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EXHIBIT 10.1
SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF OCTOBER 25, 1998,
AMENDED AND RESTATED AS OF
DECEMBER 15, 1998,
AND FURTHER AMENDED AND RESTATED AS OF
JUNE 15, 1999
AMONG
MACDERMID, INCORPORATED,
NATIONSBANK, N.A.,
AS ADMINISTRATIVE AGENT,
LETTER OF CREDIT ISSUING BANK
AND
SWING LINE LENDER,
BANKBOSTON, N.A.,
AS DOCUMENTATION AGENT,
FLEET NATIONAL BANK,
AS SYNDICATION AGENT,
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
AND
BANC OF AMERICA SECURITIES LLC
AS
LEAD ARRANGER AND BOOK MANAGER
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TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS.......................................................... 2
1.01 Certain Defined Terms................................................ 2
1.02 Other Interpretive Provisions........................................ 30
1.03 Accounting Principles................................................ 31
ARTICLE II
THE CREDITS.......................................................... 32
2.01 Amounts and Terms of Commitment...................................... 32
(a) Term Loan................................................... 32
(b) Sterling Acquisition Loan................................... 32
(c) The Revolving Credit........................................ 32
(d) Swing Line Loans............................................ 34
(e) PTI Term Loan............................................... 37
2.02 Loan Accounts........................................................ 37
2.03 Procedure for Borrowing.............................................. 37
2.04 Conversion and Continuation Elections for Revolving Loans............ 39
2.05 Voluntary Termination or Reduction of Commitments.................... 41
2.06 Optional Prepayments of Loans........................................ 41
2.07 Termination of Commitments; Mandatory Prepayments of
Loans; Mandatory Commitment Reductions............................... 42
2.08 Repayment of Loans................................................... 45
2.09 Interest............................................................. 45
2.10 Fees................................................................. 46
(a) Agency Fees................................................. 46
(b) Revolving Loan Commitment Fee............................... 46
(c) Term Loan Commitment Fee.................................... 47
(d) Sterling Acquisition Loan Commitment Fee.................... 47
(e) PTI Term Loan Commitment Fee................................ 48
(f) Amendment Fee............................................... 48
2.12 Payments by a Borrower............................................... 49
2.13 Payments by the Lenders to the Administrative Agent.................. 50
2.14 Sharing of Payments, Etc............................................. 50
2.15 Utilization of Commitments in Offshore Currencies.................... 51
ARTICLE III
THE LETTERS OF CREDIT FACILITY...................................... 53
3.01 The Letter of Credit Facility........................................ 53
3.02 Issuance, Amendment and Renewal of Letters of Credit................. 54
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Section Page
3.03 Risk Participations, Drawings, Revolving Loans and Reimbursements.... 56
3.04 Repayment of Participations.......................................... 57
3.05 Role of the Issuing Bank............................................. 58
3.06 Obligations Absolute................................................. 59
3.07 Cash Collateral Pledge............................................... 60
3.08 Letter of Credit Fees................................................ 60
3.09 Existing Letters of Credit........................................... 60
3.10 Uniform Customs and Practice......................................... 61
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY............................... 61
4.01 Taxes................................................................ 61
4.02 Illegality........................................................... 62
4.03 Increased Costs and Reduction of Return.............................. 63
4.04 Funding Losses....................................................... 64
4.05 Inability to Determine Rates......................................... 65
4.06 Reserves on Offshore Rate Loans...................................... 65
4.07 Certificates of Lenders.............................................. 66
4.08 Substitution of Lenders.............................................. 66
4.09 Survival............................................................. 66
ARTICLE V
CONDITIONS PRECEDENT................................................. 66
5.01 Conditions to Announcement Date...................................... 66
(a) Prior Loan Document......................................... 67
(b) Resolutions; Incumbency..................................... 67
(c) Organization Documents; Good Standing....................... 67
(d) Legal Opinions.............................................. 67
(e) Payment of Fees............................................. 67
(f) Certificate................................................. 68
(g) Press Release............................................... 68
(h) Consent to Existing Credit Agreement........................ 68
(i) Currency Fluctuations Protection............................ 68
(j) Environment Review.......................................... 69
(k) Pro Forma Balance Sheet; Projections; and Financials........ 69
(l) Solvency Certificates....................................... 69
(m) Collateral Documents........................................ 69
(n) Other Documents............................................. 70
5.02 Conditions of Initial Funding Date................................... 70
(a) First Amended and Restated Credit Agreement and
the promissory notes contemplated thereby................... 70
(b) Bring Down Certificate...................................... 70
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Section Page
(c) Lender Payoff Letter........................................ 70
(d) Solvency Certificates....................................... 71
(e) Resolutions; Incumbency..................................... 71
(f) Organization Documents; Good Standing....................... 71
(g) Collateral Documents........................................ 71
(h) Completion of Offer......................................... 72
(i) Legal Opinion............................................... 72
(j) Applicable Margin Certificate............................... 73
(k) Application of Swap Contract Proceeds....................... 73
(l) Payment of Fees............................................. 73
(m) Other Documents............................................. 73
5.03 Conditions to All Credit Extensions.................................. 73
(a) Notice, Application......................................... 74
(b) Continuation of Representations and Warranties.............. 74
(c) No Existing Default......................................... 74
5.04 First Borrowing by Each Eligible Borrower............................ 75
5.05 Conditions to PTI Effective Date..................................... 76
(a) Credit Agreement............................................ 76
(b) PTI Merger Documents........................................ 76
(c) Resolutions; Incumbency..................................... 76
(d) Organization Documents; Good Standing....................... 77
(e) Legal Opinion............................................... 77
(f) Payment of Fees............................................. 77
(g) Certificate................................................. 77
(h) Environmental Review........................................ 78
(i) Pro Forma Balance Sheet; Projections; and Financials........ 78
(j) Solvency Certificates....................................... 79
(k) Collateral Documents........................................ 79
(l) Updated Disclosure Schedules................................ 79
(m) Other Documents............................................. 79
5.06 Conditions of PTI Funding Date....................................... 79
(a) Notes....................................................... 79
(b) Bring Down Certificate for Disclosure Schedules............. 79
(c) Applicable Margin Certificate............................... 80
(d) Lender Payoff Letters....................................... 80
(e) Certificate................................................. 80
(f) Solvency Certificates....................................... 81
(g) Resolutions; Incumbency..................................... 81
(h) Organization Documents; Good Standing....................... 82
(i) Collateral Documents........................................ 82
(j) Completion of PTI Merger.................................... 83
(k) Approval of Pro Forma Balance Sheet and Delivery
of Updated PTI Financial Statements......................... 84
(l) Legal Opinions.............................................. 84
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Section Page
(m) Y2K Problem Review.......................................... 85
(n) Payment of Fees............................................. 85
(o) Other Documents............................................. 85
ARTICLE VI
REPRESENTATIONS AND WARRANTIES....................................... 85
6.01 Incorporation, Good Standing and Due Qualification................... 85
6.02 Corporate Power and Authority; No Conflicts.......................... 85
6.03 Legally Enforceable Agreements....................................... 86
6.04 Litigation........................................................... 86
6.05 Financial Statements; SEC Filings.................................... 86
6.06 Taxes................................................................ 87
6.07 ERISA................................................................ 88
6.08 Subsidiaries and Ownership of Stock.................................. 88
6.09 Credit Arrangements.................................................. 88
6.10 No Default on Outstanding Judgments or Orders........................ 88
6.11 Governmental Regulation.............................................. 88
6.12 Environmental Matters................................................ 88
6.13 Margin Stock......................................................... 89
6.14 Full Disclosure...................................................... 89
6.15 Collateral Documents................................................. 89
6.16 Solvency............................................................. 90
6.17 Labor Relations...................................................... 90
6.18 Copyrights, Patents, Trademarks and Licenses, etc.................... 90
6.19 Broker's; Transaction Fees........................................... 90
6.20 Insurance............................................................ 90
6.21 Swap Obligations..................................................... 91
6.22 Transaction Agreements and PTI Merger Documents...................... 91
6.23 Governmental Authorization........................................... 92
6.24 Year 2000 Compliance................................................. 93
6.25 Representations of Eligible Borrowers................................ 93
ARTICLE VII
AFFIRMATIVE COVENANTS................................................ 94
7.01 Reporting Requirements............................................... 94
7.02 Payment of Obligations............................................... 96
7.03 Maintenance of Property; Insurance................................... 96
7.04 Conduct of Business and Maintenance of Existence..................... 97
7.05 Compliance with Laws................................................. 97
7.06 Inspection of Property, Books and Records............................ 97
7.07 Maintenance of Ownership of Subsidiaries............................. 97
7.08 Use of Proceeds...................................................... 98
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Section Page
7.09 Solvency............................................................. 99
7.10 Further Assurances................................................... 99
7.11 Foreign Subsidiaries Security........................................ 99
7.12 The Offer............................................................ 100
7.13 Bidco Capitalization................................................ 102
7.14 The PTI Merger...................................................... 102
ARTICLE VIII
NEGATIVE COVENANTS................................................. 102
8.01 Debt................................................................ 103
8.02 Restricted Payments................................................. 104
8.03 Investments......................................................... 104
8.04 Negative Pledge..................................................... 105
8.05 Consolidations, Mergers and Sales of Assets......................... 106
8.06 Transactions with Affiliates........................................ 106
8.07 Change in Business.................................................. 107
8.08 Accounting Changes.................................................. 108
8.09 Target Operations................................................... 108
ARTICLE IX
FINANCIAL COVENANTS................................................. 108
9.01 EBIT to Interest Expense Ratio...................................... 109
9.02 Minimum Consolidated Net Worth...................................... 109
9.03 Maximum Total Debt to Consolidated EBITDA........................... 109
ARTICLE X
EVENTS OF DEFAULT................................................... 109
10.01 Event of Default.................................................... 109
10.02 Relevant Events of Default with respect to Offer.................... 112
10.03 Remedies............................................................ 113
10.04 Rights Not Exclusive................................................ 114
10.05 Permitted Swap Contract Remedies.................................... 114
ARTICLE XI
THE ADMINISTRATIVE AGENT............................................ 115
11.01 Appointment and Authorization; "Administrative Agent"............... 115
11.02 Delegation of Duties................................................ 115
11.03 Liability of Administrative Agent................................... 116
11.04 Reliance by Administrative Agent.................................... 116
11.05 Notice of Default................................................... 116
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Section Page
11.06 Credit Decision..................................................... 117
11.07 Indemnification of Administrative Agent............................. 117
11.08 Administrative Agent in Individual Capacity......................... 118
11.09 Successor Administrative Agent...................................... 118
11.10 Withholding Tax..................................................... 119
11.11 Collateral Matters.................................................. 120
11.12 Administrative Agent as English Trustee............................. 121
11.13 Assignment under Dutch Law.......................................... 121
ARTICLE XII
MISCELLANEOUS....................................................... 122
12.01 Amendments and Waivers.............................................. 122
12.02 Notices............................................................. 123
12.03 No Waiver; Cumulative Remedies...................................... 124
12.04 Costs and Expenses.................................................. 124
12.05 Company Indemnification............................................. 125
12.06 Payments Set Aside.................................................. 126
12.07 Successors and Assigns.............................................. 126
12.08 Assignments, Participations, etc.................................... 126
12.09 Confidentiality..................................................... 128
12.10 Set-off............................................................. 129
12.11 Notification of Addresses, Lending Offices, etc..................... 129
12.12 Counterparts........................................................ 129
12.13 Severability........................................................ 129
12.14 No Third Parties Benefited.......................................... 129
12.15 Governing Law and Jurisdiction...................................... 129
12.16 Waiver of Jury Trial................................................ 130
12.17 Entire Agreement.................................................... 131
12.18 Judgment Currency................................................... 131
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SCHEDULES
Schedule 1(a) Reserve Asset Costs
Schedule 2.01 Commitments
Schedule 2.08(d) Term Loan, PTI Term Loan and Sterling Acquisition Loan
Amortization
Schedule 3.09 Existing Letters of Credit
Schedule 5.02 Specified Foreign Subsidiaries
Schedule 6.04 Litigation
Schedule 6.05(a) Company Financial Statements
Schedule 6.05(b) Target Financial Statements
Schedule 6.05(c) PTI Financial Statements
Schedule 6.08 Subsidiaries
Schedule 6.09 Existing Debt
Schedule 6.12 Environmental Matters
Schedule 6.18 Exceptions to Title for Intellectual Property
Schedule 6.19 Brokers' and Transaction Fees
Schedule 6.21 Existing Swap Contracts
Schedule 8.03(a) Existing Investments
Schedule 8.03(b) Existing ViaTek Investments
Schedule 8.04 Existing Liens
Schedule 12.02 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A-1 Form of Notice of Borrowing (Certain Funds Period)
Exhibit A-2 Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D-1 Form of Legal Opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish LLP
Exhibit D-2 Form of Legal Opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Exhibit D-3 Form of Legal Opinion of ▇▇▇▇▇ & Overy
Exhibit D-4 Form of Legal Opinion ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP (as of PTI Effective
Date)
Exhibit E Form of Assignment and Acceptance
Exhibit F-1(A) Form of Revolving Loan Note
Exhibit F-1(B) Form of Revolving Loan Note
Exhibit F-2 Form of Term Loan Note
Exhibit F-3 Form of Sterling Acquisition Loan Note
Exhibit F-4 Form of Swing Line Loan Note
Exhibit F-5 Form of PTI Term Loan Note
Exhibit G Form of Election to Participate
Exhibit H Form of Election to Terminate
Exhibit I-1 Form of Company Pledge Agreement
Exhibit I-2 Form of US Holdco Pledge Agreement
Exhibit I-3 Form of Subsidiary Guarantor Pledge Agreement
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Exhibit J-1 Form of Company Guaranty
Exhibit J-2 Form of Subsidiary Guaranty
Exhibit K-1 Form of Solvency Certificate - Company, US Holdco#1 and US Holdco#2
Exhibit K-2 Form of Solvency Certificate - Bidco
Exhibit L Form of Solvency Certificate - Target
Exhibit M Form of Announcement Date Notice
Exhibit N Form of Authorization Letter
Exhibit O Press Release
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SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED MULTICURRENCY CREDIT AGREEMENT is
entered into as of October 25, 1998, amended and restated as of December 15,
1998 and as further amended and restated as of June 15, 1999 among MacDERMID,
INCORPORATED, a Connecticut corporation (the "Company"), the several financial
institutions from time to time party to this Agreement (collectively, the
"Lenders"; individually, a "Lender"), and NationsBank, N.A., as letter of credit
issuing bank, swing line lender and administrative agent for the Lenders.
RECITALS
WHEREAS, the Company (such term and each other capitalized term used
but not defined in these recitals having the meaning assigned to such terms in
Article I), through MacDermid (UK) Limited, a private limited liability company
incorporated under the laws of England and Wales and an indirect Wholly-Owned
Subsidiary of the Company ("Bidco"), acquired ▇. ▇▇▇▇▇▇▇ plc, a public limited
liability company incorporated under the laws of England and Wales ("Target"),
pursuant to a recommended cash offer by Bidco for all the outstanding shares of
Target's capital stock, followed by a compulsory squeeze out of the remaining
shareholders of Target pursuant to Section 428-430F of the Companies Act (the
"Squeeze-Out") pursuant to which (i) Target became a Wholly-Owned Subsidiary of
Bidco and (ii) all holders of shares of capital stock of Target (other than
those acquired pursuant to the Offer) received cash consideration for their
shares;
WHEREAS, in connection therewith, the Company amended and restated the
terms and provisions of the Multicurrency Credit Agreement, dated as of October
25, 1998 (the "Prior Loan Document"), among the Company, the existing lenders
thereunder and the Agent, to facilitate the funding and consummation of the
Offer and the Transaction and to provide for the Loans permitted thereby and the
Lenders agreed to make available to the Company and, in certain circumstances,
Eligible Borrowers, additional financing pursuant to that certain Amended and
Restated Multicurrency Credit Agreement, dated as of December 15, 1998 (the
"First Amended and Restated Credit Agreement") comprising a multicurrency
revolving credit facility, with a letter of credit subfacility and, with respect
to the Company, a swing line subfacility, a term loan facility and an
acquisition loan facility upon the terms and conditions set forth in the First
Amended and Restated Credit Agreement;
WHEREAS, the Company, (i) through MCD Acquisition Corp., a Delaware
corporation and a Wholly-Owned Subsidiary of the Company ("PTI MergeCo"),
intends to acquire all of the capital stock of PTI, Inc., a Delaware corporation
("PTI") in exchange for (x) the issuance of 7.7 million shares of Company
Capital Stock and (y) the refinancing of PTI's existing debt in an amount not to
exceed $180,000,000 and (ii) intends to cause PTI MergeCo to merge with and into
PTI causing PTI to become a Wholly-Owned Subsidiary of the Company
(collectively, the "PTI Merger");
WHEREAS, in connection with the PTI Merger and the various transactions
related thereto, the Company has requested that (i) the Lenders agree to (a) an
increase in the Aggregate Revolving
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Loan Commitment by $50,000,000 (from $75,000,000 to $125,000,000) (the "PTI
Revolver Increase Commitment"); and (b) the Company incurring the PTI Term Loans
in the aggregate principal amount of $115,000,000, subject to certain
restrictions set forth herein; and (ii) the PTI Term Loan Lenders agree to make
the PTI Term Loans in the aggregate principal amount of $115,000,000, subject to
the terms and conditions set forth herein; and
WHEREAS, the Company, the Lenders and Administrative Agent now desire
to further amend and restate the First Amended and Restated Credit Agreement to,
among other things, set forth the terms and conditions under which each Lender
with a PTI Term Loan Commitment hereafter will make the PTI Term Loans to the
Company, to set forth the terms and conditions under which the PTI Revolver
Increase Commitment shall occur and to amend and restate the First Amended and
Restated Credit Agreement to reflect the amendments thereto;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms.
The following terms have the following meanings:
"Acquisition" means any transaction or series of related transactions
(other than the Transaction or the PTI Merger) for the purpose of or resulting,
directly or indirectly, in (a) the acquisition of all or substantially all of
the assets of a Person, or of any business or division of a Person, (b) the
acquisition of in excess of 50% of the capital stock, partnership interests,
membership interests or other equity interests of any Person, or otherwise
causing any Person to become a Subsidiary, or (c) a merger or consolidation or
any other combination with another Person (other than a Person that is a
Subsidiary) provided that the Company or a Subsidiary is the surviving entity.
"Administrative Agent" means NationsBank in its capacity as agent for
the Lenders hereunder, or any successor agent arising under Section 11.09.
"Administrative Agent-Related Persons" means NationsBank (solely in its
capacities as administrative agent, letter of credit issuing bank or swing line
lender hereunder) and any successor administrative agent arising under Section
11.09 or any successor letter of credit issuing bank or swing line lender
hereunder, together with their respective Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and its
Affiliates.
"Administrative Agent's Payment Office" means the address for payments
set forth on Schedule 12.02 or such other address as the Administrative Agent
may from time to time specify.
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"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, membership interests, partnership
interests or other equity interests, by contract or otherwise, but shall with
respect to the Company or any of its Subsidiaries specifically exclude
NationsBank.
"Agreed Alternative Currency" has the meaning specified in Section
2.15(e).
"Aggregate Commitment" means the sum of (a) the Aggregate Revolving
Loan Commitment, (b) the Aggregate Term Loan Commitment; (c) the Aggregate
Sterling Acquisition Loan Commitment; and (d) the Aggregate PTI Term Loan
Commitment.
"Aggregate PTI Term Loan Commitment" means the aggregate PTI Term Loan
Commitments of the Lenders equal to One Hundred Fifteen Million Dollars
($115,000,000).
"Aggregate Revolving Loan Commitment" means (i) at all times prior to
the PTI Funding Date, the aggregate Revolving Loan Commitments of the Lenders
equal to Seventy-Five Million Dollars ($75,000,000), as such amount is increased
pursuant to Section 2.01(c)(ii) or decreased pursuant to Section 2.05; and (ii)
at all times on or after the PTI Funding Date, the aggregate Revolving Loan
Commitments of the Lenders equal to One Hundred Twenty-Five Million Dollars
($125,000,000), subject to any increase or decrease in such commitment effected
under clause (i) above as of the PTI Funding Date, as such amount is further
increased pursuant to Section 2.01(c)(ii) or further decreased pursuant to
Section 2.05.
"Aggregate Sterling Acquisition Loan Commitment" means the aggregate
Sterling Acquisition Loan Commitments of the Lenders equal to Forty-Five Million
Sterling (pound sterling45,000,000).
"Aggregate Term Loan Commitment" means the aggregate Term Loan
Commitments of the Lenders equal to Two Hundred Million Three Hundred Thousand
Dollars ($200,300,000).
"Agreement" means this Second Amended and Restated Multicurrency Credit
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time.
"Agreement Currency" has the meaning specified in Section 12.18.
"Amendment Fee" has the meaning specified in Section 2.10(f).
"Announcement Date" means the date on which all of the conditions
precedent set forth in Section 5.01 are satisfied or waived by the
Administrative Agent as evidenced by its delivery of a notice in the form of
Exhibit M hereto.
"Applicable Currency" means, as to any particular payment, with respect
to any Loan or Letter of Credit, Dollars or, with respect to Revolving Loans and
Letters of Credit, the Offshore Currency in which it is denominated or is
payable.
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"Applicable Margin" means on any date the applicable percentage per
annum set forth below based upon the Level as shown in the Compliance
Certificate then most recently delivered to the Lenders:
Commitment
Level Base Rate Loans Offshore Rate Loans Fee
--------------------------------------------------------------------------------------------------------------
I 0.75% 1.75% 0.375%
--------------------------------------------------------------------------------------------------------------
II 0.50% 1.50% 0.375%
--------------------------------------------------------------------------------------------------------------
III 0.25% 1.25% 0.275%
--------------------------------------------------------------------------------------------------------------
IV 0.00% 1.00% 0.250%
--------------------------------------------------------------------------------------------------------------
V 0.00% 0.75% 0.250%
--------------------------------------------------------------------------------------------------------------
;provided, however, that for the period from (i) the Announcement Date until the
Initial Funding Date, the Applicable Margin shall be deemed to be Level II, (ii)
the Initial Funding Date until the date which is the 180th day following the
Initial Funding Date, the Applicable Margin shall be deemed to be the Level
which is the higher of (x) Level II and (y) the Applicable Margin as determined
pursuant to the most recent Compliance Certificate delivered to the Lenders
pursuant to Section 7.01(c) and (iii) thereafter, the Applicable Margin as
determined pursuant to the most recent Compliance Certificate; and provided
further that, if the Company shall have failed to deliver the Applicable Margin
certificate referred to in Section 5.02(j) or any Compliance Certificate
pursuant to Section 7.01(c), in each case by the date required, or if any other
Event of Default shall have occurred and be continuing, then from the date such
Applicable Margin certificate or Compliance Certificate was required to be
delivered until the date of such delivery or the cure or waiver in writing of
such other Event of Default, as the case may be, the Applicable Margin shall be
deemed to be Level I. Each change in the Applicable Margin shall take effect
with respect to all outstanding Loans and fees on the first Business Day
immediately succeeding the day on which such Compliance Certificate is received
by the Administrative Agent. Notwithstanding the foregoing, no reduction in the
Applicable Margin shall be effected if an Event of Default shall have occurred
and be continuing on the date when such change would otherwise occur, it being
understood that on the first Business Day immediately succeeding the day on
which such Event of Default is either waived or cured (assuming no other Event
of Default shall be then pending), the Applicable Margin shall be reduced (on a
prospective basis) in accordance with the then most recently delivered
Compliance Certificate.
"Asset Disposition" means the direct or indirect sale, assignment,
conveyance, transfer or other disposition (whether in one or a series of
transactions) of any property or assets (including accounts and notes
receivable, with or without recourse), or the entering into of an agreement to
do any of the foregoing; provided, however, that the Company and Qualified
Subsidiaries shall at all times be permitted to effect such sales, assignments,
conveyances, transfers and other dispositions among such Persons, and such
permitted dispositions shall be specifically excluded from the definition of
Asset Disposition.
"Assignee" has the meaning specified in Section 12.08(a).
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"Attorney Costs" means and includes all reasonable and customary fees
and disbursements of any law firm or other external counsel and, without
duplication, the reasonable allocated cost of internal legal services and all
reasonable disbursements of internal counsel.
"Authorization Letter" means the letter agreement executed by an
Eligible Borrower in the form of Exhibit N.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq.).
"Base Rate" means, for any day, the higher of: (a) 0.50% per annum
above the latest Federal Funds Rate; and (b) the rate of interest in effect for
such day as publicly announced from time to time by NationsBank in Charlotte,
North Carolina as its "reference rate." The "reference rate" is a rate set by
NationsBank based upon various factors including NationsBank's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in the reference rate announced by NationsBank
shall take effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means a Loan or an L/C Advance that bears interest
based on the Base Rate.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Bidco" has the meaning set forth in the recitals.
"Borrower" means the Company or any Eligible Borrower, as the context
may require, and their respective successors and assigns, and "Borrowers" means
all of the foregoing.
"Borrowing" means a borrowing hereunder consisting of Loans of the same
Type and in the same Applicable Currency made to a Borrower on the same day by
the Lenders under Article II, and, in the case of Offshore Rate Loans, having
the same Interest Period.
"Borrowing Date" means any date on which a Borrowing occurs under
Section 2.03.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York or Charlotte, North Carolina are
authorized or required by law to close and (i) with respect to disbursements and
payments in Dollars with respect to any Loan bearing interest based upon the
Offshore Rate, a day on which dealings are carried on in the applicable offshore
Dollar interbank market, and (ii) with respect to any disbursements and payments
in and calculations pertaining to any Offshore Currency Loan, a day on which
commercial banks are open for foreign exchange business in London, England, and
on which dealings in the relevant Offshore Currency are carried on in the
applicable offshore foreign exchange interbank market in which disbursements or
payment in such Offshore Currency will be made or received hereunder.
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"Capital Adequacy Regulation" means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative Agent, the Issuing
Bank and the Lenders, as additional collateral for the Obligations, cash or
deposit account balances pursuant to documentation in form and substance
satisfactory to the Administrative Agent. Derivatives of such term shall have
corresponding meaning.
"Cash Equivalents" means:
(a) securities issued or fully guaranteed or insured by the
United States Government or any agency thereof and backed by the full faith and
credit of the United States having maturities of not more than one year from the
date of acquisition;
(b) certificates of deposit, time deposits, Eurocurrency time
deposits, repurchase agreements, reverse repurchase agreements, or bankers'
acceptances, having in each case a tenor of not more than one year, issued by
any Lender, or by any commercial bank having combined capital and surplus of not
less than $100,000,000 and either located in the U.S. or with respect to Foreign
Subsidiaries organized under the laws of an Approved Country (as defined in
clause (d) below) whose short term securities are rated at least A-1 by S&P and
P-1 by ▇▇▇▇▇'▇, or with respect to banks located in an Approved Country the
equivalent thereof;
(c) commercial paper of an issuer rated at least A-1 by S&P
or P-1 by ▇▇▇▇▇'▇, and in either case having a tenor of not more than six
months; and
(d) with respect to Foreign Subsidiaries organized under the
laws of an Approved Country, government obligations of the United Kingdom and of
any other country approved by the Administrative Agent or whose debt securities
are rated by S&P and ▇▇▇▇▇'▇ A-1 or P-1, respectively, or the equivalent thereof
(if a short-term debt rating is provided by either) or at least AA or AA2,
respectively, or the equivalent thereof (if a long-term unsecured debt rating is
provided by either (each such country, an "Approved Country"), in each case with
maturities of less than 12 months.
"Certain Funds Period" means the period commencing on the first day
after the Announcement Date and ending on whichever is the earlier of (a) the
date on which the Aggregate Commitment is terminated pursuant to Section
2.07(a), (b) the Business Day following the Squeeze- Out Date and (c) the date
which is six (6) calendar months after the Announcement Date; provided, however,
that the date set forth in clause (c) above shall be extended by an additional
one (1) month and two weeks if Bidco has initiated the Squeeze-Out during the
initial six months after the Announcement Date.
"Change in Control" means (a) the acquisition by any Person (other than
a Plan, the MacDermid, Incorporated Employee Pension Plan, the MacDermid,
Incorporated Employee Profit
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Sharing Plan, the MacDermid, Incorporated Employee Stock Ownership Plan or other
qualified ERISA plan (other than a Multiemployer Plan)), or two or more Persons
acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended) of 30% or more of the outstanding shares of voting stock of
the Company, or (b) during any period of twelve consecutive calendar months,
individuals who at the beginning of such period constituted the Company's board
of directors (together with any new directors whose election by the Company's
board of directors or whose nomination for election by the Company's
stockholders was approved by a vote of at least a majority of the directors then
still in office who either were directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reasons other than death or disability to constitute a majority of the
directors then in office.
"Chase" means The Chase Manhattan Bank, in its individual capacity.
"City Code" means The City Code on Take-overs and Mergers as issued by
the Panel on Take-overs and Mergers in the United Kingdom.
"Code" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
"Collateral" means all property and interests in property and proceeds
thereof now owned or hereafter acquired by a Borrower or any Subsidiary
Guarantor in or upon which a Lien now or hereafter exists in favor of the
Lenders, or the Administrative Agent on behalf of itself, the Issuing Bank and
the Lenders, whether under this Agreement or under any other document executed
by any of such Persons and delivered to the Administrative Agent.
"Collateral Documents" means, collectively (if and when each such
document is required to be executed and delivered hereunder), (a) each Credit
Agreement Guaranty, the Pledge Agreements and all other pledge agreements,
guarantees and other similar agreements between a Borrower or its Subsidiaries
and the Lenders or the Administrative Agent, for the benefit of itself, the
Issuing Bank and the Lenders, now or hereafter delivered to the Lenders or the
Administrative Agent pursuant to or in connection with the transactions
contemplated hereby, and all financing statements (or comparable documents now
or hereafter filed in accordance with the Uniform Commercial Code or comparable
law) against a Borrower or any of its Subsidiaries as debtor in favor of the
Lenders or the Administrative Agent, for the benefit of itself, the Issuing Bank
and the Lenders, as secured party, and (b) any amendments, supplements,
modifications, renewals, replacements, consolidations, substitutions and
extensions of any of the foregoing.
"Commitments" means, collectively, the Revolving Loan Commitment
(including the L/C Commitment and Swing Line Loan Commitment thereunder), the
Term Loan Commitment, the Sterling Acquisition Loan Commitment and the PTI Term
Loan Commitment.
"Commitment Fee" means, collectively, the Revolving Loan Commitment
Fee, the Term Loan Commitment Fee, the Sterling Acquisition Loan Commitment Fee
and the PTI Term Loan Commitment Fee.
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"Companies Act" means the Companies Act of 1985 of the United Kingdom.
"Company" means MacDermid, Incorporated, a Connecticut corporation.
"Company Common Stock" means the authorized common stock of the Company
which is publicly traded on the New York Stock Exchange.
"Company Guaranty" means the Guaranty to be executed and delivered by
the Company in the form attached to this Agreement as Exhibit J-1.
"Company Pledge Agreement" means the Pledge Agreement to be executed
and delivered by the Company in the form attached to this Agreement as Exhibit
I-1.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit C.
"Computation Date" has the meaning specified in Section 2.15(a).
"Consolidated EBIT" means, for any period the sum of (a) Consolidated
Net Income of the Company and its Consolidated Subsidiaries for such period,
plus (b) to the extent deducted in determining Consolidated Net Income, the sum
of (i) Consolidated Interest Expense and (ii) consolidated taxes of the Company
and its Consolidated Subsidiaries for such period; provided, however, that for
all purposes for any businesses acquired (whether by purchase accounting or
pooling accounting) during the period of determination (including Target and its
Subsidiaries), Consolidated EBIT for such period shall be determined on a pro
forma basis as if such acquisition had occurred as of the beginning of such
period (including synergies agreed to by the Administrative Agent in its
reasonable discretion); provided, further, that without the consent of the
Administrative Agent and the Majority Lenders, the Consolidated EBIT being added
as a result of any such acquisition shall not exceed (i) in the case that only
unaudited financial statements are available with respect to the assets, Person
or division being acquired (whether by merger, stock or asset purchase, or
otherwise), the amount of Consolidated EBIT of the acquiree on a stand alone
basis being added from such acquisition shall not exceed 15% of the otherwise
applicable amount of Consolidated EBIT of the Company and its Subsidiaries
(other than the acquiree) taken as a whole, or (ii) the instance that
unqualified audited financial statements in accordance with GAAP are available
for the acquiree, then 100% of the Consolidated EBIT of the acquiree.
"Consolidated EBITDA" means, for any period, the sum of (a)
Consolidated Net Income of the Company and its Consolidated Subsidiaries for
such period, plus (b) to the extent deducted in determining such Consolidated
Net Income, the sum of (i) Consolidated Interest Expense, (ii) consolidated
depreciation and amortization expense and (iii) consolidated taxes of the
Company and its Consolidated Subsidiaries for such period; provided, however,
that for all purposes for any businesses acquired (whether by purchase
accounting or pooling accounting) during the period of determination (including
Target and its Subsidiaries), Consolidated EBITDA for such period shall be
determined on a pro forma basis as if such acquisition had occurred as of the
beginning of such period (including synergies agreed to by the Administrative
Agent in its reasonable discretion); provided, further, that without the consent
of the Administrative Agent and the Majority Lenders, the Consolidated EBITDA
being added as a result of any such acquisition shall not exceed (i) in the
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case that only unaudited financial statements are available with respect to the
assets, Person or division being acquired (whether by merger, stock or asset
purchase, or otherwise), the amount of Consolidated EBITDA of the acquiree on a
stand alone basis being added from such acquisition shall not exceed 15% of the
otherwise applicable amount of Consolidated EBITDA of the Company and its
Subsidiaries (other than the acquiree) taken as a whole, or (ii) the instance
that unqualified audited financial statements in accordance with GAAP are
available for the acquiree, then 100% of the Consolidated EBITDA of the
acquiree.
"Consolidated Interest Expense" means, for any period, the interest
expense of the Company and its Consolidated Subsidiaries determined on a
consolidated basis for such period.
"Consolidated Net Income" means, for any period, the net income of the
Company and its Consolidated Subsidiaries for such period as adjusted to exclude
the following:
(a) the effect of each change in accounting principles;
(b) any gain, together with any related provisions for taxes
on such gain, realized upon the sale or other disposition of any asset of the
Company or any Consolidated Subsidiary (including pursuant to any sale/leaseback
transaction) which is not sold or otherwise disposed of in the ordinary course
of business;
(c) any gain or loss, together with any related provision for
taxes on such gain, realized in connection with the extinguishment of any Debt
of the Company or any of its Consolidated Subsidiaries;
(d) all extraordinary gains and losses determined in
accordance with generally accepted accounting principles;
(e) subject to the proviso below, the net income (to the
extent not distributed to the Company in cash) or loss of any Person that is not
a Consolidated Subsidiary of the Company or that the Company accounts for by the
equity method of accounting; and
(f) the net income or loss of any Person acquired in a pooling
of interests transaction for any period prior to the date of such acquisition;
provided, however, that to the extent deducted in determining net income at any
time during the nine month period following the Initial Funding Date, and
without duplication, Consolidated Net Income shall be adjusted to include the
following:
(i) non-cash charges relating to the Transaction;
(ii) cash charges relating to the Transaction in an
aggregate amount not to exceed $5,000,000; and
(iii) cash charges (other than as provided in clause
(ii)) relating to the Transaction and reasonably acceptable to the
Administrative Agent.
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"Consolidated Net Worth" means at any date the consolidated
stockholders' equity of the Company and its Consolidated Subsidiaries as at such
date.
"Consolidated Subsidiary" means any Subsidiary whose accounts are, or
are required to be, consolidated with the accounts of the Company.
"Consolidated Total Debt" means with respect to the Company and its
Subsidiaries (on a consolidated basis) at any date the sum of (i) total Debt of
the type described in clauses (a), (b) and (d) contained in the definition of
Debt, (ii) all standby letters of credit, other than at any time that Galvanevet
s.r.l. is not a Consolidated Subsidiary, Existing Letters of Credit related to
or given in connection with the Galvanevet acquisition, and (y) standby letters
of credit backing trade obligations incurred in the ordinary course of business
in an aggregate Stated Amount up to $5,000,000, and (iii) Guarantees of Debt of
any Person other than the Company or any of its Consolidated Subsidiaries.
"Conversion/Continuation Date" means any date on which, under Section
2.04, the Company (a) converts Loans (other than Swing Line Loans) of one Type
to another Type, or (b) continues as Loans (other than Swing Line Loans) of the
same Type, but with a new Interest Period, Loans having Interest Periods
expiring on such date.
"Credit Agreement Guaranty" means, collectively, if and when each such
document is executed and delivered (a) the Company Guaranty, (b) the Subsidiary
Guaranty and (c) each guaranty required to be delivered by a Foreign Subsidiary
pursuant to Section 7.11, in each case in favor of the Administrative Agent, on
behalf of itself, the Issuing Bank and the Lenders, as each of the same may be
amended, supplemented or otherwise modified from time to time.
"Credit Extension" means and includes (a) the making of any Loans
hereunder, and (b) the Issuance of any Letters of Credit hereunder.
"Debt" means, with respect to any Person at any date, without
duplication: (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (c) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable arising in
the ordinary course of business, (d) all obligations of such Person as lessee
which are capitalized in accordance with generally accepted accounting
principles, (e) all obligations of such Person to reimburse or prepay any bank
or other Person in respect of amounts paid under a letter of credit, banker's
acceptance or similar instrument, whether drawn or undrawn (provided, however,
if the Company provides standby letters of credit or bank guarantees in support
of obligations of a Subsidiary, only the underlying obligation and not the
contingent liability created by the letter of credit or bank guaranty shall be
treated as Debt of the Company and such Subsidiary), (f) all Debt of other
Persons secured by a Lien on any asset of such Person, whether or not such Debt
is assumed by such Person, (g) all obligations of such Person under a synthetic
lease transaction and (h) all Guarantees.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
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20
"Deutschemarks" and the sign "DM" each mean the national currency unit
for the time being of Germany.
"Dollars", "dollars" and the symbol "$" each mean the lawful currency
of the United States.
"Dollar Equivalent" means, at any time, (a) as to any amount
denominated in Dollars, the amount thereof at such time and (b) as to any amount
denominated in an Offshore Currency, the equivalent amount in Dollars as
determined by the Administrative Agent at such time on the basis of the Spot
Rate for the purchase of Dollars with such Offshore Currency on the most recent
Computation Date.
"Domestic Subsidiary" means each Subsidiary that is organized under the
laws of the United States or any state thereof.
"Effective Amount" means:
(a) with respect to any Revolving Loans on any date, the
Dollar Equivalent of the aggregate outstanding principal amount thereof after
giving effect to any Borrowing and prepayments or repayments of Revolving Loans
occurring on such date;
(b) with respect to any outstanding L/C Obligations on any
date, the Dollar Equivalent of the aggregate amount of such L/C Obligations on
such date after giving effect to the Issuance of any Letter of Credit occurring
on such date and any other changes in the amount of the L/C Obligations as of
such date, including as a result of any reimbursements of outstanding unpaid
drawings under Letters of Credit or any reductions in the maximum amount
available for drawing under the Letters of Credit taking effect on such date;
(c) with respect to any Swing Line Loan on any date, the
aggregate outstanding principal amount thereof after giving effect to any
Borrowing and prepayments or repayments of Swing Line Loans occurring on such
date;
(d) with respect to any Term Loan on any date, the aggregate
outstanding principal amount thereof after giving effect to any Borrowing and
prepayments or repayments of Term Loans occurring on such date;
(e) with respect to any Sterling Acquisition Loan on any date,
the aggregate outstanding principal amount thereof after giving effect to any
Borrowing and prepayments or repayments of Sterling Acquisition Loans occurring
on such date; and
(f) with respect to any PTI Term Loan on any date, the
aggregate outstanding principal amount thereof after giving effect to any
Borrowing and prepayments or repayments of PTI Term Loans occurring on such
date.
For purposes of Section 2.07, the Effective Amount shall be determined without
giving effect to any mandatory prepayments to be made under said Section.
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"Election to Participate" means an Election to Participate executed by
an Eligible Borrower and substantially in the form of Exhibit G.
"Election to Terminate" means an Election to Terminate executed by an
Eligible Borrower and substantially in the form of Exhibit H.
"Eligible Assignee" means (a) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100,000,000; (b) a commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
United States; (c) a Person that is primarily engaged in the business of
commercial banking and that is (i) a Subsidiary of a Lender, (ii) a Subsidiary
of a Person of which a Lender is a Subsidiary, or (iii) a Person of which a
Lender is a Subsidiary; (d) a commercial finance company or finance subsidiary
of a corporation organized under the laws of the United States of America, or
any State thereof, and having total assets in excess of $100,000,000; (e) a
savings bank or savings and loan association organized under the laws of the
United States of America, or any State thereof, and having total assets in
excess of $100,000,000; (f) as to the Term Loans, an "accredited investor" as
such term is defined in Rule 501(a) of Regulation D under the Securities Act of
1933, as amended (other than the Company or an Affiliate of the Company); and
(g) any other entity approved by the Company and the Administrative Agent.
"Eligible Borrower" means any (a) Wholly-Owned Consolidated Subsidiary
that is a Domestic Subsidiary the capital stock of which has been delivered to
the Administrative Agent pursuant to a Pledge Agreement and (b) Wholly-Owned
Consolidated Subsidiary that is a Foreign Subsidiary whose ultimate non-U.S.
parent's capital stock has been delivered to the Administrative Agent pursuant
to a Pledge Agreement, and in each case as to which an Election to Participate
shall have been delivered to the Administrative Agent and as to which an
Election to Terminate shall not have been delivered to the Administrative Agent.
Each such Election to Participate and Election to Terminate shall be duly
executed on behalf of such Wholly-Owned Consolidated Subsidiary and the Company
in such number of copies as the Administrative Agent may request. The delivery
of an Election to Terminate shall not affect any obligation of an Eligible
Borrower theretofore incurred. The Administrative Agent shall promptly give
notice to the Lenders of the receipt of any Election to Participate or Election
to Terminate.
"EMU" means European Economic and Monetary Union.
"EMU Legislation" means legislative measures of the European Council in
relation to EMU.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, injunctions, permits, conversions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment, to the effect of the environment on human health or to
emissions, discharges or releases of pollutants, contaminants, Hazardous
Substances or wastes into the environment, including ambient air, surface water,
ground water or land, or otherwise relating to the manufacture,
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processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor statute including any rules and
regulations promulgated thereunder.
"ERISA Group" means the Company, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company or any
Subsidiary, are treated as a single employer under Section 414(c) of the Code.
"euro" means the single currency of the Participating Member States.
"euro unit" means a currency unit of the euro.
"Eurocurrency Reserve Percentage" has the meaning specified in the
definition of "Offshore Rate".
"Event of Default" means any of the events or circumstances specified
in Section 10.01.
"Existing Credit Agreement" means the Amended and Restated Credit
Agreement, dated as of August 23, 1996, as amended by the First Amendment, dated
as of March 30, 1998, the Second Amendment, dated as of April 24, 1998, the
Third Amendment, dated as of June 26, 1998 and the Fourth Amendment, dated as of
August 5, 1998, among the Company, the financial institutions from time to time
party thereto and The Chase Manhattan Bank, as agent.
"Existing Letters of Credit" shall mean each letter of credit listed on
Schedule 3.09.
"FDIC" means the Federal Deposit Insurance Corporation, and any
Governmental Authority succeeding to any of its principal functions.
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including any
such successor, "H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the Administrative Agent of the rates for the
last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New
York City time) on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Administrative Agent.
"Fee Letter" has the meaning specified in Section 2.10(a).
"First Amended and Restated Credit Agreement" has the meaning specified
in the Recitals hereto.
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"First Amended and Restated Credit Agreement Lenders" has the meaning
specified in Section 12.19(b).
"Foreign Subsidiary" means each Subsidiary that is not a Domestic
Subsidiary.
"Francs" and the symbol "FF" each mean the national currency unit for
the time being of France.
"FRB" means the Board of Governors of the Federal Reserve System, and
any Governmental Authority succeeding to any of its principal functions.
"FTC" means the Federal Trade Commission of the United States.
"Further Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar charges
(including, without limitation, net income taxes and franchise taxes), and all
liabilities with respect thereto, imposed by any jurisdiction on account of
amounts payable or paid pursuant to Section 4.01.
"FX Trading Office" means the Foreign Exchange Trading Center
Charlotte, North Carolina of NationsBank, or such other foreign exchange trading
center of NationsBank as it may designate from time to time.
"GAAP" means U.S. generally accepted accounting principles set forth
from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority within the
U.S. accounting profession), which are applicable to the circumstances as of the
date of determination; provided, however, that for purposes of all computations
required to be made with respect to compliance by the Company with Sections
9.01, 9.02 and 9.03, such term shall mean generally accepted accounting
principles as in effect on the date of this Agreement, applied in a manner
consistent with those used in preparing the financial statements referred to in
Section 6.05(a).
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Debt or other obligation of any
Person and, without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such Person (a) to purchase or
pay (or advance or supply funds for the purchase or payment of) such Debt or
other obligation (whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or (b)
entered into for the purpose of assuring in any other manner the
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obligee of such Debt or other obligation of the payment thereof or to protect
such obligee against loss in respect thereof (in whole or in part); provided
that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Guilders" means the national currency unit for the time being of the
Netherlands.
"Hazardous Substances" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydro-carbons, or any substance having any constituent elements
displaying any of the foregoing characteristics and any other element, compound,
mixture, solution or substance which poses a present or potential hazard to
human health or the environment.
"Honor Date" shall mean the date that any amount is paid by the Issuing
Bank under any Letter of Credit.
"Indemnified Liabilities" has the meaning specified in Section 12.05.
"Indemnified Party" has the meaning specified in Section 12.05.
"Initial Funding Date" means the date on which all of the conditions
precedent set forth in Section 5.02 are satisfied in all material respects or
waived by the Majority Lenders and the initial Loans are made by the Lenders
hereunder to the Company to facilitate the purchase by Bidco of the Target
Shares pursuant to the Offer.
"Insolvency Proceeding" means, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors, or (b)
any general assignment for the benefit of creditors, composition, marshaling of
assets for creditors, or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors; undertaken under U.S.
Federal, state or foreign law, including the Bankruptcy Code or any foreign
equivalent.
"Intercompany Debt" means Debt representing loans from the Company or
any Qualified Subsidiary to a Non-Qualified Subsidiary.
"Interest Payment Date" means, as to any (i) Offshore Rate Loan, the
last day of each Interest Period applicable to such Offshore Rate Loan, (ii)
Base Rate Loan, the last Business Day of each March, June, September and
December and (iii) any Swing Line Loan bearing interest at the Quoted Rate, the
date such Swing Line Loan is to be repaid; provided, however, that if any
Interest Period exceeds three months, the date that falls three months after the
beginning of such Interest Period and after each Interest Payment Date
thereafter is also an Interest Payment Date.
"Interest Period" means, as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Offshore Rate Loan or on the
Conversion/Continuation Date on which the relevant Loan is converted into or
continued as an Offshore Rate Loan, and ending (x) with respect
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to any Offshore Rate Loan made on the Initial Funding Date or on the Business
Day following the Initial Funding Date, on March 31, 1999 and (y) with respect
to all other Offshore Rate Loans, on the date one, two, three or six months
thereafter as selected by the Company in its Notice of Borrowing or Notice of
Conversion/Continuation;
provided that:
(a) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the following
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 preceding Business Day;
(b) 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 the calendar month at the end of such Interest Period;
(c) no Interest Period for any Term Loan, PTI Term Loan or
Sterling Acquisition Loan shall extend beyond the Maturity Date and no Interest
Period for any Revolving Loan shall extend beyond the Revolving Loan Termination
Date; and
(d) no Interest Period applicable to a Term Loan, PTI Term
Loan or Sterling Acquisition Loan or portion thereof shall extend beyond any
Principal Payment Date unless the aggregate principal amount of such Term Loans,
PTI Term Loans and Sterling Acquisition Loans represented by Base Rate Loans or
Offshore Rate Loans having Interest Periods that will expire on or before such
date, equals or exceeds the amount of the principal payment due on such
Principal Payment Date.
"Investment" means any investment in any Person, whether by means of
share purchase, capital contribution, loan, time deposit or otherwise.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"Issuance Date" means the date upon which the Issuing Bank Issues a
Letter of Credit.
"Issue" means, with respect to any Letter of Credit, to issue or to
extend the expiry of, or to renew or increase the amount of, such Letter of
Credit; and the terms "Issued," "Issuing" and "Issuance" have corresponding
meanings.
"Issuing Bank" means (x) NationsBank in its capacity as issuer of the
Letters of Credit (other than Existing Letters of Credit) hereunder, together
with any replacement letter of credit issuer arising under Section 11.01(b) or
Section 11.09 and (y) Chase in its capacity as issuer of the Existing Letters of
Credit hereunder.
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"Joint Venture" means a single-purpose corporation, partnership,
limited liability company, joint venture or other similar legal arrangement
(whether created by contract or conducted through a separate legal entity) now
or hereafter formed by the Company or any of its Subsidiaries with another
Person in order to conduct a common venture or enterprise with such Person.
"Judgment Currency" has the meaning specified in Section 12.18.
"L/C Advance" means each Revolving Lender's participation in any L/C
Borrowing in accordance with its Pro Rata Revolving Share.
"L/C Amendment Application" means an application form for amendment of
outstanding Letters of Credit as shall at any time be in use at the Issuing
Bank, as the Issuing Bank shall request.
"L/C Application" means an application form for issuances of Letters of
Credit as shall at any time be in use at the Issuing Bank, as the Issuing Bank
shall request.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which shall not have been reimbursed on the date when
made or converted into a Borrowing of Revolving Loans under Section 3.03(b).
"L/C Commitment" means the commitment of the Issuing Bank to Issue, and
the commitment of the Revolving Lenders severally to participate in, Letters of
Credit from time to time Issued or outstanding under Article III, in an
aggregate amount not to exceed on any date the Effective Amount of $38,000,000
(of which amount (x) no more than the Effective Amount of $15,000,000 shall be
attributable to Letters of Credit issued on and after the Initial Funding Date
not relating to Existing Letters of Credit and (y) no more than the Effective
Amount of $23,000,000 shall be attributable to Existing Letters of Credit), as
the same shall be reduced as a result of a reduction in the L/C Commitment
pursuant to Section 2.05; provided that the L/C Commitment is a part of the
combined Revolving Loan Commitments, rather than a separate, independent
commitment.
"L/C-Related Documents" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document relating to
any Letter of Credit, including any of the Issuing Bank's standard form
documents for letter of credit issuances.
"L/C Obligations" means the sum of (i) the aggregate undrawn amount of
all Letters of Credit then outstanding, plus (ii) the amount of all unreimbursed
drawings under all Letters of Credit, including all outstanding L/C Borrowings.
"Lender" has the meaning specified in the introductory clause hereto.
References to the "Lenders" shall include NationsBank, including in its capacity
as Issuing Bank and Swing Line Lender and any other Lender assuming such
capacity in the future, and for purposes of clarification only, to the extent
that NationsBank may have any rights or obligations in addition to those of the
Lenders due to its status as Issuing Bank or Swing Line Lender, its status as
such will be specifically referenced.
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"Lending Office" means, as to any Lender, the office or offices of such
Lender specified as its "Lending Office" or "Domestic Lending Office" or
"Offshore Lending Office", as the case may be, on Schedule 12.02, or such other
office or offices as such Lender may from time to time notify the Company and
the Administrative Agent.
"Letters of Credit" means any letter of credit issued by Issuing Bank
hereunder, and any amendments thereto or replacements thereof, pursuant to
Article III, and each Existing Letter of Credit.
"Level" means, and includes, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇ or
Level V, whichever is in effect at the relevant time.
"Level I" shall exist at any time the Leverage Ratio is greater than
3.50:1.0.
"Level II" shall exist at any time the Leverage Ratio is equal to or
less than 3.50:1.0 but greater than 3.00:1.0.
"Level III" shall exist at any time the Leverage Ratio is equal to or
less than 3.00:1.0 but greater than 2.50:1.0.
"Level IV" shall exist at any time the Leverage Ratio is equal to or
less than 2.50:1.0 but greater than 2.00:1.0.
"Level V" shall exist at any time the Leverage Ratio is equal to or
less than 2.00:1.0.
"Leverage Ratio" means, with respect to any period, the ratio of
Consolidated Total Debt to Consolidated EBITDA tested as of the end of each
fiscal quarter for the preceding four fiscal quarters.
"LIBOR" has the meaning specified in the definition "Offshore Rate".
"Lien" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance, lien
(statutory or other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created by, arising under
or evidenced by any conditional sale or other title retention agreement, the
interest of a lessor under a capital lease, any financing lease having
substantially the same economic effect as any of the foregoing, or the filing of
any financing statement naming the owner of the asset to which such lien relates
as debtor, under the Uniform Commercial Code or any comparable law) and any
contingent or other agreement to provide any of the foregoing, but not including
the interest of a lessor under an operating lease.
"Lira" means the national currency unit for the time being of Italy.
"Loan" means an extension of credit by a Lender to a Borrower under
Article II or Article III in the form of a Revolving Loan, a Term Loan, a PTI
Term Loan, a Sterling Acquisition Loan, a Swing Line Loan or a L/C Borrowing.
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"Loan Documents" means this Agreement, any Notes, the Fee Letter, the
L/C-Related Documents, the Collateral Documents, each Election to Participate,
each Authorization Letter and all other documents delivered to the
Administrative Agent or any Lender in connection herewith.
"Majority Lenders" means as of the date of determination thereof, the
Lenders having at least 51% of the sum of (i) the aggregate principal amount of
loans and other extensions of credit then outstanding under any of the Loan
Documents plus (ii) the aggregate amount of the remaining available commitments
of the Lenders under any of the Loan Documents; provided, however, that for
purposes of determining the amount of a Revolving Lender's Loans, each Revolving
Lender shall be deemed to hold the principal amount of Swing Line Loans and the
amount L/C Obligations equal to its Revolving Loan Pro Rata Share of the Swing
Line Loans and L/C Obligations then outstanding.
"Mandatory Cost" means the cost imputed to the Lender(s) of compliance
with:
(a) the Mandatory Liquid Assets requirements of the Bank of
England and/or the banking supervision or other costs of the Financial Services
Authority as determined in accordance with Schedule 1(a); and
(b) any other applicable regulatory or central bank
requirement relating to any Loan made through a branch in the jurisdiction of
the currency of that Loan including any reserve asset requirements of the
European Central Bank.
"Margin Stock" means "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
"Material Debt" means Debt (other than the Notes) of the Company and/or
one or more of its Subsidiaries, in an aggregate principal amount, individually
or in the aggregate, exceeding $5,000,000.
"Material Plan" means at any time a Plan or Plans having an aggregate
amount of Unfunded Liabilities in excess of $1,000,000.
"Material Subsidiary" means ▇▇ ▇▇▇▇▇▇ #▇, ▇▇ ▇▇▇▇▇▇ #▇, ▇▇▇▇▇, ▇▇▇▇▇▇,
each Eligible Borrower, PTI MergeCo, PTI and any other Subsidiary of the Company
whose assets constitute 5% or more of the total assets of the Company and its
Subsidiaries taken as a whole.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., and any successor
thereto.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five (5) plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
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"national currency unit" means the lawful currency unit (other than a
euro unit) of a Participating Member State, being a sub-denomination of the euro
unit.
"NationsBank" means NationsBank, N.A., a national banking association,
individually.
"Net Proceeds" means proceeds in cash, checks or other cash equivalent
financial instruments (including Cash Equivalents) as and when received by the
Person making an Asset Disposition, net of: (a) the direct costs relating to
such Asset Disposition (excluding amounts payable to the Company or any
Affiliate of the Company), (b) all taxes paid or payable as a result thereof and
(c) amounts required to be applied to repay principal, interest and prepayment
premiums and penalties on Debt secured by a Lien on the asset which is the
subject of such Asset Disposition.
"Non-Qualified Subsidiary" means any Subsidiary that is not a Qualified
Subsidiary.
"Note" means a promissory note executed by a Borrower in favor of a
Lender pursuant to Section 2.02(b), in substantially the form of Exhibit F-1(A),
with respect to Revolving Loans before the PTI Effective Date, Exhibit F-1(B)
with respect to Revolving Loans after the PTI Funding Date, Exhibit F-2, with
respect to Term Loans, Exhibit F-3, with respect to Sterling Acquisition Loans,
Exhibit F-4, with respect to Swing Line Loans and Exhibit F-5 with respect to
PTI Term Loans.
"Notice of Borrowing" means a notice in substantially the form of (a)
Exhibit A-1 with respect to a Borrowing of Sterling Acquisition Loans or Term
Loans on a Business Day during the Certain Funds Period and (b) Exhibit A-2 with
respect to any other Borrowing.
"Notice of Conversion/Continuation" means a notice in substantially the
form of Exhibit B.
"Obligations" means all advances, debts, liabilities, obligations,
covenants and duties arising under any Loan Document owing by the Company to any
Lender, the Administrative Agent or any Indemnified Party, whether direct or
indirect (including those acquired by assignment), absolute or contingent, due
or to become due, now existing or hereafter arising.
"Offer" means the cash offer, recommended by the Directors of the
Target, for the Target Shares made or to be made by Bidco on the terms and
conditions contained in the Press Release, as such offer may be amended, varied
or waived in compliance with Section 7.12.
"Offer Document" means the document to be issued to the shareholders of
Target containing the Offer outlined in the Press Release.
"Offshore Currency" means, at any time, Sterling, Deutschemarks,
Guilders, Pesetas, Yen, Francs, Lira, Swiss Francs, euros and/or euro units or
such other currency as is acceptable to the Administrative Agent and the Lenders
in accordance with Section 2.15(e).
"Offshore Currency Loan" means any Revolving Loan that is an Offshore
Rate Loan denominated in an Offshore Currency and any Sterling Acquisition Loan.
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"Offshore Rate" means, for any Interest Period, with respect to
Offshore Rate Loans comprising part of the same Borrowing, the rate of interest
per annum (rounded upward to the next 1/100th of 1%) determined by the
Administrative Agent as follows:
Offshore Rate = LIBOR
--------------------------------------
1.00 - Eurocurrency Reserve Percentage
Where,
"Eurocurrency Reserve Percentage" means for any day for any
Interest Period the maximum reserve percentage (expressed as a
decimal, rounded upward to the next 1/100th of 1%) in effect
on such day (whether or not applicable to any bank or Lender)
under regulations issued from time to time by the FRB for
determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as
"Eurocurrency Liabilities"); and
"LIBOR" means the rate of interest per annum determined by the
Administrative Agent to be the rate of interest per annum at
which deposits, in the Applicable Currency in the approximate
amount of the Loan to be made or continued as, or converted
into, an Offshore Rate Loan by the entity that is the
Administrative Agent and having a maturity comparable to such
Interest Period, would be offered to major banks in the London
interbank market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of
such Interest Period rounded upwards to the next 1/100th of
1%.
The Offshore Rate shall be adjusted automatically as to all Offshore Rate Loans
then outstanding as of the effective date of any change in the Eurocurrency
Reserve Percentage. In the case of Offshore Currency Loans, the cost to the
Lenders of complying with any Mandatory Costs will be added to the interest rate
computed in the manner set forth in Schedule 1(a).
"Offshore Rate Loan" means a Loan (other than Swing Line Loans) that
bears interest based on the Offshore Rate.
"Organization Documents" means, for any corporation, partnership,
limited liability company or other similar organization or business entry, the
certificate or articles of incorporation, partnership agreement, limited
liability company agreement, memorandum or articles of association, the bylaws,
any certificate of determination or instrument relating to the rights of
preferred shareholders of such corporation or other entity, any shareholder
rights agreement, and all applicable resolutions of the board of directors (or
any committee thereof) of such corporation or other entity.
"Other Taxes" means any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to, this
Agreement or any other Loan Documents.
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"Overnight Rate" means, for any day, the rate of interest per annum at
which overnight deposits in the Applicable Currency, in an amount approximately
equal to the amount with respect to which such rate is being determined, would
be offered for such day by NationsBank's London Branch to major banks in the
London or other applicable offshore interbank market.
"Participant" has the meaning specified in Section 12.08(d).
"Participating Member State" means a member state of the European Union
that adopts the euro as its currency in accordance with legislation of the
European Union relating to European Economic and Monetary Union.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Permitted Liens" means:
(a) in the case of real properties, easements, restrictions,
exceptions, reservations or defects which, in the aggregate, do not interfere
materially with the continued use of such properties for the purposes for which
they are used and do not affect materially the value thereof;
(b) liens, if contested in good faith by appropriate
proceedings and appropriate reserves are maintained, in accordance with
generally accepted accounting principles, with respect thereto;
(c) pledges or deposits to secure obligations under workmen's
compensation laws or similar legislation or to secure performance in connection
with bids, tenders and contracts (other than contracts for the payment of
borrowed money) to which the Company or any of its Subsidiaries is a party;
(d) deposits to secure public or statutory obligations of the
Company or any of its Subsidiaries;
(e) materialmen's, mechanics', carriers', workmen's or other
like liens arising in the ordinary course of business, or deposits of cash or
United States obligations to obtain the release of such liens;
(f) deposits to secure surety or appeal bonds in proceedings
to which the Company or any of its Subsidiaries is a party;
(g) existing leases by the Company or its Subsidiaries of real
and personal property;
(h) liens for taxes not yet due and payable;
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(i) liens on the assets of Target and its Subsidiaries to the
extent such liens were in effect prior to the Announcement Date and are
otherwise acceptable to the Administrative Agent in the Administrative Agent's
reasonable discretion; and
(j) liens on the assets of PTI and its Subsidiaries to the
extent such liens were in effect prior to the PTI Effective Date and are
otherwise acceptable to the Administrative Agent in the Administrative Agent's
reasonable discretion.
"Permitted Swap Obligations" means all obligations (contingent or
otherwise) of the Company or any Subsidiary existing or arising under Swap
Contracts, provided that each of the following criteria is satisfied: (I) (a)
such obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly mitigating risks associated with
liabilities, commitments or assets held or reasonably anticipated by such
Person, or changes in the value of securities issued by such Person in
conjunction with a securities repurchase program not otherwise prohibited
hereunder, and not for purposes of speculation or taking a "market view" and (b)
such Swap Contracts do not contain (i) any provision ("walk-away" provision)
exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party, or (ii) any provision creating
or permitting the declaration of an event of default, termination event or
similar event upon the occurrence of an Event of Default (other than an Event of
Default under Section 10.01(a)) or (II) such Swap Contract was entered into
prior to the Announcement Date and is listed on Schedule 6.21.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
"Pesetas" means the national currency unit for the time being of Spain.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards set forth in Section 412 of the Code and either (a) is
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (b) has at any time within the preceding five
(5) years been maintained, or contributed to, by any Person which was at such
time a member of the ERISA Group for employees of any Person which was at such
time a member of the ERISA Group.
"Pledge Agreements" means, collectively, if and when each such document
is executed and delivered, (a) the Company Pledge Agreement, (b) each US Holdco
Pledge Agreement, (c) the Subsidiary Guarantor Pledge Agreement and (d) each
pledge agreement required to be delivered by a Foreign Subsidiary pursuant to
Section 7.11, in each case pledging the stock of their respective Subsidiaries
and (other than with respect to Foreign Subsidiaries) intercompany notes to the
Administrative Agent, for the benefit of itself, the Issuing Bank and the
Lenders, as each of the same may be amended, supplemented or otherwise modified
from time to time.
"Pledged Collateral" has the meaning specified in the relevant Pledge
Agreement.
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"Principal Payment Date" has the meaning specified in Section 2.08(d).
"Prior Loan Document" has the meaning specified in the Recitals.
"Prior Loan Document Lender" has the meaning specified in Section
12.19(a).
"Prohibited Transaction" means any transaction set forth in Section 406
of ERISA or Section 4975 of the Code.
"Press Release" means the form of press release agreed between the
Company and the Administrative Agent, which has been initialed by or on behalf
of the Company and the Administrative Agent for the purpose of identification, a
true and correct copy of which is attached as Exhibit O hereto.
"Projections" means the Company's forecasted consolidated: (a) balance
sheets; (b) income statements; and (c) cash flow statements, all prepared on a
basis consistent with the Company's historical financial statements.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, and whether tangible or intangible.
"Pro Rata Revolving Share" means, as to any Revolving Lender, (a) at
any time at which the Aggregate Revolving Loan Commitment remains outstanding,
the percentage equivalent (expressed as a decimal rounded to the ninth decimal
place) at such time of such Lender's Revolving Loan Commitment divided by the
Aggregate Revolving Loan Commitment, and (b) after the termination of the
Aggregate Revolving Loan Commitment, the percentage equivalent (expressed as a
decimal, rounded to the ninth decimal place) at such time of the principal
amount of such Lender's outstanding Revolving Loans (other than Swing Line
Loans) divided by the aggregate principal amount of the outstanding Revolving
Loans (other than Swing Line Loans) of all the Lenders.
"Pro Rata Share" means, as to any Lender, (a) in respect of a
particular Loan and/or Commitment, (i) at any time at which the Commitments in
respect of such Loan remain outstanding, the percentage equivalent (expressed as
a decimal, rounded to the ninth decimal place) at such time of such Lender's
Commitment in respect of such Loan divided by the combined Commitments in
respect of such Loan, and (ii) after the termination of the Commitments in
respect of such Loan, the percentage equivalent (expressed as a decimal, rounded
to the ninth decimal place) at such time of the principal amount outstanding of
such Loans held by such Lender divided by the aggregate principal amount
outstanding of such Loans held by all Lenders, and (b) in respect of all Loans
and/or Commitments, (i) at any time at which the Aggregate Commitment (or any
portion thereof) remains outstanding, the percentage equivalent (expressed as a
decimal, rounded to the ninth decimal place) at such time of such Lender's
Commitments in respect of all Loans divided by the Aggregate Commitment, and (b)
after the termination of the Aggregate Commitment, the percentage equivalent
(expressed as a decimal, rounded to the ninth decimal place) at such time of the
principal amount of such Lender's outstanding Loans (including such Lender's
ratable share of outstanding Swing Line Loans and L/C Obligations) divided by
the aggregate principal amount of the outstanding Loans and L/C Obligations of
all of the Lenders.
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"PTI" means PTI, Inc. a Delaware corporation.
"PTI Effective Date" means the date on which all of the conditions
precedent set forth in Section 5.05 are satisfied or waived by the Lenders.
"PTI Funding Date" means the date on which all of the conditions
precedent set forth in Section 5.06 are satisfied or waived by the Lenders or
the Administrative Agent, as the case may require, and the initial PTI Term
Loans are made by the Lenders holding PTI Term Loan Commitments hereunder to the
Company to facilitate the purchase by PTI MergeCo of all of the outstanding
capital stock of PTI pursuant to the PTI Merger.
"PTI MergeCo" has the meaning specified in the Recitals hereto.
"PTI Merger" has the meaning specified in the Recitals hereto.
"PTI Merger Documents" has the meaning specified in Section 6.22(b).
"PTI Revolver Increase Commitment" has the meaning specified in the
Recitals hereto.
"PTI Subsidiaries" means each Subsidiary of PTI.
"PTI Term Loan" has the meaning specified in Section 2.01(e).
"PTI Term Loan Commitment" means, as to each Lender, such Lender's PTI
Term Loan Commitment, as specified on Schedule 2.01.
"PTI Term Loan Commitment Fee" has the meaning specified in Section
2.10(e).
"Qualified Subsidiary" means any Subsidiary Guarantor and any Eligible
Borrower.
"Quoted Rate" means the rate of interest per annum with respect to a
Swing Line Loan as agreed to between the Company and the Swing Line Lender at
the time such Swing Line Loan is made to the Company.
"Relevant Event of Default" has the meaning specified in Section 10.02.
"Relevant Representations and Warranties" means each of the matters
represented in Section 6.01(a) (with respect to the Company, US Holdco #1, US
Holdco #2 and Bidco) and Sections 6.02(b), 6.03, 6.15(a) and 6.16.
"Relevant Undertakings" means each of the undertakings and covenants of
the Company contained in Sections 7.04(a), 7.08(d), 7.09, 7.12(a), (c), (f) and
(j) and 8.02.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case
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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" means (i) the chief executive officer or the
president of the Company, or any other officer having substantially the same
authority and responsibility; or, with respect to compliance with financial
covenants, the chief financial officer or the treasurer of the Company, or any
other officer having substantially the same authority and responsibility or (ii)
with respect to PTI or PTI MergeCo, the chief executive officer or the president
of such Person, or any other officer having substantially the same authority and
responsibility; or, with respect to compliance with financial covenants, the
chief financial officer or the treasurer of such Person, or any other officer
having substantially the same authority and responsibility. Unless otherwise
qualified, "Responsible Officer" means a Responsible Officer of the Company.
"Restricted Payment" means (a) any dividend or other distribution on
any shares of the Company's or any of its Subsidiaries' capital stock (except
dividends payable solely in shares of such Person's capital stock) or (b) any
payment on account of the purchase, redemption, retirement or acquisition of (i)
any shares of the Company's or any of its Subsidiaries' capital stock or (ii)
any option, warrant or other right to acquire shares of the Company's or any of
its Subsidiaries' capital stock; provided, that any Subsidiary of the Company
shall at all times be permitted to make payments, distributions or dividends of
the type referenced in clauses (a) and (b) above to the Company or any
Wholly-Owned Consolidated Subsidiary of the Company and such payments,
distributions or dividends shall be excluded under the definition of Restricted
Payments.
"Revolving Lender" means a Lender having a Revolving Loan Commitment.
"Revolving Loan" has the meaning specified in Section 2.01(c).
"Revolving Loan Commitment" has the meaning specified in Section
2.01(c).
"Revolving Loan Commitment Fee" has the meaning specified in Section
2.10(b).
"Revolving Loan Termination Date" means the earlier to occur of:
(a) the date which is the fifth anniversary of the
Announcement Date; and
(b) the date on which the Revolving Loan Commitments terminate
and are reduced to zero in accordance with Section 2.05(a), 2.07(a) or 10.03.
"S&P" means Standard & Poor's Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇
Companies, and any successor thereto.
"Same Day Funds" means (a) with respect to disbursements and payments
in Dollars, immediately available funds, and (b) with respect to disbursements
and payments in an Offshore Currency, same day or other funds as may be
reasonably determined by the Administrative Agent to be customary in the place
of disbursement or payment for the settlement of international banking
transactions in the relevant Offshore Currency.
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"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Solvent" means, when used with respect to (A) a Person (other than
subject to clause (B)), that (a) the fair saleable value of the assets of such
Person (including goodwill) is in excess of the total amount of the present
value of its liabilities (including for purposes of this definition all
liabilities (including loss reserves as determined by such Person), whether or
not reflected on a balance sheet prepared in accordance with GAAP), (b) such
Person is able to pay its debts or obligations in the ordinary course as they
mature and (c) such Person does not have unreasonably small capital to carry out
its business as conducted and as proposed to be conducted and (B) for any Person
incorporated in England and Wales, on a particular date, on that date such
Person has the ability to pay its debts as and when they fall due and could not
be deemed to be insolvent for the purposes of the Insolvency ▇▇▇ ▇▇▇▇ of the
United Kingdom. "Solvency" shall have a correlative meaning.
"Specified Foreign Subsidiary" has the meaning specified in Section
5.02(g).
"Spot Rate" for a currency means the rate generally quoted by
NationsBank as the spot rate for the purchase by NationsBank of such currency
with another currency through its FX Trading Office on the date two Business
Days prior to the date as of which the foreign exchange computation is made.
"Squeeze-Out" has the meaning specified in the second paragraph of this
Agreement.
"Squeeze-Out Date" means the Business Day after the Business Day
following the last date upon which Bidco becomes obliged to pay any
consideration for the purchase of the Target Shares.
"Squeeze-Out Period" means the period from the Initial Funding Date to
and including the last day of the Certain Funds Period.
"Stated Amount" means the stated or face amount of a Letter of Credit
to the extent available at the time for drawing (subject to presentment of all
requested documents), as the same may be increased or decreased from time to
time in accordance with the terms of such Letter of Credit
"Sterling" and the symbol "pound sterling" each mean the lawful
currency of the United Kingdom.
"Sterling Acquisition Loan" has the meaning specified in Section
2.01(b).
"Sterling Acquisition Loan Commitment" means, as to each Lender, such
Lender's Sterling Acquisition Loan Commitment, as specified on Schedule 2.01.
"Sterling Acquisition Loan Commitment Fee" has the meaning specified in
Section 2.10(d).
"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business entity
(A) of which more than 50% of the voting stock, membership interests or other
equity interests (in the case of Persons other than corporations), is
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37
owned or controlled directly or indirectly by the such Person, or one or more of
the Subsidiaries of such Person, or a combination thereof and (B) with respect
to any Person incorporated in England and Wales, a subsidiary within the meaning
of Section 736 of the Companies Act or, unless the context otherwise requires, a
subsidiary undertaking within the meaning of Section 258 of the Companies Act.
Unless the context otherwise clearly requires, references herein to a
"Subsidiary" refer to a Subsidiary of the Company; provided, that for purposes
of this Agreement, neither Target nor any Target Subsidiary shall be a
Subsidiary until the occurrence of the Initial Funding Date after giving effect
to the Transaction completed on such date.
"Subsidiary Guarantor" means, collectively, (a) US Holdco #1, US Holdco
#2, each Domestic Subsidiary identified as a Subsidiary Guarantor on the
Announcement Date on Schedule 6.08 and each other Domestic Subsidiary created or
acquired after the Announcement Date and (b) to the extent required pursuant to
Section 7.11, each Foreign Subsidiary.
"Subsidiary Guarantor Pledge Agreement" means the Pledge Agreement to
be executed and delivered by the Subsidiary Guarantors (other than US Holdco #1
and US Holdco #2) in the form attached to this Agreement as Exhibit I-3.
"Subsidiary Guaranty" means the Guaranty to be executed and delivered
by the Subsidiary Guarantors in the form attached to this Agreement as Exhibit
J-2.
"Surety Instruments" means all letters of credit (including standby and
documentary), banker's acceptances, bank guaranties, shipside bonds, surety
bonds and similar instruments.
"Swap Contract" means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap or
option, bond, note or ▇▇▇▇ option, interest rate option, forward foreign
exchange transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swaption, currency option or any other, similar
transaction (including any option to enter into any of the foregoing) or any
combination of the foregoing, and, unless the context otherwise clearly
requires, any master agreement relating to or governing any or all of the
foregoing.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a) the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined by the Company
based upon one or more mid-market or other readily available quotations provided
by any recognized dealer in such Swap Contracts (which may include any Lender).
"Swing Line Loan Commitment" has the meaning specified in Section
2.01(d).
"Swing Line Lender" means NationsBank, in its capacity as provider of
the Swing Line Loans. With respect to Swing Line Loans, NationsBank may cause a
local affiliate to make such
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Swing Line Loans and such local affiliate shall be deemed to be the Swing Line
Lender for the purposes of this Agreement.
"Swing Line Loan" means a Loan made by the Swing Line Lender,
denominated in Dollars, pursuant to Section 2.01(d).
"Swing Line Termination Date" means the earlier to occur of:
(a) the date which is the fifth Business Day prior to the
fifth anniversary of the Announcement Date; and
(b) the date on which the Revolving Loan Commitment terminates
in accordance with the provisions of this Agreement.
"Swiss Francs" means the lawful currency of Switzerland.
"Take Out Debt" has the meaning specified in Section 8.01(g).
"Target" has the meaning ascribed thereto in the recitals.
"Target Shares" means the issued shares of each class of the capital of
the Target (including any shares of the Target issued while the Offer remains
open for acceptance).
"Target Subsidiaries" means each Subsidiary of the Target.
"Taxes" means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Administrative Agent, respectively, taxes imposed on or measured by its net
income by the jurisdiction (or any political subdivision thereof) under the laws
of which such Lender or the Administrative Agent, as the case may be, is
organized or maintains a lending office.
"Term Loan" has the meaning specified in Section 2.01(a).
"Term Loan Commitment" means, as to each Lender, such Lender's Term
Loan Commitment, as specified on Schedule 2.01.
"Term Loan Commitment Fee" has the meaning specified in Section
2.10(c).
"Transaction" shall include (a) the Offer, (b) the purchase of Target
Shares by Bidco (c) the Credit Extensions made on the Initial Funding Date and
(d) the refinancing of certain Debt of the Company and its Subsidiaries
(including Target and certain Target Subsidiaries) on the Initial Funding Date.
"Transaction Agreements" has the meaning specified in Section 6.22.
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"Type" means, with respect to any Borrowing of Loans (other than Swing
Line Loans), its nature as a Base Rate Loan or an Offshore Rate Loan.
"Unconditional Date" means the date upon which the Offer becomes or is
declared unconditional in all respects.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (a) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), but only to the extent that
such excess represents a potential liability of any member of the ERISA Group to
the PBGC or any other Person under Title IV of ERISA.
"United States" and "U.S." each means the United States of America.
"US Holdco #1" means MacDermid Tower, Inc., a Delaware corporation, a
Wholly-Owned Consolidated Subsidiary of the Company and 50% shareholder of
Bidco.
"US Holdco #2" means MacDermid Tartan, Inc., a Delaware corporation, a
Wholly-Owned Consolidated Subsidiary of the Company and 50% shareholder of
Bidco.
"US Holdco Pledge Agreement" means the Pledge Agreement to be executed
and delivered by each of US Holdco #1 and US Holdco #2 in the form attached as
Exhibit I-2 hereto.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated
Subsidiary all of the shares of capital stock or other ownership interests of
which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Company.
"Y2K Problem" means any significant risk that computer hardware,
software or equipment containing embedded microchips essential to the business
or operations of a Person will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as efficiently and reliably
in all material respects as in the case of times or time periods occurring
before January 1, 2000, including the making of accurate leap year calculations.
"Yen" means the lawful currency of Japan.
1.02 Other Interpretive Provisions
(a) The meanings of defined terms are equally applicable to
the singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar
words 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.
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(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from
and including"; the words "to" and "until" each mean "to but
excluding", and the word "through" means "to and including."
(d) Unless otherwise expressly provided herein, (i) references
to agreements (including this Agreement) and other contractual instruments shall
be deemed to include all subsequent amendments and other modifications thereto,
but only to the extent such amendments and other modifications are not
prohibited by the terms of any Loan Document, and (ii) references to any statute
or regulation are to be construed as including all statutory and regulatory
provisions consolidating, amending, replacing, supplementing or interpreting
such statute or regulation.
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
(f) This Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and shall
each be performed in accordance with their terms. Unless otherwise expressly
provided, any reference to any action of the Administrative Agent or the Lenders
by way of consent, approval or waiver shall be deemed modified by the phrase "in
its/their sole discretion."
(g) This Agreement and the other Loan Documents are the result
of negotiations among and have been reviewed by counsel to the Administrative
Agent, the Company and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders or the
Administrative Agent merely because of the Administrative Agent's or Lenders'
involvement in their preparation.
(h) Any test, threshold, item, limit or other measurement
expressed in Dollars herein shall also mean and include the Dollar Equivalent of
such amount from time to time should the test, threshold, item, limit or other
measurement be used in respect of any item expressed in a currency other than
Dollars.
(i) To the extent that any provision of this Agreement relates
to any currency of a state which is not a Participating Member State on the date
of this Agreement, that provision shall take effect as though the reference to
that currency were a reference to euro on the date on which that country becomes
a Participating Member State.
1.03 Accounting Principles
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(a) Unless the context otherwise clearly requires, all
accounting terms not expressly defined herein shall be construed, and all
financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitment.
(a) Term Loan
Each Lender with a Term Loan Commitment severally agrees, on
the terms and conditions set forth herein, to make loans to the Company (each
such loan, a "Term Loan") on the Initial Funding Date, in an amount not to
exceed such Lender's Term Loan Commitment as set forth on Schedule 2.01. Amounts
borrowed as a Term Loan which are repaid or prepaid by the Company may not be
reborrowed.
(b) Sterling Acquisition Loan
Each Lender with a Sterling Acquisition Loan Commitment
severally agrees, on the terms and conditions set forth herein, to make loans to
the Company (each such loan, a "Sterling Acquisition Loan") on the Business Day
following the Initial Funding Date, in an amount not to exceed such Lender's
Sterling Acquisition Loan Commitment as set forth on Schedule 2.01. Amounts
borrowed as a Sterling Acquisition Loan which are repaid or prepaid by the
Company may not be reborrowed.
(c) The Revolving Credit
(i) Subject to Section 2.01(d), each Revolving Lender
severally agrees, on the terms and conditions set forth herein, to make
loans to a Borrower (each such loan, a "Revolving Loan") from time to
time on any Business Day during the period from the Initial Funding
Date to the Revolving Loan Termination Date, in an aggregate amount not
to exceed at any time outstanding the amount set forth on Schedule 2.01
(such amount, as the same may be increased pursuant to Section
2.01(c)(ii), reduced under Section 2.05 or 2.07 or reduced or increased
as a result of one or more assignments under Section 12.08, such
Revolving Lender's "Revolving Loan Commitment"); provided, however,
that, after giving effect to any Borrowing of Revolving Loans, the
Effective Amount of Revolving Loans, Swing Line Loans and L/C
Obligations at such time shall not at any time exceed the Aggregate
Revolving Loan Commitment; and provided further, that the Effective
Amount of Revolving Loans of any Revolving Lender plus the
participation of such Revolving Lender in the Effective Amount of all
L/C Obligations and such Revolving Lender's Pro Rata
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Revolving Share of the Effective Amount of Swing Line Loans shall not
at any time exceed such Revolving Lender's Revolving Loan Commitment.
Within the limits of each Revolving Lender's Commitment, and subject to
the other terms and conditions hereof, a Borrower may borrow under this
Section 2.01(c), prepay under Section 2.06 and reborrow under this
Section 2.01(c).
(ii) On and after the date upon which the
Administrative Agent and any co-arrangers have notified the Company
that they are satisfied with the initial syndication of the Commitments
and Loans, the Company may, at its option at any time on a single
occasion, seek to increase the Revolving Loan Commitment by up to
$50,000,000 (after giving effect to which the Aggregate Revolving Loan
Commitment shall not exceed an amount equal to $125,000,000 (provided,
however, in the event that the Aggregate Revolving Loan Commitment has
been increased on the PTI Funding Date pursuant to the PTI Revolver
Increase Commitment, such amount shall not exceed $175,000,000 and
provided, further, that each Revolving Lender hereby agrees to make the
necessary adjustments or payments as determined by the Administrative
Agent on the PTI Funding Date (including the wiring of funds to other
Revolving Lenders) to properly reflect such Revolving Lender's Pro Rata
Share of the outstanding Revolving Loans after taking into account the
PTI Revolver Increase Commitment and any Revolving Loan borrowings on
the PTI Funding Date) less the aggregate amount of reductions to the
Revolving Loan Commitment effected on or prior to the date of such
increase) upon at least 30 days (but not more than 45 days) written
notice to the Administrative Agent (which notice the Administrative
Agent shall promptly deliver to the Lenders), which notice shall
specify the date upon which such increase is to occur and shall be
delivered at a time when no Default or Event of Default has occurred
and is continuing. The Company shall, after giving such notice, offer
the increase in the Revolving Loan Commitment (A) (i) first on a
pro-rata basis to the Lenders, which Lenders may in their individual
sole discretion decline such offer, and (ii) then on a non pro-rata
basis to Lenders and/or (B) to other lenders or entities constituting
Eligible Assignees and otherwise reasonably acceptable to the
Administrative Agent and the Company, provided that the minimum final
allocated Revolving Loan Commitment of each such lender or other entity
is equal to or in excess of $10,000,000 in the case of any new lender
and $5,000,000 in the case of an existing Lender. No increase in the
Revolving Loan Commitments shall become effective until the existing or
new Lenders extending such incremental commitment amount shall have
delivered to the Administrative Agent a writing in form reasonably
satisfactory to the Administrative Agent pursuant to which such
existing Lenders state the amount of their Revolving Loan Commitment
increase and any such new Lenders state their Revolving Loan Commitment
amount and agree to assume and accept the obligations and rights of a
Lender hereunder and any such new and increasing Lenders agree to make
a Revolving Loan such that the outstandings of such new Lender or
increasing Lender constitute a proportionate amount of the aggregate
outstanding Revolving Loans based on the Revolving Loan Commitment of
such new or increasing Lender. Any Borrowing as a result of an increase
to the Revolving Loan Commitment pursuant to this Section 2.01(c)(ii)
shall be subject to the terms and conditions contained in this
Agreement.
(iii) (A) On and after the third anniversary of the
Announcement Date, the Company may make a written request to the
Administrative Agent, who shall
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forward a copy of each such request to each of the Lenders, that the
Revolving Loan Termination Date then in effect be extended to the date
which is one year after such existing Revolving Loan Termination Date;
provided, however, that the Borrower shall not be permitted to obtain
more than one extension pursuant to this clause (iii). Such request
shall be accompanied by a certificate of a Responsible Officer of the
Company stating that no Default or Event of Default has occurred and is
continuing. If, by the date (a "Response Date") which is 60 days after
the date of such request, Lenders holding at least 85% of the Revolving
Loan Commitments then outstanding agree thereto in writing (each such
Lender, a "Continuing Lender"), the Revolving Loan Termination Date of
each Continuing Lender shall be automatically extended to the first
anniversary of the then existing Revolving Loan Termination Date, and
the Revolving Loan Termination Date with respect to any non-Continuing
Lender (a "Non-Continuing Lender") shall, subject to the following
clause (B), remain the then existing Revolving Loan Termination Date.
In the event that the Company has not obtained agreement to the
requested extension from the requisite percentage of Lenders to permit
an extension by the Response Date, the Revolving Loan Termination Date
shall not be extended. If the Borrower obtains agreement from the
requisite percentage of the Lenders during such 60 day period, the
Revolving Loan Termination Date shall be extended as provided in the
second preceding sentence. The Administrative Agent shall notify the
Company and each Lender of the effectiveness of any such extension. No
Lender shall be obligated to agree to any extension pursuant to this
clause (iii), and the extension of the Revolving Loan Termination Date
as to any Lender shall be in its sole discretion; provided, however,
that as to any extension by a Lender pursuant to this Section
2.01(c)(iii), the definition of Revolving Loan Termination Date as to
such Lender shall be construed so as to take into account the extension
of such Lender's Revolving Loan Commitment.
(B) In the case of a Non-Continuing Lender, the Company, after
giving notice to the Administrative Agent and such Non-Continuing
Lender, may request such Non-Continuing Lender to assign its entire
Revolving Loan Commitment (and upon receipt of such notice such
Non-Continuing Lender hereby agrees to take such action as reasonably
requested by the Company to effect such assignment pursuant to Section
12.08) (i) to the Continuing Lenders, (x) first on a pro-rata basis,
which the Continuing Lenders may in their individual sole discretion
decline to accept such offer, and (y) then on a non pro-rata basis to
Continuing Lenders and/or (ii) to other lenders or entities
constituting Eligible Assignees and otherwise reasonably acceptable to
the Administrative Agent and the Company, provided that any such new
lender shall agree that its Revolving Loan Commitment will terminate on
the date applicable to the Revolving Loan Commitment of the Continuing
Lenders, and all then outstanding Obligations owing to such Non-
Continuing Lender shall be repaid in full on the date of any such
assignment.
(d) Swing Line Loans
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(i) Subject to the terms and conditions hereof, the
Swing Line Lender agrees to make Swing Line Loans to the Company from
time to time prior to the Swing Line Termination Date in an aggregate
principal amount at any one time outstanding not to exceed $15,000,000
(the "Swing Line Loan Commitment"); provided, that after giving effect
to any such Swing Line Loan, the Effective Amount of Revolving Loans,
Swing Line Loans and L/C Obligations at such time would not exceed the
Aggregate Revolving Loan Commitment at such time. Prior to the Swing
Line Termination Date, the Company may use the Swing Line Commitment by
borrowing, prepaying the Swing Line Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
(ii) The Company may borrow under the Swing Line
Commitment on any Business Day after the Initial Funding Date but on or
prior to the Swing Line Termination Date; provided, that the Company
shall deliver to the Swing Line Lender a Notice of Borrowing signed by
a Responsible Officer (which notice must be received by the Swing Line
Lender prior to 1:00 p.m. (New York time)) with a copy to the
Administrative Agent specifying the amount of the requested Swing Line
Loan, which shall be in a minimum amount of $500,000 or a whole
multiple of $100,000 in excess thereof. The proceeds of the Swing Line
Loan will be made available by the Swing Line Lender to the Company in
immediately available funds at the office of the Swing Line Lender by
2:00 p.m. (New York time) on the date of such notice. The Company may
at any time and from time to time, prepay the Swing Line Loans, in
whole or in part, without premium or penalty, by notifying the Swing
Line Lender prior to 1:00 p.m. (New York time) on any Business Day of
the date and amount of prepayment with a copy to the Administrative
Agent. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein. Partial
prepayments shall be in an aggregate principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof.
(iii) The Swing Line Lender, at any time in its sole
and absolute discretion, may on behalf of the Company (which hereby
irrevocably directs the Swing Line Lender to so act on its behalf)
notify the Administrative Agent to notify each Revolving Lender
(including the Swing Line Lender) to make a Revolving Loan to the
Company in a principal amount equal to such Lender's Pro Rata Revolving
Share of the amount of such Swing Line Loan, and such Revolving Lender
shall be obligated, pursuant to Section 2.01(c), to make Same Day Funds
available to the Administrative Agent on the date such notice is given
in an aggregate amount equal to or in excess of such Swing Line Loan,
in which case such funds shall be applied by the Administrative Agent
first to repay such Swing Line Loan and any remaining funds shall be
made available to the Company in accordance with Section 2.01(c);
provided, however, that such notice shall be deemed to have
automatically been given upon the occurrence of an Event of Default
under Section 10.01(g) or (h). Upon notice from the Administrative
Agent, each Revolving Lender (other than the Swing Line Lender) will
immediately transfer to the Administrative Agent, for transfer to the
Swing Line Lender, in immediately available funds, an amount equal to
such Revolving Lender's Pro Rata Revolving Share of the amount of such
Swing Line Loan so repaid. So long as no notice has been delivered to
the Swing Line Lender pursuant to Section 2.01(d)(iv)(ii) prior to the
making of each relevant Swing Line Loan, each Revolving Lender's
obligation to transfer the amount of such Revolving Loan to the
Administrative Agent shall be absolute and
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unconditional and shall not be affected by any circumstance, including,
without limitation, (i) any set- off, counterclaim, recoupment, defense
or other right which such Revolving Lender or any other Person may have
against the Swing Line Lender, (ii) the occurrence or continuance of a
Default or an Event of Default or the termination of the Revolving Loan
Commitments, (iii) any adverse change in the condition (financial or
otherwise) of the Company or any other Person, (iv) any breach of this
Agreement by the Company or any other Person or (v) any other
circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.
(iv) Notwithstanding anything herein to the contrary,
the Swing Line Lender (i) shall not be obligated to make any Swing Line
Loan if the conditions set forth in Article V have not been satisfied
and (ii) shall not make any requested Swing Line Loan if, prior to
11:00 a.m. (New York time) on the date two (2) days preceding the date
of such requested Swing Line Loan, it has received a written notice
from the Administrative Agent or any Revolving Lender directing it not
to make further Swing Line Loans because one or more of the conditions
specified in Article V are not then satisfied.
(v) If prior to the making of a Revolving Loan
required to be made by Section 2.01(d)(iii) an Event of Default
described in Section 10.01(g) or (h) shall have occurred, each
Revolving Lender will, on the date such Revolving Loan was to have been
made pursuant to the notice described in Section 2.01(d)(iii), purchase
an undivided participating interest in the Effective Amount of Swing
Line Loans in an amount equal to its Pro Rata Revolving Share of the
Effective Amount of Swing Line Loans then outstanding. Each Revolving
Lender will immediately transfer to the Administrative Agent for the
benefit of the Swing Line Lender, in immediately available funds, the
amount of its participation.
(vi) Whenever, at any time after a Revolving Lender
has purchased a participating interest in a Swing Line Loan, the Swing
Line Lender receives any payment on account thereof, the Swing Line
Lender will distribute to the Administrative Agent for delivery to such
Revolving Lender the amount of its participating interest in such
amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Revolving Lender's
participating interest was outstanding and funded); provided, however,
that in the event that such payment received by the Swing Line Lender
is required to be returned, such Revolving Lender will return to the
Administrative Agent for delivery to the Swing Line Lender any portion
thereof previously distributed by the Swing Line Lender to it.
(vii) So long as no notice has been delivered to the
Swing Line Lender pursuant to Section 2.01(d)(iv)(ii) prior to the
making of each relevant Swing Line Loan, each Revolving Lender's
obligation to make the Revolving Loans referred to in Section
2.01(d)(iii) and to purchase participating interests pursuant to
Section 2.01(d)(v) shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (I) any
set-off, counterclaim, recoupment, defense or other right which such
Revolving Lender or a Borrower may have against the Swing Line Lender,
a Borrower or any other Person for any reason whatsoever, (II) the
occurrence or continuance of a Default or an Event of Default, (III)
any adverse change in the condition (financial or otherwise) of
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the Company or any Subsidiary Guarantor, (IV) any breach of this
Agreement or any other Loan Document by the Company or any of its
Subsidiaries or any other Lender or (V) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing.
(e) PTI Term Loan
Each Lender with a PTI Term Loan Commitment severally agrees,
on the terms and conditions set forth herein, to make loans to the Company (each
such loan, a "PTI Term Loan") on the PTI Funding Date, in an amount not to
exceed such Lender's PTI Term Loan Commitment as set forth on Schedule 2.01.
Amounts borrowed as a PTI Term Loan which are repaid or prepaid by the Company
may not be reborrowed.
2.02 Loan Accounts.
(a) The Loans made by each Lender and the Letters of Credit
Issued by the Issuing Bank shall be evidenced by one or more accounts or records
maintained by such Lender or Issuing Bank, as the case may be, in the ordinary
course of business. The accounts or records maintained by the Administrative
Agent, the Issuing Bank and each Lender shall be prima facie evidence of the
amount of the Loans made by the Lenders to a Borrower and the Letters of Credit
Issued by the Issuing Bank for the account of the Company, and the interest and
payments thereon. Any failure so to record or any error in doing so shall not,
however, limit or otherwise affect the obligation of a Borrower hereunder to pay
any amount owing with respect to the Loans or any Letter of Credit.
(b) Upon the request of any Lender made through the
Administrative Agent, the Loans made by such Lender may be evidenced by one or
more Notes, instead of or in addition to loan accounts. Each such Lender may
record on the schedules annexed to its Note(s) the date, amount and maturity of
each Loan made by it and the amount of each payment of principal made by the
applicable Borrower with respect thereto. Each such Lender is irrevocably
authorized by each Borrower to make such recordations on its Note(s) and each
Lender's record shall be deemed prima facie correct; provided, however, that the
failure of a Lender to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the obligations any
Borrower hereunder or under any such Note to such Lender.
2.03 Procedure for Borrowing.
(a) Each Borrowing (other than a Borrowing of Swing Line Loans
or a L/C Borrowing) shall be made upon a Borrower's irrevocable written notice
delivered to the Administrative Agent in the form of a Notice of Borrowing
(which notice must be received by the Administrative Agent prior to (i) 11:30
a.m. (New York time) three Business Days prior to the requested Borrowing Date,
in the case of Offshore Rate Loans denominated in Dollars, (ii) 1:00 p.m. (New
York time) four Business Days prior to the requested Borrowing Date, in the case
of Offshore Rate Loans in an Offshore Currency and (iii) 11:30 a.m. (New York
time) on the date of the requested Borrowing, in the case of Base Rate Loans,
specifying:
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(i) the amount of the Borrowing, which shall be in an
aggregate minimum amount of $1,000,000, or any multiple of $100,000 in
excess thereof, in the case of Base Rate Loans, and $2,00,000, or any
multiple of $100,000 in excess thereof, in the case of Offshore Rate
Loans;
(ii) the requested Borrowing Date, which shall be a
Business Day;
(iii) whether such Loan shall be a Revolving Loan, a
Term Loan, PTI Term Loan or a Sterling Acquisition Loan;
(iv) the Type of Loans comprising the Borrowing;
(v) if a Revolving Loan comprised of Offshore Currency
Loans, the Applicable Currency;
(vi) if the Loan then requested is to be an Offshore
Rate Loan, the duration of the Interest Period applicable to such Loans
included in such notice, provided, however, that in the event the
Notice of Borrowing fails to specify the duration of the Interest
Period for any Borrowing comprised of Offshore Rate Loans, such
Interest Period shall be three months; and
(vii) if a Revolving Loan, the identity of the Borrower.
(b) Upon receipt of the Notice of Borrowing, the Administrative
Agent will promptly notify each Lender thereof and of the amount of such
Lender's Pro Rata Share of the related Borrowing. In the case of a Borrowing of
Revolving Loans comprised of Offshore Currency Loans, such notice will provide
the amount of each Lender's Pro Rata Revolving Share of such Borrowing, and the
Administrative Agent will, upon the determination of the Dollar Equivalent
amount of such Borrowing as specified in the Notice of Borrowing, promptly
notify each Lender of the exact Dollar Equivalent amount of such Lender's Pro
Rata Revolving Share of such Borrowing. The Dollar Equivalent amount of any
Borrowing in an Offshore Currency will be determined by the Administrative
Agent for such Borrowing on the Computation Date therefor in accordance with
Section 2.15(a).
(c) Each Lender will make the amount of its Pro Rata Share of each
Borrowing available to the Administrative Agent for the account of the
requesting Borrower at the Administrative Agent's Payment Office on the
Borrowing Date requested in Same Day Funds and in the requested currency (i) in
the case of a Borrowing comprised of Loans in Dollars, by 2:00 p.m. (New York
time) and (ii) in the case of a Borrowing comprised of Offshore Currency Loans,
by such time as the Administrative Agent may specify. The proceeds of all such
Loans will then be made available to the requesting Borrower by the
Administrative Agent at such office by crediting the account of the requesting
Borrower on the books of NationsBank with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
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(d) After giving effect to any Borrowing, unless the
Administrative Agent shall otherwise consent, there may not be more than six (6)
different Interest Periods in effect with respect to Offshore Rate Loans.
(e) After the occurrence of an Event of Default (other than a
Relevant Event of Default) during the Certain Funds Period, the Company hereby
requests that any Sterling Acquisition Loans being made to facilitate the
purchase of Target Shares be funded (on behalf of the Company) as a loan to the
Company directly to the receiving agent for the Offer pursuant to wire transfer
information as provided by the Company and subject to (i) compliance with all
laws and (ii) the satisfaction of any other borrowing conditions by the Company
hereunder.
2.04 Conversion and Continuation Elections for Revolving Loans
(a) A Borrower may, upon irrevocable written notice to the
Administrative Agent in accordance with Section 2.04(b):
(i) elect, as of any Business Day, in the case of
Base Rate Loans, or as of the last day of the applicable Interest
Period, in the case of Offshore Rate Loans (other than Sterling
Acquisition Loans), to convert any such Loans (or any part thereof in
an aggregate minimum amount of $1,000,000, or any multiple of $100,000
in excess thereof, in the case of Base Rate Loans, and $2,000,000, or
any multiple of $100,000 in excess thereof, in the case of Offshore
Rate Loans) into Loans of any other Type; or
(ii) elect as of the last day of the applicable
Interest Period with respect of any Offshore Rate Loan, to continue any
Loans having Interest Periods expiring on such day (or any part thereof
in an amount not less than the Dollar Equivalent of $2,000,000, or that
is in an integral multiple of the Dollar Equivalent of $100,000 in
excess thereof) as Loans of the same Type;
provided, that if at any time the aggregate amount of Offshore Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $2,000,000, such Offshore Rate Loans shall
automatically convert into Base Rate Loans as of the last day of the Interest
Period applicable thereto, and on and after such date the right of the Company
to continue such Revolving Loans as, and convert such Revolving Loans into,
Offshore Rate Loans shall terminate.
(b) A Borrower shall deliver a Notice of
Conversion/Continuation to be received by the Administrative Agent not later
than 11:00 a.m. (New York time) at least (i) three Business Days in advance of
the Conversion/Continuation Date, if the Loans (x) are to be converted into or
continued as Offshore Rate Loans denominated in Dollars or (y) are Sterling
Acquisition Loans, (ii) four Business Days in advance of the
Conversion/Continuation Date, if the Loans are to be converted into or continued
as Offshore Rate Loans in an Offshore Currency and (iii) on the
Conversion/Continuation Date, if the Loans are to be converted into Base Rate
Loans, specifying:
(i) the proposed Conversion/Continuation Date;
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(ii) the aggregate amount of Loans to be converted or
continued;
(iii) the Type of Loans resulting from the proposed
conversion or continuation;
(iv) the Applicable Currency;
(v) other than in the case of conversions into Base
Rate Loans, the duration of the requested Interest Period; and
(vi) the identity of the Borrower.
(c) If upon the expiration of any Interest Period applicable
to Offshore Rate Loans (other than Offshore Currency Loans), the relevant
Borrower has failed to select a new Interest Period to be applicable to such
Offshore Rate Loans by the time specified in Section 2.04(b), or if any Default
or Event of Default then exists, such Borrower shall be deemed to have elected
to convert such Offshore Rate Loans into Base Rate Loans effective as of the
expiration date of such Interest Period. If the Company has failed to select a
new Interest Period to be applicable to Sterling Acquisition Loans by the time
specified in Section 2.04(b), or if any Default or Event of Default then exists,
the Company shall be deemed to have elected to continue such Sterling
Acquisition Loan on the basis of a one month Interest Period. If the relevant
Borrower has failed to select a new Interest Period to be applicable to Offshore
Currency Loans (other than Sterling Acquisition Loans) prior to the fourth
Business Day in advance of the expiration date of the current Interest Period
applicable thereto as provided in Section 2.04(b), or if any Default or Event of
Default shall then exist, such Borrower shall be deemed to have elected to
continue such Offshore Currency Loans on the basis of a one month Interest
Period.
(d) The Administrative Agent will promptly notify each Lender
of its receipt of a Notice of Conversion/Continuation, or, if no timely notice
is provided by the relevant Borrower, the Administrative Agent will promptly
notify each Lender of the details of any automatic conversion. All conversions
and continuations shall be made ratably according to the respective outstanding
principal amounts of the Loans, with respect to which the notice was given, held
by each Lender.
(e) Unless the Majority Lenders otherwise consent, during the
existence of a Default or Event of Default, a Borrower may not elect to have (i)
a Loan converted into or continued as an Offshore Rate Loan or (ii) an Offshore
Currency Loan continued on the basis of an Interest Period exceeding one month.
(f) After giving effect to any conversion or continuation of
Loans, unless the Administrative Agent shall otherwise consent, there may not be
more than six (6) different Interest Periods in effect with respect to Offshore
Rate Loans.
(g) Notwithstanding anything else to the contrary in this
Agreement, Swing Line Loans may only bear interest at the Base Rate or the
Quoted Rate.
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(h) Upon the delivery of an Election to Participate, each
Eligible Borrower hereby appoints the Company as its agent, and authorizes the
Company to deliver any Notice of Borrowing or Notice of Conversion/Continuation
to the Administrative Agent on behalf of such Eligible Borrower.
2.05 Voluntary Termination or Reduction of Commitments
(a) The Company may, upon not less than three Business Days'
prior notice to the Administrative Agent (which notice the Administrative Agent
shall promptly deliver to Lenders), terminate the Commitments of all Lenders
ratably, or permanently reduce the Commitments of all Lenders ratably by an
aggregate minimum amount of the Dollar Equivalent of $5,000,000 or any multiple
of the Dollar Equivalent of $1,000,000 in excess thereof; unless, after giving
effect thereto and to any prepayments of Loans plus Swing Line Loans plus L/C
Obligations made on the effective date thereof, (a) the Effective Amount of all
Revolving Loans, Swing Line Loans and L/C Obligations would exceed the amount of
the combined Revolving Loan Commitments of all Revolving Lenders then in effect,
(b) the Effective Amount of all L/C Obligations would exceed the amount of the
L/C Commitment then in effect or (c) the Effective Amount of all Swing Line
Loans would exceed the Swing Line Loan Commitment then in effect. Once reduced
in accordance with this Section, the Commitments may not be increased. Any
reduction of the Commitments shall be applied to each Lender according to its
Pro Rata Share. All accrued commitment and letter of credit fees and interest,
if applicable, to, but not including, the effective date of any reduction or
termination of the Commitments shall be paid on the effective date of such
reduction or termination.
(b) At no time shall the Swing Line Commitment exceed the
Aggregate Revolving Loan Commitment, and any reduction of the Aggregate
Revolving Loan Commitment which reduces the Aggregate Revolving Loan Commitment
below the then-current amount of the Swing Line Commitment shall result in an
automatic corresponding reduction of the Swing Line Commitment to the amount of
the Aggregate Revolving Loan Commitment, as so reduced, without any action on
the part of the Swing Line Lender. Any reduction of the Aggregate Revolving Loan
Commitment below the then-current amount of the Swing Line Commitment shall
result in an automatic corresponding reduction of the Swing Line Commitment to
the amount of the Aggregate Revolving Loan Commitment as so reduced, without any
action on the part of the Swing Line Lender.
2.06 Optional Prepayments of Loans
Subject to Section 4.04, any Borrower, may, at any time or
from time to time, upon irrevocable notice to the Administrative Agent, prepay
(but not permanently reduce the Revolving Loan Commitments to the extent of
prepayments on the Revolving Loans unless otherwise expressly requested in
writing by the Company) the Loans in whole or in part, in minimum amounts of
$1,000,000, or any multiple of $100,000 in excess thereof, in the case of Base
Rate Loans, and the Dollar Equivalent of $2,000,000, or any multiple of the
Dollar Equivalent of $100,000 in excess thereof (or such other amount necessary
to repay any Offshore Currency Loan in full), in the case of Offshore Rate
Loans. The relevant Borrower may designate whether such prepayments shall be
applied to prepay Revolving Loans, Term Loans, PTI Term Loans or Sterling
Acquisition Loans provided that such prepayments shall be applied ratably among
the Lenders holding such Loans. A
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Borrower shall deliver a notice of prepayment in accordance with Section 12.02
to be received by the Administrative Agent not later than 11:00 a.m. (New York
time) (a) at least three Business Days in advance of the prepayment date if the
Loans to be prepaid are Offshore Currency Loans, (b) at least two Business Days
in advance of the prepayment date if the Loans to be prepaid are Offshore Rate
Loans in Dollars, and (iii) on the date of the prepayment date if the Loans to
be prepaid are Base Rate Loans. Such notice of prepayment shall specify the date
and amount of such prepayment, the Loans being prepaid and whether such
prepayment is of Base Rate Loans or Offshore Rate Loans, or any combination
thereof, the Applicable Currency and the identity of the Borrower. The
Administrative Agent will promptly notify each Lender of its receipt of any such
notice, and of such Lender's Pro Rata Share of such prepayment. If such notice
is given by a Borrower, such Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein, together with accrued interest to each such date on the amount prepaid
and any amounts required pursuant to Section 4.04.
2.07 Termination of Commitments; Mandatory Prepayments of Loans;
Mandatory Commitment Reductions
(a) The Aggregate Commitment shall be terminated and reduced
to zero in the event that:
(i) the Offer is not posted on or prior to the
thirtieth (30th) day following the Announcement Date;
(ii) the Company and/or Bidco withdraws the Offer or
the Offer lapses;
(iii) the Offer has not gone wholly unconditional
within six (6) calendar months after the Announcement Date;
(iv) the Initial Funding Date has not occurred within
sixteen (16) days after the Offer has gone wholly unconditional; or
(v) the consent relating to the Existing Credit
Agreement delivered pursuant to Section 5.01(h) fails for any reason to
remain in full force and effect, or is not extended before December 31,
1998 to April 30, 1999 or a date thereafter.
(b) Subject to Section 4.04, if on any date the Effective
Amount of Revolving Loans, Swing Line Loans and L/C Obligations exceeds the
Aggregate Revolving Loan Commitment, the Company shall immediately, and without
notice or demand, prepay the outstanding principal amount of the Swing Line
Loans, Revolving Loans and L/C Advances by an amount equal to the applicable
excess and the Lenders shall apply such amounts first to repay Base Rate Loans
and thereafter to repay Offshore Rate Loans.
(c) If on any date the Effective Amount of L/C Obligations
exceeds the L/C Commitment, the Company shall Cash Collateralize on such date
the outstanding Letters of Credit in an amount equal to the excess of the
maximum amount then available to be drawn under all outstanding Letters of
Credit over the L/C Commitment. Subject to Section 4.04, if on any date
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after giving effect to any Cash Collateralization made on such date pursuant to
the preceding sentence, the Effective Amount of Revolving Loans, Swing Line
Loans and L/C Obligations exceeds the Aggregate Revolving Loan Commitment, the
Company shall immediately, and without notice or demand, prepay the outstanding
principal amount of the Swing Line Loans, Revolving Loans and L/C Advances by an
amount equal to the applicable excess. Each Borrower, effective as of the
Initial Funding Date, hereby grants to the Administrative Agent, for the benefit
of the Administrative Agent, the Issuing Bank and the Lenders, a security
interest in all cash and deposit account balances subject to Cash
Collateralization. Cash collateral subject to Cash Collateralization shall be
maintained in blocked deposit accounts at NationsBank. NationsBank shall invest
any and all available funds deposited in such deposit account, promptly upon the
relevant funds becoming available, in securities issued or fully guaranteed or
insured by the United States Government or any agency thereof backed by the full
faith and credit of the United States having maturities of no greater than three
months from the date of acquisition thereof (collectively, "Government
Obligations"). Each Borrower hereby acknowledges and agrees that NationsBank
shall not have any liability with respect to, and each Borrower hereby
indemnifies NationsBank against, any loss resulting from the acquisition of the
Government Obligations and NationsBank shall not have any obligation to monitor
the trading activity of any such Governmental Obligations on and after the
acquisition thereof for the purpose of obtaining the highest possible return
with respect thereto, NationsBank's responsibility being limited to acquiring
such Governmental Obligations.
(d) If on any Computation Date the Administrative Agent shall
have determined that the aggregate Dollar Equivalent principal amount of all
Revolving Loans and Swing Line Loans then outstanding and the aggregate amount
of outstanding L/C Obligations exceeds the Aggregate Revolving Loan Commitment,
due to a change in applicable rates of exchange between Dollars and Offshore
Currencies, then the Administrative Agent shall give notice to the Company that
a prepayment is required under Section 2.07(b), and the Company agrees thereupon
to make prepayments of Revolving Loans, subject to Section 4.04, such that,
after giving effect to such prepayment, the aggregate Dollar Equivalent amount
of all Revolving Loans, Swing Line Loans and aggregate outstanding L/C
Obligations does not exceed the Aggregate Revolving Loan Commitment.
(e) The Company shall prepay Loans in an amount equal to 100%
of the insurance proceeds received by the Company or any Subsidiary following a
casualty involving such Person's Property, to the extent not applied (or
intended to be applied) within 90 days after the consummation or receipt
thereof, as applicable, to the purchase of replacement assets or repair of
damaged assets. Such prepayment shall be made on the 90th day after receipt of
such insurance proceeds and the amount of such prepayment shall be applied (i)
first, to prepay Term Loans, PTI Term Loans and Sterling Acquisition Loans on a
ratable basis among the then outstanding Term Loans, PTI Term Loans and Sterling
Acquisition Loans (based on the Dollar Equivalent thereof on the date of such
prepayment), applied on a ratable basis among all remaining payments in respect
of each such Loan, (ii) second, to prepay the then outstanding Swing Line Loans
(without a corresponding reduction in the Swing Line Loan Commitment), and (iii)
third, to prepay the then outstanding Revolving Loans (without a corresponding
reduction in the Aggregate Revolving Loan Commitment). Such proceeds shall be
applied first, to the extent possible, to prepay Base Rate Loans and then to
prepay Offshore Rate Loans. The Company shall use its commercially reasonable
efforts to notify the Administrative Agent of the amount of any required
prepayment at least three (3) Business Days before it is made.
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(f) The Company shall prepay Loans in an amount equal to 100%
of the sum of the Net Proceeds realized upon all Asset Dispositions (other than
an Asset Disposition pursuant to Section 8.05(ii)(y)) made by the Company or any
Subsidiary, aggregating in excess of $3,000,000 during any calendar year, within
one hundred eighty (180) Business Days after the date of such Asset Disposition
or, if later, the date of the receipt of the proceeds therefrom to the extent
not applied (or committed to be applied) within such period to the purchase of
other assets that are not classified as current assets under GAAP and are used
or useful in the business of the Company and its Subsidiaries. The amount of
such prepayment shall be applied (i) first, to prepay Term Loans, PTI Term Loans
and Sterling Acquisition Loans on a ratable basis among the then outstanding
Term Loans, PTI Term Loans and Sterling Acquisition Loans (based on the Dollar
Equivalent thereof on the date of such prepayment), applied on a ratable basis
among all remaining payments in respect of each such Loan, (ii) second, to
prepay the then outstanding Swing Line Loans (without a corresponding reduction
in the Swing Line Loan Commitment), and (iii) third, to prepay the then
outstanding Revolving Loans (without a corresponding reduction in the Aggregate
Revolving Loan Commitment). Such proceeds shall be applied first, to the extent
possible, to prepay Base Rate Loans and then to prepay Offshore Rate Loans. The
Company shall use its commercially reasonable efforts to notify the
Administrative Agent of the amount of any required prepayment at least three (3)
Business Days before it is made.
(g) The relevant Borrower shall pay, together with each
prepayment under this Section 2.07, accrued interest on the amount prepaid
through the date of such prepayment.
(h) The Aggregate Term Loan Commitment and the Aggregate
Sterling Acquisition Loan Commitment, and the Term Loan Commitment and Sterling
Acquisition Loan Commitment of each Lender, shall be reduced on the Initial
Funding Date or the Business Day occurring after the Initial Funding Date (after
giving effect to any Term Loan and/or Sterling Acquisition Loan, as the case may
be, made on the Initial Funding Date) in an amount equal to the unutilized
Aggregate Term Loan Commitment and the unutilized Aggregate Sterling Acquisition
Loan Commitment, and the unutilized Term Loan Commitment and unutilized Sterling
Acquisition Loan Commitment of each Lender, as of such date.
(i) The Aggregate PTI Term Loan Commitment and the PTI
Revolver Increase Commitment shall be terminated and reduced to zero in the
event that:
(I) the PTI Merger has not been consummated on or
prior to September 30, 1999; and
(II) the PTI Funding Date has not occurred on or
prior to September 30, 1999.
(j) The Aggregate PTI Term Loan Commitment and the PTI Term
Loan Commitment of each Lender shall be reduced on the PTI Funding Date (after
giving effect to any PTI Term Loan made on the PTI Funding Date) in an amount
equal to the unutilized Aggregate PTI Term Loan Commitment and the unutilized
PTI Term Loan Commitment of each Lender, as of such date.
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(k) The Company shall prepay Loans in an amount equal to 100%
of the sum of the net proceeds (meaning gross proceeds less reasonable
transaction expenses) realized upon the issuance of any Take Out Debt
substantially simultaneously with the receipt of the proceeds therefrom. The
amount of such prepayment shall be applied (i) first, to prepay Term Loans and
PTI Term Loans on a ratable basis among the then outstanding Term Loans and PTI
Term Loans, applied on a ratable basis among all remaining payments in respect
of each such Loan, (ii) second, to prepay the then outstanding Swing Line Loans
(without a corresponding reduction in the Swing Line Loan Commitment), and (iii)
third, to prepay the then outstanding Revolving Loans (without a corresponding
reduction in the Aggregate Revolving Loan Commitment). Such proceeds shall be
applied first, to the extent possible, to prepay Base Rate Loans and then to
prepay Offshore Rate Loans. The Company shall use its commercially reasonable
efforts to notify the Administrative Agent of the amount of any required
prepayment at least three (3) Business Days before it is made.
2.08 Repayment of Loans
(a) Each Borrower shall repay to the Revolving Lenders on the
Revolving Loan Termination Date the aggregate principal amount of Revolving
Loans of such Borrower outstanding on such date.
(b) The Company shall repay Swing Line Loans (other than with
proceeds of a Swing Line Loan) in full on the thirtieth (30th) day following the
incurrence of any such Swing Line Loan.
(c) The Company shall repay to the Swing Line Lender on the
Swing Line Termination Date the aggregate principal amount of Swing Line Loans
outstanding on such date.
(d) The Company shall repay the Term Loans, PTI Term Loans and
Sterling Acquisition Loans on each date and in the amount set forth on Schedule
2.08(d) (each a "Principal Payment Date").
2.09 Interest
(a) Each (i) Loan (other than a Sterling Acquisition Loan or a
Swing Line Loan) shall bear interest on the outstanding principal amount thereof
from the applicable Borrowing Date at a rate per annum equal to the Offshore
Rate or the Base Rate, as the case may be (and subject to the Company's right to
convert to other Types of Loans under Section 2.04), plus the Applicable Margin,
(ii) Sterling Acquisition Loan shall bear interest on the outstanding principal
amount thereof from the applicable Borrowing Date at a rate per annum equal to
the Offshore Rate, plus the Applicable Margin and (iii) Swing Line Loan shall
bear interest on the outstanding principal amount thereof from the applicable
Borrowing Date at a rate per annum equal to the Base Rate, plus the Applicable
Margin for Revolving Loans maintained as Base Rate Loans or the Quoted Rate.
(b) Interest on each Loan shall be paid in arrears on each
Interest Payment Date. Interest shall also be paid on the date of the conversion
of an Offshore Rate Loan into a Base Rate Loan, on the date of any prepayment of
any Loans under Section 2.06 or 2.07 for the portion of the Loans so prepaid and
upon payment (including prepayment) in full thereof and, during the existence
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of any Event of Default, interest shall be paid on demand of the Administrative
Agent at the request or with the consent of the Majority Lenders.
(c) Notwithstanding Section 2.09(a), while any Event of
Default exists or after acceleration, each Borrower shall pay interest or
additional fees (after as well as before entry of judgment thereon to the extent
permitted by law) on the principal amount of all outstanding Obligations, at a
rate per annum which is determined by adding 2% per annum to the Applicable
Margin or rate then in effect for such Obligations; provided, however, that, on
and after the expiration of any Interest Period applicable to any Offshore Rate
Loan outstanding on the date of occurrence of such Event of Default or
acceleration, the principal amount of such Offshore Rate Loan shall, during the
continuation of such Event of Default or after acceleration, bear interest at a
rate per annum equal to the Base Rate plus the Applicable Margin plus 2%.
(d) Anything herein to the contrary notwithstanding, the
obligations of each Borrower to any Lender hereunder shall be subject to the
limitation that payments of interest shall not be required for any period for
which interest is computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by such Lender would be contrary
to the provisions of any law applicable to such Lender limiting the highest rate
of interest that may be lawfully contracted for, charged or received by such
Lender, and in such event each Borrower shall pay such Lender interest at the
highest rate permitted by applicable law.
2.10 Fees
In addition to certain fees described in Section 3.08:
(a) Agency Fees
The Company shall pay the fees to the Administrative Agent for
the Administrative Agent's own account, as required by the letter agreements (as
amended from time to time, collectively, the "Fee Letter") between the Company
and the Administrative Agent, dated as of October 16, 1998 and March 23, 1999.
(b) Revolving Loan Commitment Fee
The Company shall pay to the Administrative Agent for the
account of each Revolving Lender a commitment fee ("Revolving Loan Commitment
Fee") on the actual daily unused portion of such Revolving Lender's Revolving
Loan Commitment computed on a quarterly basis in arrears on the last Business
Day of each calendar quarter based upon the daily utilization for that quarter
as calculated by the Administrative Agent, equal to (x) for the period from and
including the Announcement Date and to but excluding the sixtieth (60th) day
following the Announcement Date, 0.20% per annum and (y) thereafter, the
Applicable Margin per annum applicable to the Commitment Fee. For purposes of
calculating utilization under this clause (b), the Revolving Loan Commitments
shall be deemed used to the extent of the Effective Amount of Revolving Loans
then outstanding and the Effective Amount of all L/C Obligations then
outstanding. Such commitment fee shall accrue from the Announcement Date to the
Revolving Loan Termination Date and shall be
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due and payable quarterly in arrears on the last Business Day of each March,
June, September and December through the Revolving Loan Termination Date, with
the final payment to be made on the Revolving Loan Termination Date. The
commitment fees provided in this clause (b) shall accrue at all times after the
Announcement Date, including at any time during which one or more conditions in
Article V are not met. Notwithstanding anything herein to the contrary, for
purposes of the PTI Revolver Increase Commitment amount, the Company shall pay
to the Administrative Agent for the account of each Revolving Lender a
commitment fee equal to 0.20% per annum on the PTI Revolver Increase Commitment
for the period from and including the PTI Effective Date and to but excluding
the PTI Funding Date (provided, however, in the event that the PTI Funding Date
has not occurred on or before July 31, 1999, such commitment fee shall equal the
Applicable Margin per annum applicable to the Commitment Fee for the period on
and including August 1, 1999 to and excluding the PTI Funding Date).
(c) Term Loan Commitment Fee
The Company shall pay to the Administrative Agent for the
account of each Lender with a Term Loan Commitment a commitment fee ("Term Loan
Commitment Fee") on the actual daily unused portion of such Lender's Term Loan
Commitment computed on a quarterly basis in arrears on the last Business Day of
each calendar quarter based upon the daily utilization for that quarter as
calculated by the Administrative Agent, equal to (x) for the period from and
including the Announcement Date and to but excluding the sixtieth (60th) day
following the Announcement Date, 0.20% per annum and (y) thereafter, the
Applicable Margin per annum applicable to the Commitment Fee. For purposes of
calculating utilization under this clause (c), the Term Loan Commitments shall
be deemed used to the extent of the Effective Amount of Term Loans then
outstanding. Such Term Loan Commitment Fee shall accrue from the Announcement
Date to the Initial Funding Date and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December
through the Initial Funding Date, with the final payment to be made on the
Initial Funding Date; provided, that in connection with any reduction or
termination of Term Loan Commitments, as the case may be, under Section 2.05 or
2.07(a), the accrued Term Loan Commitment Fee calculated for the period ending
on such date shall also be paid on the date of such reduction or termination,
with the following quarterly payment being calculated on the basis of the period
from such reduction or termination date to such quarterly payment date. The Term
Loan Commitment Fee shall accrue at all times after the above-mentioned
commencement date until the Initial Funding Date.
(d) Sterling Acquisition Loan Commitment Fee
The Company shall pay to the Administrative Agent for the
account of each Lender with a Sterling Acquisition Loan Commitment a commitment
fee ("Sterling Acquisition Loan Commitment Fee") on the actual daily unused
portion of such Lender's Sterling Acquisition Loan Commitment computed on a
quarterly basis in arrears on the last Business Day of each calendar quarter
based upon the daily utilization for that quarter as calculated by the
Administrative Agent, equal to (x) for the period from and including the
Announcement Date and to but excluding the sixtieth (60th) day following the
Announcement Date, 0.20% per annum and (y) thereafter, the Applicable Margin per
annum applicable to the Commitment Fee. For purposes of calculating utilization
under this clause (d), the Sterling Acquisition Loan Commitments shall be deemed
used
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to the extent of the Effective Amount of Sterling Acquisition Loans then
outstanding. Such Sterling Acquisition Loan Commitment Fee shall be paid in
Dollars and shall accrue from the Announcement Date to the Business Day
following the Initial Funding Date and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December
through the Business Day following the Initial Funding Date with the final
payment to be made on the Squeeze Out Date; provided, that in connection with
any reduction or termination of Sterling Acquisition Loan Commitments, as the
case may be, under Section 2.05 or 2.07(a), the accrued Sterling Acquisition
Loan Commitment Fee calculated for the period ending on such date shall also be
paid on the date of such reduction or termination, with the following quarterly
payment being calculated on the basis of the period from such reduction or
termination date to such quarterly payment date. The Sterling Acquisition Loan
Commitment Fee shall accrue at all times after the above-mentioned commencement
date until the Business Day following the Initial Funding Date.
(e) PTI Term Loan Commitment Fee
The Company shall pay to the Administrative Agent for the
account of each Lender with a PTI Term Loan Commitment a commitment fee ("PTI
Term Loan Commitment Fee") on the actual daily unused portion of such Lender's
PTI Term Loan Commitment computed on a quarterly basis in arrears on the last
Business Day of each calendar quarter based upon the daily utilization for that
quarter as calculated by the Administrative Agent, equal to 0.20% per annum for
the period from and including the PTI Effective Date and to but excluding the
PTI Funding Date; provided, however, in the event that the PTI Funding Date has
not occurred on or before July 31, 1999, such commitment fee shall equal the
Applicable Margin per annum applicable to the Commitment Fee for the period on
and including August 1, 1999 to and excluding the PTI Funding Date. For purposes
of calculating utilization under this clause (e), the PTI Term Loan Commitments
shall be deemed used to the extent of the Effective Amount of PTI Term Loans
then outstanding. Such PTI Term Loan Commitment Fee shall accrue from the PTI
Effective Date to but excluding the PTI Funding Date and shall be due and
payable quarterly in arrears on the last Business Day of each March, June,
September and December through the day preceding the PTI Funding Date, with the
final payment to be made on the PTI Funding Date; provided, that in connection
with any reduction or termination of PTI Term Loan Commitments, as the case may
be, under Section 2.05 or 2.07(i), the accrued PTI Term Loan Commitment Fee
calculated for the period ending on such date shall also be paid on the date of
such reduction or termination, with the following quarterly payment being
calculated on the basis of the period from such reduction or termination date to
such quarterly payment date. The PTI Term Loan Commitment Fee shall accrue at
all times after the above-mentioned commencement date until the PTI Funding
Date.
(f) Amendment Fee.
The Company shall pay to the Administrative Agent for the
account of each consenting Lender party hereto immediately prior to the
effectiveness of this Agreement an amendment fee ("Amendment Fee") in an amount
equal to $5,000 for each such consenting Lender party to the First Amended and
Restated Credit Agreement on the PTI Effective Date.
2.11 Computation of Fees and Interest
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(a) All computations of interest for Base Rate Loans when the
Base Rate is determined by NationsBank's "reference rate" shall be made on the
basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.
All other computations of fees and interest shall be made on the basis of a
360-day year and actual days elapsed (which results in more interest being paid
than if computed on the basis of a 365-day year). Interest and fees shall accrue
during each period during which interest or such fees are computed from the
first day thereof to the last day thereof.
(b) Each determination of an interest rate or a Dollar
Equivalent amount by the Administrative Agent shall be conclusive and binding on
each Borrower and the Lenders in the absence of manifest error. The
Administrative Agent will, at the request of a Borrower or any Lender, deliver
to such Borrower or such Lender, as the case may be, a statement showing the
quotations used by the Administrative Agent in determining any interest rate and
the resulting interest rate or any Dollar Equivalent Amount.
(c) Without prejudice and in addition to any method of
conversion or rounding prescribed by any EMU Legislation, any amount translated
from a national currency unit to a euro unit under this Agreement (or under any
EMU Legislation) may be rounded up or down by the Administrative Agent acting
reasonably.
2.12 Payments by a Borrower
(a) All payments to be made by a Borrower shall be made
without set-off, recoupment or counterclaim. Except as otherwise expressly
provided herein, all payments by a Borrower shall be made to the Administrative
Agent for the account of the Lenders at the Administrative Agent's Payment
Office, and, with respect to principal of, interest on, and any other amounts
relating to, any Offshore Currency Loan, shall be made in the Offshore Currency
in which such Loan is denominated or payable, and, with respect to all other
amounts payable hereunder, shall be made in Dollars. Such payments shall be made
in Same Day Funds, and (i) in the case of Offshore Currency payments, no later
than such time on the dates specified herein as may be reasonably determined by
the Administrative Agent to be necessary for such payment to be credited on such
date in accordance with normal lending procedures in the place of payment, and
(ii) in the case of any Dollar payments, no later than 12:00 noon (New York
time) on the date specified herein. The Administrative Agent will promptly
distribute to each Lender its Pro Rata Share (or other applicable share as
expressly provided herein) of such principal, interest, fees or other amounts,
in like funds as received. Any payment which is received by the Administrative
Agent later than 12:00 noon (New York time) in the case of Dollar payments, or
later than the time specified by the Administrative Agent as provided in clause
(i) above (in the case of Offshore Currency payments), shall be deemed to have
been received on the following Business Day and any applicable interest or fee
shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
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(c) Unless the Administrative Agent receives notice from the
Company prior to the date on which any payment is due to the Lenders that a
Borrower will not make such payment in full as and when required, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date in Same Day Funds and the
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent such Borrower has not made
such payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent on demand such amount distributed to such Lender, together
with interest thereon at the Federal Funds Rate or, in the case of a payment in
an Offshore Currency, the Overnight Rate, for each day from the date such amount
is distributed to such Lender until the date repaid.
2.13 Payments by the Lenders to the Administrative Agent
(a) Unless the Administrative Agent receives notice from a
Lender at least one Business Day prior to the date of any Borrowing, that such
Lender will not make available as and when required hereunder to the
Administrative Agent for the account of the relevant Borrower the amount of that
Lender's Pro Rata Share of such Borrowing, the Administrative Agent may assume
that each Lender has made such amount available to the Administrative Agent in
Same Day Funds on the relevant Borrowing Date and the Administrative Agent may
(but shall not be so required), in reliance upon such assumption, make available
to the relevant Borrower on such date a corresponding amount. If and to the
extent any Lender shall not have made its full amount available to the
Administrative Agent in Same Day Funds and the Administrative Agent in such
circumstances has made available to the Company such amount, that Lender shall
on the Business Day following such Borrowing Date make such amount available to
the Administrative Agent, together with interest at the Federal Funds Rate or,
in the case of any Borrowing consisting of Offshore Currency Loans, the
Overnight Rate, for each day during such period. A notice of the Administrative
Agent submitted to any Lender with respect to amounts owing under this Section
2.13(a) shall be conclusive, absent manifest error. If such amount is so made
available, such payment to the Administrative Agent shall constitute such
Lender's Loan on the date of Borrowing for all purposes of this Agreement. If
such amount is not made available to the Administrative Agent on the Business
Day following the relevant Borrowing Date, the Administrative Agent will notify
the relevant Borrower of such failure to fund and, upon demand by the
Administrative Agent, the relevant Borrower shall pay such amount to the
Administrative Agent for the Administrative Agent's account, together with
interest thereon for each day elapsed since the date of such Borrowing, at a
rate per annum equal to the interest rate applicable at the time to the Loans
comprising such Borrowing.
(b) The failure of any Lender to make any Loan on any
Borrowing Date shall not relieve any other Lender of any obligation hereunder to
make a Loan on such Borrowing Date, but no Lender shall be responsible for the
failure of any other Lender to make the Loan to be made by such other Lender on
any Borrowing Date.
2.14 Sharing of Payments, Etc.
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If, other than as expressly provided elsewhere herein, any
Lender shall obtain on account of the Loans made by it any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) in excess of its ratable share (or other share contemplated
hereunder), such Lender shall immediately (a) notify the Administrative Agent of
such fact, and (b) purchase from the other Lenders such participation in the
Loans made by them as shall be necessary to cause such purchasing Lender to
share the excess payment pro rata with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from the
purchasing Lender, such purchase shall to that extent be rescinded and each
other Lender shall repay to the purchasing Lender the purchase price paid
therefor, together with an amount equal to such paying Lender's ratable share
(according to the proportion of (i) the amount of such paying Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. Each Borrower agrees that any Lender so
purchasing a participation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off, but subject to Section 11.10) with respect to such participation as
fully as if such Lender were the direct creditor of the relevant Borrower in the
amount of such participation. The Administrative Agent will keep records (which
shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each case notify the
Lenders following any such purchases or repayments.
2.15 Utilization of Commitments in Offshore Currencies
(a) The Administrative Agent will determine the Dollar
Equivalent amount with respect to any (i) Borrowing comprised of Offshore
Currency Loans (other than Sterling Acquisition Loans) as of the requested
Borrowing Date, (ii) outstanding Offshore Currency Loans denominated in a
currency other than Dollars as of the last Business Day of each month, (iii)
outstanding Offshore Currency Loans denominated in a currency other than Dollars
as of any redenomination date pursuant to this Section 2.15 or Section 4.05,
(iv) L/C Obligations denominated in a currency other than Dollars, on the date
of Issuance and thereafter as of the last Business Day of each month and (v)
Offshore Currency Loans or L/C Obligations, as of any date specified for
determining the Dollar Equivalent of any amount (each such date under clauses
(i) through (iv) a "Computation Date").
(b) In the case of a proposed Borrowing comprised of Offshore
Currency Loans (other than Sterling Acquisition Loans), the Lenders shall be
under no obligation to make Offshore Currency Loans in the requested Offshore
Currency as part of such Borrowing if the Administrative Agent has received
notice from any of the Lenders by 5:00 p.m. (New York time) four Business Days
prior to the day of such Borrowing that such Lender cannot provide Loans in the
requested Offshore Currency, in which event the Administrative Agent will give
notice to the Company no later than 12:00 noon (New York time) on the third
Business Day prior to the requested date of such Borrowing that the Borrowing in
the requested Offshore Currency (other than Sterling Acquisition Loans) is not
then available, and notice thereof also will be given promptly by the
Administrative Agent to the Lenders. If the Administrative Agent shall have so
notified the Company that any such Borrowing in a requested Offshore Currency is
not then available, the Company may, by notice to the Administrative Agent not
later than 5:00 p.m. (New York time) two Business Days prior to the requested
date of such Borrowing, withdraw the Notice of Borrowing relating to such
requested Borrowing. If the Company does so withdraw such Notice of Borrowing,
the Borrowing requested
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therein shall not occur and the Administrative Agent will promptly so notify
each Lender. If the Company does not so withdraw such Notice of Borrowing, the
Administrative Agent will promptly so notify each Lender and such Notice of
Borrowing shall be deemed to be a Notice of Borrowing that requests a Borrowing
comprised of Offshore Rate Loans (other than Sterling Acquisition Loans) for the
same Interest Period previously applicable in an aggregate amount equal to the
amount of the originally requested Borrowing as expressed in Dollars in the
Notice of Borrowing; and in such notice by the Administrative Agent to each
Lender the Administrative Agent will state such aggregate amount of such
Borrowing in Dollars and such Lender's Pro Rata Share thereof.
(c) In the case of a proposed continuation of Offshore
Currency Loans (other than Sterling Acquisition Loans) for an additional
Interest Period pursuant to Section 2.04, the Lenders shall be under no
obligation to continue such Offshore Currency Loans if the Administrative Agent
has received notice from any of the Lenders by 5:00 p.m. (New York time) four
Business Days prior to the day of such continuation that such Lender cannot
continue to provide Loans in the relevant Offshore Currency, in which event the
Administrative Agent will give notice to the Company not later than 12:00 noon
(New York time) on the third Business Day prior to the requested date of such
continuation that the continuation of such Offshore Currency Loans in the
relevant Offshore Currency is not then available, and notice thereof also will
be given promptly by the Administrative Agent to the Lenders. If the
Administrative Agent shall have so notified the Company that any such
continuation of Offshore Currency Loans (other than Sterling Acquisition Loans)
is not then available, any Notice of Continuation/Conversion with respect
thereto shall be deemed withdrawn and such Offshore Currency Loans shall be
redenominated into Offshore Rate Loans in Dollars for the same Interest Period
previously applicable with effect from the last day of the Interest Period with
respect to any such Offshore Currency Loans. The Administrative Agent will
promptly notify the Company and the Lenders of any such redenomination and in
such notice by the Administrative Agent to each Lender the Administrative Agent
will state the aggregate Dollar Equivalent amount of the redenominated Offshore
Currency Loans (other than Sterling Acquisition Loans) as of the Computation
Date with respect thereto and such Lender's Pro Rata Share thereof.
(d) Notwithstanding anything herein to the contrary, during
the existence of a payment default or an Event of Default, upon the request of
the Majority Lenders, all or any part of any outstanding Offshore Currency Loans
(other than Sterling Acquisition Loans) shall be redenominated and converted
into Base Rate Loans in Dollars with effect from the last day of the Interest
Period with respect to any such Offshore Currency Loans. The Administrative
Agent will promptly notify the Company and the Lenders of any such
redenomination and conversion request.
(e) The Company shall be entitled to request that Revolving
Loans and Swing Line Loans hereunder also be permitted to be made in any other
lawful currency (other than Dollars), in addition to the currencies specified in
the definition of "Offshore Currency" herein, that in the opinion of the
Administrative Agent, the Swing Line Lender and the Lenders is at such time
freely traded in the offshore interbank foreign exchange markets and is freely
transferable and freely convertible into Dollars (an "Agreed Alternative
Currency"). The Company shall deliver to the Administrative Agent any request
for designation of an Agreed Alternative Currency in accordance with Section
12.02, to be received by the Administrative Agent not later than 12:00 noon (New
York time) at least 10 Business Days in advance of the date of any Borrowing
hereunder proposed to be made in such Agreed Alternative Currency. Upon receipt
of any such request the Administrative
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Agent will promptly notify the Lenders thereof, and each Lender will use its
commercially reasonable efforts to respond to such request within five (5)
Business Days of receipt thereof. Each Lender may grant or accept such request
in its sole discretion. The Administrative Agent will promptly notify the
Company and the Lenders of the acceptance or rejection of any such request.
ARTICLE III
THE LETTERS OF CREDIT FACILITY
3.01 The Letter of Credit Facility
(a) On the terms and conditions set forth herein (i) the
Issuing Bank agrees, (A) from time to time on any Business Day during the period
from the Initial Funding Date to the day which is thirty (30) days prior to the
Revolving Loan Termination Date, to issue standby or trade Letters of Credit for
the account of a Borrower and to amend or renew Letters of Credit previously
issued by it under this clause (a) in accordance with Section 3.02(b), and (B)
to honor drafts under the Letters of Credit issued under this clause (a); and
(ii) the Revolving Lenders severally agree to participate in Letters of Credit
issued for the account of the relevant Borrower under this clause (a); provided,
that the Issuer shall not be obligated to Issue any Letter of Credit under this
clause (a), if as of the Issuance Date of such Letter of Credit (1) the
Effective Amount of all L/C Obligations exceeds the combined L/C Commitments of
all Revolving Lenders or (2) the participation of any Revolving Lender in the
Effective Amount of all L/C Obligations and participation in Swing Line Loans of
such Revolving Lender exceeds such Lender's Revolving Loan Commitment less the
Effective Amount of Revolving Loans of such Revolving Lender. Within the
foregoing limits, and subject to the other terms and conditions hereof, the
relevant Borrower's ability to obtain standby and trade Letters of Credit under
this clause (a) shall be fully revolving, and, accordingly, the relevant
Borrower may, during the forgoing period, obtain under this clause (a) new
Letters of Credit, or replacement Letters of Credit for Letters of Credit which
have expired or which have been drawn upon and reimbursed, provided all such
Letters of Credit are issued in compliance with this Agreement.
(b) The Issuing Bank is under no obligation to Issue, amend or
renew any Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the Issuing Bank from Issuing such Letter of Credit, or any
Requirement of Law applicable to the Issuing Bank or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the Issuing Bank shall
prohibit, or request that the Issuing Bank refrain from, the Issuance
of letters of credit generally or such Letter of Credit in particular
or shall impose upon the Issuing Bank with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the
Issuing Bank is not otherwise compensated hereunder) not in effect on
the Initial Funding Date, or shall impose upon the Issuing Bank any
unreimbursed loss, cost or expense which was not applicable on the
Initial Funding Date and which the Issuing Bank in good ▇▇▇▇▇ ▇▇▇▇▇
material to it;
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(ii) the Issuing Bank has received written notice
from any Revolving Lender, the Administrative Agent or any Borrower, on
or prior to the Business Day prior to the requested Issuance Date of
such Letter of Credit, that one or more of the applicable conditions
contained in Article V is not then satisfied;
(iii) the expiry date of any requested Letter of
Credit is after the Revolving Loan Termination Date;
(iv) any requested Letter of Credit does not provide
for drafts, or is not otherwise in form and substance acceptable to the
Issuing Bank, or the Issuance of a Letter of Credit shall violate any
applicable policies of the Issuing Bank; or
(v) such Letter of Credit (x) is in a face amount
less than $250,000, unless such lesser amount is approved by the
Administrative Agent and the Issuing Bank, and (y) is to be denominated
in a currency other than Dollars or an Offshore Currency.
3.02 Issuance, Amendment and Renewal of Letters of Credit
(a) Each Letter of Credit shall be issued upon the irrevocable
written request of the relevant Borrower received by the Issuing Bank (with a
copy sent by the relevant Borrower to the Administrative Agent) at least five
(5) days (or such shorter time as the Issuing Bank may agree in a particular
instance in its sole discretion) prior to the proposed Issuance Date. Each such
request for issuance of a Letter of Credit shall be in writing or by facsimile,
confirmed immediately in an original writing, in the form of an L/C Application,
and shall specify in form and detail satisfactory to the Issuing Bank: (i) the
proposed Issuance Date of such Letter of Credit (which shall be a Business Day);
(ii) the face amount of such Letter of Credit; (iii) the expiry date of such
Letter of Credit; (iv) the name and address of the beneficiary thereof; (v) the
documents to be presented by the beneficiary of such Letter of Credit in case of
any drawing thereunder; (vi) the full text of any certificate to be presented by
the beneficiary in case of any drawing thereunder; (vii) the denomination of the
Stated Amount in Dollars or an Offshore Currency, and (viii) such other matters
as the Issuing Bank may require.
(b) Prior to the Issuance of any Letter of Credit, the Issuing
Bank will confirm with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has received a copy of the L/C Application or L/C
Amendment Application from the relevant Borrower and, if not, the Issuing Bank
will provide the Administrative Agent with a copy thereof. Unless the Issuing
Bank has received notice on or before the Business Day the Issuing Bank is to
issue a requested Letter of Credit (A) from the Administrative Agent directing
the Issuing Bank not to issue such Letter of Credit because such issuance is not
then permitted under Section 3.01(a) as a result of the limitations set forth in
clauses (1) or (2) thereof, or (B) that one or more terms or conditions
specified in Section 3.01(b) or in Article V are not then satisfied; then,
subject to the terms and conditions hereof, the Issuing Bank shall, with the
approval of the Administrative Agent, on the requested date, issue a Letter of
Credit for the account of the relevant Borrower in accordance with the Issuing
Bank's usual and customary business practices.
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(c) From time to time while a Letter of Credit is outstanding
and prior to the Termination Date, the Issuing Bank will, upon the written
request of the relevant Borrower received by the Issuing Bank (with a copy sent
by the relevant Borrower to the Administrative Agent) at least five (5) days (or
such shorter time as the Issuing Bank may agree in a particular instance in its
sole discretion) prior to the proposed date of amendment, amend any Letter of
Credit issued by it. Each such request for amendment of a Letter of Credit shall
be made in writing or by facsimile, confirmed immediately in an original
writing, made in the form of an L/C Amendment Application and shall specify in
form and detail satisfactory to the Issuing Bank: (i) the Letter of Credit to be
amended; (ii) such proposed date of amendment of the Letter of Credit (which
shall be a Business Day); (iii) the nature of the proposed amendment; and (iv)
such other matters as the Issuing Bank may require. The Issuing Bank shall be
under no obligation to amend any Letter of Credit if: (A) the Issuing Bank would
have no obligation at such time to issue such Letter of Credit in its amended
form under the terms of this Agreement; or (B) the beneficiary of any such
Letter of Credit does not accept the proposed amendment to the Letter of Credit.
The Administrative Agent will promptly notify the Lenders of the receipt by it
of any L/C Application or L/C Amendment Application.
(d) The Issuing Bank and the Lenders agree that, while a
Letter of Credit is outstanding and prior to the Revolving Loan Termination
Date, at the option of the relevant Borrower and upon the written request of the
relevant Borrower received by the Issuing Bank (with a copy sent by the relevant
Borrower to the Administrative Agent) at least five (5) days (or such shorter
time as the Issuing Bank may agree in a particular instance in its sole
discretion) prior to the proposed date of notification of renewal, the Issuing
Bank shall be entitled to authorize the automatic renewal of any Letter of
Credit issued by it. Each such request for renewal of a Letter of Credit shall
be made in writing or by facsimile, confirmed immediately in an original
writing, in the form of an L/C Amendment Application, and shall specify in form
and detail satisfactory to the Issuing Bank: (i) the Letter of Credit to be
renewed; (ii) the proposed date of notification of renewal of such Letter of
Credit (which shall be a Business Day); (iii) the revised expiry date of such
Letter of Credit; and (iv) such other matters as the Issuing Bank may require.
The Issuing Bank shall be under no obligation so to renew any Letter of Credit
if: (A) the Issuing Bank would have no obligation at such time to issue or amend
such Letter of Credit in its renewed form under the terms of this Agreement; or
(B) the beneficiary of any such Letter of Credit does not accept the proposed
renewal of such Letter of Credit. If any outstanding Letter of Credit shall
provide that it shall be automatically renewed unless the beneficiary thereof
receives notice from the Issuing Bank that such Letter of Credit shall not be
renewed, and if at the time of renewal the Issuing Bank would be entitled to
authorize the automatic renewal of such Letter of Credit in accordance with this
clause (d) upon the request of the relevant Borrower but the Issuing Bank shall
not have received any L/C Amendment Application from the relevant Borrower with
respect to such renewal or other written direction by the relevant Borrower with
respect thereto, the Issuing Bank shall nonetheless be permitted to allow such
Letter of Credit to renew, and the relevant Borrower and the Revolving Lenders
hereby authorize such renewal, and, accordingly, the Issuing Bank shall be
deemed to have received an L/C Amendment Application from the Borrower
requesting such renewal.
(e) The Issuing Bank may, at its election (or as required by
the Administrative Agent at the direction of the Majority Lenders), deliver any
notices of termination or other communications to any Letter of Credit
beneficiary or transferee, and take any other action as
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necessary or appropriate, at any time and from time to time, in order to cause
the expiry date of such Letter of Credit to be a date not later than the
Revolving Loan Termination Date.
(f) This Agreement shall control in the event of any conflict
with any L/C-Related Document (other than any Letter of Credit).
(g) The Issuing Bank will also deliver to the Administrative
Agent, concurrently or promptly following its delivery of a Letter of Credit, or
amendment to or renewal of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of each such Letter of Credit or amendment
to or renewal of a Letter of Credit.
3.03 Risk Participations, Drawings, Revolving Loans and
Reimbursements.
(a) Immediately upon the Issuance of each Letter of Credit,
each Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Bank a participation in
such Letter of Credit and each drawing thereunder in an amount equal to the
product of (i) the Pro Rata Revolving Share of such Revolving Lender, times (ii)
the maximum amount available to be drawn under such Letter of Credit and the
amount of such drawing, respectively.
(b) (i) In the event of any request for a drawing under a
Letter of Credit by the beneficiary or transferee thereof, the Issuing
Bank will promptly notify the relevant Borrower. The Company shall
reimburse the Issuing Bank (by an L/C Borrowing or otherwise) prior to
12:00 Noon (New York time), on the Honor Date, in an amount equal to
the amount so paid by the Issuing Bank. In the event the relevant
Borrower fails to reimburse the Issuing Bank for the full amount of any
drawing under any Letter of Credit by 12:00 Noon (New York time) on the
Honor Date, the Issuing Bank will promptly notify the Administrative
Agent and the Administrative Agent will promptly notify each Revolving
Lender thereof, and the relevant Borrower shall be deemed to have
requested that Base Rate Loans in an aggregate amount equal to the
unreimbursed drawing be made by the Revolving Lenders to be disbursed
on the Honor Date under such Letter of Credit, subject to the amount of
the unutilized portion of the Revolving Loan Commitment and subject to
the conditions set forth in Section 5.03. Any notice given by the
Issuing Bank or the Administrative Agent pursuant to this clause (d)(i)
may be oral if immediately confirmed in writing (including by
facsimile); provided, that the lack of such an immediate confirmation
shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Revolving Lender shall upon any notice
pursuant to Section 3.03(b)(i) make available to the Administrative
Agent for the account of the relevant Issuing Bank an amount in Same
Day Funds equal to its Pro Rata Revolving Share of the amount of the
drawing, whereupon the participating Revolving Lenders shall (subject
to Section 3.03(b)(iii)) each be deemed to have made a Revolving Loan
consisting of a Base Rate Loan to the relevant Borrower in that amount.
If any Revolving Lender so notified fails to make available to the
Administrative Agent for the account of the Issuing Bank the amount of
such Revolving Lender's Pro Rata Revolving Share of the amount of the
drawing by no later than 2:00 p.m. (New York time) on the Honor Date,
then interest shall accrue on
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such Revolving Lender's obligation to make such payment, from the Honor
Date to the date such Revolving Lender makes such payment, at a rate
per annum equal to the Federal Funds Rate in effect from time to time
during such period. The Administrative Agent will promptly give notice
of the occurrence of the Honor Date, but failure of the Administrative
Agent to give any such notice on the Honor Date or in sufficient time
to enable any Lender to effect such payment on such date shall not
relieve such Lender from its obligations under this Section 3.03(b).
(iii) With respect to any unreimbursed drawing that
is not converted into Revolving Loans consisting of Base Rate Loans to
the relevant Borrower in whole or in part, because of the relevant
Borrower's failure to satisfy the conditions set forth in Section 5.03
or for any other reason, the relevant Borrower shall be deemed to have
incurred from the Issuing Bank an L/C Borrowing in the amount of such
drawing which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin for Revolving Loans
maintained as Base Rate Loans plus 2% per annum, and each Revolving
Lender's payment to the Issuing Bank pursuant to Section 3.03(b)(ii)
shall be deemed payment in respect of its participation in such L/C
Borrowing and shall constitute an L/C Advance from such Revolving
Lender in satisfaction of its participation obligation under this
Section 3.03(b).
(c) Each Lender's obligation in accordance with this Agreement
to make an L/C Advance or Revolving Loans as contemplated by this Section 3.03
as a result of a drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to the Issuing Bank and shall not be affected
by any circumstance, including (i) any set-off, counterclaim, recoupment,
defense or other right which such Lender or any Borrower may have against the
Issuing Bank, a Borrower or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of a Default, an Event of Default, a Material Adverse
Effect or any failure to satisfy the conditions under Article V; or (iii) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
3.04 Repayment of Participations
(a) Upon (and only upon) receipt by the Administrative Agent
for the account of the Issuing Bank of immediately available funds from the
relevant Borrower (i) in reimbursement of any payment made by the Issuing Bank
under any Letter of Credit with respect to which any Lender has paid the
Administrative Agent for the account of the Issuing Bank for such Lender's
participation in such Letter of Credit pursuant to Section 3.03 or (ii) in
payment of interest thereon, the Administrative Agent will pay to each Revolving
Lender, in the same funds as those received by the Administrative Agent for the
account of the Issuing Bank, the amount of such Revolving Lender's Pro Rata
Revolving Share of such funds, and the Issuing Bank shall receive the amount of
the Pro Rata Revolving Share of such funds of any Revolving Lender that did not
so pay the Administrative Agent for the account of the Issuing Bank.
(b) If the Administrative Agent or the Issuing Bank is
required at any time to return to a Borrower, or to a trustee, receiver,
liquidator, custodian, or any official in any Insolvency Proceeding, any portion
of the payments made by such Borrower to the Administrative Agent for
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the account of the Issuing Bank pursuant to Section 3.04(a) in reimbursement of
a payment made under a Letter of Credit or interest or fee thereon, each
Revolving Lender shall, on demand of the Administrative Agent, forthwith return
to the Administrative Agent or the Issuing Bank the amount of its Pro Rata
Revolving Share of any amounts so returned by the Administrative Agent or the
Issuing Bank plus interest thereon from the date such demand is made to the date
such amounts are returned by such Revolving Lender to the Administrative Agent
or the Issuing Bank, at a rate per annum equal to the Federal Funds Rate in
effect from time to time.
3.05 Role of the Issuing Bank
(a) Each Lender and each Borrower agree that, in paying any
drawing under a Letter of Credit, the Issuing Bank shall not have any
responsibility to obtain any document (other than any sight draft and
certificates or documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document.
(b) No Administrative Agent-Related Person nor any of the
respective correspondents, participants or assignees of the Issuing Bank shall
be liable to any Lender for: (i) any action taken or omitted in connection
herewith at the request or with the approval of the Revolving Lenders (including
the Majority Lenders, as applicable); (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any L/C-Related Document.
(c) Each Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter
of Credit; provided, however, that this assumption is not intended to, and shall
not, preclude a Borrower's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. No
Administrative Agent-Related Person, nor any of the respective correspondents,
participants (including the Revolving Lenders) or assignees of the Issuing Bank,
shall be liable or responsible for any of the matters described in clauses (i)
through (vii) of Section 3.06; provided, however, anything in such clauses to
the contrary notwithstanding, that a Borrower may have a claim against the
Issuing Bank, and the Issuing Bank may be liable to such Borrower, to the
extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by such Borrower which such Borrower proves were
caused by the Issuing Bank's willful misconduct or gross negligence or the
Issuing Bank's willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing: (i) the Issuing Bank may
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary; and (ii) the Issuing Bank shall not be responsible
for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
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3.06 Obligations Absolute
The obligations of each Borrower under this Agreement and any
L/C-Related Document to reimburse the Issuing Bank for a drawing under a Letter
of Credit, and to repay any L/C Borrowing and any drawing under a Letter of
Credit converted into Revolving Loans, shall be unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this Agreement and
each such other L/C-Related Document under all circumstances (unless due to the
gross negligence or wilful misconduct of the Issuing Bank), including the
following:
(i) any lack of validity or enforceability of this
Agreement or any L/C-Related Document;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the obligations of a
Borrower in respect of any Letter of Credit or any other amendment or
waiver of or any consent to departure from all or any of the
L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or
other right that a Borrower may have at any time against any
beneficiary or any transferee of any Letter of Credit (or any Person
for whom any such beneficiary or any such transferee may be acting),
the Issuing Bank or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by the L/C-Related
Documents or any unrelated transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under any Letter of Credit;
(v) any payment by the Issuing Bank under any Letter
of Credit against presentation of a draft or certificate that does not
strictly comply with the terms of any Letter of Credit; or any payment
made by the Issuing Bank under any Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
any Letter of Credit, including any arising in connection with any
Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the obligations
of a Borrower in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, a Borrower or a guarantor.
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3.07 Cash Collateral Pledge
If, as of the Revolving Loan Termination Date, any Letters of
Credit may for any reason remain outstanding and partially or wholly undrawn, or
upon the occurrence and continuation of the circumstances described in Section
2.07(c) requiring the relevant Borrower to Cash Collateralize Letters of Credit,
then, the relevant Borrower shall immediately Cash Collateralize the L/C
Obligations in an amount equal to such L/C Obligations or any excess amount.
3.08 Letter of Credit Fees.
(a) The Company shall pay to the Administrative Agent for the
account of each of the Revolving Lenders a letter of credit fee with respect to
the Letters of Credit equal to the Applicable Margin per annum specified for
Revolving Loans maintained as Offshore Rate Loans on the Stated Amount available
to be drawn on the outstanding Letters of Credit, computed on a quarterly basis
in arrears on the last Business Day of each March, June, September and December
based upon Letters of Credit outstanding for that quarter as calculated by the
Administrative Agent. Such letter of credit fees shall be due and payable
quarterly in arrears on the last Business Day of each calendar quarter during
which Letters of Credit are outstanding, commencing on the first such quarterly
date to occur after the Initial Funding Date, through the Revolving Loan
Termination Date (or such later date upon which the outstanding Letters of
Credit shall expire), with the final payment to be made on the Revolving Loan
Termination Date (or such later expiration date).
(b) The Company shall pay to the relevant Issuing Bank,
individually, a fronting fee for each Letter of Credit Issued by such Issuing
Bank equal to .125% per annum of the Stated Amount of such Letter of Credit.
Such fronting fee shall be due and payable quarterly in arrears on the last
Business Day of each calendar quarter during which such Letter of Credit is
outstanding, commencing on the first such quarterly date to occur after such
Letter of Credit is issued, through the Revolving Loan Termination Date, with
the final payment to be made on the Revolving Loan Termination Date.
(c) The Company shall pay to the relevant Issuing Bank from
time to time on demand the normal issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of such Issuing Bank
relating to letters of credit as from time to time in effect.
3.09 Existing Letters of Credit. Schedule 3.09 hereto contains a
description of all Existing Letters of Credit issued by Chase pursuant to the
Existing Credit Agreement outstanding on the Initial Funding Date. Each such
Existing Letter of Credit, including any extension thereof issued by Chase in
its sole discretion (provided, however, that the Existing Letters of Credit
described on items 1 and 2 of Schedule 3.09 may not be extended beyond their
current termination date) shall constitute "Letters of Credit" for all purposes
of this Agreement, Issued, for purposes of Section 3.01(a), on the Initial
Funding Date. The Company, the Administrative Agent and each Lender hereby agree
that, from and after the Initial Funding Date, the terms of this Agreement shall
apply to the Existing Letters of Credit and that the terms of this Agreement
shall supersede the Existing Credit Agreement with respect to the Existing
Letters of Credit.
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3.10 Uniform Customs and Practice
The Uniform Customs and Practice for Documentary Credits as
published by the International Chamber of Commerce most recently at the time of
issuance of any Letter of Credit shall (unless otherwise expressly provided in
the Letters of Credit) apply to the Letters of Credit.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes
(a) Any and all payments by a Borrower to each Lender or the
Administrative Agent under this Agreement and any other Loan Document shall be
made free and clear of, and without deduction or withholding for, any Taxes. In
addition, the relevant Borrower shall pay all Other Taxes.
(b) If a Borrower shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of any sum
payable hereunder to any Lender or the Administrative Agent, then:
(i) the sum payable shall be increased as necessary
so that, after making all required deductions and withholdings
(including deductions and withholdings applicable to additional sums
payable under this Section), such Lender or the Administrative Agent,
as the case may be, receives and retains an amount equal to the sum it
would have received and retained had no such deductions or withholdings
been made;
(ii) such Borrower shall make such deductions and
withholdings;
(iii) such Borrower shall pay the full amount
deducted or withheld to the relevant taxing authority or other
authority in accordance with applicable law; and
(iv) such Borrower shall also pay to each Lender or
the Administrative Agent for the account of such Lender, at the time
interest is paid, Further Taxes in the amount that the respective
Lender specifies as necessary to preserve the after-tax yield the
Lender would have received if such Taxes, Other Taxes or Further Taxes
had not been imposed.
(c) Each Borrower agrees to indemnify and hold harmless each
Lender and the Administrative Agent for the full amount of (i) Taxes, (ii) Other
Taxes, and (iii) Further Taxes in the amount necessary to preserve the after-tax
yield such Lender would have received if such Taxes, Other Taxes or Further
Taxes had not been imposed, and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect thereto,
whether or not such Taxes, Other Taxes or Further Taxes were correctly or
legally asserted. Payment under this indemnification
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shall be made within 30 days after the date the relevant Lender or the
Administrative Agent makes written demand therefor.
(d) Within 30 days after the date of any payment pursuant to
this Section by a Borrower of Taxes, Other Taxes or Further Taxes, such Borrower
shall furnish to each Lender or the Administrative Agent the original or a
certified copy of a receipt evidencing payment thereof, or other evidence of
payment satisfactory to such Lender or the Administrative Agent.
(e) If a Borrower is required to pay any amount to any Lender
or the Administrative Agent pursuant to clauses (b) or (c) of this Section, then
such Lender shall use reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment by such Borrower which may thereafter
accrue, if such change in the sole judgment of such Lender is not otherwise
disadvantageous to such Lender; provided, however, that the Swing Line Lender
may in any event continue to make Swing Line Loans out of its Lending Office in
London.
4.02 Illegality.
(a) If any Lender reasonably determines that the introduction
of any Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for any Lender or its applicable Lending Office to make
Offshore Rate Loans (including Offshore Rate Loans in any Applicable Currency),
then, on notice thereof by that Lender to the Company through the Administrative
Agent, any obligation of that Lender to make Offshore Rate Loans shall be
suspended until that Lender notifies the Administrative Agent and the Company
that the circumstances giving rise to such determination no longer exist.
(b) If a Lender reasonably determines that it is unlawful to
maintain any Offshore Rate Loan, the Company shall, upon its receipt of notice
of such fact and demand from such Lender (with a copy to the Administrative
Agent), prepay in full such Offshore Rate Loans of that Lender then outstanding,
together with interest accrued thereon and amounts required under Section 4.04,
either on the last day of the Interest Period thereof, if such Lender may
lawfully continue to maintain such Offshore Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such Offshore
Rate Loan. If the Company is required to so prepay any Offshore Rate Loan, then
concurrently with such prepayment, the Company may borrow from the affected
Lender, in the amount of such repayment, a Base Rate Loan.
(c) If the obligation of any Lender to make or maintain
Offshore Rate Loans has been so terminated or suspended, the Company may elect,
by giving notice to such Lender through the Administrative Agent that all Loans
which would otherwise be made by such Lender as Offshore Rate Loans shall be
instead Base Rate Loans.
(d) Before giving any notice to the Administrative Agent under
this Section, the affected Lender shall designate a different Lending Office
with respect to its Offshore Rate Loans if such designation will avoid the need
for giving such notice or making such demand and will not, in the judgment of
such Lender, be illegal or otherwise disadvantageous to the Lender.
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4.03 Increased Costs and Reduction of Return.
(a) If any Lender reasonably determines that, due to either
(i) the introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance by that Lender with any guideline or request
from any central bank or other Governmental Authority (whether or not having the
force of law), there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining any Offshore Rate Loans or
participating in Letters of Credit, or, in the case of the Issuing Bank, any
increase in the cost to the Issuing Bank of agreeing to issue, issuing or
maintaining any Letter of Credit or of agreeing to make or making, funding or
maintaining any unpaid drawing under any Letter of Credit, then the relevant
Borrower shall be liable for, and shall from time to time, upon demand (with a
copy of such demand to be sent to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender, additional amounts as are
sufficient to compensate such Lender for such increased costs.
(b) If any Lender shall have reasonably determined that (i)
the introduction of any Capital Adequacy Regulation, (ii) any change in any
Capital Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or administration
thereof, or (iv) compliance by such Lender (or its Lending Office) or any
corporation controlling such Lender with any Capital Adequacy Regulation,
affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and (taking
into consideration such Lender's or such corporation's policies with respect to
capital adequacy and such
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Lender's customary return on capital) determines that the amount of such capital
is increased as a consequence of its Commitment, loans, credits or obligations
under this Agreement, then, upon demand of such Lender to the Company through
the Administrative Agent, the relevant Borrower shall pay to such Lender, from
time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender or such corporation for such increase.
(c) Any provision of this Agreement stated to have effect on,
after, or as from, the Commencement Date will, to the extent that the provision
relates to any currency of a state which is not a Participating Member State on
the Commencement Date, have effect in relation to that currency on the date on
which it becomes a Participating Member State.
4.04 Funding Losses
(a) Each Borrower shall reimburse each Lender and hold each
Lender harmless from any loss or expense which such Lender may sustain or incur
(other than as a result of Section 4.05) as a consequence of:
(i) the failure of such Borrower to make on a timely
basis any payment of principal of any Offshore Rate Loan;
(ii) the failure of such Borrower to borrow, continue
or convert a Loan after the Company has given (or is deemed to have
given) a Notice of Borrowing or a Notice of Conversion/ Continuation;
(iii) the failure of such Borrower to make any
prepayment in accordance with any notice delivered under Section 2.06;
(iv) the prepayment or other payment (including after
acceleration thereof) of an Offshore Rate Loan on a day that is not the
last day of the relevant Interest Period;
(v) the automatic conversion under Section 2.04 of
any Offshore Rate Loan to a Base Rate Loan on a day that is not the
last day of the relevant Interest Period; or
(vi) in the event that during the 180 day period
following the Initial Funding Date, the Borrowers maintain (x) more
than one Offshore Rate Loan with different Interest Periods or (y) any
Offshore Rate Loan with an Interest Period in excess of one month, any
breakage costs, charges or fees incurred by NationsBank or any
co-arranger in connection with the assignment of an Offshore Rate Loan;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from fees payable
to terminate the deposits from which such funds were obtained or from changes
relating to any Offshore Currency Loans. For purposes of calculating amounts
payable by a Borrower to the Lenders under this Section and under Section
4.03(a), each Offshore Rate Loan made by a Lender (and each related reserve,
special deposit or similar requirement) shall be conclusively deemed to have
been funded at the LIBOR used in
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determining the Offshore Rate for such Offshore Rate Loan by a matching deposit
or other borrowing in the interbank eurodollar market for a comparable amount
and for a comparable period, whether or not such Offshore Rate Loan is in fact
so funded.
(b) Unless otherwise prohibited by law, if more than one
currency or currency unit are at the same time recognized by the central bank of
any country as the lawful currency of that country, then:
(i) any reference in the Loan Documents to, and any
obligations arising under the Loan Documents in, the currency of that
country shall be translated into, or paid in, the currency or currency
unit of that country designated by the Administrative Agent; and
(ii) any translation from one currency or currency
unit to another shall be at the official rate of exchange recognized by
the central bank for the conversion of that currency or currency unit
into the other, rounded up or down by the Administrative Agent acting
reasonably.
(c) If a change in any currency of a country occurs, this
Agreement will be amended to the extent the Administrative Agent specifies to be
necessary to reflect the change in currency and to put the Administrative Agent,
the Issuing Bank and each Lender in the same position, so far as possible, that
it would have been in if no change in currency had occurred.
4.05 Inability to Determine Rates
If the Administrative Agent determines that for any reason
adequate and reasonable means do not exist for determining the Offshore Rate for
any requested Interest Period with respect to a proposed Offshore Rate Loan, the
Administrative Agent will promptly so notify the Company and each Lender.
Thereafter, the obligation of the Lenders to make or maintain Offshore Rate
Loans hereunder shall be suspended until the Administrative Agent revokes such
notice in writing. Upon receipt of such notice, the Company may revoke any
Notice of Borrowing or Notice of Conversion/Continuation then submitted by it.
If the Company does not revoke such notice, the Lenders shall make, convert or
continue the Loans, as proposed by the Company, in the amount specified in the
applicable notice submitted by the Company, but such Loans shall be made,
converted or continued as Base Rate Loans instead of Offshore Rate Loans. In the
case of any Offshore Currency Loans (other than Sterling Acquisition Loans), the
Borrowing or continuation shall be in an aggregate amount equal to the Dollar
Equivalent amount of the originally requested Borrowing or continuation in the
Offshore Currency, and to that end any outstanding Offshore Currency Loans
(other than Sterling Acquisition Loans) which are the subject of any
continuation shall be redenominated and converted into Base Rate Loans in
Dollars with effect from the last day of the Interest Period with respect to any
such Offshore Currency Loans.
4.06 Reserves on Offshore Rate Loans
The Company shall pay to each Lender, in respect of any
Offshore Currency Loans, additional costs arising under any applicable
regulations of the central bank or other relevant
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Governmental Authority in the country in which the Offshore Currency of such
Offshore Rate Loan circulates on the unpaid principal amount of each Offshore
Rate Loan equal to the actual costs of such reserves allocated to such Loan by
such Lender (as determined by such Lender in good faith, which determination
shall be conclusive), payable on each date on which interest is payable on such
Loan; provided the Company shall have received at least 15 days' prior written
notice (with a copy to the Administrative Agent) of such additional interest
from such Lender. If such Lender fails to give notice 15 days prior to the
relevant Interest Payment Date, such additional interest shall be payable 15
days from receipt of such notice.
4.07 Certificates of Lenders
Any Lender claiming reimbursement or compensation under this
Article IV shall deliver to the Company (with a copy to the Administrative
Agent) a certificate setting forth in reasonable detail the amount payable to
such Lender hereunder and such certificate shall be conclusive and binding on
the Company in the absence of manifest error.
4.08 Substitution of Lenders
Upon the receipt by a Borrower from any Lender (an "Affected
Lender") of a claim for compensation under this Article IV, such Borrower may:
(i) request the Affected Lender to use commercially reasonable efforts to obtain
a replacement Lender or financial institution satisfactory to such Borrower to
acquire and assume all or a ratable part of all of such Affected Lender's Loans,
Commitments and participation in Letters of Credit (a "Replacement Lender");
(ii) request one more of the other Lenders to acquire and assume all or part of
such Affected Lender's Loans, Commitment and participation in Letters of Credit;
or (iii) designate a Replacement Lender. Any such designation of a Replacement
Lender under clause (i) or (iii) above shall be subject to the prior written
consent of the Administrative Agent (which consent shall not be unreasonably
withheld), and any such substitution shall in any event be effective upon
satisfaction of the conditions set forth in Section 12.08 and all then
outstanding Obligations owing to such Affected Lender shall be repaid in full on
the date of any such assignment.
4.09 Survival
The agreements and obligations of the Company in this Article
IV shall survive the payment of all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions to Announcement Date
The obligation of each Lender to enter into the Prior Loan
Document was subject to the condition that the Administrative Agent received on
or prior to the date of the Press Release each
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of the following, in form and substance satisfactory to the Administrative
Agent, and in sufficient copies for each Lender:
(a) Prior Loan Document
The Prior Loan Document was executed by each party thereto.
(b) Resolutions; Incumbency
With respect to each the Company, US Holdco #1, US Holdco #2
and Bidco:
(i) copies of the resolutions of the board of
directors of such Person authorizing the Transactions and the
transactions contemplated thereby, certified by the Secretary or an
Assistant Secretary of such Person; and
(ii) a certificate of the Secretary or Assistant
Secretary of such Person, dated as of the Announcement Date, and
certifying the names and true signatures of the officers of such Person
authorized to execute, deliver and perform, as applicable, this
Agreement, and all other Loan Documents to be delivered by it
hereunder.
(c) Organization Documents; Good Standing
Each of the following documents with respect to each of the
Company, US Holdco #1, US Holdco #2 and Bidco:
(i) the articles or certificate of incorporation,
memorandum of association, bylaws and board of directors resolutions of
such Person as then in effect, certified by the Secretary or Assistant
Secretary of such Person; and
(ii) a good standing certificate for such Person from
the Secretary of State (or similar, applicable Governmental Authority)
of its state of incorporation and each state where such Person is
qualified to do business as a foreign corporation as of a recent date,
together with a bring-down certificate by facsimile.
(d) Legal Opinions
An opinion addressed to the Administrative Agent and the
Lenders, dated as of the Announcement Date, (i) of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish LLP,
counsel to the Company and US Holdco, substantially in the form of Exhibit D-1,
(ii) of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special English counsel to the Company, substantially
in the form of Exhibit D-2; and (iii) of ▇▇▇▇▇ & Overy, special English counsel
to the Administrative Agent, substantially in the form of Exhibit D-3.
(e) Payment of Fees
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Evidence of payment by the Company of all accrued and unpaid
fees, costs and expenses to the extent then due and payable, together with
Attorney Costs of NationsBank to the extent invoiced prior to or on the
Announcement Date, including any such costs, fees and expenses arising under or
referenced in Sections 2.10 and 12.04.
(f) Certificate
A certificate signed by a Responsible Officer of the Company,
dated as of the Announcement Date:
(i) stating that the representations and warranties
contained in Article VI are true and correct on and as of such date, as
though made on and as of such date;
(ii) stating that no Default or Event of Default
exists both before and after giving effect to the Transaction; and
(iii) stating that there has occurred (x) since March
31, 1998, with respect to the Company and its Subsidiaries and (y) to
the best knowledge of the Company since December 31, 1997 with respect
to Target and its Subsidiaries, no event or circumstance that has
resulted or could reasonably be expected to result in a material
adverse change in the business, assets, liabilities (actual or
contingent), operations, condition (financial or otherwise) or
prospects of such Person.
(g) Press Release
A true and complete copy of the Press Release, certified as
true and correct by a Responsible Officer, which Press Release (including,
without limitation, any conditions to the Offer contained therein) shall (i) be
in form and substance reasonably satisfactory to the Administrative Agent, and
(ii) indicate that the Offer is recommended by the Directors of the Target, and
that such Directors are giving personal undertakings, in form and substance
acceptable to the Administrative Agent, in favor of Bidco with respect to the
Offer, and the Administrative Agent shall have received evidence satisfactory to
it that the Press Release has been released for publication at the opening of
business in London on October 26, 1998.
(h) Consent to Existing Credit Agreement
The Administrative Agent shall have received a fully executed
consent executed by the requisite lenders party to the Existing Credit Agreement
with respect to the Transaction, such consent to be in form and substance
satisfactory to the Administrative Agent, and such consent shall be in full
force and effect.
(i) Currency Fluctuations Protection
On or prior to the Announcement Date, the Company shall enter
into Swap Contracts providing protection against fluctuations in the rate of
exchange between Sterling and Dollars with
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one or more financial institutions each having a combined capital and surplus of
at least $100,000,000, which shall hedge against any fluctuations in the
exchange rate of Dollars against Sterling the effect of which $160,000,000 will
purchase pound sterling 86,614,000, and such Swap Contract shall contain such
other terms as are customary and satisfactory to the Administrative Agent.
(j) Environment Review
Such environmental site assessments with respect to the real
property of the Company and its Subsidiaries and the Target and the Target
Subsidiaries as shall be requested by the Administrative Agent.
(k) Pro Forma Balance Sheet; Projections; and Financials
(i) A pro forma consolidated and consolidating
balance sheet of the Company and its Subsidiaries, after giving effect
to the Transaction and the related financing thereof (based on the
interim financial statements of the Company as of September 30, 1998
and of the Target as of June 30, 1998) together with a Compliance
Certificate executed by a Responsible Officer, demonstrating compliance
by the Company with Sections 9.1, 9.2 and 9.3 as of September 30, 1998
(after giving effect to the Transaction and the related financing
thereof), which pro forma balance sheet and Compliance Certificate
shall be in form and substance acceptable to the Administrative Agent;
and
(ii) Projections for the period commencing in 1998
and concluding on the date approximately five years thereafter in form
and substance acceptable to the Administrative Agent.
(l) Solvency Certificates
Each of the Company, US Holdco #1 and US Holdco #2 shall have
delivered a Solvency Certificate substantially in the form of Exhibit K-1
hereto.
(m) Collateral Documents
The Subsidiary Guaranty executed by US Holdco #1 and US Holdco
#2 and the Company Pledge Agreement and the US Holdco Pledge Agreements,
together with:
(i) evidence satisfactory to the Administrative Agent
that there has been or will be filed, registered or recorded all
filings, registrations and recordings necessary and advisable to
perfect the Liens of the Administrative Agent for the benefit of the
Lenders in accordance with applicable law;
(ii) written advice relating to such Lien and
judgment researches as the Administrative Agent shall have requested of
the Company, and such termination statements or other documents as may
be necessary to confirm that the Collateral is subject to no other
Liens in favor of any Persons (other than Permitted Liens);
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(iii) all certificates and instruments representing
the Pledged Collateral under the Company Pledge Agreement and the US
Holdco Pledge Agreements, together with stock transfer powers and other
evidence or transferability executed in blank as the Administrative
Agent may specify; and
(iv) evidence that all other actions necessary or, in
the reasonable opinion of the Administrative Agent, customary to
perfect and protect the first priority Lien created by the Collateral
Documents.
(n) Other Documents
Such other customary approvals, opinions, documents or
materials as the Administrative Agent may reasonably request.
5.02 Conditions of Initial Funding Date
The obligation of each Lender to make its initial Credit
Extension under the First Amended and Restated Credit Agreement was subject to
the condition that the Administrative Agent received executed originals of each
of the following on or before such funding date:
(a) First Amended and Restated Credit Agreement and the
promissory notes contemplated thereby.
The First Amended and Restated Credit Agreement and the
promissory notes contemplated thereby executed by the Company.
(b) Bring Down Certificate
A certificate signed by a Responsible Officer dated as of the
Initial Funding Date, proposing any necessary changes to the Disclosure
Schedules to this Agreement occurring after the Announcement Date (provided,
however, that the Administrative Agent, in its reasonable discretion, may accept
or reject such proposed changes, but any rejection of the changes will not mean
that this condition has not been satisfied).
(c) Lender Payoff Letter
A fully executed, valid and binding bank payoff letter, or
other customary evidence of satisfaction reasonably acceptable to the
Administrative Agent fully executed and delivered by each lender to the Company
and each of its Subsidiaries (which must include the lenders under Existing
Credit Agreement) being repaid on the Initial Funding Date and of the Target and
each of its Subsidiaries being repaid on the Business Day following the Initial
Funding Date, in each case stating the total amount due under any credit and
loan documents or agreements with such lenders, as the case may be, howsoever
due and owing (whether as principal, interest or premium) shall be satisfied
(and such agreements terminated) upon payment of an amount certain, together
with such lien releases and other customary payoff documents as the
Administrative Agent shall reasonably
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require; provided, however, that (x) the aggregate amount of such Debt of the
Company and its Subsidiaries (including Target and its Subsidiaries) covered by
such payoff letters shall not exceed $205,000,000, and (y) any Debt of the
Company or its Subsidiaries or the Target and its Subsidiaries not being repaid
must be permitted Debt under Section 8.01.
(d) Solvency Certificates
A written solvency certificate from a Responsible Officer of
the Company in the form of Exhibit K-1, with respect to Bidco in the form of
Exhibit K-2, and with respect to Target in the form of Exhibit L, each dated as
of the Initial Funding Date, with respect to the Solvency of each such Person on
a consolidated basis after giving effect to the Transaction (except that the
certification with respect to Target and its Subsidiaries will be as of the
Unconditional Date).
(e) Resolutions; Incumbency
With respect to each Subsidiary Guarantor (other than US
Holdco #1 and US Holdco #2):
(i) copies of the resolutions of the board of
directors of such Person authorizing the Transactions and the
transactions contemplated thereby, certified by the Secretary or an
Assistant Secretary of such Person; and
(ii) a certificate of the Secretary or Assistant
Secretary of such Person, dated as of the Initial Funding Date, and
certifying the names and true signatures of the officers of such Person
authorized to execute, deliver and perform, as applicable, this
Agreement, and all other Loan Documents to be delivered by it
hereunder.
(f) Organization Documents; Good Standing
Each of the following documents with respect to each
Subsidiary Guarantor (other than US Holdco #1 and US Holdco #2):
(i) the articles or certificate of incorporation,
memorandum of association, bylaws and board of directors resolutions of
such Person as then in effect, certified by the Secretary or Assistant
Secretary of such Person; and
(ii) a good standing certificate for such Person from
the Secretary of State (or similar, applicable Governmental Authority)
of its state of incorporation and each state where such Person is
qualified to do business as a foreign corporation as of a recent date,
together with a bring-down certificate by facsimile.
(g) Collateral Documents
The Company Guaranty, Subsidiary Guaranty and Subsidiary
Guarantor Pledge Agreement, in each case executed by each Subsidiary Guarantor,
together with:
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(i) evidence reasonably satisfactory to the
Administrative Agent that there has been or will be filed, registered
or recorded all filings, registrations and recordings necessary and
advisable to perfect the Liens of the Administrative Agent for the
benefit of the Lenders in accordance with applicable law;
(ii) written advice relating to such Lien and
judgment searches as the Administrative Agent shall have reasonably
requested of the Company, and such termination statements or other
documents as may be necessary to confirm that the Collateral is subject
to no other Liens in favor of any Persons (other than Permitted Liens);
(iii) all certificates and instruments representing
Pledged Collateral under the Pledge Agreements (other than with respect
to the Foreign Subsidiaries listed on Schedule 5.02, each a "Specified
Foreign Subsidiary"), together with undated stock transfer powers and
other evidence of transferability executed in blank as the
Administrative Agent may reasonably specify; and
(iv) evidence that all other actions necessary or, in
the reasonable opinion of the Administrative Agent, customary to
perfect and protect the first priority Lien created by the Collateral
Documents has been taken; provided, however, that the Lenders hereby
acknowledge and agree that their obligations to make any Loan to enable
the Company to facilitate the purchase of Target Shares and pay off the
Existing Credit Agreement during the Certain Funds Period will not be
dependent upon the satisfaction of this clause (iv).
(h) Completion of Offer
The Administrative Agent shall have received evidence that
each of the following has occurred on the Initial Funding Date or will occur on
the Business Day following the Initial Funding Date, certified by a Responsible
Officer of the Company:
(i) evidence that the Offer shall have been declared
and/or become unconditional in all respects and that valid acceptances
relating to the number of Target Shares to which the Offer relates
referred to in Section 7.12(f) have been received and have not (where
permitted) been withdrawn; and
(ii) a certificate in form and substance acceptable
to the Administrative Agent from the Company certifying as to
compliance with, and the receipt of any consents or waivers required
by, the terms and conditions of Sections 7.12 (a), (c) and (j) and
8.02.
(i) Legal Opinion
An opinion addressed to the Administrative Agent and the
Lenders, dated as of the Initial Funding Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish LLP,
updating their opinion delivered pursuant to Section 5.01(d)(i) to bring down
the opinions therein, expand the coverage of the opinion to include all
guarantors and each Collateral Document being executed at such time and cover
such other customary matters as the Administrative Agent shall reasonably
request, such opinion to be
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in form and substance satisfactory to the Administrative Agent; provided,
however, that the Lenders hereby acknowledge and agree that their obligation to
make any Loan to enable the Company to facilitate the purchase of Target Shares
and pay off the Existing Credit Agreement during the Certain Funds Period will
not be dependent upon the satisfaction of this clause (i).
(j) Applicable Margin Certificate
A certificate delivered to the Administrative Agent on the
Initial Funding Date, executed by a Responsible Officer, delineating the
Applicable Margin after giving pro forma effect to the Loans to be incurred on
the Initial Funding Date and the consummation of the Transaction, the form and
substance of such certificate to be satisfactory to the Administrative Agent;
provided, however, that the Lenders hereby acknowledge and agree that their
obligation to make any Loan to enable the Company to facilitate the purchase of
Target Shares and pay off the Existing Credit Agreement during the Certain Funds
Period will not be dependent upon the satisfaction of this clause (j).
(k) Application of Swap Contract Proceeds
Prior to the incurrence of any Loan to purchase Target Shares,
the Company shall liquidate the Swap Contract referred to in Section 5.01(i) and
utilize 100% of the proceeds thereof, if any, together with any proceeds of any
other forward or exchange contracts (as reasonably determined by the
Administrative Agent) to effect the Transaction.
(l) Payment of Fees.
Evidence of payment by each Borrower of all accrued and unpaid
fees, costs and expenses to the extent then due and payable on the Initial
Funding Date, together with Attorney Costs of NationsBank to the extent invoiced
prior to or on the Initial Funding Date; including any such costs, fees and
expenses arising under or referenced in Sections 2.10 and 12.04; provided,
however, that the Lenders hereby acknowledge and agree that their obligation to
make any Loan to the Company to facilitate the purchase of Target Shares and the
payoff of the Existing Credit Agreement during the Certain Funds Period will not
be dependent upon the satisfaction of this clause (l).
(m) Other Documents
Such other customary approvals, opinions, documents or
materials as in the Administrative Agent may reasonably request; provided,
however, that the Lenders hereby acknowledge and agree that their obligation to
make any Loan to the Company to facilitate the purchase of Target Shares and the
payoff of the Existing Credit Agreement during the Certain Funds Period will not
be dependent upon the satisfaction of this clause (m).
5.03 Conditions to All Credit Extensions
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The obligation of each Lender to make any Loan to be made by
it (including its initial Loan) or to continue or convert any Loan under Section
2.04 and the obligation of the Issuing Bank to Issue any Letter of Credit
(including the initial Letters of Credit) is subject to the satisfaction of the
following conditions precedent on the relevant Borrowing Date or Issuance Date:
(a) Notice, Application
The Administrative Agent shall have received (with, in the
case of the initial Loans only, a copy for each Lender) a Notice of Borrowing in
the form of Exhibit A-1 or, in the case of any Issuance of any Letter of Credit,
the Issuing Bank and the Administrative Agent shall have received an L/C
Application or L/C Amendment Application, as required under Section 3.02.
(b) Continuation of Representations and Warranties
The representations and warranties in Article VI shall be true
and correct in all material respects on and as of such Borrowing Date or
Issuance Date with the same effect as if made on and as of such Borrowing Date,
or Issuance Date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and correct
as of such earlier date); provided, however, that notwithstanding the provisions
of this clause (b) (but subject to compliance with Sections 5.01 and 5.02), at
any time during the Certain Funds Period the obligations of the Lenders to make
any Loan to enable the Company to fund the purchase by Bidco of Target Shares
and the repayment of loans under the Existing Credit Agreement are only subject
to the condition that, at the time of the making of such Loan, the Relevant
Representations and Warranties are true and correct in all material respects;
and
(c) No Existing Default
No Default or Event of Default shall exist or shall result
after giving effect to such Borrowing (or continuation or conversion) or
Issuance (or amendment or renewal); provided, however, that notwithstanding the
provisions of this clause (c) (but subject to compliance with Sections 5.01 and
5.02), at any time during the Certain Funds Period, the obligations of the
Lenders to make any Loans to enable the Company to fund the purchase by Bidco of
Target Shares and the repayment of loans under the Existing Credit Agreement,
are only subject to the condition that, at the time of the making of such Loan,
no Relevant Event of Default has occurred and is continuing or would result
after giving effect to such Loan.
Each Notice of Borrowing, Notice of Continuation/Conversion,
L/C Application or L/C Amendment Application submitted by a Borrower hereunder
shall constitute a representation and warranty by such Borrower hereunder, as of
the date of each such notice or application and as of each Borrowing Date or
Issuance Date, as applicable, that the conditions in this Section 5.03 are
satisfied and the statements in clause (b) above are deemed remade as of such
date. For purposes of the immediately preceding sentence and Section 10.02, each
of the representations and warranties contained in Article VI and any obligation
to make delivery of documents hereunder shall be deemed to have been made
notwithstanding the fact the Lenders may be required to make Loans during the
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Certain Funds Period, and any Default or Event of Default that may exist under
Section 10.01(b) on the date such Loan is made shall not be deemed to have been
waived as a result of such Loan.
5.04 First Borrowing by Each Eligible Borrower
The obligation of each Lender to make a Loan or issue a Letter
of Credit on the occasion of the first Borrowing request or first request for
issuance of a Letter of Credit by each Eligible Borrower is subject to the
satisfaction of the following further conditions:
(a) receipt by the Administrative Agent for the account of
each Lender of a duly executed Note in the form of Exhibit F-1(A) of such
Eligible Borrower dated on or before the date of such Borrowing;
(b) receipt by the Administrative Agent of an Authorization
Letter duly executed by such Eligible Borrower;
(c) receipt by the Administrative Agent of an Election to
Participate duly executed by such Eligible Borrower;
(d) receipt by the Administrative Agent of a Subsidiary
Guaranty duly executed by such Eligible Borrower that is a Domestic Subsidiary;
(e) receipt by the Administrative Agent of such certificates,
together with executed and undated stock powers, of such Eligible Borrower or
where such Eligible Borrower is a Foreign Subsidiary, of the first-tier Foreign
Subsidiary parent entity of such Eligible Borrower and, in the case of an
Eligible Borrower that is a Domestic Subsidiary, intercompany notes endorsed in
blank;
(f) receipt by the Administrative Agent of an opinion of
counsel for such Eligible Borrower acceptable to the Administrative Agent and
covering such matters relating to the transactions contemplated hereby as the
Administrative Agent may reasonably request; provided, however, that in the
event that such opinion is not delivered on the date of such first Borrowing,
then such opinion shall be delivered no later than the 30th day following such
date and the aggregate Effective Amount of Revolving Loans and L/C Obligations
of all such Eligible Borrowers for which opinions have not been delivered shall
not at any time exceed $10,000,000 prior to the date such opinion is delivered
in compliance with this clause (e);
(g) receipt by the Administrative Agent of all documents which
it may reasonably request relating to the existence of such Eligible Borrower,
the corporate authority for and the validity of this Agreement, the
Authorization Letter, the Election to Participate and the Notes of such Eligible
Borrower, and any other matters relevant thereto, all in form and substance
satisfactory to the Administrative Agent;
(h) receipt by the Administrative Agent of a letter from US
Corporation System in New York, New York (or such other agent to receive service
of process in New York, New York
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reasonably acceptable to the Administrative Agent), indicating its consent to
its appointment by such Eligible Borrower as its agent to receive service of
process; and
(i) the representations and warranties contained in Section
6.25 shall be true and correct on and as of the date of such Borrowing as though
made on and as of such date, and no Default or Event of Default shall have
occurred and be continuing, or would result from such Loans.
Except as otherwise provided in Section 5.04(f), the opinion referred to in
Section 5.04(f) above shall be dated no more than five Business Days before the
date of the first Borrowing by such Eligible Borrower hereunder.
5.05 Conditions to PTI Effective Date
The obligation of each Lender to enter into this Agreement is
subject to (in addition to compliance with Sections 5.03 and 5.04) the condition
that the Administrative Agent receives on or prior to the date hereof each of
the following, in form and substance satisfactory to the Administrative Agent,
and in sufficient copies for each Lender:
(a) Credit Agreement
This Agreement, executed by each party hereto.
(b) PTI Merger Documents
(i) The PTI Merger Documents and all transactions
contemplated thereby shall be effective pursuant to documentation and
agreements in form and substance satisfactory to the Administrative
Agent and certified copies of the same shall be delivered to the
Administrative Agent.
(ii) The Administrative Agent shall have received and
reviewed, and shall be reasonably satisfied with the contents thereof,
information regarding litigation, tax, accounting, labor, insurance,
pension liabilities (actual or contingent), real estate leases,
environmental matters, material contracts, debt agreements, property
ownership, contingent liabilities and management of PTI and the PTI
Subsidiaries.
(c) Resolutions; Incumbency
With respect to each of the Company and PTI MergeCo:
(i) copies of the resolutions of the board of
directors of such Person authorizing the PTI Merger and the
transactions contemplated thereby, certified by the Secretary or an
Assistant Secretary of such Person; and
(ii) a certificate of the Secretary or Assistant
Secretary of such Person, dated as of the PTI Effective Date, and
certifying the names and true signatures of the
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officers of such Person authorized to execute, deliver and perform, as
applicable, this Agreement and all other Loan Documents to be delivered
by it hereunder.
(d) Organization Documents; Good Standing
Each of the following documents with respect to each of the
Company and PTI MergeCo:
(i) the articles or certificate of incorporation,
memorandum of association, bylaws and board of directors resolutions of
such Person as then in effect, certified by the Secretary or Assistant
Secretary of such Person; and
(ii) a good standing certificate for such Person from
the Secretary of State (or similar, applicable Governmental Authority)
of its state of incorporation and each state where such Person is
qualified to do business as a foreign corporation as of a recent date,
together with a bring-down certificate by facsimile.
(e) Legal Opinion
An opinion addressed to the Administrative Agent and the
Lenders, dated as of the PTI Effective Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish LLP,
counsel to the Company, substantially in the form of Exhibit D-4 together with
such changes as are acceptable to the Administrative Agent.
(f) Payment of Fees
Evidence of payment by the Company of all accrued and unpaid
fees, costs and expenses to the extent then due and payable, together with
Attorney Costs of NationsBank to the extent invoiced prior to or on the PTI
Effective Date, including (i) any such costs, fees and expenses arising under or
referenced in Sections 2.10 and 12.04; and (ii) the payment of the Amendment Fee
by the Company to the Administrative Agent for the account of each Lender.
(g) Certificate
A certificate signed by a Responsible Officer of the Company,
dated as of the PTI Effective Date:
(i) stating that the representations and warranties
contained in Article VI are true and correct on and as of such date as
though made on and as of such date;
(ii) stating that no Default or Event of Default
exists;
(iii) stating that there has occurred since March 31,
1998, with respect to the Company and its Subsidiaries on a
consolidated basis, no event or circumstance that has resulted or could
reasonably be expected to result in a material adverse change in the
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business, assets, liabilities (actual or contingent), operations,
condition (financial or otherwise) or prospects of such Person; and
(iv) stating that, except for (x) in connection with
the required expiration or termination of the waiting period under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 and related
antitrust laws and regulations and any regulatory or judicial
proceeding thereunder, including without limitation the submission of
documents by the Company and PTI to the FTC pursuant to a so-called
"second request", and (y) any filing or related proceeding under the
securities laws of the United States relating to either the
solicitation of proxies from Company shareholders or the issuance of up
to 7.7 million shares of Company Common Stock and the issuance by the
SEC of an order declaring effective the Company's registration
statement on Form S-4 pursuant to which the Company will register under
the Securities Act of 1933 the issuance of up to 7.7 million shares of
Company Common Stock in the PTI Merger, there does not exist (a) any
order, decree, judgment, ruling or injunction which restrains the
consummation of the PTI Merger and the transactions contemplated
thereby in the manner contemplated by the PTI Merger Documents or (b)
any pending or threatened action, suit, investigation or proceeding ,
which, if adversely determined, could materially and adversely affect
the Company or its Subsidiaries (including PTI and the PTI
Subsidiaries), the PTI Merger, any other transaction contemplated by
the PTI Merger or the ability of the Company and its Subsidiaries or
any other Subsidiary Guarantor to perform its obligations under the
Loan Documents.
(h) Environmental Review
Such environmental site assessments with respect to the real
property of PTI and the PTI Subsidiaries as shall be requested by the
Administrative Agent.
(i) Pro Forma Balance Sheet; Projections; and Financials
(i) A pro forma consolidated and consolidating
balance sheet of the Company and its Subsidiaries, after giving effect
to the PTI Merger and the related financing thereof together with a
Compliance Certificate executed by a Responsible Officer, demonstrating
compliance by the Company with Sections 9.1, 9.2 and 9.3 as of March
31, 1999 (after giving effect to the PTI Merger and the related
financing thereof), which pro forma balance sheet and Compliance
Certificate shall be in form and substance acceptable to the
Administrative Agent;
(ii) Projections for the period commencing in 1998
and concluding on the date approximately five years thereafter after
giving effect to the PTI Merger in form and substance acceptable to the
Administrative Agent; and
(iii) Financial statements for the first fiscal
quarter ended March 31, 1999 for the Company and PTI of a type and kind
which satisfy the requests for such financial statements as set forth
in Section 7.01(b).
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(j) Solvency Certificates
Each of the Company and PTI MergeCo shall have delivered a
Solvency Certificate substantially in the form of Exhibit K-1 hereto.
(k) Collateral Documents.
Evidence in form and substance reasonably satisfactory to the
Administrative Agent that all Subsidiary Guarantors under the Subsidiary
Guaranty have acknowledged and consented to this Amendment and the obligations
created hereunder.
(l) Updated Disclosure Schedules
A certificate signed by a Responsible Officer dated as of the
PTI Effective Date, proposing any necessary changes to the Disclosure Schedules
to this Agreement in form and substance reasonably satisfactory to the
Administrative Agent occurring after the Initial Funding Date (including changes
which the Company in good faith reasonably believes will be required on the PTI
Funding Date).
(m) Other Documents
Such other customary approvals, opinions, documents or
materials as the Administrative Agent may reasonably request.
5.06 Conditions of PTI Funding Date
The obligation of each Lender to make initial advances under
its PTI Term Loan Commitment and the PTI Revolver Increase Commitment is subject
to (in addition to compliance with Sections 5.03 and 5.04) the condition that
the Administrative Agent shall have received executed originals of each of the
following on or before such funding date:
(a) Notes
(i) Notes with respect to the Revolving Loan
Commitment amended to reflect the PTI Revolver Increase Commitment, as
applicable, in favor of the Lenders with Revolving Loan Commitments; and Notes
with respect to the PTI Term Loan Commitment executed by the Company in favor of
the Lenders with PTI Term Loan Commitments.
(b) Bring Down Certificate for Disclosure Schedules
A certificate signed by a Responsible Officer dated as of the
PTI Funding Date, proposing any necessary changes to the Disclosure Schedules to
this Agreement (provided, however, that the Administrative Agent on behalf of
the Lenders, in its reasonable discretion, may accept or reject such proposed
changes, but any rejection of the changes will not mean that this condition has
not been satisfied).
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(c) Applicable Margin Certificate
A certificate delivered to the Administrative Agent on the PTI
Funding Date, executed by a Responsible Officer, delineating the Applicable
Margin after giving pro forma effect to the Loans to be incurred on the PTI
Funding Date and the consummation of the PTI Merger, the form and substance of
such certificate to be satisfactory to the Administrative Agent, which new
Applicable Margin shall then be effective as of the fifth business day following
the PTI Funding Date and which shall replace the Applicable Margin certificate
previously delivered by the Company.
(d) Lender Payoff Letters
A fully executed, valid and binding bank payoff letter, or
other customary evidence of satisfaction reasonably acceptable to the
Administrative Agent fully executed and delivered by each lender to PTI and each
of its Subsidiaries being repaid on the PTI Funding Date in each case stating
that the total amount due under any credit and loan documents or agreements with
such lenders, as the case may be, howsoever due and owing (whether as principal,
interest or premium) shall be satisfied (and such agreements terminated) upon
payment of an amount certain, together with such lien releases and other
customary payoff documents as the Administrative Agent shall reasonably require;
provided, however, that (x) the aggregate amount of such Debt of PTI and its
Subsidiaries covered by such payoff letters shall not exceed $180,000,000, and
(y) any Debt of the Company or its Subsidiaries or PTI and its Subsidiaries not
being repaid must be permitted Debt under Section 8.01.
(e) Certificate
A certificate signed by a Responsible Officer of the Company,
dated as of the PTI Funding Date:
(i) stating that the representations and warranties
contained in Article VI are true and correct on and as of such date
(both before and after giving effect to the PTI Merger, the making of
PTI Term Loans and the PTI Revolver Increase Commitment), as though
made on and as of such date;
(ii) stating that no Default or Event of Default
exists both before and after giving effect to the PTI Merger, the
making of PTI Term Loans and the PTI Revolver Increase Commitment;
(iii) stating that there has occurred (x) since March
31, 1998, with respect to the Company and its Subsidiaries and (y)
since December 31, 1997 with respect to PTI and its Subsidiaries, no
event or circumstance that has resulted or could reasonably be expected
to result in a material adverse change in the business, assets,
liabilities (actual or contingent), operations, condition (financial or
otherwise) or prospects of such Person;
(iv) stating that there does not exist (a) any order,
decree, judgment, ruling or injunction which restrains the consummation
of the PTI Merger and the transactions
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contemplated thereby in the manner contemplated by the PTI Merger
Documents or (b) any pending or threatened action, suit, investigation
or proceeding , which, if adversely determined, could materially and
adversely affect the Company or its Subsidiaries (including PTI and the
PTI Subsidiaries), the PTI Merger, any other transaction contemplated
by the PTI Merger or the ability of the Company and its Subsidiaries or
any other Guarantor to perform its obligations under the Loan
Documents; and
(v) stating that all governmental, shareholder and
third party consents (including, without limitation, all FTC and other
anti-trust clearance and SEC approval of the form of proxy solicitation
used to seek approval of the issuance of new shares of Company Common
Stock) and approvals necessary or desirable in connection with the PTI
Merger and the other transactions contemplated thereby have been
obtained;
provided, however, that for purposes of clauses (iv) and (v) of this
Section 5.06(e), required Asset Dispositions or other changes in the business or
assets of PTI which are required by a Governmental Authority as a condition to
such Person's consent to or approval of the PTI Merger shall be permitted if
reasonably satisfactory to the Administrative Agent and in an amount not to
exceed 7.5% of the 1998 consolidated net revenues of PTI (before giving effect
to the PTI Merger) as reflected on the most recent audited financial statements
of PTI.
(f) Solvency Certificates
A written solvency certificate from a Responsible Officer of
the Company, PTI MergeCo and PTI in the form of Exhibit K-1, each dated as of
the PTI Funding Date, with respect to the Solvency of each such Person on a
consolidated basis after giving effect to the PTI Merger.
(g) Resolutions; Incumbency
(a) With respect to PTI:
(i) copies of the resolutions of the board of
directors of PTI authorizing the PTI Merger and the transactions
contemplated thereby, certified by the Secretary or an Assistant
Secretary of PTI; and
(ii) a certificate of the Secretary or Assistant
Secretary of PTI dated as of the PTI Funding Date, and certifying the
names and true signatures of the officers of PTI authorized to execute,
deliver and perform, as applicable, this Agreement and all other Loan
Documents to be delivered by it hereunder.
(b) With respect to each new Subsidiary Guarantor:
(i) copies of the resolutions of the board of
directors of such Person authorizing the execution of the Loan
Documents contemplated hereby, certified by the Secretary or an
Assistant Secretary of such Person; and
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(ii) a certificate of the Secretary or Assistant
Secretary of such Person, dated as of the PTI Funding Date, and
certifying the names and true signatures of the officers of such Person
authorized to execute, deliver and perform, as applicable, this
Agreement and all other Loan Documents to be delivered by it hereunder.
(h) Organization Documents; Good Standing
Each of the following documents with respect to PTI, PTI
MergeCo and each Subsidiary Guarantor (for which such certificates have not been
previously delivered, and a bring down as to the continuing validity of all
previously provided information by each existing Subsidiary Guarantor):
(i) the articles or certificate of incorporation,
memorandum of association, bylaws and board of directors resolutions of
such Person as then in effect, certified by the Secretary or Assistant
Secretary of such Person; and
(ii) a good standing certificate for such Person from
the Secretary of State (or similar, applicable Governmental Authority)
of its state of incorporation and each state where such Person is
qualified to do business as a foreign corporation as of a recent date,
together with a bring-down certificate by facsimile.
(i) Collateral Documents
(i) The Subsidiary Guaranty executed by PTI, PTI MergeCo and
any other new Subsidiaries required to execute the same and the Subsidiary
Guarantor Pledge Agreement, together with:
(a) evidence satisfactory to the Administrative Agent
that there has been or will be filed, registered or recorded all
filings, registrations and recordings necessary and advisable to
perfect the Liens of the Administrative Agent for the benefit of the
Lenders in accordance with applicable law;
(b) written advice relating to such Lien and judgment
researches as the Administrative Agent shall have requested of the
Company, and such termination statements or other documents as may be
necessary to confirm that the Collateral is subject to no other Liens
in favor of any Persons (other than Permitted Liens);
(c) all certificates and instruments representing the
Pledged Collateral under the Company Pledge Agreement and the
Subsidiary Guarantor Pledge Agreement, together with undated stock
transfer powers and other evidence or transferability executed in blank
as the Administrative Agent may specify;
(d) evidence that all other actions necessary or, in
the reasonable opinion of the Administrative Agent, customary to
perfect and protect the first priority Lien created by the Collateral
Documents; and
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(e) evidence that all Subsidiary Guarantors under the
Subsidiary Guaranty have acknowledged and consented to this Amendment
and the obligations created hereunder.
(ii) A properly executed agreement (whether pursuant to an
amendment, acknowledgment or other joinder agreement in form and substance
reasonably acceptable to the Administrative Agent) for each of the Subsidiary
Guaranty and Subsidiary Guarantor Pledge Agreement, in each case executed by
each Subsidiary Guarantor (after giving effect to the PTI Merger) not yet a
party thereto, together with:
(a) evidence reasonably satisfactory to the
Administrative Agent that there has been or will be filed, registered
or recorded all filings, registrations and recordings necessary and
advisable to perfect the Liens of the Administrative Agent for the
benefit of the Lenders in accordance with applicable law;
(b) written advice relating to such Lien and judgment
searches as the Administrative Agent shall have reasonably requested of
the Company, and such termination statements or other documents as may
be necessary to confirm that the Collateral is subject to no other
Liens in favor of any Persons (other than Permitted Liens);
(c) all certificates and instruments representing
Pledged Collateral under the Pledge Agreements, as required from such
new Subsidiary Guarantors, together with undated stock transfer powers
and other evidence of transferability executed in blank as the
Administrative Agent may reasonably specify; provided, however, that
with respect to Foreign Subsidiaries (which are not Eligible Borrowers
seeking to make a Borrowing and to comply with Section 5.04) of the
Company which were formerly Subsidiaries of PTI, the Company shall have
60 days after the PTI Funding Date within which to comply with the
delivery requirements of this clause (c); and
(d) evidence that all other actions necessary or, in
the reasonable opinion of the Administrative Agent, customary to
perfect and protect the first priority Lien created by the Collateral
Documents has been taken.
(j) Completion of PTI Merger
The Administrative Agent shall have received evidence in form
and substance reasonably satisfactory to it that each of the following has
occurred on the PTI Funding Date as certified by a Responsible Officer of the
Company:
(i) that the PTI Merger has been consummated and is
effective in accordance with the PTI Merger Documents and in compliance
with applicable law and regulatory approvals;
(ii) that the PTI Merger Documents have not been
materially altered, amended or otherwise changed or supplemented or any
condition therein waived without
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prior written consent of the Administrative Agent which consent shall
not be unreasonably withheld or delayed;
(iii) that the board of directors of the Company, PTI
MergeCo and PTI, and shareholders of the Company, PTI MergeCo and PTI
approved the PTI Merger;
(iv) a copy of the joint proxy solicitation sent to
the shareholders of the Company and PTI in connection with the PTI
Merger; and
(v) that the Company's shareholders have approved the
issuance of new shares of common stock and any other actions required
to consummate the transactions contemplated by the PTI Merger.
(k) Approval of Pro Forma Balance Sheet and Delivery of
Updated PTI Financial Statements
(i) The Administrative Agent shall have received and
approved the pro forma consolidated and consolidating balance sheet of
the Company and its Subsidiaries, after giving effect to the PTI Merger
and the related financing thereof together with a Compliance
Certificate executed by a Responsible Officer, demonstrating compliance
by the Company with Sections 9.1, 9.2 and 9.3 as of March 31, 1999
(after giving effect to the PTI Merger and the related financing
thereof); and
(ii) if the PTI Funding Date shall have occurred
later than August 15, 1999 then the Administrative Agent shall have
received financial statements for the fiscal quarter ending June 30,
1999 for the Company and PTI of a type and kind which satisfy the
requests for such financial statements as set forth in Section 7.01(b).
(l) Legal Opinions
(i) An opinion addressed to the Administrative Agent and the
Lenders, dated as of the PTI Funding Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP,
counsel to the Company and PTI MergeCo, updating their opinion delivered
pursuant to Section 5.05(d)(i) to bring down the opinions therein, expand the
coverage of the opinion to include all guarantors, including PTI MergeCo, and
each Collateral Document being executed at such time and cover such other
customary matters as the Administrative Agent shall reasonably request,
including, but not limited to, an opinion that (I) the PTI Merger shall qualify
as a tax-free reorganization and (II) the PTI Merger is valid, legal and
effectively consummated in accordance with law, such opinion to be in form and
substance satisfactory to the Administrative Agent; and
(ii) Copies of all opinions delivered in connection with the
PTI Merger agreement, together with reliance letters addressed to the
Administrative Agent and the Lenders, dated as of the PTI Funding Date
permitting the Lenders to rely on such opinions, or such other opinions that are
reasonably acceptable to the Administrative Agent.
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(m) Y2K Problem Review
Administrative Agent shall have received and be satisfied
with information confirming that PTI and the PTI Subsidiaries have taken and are
taking all necessary steps to quantify and successfully address business and
financial risks facing each such Person related to the Y2K Problem.
(n) Payment of Fees.
Evidence of payment by each Borrower of all accrued and unpaid
fees, costs and expenses to the extent then due and payable on the PTI Funding
Date, together with Attorney Costs of NationsBank to the extent invoiced prior
to or on the PTI Funding Date, including any such costs, fees and expenses
arising under or referenced in Sections 2.10 and 12.04.
(o) Other Documents
Such other customary approvals, opinions, documents or
materials as the Administrative Agent may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative Agent and
each Lender that:
6.01 Incorporation, Good Standing and Due Qualification. Each of the
Company and its Subsidiaries (other than Elnic, Inc. which is a dormant
corporation) (a) is duly incorporated, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its assets and to transact the business in which it is now
engaged, and (b) is duly qualified as a foreign corporation and in good standing
under the laws of each other jurisdiction in which such qualification is
required except where failure to be so qualified would not have a material
adverse effect on the Company's business as a whole or its properties, condition
(financial or otherwise) or operation.
6.02 Corporate Power and Authority; No Conflicts. The execution,
delivery and performance by the Company and each Subsidiary of the PTI Merger
Documents, Offer Documents and the Loan Documents to which it is a party are
within its corporate power, have been duly authorized by all necessary corporate
action and do not and, except for (x) approval by Company shareholders of the
issuance of up to 7.7 million shares of Company Common Stock pursuant to the PTI
Merger, (y) any filing or related proceeding under the securities laws of the
United States relating to either the solicitation of proxies from Company
shareholders or the issuance of up to 7.7 million shares of Company Common Stock
and the issuance by the SEC of an order declaring effective the Company's
registration statement on Form S-4 pursuant to which the Company will register
under the Securities Act of 1933 the issuance of up to 7.7 million shares of
Company
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Common Stock in the PTI Merger, and (z) the expiration or termination of any
waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976
and related antitrust laws and regulations (and provided that all such
approvals, consents, filings and expirations will be completed before the PTI
Funding Date) will not: (a) require any consent or approval of its stockholders;
(b) contravene its charter or by-laws; (c) violate any provision of, or require
any filing (except for the filing of this Agreement with the SEC and the New
York Stock Exchange), registration, consent or approval under, any law, rule,
regulation (including Regulation U of the FRB), order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to the Company or any of its Subsidiaries or affiliates; (d)
result in a breach of, or constitute a default or require any consent (except
for those consents which have been obtained) under, any indenture or loan or
credit agreement or any other agreement, lease or instrument to which the
Company or any of its Subsidiaries is a party or by which it or its properties
may be bound; (e) result in, or require, the creation or imposition of any Lien
upon or with respect to any of the properties now owned or hereafter acquired by
the Company or any of its Subsidiaries; or (f) cause the Company (or any
Subsidiary or affiliate, as the case may be) to be in default under any law,
rule, regulation, order, writ, judgment, injunction, decree, determination or
award or any such indenture, agreement, lease or instrument.
6.03 Legally Enforceable Agreements. Each Loan Document to which the
Company or any of its Subsidiaries is a party is, or when delivered under this
Agreement will be, a legal, valid and binding obligation of the Company or such
Subsidiary, as applicable, enforceable against the Company or such Subsidiary,
as applicable, in accordance with its terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability and the time barring of claims under any
applicable limitations act.
6.04 Litigation. Except as disclosed on Schedule 6.04, there are no
actions, suits or proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its Subsidiaries before
any court, governmental agency or arbitrator, which, in any one case or in the
aggregate, would have a reasonable likelihood of having a material adverse
effect on the financial condition, operations, properties or business of the
Company and its Subsidiaries as taken as a whole or the ability of the Company
or any of its Subsidiaries to perform its obligations under the Loan Documents
to which it is a party.
6.05 Financial Statements; SEC Filings.
(a) Attached hereto as Schedule 6.05(a) is a true and correct
copy of the audited consolidated balance sheet of the Company and its
Consolidated Subsidiaries as at March 31, 1998, and the related consolidated
statements of income and statements of cash flows and changes in stockholders'
equity of the Company and its Consolidated Subsidiaries for the fiscal year then
ended, and the accompanying footnotes, together with the opinion thereon, of
KPMG Peat Marwick LLP, independent certified public accountants, a copy of which
is contained in Schedule 6.05(a), and such financial statements present fairly
in all material respects the financial condition of the Company and its
Consolidated Subsidiaries as at such date and the results of the operations of
the Company and its Consolidated Subsidiaries for the periods covered by such
statements, all in accordance with
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generally accepted accounting principles. Since March 31, 1998, there has been
no material adverse change in the business, financial position or results of
operations of the Company and its Subsidiaries. The Company has timely made all
filings required of it with the SEC and is in material compliance with all
securities laws applicable to it.
(b) (i) Attached hereto as Schedule 6.05(b) is a true and
correct copy of the audited financial statements of the Target for the
fiscal years ended December 31, 1995, December 31, 1996 and December
31, 1997, together with the opinion thereon of Price Waterhouse,
independent certified public accountants, a copy of which is contained
in Schedule 6.05(b), and to the knowledge of the Company, such
financial statements give a true and fair view of the state of affairs
of Target and its Subsidiaries as at such dates and of the profit and
cash flows of Target and its Subsidiaries for the years then ended and
have been properly prepared in accordance with the Companies Act of
1985.
(ii) Since December 31, 1998, there has been no
material adverse change in the business, financial position or results
of operations of Target and its Subsidiaries; provided, however, that
up to and including the Initial Funding Date this representation and
warranty contained in this clause (ii) shall be deemed to have been
made only to the best knowledge of the Company.
(c) (i) Attached hereto as Schedule 6.05(c) is a true and
correct copy of the audited financial statements of PTI for the fiscal
years ended December 31, 1996, December 31, 1997 and December 31, 1998,
together with the opinion thereon of PricewaterhouseCoopers,
independent certified public accountants, a copy of which is contained
in Schedule 6.05(c), and to the knowledge of the Company, such
financial statements present fairly in all material respects the
financial condition of PTI and its Consolidated Subsidiaries as at such
date and the results of the operations of PTI and its Consolidated
Subsidiaries for the periods covered by such statements, all in
accordance with generally accepted accounting principles.
(ii) Beginning on the PTI Funding Date, there has
been no material adverse change in the business, financial position or
results of operations of PTI and its Subsidiaries since December 31,
1997.
6.06 Taxes. Each of the Company and its Subsidiaries has filed all
United States Federal income tax returns and all other material tax returns
required to be filed and has paid all taxes, assessments and governmental
charges and levies shown thereon to be due, including interest and penalties,
except for those which are being contested in good faith and by appropriate
proceedings diligently conducted. The federal income tax liability of the
Company and its Subsidiaries has been audited by the Internal Revenue Service
and has been finally determined and satisfied for all taxable years up to and
including the taxable year ended March 31, 1994 (other than with respect to any
research and development credit attributable to any taxable year prior to March
31, 1994). The charges, accruals and reserves on the books of the Company and
its Subsidiaries with respect to taxes or other governmental charges are
adequate in the opinion of the Company.
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6.07 ERISA. Each member of the ERISA Group has fulfilled its
obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code with respect to each Plan.
No member of the ERISA Group has (a) sought a waiver of the minimum funding
standard under Section 412 of the Code in respect of any Plan, (b) failed to
make any contribution or payment to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Code or (c) incurred
any liability under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA.
6.08 Subsidiaries and Ownership of Stock. (a) Schedule 6.08 is a
complete and accurate list of Subsidiaries of the Company as of the date hereof
(including, without limitation, an additional attachment thereto showing the
capital structure of PTI), showing the jurisdiction of incorporation or
organization of each Subsidiary and showing the percentage of the Company's
ownership of the outstanding capital stock or other ownership interest of each
such Subsidiary. Except as set forth on Schedule 6.08, all of the outstanding
capital stock or other ownership interest of each such Subsidiary has been
validly issued, is fully paid and nonassessable and if owned by the Company is
free and clear of all Liens; and (b) PTI MergeCo prior to the PTI Funding Date
shall have no property, assets, business operations or employees.
6.09 Credit Arrangements. As of September 30, 1998, Schedule 6.09 (as
such Schedule is updated on the Initial Funding Date with the consent of the
Administrative Agent) is a complete and correct list of all Debt of the Company
and its Subsidiaries outstanding pursuant to which in each case the Company or
its Subsidiaries are or may be, in any manner, directly or contingently,
obligated in an amount equal to or greater than $1,000,000 and all Liens
existing securing Debt outstanding.
6.10 No Default on Outstanding Judgments or Orders. Each of the Company
and its Subsidiaries has satisfied all material judgments, and neither the
Company nor any of its Subsidiaries is in default with respect to any material
judgment, writ, injunction, decree, rule or regulation of any court, arbitrator
or federal, state, municipal or other governmental authority, commission, board,
bureau, agency or instrumentality, domestic or foreign.
6.11 Governmental Regulation. Neither the Company nor any of its
Subsidiaries is a "holding company" or a "public utility" within the meaning of
the Public Utility Holding Company Act of 1935, or an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or an "investment advisor" within
the meaning of the Investment Advisors Act of 1940, as amended.
6.12 Environmental Matters. Except as disclosed in Schedule 6.12, each
of the Company and its Subsidiaries is in compliance with all applicable
Environmental Laws, and neither the Company nor any of its Subsidiaries has any
fixed or contingent liability under any Environmental Law applicable to the
business, operations or properties of the Company or any of its Subsidiaries
(for purposes of this Section 6.12, "liabilities" shall include liabilities for
any capital or operating
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expenditures required for clean-up or closure of properties presently or
previously owned, any capital or operating expenditures required to achieve or
maintain compliance with environmental protection standards imposed by law or as
a condition of any license, permit or contract, any related constraints on
operating activities, including any losses or expenses relating to periodic or
permanent shutdown of any facility or reduction in the level of or change in the
nature of operations conducted thereat, any costs or liabilities in connection
with off-site disposal of wastes or Hazardous Substances, and any actual or
potential liabilities to third parties, including employees, and any related
costs and expenses), except in each case where the amount of the liabilities
associated with such noncompliance and the amount of such fixed or contingent
liabilities does not exceed in the aggregate $5,000,000. For purposes of
determining the liability of the Company and its Subsidiaries with respect to
any remedial obligation imposed pursuant to the Comprehensive Environmental
Response Compensation and Liability Act, as amended, or other similar laws,
whether state or federal, the Company and the Lenders shall take account of the
contribution obligations of other potentially responsible parties associated
with such remedial obligation.
6.13 Margin Stock. As of the PTI Effective Date, the fair market value
of all margin stock (as defined in Regulation U of the FRB, 12 CFR Section
221.2(h)) owned by the Company and its Subsidiaries does not exceed $150,000
(not including any shares of the Company's Common Stock held in the MacDermid,
Incorporated Employee Pension Plan, the MacDermid, Incorporated Employees Profit
Sharing Plan and the MacDermid, Incorporated Employee Stock Ownership Plan and
14,267,816 shares of Common Stock held in the Company's treasury as of the
Announcement Date).
6.14 Full Disclosure. All information heretofore furnished by the
Company or any of its Subsidiaries to the Administrative Agent or any Lender for
purposes of or in connection with this Agreement or any transaction contemplated
hereby is, and all such information hereafter furnished by the Company to the
Administrative Agent or any Lender will be, true and accurate in all material
respects on the date as of which such information is stated or certified. The
Company has disclosed to the Lenders any and all facts, other than general
economic conditions, which materially and adversely affect or may affect (to the
extent the Company can now reasonably foresee) the business, operations or
financial condition of the Company and its Subsidiaries, taken as a whole, or
the ability of the Company or any of its Subsidiaries to perform their
respective obligations under any Loan Document.
6.15 Collateral Documents.
(a) The provisions of each Pledge Agreement are effective to
create, in favor of the Administrative Agent for the benefit of the Lenders, a
legal, valid and enforceable security interest in all of the collateral
described therein; and the Pledged Collateral was delivered to the
Administrative Agent or its nominee in accordance with the terms thereof. The
Lien of each Pledge Agreement constitutes a perfected, first priority security
interest in all right, title and interest of a Borrower or its Subsidiary, as
the case may be, in the Collateral described therein, prior and superior to all
other Liens and interests.
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(b) All representations and warranties of a Borrower and any
of its Subsidiaries party thereto contained in the Collateral Documents are true
and correct in all material respects.
6.16 Solvency
The Company and its Subsidiaries, on a consolidated basis, are
Solvent, and, on and after the Initial Funding Date, US Holdco #1, US Holdco #2,
and Bidco, each on a stand alone basis, and the Target and its Subsidiaries, on
a consolidated basis, are, Solvent, and on and after the PTI Funding Date, PTI
and its Subsidiaries on a consolidated basis are Solvent.
6.17 Labor Relations
There are no strikes, lockouts or other material labor
disputes against the Company or any of its Subsidiaries, or, to the best of the
Company's knowledge, threatened against or materially affecting the Company or
any of its Subsidiaries, and no significant unfair labor practice complaint is
pending against the Company or any of its Subsidiaries or, to the best knowledge
of the Company, threatened against or materially affecting any of them before
any Governmental Authority.
6.18 Copyrights, Patents, Trademarks and Licenses, etc.
Except as set forth on Schedule 6.18 hereto, the Company or a
Subsidiary owned or is licensed or otherwise has the right to use all of the
patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are material to the operation
of their respective businesses, without conflict by, or with the rights of, any
other Person. To the best knowledge of the Company, no slogan or other
advertising device, product, process, method, substance, part or other material
employed by the Company or any of its Subsidiaries infringes upon any rights
held by any other Person. Except as set forth on Schedule 6.18 hereto, no claim
or litigation regarding any of the foregoing is pending or to the knowledge of
the Company threatened, and no patent, invention, device, application, principle
or any statute, law, rule, regulation, standard or code is pending or, to the
knowledge of the Company, proposed, which, in either case, could reasonably be
expected to have a material adverse change in the business, financial position
or results of operations of the Company and its Subsidiaries.
6.19 Broker's; Transaction Fees
Neither the Company nor any of its Subsidiaries has any
obligation to any Person in respect of any finder's, broker's or investment
banker's fee in connection with the Transaction except as disclosed on Schedule
6.19.
6.20 Insurance
The properties of each of the Company and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of the Company, in such amounts, with such deductibles and covering such risks
as are customarily carried by companies
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engaged in similar businesses and owning similar properties in localities where
the Company or such Subsidiary operates.
6.21 Swap Obligations
Neither the Company nor any of its Subsidiaries has incurred
any outstanding obligations under any Swap Contracts, other than Permitted Swap
Obligations. The Company has undertaken its own independent assessment of its
consolidated assets, liabilities and commitments and has considered appropriate
means of mitigating and managing risks associated with such matters and has not
relied on any swap counterparty or any Affiliate of any swap counterparty in
determining whether to enter into any Swap Contract. All of the Swap Contracts
of the Company and its Subsidiaries in effect as of the date of this Agreement
are set forth on Schedule 6.21.
6.22 Transaction Agreements and PTI Merger Documents
(a) The agreements in connection with the Transaction
(including, without limitation, the Press Release, the Offer Documents and the
agreements relating to the refinancing of certain Debt of the Target and certain
Target Subsidiaries) ("Transaction Agreements") are, or when executed (or
released in the case of the Press Release) will be, in full force and effect,
and if previously executed, have not been terminated, rescinded or withdrawn,
and no material portion thereof has been amended or waived by any party except
as permitted pursuant to the terms and conditions contained in Section 7.14. As
of the Initial Funding Date, all requisite approvals by governmental authorities
and regulatory bodies having jurisdiction over the Company and other Persons
referenced therein, with respect to the transactions contemplated by the
Transaction Agreements, have been obtained, and no such approvals impose any
conditions to the consummation of the transactions contemplated by the
Transaction Agreements or to the conduct in any material respect by the Company
and its Subsidiaries of its business thereafter. To the best of the Company's
knowledge, none of any Person's representations or warranties in the Transaction
Agreements contain any untrue statement of a material fact or omit any fact
necessary to make the facts necessary to make the statements contained therein
not misleading in light of the circumstances in which made.
(b) The agreements in connection with the PTI Merger
(including, without limitation, that certain Plan and Agreement of Merger dated
February 18, 1999 among PTI, PTI MergeCo, the Company, and Citicorp Venture
Capital, Ltd., a New York corporation ("CVC"), the Certificate of Merger; the
Escrow Agreement among the Company, CVC, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ("PTI's Management
Representative") and State Street Bank and Trust Company (the "Escrow Agent");
the Agency Agreement, Waiver and Release among CVC, PTI'S Management
Representative, and PTI Stockholders (as defined therein); and the Registration
Rights Agreement between the Company and CVC; and the agreements relating to the
refinancing of certain Debt of PTI and certain PTI Subsidiaries) ("PTI Merger
Documents") are, or when executed will be, in full force and effect, and if
previously executed, have not been terminated, rescinded or withdrawn, and no
material portion thereof has been amended or waived by any party except as
permitted pursuant to the terms and conditions contained in Section 7.14. As of
the PTI Funding Date, all requisite approvals by governmental authorities and
regulatory bodies having jurisdiction over the Company and other
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Persons referenced therein, with respect to the transactions contemplated by the
PTI Merger Documents, have been obtained, and no such approvals impose any
material conditions to the consummation of the transactions contemplated by the
PTI Merger Documents or to the conduct in any material respect by the Company
and its Subsidiaries of their businesses thereafter. To the best of the
Company's knowledge, none of any Person's representations or warranties in the
PTI Merger Documents contains any untrue statement of a material fact or omits
any fact necessary to make the facts necessary to make the statements contained
therein not misleading in light of the circumstances in which made; provided,
however, that for purposes of this Section 6.22(b), required Asset Dispositions
or other changes in the business or assets of PTI which are required by a
Governmental Authority as a condition to such Person's consent to the PTI Merger
shall be permitted if reasonably satisfactory to the Administrative Agent and in
an amount not to exceed 7.5% of the 1998 consolidated net revenues of PTI
(before giving effect to the PTI Merger) as reflected on the most recent audited
financial statements of PTI.
6.23 Governmental Authorization
(a) In connection with the Transaction and the Offer, no
approval, consent, exemption, authorization, or other action by, or notice to,
or filing (other than pursuant to the Collateral Documents) with, any
Governmental Authority is materially necessary or required in connection with
the execution, delivery or performance by, or enforcement against, a Borrower or
any of its Subsidiaries of this Agreement, any other Loan Document or any
Transaction Agreement other than (a) those approvals, consents, exemptions and
authorizations which have already been obtained, (b) any consent or
dispensations in connection with ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended, and appropriate clearances from the Office of Fair Trading,
each of which will be obtained on or prior to the Initial Funding Date and (c)
the registration of certain of the Collateral Documents as required by Section
395 of the Companies Act.
(b) In connection with the PTI Merger, no approval, consent,
exemption, authorization, or other action by, or notice to, or filing (other
than pursuant to the Collateral Documents) with, any Governmental Authority is
materially necessary or required in connection with the execution, delivery or
performance by, or enforcement against, a Borrower or any of its Subsidiaries of
this Agreement, any other Loan Document or any PTI Merger Documents other than
(a) those approvals, consents, exemptions and authorizations which have already
been obtained, (b) any consent or dispensations in connection with
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, and related
anti-trust laws and regulations, which will be obtained on or prior to the PTI
Funding Date; (c) any filings required pursuant to the securities laws of the
United States relating to either the solicitation of proxies from Company
shareholders or the issuance of up to 7.7 million shares of Company Common Stock
and the issuance by the SEC of an order declaring effective the Company's
registration statement on Form S-4 pursuant to which the Company will register
under the Securities Act of 1933 the issuance of up to 7.7 million shares of
Company Common Stock in the PTI Merger ; (d) approval by the Company's
shareholders of the issuance of up to 7.7 million shares of Company Common Stock
pursuant to the PTI Merger, which approval will be obtained prior to the PTI
Funding Date and prior to any issuance of Company Common Stock pursuant to the
PTI Merger; and (e) approval of the PTI Merger by the holders of a majority of
the
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shares of PTI Class A common stock and any other shares required to approve the
PTI Merger, which approval will be obtained prior to the PTI Funding Date and
prior to the issuance of Company Common Stock pursuant to the PTI Merger.
6.24 Year 2000 Compliance
On the basis of an investigation made by Company and each of
its Subsidiaries, the Company to the best of its knowledge reasonably believes
that the Y2K Problem will not result in a material adverse change in the
business, financial position or results of operations of the Company and its
Subsidiaries.
6.25 Representations of Eligible Borrowers.
Each Eligible Borrower shall be deemed by the execution and
delivery of its Election to Participate to have represented and warranted as of
the date thereof that:
(a) It is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation and is
a Wholly-Owned Consolidated Subsidiary of the Company;
(b) The execution and delivery by it of its Authorization
Letter, its Election to Participate, the Subsidiary Guaranty (in the case of a
Domestic Subsidiary only), the Subsidiary Pledge Agreement (in the case of a
Domestic Subsidiary only) and its Notes, and the performance by it of this
Agreement and the other Loan Documents to which it is a party are within its
corporate powers; have been duly authorized by all necessary corporate action;
require no action by or in respect of, or filing with, any governmental body,
agency or official; do not contravene, or constitute a default under, any
provision of any applicable law or regulation or of its certificate of
incorporation or by-laws or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Company or such Eligible Borrower;
and will not result in the creation or imposition of any Lien on any asset of
the Company or any of its Subsidiaries other than Permitted Liens;
(c) This Agreement and each other Loan Document to which it is
a party constitutes a legal, valid and binding obligation of such Eligible
Borrower, enforceable against such Eligible Borrower in accordance with its
terms, except to the extent that such enforcement may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability and the
time barring of claims under any applicable limitations act;
(d) Except as disclosed in such Election to Participate, there
is no income, stamp or other tax of any country, or any taxing authority thereof
or therein, in the nature of withholding or otherwise, which is imposed on any
payment to be made by such Eligible Borrower pursuant hereto or on any of its
Notes, or is imposed on or by virtue of the execution, delivery, performance or
enforcement of its Election to Participate or any of its Notes.
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ARTICLE VII
AFFIRMATIVE COVENANTS
On and after the PTI Effective Date, so long as any Lender
shall have any Commitment hereunder, or any Loan or other Obligation shall
remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
unless the Majority Lenders waive compliance in writing:
7.01 Reporting Requirements. The Company shall furnish directly to
the Administrative Agent (and the Administrative Agent shall promptly furnish a
copy to the Lenders):
(a) as soon as available and in any event within 90 days after
the end of each fiscal year of the Company, a consolidated and consolidating
balance sheet of the Company and its Consolidated Subsidiaries as of the end of
such fiscal year and the related consolidated and consolidating statements of
income and consolidated statements of cash flows and changes in stockholders'
equity of the Company and its Consolidated Subsidiaries for such fiscal year,
all in reasonable detail and stating in comparative form the respective
consolidated and consolidating figures for the corresponding date and period in
the prior fiscal year and (i) in the case of the consolidated statements, all
reported on in a manner acceptable to the SEC by KPMG Peat Marwick LLP or other
independent public accountants of nationally recognized standing, and (ii) in
the case of consolidating statements, all certified as to fairness of
presentation, compliance with generally accepted accounting principles and
consistency by a Responsible Officer of the Company;
(b) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of the Company,
a consolidated and consolidating balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such quarter and the related
consolidated and consolidating statements of income and consolidated statements
of cash flows and changes in stockholders' equity of the Company and its
Consolidated Subsidiaries for such quarter and for the period commencing at the
end of the previous fiscal year and ending with the end of such quarter, all in
reasonable detail and stating in comparative form the respective consolidated
figures as of the end of and for the corresponding quarter and the corresponding
year-to-date period in the previous fiscal year, and certified by a Responsible
Officer of the Company (subject to year end adjustments and the omission of
notes permitted by the applicable regulations of the SEC to be excluded from
quarterly reports filed on Form 10-Q) as to fairness of presentation, compliance
with generally accepted accounting principles and consistency;
(c) simultaneously with the delivery of each set of financial
statements referred to in Sections 7.01(a) and 7.01(b) , a certificate of a
Responsible Officer of the Company in the form of Exhibit C hereto (a
"Compliance Certificate") (i) setting forth in reasonable detail the
calculations required to establish whether the Company was in compliance with
the requirements of Sections 8.01 through 8.04, inclusive, and Sections 8.06,
9.01, 9.02 and 9.03 on the date of such financial statements, (ii) certifying as
to the ratio for the twelve-month period then ending of the Debt of the Company
and its Consolidated Subsidiaries on a consolidated basis to its Consolidated
EBITDA for such period, and (iii) stating whether any Default or Event of
Default exists on the date of such
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certificate and, if any Default or Event of Default then exists, setting forth
the details thereof and the action which the Company is taking or proposes to
take with respect thereto;
(d) within ten days after any officer of the Company obtains
knowledge of any Default or Event of Default, if such Default or Event of
Default is then continuing, a certificate of a Responsible Officer of the
Company setting forth the details thereof and the action which the Company is
taking or proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of
the Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and
8-K (or their equivalents) which the Company shall file with the Securities and
Exchange Commission;
(g) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the Plan
administrator of any Plan has given or is required to give notice of any such
reportable event to the PBGC, a copy of such notice; (ii) receives notice of
complete or partial withdrawal liability under Title IV of ERISA or notice that
any Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the PBGC under
Title IV of ERISA of an intent to terminate, impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or appoint a trustee to
administer any Plan, a copy of such notice; (iv) applies for a waiver of the
minimum funding standard under Section 412 of the Code, a copy of such
application; (v) gives notice of intent to terminate any Plan under Section
4041(c) of ERISA, a copy of such notice and other information filed with the
PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of
ERISA, a copy of such notice; or (vii) fails to make any payment or contribution
to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement or
makes any amendment to any Plan or Benefit Arrangement which has resulted or
could result in the imposition of a Lien or the posting of a bond or other
security, a certificate of a Responsible Officer of the Company setting forth
details as to such occurrence and action, if any, which any member of the ERISA
Group is required or proposes to take;
(h) promptly after the commencement thereof, notice of all
actions, suits and proceedings before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
affecting the Company or any of its Subsidiaries which have a reasonable
likelihood of a material adverse effect on the financial condition, properties,
or operations of the Company and its Subsidiaries taken as a whole;
(i) if, at any time, the Company shall become aware or have
reasonable cause to believe (i) that Hazardous Substances or solid wastes have
been released, or have otherwise come to be located, on or in or have begun to
affect any real property owned or leased by the Company or any Subsidiary or
that any liability arising out of the violation of any Environmental Laws has
arisen,
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including liability for off-site environmental conditions, or (ii) that a notice
has been received from any governmental body or other party seeking any
information or alleging any violation of any Environmental Laws or alleging any
liability with regard to any real property owned or leased by the Company or any
Subsidiary or off-site environmental conditions, in either case which shall have
a reasonable likelihood of materially impairing the Borrowers' ability to meet
their obligations under the Loan Documents, notice of that event;
(j) such other information respecting the condition or
operations, financial or otherwise, of the Company or any of its Subsidiaries as
the Administrative Agent or any Lender may from time to time reasonably request;
and
(k) if, at any time, the Company shall wish to add any
information or material to the Schedules to this Agreement, it shall propose
such additions to the Agent and the Lenders, provided that such Schedules shall
only be amended with the consent of the Majority Lenders, which they may
withhold in their sole discretion (which consent will not be unreasonably
withheld).
7.02 Payment of Obligations.
The Company will pay and discharge, and will cause each
Subsidiary to pay and discharge, at or before maturity or in accordance with the
Company's customary trade practices, all their respective material obligations
and liabilities, including tax liabilities, except where the same may be
contested in good faith by appropriate proceedings, and will maintain, and will
cause each Subsidiary to maintain, in accordance with generally accepted
accounting principles, appropriate reserves for the accrual of any of the same.
7.03 Maintenance of Property; Insurance.
(a) The Company will maintain, and will cause each Subsidiary
to maintain, all property useful and necessary in its business in good working
order and condition, ordinary wear and tear excepted.
(b) To the extent that insurance is reasonably available to
the Company and its Subsidiaries at a price comparable to the price paid by
other Persons in the same or similar types of business conducted by the Company
or the relevant Subsidiary, the Company will, and will cause each of its
Subsidiaries to, maintain (either in the name of the Company or in such
Subsidiary's own name) with financially sound and responsible insurance
companies, insurance on all their respective properties in at least such amounts
and against at least such risks (and with such risk retention) as are (i)
insured against under the policies of insurance of the Company and its
Subsidiaries set forth on the schedule previously provided by the Company to the
Lenders or (ii) usually insured against in the same general area by companies of
established repute engaged in the same or a similar business; and will furnish
to the Lenders, upon request from the Administrative Agent, information
presented in reasonable detail as to the insurance so carried. To the extent
such insurance is not obtained, the Company will adopt, in lieu of or
supplemental to such insurance, such other plan or method of protection, whether
by the establishment of an insurance fund or a reserve to be held and
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applied to casualty losses, or otherwise, satisfactory to the Lenders and
conforming to the practices of similar corporations' self-insurance.
7.04 Conduct of Business and Maintenance of Existence.
The Company will continue, and will cause each Subsidiary to
continue, to engage in business of the same general type as now conducted by the
Company and its Subsidiaries (i.e., the business of specialty chemicals and
related equipment), and will preserve, renew and keep in full force and effect
as necessary, and will cause each Subsidiary to preserve, renew and keep in full
force and effect as necessary, (a) their respective corporate existence and (b)
their respective permits, licenses, certifications, approvals, rights,
privileges and franchises necessary or desirable in the normal conduct of
business; provided that nothing in this Section 7.04 shall prohibit (i) the
merger or consolidation of a Subsidiary with or into another Person if the
corporation surviving such consolidation or merger is a Wholly-Owned Subsidiary
or the merger of a Subsidiary into the Company if, in each case, after giving
effect thereto, no Default or Event of Default shall have occurred and be
continuing, or (ii) the termination of the corporate existence of any Subsidiary
if (A) such termination is not materially disadvantageous to the Lenders and the
Company in good faith determines that such termination is in the best interest
of the Company or (B) such termination is in compliance with Section 8.05(ii).
7.05 Compliance with Laws.
The Company will comply, and will cause each Subsidiary to
comply, in all material respects with all applicable laws, ordinances, rules,
regulations and requirements of governmental authorities (including
Environmental Laws and ERISA and the rules and regulations thereunder), whether
foreign or domestic, except (a) where the necessity of compliance therewith is
contested in good faith by appropriate proceedings and appropriate reserves are
maintained in accordance with generally accepted accounting principles and (b)
where failure to comply with such law, ordinance, rule, regulation or
requirement would not have a material adverse effect on the financial condition
of the Company and its Subsidiaries taken as a whole.
7.06 Inspection of Property, Books and Records.
The Company will keep, and will cause each Subsidiary to keep,
proper books of record and account in which materially full, true and correct
entries shall be made of all dealings and transactions in relation to its
business and activities; and will permit, and will cause each Subsidiary to
permit, representatives of any Lender to visit and inspect any of their
respective properties, to examine and make abstracts from any of their
respective books and records and to discuss their respective affairs, finances
and accounts with their respective officers, employees and independent public
accountants, provided the Company shall have the right to be present at any
meeting with its independent public accountants, all at such reasonable times,
upon reasonable notice and as often as may reasonably be desired.
7.07 Maintenance of Ownership of Subsidiaries.
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The Company will at all times maintain direct or indirect
legal and beneficial ownership of the percentage of outstanding shares of each
class of capital stock substantially as set forth on Schedule 6.08 of each of
its Subsidiaries, except as modified by a consolidation merger or sale permitted
pursuant to the proviso to Section 8.05.
7.08 Use of Proceeds
(a) The Borrowers shall use the proceeds of the Revolving
Loans (including the amount of the PTI Revolver Increase Commitment after the
PTI Funding Date) and Swing Line Loans for working capital and other general
corporate purposes (other than for the purpose of financing a hostile
Acquisition), the refinancing of certain Debt of the Company and its
Subsidiaries under the Existing Credit Agreement, to the payment of fees and
expenses relating to the Transaction. In addition, the Company shall use
proceeds of Revolving Loans and Swing Line Loans for the acquisition of Target
Shares during the Certain Funds Period.
(b) The Company shall apply the proceeds of the Term Loan to
the refinancing or prepayment of all outstanding Debt of the Company and its
Subsidiaries under the Existing Credit Agreement , for the purchase of Target
Shares (in accordance with the funding procedures clause (c) below), and for
other general corporate purposes.
(c) The Company shall apply the proceeds of all Sterling
Acquisition Loans first to make equity contributions and/or intercompany loans
to US Holdco #1 and US Holdco #2, each of which shall use 100% of such proceeds
to make equity contributions and/or intercompany loans to Bidco to enable Bidco
to facilitate the refinancing of certain Debt of the Target and certain Target
Subsidiaries as provided in Section 5.02(c), towards financing the cash
consideration to be paid by Bidco for the Target Shares pursuant to acceptances
of the Offer, and second towards the payment of fees and expenses relating to
the Transaction and for other general corporate purposes.
(d) The Company hereby acknowledges and agrees that the
aggregate Dollar Equivalent of Loans incurred during the Certain Funds Period in
connection with the purchase of Target Shares, any refinancing of Debt of Target
and its Subsidiaries in connection with the acquisition of Target pursuant to
the Offer, any refinancing of Debt of the Company and its Subsidiaries on the
Initial Funding Date and the payment of fees in connection with the Transaction
shall not exceed the Dollar Equivalent of $320,000,000.
(e) The Company shall apply the proceeds of the PTI Term Loan
to refinance certain Debt of PTI and/or PTI's Subsidiaries pursuant to the PTI
Merger and the transactions related thereto.
(f) The Company hereby acknowledges and agrees that the
aggregate Dollar Equivalent of Loans incurred in connection with the PTI Merger
shall not exceed the Dollar Equivalent of $205,000,000; provided, however, that
no more than the Dollar Equivalent of (i) $180,000,000 may be used to repay
indebtedness of PTI, (ii) $10,000,000 may be used for the payment of fees and
expenses in connection with the PTI Merger, and (iii) $15,000,000 may be used,
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if needed, to purchase in cash PTI shares from PTI shareholders asserting
dissenters' rights in connection with the PTI Merger.
7.09 Solvency
The Company and its Subsidiaries, on a consolidated basis,
shall at all times be Solvent, and on and after (a) the Initial Funding Date, US
Holdco #1, US Holdco #2 and Bidco, each on a stand-alone basis, and the Target
and its Subsidiaries, on a consolidated basis, shall at all times be Solvent,
and (b) the PTI Funding Date, PTI and the PTI Subsidiaries taken as a whole
shall at all times be Solvent.
7.10 Further Assurances.
(a) Each Borrower shall ensure that all written information,
exhibits and reports furnished to the Administrative Agent or the Lenders do not
and will not contain any untrue statement of a material fact and do not and will
not omit to state any material fact or any fact necessary to make the statements
contained therein not misleading in light of the circumstances in which made,
and will promptly disclose to the Administrative Agent and the Lenders and
correct any defect or error that may be discovered therein or in any Loan
Document or in the execution, acknowledgment or recordation thereof.
(b) Promptly upon the written request of the Administrative
Agent or the Majority Lenders, each Borrower shall (and shall cause any of its
Subsidiaries to) do, execute, acknowledge, deliver, record, re-record, file,
re-file, register and re-register any and all such further acts, security
agreements, mortgages, assignments, financing statements and continuations
thereof, termination statements, notices of assignment, transfers, certificates,
assurances and other instruments the Administrative Agent or such Lenders, as
the case may be, may reasonably require from time to time in order (i) to carry
out more effectively the purposes of this Agreement or any other Loan Document,
(ii) to subject any of the properties, rights or interests covered by any of the
Collateral Documents to the Liens created by any of the Collateral Documents,
(iii) to perfect and maintain the validity, effectiveness and priority of any of
the Collateral Documents and the Liens intended to be created thereby, and (iv)
to better assure, convey, grant, assign, transfer, preserve, protect and confirm
to the Administrative Agent and the Lenders the rights granted or now or
hereafter intended to be granted to the Administrative Agent and the Lenders
under any Loan Document or under any other document executed in connection
therewith.
7.11 Foreign Subsidiaries Security
(a) The Company will, and will cause its relevant Subsidiaries
to, deliver to the Administrative Agent on or prior to the 45th day following
the Initial Funding Date (or such later date as is acceptable to the
Administrative Agent to accommodate processing or local law requirements) the
Pledged Collateral relating to each Specified Foreign Subsidiary, together with
such instruments of transfer as are reasonably acceptable to the Administrative
Agent.
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(b) If the Administrative Agent reasonably believes that
appropriate changes have been made to the relevant sections of the Code as in
effect on the Announcement Date, the regulations and rules promulgated
thereunder and any rulings issued thereunder, the Administrative Agent may (or
upon the reasonable request of the Majority Lenders, shall) request that counsel
for the Company acceptable to the Administrative Agent within 30 days after such
request deliver evidence satisfactory to the Administrative Agent, with respect
to any Foreign Subsidiary which is a first-tier Wholly-Owned Consolidated
Subsidiary of the Company, that (i) a pledge of 65% or more of the total
combined voting power of all classes of capital stock of such Foreign Subsidiary
entitled to vote, (ii) the entering into by such Foreign Subsidiary of a
guaranty in substantially the form of the Subsidiary Guaranty or (iii) the
entering into by such Foreign Subsidiary of a pledge agreement in substantially
the form of the Subsidiary Guarantor Pledge Agreement, in either case would
cause the earnings of such Foreign Subsidiary to be treated as a deemed dividend
to such Foreign Subsidiary's United States parent or would otherwise violate a
material applicable law or governmental or regulatory restriction or rule
(including laws, rules, or restrictions of, or issued by, a government or
regulatory authorities of a foreign jurisdiction or would otherwise cause a
material adverse monetary tax consequence to the Company), and in the case of a
failure to deliver the evidence described in clause (i) above, (A) that portion
of such Foreign Subsidiary's outstanding capital stock and intercompany notes
not theretofore pledged pursuant to a Pledge Agreement shall be pledged to the
Administrative Agent, for the benefit of itself, the Issuing Bank and the
Lenders pursuant to a Pledge Agreement (or another pledge agreement in
substantially similar form, if needed), (B) such Foreign Subsidiary shall
execute and deliver a guaranty of the Obligations of the Company under the Loan
Documents and (C) such Foreign Subsidiary shall execute and deliver a pledge
agreement granting the Administrative Agent for the benefit of the Lenders a
security interest in all of the capital stock of each Subsidiary of such Foreign
Subsidiary and intercompany notes payable to such Foreign Subsidiary, in each
case with all documents delivered pursuant to this Section 7.11 to be in form
and substance satisfactory to the Administrative Agent.
7.12 The Offer
(a) The Company will procure that the Offer is made on the
terms and conditions set out in the Press Release.
(b) The Company will keep the Administrative Agent informed as
to the status of, and progress with respect to, the Offer and updated financial
information on Target and each Target Subsidiary (as available) and, in
particular, will promptly give to the Administrative Agent such information
(including details as to the current level of acceptances) concerning the Offer
or otherwise relevant to the Offer as the Administrative Agent may reasonably
request and shall promptly upon receipt deliver to the Administrative Agent a
copy of every certificate delivered to Bidco in connection with the Offer by the
receiving agent pursuant to the City Code.
(c) Without the prior approval of the Administrative Agent
(the Administrative Agent's response not to be unreasonably delayed), the
Company will not, and will procure that Bidco will not:
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(i) waive, in whole or in part, either of the
conditions specified in 1(B) and (C) of Appendix 1 to the Press Release
relating to the UK Fair Trading Act 1973 and the US ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Anti-Trust Improvements Act of 1976; or
(ii) make any increase in the per share offer
purchase price or any change in the form of consideration of the offer
purchase price (each as delineated in the Press Release) or take or
permit to be taken any step as a result of which such an increase or
change is or may be required; and
(iii) take or permit to be taken any step which would
require the Company or any of its Subsidiaries (including Bidco) to
make a mandatory offer for Target within Rule 9 of the City Code.
(d) The Company will notify the Administrative Agent
immediately upon becoming aware of any circumstance or event which is or could
reasonably be construed as being covered by a condition of the Offer which, if
not waived, would entitle it, with the consent of the Panel on Take-overs and
Mergers in the United Kingdom, if needed, to lapse the Offer and will consult
with the Administrative Agent in relation to such event or circumstances and its
intended actions.
(e) The Company will consult with the Administrative Agent
before declaring the Offer unconditional as to acceptances in circumstances
where it has not acquired or agreed to acquire pursuant to the Offer at least
90% in nominal value of the Target Shares to which the Offer relates (within the
meaning of Section 428-430F of the Companies Act).
(f) The Company will not, and will not permit Bidco to,
exercise its rights to declare the Offer unconditional as to acceptances unless
it has acquired or agreed to acquire pursuant to the Offer not less than 75% of
the Target Shares on a fully diluted basis.
(g) The Company shall, and shall cause US Holdco #1, US Holdco
#2 and Bidco to, comply in all material respects with the provisions of the City
Code, the Financial Services ▇▇▇ ▇▇▇▇ and the Companies ▇▇▇ ▇▇▇▇ and all other
applicable statutes, laws and regulations relevant in the context of the Offer.
(h) The Company shall cause Bidco to give notice under Section
429 of the Companies Act to relevant Target shareholders promptly upon becoming
entitled to do so under the Companies Act.
(i) The Company shall ensure that, on the Initial Funding
Date, the Administrative Agent is provided with copies of such constitutional
documents of the Target and each Target Subsidiary as it deems to be material.
(j) The Company will (and will cause Bidco to) consult with
the Administrative Agent with respect to any condition which is attached to:
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(i) any indication by the Office of Fair Trading that
it is not the intention of the Secretary of State for Trade and
Industry to refer the proposed acquisition of Target by Bidco to the
Monopolies and Mergers Commission; or
(ii) the expiry, lapsing or termination of any
appropriate waiting period (including any extension thereof) under the
United States ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 and
the regulations thereunder;
and will not in any event treat or deem the conditions to the Offer specified in
Sections 1(b) or (c) (as the case may be) of Appendix 1 to the Press Release as
satisfied or waived if it would, in the reasonable opinion of the Administrative
Agent, have a material adverse effect on the business, assets, financial
conditions or prospects of the Company, Bidco or the Target.
7.13 Bidco Capitalization. On or prior to the Initial Funding Date, the
Company shall take any and all actions necessary to ensure that the shares of
Bidco are fully paid, and shall have delivered evidence satisfactory to the
Administrative Agent that such actions have been taken.
7.14 The PTI Merger. On or prior to the PTI Funding Date (except
paragraph (d), which shall continue in effect thereafter), the Company shall:
(a) deliver to the Administrative Agent correct and complete
copies of the PTI Merger Documents and update such documents as necessary;
(b) obtain all anti-trust clearance from the FTC and other
Governmental Agencies for the PTI Merger and deliver to the Administrative Agent
proof thereof (or promptly notify Administrative Agent in the event such
clearance has been refused);
(c) obtain all necessary consents and approvals from the SEC
and any necessary state authority relating to the issuance of Company Capital
Stock as partial consideration for the PTI Merger and required by the PTI Merger
Documents; and
(d) not permit or cause PTI MergeCo or any of its other
Subsidiaries to consent to any amendment or waiver to the terms or conditions of
the PTI Merger Documents without the prior written consent of the Administrative
Agent.
ARTICLE VIII
NEGATIVE COVENANTS
On and after the PTI Effective Date, so long as any Lender
shall have any Commitment hereunder, or any Loan or other Obligation shall
remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
unless the Majority Lenders waive compliance in writing the Company shall not,
and shall not permit any of its Subsidiaries to:
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8.01 Debt.
Incur or at any time be liable with respect to any Debt
except:
(a) Debt outstanding under this Agreement and the other Loan
Documents;
(b) Debt not evidenced by this Agreement or the other Loan
Documents and in an amount outstanding as of September 30, 1998 and identified
on Schedule 6.09 (as such Schedule is updated on the PTI Funding Date with the
consent of the Administrative Agent) and other Debt in an amount outstanding as
of the PTI Effective Date (which shall be identified on Schedule 6.09 if in each
case it is in excess of $1,000,000) and any extensions, renewals and
refinancings of any such Debt to the extent that (x) the aggregate principal
amount of the Debt permitted pursuant to this clause (b) is not increased as of
such date as a result thereof, and (y) the respective issue of refinancing Debt
shall have no restrictions which would violate any terms of this Agreement or
any other Loan Document or of any other Debt of the Company and its Subsidiaries
which is to remain in effect; provided, however, that no Debt under the Existing
Credit Agreement (or any refinancing thereof other than with the proceeds of the
Loans) will be permitted on or after the Initial Funding Date.
(c) Debt (in addition to the allowances in clauses (a), (b),
(d), (e),(f) , and (g)of this Section 8.01) in an aggregate principal amount not
to exceed $30,000,000 (provided, however, that on and after the PTI Funding
Date, this amount shall be $50,000,000) at any time outstanding;
(d) Debt subordinated to the Debt hereunder, in amounts and on
terms and conditions satisfactory to the Majority Lenders;
(e) Debt constituting a guaranty issued by the Company with
respect to (x) Debt of any Subsidiary to the extent such Subsidiary's Debt is
permitted to be incurred pursuant to a clause (other than this clause (e)) of
this Section 8.01 and (y) Debt of any Person not a Subsidiary, provided that the
aggregate principal amount of such Debt shall not at any time exceed $15,000,000
(without giving effect to any write-offs or write-downs of such Debt);
(f) intercompany loans to the extent permitted pursuant to
Section 8.06; and
(g) Debt of the Company in a principal amount not to exceed
$100,000,000 (the "Take Out Debt") which is unsecured, contains interest rates,
fees and other pricing terms reflecting fair market value rates, does not mature
in whole or in part or require any principal amortization or prepayments until
after the maturity date of all Loans hereunder and is on such other terms and
conditions as are not materially more restrictive than the terms and conditions
of the Loan Documents, together with Debt (without double counting) consisting
of unsecured guarantees of the Take Out Debt by any Subsidiaries of the Company
that are then party to the Subsidiary Guaranty on a pari passu basis with the
obligations under the Subsidiary Guaranty, and is on such terms and conditions
as are not materially more restrictive than the terms and conditions of the Loan
Documents; provided, further, that prior to incurring such Take Out Debt (i) no
Default or Event of Default shall then exist or result after giving effect
thereto (as further evidenced by a written
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certificate to such effect from the Company in favor of the Lenders and the
Administrative Agent), (ii) the Company demonstrates in writing to the
reasonable satisfaction of the Administrative Agent that it is and will be in
compliance on a pro forma basis with the financial covenants set forth in
Article IX after giving effect to such Take Out Debt and (iii) the proceeds of
such Take Out Debt are applied in accordance with Section 2.07(k).
8.02 Restricted Payments.
Declare or make any Restricted Payments except Restricted
Payments made when no Default or Event of Default has occurred and is continuing
(or would result after giving effect to such Restricted Payment) and where
immediately after giving effect thereto, the aggregate of all Restricted
Payments declared or made subsequent to the Announcement Date does not exceed
(a) $22,500,000 (provided, however, that on and after the PTI Funding Date, this
amount shall be $32,500,000) plus (b) 50% of Consolidated Net Income (less
consolidated net loss, if any) of the Company and its Consolidated Subsidiaries
for the period from the Announcement Date through the end of the Company's then
most recent fiscal quarter (treated for this purpose as a single accounting
period).
Nothing in this Section 8.02 shall prohibit the payment of (A)
any dividend or distribution within 60 days after the declaration thereof if
such declaration was not prohibited by this Section 8.02; and (B) the
distribution of up to 7.7 million shares of Company Common Stock (as such amount
is adjusted pursuant to any dividend, stock split, merger, reverse stock merger
or similar transaction after the PTI Effective Date) to PTI MergeCo for delivery
to the former shareholders of PTI pursuant to the PTI Merger Documents.
8.03 Investments.
Make or acquire any Investment in any Person other than:
(a) Investments (other than pursuant to Section 8.03(f)) in an
aggregate amount not to exceed $33,000,000 (provided, however, that on and after
the PTI Funding Date, this amount shall be $40,000,000) outstanding as of the
Announcement Date (such Investments in excess of $1,000,000 are set forth on
Schedule 8.03(a) (as such Schedule is updated on the Initial Funding Date with
the consent of the Administrative Agent) and any replacements of such
Investments with Investments of equal amount thereto;
(b) Investments in joint ventures of the Company or its
Subsidiaries if after giving effect thereto the aggregate amount of all such
Investments does not exceed $10,000,000 (provided, however, that on and after
the PTI Funding Date, this amount shall be $20,000,000) outstanding at any one
time, excluding any Investments described in Sections 8.03(a) and (f);
(c) deposits with, or time deposits with, including
certificates of deposits issued by, (i) any office located in the United States
of any bank or trust company which is organized under the laws of the United
States or any state thereof and has capital surplus and undivided profits
aggregating at least $100,000,000, (ii) any Lender or (iii) any foreign bank for
which S & P or
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▇▇▇▇▇'▇ issues a rating of "A" or higher and which has capital surplus and
undivided profits aggregating at least $100,000,000;
(d) Investments in investment grade securities;
(e) Investments made in another Person pursuant to a merger or
asset acquisition made in compliance with clause (i) of the proviso in Section
8.05;
(f) Investments relating to the ViaTek program existing or
planned as of the Announcement Date and listed on Schedule 8.03(b), and
additional Investments relating to the ViaTek program in an aggregate amount not
to exceed $12,000,000 at any time;
(g) Investments to the extent permitted pursuant to Section
8.06; and
(h) other Investments (other than pursuant to Section 8.03
(f)) up to (x) at any time prior to the Initial Funding Date, $45,000,000 in the
aggregate and (y) on and after the Initial Funding Date, $20,000,000 in the
aggregate.
The amount of any Investment shall be the original cost of such Investment plus
the cost of all additions thereto, without adjustments for increases or
decreases in value, write-ups, write-downs or write-offs with respect to such
Investment.
8.04 Negative Pledge.
Create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens existing as of the Announcement Date securing Debt
outstanding on such date and identified on Schedule 8.04 (as such Schedule is
updated on the Initial Funding Date with the consent of the Administrative
Agent), provided, that the Lien identified in Item 5(b) on Schedule 8.04 shall
not be permitted to exist at any time on and after February 28, 1999;
(b) Permitted Liens;
(c) any Lien existing on any non-current asset securing Debt
in an aggregate principal amount up to $15,000,000 at any time;
(d) any Lien securing factoring programs of Foreign
Subsidiaries in an aggregate amount of up to $5,000,000 at any time; and
(e) any Lien relating to a transaction permitted by Section
8.05(ii)(y).
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8.05 Consolidations, Mergers and Sales of Assets.
Suffer, permit or enter into any agreement to (a) consolidate
or merge with or into any other Person or (b) make an Asset Disposition;
provided that:
(i) the Company or any Subsidiary may merge with or
acquire another Person, through a stock, asset or any other similar
transaction, which is in the business of specialty chemicals and
related equipment if (A) the Company or such Subsidiary is the
surviving entity, (B) such acquisition is friendly and is done with the
recommendation of the acquiree's board of directors or similar
governing body and (C) the Company has delivered to the Administrative
Agent a certificate executed by a Responsible Officer (x) certifying
that no Default or Event of Default has occurred and is continuing both
before and after giving effect to such transaction and (y)
demonstrating pro forma compliance with Sections 9.01, 9.02 and 9.03
after giving effect to such transaction;
(ii) the Company or any Subsidiary may make Asset
Dispositions the aggregate net proceeds of which received by the
Company after the Announcement Date shall not exceed (x) $25,000,000
(other than an Asset Disposition subject to the following clause (y))
(and, subject to compliance with Section 2.07(f), the Lenders hereby
agree not to unreasonably withhold their consent for Asset Dispositions
in excess of such aggregate amount ) and (y) $10,000,000 (provided,
however, that on and after the PTI Funding Date, this amount shall be
$20,000,000) with respect to Asset Dispositions of equipment in
connection with a sale-leaseback transaction pursuant to which the
Company or a Subsidiary will be the lessee;
(iii) a Subsidiary of a Borrower may merge with a
Borrower or a Wholly-Owned Subsidiary of a Borrower if (A) such
Borrower or such Wholly-Owned Subsidiary, as the case may be, is the
corporation surviving such merger and (B) immediately after giving
effect to such merger, no Default or Event of Default shall have
occurred and be continuing;
(iv) the Transaction shall be permitted; and
(v) subject to the satisfaction of Sections 5.05 and
5.06, the PTI Merger shall be permitted in accordance with the PTI
Merger Documents.
8.06 Transactions with Affiliates.
Directly or indirectly, pay any funds to or for the account
of, make any Investment in (whether by acquisition of stock or Debt, by loan,
advance, transfer of property, guarantee or other agreement to pay, purchase or
service, directly or indirectly, any Debt, or otherwise), lease, sell, transfer
or otherwise dispose of any assets, tangible or intangible, to, or participate
in, or effect any transaction in connection with any joint enterprise or other
joint arrangement with, any Affiliate; provided, however, that the foregoing
provisions of this Section 8.06 shall not prohibit:
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(a) the Company from declaring or paying any lawful dividend
permitted pursuant to Section 8.02;
(b) the Company or any Subsidiary from making sales to or
purchases from any Affiliate and, in connection therewith, extending credit or
making payments, or from making payments for extending credit or making
payments, or from making payments for services rendered by any Affiliate, if
such sales or purchases are made or such services are rendered in the ordinary
course of business and on terms and conditions at least as favorable to the
Company or such Subsidiary as the terms and conditions which would apply in a
similar transaction with a Person not an Affiliate;
(c) the Company or any Subsidiary from participating in, or
effecting any transaction in connection with, any joint enterprise or other
joint arrangement with any Affiliate if the Company or such Subsidiary
participates in the ordinary course of its business and on a basis no less
advantageous than the basis on which such Affiliate participates;
(d) any transactions between the Company and any Eligible
Borrower which has executed and delivered an Election to Participate which is
still in effect or any Subsidiary that has executed a Subsidiary Guaranty
hereunder;
(e) any payment from any Subsidiary to the Company;
(f) intercompany loans (i) involving only the Company and a
Qualified Subsidiary, (ii) between Qualified Subsidiaries, (iii) between
Non-Qualified Subsidiaries and (iv) from a Non-Qualified Subsidiary to the
Company or a Qualified Subsidiary, in each case so long as the payee with
respect to such intercompany loan is Solvent both before and after giving effect
to such intercompany loan;
(g) as a further limitation on clause (f), during the
Squeeze-Out Period the Company may purchase shares of US Holdco #1 and US Holdco
#2, and US Holdco #1 and US Holdco #2 may (x) make intercompany loans to Bidco
and (y) purchase shares of Bidco, in each case so long as (i) 100% of the
proceeds of all such Investments shall be utilized by Bidco to purchase Target
Shares pursuant to the Offer and related fees and costs for the Offer and (ii)
the ratio of (x) to (y) above shall be at least 1.0 to 1.0; and
(h) Intercompany Debt which does not exceed $15,000,000 in the
aggregate.
8.07 Change in Business.
(a) Engage in any material line of business substantially
different from those lines of business carried on by the Company and its
Subsidiaries on the Announcement Date (or, in the case of Target and each Target
Subsidiary, on the Unconditional Date) and lines of business reasonably
ancillary or complementary to such current lines of business.
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(b) The Company will not permit (x) US Holdco #1 and US Holdco
#2 to engage in any business activities other than in connection with its
ownership interest in Bidco and the execution, delivery and performance of the
Collateral Documents to which it is a party or (y) Bidco to engage in any
business activities other than those necessary (i) to effect the Offer and (ii)
with respect to its ownership interest in Target.
8.08 Accounting Changes.
Make any significant change in accounting treatment or
reporting practices, except as required by GAAP.
8.09 Target Operations.
For a period of sixty (60) days (the "Cure Period") after the
Unconditional Date, the representations and warranties set out in Section 6.04,
6.06, 6.07, 6.10, 6.17, 6.18, 6.20, 6.21 and (to the extent any disclosure
covered under Section 6.14 relates to or provides information covered solely and
specifically to one of the representations previously listed) Section 6.14 and
the negative covenants set out in Sections 8.01, 8.03, 8.04, 8.05 and 8.06 shall
not apply in respect of events or circumstances not known to the Company and
existing on the Initial Funding Date (a "Cure Period Event") with respect to
Target and each Target Subsidiary and capable of remedy within such sixty (60)
day Cure Period; provided, that:
(a) the Company agrees to notify the Administrative Agent
promptly upon learning of any such Cure Period Event that would, but for this
covenant, constitute a Default or Event of Default;
(b) such Cure Period Event is not reasonably likely to cause a
material adverse effect on the business, financial position or results of
operations of the Company and its Subsidiaries or the Target and its
Subsidiaries;
(c) the aggregate amount that will be required to cure such
Cure Period Event is not in excess of $7,500,000; and
(d) if at the end of such Cure Period the Cure Period Event
still exists, it shall be an immediate Event of Default.
ARTICLE IX
FINANCIAL COVENANTS
So long as any of the Notes shall remain unpaid, any amounts
shall be owing hereunder by any Borrower, or any Lender shall have any
Commitment under this Agreement, the Company covenants that:
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9.01 EBIT to Interest Expense Ratio.
The ratio of Consolidated EBIT for the preceding four fiscal
quarters to Consolidated Interest Expense for the preceding four fiscal quarters
shall not be less than 2.50 to 1.00, tested at end of each fiscal quarter.
9.02 Minimum Consolidated Net Worth.
The Company shall maintain at all times Consolidated Net Worth
(without giving effect to any adjustments made in accordance with GAAP with
respect to currency translations) at the end of each fiscal quarter of not less
than $98,279,000, plus an amount equal to the sum of (a) 50% of positive
Consolidated Net Income for each full fiscal quarter since September 30, 1998 to
the measurement date plus (b) an amount equal to the net proceeds received by
the Company from the issuance of its capital stock during such period.
9.03 Maximum Total Debt to Consolidated EBITDA.
The ratio of Consolidated Total Debt to Consolidated EBITDA
tested at the end of each fiscal quarter for the preceding four fiscal quarters
shall not during the periods set forth below exceed the following:
Period Ratio
------ -----
Announcement Date to March 31, 2000 4.00 to 1.00
April 1, 2000 to March 31, 2001 3.50 to 1.00
April 1, 2001 to March 31, 2002 3.25 to 1.00
April 1, 2002 and thereafter 3.00 to 1.00
ARTICLE X
EVENTS OF DEFAULT
10.01 Event of Default
Any of the following shall constitute an "Event of Default":
(a) any Borrower shall: (i) fail to pay the principal of any
Note as and when due and payable; (ii) fail to pay interest on any Note or any
fee or other amount due hereunder as and when due and payable and such failure
shall continue for five (5) Business Days; or
(b) any representation or warranty made or deemed made by any
Borrower in this Agreement or in any other Loan Document or which is contained
in any certificate, document, opinion, financial or other written statement
furnished at any time under or in connection with any
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Loan Document shall prove to have been incorrect in any material respect on or
as of the date made or deemed made or furnished; or
(c) any Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.04(e), Article VII, Article VIII or
Article IX; or
(d) any Borrower shall fail to perform or observe any term,
covenant or agreement on its part to be performed or observed (other than the
obligations specifically referred to elsewhere in this Section 10.01) in any
Loan Document and such failure shall continue for thirty (30) consecutive
calendar days after written notice thereof has been given to the Company by the
Administrative Agent at the request of the Majority Lenders; or
(e) (i) the Company or any Subsidiary shall fail to make any
payment in respect of any Material Debt when due or within any applicable grace
period or (ii) there occurs under any Swap Contract an early termination date or
similar termination or payment event resulting from (1) any breach, violation or
event of default under Swap Contract as to which the Company or any of its
Subsidiaries is the defaulting or breaching party or (2) any termination or
similar event as to which the Company or any of its Subsidiaries is an affected
party, and, in either event, the Swap Termination Value owed and not immediately
paid by the Company or such Subsidiary as a result thereof is greater than
$5,000,000; or
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables (or, with the
giving of notice or lapse of time or both, would enable) the holder of such Debt
or any Person acting on such holder's behalf to accelerate the maturity thereof;
or
(g) the Company or any Material Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally or admit in writing its
inability to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing; or
(h) an involuntary case or other proceeding shall be commenced
against the Company or any Material Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of sixty (60) days; or an order for relief shall be entered against the
Company or any Material Subsidiary under the federal bankruptcy laws as now or
hereafter in effect; or
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(i) any member of the ERISA Group shall fail to pay when due
an amount or amounts aggregating in excess of $1,000,000 which such member shall
have become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any member
of the ERISA Group, any plan administrator or any combination of the foregoing;
or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to
impose liability (other than for premiums under Section 4007 of ERISA) in
respect of, or to cause a trustee to be appointed to administer, any Material
Plan; or a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any Material Plan must be terminated; or
there shall occur a complete or partial withdrawal from, or a default, within
the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the ERISA Group to
incur a current payment obligation in excess of $1,000,000; or
(j) a final, non-appealable judgment or order for the payment
of money in excess of $5,000,000 shall be rendered against the Company or any
Subsidiary and such judgment or order shall continue unsatisfied and unstayed
for a period of (i) in the case of a judgment or order rendered by a court,
arbitrator or governmental authority located in the United States, ten (10) days
or (ii) in the case of a judgment or order rendered by a court, arbitrator or
governmental authority located outside the United States, thirty (30) days; or
(k) (i) any provision of any Collateral Document (other than a
Credit Agreement Guaranty) shall for any reason cease to be valid and
binding on or enforceable against the Company or any of its
Subsidiaries party thereto and, with respect to Pledged Collateral to
be perfected in a jurisdiction other than the United States, shall
remain so for thirty (30) consecutive days, or any such Person shall so
state in writing or bring an action to limit its obligations or
liabilities thereunder; or
(ii) any Collateral Document (other than a Credit
Agreement Guaranty) shall for any reason (other than pursuant to the
terms thereof) cease to create a valid security interest in the
Collateral purported to be covered thereby or such security interest
shall for any reason cease to be a perfected and first priority
security interest and, with respect to Pledged Collateral to be
perfected in a jurisdiction other than the United States, shall remain
so for thirty (30) consecutive days; or
(l) there occurs any Change of Control; or
(m) any Person party thereto fails in any material respect to
perform or observe any term, covenant or agreement in any Credit Agreement
Guaranty or any Credit Agreement Guaranty is for any reason partially (including
with respect to future advances) or wholly revoked or invalidated, or otherwise
ceases to be in full force and effect, or any Person party thereto or any other
Person contests in any manner the validity or enforceability thereof or denies
that it has any further liability or obligation thereunder; or any event
described at clauses (g) or (h) of this Section occurs with respect to such
Person party to a Credit Agreement Guaranty; or
(n) a Relevant Event of Default occurs and is continuing at
any time; or
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(o) Bidco shall have failed for any reason to have caused
Target to become a Wholly-Owned Consolidated Subsidiary of the Company by
acquiring 100% in nominal value of the Target Shares (and cancelling all
options) within six (6) months after the Announcement Date; provided, however,
that the time period set forth in this clause (o) shall be extended by an
additional one month and two weeks if Bidco has initiated the Squeeze-Out during
the initial six months after the Announcement Date.
10.02 Relevant Events of Default with respect to Offer.
Notwithstanding the provisions of Section 10.01, until the
expiration of the Certain Funds Period the events set out below shall be the
only Events of Default upon the occurrence of which Administrative Agent and/or
the Lenders shall be entitled to exercise their powers under Section 10.03 with
respect to making aggregate Loans sufficient to permit the Company to repay its
existing indebtedness under the Existing Credit Agreement and contribute or loan
funds to Bidco to permit Bidco to purchase the Target Shares (a "Relevant Event
of Default") whether or not caused by any reason outside the control of the
Company:
(a) the Company fails to comply with Sections 7.04(a),
7.08(d), 7.09, 7.12(a), (c), (f) or (j) or Section 8.02 and, if such event is,
in the opinion of the Administrative Agent, capable of remedy, within 15 days
after the earlier of the Administrative Agent becoming aware of such default or
written notice from the Administrative Agent to the Company requiring the
failure to be remedied, the Company shall have failed to cure such default,
provided no funding need occur during such cure period; or
(b) any of the representations and warranties with respect to
the Company, US Holdco #1, US Holdco #2 and Bidco contained in Section 6.01(a),
and in respect of the Company and its Subsidiaries contained in Sections
6.02(b), 6.03, 6.15 or 6.16 made or deemed to be repeated during the Certain
Funds Period is incorrect in any respect when made or deemed to be repeated, in
each case by reference to the facts and circumstances then subsisting; or
(c) any Default or Event of Default with respect to the
Company, US Holdco #1 or US Holdco #2 pursuant to Section 10.01(g) or (h); or
(d) an order is made for the winding up of Bidco or Target; or
(e) an administration order is made in relation to or an
administrative or other receiver or manager is appointed of Bidco or the Target
or any such Person is not Solvent; or
(f) a resolution is passed for the winding up of Bidco or the
Target;
provided, however, that in the event that a Default or Event of Default shall
have occurred during the Certain Funds Period that would not constitute a
Relevant Event of Default, the Company hereby acknowledges and agrees that the
Administrative Agent and the Lenders shall not be deemed to have waived such
Default or Event of Default by the making of any Loan to the Company during the
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Certain Funds Period and that such Default or Event of Default shall be
continuing and otherwise actionable in accordance with the terms of this
Agreement.
10.03 Remedies
(a) If any Event of Default or Relevant Event of Default
occurs, the Administrative Agent shall, at the request of, or may, with the
consent of, the Majority Lenders:
(i) declare the commitment and obligation of each
Lender to make Loans and any obligation of the Issuing Bank to Issue
Letters of Credit to be terminated, whereupon such commitments and
obligation shall be terminated;
(ii) declare an amount equal to the maximum aggregate
amount that is or at any time thereafter may become available for
drawing under any outstanding Letters of Credit (whether or not any
beneficiary shall have presented, or shall be entitled at such time to
present, the drafts or other documents required to draw under such
Letters of Credit) to be immediately due and payable (including,
without limitation, satisfying the obligations under paragraph (c)
below), and declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other amounts
owing or payable hereunder or under any other Loan Document to be
immediately due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by
the Company; and/or
(iii) exercise on behalf of itself and the Lenders
all rights and remedies available to it and the Lenders under the Loan
Documents or applicable law.
(b) If an Event of Default exists: (i) the Administrative
Agent shall have for the benefit of the Lenders, in addition to all other rights
of the Administrative Agent and the Lenders, the rights and remedies of a
secured party under the UCC; and (ii) the Administrative Agent may sell and
deliver any Collateral at public or private sales, for cash, upon credit or
otherwise, at such prices and upon such terms as the Administrative Agent deems
advisable, in its sole discretion, and may, if the Administrative Agent deems it
reasonable, postpone or adjourn any sale of the Collateral by an announcement at
the time and place of sale or of such postponed or adjourned sale without giving
a new notice of sale. Without in any way requiring notice to be given in the
following manner, each Borrower agrees that any notice by the Administrative
Agent of sale, disposition or other intended action hereunder or in connection
herewith, whether required by the UCC or otherwise, shall constitute reasonable
notice to a Borrower if such notice is mailed by registered or certified mail,
return receipt requested, postage prepaid, or is delivered personally against
receipt, at least ten (10) Business Days prior to such action. The proceeds of
sale shall be applied in accordance with this Agreement and the Borrower shall
remain liable for any deficiency.
(c) If any Letter of Credit is outstanding upon the
termination of this Agreement or the Commitments or if an Event of Default has
occurred and is continuing, then upon such termination or during the
continuation of such Event of Default the relevant Borrower shall with respect
to each Letter of Credit then outstanding, as the Majority Lenders, in their
sole discretion
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shall specify, either (A) deposit with Administrative Agent a standby letter of
credit (a "Supporting Letter of Credit") in form and substance satisfactory to
the Administrative Agent, issued by an issuer satisfactory to the Administrative
Agent and in an amount equal to the greatest amount for which such Letter of
Credit may be drawn, under which Supporting Letter of Credit the Administrative
Agent is entitled to draw amounts necessary to reimburse the Administrative
Agent and the Revolving Lenders for payments made by the Administrative Agent
and the Revolving Lenders under such Letter of Credit or under any credit
support or enhancement provided through the Administrative Agent with respect
thereto, or (B) deposit with NationsBank cash in amounts necessary to reimburse
the Administrative Agent and the Revolving Lenders for payments made or to be
made (including, without limitation, the amount that the Administrative Agent
estimates will be necessary to cover its expenses and legal fees in connection
therewith) by the Administrative Agent or the Revolving Lenders under such
Letter of Credit or under any credit support or enhancement provided through the
Administrative Agent with respect thereto, and grant the Administrative Agent
(on behalf of the Lenders) a security interest in such deposited funds. Such
Supporting Letter of Credit shall be held by Administrative Agent and any
deposit of cash shall be held by NationsBank, pursuant to Section 2.07(c), for
the ratable benefit of the Administrative Agent and the Revolving Lenders as
security for, and to provide for the payment of, the aggregate undrawn amount of
such Letters of Credit remaining outstanding.
(d) Notwithstanding the foregoing, upon the occurrence of any
event specified in Sections 10.01(g) or (h) (in the case of clause (h), upon the
expiration of the 60-day period mentioned therein), the commitment and
obligation of each Revolving Lender and the Swing Line Lender to make Loans and
any obligation of the Issuing Bank to Issue Letters of Credit shall
automatically terminate and the unpaid principal amount of all outstanding Loans
and all interest and other amounts and obligations as aforesaid (including,
without limitation, under clause (c) above) shall automatically become due and
payable without further act of the Administrative Agent, the Issuing Bank or any
Lender and without presentment, demand, protest or notice of any kind in
connection therewith.
10.04 Rights Not Exclusive
The rights provided for in this Agreement and the other Loan
Documents are cumulative and are not exclusive of any other rights, powers,
privileges or remedies provided by law or in equity, or under any other
instrument, document or agreement now existing or hereafter arising.
10.05 Permitted Swap Contract Remedies.
Notwithstanding any other provision of this Article X, each
swap provider shall have the right, with prior notice to the Administrative
Agent, but without the approval or consent of the Administrative Agent or the
Lenders, with respect to any Permitted Swap Obligations of such swap provider,
(a) to declare an event of default, termination event or other similar event
thereunder, (b) to determine net termination amounts in accordance with the
terms of such Permitted Swap Obligation, and (c) to prosecute any legal action
against any Borrower to enforce net amounts owing to such swap provider.
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ARTICLE XI
THE ADMINISTRATIVE AGENT
11.01 Appointment and Authorization; "Administrative Agent"
(a) Each Lender hereby irrevocably (subject to Section 11.09)
appoints, designates and authorizes the Administrative Agent to take such action
on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have 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. Without limiting
the generality of the foregoing sentence, the use of the term "agent" in this
Agreement with reference to the Administrative Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(b) The Issuing Bank shall act on behalf of the Lenders with
respect to any Letters of Credit Issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent may
agree at the request of the Majority Lenders to act for such Issuing Bank with
respect thereto; provided, however, that the Issuing Bank shall have all of the
benefits and immunities (i) provided to the Administrative Agent in this Article
XI with respect to any acts taken or omissions suffered by the Issuing Bank in
connection with Letters of Credit Issued by it or proposed to be Issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Administrative Agent", as used in
this Article XI, included the Issuing Bank with respect to such acts or
omissions, and (ii) as additionally provided in this Agreement with respect to
the Issuing Bank.
11.02 Delegation of Duties
The Administrative Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
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11.03 Liability of Administrative Agent
None of the Administrative Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (ii) be responsible in any manner to any of the Lenders for any recital,
statement, representation or warranty made by any Borrower or any Subsidiary or
Affiliate of any Borrower, or any officer thereof, contained in this Agreement
or in 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 the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of any Borrower or any
other party to any Loan Document to perform its obligations hereunder or
thereunder. No Administrative Agent-Related Person shall be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of any
Borrower or any of Subsidiary or Affiliate of any Borrower.
11.04 Reliance by Administrative Agent
(a) The Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement 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 Borrowers), 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 the
Majority Lenders (or, to the extent required by Section 12.01, all of the
Lenders) as it deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Majority Lenders (or, to
the extent required by Section 12.01, all of the Lenders) and such request and
any action taken or failure to act pursuant thereto shall be binding upon all of
the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Article V, each Lender that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter sent by the Administrative Agent to such Lender for
consent, approval, acceptance or satisfaction.
11.05 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, except with
respect to defaults in the payment of
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principal, interest and fees required to be paid to the Administrative Agent for
the account of the Lenders, unless the Administrative Agent shall have received
written notice from a Lender or a Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". The Administrative Agent will promptly notify the Lenders
of its receipt of any such notice. Subject to Section 12.01, the Administrative
Agent shall take such action with respect to such Default or Event of Default as
may be requested by the Majority Lenders in accordance with Article X; provided,
however, that unless and until the Administrative Agent has received any such
request, 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 and in the best interest of the
Lenders.
11.06 Credit Decision
Each Lender acknowledges that none of the Administrative
Agent-Related Persons nor any Prior Loan Document Lender has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any review of the affairs of each Borrower and each
of its Subsidiaries, shall be deemed to constitute any representation or
warranty by any Administrative Agent-Related Person or any Prior Loan Document
Lender to any Lender. Each Lender represents to the Administrative Agent and
each Prior Loan Document Lender that it has, independently and without reliance
upon any Administrative Agent- Related Person or any Prior Loan Document Lender
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of each Borrower
and each of its Subsidiaries, and all applicable bank regulatory laws relating
to the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to each Borrower and each of its
Subsidiaries hereunder. Each Lender also represents that it will, independently
and without reliance upon any Administrative Agent-Related Person or any Prior
Loan Document 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 investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of each Borrower. Except for notices,
reports and other documents expressly herein required to be furnished to the
Lenders by the Administrative Agent, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any Borrower which may come into the
possession of any of the Administrative Agent-Related Persons.
11.07 Indemnification of Administrative Agent
Whether or not the transactions contemplated hereby are
consummated, the Lenders shall indemnify upon demand the Administrative
Agent-Related Persons (to the extent not reimbursed by or on behalf of a
Borrower and without limiting the obligation of such Borrower to do so), pro
rata, from and against any and all Indemnified Liabilities; provided, however,
that no Lender shall be liable for the payment to the Administrative
Agent-Related Persons of any portion
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of such indemnified liabilities resulting solely from any such Person's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender shall reimburse the Administrative Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs) incurred
by the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent
that the Administrative Agent is not reimbursed for such expenses by or on
behalf of a Borrower. The undertaking in this Section shall survive the payment
of all Obligations hereunder and the resignation or replacement of the
Administrative Agent.
11.08 Administrative Agent in Individual Capacity
NationsBank and its Affiliates may make loans to, issue
letters of credit for the account of, accept deposits from, enter into Swap
Contracts with, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with a
Borrower and its Subsidiaries and Affiliates as though NationsBank were not the
Administrative Agent or the Issuing Bank hereunder and without notice to or
consent of the Lenders; provided, however, nothing in this Section 11.08 shall
relieve the Borrower or its Subsidiaries from providing notices to or obtaining
consents of the Lenders otherwise required by this Agreement. The Lenders
acknowledge that, pursuant to such activities, NationsBank or its Affiliates may
receive information regarding a Borrower or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Borrower or such Affiliate) and acknowledge that the Administrative Agent shall
be under no obligation to provide such information to them. With respect to its
Loans and L/C Obligations, NationsBank shall have the same rights and powers
under this Agreement as any other Lender and may exercise the same as though it
were not the Administrative Agent or the Issuing Bank.
11.09 Successor Administrative Agent
The Administrative Agent may, and at the request of the
Majority Lenders shall, resign as Administrative Agent upon 30 days' notice to
the Lenders. If the Administrative Agent resigns under this Agreement, the
Majority Lenders shall appoint from among the Lenders a successor agent for the
Lenders which successor agent shall be approved by the Company. If no successor
agent is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders and the Company, a successor agent from among the Lenders. Upon
the acceptance of its appointment as successor agent hereunder, such successor
agent shall succeed to all the rights, powers and duties of the retiring
Administrative Agent and the term "Administrative Agent" shall mean such
successor agent and the retiring Administrative Agent's appointment, powers and
duties as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article XI and Sections 12.04 and 12.05 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor agent has accepted
appointment as Administrative Agent by the date which is 30 days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's
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resignation shall nevertheless thereupon become effective and the Lenders shall
perform all of the duties of the Administrative Agent hereunder until such time,
if any, as the Majority Lenders appoint a successor agent as provided for above.
Notwithstanding the foregoing, however, NationsBank may not be removed as the
Administrative Agent at the request of the Majority Lenders unless NationsBank
shall also simultaneously be replaced as "Issuing Bank" and "Swing Line Lender"
hereunder pursuant to documentation in form and substance reasonably
satisfactory to NationsBank.
11.10 Withholding Tax
(a) If any Lender is a "foreign corporation, partnership or
trust" within the meaning of the Code and such Lender claims exemption from, or
a reduction of, U.S. withholding tax under Section 1441 or 1442 of the Code,
such Lender agrees with and in favor of the Administrative Agent to deliver to
the Administrative Agent:
(i) if such Lender claims an exemption from, or a
reduction of, withholding tax under a United States tax treaty, two
properly completed and executed copies of IRS Form 1001 before the
payment of any interest in the first calendar year and before the
payment of any interest in each third succeeding calendar year during
which interest may be paid under this Agreement;
(ii) if such Lender claims that interest paid under
this Agreement is exempt from United States withholding tax because it
is effectively connected with a United States trade or business of such
Lender, two properly completed and executed copies of IRS Form 4224
before the payment of any interest is due in the first taxable year of
such Lender and in each succeeding taxable year of such Lender during
which interest may be paid under this Agreement; and
(iii) such other form or forms as may be required
under the Code or other laws of the United States as a condition to
exemption from, or reduction of, United States withholding tax.
Such Lender agrees to promptly notify the Administrative Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any Lender claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001 and
such Lender sells, assigns, grants a participation in, or otherwise transfers
all or part of the Obligations of a Borrower to such Lender, such Lender agrees
to notify the Administrative Agent of the percentage amount in which it is no
longer the beneficial owner of Obligations of a Borrower to such Lender. To the
extent of such percentage amount, the Administrative Agent will treat such
Lender's IRS Form 1001 as no longer valid.
(c) If any Lender claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Administrative Agent sells,
assigns, grants a participation in, or otherwise transfers all or part of the
Obligations of a Borrower to such Lender, such Lender agrees
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to undertake sole responsibility for complying with the withholding tax
requirements imposed by Sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest payment
to such Lender an amount equivalent to the applicable withholding tax after
taking into account such reduction. However, if the forms or other documentation
required by clause (a) of this Section are not delivered to the Administrative
Agent, then the Administrative Agent may withhold from any interest payment to
such Lender not providing such forms or other documentation an amount equivalent
to the applicable withholding tax imposed by Sections 1441 and 1442 of the Code,
without reduction.
(e) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the Administrative
Agent did not properly withhold tax from amounts paid to or for the account of
any Lender (because the appropriate form was not delivered or was not properly
executed, or because such Lender failed to notify the Administrative Agent of a
change in circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Lender shall
indemnify the Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section, together with all costs
and expenses (including Attorney Costs). The obligation of the Lenders under
this Section shall survive the payment of all Obligations and the resignation or
replacement of the Administrative Agent.
11.11 Collateral Matters
(a) The Administrative Agent is authorized on behalf of all
the Lenders, without the necessity of any notice to or further consent from the
Lenders, from time to time to take any action with respect to any Collateral or
the Collateral Documents which may be necessary to perfect and maintain
perfected the security interest in and Liens upon the Collateral granted
pursuant to the Collateral Documents.
(b) The Lenders irrevocably authorize the Administrative
Agent, at its option and in its discretion, to release any Lien granted to or
held by the Administrative Agent upon any Collateral (i) upon termination of the
Commitments and payment in full of all Loans and all other Obligations known to
the Administrative Agent and payable under this Agreement or any other Loan
Document; (ii) constituting property sold or to be sold or disposed of as part
of or in connection with any disposition permitted hereunder; (iii) constituting
property in which the Company or any Subsidiary owned no interest at the time
the Lien was granted or at any time thereafter; (iv) constituting property
leased to the Company or any Subsidiary under a lease which has expired or been
terminated in a transaction not prohibited under this Agreement or is about to
expire and which has not been, and is not intended by the Company or such
Subsidiary to be, renewed or extended; (v) consisting of an instrument
evidencing Debt or other debt instrument, if the Debt evidenced thereby has been
paid in full; or (vi) if approved, authorized or ratified in writing by the
Majority Lenders or all the Lenders, as the case may be, as provided in Section
12.01(f). Upon request by the Administrative Agent at any time, the Lenders will
confirm in writing the
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Administrative Agent's authority to release particular types or items of
Collateral pursuant to this Section 11.11(b), provided that the absence of any
such confirmation for whatever reason shall not affect the Administrative
Agent's rights under this Section 11.11.
11.12 Administrative Agent as English Trustee
(a) The Administrative Agent in its capacity as trustee or
otherwise under the Loan Documents governed by English law:
(i) is not liable for any failure, omission, or
defect in perfecting or registering the security constituted or created
by any Loan Document;
(ii) may accept without inquiry such title as any
Borrower or any of its Subsidiaries may have to any asset secured by
any Loan Document; and
(iii) is not under any obligation to hold any Loan
Document or any other document in connection with the Loan Documents or
the assets secured by any Loan Document (including title deeds) in its
own possession or take any steps to protect or preserve the same. The
Administrative Agent may permit any Borrower or any of its Subsidiaries
to retain any Loan Document or other document in its possession.
(b) Except as otherwise provided in the Loan Documents
governed by English law, all moneys which under the trusts contained in the Loan
Documents are received by the Administrative Agent in its capacity as trustee or
otherwise may be invested in the name of or under the control of the
Administrative Agent in any investment authorized by English law for the
investment by a trustee of trust money or in any other investments which may be
selected by the Administrative Agent. Additionally, the same may be placed on
deposit in the name or under the control of the Administrative Agent with such
Lender or institution (including the Administrative Agent itself) and upon such
terms as the Administrative Agent may think fit.
11.13 Assignment under Dutch Law
In connection with any assignment and delegation of all, or
any part of, the Loans, the Commitments, the L/C Obligations and the other
rights or obligations of any Lender (or former Lender) hereunder, the
Administrative Agent is authorized on behalf of both the assignor Lender and the
assignee Lender, without necessity of any notice to or further consent from such
Lenders (or former Lenders, if applicable), to take any action the
Administrative Agent deems reasonably necessary or appropriate to assign a
corresponding interest in the community of Lenders (which is a community in
accordance with Article 166 (and subsequent articles) of Book 3 of the Dutch
Civil Code), including without limitation the rights and interests of such
assignor Lender (whether held directly or indirectly through the Administrative
Agent) under any Loan Documents in any pledged stock or equity interest of any
corporation or other legal entity organized under the laws of the Kingdom of the
Netherlands and constituting Collateral, to the assignee Lender. The
Administrative Agent will notify the Borrower and each pledgor of any pledged
stock or equity interest of any such
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corporation or other legal entity organized under the laws of the Kingdom of the
Netherlands of the assignment of the rights under this Agreement and under any
deed of pledge or similar Loan Documents evidencing such security interest to
the assignee Lender in writing in advance. Each such pledgor and the Borrower
acknowledge and agree that Lenders may assign their interests from time to time
as described in this Section 11.13.
ARTICLE XII
MISCELLANEOUS
12.01 Amendments and Waivers
No amendment or waiver of any provision of this Agreement or
any other Loan Document, and no consent with respect to any departure by the
applicable Borrower or any applicable Subsidiary therefrom, shall be effective
unless the same shall be in writing and signed by the Majority Lenders (or by
the Administrative Agent at the written request of the Majority Lenders) and the
applicable Borrower and acknowledged by the Administrative Agent, and then any
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no such waiver,
amendment, or consent shall:
(a) increase or extend the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to Section 2.05 or Section 10.03)
without the prior written consent of each Lender directly affected thereby;
(b) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees or other
amounts due to any Lenders hereunder or under any other Loan Document without
the prior written consent of each Lender directly affected thereby;
(c) reduce the principal of, or the rate of interest specified
herein on, any Loan, or (subject to clause (iv) below) any fees or other amounts
payable hereunder or under any other Loan Document without the prior written
consent of each Lender directly affected thereby;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for the Lenders
or any of them to take any action hereunder without the prior written consent of
each Lender;
(e) amend this Section, or Section 2.14, the definition of
"Majority Lenders" or any provision herein providing for consent or other action
by all Lenders without the prior written consent of each Lender; or
(f) release all or substantially all of the Collateral or all
of the Credit Agreement Guaranties, except in connection with a repayment in
full of all Obligations and Loans and a
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termination of the Commitments or as otherwise permitted under this Agreement
without the prior written consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the affected Issuing Bank in addition to the Majority
Lenders or all the Lenders, as the case may be, affect the rights or duties of
such Issuing Bank under this Agreement or any L/C-Related Document relating to
any Letter of Credit Issued or to be Issued by it, (ii) no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Majority Lenders or all the Lenders, as the case may be, affect
the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document, (iii) no amendment, waiver or consent shall, unless in
writing and signed by the Swing Line Lender in addition to the Majority Lenders
or all Lenders, as the case may be, affect the rights or duties of the Swing
Line Lender under this Agreement, (iv) the Fee Letter may be amended, or rights
or privileges thereunder waived, in a writing executed by the parties thereto
and (v) any references in this Agreement to a Business Day, day-count, fraction
or other convention (whether for the calculation of interest, determination of
payment dates or otherwise) will, to the extent that the Administrative Agent
specifies to be necessary, be amended to comply with any generally accepted
conventions and market practice applicable to euro-denominated obligations in
the London interbank market.
12.02 Notices
(a) All notices, requests, consents, approvals, waivers and
other communications shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission, provided that any
matter transmitted by facsimile (i) shall be immediately confirmed by a
telephone call to the recipient at the number specified on Schedule 12.02, and
(ii) shall be followed promptly by delivery of a hard copy original thereof) and
mailed, faxed or delivered, to the address or facsimile number specified for
notices on Schedule 12.02; or, as directed to a Borrower or the Administrative
Agent and/or the Swing Line Lender, as the case may be, to such other address as
shall be designated by such party in a written notice to the other parties, and
as directed to any other party, at such other address as shall be designated by
such party in a written notice to the Company and the Administrative Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery; except that
notices pursuant to Article II, III or XI to the Administrative Agent and/or the
Swing Line Lender, as the case may be, shall not be effective until actually
received by the Administrative Agent and/or the Swing Line Lender, as the case
may be, and notices pursuant to Article III to the Issuing Bank shall not be
effective until actually received by the Issuing Bank at the address specified
for the "Issuing Bank" on the applicable signature page hereof.
(c) Any agreement of the Administrative Agent and the Lenders
herein to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of a Borrower. The Administrative Agent and the
Lenders shall be entitled to rely on the authority of any
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Person purporting to be a Person authorized by the relevant Borrower to give
such notice and the Administrative Agent and the Lenders shall not have any
liability to such Borrower or other Person on account of any action taken or not
taken by the Administrative Agent or the Lenders in reliance upon such
telephonic or facsimile notice. The obligation of each Borrower to repay the
Loans and L/C Obligations shall not be affected in any way or to any extent by
any failure by the Administrative Agent and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt by the
Administrative Agent and the Lenders of a confirmation which is at variance with
the terms understood by the Administrative Agent and the Lenders to be contained
in the telephonic or facsimile notice.
12.03 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, 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.
12.04 Costs and Expenses
Each Borrower shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse NationsBank (including in its capacity as
Administrative Agent and Issuing Bank) within five Business Days after demand
(subject to Section 5.01(e)) for all reasonable out-of-pocket costs and expenses
incurred by NationsBank (including in its capacity as Administrative Agent and
Issuing Bank) in connection with the development, preparation, delivery,
administration and execution of, and any amendment, supplement, waiver or
modification to (in each case, whether or not consummated), this Agreement, any
other Loan Document and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated hereby and
thereby, including, without limitation, reasonable Attorney Costs incurred by
NationsBank (including in its capacity as Administrative Agent and Issuing Bank)
with respect thereto and all fees and expenses for title and lien searches,
appraisals, surveys, title commitment and insurance costs and corporate search
fees; and
(b) pay or reimburse the Administrative Agent and each Lender
within 15 Business Days after demand (subject to Section 5.01(e)) for all
reasonable out-of-pocket costs and expenses (including Attorney Costs) incurred
by them in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or any other Loan
Document during the existence of a Default or an Event of Default or after
acceleration of the Loans (including in connection with any "workout" or
restructuring regarding the Loans, and including in any Insolvency Proceeding or
appellate proceeding).
The undertaking in this Section shall survive the payment of all Obligations
hereunder.
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12.05 Company Indemnification
Whether or not the transactions contemplated hereby are
consummated, the Company hereby agrees to indemnify and hold harmless the
Administrative Agent-Related Persons and each Lender and each of their
affiliates and their respective directors, officers, employees, advisors and
agents (each, an "Indemnified Party") from and against (and will reimburse each
Indemnified Party as the same are incurred) any and all losses, claims, damages,
liabilities, and expenses (including, without limitation, the reasonable fees
and expenses of counsel (including, without duplication, the allocated cost of
internal counsel)) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation or proceeding or preparation of a defense in connection therewith)
(a) the Transaction or any similar transaction and any of the other transactions
contemplated thereby, or (b) this Agreement, the other Loan Documents, any Loan
or any Letter of Credit, or any use made or proposed to be made with the
proceeds thereof (including any arising out of the negligence of such
Indemnified Party)(collectively, "Indemnified Liabilities"), unless and except
to the extent that, as to such Indemnified Party, it shall be determined in a
final, nonappealable judgment by a court of competent jurisdiction that such
losses, claims, damages, liabilities or expenses resulted from the gross
negligence or willful misconduct of such Indemnified Party or the intentional
breach by such Indemnified Party of its agreement to make Loans or issue Letters
of Credit in accordance with the terms of this Agreement and the other Loan
Documents. In the case of any investigation, litigation or proceeding to which
the indemnity in this Section 12.05 applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by the
Company, the Company's shareholders or creditors or such Indemnified Party and
whether or not the Transaction is consummated, unless and except to the extent
that, as to such Indemnified Party, it shall be determined in a final,
nonappealable judgment by a court of competent jurisdiction that such losses,
claims, damages, liabilities or expenses resulted from the gross negligence or
wilful misconduct of such Indemnified Party or the intentional breach by such
Indemnified Party of its agreement to make Loans or issue Letters of Credit in
accordance with the terms of this Agreement and the other Loan Documents. The
Company hereby agrees that no Indemnified Party shall have any liability to the
Company or any of its Subsidiaries or Affiliates or to the Company's or their
respective security holders or creditors for any indirect, consequential or
punitive damages arising out of, related to or in connection with the
Transaction or the Loan Documents. The agreements in this Section shall survive
payment of all other Obligations.
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12.06 Payments Set Aside
To the extent that a Borrower makes a payment to the
Administrative Agent or the Lenders, or the Administrative Agent or the Lenders
exercise their right of set-off, and such payment or the proceeds of such
set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any Insolvency Proceeding or otherwise, then (a) to the extent
of such recovery the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred, and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its pro rata
share of any amount so recovered from or repaid by the Administrative Agent.
12.07 Successors and Assigns
The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, except that no Borrower may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of the
Administrative Agent and each Lender.
12.08 Assignments, Participations, etc.
(a) Any Lender may, with the written consent of the
Administrative Agent, the Issuing Bank, the Swing Line Lender and, so long as no
Default or Event of Default has occurred and is continuing, the Company, which
consents shall not be unreasonably withheld, at any time assign and delegate to
one or more Eligible Assignees (provided that no written consent of the
Administrative Agent, the Issuing Bank, the Swing Line Lender or the Company
shall be required in connection with any assignment and delegation by a Lender
to an Eligible Assignee that is an Affiliate of such Lender) (each an
"Assignee") all of, or any part of, the Loans, the Commitments, the L/C
Obligations and the other rights and obligations of such Lender hereunder, in a
minimum aggregate Dollar Equivalent of $5,000,000 (or, if less, the entire
amount of such Lender's Loans and Commitments, and such Loans and Commitments
may consist of the Revolving Loan Commitments, the Term Loan Commitments and the
Sterling Acquisition Loan Commitments as determined by the assigning Lender)
calculated by aggregating the Commitments, Loans and L/C Obligations held by an
Eligible Assignee which are Affiliates; provided, however, that each Borrower
and the Administrative Agent may continue to deal solely and directly with such
Lender in connection with the interest so assigned to an Assignee until (i)
written notice of such assignment, together with payment instructions, addresses
and related information with respect to the Assignee, shall have been given to
each Borrower and the Administrative Agent by such Lender and the Assignee; (ii)
such Lender and its Assignee shall have delivered to each Borrower and the
Administrative Agent an Assignment and Acceptance in the form of Exhibit E
attached hereto ("Assignment and Acceptance") together with any Note or Notes
subject to such assignment and (iii) the assignor Lender or Assignee has paid to
the Administrative Agent a processing fee in the amount of $3,500.
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(b) From and after the date that the Administrative Agent
notifies the assignor Lender that it has received (and provided its consent with
respect to) an executed Assignment and Acceptance and payment of the
above-referenced processing fee, (i) the Assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, shall have the rights
and obligations of a Lender under the Loan Documents, and (ii) the assignor
Lender shall, to the extent that rights and obligations hereunder and under the
other Loan Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Loan Documents (other than with respect to any indemnification pursuant to
Article IV or Section 12.05).
(c) Within five Business Days after its receipt of notice by
the Administrative Agent that it has received an executed Assignment and
Acceptance and payment of the processing fee (and provided that it consents to
such assignment in accordance with Section 12.08(a)), the relevant Borrower
shall execute and deliver to the Administrative Agent, new Notes evidencing such
Assignee's assigned Loans and Commitments and, if the assignor Lender has
retained a portion of its Loans and its Commitments, replacement Notes in the
principal amount of the Loans retained by the assignor Lender (such Notes to be
in exchange for, but not in payment of, the Notes held by such Lender).
Immediately upon receipt by the Administrative Agent of the processing fee
payment under the Assignment and Acceptance, this Agreement shall be deemed to
be amended to the extent, but only to the extent, necessary to reflect the
addition of the Assignee and the resulting adjustment of the Commitments arising
therefrom. The Commitments allocated to each Assignee shall reduce such
Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial
banks or other Persons not Affiliates of a Borrower (a "Participant")
participating interests in any Loans, the Commitments of that Lender and the
other interests of that Lender (the "originating Lender") hereunder and under
the other Loan Documents; provided, however, that (i) the originating Lender's
obligations under this Agreement shall remain unchanged, (ii) the originating
Lender shall remain solely responsible for the performance of such obligations,
(iii) each Borrower, the Issuing Bank, the Swing Line Lender and the
Administrative Agent shall continue to deal solely and directly with the
originating Lender in connection with the originating Lender's rights and
obligations under this Agreement and the other Loan Documents, and (iv) no
Lender shall transfer or grant any participating interest under which the
Participant has rights to approve any amendment to, or any consent or waiver
with respect to, this Agreement or any other Loan Document, except to the extent
such amendment, consent or waiver would require unanimous consent of the Lenders
as required pursuant to the first proviso to Section 12.01. In the case of any
such participation, the Participant shall not have any rights under this
Agreement, or any of the other Loan Documents, and all amounts payable by a
Borrower hereunder shall be determined as if such Lender had not sold such
participation; except that, if amounts outstanding under this Agreement are due
and unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be deemed to
have the right of set-off 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.
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(e) Notwithstanding any other provision in this Agreement, any
Lender may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and the Notes held by
it in favor of any Federal Reserve Bank in accordance with Regulation A of the
FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve
Bank may enforce such pledge or security interest in any manner permitted under
applicable law.
(f) No assignee, participant or other transferee of any
Lender's rights shall be entitled to receive any greater payment under Article
IV than such Lender would have been entitled to receive with respect to the
rights transferred or by reason of the provisions of Article IV requiring such
Lender to designate a different Applicable Lending office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
(g) In connection with any assignment by NationsBank including
in connection with the execution of this Agreement, NationsBank may, with the
consent of the Administrative Agent, designate any such assignee with the title
"documentation agent," "syndication agent," "co-manager, "co-agent",
"co-arranger" or other similar title in addition to such assignee being a
"Lender" under this Agreement; provided, that any such assignee shall not
receive any fee from the Company or have any additional duties or
responsibilities by virtue of such title.
12.09 Confidentiality
Each Lender agrees to take and to cause its Affiliates to take
normal and reasonable precautions and exercise due care to maintain the
confidentiality of all information identified as "confidential" or "secret" by a
Borrower and provided to it by a Borrower or any Subsidiary of a Borrower, or by
the Administrative Agent on such Person's behalf, under this Agreement or any
other Loan Document, and neither it nor any of its Affiliates shall use any such
information other than in connection with or in enforcement of this Agreement
and the other Loan Documents or in connection with other business now or
hereafter existing or contemplated with any Borrower or any of its Subsidiaries;
except to the extent such information (i) was or becomes generally available to
the public other than as a result of disclosure by such Lender, or (ii) was or
becomes available on a non-confidential basis from a source other than a
Borrower, provided that such source is not bound by a confidentiality agreement
with a Borrower known to such Lender; provided, however, that any Lender may
disclose such information (A) at the request or pursuant to any requirement of
any Governmental Authority to which such Lender is subject or in connection with
an examination of such Lender by any such authority; (B) pursuant to subpoena or
other court process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which the
Administrative Agent, any Lender or their respective Affiliates may be party;
(E) to the extent reasonably required in connection with the exercise of any
remedy hereunder or under any other Loan Document; (F) to such Lender's
independent auditors and other professional advisors; (G) to any Participant or
Assignee, actual or potential, provided that such Person agrees in writing to
keep such information confidential to the same extent required of the Lenders
hereunder; (H) as to any Lender or its Affiliate, as expressly permitted under
the terms of any other document or agreement regarding confidentiality to which
a Borrower or any Subsidiary of a Borrower is party or is deemed party with such
Lender or such Affiliate; and (I) to its Affiliates.
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12.10 Set-off
In addition to any rights and remedies of the Lenders provided
by law, if an Event of Default exists or the Loans have been accelerated, each
Lender is authorized at any time and from time to time, without prior notice to
a Borrower, any such notice being waived by each Borrower to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other Debt at any
time owing by, such Lender to or for the credit or the account of the relevant
Borrower or any Subsidiary Guarantor against any and all Obligations owing to
such Lender, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this Agreement
or any other Loan Document and although such Obligations may be contingent or
unmatured. Each Lender agrees promptly to notify the relevant Borrower or any
Subsidiary Guarantor and the Administrative Agent after any such set-off and
application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
12.11 Notification of Addresses, Lending Offices, etc.
Each Lender shall notify the Administrative Agent in writing
of any changes in the address to which notices to the Lender should be directed,
of addresses of any Lending Office, of payment instructions in respect of all
payments to be made to it hereunder and of such other administrative information
as the Administrative Agent shall reasonably request.
12.12 Counterparts
This Agreement may be executed in any number of separate
counterparts, each of which, when so executed, shall be deemed an original, and
all of said counterparts taken together shall be deemed to constitute but one
and the same instrument.
12.13 Severability
The illegality or unenforceability of any provision of this
Agreement or any instrument or agreement required hereunder shall not in any way
affect or impair the legality or enforceability of the remaining provisions of
this Agreement or any instrument or agreement required hereunder.
12.14 No Third Parties Benefited.
This Agreement is made and entered into for the sole
protection and legal benefit of each Borrower, the Lenders, the Administrative
Agent and the Administrative Agent-Related Persons, and their permitted
successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any of the other Loan Documents.
12.15 Governing Law and Jurisdiction.
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(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF NEW YORK;
PROVIDED THAT THE PARTIES SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT, THE ISSUING BANK AND THE LENDERS CONSENTS, FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.
EACH BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
(c) THE COMPANY HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND
EMPOWERS US CORPORATION SYSTEMS WITH OFFICES ON THE DATE HEREOF IN NEW YORK, NEW
YORK (OR SUCH OTHER AGENT TO RECEIVE SERVICE OF PROCESS IN NEW YORK, NEW YORK AS
IS REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT), AS ITS DESIGNEE,
APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF,
AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS,
NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF
FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO
ACT AS SUCH, THE COMPANY AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT
IN NEW YORK ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO
THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT. THE COMPANY FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS ADDRESS SET FORTH ON
SCHEDULE 12.02, SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT UNDER THIS
AGREEMENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST ANY BORROWER IN ANY OTHER JURISDICTION.
12.16 Waiver of Jury Trial
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THE COMPANY, THE LENDERS AND THE ADMINISTRATIVE AGENT EACH
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR ANY ADMINISTRATIVE AGENT-RELATED PERSON, PARTICIPANT OR
ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE.
THE COMPANY, THE LENDERS AND THE ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH
CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO
A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR
ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
12.17 Entire Agreement
This Agreement, together with the other Loan Documents,
embodies the entire agreement and understanding among each Borrower, the Lenders
and the Administrative Agent, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof including, without limitation, the
commitment letters among NationsBank, NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities, LLC and
the Company, dated October 16, 1998 and March 23, 1999 (except the provisions of
such commitment letter which expressly survive the execution of this Agreement,
and the Administrative Agent hereby confirms that during the Certain Funds
Period none of such provisions include additional conditions to any Borrowing
pursuant to Section 5.02 of this Agreement).
12.18 Judgment Currency
If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or under any other Loan Document in one
currency into another currency, the rate of exchange used shall be that at which
in accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of any Borrower
in respect of any such sum due from it to the Administrative Agent or any Lender
hereunder or under the other Loan Documents shall, notwithstanding any judgment
in a currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with the applicable provisions of this Agreement (the
"Agreement Currency"), be discharged only to the extent that on the Business Day
following receipt by the Administrative Agent or such Lender of any sum adjudged
to be so due in the Judgment Currency, the Administrative Agent or such Lender
may in accordance with normal banking procedures purchase the Agreement Currency
with the Judgment Currency. If the amount
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of the Agreement Currency so purchased is less than the sum originally due to
the Administrative Agent or such Lender in the Agreement Currency, the Company
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Administrative Agent or such Lender or the Person to whom such
obligation was owing against such loss. If the amount of the Agreement Currency
so purchased is greater than the sum originally due to the Administrative Agent
or such Lender in such currency, the Administrative Agent or such Lender agrees
to return the amount of any excess to the Company (or to any other Person who
may be entitled thereto under applicable law).
12.19 Amendment and Restatement
(a) (i) On and after the Initial Funding Date, the First
Amended and Restated Credit Agreement automatically and without further action
of any kind amended and restated in its entirety the Prior Loan Document and,
upon the Initial Funding Date, the terms and provisions of the Prior Loan
Document were, subject to this Section 12.19(a), superseded thereby; provided,
however, that notwithstanding the amendment and restatement of the Prior Loan
Document by the First Amended and Restated Credit Agreement, the Company
continues to be liable to NationsBank, the Administrative Agent-Related Persons
(as defined in the Prior Loan Document) and the Lenders under, and as defined
in, the Prior Loan Document (the "Prior Loan Document Lenders") with respect to
agreements on the part of the Company or any of its Subsidiaries under the Prior
Loan Document to indemnify and hold NationsBank (individually and as
Administrative Agent), the Administrative Agent-Related Persons and the Prior
Loan Document Lenders harmless from and against all claims, demands,
liabilities, damages, losses, costs, charges and expenses to which NationsBank
(individually and as Administrative Agent), the Administrative Agent-Related
Persons and the Prior Loan Document Lenders may be subject arising in connection
with any action taken, failure to take action or transaction contemplated in or
under the Prior Loan Document during the period that such agreement was in
effect. Without limiting the generality of the foregoing, the obligations of the
Company pursuant to Sections 4.01, 4.03, 4.04, 4.09 and 12.05 of the Prior Loan
Document and the Fee Letter, as such term is defined in the Prior Loan Document,
are not superseded, modified or otherwise affected by the First Amended and
Restated Credit Agreement.
(ii) Simultaneously with the occurrence of the Initial Funding
Date, each Prior Loan Document Lender assigned (subject to Section 11.06 of the
First Amended and Restated Credit Agreement) a portion of its Commitments under,
and as defined in, the Prior Loan Document to the Lenders under the First
Amended and Restated Credit Agreement in such amounts so that the allocation of
the Commitments as of the Initial Funding Date was in the amounts specified on
Schedule 2.01 thereto, and each Lender accepted such assignment and assumed its
portion of the Commitments in accordance with the terms and conditions
thereunder (and the Prior Loan Document Lenders had no further obligations with
respect to such Commitments).
(iii) In furtherance of and without limiting the foregoing,
all amounts owing with respect to accrued fees with respect to the Commitments
under, and as defined in, the Prior Loan Documents shall have been paid to the
Prior Loan Document Lenders currently on and as of the Initial Funding Date in
their entirety.
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(b) (i) On and after the PTI Effective Date, this Agreement
will automatically and without further action of any kind amend and restate in
its entirety the First Amended and Restated Credit Agreement and, upon the PTI
Effective Date, the terms and provisions of the First Amended and Restated
Credit Agreement shall, subject to this Section 12.19(b), be superseded hereby;
provided, however, that notwithstanding the amendment and restatement of the
First Amended and Restated Credit Agreement by this Agreement, the Company shall
continue to be liable to NationsBank, the Administrative Agent-Related Persons
(as defined in the First Amended and Restated Credit Agreement) and the Lenders
under, and as defined in, the First Amended and Restated Credit Agreement (the
"First Amended and Restated Credit Agreement Lenders") with respect to
agreements on the part of the Company or any of its Subsidiaries in Section
12.19(a) of the First Amended and Restated Credit Agreement to indemnify and
hold NationsBank (individually and as Administrative Agent), the Administrative
Agent-Related Persons and the First Amended and Restated Credit Agreement
Lenders from time to time harmless from and against all claims, demands,
liabilities, damages, losses, costs, charges and expenses to which NationsBank
(individually and as Administrative Agent), the Administrative Agent-Related
Persons and the First Amended and Restated Credit Agreement Lenders may be
subject arising in connection with any action taken, failure to take action or
transaction contemplated in or under but only to the extent set forth in the
First Amended and Restated Credit Agreement during the period that such
agreement was in effect. Without limiting the generality of the foregoing, the
obligations of the Company pursuant to (I) Sections 4.01, 4.03, 4.04, 4.09 and
12.05 of the First Amended and Restated Credit Agreement and the Fee Letter, as
such term is defined in the First Amended and Restated Credit Agreement, and
(II) under Section 12.19(a), shall not be superseded, modified or otherwise
affected by this Agreement.
(ii) Simultaneously with the occurrence of the PTI Effective
Date, each First Amended and Restated Credit Agreement Lender shall be deemed to
have assigned (subject to Section 11.06 of this Agreement) a portion of its
Commitments under, and as defined in, the First Amended and Restated Credit
Agreement to the Lenders under this Agreement in such amounts so that the
allocation of the Commitments as of the PTI Effective Date shall be in the
amounts specified on Schedule 2.01 hereto, and each Lender hereby accepts such
assignment and assumes its portion of the Commitments in accordance with the
terms and conditions hereunder (and the First Amended and Restated Credit
Agreement Lenders shall have no further obligations with respect to such
Commitments).
(iii) In furtherance of and without limiting the foregoing,
all amounts owing with respect to accrued fees with respect to the Commitments
under, and as defined in, the First Amended and Restated Credit Agreement shall
have been paid to the First Amended and Restated Credit Agreement Lenders
currently on and as of the PTI Effective Date in their entirety.
[Signature pages to follow]
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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.
MacDERMID, INCORPORATED
By:_______________________________________
Name:_____________________________________
Title:____________________________________
NATIONSBANK, N.A., as Administrative Agent
By:_______________________________________
Name:_____________________________________
Title:____________________________________
NATIONSBANK, N.A.,
Individually as a Lender, the Swing Line Lender and
as the Issuing Bank
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[TO CREDIT AGREEMENT]
S-1
144
BANKBOSTON, N.A., as Documentation Agent and as a
Lender
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[TO CREDIT AGREEMENT]
S-2
145
FLEET NATIONAL BANK, as Syndication Agent and as a
Lender
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[TO CREDIT AGREEMENT]
S-3
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, as Co-Agent and as a Lender
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[TO CREDIT AGREEMENT]
S-4
147
FIRST UNION NATIONAL BANK, as Co-Agent and as a
Lender
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[TO CREDIT AGREEMENT]
S-5
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇, as Co-Agent and as a
Lender
By:_______________________________________
Name:_____________________________________
Title:____________________________________
LLOYDS BANK PLC, MIAMI, as Co-Agent and as a Lender
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[TO CREDIT AGREEMENT]
S-6
▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ BANK
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[TO CREDIT AGREEMENT]
▇-▇
▇▇▇
▇▇▇▇▇▇▇▇ BANK
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[TO CREDIT AGREEMENT]
S-8
▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[TO CREDIT AGREEMENT]
S-9
152
ABN AMRO BANK N.V.
By:_______________________________________
Name:_____________________________________
Title:____________________________________
ABN AMRO BANK N.V.
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[TO CREDIT AGREEMENT]
S-10
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[TO CREDIT AGREEMENT]
S-11
154
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[TO CREDIT AGREEMENT]
▇-▇▇
▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
GENOSSENSCHAFTSBANK AG, CAYMAN
ISLAND BRANCH
By:_______________________________________
Name:_____________________________________
Title:____________________________________
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ BRANCH
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[TO CREDIT AGREEMENT]
S-13
▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ plc
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[TO CREDIT AGREEMENT]
S-14
157
UNICREDITO ITALIANO S.p.A., New York Branch
By:_______________________________________
Name:_____________________________________
Title:____________________________________
UNICREDITO ITALIANO S.p.A., New York Branch
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[TO CREDIT AGREEMENT]
S-15
158
HSBC BANK USA
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[TO CREDIT AGREEMENT]
▇-▇▇
▇▇▇
▇▇▇▇▇▇▇▇ (▇▇▇) FINANCE LLC
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[TO CREDIT AGREEMENT]
S-17
160
SCHEDULE 1(a)
CALCULATION OF THE MANDATORY COST
(a) The Mandatory Cost for a Lender in relation to a Loan for each of its
Interest Periods is the rate determined by that Lender to be equal to
the following formulae:
in relation to a Loan denominated in Sterling:
BY + S(Y-Z) + F x 0.01 % per annum = Mandatory Cost
----------------------
100-(B + S)
in relation to any other Loan:
F x 0.01 % per annum = Mandatory Cost
---------
300
where on the day of application of the formula:
B is the percentage of the relevant Lender's eligible
liabilities (in excess of any stated minimum) which the Bank
of England requires that Lender to hold on a
non-interest-bearing deposit account in accordance with its
cash ratio requirements;
Y is the rate at which Sterling deposits are offered by the
relevant Lender to leading banks in the London interbank
market at or about 11.00 a.m. on that day for the relevant
period;
S is the percentage of the relevant Lender's eligible
liabilities which the Bank of England requires that Lender to
place as a special deposit;
Z is the interest rate per annum allowed by the Bank of England
on special deposits; and
F is the charge payable by the relevant Lender to the Financial
Services Authority under paragraph 2.02 or 2.03 (as
appropriate) of the Fees Regulations but where for this
purpose, the figure in paragraph 2.02b and 2.03b will be
deemed to be zero expressed in pounds per pound sterling
1 million of the fee base of the relevant Lender.
(b) For the purposes of this Schedule 3:
(i) "eligible liabilities" and "special deposits" have the
meanings given to them at the time of application of the
formula by the Bank of England; and
(ii) "fee base" has the meaning given to it in the Fees
Regulations;
161
(iii) "Fees Regulations" means:
(1) prior to 31st March, 1999, the Banking Supervision
(Fees) Regulations 1998; and
(2) on and after 31st March, 1999, any regulations
governing the payment of fees for banking
supervision.
(ii) "relevant period" in relation to each Interest Period, means:
(A) if it is three months or less, that Interest Period;
or
(B) if it is more than three months, each successive
period of three months and any necessary shorter
period comprised in that Interest Period.
(c) In the application of the formula, B, Y, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y =
15%, BY is calculated as 0.5 x 15.
(d) If the relevant Lender can not determine a rate, the applicable
Mandatory Cost will be determined on the basis of the rate(s) supplied
by reference banks selected by the relevant Lender.
(e) (i) The formula is applied on the first day of each relevant
period comprised in the relevant Interest Period.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
(f) If the relevant Lender determines that a change in circumstances has
rendered, or will render, the formula inappropriate, the relevant
Lender (after consultation with the other Lenders) shall notify the
Company of the manner in which the Mandatory Cost will subsequently be
calculated. The manner of calculation so notified by the relevant
Lender shall, in the absence of manifest error, be binding on all the
Parties.
162
SCHEDULE 2.01
COMMITMENTS
LENDERS $75,000,000.00 $200,300,000.00 POUND STERLING 45,000,000.00
REVOLVER TERM STERLING
ACQUISITION
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NationsBank, N.A. 9,214,285.72 24,608,285.69 5,528,571.41
BankBoston, N.A. 7,714,285.72 20,602,285.71 4,628,571.41
Fleet National Bank 7,714,285.72 20,602,285.71 4,628,571.41
The Bank of New York 5,785,714.30 15,451,714.27 3,471,428.57
First Union National Bank 5,785,714.30 15,451,714.27 3,471,428.57
Lloyds Bank Plc, Miami 5,785,714.30 15,451,714.27 3,471,428.57
The Chase Manhattan Bank 4,928,571.43 13,162,571.43 2,957,142.86
Comerica Bank 4,928,571.43 13,162,571.43 2,957,142.86
The First National Bank of 4,928,571.43 13,162,571.43 2,957,142.86
Chicago
ABN Amro Bank N.V. 3,214,285.70 8,584,285.73 1,928,571.43
Bank of Montreal 3,214,285.70 8,584,285.73 1,928,571.43
Bank of Tokyo-Mitsubishi Trust 3,214,285.70 8,584,285.73 1,928,571.43
Company
DG Bank 3,214,285.70 8,584,285.73 1,928,571.43
Deutschegenossenschaftbank AG,
Cayman Island Branch
Royal Bank of Scotland plc 3,214,285.70 8,584,285.73 1,928,571.43
Generale Bank 0.00 0.00 0.00
HSBC 0.00 0.00 0.00
UniCredito Italiano S.p.A., New 2,142,857.15 5,722,857.14 1,285,714.29
York Branch
TOTAL COMMITMENT $75,000,000.00 $200,300,000.00 pound sterling 45,000,000.00
LENDERS $50,000,000 $115,000,000
REVOLVER PTI
INCREASE TERM
---------------------------------------------------------------------
NationsBank, N.A. 3,636,363.64 8,363,636.36
BankBoston, N.A. 1,515,151.52 3,484,848.48
Fleet National Bank 1,515,151.52 3,484,848.48
The Bank of New York 3,939,393.94 9,060,606.06
First Union National Bank 3,939,393.94 9,060,606.06
Lloyds Bank Plc, Miami 3,939,393.94 9,060,606.06
The Chase Manhattan Bank 0.00 0.00
Comerica Bank 2,121,212.12 4,878,787.88
The First National Bank of 5,151,515.15 11,848,484.85
Chicago
ABN Amro Bank N.V. 1,515,151.51 3,484,848.49
Bank of Montreal 4,545,454.55 10,454,545.45
Bank of Tokyo-Mitsubishi Trust 1,515,151.51 3,484,848.49
Company
DG Bank 1,515,151.51 3,484,848.49
Deutschegenossenschaftbank AG,
Cayman Island Branch
Royal Bank of Scotland plc 1,515,151.51 3,484,848.49
Generale Bank 7,575,757.58 17,424,242.42
HSBC 6,060,606.06 13,939,393.94
UniCredito Italiano S.p.A., New 0.00 0.00
York Branch
TOTAL COMMITMENT 50,000,000.00 115,000,000.00