreign Subsidiary is also a Subsidiary
of a Foreign Subsidiary Borrower and such pledge is only to secure the
Specified Obligations of such Foreign Subsidiary Borrower, in which case the
foregoing shall be complied with, subject to applicable Requirements of Law.
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7.13 Intellectual Property. Whenever any Credit Party, either
by itself or through any agent, employee, licensee or designee, shall file an
application for the registration of any Copyright, Patent or Trademark with the
United States Patent and Trademark Office or any similar office or agency in
any other country or any political subdivision thereof, Holdings shall cause
such Credit Party to report such filing to the Specified Agent within five (5)
Business Days after the last day of the fiscal quarter in which such filing
occurs. Upon request of the Specified Agent, such Credit Party shall execute
and deliver any and all agreements, instruments, documents, and papers as the
Collateral Agent may reasonably request to evidence the Agent's security
interest in any Copyright, Patent or Trademark or such Intellectual Property
and the goodwill and general intangibles of such Credit Party relating thereto
or represented thereby.
7.14 Compulsory Acquisition; Whitewash. Complete the compulsory
acquisition of the shares of the English Borrower not yet acquired in the Offer
("Compulsory Acquisition") and, subject to compliance with applicable
Requirements of Law, to cause the English Borrower and its material
Subsidiaries to promptly complete the English "whitewash procedures" set forth
in Sections 155-158 of the Companies Act 1985 (as amended) so as to be able to
assume or guarantee and secure the obligations under the English Bidco Loan
Note Letter of Credit and, to the extent permitted by such whitewash
procedures, so assume or guarantee and secure. Cause ISL and its material
Subsidiaries to promptly complete the English "whitewash procedures" set forth
in Sections 155-158 of the Companies Act of 1985 (as amended) so as to be able
to assume or guarantee and secure the obligations under the Chips Limited Term
Loans and, to the extent permitted by such whitewash procedures, so assume or
guarantee and secure.
7.15 Use of Proceeds. Use the Specified Revolving Credit
Commitments for general corporate purposes of the Specified Borrower and its
Subsidiaries, provided that, (i) the portion of the US Revolving Credit
Commitments in excess of $50,000,000 may be used solely for Permitted
Acquisitions, (ii) no part of the English Revolving Credit Commitments
guaranteed and/or secured by the English Borrower and/or its Subsidiaries may
be used for purposes of the English Bidco Loan Note Letter of Credit unless and
until the whitewash procedures have been completed and only to the extent
permitted thereby and (iii) no more than L.16,000,000 of the English Revolving
Credit Commitments may be used for purposes other than English Bidco Loan Note
Letter of Credit, reimbursement obligations in respect thereof and obligations
in respect of the related loan notes. Use the Chips Limited Term Loans solely
to refinance the reimbursement obligations of the US Borrower under the Chips
Letter of Credit in respect of an amount up to $249,250,000 of principal
drawings. Use the Chips Acquisition Term Loans solely to refinance the
reimbursement obligations of the US Borrower under the Chips Letter of Credit
in respect of an amount up to $70,000,000 of principal drawings.
7.16 Interest Rate Protection Agreements. Ensure that at all
times during the two year period following the Chips Closing Date at least 50%
of the sum of the Senior Subordinated Notes and the Term Loans bears interest
at a fixed rate or is subject to interest rate protection reasonably
satisfactory to the Administrative Agent.
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7.17 Currency Hedging Agreements. Within 90 days of the Chips
Closing Date, enter into currency hedge agreements in an amount satisfactory to
the US Borrower and otherwise reasonably satisfactory to the Administrative
Agent which protect the US Borrower against adverse fluctuations of Dollars
against Pounds Sterling.
SECTION 8. NEGATIVE COVENANTS
The US Borrower, each Foreign Subsidiary Borrower as to itself
and its Subsidiaries, and Holdings each hereby agrees that, so long as the
Specified Commitments remain in effect, any Specified Loan remains outstanding
and unpaid, any Specified Accommodation remains outstanding or any other
Obligations are owing to any Secured Party, the US Borrower, each Foreign
Subsidiary Borrower as to itself and its Subsidiaries, and Holdings shall not,
and (except with respect to subsection 8.1) shall not permit any of its
Subsidiaries to, directly or indirectly:
8.1 Financial Condition Covenants.
(a) Interest Coverage. Permit the Interest Coverage Ratio of US
Borrower (i) for any of the three-, six- or nine-month periods ending at
the end of the first, second and third full calendar quarters ended
following the Closing Date to be less than the ratio set forth below for
such calendar quarters for 1997, and (ii) thereafter (commencing with
the four consecutive calendar quarters ending on December 31, 1997), for
any period of four consecutive calendar quarters ending at the end of
the calendar quarters set forth below to be less than the ratio set
forth opposite such calendar quarter below:
Calendar Quarter Interest Coverage Ratio
---------------- -----------------------
1997 1st 2.75 to 1.00
2nd 1.75 to 1.00
3rd 1.75 to 1.00
4th 1.75 to 1.00
1998 1st 1.80 to 1.00
2nd 1.90 to 1.00
3rd 2.00 to 1.00
4th 2.10 to 1.00
1999 1st 2.15 to 1.00
2nd 2.20 to 1.00
3rd 2.25 to 1.00
4th 2.25 to 1.00
2000 1st 2.35 to 1.00
2nd 2.40 to 1.00
3rd 2.45 to 1.00
4th 2.50 to 1.00
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Calendar Quarter Interest Coverage Ratio
---------------- -----------------------
2001 1st 2.75 to 1.00
2nd 2.75 to 1.00
3rd 2.75 to 1.00
4th 2.75 to 1.00
2002 1st 3.00 to 1.00
2nd 3.00 to 1.00
3rd 3.00 to 1.00
4th 3.00 to 1.00
2003 1st 3.00 to 1.00
2nd 3.00 to 1.00
3rd 3.00 to 1.00
4th 3.00 to 1.00
2004 1st 3.00 to 1.00
2nd 3.00 to 1.00
3rd 3.00 to 1.00
4th 3.00 to 1.00
(b) Maintenance of Consolidated EBITDA. Permit Consolidated
EBITDA of Holdings (i) for any of the three-, six- and nine-month
periods ending at the end of the first, second and third full calendar
quarters following the Closing Date to be less than the amount set forth
below for such calendar quarters for 1997, and (ii) thereafter
(commencing with the four consecutive calendar quarters ending on
December 31, 1997), for any period of four consecutive calendar quarters
ending at the end of the calendar quarters set forth below to be less
than the amount set forth opposite such calendar quarter below:
Calendar Quarter Amount
---------------- ------
1997 2nd 37,000,000
3rd 79,000,000
4th 124,000,000
1998 1st 150,000,000
2nd 155,000,000
3rd 165,000,000
4th 175,000,000
1999 1st 180,000,000
2nd 182,500,000
3rd 185,000,000
4th 190,000,000
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Calendar Quarter Amount
---------------- ------
2000 1st 192,500,000
2nd 195,000,000
3rd 200,000,000
4th 205,000,000
2001 1st 207,500,000
2nd 210,000,000
3rd 215,000,000
4th 220,000,000
2002 1st 222,500,000
2nd 225,000,000
3rd 230,000,000
4th 235,000,000
2003 1st 237,500,000
2nd 240,000,000
3rd 245,000,000
4th 250,000,000
2004 1st 250,000,000
2nd 250,000,000
3rd 250,000,000
4th 250,000,000
(c) Maintenance of Consolidated Total Debt to Consolidated
EBITDA. Permit the ratio of Consolidated Total Debt of Holdings and its
Subsidiaries to Consolidated EBITDA of Holdings and its Subsidiaries for
any period of four consecutive calendar quarters ending at the end of
the calendar quarters set forth below to be greater than the ratio set
forth opposite such calendar quarter below; provided that for the
purposes of determining the ratio for any period of four consecutive
calendar quarters ending at the end of the second, third and fourth full
calendar quarters following the Closing Date, Consolidated EBITDA of
Holdings and its Subsidiaries (i) for the third calendar quarter of 1996
shall be deemed to be $50,800,000, (ii) for the fourth calendar quarter
of 1996 shall be deemed to be $50,800,000, and (iii) for the first and
second calendar quarter of 1997 shall be deemed to be $51,800,000:
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Fiscal Year Ratio
----------- -----
1997 2nd 5.75 to 1.00
3rd 5.60 to 1.00
4th 5.50 to 1.00
1998 1st 5.45 to 1.00
2nd 5.40 to 1.00
3rd 5.35 to 1.00
4th 5.25 to 1.00
1999 1st 5.20 to 1.00
2nd 5.15 to 1.00
3rd 5.10 to 1.00
4th 5.00 to 1.00
2000 1st 4.95 to 1.00
2nd 4.90 to 1.00
3rd 4.85 to 1.00
4th 4.75 to 1.00
2001 1st 4.70 to 1.00
2nd 4.65 to 1.00
3rd 4.60 to 1.00
4th 4.50 to 1.00
2002 1st 4.45 to 1.00
2nd 4.40 to 1.00
3rd 4.35 to 1.00
4th 4.25 to 1.00
2003 1st 4.20 to 1.00
2nd 4.15 to 1.00
3rd 4.10 to 1.00
4th 4.00 to 1.00
2004 1st 4.00 to 1.00
2nd 4.00 to 1.00
3rd 4.00 to 1.00
4th 4.00 to 1.00
8.2 Limitation on Indebtedness. Create, incur, assume or suffer
to exist any Indebtedness, except:
(a) Indebtedness of the Credit Parties under the Loan Documents;
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(b) (i) Indebtedness among the Credit Parties arising as a
result of intercompany loans and (ii) Indebtedness of Foreign
Subsidiaries of US Borrower that are not Credit Parties to the Credit
Parties and the other Subsidiaries in an aggregate Equivalent Amount
outstanding not to exceed $15,000,000 at any one time;
(c) Indebtedness of Subsidiaries of Holdings outstanding on the
Chips Closing Date and listed on Schedule 8.2 and extensions, renewals
or replacements thereof provided that no such extension, renewal or
replacement shall increase the principal amount thereof, except that the
Indebtedness of the Canadian Borrower used in respect of Financing
Leases and the Canada/Quebec Agreement on Industrial Development may be
increased by an aggregate amount not to exceed C$2,250,000 and the
Indebtedness of Circo Caribe, Inc. under a line of credit, may be
replaced or refinanced with a line of credit not to exceed $3,000,000;
(d) Indebtedness resulting from the endorsement of negotiable
instruments in the ordinary course of business;
(e) Indebtedness of Subsidiaries of Holdings in respect of
obligations under Financing Leases and purchase money Indebtedness in an
aggregate amount outstanding not to exceed Equivalent Amount of
$25,000,000 at any one time;
(f) Indebtedness in respect of Interest Rate Agreements;
(g) Indebtedness of any Credit Party (other than Holdings) to
any other Credit Party from intercompany transfers of assets made in the
ordinary course of business or to the extent permitted under subsections
8.6 and 8.9;
(h) Guarantee Obligations permitted by subsection 8.4;
(i) Indebtedness subject to Liens permitted under subsections
8.3(b), (c), (d), and (e);
(j) Indebtedness incurred in connection with the sale of the
accounts receivable of Holdings and its Subsidiaries in connection with
a trade receivables financing transaction otherwise permitted under
subsection 8.6(i);
(k) additional Indebtedness of Subsidiaries of Holdings in an
aggregate principal amount outstanding not to exceed the Equivalent
Amount of $35,000,000 at any one time;
(l) at any time following the termination of the US Revolving
Credit Commitment, Indebtedness of Subsidiaries of Holdings in respect
of unsecured revolving lines of credit in an aggregate amount
outstanding not to exceed $100,000,000 at any one time;
(m) (i) unsecured Indebtedness of the Subsidiaries of Holdings
to the seller in any Permitted Acquisition or (ii) Indebtedness assumed
in connection with any
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Permitted Acquisition in an aggregate amount for clauses (i) and (ii)
for all Permitted Acquisitions not to exceed the Equivalent Amount of
$30,000,000; provided at the time of incurrence the requirements of
subsection 8.9(k) shall be satisfied;
(n) Indebtedness of any Foreign Subsidiary of the US Borrower
which is not a Credit Party for working capital purposes in an aggregate
amount not to exceed $15,000,000 at one time outstanding; provided that
either (i) each such working capital facility is supported by a US
Letter of Credit and the Foreign Subsidiary signs the related Letter of
Credit Application with the US Borrower and grants the Collateral Agent
a security interest in its material properties as collateral security
for its Accommodation Obligations or (ii) the availability under the US
Revolving Credit Commitments shall be reduced by the amount of each such
working capital facility;
(o) Indebtedness of any Foreign Subsidiary of the US Borrower
which is not a Credit Party under unsecured overdraft facilities
incurred in the ordinary course of business in an aggregate amount
outstanding not to exceed the Equivalent Amount of $10,000,000 at any
one time;
(p) Indebtedness of Caribe in an aggregate amount outstanding
not to exceed $5,000,000 at any one time;
(q) unsecured Senior Subordinated Indebtedness of the US
Borrower not to exceed $400,000,000 in the aggregate including any
permanent refinancing of the Senior Subordinated Financing so long as
any Net Cash Proceeds of such refinancing after giving effect thereto
are applied in accordance with subsection 2.10;
(r) Indebtedness of 5M existing at the time of the 5M
Acquisition not to exceed $6,000,000 at any one time outstanding;
(s) Indebtedness of Bisto existing at the time of the Chips
Acquisition with respect to reimbursement obligations in respect of the
Chips Letter of Credit relating to the first $118,250,000 of principal
of the Chips Loan Notes and a corresponding proportion of interest and
letter of credit commissions (not to exceed the investment earnings on
$118,250,000 in a cash collateral account less ordinary course operating
expenses and $1,000);
(t) Indebtedness arising from agreements with Governmental
Authorities of any foreign country, or political subdivision or agency
thereof, relating to the construction of plants and the purchase and
installation (including related training costs) of equipment to be used
in a Related Business; provided that such Indebtedness (i) has a
maturity in excess of ten years and 91 days and (ii) in the aggregate
does not exceed $50,000,000 or the Equivalent Amount; and
(u) Indebtedness of (a) Holdings in respect of the Chips Loan
Notes not to exceed $437,500,000 and (b) of English Bidco in respect of
Guaranteed Loan Notes not to exceed L.20,000,000.
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8.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a)(i) Liens created by the Loan Documents in favor of the
Specified Agent or the Lenders and (ii) Liens on cash collateral
securing any reimbursement obligations of the US Borrower in respect of
the Chips Letter of Credit required by subsections 2.5(c) and (d) and
2.10(d), provided, such cash collateral shall, notwithstanding anything
in any Loan Document to the contrary, first be applied to such
reimbursement obligations;
(b) Liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings, provided that adequate reserves
with respect to contested taxes are maintained on the books of Holdings
or its Subsidiaries, as the case may be, in conformity with GAAP;
(c) carriers', landlord's, warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business which are not overdue for a period of more than sixty
(60) days or which are being contested in good faith by appropriate
proceedings;
(d) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(e) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations,
insurance contracts, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of
business;
(f) easements, rights-of-way, zoning restrictions, restrictions
and other similar encumbrances (i) previously or hereinafter incurred in
the ordinary course of business which, in the aggregate, are not
material in amount and which, in the case of such encumbrances on any of
the Properties covered by the Mortgage, do not in the aggregate
materially detract from the value of the Property subject thereto or, in
the case of such encumbrances on any property, materially interfere with
the ordinary conduct of the business of Holdings or its Subsidiaries or
(ii) which are set forth in the "marked up" commitments for title
insurance delivered to the Administrative Agent on the Closing Date or
thereafter or in the title opinions delivered concurrently with the
Canadian Credit Agreement dated as of November 26, 1996 in respect of
the immovable properties situated in the Province of Quebec or
thereafter;
(g) Liens in existence on the Chips Closing Date listed on
Schedule 8.3, securing Indebtedness permitted by subsection 8.2(c)
(including extensions, renewals and replacements of such Indebtedness as
permitted under subsection 8.2(c)), provided that no such Lien is spread
to cover any additional property (other than after acquired title in or
on such property and proceeds of the existing collateral in accordance
with the instrument creating such Lien) after the Chips Closing Date and
that the amount
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of Indebtedness secured thereby is not increased except pursuant to the
instrument creating such Lien (without any modification thereof) other
than as set forth in subsection 8.2(c);
(h) purchase money Liens and Liens in respect of Financing
Leases upon or in any property acquired or held by Subsidiaries of
Holdings to secure Indebtedness permitted under subsection 8.2(e)
incurred solely for the purpose of financing the acquisition of such
property, and Liens existing on such property at the time of its
acquisition or existing on property of any Person that becomes a
Subsidiary after the date hereof at the time such Person becomes a
Subsidiary (other than any such Lien created in contemplation of such
acquisition);
(i) Liens on the property of Holdings or any of its Subsidiaries
in favor of landlords securing licenses, subleases, or leases permitted
hereunder;
(j) licenses, leases or subleases permitted hereunder granted to
others not interfering in any material respect in the business of
Holdings or any of its Subsidiaries;
(k) attachment or judgment Liens (other than judgment Liens paid
or fully covered by insurance which are not outstanding for more than
sixty (60) days) in an aggregate amount outstanding at any one time not
in excess of the Equivalent Amount of $5,000,000;
(l) Liens arising from precautionary Uniform Commercial Code
financing statement filings with respect to operating leases or
consignment arrangements entered into by Holdings or any of its
Subsidiaries in the ordinary course of business;
(m) Liens in favor of a banking institution arising by operation
of law encumbering deposits (including the right of set-off) held by
such banking institutions incurred in the ordinary course of business
and which are within the general parameters customary in the banking
industry;
(n) Liens arising from the sale of the accounts receivable of
Subsidiaries of Holdings in connection with a trade receivables
financing transaction otherwise permitted under subsection 8.6(i);
(o) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to Subsidiaries of Holdings) the
Equivalent Amount of $10,000,000 in aggregate amount at any time
outstanding;
(p) Liens on cash collateral of Bisto securing indebtedness
under subsection 8.2(s); and
(q) Liens on property financed thereby securing grants permitted
under subsection 8.2(t).
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8.4 Limitation on Guarantee Obligations. Create, incur, assume
or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations pursuant to the Loan Documents;
(b) guarantees of Indebtedness by Subsidiaries of Holdings
permitted pursuant to subsection 8.2(c) in existence on the Chips
Closing Date and set forth on Schedule 8.4 and extensions, renewals and
replacements thereof, provided, however, that no such extension, renewal
or replacement shall (i) amend or modify the subordination provisions,
if any, contained in such guarantee in a manner adverse to the Secured
Parties, or (ii) increase the principal amount of such Indebtedness
guaranteed by the original guarantee;
(c) the Specified Accommodation Obligations;
(d) indemnities in favor of the companies issuing title
insurance policies insuring the title to any property to induce such
issuance;
(e) surety bonds issued in respect of the type of obligations
described in subsection 8.3(e);
(f) indemnities made in the Loan Documents, the Acquisition
Documents or in any of the agreements contemplated hereby and thereby
and in the monitoring and oversight agreement and the financial advisory
agreement described in subsection 8.7(a)(iv) and in the corporate
charter and/or bylaws of Holdings and its Subsidiaries;
(g) indemnities and guarantees (other than guarantees of
Indebtedness (other than Indebtedness of Subsidiaries of Holdings
permitted hereunder)) made in the ordinary course of business, provided
that such indemnities and guarantees could not individually or in the
aggregate have a Material Adverse Effect;
(h) unsecured subordinated guarantees by the Domestic
Subsidiaries of the US Borrower of the Senior Subordinated Indebtedness;
and
(i) Guarantee Obligations of Bisto of Indebtedness permitted
pursuant to subsection 8.2(s).
8.5 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all of its property,
business or assets, or make any material change in its present method of
conducting business, except (i) any Domestic Subsidiary of a Specified Borrower
may be merged or consolidated with or into such Specified Borrower (provided
that the Specified Borrower shall be the continuing or surviving corporation)
or with or into any one or more Wholly Owned Subsidiaries of any such Specified
Borrower (provided that no Domestic Subsidiary of Holdings may be merged or
consolidated with or into any Foreign Subsidiary of Holdings unless such
Domestic Subsidiary shall be the surviving corporation),
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(ii) any Subsidiary of a Specified Borrower may liquidate or dissolve if, in
connection therewith, all of its assets are transferred to such Specified
Borrower (or a Subsidiary thereof which is a Credit Party) and (iii) the US
Borrower may merge with Chips Inc. and Holdings may merge with Chips Holdings.
8.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, except:
(a) obsolete or worn out property disposed of in the ordinary
course of business or property that is no longer useful in the conduct
of Holdings' business disposed of in the ordinary course of business;
(b) the sale, transfer or exchange of inventory in the ordinary
course of business;
(c) transfers resulting from any casualty or condemnation of
property or assets;
(d) any sale or other transfer of any property or assets
constituting fixed assets for at least 75% cash, provided that the
aggregate fair market value of the sales and transfers made pursuant to
this paragraph (d) in the aggregate do not exceed the Equivalent Amount
of $12,500,000 in any fiscal year;
(e) intercompany sales or transfers of assets made in the
ordinary course of business;
(f) licenses or sublicenses of intellectual property and general
intangibles and licenses, leases or subleases of other property in the
ordinary course of business and which do not materially interfere with
the business of Holdings and its Subsidiaries;
(g) any consignment arrangements or similar arrangements for the
sale of assets in the ordinary course of business;
(h) the sale or discount of overdue accounts receivable arising
in the ordinary course of business, but only in connection with the
compromise or collection thereof;
(i) the sale of the accounts receivable of Subsidiaries of
Holdings in connection with a trade receivable financing transaction
reasonably acceptable to the Specified Agent; provided that all of the
Net Cash Proceeds of each such sale are applied to the prepayment of the
Term Loans as required by subsection 2.10; and
(j) dispositions permitted by subsection 8.5.
8.7 Limitation on Dividends. Declare or pay any dividend (other
than dividends payable solely in common stock of US Borrower or Holdings) on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the
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purchase, redemption, defeasance, retirement or other acquisition of, any class
of Capital Stock of US Borrower or Holdings or any of their respective
Subsidiaries or any warrants or options to purchase any such Capital Stock,
whether now or hereafter outstanding, or make any other distribution in respect
thereof, either directly or indirectly, whether in cash or property,
obligations of Holdings or any Subsidiary or otherwise (such declarations,
payments, setting apart, purchases, redemptions, defeasances, retirements,
acquisitions and distributions being herein called "Restricted Payments"),
except that:
(a) US Borrower may make Restricted Payments to Holdings, so
long as (except with respect to clause (iii) below or with respect to
clause (iv) below an Event of Default which relates to a payment default
under subsection 9(a)) no Event of Default has occurred and is
continuing or would be continuing after giving effect to such Restricted
Payment:
(i) the proceeds of which shall be applied by Holdings
directly to pay out of pocket expenses, for administrative, legal
and accounting services provided by third parties that are
reasonable and customary and incurred in the ordinary course of
business for such professional services, or to pay franchise fees
and similar costs; provided, however any such administrative
expenses shall not exceed an aggregate amount of $1,000,000 per
fiscal year;
(ii) payments, the proceeds of which will be used to
repurchase the Capital Stock or other securities of Holdings from
outside directors, employees or members of the management of
Holdings, or any Subsidiary, at a price not in excess of fair
market value, in an aggregate amount not in excess of $3,000,000,
net of the proceeds received by the US Borrower as a result of
any resales of any such Capital Stock or other securities;
(iii) payments, the proceeds of which will be used to pay
taxes of Holdings as part of a consolidated group;
(iv) payments, the proceeds of which will be used to pay
management fees to ▇▇▇▇▇ Muse & Co. Partners, L.P. in accordance
with the terms of its monitoring and oversight agreement and the
financial advisory agreement;
(v) if such Restricted Payment is a purchase of Capital
Stock or a distribution to Holdings to permit Holdings to
purchase its Capital Stock, in either case, made in order to
fulfil the obligations of Holdings or any of the Borrowers under
an employee stock purchase plan or similar plan covering
employees of Holdings or any Subsidiary as from time to time in
effect in an aggregate net amount not to exceed $5,000,000.
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(b) any Subsidiary of any of the Borrowers may make Restricted
Payments to the Specified Borrower or to their respective Subsidiaries;
(c) Permitted Issuances may be made; and
(d) Restricted Payments necessary to complete the Transactions.
8.8 Limitation on Capital Expenditures. (a) Make or commit to
make any Capital Expenditure except for expenditures in the ordinary course of
business not exceeding, in the aggregate for US Borrower and its Subsidiaries
during any of the fiscal years of US Borrower set forth below the amount set
forth opposite such fiscal year below:
Fiscal Year Amount
----------- ------
1997 $115,000,000
1998 $100,000,000
1999 and thereafter $90,000,000
; provided that 100% of any amount not used in any fiscal year may be
carried forward only into the next succeeding fiscal year;
(b) In addition to the Capital Expenditures permitted pursuant
to paragraph (a) of this subsection 8.8, the US Borrower may spend additional
Capital Expenditures (which shall not be counted in the limitations set forth
such paragraph) of $16,000,000 to build a new facility in the United States of
America.
(c) In addition to the Capital Expenditures permitted pursuant
to paragraphs (a) and (b) of this subsection 8.8, to the extent such proceeds
are not otherwise utilized pursuant to the last paragraph of subsection 8.9 or
8.9(k), US Borrower and its Subsidiaries may make additional Capital
Expenditures (which shall not be counted in the limitations set forth in
paragraph (a) of this subsection 8.8) consisting of the investment of Excess
Cash Flow generated during prior fiscal years (beginning with Excess Cash Flow
generated in the fiscal year ended in December 1997 but, in each case,
including the retained portion of Excess Cash Flow for only those periods where
the respective Excess Cash Flow payment has theretofore occurred) and not
required to be applied to prepay the Term Loans pursuant to subsection 2.10.
(d) Notwithstanding the foregoing, in no event shall Capital
Expenditures be made by Holdings.
8.9 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person
("Investments"), except:
(a) extensions of trade credit in the ordinary course of
business;
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(b) Investments in Cash Equivalents;
(c) (i) Investments (other than Permitted Acquisitions) by
Holdings and its Subsidiaries in any of the Credit Parties, including
any new Subsidiary which becomes a Credit Party and (ii) Investments in
Foreign Subsidiaries of US Borrower that are not Credit Parties not to
exceed $15,000,000;
(d) loans and advances by Holdings or its Subsidiaries to their
respective directors, officers and employees in an aggregate principal
amount not exceeding the Equivalent Amount of $1,000,000 at any one time
outstanding;
(e) loans, advances or Investments in existence on the Chips
Closing Date and listed on Schedule 8.9, and extensions, renewals,
modifications or restatements or replacements thereof, provided that no
such extension, renewal, modification or restatement shall (i) increase
the amount of the original loan, advance or investment, or (ii)
adversely affect the interests of the Secured Parties with respect to
such original loan, advance or investment or the interests of the
Specified Lenders under this Agreement or any other Loan Document in any
material respect;
(f) Investments permitted by subsections 8.2(b) and (p),
subsection 8.4, subsection 8.7 and by subsection 8.8;
(g) promissory notes and other similar non-cash consideration
received by the Subsidiaries of Holdings in connection with the
dispositions permitted by subsection 8.6;
(h) Investments in Interest Rate Agreements;
(i) Investments (including debt obligations and Capital Stock)
received in connection with the bankruptcy or reorganization of
suppliers and customers and in settlement of delinquent obligations of,
and other disputes with, customers and suppliers arising in the ordinary
course of business;
(j) in addition to the foregoing, Investments by Subsidiaries of
Holdings in an aggregate amount not exceeding the Equivalent Amount of
$10,000,000 (at cost, without regard to any write down or write up
thereof) at any one time outstanding;
(k) so long as after giving effect thereto no Default or Event
of Default shall have occurred and be continuing, Investments after the
Chips Closing Date by Subsidiaries of Holdings resulting from Permitted
Acquisitions in an aggregate amount which may include Indebtedness
permitted by subsection 8.2(m) not to exceed the sum of (A) the amount
of $100,000,000 and (B) the amount of common stock of Holdings issued
subsequent to the Chips Closing Date in connection with Permitted
Acquisitions and (C) the portion of Excess Cash Flow for all prior
fiscal years commencing with 1997 retained by Holdings and not utilized
pursuant to subsection 8.8(c) or the last sentence of this subsection
8.9, provided, that (i) the Administrative Agent shall have received,
with copies for each Lender at least fifteen (15) days prior
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to such Permitted Acquisition, (I) such opinions (including with respect
to environmental matters), certificates and copies of agreements
(including any Permitted Acquisition Documents) as it shall reasonably
request and (II) a certificate of a Responsible Officer of Holdings
after giving effect to such Permitted Acquisition showing the aggregate
purchase price (including the assumption of any Indebtedness) for
Permitted Acquisitions made by Holdings and its Subsidiaries since the
Chips Closing Date, (ii) such actions as may be required or reasonably
requested to ensure that the Specified Agent, for the ratable benefit of
the Specified Lenders, has a perfected first priority security interest
or first ranking hypothec in any assets required to be secured pursuant
to subsections 7.10 and 7.12 or any other Loan Document, subject to
Liens permitted by subsection 8.3, shall have been taken and (iii) (I)
on a pro forma basis for the period of four consecutive fiscal quarters
most recently ended (assuming the consummation of such Permitted
Acquisition and the incurrence or assumption of any Indebtedness in
connection therewith occurred on the first day of such period of four
consecutive fiscal quarters), Holdings shall be in compliance with the
covenants contained in subsection 8.1 and (II) the Administrative Agent
shall have received calculations in reasonable detail reasonably
satisfactory to it showing compliance with the requirements of this
clause (iii) certified by a Responsible Officer of Holdings;
(l) Investments in Caribe not to exceed $20,000,000 in an
aggregate amount at any one time outstanding;
(m) the Acquisition; and
(n) the Chips Acquisition.
In addition to the Investments permitted pursuant to this
subsection 8.9, to the extent such proceeds are not otherwise utilized pursuant
to subsection 8.8(c) or 8.9(k), the Subsidiaries of Holdings may make
additional Investments (which shall not be counted in the limitations set forth
above) as follows: (i) Investments consisting of the investment of Net Cash
Proceeds not required to be applied to prepay the Term Loans pursuant to
subsection 2.10, including (x) with respect to the investment of proceeds of
the insurance and condemnation proceeds not required to prepay the Term Loans
pursuant to subsection 2.10 and (y) with respect to the investment of proceeds
of the sale of assets which are permitted pursuant to subsection 8.6; and (ii)
Investments consisting of the investment of Excess Cash Flow generated during
prior fiscal years (beginning with Excess Cash Flow generated in the fiscal
year ended in December 1997 but, in each case, including the retained portion
of the respective Excess Cash Flow for only those periods where the respective
Excess Cash Flow payment has theretofore occurred) and not required to be
applied to prepay the Term Loans pursuant to subsection 2.10.
8.10 Limitation on Optional Payments and Modifications of
Subordinated Debt Instruments. (a) Make any optional payment or prepayment on
or redemption of any Senior Subordinated Indebtedness (except pursuant to a
permanent refinancing of the Senior Subordinated Financing) and any payments in
redemption, defeasance or repurchase thereof, except mandatory payments of
interest, fees and expenses required by the terms of the
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agreement governing or instrument evidencing such indebtedness but only to the
extent permitted under the subordination provisions applicable thereto.
(b) Amend, supplement or otherwise modify any of the provisions
of any Senior Subordinated Indebtedness:
(i) which amends or modifies the subordination provisions
contained therein;
(ii) which shortens the fixed maturity, or increases the rate or
shortens the time of payment of interest on, or increases the amount or
shortens the time of payment of any principal or premium payable whether
at maturity, at a date fixed for prepayment or by acceleration or
otherwise of such Indebtedness, or increases the amount of, or
accelerates the time of payment of, any fees payable in connection
therewith;
(iii) which relates to the affirmative or negative covenants,
events of default or remedies under the documents or instruments
evidencing such Indebtedness and the effect of which is to subject the
Borrower or any of its Subsidiaries, to any more onerous or more
restrictive provisions; or
(iv) which otherwise adversely affects the interests of the
Lenders as senior creditors or the interests of the Lenders under this
Agreement or any other Loan Document in any respect.
(c) Make any payment in cash on any equity or debt security that may be
made under the terms thereof by the issuance of any security of the same
nature.
(d) Designate any Indebtedness as "Designated Senior Indebtedness"
under the Senior Subordinated Indebtedness.
8.11 Limitation on Transactions with Affiliates. (a) Enter into
any transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (i) otherwise permitted under this Agreement, or (ii) (x)
in the ordinary course of Holdings's or such Subsidiary's business and (y) upon
fair and reasonable terms no less favorable to Holdings or such Subsidiary, as
the case may be, than it would obtain in a comparable arm's length transaction
with a Person which is not an Affiliate.
(b) In addition, notwithstanding the foregoing, Holdings and its
Subsidiaries shall be entitled to make the following payments and/or to enter
into the following transactions:
(i) the payment of reasonable and customary fees and
reimbursement of expenses payable to directors of Holdings;
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(ii) the payment to ▇▇▇▇▇ Muse & Co. Partners, L.P. of fees and
expenses pursuant to a monitoring and oversight agreement and a
financial advisory agreement approved by the board of directors of
Holdings; and
(iii) the employment arrangements with respect to the
procurement of services of directors, officers and employees in the
ordinary course of business and the payment of reasonable fees in
connection therewith.
8.12 Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by Holdings or any
Subsidiary of real or personal, immovable or movable, property which has been
or is to be sold or transferred by Holdings or such Subsidiary to such Person
or to any other Person to whom funds have been or are to be advanced by such
Person on the security of such property or rental obligations of Holdings or
such Subsidiary; provided that this subsection 8.12 shall not prohibit any sale
and leaseback resulting from the incurrence of any lease in respect of any
capital asset entered into within 120 days of the acquisition of such capital
asset for the purpose of providing permanent financing of such capital asset.
8.13 Limitation on Changes in Fiscal Year. Permit the fiscal
year of Holdings to end on a day other than December 31; provided that Holdings
may change such fiscal year upon the approval of each of the Specified Agents.
8.14 Restrictions Affecting Subsidiaries. Enter into with any
Person, or suffer to exist any agreement which prohibits or limits the ability
of Holdings or any of its Subsidiaries to (a) create, incur, assume or suffer
to exist any Lien upon any of its property, assets or revenues, whether now
owned or hereafter acquired, other than (i) this Agreement and the other Loan
Documents, (ii) any industrial revenue bonds (including the government loan to
Caribe), purchase money mortgages or Financing Leases or any other agreement or
transaction permitted by this Agreement (in which cases, any prohibition or
limitation shall only be effective against the assets financed thereby) and
(iii) with respect to Bisto, as provided in the Chips Reimbursement Agreement,
or (b) pay dividends or make other distributions or pay any Indebtedness owed
to Holdings or any of its Subsidiaries except (i) as permitted by this
Agreement and the other Loan Documents and (ii) with respect to Bisto, as
provided in the Chips Reimbursement Agreement.
8.15 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for those businesses in which
Holdings and its Subsidiaries are engaged on the date of this Agreement or
which are reasonably related thereto.
8.16 Amendments to Corporate Documents; Acquisition Agreement;
Licenses. (a) Amend its certificate of incorporation or by-laws or other
governing documents unless such amendment does not adversely affect the
interests of any Secured Party in any material respect, (b) amend, supplement
or otherwise modify the terms and conditions of the indemnities and licenses
furnished pursuant to any Acquisition Document such that after giving effect
thereto such indemnities or licenses shall be materially less favorable to the
interests of the Credit Parties or the Secured Parties with respect thereto,
(c) otherwise amend, supplement or otherwise modify the terms and conditions of
any Acquisition
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Document or the Supply Agreement except to the extent that any such amendment,
supplement or modification could not reasonably be expected to have a Material
Adverse Effect.
8.17 Passive Status of International Holdings Bankruptcy Remote
Nature of Bisto. Permit International Holdings to engage in any activities or
incur any Indebtedness or Guarantee Obligations other than (A) owning the stock
of Foreign Subsidiaries of the US Borrower, (B) its activities incident to the
performance of the Loan Documents, (C) transactions pursuant to or in
connection with the Transactions, and (D) unsecured subordinated guarantees of
the Senior Subordinated Indebtedness. Permit Bisto, to engage in any business
activities or incur any Indebtedness or Guarantee Obligations other than its
reimbursement obligations under the Chips Letter of Credit.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any
Specified Loan and/or Specified Note or any Specified Accommodation
Obligation when due in accordance with the terms thereof or hereof; or
any Borrower shall fail to pay any interest on any Specified Loan and/or
Specified Note, or any other amount payable hereunder by it, within five
(5) days after any such interest or other amount becomes due in
accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by any
Borrower, Holdings or any of their Subsidiaries herein or in any other
Loan Document or which is contained in any certificate, document or
financial or other statement furnished at any time under or in
connection with any Loan Document shall prove to have been incorrect in
any material respect on or as of the date made or deemed made; or
(c) Any Borrower, Holdings or any of their Subsidiaries shall
default in the performance or observance of any agreement contained in
Section 8 or Section 11 of this Agreement or Section 5 of the Guarantee
and Collateral Agreement; or
(d) Any Borrower, Holdings or any of their Subsidiaries shall
default in the observance or performance of any other agreement
contained in this Agreement or in any other Loan Document (other than as
provided in paragraphs (a) through (c) of this Section), and such
default shall continue unremedied for a period of thirty (30) days; or
(e) Except as set forth on Schedule 9(e), any Credit Party or
any of its Subsidiaries shall (i) default (x) in any payment of
principal of or interest on any Indebtedness (other than any of the
Loans) or (y) in the payment of any Guarantee Obligation (other than the
guarantees pursuant to the Loan Documents), having an outstanding
principal amount individually or in the aggregate for both of clauses
(x) and (y) in excess of the Equivalent Amount of $5,000,000, beyond the
period of grace, if any, provided in the instrument or agreement under
which such Indebtedness
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or Guarantee Obligation was created; or (ii) default in the observance
or performance of any other agreement or condition relating to any such
Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity
or such Guarantee Obligation to become payable; or
(f) (i) Any Credit Party or any of its Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, liquidation, administration, winding up, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, administration, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, administrator, liquidator, custodian, conservator or
other similar official for it or for all or any substantial part of its
assets, or any of the Credit Parties or any of their Subsidiaries shall
make a general assignment for the benefit of its creditors; or (ii)
there shall be commenced against any Credit Party or any of its
Subsidiaries any case, proceeding or other action of a nature referred
to in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of sixty (60) days;
or (iii) there shall be commenced against any Credit Party or any of its
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within sixty (60) days
from the entry thereof; or (iv) any Credit Party or any of its
Subsidiaries shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii), or (iii) above; or (v) any Credit Party or any of
its Subsidiaries shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts (other than
intercompany debts) as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the US Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
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purposes of Title IV of ERISA, (v) the US Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the US Required
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with
respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to result in a Material
Adverse Effect; or
(h) Any Credit Party or any of its Subsidiaries shall directly
or indirectly (i) terminate or cause to terminate, in whole or in part,
or initiate the termination of, in whole or in part, any Canadian
Pension Plan so as to result in any liability to a Credit Party, (ii)
accept payment of any amount from any Canadian Pension Plan, or (iii)
merge any Canadian Pension Plan which in each case could reasonably be
expected to have a Material Adverse Effect.
(i) One or more judgments or decrees shall be entered against
Holdings, the Specified Borrower or any of their Subsidiaries involving
in the aggregate a liability (not paid or fully covered by insurance) of
the Equivalent Amount of $5,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within sixty (60) days from the entry thereof; or
(j) Holdings, any Borrower or any of their Subsidiaries shall
incur any liability (not paid or fully covered by insurance) under any
Environmental Law in an amount which would result in a Material Adverse
Effect; or
(k) Any Loan Document shall, at any time, cease to be in full
force and effect (unless released by the Specified Agent, at the
direction of the Required Lenders or as otherwise permitted under this
Agreement) or shall be declared null and void (and, if such invalidity
is such so as to be amenable to cure without materially disadvantaging
the position of the Specified Agent and the Secured Parties thereunder,
the Credit Party shall have failed to cure such invalidity within thirty
(30) days after notice from the Specified Agent or such shorter time
period as is specified by the Specified Agent in such notice and is
reasonable in the circumstances), or the validity or enforceability
thereof shall be contested by any Credit Party, or any of the Liens
intended to be created by the Loan Documents shall cease to be or shall
not be a valid and perfected Lien having the priority contemplated
thereby (and, if such invalidity is such so as to be amenable to cure
without materially disadvantaging the position of the Specified Agent
and the Secured Parties, as secured parties thereunder, the Credit Party
shall have failed to cure such invalidity within thirty (30) days after
notice from the Specified Agent or such shorter time period as specified
by the Specified Agent in such notice and is reasonable in the
circumstances); or
(l) (x) A Change of Control shall occur, (y) Holdings shall fail
to own directly or indirectly, beneficially and of record 100% of the
Capital Stock of the US Borrower free and clear of all Liens other than
Liens in favor of the Secured Parties pursuant to the Guarantee and
Collateral Agreement, or (z) the US Borrower shall fail to own directly
or indirectly, beneficially and of record 100% of the Capital Stock of
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each Foreign Subsidiary Borrower, provided that with respect to the
English Borrower, until completion of the Compulsory Acquisition the US
Borrower need own indirectly only 94% of the Capital Stock of the
English Borrower;
(m) A Notice of crystallization, a prior notice of exercise of a
hypothecary recourse, an advance registration (as such terms is used in
Article 2966 to 2968 of the Civil Code of Quebec) or a notice of
withdrawal of an authorization to collect claims (a "Civil Code Notice")
is sent to any Credit Party in respect of a substantial part of the
claims, properties or assets of such Credit Party, or is registered
thereagainst, unless the rights purported to be enforced pursuant to
such Civil Code Notice are being contested in good faith by appropriate
legal proceedings and the exercise of such rights is stayed pending such
proceedings;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to a Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon), the maximum amount available to be
drawn under all outstanding Accommodations and all other amounts owing under
this Agreement and any Notes shall immediately become due and payable, and (B)
if such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrowers declare the Commitments
to be terminated forthwith, whereupon the Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrowers declare the Loans
hereunder (with accrued interest thereon), the maximum amount available to be
drawn under all outstanding Accommodations and all other amounts owing under
this Agreement and any Notes to be due and payable forthwith, whereupon the
same shall immediately become due and payable. All payments under this Section
9 on account of undrawn Accommodations shall be made by the Specified Borrower
directly to a cash collateral account established for such purpose for
application to the Specified Borrower's obligations with respect thereto as
drafts are presented under the Specified Accommodations. Any remaining amounts
paid by the Specified Borrower in respect of such undrawn Specified
Accommodations shall be returned to the Specified Borrower after the last
expiry date of the Accommodations and after the Obligations have been paid in
full. Except as expressly provided above in this Section, presentment, demand,
protest and all other notices of any kind are hereby expressly waived.
SECTION 10. THE AGENTS
10.1 Appointment. Each Specified Lender hereby irrevocably
designates and appoints its Specified Agent and person holding a power of
attorney of such Specified Lender under this Agreement and the other Specified
Loan Documents, and each such Specified Lender irrevocably authorizes such
Specified Agent for such Specified Lender, to take such action on its behalf
under the provisions of this Agreement and the other Specified Loan
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Documents and to exercise such powers and perform such duties as are expressly
delegated to the Specified Agent by the terms of this Agreement and the other
Specified Loan Documents, together with such other powers as are reasonably
incidental thereto including, without limitation, the execution and delivery of
the Sharing Agreement on behalf of such Specified Lender and the appointment of
Chase, as Collateral Agent thereunder. Notwithstanding any provision to the
contrary elsewhere in this Agreement, no Specified Agent shall have any duties
or responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Specified Loan Document or otherwise exist against the
Specified Agent.
10.2 Delegation of Duties. Each Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
10.3 Exculpatory Provisions. The Agents shall not, nor shall
any of their officers, directors, controlling persons, employees, agents,
attorneys-in-fact or Affiliates be (i) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this
Agreement or any other Loan Document (except for its or such Person's own gross
negligence or wilful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
any Credit Party or any officer thereof contained in this Agreement or any
other Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Specified Agent under or in
connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any Notes or any other Loan Document or for any failure of any
Credit Party to perform its obligations hereunder or thereunder. No Agent
shall be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Credit Parties.
10.4 Reliance by the Specified Agents. The Agents shall be
entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to any Credit Party), independent
accountants and other experts selected by the Agent. The Agents shall deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Specified Agent. Each Agent shall be fully justified in failing
or refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Required
Lenders or all the Lenders, as it deems appropriate or it shall first be
indemnified to its satisfaction by the Specified Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. Each Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and any
Notes and the other Loan Documents in accordance with a request of the Required
Lenders or all
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the Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Obligations.
10.5 Notice of Default. No Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless it has received written notice from a Specified Lender or any
Credit Party referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event
that an Agent receives such a notice, the Specified Agent shall give notice
thereof to the Specified Lenders and other Agents. The Agents shall each take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders or all the Lenders; provided that
unless and until such Agents shall have received such directions, the Agents
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default as they shall
deem advisable in the best interests of the Lenders.
10.6 Non-Reliance on Agent and Lenders. Each Lender expressly
acknowledges that no Agent has, nor has any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates made any representations or
warranties to it and that no act by any Agent hereinafter taken, including any
review of the affairs of any Credit Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender represents
to the Agents that it has, independently and without reliance upon the Agents
or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Credit Parties and made its own decision to make its
Specified Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the Agents or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of any Credit Party. Except for notices, reports and
other documents expressly required to be furnished to the Specified Lenders by
the Specified Agent hereunder, the Agents shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Credit Party which may come
into the possession of the Agents or any of their officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
10.7 Indemnification. The Specified Lenders agree to indemnify
the Specified Agent in its capacity as such (to the extent not reimbursed by
the Specified Borrower and without limiting the obligation of the Specified
Borrower to do so), ratably according to their respective Specified Commitment
Percentages in effect on the date on which indemnification is sought under this
subsection, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Specified Loans) be imposed on, incurred
by or asserted against the Specified Agent in any way relating to or arising
out of this Agreement, any of the other Loan
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Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Specified Agent under or in connection with any of the foregoing;
provided that no Specified Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from the
Specified Agent's gross negligence or wilful misconduct. The agreements in
this subsection shall survive the payment of the Specified Loans and all other
amounts payable hereunder.
10.8 Agents in Their Individual Capacity. The Agent, and their
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Credit Parties as though the Agents were not the
Agents hereunder and under the other Loan Documents. With respect to its
Specified Loans made or renewed by it and any Specified Note issued to it, the
Specified Agent shall have the same rights and powers under this Agreement and
the other Specified Loan Documents as any Specified Lender and may exercise the
same as though it were not a Specified Agent, and the terms "Specified Lender"
and "Specified Lenders" shall include each of the Specified Agents in its
individual capacity.
10.9 Successor Agents. Any Specified Agent may resign as the
Specified Agent upon ten (10) days' notice to the Lenders. If the Specified
Agent shall resign as Specified Agent under this Agreement and the other Loan
Documents, then the Required Lenders shall appoint from among the Specified
Lenders a successor agent for the Specified Lenders, which successor agent
shall be subject to the approval of the Specified Borrower, whereupon such
successor agent shall succeed to the rights, powers and duties of the Specified
Agent, and the term "Specified Agent" shall mean such successor agent effective
upon such appointment and approval, and the former Specified Agent's rights,
powers and duties as Specified Agent shall be terminated, without any other or
further act or deed on the part of such former Specified Agent or any of the
parties to this Agreement or any holders of the Specified Loans. After any
retiring Specified Agent's resignation as Specified Agent, the provisions of
this subsection shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Specified Agent under this Agreement and the
other Loan Documents.
10.10 Additional Ministerial Powers of the Specified Agents.
Each Specified Agent is hereby irrevocably authorized by each of the Specified
Lenders to execute any document creating any Lien and to release any Lien
covering any asset of the Specified Borrower or any of its Subsidiaries
(including, without limitation, any Properties, accounts receivable or
inventory) that is the subject of a disposition, sale or assignment which is
permitted under this Agreement or, subject to subsection 12.1, which has been
consented to by the Required Lenders.
10.11 Specified Issuing Lender and Collateral Agent. Each
Specified Revolving Credit Lender, Chips Limited Term Loan Lender and Chips
Acquisition Term Loan Lender hereby acknowledges that the provisions of this
Section 10 shall apply to the Specified Issuing Lender, in its capacity as
issuer of any Specified Accommodation, in its capacity under the other Loan
Documents, in the same manner as such provisions are expressly stated to apply
to a Specified Agent. Each English Revolving Credit Lender
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hereby acknowledges that Chase may make drawings under the English Bidco Loan
Note Letter of Credit in accordance with the terms thereof without regard to
its capacity as an Agent hereunder and whether or not the English Bidco Loan
Note Letter of Credit is valid or enforceable.
10.12 English Agent as Trustee. (a) The English Agent in
its capacity as trustee or otherwise under the Loan Documents:
(i) is not liable for any failure, omission, or defect
in perfecting or registering the security constituted or created
by any Loan Document;
(ii) may accept without inquiry such title as any Credit
Party may have to any asset secured by any Loan Document; and
(iii) is not under any obligation to hold any Loan
Document or any other document in connection with the Loan
Documents or the assets secured by any Loan Document (including
title deeds) in its own possession or take any steps to protect
or preserve the same. The English Agent may permit any Credit
Party to retain any Loan Document or other document in its
possession.
(b) Except as otherwise provided in the Loan Documents, all
moneys which under the trusts contained in the Loan Documents are
received by the English Agent in its capacity as trustee or otherwise
may be invested in the name of or under the control of the English Agent
in any investment authorized by English law for the investment by
trustee of trust money or in any other investments which may be selected
by the English Agent. Additionally, the same may be placed on deposit
in the name or under the control of the English Agent at such bank or
institution (including the English Agent) and upon such terms as the
English Agent may think fit.
SECTION 11. GUARANTEE
11.1 Guarantee. To induce the Lenders to execute and deliver this
Agreement, to make Loans, and to issue and participate in Accommodations, and
in consideration thereof, Holdings hereby unconditionally and irrevocably
guarantees, as primary obligor and joint and several co-debtor and not merely
as surety to the Agents, the Secured Parties and their successors, indorsees,
transferees and assigns, the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations, and Holdings further agrees to pay the expenses which may be paid
or incurred by the Agents or the Secured Parties in collecting any or all of
the Obligations and/or enforcing any rights under this Section 11 or under the
Obligations in accordance with subsection 12.5. The guarantee contained in
this Section 11 shall remain in full force and effect until the Obligations are
paid in full and each of the Commitments is terminated,
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notwithstanding that from time to time prior thereto any Borrower may be free
from any Specified Obligations.
11.2 Waiver of Subrogation. Notwithstanding any payment or
payments made by Holdings in respect of the Obligations or any setoff or
application of funds of Holdings by any Agent or any Lender, until payment in
full of the Obligations and the termination of each of Commitments and until
the Accommodations have been terminated, Holdings shall not be entitled to be
subrogated to any of the rights of the Agents or the Lenders against the
Borrowers or any collateral security or guarantee or right of offset held by
any Agent or any Lender for the payment of the Obligations, nor shall Holdings
seek any reimbursement from any Borrower in respect of payments made by
Holdings hereunder.
11.3 Modification of Obligations. Holdings hereby consents
that, without the necessity of any reservation of rights against Holdings and
without notice to or further assent by Holdings, any demand for payment of the
Obligations made by any Agent, any Issuing Lender, any Lender may be rescinded
by the Agent, the Issuing Lender, or the Lenders, and the Obligations
continued, and the Obligations, or the liability of any other party upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by any Agent, any Issuing Lender, or any Lender, and
that this Agreement, any Notes, and the other Loan Documents, including,
without limitation, any collateral security document or other guarantee or
document in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Agents, the Issuing Lenders, or the
Lenders, may deem advisable from time to time, and, to the extent permitted by
applicable law, any collateral security or guarantee or right of offset at any
time held by any Agent, any Issuing Lender, or any Lender, for the payment of
the Obligations may be sold, exchanged, waived, surrendered or released, all
without the necessity of any reservation of rights against Holdings and without
notice to or further assent by Holdings which will remain bound hereunder
notwithstanding any such renewal, extension, modification, acceleration,
compromise, amendment, supplement, termination, sale, exchange, waiver,
surrender or release. The Agents, the Issuing Lenders, and the Lenders shall
not have any obligation to protect, secure, perfect or insure any collateral
security document or property subject thereto at any time held as security for
the Obligations. When making any demand hereunder against Holdings, the
Agents, the Issuing Lenders, or the Lenders, may, but shall be under no
obligation to, make a similar demand on any other party or any other guarantor,
and any failure by any Agent, any Issuing Lender, or any Lender, to make any
such demand or to collect any payments from any Borrower or any such other
guarantor shall not relieve Holdings of its obligations or liabilities
hereunder, and shall not impair or affect the rights and remedies, express or
implied, or as a matter of law, of the Agents, the Issuing Lenders, or the
Lenders, against Holdings. For the purposes of this subsection "demand" shall
include the commencement and continuance of any legal proceedings.
11.4 Waiver by Holdings. Holdings waives the benefits of
division and discussion and any and all notice of the creation, renewal,
extension or accrual of the Obligations and notice of or proof of reliance by
the Agents, the Issuing Lenders, or the Lenders upon the guarantee contained in
this Section 11 or acceptance of the guarantee
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contained in this Section 11, and the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted, continued or incurred
in reliance upon the guarantee contained in this Section 11, and all dealings
between Holdings and the Agents, the Issuing Lenders, or the Lenders shall
likewise be conclusively presumed to have been had or consummated in reliance
upon the guarantee contained in this Section 11. Holdings waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Specified Borrower or Holdings with respect to any Specified
Obligations. This guarantee shall be construed as a continuing absolute and
unconditional guarantee of payment without regard to the validity, regularity
or enforceability of this Agreement, any Note or any other Loan Document,
including, without limitation, any collateral security or guarantee therefor or
right of offset with respect thereto at any time or from time to time held by
any Agent, any Issuing Lender, or any Lender and without regard to any defense,
setoff or counterclaim which may at any time be available to or be asserted by
any Borrower against any Agent, any Issuing Lender, or any Lender, or any other
Person, or by any other circumstance whatsoever (with or without notice to or
knowledge of any Borrower or Holdings) which constitutes, or might be construed
to constitute, an equitable or legal discharge of any Borrower for any of its
Obligations, or of Holdings under the guarantee contained in this Section 11 in
bankruptcy or in any other instance, and the obligations and liabilities of
Holdings hereunder shall not be conditioned or contingent upon the pursuit by
any Agent, any Issuing Lender or any Lender or any other Person at any time of
any right or remedy against any Borrower or against any other Person which may
be or become liable in respect of any Obligations or against any collateral
security or guarantee therefor or right of offset with respect thereto. The
guarantee contained in this Section 11 shall remain in full force and effect
and be binding in accordance with and to the extent of its terms upon Holdings
and the successors and assigns thereof, and shall inure to the benefit of the
Lenders and their successors, indorsees, transferees and assigns, until the
Obligations shall have been satisfied in full and the Commitments shall be
terminated, notwithstanding that from time to time during the term of this
Agreement any Borrower may be free from any Obligations.
11.5 Reinstatement. This guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any Obligations is rescinded or must otherwise be restored or
returned by any Agent, any Issuing Lender, or any Lender upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of Holdings or any
Borrower or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, Holdings, any Borrower or
any substantial part of their respective property, or otherwise, all as though
such payments had not been made.
11.6 Negative Covenants. Until the Obligations shall have been
paid in full, the Accommodations shall have expired or been terminated and the
Commitments shall have been terminated, Holdings hereby agrees that it shall
not (i) cease to own, directly or indirectly, 100% of the Capital Stock of the
US Borrower, (ii) amend its certificate of incorporation or by-laws unless such
amendment does not adversely affect the interests of any Secured Party in any
material respect, (iii) engage in any activities other than (A) owning the
stock of the US Borrower and Bisto, (B) its activities incident to the
performance of (x) the Loan Documents, and (y) the issuance and/or sale of its
common stock or options or warrants in respect of its Capital Stock, provided
that the proceeds thereof are applied as
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set forth in subsection 2.10, (C) transactions pursuant to or in connection
with the Transactions, and (D) activities contemplated by this Section 11, (iv)
make any Restricted Payment except as permitted by subsections 8.7(a) through
(d) or (v) amend, supplement or otherwise modify any of the provisions of the
Chips Loan Notes without the consent of the Administrative Agent and the
Required Lenders.
SECTION 12. MISCELLANEOUS
12.1 Amendments and Waivers. Neither this Agreement, any Note,
any other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or otherwise modified except in accordance with the provisions of
this subsection. The Required Lenders may, or, with the written consent of the
Required Lenders, the Specified Agent, as the case may be, may, from time to
time, (a) enter into with any Credit Party written amendments, supplements or
modifications hereto and to any Notes and the other Loan Documents for the
purpose of adding any provisions to this Agreement or any Notes or the other
Loan Documents or changing in any manner the rights of the Secured Parties or
any Credit Party or any other Person hereunder or thereunder or (b) waive, on
such terms and conditions as the Required Lenders or the Specified Agent, as
the case may be, may specify in such instrument, any of the requirements of
this Agreement or any Notes or the other Loan Documents or any Default or Event
of Default and its consequences; provided, however, that no such waiver and no
such amendment, supplement or modification shall directly (i) reduce the
aggregate amount or extend the scheduled date of maturity of any Loan or of any
installment thereof, or reduce the stated rate of any interest or fee payable
hereunder or thereunder or extend the scheduled date of any payment thereof or
increase the aggregate amount or extend the expiration date of any Lender's
Specified Revolving Credit Commitment, in each case without the consent of each
Lender affected thereby, (ii) amend, modify or waive any provision of this
subsection 12.1 or reduce the percentage specified in the definition of
Required Lenders or consent to the assignment or transfer by Holdings or any
Borrower of any of its rights and obligations under this Agreement and the
other Loan Documents or release collateral having an aggregate value in excess
of the Equivalent Amount of $20,000,000 or release Holdings from any Guarantee
Obligation under the Loan Documents, in each case, except as set forth in
subsection 10.10, without the written consent of all the Lenders, (iii) amend,
modify or waive any provision of subsection 2.14 and Sections 3 or 10 (to the
extent applicable to Swing Line Notes or Swing Line Lenders) without the
written consent of the then Swing Line Lenders, (iv) amend, modify or waive any
provision of (w) subsection 2.5 (to the extent such subsection 2.5 relates to
the Tranche A Term Loans) without the written consent of Tranche A Term Loan
Lenders the Tranche A Term Loan Percentages of which aggregate at least a
majority, (x) subsection 2.5 (to the extent such subsection 2.5 relates to the
Tranche B Term Loans) without the written consent of Tranche B Term Loan
Lenders the Tranche B Term Loan Percentages of which aggregate at least a
majority, (y) subsection 2.5 (to the extent such subsection 2.5 relates to the
Tranche C Term Loans) without the written consent of Tranche C Term Loan
Lenders the Tranche C Term Loan Percentages of which aggregate at least a
majority, or (z) subsection 2.6 (to the extent subsection 2.6 relates to the
Specified Foreign Subsidiary Term Loans) without the written consent of the
Specified Foreign Subsidiary Lenders holding a majority of the outstanding
Specified Foreign Subsidiary Term Loans, (v) amend, modify or waive any
provision of subsection 2.1, 2.2, 2.3 or 2.4 or Section 3 without the written
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consent of the Specified Revolving Credit Lenders the Specified Revolving
Credit Commitment Percentages of which aggregate at least a majority of the
outstanding Revolving Credit Commitments, (vi) amend, modify or waive any
provision of Section 10 without the written consent of each Agent, (vii) amend,
modify or waive any prepayment required by subsection 2.10(a), (b) or (c),
without the consent of Lenders having in the aggregate at least a majority of
the outstanding Term Loans, (viii) amend, modify or waive the order of
application of prepayments specified in subsection 4.4(b) without the consent
of (A) US Revolving Credit Lenders and Tranche A Term Loan Lenders the Total
Credit Percentages (calculated for this purpose without reference to
outstanding Tranche B Term Loans, Tranche C Term Loans, or the Foreign
Subsidiary Term Loans and outstanding Foreign Revolving Credit Commitments) of
which aggregate at least a majority, (B) Specified Foreign Revolving Credit
Lenders the Total Credit Percentages (calculated for this purpose without
reference to outstanding other Specified Revolving Credit Commitments, Tranche
B Term Loans, Tranche C Term Loans, or the Foreign Subsidiary Term Loans) of
which aggregate at least a majority, (C) Tranche B Term Loan Lenders the
Tranche B Term Loan Percentages of which aggregate at least a majority, (D)
Tranche C Term Loan Lenders the Tranche C Term Loan Percentages of which
aggregate at least a majority, and (E) Specified Foreign Subsidiary Term Loan
Lenders with respect to each class of Specified Foreign Subsidiary Term Loans
which hold a majority of the outstanding Specified Foreign Subsidiary Term
Loans of such class, (the US Lenders and the Foreign Subsidiary Lenders
referred to in clauses (A), (B), (C), (D), and (E), collectively, the "Majority
Class Lenders"), (ix) amend, modify or waive the provisions of any Specified
Accommodation or any Specified Accommodation Obligation without the written
consent of the Specified Issuing Lender and each affected Specified
Accommodation Participant, (x) amend, modify or waive any provision of any Loan
Document that provides for the ratable sharing by the Secured Parties of the
proceeds of any realization on the security for the Obligations to provide for
a non-ratable sharing thereof, without the consent of the Majority Class
Lenders, or (xi) amend, modify or waive any provision herein that (A) affects
the Revolving Credit Lenders, or Term Loan Lenders (or any tranche thereof)
only, without the prior written consent of a majority in interest of the
Revolving Credit Lenders, Term Loan Lenders (or tranche thereof), as the case
may be, (B) affects the Specified Lenders or Specified Revolving Credit Lenders
or Specified Term Lenders only, without the prior written consent of a majority
in interest of such Specified Lenders or Specified Revolving Credit Lenders or
Specified Term Lenders, as the case may be, or (C) except as provided in the
foregoing provisions of this subsection 12.1, adversely affects the rights and
interests of any of the Specified Lenders differently from those of any other
class of Specified Lenders, without the prior written consent of a majority in
interest of each separate class of Specified Lenders affected thereby. Any
such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon each of the Borrowers,
the Agents, the Lenders, and all future holders of any of the Obligations. In
the case of any waiver, the Credit Parties, the Lenders, and each of the Agents
shall be restored to their former position and rights hereunder and under the
outstanding Loans and the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
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12.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or two (2) days after
being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed as follows in the case of any Borrower,
Holdings and the Agents, the Issuing Lenders and the Swing Line Lenders, and as
set forth on the signature pages hereto or in any Joinder Agreement in the case
of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of the Loans
or any Notes:
The Borrowers: c/o Mills & Partners, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Holdings: c/o Mills & Partners, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative The Chase Manhattan Bank
Agent,the US Loan & Agency Services Group
Issuing Lender or One Chase Manhattan Plaza, 8th Floor
US Swing Line New York, New York 10081
Lender: Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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The Canadian The Chase Manhattan Bank of Canada
Agent,the Canadian 1 First Canadian Place
Issuing Lender or Suite 6900, P.O. Box 106
Canadian Swing Line Toronto, Ontario
Lender: Canada M5X 1A4
Attention: ▇▇▇▇▇▇ Staff
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The English Chase Manhattan International Limited
Agent,the English Trinity Tower
Issuing Lender: ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ or
▇▇▇▇▇▇▇ Hurfford
Telecopy: 011 44 171 777 3840
with copies to: The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Collateral The Chase Manhattan Bank
Agent: Loan & Agency Services Group
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Specified Agent or
the Specified Lenders pursuant to subsection 2.2, 2.4, 2.5, 2.7, 2.8, 2.11,
2.12, 2.13 or 4.4 shall not be effective until received.
12.3 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of any Agent or any Lender, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
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12.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the making of the Specified
Loans hereunder.
12.5 Payment of Expenses and Taxes. Each Specified Borrower
agrees (a) to pay or reimburse the Specified Agent for all reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement and any Notes and the other Loan Documents and any other
documents prepared in connection herewith or therewith, and the consummation
and administration of the transactions contemplated hereby and thereby,
including, without limitation, the reasonable fees and disbursements of counsel
to the Specified Agent, (b) to pay or reimburse each Specified Lender and the
Specified Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, any Notes, the other Loan Documents and any such other
documents, including, without limitation, the reasonable fees and disbursements
of counsel to the Specified Agent and, at any time after and during the
continuance of an Event of Default, of one counsel to all the Specified
Lenders, and (c) to pay, indemnify, and hold each Specified Lender and the
Specified Agent (and their respective directors, officers, employees and
agents) harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other similar taxes, if any, which may be payable or determined to
be payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, any Notes, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Specified Lender and the
Specified Agent (and their respective directors, officers, employees and
agents) harmless from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, any
Notes, the other Loan Documents, the Acquisition Documents, the Transactions or
the use of the proceeds of the Specified Loans in connection with the
Transactions and any such other documents (all the foregoing in this clause
(d), collectively, the "indemnified liabilities"), provided that the Specified
Borrower shall have no obligation hereunder to the Specified Agent, or any
Specified Lender (or their respective directors, officers, employees and
agents) with respect to indemnified liabilities arising from the gross
negligence or wilful misconduct of the indemnified party or, in the case of
indemnified liabilities arising under this Agreement, any Notes and the other
documents, from material breach by the indemnified party of this Agreement, any
Notes or the other Loan Documents, as the case may be. The agreements in this
subsection shall survive repayment of the Specified Loans and all other amounts
payable hereunder.
12.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrowers, the Lenders, Agents, and all future holders of the Loans and their
respective successors and assigns, except that no Borrower nor Holdings may
assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
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(b) Any Specified Lender may, in the ordinary course of its
commercial lending business and in accordance with applicable law, at any time
sell to one or more banks, insurance companies, mutual funds, or other
financial institutions or other entities ("Specified Participants")
participating interests in any Specified Loan owing to such Lender, any Note
held by such Lender, any Specified Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Specified Lender of a participating interest to a
Specified Participant, such Specified Lender's obligations under this Agreement
to the other parties to this Agreement shall remain unchanged, such Specified
Lender shall remain solely responsible for the performance thereof, such
Specified Lender shall remain the holder of any such Specified Loan for all
purposes under this Agreement and the other Loan Documents, and the Specified
Borrower and the Specified Agent shall continue to deal solely and directly
with such Specified Lender in connection with such Specified Lender's rights
and obligations under this Agreement and the other Loan Documents. No
Specified Lender shall permit any Specified Participant to have the right to
consent to any amendment or waiver in respect of this Agreement or any of the
other Loan Documents, except that such Lender may grant such Specified
Participant the right to consent to any amendment or waiver in respect of this
Agreement or the other Loan Documents that would, directly or indirectly, (i)
reduce the aggregate amount or extend the final maturity of any Specified Loan,
or reduce the stated rate of any interest or fee payable hereunder or extend
the scheduled date of any payment thereof or (ii) consent to the assignment or
transfer by the Specified Borrower of any of its rights and obligations under
this Agreement or any of the other Loan Documents. Each Specified Borrower
agrees that if amounts outstanding under this Agreement and the Specified Loans
are due or unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Specified Participant
shall be deemed to have the right of setoff in respect of its participating
interest in amounts owing under this Agreement and any Note to the same extent
as if the amount of its participating interest were owing directly to it as a
Specified Lender under this Agreement or any Note, provided that in purchasing
such participating interest, such Specified Participant shall be deemed to have
agreed to share with the Specified Lenders the proceeds thereof as provided in
subsection 12.7(a) as fully as if it were a Specified Lender hereunder. The
Specified Borrower also agrees that each Specified Participant shall be
entitled to the benefits of subsections 4.5, 4.6 and 4.7 with respect to its
participation in the Specified Commitments and the Specified Loans and
Specified Accommodations outstanding from time to time as if it was a Specified
Lender; provided that in the case of subsection 4.6 and 4.7, such Specified
Participant shall have complied with the requirements of said subsection and
provided, further, that no Specified Participant shall be entitled to receive
any greater amount pursuant to any such subsection than the transferor
Specified Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Specified Lender to such
Specified Participant had no such transfer occurred; and provided further that
no Specified Participant with respect to a Canadian Lender under this
subsection 12.6(b) which is a non-resident of Canada (as defined in the ITA)
shall be entitled to the benefit of subsection 4.7.
(c) Any Specified Lender may, in the ordinary course of its
commercial lending business and in accordance with applicable law, at any time
and from time to time assign to any other Specified Lender of the same class or
any local affiliate thereof or, with
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the consent of the Specified Agent and the Specified Borrower (such consents
not to be unreasonably withheld), to an additional bank, mutual fund, or
financial or lending institution or any fund that is regularly engaged in
making, purchasing, or investing in loans or securities (a "Specified
Assignee") all or any part of its rights and obligations under this Agreement
and any Specified Notes pursuant to an Assignment and Acceptance, executed by
such Specified Assignee, such assigning Lender (and, in the case of a Specified
Assignee that is not then a Specified Lender of the same class or a local
affiliate thereof, by the Specified Agent) and delivered to the Specified Agent
for its acceptance and recording in the Specified Register; provided that (x)
each such transfer shall be in respect of a portion of such assigning Lender's
rights and obligations under this Agreement and any Specified Notes equal to or
in excess of the Equivalent Amount of $5,000,000 or, if such assigning Lender's
outstanding Commitment on the date of such assignment is less than the
Equivalent Amount of $5,000,000, the aggregate of such assigning Lender's
Commitments hereunder) unless otherwise agreed by the Specified Borrower and
the Specified Agent, (y) no Swing Line Lender may transfer any portion of its
Specified Swing Line Commitment without the consent of the Specified Borrower
(such consent not to be unreasonably withheld) and (z) any Chips Limited Term
Loan Lender shall only be permitted to assign all or any part of its rights and
obligations (with respect to its Specified Accommodation Participating Interest
in the Chips Letter of Credit to be converted to Chips Limited Term Loans or
its outstanding Chips Limited Term Loans to US Borrower) to a US entity which
(i) satisfies subsection 4.7(d)(ii) or (ii) has an English affiliate, branch or
agency that satisfies subsection 4.7(d)(i). Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (x) the Specified Assignee thereunder shall
be a party hereto and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Specified Lender hereunder
with Specified Commitments as set forth therein, and (y) the assigning
Specified Lender thereunder shall, to the extent provided in such Assignment
and Acceptance, be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Specified Lender's rights and obligations under this Agreement,
such assigning Specified Lender shall cease to be a party hereto). No Assignee
of a Canadian Lender under this subsection 12.6(c) which is a non-resident of
Canada (as defined in the ITA) shall be entitled to the benefit of section 4.7.
(d) Each Specified Agent acting, for this purpose, as agent of
the Specified Borrower shall maintain at its address referred to in subsection
12.2 a copy of each Assignment and Acceptance delivered to it and a register
(the "Specified Register") for the recordation of the names and addresses of
the Specified Lenders and the Specified Commitments of, and principal amount of
the Specified Loans owing to, each Specified Lender from time to time. The
entries in the Specified Register shall be conclusive, in the absence of
manifest error, and the Borrowers, the Agents and the Lenders may treat each
Person whose name is recorded in the Specified Register as the owner of the
Specified Loans recorded therein for all purposes of this Agreement. No
assignment or transfer of any Specified Loan (or portion thereof) or any
Specified Note and the obligations evidenced thereby, shall be effected unless
and until it has been recorded in the Specified Register as provided in this
subsection 12.6(d). The Specified Register shall be available for inspection
by the Borrowers or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
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(e) Upon its receipt of an Assignment and Acceptance executed by
an assigning Specified Lender and a Specified Assignee (and, in the case of a
Specified Assignee that is not, before such assignment, a Specified Lender or
an affiliate thereof, by the Specified Agent) together with payment, by a
Specified Assignee, to the Specified Agent of a registration and processing fee
of the Equivalent Amount of $4,000 if the Specified Assignee is not a Specified
Lender prior to the execution of the Specified Assignment and Acceptance and
$1,000 otherwise, the Specified Agent shall (i) promptly accept such Assignment
and Acceptance and (ii) on the effective date determined pursuant thereto
record the information contained therein in the Specified Register and give
notice of such acceptance and recordation to the assigning Specified Lender,
the Specified Assignee and the Specified Borrower. On or prior to such
effective date, if requested, the Specified Borrower, at its own expense, shall
execute and deliver to the Specified Agent (in exchange for any Specified
Revolving Credit Note, Specified Swing Line Note or Specified Term Note of the
assigning Specified Lender) a new Specified Revolving Credit Note, Specified
Swing Line Note or Specified Term Note, as the case may be, to the order of
such Specified Assignee in an amount equal to the Specified Revolving Credit
Commitment, Specified Swing Line Commitment or portion of the Specified Term
Loan, as the case may be, assumed by it pursuant to such Specified Assignment
and Acceptance and, if the assigning Specified Lender has retained a Specified
Revolving Credit Commitment, Specified Swing Line Commitment or portion of a
Specified Term Loan hereunder, a new Specified Revolving Credit Note, Specified
Swing Line Note or Specified Term Note, as the case may be, to the order of the
assigning Specified Lender in an amount equal to the Specified Revolving Credit
Commitment or Specified Term Loan, as the case may be, retained by it
hereunder. Such new Specified Notes shall be in the form of the Specified Note
replaced thereby.
(f) The Specified Borrower authorizes each Specified Lender to
disclose to any Specified Participant or Specified Assignee (each, a "Specified
Transferee") and any prospective Specified Transferee any and all financial
information in such Specified Lender's possession concerning the Credit Parties
and their Affiliates which has been delivered to such Specified Lender by or on
behalf of the Credit Parties pursuant to this Agreement or which has been
delivered to such Specified Lender by or on behalf of the Credit Parties in
connection with such Specified Lender's credit evaluation of the Specified
Borrower and its Affiliates prior to becoming a party to this Agreement, under
the condition such Specified Transferee or prospective Specified Transferee
agrees to comply with the provisions of subsection 12.15.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Specified Loans and Specified Notes relate only to absolute assignments and
that such provisions do not prohibit assignments creating security interests,
including, without limitation, any pledge or assignment by US Lender of any
Loan or Note to any Federal Reserve Bank in accordance with applicable law.
12.7 Adjustments; Set-off. (a) If any Specified Lender (a
"benefitted Specified Lender") shall at any time receive any payment of all or
part of the Specified Obligations owing to it or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature referred to in
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subsection 9(f), or otherwise), in a greater proportion than any such payment
to or collateral received by any other Specified Lender, if any, in respect of
the Specified Obligations owing to such other Specified Lender, such benefitted
Specified Lender shall purchase for cash from the other Specified Lenders a
participating interest in such portion of the Specified Obligations owing to
each such other Specified Lender, or shall provide such other Specified Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefitted Specified Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Specified
Lenders; provided, however, that if all or any portion of such excess payment
or benefits is thereafter recovered from such benefitted Specified Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Specified
Lenders provided by law, each Specified Lender shall have the right, without
prior notice to the Specified Borrower, any such notice being expressly waived
by the Specified Borrower to the extent permitted by applicable law, upon any
amount becoming due and payable by the Specified Borrower hereunder or under
any Specified Notes (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Specified Lender or any branch or
agency thereof to or for the credit or the account of the Specified Borrower.
Each Specified Lender agrees promptly to notify the Specified Borrower and the
Specified Agent after any such set-off and application made by such Specified
Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
12.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. A set of the copies of this Agreement signed by all
the parties shall be lodged with each of the Borrowers and Agents.
12.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Credit Parties and the Secured Parties with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by any of the Agents or any Lender relative to
the subject matter hereof not expressly set forth or referred to herein or in
the other Loan Documents.
12.11 Judgment Currency.
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(a) If, for the purpose of obtaining or enforcing judgment
against any Credit Party in any court in any jurisdiction, it becomes necessary
to convert into any other currency (such other currency being hereinafter in
this subsection 12.11 referred to as the "Judgment Currency") an amount due in
a particular currency (the "Denominated Currency") under any Loan Document, the
conversion shall be made at the rate of exchange prevailing on the Business Day
immediately preceding the date of actual payment of the amount due, in the case
of any proceeding in the courts of any jurisdiction that will give effect to
such conversion being made on such date, or the date on which the judgment is
given, in the case of any proceeding in the courts of the province of Ontario
or in the courts of any other jurisdiction (the applicable date as of which
such conversion is made pursuant to this subsection 12.11 being hereinafter in
this subsection 12.11 referred to as the "Judgment Conversion Date").
(b) If, in the case of any proceeding in the court of any
jurisdiction referred to in subsection 12.11(a), there is a change in the rate
of exchange prevailing between the Judgment Conversion Date and the time of
actual receipt of the amount due in immediately available funds, the applicable
Credit Party shall pay such additional amount (if any, but in any event not a
lesser amount) as may be necessary to ensure that the amount actually received
in the Judgment Currency, when converted at the rate of exchange prevailing on
the date of payment, will produce the amount of Denominated Currency which
could have been purchased with the amount of the Judgment Currency stipulated
in the judgment or judicial order at the rate of exchange prevailing on the
Judgment Conversion Date.
(c) Any amount due from any Credit Party under this subsection
12.11 shall be due as a separate debt and shall not be affected by judgment
being obtained for any other amounts due under or in respect of any of the Loan
Documents.
(d) The term "rate of exchange" in this subsection 12.11 means
the spot rate of exchange at which the Specified Agent would, on the relevant
date at or about 12:00 noon, be prepared to sell Denominated Currency against
the Judgment Currency.
12.12 Risks of Superior Force. Each of the Credit Parties
expressly assumes all risks of superior force, such that it shall be bound to
timely execute each and every of its obligations under this Agreement
notwithstanding the existence or occurrence of any event or circumstance
constituting a superior force within the meaning of Article 1693 of the Civil
Code of Quebec.
12.13 Language. The parties hereto have agreed that this
Agreement as well as any document or instrument relating thereto be drawn up in
English only. Les parties aux presentes ont convenu que la presente Convention
ainsi que tous autres actes ou documents s'y rattachant soient rediges en
anglais seulement.
12.14 GOVERNING LAW. THIS AGREEMENT AND ANY NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND ANY NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
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12.15 Submission To Jurisdiction; Waivers. Each of the
Borrowers and Holdings hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgement
in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to Holdings or such Borrower at their respective addresses set
forth in subsection 12.2 or at such other address of which any Agent
shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or
consequential damages.
(f) with respect to the Foreign Subsidiary Borrowers, appoints
Viasystems, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, as its agent (the "Process Agent") to receive on its behalf
service of copies of the summons and complaint and any other process
that may be served in any such proceeding. Service may be made on the
Process Agent at its address specified above or on the Specified Foreign
Subsidiary Borrower at its address specified hereunder, in each case in
the manner provided for the giving of notices in subsection 12.2 hereof.
12.16 Acknowledgements. Each of the Borrowers and Holdings
hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and any Notes and the other Loan
Documents;
(b) no Secured Party has any fiduciary relationship with or duty
to the Credit Parties arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship
between the Secured Parties, on one hand, and the
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Credit Parties, on the other hand, in connection herewith or therewith
is solely that of creditor and debtor; and
(c) no joint venture exists among the Secured Parties or among
the Credit Parties and the Secured Parties.
12.17 WAIVERS OF JURY TRIAL. HOLDINGS, EACH BORROWER, THE
LENDERS, AND EACH AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY NOTES
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
12.18 Confidentiality. Each Specified Lender agrees to keep
confidential any information obtained by it pursuant hereto and the other Loan
Documents identified as confidential in writing at the time of delivery in
accordance with such Lender's customary practices and agrees that it will only
use such information in connection with the transactions contemplated by this
Agreement and not disclose any of such information other than (a) to such
Lender's officers, directors, employees, representatives, attorneys, agents or
affiliates who are advised of the confidential nature of such information, (b)
to the extent such information presently is or hereafter becomes available to
such Lender on a non-confidential basis from any source or such information
that is in the public domain at the time of disclosure, (c) to the extent
disclosure is required by law, regulation, subpoena or judicial order or
process (provided that notice of such requirement or order shall be promptly
furnished to the Specified Borrower unless such notice is legally prohibited)
or requested or required by bank regulators or auditors or any administrative
body, commission, or other Governmental Authority to whose jurisdiction such
Lender may be subject, (d) to assignees or participants or potential assignees
or participants or to professional advisors or direct or indirect contractual
counterparties in swap agreements provided in each case such Person agrees to
be bound by the provisions of this subsection 12.18, (e) to the extent required
in connection with any litigation between any Credit Party and any Specified
Lender with respect to the Specified Loans or this Agreement and the other Loan
Documents, (f) to rating agencies, their employees, representatives, attorneys,
agents or affiliates who are advised of the confidential nature of such
information and agree to be bound by provisions of this subsection 12.18, (g)
to the National Association of Insurance Commissioners and (h) with the
Specified Borrower's prior written consent. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED, HEREIN, THE AGENTS, THE LENDERS AND THE ISSUING LENDERS
AGREE THAT NO PUBLIC ANNOUNCEMENT, CIRCULAR OR ADVERTISEMENT SHALL BE MADE,
ISSUED OR PUBLISHED BY ANY OF THEM DISCLOSING ANY OF THE TERMS OF OR THE SELLER
TO THE CHIPS ACQUISITION. FOR PURPOSES OF THE IMMEDIATELY PRECEDING SENTENCE
THE PROVISION OF INFORMATION TO ANY NEWSPAPER, MAGAZINE OR ANY OTHER FORM OF
MEDIA SHALL CONSTITUTE THE MAKING, ISSUANCE OR PUBLICATION OF A PUBLIC
ANNOUNCEMENT, CIRCULAR OR ADVERTISEMENT. The agreements in this subsection
shall survive repayment of the Specified Loans and all other amounts payable
hereunder.
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12.19 Sharing Agreement. Notwithstanding anything to the
contrary contained in this Agreement, any of the other Loan Documents, or the
Sharing Agreement, the Credit Parties and their respective Subsidiaries are not
a party to and shall not be bound by the Sharing Agreement.
12.20 No Guarantee of Domestic Obligations by Foreign
Subsidiaries of US Borrower. Notwithstanding anything herein to the contrary
or in any of the other Loan Documents, no Foreign Subsidiary of the US Borrower
guarantees the Domestic Obligations and none of the assets of any Foreign
Subsidiary secure or shall be used to pay the Domestic Obligations.
12.21 Section 151 of the Companies Act of 1985. Notwithstanding
any other provision of this Agreement none of the Foreign Subsidiary Borrowers
may take any action under this Agreement or assume any obligations in relation
thereto which would result in a breach of the provisions of Section 151 of the
Companies Act of 1985 (as amended) and more particularly neither the English
Borrower nor any of its Subsidiaries may, until completion of the "whitewash
procedures" set forth in Sections 155-158 of the Companies Act of 1985 (as
amended) referred to in Section 7.14 hereof, (i) borrow under any English Loan
or English Accommodations for the purposes of replacing, refinancing, or
substituting indebtedness under the Existing Credit Agreement, except for
English Revolving Credit Loans, or the obligations of the English Issuing
Lender under the English Bidco Loan Note Letter of Credit or any obligations
relating thereto or (ii) borrow under any English Loan or English
Accommodations for the purpose of financing the Compulsory Acquisition.
[rest of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
VIASYSTEMS GROUP, INC.,
as Guarantor
By: /s/
---------------------------------
Name:
Title:
BORROWERS
VIASYSTEMS, INC.,
as US Borrower
By: /s/
---------------------------------
Name:
Title:
CIRCO CRAFT CO. INC.,
as Canadian Borrower
By: /s/
---------------------------------
Name:
Title:
PCB INVESTMENTS PLC,
as English Bidco
By: /s/
---------------------------------
Name:
Title:
FORWARD GROUP PLC,
as English Borrower
By: /s/
---------------------------------
Name:
Title:
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CHIPS ACQUISITION LIMITED,
as a Foreign Subsidiary Borrower
By: /s/
---------------------------------
Name:
Title:
INTERCONNECTION SYSTEMS (HOLDINGS)
LIMITED,
as a Foreign Subsidiary Borrower
By: /s/
---------------------------------
Name:
Title:
AGENTS
THE CHASE MANHATTAN BANK,
as Administrative Agent and Collateral
Agent, and as a Lender
By: /s/
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK OF CANADA,
as Canadian Agent, and as a Canadian
Lender
By: /s/
---------------------------------
Name:
Title:
CHASE MANHATTAN INTERNATIONAL LIMITED,
as English Agent
By: /s/
---------------------------------
Name:
Title:
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CHASE MANHATTAN BANK DELAWARE,
as a US Issuing Lender
By: /s/
---------------------------------
Name:
Title:
Address for Notices
Letter of Credit Department
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
US LENDERS
CIBC INC.
By: /s/
---------------------------------
Name:
Title:
Address for Notices
CIBC Wood Gundy
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF MONTREAL
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ Law
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
CITIBANK, N.A.
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ 7
New York, New York 10043
Attention: R. ▇▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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THE FUJI BANK LIMITED, NEW YORK BRANCH
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Address for Notices
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
BANKERS TRUST
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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NATIONAL WESTMINSTER BANK Plc
By: /s/
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Commercial Loans
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
ABN AMRO BANK N.V.
By: /s/
---------------------------------
Its:
---------------------------------
By: /s/
---------------------------------
Its:
---------------------------------
Address for Notices
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Comfort
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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THE FIRST NATIONAL BANK OF CHICAGO
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Vice
President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
THE SAKURA BANK, LIMITED
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
By: /s/
---------------------------------
Name:
Title:
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Pierre Osterrath
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
BANQUE NATIONALE DE PARIS, NEW YORK
BRANCH
By: /s/
---------------------------------
Name:
Title:
By: /s/
---------------------------------
Name:
Title:
Address for Notices
Banque Nationale de Paris (Canada)
BNP Tower
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇-Coeur
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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ARAB BANKING CORPORATION (B.S.C.)
By: /s/
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attention: Loan Department Mgr.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
DLJ CAPITAL FUNDING, INC.
By: /s/
---------------------------------
Name:
Title:
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Koji Sasayama
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
151
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
BANKBOSTON, N.A.
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Stop: 01-08-05
Boston, Massachusetts 02106-2016
Attention: ▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
152
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
By: /s/
---------------------------------
Name:
Title:
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
ALLSTATE LIFE INSURANCE COMPANY
By: /s/
---------------------------------
Name:
Title:
ALLSTATE INSURANCE COMPANY
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
153
147
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
PILGRIM AMERICA PRIME RATE TRUST
By: /s/
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Portfolio Analyst
Address for Notices
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
154
148
OCTAGON CREDIT INVESTORS LOAN PORTFOLIO,
FORMERLY CHL HIGH YIELD LOAN PORTFOLIO
(a unit of THE CHASE MANHATTAN
BANK)
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
PRIME INCOME TRUST
By: /s/
---------------------------------
Name:
Title:
Address for Notices
Prime Income Trust ▇/▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
ORIX USA CORPORATION
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: G.V. Sanjay
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
155
149
PROTECTIVE LIFE INSURANCE COMPANY
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇▇▇▇▇ ▇▇▇▇ ▇▇. LB #▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND,
INC.
By: /s/
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, CFA
Title: Authorized Signatory
Address for Notices
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
DEBT STRATEGIES FUND, INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management,
L.P., as Investment Advisor
By: /s/
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, CFA
Title: Authorized Signatory
Address for Notices
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
156
150
KZH HOLDING CORPORATION
By: /s/
---------------------------------
Name:
Title:
Address for Notices
▇/▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ / ▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By: /s/
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
Title: Senior Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/
---------------------------------
Name: Takuya Honjo
Title: Senior Vice President
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ Takehisa
Telecopy: (212) 282-4490
157
151
CAISSE NATIONAL DE CREDIT AGRICOLE
By: /s/
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
Address for Notices:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
BHF BANK AKTIENGESELLSCHAFT
By: /s/
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title:
By: /s/
---------------------------------
Name:
Title:
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
158
152
AMARA-1 FINANCE LTD.
By: /s/
---------------------------------
Name:
Title: Director
AMARA-2 FINANCE LTD.
By: /s/
---------------------------------
Name:
Title: Director
Address for Notices
Chancellor LGT Senior Secured Management,
Inc.
1166 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
DEEPROCK & COMPANY
By: ▇▇▇▇▇ ▇▇▇▇▇ Management
as Investment Advisor
By: /s/
--------------------------
Name:
Title:
Address for Notices:
State Street Bank & Trust Company
Corporate Trust Division
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
159
153
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇ Management
Attention: Prime Rate Reserves
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
ROYAL BANK OF CANADA
By: /s/
---------------------------------
Title: Manager, Computer Industry
Group
Address for Notices:
Royal Bank of Canada
Financial Square
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Manager Credit Administration
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
CANADIAN LENDERS
BANK OF NOVA SCOTIA
By: /s/
---------------------------------
Name:
Title:
Address for Notices:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
160
154
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/
---------------------------------
Name:
Title:
Address for Notices:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF MONTREAL
By: /s/
---------------------------------
Name:
Title:
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
FUJI BANK CANADA
By: /s/
---------------------------------
Name:
Title:
Address for Notices:
BCE Place, Canada Trust Tower
▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
161
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
By: /s/
---------------------------------
Name: ▇▇▇▇▇▇▇ Dani
Title: Senior Manager
Address for Notices:
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ Wing
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ Dani
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
CITIBANK CANADA
By: /s/
---------------------------------
Name:
Title:
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇▇▇ ▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
162
156
BANK OF TOKYO-MITSUBISHI (CANADA)
By: /s/
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and General
Manager
Address for Notices:
▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
THE SAKURA BANK (CANADA)
By: /s/
---------------------------------
Name:
Title:
Address for Notices:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
163
▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
By: /s/
---------------------------------
Name:
Title:
Address for Notices:
Ernst & Young Tower
Toronto ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ M5K 1H6
Attention: ▇▇▇▇▇▇ ▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
BT BANK OF CANADA
By: /s/
---------------------------------
Name:
Title:
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
NATIONAL BANK OF CANADA
By: /s/
---------------------------------
Name:
Title:
Address for Notices:
National Bank Tower
Montreal, Quebec
Canada H3B 4L2
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
164
158
BANQUE NATIONALE DE PARIS (CANADA)
By: /s/
---------------------------------
Name:
Title:
By: /s/
---------------------------------
Name:
Title:
Address for Notices:
Banque Nationale de Paris
BNP Tower
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇-Coeur
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
ABN AMRO BANK CANADA
By: /s/
---------------------------------
Name:
Title:
By: /s/
---------------------------------
Name:
Title:
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
165
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
By: /s/
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Title: First Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy:(▇▇▇) ▇▇▇-▇▇▇▇
ENGLISH LENDERS
THE CHASE MANHATTAN BANK
By: /s/
---------------------------------
Name:
Title:
Address for Notices:
Trinity Tower
▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: 011-44-171-777-2367
166
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By: /s/
---------------------------------
Name:
Title:
Address for Notices:
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: 011-44-171-454-9019
BANK OF MONTREAL
By: /s/
---------------------------------
Name:
Title:
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
ROYAL BANK OF CANADA
By: /s/
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Manager-Multinational
Banking
Address for Notices:
Royal Bank of Canada
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Manager Loan Administration
Telecopy: 011-44-171-329-4751
167
161
NATIONAL WESTMINSTER BANK Plc
By: /s/
---------------------------------
Name:
Title:
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ Allflatt
Telecopy: 011-44-171-375-5425
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By: /s/
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Name:
Title:
By: /s/
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Name:
Title:
Address for Notices:
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
BANQUE NATIONALE DE PARIS, LONDON BRANCH
By: /s/
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Name:
Title:
By: /s/
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Name:
Title:
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Address for Notices:
Banque Nationale de Paris
BNP Tower
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇-Coeur
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
THE FIRST NATIONAL BANK OF BOSTON
By: /s/
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Name:
Title:
Address for Notices
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Stop 01-08-05
Boston, Massachusetts 02106-2016
Attention: ▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
CITIBANK, N.A.
By: /s/
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Name:
Title:
Address for Notices:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Telecopy: 011-44-171-500-2398
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BHF BANK AKTIENGESELLSCHAFT
By: /s/
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Name: ▇▇▇▇ ▇▇▇▇▇
Title:
By: /s/
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Name:
Title:
Address for Notices:
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
SAKURA BANK LIMITED LONDON BRANCH
By: /s/
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Name:
Title:
Address for Notices:
Ground & 1st Floor
▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: ▇▇. ▇▇▇
Telecopy: 011-44-171-638-1260
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CIBC WOOD GUNDY PLC
By: /s/
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Name:
Title:
Address for Notices:
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: 011-44-171-234-6433
With a copy to:
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy: 011-44-171-234-6433
171
ADMINISTRATIVE SCHEDULE TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
I. Available Currencies.
US Borrower: Dollars.
Canadian Borrower: Canadian Dollars, and, with respect to the Canadian
Revolving Credit Loans and Letters of Credit, Dollars.
English Borrower, English Bidco, ISL and Chips Limited: Pounds ▇▇▇▇▇▇▇▇
▇▇. Base Rates and Interest Payment Dates.
US Borrower: "Alternate Base Rate": for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD
Rate in effect on such day plus 1% and (c) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. For purposes hereof: "Prime
Rate" shall mean the rate of interest per annum publicly announced from
time to time by the Administrative Agent as its prime rate in effect at
its principal office in New York City; "Base CD Rate" shall mean the sum
of (a) the product of (i) the Three-Month Secondary CD Rate and (ii) a
fraction, the numerator of which is one and the denominator of which is
one minus the C/D Reserve Percentage and (b) the C/D Assessment Rate;
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in
effect on such day (or, if such day shall not be a Business Day, the
next preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate will,
under the current practices of the Board, be published in Federal
Reserve Statistical Release H.15(519) during the week following such
day), or, if such rate shall not be so reported on such day or such next
preceding Business Day, the average of the secondary market quotations
for three-month certificates of deposit of major money center banks in
New York City received at approximately 10:00 a.m., New York City time,
on such day (or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Administrative Agent from three New York
City negotiable certificate of deposit dealers of recognized standing
selected by it; and "Federal Funds Effective Rate" shall mean, for any
day, the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding Business Day
by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Base CD Rate or the
Federal Funds Effective Rate, or both, for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the Alternate Base
172
2
Rate shall be determined without regard to clause (b) or (c), or both,
of the first sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any change
in the Alternate Base Rate due to a change in the Prime Rate, the Base
CD Rate or the Federal Funds Effective Rate shall be effective on the
effective day of such change in the Prime Rate, the Base CD Rate or the
Federal Funds Effective Rate, respectively; "C/D Assessment Rate" shall
mean for any day as applied to the Base CD Rate, the net annual
assessment rate (rounded upward to the nearest 1/100th of 1%) determined
by the Administrative Agent to be payable on such day to the Federal
Deposit Insurance Corporation or any successor ("FDIC") for FDIC's
insuring time deposits made in Dollars at offices of the Administrative
Agent in the United States; and "C/D Reserve Percentage" shall mean, for
any day as applied to the CD Base Rate, that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Board, for
determining the maximum reserve requirement for a member bank of the
Federal Reserve System in New York City with deposits exceeding one
billion Dollars in respect of new non-personal time deposits in Dollars
in New York City having a three month maturity and in an amount of
$100,000 or more.
Interest shall be payable on the last day of each March, June,
September, and December and shall be calculated on the basis of 360 days
when based on the Federal Funds Effective Rate or the CD Base Rate.
Canadian Borrower: For Canadian Dollars: "C$ Prime Rate": on any day,
the annual rate of interest (rounded upwards, if necessary, to the next
1/16 of 1%) equal to the greater of:
(a) the annual rate of interest determined by the Canadian
Agent as the annual rates of interest announced from time
to time by the Canadian Agent as its Prime Rate in effect
at its principal office in Toronto on such day for
determining interest rates on C$ denominated commercial
loans in Canada; and
(b) the annual rate of interest equal to the sum of (A) the
CDOR Rate in effect on such day and (B) 1%. To the extent
that the C$ Prime Rate as determined under (a) above is
not available, the C$ Prime Rate will be determined in
accordance with subsection (b) above.
"CDOR Rate": on any date, the annual rate of interest
which is the rate based on an average rate applicable to C$
bankers' acceptances for a term of 30 days (in the case of the
definition of "C$ Prime Rate") appearing on the "Reuters Screen
CDOR Page" (as defined in the International Swaps and Derivatives
Association, Inc. definitions, as modified and amended from time
to time) at approximately 10:00 a.m., (Toronto time), on such
date, or if such date is not a Business Day, then on the
immediately preceding Business Day; provided, however, if such
rate does not appear on the Reuters Screen CDOR Page as
contemplated, then the CDOR Rate on any date shall be calculated
as the arithmetic mean of the rates for the term referred to
above applicable to
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3
C$ bankers' acceptances quoted by the Canadian Reference Lenders
as of 10:00 a.m., (Toronto time), on such date, or if such date
is not a Business Day, then on the immediately preceding Business
Day.
Interest shall be payable on the last day of each March, June,
September, and December and shall be calculated on the basis of a 365 or
366 day year when based on the C$ Prime Rate.
Canadian Borrower: For Dollars: "Canadian Alternate Base Rate": on
any day, the annual rate of interest (rounded upwards, if necessary, to
the nearest 1/16 of 1%) equal to the greater of:
(i) the annual rate of interest determined by the Canadian
Agent as being the rate of interest announced from time to
time by the Canadian Agent as its prime reference rate in
effect on such day for determining interest rates on US$
denominated commercial loans in Canada; and
(ii) the annual rate of interest equal to the sum of (A) the
Federal Funds Effective Rate and (B) 0.5%
Interest shall be payable on the last day of each March, June,
September, and December and shall be calculated on the basis of a 365 or
366 day year when based on the Canadian Alternate Base Rate.
English Borrower, English Bidco, ISL and Chips Limited: None
III. Eurocurrency Base Rates and Interest Periods.
US Borrower: "Eurocurrency Base Rate": with respect to each day during
each Interest Period pertaining to a Eurocurrency Loan, the rate per
annum equal to the rate at which Chase is offered Dollar deposits at or
about 10:00 a.m., New York City time, two Business Days prior to the
beginning of such Interest Period in the interbank eurodollar market
where the eurodollar and foreign currency and exchange operations in
respect of its Eurocurrency Loans are then being conducted for delivery
on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of its
Eurocurrency Loan to be outstanding during such Interest Period.
Permitted Interest Periods shall be one, two, three, six or to the
extent available to all US Lenders, nine or twelve months and interest
shall be calculated on the basis of a 360-day year.
Canadian Borrower: For Dollars only: "Eurocurrency Base Rate": with
respect to each day during each Interest Period pertaining to a
Eurocurrency Loan, the rate per annum equal to the rate at which Chase
Canada is offered Dollar deposits at or about 10:00 a.m., Toronto time,
two Business Days prior to the beginning of such Interest Period in the
interbank eurodollar market where the eurodollar and foreign currency
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4
and exchange operations in respect of its Eurocurrency Loans are then
being conducted for delivery on the first day of such Interest Period
for the number of days comprised therein and in an amount comparable to
the amount of its Eurocurrency Loan to be outstanding during such
Interest Period.
Permitted Interest Periods shall be one, two, three, six or to the
extent available to all Canadian Lenders, nine or twelve months and
interest shall be based on a 360 day year when based on the Eurocurrency
Base Rate.
English Borrower, English Bidco, ISL and Chips Limited: "Eurocurrency
Base Rate": with respect to each day during each Interest Period
pertaining to a Loan, a rate per annum (rounded upward to the nearest
1/100th of 1%) equal to the sum of (a) LIBOR for such Interest Period
and (b) the rate per annum calculated by the English Agent in accordance
with Schedule 1.1(B); "LIBOR" means in relation to any Interest Period,
the rate per annum (rounded upwards, if necessary, to the nearest
1/100th of 1%) quoted at or about 11:00 a.m., London time, on the
Quotation Date for such period on that page of the Telerate Screen which
displays British Bankers Association Interest Settlement Rates for
deposits in Pounds Sterling of the equivalent amount for such period
(such page being currently 3750) or, if such page or such service shall
cease to be available, such other page or such other service (as the
case may be) for the purpose of displaying British Bankers Association
Interest Settlement Rates for Pounds Sterling as the English Agent,
after consultation with the Lenders and the Borrower, shall select
provided that if no such rate is displayed for Pounds Sterling and the
relevant period and the English Agent has not selected an alternative
service on which two or more such quotations are displayed, "LIBOR"
shall mean the arithmetic mean (rounded upwards, if necessary, to the
nearest 1/100th of 1%) of the rates (as notified to the English Agent)
at which each of the Reference Banks was offering to prime banks in the
London Interbank Market deposits in Pounds Sterling of such amount and
for such period at or about 11:00 a.m., London time, on the Quotation
Date for such period; "Reference Banks" means the principal London
offices of The Chase Manhattan Bank and/or such other bank or banks as
may from time to time be agreed between the English Agent and the
English Borrower; and "Quotation Date" means in relation to any period
for which an interest rate is to be determined hereunder, the day on
which quotations would ordinarily be given by prime banks in the London
Interbank Market for deposits in the currency in relation to which such
rate is to be determined for delivery on the first day of that period,
provided that, if, for any such period, quotations would ordinarily be
given on more than one date, the Quotation Date for that period shall be
the last of those dates.
Permitted Interest Periods shall be one, two, three, six or to the
extent agreed to by the English Lenders such other periods as may be
available.
IV. Available Accommodations
US Borrower: Letters of Credit in an amount not to exceed $15,000,000
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5
Canadian Borrower: Letters of Credit in an amount not to exceed
$15,000,000 or the Equivalent Amount thereof in C$.
English Borrower: Letters of Credit and Bankers' Acceptances in an
amount not to exceed L. 5,000,000 plus the English
Bidco Loan Letter of Credit.
ISL: Letters of Credit in an amount not to exceed
L.10,000,000.
V. Swing Line Lenders
US Borrower: Chase in an amount not to exceed $10,000,000
Canadian Borrower: Chase Canada in an amount not to exceed $5,000,000
or the Equivalent Amount thereof in C$.
English Borrower, English Bidco, ISL and Chips Limited: N/A
VI. Cash Equivalents.
Dollars. (a) securities with maturities of one year or less from
the date of acquisition issued or fully guaranteed or insured by the
United States Government or any agency thereof, (b) certificates of
deposit, time deposits, overnight bank deposits, bankers acceptances and
repurchase agreements of any commercial bank which has, or whose
obligations are guaranteed by an affiliated commercial bank which has
capital and surplus in excess of $500,000,000 having maturities of one
year or less from the date of acquisition, (c) commercial paper of an
issuer rated at least A-2 by Standard & Poor's Corporation or P-2 by
▇▇▇▇▇'▇ Investors Service, Inc., or carrying an equivalent rating by a
nationally recognized rating agency if both of the two named rating
agencies cease publishing ratings of investments, (d) money market
accounts or funds with or issued by Qualified Issuers, (e) repurchase
obligations with a term of not more than 90 days for underlying
securities of the types described in clause (a) above entered into with
any bank meeting the qualifications specified in clause (b) above, and
(f) demand deposit accounts maintained in the ordinary course of
business with any Lender or with any bank that is not a Lender not in
excess of $100,000 in the aggregate on deposit with any such bank;
"Qualified Issuer" means any commercial bank (a) which has, or whose
obligations are guaranteed by an affiliated commercial bank which has,
capital and surplus in excess of $500,000,000 and (b) the outstanding
short-term debt securities of which are rated at least A-2 by Standard &
Poor's Corporation or at least P-2 by ▇▇▇▇▇'▇ Investors Service, Inc.,
or carry an equivalent rating by a nationally recognized rating agency
if both of the two named rating agencies cease publishing ratings of
investments.
Canadian Dollars. (a) marketable direct obligations issued or
unconditionally guaranteed by the Government of Canada or any agency
thereof, maturing no more than one year after the date of acquisition
thereof; (b) marketable direct obligations
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6
issued or unconditionally guaranteed by the governments of the Provinces
of Canada or any agencies thereof, maturing no more than one year after
the date of acquisition thereof and currently having a rating not lower
than R-1 (mid), ▇-▇, ▇▇▇▇▇-▇ or A-1 from any of Dominion Bond Rating
Service Inc., Canadian Bond Rating Service, ▇▇▇▇▇'▇ Investors Service,
Inc. or Standard & Poor's Corporation, respectively; (c) commercial
paper and banker's acceptances maturing no more than 180 days after the
date of creation thereof and currently having a rating not lower than R-
1 (mid), A-1, Prime-2 or A-1 from any of Dominion Bond Rating Service
Inc., Canadian Bond Rating Service, ▇▇▇▇▇'▇ Investors Service, Inc. or
Standard & Poor's Corporation, respectively; and (d) certificates of
deposit or time deposits, maturing no more than 180 days after the date
of creation thereof, issued by commercial banks incorporated under the
laws of Canada or the United States of America, each having a rating not
lower than R-1 (mid), ▇-▇, ▇▇▇▇▇-▇ or A-1 from any of Dominion Bond
Rating Service Inc., Canadian Bond Rating Service, ▇▇▇▇▇'▇ Investors
Service, Inc. or Standard & Poor's Corporation, respectively.
Pounds Sterling. (a) any credit balances, realizable within three (3)
months, on any bank or other deposit, savings or current account held in
the United Kingdom (or any other jurisdiction from which cash is readily
remittable to the United Kingdom); (b) cash in hand; (c) gilt edged
securities; (d) Sterling commercial paper maturing not more than twelve
(12) months from the date of issue and rated A-1 by Standard & Poor's
Corporation or P-1 by ▇▇▇▇▇'▇ Investor Services Inc.; (e) any deposit
with or acceptance maturing not more than one (1) year after issue
accepted by an institution authorized under the Banking ▇▇▇ ▇▇▇▇ or a
Bank; and (f) Sterling denominated debt securities having not more than
one (1) year until final maturity and listed on a recognized stock
exchange and rated at least AA by Standard & Poor's Corporation or Aa by
▇▇▇▇▇'▇ Investors Services Inc.
VII. Specified Notice Times
US Borrower: (a) Eurocurrency borrowings, 12:00 noon New York City time
three Business Days prior to the applicable event and (b) Base Rate
borrowings, 12:00 noon New York City time one Business Days prior to the
applicable event.
Canadian Borrower: (a) Eurocurrency borrowings, 12:00 noon Toronto time
three Business Days prior to the applicable event, (b) Base Rate
borrowings, 12:00 noon Toronto time one Business Days prior to the
applicable event and (c) Canadian B/As, 12:00 noon Toronto time two
Business Days prior to the applicable event.
English Bidco, English Borrower, ISL and Chips Limited: 12:00 noon
London time three Business Days prior to the applicable event.
VIII. Specified Revolving Credit Commitment Periods.
US Borrower: the period from and including the Closing Date to, but not
including, the Specified Revolving Credit Commitment Termination Date or
such earlier date on
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which the US Revolving Credit Commitments are terminated (whether
pursuant to Section 9 or otherwise).
Canadian Borrower: the period from and including the Closing Date to,
but not including, the Specified Revolving Credit Commitment Termination
Date or such earlier date on which the Canadian Revolving Credit
Commitments are terminated (whether pursuant to Section 9 or otherwise).
English Borrower: the period from and including the Chips Closing Date
to, but not including, the Scheduled Revolving Credit Commitment
Termination Date or such other earlier date on which the English
Revolving Credit Commitments are terminated (whether pursuant to Section
9 or otherwise).
ISL: the period from and including the Chips Closing Date to, but not
including the Scheduled Revolving Credit Commitment Termination Date or
such earlier date on which the Chips Revolving Credit Commitments are
terminated (whether pursuant to Section 9 or otherwise).
IX. Specified Revolving Credit Commitment Termination Date.
US Borrower: the Scheduled Revolving Credit Commitment Termination
Date.
Canadian Borrower: the Scheduled Revolving Credit Commitment
Termination Date.
English Borrower: Scheduled Revolving Credit Commitment Termination
Date.
ISL: Scheduled Revolving Credit Commitment Termination Date.
X. Conversion of Borrowings
Canadian Borrower: Conversion of Canadian B/As and Base Rate Loans:
The Canadian Borrower shall be permitted to convert Canadian B/As to
Base Rate Loans in C$ and convert Base Rate Loan in C$ to Canadian B/As
in accordance with Section 2.11 (a) and (c) of this Agreement; provided
that for this purpose: (i) Section 2.11(a) and (c) shall be read as if
all references therein to Eurocurrency Loans mean Canadian B/As and all
references therein to Interest Periods mean Canadian Contract Periods,
(ii) all such conversions shall be made in minimum aggregate amounts and
whole multiples in excess thereof as are provided for in respect of such
Loans in Section 2.2 of this Agreement, and (iii) after any partial
conversion not less than C$1,600,000 shall remain outstanding as
Canadian B/As or not less than C$500,000 shall remain outstanding as
Base Rate Loans, as applicable.
178
SCHEDULE 1.1 TO
CREDIT AGREEMENT
COMMITMENTS
US LENDERS
THE CHASE MANHATTAN BANK
US Revolving Credit Commitment: $19,414,471.25
Chips Acquisition Term Loan Commitment: $35,500,000.00
Chips Limited Term Loan Commitment $28,231,250.00
CIBC INC.
US Revolving Credit Commitment: $15,073,493.72
Chips Limited Term Loan Commitment: $10,000,000.00
BANK OF MONTREAL
US Revolving Credit Commitment: $7,158,385.09
Chips Limited Term Loan Commitment: $10,000,000.00
THE BANK OF NOVA SCOTIA
US Revolving Credit Commitment: $10,000,000.00
Chips Limited Term Loan Commitment: $10,000,000.00
CITIBANK
US Revolving Credit Commitment: $9,521,552.36
Chips Limited Term Loan Commitment: $17,000,000.00
FUJI BANK LIMITED, NEW YORK BRANCH
US Revolving Credit Commitment: $9,540,186.00
ROYAL BANK OF CANADA
Chips Limited Term Loan Commitment: $10,000,000.00
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
US Revolving Credit Commitment: $6,487,326.42
Chips Limited Term Loan Commitment: $10,000,000.00
BANKERS TRUST
US Revolving Credit Commitment: $6,487,326.42
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2
ABN AMRO BANK N.V.
US Revolving Credit Commitment: $8,500,000.00
Chips Limited Term Loan Commitment: $10,000,000.00
THE FIRST NATIONAL BANK OF CHICAGO
US Revolving Credit Commitment: $6,487,326.42
Chips Limited Term Loan Commitment: $10,000,000.00
SAKURA BANK
US Revolving Credit Commitment: $6,487,326.42
Chips Limited Term Loan Commitment: $17,000,000.00
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
US Revolving Credit Commitment: $1,795,031.06
Chips Limited Term Loan Commitment: $10,000,000.00
NATIONAL BANK OF CANADA
US Revolving Credit Commitment: $6,487,326.42
BANQUE NATIONALE DE PARIS,
NEW YORK BRANCH
US Revolving Credit Commitment: $2,863,354.04
Chips Limited Term Loan Commitment: $10,000,000.00
ARAB BANKING CORPORATION (B.S.C)
US Revolving Credit Commitment: $4,130,434.78
DLJ CAPITAL FUNDING, INC.
US Revolving Credit Commitment: $2,173,913.04
LONG TERM CREDIT BANK OF JAPAN,
LIMITED
US Revolving Credit Commitment: $9,130,434.78
Chips Limited Term Loan Commitment: $17,000,000.00
THE BANK OF NEW YORK
US Revolving Credit Commitment: $4,130,434.78
Chips Limited Term Loan Commitment: $17,000,000.00
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3
FIRST NATIONAL BANK OF BOSTON
US Revolving Credit Commitment: $4,130,434.78
Chips Limited Term Loan Commitment: $10,000,000.00
BANQUE FRANCAISE DU COMMERCE EXTERIEUR
US Revolving Credit Commitment: $5,000,000.00
Chips Limited Term Loan Commitment: $3,000,000.00
▇▇▇ ▇▇▇▇▇▇ AMERICAN
US Revolving Credit Commitment: $2,639,751.55
BHF BANK AKTIENGESELLSCHAFT
Chips Limited Term Loan Commitment: $10,000,000.00
THE MITSUBISHI TRUST AND BANKING CORPORATION
Chips Limited Term Loan Commitment: $17,000,000.00
CAISSE NATIONALE DE CREDIT AGRICOLE
Chips Limited Term Loan Commitment: $15,000,000.00
INDUSTRIAL BANK OF JAPAN
Chips Limited Term Loan Commitment: $17,000,000.00
NATIONAL WESTMINSTER
US Revolving Credit Commitment: $2,361,490.67
Chips Limited Term Loan Commitment: $18,231,250.00
DEEPROCK & COMPANY
Chips Acquisition Term Loan Commitment: $2,000,000.00
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND, INC.
Chips Acquisition Term Loan Commitment: $5,000,000.00
DEBT STRATEGIES FUND, INC.
Chips Acquisition Term Loan Commitment: $5,000,000.00
OCTAGON CREDIT INVESTORS LOAN PORTFOLIO
Chips Acquisition Term Loan Commitment: $5,000,000.00
PILGRIM AMERICA PRIME RATE TRUST
Chips Acquisition Term Loan Commitment: $7,500,000.00
ALLSTATE INSURANCE COMPANY
Chips Acquisition Term Loan Commitment: $5,000,000.00
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PROTECTIVE LIFE INSURANCE COMPANY
Chips Acquisition Term Loan Commitment: $5,000,000.00
CANADIAN LENDERS
THE CHASE MANHATTAN BANK OF CANADA
Canadian Revolving Credit Commitment: US$5,250,000.00
CANADIAN IMPERIAL BANK OF COMMERCE
Canadian Revolving Credit Commitment: ▇▇▇▇,▇▇▇,▇▇▇.▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Revolving Credit Commitment: US$1,785,714.29
THE BANK OF NOVA SCOTIA
Canadian Revolving Credit Commitment: US$1,785,714.29
CITIBANK CANADA
Canadian Revolving Credit Commitment: US$1,785,714.29
FUJI BANK CANADA
Canadian Revolving Credit Commitment: US$1,785,714.29
ROYAL BANK OF CANADA
Canadian Revolving Credit Commitment: US$1,785,714.29
BANK OF TOKYO-MITSUBISHI (CANADA)
Canadian Revolving Credit Commitment: US$1,214,285.71
BT BANK OF CANADA
Canadian Revolving Credit Commitment: US$1,214,285.71
FIRST CHICAGO NBD BANK, CANADA
Canadian Revolving Credit Commitment: US$1,214,285.71
SAKURA BANK (CANADA)
Canadian Revolving Credit Commitment: US$1,214,285.71
THE SUMITOMO BANK OF CANADA
Canadian Revolving Credit Commitment: US$1,214,285.71
NATIONAL BANK OF CANADA
Canadian Revolving Credit Commitment: US$1,214,285.71
BANQUE NATIONALE DE PARIS (CANADA)
Canadian Revolving Credit Commitment: US$714,285.71
182
5
ENGLISH LENDERS
THE CHASE MANHATTAN BANK (acting through
its London Branch)
English Revolving Credit Commitment: L.4,500,000
Chips Revolving Credit Commitment: L.3,800,000
BANK OF BOSTON
English Revolving Credit Commitment: L.3,500,000
Chips Revolving Credit Commitment: L.3,000,000
BANK OF MONTREAL
English Revolving Credit Commitment: ▇.▇,▇▇▇,▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
English Revolving Credit Commitment: L.3,500,000
Chips Revolving Credit Commitment: L.3,750,000
BANQUE NATIONALE DE PARIS
English Revolving Credit Commitment: L.3,500,000
CITIBANK
English Revolving Credit Commitment: L.3,500,000
Chips Revolving Credit Commitment: L.3,750,000
NATIONAL WESTMINSTER PLC
English Revolving Credit Commitment: L.3,500,000
Chips Revolving Credit Commitment: L.3,800,000
ROYAL BANK OF CANADA
English Revolving Credit Commitment: L.3,500,000
Chips Revolving Credit Commitment: L.1,000,000
BANQUE FRANCAISE DU COMMERCE EXTERIEUR
English Revolving Credit Commitment: L.3,000,000
Chips Revolving Credit Commitment: L.1,000,000
SAKURA BANK
Chips Revolving Credit Commitment: L.3,750,000
183
6
BHF BANK AKTIENGESELLSCHAFT
Chips Revolving Credit Commitment: L.3,750,000
184
SCHEDULE 1.1(B) TO
CREDIT AGREEMENT
1 The rate per annum referred to in clause (b) of the definition of
"Eurocurrency Base Rate" relative to each English Loan or Chips Loan, as
the case may be, where (and to the extent that) English Lenders making
such Loans are subject to the Mandatory Liquid Asset requirements of the
Bank of England, will be, subject as hereinafter provided, for the
Interest Period relating to such Loan (or, if longer than three (3)
months, for each consecutive period for three (3) months within such
Interest Period and for any balance of such Interest Period) (which
Interest Period if not longer than three (3) months and each other such
period is herein referred to as a "Relevant Period") the percentage rate
(or the arithmetic average of the percentage rates where there is more
than one Reference Bank supplying the same) supplied by the Reference
Banks (or such of them as supply it to the English Agent) arrived at by
applying the following formula in relation to each Reference Bank:
Additional Cost = BY + L(Y-X) + S(Y-Z) % per annum
--------------------
100 - (B+S)
Where:
B = The percentage of such Reference Bank's eligible
liabilities then required to be held on a non-interest
deposit account with the Bank of England pursuant to the
cash ratio requirements of the Bank of England.
Y = The rate at which Pounds Sterling deposits in an amount
approximately equal to the principal amount of such Loan
are offered by such Reference Bank to leading banks in the
London Interbank Market at or about 11:00 a.m. on the
first day of the Relevant Period for a period comparable
to the Relevant Period.
L = The average percentage of eligible liabilities which the
Bank of England from time to time requires each Reference
Bank to maintain as secured money with members of the
London Discount Market Association and/or as secured call
money with those money brokers and gilt-edged market
makers recognized by the Bank of England.
X = The rate at which secured Pounds Sterling deposits in an
amount approximately equal to the principal amount of such
Loan may be placed by such Reference Bank with members of
the London Discount Market Association and/or as secured
call money with money brokers and gilt-edged market makers
at or about 11:00 a.m. on the first day of the Relevant
Period for a period comparable to the Relevant Period.
S = The percentage of such Reference Bank's eligible
liabilities then required to be placed as a special
deposit with the Bank of England.
185
2
Z = The percentage interest rate per annum allowed by the Bank
of England on special deposits.
For purposes of this paragraph, "eligible liabilities" and "special
deposits" shall bear the meanings ascribed to them from time to time by
the Bank of England.
2 In the application of the above formula, B, Y, L, X, S, and Z will be
included in the formula as figures and not as percentages, e.g., if B =
0.5% and Y = 15%, BY will be calculated as 0.5 x 15 and not as 0.5% x
15%.
3 The Additional Cost computed by the English Agent in accordance with
this Schedule shall be rounded upward, if necessary to four (4) decimal
places.
4 The calculation in respect of the Additional Cost for each English Loan
or Chips Loan, as the case may be, denominated in Pounds Sterling will
be made by the English Agent on the first day of each Relevant Period.
5 Calculations will be made on the basis of a year of 365 days and the
actual number of days elapsed.
6 If no Reference Bank furnishes the appropriate information for the
purposes of this Schedule, the Additional Cost shall be determined by
the English Agent on the basis of such other information and quotations
as the English Agent shall reasonably determine to be appropriate.
7 In the event of a change in circumstances (including the imposition of
alternative or additional official requirements, excluding capital
adequacy requirements) which renders the above formula inappropriate in
the reasonable opinion of the English Agent, the English Agent shall
promptly notify the English Borrower, Chips Limited or ISL, as the case
may be, and the English Lenders thereof and (after consultation with the
Reference Banks and the English Borrower, Chips Limited or ISL, as the
case may be) shall notify the English Borrower, Chips Limited or ISL, as
the case may be, of the manner in which the rate for the purposes of
paragraph (b) of the definition of "Eurocurrency Base Rate" shall
thereafter be determined (which manner shall be determined in a bona
fide manner and provide a fair assessment of the additional cost to the
English Lenders of compliance with the relevant requirements of the Bank
of England) and the English Borrower, Chips Limited or ISL, as the case
may be, and the English Lenders shall be bound thereby.