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EXHIBIT 10.30
EXECUTION COPY
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$90,000,000
CREDIT AGREEMENT
AMONG
MULTILAYER TECHNOLOGY GMBH & CO. KG,
AS BORROWER,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT,
AND
CHASE SECURITIES INC.,
AS ARRANGER
DATED AS OF OCTOBER 30, 1998
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS...........................................................................................1
1.1 Defined Terms.......................................................................................1
1.2 Other Definitional Provisions......................................................................10
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS......................................................................10
2.1 Commitments........................................................................................10
2.2 Procedure for Borrowing............................................................................10
2.3 Repayment of Loans.................................................................................11
2.4 Optional Prepayments...............................................................................11
2.5 Interest Rates and Payment Dates...................................................................12
2.6 Computation of Interest and Fees...................................................................12
2.7 Inability to Determine Floating Portion of Interest Rate...........................................13
2.8 Pro Rata Treatment and Payments....................................................................14
2.9 Requirements of Law................................................................................15
2.10 Taxes.............................................................................................16
2.11 Indemnity.........................................................................................17
2.12 Change of Lending Office..........................................................................17
2.13 Replacement of Lenders............................................................................18
SECTION 3. REPRESENTATIONS AND WARRANTIES.......................................................................18
3.1 Financial Condition................................................................................18
3.2 Existence; Compliance with Law.....................................................................19
3.3 Power; Authorization; Enforceable Obligations......................................................19
3.4 No Legal Bar.......................................................................................19
3.5 Litigation.........................................................................................19
3.6 No Default.........................................................................................20
3.7 Ownership of Property; Liens.......................................................................20
3.8 Intellectual Property..............................................................................20
3.9 Subsidiaries.......................................................................................20
3.10 Use of Proceeds...................................................................................20
3.11 Security Documents................................................................................20
3.12 Year 2000 Matters.................................................................................21
3.13 Certain Documents.................................................................................21
3.14 Withholding Tax...................................................................................21
3.15 No Filing.........................................................................................21
3.16 Proper Form.......................................................................................22
3.17 Choice of Law.....................................................................................22
SECTION 4. CONDITIONS PRECEDENT.................................................................................22
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Page
SECTION 5. AFFIRMATIVE COVENANTS................................................................................24
5.1 Financial Statements...............................................................................24
5.2 Certificates; Other Information....................................................................24
5.3 Payment of Obligations.............................................................................25
5.4 Maintenance of Existence; Compliance. .............................................................25
5.5 Maintenance of Property; Insurance.................................................................25
5.6 Inspection of Property; Books and Records; Discussions.............................................25
5.7 Notices............................................................................................26
5.8 Environmental Laws.................................................................................26
5.9 Additional Collateral, etc.........................................................................26
SECTION 6. EVENTS OF DEFAULT....................................................................................27
SECTION 7. THE ADMINISTRATIVE AGENT.............................................................................29
7.1 Appointment........................................................................................29
7.2 Delegation of Duties...............................................................................29
7.3 Exculpatory Provisions.............................................................................30
7.4 Reliance by Administrative Agent...................................................................30
7.5 Notice of Default..................................................................................30
7.6 Non-Reliance on Administrative Agent and Other Lenders.............................................30
7.7 Indemnification....................................................................................31
7.8 Administrative Agent in Its Individual Capacity....................................................31
7.9 Successor Administrative Agent.....................................................................32
7.10 Authorization to Release Guarantees and Liens.....................................................32
SECTION 8. MISCELLANEOUS........................................................................................32
8.1 Amendments and Waivers.............................................................................32
8.2 Notices............................................................................................33
8.3 No Waiver; Cumulative Remedies.....................................................................34
8.4 Survival of Representations and Warranties.........................................................34
8.5 Payment of Expenses and Taxes......................................................................34
8.6 Successors and Assigns; Participations and Assignments.............................................35
8.7 Adjustments; Set-off...............................................................................37
8.8 Counterparts.......................................................................................37
8.9 Severability.......................................................................................37
8.10 Integration.......................................................................................38
8.11 GOVERNING LAW.....................................................................................38
8.12 Submission To Jurisdiction; Waivers...............................................................38
8.13 Acknowledgements..................................................................................38
8.14 Confidentiality...................................................................................39
8.15 Accounting Changes............................................................................39
8.16 Judgment......................................................................................39
8.17 Collateral Agent as Secured Creditor..........................................................40
8.18 WAIVERS OF JURY TRIAL.............................................................................40
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Page
SCHEDULES:
1.1A Commitments
1.1B Premium Schedule
3.3 Consents, Authorizations, Filings and Notices
3.11(a) Filing Jurisdictions
EXHIBITS:
A List of German Security Agreements
B Form of Closing Certificate
C Form of Assignment and Acceptance
D-1 Form of Legal Opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & ▇▇▇▇▇
▇-▇ Form of Legal Opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇
D-3 Form of Legal Opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Konig
D-4 Form of Legal Opinion of Loeff Claeyes ▇▇▇▇▇▇▇
E Form of Guarantee Agreement
F Form of Guarantee and Collateral Agreement
G Form of Intercreditor Agreement
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CREDIT AGREEMENT, dated as of October 30, 1998, among
MULTILAYER TECHNOLOGY GMBH & CO. KG, a German limited partnership (the
"Borrower"), the several banks and other financial institutions or entities from
time to time parties to this Agreement (the "Lenders"), and THE CHASE MANHATTAN
BANK, as administrative agent.
W I T N E S S E T H
WHEREAS, pursuant to the Acquisition Agreement (such
capitalized term and other capitalized terms used without definition in these
recitals being used with the meanings given such terms in Section 1.1) the
Borrower will acquire from Hewlett-Packard GmbH certain assets used in the
manufacturing of certain printed circuit boards, including the premises used for
such manufacturing at its facility located in Boblingen, Germany; and
WHEREAS, to finance, in part, the cost of the Acquisition
(including specified assumed liabilities), and the payment of fees and expenses
relating thereto, the Borrower has requested the Lenders to make available the
credit facilities described herein; and
WHEREAS, the Lenders are willing to make such credit
facilities available upon and subject to the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter set forth, the parties hereto hereby agree as
follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed
in this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"ABR": 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 Reference Lender as its prime rate in effect
at its principal office in New York City (the Prime Rate not being intended to
be the lowest rate of interest charged by the Reference Lender in connection
with extensions of credit to debtors); "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; and "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
Reference Lender from three New York City negotiable
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certificate of deposit dealers of recognized standing selected by it. Any change
in the ABR due to a change in the Prime Rate, the Three-Month Secondary CD Rate
or the Federal Funds Effective Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate, respectively.
"Acquisition": the purchase by the Borrower from
Hewlett-Packard GmbH of certain assets used in the manufacturing of certain
printed circuit boards, including the premises used for such manufacturing at
Hewlett-Packard GmbH's facility located at Boblingen, Germany, and the
assumption of certain specified liabilities, pursuant to the Acquisition
Agreement.
"Acquisition Agreement": the Master Asset Purchase Agreement,
dated as of October 30, 1998, by and among the Seller, the Borrower and DII.
"Acquisition Documentation": collectively, the Acquisition
Agreement and all schedules, exhibits and annexes thereto and all side letters
and agreements affecting the terms thereof or entered into in connection
therewith (including, without limitation, the Division Purchase Agreement), in
each case as amended, supplemented or otherwise modified from time to time.
"Administrative Agent": The Chase Manhattan Bank, together
with its affiliates, as the arranger of the Commitments and as the
administrative agent for the Lenders under this Agreement and the other Loan
Documents, together with any of its successors.
"Affiliate": as to any Person, any other Person that, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person means
the power, directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power or, if no securities are issued,
exercise 10% or more of the voting rights, for the election of directors (or
persons performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Arranger": Chase Securities Inc., as arranger of the
Commitments.
"Assignee": as defined in Section 8.6(c).
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit C.
"Assignor": as defined in Section 8.6(c).
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"Benefitted Lender": as defined in Section 8.7(a).
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close, provided, that with respect to notices and determinations in
connection with, and payments of principal and interest on, Loans, such day is
also a day for trading by and between banks in Dollar deposits in the interbank
eurodollar market.
"Capital Lease Obligations": as to any Person, the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"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, rights or options to purchase any of the foregoing.
"C/D Assessment Rate": for any day, the annual assessment rate
in effect on such day that is payable by a member of the Bank Insurance Fund
maintained by the Federal Deposit Insurance Corporation (the "FDIC") classified
as well-capitalized and within supervisory subgroup "B" (or a comparable
successor assessment risk classification) within the meaning of 12 C.F.R. ss.
327.4 (or any successor provision) to the FDIC (or any successor) for the FDIC's
(or such successor's) insuring time deposits at offices of such institution in
the United States.
"C/D Reserve Percentage": for any day, 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 Depositary
Institution (as defined in Regulation D of the Board as in effect from time to
time) in respect of new non-personal time deposits in Dollars having a maturity
of 30 days or more.
"Change of Control": either of the following events: (a) a
"Change of Control" (as defined in the DII Credit Agreement) shall occur or (b)
DII shall cease to own, directly or indirectly, 100% of the Capital Stock of the
Borrower.
"Closing Date": the date on which the conditions precedent set
forth in Section 4 shall have been satisfied, which date is the date hereof.
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"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": all property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any Security
Document.
"Collateral Agent": The Chase Manhattan Bank, together with
its affiliates, as collateral agent pursuant to the terms of the Intercreditor
Agreement.
"Commitment": as to any Lender, the obligation of such Lender
to make a Loan to the Borrower hereunder in a principal amount not to exceed the
amount set forth under the heading "Commitment" opposite such Lender's name on
Schedule 1.1A. The original aggregate amount of the Commitments is $90,000,000.
"Confidential Information Memorandum": the Confidential
Information Memorandum dated October 1998 and furnished to the Lenders.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CV": DII International Holdings C.V., which is a wholly owned
Netherlands subsidiary of DII and the indirect parent of the Borrower.
"Default": any of the events specified in Section 6, whether
or not any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Derivative Agreements": of any Person at any date, swaps,
caps or collar agreements or similar arrangements to which such Person and any
financial institution, commodities or stock exchange or clearinghouse (a
"Derivatives Counterparty") are parties under which such parties agree to
exchange payments based upon interest rates, exchange rates or market prices or
values or changes therein in respect of debt obligations or equities, currencies
or commodities or indexes in respect of any of the foregoing without delivery of
the same (including, whether or not otherwise included in the foregoing, options
granted or written by such Person in favor of a Derivatives Counterparty
intended to be settled in cash.)
"DII": The DII Group, Inc., a Delaware corporation.
"DII Credit Agreement": the Credit Agreement, dated as of the
date hereof, among DII, the Subsidiary Borrowers from time to time parties
thereto, the lenders named therein and The Chase Manhattan Bank, as
administrative agent, as the same may be amended, supplemented or otherwise
modified from time to time.
"Division Purchase Agreement": the Division Purchase
Agreement, dated as of October 30, 1998, between Hewlett-Packard Company and
Multilayer Technology.
"Dollars" and "$": dollars in lawful currency of the United
States.
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"DOVatron": DOVatron Verwaltungs GmbH, a German limited
liability company which is a limited partner of the Borrower owning 100% of the
limited partnership interest in the Borrower.
"Environmental Laws": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, 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.
"Eurocurrency Reserve Requirements": for any day, the
aggregate (without duplication) of the maximum rates (expressed as a decimal
fraction) of reserve requirements in effect on such day (including basic,
supplemental, marginal and emergency reserves under any regulations of the Board
or other Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board)
maintained by a member bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period, the rate per annum determined on the basis of the rate for
deposits in Dollars for a period equal to such Interest Period commencing on the
first day of such Interest Period appearing on Page 3750 of the Dow ▇▇▇▇▇
Markets screen as of 11:00 A.M., London time, two Business Days prior to the
beginning of such Interest Period. In the event that such rate does not appear
on Page 3750 of the Dow ▇▇▇▇▇ Markets screen (or otherwise on such screen), the
"Eurodollar Base Rate" shall be determined by reference to such other comparable
publicly available service for displaying eurodollar rates as may be selected by
the Administrative Agent or, in the absence of such availability, by reference
to the rate at which the Administrative Agent is offered Dollar deposits at or
about 11:00 A.M., New York City time, two Business Days prior to the beginning
of such Interest Period in the interbank eurodollar market where its eurodollar
and foreign currency and exchange operations are then being conducted for
delivery on the first day of such Interest Period for the number of days
comprised therein.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Loan, a rate per annum determined for such day
in accordance with the following formula (rounded upward to the nearest 1/100th
of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 6,
provided that any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Excluded Foreign Subsidiary": any Subsidiary of DII that is
not organized under the laws of any jurisdiction within the United States in
respect of which either (a) the pledge of
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all of the Capital Stock of such Subsidiary as Collateral or (b) the
guaranteeing by such Subsidiary of the Obligations (as defined in the Guarantee
and Collateral Agreement), would, in the good faith judgment of DII, result in
adverse tax, legal or regulatory consequences to DII.
"Federal Funds Effective Rate": for any day, the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average of
the quotations for the day of such transactions received by the Reference Lender
from three federal funds brokers of recognized standing selected by it.
"Funding Office": the office of the Administrative Agent
specified in Section 8.2 or such other office as may be specified from time to
time by the Administrative Agent as its funding office by written notice to the
Borrower and the Lenders.
"GAAP": generally accepted accounting principles in the United
States as in effect from time to time.
"German Security": the collective reference to the agreements
set forth on Exhibit A, each in form and substance satisfactory to the
Administrative Agent.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof, any international or supranational
organization, any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative functions of or pertaining to government,
any securities exchange and any self-regulatory organization (including the
National Association of Insurance Commissioners).
"Guarantee Agreement": the Guarantee Agreement to be made by
DII, CV, Multilayer and DOVatron in favor of the Collateral Agent for the
benefit of the Lenders, substantially in the form of Exhibit E, as the same may
be amended, supplemented or otherwise modified from time to time.
"Guarantee and Collateral Agreement": the Guarantee and
Collateral Agreement to be executed and delivered by DII and each of its
Subsidiaries (other than Excluded Foreign Subsidiaries and Immaterial
Subsidiaries (as defined in the DII Credit Agreement)), substantially in the
form of Exhibit F, as the same may be amended, supplemented or otherwise
modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another Person
(including 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,
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including 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 (other than pursuant to a contractual right to
indemnity (other than in respect of Indebtedness) in connection with
acquisitions or dispositions in accordance with the past practice of DII), (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 Borrower in good faith.
"Guarantors": the collective reference to DII, CV, Multilayer,
DOVatron and the Guarantors named in the Guarantee and Collateral Agreement.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than current trade payables incurred in the ordinary course of
such Person's business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such property), (e) all Capital Lease Obligations of
such Person, (f) all obligations of such Person, contingent or otherwise, as an
account party under acceptance, letter of credit or similar facilities, (g) the
liquidation value of all redeemable preferred Capital Stock of such Person, (h)
all Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (g) above; (i) all obligations of the kind
referred to in clauses (a) through (h) above secured by (or for which the holder
of such obligation has an existing right, contingent or otherwise, to be secured
by) any Lien on property (including accounts and contract rights) owned by such
Person, whether or not such Person has assumed or become liable for the payment
of such obligation; and (j) for the purposes of Section 6(e) only, all
obligations of such Person in respect of Derivative Agreements.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, German, multinational or foreign laws or otherwise,
including copyrights, copyright licenses, patents,
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patent licenses, trademarks, trademark licenses, technology, know-how and
processes, and all rights to ▇▇▇ at law or in equity for any infringement or
other impairment thereof, including the right to receive all proceeds and
damages therefrom.
"Intercreditor Agreement": the Collateral Agency and
Intercreditor Agreement to be entered into among The Chase Manhattan Bank, as
collateral agent, each of the Lenders and each Lender under the DII Credit
Agreement, substantially in the form of Exhibit G, as the same may be amended,
supplemented or otherwise modified from time to time.
"Interest Payment Date": the last day of each Interest Period
and the date of any repayment or prepayment made in respect of the Loans.
"Interest Period": as to any Loan, (a) initially, the period
commencing on the Closing Date and ending three months thereafter; and (b)
thereafter, each period commencing on the last day of the next preceding
Interest Period and ending three months thereafter; provided that, all of the
foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately preceding
Business Day; and
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar
month.
"Lenders": as defined in the preamble hereto.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement, the Security Documents and
the Intercreditor Agreement.
"Loan Parties": the Borrower, each Guarantor and each other
Subsidiary of DII that is a party to a Loan Document.
"Material Adverse Effect": a material adverse effect on (a)
the Acquisition, (b) the business, property, operations, condition (financial or
otherwise) or prospects of the
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Borrower and its Subsidiaries taken as a whole or DII and its Subsidiaries taken
as a whole or (c) the validity or enforceability of this Agreement or any of the
other Loan Documents or the rights or remedies of the Administrative Agent or
the Lenders hereunder or thereunder.
"Multilayer": Multilayer Technology Geschaftsfuhrungs GmbH, a
German limited liability company which is the general partner of the Borrower.
"Non-Excluded Taxes": as defined in Section 2.10(a).
"Other Taxes": any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Participant": as defined in Section 8.6(b).
"Percentage": as to any Lender at any time, the percentage
which such Lender's Commitment then constitutes of the aggregate Commitments
(or, at any time after the Closing Date, the percentage which the aggregate
principal amount of such Lender's Loans then outstanding constitutes of the
aggregate principal amount of the Loans then outstanding).
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Pledge Agreement": the Pledge Agreement to be made by
DOVatron Nevada, Inc. and DOVatron Mexico, Inc. in favor of the Collateral Agent
for the ratable benefit of the Lenders, in form and substance satisfactory to
the Administrative Agent, pursuant to which the pledgors pledge 35% of their
interest in CV to the Collateral Agent for the ratable benefit of the Lenders,
as the same may be amended, supplemented or otherwise modified from time to
time.
"Premium": an amount determined in accordance with Schedule
1.1B.
"Pro Forma Balance Sheet": as defined in Section 3.1.
"Reference Lender": The Chase Manhattan Bank.
"Register": as defined in Section 8.6(d).
"Required Lenders": at any time, the holders of more than 50%
of (a) until the Closing Date, the Commitments then in effect and (b)
thereafter, the aggregate unpaid principal amount of the Loans then outstanding.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in
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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": the chief executive officer, president,
chief financial officer or the executive vice president of finance of the
Borrower or DII, as the case may be, but in any event, with respect to financial
matters, the chief financial officer or the executive vice president of finance
of the Borrower or DII, as the case may be.
"Security Documents": the collective reference to the
Guarantee Agreement, the German Security Documents, the Pledge Agreement, the
Guarantee and Collateral Agreement and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any property of any
Person to secure the obligations and liabilities of any Loan Party under any
Loan Document.
"Seller": Hewlett-Packard GmbH, a German limited liability
company.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.
"Transferee": any Assignee or Participant.
"United States": the United States of America.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings as used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto, (i)
accounting terms relating to the Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP, (ii)
the words "include", "includes" and "including" shall be deemed to be followed
by the phrase "without limitation", (iii) the word "incur" shall be construed to
mean incur, create, issue, assume, become liable in respect of or suffer to
exist (and the words "incurred" and "incurrence" shall have correlative
meanings), and (iv) the words "asset" and "property" shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, Capital Stock, securities, revenues,
accounts, leasehold interests and contract rights.
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(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,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments. Subject to the terms and conditions hereof,
each Lender severally agrees to make a term loan (a "Loan") to the Borrower on
the Closing Date in an amount not to exceed the amount of the Commitment of such
Lender.
2.2 Procedure for Borrowing. The Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 11:00 A.M., New York City time, two Business Days
prior to the anticipated Closing Date) requesting that the Lenders make the
Loans on the Closing Date and specifying the amount to be borrowed. Upon receipt
of such notice the Administrative Agent shall promptly notify each Lender
thereof. Not later than 12:00 Noon, New York City time, on the Closing Date each
Lender shall make available to the Administrative Agent at the Funding Office an
amount in immediately available funds equal to the Loan to be made by such
Lender. The Administrative Agent shall make the proceeds of the Loans available
to the Borrower in like funds as received by the Administrative Agent from the
Lenders.
2.3 Repayment of Loans. (a The Loan of each Lender shall
mature and be payable in full on the fifth anniversary of the Closing Date.
(b) The Borrower hereby unconditionally promises to pay to
the Administrative Agent for the account of each Lender the principal amount of
the Loan of such Lender as set forth in paragraph (a) above (or on such earlier
date on which the Loans become due and payable pursuant to Section 6). The
Borrower hereby further agrees to pay interest on the unpaid principal amount of
the 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 Section 2.5.
(c) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from the Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time in respect of such Loan under this Agreement.
(d) The Administrative Agent, on behalf of the Borrower,
shall maintain the Register pursuant to Section 8.6(d), and a subaccount therein
for each Lender, in which shall be recorded (i) the amount of each Loan made
hereunder and each Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from
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the Borrower to each Lender hereunder and (iii) both the amount of any sum
received by the Administrative Agent hereunder from the Borrower and each
Lender's share thereof.
(e) The entries made in the Register and the accounts of
each Lender maintained pursuant to Section 2.3(c) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loan of such
Lender in accordance with the terms of this Agreement.
2.4 Optional Prepayments. The Borrower may at any time prepay
the Loans, in whole but not in part, upon irrevocable notice delivered to the
Administrative Agent at least three Business Days prior to the date of
prepayment, which notice shall specify the date of prepayment; provided, that
(i) the Borrower shall, at the time of such prepayment, pay to the
Administrative Agent for the ratable benefit of the Lenders, the Premium
calculated as of the date of such prepayment and (ii) if the Loans are prepaid
on any day other than the last day of the Interest Period applicable thereto,
the Borrower shall also pay any amounts owing pursuant to Section 2.11. Upon
receipt of any such notice the Administrative Agent shall promptly notify each
Lender thereof. If any such notice is given, the entire principal amount of the
Loans shall be due and payable on the date specified therein, together with the
Premium and accrued interest to such date and any amounts payable pursuant to
Section 2.11.
2.5 Interest Rates and Payment Dates. (a) The Loans shall
bear interest for each Interest Period at a per annum rate of interest comprised
of a fixed rate component and a variable rate component, as follows:
(i) a fixed rate component calculated at the rate per
annum of 6.667% on the aggregate principal amount of the Loans; and
(ii) a variable rate component calculated at the rate per
annum determined in accordance with the following formula:
VR = ER+2.00% x N
--------
3
where:
VR = variable interest rate per annum
ER = Eurodollar Rate determined for such
Interest Period; provided, that
with respect to the interest rate
for the initial Interest Period
commencing on the Closing Date, ER
shall be a rate to be determined by
the Administrative Agent.
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N = a notional amount equal initially
to $90,000,000, which notional
amount will be reduced by $4,500,000
on each Interest Payment Date;
provided, that no such reduction
shall occur on any such scheduled
reduction date if any Default
described in Section 6(a) shall have
occurred and be continuing.
(b) (i) If all or a portion of the principal amount of, or
interest or Premium on, any Loan or any fee or other amount payable hereunder
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to
the ABR plus 2%, from the date of such non-payment until such amount is paid in
full (as well after as before judgment).
(c) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (b) of this
Section shall be payable from time to time on demand.
2.6 Computation of Interest and Fees. (a) Interest and fees
payable pursuant hereto shall be calculated on the basis of a 360-day year for
the actual days elapsed. The Administrative Agent shall as soon as practicable
notify the Borrower and the Lenders of each determination of the Eurodollar
Rate. Any change in the interest rate on a Loan resulting from a change in the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to Section
2.6(a).
2.7 Inability to Determine Floating Portion of Interest Rate.
If prior to the first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Required Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their Loans during such Interest
Period,
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the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given all outstanding Loans shall on the last day of the then current
Interest Period and until such notice has been withdrawn by the Administrative
Agent bear interest comprised of a fixed rate component and a variable rate
component, as follows:
(i) a fixed rate component calculated at the rate per
annum of 6.667% on the aggregate principal amount of the Loans; and
(ii) a variable rate component calculated at the rate per
annum determined in accordance with the following formula:
VR = ABR+0.50% x N
---------
3
where:
VR = variable interest rate per annum
ABR = (as defined in Section 1.1)
N = a notional amount equal initially
to $90,000,000, which notional
amount will be reduced by $4,500,000
on each Interest Payment Date;
provided, that no such reduction
shall occur on any such scheduled
reduction date if any Default
described in Section 6(a) shall have
occurred and be continuing.
2.8 Pro Rata Treatment and Payments. (a) The borrowing by the
Borrower from the Lenders hereunder shall be made pro rata according to the
respective Percentages of the Lenders.
(b) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on (including any Premium) the Loans
shall be made pro rata according to the respective outstanding principal amounts
of the Loans then held by the Lenders. Each payment in respect of the Loans
shall be applied first to accrued and unpaid interest and Premium and then to
principal. Amounts prepaid on account of the Loans may not be reborrowed.
(c) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, Premium, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Funding Office, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment on a Loan becomes due and payable on a day other than a Business Day,
the maturity thereof shall
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be extended to the next succeeding Business Day 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. In
the case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable rate
during such extension.
(d) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Closing Date, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon at a rate
equal to the daily average Federal Funds Effective Rate for the period until
such Lender makes such amount immediately available to the Administrative Agent.
A certificate of the Administrative Agent submitted to any Lender with respect
to any amounts owing under this paragraph shall be conclusive in the absence of
manifest error. If such Lender's share of such borrowing is not made available
to the Administrative Agent by such Lender within three Business Days of the
Closing Date, the Administrative Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to the Loans, on
demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified
in writing by the Borrower prior to the date of any payment being made hereunder
that the Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Lenders their respective pro rata shares
of a corresponding amount. If such payment is not made to the Administrative
Agent by the Borrower within three Business Days of such required date, the
Administrative Agent shall be entitled to recover, on demand, from each Lender
to which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit
the rights of the Administrative Agent or any Lender against the Borrower.
2.9 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Loan made by it, any
other Loan Document or any present or future assignment or
participation agreement contemplated by Section 8.6 or change the basis
of taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes to the extent that they are to be borne by the
Borrower pursuant to Section 2.10 and
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Excluded Taxes and except for changes in the rate of tax on the
overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender that is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, continuing or
maintaining Loans, or to reduce any amount receivable hereunder or under any
other Loan Document or any present or future assignment or participation
agreement contemplated by Section 8.6 in respect thereof, then, in any such
case, the Borrower shall promptly pay such Lender, upon its demand, any
additional amounts necessary to compensate such Lender for such increased cost
or reduced amount receivable, provided that such Lender shall have given
reasonable notice to the Borrower within 180 days after it becomes aware or, in
the exercise of reasonable care, should have been aware of the event giving rise
to such payment obligation. If any Lender becomes entitled to claim any
additional amounts pursuant to this paragraph, it shall promptly notify the
Borrower (with a copy to the Administrative Agent) of the event by reason of
which it has become so entitled.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, after submission by such Lender to the
Borrower (with a copy to the Administrative Agent) of a written request
therefor, the Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender for such reduction, provided that such
Lender shall have given reasonable notice to the Borrower within 180 days after
it becomes aware or, in the exercise of reasonable care, should have been aware
of the event giving rise to such payment obligation.
(c) A certificate as to any additional amounts payable
pursuant to this Section submitted by any Lender to the Borrower (with a copy to
the Administrative Agent) shall be conclusive in the absence of manifest error.
The obligations of the Borrower pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
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2.10 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) ("Excluded Taxes") imposed on the Administrative Agent or any
Lender as a result of a present or former connection between the Administrative
Agent or such Lender and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from the Administrative Agent or
such Lender or a Participant having been a party to or having executed,
delivered or performed its obligations or received a payment under, or enforced
or accepted, this Agreement, any other Loan Document, the DII Credit Agreement
or any other document (including, without limitation, any present or future
assignment or participation agreement contemplated by Section 8.6 which has been
or in the future will be executed in connection therewith) and other than
arising from the Administrative Agent, the Collateral Agent, a Lender or a
Participant being or becoming an Affiliate of the Borrower). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") or Other Taxes are required to be withheld
from any amounts payable to the Administrative Agent or any Lender or a
Participant hereunder or under any present or future assignment or participation
agreement contemplated by Section 8.6, the amounts so payable to the
Administrative Agent or such Lender or such Participant shall be increased to
the extent necessary to yield to the Administrative Agent or such Lender or such
Participant (after payment of all Non-Excluded Taxes and Other Taxes) interest
or any such other amounts payable hereunder or under any present or future
assignment or participation agreement contemplated by Section 8.6 at the rates
or in the amounts specified in this Agreement, provided, however, that the
Borrower shall not be required to increase any such amounts payable to any
Lender with respect to any Non-Excluded Taxes that are attributable to such
Lender's failure to comply with the requirements of paragraph (d) of this
Section.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable
by the Borrower, as promptly as possible thereafter the Borrower shall send to
the Administrative Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof, if available. If the Borrower
fails to pay any Non-Excluded Taxes or Other Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent the required
receipts or other required documentary evidence, the Borrower shall indemnify
the Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure.
(d) A Lender that is entitled to an exemption from or
reduction of non-U.S. withholding tax under the law of the jurisdiction in which
the Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by
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applicable law or reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided that such
Lender is legally entitled to complete, execute and deliver such documentation
and in such Lender's judgment such completion, execution or submission would not
materially prejudice the legal position of such Lender.
(e) The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.11 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense that such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of or continuation of Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
default by the Borrower in making any prepayment of Loans after the Borrower has
given a notice thereof in accordance with the provisions of this Agreement or
(c) the making of a prepayment of Loans on a day that is not the last day of an
Interest Period with respect thereto. Such indemnification may include an amount
equal to the excess, if any, of (i) the amount of interest that would have
accrued on the amount so prepaid, or not so borrowed or continued, for the
period from the date of such prepayment or of such failure to borrow or continue
to the last day of such Interest Period (or, in the case of a failure to borrow
or continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein over (ii) the amount of interest (as reasonably determined by such
Lender) that would have accrued to such Lender on such amount by placing such
amount on deposit for a comparable period with leading banks in the interbank
eurodollar market. A certificate as to any amounts payable pursuant to this
Section submitted to the Borrower by any Lender shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
2.12 Change of Lending Office. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of Section 2.9 or
2.10(a) with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of any Borrower or the rights of any Lender
pursuant to Section 2.9 or 2.10(a).
2.13 Replacement of Lenders. The Borrower shall be permitted
to replace any Lender that (a) requests reimbursement for amounts owing pursuant
to Section 2.9 or 2.10(a) or (b) defaults in its obligation to make Loans
hereunder, with a replacement financial institution; provided that (i) such
replacement does not conflict with any Requirement of Law, (ii) no Event of
Default shall have occurred and be continuing at the time of such replacement,
(iii) prior to any such replacement, such Lender shall have taken no action
under Section 2.12 so as to
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eliminate the continued need for payment of amounts owing pursuant to Section
2.9 or 2.10(a), (iv) the replacement financial institution shall purchase, at
par, all Loans and other amounts owing to such replaced Lender on or prior to
the date of replacement, (v) the Borrower shall be liable to such replaced
Lender under Section 2.11 if any Loan owing to such replaced Lender shall be
purchased other than on the last day of the Interest Period relating thereto,
(vi) the replacement financial institution, if not already a Lender, shall be
reasonably satisfactory to the Administrative Agent, (vii) the replaced Lender
shall be obligated to make such replacement in accordance with the provisions of
Section 8.6 (provided that the Borrower shall be obligated to pay the
registration and processing fee referred to therein), (viii) until such time as
such replacement shall be consummated, the Borrower shall pay all additional
amounts (if any) required pursuant to Section 2.9 or 2.10, as the case may be,
and Section 8.6(b) and (ix) any such replacement shall not be deemed to be a
waiver of any rights that the Borrower, the Administrative Agent or any other
Lender shall have against the replaced Lender.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:
3.1 Financial Condition. The unaudited pro forma balance
sheet of the Borrower as at the Closing Date (the "Pro Forma Balance Sheet"),
copies of which have heretofore been furnished to each Lender, has been prepared
giving effect (as if such events had occurred on such date) to (i) the
consummation of the Acquisition, (ii) the Loans to be made on the Closing Date
and the use of proceeds thereof and (iii) the payment of fees and expenses in
connection with the foregoing. The Pro Forma Balance Sheet has been prepared
based on the best information available to the Borrower as of the date of
delivery thereof, and presents fairly on a pro forma basis the estimated
financial position of Borrower as at the Closing Date, assuming that the events
specified in the preceding sentence had actually occurred at such date. The
Borrower does not have any material Guarantee Obligations, contingent
liabilities and liabilities for taxes, or any long-term leases or unusual or
long-term commitments, including any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, that are not
reflected in the Pro Forma Balance Sheet.
3.2 Existence; Compliance with Law. The Borrower (a) is a
duly organized and validly existing limited partnership and is registered under
No. HRA2264 in the commercial register of Boblingen under the laws of Germany,
(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, and (c) 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
Effect.
3.3 Power; Authorization; Enforceable Obligations. The
Borrower and Multilayer each have the power and authority, and the legal right,
to make, deliver and perform the Loan Documents and the Acquisition Documents to
which the Borrower is a party and to
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borrow hereunder and to consummate the Acquisition. The Borrower and Multilayer
have taken all necessary action to authorize the execution, delivery and
performance of the Loan Documents to which the Borrower is a party and to
authorize the borrowings on the terms and conditions of this Agreement. 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 Acquisition and the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement
or any of the Loan Documents, except (i) consents, authorizations, filings and
notices described in Schedule 3.3, which consents, authorizations, filings and
notices have been obtained or made and are in full force and effect and (ii) the
actions referred to in Section 3.11. Each Loan Document to which the Borrower is
a party has been duly executed and delivered on behalf of the Borrower. This
Agreement constitutes, and each other Loan Document to which the Borrower is a
party upon execution will constitute, a legal, valid and binding obligation of
the Borrower, enforceable against the Borrower 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).
3.4 No Legal Bar. The execution, delivery and performance of
this Agreement and the other Loan Documents, the borrowings hereunder, the use
of the proceeds thereof and the consummation of the Acquisition will not violate
any Requirement of Law or any Contractual Obligation of the Borrower and/or
Multilayer and will not result in, or require, the creation or imposition of any
Lien on any of their properties or revenues pursuant to any Requirement of Law
or any such Contractual Obligation (other than the Liens created by the Security
Documents). No Requirement of Law or Contractual Obligation applicable to the
Borrower and/or Multilayer could reasonably be expected to have a Material
Adverse Effect.
3.5 Litigation. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrower, threatened by or against the Borrower and/or
Multilayer or against any of their properties or revenues (a) with respect to
any of the Loan Documents or any of the transactions contemplated hereby or
thereby or the Acquisition, or (b) that could reasonably be expected to have a
Material Adverse Effect.
3.6 No Default. The Borrower is not in default under or with
respect to any of its Contractual Obligations in any respect that could
reasonably be expected to have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing.
3.7 Ownership of Property; Liens. The Borrower has good and
marketable title to, or a valid leasehold interest in, all its real property,
and good title to, or a valid leasehold interest in, all its other property, and
none of such property is subject to any Lien except as permitted by the
Guarantee Agreement.
3.8 Intellectual Property. The Borrower owns, or is licensed
to use, all Intellectual Property necessary for the conduct of its business as
currently conducted. No
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material claim has been asserted and is pending by any Person challenging or
questioning the use of any Intellectual Property or the validity or
effectiveness of any Intellectual Property, nor does the Borrower know of any
valid basis for any such claim. The use of Intellectual Property by the Borrower
does not infringe on the rights of any Person in any material respect.
3.9 Subsidiaries. The Borrower has no Subsidiaries on the
Closing Date.
3.10 Use of Proceeds. The proceeds of the Loans shall be used
to finance the Acquisition and to pay related fees and expenses.
3.11 Security Documents. (a) The Guarantee and Collateral
Agreement is effective to create in favor of the Collateral Agent, for the
benefit of the Lenders, a legal, valid and enforceable security interest in the
Collateral described therein and proceeds thereof. In the case of the
certificated Pledged Stock described in the Guarantee and Collateral Agreement,
when stock certificates representing such Pledged Stock are delivered to the
Collateral Agent, and in the case of the other Collateral described in the
Guarantee and Collateral Agreement, when financing statements and other filings
specified on Schedule 6.19 to the DII Credit Agreement are filed in the offices
specified in such schedule, the Guarantee and Collateral Agreement shall
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the parties to the Guarantee and Collateral Agreement in such
Collateral and the proceeds thereof, as security for the obligations of DII
under the Guarantee Agreement and the obligations and liabilities of the
Borrowers (as defined in the DII Credit Agreement) under the DII Credit
Agreement, in each case prior and superior in right to any other Person (except,
in the case of Collateral other than Pledged Stock, Liens permitted by the
Guarantee Agreement).
(b) Each of the Security Documents (other than the Guarantee
and Collateral Agreement) is effective to create in favor of the Collateral
Agent, for the benefit of the Lenders, a legal, valid and enforceable security
interest in the collateral described therein and proceeds thereof. In the case
of the collateral described in such Security Documents, when the appropriate
actions are taken under relevant foreign laws (as specified in such Security
Documents), such Security Documents shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of each of the relevant
grantors parties thereto in such collateral and the proceeds thereof, as
security for the obligations of the Borrower and the other Loan Parties
hereunder and under the other Loan Documents, in each case prior and superior in
right to any other Person (except Liens permitted by the Guarantee Agreement).
3.12 Year 2000 Matters. Any reprogramming required to permit
the proper functioning (but only to the extent that such proper functioning
would otherwise be impaired by the occurrence of the year 2000) in and following
the year 2000 of computer systems and other equipment containing embedded
microchips material to the conduct of business, in either case owned or operated
by the Borrower or used or relied upon in the conduct of its business (including
any such systems and other equipment supplied by others or with which the
computer systems of the Borrower interface), and the testing of all such systems
and other equipment as so reprogrammed in all material respects, will be
completed by October 1, 1999. The costs to the Borrower that have not been
incurred as of the date hereof for such reprogramming and testing
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and for the other reasonably foreseeable consequences to them of any improper
functioning of other computer systems and equipment containing embedded
microchips due to the occurrence of the year 2000 could not reasonably be
expected to result in a Default or Event of Default or to have a Material
Adverse Effect. Except for any reprogramming referred to above, the computer
system of the Borrower is and, with ordinary course upgrading and maintenance,
will continue for the term of this Agreement to be, sufficient for the conduct
of its business as currently conducted.
3.13 Certain Documents. The Borrower has delivered to each
Lender a complete and correct copy of the Acquisition Documentation, including
any amendments, supplements or modifications with respect to any of the
foregoing.
3.14 Withholding Tax. (a) There is no tax, levy, impost,
deduction, charge or withholding imposed, levied or made by or in Germany or any
political subdivision or taxing authority thereof or therein either (i) on or by
virtue of the execution or delivery of this Agreement or any of the other Loan
Documents (or any other document including, without limitation, any present or
future assignment or participation agreement contemplated by Section 8.6, which
has been or in the future will be executed in connection therewith) or (ii) on
any payment to be made by the Borrower pursuant to this Agreement or any of the
other Loan Documents or on any payment to be made by the Borrower, the
Administrative Agent, the Collateral Agent or any Lender to any Participant. The
Borrower is permitted to make all payments pursuant to this Agreement or any
other Loan Document or any other document executed in connection therewith, and
each Lender, the Administrative Agent and the Collateral Agent are and also in
the future will be permitted to make payments to any Participant free and clear
of all taxes, levies, imposts, deductions, charges or withholdings imposed,
levied or made by or in Germany or any political subdivision or taxing authority
thereof or therein, and no such payment in the hands of any Lender, the
Administrative Agent, the Collateral Agent or any Participant will be subject to
any tax, levy, impost, deduction, charge or withholding imposed, levied or made
by or in Germany or any political subdivision or taxing authority therein or
thereof.
(b) The Borrower neither believes nor reasonably expects that
any interest paid by the Borrower hereunder will constitute interest paid by a
trade or business in the United States within the meaning of Section
884(f)(l)(A) of the Internal Revenue Code of 1986, as amended.
3.15 No Filing. To ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement and the other Loan
Documents in Germany, it is not necessary that this Agreement, any other Loan
Document or any other document be filed or recorded with any court or other
authority in Germany, or that any stamp or similar tax be paid on or in respect
of this Agreement or any of the other Loan Documents.
3.16 Proper Form. This Agreement will be in proper legal form
under the laws of Germany for the enforcement thereof in Germany.
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3.17 Choice of Law. In any action or proceeding involving the
Borrower arising out of or relating to this Agreement in any court of Germany,
each Lender and the Administrative Agent would be entitled to the recognition
and effectiveness of the provisions of Section 8.11.
SECTION 4. CONDITIONS PRECEDENT
The agreement of each Lender to make the Loan requested to be
made by it is subject to the satisfaction, prior to or concurrently with the
making of such Loan on the Closing Date (but in any event no later than November
30, 1998), of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by the
Administrative Agent, the Borrower and each Person listed on Schedule
1.1A, (ii) the Guarantee Agreement, executed and delivered by a duly
authorized officer of each of DII, CV, Multilayer and DOVatron, (iii)
each of the German Security Agreements, executed and delivered by a
duly authorized officer of each party thereto, (iv) the Intercreditor
Agreement, executed and delivered by a duly authorized officer of the
parties thereto and (v) the Pledge Agreement, executed and delivered by
a duly authorized officer of each of the parties thereto.
(b) DII Credit Agreement. The DII Credit Agreement shall have
been duly executed and delivered by the parties thereto and the
conditions precedent to the Closing Date thereunder set forth in
Section 7 thereof shall have been satisfied.
(c) Lien Searches. The Administrative Agent shall have
received the results of a recent lien search or other analogous
investigation, to the extent applicable under relevant law, in each of
the jurisdictions where assets of the Borrower are located, and such
search or investigation shall reveal no liens on any of the assets of
the Borrower except for liens permitted by the Guarantee Agreement or
discharged on or prior to the Closing Date pursuant to documentation
satisfactory to the Administrative Agent.
(d) Fees. The Lenders, the Administrative Agent and the
Arranger shall have received all fees required to be paid, and all
expenses for which invoices have been presented (including the
reasonable fees and expenses of legal counsel), on or before the
Closing Date. All such amounts will be paid with proceeds of Loans made
on the Closing Date and will be reflected in the funding instructions
given by the Borrower to the Administrative Agent on or before the
Closing Date.
(e) Closing Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of each
Loan Party, dated the Closing Date, substantially in the form of
Exhibit B, with appropriate insertions and attachments.
(f) Legal Opinions. The Administrative Agent shall have
received the following executed legal opinions:
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(i) the legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇▇▇, Colt
& Mosle, United States counsel to the Loan Parties and its
Subsidiaries, substantially in the form of Exhibit D-1;
(ii) the legal opinion of ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇, German tax counsel to the Borrower and
its Subsidiaries, substantially in the form of Exhibit D-2;
(iii) the legal opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Konig,
German counsel to the Borrower and its Subsidiaries,
substantially in the form of Exhibit D-3;
(iv) the legal opinion of Loeff Claeyes ▇▇▇▇▇▇▇,
Netherlands counsel to CV and its Subsidiaries, substantially
in the form of Exhibit D-4;
(v) the legal opinion of Bruckhaus ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, German counsel to the Lenders, in form and substance
satisfactory to the Administrative Agent; and
(vi) to the extent consented to by the relevant
counsel, each legal opinion, if any, delivered in connection
with the Acquisition Agreement, accompanied by a reliance
letter in favor of the Lenders.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent
may reasonably require.
(g) Accountants' Opinions. The Lenders shall have received
opinions of Deloitte & Touche LLP, tax advisors to the Loan Parties,
concerning the effectiveness of the tax structure of the transactions
contemplated by this Agreement, in form and substance satisfactory to
the Administrative Agent.
(h) Appointment of Agent for Service of Process. Each of the
Borrower, Multilayer and DOVatron shall have irrevocably appointed DII
as its agent for service of processes in the United States pursuant to
documentation in form and substance satisfactory to the Administrative
Agent.
(i) Perfection of Liens and Security Interests. All filings,
recordings and other actions that are necessary or reasonably desirable
in order to establish, protect, preserve and perfect a Collateral
Agent's lien on and perfected security interest (to the extent
perfection is permitted or provided for under relevant law) in all
right, title, estate and interest of the Loan Parties in and to all
Collateral covered by the Security Documents prior and superior to all
other Liens, existing or future, except Liens permitted by the
Guarantee Agreement, shall have been duly made or taken and all fees,
taxes and other charges relating to such filings and recordings and
other actions shall have been paid by the Borrower. The Collateral
Agent shall have received authenticated copies or other evidence of all
filings, recordings and other actions obtained or made in order to
create and
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perfect such first lien on and perfected security interest (to the
extent perfection is permitted or provided for under relevant law) in
the right, title, estate and interest of the Borrower in and to all
Collateral covered by the Security Documents.
(j) Representations and Warranties. Each of the
representations and warranties made by each Loan Party 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.
(k) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loans requested to be made on such date.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, or any Loan or other amount is owing to any Lender or the
Administrative Agent hereunder, the Borrower shall and shall cause each of its
Subsidiaries to:
5.1 Financial Statements. Furnish to the Administrative Agent
and each Lender, in each case in English:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the
unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such year and the related
unaudited consolidated statements of income and of cash flows for such
year (in each case, expressed in Dollars), setting forth in each case
in comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects;
and
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited condensed consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at
the end of such quarter and the related unaudited condensed
consolidated statements of income and of cash flows for such quarter
and the portion of the fiscal year through the end of such quarter,
setting forth in each case in comparative form the figures for the
previous year, certified by a Responsible Officer as being fairly
stated in all material respects (subject to normal year-end audit
adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such officer and disclosed therein).
5.2 Certificates; Other Information. Furnish to the
Administrative Agent and each Lender (or, in the case of clause (c), to the
relevant Lender), in each case in English:
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(a) concurrently with the delivery of any financial
statements pursuant to Section 5.1, a certificate of a Responsible
Officer stating that, to the best of such Responsible Officer's
knowledge, each Loan Party during such period has observed or
performed in all material respects all of its covenants and other
agreements, and satisfied in all material respects every condition,
contained in this Agreement and the other Loan Documents to which it
is a party to be observed, performed or satisfied by it, and that
such Responsible Officer has obtained no knowledge of any Default or
Event of Default except as specified in such certificate;
(b) no later than 10 Business Days prior to the effectiveness
thereof, copies of substantially final drafts of any proposed
amendment, supplement, waiver or other modification with respect to the
Acquisition Documentation; and
(c) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or its Subsidiaries, as the case may be.
5.4 Maintenance of Existence; Compliance. (a) (i) Preserve,
renew and keep in full force and effect its existence and (ii) take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business, except, in the case of clause
(ii) above, to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect; and (b) comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
5.5 Maintenance of Property; Insurance. (a) Keep all property
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted and (b) 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.
5.6 Inspection of Property; Books and Records; Discussions.
(a) 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 (b)
permit representatives of any Lender to visit and inspect any of its properties
and examine and make abstracts from any of its books and records 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 the Borrower and its Subsidiaries with
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officers and employees of the Borrower and its Subsidiaries and with its
independent certified public accountants with prior notice to the Borrower and
its Subsidiaries and subject to reasonable security and confidentiality
procedures.
5.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii)
litigation, investigation or proceeding that may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental
Authority, that in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or
any of its Subsidiaries in which the amount involved is $5,000,000 (or
the equivalent thereof) or more and not covered by insurance or in
which injunctive or similar relief is sought; and
(d) any development or event that has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 5.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower or the relevant Subsidiary proposes
to take with respect thereto.
5.8 Environmental Laws. (a) Comply in all material respects
with, and ensure compliance in all material respects by all tenants and
subtenants, if any, with, all applicable Environmental Laws, and obtain and
comply in all material respects with and maintain, and ensure that all tenants
and subtenants obtain and comply in all material respects with and maintain, any
and all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws.
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws.
5.9 Additional Collateral, etc. (a) With respect to any
property acquired after the Closing Date by the Borrower (other than (y) any
property described in paragraph (b) below and (z) any property subject to a Lien
expressly permitted by the Guarantee Agreement) as to which the Collateral
Agent, for the benefit of the Lenders, does not have a perfected (to the extent
perfection is permitted or provided for under relevant law) Lien, promptly take
all actions necessary or advisable to grant to the Collateral Agent, for the
benefit of the Lenders, a perfected (to the extent perfection is permitted or
provided for under relevant law) first priority security interest in such
property.
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(b) With respect to any new Subsidiary created or acquired
after the Closing Date by the Borrower, promptly (i) execute and deliver to the
Collateral Agent all security documents as the Collateral Agent deems necessary
or advisable to grant to the Collateral Agent, for the benefit of the Lenders, a
first priority security interest in the Capital Stock of such new Subsidiary
that is owned by the Borrower, (ii) cause such new Subsidiary (A) to take such
actions necessary or advisable to grant to the Collateral Agent, for the benefit
of the Lenders, a perfected (to the extent perfection is permitted or provided
for under relevant law) first priority security interest in the Collateral
described in clause (i) above with respect to such new Subsidiary and (B) to
deliver to the Collateral Agent a certificate of such Subsidiary, substantially
in the form of Exhibit C, with appropriate insertions and attachments, (iii)
cause such new Subsidiary to enter into a guarantee in respect of the Borrower's
obligations hereunder in form and substance satisfactory to the Collateral Agent
and (iv) if requested by the Collateral Agent, deliver to the Collateral Agent
legal opinions relating to the matters described above, which opinions shall be
in form and substance, and from counsel, reasonably satisfactory to the
Collateral Agent.
SECTION 6. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal or Premium
on any Loan when due in accordance with the terms hereof; or the
Borrower shall fail to pay any interest on any Loan, or any other
amount payable hereunder or under any other Loan Document, within five
days after any such interest or other amount becomes due in accordance
with the terms hereof; or
(b) any representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document or that is contained in
any certificate, document or financial or other statement furnished by
it at any time under or in connection with this Agreement or any such
other Loan Document shall prove to have been inaccurate in any material
respect on or as of the date made or deemed made; or
(c) (i) the Borrower shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of Section
5.4(a) or Section 5.7(a) of this Agreement, (ii) an "Event of Default"
under and as defined in the DII Credit Agreement shall have occurred
and be continuing, (iii) DII shall default in the observance or
performance of any agreement contained in Section 2 of the Guarantee
Agreement or (iv) any Loan Party shall default in the observance or
performance of any agreement contained in Sections 5.5 and 5.7(b) of
the Guarantee and Collateral Agreement; or
(d) any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement or any
other Loan Document (other than
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as provided in paragraphs (a) through (c) of this Section), and such
default shall continue unremedied for a period of 30 days; or
(e) any Guarantor, the Borrower or any of its Subsidiaries
shall (i) default in making any payment of any principal of any
Indebtedness (including any Guarantee Obligation, but excluding the
Loans) on the scheduled or original due date with respect thereto; or
(ii) default in making any payment of any interest on any such
Indebtedness beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created; or
(iii) default in the observance or performance of any other agreement
or condition relating to any such Indebtedness 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 beneficiary of such Indebtedness (or a trustee or agent on
behalf of such holder or beneficiary) to cause, with the giving of
notice if required, such Indebtedness to become due prior to its stated
maturity or (in the case of any such Indebtedness constituting a
Guarantee Obligation) to become payable; provided, that a default,
event or condition described in clause (i), (ii) or (iii) of this
paragraph (e) shall not at any time constitute an Event of Default
unless, at such time, one or more defaults, events or conditions of the
type described in clauses (i), (ii) and (iii) of this paragraph (e)
shall have occurred and be continuing with respect to Indebtedness the
outstanding principal amount of which exceeds in the aggregate
$5,000,000 (or the equivalent thereof); or
(f) (i) DII, CV, the Borrower or any of its Subsidiaries
shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any
substantial part of its assets, or DII, CV, the Borrower or any of its
Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against DII, CV, the
Borrower or any of its Subsidiaries any case, proceeding or other
action of a nature referred to in clause (i) above that (A) results in
the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be commenced against DII, CV,
the Borrower 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 that results in the entry of an order for any such relief that
shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) DII, CV, the
Borrower or any of its Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) DII, CV, the Borrower or any of its
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Subsidiaries shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they become due;
or
(g) one or more judgments or decrees shall be entered against
DII, CV, the Borrower or any of its Subsidiaries involving in the
aggregate a liability (not paid or fully covered by insurance as to
which the relevant insurance company has acknowledged coverage) of
$5,000,000 (or the equivalent thereof) or more, and all such judgments
or decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 60 days from the entry thereof; or
(h) any of the Security Documents shall cease, for any
reason, to be in full force and effect, or any Loan Party or any
Affiliate of any Loan Party shall so assert, or any Lien created by any
of the Security Documents shall cease to be enforceable and of the same
effect and priority purported to be created thereby; or
(i) the Guarantee Agreement or the guarantee contained in
Section 2 of the Guarantee and Collateral Agreement shall cease, for
any reason, to be in full force and effect or any Loan Party or any
Affiliate of any Loan Party shall so assert; or
(j) a Change of Control shall have occurred;
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 the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents shall immediately become due and payable,
and the Borrower shall pay to the Administrative Agent, for the ratable benefit
of the Lenders, the Premium, which shall also become immediately due and
payable, and (B) if such event is any other Event of Default, the following
actions may be taken: with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents to be due and payable forthwith and the
Borrower shall pay to the Administrative Agent, for the ratable benefit of the
Lenders, the Premium, whereupon the same shall immediately become due and
payable. Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived by
the Borrower.
SECTION 7. THE ADMINISTRATIVE AGENT
7.1 Appointment. Each Lender hereby irrevocably designates
and appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents,
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together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
7.2 Delegation of Duties. The Administrative 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. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
7.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person's own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan 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 Administrative 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 other Loan
Document or for any failure of any Loan Party a party thereto to perform its
obligations hereunder or thereunder. The Administrative Agent shall not 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 Loan Party.
7.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any instrument, 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 counsel to the Borrower, DII and CV),
independent accountants and other experts selected by the Administrative Agent.
The Administrative 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 all the Lenders as it deems appropriate or
it shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense that may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
and the other Loan Documents in accordance with a request of all Lenders, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Loans.
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7.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by all Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
7.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates
have made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of a
Loan Party or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other 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 the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent 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 Loan Party or any affiliate of
a Loan Party that may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
7.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Percentages in effect on the date on which
indemnification is sought under this Section (or, if indemnification is sought
after the date upon which the Commitments shall have terminated and the Loans
shall have been paid in full, ratably in accordance with such Percentages
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time
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(whether before or after the payment of the Loans) be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising out
of, the Commitments, this Agreement, any of the other Loan 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 such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from the Administrative Agent's gross
negligence or willful misconduct. The agreements in this Section shall survive
the payment of the Loans and all other amounts payable hereunder.
7.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with any Loan Party as though the
Administrative Agent was not the Administrative Agent. With respect to its Loans
made or renewed by it, the Administrative Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not the Administrative Agent, and the terms
"Lender" and "Lenders" shall include the Administrative Agent in its individual
capacity.
7.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 10 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 6(a) or Section
6(f) with respect to the Borrower shall have occurred and be continuing) be
subject to approval by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 10 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall assume and perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Section 7 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement and the other Loan Documents.
7.10 Authorization to Release Guarantees and Liens.
Notwithstanding anything to the contrary contained herein or in any other Loan
Document, the Administrative Agent is hereby irrevocably authorized by each of
the Lenders (without requirement of notice to or consent of any Lender except as
expressly required by Section 8.1) to take any action requested by the Borrower
having the effect of releasing any Collateral or guarantee obligations to the
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extent necessary to permit consummation of any transaction not prohibited by any
Loan Document or that has been consented to in accordance with Section 8.1.
SECTION 8. MISCELLANEOUS
8.1 Amendments and Waivers. Neither this Agreement, any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 8.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may,
or, with the written consent of the Required Lenders, the Administrative Agent
and each Loan Party party to the relevant Loan Document may, from time to time,
(a) enter into written amendments, supplements or modifications hereto and to
the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such
terms and conditions as all of the Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other 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 (i) reduce the principal amount or extend the
final scheduled date of maturity of any Loan, reduce the stated rate of any
interest, Premium or fee payable hereunder or extend the scheduled date of any
payment thereof, in each case without the consent of each Lender directly
affected thereby; (ii) amend, modify or waive any provision of this Section 8.1
or reduce any percentage specified in the definition of Required Lenders,
consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents, release all or
substantially all of the Collateral or release all or substantially all of the
Guarantors from their obligations under the Guarantee or Guarantee and
Collateral Agreement, as the case may be, in each case without the written
consent of all Lenders; or (iii) amend, modify or waive any provision of Section
7 without the written consent of the Administrative Agent. Any such waiver and
any such amendment, supplement or modification shall apply equally to each of
the Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under 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.
8.2 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, or three Business 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 the Borrower and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:
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The Borrower: Multilayer Technology GmbH and Co. KG
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: 49-7031-14-1782
Telephone: ▇▇-▇▇▇▇-▇▇-▇▇▇▇
The Administrative Agent: The Chase Manhattan Bank
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Loan and Agency
Services Group
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: The Chase Manhattan Bank
▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
8.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
8.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder.
8.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all of its reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement and the other 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 the reasonable fees and
disbursements of counsel to the Administrative Agent and filing and recording
fees and
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expenses, with statements with respect to the foregoing to be submitted to the
Borrower prior to the Closing Date (in the case of amounts to be paid on the
Closing Date) and from time to time thereafter on a quarterly basis or such
other periodic basis as the Administrative Agent shall deem appropriate, (b) to
pay or reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including the fees and disbursements of counsel (including the
allocated fees and expenses of in-house counsel) to each Lender and of counsel
to the Administrative Agent, (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other taxes, if any, that may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify, and hold each Lender and the Administrative Agent and their
respective officers, directors, employees, affiliates, agents and controlling
persons (each, an "Indemnitee") 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, the other Loan Documents, any present or future assignment or
participation agreement contemplated by Section 8.6(b) and any such other
documents, including any of the foregoing relating to the use of proceeds of the
Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries or any of the Properties and the reasonable fees and expenses of
legal counsel in connection with claims, actions or proceedings by any
Indemnitee against any Loan Party under any Loan Document (all the foregoing in
this clause (d), collectively, the "Indemnified Liabilities"), provided, that
the Borrower shall have no obligation hereunder to any Indemnitee with respect
to Indemnified Liabilities to the extent such Indemnified Liabilities are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of such
Indemnitee. Without limiting the foregoing, and to the extent permitted by
applicable law, the Borrower agrees not to assert and to cause its Subsidiaries
not to assert, and hereby waives and agrees to cause its Subsidiaries to so
waive, all rights for contribution or any other rights of recovery with respect
to all claims, demands, penalties, fines, liabilities, settlements, damages,
costs and expenses of whatever kind or nature, under or related to Environmental
Laws, that any of them might have by statute or otherwise against any
Indemnitee. All amounts due under this Section 8.5 shall be payable promptly
after written demand therefor. Statements payable by the Borrower pursuant to
this Section 8.5 shall be submitted to The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇▇▇▇ (Telephone No. (212)
▇▇▇-▇▇▇▇) (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), at the address of the Borrower set
forth in Section 8.2, or to such other Person or address as may be hereafter
designated by the Borrower in a written notice to the Administrative Agent. The
agreements in this Section 8.5 shall survive repayment of the Loans and all
other amounts payable hereunder.
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8.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent, all future holders of the Loans
and their respective successors and assigns, except that the Borrower may not
assign or transfer any of its rights or obligations under this Agreement without
the prior written consent of each Lender.
(b) Any Lender may, without the consent of the Borrower, in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "Participant") participating interests
in any Loan owing to such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement and the other Loan Documents. In no event shall any Participant
under any such participation have any right to approve any amendment or waiver
of any provision of any Loan Document, or any consent to any departure by any
Loan Party therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Loans or any premium
or fees payable hereunder, or postpone the date of the final maturity of the
Loans, in each case to the extent subject to such participation. The Borrower
agrees that if amounts outstanding under this Agreement and the 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 Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in purchasing
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in Section 8.7(a) as
fully as if it were a Lender hereunder. The Borrower also agrees that each
Participant shall be entitled to the benefits of Sections 2.9, 2.10, 2.11 and
2.13(viii) with respect to its participation in the Commitments and the Loans
outstanding from time to time as if it was a Lender and each Lender who sold the
participating interest shall be entitled to raise the claims under Section 2.9,
2.10 and 2.11 also in relation to taxes, expenses, losses and other amounts
described in said Sections arising in connection with, or due to, the
participation in the respective Commitments and Loans and the documents in
connection therewith; provided that, in the case of Section 2.10, such
Participant shall have complied with the requirements of Section 2.10(d).
(c) Any Lender (an "Assignor") may, in accordance with
applicable law, at any time and from time to time assign to any Lender or any
affiliate thereof or, with the consent of the Borrower and the Administrative
Agent (which, in each case, shall not be unreasonably withheld or delayed), to
an additional bank, financial institution or other entity (an "Assignee") all,
but not part, of its rights and obligations under this Agreement pursuant to an
Assignment and Acceptance, executed by such Assignee, such Assignor and any
other Person whose consent is required pursuant to this paragraph, and delivered
to the Administrative Agent for its
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acceptance and recording in the Register. Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with a Commitment and/or Loans as
set forth therein, and (y) the Assignor thereunder shall be released from its
obligations under this Agreement and such Assignor shall cease to be a party
hereto. Notwithstanding any provision of this Section 8.6, the consent of the
Borrower shall not be required for any assignment that occurs when an Event of
Default pursuant to Section 8(f) shall have occurred and be continuing with
respect to the Borrower.
(d) The Administrative Agent shall, on behalf of the
Borrower, maintain at its address referred to in Section 8.2 a copy of each
Assignment and Acceptance delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Lenders and the Commitment of,
and the principal amount of the Loans owing to, each Lender from time to time.
The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, each other Loan Party, the Administrative Agent and the
Lenders shall treat each Person whose name is recorded in the Register as the
owner of the Loans for all purposes of this Agreement. Any assignment of any
Loan shall be effective only upon appropriate entries with respect thereto being
made in the Register.
(e) Upon its receipt of an Assignment and Acceptance executed
by an Assignor, an Assignee and any other Person whose consent is required by
Section 8.6(c), together with payment to the Administrative Agent of a
registration and processing fee of $4,000, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) record the information
contained therein in the Register on the effective date determined pursuant
thereto.
(f) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section 8.6 concerning assignments of
Loans relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including any pledge or
assignment by a Lender of any Loan to any Federal Reserve Bank in accordance
with applicable law.
8.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement expressly provides for payments to be allocated to a particular
Lender, if any Lender (a "Benefitted Lender") shall, at any time after the Loans
and other amounts payable hereunder shall immediately become due and payable
pursuant to Section 6, receive any payment of all or part of the 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 Section 6(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of the Obligations owing to such other Lender, such Benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of the Obligations owing to each such other Lender, or shall provide
such other Lenders with the benefits of any such collateral, as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral ratably with each of the
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Lenders; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such Benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise), to set off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower, as the case may be.
Each Lender agrees promptly to notify the Borrower and the Administrative Agent
after any such setoff and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.
8.8 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. Delivery of an executed signature page of this
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Borrower and the Administrative Agent.
8.9 Severability. Any provision of this Agreement that 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.
8.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
8.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12 Submission To Jurisdiction; Waivers. The Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action
or proceeding relating to this Agreement and the other Loan Documents
to which it is a party, or for recognition
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and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New
York, the courts of the United States 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) acknowledges that it has appointed DII to receive and
accept service of process in any such action or proceeding on behalf of
the Borrower and that DII has accepted such appointment;
(d) 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 DII at its address specified in Section 12(c) of the
Guarantee Agreement or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(e) 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
(f) 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 Section any special, exemplary, punitive or
consequential damages.
8.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between Administrative Agent and Lenders, on one
hand, and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
8.14 Confidentiality. Each of the Administrative Agent and
each Lender agrees to keep confidential all non-public information provided to
it by any Loan Party pursuant to this Agreement that is designated by such Loan
Party as confidential; provided that nothing herein
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shall prevent the Administrative Agent or any Lender from disclosing any such
information (a) to the Administrative Agent, any other Lender or any affiliate
of any Lender, (b) to any Transferee or prospective Transferee that agrees to
comply with the provisions of this Section, (c) to its employees, directors,
agents, attorneys, accountants and other professional advisors or those of any
of its affiliates, (d) upon the request or demand of any Governmental Authority,
(e) in response to any order of any court or other Governmental Authority or as
may otherwise be required pursuant to any Requirement of Law, (f) if requested
or required to do so in connection with any litigation or similar proceeding,
(g) that has been publicly disclosed, (h) to the National Association of
Insurance Commissioners or any similar organization or any nationally recognized
rating agency that requires access to information about a Lender's investment
portfolio in connection with ratings issued with respect to such Lender, or (i)
in connection with the exercise of any remedy hereunder or under any other Loan
Document.
8.15 Accounting Changes. 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 the Borrower 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 the Borrower's 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
the Borrower, 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" refers to 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 SEC.
8.16 Judgment. The obligation of the Borrower hereunder due
to any party hereto in Dollars shall, notwithstanding any judgment in a currency
(the "judgment currency") other than Dollars, be discharged only to the extent
that on the Business Day following receipt by such party of any sum adjudged to
be so due in the judgment currency such party may in accordance with normal
banking procedures purchase Dollars with the judgment currency; if the amount of
Dollars so purchased is less than the sum originally due to such party in
Dollars, the Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify the party against such loss, and if the amount of
Dollars so purchased exceeds the sum originally due to any party to this
Agreement, such party agrees to remit to the Borrower the excess.
8.17 Collateral Agent as Secured Creditor. Each of the
Borrower and the Lenders agree that the Collateral Agent shall be the joint and
several creditor together with the relevant Lender of each and every obligation
of the Borrower toward each of the Lenders under this Agreement and the other
Loan Documents pursuant to Section 7.2 of the Intercreditor Agreement, with such
rights as set forth in such Section.
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8.18 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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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.
MULTILAYER TECHNOLOGY GMBH AND
CO. KG
By:
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Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By:
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Name:
Title: