Exhibit 10.3
EXECUTION
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CREDIT AGREEMENT
DATED AS OF MAY 19, 1997
AMONG
AMPHENOL CORPORATION,
as Borrower,
AMPHENOL HOLDING UK, LIMITED
and
AMPHENOL COMMERCIAL & INDUSTRIAL UK, LIMITED
as U.K. Borrowers,
THE LENDERS LISTED HEREIN,
as Lenders,
THE CHASE MANHATTAN BANK,
as Syndication Agent,
THE BANK OF NEW YORK,
as Documentation Agent,
and
BANKERS TRUST COMPANY,
as Administrative Agent and Collateral Agent.
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AMPHENOL CORPORATION
CREDIT AGREEMENT
TABLE OF CONTENTS
Page
SECTION 1.
DEFINITIONS............................. 2
1.1 Certain Defined Terms.............................................. 2
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations
Under Agreement.................................................... 43
1.3 Other Definitional Provisions and Rules of Construction............ 43
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS.............. 44
2.1 Commitments; Making of Loans; the Register; Notes.................. 44
2.2 Interest on the Loans.............................................. 52
2.3 Fees............................................................... 57
2.4 Repayments, Prepayments and Reductions in Revolving Loan
Commitments; General Provisions Regarding Payments; Application
of Proceeds of Collateral and Payments Under the Guaranties........ 58
2.5 Use of Proceeds.................................................... 67
2.6 Special Provisions Governing LIBOR Loans........................... 67
2.7 Increased Costs; Capital Adequacy.................................. 70
2.8 Notice of Certain Costs; Obligation of Lenders and Issuing
Lenders to Mitigate................................................ 75
2.9 Defaulting Lenders................................................. 76
2.10 Removal or Replacement of a Lender................................. 78
SECTION 3.
LETTERS OF CREDIT.......................... 79
3.1 Issuance of Letters of Credit and Lenders' Purchase of
Participations Therein............................................. 79
3.2 Letter of Credit Fees.............................................. 83
3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit. 84
3.4 Obligations Absolute............................................... 87
3.5 Indemnification; Nature of Issuing Lenders' Duties................. 88
3.6 Increased Costs and Taxes Relating to Letters of Credit............ 89
(i)
Page
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SECTION 4.
CONDITIONS TO LOANS AND LETTERS OF CREDIT.............. 90
4.1 Conditions to Initial Loans........................................ 90
4.2 Conditions to All Loans............................................ 95
4.3 Conditions to Letters of Credit.................................... 96
SECTION 5.
COMPANY'S REPRESENTATIONS AND WARRANTIES............... 96
5.1 Organization, Powers, Qualification, Good Standing, Business
and Subsidiaries................................................... 97
5.2 Authorization of Borrowing, etc.................................... 97
5.3 Financial Condition................................................ 98
5.4 No Material Adverse Effect......................................... 98
5.5 Title to Properties; Liens......................................... 98
5.6 Litigation; Adverse Facts.......................................... 99
5.7 Payment of Taxes................................................... 99
5.8 Governmental Regulation............................................ 99
5.9 Employee Benefit Plans.............................................100
5.10 Environmental Protection...........................................100
5.11 Disclosure.........................................................101
SECTION 6.
AFFIRMATIVE COVENANTS........................101
6.1 Financial Statements and Other Reports.............................102
6.2 Corporate Existence, etc...........................................106
6.3 Payment of Taxes and Claims; Tax Consolidation.....................106
6.4 Maintenance of Properties; Insurance...............................106
6.5 Inspection Rights..................................................107
6.6 Compliance with Laws, etc..........................................107
6.7 Execution of Subsidiary Guaranty by Future Domestic Subsidiaries;
Pledge of Stock of Future Direct Subsidiaries; Ratable Credit Support;
Certain Closing Date Transactions; Certain Post-Closing Actions....107
6.8 Transactions with Affiliates.......................................109
6.9 Conduct of Business................................................109
6.10 Fiscal Year........................................................109
(ii)
Page
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SECTION 7.
NEGATIVE COVENANTS..........................110
7.1 Indebtedness.......................................................110
7.2 Liens and Related Matters..........................................112
7.3 Investments; Joint Ventures........................................113
7.4 Guarantee Obligations..............................................114
7.5 Restricted Junior Payments.........................................115
7.6 Financial Covenants................................................116
7.7 Restriction on Certain Fundamental Changes; Asset Sales
and Acquisitions...................................................118
7.8 Consolidated Capital Expenditures..................................120
7.9 Amendments of Documents Relating to Subordinated Indebtedness......120
SECTION 8.
EVENTS OF DEFAULT..........................120
8.1 Failure to Make Payments When Due..................................120
8.2 Default in Other Agreements........................................121
8.3 Breach of Certain Covenants........................................121
8.4 Breach of Warranty.................................................121
8.5 Other Defaults Under Loan Documents................................121
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc...............122
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.................122
8.8 Judgments and Attachments..........................................122
8.9 ERISA..............................................................123
8.10 Change of Control..................................................123
8.11 Material Invalidity of Guaranties; Material Failure of Security;
Repudiation of Obligations.........................................123
SECTION 9.
AGENTS................................125
9.1 Appointment........................................................125
9.2 Powers and Duties; General Immunity................................125
9.3 Representations and Warranties; No Responsibility For
Appraisal of Creditworthiness......................................127
9.4 Right to Indemnity.................................................127
9.5 Successor Agents and Swing Line Lender.............................127
9.6 Collateral Documents and Guaranties................................128
(iii)
Page
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SECTION 10.
MISCELLANEOUS............................129
10.1 Assignments and Participations in Loans and Letters of Credit......129
10.2 Expenses...........................................................133
10.3 Indemnity..........................................................134
10.4 Set-Off............................................................135
10.5 Ratable Sharing....................................................135
10.6 Amendments and Waivers.............................................136
10.7 Notices............................................................137
10.8 Survival of Representations, Warranties and Agreements.............137
10.9 Failure or Indulgence Not Waiver; Remedies Cumulative..............138
10.10 Marshalling; Payments Set Aside....................................138
10.11 Severability.......................................................138
10.12 Obligations Several; Independent Nature of Lenders' Rights.........139
10.13 Headings...........................................................139
10.14 Applicable Law.....................................................139
10.15 Successors and Assigns.............................................139
10.16 Consent to Jurisdiction and Service of Process.....................139
10.17 Waiver of Jury Trial...............................................140
10.18 Confidentiality....................................................141
10.19 Counterparts; Effectiveness........................................141
10.20 Judgment Currency..................................................142
10.21 European Monetary Union............................................142
Signature pages..........................................................S-1
(iv)
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NOTICE OF REQUEST FOR ISSUANCE OF LETTER
OF CREDIT
IV-A FORM OF TRANCHE A TERM NOTE (DOLLAR LOANS)
IV-B FORM OF TRANCHE A TERM NOTE (STERLING LOANS)
V FORM OF TRANCHE B TERM NOTE
VI FORM OF TRANCHE C TERM NOTE
VII FORM OF REVOLVING NOTE
VIII FORM OF SWING LINE NOTE
IX FORM OF COMPLIANCE CERTIFICATE
X FORM OF OPINIONS OF COUNSEL TO THE LOAN PARTIES
XI FORM OF OPINION OF O'MELVENY & ▇▇▇▇▇
XII FORM OF ASSIGNMENT AGREEMENT
XIII FORM OF CERTIFICATE RE NON-BANK STATUS
XIV FORM OF FINANCIAL CONDITION CERTIFICATE
XV FORM OF MASTER PLEDGE AGREEMENT
XVI FORM OF SUBSIDIARY GUARANTY
XVII FORM OF COMPANY GUARANTY
XVIII FORM OF INTERCREDITOR AGREEMENT
(v)
SCHEDULES
1.1 MANDATORY LIQUID ASSET COSTS FOR STERLING LOANS
2.1 LENDERS' COMMITMENTS, LENDING OFFICES AND PRO RATA
SHARES
4.1C MANAGEMENT INVESTORS
5.1 SUBSIDIARIES OF COMPANY
5.6 LITIGATION
7.1 CERTAIN EXISTING INDEBTEDNESS
7.3 CERTAIN EXISTING INVESTMENTS
7.4 CERTAIN EXISTING GUARANTEE OBLIGATIONS
(vi)
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of May 19, 1997 and entered into
by and among AMPHENOL CORPORATION, a Delaware corporation ("Company"), AMPHENOL
HOLDING UK, LIMITED, a limited liability company incorporated under the laws of
England and Wales ("UK Holding"), AMPHENOL COMMERCIAL & INDUSTRIAL UK, LIMITED,
a limited liability company incorporated under the laws of England and Wales
("ACI"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (each
individually referred to herein as a "Lender" and collectively as "Lenders"),
THE CHASE MANHATTAN BANK ("Chase"), as syndication agent (in such capacity,
"Syndication Agent"), THE BANK OF NEW YORK ("BNY"), as documentation agent (in
such capacity, "Documentation Agent"), and BANKERS TRUST COMPANY ("BTCo"), as
administrative agent for Lenders (in such capacity, "Administrative Agent") and
as the initial collateral agent for Lenders.
R E C I T A L S
WHEREAS, Newco (this and other capitalized terms used in these
recitals without definition being used as defined in subsection 1.1) has been
formed by Affiliates of KKR for the purpose of acquiring, in the aggregate, not
less than 75% of the PostMerger Shares;
WHEREAS, on or before the Closing Date, Affiliates of KKR will make
a cash investment in Newco of not less than $341,000,000 (the "Newco Equity
Amount") in consideration for all of the outstanding common stock of Newco;
WHEREAS, on or before the Closing Date, (i) Management Investors may
(a) elect to retain all or a portion of the Pre-Merger Shares held by Management
Investors in accordance with the terms of the Merger Agreement and the
Management Subscription Agreements and (b) purchase additional Post-Merger
Shares pursuant to the terms of the Management Subscription Agreements in an
aggregate amount such that, when added to the Post-Merger Shares retained by
Management Investors after consummation of the Merger as a result of the
election described in the foregoing clause (a), Management Investors will have
an aggregate investment in Post-Merger Shares equal in value to approximately
$6,500,000, and (ii) Company will issue and sell not less than $240,000,000 in
aggregate principal amount of New Sub Debt;
WHEREAS, (i) on the Closing Date, Newco will be merged with and into
Company pursuant to the Merger Agreement, with Company being the surviving
corporation in the Merger and with Individual Seller and Existing Public
Stockholders receiving cash consideration and retaining Post-Merger Shares in
the respective amounts
1
and ratable proportions determined in accordance with the provisions of the
Merger Agreement, and (ii) within 35 days after the Closing Date, an Affiliate
of KKR may purchase any Post-Merger Shares retained by Individual Seller
pursuant to the terms of the Stockholders Agreement;
WHEREAS, Lenders have agreed to extend certain credit facilities to
Company, the proceeds of which will be used (i) together with the proceeds of
the issuance and sale of the New Sub Debt and the proceeds of the Newco Equity
Amount, to fund that portion of the Recapitalization Financing Requirements
required to be funded on the Closing Date, (ii) within 35 days after the Closing
Date, to fund the repurchase of the Existing Senior Notes, and (iii) to provide
financing for working capital and other general corporate purposes of Company
and its Subsidiaries;
WHEREAS, Lenders have agreed to extend certain credit facilities to
U.K. Borrowers, the proceeds of which will be used to provide financing for
general corporate purposes of each such Borrower;
WHEREAS, Company desires to secure all of the Obligations hereunder
and under the other Loan Documents by granting to Collateral Agent, on behalf of
Lenders, a first priority pledge of (i) 100% of the capital stock of each of its
direct Domestic Subsidiaries and (ii) 65% of the capital stock of each of its
direct Material Foreign Subsidiaries; and
WHEREAS, Company has agreed to guarantee the Obligations of U.K.
Borrowers hereunder and under the other Loan Documents, and Subsidiary
Guarantors have agreed to guarantee the Obligations of the Loan Parties
hereunder and under the other Loan Documents;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Borrowers, Lenders, Syndication
Agent, Documentation Agent, Administrative Agent and Collateral Agent agree as
follows:
Section 1. DEFINITIONS
1.1 Certain Defined Terms.
The following terms used in this Agreement shall have the following
meanings:
"Accounts Receivable Facility" means the Existing A/R Facility and
any successor, replacement or additional accounts receivable financing program
entered into by Company and/or any of its Subsidiaries on terms customary for
accounts receivable
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financings; provided, in each case, that there is no recourse thereunder against
Company or any of its Subsidiaries for any default by any account obligor in the
payment of its obligations in connection with the accounts receivable subject to
such program, except to the extent that such recourse is limited substantially
to the same extent as under the Existing A/R Facility as in effect on the
Closing Date; and provided, further, that any accounts receivable financing
program shall cease to constitute an "Accounts Receivable Facility" in the event
the attributes described in the foregoing proviso cease to exist with regard to
such program.
"ACI" has the meaning assigned to that term in the introduction to
this Agreement.
"Acquisition" means the acquisition by Company or any of its
Subsidiaries (by purchase or otherwise) of all or substantially all of the
business, property or fixed assets of, or the stock or other evidence of
beneficial ownership of, any Person or any division, business unit or line of
business of any Person.
"Administrative Agent" has the meaning assigned to that term in the
introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 9.5A.
"Affected Lender" has the meaning assigned to that term in
subsection 2.6C.
"Affiliate", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to (i) vote 10% or more of the Voting Stock of such
Person or (ii) direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting securities or by contract
or otherwise.
"Agents" shall mean Administrative Agent and Collateral Agent.
"Agreement" means this Credit Agreement dated as of May 19, 1997, as
it may be amended, supplemented or otherwise modified from time to time.
"Amphenol Borg" means Amphenol Borg Limited, a company incorporated
under the laws of England and Wales.
"Applicable Commitment Fee Percentage" means, as at any date of
determination, a rate per annum equal to the percentage set forth below opposite
the Applicable Leverage Ratio in effect as of such date of determination, any
change in the
3
Applicable Commitment Fee Percentage to be effective on the date of any
corresponding change in the Applicable Leverage Ratio:
Applicable Leverage Ratio Applicable Commitment Fee Percentage
------------------------- ------------------------------------
6.25:1.00 or greater 0.50%
5.50:1.00 or greater, but
less than 6.25:1.00 0.425%
4.50:1.00 or greater, but
less than 5.50:1.00 0.375%
4.00:1.00 or greater, but
less than 4.50:1.00 0.300%
less than 4.00:1.00 0.25%
"Applicable Currency" means, as to any particular payment or Loan,
the currency (being Dollars or Sterling) in which it is denominated or is
payable.
"Applicable Leverage Ratio" means, with respect to any date of
determination, the Consolidated Leverage Ratio set forth in the Pricing
Certificate (as defined below) in effect for the Pricing Period (as defined
below) in which such date of determination occurs. For purposes of this
definition, (i) "Pricing Certificate" means an Officer's Certificate of Company
certifying as to the Consolidated Leverage Ratio as of the last day of any
Fiscal Quarter and setting forth the calculation of such Consolidated Leverage
Ratio in reasonable detail, which Officer's Certificate may be delivered to
Administrative Agent at any time on or after the date of delivery by Company of
the Compliance Certificate (the "Related Compliance Certificate") with respect
to the period ending on the last day of such Fiscal Quarter pursuant to
subsection 6.1(iii), and (ii) "Pricing Period" means each period commencing on
the first Business Day after the delivery to Administrative Agent of a Pricing
Certificate and ending on the first Business Day after the next Pricing
Certificate is delivered to Administrative Agent; provided that, anything
contained in this definition to the contrary notwithstanding, (a) the first
Pricing Period shall commence no earlier than the date which is six months after
the Closing Date, and the Pricing Certificate in respect of the first Pricing
Period may be delivered at any time on or after such date and shall relate to
the most recent financial statements delivered by Company to Administrative
Agent pursuant to subsection 6.1(i), (b) the Applicable Leverage Ratio for the
period from the Closing Date to but excluding the date of commencement of the
first Pricing Period shall be deemed to be 6.25:1.00, and (c) in the event that,
after the commencement of the first Pricing Period, (X) Company fails to deliver
a Pricing Certificate to Administrative Agent setting forth the Consolidated
Leverage Ratio as of the last day of any Fiscal Quarter on or before the last
day (the
4
"Cutoff Date") on which Company is required to deliver the Related Compliance
Certificate and (Y) Administrative Agent determines (each such determination
being an "Agent Determination") on or after the Cutoff Date (on the basis of the
Related Compliance Certificate or a Pricing Certificate delivered after the
Cutoff Date) that the Applicable Leverage Ratio that would have been in effect
if Company had delivered a Pricing Certificate on the Cutoff Date is greater
than the Consolidated Leverage Ratio set forth in the most recent Pricing
Certificate actually delivered by Company, then (1) the Applicable Leverage
Ratio in effect for the period from the Cutoff Date to the date of delivery by
Company of the next Pricing Certificate (or, if earlier, the next date on which
an Agent Determination is made) shall be the Consolidated Leverage Ratio
determined pursuant to the Agent Determination and (2) on the first Business Day
after Administrative Agent delivers written notice to Company of any Agent
Determination, the applicable Borrower shall pay to Administrative Agent, for
distribution (as appropriate) to Lenders, an aggregate amount equal to the
additional interest, letter of credit fees and commitment fees such Borrower
would have been required to pay in respect of all Loans, Letters of Credit or
Commitments in respect of which any interest or fees have been paid by such
Borrower during the period from the Cutoff Date to the date such notice is given
by Administrative Agent to Company if the amount of such interest and fees had
been calculated using the Applicable Leverage Ratio based on such Agent
Determination.
"Applicable Tranche A Base Rate Margin" means, as at any date of
determination, a rate per annum equal to the percentage set forth below opposite
the Applicable Leverage Ratio in effect as of such date of determination, any
change in any such Applicable Tranche A Base Rate Margin to be effective on the
date of any corresponding change in the Applicable Leverage Ratio:
Applicable Leverage Ratio Applicable Tranche A Base Rate Margin
------------------------- -------------------------------------
5.50:1.00 or greater 1.00%
5.00:1.00 or greater, but
less than 5.50:1.00 0.75%
4.50:1.00 or greater, but
less than 5.00:1.00 0.375%
4.00:1.00 or greater, but
less than 4.50:1.00 0.125%
less than 4.00:1.00 0.00%
"Applicable Tranche A LIBOR Margin" means, as at any date of
determination, a rate per annum equal to the percentage set forth below opposite
the Applicable Leverage Ratio in effect as of such date of determination, any
change in any
5
such Applicable Tranche A LIBOR Margin to be effective on the date of any
corresponding change in the Applicable Leverage Ratio:
Applicable Leverage Ratio Applicable Tranche A LIBOR Margin
------------------------- ---------------------------------
5.50:1.00 or greater 2.25%
5.00:1.00 or greater, but
less than 5.50:1.00 2.00%
4.50:1.00 or greater, but
less than 5.00:1.00 1.625%
4.00:1.00 or greater, but
less than 4.50:1.00 1.375%
3.50:1.00 or greater, but
less than 4.00:1.00 1.125%
less than 3.50:1.00 1.00%
"Applicable Tranche B Base Rate Margin" means, as at any date of
determination, a rate per annum equal to the percentage set forth below opposite
the Applicable Leverage Ratio in effect as of such date of determination, any
change in any such Applicable Tranche B Base Rate Margin to be effective on the
date of any corresponding change in the Applicable Leverage Ratio:
Applicable Leverage Ratio Applicable Tranche B Base Rate Margin
------------------------- -------------------------------------
5.00:1.00 or greater 1.50%
4.00:1.00 or greater, but
less than 5.00:1.00 1.25%
less than 4.00:1.00 1.00%
"Applicable Tranche B LIBOR Margin" means, as at any date of
determination, a rate per annum equal to the percentage set forth below opposite
the Applicable Leverage Ratio in effect as of such date of determination, any
change in any such Applicable Tranche B LIBOR Margin to be effective on the date
of any corresponding change in the Applicable Leverage Ratio:
6
Applicable Leverage Ratio Applicable Tranche B LIBOR Margin
------------------------- ---------------------------------
5.00:1.00 or greater 2.75%
4.00:1.00 or greater, but
less than 5.00:1.00 2.50%
less than 4.00:1.00 2.25%
"Applicable Tranche C Base Rate Margin" means, as at any date of
determination, a rate per annum equal to the percentage set forth below opposite
the Applicable Leverage Ratio in effect as of such date of determination, any
change in any such Applicable Tranche C Base Rate Margin to be effective on the
date of any corresponding change in the Applicable Leverage Ratio:
Applicable Leverage Ratio Applicable Tranche C Base Rate Margin
------------------------- -------------------------------------
5.00:1.00 or greater 2.00%
4.00:1.00 or greater, but
less than 5.00:1.00 1.75%
less than 4.00:1.00 1.50%
"Applicable Tranche C LIBOR Margin" means, as at any date of
determination, a rate per annum equal to the percentage set forth below opposite
the Applicable Leverage Ratio in effect as of such date of determination, any
change in any such Applicable Tranche C LIBOR Margin to be effective on the date
of any corresponding change in the Applicable Leverage Ratio:
Applicable Leverage Ratio Applicable Tranche C LIBOR Margin
------------------------- ---------------------------------
5.00:1.00 or greater 3.25%
4.00:1.00 or greater, but
less than 5.00:1.00 3.00%
less than 4.00:1.00 2.75%
"Asset Sale" means the sale by Company or any of its Subsidiaries to
any Third Party of (i) any of the stock or other ownership interests of any of
Company's Subsidiaries, (ii) substantially all of the assets of any division or
line of business of Company or any of its Subsidiaries, or (iii) any other
assets (whether tangible or intangible) of Company or any of its Subsidiaries
outside of the ordinary course of busi-
7
ness (other than (a) accounts receivable sold pursuant to any Accounts
Receivable Facility or sold in accordance with subsection 7.7(iii) and (b) any
other such assets to the extent that the aggregate value of such assets sold in
any single transaction or related series of transactions is equal to $500,000 or
less).
"Assignment Agreement" means an Assignment Agreement in
substantially the form of Exhibit XII annexed hereto.
"Available Amount" means, as of any date of determination, an amount
equal to (i) the aggregate amount of net cash proceeds received by Company after
the Closing Date in respect of any equity contributions made to Company by, or
any issuances of equity Securities by Company to, any Third Party other than an
Unrestricted Subsidiary (other than proceeds from purchases of capital stock of
Company to the extent such purchases are financed with the proceeds of
Investments permitted under subsection 7.3(ii)) plus (ii) the aggregate amount
of Retained Excess Cash Flow (as defined in subsection 2.4B(iii)(b)) as of such
date plus (iii) the aggregate amount of Retained Prepayments (as defined in
subsection 2.4B(iv)(c)) as of such date minus (iv) any proceeds received by
Company from the issuance of new shares of its common stock to the extent such
proceeds are used as provided in subsection 7.5(iii)(d).
"Available Amount Usage" means, as of any date of determination, an
amount equal to the sum of (i) the aggregate amount of Investments made pursuant
to subsection 7.3(vi)(b) as of such date plus (ii) the aggregate amount of
Restricted Junior Payments made pursuant to subsection 7.5(iii)(c) on or prior
to such date (other than any such Restricted Junior Payments made pursuant to a
Refinancing (as defined in the definition of "Refinancing Sub Debt")) plus (iii)
the aggregate amount of any Refinancing Premiums (as defined in the definition
of "Refinancing Sub Debt") paid by Company on or prior to such date.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Base Rate" means, at any time, the higher of (x) the Prime Rate or
(y) the rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate.
"Base Rate Loans" means Loans bearing interest at rates determined
by reference to the Base Rate as provided in subsection 2.2A.
"Borrower" means Company or either U.K. Borrower, as the context
requires.
"BTCo" has the meaning assigned to that term in the introduction to
this Agreement.
8
"Business Day" means, for all purposes other than as covered by
clause (ii) below, (i) any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of the State of New York or is a day on which
banking institutions located in such state are authorized or required by law or
other governmental action to close and, (ii) with respect to all notices,
determinations, fundings and payments in connection with LIBOR or any LIBOR
Loans, any day that is a Business Day described in clause (i) above and that is
also (a) a day for trading by and between banks in Dollar or Sterling deposits,
as the case may be, in the London interbank market and (b) a day on which
banking institutions are open for business in London.
"Capital Lease", as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Cash" means money, currency or a credit balance in a Deposit
Account.
"Cash Equivalents" means (i) marketable securities (a) issued or
directly and unconditionally guaranteed as to interest and principal by the
United States Government or (b) issued by any agency of the United States the
obligations of which are backed by the full faith and credit of the United
States, in each case maturing within 24 months after the date of acquisition
thereof; (ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within 24 months after the date
of acquisition thereof and having, at the time of the acquisition thereof, an
investment grade rating generally obtainable from either Standard & Poor's
Ratings Group ("S&P") or ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"); (iii)
commercial paper maturing no more than 12 months from the date of creation
thereof and having, at the time of the acquisition thereof, a rating of at least
A-2 from S&P or at least P-2 from Moody's; (iv) domestic and Eurodollar
certificates of deposit or bankers' acceptances maturing within 24 months after
the date of acquisition thereof and issued or accepted by any Lender or by any
other commercial bank that has combined capital and surplus of not less than
$250,000,000; (v) repurchase agreements with a term of not more than 30 days for
underlying securities of the types described in clauses (i), (ii) and (iv) above
entered into with any commercial bank meeting the requirements specified in
clause (iv) above or with any securities dealer of recognized national standing,
(vi) shares of investment companies that are registered under the Investment
Company Act of 1940 and that invest solely in one or more of the types of
investments referred to in clauses (i) through (v) above, and (vii) in the case
of any Foreign Subsidiary, high quality, short-term liquid Investments made by
such Foreign Subsidiary in the ordinary course of managing its surplus cash
position in a manner consistent with past practices.
"Certificate re Non-Bank Status" means a certificate substantially
in the form of Exhibit XIII annexed hereto delivered by a Lender to
Administrative Agent pursuant to subsection 2.7B(iii).
9
"Change of Control" means, and shall be deemed to have occurred, if:
(i)(a) KKR, its Affiliates and the Management Group shall at any time not own,
in the aggregate, directly or indirectly, beneficially and of record, at least
35% of the outstanding Voting Stock of Company (other than as the result of one
or more widely distributed offerings of common stock of Company, in each case
whether by Company or by KKR, its Affiliates or the Management Group) and/or (b)
any person, entity or "group" (within the meaning of Section 13(d) or 14(d) of
the Exchange Act) shall at any time have acquired direct or indirect beneficial
ownership of a percentage of the outstanding Voting Stock of Company that
exceeds the percentage of such Voting Stock then beneficially owned, in the
aggregate, by KKR, its Affiliates and the Management Group, unless, in the case
of either clause (a) or (b) above, KKR, its Affiliates and the Management Group
shall, at the relevant time, have the collective right or ability, either by
contract or pursuant to a written proxy or other written evidence of voting
power, to elect or designate for election a majority of the Board of Directors
of Company; and/or (ii) at any time Continuing Directors shall not constitute a
majority of the Board of Directors of Company. For purposes of this definition,
"Continuing Director" means, as of any date of determination, an individual (A)
who is a member of the Board of Directors of Company on the Closing Date, (B)
who, as of such date of determination, has been a member of such Board of
Directors for at least the 12 preceding months (or, if such date of
determination occurs during the period comprising the first 12 months after the
Closing Date, since the Closing Date), or (C) who has been nominated to be a
member of such Board of Directors, directly or indirectly, by KKR or Persons
nominated by KKR or who has been nominated to be a member of such Board of
Directors by a majority of the other Continuing Directors then in office.
"Class" means, as applied to Lenders, each of the following three
classes of Lenders: (i) Lenders having Revolving Loan Exposure, (ii) Lenders
having Tranche A Term Loan Exposure, and (iii) Lenders having Tranche B Term
Loan Exposure and/or Tranche C Term Loan Exposure (taken together as a single
class).
"Closing Date" means the date on or before June 30, 1997, on which
the initial Loans are made.
"Collateral" means all of the personal property (including capital
stock) in which Liens are purported to be granted pursuant to the Collateral
Documents as security for the obligations.
"Collateral Agent" means BTCo, or any Person serving as successor
Administrative Agent hereunder, in its capacity (i) as Collateral Agent under
the Pledge Agreements and the Intercreditor Agreement on behalf of (a) Lenders
and Lender Counterparties (as defined in the Master Pledge Agreement) and (b)
the PBGC, and (ii) as Collateral Agent under this Agreement, the Guaranties and
the Collateral Documents (other than the Pledge Agreements) on behalf of Lenders
and Lender Counterparties.
10
"Collateral Documents" means the Pledge Agreements, this Agreement
(with respect to Section 8 hereof) and any security documents that may be
entered into from time to time after the Closing Date by any Subsidiary of
Company pursuant to subsection 6.7B or by Company pursuant to Section 8.
"Commercial Letter of Credit" means any letter of credit or similar
instrument issued for the purpose of providing the primary payment mechanism in
connection with the purchase of any materials, goods or services by Company or
any of its Subsidiaries in the ordinary course of business of Company or such
Subsidiary.
"Commitments" means the commitments of Lenders to make Loans as set
forth in subsection 2.1A.
"Commodities Agreement" means any forward commodities contract,
commodity futures contract, commodities option contract or similar agreement or
arrangement to which Company or any of its Subsidiaries is a party.
"Company" has the meaning assigned to that term in the introduction
to this Agreement.
"Company Guaranty" means the Company Guaranty executed and delivered
by Company on the Closing Date, substantially in the form of Exhibit XVII
annexed hereto, as such Company Guaranty may thereafter be amended, supplemented
or otherwise modified from time to time.
"Compliance Certificate" means a certificate substantially in the
form of Exhibit IX annexed hereto delivered to Administrative Agent and Lenders
by Company pursuant to subsection 6.1(iii).
"Confidential Information Memorandum" means that certain
Confidential Information Memorandum relating to Company dated February, 1997.
"Consent Solicitation" means the solicitation by Company, from the
holders of outstanding Existing Subordinated Notes, of consents to certain
amendments to the Existing Subordinated Note Indenture in accordance with the
terms of the Debt Tender Offer Materials.
"Consolidated Adjusted EBITDA" means, with respect to any Person for
any period, an amount equal to (i) Consolidated Net Income plus (ii) to the
extent the following items are deducted in calculating such Consolidated Net
Income, the sum, without duplication, of the amounts for such period of (a)
Consolidated Interest Expense, (b) taxes computed on the basis of income, (c)
total depreciation expense, (d) total amortization expense (including
amortization of deferred financing fees), (e) any expenses or charges incurred
in connection with any issuance of debt or equity Securities (including
11
upfront fees payable in respect of bank facilities), (f) any restructuring
charges or reserves, (g) any expenses or charges relating to the
Recapitalization, (h) any Receivables Fees, (i) any fees and expenses related to
Acquisitions and Investments permitted hereunder, (j) any other non-cash
charges, (k) any deduction for minority interest expense, and (l) any other
non-recurring charges minus (iii) to the extent the following items are added in
calculating such Consolidated Net Income, the sum, without duplication, of the
amounts for such period of (a) any non-recurring gains, and (b) any non-cash
gains, all of the foregoing as determined on a consolidated basis for such
Person and its Subsidiaries in conformity with GAAP; provided that, for purposes
of subsections 7.6 and 7.7(ii) only, (X) Consolidated Adjusted EBITDA of any
Included Pro Forma Entity (other than any Unrestricted Subsidiary redesignated
as a Subsidiary of Company) shall be increased (if positive) or decreased (if
negative) by any Pro Forma Adjustment applicable thereto and (Y) Consolidated
Adjusted EBITDA of Company and its Subsidiaries shall be increased (if positive)
or decreased (if negative) by the Net EBITDA Adjustment.
"Consolidated Capital Expenditures" means, for any period, the
aggregate of all expenditures (whether paid in cash or other consideration or
accrued as a liability and including that portion of Capital Leases which is
capitalized as principal on the consolidated balance sheet of Company and its
Subsidiaries) by Company and its Subsidiaries during that period that, in
conformity with GAAP, are included in "additions to property, plant or
equipment" or comparable items reflected in the consolidated statement of cash
flows of Company and its Subsidiaries; provided that Consolidated Capital
Expenditures shall not include (i) any such expenditures constituting all or a
portion of the purchase price in connection with any Acquisition, (ii) any such
expenditures made in connection with the replacement, substitution, repair or
restoration of any assets to the extent financed (a) with insurance proceeds
received by Company or any of its Subsidiaries on account of the loss of, or any
damage to, the assets being replaced, substituted for, repaired or restored or
(b) with the proceeds of any compensation awarded to Company or any of its
Subsidiaries as a result of the taking, by eminent domain or condemnation, of
the assets being replaced or substituted for, (iii) the purchase price of any
equipment that is purchased simultaneously with the trade-in of any existing
equipment by Company or any of its Subsidiaries to the extent that the gross
amount of such purchase price is reduced by any credit granted by the seller of
such equipment for such equipment being traded in, or (iv) the purchase price of
any property, plant or equipment purchased within one year of the consummation
of any Asset Sale or any other sale by Company or any of its Subsidiaries of any
other property, plant or equipment to the extent purchased with the Net Asset
Sale Proceeds of such Asset Sale or the proceeds of such other sale.
"Consolidated Current Assets" means, as at any date of
determination, the total assets of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current assets in
conformity with GAAP, excluding Cash and Cash Equivalents.
12
"Consolidated Current Liabilities" means, as at any date of
determination, the total liabilities of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current liabilities in
conformity with GAAP, excluding the current portions of Funded Debt.
"Consolidated Excess Cash Flow" means, for any Fiscal Year, an
amount (if positive) equal to (i) the sum, without duplication, of the amounts
for such Fiscal Year of (a) Consolidated Net Income, (b) the amount of all
non-cash charges to the extent deducted in arriving at such Consolidated Net
Income, (c) any net decrease in Consolidated Working Capital since the end of
the preceding Fiscal Year (other than any such decrease resulting from transfers
of accounts receivable pursuant to an Accounts Receivable Facility), and (d) the
aggregate net non-cash loss realized by Company and its Subsidiaries in
connection with the sale, lease, transfer or other disposition of assets by
Company and its Subsidiaries during such Fiscal Year (other than sales in the
ordinary course of business), to the extent deducted in arriving at such
Consolidated Net Income, minus (ii) the sum, without duplication, of the amounts
for such Fiscal Year of (a) the amount of all non-cash credits to the extent
added in arriving at such Consolidated Net Income, (b) Consolidated Capital
Expenditures actually paid in Cash during such Fiscal Year (net of the principal
amount of any Indebtedness incurred to finance such Consolidated Capital
Expenditures, whether incurred in such Fiscal Year or in the immediately
succeeding Fiscal Year), (c) the aggregate amount of all prepayments of
Revolving Loans and Swing Line Loans to the extent accompanied by permanent
reductions in the Revolving Loan Commitments, (d) the aggregate amount of all
principal payments in respect of any Indebtedness of Company or any of its
Subsidiaries (including the Term Loans and the principal component of any
payments in respect of Capital Leases), other than (1) any mandatory prepayments
of the Term Loans pursuant to subsection 2.4B(iii), (2) any prepayments of
Indebtedness with the proceeds of other Indebtedness, or (3) repayments in
respect of any revolving credit facility except to the extent there is a
permanent reduction in commitments thereunder in connection with such
repayments, (e) any net increase in Consolidated Working Capital since the end
of the preceding Fiscal Year, (f) the aggregate net non-cash gain realized by
Company and its Subsidiaries in connection with the sale, lease, transfer or
other disposition of assets by Company and its Subsidiaries during such Fiscal
Year (other than sales in the ordinary course of business), (g) the aggregate
amount of all Cash payments made by Company and its Subsidiaries in respect of
long-term liabilities of Company or any of its Subsidiaries other than
Indebtedness, (h) the aggregate amount of new Investments made in Cash in
accordance with subsection 7.3(vi), (i) the aggregate amount of Cash
consideration paid in connection with any Acquisitions (net of any such
consideration paid out of any Net Asset Sale Proceeds), (j) the aggregate amount
of Restricted Junior Payments made in accordance with subsection 7.5(iii)(a) (to
the extent such Restricted Junior Payments are required by the terms of the
applicable management and/or employee stock plan, stock subscription agreement
or shareholder agreement) and subsections 7.5(iii)(b), (c) and (f), (k) the
aggregate amount of any expenditures actually made in Cash by Company and its
Subsidiaries during such Fiscal Year (including
13
expenditures for the payment of financing fees) to the extent such expenditures
are not expensed during such Fiscal Year, (l) the aggregate amount of any net
currency gains realized by Company and its Subsidiaries during such Fiscal Year
that are prohibited from being repatriated to the United States, and (m) the
aggregate amount of any premium, make-whole or penalty payments actually paid in
cash during such Fiscal Year that are required in connection with any prepayment
of Indebtedness and that are accounted for by Company as extraordinary items,
all of the foregoing as determined on a consolidated basis for Company and its
Subsidiaries in accordance with GAAP.
"Consolidated Gross Sales Revenues" means, for any Fiscal Year, an
amount equal to gross sales revenues of Company and its Subsidiaries for such
Fiscal Year on a consolidated basis determined in conformity with GAAP; provided
that, for purposes of calculating such gross sales revenues, (i) the gross sales
revenues of any business acquired during such Fiscal Year in an Acquisition
permitted under subsection 7.7(ii) shall be determined on a pro forma basis
(based on assumptions believed by Company in good faith to be reasonable) as if
such Acquisition had been consummated on the first day of such Fiscal Year and
(ii) the gross sales revenues of any business sold or otherwise disposed of by
Company or any of its Subsidiaries during such Fiscal Year shall be excluded in
their entirety.
"Consolidated Gross Sales Revenues Adjustment" means, for any Fiscal
Year, 5% of the amount equal to (i) the increase (if any) of consolidated gross
sales revenues of Company and its Subsidiaries for such Fiscal Year attributable
to any business acquired during such Fiscal Year in an Acquisition permitted
under subsection 7.7(ii) minus (ii) the decrease (if any) in such consolidated
gross sales revenues attributable to any business sold or otherwise disposed of
by Company or any of its Subsidiaries during such Fiscal Year.
"Consolidated Interest Expense" means, with respect to any Person
for any period, an amount equal to, without duplication, (i) total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP, capitalized interest and any administrative agency or commitment or
other similar fees payable in respect of bank facilities) of such Person and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP, with
respect to all outstanding Indebtedness of such Person and its Subsidiaries,
including all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financings and net costs
under Interest Rate Agreements, but excluding, however, (a) any interest expense
(including amortization of discount, amortization of debt issuance costs, and
amortization of any other charges relating to the Recapitalization) not payable
in Cash during such period and (b) any Receivables Fees and any amounts referred
to in subsection 2.3 payable to Administrative Agent, Syndication Agent,
Documentation Agent and Lenders on or before the Closing Date minus (ii) total
interest income of such Person and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP, but excluding, however, any interest
income not received in Cash during such period; provided that, for purposes
14
of subsections 7.6 and 7.7(ii) only, Consolidated Interest Expense of Company
and its Subsidiaries shall be increased (if positive) or decreased (if negative)
by the Net Interest Adjustment.
"Consolidated Leverage Ratio" means, as of the last day of any
Fiscal Quarter, the ratio of (i) Consolidated Total Debt as of such date to (ii)
Consolidated Adjusted EBITDA of Company and its Subsidiaries for the four-Fiscal
Quarter period ending on such date.
"Consolidated Net Income" means, with respect to any Person (the
"Subject Person") for any period, the net income (or loss) of the Subject Person
and its Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP; provided that there shall
be excluded (i) the income (or loss) of any Person in which any other Person
(other than the Subject Person or any of its Subsidiaries) has a joint interest,
except to the extent of the amount of dividends or other distributions actually
paid to the Subject Person or any of its Subsidiaries by the other Person during
such period, (ii) the income (or loss) of any Person accrued prior to the date
it becomes a Subsidiary of the Subject Person or is merged into or consolidated
with the Subject Person or any of its Subsidiaries or that Person's assets are
acquired by the Subject Person or any of its Subsidiaries, (iii) any after-tax
gains or losses, and any related fees and expenses, in each case to the extent
attributable to Asset Sales or returned surplus assets of any Pension Plan, (iv)
any translation currency gains and losses, and (v) (to the extent not included
in clauses (i) through (iv) above) any net extraordinary gains or net
extraordinary losses.
"Consolidated Total Debt" means, as at any date of determination,
the aggregate stated balance sheet amount of all Indebtedness of Company and its
Subsidiaries under clauses (i), (ii) and (iii) of the definition of
"Indebtedness" (but only to the extent, in the case of said clause (iii), of any
drawings honored under letters of credit and not yet reimbursed by Company or
any of its Subsidiaries), as determined on a consolidated basis in accordance
with GAAP.
"Consolidated Working Capital" means, as at any date of
determination, the excess (or deficit) of Consolidated Current Assets over
Consolidated Current Liabilities.
"Contractual Obligation", as applied to any Person, means any
provision of any Security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement, currency futures contract, currency option contract, synthetic
currency
15
exchange rate cap or other similar agreement or arrangement to which Company or
any of its Subsidiaries is a party.
"Debt Tender Offer" means the offer by Company to repurchase up to
100% of the outstanding Existing Subordinated Notes pursuant to the Debt Tender
Offer Materials.
"Debt Tender Offer Materials" means the Offer to Purchase and
Consent Solicitation Statement dated April 15, 1997 relating to the Debt Tender
Offer and the accompanying Consent and Letter of Transmittal.
"Defaulting Lender" has the meaning assigned to that term in
subsection 2.9.
"Default Period" has the meaning assigned to that term in subsection
2.9.
"Delayed-Draw Term Loans" means a portion of the Tranche A Term
Loans, in an aggregate amount not to exceed the maximum aggregate consideration
(including accrued interest and premiums) which Company may be required to pay
in connection with the redemption of all outstanding Existing Senior Notes, that
may be borrowed by Company at any time during the period commencing on the
Closing Date and ending on the 35th day thereafter for the purpose of funding
such redemption; provided that (i) Company shall have delivered to
Administrative Agent, on or before the tenth Business Day immediately preceding
the Closing Date, an Officer's Certificate requesting that a portion of the
Tranche A Term Loans be made available as Delayed-Draw Term Loans and setting
forth in reasonable detail the calculation of the aggregate principal amount of
the Delayed-Draw Term Loans and (ii) on or before the Closing Date, Company
shall have caused irrevocable notice of the redemption of the Existing Senior
Notes to be given in accordance with the terms of the Existing Senior Note
Indenture.
"Deposit Account" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"Documentation Agent" has the meaning assigned to that term in the
introduction to this Agreement.
"Dollar Loans" means Loans denominated and payable in Dollars.
"Dollars" and the sign "$" mean the lawful money of the United
States of America.
16
"Domestic Subsidiary" means a Subsidiary of Company organized under
the laws of the United States or any state thereof.
"Eligible Assignee" means (A) (i) a commercial bank organized under
the laws of the United States or any state thereof; (ii) a savings and loan
association or savings bank organized under the laws of the United States or any
state thereof; (iii) a commercial bank organized under the laws of any other
country or a political subdivision thereof; provided that (x) such bank is
acting through a branch or agency located in the United States or (y) such bank
is organized under the laws of a country that is a member of the Organization
for Economic Cooperation and Development or a political subdivision of such
country; and (iv) any other entity which is an "accredited investor" (as defined
in Regulation D under the Securities Act) which extends credit or buys loans as
one of its businesses including insurance companies, mutual funds and lease
financing companies; and (B) any Lender, any Affiliate of any Lender and, with
respect to any Lender that is an investment fund that invests in commercial
loans, any other investment fund that invests in commercial loans and that is
managed by the same investment advisor as such Lender or by an Affiliate of such
investment advisor; provided that no Affiliate of Company shall be an Eligible
Assignee.
"Environmental Claims" means any and all administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations (other than internal reports prepared
by Company or any of its Subsidiaries (i) in the ordinary course of such
Person's business or (ii) as required in connection with a financing transaction
or an acquisition or disposition of real estate) or proceedings relating in any
way to any Environmental Law (for purposes of this definition, "Claims"),
including (a) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law and (b) any and all Claims by any
Third Party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or arising
from alleged injury or threat of injury to health, safety or the environment.
"Environmental Laws" means any and all present and future laws,
statutes, ordinances, rules, regulations, requirements, restrictions, permits,
orders, and determinations of any governmental authority that have the force and
effect of law, and that pertain to pollution (including hazardous, toxic or
dangerous substances), natural resources or the environment, whether federal,
state, or local, domestic or foreign including environmental response laws such
as the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 and
as the same may be further amended (hereinafter collectively called "CERCLA").
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, and any regulations promulgated thereunder.
17
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with Company or any of its Subsidiaries
within the meaning of Section 414(b) or (c) of the Internal Revenue Code or (for
purposes of provisions of the Internal Revenue Code relating to Section 412 of
the Internal Revenue Code) Section 414(m) or (o) of the Internal Revenue Code.
"ERISA Event" means any of the following events or occurrences if
such event or occurrence could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect: (i) the failure to make a required
contribution to a Pension Plan; (ii) a withdrawal by Company, any of its
Subsidiaries or any ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial employer (as defined
in Section 4001(a)(2) of ERISA), or a cessation of operation which is treated as
such a withdrawal under Section 4062(e) of ERISA; (iii) a complete or partial
withdrawal by Company, any of its Subsidiaries or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization or is insolvent pursuant to Section 4241 or 4245 of ERISA; (iv)
the filing of a notice of intent to terminate, the treatment of a Plan amendment
as a termination under Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate, in each case with respect to a Pension
Plan or Multiemployer Plan; (v) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; (vi) the imposition of any liability upon Company, any of
its Subsidiaries or any ERISA Affiliate under Title IV of ERISA (other than with
respect to PBGC premiums due but not delinquent under Section 4007 of ERISA)
upon Company, any of its Subsidiaries or any ERISA Affiliate; (vii) the
imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Internal
Revenue Code or pursuant to ERISA with respect to any Pension Plan; (viii)
receipt from the Internal Revenue Service of notice of the failure of any
Pension Plan (or any other Plan intended to qualify under Section 401(a) of the
Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue
Code, or the failure of any trust forming part of any Pension Plan to qualify
for exemption from taxation under Section 501(a) of the Internal Revenue Code;
or (ix) the violation of any applicable foreign law, or an event or occurrence
that is comparable to any of the foregoing events or occurrences, in either case
with respect to a Plan that is not subject to regulation under ERISA by reason
of Section 4(b)(4) of ERISA.
"Event of Default" means each of the events set forth in Section 8.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
"Exchange Rate" means, on any date when an amount expressed in a
currency other than Dollars is to be determined with respect to any Letter of
Credit, the spot rate of exchange of the applicable Issuing Lender in the New
York foreign exchange
18
market for the purchase by such Issuing Lender of such currency in exchange for
Dollars two Business Days prior to such date, expressed as a number of units of
such currency per one Dollar.
"Excluded Pro Forma Entity" means, for any period, (i) any Person,
property, business or asset (other than an Unrestricted Subsidiary) that is
sold, transferred or otherwise disposed of by Company or any of its Subsidiaries
to a Third Party during such period; provided that, for purposes of calculating
any consolidated financial information for any Excluded Pro Forma Entity to be
used in determining the Net EBITDA Adjustment or Net Interest Adjustment for
such period, financial information pertaining to any Person, property, business
or asset that was related to such Excluded Pro Forma Entity but that was not
disposed of by Company or such Subsidiary shall not be consolidated with the
relevant financial information of the Excluded Pro Forma Entity and (ii) any
Subsidiary of Company that is redesignated as an Unrestricted Subsidiary during
such period.
"Existing A/R Facility" means the accounts receivable factoring
facility established pursuant to that certain Receivables Purchase Agreement
dated as of December 3, 1993 between Amphenol Funding Corp., as Seller, Company,
individually and as initial servicer, Pooled Accounts Receivable Capital
Corporation, as purchaser, and Bank of Montreal, as agent, as amended prior to
the Closing Date.
"Existing Credit Agreement" means that certain Credit Agreement
dated as of November 30, 1995 between Company, the lenders parties thereto and
The Chase Manhattan Bank (formerly Chemical Bank), as agent, as amended prior to
the Closing Date.
"Existing Public Stockholders" means, collectively, all of the
holders of Pre-Merger Shares other than Individual Seller and Management
Investors.
"Existing Senior Note Indenture" means the indenture pursuant to
which the Existing Senior Notes were issued, as such indenture may be amended
from time to time.
"Existing Senior Notes" means Company's $100,000,000 in initial
aggregate principal amount of 10.45% Senior Notes due 2001.
"Existing Subordinated Note Indenture" means the indenture pursuant
to which the Existing Subordinated Notes were issued, as amended pursuant to the
Consent Solicitation and as such indenture may be further amended from time to
time.
"Existing Subordinated Notes" means Company's $95,000,000 in initial
aggregate principal amount of 12.75% Senior Subordinated Notes due 2002.
19
"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by Administrative Agent from three Federal funds brokers
of recognized standing selected by Administrative Agent.
"Financial Plan" has the meaning assigned to that term in subsection
6.1(ix).
"First Priority" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that (i) such
Lien has priority over any other Lien on such Collateral and (ii) such Lien is
the only Lien (other than Permitted Encumbrances) to which such Collateral is
subject.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Company and its Subsidiaries
ending on December 31 of each calendar year (or any other date to which such
Fiscal Year-end is changed pursuant to subsection 6.10).
"Funded Debt", as applied to any Person, means all Indebtedness for
borrowed money of that Person (including any current portions thereof) which by
its terms or by the terms of any instrument or agreement relating thereto
matures more than one year from, or is directly renewable or extendable at the
option of that Person to a date more than one year from (including an option of
that Person under a revolving credit or similar agreement obligating the lender
or lenders to extend credit over a period of one year or more from), the date of
the creation thereof.
"Funding and Payment Office" means (i) in respect of fundings and
payments with respect to Dollar Loans, the office of Administrative Agent and
Swing Line Lender located at One Bankers Trust Plaza, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (ii) in respect of fundings and payments with respect to
Sterling Loans, the office of Administrative Agent located at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, or (iii) with respect to either clause (i) or (ii),
such other office of Administrative Agent and/or Swing Line Lender as may from
time to time hereafter be designated as such in a written notice delivered by
Administrative Agent and/or Swing Line Lender to Company and each Lender.
"Funding Date" means the date of the funding of a Loan.
20
"GAAP" means, subject to the limitations on the application thereof
set forth in subsection 1.2, generally accepted accounting principles set forth
in opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession in the United States, in each case as the same are
applicable to the circumstances as of the date of determination.
"Governmental Authorization" means any permit, license,
authorization, plan, directive, consent order or consent decree of or from any
federal, state, local or foreign governmental authority, agency or court.
"Guarantee Obligations" means, as to any Person, any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness of any other
Person (the "Primary Obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether or not
contingent, (i) to purchase any such Indebtedness or any property constituting
direct or indirect security therefor, (ii) to advance or supply funds (a) for
the purchase or payment of any such Indebtedness or (b) to maintain working
capital or equity capital of the Primary Obligor or otherwise to maintain the
net worth or solvency of the Primary Obligor, (iii) to purchase property,
Securities or services primarily for the purpose of assuring the owner of any
such Indebtedness of the ability of the Primary Obligor to make payment of such
Indebtedness or (iv) otherwise to assure or hold harmless the owner of such
Indebtedness against loss in respect thereof; provided, however, that the term
"Guarantee Obligations" shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the Indebtedness in respect of which such Guarantee
Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith.
"Guaranties" means the Company Guaranty, the Subsidiary Guaranty and
any guaranty entered into by any Subsidiary of Company pursuant to subsection
6.7B.
"Hazardous Materials" means any substance that is defined or listed
as a hazardous, toxic or dangerous substance under any present or future
Environmental Law or that is otherwise regulated or prohibited or subject to
investigation or remediation under any present or future Environmental Law
because of its hazardous, toxic, or dangerous properties, including (i) any
substance that is a "hazardous substance" under CERCLA (as defined in the
definition of "Environmental Laws") and (ii) petroleum wastes or products.
21
"Hedge Agreement" means any Interest Rate Agreement, Commodities
Agreement or Currency Agreement designed to hedge against fluctuations in
interest rates, the price or availability of commodities, or currency values,
respectively.
"Included Pro Forma Entity" means, for any period, (i) any Person,
property, business or asset (other than an Unrestricted Subsidiary) that is
acquired by Company or any of its Subsidiaries from a Third Party during such
period and not subsequently sold, transferred or otherwise disposed of by
Company or such Subsidiary to a Third Party during such period; provided that,
for purposes of calculating any consolidated financial information for any
Included Pro Forma Entity to be used in determining the Net EBITDA Adjustment or
Net Interest Adjustment for such period, financial information pertaining to any
Person, property, business or asset that was related to such Included Pro Forma
Entity but that was not acquired by Company or such Subsidiary shall not be
consolidated with the relevant financial information of the Included Pro Forma
Entity and (ii) any Unrestricted Subsidiary that is redesignated as a Subsidiary
of Company during such period.
"Indebtedness", as applied to any Person, means (i) all indebtedness
of such Person for borrowed money, (ii) that portion of obligations with respect
to Capital Leases that is properly classified as a liability on a balance sheet
of such Person in conformity with GAAP, (iii) any obligation incurred by such
Person in connection with banker's acceptances and the maximum aggregate amount
from time to time available for drawing under all outstanding letters of credit
issued for the account of such Person together, without duplication, with the
amount of all honored but unreimbursed drawings thereunder, (iv) any obligation
owed for all or any part of the deferred purchase price of property or services
(excluding any such obligations incurred under ERISA), which purchase price (a)
is due more than six months from the date of incurrence of the obligation in
respect thereof and (b) would be shown on the liability side of the balance
sheet of such Person in accordance with GAAP, (v) all monetary obligations of
such Person under Hedge Agreements (it being understood that monetary
obligations under Interest Rate Agreements, Commodities Agreements and Currency
Agreements other than Hedge Agreements constitute Investments and not
Indebtedness), and (vi) all indebtedness referred to in clauses (i) through (iv)
above secured by any Lien on any property or asset owned or held by that Person
regardless of whether the indebtedness secured thereby shall have been assumed
by that Person or is nonrecourse to the credit of that Person; provided that the
term "Indebtedness" shall in no event include (X) any obligations in respect of
any Accounts Receivable Facility or (Y) any trade payables or accrued expenses
arising in the ordinary course of business.
"Indemnitee" has the meaning assigned to that term in subsection
10.3.
"Individual Seller" means ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and certain of his
family members and affiliated investment vehicles owning, in the aggregate,
approximately 30% of the Pre-Merger Shares.
22
"Intellectual Property" means all patents, trademarks, tradenames,
copyrights, technology, know-how and processes used in or necessary for the
conduct of the business of Company and its Subsidiaries as currently conducted
that are material to the condition (financial or otherwise), business or
operations of Company and its Subsidiaries, taken as a whole.
"Intercreditor Agreement" means the Intercreditor Agreement, dated
as of the Closing Date, by and among the PBGC, Administrative Agent, Collateral
Agent and Company, substantially in the form of Exhibit XVIII annexed hereto, as
such Intercreditor Agreement may thereafter be amended, modified or otherwise
supplemented from time to time.
"Interest Payment Date" means (i) with respect to any Base Rate
Loan, each March 31, June 30, September 30 and December 31 of each year,
commencing on the first such date to occur after the Closing Date, and (ii) with
respect to any LIBOR Loan, the last day of each Interest Period applicable to
such Loan; provided that, in the case of each Interest Period of longer than
three months, "Interest Payment Date" shall also include each date that is three
months, or an integral multiple thereof, after the commencement of such Interest
Period.
"Interest Period" has the meaning assigned to that term in
subsection 2.2B.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement to which Company or any of its Subsidiaries is a party.
"Interest Rate Determination Date" means (i) with respect to any
Interest Period relating to a Dollar Loan, the second Business Day prior to the
first day of such Interest Period, and (ii) with respect to any Interest Period
relating to a Sterling Loan, the first day of such Interest Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, and any successor
statute.
"Investment" means (i) any purchase or other acquisition by Company
or any of its Subsidiaries of, or of a beneficial interest in, any Securities of
any other Person (other than a Person that prior to such purchase or acquisition
was a Subsidiary of Company), (ii) any loan, advance (other than advances to
employees for moving, entertainment and travel expenses, drawing accounts and
similar expenditures in the ordinary course of business) or capital contribution
by Company or any of its Subsidiaries to any Third Party, including all
indebtedness and accounts receivable from that Third Party that are not current
assets or did not arise from sales to that Third Party in the ordinary course of
business, (iii) the designation of any Person as an Unrestricted Subsidiary, or
(iv) any monetary obligations under Interest Rate Agreements, Commodities
23
Agreements or Currency Agreements not constituting Hedge Agreements. The amount
of any Investment shall be (A) the original cost of such Investment (determined,
in the case of an Investment described in clause (iii) above, as provided in the
definition of "Subsidiary", without any adjustments for increases or decreases
in value, or write-ups, write-downs or write-offs with respect to such
Investment, minus (B) the lesser of (1) the aggregate amount of any repayments,
redemptions, dividends or distributions thereon or proceeds from the sale
thereof, in each case to the extent of Cash payments (including any Cash
received by way of deferred payment pursuant to, or monetization of, a note
receivable or otherwise, but only as and when so received) actually received by
Company or the applicable Subsidiary of Company, and (2) the aggregate amount
described in the immediately preceding clause (A).
"Issuing Lender" means, with respect to any Letter of Credit, the
Lender which agrees or is otherwise obligated to issue such Letter of Credit,
determined as provided in subsection 3.1B(ii).
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; provided
that in no event shall any corporate Subsidiary of any Person be considered to
be a Joint Venture to which such Person is a party.
"KKR" means Kohlberg Kravis ▇▇▇▇▇▇▇ & Co. L.P.
"Lender" and "Lenders" means the persons identified as "Lenders" and
listed on the signature pages of this Agreement, together with their successors
and permitted assigns pursuant to subsection 10.1, and the term "Lenders" shall
include Swing Line Lender unless the context otherwise requires; provided that
the term "Lenders", when used in the context of a particular Commitment, shall
mean Lenders having that Commitment; and provided, further that the terms
"Lender" and "Lenders", when used in the context of the making or carrying of
the Sterling Loans of any Lender, shall mean and include the Sterling Lender
Affiliate, if any, of such Lender.
"Lending Office" means, as to any Lender, the offices or offices of
such Lender or its Sterling Lender Affiliate specified as the "Dollar Lending
Office" or "Sterling Lending Office", as the case may be, on Schedule 2.1
annexed hereto, or such other office or offices as such Lender may from time to
time hereafter designate as such in a written notice delivered by such Lender to
Company and Administrative Agent.
"Letter of Credit" or "Letters of Credit" means Commercial Letters
of Credit and Standby Letters of Credit issued or to be issued by Issuing
Lenders for the account of Company pursuant to subsection 3.1.
"Letter of Credit Usage" means, as at any date of determination, the
sum of (i) the maximum aggregate amount which is or at any time thereafter may
become
24
available for drawing under all Letters of Credit then outstanding plus (ii) the
aggregate amount of all drawings under Letters of Credit honored by Issuing
Lenders and not theretofore reimbursed by Company (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to subsection
3.3B). For purposes of this definition, any amount described in clause (i) or
(ii) of the preceding sentence which is denominated in a currency other than
Dollars shall be valued based on the applicable Exchange Rate for such currency
as of the applicable date of determination.
"LIBOR" means, for any Interest Rate Determination Date with respect
to an Interest Period for a LIBOR Loan, the rate per annum determined on the
basis of the London interbank offered rate for Dollar deposits (or, in the case
of Sterling Loans, Sterling deposits) with maturities comparable to such
Interest Period as of approximately 11:00 A.M. (London time) on such Interest
Rate Determination Date as set forth on Telerate Page 3750; provided that in the
event such rate does not appear on Page 3750 (or otherwise) of the Telerate
Service, "LIBOR" for purposes of this paragraph shall be determined by reference
to (i) such other publicly available service for displaying interest rates for
deposits in the Applicable Currency as may be agreed upon by Company and
Administrative Agent or (ii) in the absence of such agreement, the arithmetic
average (rounded upward to the nearest 1/16 of one percent) of the offered
quotations, if any, to first class banks in the London interbank market for the
Applicable Currency by Reference Lenders for Dollar deposits (or, in the case of
Sterling Loans, Sterling deposits) of amounts in same day funds comparable to
the respective principal amounts of the LIBOR Loans of Reference Lenders for
which LIBOR is then being determined (which principal amount shall be deemed to
be $1,000,000 (or (pounds)1,000,000, in the case of a Sterling Loan) in the case
of any Reference Lender not making, converting to or continuing such a LIBOR
Loan) with maturities comparable to such Interest Period as of approximately
10:00 A.M. (New York time) (or 11:00 A.M. (London time), in the case of Sterling
Loans) on such Interest Rate Determination Date; provided that if any Reference
Lender fails to provide Administrative Agent with its aforementioned quotation
then LIBOR shall be determined based on the quotation(s) provided to
Administrative Agent by the other Reference Lender(s).
"LIBOR Loans" means Loans bearing interest at rates determined by
reference to LIBOR as provided in subsection 2.2A.
"Lien" means any lien, mortgage, pledge, assignment, security
interest, charge or other similar encumbrance of any kind (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, and any agreement to give any security interest) and any other similar
preferential arrangement having the practical effect of any of the foregoing.
"LLC Pledge Agreement" means the LLC Pledge Agreement executed and
delivered on the Closing Date by Company and Collateral Agent, in form and
substance satisfactory to Collateral Agent and Administrative Agent, as such LLC
Pledge
25
Agreement may thereafter be amended, supplemented or otherwise modified from
time to time.
"Loan" or "Loans" means one or more of the Tranche A Term Loans,
Tranche B Term Loans, Tranche C Term Loans, Revolving Loans or Swing Line Loans
or any combination thereof.
"Loan Documents" means this Agreement, the Notes, the Letters of
Credit (and any applications for Letters of Credit), the Guaranties and the
Collateral Documents.
"Loan Party" means each Borrower, each Subsidiary Guarantor and each
Subsidiary executing and delivering a Loan Document after the Closing Date
pursuant to subsection 6.7B, and "Loan Parties" means all such Persons,
collectively.
"MLA Reference Banks" means BTCo, Chase and BNY.
"Management Group" means, at any time, the Chairman of the Board,
the President, any Executive Vice President or Vice President, the Treasurer and
the Secretary of the Borrower at such time.
"Management Investors" means the management officers and employees
of Company and its Subsidiaries identified as Management Investors on Schedule
4.1C annexed hereto.
"Management Subscription Agreements" means the Management Stock
Subscription Agreements dated as of the Closing Date between Company and the
Management Investors providing for the retention of Pre-Merger Shares and/or the
purchase of Post-Merger Shares by the Management Investors, in each case as in
effect on the Closing Date.
"Mandatory Liquid Asset Costs" means, with respect to each Tranche A
Lender in respect of any Sterling Loans, any additional cost to such Lender of
complying with the relative reserve asset ratio required by the Bank of England
from time to time, expressed as a percentage per annum, and calculated as set
forth in Schedule 1.1 annexed hereto.
"Margin Stock" has the meaning assigned to that term in Regulation U
of the Board of Governors of the Federal Reserve System as in effect from time
to time.
"Master Pledge Agreement" means the Master Pledge Agreement executed
and delivered on the Closing Date by Company and Collateral Agent, substantially
in the form of Exhibit XV annexed hereto, as such Master Pledge Agreement may
thereafter be amended, supplemented or otherwise modified from time to time.
26
"Material Adverse Effect" means any circumstance or condition
affecting the business, assets, operations, properties or financial condition of
Company and its Subsidiaries, taken as a whole, that would materially adversely
affect (a) the ability of Loan Parties, taken as a whole, to perform their
obligations under this Agreement and the other Loan Documents, taken as a whole,
or (b) the rights and remedies of Administrative Agent and Lenders under this
Agreement and the other Loan Documents, taken as a whole.
"Material Foreign Subsidiary" means a Material Subsidiary that is
not a Domestic Subsidiary.
"Material Subsidiary" means (i) each U.K. Borrower and (ii) each
Subsidiary of Company now existing or hereafter acquired or formed by Company
which, on a consolidated basis for such Subsidiary and its Subsidiaries, (a) for
the most recent Fiscal Year accounted for more than 5% of the consolidated gross
revenues of Company and its Subsidiaries or (b) as at the end of such Fiscal
Year, was the owner of more than 5% of the consolidated total assets of Company
and its Subsidiaries.
"Merger" means the merger of Newco with and into Company in
accordance with the terms of the Merger Agreement, with Company being the
surviving corporation in such Merger.
"Merger Agreement" means that certain Agreement and Plan of Merger
by and among Company and Newco dated as of January 23, 1997, as amended as of
April 19, 1997, in the form delivered to Administrative Agent and Lenders prior
to their execution of this Agreement.
"Multiemployer Plan" means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, with respect to which Company, any of
its Subsidiaries or any ERISA Affiliate may have liability.
"Net Asset Sale Proceeds" means, with respect to any Asset Sale,
Cash payments (including any Cash received by way of deferred payment pursuant
to, or by monetization of, a note receivable or otherwise, but only as and when
so received) received from such Asset Sale, net of (i) the costs and expenses
relating to such Asset Sale, (ii) all taxes paid or estimated to be payable in
connection with such Asset Sale, (iii) payment of the outstanding principal
amount of, premium or penalty, if any, and interest on any Indebtedness (other
than the Loans) that is secured by a Lien on the stock or assets in question and
that is required to be repaid under the terms thereof as a result of such Asset
Sale and (iv) the amount of any reasonable reserves established in accordance
with GAAP against any liabilities (other than taxes described in clause (ii)
above) that are (a) associated with the assets that are the subject of such
Asset Sale and (b) retained by Company or any of its Subsidiaries; provided that
(X) in the event the amount of any taxes estimated to be payable as described in
clause (ii) above exceeds the
27
amount actually paid, Company or the applicable Subsidiary shall be deemed to
have received Net Asset Sale Proceeds in the amount of such excess on the date
such taxes are paid, and (Y) upon any subsequent reduction in the amount of any
reserve described in clause (iv) above (other than in connection with a payment
by Company or the applicable Subsidiary in respect of the applicable liability),
Company or the applicable Subsidiary shall be deemed to have received Net Asset
Sale Proceeds on the date and in the amount of such reduction.
"Net EBITDA Adjustment" means, for any period, an amount equal to
(i) the sum of the aggregate of the amounts of Consolidated Adjusted EBITDA for
any Included Pro Forma Entities (calculated for the entire such period for each
such Included Pro Forma Entity as if such Included Pro Forma Entity had become
an Included Pro Forma Entity on the first day of such period) minus (ii) the sum
of the aggregate of the amounts of Consolidated Adjusted EBITDA for any Excluded
Pro Forma Entities (calculated for the entire such period for each such Excluded
Pro Forma Entity, including any portion thereof prior to the date on which it
became an Excluded Pro Forma Entity).
"Net Interest Adjustment" means, for any period, an amount equal to
(i) the sum of the aggregate of the amounts of Consolidated Interest Expense for
any Included Pro Forma Entities (calculated for the entire such period for each
such Included Pro Forma Entity, including any portion thereof prior to the date
on which it became an Included Pro Forma Entity, in each case on a pro forma
basis as if any Indebtedness of such Included Pro Forma Entity that was
incurred, assumed or prepaid in connection with the transaction pursuant to
which it became an Included Pro Forma Entity had been incurred, assumed or
prepaid on the first day of such period) minus (ii) the sum of the aggregate of
the amounts of Consolidated Interest Expense for any Excluded Pro Forma Entities
(calculated for the entire such period for each such Excluded Pro Forma Entity,
including any portion thereof prior to the date on which it became an Excluded
Pro Forma Entity).
"Newco" means NXS Acquisition Corp. a Delaware corporation existing
prior to the Merger.
"Newco Equity Amount" has the meaning assigned to that term in the
recitals to this Agreement.
"New Sub Debt" means the $240,000,000 in aggregate principal amount
of 97/8% Senior Subordinated Notes due 2007 of Company issued pursuant to the
New Sub Debt Indenture.
"New Sub Debt Indenture" means the indenture pursuant to which the
New Sub Debt is issued, as such indenture may be amended from time to time.
28
"Non-Excluded Tax" has the meaning assigned to that term in
subsection 2.7A.
"Notes" means one or more of the Tranche A Term Notes, Tranche B
Term Notes, Tranche C Term Notes, Revolving Notes or Swing Line Note or any
combination thereof.
"Notice of Borrowing" means a notice substantially in the form of
Exhibit I annexed hereto delivered by the applicable Borrower to Administrative
Agent pursuant to subsection 2.1B with respect to a proposed borrowing.
"Notice of Conversion/Continuation" means a notice substantially in
the form of Exhibit II annexed hereto delivered by the applicable Borrower to
Administrative Agent pursuant to subsection 2.2D with respect to a proposed
conversion or continuation of the applicable basis for determining the interest
rate with respect to the Loans specified therein.
"Notice of Request for Issuance of Letter of Credit" means a notice
substantially in the form of Exhibit III annexed hereto delivered by Company to
Administrative Agent pursuant to subsection 3.1B(i) with respect to the proposed
issuance of a Letter of Credit.
"Obligations" means all monetary obligations of every nature of each
Loan Party from time to time owed to Agents, Lenders or any of them under the
Loan Documents, whether for principal, interest, reimbursement of amounts drawn
under Letters of Credit, fees, expenses, indemnification or otherwise.
"Officer's Certificate" means, as applied to any corporation, a
certificate executed on behalf of such corporation by its chairman of the board
(if an officer), its president, one of its vice presidents, its chief financial
officer, or its treasurer.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"Pension Plan" means a pension plan as defined in Section 3(2) of
ERISA (other than a Multiemployer Plan), with respect to which Company, any of
its Subsidiaries or any ERISA Affiliate may have any liability.
"Permitted Encumbrances" means the following types of Liens:
(i) Liens for taxes, fees, assessments or other governmental charges
which are not delinquent or remain payable without penalty, or to the extent
that payment thereof is otherwise not, at the time, required by subsection 6.3;
29
(ii) Liens in respect of property or assets imposed by law, such as
carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's or
other similar Liens arising in the ordinary course of business, in each case so
long as such Liens do not, individually or in the aggregate, have a Material
Adverse Effect;
(iii) Liens (other than any Lien imposed pursuant to Section
401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA) incurred or
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and return-of-money bonds
and other similar obligations incurred in the ordinary course of business
(exclusive of obligations in respect of payments for borrowed money);
(iv) Liens incurred in the ordinary course of business on securities
to secure repurchase and reverse repurchase obligations in respect of such
securities;
(v) Liens consisting of judgment or judicial attachment liens in
circumstances not constituting an Event of Default under subsection 8.8;
(vi) easements, rights-of-way, restrictions, minor defects or
irregularities of title and other similar encumbrances not interfering in any
material respect with the business of Company and its Subsidiaries, taken as a
whole;
(vii) Liens securing obligations in respect of Capital Leases on the
assets subject to such Capital Leases; provided that such Capital Leases are
otherwise permitted hereunder.
(viii) Liens arising solely by virtue of (a) any statutory or common
law provision relating to bankers' liens, rights of set-off or similar rights
and remedies with respect to deposit accounts or other funds maintained with a
creditor depository institution or (b) any contractual netting arrangement with
respect to deposit accounts maintained by any Subsidiaries of Company in the
United Kingdom, to the extent such arrangement
secures the repayment of any overdraft charged against any such account on a net
credit/debit balance basis with the other such accounts; provided that (in the
case of both clause (a) and (b) above) the applicable deposit account is not a
cash collateral account;
(ix) any interest or title of a lessor, or secured by a lessor's
interest under, any lease permitted by this Agreement;
(x) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
30
(xi) Liens on goods the purchase price of which is financed by a
Commercial Letter of Credit issued for the account of Company or any of its
Subsidiaries; provided that such Lien secures only the obligations of Company or
such Subsidiary in respect of such Commercial Letter of Credit to the extent
permitted under this Agreement;
(xii) leases or subleases granted to others not interfering in any
material respect with the business of Company and its Subsidiaries, taken as a
whole; and
(xiii) Liens created or deemed to exist in connection with an
Accounts Receivable Facility, to the extent that any such Lien relates to
accounts receivables subject to such program.
"Person" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which Company or any of its Subsidiaries sponsors or maintains, or to
which Company or any of its Subsidiaries makes, is making or is obligated to
make contributions, or to which Company or any of its Subsidiaries may have any
liability, and includes any Pension Plan.
"Pledge Agreements" means the Master Pledge Agreement, the LLC
Pledge Agreement and any pledge agreements or other similar instruments that
Company may enter into from time to time on or after the Closing Date with
respect to any Material Foreign Subsidiary pursuant to the terms of the Master
Pledge Agreement, as such agreements or instruments may thereafter be amended,
supplemented or otherwise modified from time to time.
"Pledged Collateral" means, collectively, the "Pledged Collateral"
as defined in each of the Master Pledge Agreement and the LLC Pledge Agreement.
"Post-Merger Shares" means the Class A common stock of Company, par
value $0.001 per share, outstanding immediately after consummation of the
Merger.
"Potential Event of Default" means a condition or event that, after
notice or lapse of time or both, would constitute an Event of Default.
31
"Pre-Merger Shares" means the Class A common stock of Company, par
value $0.001 per share, outstanding immediately prior to the consummation of the
Merger.
"Prime Rate" means the rate that BTCo announces from time to time as
its prime lending rate, as in effect from time to time. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. BTCo or any other Lender may make commercial
loans or other loans at rates of interest at, above or below the Prime Rate.
"Pro Forma Adjustment" means, for any period with respect to any
Included Pro Forma Entity (other than an Unrestricted Subsidiary redesignated as
a Subsidiary of Company, for which there shall be no Pro Forma Adjustment), the
pro forma increase or decrease in the Consolidated Adjusted EBITDA of such
Included Pro Forma Entity that Company in good faith predicts will occur as a
result of reasonably identifiable and supportable net cost savings or additional
net costs or a reasonably identifiable and supportable increase in sales volume,
as the case may be, that will be realizable during such period by combining the
operations of such Included Pro Forma Entity with the operations of Company and
its Subsidiaries; provided that, so long as such net cost savings or additional
net costs or increase in sales volume will be realizable at any time during such
period it shall be assumed, for purposes of projecting such pro forma increase
or decrease in such Consolidated Adjusted EBITDA, that such net cost savings or
additional net costs or increase in sales volume will be realizable during the
entire such period; and provided, further that any such pro forma increase or
decrease in such Consolidated Adjusted EBITDA shall be without duplication of
any net cost savings or additional net costs or increase in sales volume
actually realized during such period and already included in such Consolidated
Adjusted EBITDA.
"Pro Forma Adjustment Certificate" shall mean a certificate of a
Responsible Officer of Company delivered pursuant to subsection 6.1(xii) setting
forth the information described in clause (d) of subsection 6.1(iii).
"Pro Rata Share" means (i) with respect to all payments,
computations and other matters relating to the Tranche A Term Loan Commitment or
the Tranche A Term Loans of any Lender, the percentage obtained by dividing (x)
the Tranche A Term Loan Exposure of that Lender by (y) the aggregate Tranche A
Term Loan Exposure of all Lenders, (ii) with respect to all payments,
computations and other matters relating to the Tranche B Term Loan Commitment or
the Tranche B Term Loan of any Lender, the percentage obtained by dividing (x)
the Tranche B Term Loan Exposure of that Lender by (y) the aggregate Tranche B
Term Loan Exposure of all Lenders, (iii) with respect to all payments,
computations and other matters relating to the Tranche C Term Loan Commitment or
the Tranche C Term Loan of any Lender, the percentage obtained by dividing (x)
the Tranche C Term Loan Exposure of that Lender by (y) the aggregate Tranche C
Term Loan Exposure of all Lenders, (iv) with respect to all payments,
32
computations and other matters relating to the Revolving Loan Commitment or the
Revolving Loans of any Lender or any Letters of Credit issued or participations
therein purchased by any Lender or any participations in any Swing Line Loans
purchased by any Lender, the percentage obtained by dividing (x) the Revolving
Loan Exposure of that Lender by (y) the aggregate Revolving Loan Exposure of all
Lenders, and (v) for all other purposes with respect to each Lender, the
percentage obtained by dividing (x) the sum of the Tranche A Term Loan Exposure
of that Lender plus the Tranche B Term Loan Exposure of that Lender plus the
Tranche C Term Loan Exposure of that Lender plus the Revolving Loan Exposure of
that Lender by (y) the sum of the aggregate Tranche A Term Loan Exposure of all
Lenders plus the aggregate Tranche B Term Loan Exposure of all Lenders plus the
aggregate Tranche C Term Loan Exposure of all Lenders plus the aggregate
Revolving Loan Exposure of all Lenders, in any such case as the applicable
percentage may be adjusted by assignments permitted pursuant to subsection 10.1.
The initial Pro Rata Share of each Lender for purposes of each of clauses (i),
(ii), (iii), (iv) and (v) of the preceding sentence is set forth opposite the
name of that Lender in Schedule 2.1 annexed hereto.
"Recapitalization" means, collectively, (i) the Merger, (ii) the
repurchase of the Existing Senior Notes and the Existing Subordinated Notes and
the repayment of all amounts outstanding under the Existing Credit Agreement,
(iii) the amendment of the Existing Subordinated Note Indenture pursuant to the
Consent Solicitation, (iv) the transactions contemplated by the Stockholders
Agreement, and (v) the related transactions in respect of management stock,
including the cancellation of options for the purchase of Pre-Merger Shares held
by certain members of management, the retention and purchase of Post-Merger
Shares by certain members of management and the issuance to certain members of
management of options for the purchase of Post-Merger Shares.
"Recapitalization Financing Requirements" means the aggregate of all
amounts necessary (i) to pay the aggregate cash consideration payable to all
holders of Pre-Merger Shares pursuant to the Merger Agreement upon consummation
of the Merger, (ii) to repurchase the Existing Senior Notes and the Existing
Subordinated Notes and to repay all Indebtedness outstanding under the Existing
Credit Agreement, and (iii) to pay Transaction Costs.
"Receivables Fees" means distributions or payments made directly or
by means of discounts with respect to any participation interests issued or sold
in connection with, and other fees paid in connection with, any Accounts
Receivable Facility.
"Reference Lenders" means BTCo, Chase and BNY.
"Refinancing Sub Debt" means Indebtedness of Company issued in
exchange for, or the proceeds of which are used to repurchase, redeem, defease
or otherwise prepay or retire (collectively, to "Refinance" or a "Refinancing"),
New Sub Debt; provided that (i) the aggregate principal amount of such
Indebtedness shall not
33
exceed the sum of (a) the aggregate principal amount of New Sub Debt thereby
Refinanced plus (b) the amount of any tender premium, call premium or similar
premium (any such premium being a "Refinancing Premium") paid by Company in
connection with such Refinancing, (ii) such Indebtedness is unsecured and is not
guarantied by any Subsidiary of Company, and (iii) the terms of such
Indebtedness (including the maturity, amortization schedule, covenants,
defaults, remedies, subordination provisions and other material terms thereof)
shall be no less favorable in any material respect to Lenders than the other
terms of the New Sub Debt.
"Refinancing Sub Debt Indenture" means the Indenture pursuant to
which any Refinancing Sub Debt is issued, as such indenture may be amended from
time to time.
"Refunded Swing Line Loans" has the meaning assigned to that term in
subsection 2.1A(v).
"Register" has the meaning assigned to that term in subsection 2.1D.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Reimbursement Date" has the meaning assigned to that term in
subsection 3.3B.
"Related Agreements" means, collectively, the Merger Agreement, the
Debt Tender Offer Materials, the Stockholders Agreement and the New Sub Debt
Indenture.
"Requisite Class Lenders" means, at any time of determination (i)
for the Class of Lenders having Revolving Loan Exposure, Lenders having or
holding more than 50% of the aggregate Revolving Loan Exposure of all Lenders,
(ii) for the Class of Lenders having Tranche A Term Loan Exposure, Lenders
having or holding more than 50% of the aggregate Tranche A Term Loan Exposure of
all Lenders, and (iii) for the Class of Lenders having Tranche B Term Loan
Exposure and/or Tranche C Term Loan Exposure, Lenders having or holding more
than 50% of the sum of the aggregate Tranche B Term Loan Exposure of all Lenders
plus the aggregate Tranche C Term Loan Exposure of all Lenders.
"Requisite Lenders" means Lenders having or holding more than 50% of
the sum of the aggregate Tranche A Term Loan Exposure of all Lenders plus the
aggregate Tranche B Term Loan Exposure of all Lenders plus the aggregate Tranche
C Term Loan Exposure of all Lenders plus the aggregate Revolving Loan Exposure
of all Lenders.
34
"Responsible Officer" means, with respect to any Person, its chief
executive officer, president, or any vice president, managing director,
treasurer, controller or other officer of such Person having substantially the
same authority and responsibility; provided that, with respect to compliance
with financial covenants, "Responsible Officer" means the chief financial
officer, treasurer or controller of Company, or any other officer of Company
having substantially the same authority and responsibility.
"Restricted Acquisition Subsidiary" means (i) a Subsidiary of
Company (other than any Subsidiary of either U.K. Borrower, for so long as
either U.K. Borrower has any Obligations outstanding) that is (a) first created
or acquired by Company or any of its Subsidiaries after the Closing Date in
connection with an Acquisition and (b) designated as a "Restricted Acquisition
Subsidiary" pursuant to a written notice delivered by Company to Administrative
Agent prior to the consummation of such Acquisition; provided that Company may,
by written notice to Administrative Agent, redesignate any Restricted
Acquisition Subsidiary as a Subsidiary that is not a Restricted Acquisition
Subsidiary so long as, after giving effect to the aggregate principal amount of
any outstanding Indebtedness of such Restricted Acquisition Subsidiary that was
originally incurred pursuant to subsection 7.1(x) as if such Indebtedness were
being incurred by such Restricted Acquisition Subsidiary as of the date of such
redesignation, no Event of Default or Potential Event of Default shall have
occurred and be continuing or would result therefrom and (ii) any Subsidiary of
a Restricted Acquisition Subsidiary described in the foregoing clause (i).
"Restricted Junior Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
of Company now or hereafter outstanding, except a dividend payable solely in
shares of common stock of Company or payable solely in shares of that class of
stock to the holders of that class, (ii) any redemption, retirement, sinking
fund or similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of stock of Company now or hereafter
outstanding, (iii) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class
of stock of Company now or hereafter outstanding, and (iv) any payment or
prepayment of principal of, or redemption, purchase, retirement, defeasance
(including in-substance or legal defeasance), sinking fund or similar payment
with respect to, any Subordinated Indebtedness.
"Revolving Loan Commitment" means the commitment of a Lender to make
Revolving Loans to Company pursuant to subsection 2.1A(iv), and "Revolving Loan
Commitments" means such commitments of all Lenders in the aggregate.
"Revolving Loan Commitment Termination Date" means the seventh
anniversary of the Closing Date or such earlier date on which the Revolving Loan
Commitments may be terminated pursuant to subsection 2.4B or Section 8.
35
"Revolving Loan Exposure" means, with respect to any Lender as of
any date of determination (i) prior to the termination of the Revolving Loan
Commitments, that Lender's Revolving Loan Commitment and (ii) after the
termination of the Revolving Loan Commitments, the sum, without duplication, of
(a) the aggregate outstanding principal amount of the Revolving Loans of that
Lender plus (b) in the event that Lender is an Issuing Lender, the aggregate
Letter of Credit Usage in respect of all Letters of Credit issued by that Lender
(in each case net of any participations purchased by other Lenders in such
Letters of Credit or any unreimbursed drawings thereunder) plus (c) the
aggregate amount of all participations purchased by that Lender in any
outstanding Letters of Credit or any unreimbursed drawings under any Letters of
Credit plus (d) in the case of Swing Line Lender, the aggregate outstanding
principal amount of all Swing Line Loans (net of any participations therein
purchased by other Lenders) plus (e) the aggregate amount of all participations
purchased by that Lender in any outstanding Swing Line Loans, in each case
without duplication.
"Revolving Loans" means the Loans made by Lenders to Company
pursuant to subsection 2.1A(iv).
"Revolving Notes" means (i) any promissory notes of Company issued
pursuant to subsection 2.1E to evidence the Revolving Loans of any Lenders and
(ii) any promissory notes issued by Company pursuant to the last sentence of
subsection 10.1B(i) in connection with assignments of the Revolving Loan
Commitments and Revolving Loans of any Lenders, in each case substantially in
the form of Exhibit VII annexed hereto, as they may be amended, supplemented or
otherwise modified from time to time.
"SEC" means the Securities and Exchange Commission or any successor
thereto.
"Securities" means any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
"Standby Letter of Credit" means any standby letter of credit or
similar instrument issued for the purpose of supporting (i) Indebtedness of
Company or any of its Subsidiaries in respect of industrial revenue or
development bonds or financings, (ii) workers' compensation liabilities of
Company or any of its Subsidiaries, (iii) the obligations of third party
insurers of Company or any of its Subsidiaries arising by virtue
36
of the laws of any jurisdiction requiring third party insurers, (iv) obligations
with respect to Capital Leases or operating leases of Company or any of its
Subsidiaries, and (v) other lawful corporate purposes of Company or any of its
Subsidiaries.
"Sterling" and the sign "(pounds)" mean the lawful currency from
time to time of the United Kingdom.
"Sterling Lender Affiliate" has the meaning assigned to that term in
subsection 2.1G.
"Sterling Loans" means Loans made to U.K. Borrowers denominated and
payable in Sterling.
"Sterling Notice Office" means the office of Administrative Agent
located at BT Services Ireland Limited, Abbey Court, Irish Life Centre, ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇; telephone: 011 353
▇ ▇▇▇-▇▇▇▇; facsimile: 011 353 1 805-1708; or such other office of
Administrative Agent as may from time to time hereafter be designated as such in
a written notice delivered by Administrative Agent to Company and each Lender.
"Stockholders Agreement" means that certain Stockholders Agreement
dated as of January 23, 1997 by and among NXS I, L.L.C. and the Persons listed
on Schedule 1 annexed thereto, in the form delivered to Administrative Agent and
Lenders prior to their execution of this Agreement and as such agreement may be
amended from time to time thereafter.
"Subordinated Indebtedness" means (i) the Indebtedness of Company
evidenced by the Existing Subordinated Notes, (ii) the Indebtedness of Company
evidenced by the New Sub Debt, and (iii) the Indebtedness of Company evidenced
by any Refinancing Sub Debt.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof; provided that, with respect to Company or any of its Subsidiaries, the
term "Subsidiary" shall not include any Unrestricted Subsidiary or any
special-purpose entity that is a party to any Accounts Receivable Facility; and
provided, further that Company shall be permitted from time to time to (i)
designate any Unrestricted Subsidiary as a "Subsidiary" of Company hereunder by
written notice to Administrative Agent, so long as
37
(a) no Event of Default or Potential Event of Default shall have occurred and be
continuing or shall be caused thereby and (b) the provisions of subsection 6.7
shall have been complied with in respect of such newly-designated Subsidiary, or
(ii) designate any Subsidiary of Company that is formed or acquired after the
Closing Date (other than a U.K. Borrower or any Subsidiary of a U.K. Borrower,
for so long as either U.K. Borrower has any Obligations outstanding), or any
Person that, as a result of the acquisition after the Closing Date by Company or
any of its Subsidiaries of any equity Securities of such Person, would otherwise
be a Subsidiary of Company hereunder, to be an "Unrestricted Subsidiary" by
written notice to Administrative Agent so long as (1) after giving effect to
such designation as an Investment in such Unrestricted Subsidiary (calculated as
an amount equal to the sum of (X) the net worth of the Subsidiary or other
Person so designated (the "Designated Person") immediately prior to such
designation (such net worth to be calculated, in the case of a Designated Person
that is currently a Subsidiary of Company, without regard to any Obligations of
such Subsidiary under the Subsidiary Guaranty) and (Y) the aggregate principal
amount of any Indebtedness owed by the Designated Person to Company or any of
its Subsidiaries immediately prior to such designation, all calculated, except
as set forth in the parenthetical to clause (X) above, on a consolidated basis
in accordance with GAAP), Company shall be in compliance with the provisions of
subsection 7.3(vi), (2) no Subsidiary is a Subsidiary of such Unrestricted
Subsidiary, (3) on or promptly after the date of designation of such Person as
such Unrestricted Subsidiary, such Unrestricted Subsidiary shall enter into a
tax sharing agreement with Company that provides (as determined by Company in
good faith) for an appropriate allocation of tax liabilities and benefits, and
(4) no recourse whatsoever (whether by contract or by operation of law or
otherwise) may be had to Company or any of its Subsidiaries or any of their
respective properties or assets for any obligations of such Unrestricted
Subsidiary except to the extent that the aggregate maximum amount of such
recourse constitutes (X) an Investment permitted under subsection 7.3(vi) or (Y)
a Guarantee Obligation permitted under subsection 7.4(vii).
"Subsidiary Guarantor" means any Domestic Subsidiary that executes
and delivers a counterpart of the Subsidiary Guaranty on the Closing Date or
from time to time thereafter pursuant to subsection 6.7.
"Subsidiary Guaranty" means the Subsidiary Guaranty executed and
delivered by existing Domestic Subsidiaries on the Closing Date and to be
executed and delivered by additional Domestic Subsidiaries from time to time
thereafter in accordance with subsection 6.7A, substantially in the form of
Exhibit XVI annexed hereto, as such Subsidiary Guaranty may thereafter be
amended, supplemented or otherwise modified from time to time.
"Supermajority Class Lenders" means, at any time of determination
(i) for the Class of Lenders having Revolving Loan Exposure, Lenders having or
holding more than 66-2/3% of the aggregate Revolving Loan Exposure of all
Lenders, (ii) for the Class of Lenders having Tranche A Term Loan Exposure,
Lenders having or holding more than
38
66-2/3% of the aggregate Tranche A Term Loan Exposure of all Lenders, and (iii)
for the Class of Lenders having Tranche B Term Loan Exposure and/or Tranche C
Term Loan Exposure, Lenders having or holding more than 66-2/3% of the sum of
the aggregate Tranche B Term Loan Exposure of all Lenders plus the aggregate
Tranche C Term Loan Exposure of all Lenders.
"Swing Line Lender" means BTCo, or any Person serving as a successor
Administrative Agent hereunder, in its capacity as Swing Line Lender hereunder.
"Swing Line Loan Commitment" means the commitment of Swing Line
Lender to make Swing Line Loans to Company pursuant to subsection 2.1A(v).
"Swing Line Loans" means the Loans made by Swing Line Lender to
Company pursuant to subsection 2.1A(v).
"Swing Line Note" means (i) any promissory note of Company issued
pursuant to subsection 2.1E to evidence the Swing Line Loans of Swing Line
Lender and (ii) any promissory note issued by Company to any successor
Administrative Agent and Swing Line Lender pursuant to the last sentence of
subsection 9.5B, in each case substantially in the form of Exhibit VIII annexed
hereto, as it may be amended, supplemented or otherwise modified from time to
time.
"Syndication Agent" has the meaning assigned to that term in the
introduction to this Agreement.
"Tax" or "Taxes" means any present or future tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature and whatever called,
by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld
or assessed; provided that "Tax on the overall net income" of a Person shall be
construed as a reference to a tax imposed by the jurisdiction in which that
Person is organized or in which that Person's principal office (and/or, in the
case of a Lender, its applicable Lending Office) is located or in which that
Person (and/or, in the case of a Lender, its applicable Lending Office) is
deemed to be doing business on all or part of the net income, profits or gains
(whether worldwide, or only insofar as such income, profits or gains are
considered to arise in or to relate to a particular jurisdiction, or otherwise)
of that Person (and/or, in the case of a Lender, its applicable Lending Office).
"Term Loans" means, collectively, the Tranche A Term Loans, the
Tranche B Term Loans and the Tranche C Term Loans.
"Third Party" means any Person other than Company or any of its
Subsidiaries.
39
"Total Utilization of Revolving Loan Commitments" means, as at any
date of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans (other than Revolving Loans made for the purpose of
repaying any Refunded Swing Line Loans or reimbursing the applicable Issuing
Lender for any amount drawn under any Letter of Credit but not yet so applied)
plus (ii) the aggregate principal amount of all outstanding Swing Line Loans
plus (iii) the Letter of Credit Usage.
"Tranche A Lender" means a Lender that has Tranche A Term Loan
Exposure; provided, that if the Sterling Loans of such Lender are made or
carried by a Sterling Lender Affiliate of such Lender, the term "Tranche A
Lender" shall mean the Sterling Lender Affiliate of such Lender.
"Tranche A Term Loan Commitment" means the commitment of a Lender to
make Tranche A Term Loans to Company and to U.K. Borrowers pursuant to
subsection 2.1A(i), and "Tranche A Term Loan Commitments" means such commitments
of all Lenders in the aggregate.
"Tranche A Term Loan Exposure" means, with respect to any Lender as
of any date of determination (i) prior to the funding of the Tranche A Term
Loans, that Lender's Tranche A Term Loan Commitment, (ii) after the initial
funding of the Tranche A Term Loans but before the date (the "Tranche A Term
Loan Commitment Termination Date") that is 35 days after the Closing Date or (if
earlier) the date on which the Delayed-Draw Term Loans are made, the outstanding
principal amount of the Tranche A Term Loans of that Lender plus that portion of
the Tranche A Term Loan Commitment of that Lender that equals that Lender's Pro
Rata Share of the DelayedDraw Term Loans requested by Company pursuant to the
proviso to the definition thereof, and (iii) after the Tranche A Term Loan
Commitment Termination Date, the outstanding principal amount of the Tranche A
Term Loans of that Lender.
"Tranche A Term Loans" means the Loans made by Lenders to Company
and U.K. Borrowers pursuant to subsection 2.1A(i).
"Tranche A Term Notes" means any promissory notes of Company or U.K.
Borrowers issued pursuant to subsection 2.1E to evidence the Tranche A Term
Loans of any Lenders, substantially in the form of Exhibit IV-A annexed hereto
in the case of Dollar Loans, and substantially in the form of Exhibit IV-B
annexed hereto in the case of Sterling Loans, as any such note may be amended,
supplemented or otherwise modified from time to time.
"Tranche B Term Loan Commitment" means the commitment of a Lender to
make a Tranche B Term Loan to Company pursuant to subsection 2.1A(ii), and
"Tranche B Term Loan Commitments" means such commitments of all Lenders in the
aggregate.
40
"Tranche B Term Loan Exposure" means, with respect to any Lender as
of any date of determination (i) prior to the funding of the Tranche B Term
Loans, that Lender's Tranche B Term Loan Commitment and (ii) after the funding
of the Tranche B Term Loans, the outstanding principal amount of the Tranche B
Term Loan of that Lender.
"Tranche B Term Loans" means the Loans made by Lenders to Company
pursuant to subsection 2.1A(ii).
"Tranche B Term Notes" means any promissory notes of Company issued
pursuant to subsection 2.1E to evidence the Tranche B Term Loans of any Lenders,
substantially in the form of Exhibit V annexed hereto, as they may be amended,
supplemented or otherwise modified from time to time.
"Tranche C Term Loan Commitment" means the commitment of a Lender to
make a Tranche C Term Loan to Company pursuant to subsection 2.1A(iii), and
"Tranche C Term Loan Commitments" means such commitments of all Lenders in the
aggregate.
"Tranche C Term Loan Exposure" means, with respect to any Lender as
of any date of determination (i) prior to the funding of the Tranche C Term
Loans, that Lender's Tranche C Term Loan Commitment and (ii) after the funding
of the Tranche C Term Loans, the outstanding principal amount of the Tranche C
Term Loan of that Lender.
"Tranche C Term Loans" means the Loans made by Lenders to Company
pursuant to subsection 2.1A(iii).
"Tranche C Term Notes" means any promissory notes of Company issued
pursuant to subsection 2.1E to evidence the Tranche C Term Loans of any Lenders,
substantially in the form of Exhibit VI annexed hereto, as they may be amended,
supplemented or otherwise modified from time to time.
"Transaction Costs" means the fees, costs and expenses payable by
Company in connection with the transactions contemplated by the Loan Documents,
the Related Agreements and the amendment of the Existing A/R Facility on or
before the Closing Date.
"Type" means, as applied to any Loan, whether such Loan is a Tranche
A Term Loan, a Tranche B Term Loan, a Tranche C Term Loan, a Revolving Loan or a
Swing Line Loan.
"UCC" means the Uniform Commercial Code (or any similar or
equivalent legislation) as in effect in any applicable jurisdiction.
41
"U.K. Borrower" means each of UK Holding and ACI, and "U.K.
Borrowers" means UK Holding and ACI, collectively.
"UK Holding" has the meaning assigned to that term in the
introduction to this Agreement.
"U.K. Qualifying Bank" means a bank, trust or other financial
institution which (i) is a "bank" as defined in Section 840A of the Income and
Corporation Taxes Act 1988 (or any statutory re-enactment or modification
thereof in substantially the same form and context as at June 21, 1996) which is
within the charge to United Kingdom corporation tax as regards interest payable
or paid to it in respect of Sterling Loans under this Agreement; or (ii) if at
any time Section 349 or Section 840A of the Income and Corporation Taxes Act
1988 (or a statutory re-enactment or modification thereof, in substantially the
same form and context as at the date hereof) shall not at any time continue in
full force and effect, is a bank carrying on through its Sterling Lending Office
(as defined in the definition of "Lending Office") for the purposes of this
Agreement a bona fide banking business in the United Kingdom which is within the
charge to United Kingdom corporation tax as regards any interest payable or paid
to it in respect of Sterling Loans under this Agreement.
"Unfunded Pension Liability" means, with respect to any Pension
Plan, the amount of unfunded benefit liabilities of such Pension Plan as defined
in Section 4001(a)(18) of ERISA.
"United Kingdom" means the United Kingdom of Great Britain and
Northern Ireland.
"Unreinvested Asset Sale Proceeds" means that portion, if any, of
any Net Asset Sale Proceeds that shall not have been reinvested by Company and
its Subsidiaries in the business of Company and its Subsidiaries within (i) two
years after the receipt by Company or any of its Subsidiaries of such Net Asset
Sale Proceeds, in the case of an Asset Sale consisting of the issuance of
capital stock by any of Company's Subsidiaries to a Third Party or (ii) one year
after the receipt by Company or any of its Subsidiaries of such Net Asset Sale
Proceeds, in the case of any other Asset Sale.
"Unrestricted Subsidiary" means any corporate Subsidiary of Company
(determined without giving effect to the provisos set forth in the definition of
"Subsidiary") that is formed or acquired after the Closing Date and that is
designated by Company as an "Unrestricted Subsidiary" as provided in the
definition of "Subsidiary".
"Voting Stock" means, with respect to any Person, Securities of such
Person having ordinary voting power (without regard to the occurrence of any
contingency) to vote in the election of directors of such Person.
42
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under
Agreement.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. All computations made for purposes of
determining any Applicable Leverage Ratio or any amount of Consolidated Excess
Cash Flow or for purposes of determining compliance with any of the provisions
of Section 7, including any related computations of amounts represented by terms
defined in subsection 1.1, shall utilize accounting principles and policies in
effect at the time of preparation of, and consistent with those used to prepare,
the historical financial statements of Company and its Subsidiaries described in
subsection 5.3. Financial statements and other information required to be
delivered by Company to Lenders pursuant to clauses (i), (ii) and (ix) of
subsection 6.1 shall be prepared in accordance with GAAP as in effect at the
time of such preparation; provided that if any of the computations described in
the immediately preceding sentence shall at any time utilize accounting
principles and policies different from those utilized in preparing the financial
statements referred to in this sentence, such financial statements shall be
delivered together with reconciliation worksheets showing in reasonable detail
the differences that would result in such computations if the accounting
principles and policies utilized in preparing such financial statements were
utilized in making such computations.
1.3 Other Definitional Provisions and Rules of Construction.
A. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference.
B. References to "Sections" and "subsections" shall be to Sections
and subsections, respectively, of this Agreement unless otherwise specifically
provided.
C. The use in any of the Loan Documents of the word "include" or
"including", when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or
matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
43
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments; Making of Loans; the Register; Notes.
A. Commitments. Subject to the terms and conditions of this Agreement and
in reliance upon the representations and warranties of Borrowers herein set
forth, each Lender hereby severally agrees to make the Loans described in
subsections 2.1A(i), 2.1A(ii), 2.1A(iii) and 2.1A(iv), and Swing Line Lender
hereby agrees to make the Loans described in subsection 2.1A(v).
(i) Tranche A Term Loans. Each Lender severally agrees (a) to lend
to Company and U.K. Borrowers on the Closing Date (in the case of Tranche
A Term Loans other than Delayed-Draw Term Loans) and (b) to lend to
Company within 35 days after the Closing Date (in the case of Delayed-Draw
Term Loans) an aggregate amount not exceeding its Pro Rata Share of the
aggregate amount of the Tranche A Term Loan Commitments to be used for the
purposes identified in subsection 2.5A. Loans made to U.K. Borrowers shall
be made by Lenders in accordance with their respective Pro Rata Shares and
shall be denominated and payable in Sterling, and the aggregate amount of
such Loans shall not exceed (x) in the case of Loans made to UK Holding,
(pounds)12,499,237.85 and (y) in the case of Loans made to ACI,
(pounds)21,645,021.65. The original amount of each Lender's Tranche A Term
Loan Commitment is set forth opposite its name on Schedule 2.1 annexed
hereto and the aggregate amount of the Tranche A Term Loan Commitments (1)
to make Dollar Loans is $294,000,000 and (2) to make Sterling Loans is
(pounds)34,144,259.50. Each Lender's Tranche A Term Loan Commitment shall
expire immediately and without further action on June 30, 1997 if the
initial Tranche A Term Loans are not made on or before that date, and each
Lender's Tranche A Term Loan Commitment in respect of the Delayed-Draw
Term Loans shall expire immediately and without further action on the date
that is 35 days after the Closing Date in the event the Delayed-Draw Term
Loans are not made on or before that date. Company may make only two
borrowings, and each U.K. Borrower may make only one borrowing, under the
Tranche A Term Loan Commitments. Amounts borrowed under this subsection
2.1A(i) and subsequently repaid or prepaid may not be reborrowed.
(ii) Tranche B Term Loans. Each Lender severally agrees to lend to
Company on the Closing Date an amount not exceeding its Pro Rata Share of
the aggregate amount of the Tranche B Term Loan Commitments to be used for
the purposes identified in subsection 2.5A. The original amount of each
Lender's Tranche B Term Loan Commitment is set forth opposite its name on
Schedule 2.1 annexed hereto and the aggregate amount of the Tranche B Term
Loan Commitments is $200,000,000. Each Lender's Tranche B Term Loan
Commitment shall expire immediately and without further action on June 30,
1997 if the Tranche B Term Loans are not made on or before that date.
Company may make only one
44
borrowing under the Tranche B Term Loan Commitments. Amounts borrowed
under this subsection 2.1A(ii) and subsequently repaid or prepaid may not
be reborrowed.
(iii) Tranche C Term Loans. Each Lender severally agrees to lend to
Company on the Closing Date an amount not exceeding its Pro Rata Share of
the aggregate amount of the Tranche C Term Loan Commitments to be used for
the purposes identified in subsection 2.5A. The original amount of each
Lender's Tranche C Term Loan Commitment is set forth opposite its name on
Schedule 2.1 annexed hereto and the aggregate amount of the Tranche C Term
Loan Commitments is $200,000,000. Each Lender's Tranche C Term Loan
Commitment shall expire immediately and without further action on June 30,
1997 if the Tranche C Term Loans are not made on or before that date.
Company may make only one borrowing under the Tranche C Term Loan
Commitments. Amounts borrowed under this subsection 2.1A(iii) and
subsequently repaid or prepaid may not be reborrowed.
(iv) Revolving Loans. Each Lender severally agrees, subject to the
limitations set forth below with respect to the maximum amount of
Revolving Loans permitted to be outstanding from time to time, to lend to
Company from time to time during the period from the Closing Date to but
excluding the Revolving Loan Commitment Termination Date an aggregate
amount not exceeding its Pro Rata Share of the aggregate amount of the
Revolving Loan Commitments to be used for the purposes identified in
subsection 2.5B. The original amount of each Lender's Revolving Loan
Commitment is set forth opposite its name on Schedule 2.1 annexed hereto
and the aggregate original amount of the Revolving Loan Commitments is
$150,000,000; provided that the Revolving Loan Commitments of Lenders
shall be adjusted to give effect to any assignments of the Revolving Loan
Commitments pursuant to subsection 10.1B; and provided, further that the
amount of the Revolving Loan Commitments shall be reduced from time to
time by the amount of any reductions thereto made pursuant to subsection
2.4B(ii). Each Lender's Revolving Loan Commitment shall expire on the
Revolving Loan Commitment Termination Date and all Revolving Loans and all
other amounts owed hereunder with respect to the Revolving Loans and the
Revolving Loan Commitments shall be paid in full no later than that date;
provided that each Lender's Revolving Loan Commitment shall expire
immediately and without further action on June 30, 1997 if the initial
Term Loans are not made on or before that date. Amounts borrowed under
this subsection 2.1A(iv) may be repaid and reborrowed to but excluding the
Revolving Loan Commitment Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Revolving Loans and the Revolving Loan Commitments
shall be subject to the
45
limitation that in no event shall the Total Utilization of Revolving Loan
Commitments at any time exceed the Revolving Loan Commitments then in
effect.
(v) Swing Line Loans. Swing Line Lender hereby agrees, subject to
the limitations set forth below with respect to the maximum amount of
Swing Line Loans permitted to be outstanding from time to time, to make a
portion of the Revolving Loan Commitments available to Company from time
to time during the period from the Closing Date to but excluding the
Revolving Loan Commitment Termination Date by making Swing Line Loans to
Company in an aggregate amount not exceeding the amount of the Swing Line
Loan Commitment to be used for the purposes identified in subsection 2.5B,
notwithstanding the fact that such Swing Line Loans, when aggregated with
Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's
Pro Rata Share of the Letter of Credit Usage then in effect, may exceed
Swing Line Lender's Revolving Loan Commitment. The original amount of the
Swing Line Loan Commitment is $10,000,000; provided that any reduction of
the Revolving Loan Commitments made pursuant to subsection 2.4B(ii) which
reduces the aggregate Revolving Loan Commitments to an amount less than
the then current amount of the Swing Line Loan Commitment shall result in
an automatic corresponding reduction of the Swing Line Loan Commitment to
the amount of the Revolving Loan Commitments, as so reduced, without any
further action on the part of Company, Administrative Agent or Swing Line
Lender. The Swing Line Loan Commitment shall expire on the Revolving Loan
Commitment Termination Date and all Swing Line Loans and all other amounts
owed hereunder with respect to the Swing Line Loans shall be paid in full
no later than that date; provided that the Swing Line Loan Commitment
shall expire immediately and without further action on June 30, 1997 if
the initial Term Loans are not made on or before that date. Amounts
borrowed under this subsection 2.1A(v) may be repaid and reborrowed to but
excluding the Revolving Loan Commitment Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment
shall be subject to the limitation that in no event shall the Total
Utilization of Revolving Loan Commitments at any time exceed the Revolving
Loan Commitments then in effect.
With respect to any Swing Line Loans which have not been voluntarily
prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may,
at any time in its sole and absolute discretion, deliver to Administrative
Agent (with a copy to Company), no later than 11:00 A.M. (New York City
time) on the first Business Day in advance of the proposed Funding Date, a
notice (which shall be deemed to be a Notice of Borrowing given by
Company) requesting Lenders to make Revolving Loans that are Base Rate
Loans on such Funding Date in an amount equal to the amount of such Swing
Line Loans (the "Refunded Swing Line Loans") outstanding on the date such
notice is given which Swing Line
46
Lender requests Lenders to prepay. Anything contained in this Agreement to
the contrary notwithstanding, (i) the proceeds of such Revolving Loans
made by Lenders other than Swing Line Lender shall be immediately
delivered by Administrative Agent to Swing Line Lender (and not to
Company) and applied to repay a corresponding portion of the Refunded
Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing
Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be
deemed to be paid with the proceeds of a Revolving Loan made by Swing Line
Lender, and such portion of the Swing Line Loans deemed to be so paid
shall no longer be outstanding as Swing Line Loans and shall no longer be
due under the Swing Line Note, if any, of Swing Line Lender but shall
instead constitute part of Swing Line Lender's outstanding Revolving Loans
and shall be due under the Revolving Note, if any, of Swing Line Lender.
If any portion of any such amount paid (or deemed to be paid) to Swing
Line Lender should be recovered by or on behalf of Company from Swing Line
Lender in bankruptcy, by assignment for the benefit of creditors or
otherwise, the loss of the amount so recovered shall be ratably shared
among all Lenders in the manner contemplated by subsection 10.5.
If for any reason the Revolving Loan Commitments are terminated at a
time when any Swing Line Loans are outstanding, each Lender shall be
deemed to, and hereby agrees to, have purchased a participation in such
outstanding Swing Line Loans in an amount equal to its Pro Rata Share
(calculated immediately prior to such termination of the Revolving Loan
Commitments) of the unpaid amount of such Swing Line Loans together with
accrued interest thereon. Upon one Business Day's notice from Swing Line
Lender, each Lender shall deliver to Swing Line Lender an amount equal to
its respective participation in same day funds at the Funding and Payment
Office. In order to further evidence such participation (and without
prejudice to the effectiveness of the participation provisions set forth
above), each Lender agrees to enter into a separate participation
agreement at the request of Swing Line Lender in form and substance
reasonably satisfactory to such Lender and Swing Line Lender. In the event
any Lender fails to make available to Swing Line Lender the amount of such
Lender's participation as provided in this paragraph, Swing Line Lender
shall be entitled to recover such amount on demand from such Lender
together with interest thereon at the Federal Funds Effective Rate for
three Business Days and thereafter at the Base Rate. In the event Swing
Line Lender receives a payment of any amount in which other Lenders have
purchased participations as provided in this paragraph, Swing Line Lender
shall promptly distribute to each such other Lender its Pro Rata Share of
such payment.
Anything contained herein to the contrary notwithstanding, each
Lender's obligation to make Revolving Loans for the purpose of repaying
any Refunded Swing Line Loans pursuant to the second preceding paragraph
and each Lender's obligation to purchase a participation in any unpaid
Swing Line Loans pursuant to
47
the immediately preceding paragraph shall be absolute and unconditional
and shall not be affected by any circumstance, including (a) any set-off,
counterclaim, recoupment, defense or other right which such Lender may
have against Swing Line Lender, Company or any other Person for any reason
whatsoever; (b) the occurrence or continuation of an Event of Default or a
Potential Event of Default; (c) any adverse change in the business,
operations, properties, assets, condition (financial or otherwise) or
prospects of Company or any of its Subsidiaries; (d) any breach of this
Agreement or any other Loan Document by any party thereto; or (e) any
other circumstance, happening or event whatsoever, whether or not similar
to any of the foregoing; provided that such obligations of each Lender are
subject to the condition that (X) Swing Line Lender believed in good faith
that all conditions under Section 4 to the making of the applicable
Refunded Swing Line Loans or other unpaid Swing Line Loans, as the case
may be, were satisfied at the time such Refunded Swing Line Loans or
unpaid Swing Line Loans were made or (Y) the satisfaction of any such
condition not satisfied had been waived in accordance with subsection 10.6
prior to or at the time such Refunded Swing Line Loans or other unpaid
Swing Line Loans were made.
B. Borrowing Mechanics. Tranche A Term Loans (other than Sterling
Loans), Tranche B Term Loans or Tranche C Term Loans made on any Funding Date as
Base Rate Loans or as LIBOR Loans with a particular Interest Period shall be in
an aggregate minimum amount of $5,000,000 and integral multiples of $500,000 in
excess of that amount, and Sterling Loans made on the Closing Date with a
particular Interest Period shall be in an aggregate minimum amount of
(pounds)5,000,000 and integral multiples of (pounds)500,000 in excess of that
amount; provided, that no more than one Sterling Loan of each U.K. Borrower may
be in an aggregate minimum amount of (pounds)5,000,000 and any amount in excess
thereof. Revolving Loans (other than Revolving Loans made pursuant to a request
by Swing Line Lender pursuant to subsection 2.1A(v) for the purpose of repaying
any Refunded Swing Line Loans or Revolving Loans made pursuant to subsection
3.3B for the purpose of reimbursing any Issuing Lender for the amount of a
drawing under a Letter of Credit issued by it) made on any Funding Date shall be
in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000
in excess of that amount. Swing Line Loans made on any Funding Date shall be in
an aggregate minimum amount of $500,000 and integral multiples of $100,000 in
excess of that amount. Whenever a Borrower desires that Lenders make Term Loans
or Revolving Loans to such Borrower it shall deliver to Administrative Agent a
Notice of Borrowing no later than 11:00 A.M. (New York City time) at least three
Business Days in advance of the proposed Funding Date (in the case of a LIBOR
Loan) or at least one Business Day in advance of the proposed Funding Date (in
the case of a Base Rate Loan). Whenever Company desires that Swing Line Lender
make a Swing Line Loan, it shall deliver to Administrative Agent a Notice of
Borrowing no later than 1:00 P.M. (New York City time) on the proposed Funding
Date. The Notice of Borrowing shall specify (i) the proposed Funding Date (which
shall be a Business Day), (ii) the amount and type of Loans requested, (iii) in
the case of Swing Line Loans and any Loans (other than Sterling
48
Loans) made on the Closing Date, that such Loans shall be Base Rate Loans, (iv)
in the case of Delayed-Draw Term Loans and Revolving Loans not made on the
Closing Date, whether such Loans shall be Base Rate Loans or LIBOR Loans, and
(v) in the case of any Loans requested to be made as LIBOR Loans, the initial
Interest Period requested therefor. Term Loans and Revolving Loans may be
continued as or converted into Base Rate Loans and LIBOR Loans in the manner
provided in subsection 2.2D; provided, that Sterling Loans may not be converted
into Base Rate Loans. In lieu of delivering the above-described Notice of
Borrowing, a Borrower may give Administrative Agent telephonic notice by the
required time of any proposed borrowing under this subsection 2.1B; provided
that such notice shall be promptly confirmed in writing by delivery of a Notice
of Borrowing to Administrative Agent on or before the applicable Funding Date.
Neither Administrative Agent nor any Lender shall incur any
liability to any Borrower in acting upon any telephonic notice referred to above
that Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on behalf of such
Borrower or for otherwise acting in good faith under this subsection 2.1B, and
upon funding of Loans by Lenders in accordance with this Agreement pursuant to
any such telephonic notice the applicable Borrower shall have effected Loans
hereunder.
Each Borrower shall notify Administrative Agent prior to the funding
of any Loans in the event that any of the matters to which such Borrower is
required to certify in the applicable Notice of Borrowing is no longer true and
correct as of the applicable Funding Date, and the acceptance by such Borrower
of the proceeds of any Loans shall constitute a re-certification by Borrowers,
as of the applicable Funding Date, as to matters to which Borrowers are required
to certify in the applicable Notice of Borrowing.
C. Disbursement of Funds. All Term Loans and Revolving Loans under this
Agreement shall be made by Lenders simultaneously and proportionately to their
respective Pro Rata Shares, it being understood that no Lender shall be
responsible for any default by any other Lender in that other Lender's
obligation to make a Loan requested hereunder nor shall the Commitment of any
Lender to make the particular Type of Loan requested be increased or decreased
as a result of a default by any other Lender in that other Lender's obligation
to make a Loan requested hereunder. Promptly after receipt by Administrative
Agent of a Notice of Borrowing pursuant to subsection 2.1B (or telephonic notice
in lieu thereof), Administrative Agent shall notify each Lender or Swing Line
Lender, as the case may be, of the proposed borrowing. Each Lender shall make
the amount of its Loan available to Administrative Agent in the Applicable
Currency not later than 1:00 P.M. (New York City time) on the applicable Funding
Date in the case of Loans other than Sterling Loans, and not later than 11:00
A.M. (London time) on the applicable Funding Date in the case of Sterling Loans,
and Swing Line Lender shall make the amount of its Swing Line Loan available to
Administrative Agent not later than 2:00 P.M.(New York City time) on the
applicable Funding Date, in each case in same day funds in Dollars (or Sterling,
in the case of Sterling Loans), at the Funding and Payment
49
Office for such Loans. Except as provided in subsection 2.1A(v) or subsection
3.3B with respect to Revolving Loans used to repay Refunded Swing Line Loans or
to reimburse any Issuing Lender for the amount of a drawing under a Letter of
Credit issued by it, upon satisfaction or waiver of the conditions precedent
specified in subsections 4.1 (in the case of Loans made on the Closing Date) and
4.2 (in the case of all Loans), Administrative Agent shall make the proceeds of
such Loans available to the applicable Borrower on the applicable Funding Date
by causing an amount of same day funds in Dollars (or Sterling, in the case of
Sterling Loans) equal to the proceeds of all such Loans received by
Administrative Agent from Lenders or Swing Line Lender, as the case may be, to
be credited to the account of the applicable Borrower at the Funding and Payment
Office for such Loans.
Unless Administrative Agent shall have been notified by any Lender
prior to the Funding Date for any Loans that such Lender does not intend to make
available to Administrative Agent the amount of such Lender's Loan requested on
such Funding Date, Administrative Agent may assume that such Lender has made
such amount available to Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall not be obligated to,
make available to the applicable Borrower a corresponding amount in the
Applicable Currency on such Funding Date. If such corresponding amount is not in
fact made available to Administrative Agent by such Lender, Administrative Agent
shall be entitled to recover such corresponding amount on demand from such
Lender together with interest thereon, for each day from such Funding Date until
the date such amount is paid to Administrative Agent in the Applicable Currency,
(i) for amounts in Dollars, at the Federal Funds Effective Rate for three
Business Days and thereafter at the Base Rate or (ii) for amounts in Sterling,
at Administrative Agent's cost of funds as determined by Administrative Agent
and notified to such Lender for amounts in Sterling. If such Lender does not pay
such corresponding amount forthwith upon Administrative Agent's demand therefor,
Administrative Agent shall promptly notify the applicable Borrower, and the
applicable Borrower shall immediately pay such corresponding amount to
Administrative Agent together with interest thereon, all in the Applicable
Currency, for each day from such Funding Date until the date such amount is paid
to Administrative Agent, at the rate payable under this Agreement for Base Rate
Loans in the case of Dollar Loans and at the rate otherwise payable pursuant to
subsection 2.2A in the case of Sterling Loans. Nothing in this subsection 2.1C
shall be deemed to relieve any Lender from its obligation to fulfill its
Commitments hereunder or to prejudice any rights that any Borrower may have
against any Lender as a result of any default by such Lender hereunder.
D. The Register.
(i) Administrative Agent shall maintain, at its address referred to
in subsection 10.7, a register for the recordation of the names and
addresses of Lenders and the Commitments and Loans (whether or not
separately evidenced by one or more Notes) of each Lender from time to
time (the "Register"). The
50
Register shall be available for inspection by Borrowers or any Lender at
any reasonable time and from time to time upon reasonable prior notice.
(ii) Administrative Agent shall record in the Register the Tranche A
Term Loan Commitment, Tranche B Term Loan Commitment, Tranche C Term Loan
Commitment and Revolving Loan Commitment and the Tranche A Term Loans,
Tranche B Term Loan, Tranche C Term Loan and Revolving Loans from time to
time of each Lender, the Swing Line Loan Commitment and the Swing Line
Loans from time to time of Swing Line Lender, and each repayment or
prepayment in respect of the principal amount of the Tranche A Term Loans,
Tranche B Term Loan, Tranche C Term Loan or Revolving Loans of each Lender
or the Swing Line Loans of Swing Line Lender. Any such recordation shall
be conclusive and binding on Borrowers and each Lender, absent clearly
demonstrable error; provided that failure to make any such recordation, or
any error in such recordation, shall not affect any Lender's Commitments
or Borrowers' Obligations in respect of any applicable Loans.
(iii) Each Lender shall record on its internal records (including
any Notes held by such Lender) the amount of the Tranche B Term Loan and
the Tranche C Term Loan and each Tranche A Term Loan and Revolving Loan
made by it and each payment in respect thereof. Any such recordation shall
be conclusive and binding on Borrowers, absent clearly demonstrable error;
provided that failure to make any such recordation, or any error in such
recordation, shall not affect any Lender's Commitments or any Borrower's
Obligations in respect of any applicable Loans; and provided, further that
in the event of any inconsistency between the Register and any Lender's
records, the recordations in the Register shall govern.
(iv) Borrowers, Administrative Agent and Lenders shall deem and
treat the Persons listed as Lenders in the Register as the holders and
owners of the corresponding Commitments and Loans listed therein for all
purposes hereof, and no assignment or transfer of any such Commitment or
Loan shall be effective, in each case unless and until an Assignment
Agreement effecting the assignment or transfer thereof shall have been
accepted by Administrative Agent and recorded in the Register as provided
in subsection 10.1B(ii). Prior to such recordation, all amounts owed with
respect to the applicable Commitment or Loan shall be owed to the Lender
listed in the Register as the owner thereof, and any request, authority or
consent of any Person who, at the time of making such request or giving
such authority or consent, is listed in the Register as a Lender shall be
conclusive and binding on any subsequent holder, assignee or transferee of
the corresponding Commitments or Loans.
(v) Each Borrower hereby designates BTCo to serve as its agent
solely for purposes of maintaining the Register as provided in this
subsection 2.1D, and Borrowers hereby agree that, to the extent BTCo
serves in such capacity, BTCo
51
and its officers, directors, employees, agents and affiliates shall
constitute Indemnitees for all purposes under subsection 10.3.
E. Optional Notes. Upon the request of any Lender made through the
Administrative Agent at least two Business Days prior to the Closing Date or at
any time after the Closing Date (in the case of Dollar Loans, solely to
facilitate the pledge or assignment of such Lender's applicable Loans pursuant
to subsection 10.1D), the applicable Borrower shall execute and deliver to such
Lender (and/or, if applicable and if so specified in such notice, to any Person
who is an assignee of such Lender pursuant to subsection 10.1) on the Closing
Date (or, if such notice is delivered after the Closing Date, promptly after
such Borrower's receipt of such notice) a promissory note or promissory notes to
evidence such Lender's Tranche A Term Loans, Tranche B Term Loan, Tranche C Term
Loan, Revolving Loans or Swing Line Loans, as the case may be, substantially in
the form of Exhibit IV-A or Exhibit IV-B, Exhibit V, Exhibit VI, Exhibit VII or
Exhibit VIII annexed hereto, respectively, with appropriate insertions.
F. Company as Agent for U.K. Borrowers. Each U.K. Borrower by its
execution of this Agreement irrevocably authorizes Company to give and receive
all notices and instructions, to take all actions and make such agreements
expressed to be capable of being given, received or taken by Company in this
Agreement and the other Loan Documents notwithstanding that they may affect such
U.K. Borrower, and each U.K. Borrower shall, as regards Administrative Agent and
each Lender, be bound thereby as though such Borrower itself had given or
received such notice, taken such action or made such agreement.
G. Booking of Sterling Loans; Sterling Lender Affiliates. Each Lender
hereby agrees to book the Sterling Loans of such Lender in such a manner as to
cause such Lender to be a U.K. Qualifying Bank with respect to such Sterling
Loans. In furtherance of the foregoing, such Lender may agree with any Affiliate
of such Lender (such Affiliate, the "Sterling Lender Affiliate" of such Lender)
that such Affiliate shall make or carry such Sterling Loans for its own account
and such Sterling Lender Affiliate shall have, as against Company and the
applicable Borrower, all the rights of a Lender with respect to such Sterling
Loans as a third party beneficiary hereunder.
2.2 Interest on the Loans.
A. Rate of Interest. Subject to the provisions of subsections 2.6 and 2.7,
each Term Loan and each Revolving Loan shall bear interest on the unpaid
principal amount thereof from the date made to maturity (whether by acceleration
or otherwise) at a rate determined by reference to the Base Rate (in the case of
all Loans other than Sterling Loans) or LIBOR. Subject to the provisions of
subsection 2.7, each Swing Line Loan shall bear interest on the unpaid principal
amount thereof from the date made through maturity (whether by acceleration or
otherwise) at a rate determined by reference to the Base Rate. The applicable
basis for determining the rate of interest with respect to any
52
Term Loan or any Revolving Loan shall be selected by Company initially at the
time a Notice of Borrowing is given with respect to such Loan pursuant to
subsection 2.1B, and the basis for determining the interest rate with respect to
any Term Loan or any Revolving Loan may be changed from time to time pursuant to
subsection 2.2D. Subject to the last proviso to the first paragraph of
subsection 2.2D, if on any day a Term Loan or Revolving Loan is outstanding with
respect to which notice has not been delivered to Administrative Agent in
accordance with the terms of this Agreement specifying the applicable basis for
determining the rate of interest, then for that day that Loan shall bear
interest determined by reference to the Base Rate.
(i) Subject to the provisions of subsections 2.2E and 2.7, the
Tranche A Term Loans and the Revolving Loans shall bear interest through
maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base Rate plus
the Applicable Tranche A Base Rate Margin; or
(b) if a LIBOR Loan, then at the sum of LIBOR plus the
Applicable Tranche A LIBOR Margin plus, in the case of Sterling
Loans, any Mandatory Liquid Asset Costs incurred by the applicable
Lender in respect of such LIBOR Loan from time to time.
(ii) Subject to the provisions of subsections 2.2E and 2.7, the
Tranche B Term Loans shall bear interest through maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base Rate plus
the Applicable Tranche B Base Rate Margin; or
(b) if a LIBOR Loan, then at the sum of LIBOR plus the
Applicable Tranche B LIBOR Margin.
(iii) Subject to the provisions of subsections 2.2E and 2.7, the
Tranche C Term Loans shall bear interest through maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base Rate plus
the Applicable Tranche C Base Rate Margin; or
(b) if a LIBOR Loan, then at the sum of LIBOR plus the
Applicable Tranche C LIBOR Margin.
(iv) Subject to the provisions of subsections 2.2E and 2.7, the
Swing Line Loans shall bear interest through maturity at the sum of the
Base Rate plus the Applicable Tranche A Base Rate Margin minus the
Applicable Commitment Fee Percentage.
53
B. Interest Periods. In connection with each LIBOR Loan, the applicable
Borrower may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"Interest Period") to be applicable to such Loan, which Interest Period shall
be, at such Borrower's option, either a one, two, three or six month period or,
in the case of Dollar Loans only, if deposits in the interbank Eurodollar market
are generally available for such period to all Lenders making the applicable
Loans (as determined by such Lenders in good faith based on prevailing market
conditions), a nine or twelve month period; provided that:
(i) the initial Interest Period for any LIBOR Loan shall commence on
the Funding Date in respect of such Loan, in the case of a Loan initially
made as a LIBOR Loan, or on the date specified in the applicable Notice of
Conversion/Continuation, in the case of a Loan converted to a LIBOR Loan;
(ii) in the case of immediately successive Interest Periods
applicable to a LIBOR Loan continued as such pursuant to a Notice of
Conversion/Continuation, each successive Interest Period shall commence on
the day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided that, if any Interest Period would
otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clauses (v) and (vi) of this subsection 2.2B,
end on the last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the Tranche A
Term Loans shall extend beyond the seventh anniversary of the Closing
Date, no Interest Period with respect to any portion of the Tranche B Term
Loans shall extend beyond the eighth anniversary of the Closing Date, no
Interest Period with respect to any portion of the Tranche C Term Loans
shall extend beyond the ninth anniversary of the Closing Date, and no
Interest Period with respect to any portion of the Revolving Loans shall
extend beyond the Revolving Loan Commitment Termination Date;
(vi) no Interest Period with respect to any portion of the Tranche A
Term Loans, Tranche B Term Loans or Tranche C Term Loans shall extend
beyond a date on which the applicable Borrower is required to make a
scheduled payment of principal of the Tranche A Term Loans, Tranche B Term
Loans or Tranche C
54
Term Loans, as the case may be, unless the sum of (a) the aggregate
principal amount of Tranche A Term Loans, Tranche B Term Loans or Tranche
C Term Loans, as the case may be, that are Base Rate Loans plus (b) the
aggregate principal amount of Tranche A Term Loans, Tranche B Term Loans
or Tranche C Term Loans, as the case may be, that are LIBOR Loans with
Interest Periods expiring on or before such date equals or exceeds the
principal amount required to be paid on the Tranche A Term Loans, Tranche
B Term Loans or Tranche C Term Loans, as the case may be, on such date;
(vii) there shall be no more than 20 Interest Periods outstanding at
any time; and
(viii) in the event the applicable Borrower fails to specify an
Interest Period for any LIBOR Loan in the applicable Notice of Borrowing
or Notice of Conversion/Continuation, such Borrower shall be deemed to
have selected an Interest Period of one month.
C. Interest Payments. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity); provided that in the event any Swing Line Loans or any Revolving
Loans that are Base Rate Loans are prepaid pursuant to subsection 2.4B, interest
accrued on such Swing Line Loans or Revolving Loans through the date of such
prepayment shall be payable on the next succeeding Interest Payment Date
applicable to Base Rate Loans (or, if earlier, at final maturity).
D. Conversion or Continuation. Subject to the provisions of subsection
2.6, (i) Company shall have the option to convert at any time all or any part of
its outstanding Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans
or Revolving Loans equal to $5,000,000 and integral multiples of $500,000 in
excess of that amount from Loans bearing interest at a rate determined by
reference to one basis to Loans bearing interest at a rate determined by
reference to an alternative basis and (ii) upon the expiration of any Interest
Period applicable to a LIBOR Loan, the applicable Borrower shall have the option
to continue as a LIBOR Loan all or any portion of such Loan equal to $5,000,000
and integral multiples of $500,000 in excess of that amount (or, in the case of
Sterling Loans, equal to (pounds)5,000,000 and integral multiples of
(pounds)500,000 in excess of that amount; provided that no more than one
Sterling Loan of each U.K. Borrower outstanding at any time may be in an
aggregate minimum amount equal to (pounds)5,000,000 and any amount in excess
thereof); provided, however, that if, upon the expiration of any Interest Period
applicable to any LIBOR Loan, the applicable Borrower shall have failed to give
a Notice of Conversion/Continuation with respect to such LIBOR Loan in
accordance with this subsection 2.2D, such Borrower shall be deemed to have
given a timely Notice of Conversion/Continuation electing to continue such LIBOR
Loan as a LIBOR Loan with an Interest Period of one month.
55
The applicable Borrower shall deliver a Notice of
Conversion/Continuation to Administrative Agent no later than 11:00 A.M. (New
York City time) at least one Business Day in advance of the proposed conversion
date (in the case of a conversion to a Base Rate Loan) and at least three
Business Days in advance of the proposed conversion/continuation date (in the
case of a conversion to, or a continuation of, a LIBOR Loan), with a copy to the
Sterling Notice Office, in the case of Sterling Loans. A Notice of
Conversion/Continuation shall specify (i) the proposed conversion/continuation
date (which shall be a Business Day), (ii) the amount and type of the Loan to be
converted/continued, (iii) the nature of the proposed conversion/continuation,
(iv) in the case of a conversion to, or a continuation of, a LIBOR Loan, the
requested Interest Period, and (v) in the case of a conversion to, or a
continuation of, a LIBOR Loan, that no Potential Event of Default or Event of
Default has occurred and is continuing. In lieu of delivering the
above-described Notice of Conversion/Continuation, the applicable Borrower may
give Administrative Agent telephonic notice by the required time of any proposed
conversion/continuation under this subsection 2.2D; provided that such notice
shall be promptly confirmed in writing by delivery of a Notice of
Conversion/Continuation to Administrative Agent, with a copy to the Sterling
Notice Office, in the case of Sterling Loans, on or before the proposed
conversion/continuation date. Upon receipt of written or telephonic notice of
any proposed conversion/continuation under this subsection 2.2D, Administrative
Agent shall promptly transmit such notice by telefacsimile or telephone to each
Lender.
Neither Administrative Agent nor any Lender shall incur any
liability to any Borrower in acting upon any telephonic notice referred to above
that Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to act on behalf of such Borrower
or for otherwise acting in good faith under this subsection 2.2D, and upon
conversion or continuation of the applicable basis for determining the interest
rate with respect to any Loans in accordance with this Agreement pursuant to any
such telephonic notice the applicable Borrower shall have effected a conversion
or continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C, 2.6F and
2.6G, a Notice of Conversion/Continuation for conversion to, or continuation of,
a LIBOR Loan (or telephonic notice in lieu thereof) shall be irrevocable on and
after the related Interest Rate Determination Date, and the applicable Borrower
shall be bound to effect a conversion or continuation in accordance therewith.
E. Post-Maturity Interest. Any principal payments on the Loans not paid
when due and, to the extent permitted by applicable law, any interest payments
on the Loans or any fees or other amounts owed hereunder not paid when due, in
each case whether at stated maturity, by notice of prepayment, by acceleration
or otherwise, shall thereafter bear interest (including post-petition interest
in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws)
payable on demand at a rate which is 2% per annum in excess of the interest rate
otherwise payable under this Agreement for
56
Base Rate Loans of the applicable Type (any such fees and other amounts being
deemed for such purposes to bear interest on the same basis as Revolving Loans)
or, in the case of Sterling Loans, for LIBOR Loans having consecutive Interest
Periods of one month, commencing on the date of such non-payment. Payment or
acceptance of the increased rates of interest provided for in this subsection
2.2E is not a permitted alternative to timely payment and shall not constitute a
waiver of any Event of Default or otherwise prejudice or limit any rights or
remedies of Administrative Agent or any Lender.
F. Computation of Interest. Interest on the Loans shall be computed (i) in
the case of Base Rate Loans bearing interest at a rate determined by reference
to the Prime Rate, on the basis of a 365-day or 366-day year, as the case may
be, (ii) in the case of Sterling Loans, on the basis of a 365-day year, and
(iii) in the case of other LIBOR Loans and Base Rate Loans bearing interest at a
rate determined by reference to the Federal Funds Effective Rate, on the basis
of a 360-day year, in each case for the actual number of days elapsed in the
period during which it accrues. In computing interest on any Loan, the date of
the making of such Loan or the first day of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted from a LIBOR
Loan, the date of conversion of such LIBOR Loan to such Base Rate Loan, as the
case may be, shall be included, and the date of payment of such Loan or the
expiration date of an Interest Period applicable to such Loan or, with respect
to a Base Rate Loan being converted to a LIBOR Loan, the date of conversion of
such Base Rate Loan to such LIBOR Loan, as the case may be, shall be excluded;
provided that if a Loan is repaid on the same day on which it is made, one day's
interest shall be paid on that Loan.
2.3 Fees.
A. Commitment Fees. Company agrees to pay to Administrative Agent, for
distribution to each Lender in proportion to that Lender's Pro Rata Share,
commitment fees for the period from and including the Closing Date to and
excluding the Revolving Loan Commitment Termination Date equal to the sum of (i)
the average of the daily excess of the Revolving Loan Commitments over the
aggregate principal amount of outstanding Revolving Loans (but not any
outstanding Swing Line Loans or the Letter of Credit Usage) and (ii) any undrawn
portion of the Tranche A Term Loan Commitments that is available for borrowing
as Delayed-Draw Term Loans multiplied by the Applicable Commitment Fee
Percentage, such commitment fees to be calculated on the basis of a 365-day or
366-day year, as the case may be, and the actual number of days elapsed and to
be payable quarterly in arrears on March 31, June 30, September 30 and December
31 of each year, commencing on the first such date to occur after the Closing
Date, and on the Revolving Loan Commitment Termination Date.
B. Other Fees. Company agrees to pay to Administrative Agent, Syndication
Agent and Documentation Agent such other fees in the amounts and at the times
57
separately agreed upon between Company and Administrative Agent, Syndication
Agent and Documentation Agent, as the case may be.
2.4 Repayments, Prepayments and Reductions in Revolving Loan Commitments;
General Provisions Regarding Payments; Application of Proceeds of
Collateral and Payments Under the Guaranties.
A. Scheduled Payments of Term Loans.
(i) Scheduled Payments of Tranche A Term Loans. Each Borrower shall
make principal payments on the Tranche A Term Loans made to such Borrower
in installments on the second anniversary of the Closing Date and on each
subsequent anniversary of the Closing Date until the Tranche A Term Loans
are paid in full, each such installment to be in an amount in Dollars or
Sterling, as applicable, equal to the corresponding percentages set forth
below of the original principal amount of the Tranche A Term Loans
(including, in the case of Company, the Delayed-Draw Term Loans) made to
such Borrower:
Percentage of Original
Principal Amount
Anniversary of Closing Date of Tranche A Term Loans
--------------------------- -----------------------
Second 7.15%
Third 10.71%
Fourth 13.57%
Fifth 17.14%
Sixth 22.86%
Seventh 28.57%
-------
TOTAL 100.00%
; provided that the scheduled installments of principal of the Tranche A
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche A Term Loans in
accordance with subsection 2.4B(iv); and provided, further that the
Tranche A Term Loans and all other amounts owed hereunder with respect to
the Tranche A Term Loans shall be paid in full no later than the seventh
anniversary of the Closing Date, and the final installment payable by each
Borrower in respect of the Tranche A Term Loans on such date shall be in
an amount, if such amount is different from that specified above,
sufficient to repay all amounts owing by Borrowers under this Agreement
with respect to the Tranche A Term Loans.
(ii) Scheduled Payments of Tranche B Term Loans. Company shall
make principal payments on the Tranche B Term Loans in installments on the
58
second anniversary of the Closing Date and on each subsequent anniversary
of the Closing Date until the Tranche B Term Loans are paid in full, each
such installment to be in the correlative amount set forth below:
Scheduled Repayment
Anniversary of Closing Date of Tranche B Term Loans
--------------------------- -----------------------
Second $500,000
Third $500,000
Fourth $500,000
Fifth $500,000
Sixth $500,000
Seventh $500,000
Eighth $197,000,000
------------
TOTAL $200,000,000
; provided that the scheduled installments of principal of the Tranche B
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche B Term Loans in
accordance with subsection 2.4B(iv); and provided, further that the
Tranche B Term Loans and all other amounts owed hereunder with respect to
the Tranche B Term Loans shall be paid in full no later than the eighth
anniversary of the Closing Date, and the final installment payable by
Company in respect of the Tranche B Term Loans on such date shall be in an
amount, if such amount is different from that specified above, sufficient
to repay all amounts owing by Company under this Agreement with respect to
the Tranche B Term Loans.
(iii) Scheduled Payments of Tranche C Term Loans. Company shall make
principal payments on the Tranche C Term Loans in installments on the
second anniversary of the Closing Date and on each subsequent anniversary
of the Closing Date until the Tranche C Term Loans are paid in full, each
such installment to be in the correlative amount set forth below:
59
Scheduled Repayment
Anniversary of Closing Date of Tranche C Term Loans
--------------------------- -----------------------
Second $500,000
Third $500,000
Fourth $500,000
Fifth $500,000
Sixth $500,000
Seventh $500,000
Eighth $500,000
Ninth $196,500,000
------------
TOTAL $200,000,000
; provided that the scheduled installments of principal of the Tranche C
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche C Term Loans in
accordance with subsection 2.4B(iv); and provided, further that the
Tranche C Term Loans and all other amounts owed hereunder with respect to
the Tranche C Term Loans shall be paid in full no later than the ninth
anniversary of the Closing Date, and the final installment payable by
Company in respect of the Tranche C Term Loans on such date shall be in an
amount, if such amount is different from that specified above, sufficient
to repay all amounts owing by Company under this Agreement with respect to
the Tranche C Term Loans.
B. Prepayments and Reductions in Revolving Loan Commitments.
(i) Voluntary Prepayments. Company may, upon written or telephonic
notice to Administrative Agent at or prior to 1:00 P.M. (New York City
time) on the date of prepayment, which notice, if telephonic, shall be
promptly confirmed in writing, at any time and from time to time prepay
any Swing Line Loan on any Business Day in whole or in part in an
aggregate minimum amount of $500,000 and integral multiples of $100,000 in
excess of that amount. Any Borrower may, upon not less than one Business
Day's prior written or telephonic notice, in the case of Base Rate Loans,
and three Business Days' prior written or telephonic notice, in the case
of LIBOR Loans, in each case given to Administrative Agent by 12:00 Noon
(New York City time) on the date required and, if given by telephone,
promptly confirmed in writing to Administrative Agent (which original
written or telephonic notice Administrative Agent will promptly transmit
by telefacsimile or telephone to each Lender), at any time and from time
to time prepay any of such Borrower's Tranche A Term Loans, Tranche B Term
Loans, Tranche C Term Loans or Revolving Loans on any Business Day in
whole or in part in an aggregate minimum amount of $5,000,000 and integral
multiples of $500,000 in excess of that amount (or, in the case of
Sterling Loans, equal to (pounds)5,000,000 and integral
60
multiples of (pounds)500,000 in excess of that amount). Notice of
prepayment having been given as aforesaid, the principal amount of the
Loans specified in such notice shall become due and payable on the
prepayment date specified therein. Any such voluntary prepayment shall be
applied as specified in subsection 2.4B(iv).
(ii) Voluntary Reductions of Revolving Loan Commitments. Company
may, upon not less than three Business Days' prior written or telephonic
notice confirmed in writing to Administrative Agent (which original
written or telephonic notice Administrative Agent will promptly transmit
by telefacsimile or telephone to each Lender), at any time and from time
to time terminate in whole or permanently reduce in part, without premium
or penalty, the Revolving Loan Commitments in an amount up to the amount
by which the Revolving Loan Commitments exceed the Total Utilization of
Revolving Loan Commitments at the time of such proposed termination or
reduction; provided that any such partial reduction of the Revolving Loan
Commitments shall be in an aggregate minimum amount of $1,000,000 and
integral multiples of $500,000 in excess of that amount. Company's notice
to Administrative Agent shall designate the date (which shall be a
Business Day) of such termination or reduction and the amount of any
partial reduction, and such termination or reduction of the Revolving Loan
Commitments shall be effective on the date specified in Company's notice
and shall reduce the Revolving Loan Commitment of each Lender
proportionately to its Pro Rata Share.
(iii) Mandatory Prepayments. Subject to the provisions of
subsections 2.4B(iv)(d), the Loans shall be prepaid in the amounts and
under the circumstances set forth below, all such prepayments to be
applied as set forth below or as more specifically provided in subsection
2.4B(iv):
(a) Prepayments From Net Asset Sale Proceeds. No later than
the fifth Business Day following the date on which any Net Asset
Sale Proceeds become Unreinvested Asset Sale Proceeds, Company shall
prepay its outstanding Term Loans in an aggregate amount equal to
such Unreinvested Asset Sale Proceeds; provided that, to the extent
that such Unreinvested Asset Sale Proceeds result from the sale of
any assets of a U.K. Borrower that has Term Loans outstanding or any
Subsidiary of such U.K. Borrower (other than the other U.K.
Borrower), such U.K. Borrower shall prepay its outstanding Term
Loans in an aggregate amount equal to such Unreinvested Asset Sale
Proceeds (and, if such sale is of the assets of a Subsidiary of both
U.K. Borrowers, such prepayment shall be made by the U.K. Borrower
that has the most direct ownership interest therein, and, if both
U.K. Borrowers shall have a direct ownership interest therein, by
both U.K. Borrowers pro rata to their respective ownership interests
therein), and Company shall not be required to prepay its Term Loans
to the extent of any such prepayment; provided further that
Borrowers may in their sole discretion elect, pursuant to a written
notice given by Company
61
on behalf of Borrowers to Administrative Agent describing such
election, to postpone any mandatory prepayments otherwise required
to be made by Borrowers pursuant to this subsection 2.4B(iii)(a)
(any such prepayment, until the time actually made, being "Postponed
Prepayments") until such time as the aggregate amount of Postponed
Prepayments equals $5,000,000.
(b) Prepayments from Consolidated Excess Cash Flow. In the
event that (1) the Consolidated Leverage Ratio shall be equal to or
greater than 4.00:1.00 as of the last day of any Fiscal Year
(commencing with Fiscal Year 1997) and (ii) there shall be
Consolidated Excess Cash Flow for such Fiscal Year, Company shall,
no later than the date on which Company is required to deliver
audited financial statements with respect to such Fiscal Year
pursuant to subsection 6.1(ii), prepay its outstanding Term Loans in
an aggregate amount equal to 50% of such Consolidated Excess Cash
Flow (the remaining 50% of such Consolidated Excess Cash Flow being
"Retained Excess Cash Flow").
(c) Prepayments Due to Reductions or Restrictions of Revolving
Loan Commitments. Company shall from time to time prepay first the
Swing Line Loans and second the Revolving Loans to the extent
necessary so that the Total Utilization of Revolving Loan
Commitments shall not at any time exceed the Revolving Loan
Commitments then in effect.
(iv) Application of Prepayments.
(a) Application of Voluntary Prepayments by Type of Loans and
Order of Maturity. Any voluntary prepayments pursuant to subsection
2.4B(i) shall be applied as specified by the applicable Borrower in
the applicable notice of prepayment; provided that in the event
Company fails to specify the Loans of Company to which any such
prepayment shall be applied, such prepayment shall be applied first
to repay outstanding Swing Line Loans to the full extent thereof,
second to repay outstanding Revolving Loans to the full extent
thereof, and third to repay outstanding Term Loans to the full
extent thereof. Any voluntary prepayment of any Borrower's Term
Loans pursuant to subsection 2.4B(i) shall be applied to prepay the
Tranche A Term Loans, and, in the case of Company, the Tranche B
Term Loans and/or the Tranche C Term Loans in the manner specified
by such Borrower and to reduce the scheduled installments of
principal of the Tranche A Term Loans and, in the case of Company,
the Tranche B Term Loans and/or the Tranche C Term Loans set forth
in subsections 2.4A(i), 2.4A(ii) and/or 2.4A(iii), as the case may
be, in such order as such Borrower shall direct.
62
(b) Application of Mandatory Prepayments of Term Loans to
Tranche A Term Loans, Tranche B Term Loans and Tranche C Term Loans
and the Scheduled Installments of Principal Thereof. Any mandatory
prepayments of Company's Term Loans pursuant to subsection 2.4B(iii)
shall be applied to prepay the Tranche A Term Loans of Company, the
Tranche B Term Loans and the Tranche C Term Loans on a pro rata
basis (in accordance with the respective outstanding principal
amounts thereof). Except as provided in the last sentence of this
paragraph, any mandatory prepayment of the Tranche A Term Loans of
any Borrower, the Tranche B Term Loans or the Tranche C Term Loans
shall be applied first to reduce the next two succeeding scheduled
installments of principal of such Tranche A Term Loans, the Tranche
B Term Loans or the Tranche C Term Loans, as the case may be, set
forth in subsection 2.4A(i), 2.4A(ii) or 2.4A(iii), respectively,
that are unpaid at the time of such prepayment in the forward order
of maturity and second to reduce each remaining unpaid scheduled
installment of principal of such Tranche A Term Loans, the Tranche B
Term Loans or the Tranche C Term Loans, as the case may be, on a pro
rata basis (in accordance with the respective unpaid principal
amounts thereof). Any such mandatory prepayment of the Tranche A
Term Loans of any Borrower, the Tranche B Term Loans or the Tranche
C Term Loans out of Consolidated Excess Cash Flow shall be applied
to reduce each remaining unpaid scheduled installment of principal
of such Tranche A Term Loans, the Tranche B Term Loans or the
Tranche C Term Loans, as the case may be, in such order as the
applicable Borrower shall elect.
(c) Waiver of Certain Mandatory Prepayments. Anything
contained herein to the contrary notwithstanding, so long as any
Tranche A Term Loans are outstanding, in the event Company is
required to make any mandatory prepayment (a "Waivable Mandatory
Prepayment") of the Tranche B Term Loans or the Tranche C Term Loans
pursuant to subsection 2.4B(iii), (V) Company may, by written or
telephonic notice (promptly confirmed in writing) given to
Administrative Agent not less than three Business Days prior to the
date (the "Required Prepayment Date") on which Company is required
to make such Waivable Mandatory Prepayment, elect to offer each
Lender holding an outstanding Tranche B Term Loan or Tranche C Term
Loan, as the case may be, the option to refuse such Lender's Pro
Rata Share of such Waivable Mandatory Prepayment, (W) in the event
Company gives such notice to Administrative Agent, Administrative
Agent will promptly notify each such Lender of the amount of such
Lender's Pro Rata Share of such Waivable Mandatory Prepayment and
such Lender's option to refuse such amount, (X) each such Lender may
exercise such option by giving written notice to Company and
Administrative Agent of its election to do so on or before the first
Business Day (the "Cutoff Date") prior to the Required Prepayment
Date, (Y) on the
63
Required Prepayment Date, Company shall pay to Administrative Agent
an amount equal to the sum of (1) that portion of the Waivable
Mandatory Prepayment payable to those Lenders that have elected not
to exercise such option (it being understood that any Lender which
does not notify Company and Administrative Agent of its election to
exercise such option on or before the Cutoff Date shall be deemed to
have elected, as of the Cutoff Date, not to exercise such option),
which amount shall be applied to prepay the Tranche B Term Loans or
Tranche C Term Loans, as the case may be, of such Lenders in
accordance with subsection 2.4B(iv)(b) plus (2) 50% of that portion
(the "Waived Portion") of the Waivable Mandatory Prepayment
otherwise payable to those Lenders that have elected to exercise
such option, which amount shall be applied to prepay the Tranche A
Term Loans in the same manner as voluntary prepayments of the
Tranche A Term Loans are applied pursuant to subsection 2.4B(iv)(a),
and (Z) Company shall be entitled to retain the remaining 50% of the
Waived Portion (such amount being a "Retained Prepayment") to be
used for general corporate purposes.
(d) Application of Prepayments of Dollar Loans to Base Rate
Loans and LIBOR Loans; Option to Defer Certain Mandatory Prepayments
of LIBOR Loans. Considering Tranche A Term Loans that are Dollar
Loans, Tranche B Term Loans, Tranche C Term Loans and Revolving
Loans being prepaid separately, any prepayment thereof shall be
applied first to Base Rate Loans to the full extent thereof before
application to LIBOR Loans, in each case in a manner which minimizes
the amount of any payments required to be made by Company pursuant
to subsection 2.6D; provided that, anything contained in this
Agreement to the contrary notwithstanding, in the event that (1) the
application of any mandatory prepayment pursuant to subsection
2.4B(iii) in accordance with the foregoing provisions of this
subsection 2.4B(iv) would result in the prepayment of all or any
portion of a LIBOR Loan (whether a Dollar Loan or a Sterling Loan)
prior to the end of the Interest Period applicable thereto, (2) the
remaining term of such Interest Period is less than three months,
and (3) no Potential Event of Default or Event of Default shall have
occurred and be continuing, the applicable Borrower shall have the
option, by giving written notice (or telephonic notice promptly
confirmed in writing) to Administrative Agent of its election to do
so on or before the first Business Day prior to the date on which
such prepayment would otherwise be required to be made, to defer the
making of such prepayment until the last day of such Interest Period
or such earlier date as such Borrower may specify in such notice.
64
C. General Provisions Regarding Payments.
(i) Manner and Time of Payment. All payments by Company of
principal, interest, fees and other Obligations hereunder and under the
Notes shall be made in Dollars in same day funds, and all payment by U.K.
Borrowers of principal, interest and other Obligations hereunder and under
the Notes in respect of the Sterling Loans shall be made in Sterling in
same day funds, in each case without defense, setoff or counterclaim, free
of any restriction or condition, and delivered to Administrative Agent not
later than 3:00 P.M. (New York City time) or 11:00 A.M. (London time), as
applicable, on the date due at the applicable Funding and Payment Office
for the account of Lenders; funds received by Administrative Agent after
that time on such due date shall be deemed to have been paid by Company on
the next succeeding Business Day.
(ii) Application of Payments to Principal and Interest. Except as
provided in subsection 2.2C, all payments in respect of the principal
amount of any Loan shall include payment of accrued interest on the
principal amount being repaid or prepaid, and all such payments (and, in
any event, any payments in respect of any Loan on a date when interest is
due and payable with respect to such Loan) shall be applied to the payment
of interest before application to principal.
(iii) Apportionment of Payments. Aggregate principal and interest
payments in respect of Term Loans and Revolving Loans shall be apportioned
among all outstanding Loans to which such payments relate, in each case
proportionately to Lenders' respective Pro Rata Shares. Administrative
Agent shall promptly distribute to each Lender, at its applicable Lending
Office or at such other address as such Lender may request, its Pro Rata
Share of all such payments received by Administrative Agent and the
commitment fees of such Lender when received by Administrative Agent
pursuant to subsection 2.3. Notwithstanding the foregoing provisions of
this subsection 2.4C(iii), if, pursuant to the provisions of subsection
2.6C, any Notice of Conversion/Continuation is withdrawn as to any
Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of
its Pro Rata Share of any LIBOR Loans, Administrative Agent shall give
effect thereto in apportioning payments received thereafter.
(iv) Payments on Business Days. Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day,
such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the payment of
interest hereunder or of the commitment fees hereunder, as the case may
be.
65
(v) Conversion of Amounts to Applicable Currencies. To the extent
funds received by Administrative Agent from any Loan Party (or debited
from any Loan Party's account with Administrative Agent) in Dollars or in
Sterling must be converted into the Applicable Currency required for any
payment hereunder, Administrative Agent shall effect such conversion on
the applicable payment date on the basis of the rate at which
Administrative Agent is able to purchase such Applicable Currency with
such other currency on such payment date.
D. Application of Proceeds of Collateral and Payments Under the
Guaranties.
(i) Application of Proceeds of Collateral. Subject to the provisions
of the Intercreditor Agreement, all proceeds received by Collateral Agent
in respect of any sale of, collection from, or other realization upon all
or any part of the Collateral under any Collateral Document may, in the
discretion of Collateral Agent, be held by Collateral Agent as Collateral
for, and/or (then or at any time thereafter) applied in full or in part by
Collateral Agent against, the applicable Secured Obligations (as defined
in such Collateral Document) in the following order of priority:
(a) To the payment of all costs and expenses of such sale,
collection or other realization, including reasonable compensation
to Collateral Agent and its agents and counsel, and all other
expenses, liabilities and advances made or incurred by Collateral
Agent in connection therewith, and all amounts for which Collateral
Agent is entitled to indemnification under such Collateral Document
and all advances made by Collateral Agent thereunder for the account
of the applicable Loan Party, and to the payment of all costs and
expenses paid or incurred by Collateral Agent in connection with the
exercise of any right or remedy under such Collateral Document, all
in accordance with the terms of this Agreement and such Collateral
Document;
(b) thereafter, to the extent of any excess such proceeds, to
the payment of all other such Secured Obligations for the ratable
benefit of the holders thereof; and
(c) thereafter, to the extent of any excess such proceeds, to
the payment to or upon the order of such Loan Party or to whosoever
may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.
(ii) Application of Payments Under the Guaranties. All payments
received by Collateral Agent under the Guaranties shall be applied
promptly from time to time by Collateral Agent in the following order of
priority:
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(a) To the payment of the costs and expenses of any collection
or other realization under the Guaranties, including reasonable
compensation to Collateral Agent and its agents and counsel, and all
expenses, liabilities and advances made or incurred by Collateral
Agent in connection therewith, all in accordance with the terms of
this Agreement and such Guaranty;
(b) thereafter, to the extent of any excess such payments, to
the payment of all other Guarantied Obligations (as defined in such
Guaranty) for the ratable benefit of the holders thereof; and
(c) thereafter, to the extent of any excess such payments, to
the payment to the applicable Guarantor or to whosoever may be
lawfully entitled to receive the same or as a court of competent
jurisdiction may direct.
2.5 Use of Proceeds.
A. Term Loans. The proceeds of the Term Loans (including the DelayedDraw
Term Loans) other than Sterling Loans, together with a portion of the proceeds
of the initial Revolving Loans (the "Recapitalization Revolving Loans") and the
proceeds of the debt and equity capitalization of Company described in
subsection 4.1D(ii), shall be applied by Company to fund the Recapitalization
Financing Requirements. The proceeds of the Sterling Loans made to ACI and UK
Holding shall be used for general corporate purposes; provided that no proceeds
of any Sterling Loan may be used in any way which infringes Section 151 of the
Companies ▇▇▇ ▇▇▇▇, as amended.
B. Revolving Loans; Swing Line Loans. The proceeds of the Recapitalization
Revolving Loans shall be applied by Company as provided in subsection 2.5A. The
proceeds of any other Revolving Loans and any Swing Line Loans shall be applied
by Company for general corporate purposes.
2.6 Special Provisions Governing LIBOR Loans.
Notwithstanding any other provision of this Agreement to the
contrary, the following provisions shall govern with respect to LIBOR Loans as
to the matters covered:
A. Determination of Applicable Interest Rate. As soon as practicable after
10:00 A.M. (New York City time), or, in the case of Sterling Loans, 11:00 A.M.
(London time), on each Interest Rate Determination Date, Administrative Agent
shall determine (which determination shall, absent clearly demonstrable error,
be final, conclusive and binding upon all parties) the interest rate that shall
apply to LIBOR Loans for which an interest rate is then being determined for the
applicable Interest Period and shall promptly give notice thereof (in writing or
by telephone confirmed in writing) to Company, the applicable U.K. Borrower (in
the case of Sterling Loans) and each Lender.
67
B. Inability to Determine Applicable Interest Rate. In the event that
Administrative Agent shall have reasonably determined (which determination
shall, absent clearly demonstrable error, be final and conclusive and binding
upon all parties hereto), on any Interest Rate Determination Date with respect
to any LIBOR Loans, that by reason of circumstances affecting the London
interbank market for the Applicable Currency adequate and fair means do not
exist for ascertaining the interest rate applicable to such Loans on the basis
provided for in the definition of LIBOR, Administrative Agent shall on such date
give notice (by telefacsimile or by telephone confirmed in writing) to the
applicable Borrower and each Lender of such determination, whereupon (i) no
Dollar Loans may be made as, or converted to, LIBOR Loans until such time as
Administrative Agent notifies the applicable Borrower and Lenders that the
circumstances giving rise to such notice no longer exist (which notice
Administrative Agent shall give at such time as such circumstances no longer
exist), (ii) any Notice of Borrowing or Notice of Conversion/Continuation given
by any Borrower with respect to the Dollar Loans in respect of which such
determination was made shall be deemed to be rescinded by such Borrower and
(iii) the provisions of subsection 2.6G shall apply with respect to Sterling
Loans.
C. Illegality or Impracticability of LIBOR Loans. In the event that on any
date any Lender shall have reasonably determined (which determination shall be
made only after consultation with Company and Administrative Agent, it being
understood that any such determination so made shall, absent clearly
demonstrable error, be final and conclusive and binding upon all parties hereto)
that the making, maintaining or continuation of its LIBOR Loans (i) has become
unlawful as a result of compliance by such Lender in good faith with any law,
treaty, governmental rule, regulation, guideline or order (or would conflict
with any such treaty, governmental rule, regulation, guideline or order not
having the force of law even though the failure to comply therewith would not be
unlawful) or (ii) has become impracticable as a result of contingencies
occurring after the date of this Agreement which materially and adversely affect
the London interbank market for the Applicable Currency then, and in any such
event, such Lender shall be an "Affected Lender" and it shall on that day give
notice (by telefacsimile or by telephone confirmed in writing) to the applicable
Borrower and Administrative Agent of such determination (which notice
Administrative Agent shall promptly transmit to each other Lender). Thereafter
(a) the obligation of the Affected Lender to make Loans as, or to convert Loans
to, LIBOR Loans shall be suspended until such notice shall be withdrawn by the
Affected Lender, (b) to the extent such determination by the Affected Lender
relates to a LIBOR Loan other than a Sterling Loan then being requested by
Company pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, the Affected Lender shall make such Loan as (or convert
such Loan to, as the case may be) a Base Rate Loan, (c) the Affected Lender's
obligation to maintain its outstanding LIBOR Loans (the "Affected Loans") shall
be terminated at the earlier to occur of the expiration of the Interest Period
then in effect with respect to the Affected Loans or when required by law, and
(d) any Affected Loans that are Dollar Loans shall automatically convert into
Base Rate Loans on the date of such termination. Notwithstanding the foregoing,
to the
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extent a determination by an Affected Lender as described above relates to a
LIBOR Loan then being requested by a Borrower pursuant to a Notice of Borrowing
or a Notice of Conversion/Continuation, such Borrower shall have the option,
subject to the provisions of subsection 2.6D, to rescind such Notice of
Borrowing or Notice of Conversion/Continuation as to all Lenders by giving
notice (by telefacsimile or by telephone confirmed in writing) to Administrative
Agent of such rescission on the date on which the Affected Lender gives notice
of its determination as described above (which notice of rescission
Administrative Agent shall promptly transmit to each other Lender). Except as
provided in the immediately preceding sentence, nothing in this subsection 2.6C
shall affect the obligation of any Lender other than an Affected Lender to make
or maintain Loans as, or to convert Loans to, LIBOR Loans in accordance with the
terms of this Agreement. Notwithstanding the foregoing, if Tranche A Lenders
having or holding more than 50% of the outstanding Sterling Loans are Affected
Lenders as a result of contingencies materially and adversely affecting the
London interbank Sterling market, Administrative Agent shall give prompt written
notice of such event to U.K. Borrowers and Lenders, in which event the
provisions of subsection 2.6G shall apply; provided that such notice shall not
relieve any Lender of any obligation to maintain its outstanding Sterling Loans
in accordance with the terms of this Agreement.
D. Compensation For Breakage or Non-Commencement of Interest Periods. The
applicable Borrower shall compensate each Lender, upon written request by that
Lender (which request shall set forth in reasonable detail the basis for
requesting such amounts), for all reasonable losses, costs and expenses
sustained by that Lender (including losses, costs and expenses actually
sustained by that Lender in connection with the liquidation or re-employment of
deposits or other funds acquired by it to make or carry the subject LIBOR Loans
but excluding any loss of anticipated profits): (i) if for any reason (other
than a default by that Lender or Administrative Agent) a borrowing of any LIBOR
Loan by such Borrower does not occur on a date specified therefor in a Notice of
Borrowing or a telephonic request for borrowing, or a conversion to or
continuation of any LIBOR Loan by such Borrower does not occur on a date
specified therefor in a Notice of Conversion/Continuation or a telephonic
request for conversion or continuation, (ii) if any prepayment (including any
prepayment pursuant to subsection 2.4B(i)) or other principal payment or any
conversion of any of such Borrower's LIBOR Loans occurs on a date prior to the
last day of an Interest Period applicable to that Loan or (iii) if any
prepayment of any of such Borrower's LIBOR Loans is not made on any date
specified in a notice of prepayment given by such Borrower.
E. Booking of LIBOR Loans. Any Lender may make, carry or transfer LIBOR
Loans at, to, or for the account of any of its branch offices or the office of
an Affiliate of that Lender; provided that Sterling Loans may only be made or
carried by a U.K. Qualifying Bank.
F. LIBOR Loans After Default. If, after the occurrence of and during the
continuation of a Potential Event of Default or an Event of Default,
Administrative Agent
69
or Requisite Lenders have determined in its or their sole discretion not to
permit the making or continuation of any Dollar Loans as, or the conversion of
any Dollar Loans to, LIBOR Loans and Administrative Agent has so notified
Borrowers in writing (i) Borrowers may not elect to have any Loans be made as or
converted to LIBOR Loans or elect to have any outstanding LIBOR Loans continued
as such after the expiration of the Interest Periods then in effect for such
LIBOR Loans, (ii) subject to the provisions of subsection 2.6D, any Notice of
Borrowing or Notice of Conversion/Continuation given by such Borrower with
respect to a requested borrowing or conversion/continuation in respect of LIBOR
Loans that has not yet occurred shall be deemed to be rescinded by such
Borrower, and (iii) Sterling Loans shall be automatically continued as LIBOR
Loans having consecutive Interest Periods of one month.
G. Certain Events Affecting Sterling Loans. During the period of 25 days
after the giving of any notice by Administrative Agent (i) of the inability to
determine a Sterling interest rate pursuant to subsection 2.6B or (ii) that more
than 50% of the Tranche A Lenders are Affected Lenders pursuant to subsection
2.6C, Administrative Agent (in consultation with Tranche A Lenders that are
affected by such notice (the "Affected Sterling Lenders") shall negotiate with
U.K. Borrowers in good faith in order to ascertain whether a substitute interest
rate (a "Substitute Rate") or a substitute basis (a "Substitute Basis") may be
agreed upon for the maintaining of existing Sterling Loans that are Affected
Loans. If a Substitute Rate or a Substitute Basis is agreed upon by U.K.
Borrowers and all Affected Sterling Lenders, such Substitute Rate or such
Substitute Basis, as the case may be, shall apply in accordance with its terms
from the time referred to in clause (c) of the second sentence of subsection
2.6C. If a Substitute Rate or a Substitute Basis is not so agreed upon by U.K.
Borrowers and all Affected Sterling Lenders by the end of such 25-day period,
each Affected Sterling Lender's Sterling Loans shall thereafter bear interest at
a rate equal to the sum of (x) the rate certified by such Affected Sterling
Lender to be its cost of funds (from such sources as it may reasonably select
out of those sources then available to it) for such Sterling Loans plus (y) the
Applicable Tranche A LIBOR Margin plus (z) any Mandatory Liquid Asset Costs
incurred by such Affected Sterling Lender in respect of such Sterling Loans from
time to time.
2.7 Increased Costs; Capital Adequacy.
A. Compensation for Increased Costs and Taxes. Subject to the provisions
of subsection 2.7B (which shall be controlling with respect to the matters
covered thereby), in the event that any Lender shall reasonably determine (which
determination shall, absent clearly demonstrable error, be final and conclusive
and binding upon all parties hereto) that the introduction or adoption (after
the date hereof) of any law, treaty or governmental rule, regulation or order,
or that any change (after the date hereof) in any law, treaty or governmental
rule, regulation or order or in the interpretation, administration or
application thereof, or that any determination (after the date hereof) by a
court or governmental authority, or that compliance by such Lender with any
guideline,
70
request or directive issued or made (after the date hereof) by any central bank
or other governmental or quasi-governmental authority (whether or not having the
force of law), in any such case:
(i) subjects such Lender (or its applicable Lending Office) to any
additional Tax (excluding (x) any Tax on the overall net income of such
Lender and (y) any Tax imposed on any Agent or any Lender as result of a
present or former connection between the jurisdiction imposing such Taxes
and such Lender (except a present connection arising solely from such
Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced any Loan Documents))
with respect to this Agreement or any of its obligations hereunder or any
payments to such Lender (or its applicable Lending Office) of principal,
interest, fees or any other amount payable hereunder (any such
non-excluded Tax, a "Non-Excluded Tax");
(ii) imposes, modifies or holds applicable any reserve (including
any marginal, emergency, supplemental, special or other reserve), special
deposit, compulsory loan, FDIC insurance or similar requirement against
assets held by, or deposits or other liabilities in or for the account of,
or advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Lender (other than any
included within the definition of Mandatory Liquid Asset Costs); or
(iii) imposes any other condition (other than with respect to a Tax
matter) on or affecting such Lender (or its applicable Lending Office) or
its obligations hereunder or the London interbank market for the
Applicable Currency;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable Lending Office) with
respect thereto; then, in any such case, the applicable Borrower shall pay to
such Lender, promptly after receipt of the statement referred to in the next
sentence, such additional amount or amounts (in the form of an increased rate
of, or a different method of calculating, interest or otherwise as such Lender
in its reasonable discretion shall determine) as may be necessary to compensate
such Lender for any such increased cost or reduction in amounts received or
receivable hereunder. Such Lender shall deliver to the applicable Borrower (with
a copy to Administrative Agent) a written statement, setting forth in reasonable
detail the basis for calculating the additional amounts owed to such Lender
under this subsection 2.7A, which statement shall be conclusive and binding upon
all parties hereto absent clearly demonstrable error. Notwithstanding the
foregoing, neither U.K. Borrower shall be obligated to compensate any Lender
under this subsection 2.7A in respect of any increased cost which is incurred as
a result of the implementation after the date hereof, in whole or in part, of
the International Convergence of Capital Measurements and Capital Standards
dated July 1988 published by the Basle Committee on Banking Regulations and
71
Supervisory Practices (the "Guidance"), except where a higher level of capital
adequacy is imposed than that stipulated in the Guidance as at the date of this
Agreement.
B. Withholding of Taxes.
(i) Payments to Be Free and Clear. All sums payable by Borrowers
under this Agreement and the other Loan Documents shall (except to the
extent required by law) be paid free and clear of, and without any
deduction or withholding on account of, any Non-Excluded Tax imposed,
levied, collected, withheld or assessed by or within the United States of
America or the United Kingdom or any political subdivision in or of the
United States of America or the United Kingdom or any other jurisdiction
from or to which a payment is made by or on behalf of any Borrower or by
any federation or organization of which the United States of America or
the United Kingdom or any such jurisdiction is a member at the time of
payment.
(ii) Grossing-up of Payments. If any Borrower or any other Person is
required by law to make any deduction or withholding on account of any
such Non-Excluded Tax from any sum paid or payable by such Borrower to
Administrative Agent or any Lender under any of the Loan Documents:
(a) such Borrower shall notify Administrative Agent of any
such requirement or any change in any such requirement as soon as
such Borrower becomes aware of it;
(b) such Borrower shall pay any such Non-Excluded Tax before
the date on which penalties attach thereto, such payment to be made
(if the liability to pay is imposed on such Borrower) for its own
account or (if that liability is imposed on Administrative Agent or
such Lender, as the case may be) on behalf of and in the name of
Administrative Agent or such Lender;
(c) the sum payable by such Borrower in respect of which the
relevant deduction, withholding or payment is required shall be
increased to the extent necessary to ensure that, after the making
of that deduction, withholding or payment, Administrative Agent or
such Lender, as the case may be, receives on the due date a net sum
equal to what it would have received had no such deduction,
withholding or payment been required or made; and
(d) within 30 days after paying any sum from which it is
required by law to make any deduction or withholding, and within 30
days after the due date of payment of any Non-Excluded Tax which it
is required by clause (b) above to pay, such Borrower shall deliver
to Administrative
72
Agent evidence satisfactory to the other affected parties of such
deduction, withholding or payment and of the remittance thereof to
the relevant taxing or other authority;
provided that no such additional amount shall be required to be paid to
any Lender under clause (c) above except to the extent that any change
after the date hereof (in the case of each Lender listed on the signature
pages hereof) or after the date of the Assignment Agreement pursuant to
which such Lender became a Lender (in the case of each other Lender) in
any such requirement for a deduction, withholding or payment as is
mentioned therein shall result in an increase in the rate of such
deduction, withholding or payment from that in effect at the date of this
Agreement or at the date of such Assignment Agreement, as the case may be,
in respect of payments to such Lender.
(iii) Evidence of Exemption from U.S. Withholding Tax.
(a) Each Lender that is organized under the laws of any
jurisdiction other than the United States or any state or other
political subdivision thereof (for purposes of this subsection
2.7B(iii), a "Non-US Lender") shall deliver to Administrative Agent
for transmission to Company, on or prior to the Closing Date (in the
case of each Lender listed on the signature pages hereof) or on or
prior to the date of the Assignment Agreement pursuant to which it
becomes a Lender (in the case of each other Lender), and at such
other times as may be necessary in the determination of Company or
Administrative Agent (each in the reasonable exercise of its
discretion), (1) two original copies of Internal Revenue Service
Form 1001 or 4224 (or any successor forms), properly completed and
duly executed by such Lender, together with any other certificate or
statement of exemption required under the Internal Revenue Code or
the regulations issued thereunder to establish that such Lender is
not subject to deduction or withholding of United States federal
income tax with respect to any payments to such Lender of principal,
interest, fees or other amounts payable under any of the Loan
Documents or (2) if such Lender is not a "bank" or other Person
described in Section 881(c)(3) of the Internal Revenue Code and
cannot deliver either Internal Revenue Service Form 1001 or 4224
pursuant to clause (1) above, a Certificate re Non-Bank Status
together with two original copies of Internal Revenue Service Form
W-8 (or any successor form), properly completed and duly executed by
such Lender, together with any other certificate or statement of
exemption required under the Internal Revenue Code or the
regulations issued thereunder to establish that such Lender is not
subject to deduction or withholding of United States federal income
tax with respect to any payments to such Lender of interest payable
under any of the Loan Documents.
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(b) Each Lender required to deliver any forms, certificates or
other evidence with respect to United States federal income tax
withholding matters pursuant to subsection 2.7B(iii)(a) hereby
agrees, from time to time after the initial delivery by such Lender
of such forms, certificates or other evidence, whenever a lapse in
time or change in circumstances renders such forms, certificates or
other evidence obsolete or inaccurate in any material respect, that
such Lender shall promptly (1) deliver to Administrative Agent for
transmission to Company two new original copies of Internal Revenue
Service Form 1001 or 4224, or a Certificate re Non-Bank Status and
two original copies of Internal Revenue Service Form W-8, as the
case may be, properly completed and duly executed by such Lender,
together with any other certificate or statement of exemption
required in order to confirm or establish that such Lender is not
subject to deduction or withholding of United States federal income
tax with respect to payments to such Lender under the Loan Documents
or (2) notify Administrative Agent and Company of its inability to
deliver any such forms, certificates or other evidence.
(c) Company shall not be required to pay any additional amount
to any Non-US Lender under clause (c) of subsection 2.7B(ii) if such
Lender shall have failed to satisfy the requirements of clause (a)
or (b)(1) of this subsection 2.7B(iii); provided that if such Lender
shall have satisfied the requirements of subsection 2.7B(iii)(a) on
the Closing Date (in the case of each Lender listed on the signature
pages hereof) or on the date of the Assignment Agreement pursuant to
which it became a Lender (in the case of each other Lender), nothing
in this subsection 2.7B(iii)(c) shall relieve Company of its
obligation to pay any additional amounts pursuant to clause (c) of
subsection 2.7B(ii) in the event that, as a result of any change in
any applicable law, treaty or governmental rule, regulation or
order, or any change in the interpretation, administration or
application thereof, such Lender is no longer properly entitled to
deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender is not subject to withholding
as described in subsection 2.7B(iii)(a).
(iv) U.K. Tax Status.
(a) Each Tranche A Lender represents and warrants that it is a
U.K. Qualifying Bank and hereby agrees to deliver to Administrative
Agent from time to time such forms, certificates or other evidence
with respect to its status as a U.K. Qualifying Bank as
Administrative Agent may reasonably request from time to time.
(b) Neither U.K. Borrower shall be required to pay any
additional amount to any Lender under clause (c) of subsection
2.7B(ii) in respect of deductions or withholdings of income or
similar taxes imposed by the
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ with respect to payments by such U.K. Borrower which
would not have been imposed on such payment if the Lender to which
such payment was made was at the date of payment a U.K. Qualifying
Bank and was beneficially entitled to the interest.
C. Capital Adequacy Adjustment. If any Lender shall have determined that
the introduction or adoption (after the date hereof) of any law, rule or
regulation (or any provision thereof) regarding capital adequacy, or that any
change (after the date hereof) therein or in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or that
compliance by any Lender (or its applicable Lending Office) with any guideline,
request or directive regarding capital adequacy (whether or not having the force
of law) introduced or adopted (after the date hereof) by any such governmental
authority, central bank or comparable agency, in any such case has or would have
the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's Loans or
Commitments or Letters of Credit or participations therein or other obligations
hereunder with respect to the Loans or the Letters of Credit to a level below
that which such Lender or such controlling corporation could have achieved but
for such introduction, adoption, change or compliance (taking into consideration
the policies of such Lender or such controlling corporation with regard to
capital adequacy), then from time to time, promptly after receipt by the
applicable Borrower from such Lender of the statement referred to in the next
sentence, such Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such controlling corporation for such
reduction. Such Lender shall deliver to such Borrower (with a copy to
Administrative Agent) a written statement setting forth in reasonable detail the
basis of the calculation of such additional amounts, which statement shall be
conclusive and binding upon all parties hereto absent clearly demonstrable
error.
2.8 Notice of Certain Costs; Obligation of Lenders and Issuing Lenders to
Mitigate.
A. Notwithstanding anything in this Agreement to the contrary, to
the extent subsection 2.6, 2.7 or 3.6 requires any Lender or Issuing Lender to
give notice to any Borrower of an event or a condition that would entitle such
Lender or Issuing Lender to receive payments under subsection 2.6, 2.7 or 3.6,
as the case may be, in the event such notice is given by such Lender or Issuing
Lender more than 180 days after such Lender or Issuing Lender has knowledge of
the occurrence or existence of such event or circumstance, such Lender or
Issuing Lender shall not be entitled to receive any such payments under
subsection 2.6, 2.7 or 3.6, as the case may be, in respect of the period ending
on the Business Day immediately preceding the date on which such notice is given
to such Borrower.
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B. Each Lender and Issuing Lender agrees that, if an event occurs or
a condition arises that would cause such Lender to become an Affected Lender or
that would entitle such Lender or Issuing Lender to receive payments under
subsection 2.7 or subsection 3.6, it will, if so requested by any applicable
Borrower, use reasonable efforts (subject to overall policy considerations of
such Lender) to (i) make, issue, fund or maintain the Commitments of such Lender
or the affected Loans or Letters of Credit (or participations therein) of such
Lender or Issuing Lender through another lending or letter of credit office of
such Lender or Issuing Lender or (ii) take such other measures as such Lender or
Issuing Lender may deem reasonable in good faith, if as a result thereof the
circumstances which would cause such Lender to be an Affected Lender would cease
to exist or the additional amounts which would otherwise be required to be paid
to such Lender or Issuing Lender pursuant to subsection 2.7 or subsection 3.6
would be materially reduced and if the making, issuing, funding or maintaining
of such Commitments or Loans or Letters of Credit (or participations therein)
through such other lending or letter of credit office or in accordance with such
other measures, as the case may be, would not otherwise materially adversely
affect such Commitments or Loans or Letters of Credit (or participations
therein) or cause such Lender or Issuing Lender to suffer any economic, legal or
regulatory disadvantage or (except with the express consent of the applicable
Borrower) cause such Lender not to be a U.K. Qualifying Bank; provided that
nothing in this subsection 2.8 shall affect or postpone any of the Obligations
of any Borrower or the rights of any Lender provided in subsection 2.6C, 2.6G,
2.7 or 3.6.
2.9 Defaulting Lenders.
Anything contained herein to the contrary notwithstanding, in the
event that any Lender (a "Defaulting Lender") defaults (a "Funding Default") in
its obligation to fund any Revolving Loan (a "Defaulted Revolving Loan") in
accordance with subsection 2.1 as a result of the appointment of a receiver or
conservator with respect to such Lender at the direction or request of any
regulatory agency or authority, then (i) during any Default Period (as defined
below) with respect to such Defaulting Lender, such Defaulting Lender shall be
deemed not to be a "Lender" for purposes of voting on any matters (including the
granting of any consents or waivers) with respect to any of the Loan Documents,
(ii) to the extent permitted by applicable law, until such time as the Default
Excess (as defined below) with respect to such Defaulting Lender shall have been
reduced to zero, (a) any voluntary prepayment of the Revolving Loans pursuant to
subsection 2.4B(i) shall, if Company so directs at the time of making such
voluntary prepayment, be applied to the Revolving Loans of other Lenders as if
such Defaulting Lender had no Revolving Loans outstanding and the Revolving Loan
Exposure of such Defaulting Lender were zero, and (b) any mandatory prepayment
of the Revolving Loans pursuant to subsection 2.4B(iii) shall, if Company so
directs at the time of making such mandatory prepayment, be applied to the
Revolving Loans of other Lenders (but not to the Revolving Loans of such
Defaulting Lender) as if such Defaulting Lender had funded all Defaulted
Revolving Loans of such Defaulting Lender, it being understood and agreed
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that Company shall be entitled to retain any portion of any mandatory prepayment
of the Revolving Loans that is not paid to such Defaulting Lender solely as a
result of the operation of the provisions of this clause (b), (iii) such
Defaulting Lender's Revolving Loan Commitment and outstanding Revolving Loans
and such Defaulting Lender's Pro Rata Share of the Letter of Credit Usage shall
be excluded for purposes of calculating the commitment fee payable to Lenders
pursuant to subsection 2.3A in respect of any day during any Default Period with
respect to such Defaulting Lender, and such Defaulting Lender shall not be
entitled to receive any commitment fee pursuant to subsection 2.3A with respect
to such Defaulting Lender's Revolving Loan Commitment in respect of any Default
Period with respect to such Defaulting Lender, and (iv) the Total Utilization of
Revolving Loan Commitments as at any date of determination shall be calculated
as if such Defaulting Lender had funded all Defaulted Revolving Loans of such
Defaulting Lender.
For purposes of this Agreement, (I) "Default Period" means, with
respect to any Defaulting Lender, the period commencing on the date of the
applicable Funding Default and ending on the earliest of the following dates:
(A) the date on which all Revolving Loan Commitments are cancelled or terminated
and/or the Obligations are declared or become immediately due and payable, (B)
the date on which (1) the Default Excess with respect to such Defaulting Lender
shall have been reduced to zero (whether by the funding by such Defaulting
Lender of any Defaulted Revolving Loans of such Defaulting Lender or by the
non-pro rata application of any voluntary or mandatory prepayments of the
Revolving Loans in accordance with the terms of this subsection 2.9 or by a
combination thereof) and (2) such Defaulting Lender shall have delivered to
Company and Administrative Agent a written reaffirmation of its intention to
honor its obligations under this Agreement with respect to its Revolving Loan
Commitment, and (C) the date on which Company, Administrative Agent and
Requisite Lenders waive all Funding Defaults of such Defaulting Lender in
writing, and (II) "Default Excess" means, with respect to any Defaulting Lender,
the excess, if any, of such Defaulting Lender's Pro Rata Share of the aggregate
outstanding principal amount of Revolving Loans of all Lenders (calculated as if
all Defaulting Lenders (other than such Defaulting Lender) had funded all of
their respective Defaulted Revolving Loans) over the aggregate outstanding
principal amount of Revolving Loans of such Defaulting Lender.
No Commitment of any Lender shall be increased or otherwise
affected, and, except as otherwise expressly provided in this subsection 2.9,
performance by Company of its obligations under this Agreement and the other
Loan Documents shall not be excused or otherwise modified, as a result of any
Funding Default or the operation of this subsection 2.9. The rights and remedies
against a Defaulting Lender under this subsection 2.9 are in addition to other
rights and remedies which Company may have against such Defaulting Lender with
respect to any Funding Default and which Administrative Agent or any Lender may
have against such Defaulting Lender with respect to any Funding Default.
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2.10 Removal or Replacement of a Lender.
A. Anything contained in this Agreement to the contrary notwithstanding,
in the event that:
(i) (a) any Lender (an "Increased-Cost Lender") shall give notice to
any Borrower that such Lender is an Affected Lender or that such Lender is
entitled to receive payments under subsection 2.7 or subsection 3.6, (b)
the circumstances which have caused such Lender to be an Affected Lender
or which entitle such Lender to receive such payments shall remain in
effect, and (c) such Lender shall fail to withdraw such notice within five
Business Days after such Borrower's request for such withdrawal; or
(ii) (a) any Lender shall become a Defaulting Lender, (b) the
Default Period for such Defaulting Lender shall remain in effect, and (c)
such Defaulting Lender shall fail to cure the default as a result of which
it has become a Defaulting Lender within five Business Days after
Company's request that it cure such default; or
(iii) (a) in connection with any proposed amendment, modification,
termination, waiver or consent with respect to any of the provisions of
this Agreement as contemplated by clauses (i) through (iv) of the first
proviso to subsection 10.6A, the consent of Requisite Lenders shall have
been obtained but the consent of one or more of such other Lenders (each a
"Non-Consenting Lender") whose consent is required shall not have been
obtained, and (b) the failure to obtain Non-Consenting Lenders' consents
does not result solely from the exercise of Non-Consenting Lenders' rights
(and the withholding of any required consents by Non-Consenting Lenders)
pursuant to the second proviso to subsection 10.6A;
then, and in each such case, Company shall have the right, at its option and on
behalf of all Borrowers, to remove or replace the applicable Increased-Cost
Lender, Defaulting Lender or Non-Consenting Lender (the "Terminated Lender") to
the extent permitted by subsection 2.10B.
B. Company may, by giving written notice to Administrative Agent and any
Terminated Lender of its election to do so:
(i) elect to (a) terminate the Revolving Loan Commitment, if any, of
such Terminated Lender upon receipt by such Terminated Lender of such
notice and (b) prepay on the date of such termination any outstanding
Loans made by such Terminated Lender, together with accrued and unpaid
interest thereon and any other amounts payable to such Terminated Lender
hereunder pursuant to subsection 2.6, subsection 2.7 or subsection 3.6 or
otherwise; provided that, in the event such
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Terminated Lender has any Loans outstanding at the time of such
termination, the written consent of Administrative Agent and Requisite
Lenders (which consent shall not be unreasonably withheld or delayed)
shall be required in order for Company to make the election set forth in
this clause (i); or
(ii) elect to cause such Terminated Lender (and such Terminated
Lender hereby irrevocably agrees) to assign its outstanding Loans and its
Revolving Loan Commitment, if any, in full to one or more Eligible
Assignees (each a "Replacement Lender") in accordance with the provisions
of subsection 10.1B; provided that (a) on the date of such assignment, the
applicable Borrower shall pay any amounts payable to such Terminated
Lender pursuant to subsection 2.6, subsection 2.7 or subsection 3.6 or
otherwise as if it were a prepayment and (b) in the event such Terminated
Lender is a Non-Consenting Lender, each Replacement Lender shall consent,
at the time of such assignment, to each matter in respect of which such
Terminated Lender was a Non-Consenting Lender;
provided that (X) Company may not make either of the elections set forth in
clauses (i) or (ii) above with respect to any Non-Consenting Lender unless
Company also makes one of such elections with respect to each other Terminated
Lender which is a Non-Consenting Lender and (Y) Company may not make either of
such elections with respect to any Terminated Lender that is an Issuing Lender
unless, prior to the effectiveness of such election, Company shall have caused
each outstanding Letter of Credit issued by such Issuing Lender to be cancelled.
C. Upon the prepayment of all amounts owing to any Terminated Lender and
the termination of such Terminated Lender's Revolving Loan Commitment, if any,
pursuant to clause (i) of subsection 2.10B, (i) Schedule 2.1 shall be deemed
modified to reflect any corresponding changes in the Revolving Loan Commitments
and (ii) such Terminated Lender shall no longer constitute a "Lender" for
purposes of this Agreement; provided that any rights of such Terminated Lender
to indemnification under this Agreement (including under subsections 2.6D, 2.7,
3.6, 10.2 and 10.3) shall survive as to such Terminated Lender.
Section 3. LETTERS OF CREDIT
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations
Therein.
A. Letters of Credit. In addition to Company requesting that Lenders make
Revolving Loans pursuant to subsection 2.1A(iv) and that Swing Line Lender make
Swing Line Loans pursuant to subsection 2.1A(v), Company may request, in
accordance with the provisions of this subsection 3.1, from time to time during
the period from the Closing Date to but excluding the Revolving Loan Commitment
Termination Date, that one or more Lenders issue Letters of Credit for the
account of Company for the purposes
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specified in the definitions of Commercial Letters of Credit and Standby Letters
of Credit. Subject to the terms and conditions of this Agreement and in reliance
upon the representations and warranties of Company herein set forth, any one or
more Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be
obligated to, issue such Letters of Credit in accordance with the provisions of
this subsection 3.1; provided that Company shall not request that any Lender
issue (and no Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance,
the Total Utilization of Revolving Loan Commitments would exceed the
Revolving Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance,
the Letter of Credit Usage would exceed $100,000,000;
(iii) any Standby Letter of Credit having an expiration date later
than the earlier of (a) five Business Days prior to the Revolving Loan
Commitment Termination Date and (b) the date which is one year from the
date of issuance of such Standby Letter of Credit; provided that the
immediately preceding clause (b) shall not prevent any Issuing Lender from
agreeing that a Standby Letter of Credit will automatically be extended
for one or more successive periods not to exceed one year each unless such
Issuing Lender elects not to extend for any such additional period; and
provided, further that such Issuing Lender shall elect not to extend such
Standby Letter of Credit if it has been notified by Administrative Agent
that an Event of Default has occurred and is continuing (and has not been
waived in accordance with subsection 10.6) at the time such Issuing Lender
must elect whether or not to allow such extension;
(iv) any Commercial Letter of Credit having an expiration date (a)
later than the earlier of (X) the date which is 30 days prior to the
Revolving Loan Commitment Termination Date and (Y) the date which is 180
days from the date of issuance of such Commercial Letter of Credit or (b)
that is otherwise unacceptable to the applicable Issuing Lender in its
reasonable discretion; or
(v) any Letter of Credit that does not provide for sight payment.
B. Mechanics of Issuance.
(i) Notice of Request for Issuance. Whenever Company desires the
issuance of a Letter of Credit, it shall deliver to Administrative Agent a
Notice of Request for Issuance of Letter of Credit substantially in the
form of Exhibit III annexed hereto no later than 12:00 Noon (New York City
time) at least three Business Days (in the case of Standby Letters of
Credit) or five Business Days (in the case of Commercial Letters of
Credit), or in each case such shorter period as may be agreed to by the
Issuing Lender in any particular instance, in advance of
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the proposed date of issuance. The Notice of Request for Issuance of
Letter of Credit shall specify (a) the proposed date of issuance (which
shall be a Business Day), (b) whether the Letter of Credit is to be a
Standby Letter of Credit or a Commercial Letter of Credit, (c) the face
amount of the Letter of Credit, (d) in the case of a Letter of Credit
which Company requests to be denominated in a currency other than Dollars,
the currency in which Company requests such Letter of Credit to be issued,
(e) the expiration date of the Letter of Credit, (f) the name and address
of the beneficiary, and (g) either the verbatim text of the proposed
Letter of Credit or the proposed terms and conditions thereof, including a
precise description of any documents to be presented by the beneficiary
which, if presented by the beneficiary in substantial compliance with the
terms and conditions of the Letter of Credit on or prior to the expiration
date of the Letter of Credit, would require the Issuing Lender to make
payment under the Letter of Credit; provided that the Issuing Lender, in
its reasonable discretion, may require changes in the text of the proposed
Letter of Credit or any such documents; and provided, further that no
Letter of Credit shall require payment against a conforming draft to be
made thereunder on the same business day (under the laws of the
jurisdiction in which the office of the Issuing Lender to which such draft
is required to be presented is located) that such draft is presented if
such presentation is made after 11:00 A.M. (in the time zone of such
office of the Issuing Lender) on such business day.
Company shall notify the applicable Issuing Lender (and
Administrative Agent, if Administrative Agent is not such Issuing Lender)
prior to the issuance of any Letter of Credit in the event that any of the
matters to which Company is required to certify in the applicable Notice
of Request for Issuance of Letter of Credit is no longer true and correct
as of the proposed date of issuance of such Letter of Credit, and upon the
issuance of any Letter of Credit Company shall be deemed to have
re-certified, as of the date of such issuance, as to the matters to which
Company is required to certify in the applicable Notice of Request for
Issuance of Letter of Credit.
(ii) Determination of Issuing Lender. Upon receipt by Administrative
Agent of a Notice of Request for Issuance of Letter of Credit pursuant to
subsection 3.1B(i) requesting the issuance of a Letter of Credit, in the
event Administrative Agent elects to issue such Letter of Credit,
Administrative Agent shall promptly so notify Company, and Administrative
Agent shall be the Issuing Lender with respect thereto. In the event that
Administrative Agent, in its sole discretion, elects not to issue such
Letter of Credit, Administrative Agent shall promptly so notify Company,
whereupon Company may request any other Lender to issue such Letter of
Credit by delivering to such Lender a copy of the applicable Notice of
Request for Issuance of Letter of Credit. Any Lender so requested to issue
such Letter of Credit shall promptly notify Company and Administrative
Agent whether or not, in its sole discretion, it has elected to issue such
Letter of
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Credit, and any such Lender which so elects to issue such Letter of Credit
shall be the Issuing Lender with respect thereto. In the event that all
other Lenders shall have declined to issue such Letter of Credit,
notwithstanding the prior election of Administrative Agent not to issue
such Letter of Credit, Administrative Agent shall be obligated to issue
such Letter of Credit and shall be the Issuing Lender with respect
thereto, notwithstanding the fact that the Letter of Credit Usage with
respect to such Letter of Credit and with respect to all other Letters of
Credit issued by Administrative Agent, when aggregated with Administrative
Agent's outstanding Revolving Loans and Swing Line Loans, may exceed
Administrative Agent's Revolving Loan Commitment then in effect; provided
that Administrative Agent shall not be obligated to issue any Letter of
Credit denominated in a foreign currency which in the judgment of
Administrative Agent is not readily and freely available.
Company shall notify the applicable Issuing Lender (and
Administrative Agent, if Administrative Agent is not such Issuing Lender)
prior to the issuance of any Letter of Credit in the event that any of the
matters to which Company is required to certify in the applicable Notice
of Request for Issuance of Letter of Credit is no longer true and correct
as of the proposed date of issuance of such Letter of Credit, and upon the
issuance of any Letter of Credit Company shall be deemed to have
re-certified, as of the date of such issuance, as to the matters to which
Company is required to certify in the applicable Notice of Request for
Issuance of Letter of Credit.
(iii) Issuance of Letter of Credit. Upon satisfaction or waiver (in
accordance with subsection 10.6) of the conditions set forth in subsection
4.3, the Issuing Lender shall issue the requested Letter of Credit in
accordance with the Issuing Lender's standard operating procedures.
(iv) Notification to Lenders Regarding Standby Letters of Credit.
Upon the issuance of any Standby Letter of Credit the applicable Issuing
Lender shall promptly notify Administrative Agent and each other Lender of
such issuance, which notice shall be accompanied by a copy of such Standby
Letter of Credit. Promptly after receipt of such notice (or, if
Administrative Agent is the Issuing Lender, together with such notice),
Administrative Agent shall notify each Lender of the amount of such
Lender's respective participation in such Standby Letter of Credit,
determined in accordance with subsection 3.1C. In addition, on the first
Business Day of each calendar month each Issuing Lender shall deliver to
Administrative Agent and each Lender a report setting forth the maximum
aggregate amount which is at or any time thereafter may become available
for drawing under all Standby Letters of Credit issued by such Issuing
Lender then outstanding (any amount which is denominated in a currency
other than Dollars being determined by reference to the applicable
Exchange Rate for such currency as at such date), and identifying each
Standby Letter of Credit issued by such
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Issuing Lender, the maximum amount that may become available thereunder
and, in the case of each Standby Letter of Credit that is not denominated
in Dollars, the applicable Exchange Rate for such Letter of Credit as at
such date.
(v) Reports to Administrative Agent and Lenders Regarding Commercial
Letters of Credit. Each Issuing Lender (other than Administrative Agent)
with respect to any Commercial Letter of Credit shall deliver to
Administrative Agent, by telefacsimile transmission on the first Business
Day of each week, a report setting forth the daily aggregate amount
available for drawing during the immediately preceding week under all
outstanding Commercial Letters of Credit issued by such Issuing Lender.
Within 15 days after the end of each calendar month ending after the
Closing Date, so long as any Commercial Letter of Credit shall have been
outstanding during such calendar month, Administrative Agent shall deliver
to each Lender a report setting forth for such calendar month the daily
aggregate amount available to be drawn under all Commercial Letters of
Credit that were outstanding during such calendar month.
C. Lenders' Purchase of Participations in Letters of Credit. Immediately
upon the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby agrees to, have irrevocably purchased from the Issuing Lender a
participation in such Letter of Credit and any drawings honored thereunder in an
amount equal to such Lender's Pro Rata Share of the maximum amount which is or
at any time may become available to be drawn thereunder.
3.2 Letter of Credit Fees.
Company agrees to pay the following amounts with respect to Letters
of Credit issued hereunder:
(i) with respect to each Letter of Credit, (a) a fronting fee,
payable directly to the applicable Issuing Lender for its own account,
equal to 0.125% per annum multiplied by the daily amount available to be
drawn under such Letter of Credit and (b) a letter of credit fee, payable
to Administrative Agent for the account of Lenders, equal to the
Applicable Tranche A LIBOR Margin minus 0.125% per annum minus the
Applicable Commitment Fee Percentage multiplied by the daily amount
available to be drawn under such Letter of Credit, each such fronting fee
or letter of credit fee to be payable in arrears on and to (but excluding)
each March 31, June 30, September 30 and December 31 of each year and on
the Revolving Loan Commitment Termination Date, in each case computed on
the basis of a 365-day or 366-day year, as the case may be, for the actual
number of days elapsed; and
(ii) with respect to the issuance, amendment or transfer of each
Letter of Credit and each payment of a drawing made thereunder (without
duplication of the
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fees payable under clause (i) above), customary documentary and processing
charges payable directly to the applicable Issuing Lender for its own
account in accordance with such Issuing Lender's standard schedule for
such charges in effect at the time of such issuance, amendment, transfer
or payment, as the case may be.
For purposes of calculating any fees payable under clause (i) of this subsection
3.2, (1) the daily amount available to be drawn under any Letter of Credit shall
be determined as of the close of business on any date of determination and (2)
any amount described in such clause which is denominated in a currency other
than Dollars shall be valued based on the applicable Exchange Rate for such
currency as of the applicable date of determination. Promptly upon receipt by
Administrative Agent of any amount described in clause (i)(b) of this subsection
3.2, Administrative Agent shall distribute to each Lender its Pro Rata Share of
such amount.
3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit.
A. Responsibility of Issuing Lender With Respect to Drawings. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to examine the
documents delivered under such Letter of Credit with reasonable care so as to
ascertain whether they appear on their face to be in substantial compliance with
the terms and conditions of such Letter of Credit.
B. Reimbursement by Company of Amounts Paid Under Letters of Credit. In
the event an Issuing Lender has determined to honor a drawing under a Letter of
Credit issued by it, such Issuing Lender shall immediately notify Company and
Administrative Agent, and Company shall reimburse such Issuing Lender on or
before the Business Day immediately following the date on which such drawing is
honored (the "Reimbursement Date") in an amount in Dollars (which amount, in the
case of a drawing under a Letter of Credit which is denominated in a currency
other than Dollars, shall be calculated by reference to the applicable Exchange
Rate) and in same day funds equal to the amount of such honored drawing;
provided that, anything contained in this Agreement to the contrary
notwithstanding, (i) unless Company shall have notified Administrative Agent and
such Issuing Lender prior to 11:00 A.M. (New York City time) on the date such
drawing is honored that Company intends to reimburse such Issuing Lender for the
amount of such honored drawing with funds other than the proceeds of Revolving
Loans, Company shall be deemed to have given a timely Notice of Borrowing to
Administrative Agent requesting Lenders to make Revolving Loans that are Base
Rate Loans on the Reimbursement Date in an amount in Dollars (which amount, in
the case of a drawing under a Letter of Credit which is denominated in a
currency other than Dollars, shall be calculated by reference to the applicable
Exchange Rate) equal to the amount of such honored drawing and (ii) subject to
satisfaction or waiver of the conditions specified in subsection 4.2B, Lenders
shall, on the Reimbursement Date, make Revolving Loans that are Base Rate Loans
in the amount of such honored drawing, the proceeds of which
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shall be applied directly by Administrative Agent to reimburse such Issuing
Lender for the amount of such honored drawing; and provided, further that if for
any reason proceeds of Revolving Loans are not received by such Issuing Lender
on the Reimbursement Date in an amount equal to the amount of such honored
drawing, Company shall reimburse such Issuing Lender, on demand, in an amount in
same day funds equal to the excess of the amount of such honored drawing over
the aggregate amount of such Revolving Loans, if any, which are so received.
Nothing in this subsection 3.3B shall be deemed to relieve any Lender from its
obligation to make Revolving Loans on the terms and conditions set forth in this
Agreement, and Company shall retain any and all rights it may have against any
Lender resulting from the failure of such Lender to make such Revolving Loans
under this subsection 3.3B.
C. Payment by Lenders of Unreimbursed Amounts Paid Under Letters of
Credit.
(i) Payment by Lenders. In the event that Company shall fail for any
reason to reimburse any Issuing Lender as provided in subsection 3.3B in
an amount (calculated, in the case of a drawing under a Letter of Credit
denominated in a currency other than Dollars, by reference to the
applicable Exchange Rate) equal to the amount of any drawing honored by
such Issuing Lender under a Letter of Credit issued by it, such Issuing
Lender shall promptly notify each other Lender of the unreimbursed amount
of such honored drawing and of such other Lender's respective
participation therein based on such Lender's Pro Rata Share. Each Lender
shall make available to such Issuing Lender an amount equal to its
respective participation, in Dollars and in same day funds, at the office
of such Issuing Lender specified in such notice, not later than 12:00 Noon
(New York City time) on the first business day (under the laws of the
jurisdiction in which such office of such Issuing Lender is located) after
the date notified by such Issuing Lender. In the event that any Lender
fails to make available to such Issuing Lender on such business day the
amount of such Lender's participation in such Letter of Credit as provided
in this subsection 3.3C, such Issuing Lender shall be entitled to recover
such amount on demand from such Lender together with interest thereon at
the Federal Funds Effective Rate for three Business Days and thereafter at
the Base Rate. Nothing in this subsection 3.3C shall be deemed to
prejudice the right of any Lender to recover from any Issuing Lender any
amounts made available by such Lender to such Issuing Lender pursuant to
this subsection 3.3C in the event that it is determined by the final
judgment of a court of competent jurisdiction that the payment with
respect to a Letter of Credit by such Issuing Lender in respect of which
payment was made by such Lender constituted gross negligence or willful
misconduct on the part of such Issuing Lender.
(ii) Distribution to Lenders of Reimbursements Received From
Company. In the event any Issuing Lender shall have been reimbursed by
other Lenders pursuant to subsection 3.3C(i) for all or any portion of any
drawing
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honored by such Issuing Lender under a Letter of Credit issued by it, such
Issuing Lender shall distribute to each other Lender which has paid all
amounts payable by it under subsection 3.3C(i) with respect to such
honored drawing such other Lender's Pro Rata Share of all payments
subsequently received by such Issuing Lender from Company in reimbursement
of such honored drawing when such payments are received. Any such
distribution shall be made to a Lender at its primary address set forth
below its name on the appropriate signature page hereof or at such other
address as such Lender may request.
D. Interest on Amounts Paid Under Letters of Credit.
(i) Payment of Interest by Company. Company agrees to pay to each
Issuing Lender, with respect to drawings honored under any Letters of
Credit issued by it, interest on the amount paid by such Issuing Lender in
respect of each such honored drawing from the date such drawing is honored
to but excluding the date such amount is reimbursed by Company (including
any such reimbursement out of the proceeds of Revolving Loans pursuant to
subsection 3.3B) at a rate equal to (a) for the period from the date such
drawing is honored to but excluding the Reimbursement Date, the rate then
in effect under this Agreement with respect to Revolving Loans that are
Base Rate Loans and (b) thereafter, a rate which is 2% per annum in excess
of the rate of interest otherwise payable under this Agreement with
respect to Revolving Loans that are Base Rate Loans. Interest payable
pursuant to this subsection 3.3D(i) shall be computed in the manner
specified in subsection 2.2F for the computation of interest on Base Rate
Loans and shall be payable on demand or, if no demand is made, on the date
on which the related drawing under a Letter of Credit is reimbursed in
full.
(ii) Distribution of Interest Payments by Issuing Lender. Promptly
upon receipt by any Issuing Lender of any payment of interest pursuant to
subsection 3.3D(i) with respect to a drawing honored under a Letter of
Credit issued by it, (a) such Issuing Lender shall distribute to each
other Lender, out of the interest received by such Issuing Lender in
respect of the period from the date such drawing is honored to but
excluding the date on which such Issuing Lender is reimbursed for the
amount of such drawing (including any such reimbursement out of the
proceeds of Revolving Loans pursuant to subsection 3.3B), the amount that
such other Lender would have been entitled to receive in respect of the
letter of credit fee that would have been payable in respect of such
Letter of Credit for such period pursuant to subsection 3.2 if no drawing
had been honored under such Letter of Credit, and (b) in the event such
Issuing Lender shall have been reimbursed by other Lenders pursuant to
subsection 3.3C(i) for all or any portion of such honored drawing, such
Issuing Lender shall distribute to each other Lender which has paid all
amounts payable by it under subsection 3.3C(i) with respect to such
honored drawing such other Lender's Pro Rata Share of any interest
received by such Issuing Lender in respect of that portion of such honored
drawing so
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reimbursed by other Lenders for the period from the date on which such
Issuing Lender was so reimbursed by other Lenders to but excluding the
date on which such portion of such honored drawing is reimbursed by
Company. Any such distribution shall be made to a Lender at its primary
address set forth below its name on the appropriate signature page hereof
or at such other address as such Lender may request.
3.4 Obligations Absolute.
The obligation of Company to reimburse each Issuing Lender for
drawings honored under the Letters of Credit issued by it and to repay any
Revolving Loans made by Lenders pursuant to subsection 3.3B and the obligations
of Lenders under subsection 3.3C(i) shall be unconditional and irrevocable and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances including any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right
which Company or any Lender may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), any Issuing Lender or other Lender or any other
Person or, in the case of a Lender, against Company, whether in connection
with this Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between Company or one
of its Subsidiaries and the beneficiary for which any Letter of Credit was
procured);
(iii) any draft 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;
(iv) payment by the applicable Issuing Lender under any Letter of
Credit against presentation of a draft or other document which does not
substantially comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any
of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by any
party thereto;
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing; or
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(viii) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing;
provided, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question.
3.5 Indemnification; Nature of Issuing Lenders' Duties.
A. Indemnification. In addition to amounts payable as provided in
subsection 3.6, Company hereby agrees to protect, indemnify, pay and save
harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which such Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit by such Issuing
Lender, other than as a result of (a) the gross negligence or willful misconduct
of such Issuing Lender as determined by a final judgment of a court of competent
jurisdiction or (b) subject to the following clause (ii), the wrongful dishonor
by such Issuing Lender of a proper demand for payment made under any Letter of
Credit issued by it or (ii) the failure of such Issuing Lender to honor a
drawing under any such Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts or omissions herein called
"Governmental Acts").
B. Nature of Issuing Lenders' Duties. As between Company and any Issuing
Lender, Company assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by such Issuing Lender by, the respective beneficiaries
of such Letters of Credit. In furtherance and not in limitation of the
foregoing, such Issuing Lender shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes beyond the
control of such Issuing Lender, including any Governmental Acts, and none of
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the above shall affect or impair, or prevent the vesting of, any of such Issuing
Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by any Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to Company.
Notwithstanding anything to the contrary contained in this
subsection 3.5, Company shall retain any and all rights it may have against any
Issuing Lender for any liability arising solely out of the gross negligence or
willful misconduct of such Issuing Lender.
3.6 Increased Costs and Taxes Relating to Letters of Credit.
Subject to the provisions of subsection 2.7B (which shall be
controlling with respect to the matters covered thereby), in the event that any
Issuing Lender or Lender shall reasonably determine (which determination shall,
absent clearly demonstrable error, be final and conclusive and binding upon all
parties hereto) that the introduction or adoption (after the date hereof) of any
law, treaty or governmental rule, regulation or order, or that any change (after
the date hereof) therein or in the interpretation, administration or application
thereof, or that any determination (after the date hereof) by a court or
governmental authority, or that compliance by any Issuing Lender or Lender with
any guideline, request or directive issued or made (after the date hereof) by
any central bank or other governmental or quasi-governmental authority (whether
or not having the force of law), in any such case:
(i) subjects such Issuing Lender or Lender (or its applicable
lending or letter of credit office) to any additional Tax (other than any
Tax on the overall net income of such Issuing Lender or Lender) with
respect to the issuing or maintaining of any Letters of Credit or the
purchasing or maintaining of any participations therein or any other
obligations under this Section 3, whether directly or by such being
imposed on or suffered by any particular Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve (including
any marginal, emergency, supplemental, special or other reserve), special
deposit, compulsory loan, FDIC insurance or similar requirement in respect
of any Letters of Credit issued by any Issuing Lender or participations
therein purchased by any Lender; or
(iii) imposes any other condition (other than with respect to a Tax
matter) on or affecting such Issuing Lender or Lender (or its applicable
lending or letter of
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credit office) regarding this Section 3 or any Letter of Credit or any
participation therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Lender or Lender of agreeing to issue, issuing or maintaining any Letter of
Credit or agreeing to purchase, purchasing or maintaining any participation
therein or to reduce any amount received or receivable by such Issuing Lender or
Lender (or its applicable lending or letter of credit office) with respect
thereto; then, in any case, Company shall pay to such Issuing Lender or Lender,
promptly after receipt of the statement referred to in the next sentence, such
additional amount or amounts as may be necessary to compensate such Issuing
Lender or Lender for any such increased cost or reduction in amounts received or
receivable hereunder. Such Issuing Lender or Lender shall deliver to Company
(with a copy to Administrative Agent) a written statement, setting forth in
reasonable detail the basis for calculating the additional amounts owed to such
Issuing Lender or Lender under this subsection 3.6, which statement shall be
conclusive and binding upon all parties hereto absent clearly demonstrable
error.
Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of Letters
of Credit hereunder are subject to the satisfaction of the following conditions.
4.1 Conditions to Initial Loans.
The obligations of Lenders to make the initial Term Loans and any
Revolving Loans and Swing Line Loans to be made on the Closing Date and the
issuance of any Letters of Credit to be issued on the Closing Date are, in
addition to the conditions precedent specified in subsection 4.2 (in the case of
any such Loans) or 4.3 (in the case of any such Letters of Credit), subject to
prior or concurrent satisfaction of the following conditions:
A. Loan Party Documents. On or before the Closing Date, Company shall, and
shall cause each other Loan Party to, deliver to Lenders (or to Administrative
Agent for Lenders with sufficient originally executed copies, where appropriate,
for each Lender and its counsel) the following with respect to Company or such
Loan Party, as the case may be, each, unless otherwise noted, dated the Closing
Date:
(i) Certified copies of the Certificate or Articles of Incorporation
of such Person (or, in the case of each of U.K. Borrowers, its Memorandum
and Articles of Association), together (in the case of Company only) with
a good standing certificate from the Secretary of State of each of the
States of Delaware and Connecticut, each dated a recent date prior to the
Closing Date;
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(ii) Copies of the Bylaws of such Person, certified as of the
Closing Date by such Person's corporate secretary or an assistant
secretary;
(iii) Resolutions of the Board of Directors of such Person approving
and authorizing the execution, delivery and performance of the Loan
Documents and Related Agreements to which it is a party, certified as of
the Closing Date by the corporate secretary or an assistant secretary of
such Person as being in full force and effect without modification or
amendment;
(iv) Signature and incumbency certificates of the officers of such
Person executing the Loan Documents to which it is a party; and
(v) Executed originals of the Loan Documents to which such Person is
a party.
B. No Material Adverse Effect. No material adverse change has occurred
since December 31, 1996 with respect to the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company and its
Subsidiaries, taken as a whole.
C. Corporate and Capital Structure, Ownership, Etc.
(i) Corporate Structure. The corporate organizational structure of
Newco and of Company and its Subsidiaries, both before and after giving
effect to the Recapitalization, shall be reasonably satisfactory to
Administrative Agent.
(ii) Capital Structure and Ownership. The capital structure and
ownership of Newco and of Company, both before and after giving effect to
the Recapitalization, shall be reasonably satisfactory to Administrative
Agent.
D. Proceeds of Debt and Equity Capitalization of Newco and Company.
(i) Equity Capitalization of Newco. On or before the Closing Date,
Affiliates of KKR shall have made an aggregate cash investment in Newco in
an amount equal to the Newco Equity Amount in exchange for all of the
outstanding common stock of Newco.
(ii) Issuance of New Sub Debt by Company. On or before the Closing
Date, Company shall received not less than $240,000,000 in gross proceeds
from the issuance and sale of the New Sub Debt.
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E. Related Agreements.
(i) Form of New Sub Debt Indenture. The New Sub Debt Indenture shall
be in the form of Exhibit 4.1 to the Registration Statement of Company on
Form S-3 (Registration No. 333-22521) filed with the SEC on February 28,
1997, as amended by Amendment No. 1 and Amendment No. 2 thereto, with such
changes thereto, if any, that have been approved by Administrative Agent
or that would otherwise have been permitted to be made pursuant to
subsection 7.9 if the New Sub Debt were issued and outstanding at the time
of any such change.
(ii) Related Agreements in Full Force and Effect. Administrative
Agent shall have received a fully executed or conformed copy of the Merger
Agreement and the New Sub Debt Indenture and any documents executed in
connection therewith, and each Related Agreement shall be in full force
and effect and no provision thereof shall have been modified or waived in
any respect determined by Administrative Agent to be material, in each
case without the consent of Administrative Agent.
F. Matters Relating to Existing Indebtedness of Company and its
Subsidiaries.
(i) Termination of Existing Credit Agreement and Related Liens;
Existing Letters of Credit. On the Closing Date, Company and its
Subsidiaries shall have (a) repaid in full all Indebtedness outstanding
under the Existing Credit Agreement, (b) terminated any commitments to
lend or make other extensions of credit thereunder, (c) delivered to
Administrative Agent all documents or instruments necessary to release all
Liens securing Indebtedness or other obligations of Company and its
Subsidiaries thereunder, and (d) made arrangements satisfactory to
Administrative Agent with respect to the cancellation of any letters of
credit outstanding thereunder or the issuance of Letters of Credit to
support the obligations of Company and its Subsidiaries with respect
thereto.
(ii) Consent Solicitation. Pursuant to the Consent Solicitation,
Company shall have obtained all such consents and amendments with respect
to the Existing Subordinated Note Indenture as may be required to permit
the consummation of the Recapitalization, the related financings
(including the incurrence of the Obligations hereunder) and the other
transactions contemplated by the Loan Documents.
(iii) Consummation of Debt Tender Offer. Company shall have
repurchased all of the Existing Subordinated Notes tendered in the Debt
Tender Offer.
(iv) Redemption of Existing Senior Notes. Company shall have either
(a) redeemed all of the Existing Senior Notes for aggregate consideration,
including
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accrued interest and premiums, not to exceed $111,000,000 or (b) caused
irrevocable notice of such redemption to be given in accordance with the
terms of the Existing Senior Note Indenture and provided evidence
satisfactory to Administrative Agent that the amount of the Delayed-Draw
Term Loans is sufficient to pay the aggregate consideration in respect of
such redemption (which amount shall not exceed the amount set forth in the
foregoing clause (a)).
(v) Existing Indebtedness to Remain Outstanding. Administrative
Agent shall have received an Officer's Certificate of Company stating
that, after giving effect to the transactions described in this subsection
4.1F, the Indebtedness and unfunded credit facilities of Company and its
Subsidiaries (other than Indebtedness and unfunded credit facilities under
the Loan Documents and the New Sub Debt) shall consist of the aggregate
principal amount of outstanding Indebtedness and commitments to lend
described in Schedule 7.1 annexed hereto.
G. Necessary Governmental Authorizations and Consents; Expiration of
Waiting Periods, Etc. Company shall have obtained all Governmental
Authorizations and all consents of other Persons, in each case that are
necessary or advisable in connection with the Recapitalization, the other
transactions contemplated by the Loan Documents and the Related Agreements, and
the continued operation of the business conducted by Company and its
Subsidiaries in substantially the same manner as conducted prior to the
consummation of the Recapitalization, and each of the foregoing shall be in full
force and effect, in each case other than those the failure to obtain or
maintain which, either individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect. All applicable waiting periods shall
have expired without any action being taken or threatened by any competent
authority which would restrain, prevent or otherwise impose adverse conditions
on the Recapitalization or the financing thereof.
H. Consummation of Recapitalization.
(i) The Merger Agreement shall not have been amended and the
fulfillment of any conditions set forth therein shall not have been
waived, in each case unless such amendment or waiver is not adverse in any
material respect to the interests of Lenders; and
(ii) the Merger shall have become effective in accordance with the
terms of the Merger Agreement and the laws of the State of Delaware.
I. Security Interests in Pledged Collateral. Administrative Agent and
Collateral Agent shall each have received evidence satisfactory to it that
Company shall have taken or caused to be taken all such actions, executed and
delivered or caused to be executed and delivered all such agreements, documents
and instruments, and made or caused to be made all such registrations, filings
and recordings (other than the filing or recording of items described in clause
(c) below and the registration of the Liens created
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by the Pledge Agreement entered into by Company on the Closing Date in respect
of the stock of UK Holding with the Registrar of Companies under Section 395 of
the Companies Act) that may be necessary or, in the opinion of Collateral Agent,
desirable in order to create in favor of Collateral Agent, for the benefit of
Lenders, a valid and (upon such filing and recording) perfected First Priority
security interest in the entire Pledged Collateral. Such actions shall include
the following:
(a) Schedules to Pledge Agreements. Delivery to Collateral
Agent of accurate and complete schedules to the Pledge Agreements;
(b) Stock Certificates. Delivery to Collateral Agent of
certificates to the extent applicable (which certificates shall be
accompanied by irrevocable undated stock powers, duly endorsed in
blank and otherwise satisfactory in form and substance to Collateral
Agent) representing all capital stock included in the Pledged
Collateral; and
(c) UCC Financing Statements. Delivery to Collateral Agent of
a UCC financing statement duly executed by Company with respect to
certain Collateral under the Pledge Agreements, for filing in the
jurisdiction where Company maintains its "chief executive office"
(as that term is defined in the UCC as in effect in the State of New
York).
J. Financial Statements; Pro Forma Balance Sheet. On or before the Closing
Date, Lenders shall have received from Company (i) audited financial statements
of Company and its Subsidiaries for Fiscal Years 1994, 1995 and 1996, consisting
of balance sheets and the related consolidated statements of income,
stockholders' equity and cash flows for such Fiscal Years, and (ii) a pro forma
consolidated balance sheet of Company and its Subsidiaries as of the date of the
most recent balance sheet filed by Company with the SEC in connection with the
Recapitalization, prepared in accordance with GAAP and reflecting the
consummation of the Recapitalization, the related financings and the other
transactions contemplated by the Loan Documents and the Related Agreements,
which pro forma financial statements shall be in form and substance reasonably
satisfactory to Lenders.
K. Solvency Assurances. On the Closing Date, Administrative Agent and
Lenders shall have received (i) a letter from Valuation Research Corporation,
dated the Closing Date and addressed to Administrative Agent and Lenders, in
form and substance satisfactory to Administrative Agent and with appropriate
attachments, and (ii) a Financial Condition Certificate dated the Closing Date,
substantially in the form of Exhibit XIV annexed hereto and with appropriate
attachments, in each case demonstrating that, after giving effect to the
consummation of the Recapitalization, the related financings and the other
transactions contemplated by the Loan Documents and the Related Agreements,
Company will be solvent.
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L. Opinions of Counsel to Loan Parties. Lenders and their respective
counsel shall have received originally executed copies of one or more favorable
written opinions of (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, general counsel for Company, (ii)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for Loan Parties, and (iii) Ashurst
▇▇▇▇▇▇ ▇▇▇▇▇, U.K. counsel to U.K. Borrowers, in each case dated as of the
Closing Date and setting forth substantially the matters in the opinions
designated in Exhibit X annexed hereto, and Company hereby requests such counsel
for Loan Parties to deliver such opinions.
M. Opinions of Administrative Agent's Counsel. Lenders shall have received
originally executed copies of one or more favorable written opinions of
O'Melveny & ▇▇▇▇▇, counsel to Administrative Agent, dated as of the Closing
Date, substantially in the form of Exhibit XI annexed hereto and as to such
other matters as Administrative Agent acting on behalf of Lenders may reasonably
request.
N. Opinions of Counsel Delivered Under Related Agreements.
Administrative Agent and its counsel shall have received copies of each of the
opinions of counsel delivered to the parties under the Related Agreements,
together with a letter from each such counsel (if available) authorizing Lenders
to rely upon such opinion to the same extent as though it were addressed to
Lenders.
O. Fees. Company shall have paid to Administrative Agent, for distribution
(as appropriate) to Administrative Agent, Documentation Agent, Syndication Agent
and Lenders, the fees payable on the Closing Date referred to in subsection 2.3.
P. Representations and Warranties; Performance of Agreements. Company
shall have delivered to Administrative Agent an Officer's Certificate, in form
and substance satisfactory to Administrative Agent, to the effect that the
representations and warranties in Section 5 are true and correct in all material
respects on and as of the Closing Date to the same extent as though made on and
as of that date (or, to the extent such representations and warranties
specifically relate to an earlier date, that such representations and warranties
were true, correct and complete in all material respects on and as of such
earlier date).
4.2 Conditions to All Loans.
The obligations of Lenders to make Loans on each Funding Date are
subject to the following further conditions precedent:
A. Administrative Agent shall have received on or before that
Funding Date, in accordance with the provisions of subsection 2.1B, an executed
Notice of Borrowing, in each case signed by the chief executive officer, the
chief financial officer or the treasurer of the applicable Borrower or by any
officer of such Borrower designated by any of the above-described officers on
behalf of such Borrower in a writing delivered to Administrative Agent; and
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B. as of that Funding Date:
(i) The representations and warranties contained herein and in the
other Loan Documents shall be true and correct in all material respects on
and as of that Funding Date to the same extent as though made on and as of
that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations
and warranties shall have been true and correct in all material respects
on and as of such earlier date; and
(ii) No event shall have occurred and be continuing or would result
from the consummation of the borrowing contemplated by such Notice of
Borrowing that would constitute an Event of Default or a Potential Event
of Default.
4.3 Conditions to Letters of Credit.
The issuance of any Letter of Credit hereunder (whether or not the
applicable Issuing Lender is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:
A. On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the provisions of
subsection 3.1B(i), an originally executed Notice of Request for Issuance of
Letter of Credit, in each case signed by the chief executive officer, the chief
financial officer or the treasurer of Company or by any officer of Company
designated by any of the above-described officers on behalf of Company in a
writing delivered to Administrative Agent, together with all other information
specified in subsection 3.1B(i); and
B. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.2B shall be satisfied to the same extent as
if the issuance of such Letter of Credit were the making of a Loan and the date
of issuance of such Letter of Credit were a Funding Date.
Section 5. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make
the Loans, to induce Issuing Lenders to issue Letters of Credit and to induce
other Lenders to purchase participations therein, Company represents and
warrants to each Lender, on the date of this Agreement, on each Funding Date and
on the date of issuance of each Letter of Credit, and each U.K. Borrower
represents as to itself on the date of this Agreement and on the Closing Date,
that the following statements are true, correct and complete:
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5.1 Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries.
A. Organization and Powers. Each Borrower and each Material Subsidiary is
a corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation as specified in Schedule 5.1 annexed
hereto and has all requisite corporate power and authority to own and operate
its properties and to carry on its business as now conducted and as proposed to
be conducted. Each Loan Party has all requisite corporate power and authority to
enter into the Loan Documents and Related Agreements to which it is a party and
to carry out the transactions contemplated thereby. As of the Closing Date, each
U.K. Borrower is a direct wholly-owned Subsidiary of Company.
B. Qualification and Good Standing. Each Borrower and each Material
Subsidiary is qualified to do business and in good standing in every
jurisdiction where its assets are located and wherever necessary to carry out
its business and operations, except to the extent that the failure to be so
qualified or in good standing has not had and will not have a Material Adverse
Effect.
C. Subsidiaries. All of the Subsidiaries and Unrestricted Subsidiaries of
Company as of the Closing Date are identified in Schedule 5.1 annexed hereto
and, to the best knowledge of Company, each Material Subsidiary as of the
Closing Date has been so designated on said Schedule 5.1.
5.2 Authorization of Borrowing, etc.
A. Authorization of Borrowing. The execution, delivery and performance of
the Loan Documents and the Related Agreements have been duly authorized by all
necessary corporate action on the part of each Loan Party that is a party
thereto.
B. No Conflict. The execution, delivery and performance by Loan Parties of
the Loan Documents to which they are parties and the consummation of the
transactions contemplated by the Loan Documents and the Related Agreements do
not and will not (i) violate any provision of any material law or any material
governmental rule or regulation applicable to Company or any of its Material
Subsidiaries or any other Loan Party, the Certificate or Articles of
Incorporation or Bylaws (or equivalent constitutional documents) of Company or
any of its Subsidiaries, or any material order, judgment or decree of any court
or other agency of government binding on Company or any of its Material
Subsidiaries or any other Loan Party, (ii) conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation (other than the Existing Senior Note Indenture) of
Company or any of its Material Subsidiaries or any other Loan Party, or (iii)
result in or require the creation or imposition of any Lien under any such
Contractual Obligation upon any of the properties
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or assets of Company or any of its Subsidiaries (other than any Liens created
under any of the Loan Documents in favor of Administrative Agent on behalf of
Lenders).
C. Governmental Consents. The execution, delivery and performance by Loan
Parties of the Loan Documents to which they are parties and the consummation of
the transactions contemplated by the Loan Documents and the Related Agreements
do not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body except (i) any thereof that have been
obtained and are in full force and effect and (ii) as of the Closing Date with
respect to the consummation of the Recapitalization, any thereof which the
failure to obtain or make could not reasonably be expected to have a Material
Adverse Effect.
D. Binding Obligation. Each of the Loan Documents has been duly executed
and delivered by each Loan Party that is a party thereto and is the legally
valid and binding obligation of such Loan Party, enforceable against such Loan
Party in accordance with its respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles relating to
enforceability.
5.3 Financial Condition.
Company has heretofore delivered to Lenders, at Lenders' request,
the audited consolidated balance sheet of Company and its Subsidiaries as at
December 31, 1996 and the related consolidated statements of income,
stockholders' equity and cash flows of Company and its Subsidiaries for the
Fiscal Year then ended. All such statements were prepared in conformity with
GAAP except as otherwise noted therein and fairly present, in all material
respects, the financial position (on a consolidated basis) of the entities
described in such financial statements as at the respective dates thereof and
the results of operations and cash flows (on a consolidated basis) of the
entities described therein for each of the periods then ended.
5.4 No Material Adverse Effect.
Since December 31, 1996, no event or change has occurred that has
caused or evidences, either in any case or in the aggregate, a Material Adverse
Effect.
5.5 Title to Properties; Liens.
Company and each of its Subsidiaries have good title to, or
leasehold interests in, all properties that are necessary for the conduct of
their respective businesses as now conducted and as proposed to be conducted,
free and clear of all Liens (other than any Liens permitted by this Agreement),
except where the failure to have such good title
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or leasehold interests could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
5.6 Litigation; Adverse Facts.
Except as set forth in Schedule 5.6 annexed hereto, there are no
actions, suits, proceedings, arbitrations or governmental investigations
(whether or not purportedly on behalf of Company or any of its Subsidiaries) at
law or in equity, or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign (including any Environmental Claims) that are pending or, to
the knowledge of Company, threatened against or affecting Company or any of its
Subsidiaries that, individually or in the aggregate (taking into consideration,
among other things, the ability of Company and its Subsidiaries to obtain
indemnification in respect thereof from Persons that are willing and able to
honor any existing indemnification obligations with respect thereto), could
reasonably be expected to result in a Material Adverse Effect.
5.7 Payment of Taxes.
Each of Company, each of its Subsidiaries and each other corporation
(each a "Consolidated Corporation") with whom Company or any of its Subsidiaries
joins in the filing of a consolidated return has filed all Federal income tax
returns and other material tax returns and reports, domestic and foreign,
required to be filed by it, and has paid all material taxes, assessments, fees
and other governmental charges levied or imposed upon it or its respective
properties, income or assets to the extent the same have become due and payable,
except those which are not yet delinquent or which are being contested in good
faith. Each of Company, each of its Subsidiaries and each Consolidated
Corporation has paid, or has provided adequate reserves (in the good faith
judgment of the management of Company) in accordance with GAAP (or, in the case
of a Foreign Subsidiary, appropriate reserves under generally accepted
accounting principles in the applicable jurisdiction), for the payment of, all
such material taxes, assessments, fees and charges relating to all prior taxable
years and the current taxable year of Company, each of its Subsidiaries and each
Consolidated Corporation. To the best knowledge of Company, there is no proposed
tax assessment against Company, any of its Subsidiaries or any Consolidated
Corporation that could reasonably be expected to have a Material Adverse Effect.
5.8 Governmental Regulation.
Neither the making of any extension of credit hereunder, nor the use
of any of the proceeds thereof, will violate the provisions of Regulation G, T,
U or X of the Board of Governors of the Federal Reserve System. Company is not
an "investment company" within the meaning of the Investment Company Act of
1940.
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5.9 Employee Benefit Plans.
A. Company and each of its Subsidiaries is in compliance with all
applicable provisions of ERISA, the Internal Revenue Code and other applicable
federal, state or foreign law with respect to each Plan, and has performed all
of its obligations under each Plan, except to the extent that failure to comply,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. Company, each of its Subsidiaries and each ERISA
Affiliate has made all required contributions to any Plan subject to Section 412
of the Internal Revenue Code, except to the extent that a failure to do so could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Internal Revenue Code has
been made with respect to any Plan.
B. There are no pending or, to the best knowledge of Company,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Pension Plan which, individually or in the aggregate, have
resulted or could reasonably be expected to result in a Material Adverse Effect.
C. (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability in an amount
which, individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), could reasonably be expected to have a Material
Adverse Effect if such Pension Plan or Pension Plans were then terminated,
unless such Pension Plan is not reasonably likely to be terminated; and (iii)
neither Company nor any of its Subsidiaries nor any ERISA Affiliate has engaged
in a transaction that could be subject to Section 4069 or 4212(c) of ERISA that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
5.10 Environmental Protection.
Company and each of its Subsidiaries is in compliance with all
applicable Environmental Laws in respect of the conduct of its business and the
ownership of its property, except such noncompliance as could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Without limiting the effect of the preceding sentence:
(a) neither Company nor any of its Subsidiaries has received a
complaint, order, citation, notice or other written communication with
respect to the existence or alleged existence of a violation of, or
liability arising under, any Environmental Law, the outcome of which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect; and
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(b) to the best of Company's knowledge, after due inquiry,
there are no environmental, health or safety conditions existing or
reasonably expected to exist at any real property owned, operated, leased
or used by Company or any of its existing or former Subsidiaries or any of
their respective predecessors, including off-site treatment or disposal
facilities used by Company or its existing or former Subsidiaries for
wastes treatment or disposal, which could reasonably be expected to
require any construction or other capital costs or clean-up obligations to
be incurred prior to the final scheduled maturity of the Tranche C Term
Loans in order to assure compliance with any Environmental Law, including
provisions regarding clean-up, to the extent that any of such conditions,
construction or other capital costs or clean-up obligations, individually
or in the aggregate, could reasonably be expected to have a Material
Adverse Effect.
5.11 Disclosure.
All factual information (taken as a whole) furnished by or on behalf
of Company or any of its Subsidiaries to Administrative Agent or any Lender in
writing on or before the Closing Date (including any such information contained
in the Confidential Information Memorandum or in any Loan Document or Related
Agreement or in any other document, certificate or written statement furnished
to Lenders by or on behalf of Company or any of its Subsidiaries) for use in
connection with the transactions contemplated by this Agreement is true and
correct in all material respects and does not omit to state a material fact
necessary in order to make the statements contained herein and therein, taken as
a whole, not misleading at such time in light of the circumstances in which the
same were made, it being understood that, for purposes of this subsection 5.11,
such factual information does not include projections and pro forma financial
information. Any projections and pro forma financial information contained in
such materials are based upon good faith estimates and assumptions believed by
Company to be reasonable at the time made, it being recognized by Lenders that
such projections as to future events are not to be viewed as facts and that
actual results during the period or periods covered by any such projections may
differ from the projected results.
Section 6. AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 6. Each U.K. Borrower covenants and agrees that, so
long as the Tranche A Term Loan Commitments hereunder shall remain in effect and
until payment in full of all of the Sterling Loans made to such U.K. Borrower
and all Obligations of such U.K. Borrower relating thereto, unless Requisite
Lenders shall otherwise give prior written consent, such U.K. Borrower
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shall perform, and shall cause each of its Subsidiaries to perform, all
covenants applicable to it and its Subsidiaries in this Section 6.
6.1 Financial Statements and Other Reports.
Company will deliver to Administrative Agent and Lenders:
(i) Quarterly Financials: (a) no later than the date on which such
financial statements are filed with the SEC, the consolidated balance
sheet of Company, its Subsidiaries and its Unrestricted Subsidiaries as at
the end of the first three Fiscal Quarters of each Fiscal Year and the
related consolidated statements of income, stockholders' equity and cash
flows of Company, its Subsidiaries and its Unrestricted Subsidiaries for
such Fiscal Quarter and for the period from the beginning of the then
current Fiscal Year to the end of such Fiscal Quarter, and (b) promptly
when available but in any event no later than 60 days after the end of the
first three Fiscal Quarters of each Fiscal Year, the consolidated balance
sheet of Company and its Subsidiaries as at the end of each Fiscal Quarter
and the related consolidated statements of income, stockholders' equity
and cash flows of Company and its Subsidiaries for such Fiscal Quarter and
for the period from the beginning of the then current Fiscal Year to the
end of such Fiscal Quarter, setting forth in each case (under both clauses
(a) and (b) above) in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year, all in reasonable
detail and certified (in the case of both clauses (a) and (b) above) by
the chief financial officer of Company that they fairly present, in all
material respects, the financial condition of Company, its Subsidiaries
and its Unrestricted Subsidiaries or Company and its Subsidiaries, as the
case may be, as at the dates indicated and the results of their operations
and their cash flows for the periods indicated, subject to changes
resulting from audit and normal year-end adjustments;
(ii) Year-End Financials: (a) no later than the date on which such
financial statements are filed with the SEC, the consolidated balance
sheet of Company, its Subsidiaries and its Unrestricted Subsidiaries as at
the end of each Fiscal Year and the related consolidated statements of
income, stockholders' equity and cash flows of Company, its Subsidiaries
and its Unrestricted Subsidiaries for such Fiscal Year, (b) promptly when
available but in any event no later than 120 days after the end of each
Fiscal Year, the consolidated balance sheet of Company and its
Subsidiaries as at the end of such Fiscal Year and the related
consolidated statements of income, stockholders' equity and cash flows of
Company and its Subsidiaries for such Fiscal Year, setting forth in each
case (under both clauses (a) and (b) above) in comparative form the
corresponding figures for the previous Fiscal Year, all in reasonable
detail and certified (in the case of both clauses (a) and (b) above) by
the chief financial officer of Company that they fairly present, in all
material respects, the financial condition of Company and its Subsidiaries
as at
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the end of such Fiscal Year and the results of their operations and their
cash flows for such Fiscal Year, and (c) in the case of both clauses (a)
and (b) above) a report thereon of a firm of independent certified public
accountants of recognized national standing selected by Company, which
report shall be unqualified as to the scope of audit or as to the going
concern status of Company, its Subsidiaries and its Unrestricted
Subsidiaries or Company and its Subsidiaries, as the case may be (in
either case taken as a whole), and shall state that such consolidated
financial statements fairly present, in all material respects, the
consolidated financial condition of Company, its Subsidiaries and its
Unrestricted Subsidiaries or Company and its Subsidiaries, as the case may
be, as at the end of such Fiscal Year and the results of their operations
and their cash flows for such Fiscal Year in conformity with GAAP applied
on a basis consistent with prior years (except as otherwise disclosed in
such financial statements) and that the examination by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards;
(iii) Officers' and Compliance Certificates: together with each
delivery of financial statements of Company and its Subsidiaries pursuant
to subdivisions (i) and (ii) above, (a) an Officer's Certificate of
Company stating that the signers do not have knowledge of the existence,
as at the date of such Officer's Certificate, of any condition or event
that constitutes an Event of Default or Potential Event of Default, or, if
any such condition or event exists, specifying the nature and period of
existence thereof and what action Company has taken, is taking and
proposes to take with respect thereto; (b) a Compliance Certificate
demonstrating in reasonable detail compliance during and at the end of the
applicable accounting periods with the covenants set forth in subsection
7.6 and with any specific dollar amounts specified in respect of any
restrictions contained in any other provisions of Section 7; (c) in the
event the identity of any of the Subsidiaries or Unrestricted Subsidiaries
of Company has changed since the Closing Date (or, if applicable, since
the date of the most recent Officer's Certificate delivered to Lenders in
accordance with this clause (c)), an Officer's Certificate setting forth
such change; (d) the amount of any Pro Forma Adjustment not previously set
forth in any Pro Forma Adjustment Certificate or any change in the amount
of a Pro Forma Adjustment set forth in any Pro Forma Adjustment
Certificate previously provided and, in either case, in reasonable detail,
the calculations and basis therefor, and (e) at the time of the delivery
of the financial statements pursuant to subdivision (ii) above, the
Available Amount as at the end of the Fiscal Year to which such statements
relate;
(iv) Accountants' Certification: together with each delivery of
consolidated financial statements of Company and its Subsidiaries pursuant
to subdivision (ii) above, a written statement by the independent
certified public accountants giving the report thereon stating whether, in
connection with their audit examination, any condition or event that
constitutes an Event of Default
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under subsection 7.6 has come to their attention and, if such a condition
or event has come to their attention, specifying the nature thereof,
except to the extent that the delivery of such statement would be
prohibited by professional auditing standards applicable to such matters;
(v) SEC Filings: promptly after the transmission thereof by Company
or any of its Subsidiaries to the SEC, copies of any filings on Form 10-K,
10-Q, or 8-K and any effective registration statements (and, upon the
effectiveness thereof, any material amendments thereto) filed with the SEC
(but not any exhibits to any such registration statement or amendment
(except as provided below) or any registration statement on Form S-8), and
copies of all financial statements, proxy statements, notices and reports
that Company or any of its Subsidiaries actually sends to the holders of
any publicly-issued debt Securities of Company or any of its Subsidiaries
(including the Subordinated Indebtedness) in their capacity as such
holders (in each case to the extent not theretofore delivered to Lenders
pursuant to this Agreement and in each case including, to the extent
requested by Administrative Agent, any schedules and exhibits thereto), in
each case as so transmitted to the SEC;
(vi) Events of Default, etc.: promptly upon any Responsible Officer
of Company obtaining actual knowledge of (a) any condition or event that
constitutes an Event of Default or Potential Event of Default or (b) any
acceleration, redemption or purchase demands or notices provided by the
trustee for, or any event of default under, any Subordinated Indebtedness,
a notice specifying the nature and period of existence of such condition
or event or specifying the notice given by such trustee or the nature of
such event of default, and what action Company has taken, is taking and
proposes to take with respect thereto;
(vii) Litigation or Other Proceedings: promptly upon any Responsible
Officer of Company obtaining actual knowledge of (X) the institution of
any action, suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration against or affecting
Company or any of its Subsidiaries or any property of Company or any of
its Subsidiaries (collectively, "Proceedings") not previously disclosed in
writing by Company to Lenders or (Y) any material development in any
Proceeding that, in any such case, could reasonably be expected to give
rise to a Material Adverse Effect, written notice thereof together with
such other information as may be reasonably available to Company to enable
Lenders and their counsel to evaluate such matters;
(viii) ERISA Events: promptly upon any Responsible Officer of
Company obtaining knowledge of the occurrence or forthcoming occurrence of
any ERISA Event, a written notice specifying the nature thereof and what
action Company, any of its Subsidiaries or any of their respective ERISA
Affiliates has taken, is taking or proposes to take with respect thereto;
and, promptly upon receipt thereof,
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copies of any notice received by Company, any of its Subsidiaries or any
of their respective ERISA Affiliates from the Internal Revenue Service,
the Department of Labor or the PBGC or from a Multiemployer Plan sponsor
concerning any ERISA Event;
(ix) Financial Plans: as soon as practicable and in any event no
later than 60 days after the beginning of each Fiscal Year, consolidated
operating and related budgets for Company and its Subsidiaries for each
Fiscal Quarter of such Fiscal Year (the "Financial Plan" for such Fiscal
Year), in reasonable detail as customarily prepared by management of
Company for its internal use and setting forth an explanation of the
principal assumptions on which such budgets are based;
(x) Environmental Audits and Reports: as soon as practicable
following receipt thereof, copies of all environmental audits,
investigations, analyses and reports of any kind or character, whether
prepared by personnel of Company or any of its Subsidiaries or by
independent consultants, governmental authorities or any other Persons,
with respect to significant environmental matters at any Real Estate (as
defined in subsection 6.1(xi)(1)) which, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect or
with respect to any Environmental Claims which, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect;
(xi) Notice of Certain Environmental Matters: promptly upon any
Responsible Officer of Company obtaining knowledge of any one or more of
the following environmental matters the existence of which, either
individually or when aggregated with all other such matters, would
reasonably be expected to result in a Material Adverse Effect, a written
notice specifying in reasonable detail the nature thereof and what action
Company and its Subsidiaries have taken, are taking or propose to take
with respect thereto:
(1) any pending or threatened Environmental Claim against
Company or any of its Subsidiaries or any land, buildings and improvements
owned or leased by Company or any of its Subsidiaries (but excluding all
operating fixtures and equipment, whether or not incorporated into
improvements) (collectively, "Real Estate");
(2) any condition or occurrence that (x) results in
noncompliance by Company or any of its Subsidiaries with any applicable
Environmental Law or (y) could reasonably be anticipated to form the basis
of an Environmental Claim against Company or any of its Subsidiaries or
any Real Estate;
(3) any condition or occurrence on any Real Estate that could
reasonably be anticipated to cause such Real Estate to be subject to any
restrictions
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on the ownership, occupancy, use or transferability of such Real Estate
under any Environmental Law; or
(4) the taking of any removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on any Real
Estate;
(xii) Pro Forma Adjustment Certificate: not later than the
consummation of any Acquisition by Company or any of its Subsidiaries for
which there shall be a Pro Forma Adjustment, an Officer's Certificate of
Company setting forth the amount of such Pro Forma Adjustment and, in
reasonable detail, the calculations and basis therefor; and
(xiii) Other Information: with reasonable promptness, such other
information and data with respect to Company or any of its Subsidiaries as
from time to time may be reasonably requested by Administrative Agent on
its own behalf or on behalf of Requisite Lenders.
6.2 Corporate Existence, etc.
Except as permitted under subsection 7.7, each Borrower will, and
will cause each of its Subsidiaries to, at all times preserve and keep in full
force and effect (i) its corporate existence (except, in the case of a
Subsidiary of Company (other than U.K. Borrowers) only, to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect) and (ii) all rights and franchises material to its business (except, in
any case, to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect).
6.3 Payment of Taxes and Claims; Tax Consolidation
Each Borrower will, and will cause each of its Subsidiaries to, pay
all material taxes, assessments and other governmental charges imposed upon it
or any of its properties or assets or in respect of any of its income,
businesses or franchises before any material penalty accrues thereon, and all
lawful material claims (including claims for labor, services, materials and
supplies) for sums that have become due and payable and that by law have become
or could reasonably be expected to become a material Lien upon any of the
properties or assets of such Borrower or any of its Subsidiaries; provided that
no such charge or claim need be paid if it is being contested in good faith and
by proper proceedings, so long as it has maintained adequate reserves (in the
good faith judgment of such Borrower or such Subsidiary) with respect thereto in
accordance with GAAP.
6.4 Maintenance of Properties; Insurance.
A. Maintenance of Properties. Each Borrower will, and will cause
each of its Subsidiaries to, maintain or cause to be maintained in good repair,
working
106
order and condition, ordinary wear and tear excepted, all material properties
used or useful in the business of Company and its Subsidiaries (including all
Intellectual Property) and from time to time will make or cause to be made all
appropriate repairs, renewals and replacements thereof, in each case except to
the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.
B. Insurance. Each Borrower will, and will cause each of its
Material Subsidiaries to, at all times maintain in full force and effect, with
insurance companies which such Borrower believes (in the good faith judgment of
such Borrower's management) are financially sound and responsible at the time
the relevant coverage is placed or renewed, insurance in at least such amounts
and against at least such risks (and with such risk retentions) as are usually
insured against in the same general area by companies engaged in the same or a
similar business. Each Borrower shall furnish to Lenders, upon written request
from Administrative Agent, information presented in reasonable detail as to the
insurance so carried.
6.5 Inspection Rights.
Each Borrower shall, and shall cause each of its Material
Subsidiaries to, permit any authorized representatives designated by
Administrative Agent or Requisite Lenders to visit and inspect any of the
properties of Company or of any of its Material Subsidiaries, to inspect, copy
and make abstracts from its and their financial and accounting records, and to
discuss its and their affairs, finances and accounts with its and their officers
and independent public accountants (provided that such Borrower may, if it so
chooses, be present at or participate in any such discussion), all upon
reasonable notice and at such reasonable times during normal business hours and
as often as may reasonably be requested.
6.6 Compliance with Laws, etc.
Each Borrower shall comply, and shall cause each of its Subsidiaries
to comply, in all material respects, with the requirements of all applicable
laws, rules, regulations and orders (including all Environmental Laws) of any
governmental authority having jurisdiction over it, except such as may be
contested in good faith or as to which a bona fide dispute may exist and except
to the extent that noncompliance therewith could not reasonably be expected to
cause, individually or in the aggregate, a Material Adverse Effect.
6.7 Execution of Subsidiary Guaranty by Future Domestic Subsidiaries; Pledge
of Stock of Future Direct Subsidiaries; Ratable Credit Support; Certain
Closing Date Transactions; Certain Post-Closing Actions.
A. In the event that any Person (other than a Restricted Acquisition
Subsidiary or a Subsidiary that has incurred Indebtedness permitted under
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subsection 7.1(xi)(b)) becomes a Domestic Subsidiary after the date hereof,
Company will promptly notify each Agent of that fact and cause such Domestic
Subsidiary to execute and deliver to Collateral Agent a counterpart of the
Subsidiary Guaranty. In the event that any Person (other than a Restricted
Acquisition Subsidiary or, subject to subsection 6.7B, a Subsidiary the capital
stock of which is pledged pursuant to 7.2(vi)(b)) becomes a direct Domestic
Subsidiary or a direct Material Foreign Subsidiary after the date hereof,
Company will promptly notify each Agent of that fact and cause the capital stock
owned by Company of such direct Domestic Subsidiary or such direct Material
Foreign Subsidiary (or, if Company owns 65% or more of any such direct Material
Foreign Subsidiary, 65% of the capital stock of such direct Material Foreign
Subsidiary) to be pledged under the Master Pledge Agreement (or, if any such
direct Domestic Subsidiary is a limited liability company, under the LLC Pledge
Agreement) and, in the case of any such direct Material Foreign Subsidiary, also
under any pledge agreements or instruments that the Collateral Agent deems
necessary or advisable, or that the Collateral Agent may reasonably request,
pursuant to the terms of the Master Pledge Agreement to effectuate such pledge
in the jurisdiction in which such Material Foreign Subsidiary is organized.
B. In the event that any Subsidiary of Company has guaranteed any
Indebtedness incurred pursuant to subsection 7.1(xi) in an aggregate principal
amount exceeding $125,000,000, or has granted any security interests as
collateral therefor, such Subsidiary shall (i) guaranty the Obligations
hereunder and under the other Loan Documents on a pari passu basis with its
guaranty of any portion of such Indebtedness exceeding $125,000,000 and shall
grant Liens on such assets securing the Obligations on an equal and ratable
basis with the security for such Indebtedness pursuant to documentation
reasonably satisfactory to Administrative Agent and Requisite Lenders and (ii)
execute and deliver to Collateral Agent all such documents and instruments as
may be necessary or, in the opinion of Collateral Agent, desirable, in order to
more fully evidence, perfect or protect such security interest.
C. On the Closing Date, (i) UK Holding shall borrow
(pounds)12,499,237.85 in Tranche A Term Loans in the United Kingdom, (ii) ACI
shall borrow (pounds)21,645,021.65 in Tranche A Term Loans in the United
Kingdom, (iii) ACI shall purchase from Company all of the issued and outstanding
shares of stock of Amphenol Borg and (iv) immediately thereafter, UK Holding
shall purchase from Company all of the issued and outstanding shares of stock of
ACI. Upon completion of such transactions, Amphenol Borg will be a wholly-owned
Subsidiary of ACI, ACI will be a wholly-owned Subsidiary of UK Holding, and 65%
of the stock of UK Holding will be pledged to Collateral Agent by Company
pursuant to the Master Pledge Agreement to secure the Obligations of Loan
Parties hereunder and under the other Loan Documents. On the Closing Date,
neither U.K. Borrower shall be liable with respect to any Indebtedness or
Guarantee Obligations other than their respective Obligations and any
intercompany Indebtedness permitted pursuant to subsection 7.1(iv).
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D. Within thirty days of the Closing Date, Company shall have (i)
completed (or caused to have been completed) the contemplated reorganization of
the German Subsidiaries of Company and certain other foreign Subsidiaries of
Company under the common ownership of a newly-formed German corporation which
shall be a direct Subsidiary of Company, (ii) pledged 65% of the stock of such
newly-formed Subsidiary to Collateral Agent on behalf of Lenders pursuant to the
terms of the Master Pledge Agreement and such other agreements or instruments
under German law as Collateral Agent may deem necessary or desirable to perfect
the First Priority security interest of Collateral Agent therein, and (iii)
taken (or caused to be taken) all such other actions with respect thereto
(including the delivery of legal opinions) as Collateral Agent shall reasonably
request.
6.8 Transactions with Affiliates.
Each Borrower shall, and shall cause each of its Subsidiaries to,
conduct all transactions with any of its Affiliates (other than Company or any
of its Subsidiaries) upon terms that are substantially as favorable to Company
or such Subsidiary as it would obtain in a comparable arm's-length transaction
with a Person not an Affiliate of Company or such Subsidiary; provided that the
foregoing restrictions shall not apply to (a) the payment of customary annual
fees to KKR and its Affiliates for management, consulting and financial services
rendered to Company and its Subsidiaries, and customary investment banking fees
paid to KKR and its Affiliates for services rendered to Company and its
Subsidiaries in connection with divestitures, acquisitions, financings and other
transactions, (b) reasonable and customary fees paid to members of the Board of
Directors of Company and its Subsidiaries, (c) transactions otherwise expressly
permitted hereunder between Company or any of its Subsidiaries and any such
Affiliate, and (d) transactions between Company or any of its Subsidiaries and
any special-purpose entity established in connection with any Accounts
Receivable Facility.
6.9 Conduct of Business.
From and after the Closing Date, each Borrower shall, and shall
cause its Subsidiaries (taken as a whole) to, engage primarily in (i) the lines
of business carried on by such Borrower and its Subsidiaries on the Closing
Date, (ii) other businesses or activities that are reasonably similar thereto or
that constitute a reasonable extension, development or expansion thereof or that
are ancillary or reasonably related thereto.
6.10 Fiscal Year.
Company shall maintain its Fiscal Year-end at December 31 of each
year; provided that Company may, upon prior written notice to Administrative
Agent, change such Fiscal Year-end to any other date reasonably acceptable to
Administrative Agent, in which case Company and Administrative Agent shall, and
are hereby authorized by
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Lenders to, make any adjustments to this Agreement that are necessary in order
to reflect any corresponding changes in financial reporting.
Section 7. NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 7. Each U.K. Borrower covenants and agrees that, so
long as the Tranche A Term Loan Commitments hereunder shall remain in effect and
until payment in full of all of the Sterling Loans made to such U.K. Borrower
and all Obligations of such U.K. Borrower relating thereto, unless Requisite
Lenders shall otherwise give prior written consent, such U.K. Borrower shall
perform and shall cause each of its Subsidiaries to perform all covenants
applicable to it and its Subsidiaries in this Section 7.
7.1 Indebtedness.
Each Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) Borrowers may become and remain liable with respect to the
Obligations;
(ii) Company and its Subsidiaries may become and remain liable with
respect to Guarantee Obligations permitted under subsection 7.4 and, upon
any matured obligations actually arising pursuant thereto, the
Indebtedness corresponding to the Guarantee Obligations so extinguished;
(iii) Company and its Subsidiaries may become and remain liable with
respect to Indebtedness in respect of Capital Leases in an aggregate
amount not to exceed at any time $50,000,000;
(iv) Company may become and remain liable with respect to
Indebtedness to any of its Subsidiaries, and any Subsidiary of Company may
become and remain liable with respect to Indebtedness to Company or any
other Subsidiary of Company;
(v) Company and its Subsidiaries, as applicable, may remain liable
with respect to Indebtedness described in Schedule 7.1 annexed hereto;
110
(vi) Company may remain liable with respect to (a) any portion of
the Existing Subordinated Notes not tendered pursuant to the Debt Tender
Offer and (b) the Existing Senior Notes until the repurchase thereof with
the proceeds of the Delayed-Draw Term Loans;
(vii) Company may become and remain liable with respect to
Indebtedness evidenced by the New Sub Debt and any Refinancing Sub Debt;
(viii) Company and its Subsidiaries may become and remain liable
with respect to Indebtedness (a) incurred within 270 days of the
acquisition, construction or improvement of fixed or capital assets to
finance the acquisition, construction or improvement of such fixed or
capital assets or (b) otherwise incurred in respect of Capital
Expenditures permitted under subsection 7.8;
(ix) Company and its Subsidiaries may become and remain liable with
respect to Indebtedness under Hedge Agreements;
(x) Any Person that becomes a Restricted Acquisition Subsidiary (a)
may remain liable with respect to (X) Indebtedness of such Person existing
at the time of consummation of the Acquisition pursuant to which such
Person becomes a Subsidiary of Company or (Y) Indebtedness secured by
assets acquired by such Person in an Acquisition at the time of
consummation of such Acquisition; provided that such Indebtedness was not
incurred in contemplation of the Acquisition referred to in clause (X) or
the acquisition of such assets referred to in clause (Y), as the case may
be, and (b) may become and remain liable with respect to Indebtedness
incurred to finance the Acquisition pursuant to which such Person becomes
a Subsidiary of Company;
(xi) Company and its Subsidiaries (a) may remain liable with respect
to (X) in the case of a Subsidiary, Indebtedness of such Subsidiary
existing at the time of consummation of an Acquisition pursuant to which
such Person becomes a Subsidiary of Company or (Y) Indebtedness secured by
assets acquired by such Person in an Acquisition at the time of
consummation of such Acquisition; provided that such Indebtedness was not
incurred in contemplation of the Acquisition referred to in clause (X) or
the acquisition of such assets referred to in clause (Y), as the case may
be, and (b) may become and remain liable with respect to Indebtedness
incurred to finance an Acquisition consummated by such Person, including
an Acquisition pursuant to which such Person becomes a Subsidiary of
Company; provided that the aggregate outstanding principal amount of all
Indebtedness permitted pursuant to this subsection 7.1(xi) shall at no
time exceed $200,000,000;
(xii) Company and its Subsidiaries may extend the maturity of, and
may become and remain liable with respect to Indebtedness incurred to
refinance, any
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Indebtedness permitted under clauses (ii), (v), (viii), (x) and (xi)
above; provided that (a) the principal amount of any such Indebtedness is
not increased above the principal amount thereof outstanding immediately
prior to such extension or refinancing and (y) the direct and contingent
obligors with respect to such Indebtedness are not changed as a result of
such extension or refinancing;
(xiii) Company and its Subsidiaries may enter into and remain liable
with respect to commodity consignment arrangements in the ordinary course
of business in an aggregate amount not to exceed at any time $20,000,000;
and
(xiv) Company and its Subsidiaries may become and remain liable with
respect to other Indebtedness in an aggregate principal amount not to
exceed $200,000,000 at any time outstanding.
7.2 Liens and Related Matters.
Each Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of such Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents;
(iii) Liens existing on the Closing Date securing Indebtedness
described on Schedule 7.1 annexed hereto in an aggregate principal amount
not to exceed $20,000,000;
(iv) Liens placed on property, plant or equipment used in the
ordinary course of business of Company or any of its Subsidiaries to
secure Indebtedness incurred to pay all or a portion of the purchase price
thereof; provided that (a) the Lien encumbering such property, plant or
equipment does not encumber any other asset of Company or any of its
Subsidiaries and (b) the Indebtedness secured thereby is permitted under
subsection 7.1(viii);
(v) (a) Liens encumbering assets of a Restricted Acquisition
Subsidiary that are granted to secure Indebtedness permitted under
subsection 7.1(x) at the time such Indebtedness is assumed by such
Restricted Acquisition Subsidiary; provided that such Liens are not
granted in contemplation of the Acquisition pursuant to which such Person
becomes a Subsidiary of Company, and (b) Liens encumbering the capital
stock of a Restricted Acquisition Subsidiary that are granted to secure
Indebtedness permitted under subsection 7.1(x)(b);
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(vi) (a) Liens encumbering assets of a Subsidiary of Company that
are granted to secure Indebtedness permitted under subsection 7.1(xi) at
the time such Indebtedness is originally incurred and (b) Liens
encumbering the capital stock of a Subsidiary of Company that are granted
to secure Indebtedness permitted under subsection 7.1(xi)(b); provided
that the aggregate outstanding principal amount of Indebtedness secured by
all Liens permitted pursuant to this subsection 7.2(vi) shall at no time
exceed $125,000,000, except to the extent that such Subsidiary has granted
a Lien on the assets securing any portion of such Indebtedness in excess
of $125,000,000 on an equal and ratable basis to Collateral Agent on
behalf of Lenders to secure the Obligations;
(vii) Liens on commodities subject to any arrangement permitted
under subsection 7.1(xiii); and
(viii) Other Liens securing Indebtedness in an aggregate amount not
to exceed $25,000,000 at any time outstanding.
7.3 Investments; Joint Ventures.
Each Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, including any Joint Venture, except:
(i) Company and its Subsidiaries may make and own Investments in
Cash Equivalents;
(ii) Company and its Subsidiaries may make loans and advances to
officers, directors and employees of Company or any of its Subsidiaries
(a) to finance the purchase of capital stock of Company and (b) in an
aggregate principal amount not to exceed $5,000,000 at any time
outstanding for additional purposes not contemplated by the foregoing
clause (a);
(iii) Company and its Subsidiaries may make and own Investments
consisting of any non-cash proceeds received by Company or any of its
Subsidiaries in connection with any Asset Sale permitted under subsection
7.7(v);
(iv) Company and its Subsidiaries may continue to own the
Investments owned by them and described in Schedule 7.3 annexed hereto and
Company and its Subsidiaries may make and own Investments purchased with
the proceeds of the sale of any Investments permitted under this
subsection 7.3(iv);
(v) Company and its Subsidiaries may make and own Investments in
special-purpose entities established to purchase accounts receivable from
Company or any of its Subsidiaries pursuant to an Accounts Receivable
Facility; and
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(vi) Company and its Subsidiaries may make and own Investments
(collectively, "Unrestricted Investments") in addition to those permitted
under clauses (i) through (v) above, including Investments in Restricted
Acquisition Subsidiaries and in Unrestricted Subsidiaries, as follows: (a)
Unrestricted Investments in an aggregate amount not to exceed at any time
(1) $50,000,000 for all such Unrestricted Investments in Unrestricted
Subsidiaries or (2) $100,000,000 for all such Unrestricted Investments
(including all such Unrestricted Investments in Restricted Acquisition
Subsidiaries and Unrestricted Subsidiaries) and (b) Unrestricted
Investments in addition to the Unrestricted Investments permitted under
the preceding clause (a), provided that after giving effect to any such
additional Unrestricted Investment pursuant to this clause (b) the
Available Amount Usage shall not exceed the Available Amount.
7.4 Guarantee Obligations.
Each Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or become or remain liable with
respect to any Guarantee Obligation, except:
(i) Company and its Subsidiaries may become and remain liable with
respect to Guarantee Obligations in respect of the Guaranties;
(ii) Company may become and remain liable with respect to Guarantee
Obligations in respect of Letters of Credit;
(iii) Company and its Subsidiaries may become and remain liable with
respect to Guarantee Obligations in respect of customary indemnification
and purchase price adjustment obligations incurred in connection with
Asset Sales or other sales of assets;
(iv) Company and its Subsidiaries may become and remain liable with
respect to Guarantee Obligations under guarantees in the ordinary course
of business of the obligations of suppliers, customers, franchisees and
licensees of Company and its Subsidiaries;
(v) Company and its Subsidiaries may become and remain liable with
respect to Guarantee Obligations in respect of any Indebtedness of Company
or any of its Subsidiaries (other than Restricted Acquisition
Subsidiaries) permitted by subsection 7.1; provided that neither Company
nor any of its Subsidiaries may become or remain liable with respect to
Guarantee Obligations in respect of any Indebtedness permitted under
subsection 7.1(xi)(b) unless such Person becomes a Subsidiary of Company
pursuant to the Acquisition financed with the proceeds of such
Indebtedness or acquires a direct Subsidiary pursuant to such Acquisition;
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(vi) Company and its Subsidiaries, as applicable, may remain liable
with respect to Guarantee Obligations described in Schedule 7.4 annexed
hereto; and
(vii) Company and its Subsidiaries may become and remain liable with
respect to other Guarantee Obligations; provided that the maximum
aggregate liability, contingent or otherwise, of Company and its
Subsidiaries in respect of all such Guarantee Obligations shall at no time
exceed $25,000,000.
7.5 Restricted Junior Payments.
Each Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart
any sum for any Restricted Junior Payment; provided that (i) Company may redeem
the Existing Senior Notes as contemplated by subsection 4.1F(iv), (ii) Company
may make scheduled payments of principal in respect of any Existing Subordinated
Notes not tendered pursuant to the Debt Tender Offer in accordance with the
terms of, and only to the extent required by, and subject to the subordination
provisions contained in, the Existing Subordinated Note Indenture, and (iii) so
long as no Event of Default or Potential Event of Default has occurred and is
continuing or would be caused thereby, Company may:
(a) repurchase shares of its capital stock (together with options or
warrants in respect of any thereof) held by officers, directors and
employees of Company so long as such repurchase is pursuant to, and in
accordance with the terms of, management and/or employee stock plans,
stock subscription agreements or shareholder agreements;
(b) repurchase, redeem, defease or otherwise prepay or retire any
Existing Subordinated Notes not tendered pursuant to the Debt Tender Offer
on terms (set forth in the Existing Subordinated Note Indenture or
otherwise) no less favorable in any material respect to Company and
Lenders than the terms of the Debt Tender Offer;
(c) repurchase, redeem, defease or otherwise prepay or retire New
Sub Debt; provided that after giving effect thereto the Available Amount
Usage shall not exceed the Available Amount;
(d) purchase, redeem or otherwise acquire shares of common stock of
Company or warrants or options to acquire any such shares with proceeds
received by Company from substantially concurrent equity contributions or
issuances of new shares of its common stock;
(e) redeem or exchange, in whole or in part, any capital stock of
Company for shares of another class of capital stock of Company or rights
to acquire shares of such other class of capital stock; provided that such
other class of
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capital stock contains terms and provisions (taken as a whole, and taking
into account the relative amounts of the shares of each class of capital
stock involved in such redemption or exchange) that are at least as
advantageous to Lenders as those contained in the capital stock redeemed
or exchanged therefor; and
(f) make other Restricted Junior Payments; provided that on the date
(the "Declaration Date") of declaration of any dividend in respect of
Company's outstanding capital stock pursuant to the terms of this clause
(f) or the making of any other Restricted Junior Payment pursuant to the
terms of this clause (f), (X) the Consolidated Leverage Ratio as of the
last day of the Fiscal Quarter most recently ended shall be less than
4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior
Payment, when added to the aggregate amount of all Restricted Junior
Payments previously declared or (without duplication) paid by Company
pursuant to this clause (f) during the period commencing on the Closing
Date and ending on the Declaration Date, does not exceed 50% of cumulative
Consolidated Net Income of Company and its Subsidiaries for the period
commencing on the Closing Date and ending on the last day of the Fiscal
Quarter most recently ended.
7.6 Financial Covenants.
A. Minimum Interest Coverage Ratio. Company shall not permit the ratio of
(i) Consolidated Adjusted EBITDA to (ii) Consolidated Interest Expense for the
four- Fiscal Quarter period ending on the last day of any Fiscal Quarter set
forth below to be less than the correlative ratio indicated:
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Minimum Interest
Year Fiscal Quarter Coverage Ratio
---- -------------- --------------
1998 First 1.50:1.00
Second 1.50:1.00
Third 1.50:1.00
Fourth 1.50:1.00
1999 First 1.50:1.00
Second 1.50:1.00
Third 1.75:1.00
Fourth 1.75:1.00
2000 First 1.75:1.00
Second 1.75:1.00
Third 1.75:1.00
Fourth 1.75:1.00
2001 First 1.75:1.00
Second 1.75:1.00
Third 2.00:1.00
Thereafter 2.00:1.00
B. Maximum Leverage Ratio. Company shall not permit the Consolidated
Leverage Ratio as of the last day of any Fiscal Quarter set forth below to
exceed the correlative ratio indicated:
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Maximum
Year Fiscal Quarter Leverage Ratio
---- -------------- --------------
1998 First 6.65:1.00
Second 6.50:1.00
Third 6.40:1.00
Fourth 6.25:1.00
1999 First 6.00:1.00
Second 6.00:1.00
Third 6.00:1.00
Fourth 5.75:1.00
2000 First 5.50:1.00
Second 5.50:1.00
Third 5.50:1.00
Fourth 5.00:1.00
2001 First 4.75:1.00
Second 4.75:1.00
Third 4.75:1.00
Fourth 4.75:1.00
2002 First 4.25:1.00
Second 4.25:1.00
Third 4.25:1.00
Fourth 4.00:1.00
Thereafter 4.00:1.00
7.7 Restriction on Certain Fundamental Changes; Asset Sales and Acquisitions.
Each Borrower shall not, and shall not permit any of its
Subsidiaries to, enter into any transaction of merger or consolidation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor),
transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, property or assets, whether now
owned or hereafter acquired, or make any Acquisition, except:
(i) any Subsidiary of Company may be merged with or into Company or
any other Subsidiary of Company, and any Subsidiary of Company may be
liquidated, wound up or dissolved, or all or any part of its business,
property or assets (including capital stock of any Subsidiary of Company)
may be conveyed, sold, leased, transferred or otherwise disposed of, in
one transaction or a series of
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transactions, to Company or any other Subsidiary of Company; provided that
(a) in the case of any such merger involving Company, Company shall be the
continuing or surviving corporation, and (b) for so long as either U.K.
Borrower has any outstanding Obligations, (1) no such merger shall have
the effect of causing a U.K. Borrower to have transferred all or
substantially all of its assets to Company or another Subsidiary of
Company, (2) in the case of a merger involving a U.K. Borrower (but not
Company), a U.K. Borrower shall be the continuing or surviving
corporation, (3) neither an Unrestricted Subsidiary nor a Restricted
Acquisition Subsidiary may merge with either U.K. Borrower, and (4)
neither U.K. Borrower may dispose of all or substantially all of its
assets, whether in one transaction or a series of transactions; provided,
further that, notwithstanding the restrictions set forth in clauses (1)
and (4) of the immediately preceding proviso, one U.K. Borrower may merge
into the other U.K. Borrower and any Subsidiary of a U.K. Borrower may
merge into such U.K. Borrower;
(ii) Company and its Subsidiaries may make Acquisitions (by merger
or otherwise) so long as, prior to the consummation of any such
Acquisition, Company shall have delivered to Administrative Agent (a)
financial statements for Company and its Subsidiaries for the four
Fiscal-Quarter period most recently ended (the "Pro Forma Test Period"),
prepared on a pro forma basis as if such Acquisition had been consummated
on the first day of the Pro Forma Test Period and giving effect to
Company's good faith estimate of any anticipated cost savings or increases
as a result of the consummation thereof, and (b) a pro forma Compliance
Certificate demonstrating that, on the basis of such pro forma financial
statements, Company would have been in compliance with all financial
covenants set forth in subsection 7.6 on the last day of the Pro Forma
Test Period; provided that, for Acquisitions consummated prior to the last
day of the first Fiscal Quarter of 1998, the requirements of subsection
7.6 in effect for the four Fiscal-Quarter period ending on such date shall
be deemed to be in effect for the Pro Forma Test Period;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out
or surplus property in the ordinary course of business and sell or
discount without recourse accounts receivable arising in the ordinary
course of business in connection with the compromise or collection
thereof;
(iv) Company and its Subsidiaries may sell or otherwise dispose of
other assets in transactions that do not constitute Asset Sales;
(v) Company and its Subsidiaries may make Asset Sales of assets
having a fair value not in excess of $300,000,000 during the term of this
Agreement; provided that (w) the consideration received in each such Asset
Sale shall be in an amount at least equal to the fair value of the assets
being sold; (x) any non-cash consideration received by Company in respect
of any such Asset Sale in the form
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of Indebtedness of any Person in an amount in excess of $5,000,000 shall
be evidenced by a promissory note which shall be pledged by Company to
Collateral Agent pursuant to the Master Pledge Agreement as security for
the Obligations; and (y) the proceeds of such Asset Sales shall be applied
as required by subsection 2.4B(iii)(a);
(vi) Company may sell the assets described on Schedule 7.3 annexed
hereto on the Closing Date; and
(vii) Investments permitted under subsection 7.3.
7.8 Consolidated Capital Expenditures.
Company shall not, and shall not permit its Subsidiaries to, make or
incur Consolidated Capital Expenditures in any Fiscal Year (the "Current Fiscal
Year") in an aggregate amount in excess of an amount (the "Maximum Capital
Expenditures Amount" for the Current Fiscal Year) equal to (x) 5% of
Consolidated Gross Sales Revenues for the immediately preceding Fiscal Year plus
(y) the Consolidated Gross Sales Revenues Adjustment for the Current Fiscal
Year; provided that the Maximum Capital Expenditures Amount for any Fiscal Year
shall be increased by an amount equal to the excess, if any, of the Maximum
Capital Expenditures Amount for the previous Fiscal Year (prior to adjustment in
accordance with this proviso) over the actual amount of Consolidated Capital
Expenditures for such previous Fiscal Year.
7.9 Amendments of Documents Relating to Subordinated Indebtedness.
Borrowers shall not, and shall not permit any of their respective
Subsidiaries to, amend or otherwise change any of the terms of any Subordinated
Indebtedness in a manner that would be adverse to Lenders in any material
respect.
Section 8. EVENTS OF DEFAULT
If any of the following conditions or events ("Events of Default")
shall occur:
8.1 Failure to Make Payments When Due.
Failure by Company or either U.K. Borrower to pay any installment of
principal of any Loan when due from such Borrower, whether at stated maturity,
by acceleration, by mandatory prepayment or otherwise; or failure by Company to
pay when due any amount payable to an Issuing Lender in reimbursement of any
drawing under a Letter of Credit; or failure by any Borrower to pay any interest
on any Loan or any fee
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or any other amount due from such Borrower under this Agreement, in each case
within five days after the date due; or
8.2 Default in Other Agreements.
(i) Failure of Company or any of its Subsidiaries to pay when due
any principal of or interest on or any other amount payable in respect of one or
more items of Indebtedness (other than Indebtedness referred to in subsection
8.1) or Guarantee Obligations with an aggregate principal amount of $20,000,000
or more beyond the end of any grace or notice period provided therefor; or (ii)
breach or default by Company or any of its Subsidiaries with respect to any
other material term of (a) one or more items of Indebtedness or Guarantee
Obligations in the aggregate principal amount referred to in clause (i) above or
(b) any loan agreement, mortgage, indenture or other agreement relating to such
item(s) of Indebtedness or Guarantee Obligation(s), if such breach or default
continues after any applicable grace or notice period provided therefor and the
effect of such breach or default is to cause, or (other than in the case of the
Existing Senior Notes) to permit the holder or holders of that Indebtedness or
Contingent Obligation(s) (or a trustee on behalf of such holder or holders) to
cause, that Indebtedness or Contingent Obligation(s) to become or be declared
due and payable prior to its stated maturity or the stated maturity of any
underlying obligation, as the case may be; or
8.3 Breach of Certain Covenants.
Failure of any Borrower to perform or comply with any term or
condition contained in subsection 6.1(vi)(a) or Section 7; or
8.4 Breach of Warranty.
Any representation, warranty, certification or other statement made
by Company or any of its Subsidiaries in any Loan Document or in any statement
or certificate at any time given by Company or any of its Subsidiaries in
writing pursuant hereto or thereto or in connection herewith or therewith shall
be false in any material respect on the date as of which made; or
8.5 Other Defaults Under Loan Documents.
Any Loan Party shall default in the performance of or compliance
with any term contained in this Agreement or any of the other Loan Documents,
other than any such term referred to in any other subsection of this Section 8,
and such default shall not have been remedied or waived within 30 days after
receipt by Company and such Loan Party of notice from Administrative Agent or
any Lender of such default; or
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8.6 Involuntary Bankruptcy; Appointment of Receiver, etc.
(i) A court having jurisdiction in the premises shall enter a decree
or order for relief in respect of Company or any of its Material Subsidiaries in
an involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree
or order is not stayed; or any other similar relief shall be granted under any
applicable federal, state or foreign law; or (ii) an involuntary case shall be
commenced against Company or any of its Material Subsidiaries under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency,
dissolution, liquidation or similar law now or hereafter in effect; or a decree
or order of a court having jurisdiction in the premises for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or other officer having
similar powers over Company or any of its Material Subsidiaries, or over all or
a substantial part of its property, shall have been entered; or there shall have
occurred the involuntary appointment of an interim receiver, trustee or other
custodian of Company or any of its Material Subsidiaries for all or a
substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of the
property of Company or any of its Material Subsidiaries, and any such event
described in this clause (ii) shall continue for 60 days unless dismissed,
bonded or discharged; or
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.
(i) Company or any of its Material Subsidiaries shall have an order
for relief entered with respect to it or commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency,
dissolution, liquidation or similar law (whether federal, state or foreign) now
or hereafter in effect, or shall consent to the entry of an order for relief in
an involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property; or Company or any of its Material Subsidiaries shall make
any assignment for the benefit of creditors; or (ii) Company or any of its
Material Subsidiaries shall fail generally, or shall admit in writing its
inability, to pay its debts as such debts become due; or the Board of Directors
of Company or any of its Material Subsidiaries (or any committee thereof) shall
adopt any resolution or otherwise authorize any action to approve any of the
actions referred to in clause (i) above or this clause (ii); or
8.8 Judgments and Attachments.
Any money judgments, writs or warrants of attachment or similar
processes involving in the aggregate at any time an amount in excess of
$20,000,000 (to the extent such amount is not adequately covered by insurance as
to which the insurance company has not disputed coverage in writing) shall be
entered or filed against Company or any of its Subsidiaries or any of their
respective assets and shall remain undischarged, unvacated, unbonded or unstayed
for a period of 60 days; or
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8.9 ERISA.
An ERISA Event shall occur with respect to a Pension Plan or
Multiemployer Plan; or
8.10 Change of Control.
A Change of Control shall occur; or
8.11 Material Invalidity of Guaranties; Material Failure of Security;
Repudiation of Obligations.
At any time after the execution and delivery thereof, (i) any
material provision of the Company Guaranty, the Subsidiary Guaranty or any
guaranty entered into by a Subsidiary of Company pursuant to subsection 6.7B for
any reason, other than the satisfaction in full of all Obligations, shall cease
to be in full force and effect (other than in accordance with its terms) or
shall be declared to be null and void, in either case, as to Company, with
respect to the Company Guaranty, or as to any material portion of Subsidiary
Guarantors and other Subsidiaries guaranteeing the Obligations, with respect to
the Subsidiary Guaranty and any guaranty entered into pursuant to subsection
6.7B, (ii) any Collateral Document shall cease to create a valid security
interest in the collateral purported to be covered thereby or shall cease to be
in full force and effect (other than by reason of a release of Collateral
thereunder in accordance with the terms hereof or thereof, the satisfaction in
full of the Obligations or any other termination of such Collateral Document in
accordance with the terms hereof or thereof), in each case to the extent the
same affects a material portion of the Collateral and in each case for any
reason other than any act or omission of either Agent or any Lender, or (iii)
any Loan Party shall deny in writing its obligations under any Loan Document to
which it is a party:
THEN (i) upon the occurrence of any Event of Default described in subsection 8.6
or 8.7, each of (a) the unpaid principal amount of and accrued interest on the
Loans, (b) an amount equal to the maximum amount that may at any time be drawn
under all Letters of Credit then outstanding (whether or not any beneficiary
under any such Letter of Credit shall have presented, or shall be entitled at
such time to present, the drafts or other documents or certificates required to
draw under such Letter of Credit), and (c) all other Obligations shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by Borrowers, and the obligation of each Lender to make any Loan, the
obligation of Administrative Agent to issue any Letter of Credit and the right
of any Lender to issue any Letter of Credit hereunder shall thereupon terminate,
and (ii) upon the occurrence and during the continuation of any other Event of
Default, Administrative Agent shall, upon the written request or with the
written consent of Requisite Lenders, by written notice to Borrowers, declare
all or any portion of the amounts described in clauses (a) through (c) above to
be, and the same shall forthwith become, immediately due and
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payable, and the obligation of each Lender to make any Loan, the obligation of
Administrative Agent to issue any Letter of Credit and the right of any Lender
to issue any Letter of Credit hereunder shall thereupon terminate; provided that
the foregoing shall not affect in any way the obligations of Lenders under
subsection 3.3C(i) or the obligations of Lenders to purchase participations in
any unpaid Swing Line Loans as provided in subsection 2.1A(v).
Any amounts described in clause (b) above, when received by
Administrative Agent, shall be paid to Collateral Agent, for the benefit of
Lenders, and held by Collateral Agent, for the benefit of Lenders, as collateral
security for the Obligations of Company in respect of all outstanding Letters of
Credit, and Company hereby (X) grants to Collateral Agent, for the benefit of
Lenders, a security interest in all such amounts, together with any interest
accrued thereon and any Investments of such amounts, as security for the
Obligations, (Y) agrees to execute and deliver to Collateral Agent all such
documents and instruments as may be necessary or, in the opinion of Collateral
Agent, desirable in order to more fully evidence, perfect or protect such
security interest, and (Z) agrees that, upon the honoring by any Issuing Bank of
any drawing under a Letter of Credit issued by it, Collateral Agent is
authorized and directed to apply any amounts held as collateral security in
accordance with the terms of this paragraph to reimburse such Issuing Lender for
the amount of such drawing.
Notwithstanding anything contained in the second preceding
paragraph, if at any time within 60 days after an acceleration of the Loans
pursuant to clause (ii) of such paragraph Borrowers shall pay all arrears of
interest and all payments on account of principal which shall have become due
otherwise than as a result of such acceleration (with interest on principal and,
to the extent permitted by law, on overdue interest, at the rates specified in
this Agreement) and all Events of Default and Potential Events of Default (other
than non-payment of the principal of and accrued interest on the Loans, in each
case which is due and payable solely by virtue of acceleration) shall be
remedied or waived pursuant to subsection 10.6, then Requisite Lenders, by
written notice to Borrowers, may at their option rescind and annul such
acceleration and its consequences; but such action shall not affect any
subsequent Event of Default or Potential Event of Default or impair any right
consequent thereon. The provisions of this paragraph are intended merely to bind
Lenders to a decision which may be made at the election of Requisite Lenders and
are not intended, directly or indirectly, to benefit Company, and such
provisions shall not at any time be construed so as to grant Company the right
to require Lenders to rescind or annul any acceleration hereunder or to preclude
Agents or Lenders from exercising any of the rights or remedies available to
them under any of the Loan Documents, even if the conditions set forth in this
paragraph are met.
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Section 9. AGENTS
9.1 Appointment of Administrative Agent.
BTCo is hereby appointed Administrative Agent hereunder and under the
other Loan Documents and each Lender hereby authorizes Administrative Agent to
act as its agent in accordance with the terms of this Agreement and the other
Loan Documents. Administrative Agent agrees to act upon the express conditions
contained in this Agreement and the other Loan Documents, as applicable. The
provisions of this Section 9 are solely for the benefit of Administrative Agent
and Lenders and no Borrower shall have any rights as a third party beneficiary
of any of the provisions thereof. In performing its functions and duties under
this Agreement, Administrative Agent shall act solely as an agent of Lenders and
does not assume and shall not be deemed to have assumed any obligation towards
or relationship of agency or trust with or for Company or any of its
Subsidiaries. Neither Syndication Agent nor Documentation Agent nor any Lender
named as a Lead Manager or Co-Agent hereunder shall have any liability to any
Person under this Agreement except in its capacity as a Lender or, if
applicable, an Issuing Lender.
9.2 Powers and Duties; General Immunity.
▇. ▇▇▇▇▇▇; Duties Specified. Each Lender irrevocably authorizes each Agent
to take such action on such Lender's behalf and to exercise such powers, rights
and remedies hereunder and under the other Loan Documents as are specifically
delegated or granted to such Agent by the terms hereof and thereof, together
with such powers, rights and remedies as are reasonably incidental thereto. Each
Agent shall have only those duties and responsibilities that are expressly
specified in this Agreement and the other Loan Documents. Administrative Agent
may exercise such powers, rights and remedies and perform such duties by or
through its agents or employees. Neither Agent shall have, by reason of this
Agreement or any of the other Loan Documents, a fiduciary relationship in
respect of any Lender; and nothing in this Agreement or any of the other Loan
Documents, expressed or implied, is intended to or shall be so construed as to
impose upon either Agent any obligations in respect of this Agreement or any of
the other Loan Documents except as expressly set forth herein or therein.
B. No Responsibility for Certain Matters. Neither Agent shall be
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any
other Loan Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or
in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by either Agent to Lenders or by or on
behalf of any Borrower to either Agent or any Lender in connection with the Loan
Documents and the transactions contemplated thereby or for the financial
condition or business affairs of any Borrower or any other Person liable for the
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payment of any Obligations, nor shall either Agent be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Loan Documents or as
to the use of the proceeds of the Loans or the use of the Letters of Credit or
as to the existence or possible existence of any Event of Default or Potential
Event of Default. Anything contained in this Agreement to the contrary
notwithstanding, Administrative Agent shall not have any liability arising from
confirmations of the amount of outstanding Loans or the Letter of Credit Usage
or the component amounts thereof.
C. Exculpatory Provisions. Neither Administrative Agent nor Collateral
Agent nor any of their respective officers, directors, employees or agents shall
be liable to Lenders for any action taken or omitted by such Agent under or in
connection with any of the Loan Documents except to the extent caused by such
Agent's gross negligence or willful misconduct. Each Agent shall be entitled to
refrain from any act or the taking of any action (including the failure to take
an action) in connection with this Agreement or any of the other Loan Documents
or from the exercise of any power, discretion or authority vested in it
hereunder or thereunder unless and until such Agent shall have received
instructions in respect thereof from Requisite Lenders (or such other Lenders as
may be required to give such instructions under subsection 10.6) and, upon
receipt of such instructions from Requisite Lenders (or such other Lenders, as
the case may be), such Agent shall be entitled to act or (where so instructed)
refrain from acting, or to exercise such power, discretion or authority, in
accordance with such instructions. Without prejudice to the generality of the
foregoing, (i) each Agent shall be entitled to rely, and shall be fully
protected in relying, upon any communication, instrument or document believed by
it to be genuine and correct and to have been signed or sent by the proper
person or persons, and shall be entitled to rely and shall be protected in
relying on opinions and judgments of attorneys (who may be attorneys for Company
and its Subsidiaries), accountants, experts and other professional advisors
selected by it; and (ii) no Lender shall have any right of action whatsoever
against either Agent as a result of such Agent acting or (where so instructed)
refraining from acting under this Agreement or any of the other Loan Documents
in accordance with the instructions of Requisite Lenders (or such other Lenders
as may be required to give such instructions under subsection 10.6).
D. Agents Entitled to Act as Lenders. The agency hereby created shall in
no way impair or affect any of the rights and powers of, or impose any duties or
obligations upon, either Agent in its individual capacity as a Lender hereunder.
With respect to its participation in the Loans and the Letters of Credit, such
Agent shall have the same rights and powers hereunder as any other Lender and
may exercise the same as though it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" or "Lenders" or any similar
term shall, unless the context clearly otherwise indicates, include each Agent
in its individual capacity. Each Agent and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of banking, trust,
financial advisory or other business with Company or any of its Affiliates as if
it were not performing the duties specified herein, and may accept fees and
other consideration from
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any Borrower for services in connection with this Agreement and otherwise
without having to account for the same to Lenders.
9.3 Representations and Warranties; No Responsibility For Appraisal of Credit-
worthiness.
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Company and
its Subsidiaries in connection with the making of the Loans and the issuance of
Letters of Credit hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Company and its Subsidiaries. Neither
Agent shall have any duty or responsibility, either initially or on a continuing
basis, to make any such investigation or any such appraisal on behalf of Lenders
or to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter, and neither Agent shall have any responsibility
with respect to the accuracy of or the completeness of any information provided
to Lenders.
9.4 Right to Indemnity.
Each Lender, in proportion to its Pro Rata Share, severally agrees
to indemnify Administrative Agent, Collateral Agent, Documentation Agent and
Syndication Agent to the extent that such Person shall not have been reimbursed
by Company, for and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including
counsel fees and disbursements) or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against such Person
in exercising its powers, rights and remedies or performing its duties hereunder
or under the other Loan Documents or otherwise in its capacity as Administrative
Agent, Collateral Agent, Documentation Agent or Syndication Agent, respectively,
in any way relating to or arising out of this Agreement or the other Loan
Documents; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the indemnified Person. If any indemnity furnished to
Administrative Agent, Collateral Agent, Documentation Agent or Syndication Agent
for any purpose shall, in the opinion of such Person, be insufficient or become
impaired, such Person may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished.
9.5 Successor Agents and Swing Line Lender.
A. Successor Administrative Agent. Administrative Agent may resign
at any time by giving 30 days' prior written notice thereof to Lenders and
Borrowers, and Administrative Agent may be removed at any time with or without
cause by an instrument or concurrent instruments in writing delivered to
Borrowers and Administrative Agent and
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signed by Requisite Lenders. Upon any such notice of resignation or any such
removal, Requisite Lenders shall have the right, upon five Business Days' notice
to Borrowers, to appoint a successor Administrative Agent acceptable to Company
(which acceptance shall not be unreasonably withheld). Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Administrative
Agent, that successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or
removed Administrative Agent and the retiring or removed Administrative Agent
shall be discharged from its duties and obligations under this Agreement and the
other Loan Documents. After any retiring or removed Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Section 9 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement.
B. Successor Collateral Agent. Any resignation or removal of
Administrative Agent pursuant to subsection 9.5A shall also constitute the
resignation or removal of BTCo or its successor as Collateral Agent, and any
successor Administrative Agent appointed pursuant to subsection 9.5A shall, upon
its acceptance of such appointment, become the successor Collateral Agent for
all purposes under the Loan Documents. After any resignation or removal of
Collateral Agent hereunder, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted by it while it was Collateral Agent
under the Loan Documents.
C. Successor Swing Line Lender. Any resignation or removal of
Administrative Agent pursuant to subsection 9.5A shall also constitute the
resignation or removal of BTCo or its successor as Swing Line Lender, and any
successor Administrative Agent appointed pursuant to subsection 9.5A shall, upon
its acceptance of such appointment, become the successor Swing Line Lender for
all purposes hereunder. In such event (i) Company shall prepay any outstanding
Swing Line Loans made by the retiring or removed Administrative Agent in its
capacity as Swing Line Lender, (ii) upon such prepayment, the retiring or
removed Administrative Agent and Swing Line Lender shall surrender any Swing
Line Note held by it to Company for cancellation, and (iii) if so requested by
the successor Administrative Agent and Swing Line Lender in accordance with
subsection 2.1E, Company shall issue a new Swing Line Note to the successor
Administrative Agent and Swing Line Lender substantially in the form of Exhibit
VIII annexed hereto, in the principal amount of the Swing Line Loan Commitment
then in effect and with other appropriate insertions.
9.6 Collateral Documents and Guaranties.
Each Lender hereby further authorizes Collateral Agent, on behalf of
and for the benefit of Lenders, to enter into each Collateral Document as
secured party and to be the agent for and representative of Lenders under the
Guaranties and to enter into the Intercreditor Agreement, and each Lender agrees
to be bound by the terms of each Collateral Document, each Guaranty and the
Intercreditor Agreement; provided that
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Collateral Agent shall not (i) enter into or consent to any material amendment,
modification, termination or waiver of any provision contained in any Collateral
Document, the Intercreditor Agreement or the Guaranties or (ii) release any
Collateral (except as otherwise expressly permitted or required pursuant to the
terms of this Agreement or the applicable Collateral Document), in each case
without the prior consent of Requisite Lenders (or such other Lenders as may be
required to give such instructions under subsection 10.6); provided further,
however, that, without further written consent or authorization from Lenders,
Collateral Agent may execute any documents or instruments necessary to (a)
release any Lien encumbering any item of Collateral that is the subject of a
sale or other disposition of assets permitted by this Agreement or to which
Requisite Lenders have otherwise consented or (b) release any Subsidiary from
its Guaranty if all of the capital stock of such Subsidiary is sold to any
Person (other than an Affiliate of Company) pursuant to a sale or other
disposition permitted hereunder or to which Requisite Lenders have otherwise
consented. Anything contained in any of the Loan Documents to the contrary
notwithstanding, Company, Collateral Agent and each Lender hereby agree that (X)
no Lender shall have any right individually to realize upon any of the
Collateral under any Collateral Document or to enforce the Guaranties, it being
understood and agreed that all powers, rights and remedies under the Collateral
Documents and the Guaranties may be exercised solely by Collateral Agent for the
benefit of Lenders in accordance with the terms thereof, and (Y) in the event of
a foreclosure by Collateral Agent on any of the Collateral pursuant to a public
or private sale, Collateral Agent or any Lender may be the purchaser of any or
all of such Collateral at any such sale and Collateral Agent, as agent for and
representative of Lenders (but not any Lender or Lenders in its or their
respective individual capacities unless Requisite Lenders shall otherwise agree
in writing) shall be entitled, for the purpose of bidding and making settlement
or payment of the purchase price for all or any portion of the Collateral sold
at any such public sale, to use and apply any of the Obligations as a credit on
account of the purchase price for any collateral payable by Collateral Agent at
such sale.
Section 10. MISCELLANEOUS
10.1 Assignments and Participations in Loans and Letters of Credit.
A. General. Subject to subsection 10.1B, each Lender shall have the right
at any time (i) to sell, assign or transfer to any Eligible Assignee, or (ii) to
sell participations to any Person in, all or any part of its Commitments or any
Loan or Loans made by it or its Letters of Credit or participations therein or
any other interest herein or in any other Obligations owed to it; provided that
no such sale, assignment, transfer or participation shall, without the consent
of Company, require Company to file a registration statement with the SEC or
apply to qualify such sale, assignment, transfer or participation under the
securities laws of any state; provided, further that no such sale, assignment or
transfer described in clause (i) above shall be effective unless and until an
Assignment Agreement effecting such sale, assignment or transfer shall have been
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accepted by Administrative Agent and recorded in the Register as provided in
subsection 10.1B(ii); provided, further that no sale, assignment or transfer of
any Sterling Loan shall be made except to a U.K. Qualifying Bank and any sale,
assignment or transfer of any Tranche A Term Loan shall be made pro rata with a
sale, assignment or transfer of such Lender's other Tranche A Term Loans;
provided, further that no such sale, assignment, transfer or participation of
any Letter of Credit or any participation therein may be made separately from a
sale, assignment, transfer or participation of a corresponding interest in the
Revolving Loan Commitment and the Revolving Loans of the Lender effecting such
sale, assignment, transfer or participation; and provided, further that,
anything contained herein to the contrary notwithstanding, the Swing Line Loan
Commitment and the Swing Line Loans of Swing Line Lender may not be sold,
assigned or transferred as described in clause (i) above to any Person other
than a successor Administrative Agent and Swing Line Lender to the extent
contemplated by subsection 9.5. Except as otherwise provided in this subsection
10.1, no Lender shall, as between Company and such Lender, be relieved of any of
its obligations hereunder as a result of any sale, assignment or transfer of, or
any granting of participations in, all or any part of its Commitments or the
Loans, the Letters of Credit or participations therein, or the other Obligations
owed to such Lender.
B. Assignments.
(i) Amounts and Terms of Assignments. Each Commitment, Loan, Letter
of Credit or participation therein, or other Obligation may (a) be
assigned in any amount to another Lender, or to an Affiliate of the
assigning Lender or another Lender, with the giving of notice to Company
and Administrative Agent or (b) be assigned in an aggregate amount of not
less than $5,000,000 (or such lesser amount as shall constitute the
aggregate amount of the Commitments, Loans, Letters of Credit and
participations therein, and other Obligations of the assigning Lender) to
any other Eligible Assignee with the consent of Company and Administrative
Agent (which consent of Company and Administrative Agent shall not be
unreasonably withheld or delayed); provided, that the consent of Company
shall not be required for any assignment that occurs at any time when an
Event of Default under subsection 8.6 or 8.7 shall have occurred and be
continuing and; provided, further that Sterling Loans may only be assigned
to a U.K. Qualifying Bank. To the extent of any such assignment in
accordance with either clause (a) or (b) above, the assigning Lender shall
be relieved of its obligations with respect to its Commitments, Loans,
Letters of Credit or participations therein, or other Obligations or the
portion thereof so assigned. The parties to each such assignment shall
execute and deliver to Administrative Agent, for its acceptance and
recording in the Register, an Assignment Agreement, together with a
processing and recordation fee of $3,500 and such forms, certificates or
other evidence, if any, with respect to United States federal income tax
withholding matters and United Kingdom tax matters as the assignee under
such Assignment Agreement may be required to deliver to Administrative
Agent pursuant to
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subsections 2.7B(iii)(a) and 2.7B(iv)(a). Upon such execution, delivery,
acceptance and recordation, from and after the effective date specified in
such Assignment Agreement, (y) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment Agreement, shall have the
rights and obligations of a Lender hereunder and (z) the assigning Lender
thereunder shall, to the extent that rights and obligations hereunder have
been assigned by it pursuant to such Assignment Agreement, relinquish its
rights (other than any rights which survive the termination of this
Agreement under subsection 10.8B) and be released from its obligations
under this Agreement (and, in the case of an Assignment Agreement covering
all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party
hereto; provided that, anything contained in any of the Loan Documents to
the contrary notwithstanding, if such Lender is the Issuing Lender with
respect to any outstanding Letters of Credit such Lender shall continue to
have all rights and obligations of an Issuing Lender with respect to such
Letters of Credit until the cancellation or expiration of such Letters of
Credit and the reimbursement of any amounts drawn thereunder). The
Commitments hereunder shall be modified to reflect the Commitment of such
assignee and any remaining Commitment of such assigning Lender and, if any
such assignment occurs after the issuance of any Notes hereunder, the
assigning Lender shall, upon the effectiveness of such assignment or as
promptly thereafter as practicable, surrender its applicable Notes, if
any, to Administrative Agent for cancellation, and thereupon new Notes
shall, if so requested by the assignee and/or the assigning Lender in
accordance with subsection 2.1E, be issued to the assignee and to the
assigning Lender, substantially in the form of Exhibit IV-A or Exhibit
IV-B, Exhibit V, Exhibit VI or Exhibit VII annexed hereto, as the case may
be, with appropriate insertions, to reflect the new Commitments and/or
outstanding Tranche A Term Loans and/or Tranche B Term Loans and/or
Tranche C Term Loans, as the case may be, of the assignee and the
assigning Lender.
(ii) Acceptance by Administrative Agent; Recordation in Register.
Upon its receipt of an Assignment Agreement executed by an assigning
Lender and an assignee representing that it is an Eligible Assignee,
together with the processing and recordation fee referred to in subsection
10.1B(i) and any forms, certificates or other evidence with respect to
United States federal income tax withholding matters and United Kingdom
tax matters that such assignee may be required to deliver to
Administrative Agent pursuant to subsections 2.7B(iii)(a) and 2.7B(iv)(a),
Administrative Agent shall, if Administrative Agent and Company have
consented to the assignment evidenced thereby (in each case to the extent
such consent is required pursuant to subsection 10.1B(i)), (a) accept such
Assignment Agreement by executing a counterpart thereof as provided
therein (which acceptance shall evidence any required consent of
Administrative Agent to such assignment), (b) record the information
contained therein in the Register, and (c) give prompt
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notice thereof to Company. Administrative Agent shall maintain a copy of
each Assignment Agreement delivered to and accepted by it as provided in
this subsection 10.1B(ii).
C. Participations. The holder of any participation, other than an
Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
directly affecting (i) the extension of the scheduled final maturity date of any
Loan allocated to such participation or (ii) a reduction of the principal amount
of or the rate of interest payable on any Loan allocated to such participation
or a reduction of the fee payable in respect of any Letter of Credit allocated
to such participation or a reduction of any commitment fee in respect of any
Commitment allocated to such participation, and all amounts payable by Borrowers
hereunder (including amounts payable to such Lender pursuant to subsections
2.6D, 2.7 and 3.6) shall be determined as if such Lender had not sold such
participation. Borrowers and each Lender hereby acknowledge and agree that,
solely for purposes of subsections 10.4 and 10.5, (a) any participation will
give rise to a direct obligation of Company to the participant and (b) the
participant shall be considered to be a "Lender".
D. Assignments to Federal Reserve Banks and Fund Trustees. In addition to
the assignments and participations permitted under the foregoing provisions of
this subsection 10.1, any Lender may assign and pledge all or any portion of its
Loans, the other Obligations owed to such Lender, and its Notes to any Federal
Reserve Bank as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any operating circular issued by
such Federal Reserve Bank and with the consent of Company and Administrative
Agent any Lender which is an investment fund may pledge all or any portion of
its Notes or Loans to its trustee in support of its obligations to its trustee;
provided that (i) no Lender shall, as between Company and such Lender, be
relieved of any of its obligations hereunder as a result of any such assignment
and pledge and (ii) in no event shall such Federal Reserve Bank be considered to
be a "Lender" or be entitled to require the assigning Lender to take or omit to
take any action hereunder.
E. Information. Each Lender may furnish any information concerning Company
and its Subsidiaries in the possession of that Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject to subsection 10.18.
F. Representations of Lenders. Each Lender listed on the signature pages
hereof hereby represents and warrants (i) that it is an Eligible Assignee
described in clause (A) of the definition thereof; (ii) that it has experience
and expertise in the making of loans such as the Loans; and (iii) that it will
make its Loans for its own account in the ordinary course of its business and
without a view to distribution of such Loans within the meaning of the
Securities Act or the Exchange Act or other federal securities laws (it being
understood that, subject to the provisions of this subsection 10.1, the
disposition of
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such Loans or any interests therein shall at all times remain within its
exclusive control). Each Lender that becomes a party hereto pursuant to an
Assignment Agreement shall be deemed to agree that the representations and
warranties of such Lender contained in Section 2(c) of such Assignment Agreement
are incorporated herein by this reference.
10.2 Expenses.
Whether or not the transactions contemplated hereby shall be
consummated, Company agrees to pay promptly (i) all the actual and reasonable
costs and expenses of preparation of the Loan Documents and any consents,
amendments, waivers or other modifications thereto; (ii) all the costs of
furnishing all opinions by counsel for Company (including any opinions requested
by Lenders as to any legal matters arising hereunder) and of Company's
performance of and compliance with all agreements and conditions on its part to
be performed or complied with under this Agreement and the other Loan Documents
including with respect to confirming compliance with environmental, insurance
and solvency requirements; (iii) the reasonable fees, expenses and disbursements
of counsel to Administrative Agent (including allocated costs of internal
counsel) in connection with the negotiation, preparation, execution and
administration of the Loan Documents and any consents, amendments, waivers or
other modifications thereto and any other documents or matters requested by
Company; (iv) all the actual costs and reasonable expenses of creating and
perfecting Liens in favor of Collateral Agent on behalf of Lenders pursuant to
any Collateral Document, including filing fees, expenses and taxes, stamp or
documentary taxes, search fees and reasonable fees, expenses and disbursements
of counsel to Collateral Agent; (v) all the actual costs and reasonable expenses
(including the reasonable fees, expenses and disbursements of any environmental
consultants retained by Administrative Agent or its counsel) of obtaining and
reviewing any environmental audits or reports provided for on or before the
Closing Date; (vi) all the actual costs and reasonable expenses of the custody
or preservation of any of the Collateral; (vii) all other actual and reasonable
costs and expenses incurred by Syndication Agent, Documentation Agent and
Administrative Agent in connection with the syndication of the Commitments and
the negotiation, preparation and execution of the Loan Documents and any
consents, amendments, waivers or other modifications thereto and the
transactions contemplated thereby; and (viii) after the occurrence of an Event
of Default, all costs and expenses, including reasonable attorneys' fees and
costs of settlement, incurred by Administrative Agent, Collateral Agent and each
Lender in enforcing any Obligations of or in collecting any payments due from
any Loan Party hereunder or under the other Loan Documents by reason of such
Event of Default (including in connection with the sale of, collection from, or
other realization upon any of the Collateral or the enforcement of the
Guaranties) or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-out" or
pursuant to any insolvency or bankruptcy proceedings.
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10.3 Indemnity.
In addition to the payment of expenses pursuant to subsection 10.2,
whether or not the transactions contemplated hereby shall be consummated,
Company agrees to defend (subject to Indemnitees' selection of counsel),
indemnify, pay and hold harmless Administrative Agent, Collateral Agent,
Syndication Agent, Documentation Agent, each Lead Manager, each Co-Agent and
each Lender, and the officers, directors, employees, trustees, partners, agents
and affiliates of Administrative Agent, Collateral Agent, Syndication Agent,
Documentation Agent, each Lead Manager, each Co-Agent and each Lender
(collectively called the "Indemnitees"), from and against any and all
Indemnified Liabilities (as hereinafter defined); provided that Company shall
not have any obligation to any Indemnitee hereunder with respect to any
Indemnified Liabilities to the extent such Indemnified Liabilities arise solely
from the gross negligence or willful misconduct of that Indemnitee as determined
by a final judgment of a court of competent jurisdiction.
As used herein, "Indemnified Liabilities" means, collectively, any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, expenses and disbursements of any kind or
nature whatsoever (including the reasonable fees and disbursements of counsel
for Indemnitees in connection with any investigative, administrative or judicial
proceeding commenced or threatened by any Person, whether or not any such
Indemnitee shall be designated as a party or a potential party thereto, and any
fees or expenses incurred by Indemnitees in enforcing this indemnity), whether
direct, indirect or consequential and whether based on any federal, state or
foreign laws, statutes, rules or regulations (including securities and
commercial laws, statutes, rules or regulations and Environmental Laws), on
common law or equitable cause or on contract or otherwise, that may be imposed
on, incurred by, or asserted against any such Indemnitee, in any manner relating
to or arising out of (i) this Agreement or the other Loan Documents or the
Related Agreements or the transactions contemplated hereby or thereby (including
Lenders' agreement to make the Loans hereunder or the use or intended use of the
proceeds thereof or the issuance of Letters of Credit hereunder or the use or
intended use of any thereof, or any enforcement of any of the Loan Documents
(including any sale of, collection from, or other realization upon any of the
Collateral or the enforcement of the Guaranties), (ii) the statements contained
in the commitment letter delivered by any Lender to Company with respect
thereto, or (iii) any Environmental Claim or any Hazardous Materials relating to
or arising from, directly or indirectly, any past or present activity,
operation, land ownership, or practice of Company or any of its Subsidiaries.
To the extent that the undertakings to defend, indemnify, pay and
hold harmless set forth in this subsection 10.3 may be unenforceable in whole or
in part because they are violative of any law or public policy, Company shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.
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10.4 Set-Off.
In addition to any rights now or hereafter granted under applicable
law and not by way of limitation of any such rights, upon the occurrence of any
Event of Default each Lender is hereby authorized by each Borrower at any time
or from time to time, without notice to such Borrower or to any other Person,
any such notice being hereby expressly waived, to set off and to appropriate and
to apply any and all deposits (general or special, including Indebtedness
evidenced by certificates of deposit, whether matured or unmatured, but not
including trust accounts) and any other Indebtedness at any time held or owing
by that Lender to or for the credit or the account of such Borrower against and
on account of any obligations and liabilities of such Borrower then due and
payable to that Lender under this Agreement, the Letters of Credit and
participations therein and the other Loan Documents, irrespective of whether or
not that Lender shall have made any demand for payment thereof.
10.5 Ratable Sharing.
Lenders hereby agree among themselves that if any of them shall,
whether by voluntary payment (other than a voluntary prepayment of Loans made
and applied in accordance with the terms of this Agreement), by realization upon
security, through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the Loan
Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and owing to that
Lender hereunder or under the other Loan Documents (collectively, the "Aggregate
Amounts Due" to such Lender) which is greater than the proportion received by
any other Lender in respect of the Aggregate Amounts Due to such other Lender,
then the Lender receiving such proportionately greater payment shall (i) notify
Administrative Agent and each other Lender of the receipt of such payment and
(ii) apply a portion of such payment to purchase participations (which it shall
be deemed to have purchased from each seller of a participation simultaneously
upon the receipt by such seller of its portion of such payment) in the Aggregate
Amounts Due to the other Lenders so that all such recoveries of Aggregate
Amounts Due shall be shared by all Lenders in proportion to the Aggregate
Amounts Due to them; provided that if all or part of such proportionately
greater payment received by such purchasing Lender is thereafter recovered from
such Lender upon the bankruptcy or reorganization of Company or otherwise, those
purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such purchasing Lender ratably to the extent
of such recovery, but without interest. Company expressly consents to the
foregoing arrangement and agrees that any holder of a participation so purchased
may exercise any and all rights of banker's lien, set-off or counterclaim with
respect to any and all monies owing by Company to that holder with respect
thereto as fully as if that holder were owed the amount of the participation
held by that holder.
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10.6 Amendments and Waivers.
A. No amendment, modification, termination or waiver of any
provision of the Loan Documents, or consent to any departure by any Borrower
therefrom, shall in any event be effective without the written concurrence of
Requisite Lenders; provided that no such amendment, modification, termination,
waiver or consent shall, without the consent of each Lender (with Obligations
directly affected in the case of the following clause (i)): (i) extend the
scheduled final maturity of any Loan or Note, or extend the stated expiration
date of any Letter of Credit beyond the Revolving Loan Commitment Termination
Date, or reduce the rate of interest on any Loan (other than any waiver of any
increase in the interest rate applicable to any Loan pursuant to subsection
2.2E) or any commitment fees or letter of credit fees payable hereunder, or
extend the time for payment of any such interest or fees, or reduce the
principal amount of any Loan or any reimbursement obligation in respect of any
Letter of Credit, (ii) amend, modify, terminate or waive any provision of this
subsection 10.6, (iii) reduce the percentage specified in the definition of
"Requisite Lenders" (it being understood that, with the consent of Requisite
Lenders, additional extensions of credit pursuant to this Agreement may be
included in the determination of "Requisite Lenders" on substantially the same
basis as the Term Loan Commitments, the Term Loans, the Revolving Loan
Commitments and the Revolving Loans are included on the Closing Date) or (iv)
consent to the assignment or transfer by any Borrower of any of its rights and
obligations under this Agreement; provided, further that no such amendment,
modification, termination or waiver shall (1) increase the Commitments of any
Lender over the amount thereof then in effect without the consent of such Lender
(it being understood that no amendment, modification or waiver of any condition
precedent, covenant, Potential Event of Default or Event of Default shall
constitute an increase in the Commitment of any Lender, and that no increase in
the available portion of any Commitment of any Lender shall constitute an
increase in such Commitment of such Lender); (2) amend, modify, terminate or
waive any provision of subsection 2.1A(v) or any other provision of this
Agreement relating to the Swing Line Loan Commitment or the Swing Line Loans
without the consent of Swing Line Lender; (3) so long as any Obligations of the
applicable U.K. Borrower remain outstanding, consent to the sale of the stock of
all or substantially all of the assets of such U.K. Borrower, or release Company
from its guaranty of the Obligations of such U.K. Borrower under the Company
Guaranty, without the consent of the Tranche A Lenders; (4) amend the definition
of "Supermajority Class Lenders" without the consent of the Supermajority Class
Lenders of each Class, or release all or substantially all of the Collateral or
all or substantially all of the Subsidiary Guarantors from the Subsidiary
Guaranty except as expressly provided in the Loan Documents, without the consent
of the Supermajority Class Lenders of each Class, (5) amend the definition of
"Requisite Class Lenders" without the consent of Requisite Class Lenders of each
Class, or alter the required application of any repayments or prepayments as
between Classes pursuant to subsection 2.4B(iv) without the consent of Requisite
Class Lenders of each Class which is being allocated a lesser repayment or
prepayment as a result thereof (although Requisite Lenders may waive, in whole
or in part, any mandatory prepayment so long as the
136
application, as between Classes, of any portion of such prepayment which is
still required to be made is not altered); (6) without the consent of Requisite
Class Lenders of the respective Class, waive, reduce or postpone any scheduled
repayment set forth in subsection 2.4A(i), (ii) or (iii) with respect to the
applicable Term Loans of such affected Class; (7) amend, modify, terminate or
waive any obligation of Lenders relating to the purchase of participations in
Letters of Credit as provided in subsection 3.1C without the written concurrence
of Administrative Agent and of each Issuing Lender which has a Letter of Credit
then outstanding or which has not been reimbursed for a drawing under a Letter
of Credit issued it; or (8) amend, modify, terminate or waive any provision of
Section 9 as the same applies to Administrative Agent, or any other provision of
this Agreement as the same applies to the rights or obligations of
Administrative Agent, in each case without the consent of Administrative Agent.
B. Administrative Agent may, but shall have no obligation to, with
the concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of that Lender. Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was given. No
notice to or demand on any Borrower in any case shall entitle any Borrower to
any other or further notice or demand in similar or other circumstances. Any
amendment, modification, termination, waiver or consent effected in accordance
with this subsection 10.6 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by any Borrower, such Borrower.
10.7 Notices.
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of telefacsimile or telex, or three
Business Days after depositing it in the United States mail with postage prepaid
and properly addressed; provided that notices to either Agent shall not be
effective until received. For the purposes hereof, the address of each party
hereto shall be as set forth under such party's name on the signature pages
hereof or (i) as to Company and each Agent, such other address as shall be
designated by such Person in a written notice delivered to the other parties
hereto and (ii) as to each other party, such other address as shall be
designated by such party in a written notice delivered to Administrative Agent.
10.8 Survival of Representations, Warranties and Agreements.
A. All representations, warranties and agreements made herein shall
survive the execution and delivery of this Agreement and the making of the Loans
and the issuance of the Letters of Credit hereunder.
137
B. Notwithstanding anything in this Agreement or implied by law to
the contrary, the agreements of Borrowers set forth in subsections 2.6D, 2.7,
3.5A, 3.6, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth in
subsections 9.2C, 9.4 and 10.5 shall survive the payment of the Loans, the
cancellation or expiration of the Letters of Credit and the reimbursement of any
amounts drawn thereunder, and the termination of this Agreement.
10.9 Failure or Indulgence Not Waiver; Remedies Cumulative.
No failure or delay on the part of any Agent or any Lender in the
exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
10.10 Marshalling; Payments Set Aside.
Neither Administrative Agent, nor Collateral Agent nor any Lender
shall be under any obligation to marshal any assets in favor of Company or any
other party or against or in payment of any or all of the Obligations. To the
extent that any Borrower makes a payment or payments to either Agent or Lenders
(or to either Agent for the benefit of Lenders), or either Agent or Lenders
enforce any security interests or exercise their rights of setoff, and such
payment or payments or the proceeds of such enforcement or setoff or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, any other state or federal law, common law or any
equitable cause, then, to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor or related thereto, shall be revived and continued in full force and
effect as if such payment or payments had not been made or such enforcement or
setoff had not occurred.
10.11 Severability.
In case any provision in or obligation under this Agreement or the
Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
138
10.12 Obligations Several; Independent Nature of Lenders' Rights.
The obligations of Lenders hereunder are several and no Lender shall
be responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and it shall not be necessary for any other
Lender to be joined as an additional party in any proceeding for such purpose.
10.13 Headings.
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
10.14 Applicable Law.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
10.15 Successors and Assigns.
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders (it being understood that
Lenders' rights of assignment are subject to subsection 10.1). No Borrower's
rights or obligations hereunder or under the other Loan Documents nor any
interest therein may be assigned or delegated by such Borrower without the prior
written consent of all Lenders.
10.16 Consent to Jurisdiction and Service of Process.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY BORROWER ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS
THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇. BY
139
EXECUTING AND DELIVERING THIS AGREEMENT, EACH BORROWER, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN
ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO SUCH BORROWER AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SUBSECTION 10.7;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH BORROWER IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH
BORROWER IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.16 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST
EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402
OR OTHERWISE.
10.17 Waiver of Jury Trial.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY WAIVES ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS AMONG THEM
RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER
RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver is intended to
be all-encompassing of any and all disputes that may be filed in any court and
that relate to the subject matter of this transaction, including contract
claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this waiver is a material
inducement to enter into a business relationship, that each has already relied
on
140
this waiver in entering into this Agreement, and that each will continue to rely
on this waiver in their related future dealings. Each party hereto further
warrants and represents that it has reviewed this waiver with its legal counsel
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 10.17 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
10.18 Confidentiality.
Each Lender shall hold all non-public information obtained pursuant
to the requirements of this Agreement which has been identified as confidential
by Company in accordance with such Lender's customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices, it being understood and agreed by each Borrower that in any
event a Lender may make disclosures to Affiliates of such Lender or disclosures
reasonably required by any bona fide assignee, transferee or participant in
connection with the contemplated assignment or transfer by such Lender of any
Loans or any participations therein or disclosures required or requested by any
governmental agency or representative thereof, or the National Association of
Insurance Commissioners (the "NAIC") or any other Person with the prior written
consent of Company and Administrative Agent in the exercise of their respective
sole discretion or pursuant to legal process; provided that, unless specifically
prohibited by applicable law or court order, each Lender shall notify Company of
any request by any governmental agency or representative thereof or the NAIC
(other than any such request in connection with any examination of the financial
condition of such Lender by such governmental agency or the NAIC) for disclosure
of any such non-public information prior to disclosure of such information; and
provided, further that in no event shall any Lender be obligated or required to
return any materials furnished by Company or any of its Subsidiaries.
10.19 Counterparts; Effectiveness.
This Agreement and any amendments, waivers, consents or supplements
hereto or in connection herewith may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically
141
attached to the same document. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto and receipt by
Company and Administrative Agent of written or telephonic notification of such
execution and authorization of delivery thereof.
10.20 Judgment Currency.
A. Currency Conversion Rate. If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due hereunder in any currency (the
"Original Currency") into another currency (the "Other Currency"), the parties
hereto agree, to the fullest extent permitted by law, that the rate of exchange
used shall be that at which in accordance with normal banking procedures
Administrative Agent could purchase the Original Currency with the Other
Currency on the Business Day preceding that on which final judgment is given.
B. Discharge of Judgment. The obligations of each Borrower in respect of
any sum due from it to Lenders hereunder shall, notwithstanding any judgment in
such Other Currency, be discharged only to the extent that, on the Business Day
following receipt by Administrative Agent of any sum adjudged to be so due in
the Other Currency, Administrative Agent may in accordance with normal banking
procedures purchase the Original Currency with the Other Currency; if the
Original Currency so purchased is less than the sum originally due to Lenders in
the Original Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify Lenders against such loss, and
if the amount of the Original Currency so purchased exceeds the sum originally
due to Lenders in the Original Currency, Lenders shall remit such excess to such
Borrower.
10.21 European Monetary Union.
It is hereby acknowledged that during the term of this Agreement the
United Kingdom may adopt a single European currency as its lawful currency in
place of Sterling as part of the anticipated European Economic and Monetary
Union. It is hereby acknowledged and agreed that "Sterling", as defined herein,
shall include any such successor currency and that conversion into such
successor currency shall be made at the official rate of conversion on the date
on which Sterling is so replaced, and that the denomination of the original
currency shall be retained hereunder for so long as it is legally permissible.
It is hereby further acknowledged and agreed that the provisions of this
Agreement relating to Sterling Loans shall remain in full force and effect upon
such conversion, and that neither the introduction of a single European
currency, the replacement of Sterling thereby, the fixing of the official rate
of conversion, nor any economic consequences resulting therefrom shall give rise
to any right to terminate, contest, cancel, modify or renegotiate the provisions
of this Agreement.
[Remainder of page intentionally left blank]
142
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY:
AMPHENOL CORPORATION
By:
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President & CFO
Notice Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-1
U.K. BORROWERS:
AMPHENOL HOLDING UK, LIMITED
By:
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Managing Director
AMPHENOL COMMERCIAL & INDUSTRIAL UK,
LIMITED
By:
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Managing Director
Notice Address for the U.K. Borrowers:
c/o Amphenol Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-2
AGENTS AND LENDERS:
THE CHASE MANHATTAN BANK,
individually and as Syndication Agent
By:
------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
Notice Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-3
THE BANK OF NEW YORK,
individually and as Documentation Agent
By:
------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
Notice Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Telephone:
Facsimile:
S-4
BANKERS TRUST COMPANY,
individually and as Administrative Agent
By:
------------------------------------------
▇▇▇▇ ▇▇ ▇▇▇▇▇
Assistant Vice President
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-5
ALLIEDSIGNAL INC.
By:
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice Pres. - Shenicman Capital Mgmt.,
as Attorney-in-Fact
Notice Address:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-6
ALLSTATE INSURANCE COMPANY
By:
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Authorized Signatory
By:
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Authorized Signatory
ALLSTATE LIFE INSURANCE COMPANY
By:
------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Authorized Signatory
By:
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Authorized Signatory
Notice Address:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇-▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
By:
------------------------------------------
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Vice President
By:
------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
VP - Group Manager
Notice Address:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇-▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By:
------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-9
BANKBOSTON, N.A.
By:
------------------------------------------
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Stop 01-08-05
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇-▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By:
------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Senior Relationship Manager
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇-▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇, LTD.
By:
------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
Attorney-in-Fact
Notice Address:
12th Floor
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-12
BANQUE PARIBAS
By:
------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
Vice President
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Group Vice President
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-13
CANADIAN IMPERIAL BANK OF COMMERCE
By:
------------------------------------------
▇▇▇ ▇▇▇▇▇
Authorized Signatory
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-14
CITICORP USA, INC.
By:
------------------------------------------
Jeroen Fikke
Attorney-in-Fact
CITIBANK, N.A., LONDON
By:
------------------------------------------
Jeroen Fikke
Attorney-in-Fact
Notice Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇/▇▇▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-15
CORESTATES BANK, N.A.
By:
------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Notice Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, FC# 1-8-4-16
Philadelphia, Pennsylvania 19107-3579
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-16
CREDIT LYONNAIS NEW YORK BRANCH
By:
------------------------------------------
▇▇▇▇▇▇ ▇▇▇
Vice President
Notice Address:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-17
CREDIT SUISSE FIRST BOSTON
By:
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Associate
By:
------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Managing Director
Notice Address:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-18
THE DAI-ICHI KANGYO BANK, LTD.
By:
------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
Notice Address:
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-19
PRIME INCOME TRUST
By:
------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
Notice Address:
c/o ▇▇▇▇ ▇▇▇▇▇▇ Intercapital
2 World Trade Center, 72nd Floor
New York, New York 10048
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-20
DLJ CAPITAL FUNDING, INC.
By:
------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
Notice Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Avenue of the Stars,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇-▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ AND GRAND
CAYMAN BRANCHES
By:
------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Vice President
By:
------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
Notice Address:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇-▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By:
------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Senior Vice President
Notice Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-23
FIRSTRUST BANK
By:
------------------------------------------
▇▇ ▇'▇▇▇▇▇▇
Vice President
Notice Address:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-24
FLEET NATIONAL BANK
By:
------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
Vice President
Notice Address:
One Federal Street, MAOFDO3C
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-25
THE FUJI BANK, LIMITED
By:
------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President & Manager
Notice Address:
Two World Trade Center, 79th Floor
New York, New York 10048
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-26
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.
By:
------------------------------------------
▇▇▇▇▇▇ ▇'▇▇▇▇
Authorized Signatory
Notice Address:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-27
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
------------------------------------------
Takuya Honjo
Senior Vice President
Notice Address:
1251 Avenue of the Americas
New York, New York 10020-1104
Attention: ▇▇▇ Takehisa
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-28
ING CAPITAL SENIOR SECURED HIGH INCOME
FUND, L.P.
By: ING CAPITAL ADVISORS, INC., as
Investment Advisor
By:
------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President & Portfolio Manager
Notice Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-29
KZH HOLDING CORPORATION
By:
------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Authorized Agent
Notice Address:
▇/▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
S-30
KZH HOLDING CORPORATION II
By:
------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Authorized Agent
Notice Address:
▇/▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
S-31
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
By:
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇
Authorized Signatory
Notice Address:
3 World Financial ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-32
LLOYDS BANK PLC
By:
------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
By:
------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Assistant Vice President
Notice Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇/5410
S-33
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED
By:
------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Deputy General Manager
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇-▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK
By:
------------------------------------------
▇▇▇▇ ▇▇▇▇▇
Senior Vice President
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-35
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By:
------------------------------------------
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
Managing Director
Notice Address:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-36
SENIOR HIGH INCOME PORTFOLIO, INC.
By:
------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, CFA
Authorized Signatory
Notice Address:
c/o Merrill ▇▇▇▇▇ Asset Management
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇, CFA
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-37
METROPOLITAN LIFE INSURANCE COMPANY
By:
------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Vice President
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-38
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:
------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
Senior Vice President
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-39
NATIONAL WESTMINSTER BANK PLC
By:
------------------------------------------
▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
Notice Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-40
NATIONSBANK, N.A.
By:
------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
Vice President
Notice Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ 1-007-07-01
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-41
NEW YORK LIFE INSURANCE COMPANY
By:
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Investment Manager
Notice Address:
▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-42
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By:
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
Notice Address:
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-43
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (A UNIT OF THE CHASE
MANHATTAN BANK)
By:
------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Managing Director
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-44
PARIBAS CAPITAL FUNDING LLC
By:
------------------------------------------
▇▇▇▇ ▇▇▇▇▇
Director
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-45
PPM AMERICA, INC., as Attorney in Fact, on
behalf of ▇▇▇▇▇▇▇ NATIONAL LIFE
INSURANCE COMPANY
By:
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▇▇▇▇▇▇▇ DiRe
Managing Director
Notice Address:
c/o PPM America, Inc.
Suite 1200
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ DiRe
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇-▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior Manager
Notice Address:
A. For all matters except those covered by B:
Royal Bank of Canada
Grand Cayman (North America No.1) Branch
c/o New York Branch
Financial Square, 23rd Floor
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Attention: Manager, Credit Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Financial Square, 24th Floor
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior
Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
B. For matters related to Sterling Loans to U.K.
Borrowers:
Royal Bank of Canada, London Branch
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Attention: ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇-▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇-▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Financial Square, 24th Floor
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-47
THE SAKURA BANK, LTD.
By:
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
Notice Address:
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-48
THE SANWA BANK, LIMITED
By:
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
Notice Address:
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-49
SOCIETE GENERALE
By:
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▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
Notice Address:
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-50
SOUTHERN PACIFIC THRIFT & LOAN
ASSOCIATION
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
Notice Address:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇-▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
BRANCH
By:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Joint General Manager
Notice Address:
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-52
TCW ASSET MANAGEMENT COMPANY, as
attorney-in-fact for INTEGON LIFE INSURANCE
COMPANY
By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Senior Vice President
Notice Address:
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-53
TCW ASSET MANAGEMENT COMPANY, as
attorney-in-fact for UNITED COMPANIES LIFE
INSURANCE COMPANY
By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Senior Vice President
Notice Address:
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-54
CRESCENT/MACH I PARTNERS, L.P.
By: TCW ASSET MANAGEMENT COMPANY,
Its Investment Manager
By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Senior Vice President
Notice Address:
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-55
THE TRAVELERS INSURANCE COMPANY
By:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Second Vice President
Notice Address:
▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇-▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ 06183-2030
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-56
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇. Vice President - Portfolio Manager
Notice Address:
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇/6741
S-57
CAISSE NATIONALE DE CREDIT AGRICOLE
By:
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R. ▇▇▇▇▇ ▇▇▇▇▇
First Vice President
Notice Address:
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
S-58
MEDICAL LIABILITY MUTUAL INSURANCE
COMPANY
By:
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K. ▇▇▇▇▇ ▇▇▇▇▇
Vice President
Notice Address:
Chancellor Senior Secured Management, Inc.
1166 Avenue of the ▇▇▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-59
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL BANK
By:
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▇▇▇▇▇▇ ▇'▇▇▇▇
Authorized Signatory
Notice Address:
Peterborough Court
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▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
Attention:
Telephone:
Facsimile:
S-60
FLOATING RATE PORTFOLIO
By: CHANCELLOR LGT SENIOR SECURED
MANAGEMENT INC., as Attorney-in-Fact
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
Notice Address:
GT Global Floating Rate Fund, Inc.
c/o Chancellor LGT Senior Secured
Management, Inc.
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-61
DEEPROCK & COMPANY
By: ▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT, as
Investment Advisor
By:
-----------------------------------
Payson ▇. ▇▇▇▇▇▇▇▇▇
Vice President
Notice Address:
▇▇▇▇▇ ▇▇▇▇▇ Management
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▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-62