1
Exhibit 10.1
[CONFORMED COPY]
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BE AEROSPACE, INC.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 29, 1993
Amended and Restated as of May 29, 1997
THE CHASE MANHATTAN BANK,
as Administrative Agent
NATIONSBANK, N.A. (SOUTH),
as Co-Agent
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
Page
Section 1. Definitions and Accounting Matters ............................ 1
1.01 Certain Defined Terms ........................................... 1
1.02 Accounting Terms and Determinations ............................. 23
1.03 Classes and Types of Loans ...................................... 24
Section 2. Commitments, Loans, Notes and Prepayments ..................... 25
2.01 Loans ........................................................... 25
2.02 Borrowings ...................................................... 26
2.03 Letters of Credit ............................................... 26
2.04 Changes of Commitments .......................................... 31
2.05 Commitment Fee .................................................. 32
2.06 Lending Offices ................................................. 32
2.07 Several Obligations; Remedies Independent ....................... 32
2.08 Evidence of Debt ................................................ 33
2.09 Optional Prepayments and Conversions or Continuations of Loans .. 33
2.10 Mandatory Prepayments and Reductions of Commitments ............. 34
Section 3. Payments of Principal and Interest ............................ 37
3.01 Repayment of Loans .............................................. 37
3.02 Interest ........................................................ 37
Section 4. Payments; Pro Rata Treatment; Computations; Etc ............... 38
4.01 Payments ........................................................ 38
4.02 Pro Rata Treatment .............................................. 39
4.03 Computations .................................................... 39
4.04 Minimum Amounts ................................................. 40
4.05 Certain Notices ................................................. 40
4.06 Non-Receipt of Funds by the Administrative Agent ................ 41
4.07 Sharing of Payments, Etc. ....................................... 42
Section 5. Yield Protection, Etc. ........................................ 43
5.01 Additional Costs ................................................ 43
5.02 Limitation on Types of Loans .................................... 46
5.03 Illegality ...................................................... 47
5.04 Treatment of Affected Loans ..................................... 47
5.05 Compensation .................................................... 48
5.06 Additional Costs in Respect of Letters of Credit ................ 48
5.07 U.S. Taxes ...................................................... 49
Section 6. Conditions Precedent .......................................... 51
6.01 Conditions to Effectiveness ..................................... 51
6.02 Initial and Subsequent Extensions of Credit ..................... 53
(i)
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Section 7. Representations and Warranties ................................ 54
7.01 Corporate Existence ............................................. 54
7.02 Financial Condition ............................................. 54
7.03 Litigation ...................................................... 55
7.04 No Breach ....................................................... 55
7.05 Action .......................................................... 55
7.06 Approvals ....................................................... 56
7.07 Use of Credit ................................................... 56
7.08 ERISA ........................................................... 56
7.09 Taxes ........................................................... 56
7.10 Investment Company Act .......................................... 57
7.11 Public Utility Holding Company Act .............................. 57
7.12 Material Agreements and Liens ................................... 57
7.13 Environmental Matters ........................................... 57
7.14 Capitalization .................................................. 59
7.15 Subsidiaries, Etc ............................................... 60
7.16 Title to Assets ................................................. 61
7.17 Compliance with Law ............................................. 61
7.18 True and Complete Disclosure .................................... 61
Section 8. Covenants of the Company ...................................... 62
8.01 Financial Statements, Etc ....................................... 62
8.02 Litigation ...................................................... 66
8.03 Existence, Etc. ................................................. 66
8.04 Insurance ....................................................... 67
8.05 Prohibition of Fundamental Changes .............................. 67
8.06 Limitation on Liens ............................................. 68
8.07 Indebtedness .................................................... 70
8.08 Investments ..................................................... 71
8.09 Restricted Payments ............................................. 71
8.10 Leverage Ratio .................................................. 73
8.11 Adjusted Net Worth .............................................. 73
8.12 Interest Coverage Ratio ......................................... 74
8.13 Net Worth of Acurex ............................................. 74
8.14 Lines of Business ............................................... 74
8.15 Transactions with Affiliates .................................... 74
8.16 Use of Proceeds ................................................. 75
8.17 Certain Obligations Respecting Subsidiaries ..................... 75
8.18 Modifications of Certain Documents .............................. 76
8.19 Environmental Matters ........................................... 76
8.20 Security for Series A Loans ..................................... 77
8.21 Redemption of Senior Subordinated Notes ......................... 77
Section 9. Events of Default ............................................. 77
Section 10. The Administrative Agent ..................................... 82
10.01 Appointment, Powers and Immunities ............................. 82
10.02 Reliance by Administrative Agent ............................... 82
10.03 Defaults ....................................................... 83
10.04 Rights as a Lender ............................................. 83
10.05 Indemnification ................................................ 84
(ii)
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10.06 Non-Reliance on Administrative Agent and Other Lenders ......... 84
10.07 Failure to Act ................................................. 85
10.08 Resignation or Removal of Administrative Agent ................. 85
10.09 Consents under Basic Documents ................................. 86
10.10 Collateral Sub-Agents .......................................... 86
10.11 Co-Agent ....................................................... 87
Section 11. Miscellaneous ................................................ 87
11.01 Waiver ......................................................... 87
11.02 Notices ........................................................ 87
11.03 Expenses, Etc. ................................................. 87
11.04 Amendments, Etc. ............................................... 89
11.05 Successors and Assigns ......................................... 90
11.06 Assignments and Participations ................................. 90
11.07 Survival ....................................................... 92
11.08 Captions ....................................................... 93
11.09 Counterparts ................................................... 93
11.10 Governing Law; Submission to Jurisdiction ...................... 93
11.11 Waiver of Jury Trial ........................................... 93
11.12 Treatment of Certain Information; Confidentiality .............. 93
11.13 Amendments to Security Documents ............................... 94
Annex 1 - Commitments
SCHEDULE I - Material Agreements and Liens
SCHEDULE II - Hazardous Materials
SCHEDULE III - Subsidiaries and Investments
SCHEDULE IV - Approvals and Compliance
SCHEDULE V - Existing Letters of Credit
SCHEDULE VI - Taxes
SCHEDULE VII - Transactions with Affiliates
EXHIBIT A-1 - Form of Revolving Credit Security Agreement
EXHIBIT A-2 - Form of Term Loan Security Agreement
EXHIBIT B - Form of Confidentiality Agreement
(iii)
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated as of October 29,
1993, amended and restated as of May 29, 1997, among: BE AEROSPACE, INC., a
corporation duly organized and validly existing under the laws of the State of
Delaware (the "Company"); each of the lenders that is a signatory hereto
identified under the caption "LENDERS" on the signature pages hereto or which,
pursuant to Section 11.06(b) hereof, shall become a "Lender" hereunder
(individually, a "Lender" and, collectively, the "Lenders"); and THE CHASE
MANHATTAN BANK, a New York banking corporation, as agent for the Lenders (in
such capacity, together with its successors in such capacity, the
"Administrative Agent").
The Company, certain Lenders and the Administrative Agent are party
to a Second Amended and Restated Credit Agreement dated as of October 29, 1993,
amended and restated as of January 19, 1996 (as modified and supplemented and in
effect immediately prior to the Amendment Effective Date referred to below, the
"Existing Credit Agreement"). The Company has requested that the Lender and the
Administrative Agent agree to amend and restate the Existing Credit Agreement,
and the Lenders and the Administrative Agent are willing to amend and restate
the Existing Credit Agreement, all on the terms and conditions herein set forth.
Accordingly, the parties hereto agree to amend and restate the
Existing Credit Agreement so that, as amended and restated, it reads in its
entirety as provided herein.
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following terms
shall have the following meanings (all terms defined in this Section 1.01 or in
other provisions of this Agreement in the singular to have the same meanings
when used in the plural and vice versa):
"Acquisition" shall mean any transaction, or any series of related
transactions, by which the Company and/or any of its Subsidiaries (a) acquires
any ongoing business or all or substantially all of the assets of any Person,
whether through purchase of assets, merger or otherwise, (b) directly or
indirectly acquires control of at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election of
directors or (c) directly or indirectly acquires control of a majority ownership
interest in any partnership, joint venture or similar arrangement. The terms
"Acquire" and "Acquired" used as a verb shall have a correlative meaning.
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"Acurex" shall mean Acurex Corporation, a Delaware corporation.
"Adjusted Net Worth" shall mean, as at any date, the sum of (a)
total stockholders' equity of the Company and its Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP) plus (b) the
fair market value of any shares of capital stock of the Company (determined as
of the date such shares are issued) which are utilized in any business
combination accounted for using pooling of interest accounting plus (c) an
amount not to exceed $20,000,000 in the aggregate of the after-tax amount
(calculated using the then effective corporate Federal tax rate, regardless of
the after-tax amount determined in accordance with GAAP) of any nonrecurring
noncash write-offs of intangible assets since February 22, 1997 plus (d) the
amount of any purchased research and development and related acquisition costs
of a target company to the extent such costs are or have been expensed.
"Administrative Questionaire" shall mean an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" shall mean any Person that directly or indirectly
controls, or is under common control with, or is controlled by, the Company and,
if such person is an individual, any member of the immediate family (including
parents, spouse, children and siblings) of such individual and any trust whose
principal beneficiary is such individual or one or more members of such
immediate family and any Person who is controlled by any such member or trust.
As used in this definition, "control" (including, with its correlative meanings,
"controlled by" and "under common control with") shall mean possession, directly
or indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise), provided that, in any event,
any Person that owns directly or indirectly securities having 5% or more of the
voting power for the election of directors or other governing body of a
corporation or 5% or more of the partnership or other ownership interests of any
other Person (other than as a limited partner of such other Person) will be
deemed to control such corporation or other Person, Notwithstanding the
foregoing, (a) no individual shall be an Affiliate solely by reason of his or
her being a director, officer or employee of the Company or any of its
Subsidiaries and (b) none of the Subsidiaries of the Company shall be
Affiliates.
"Amendment Effective Date" shall mean the date on which all of the
conditions set forth in Section 6.01 hereof
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shall have been satisfied or waived by the Lenders and the Administrative Agent.
"Applicable Lending Office" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or of an affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire
submitted by such Lender or such other office of such Lender (or of an affiliate
of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Company as the office by which its Loans of such
Type are to be made and maintained.
"Applicable Margin" shall mean with respect to Base Rate Loans and
Eurodollar Loans, the rate for such Type of Loan for each rating level period
set forth in the schedule below:
Applicable Margin
Rating Level Period Base Rate Loans Eurodollar Loans
------------------- --------------- ----------------
Level I Period 0.00% 0.500%
Level II Period 0.00% 0.625%
Level III Period 0.00% 0.750%
Level IV Period 0.00% 0.875%
Level V Period 0.00% 1.000%
Level VI Period 0.00% 1.250%
Level VII Period 0.25% 1.500%
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of 1978, as
amended from time to time.
"Base Rate" shall mean, for any day, a rate per annum equal to the
higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% and (b) the
Prime Rate for such day. Each change in any interest rate provided for herein
based upon the Base Rate resulting from a change in the Base Rate shall take
effect at the time of such change in the Base Rate.
"Base Rate Loans" shall mean Loans that bear interest at rates based
upon the Base Rate.
"Basic Documents" shall mean, collectively, this Agreement, the
Notes, the Letter of Credit Documents and the Security Documents.
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"Borrowing Base" shall mean, as at any date, the sum of (a) 80% of
the aggregate amount of Eligible Receivables at said date plus (b) 50% of the
aggregate value of Eligible Inventory at said date plus (c) the lesser of (i)
40% of the net book value of personal Property (excluding real estate owned or
leased, and excluding Eligible Inventory and Eligible Receivables) of the
Company in which the Administrative Agent has a valid and perfected
first-priority security interest and (ii) $20,000,000 through and including the
third anniversary of the Restatement Date, $15,000,000 from the third
anniversary of the Restatement Date through and including the fourth anniversary
of the Restatement Date, and $10,000,000 thereafter; provided that in no event
shall the amount of the Borrowing Base exceed the amount of Indebtedness
permitted to be secured by Liens under clause (d) of Section 1014 of the Senior
Indenture.
"Business Day" shall mean any day (a) on which commercial banks are
not authorized or required to close in New York City and (b) if such day relates
to a borrowing of, a payment or prepayment of principal of or interest on, a
Conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice
by the Company with respect to any such borrowing, payment, prepayment,
Conversion or Interest Period, which is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"Capital Lease Obligations" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting Standards Board), and,
for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP (including such
Statement No. 13)
"Casualty Event" shall mean, with respect to any Property of any
Person, any loss of or damage to, or any condemnation or other taking of, such
Property for which such Person or any of its Subsidiaries receives insurance
proceeds, or proceeds of a condemnation award or other compensation.
"Chase" shall mean The Chase Manhattan Bank.
"Class" shall have the meaning assigned to such term in Section 1.03
hereof.
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"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral Account" shall have the meaning assigned to such term in
Section 4.01 of the Revolving Credit Security Agreement.
"Commitment Fee Rate" shall mean (a) .1875% for any Level I Period,
(b) .2000% for any Level II Period, (c) .2250% for any Level III Period, (d)
.2500% for any Level IV Period, (e) .2750% for any Level V Period, (f) .3250%
for any Level VI Period and (e) .3750% for any Level VII Period.
"Commitments" shall mean the Series A Commitments and the Series B
Commitments.
"Continue", "Continuation" and "Continued" shall refer to the
continuation pursuant to Section 2.09 hereof of a Eurodollar Loan from one
Interest Period to the next Interest Period.
"Convert", "Conversion" and "Converted" shall refer to a conversion
pursuant to Section 2.09 hereof of one Type of Loans into another Type of Loans,
which may be accompanied by the transfer by a Lender (at its sole discretion) of
a Loan from one Applicable Lending Office to another.
"Default" shall mean an Event of Default or an event that with
notice or lapse of time or both would become an Event of Default.
"Disposition" shall mean any sale, assignment, transfer or other
disposition of any Property (whether now owned or hereafter acquired) by the
Company or any of its Subsidiaries to any Person excluding any sale, assignment,
transfer or other disposition of inventory in the ordinary course of business
and on ordinary business terms; provided that the term "Disposition" shall not
include (i) any Equity Issuance (as such term is defined in this Section 1.01
without giving effect to the proviso therein), (ii) any sale, assignment,
transfer or other disposition of Property by any Subsidiary of the Company to
the Company or to any other Subsidiary of the Company, in each case for
consideration that is not in excess of the fair market value of such Property as
determined in good faith by the chief financial officer of the Company or (iii)
any sale, assignment, transfer or other disposition of Property by the Company
or any Subsidiary of the Company to a joint venture, subject to the proviso in
Section 8.08(h) hereof. The creation of any Lien on any Property permitted under
Section 8.06 hereof shall not
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constitute a "Disposition" of such Property. The term "Dispose" shall have a
correlative meaning.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiary" shall mean any Subsidiary of the Company that
is incorporated under the law of any State of the United States of America.
"EBITDA" shall mean, for any period, for the Company and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), net operating earnings (calculated before depreciation
and amortization expense, non-recurring non-cash write-offs of assets (to the
extent deducted in computing net operating earnings), Interest Expense, taxes
and extraordinary and unusual items) for such period.
"Eligible Inventory" shall mean, as at any date, the inventories
(net of any reserve and excluding capitalized engineering expenditures) of the
Company on the basis of the method of accounting (either last in/first out or
first in/first out) used by the Company in the preparation of its financial
statements included in the latest Form 10-K filed by the Company under the
Securities Exchange Act, as included in the most recent consolidated balance
sheet of the Company and its Subsidiaries delivered pursuant to Section 8.01
hereof (or, prior to the delivery of the first consolidated balance sheet under
Section 8.01 hereof, the consolidated balance sheet as at February 22, 1997
referred to in Section 7.02 hereof) and in which the Administrative Agent has a
valid and perfected first-priority security interest.
"Eligible Receivables" shall mean, as at any date, the trade
accounts receivable (net of any reserve) of the Company that are not more than
60 days past their due date and that were entered into on normal payment terms
as included in the most recent consolidated balance sheet of the Company and its
Subsidiaries delivered pursuant to Section 8.01 hereof (or, prior to the
delivery of the first consolidated balance sheet under Section 8.01 hereof, the
consolidated balance sheet as at February 22, 1997 referred to in Section 7.02
hereof) and in which the Administrative Agent has a valid and perfected
first-priority security interest.
"Environmental Claim" shall mean, with respect to any Person, (a)
any written notice, claim, demand or other communication (collectively, a
"claim") by any other Person alleging or asserting such Person's liability for
investigatory costs, cleanup costs, governmental response costs, damages to
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natural resources or other Property, personal injuries, fines or penalties
arising out of, based on or resulting from (i) the presence, or Release into the
environment, of any Hazardous Material at any location, whether or not owned by
such Person, or (ii) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law. The term "Environmental Claim"
shall include, without limitation, any written claim by any governmental
authority for enforcement, cleanup, removal, response, remedial or other actions
or damages pursuant to any applicable Environmental Law, and any written claim
by any third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from the presence of
Hazardous Materials or arising from alleged injury or threat of injury to
health, safety or the environment.
"Environmental Laws" shall mean any and all present and future
Federal, state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the regulation
or protection of human health, safety or the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes into the indoor or outdoor
environment, including, without limitation, ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or toxic or
hazardous substances or wastes.
"Equity Issuance" shall mean (a) any issuance or sale by the Company
or any of its Subsidiaries after February 22, 1997 of (i) any capital stock,
(ii) any warrants or options exercisable in respect of capital stock (other than
any warrants or options issued to directors, officers, employees, agents,
consultants or advisors of the Company or any of its Subsidiaries and any
capital stock of the Company issued upon the exercise of such warrants or
options) or (iii) any other security or instrument representing an equity
interest (or the right to obtain any equity interest) in the issuing or selling
Person or (b) the receipt by the Company or any of its Subsidiaries after the
Closing Date of any capital contribution received (whether or not evidenced by
any equity security issued by the recipient of such contribution); provided that
Equity Issuance shall not include (x) any such issuance or sale by any
Subsidiary of the Company to the Company or any Wholly Owned Subsidiary of the
Company or (y) any capital contribution by the Company or any Wholly Owned
Subsidiary of the Company to any Subsidiary of the Company.
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"Equity Rights" shall mean, with respect to any Person, any
outstanding subscriptions, options, warrants, commitments, preemptive rights or
agreements of any kind (including, without limitation, any stockholders' or
voting trust agreements) for the issuance, sale, registration or voting of, or
outstanding securities convertible into, any additional shares of capital stock
of any class, or partnership or other ownership interests of any type in, such
Person.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or business
that is a member of any group of organizations (i) described in Section 414(b)
or (c) of the Code of which the Company is a member and (ii) solely for purposes
of potential liability under Section 302 (c) (11) of ERISA and Section 412 (c)
(11) of the Code and the lien created under Section 302(f) of ERISA and Section
412(n) of the Code, described in Section 414(m) or (o) of the Code of which the
Company is a member.
"Eurodollar Base Rate" shall mean, with respect to any Eurodollar
Loan for any Interest Period therefor, the arithmetic mean (rounded upwards, if
necessary, to the nearest 1/100 of 1%) of the respective rates per annum quoted
by each Reference Lender at approximately 11:00 a.m. London time (or as soon
thereafter as practicable) on the date two Business Days prior to the first day
of such Interest Period for the offering by such Reference Lender to leading
banks in the London interbank market of Dollar deposits having a term comparable
to such Interest Period and in an amount comparable to the principal amount of
the Eurodollar Loan to be made by such Reference Lender for such Interest
Period. If any Reference Lender is not participating in any Eurodollar Loan
during any Interest Period therefor, the Eurodollar Base Rate for such Loan for
such Interest Period shall be determined by reference to the amount of the
Eurodollar Loan to be made by Chase for such Interest Period.
"Eurodollar Loans" shall mean Loans the interest rates on which are
determined on the basis of rates referred to in the definition of "Eurodollar
Base Rate" in this Section 1.01.
"Eurodollar Rate" shall mean, for any Eurodollar Loan for any
Interest Period therefor, a rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined by the Administrative Agent to be equal to
the Eurodollar Base Rate for such Loan for such Interest Period divided by 1
minus the Reserve Requirement for such Loan for such Interest Period.
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"Event of Default" shall have the meaning assigned to such term in
Section 9 hereof.
"Existing Credit Agreement" shall have the meaning assigned to such
term in the recitals hereto.
"Existing Lenders" shall mean the lenders party to the Existing
Credit Agreement.
"Existing Letters of Credit" shall have the meaning assigned to such
term in Section 2.03(1) hereof.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (a) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to Chase on such Business Day on such
transactions as determined by the Administrative Agent.
"Fiscal Date" shall mean the last day of each fiscal quarterly
period of the Company.
"Funded Debt" shall mean, for any Person: (a) all Indebtedness of
such Person that should be reflected on a balance sheet of such Person in
accordance with GAAP; and (b) all Indebtedness of any other Person that should
be reflected on a balance sheet of such other Person in accordance with GAAP and
that is secured by a Lien on the Property of, is supported by a letter of credit
issued for account of, or is Guaranteed by, such Person.
"GAAP" shall mean generally accepted accounting principles applied
on a basis consistent with those which, in accordance with the last sentence of
Section 1.02(a) hereof, are to be used in making the calculations for purposes
of determining compliance with this Agreement.
"Guarantee" shall mean a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness,
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other obligations, net worth, working capital or earnings of any Person, or a
guarantee of the payment of dividends or other distributions upon the stock or
equity interests of any Person, or an agreement to purchase, sell or lease (as
lessee or lessor) Property, products, materials, supplies or services primarily
for the purpose of enabling a debtor to make payment of such debtor's
obligations or an agreement to assure a creditor against loss, and including,
without limitation, causing a bank or other financial institution to issue a
letter of credit or other similar instrument for the benefit of another Person,
but excluding endorsements for collection or deposit in the ordinary course of
business. The terms "Guarantee" and "Guaranteed" used as a verb shall have a
correlative meaning.
"Hazardous Material" shall mean, collectively, (a) any petroleum or
petroleum products, flammable explosives, radioactive materials, asbestos in any
form that is or could become friable, urea formaldehyde foam insulation, and
transformers or other equipment that contain dielectric fluid containing
polychlorinated biphenyls (PCB's), (b) any chemicals or other materials or
substances which are now or hereafter become defined as or included in the
definition of "hazardous substances", "hazardous wastes", "hazardous materials",
"extremely hazardous wastes", "restricted hazardous wastes", "toxic substances",
"toxic pollutants", "contaminants", "pollutants" or words of similar import
under any Environmental Law and (c) any other chemical or other material or
substance, exposure to which is now or hereafter prohibited, limited or
regulated under any Environmental Law.
"Increased Acquisition Amount" shall have the meaning assigned to
such term in Section 8.05(b) hereof.
"Increased Senior Note Prepayment Amount" shall have the meaning
assigned to such term in Section 8.09 hereof.
"Indebtedness" shall mean, for any Person: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business so long as such trade accounts
payable are payable within 90 days of the date the respective goods are
delivered or the respective services are rendered; (c) Indebtedness of others
secured by a Lien on the Property of such Person, whether or not the respective
indebtedness so
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secured has been assumed by such Person; (d) obligations of such Person in
respect of letters of credit or similar instruments issued or accepted by banks
and other financial institutions for account of such Person; (e) Capital Lease
Obligations of such Person; and (f) Indebtedness of others Guaranteed by such
Person.
"Information Memorandum" shall mean the Confidential Information
Memorandum dated May, 1997 distributed to the Lenders.
"Interest Coverage Ratio" shall mean, as at any date the ratio of
(i) EBITDA for the period of four consecutive complete fiscal quarters of the
Company ending on or most recently ended prior to such date to (ii) Interest
Expense for such period.
"Interest Expense" shall mean, for any period, the sum, for the
Company and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness accrued or capitalized during such period (whether or
not actually paid during such period) plus (b) the net amounts payable (or minus
the net amounts receivable) under Interest Rate Protection Agreements accrued
during such period (whether or not actually paid or received during such period)
minus (c) interest income during such period.
"Interest Period" shall mean, with respect to any Eurodollar Loan,
each period commencing on the date such Eurodollar Loan is made or Converted
from a Base Rate Loan or the last day of the next preceding Interest Period for
such Loan and ending on the numerically corresponding day in the first, second,
third or sixth calendar month thereafter, as the Company may select as provided
in Section 4.05 hereof, except that each Interest Period that commences on the
last Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) no Interest Period for any Series A Loan may
end after the Series A Commitment Termination Date; (ii) no Interest Period for
any Series B Loan may commence before and end after any Series B Commitment
Reduction Date unless, after giving effect thereto, the aggregate principal
amount of the Series B Loans having Interest Periods that end after such Series
B Commitment Reduction Date shall be equal to or less than the aggregate
principal amount of the Series B Loans scheduled to be outstanding after giving
effect to the payments of principal required to be made on such Series B
Commitment Reduction Date; (iii) each Interest Period that would otherwise end
on a day
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which is not a Business Day shall end on the next succeeding Business Day (or,
if such next succeeding Business Day falls in the next succeeding calendar
month, on the next preceding Business Day); (iv) notwithstanding clauses (i) and
(ii) above, no Interest Period shall have a duration of less than one month and,
if the Interest Period for any Eurodollar Loan would otherwise be a shorter
period, such Eurodollar Loan shall not be available hereunder for such period;
and (v) until the earlier of (a) the date that Chase shall have notified the
Company that its syndication of the Commitments and Loans is completed and (b)
the ninetieth day after the Amendment Effective Date, Interest Periods in excess
of one month shall not be available.
"Interest Rate Protection Agreement" shall mean, for any Person, an
interest rate swap, cap or collar agreement or similar arrangement between such
Person and one or more financial institutions providing for the transfer or
mitigation of interest risks either generally or under specific contingencies.
For purposes hereof V the "credit exposure" at any time of any Person under an
Interest Rate Protection Agreement to which such Person is a party shall be
determined at such time in accordance with the standard methods of calculating
credit exposure under similar arrangements as prescribed from time to time by
the Administrative Agent, taking into account potential interest rate movements
and the respective termination provisions and notional principal amount and term
of such Interest Rate Protection Agreement.
"Investment" shall mean, for any Person: (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person or any agreement to make any such
acquisition (including, without limitation, any "short sale" or any sale of any
securities at a time when such securities are not owned by the Person entering
into such short sale); (b) the making of any deposit with, or advance, loan or
other extension of credit to, any other Person (including the purchase of
Property from another Person subject to an understanding or agreement,
contingent or otherwise, to resell such Property to such Person, but excluding
any such advance, loan or extension of credit having a term not exceeding 90
days representing the purchase price of inventory or supplies sold by such
Person in the ordinary course of business); (c) the entering into of any
Guarantee of, or other contingent obligation with respect to, Indebtedness or
other liability of any other Person and (without duplication) any amount
committed to be advanced, lent or extended to such Person; or (d) the entering
into of any Interest Rate Protection Agreement.
Credit Agreement
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"Issuing Lender" shall mean Chase, as the issuer of Letters of
Credit under Section 2.03 hereof, together with its successors and assigns in
such capacity.
"Letter of Credit" shall have the meaning assigned to such term in
Section 2.03 hereof.
"Letter of Credit Documents" shall mean, with respect to any Letter
of Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations,
each as the same may be modified and supplemented and in effect from time to
time.
"Letter of Credit Interest" shall mean, for each Series A Lender,
such Lender's participation interest (or, in the case of the Issuing Lender, the
Issuing Lender's retained interest) in the Issuing Lender's liability under
Letters of Credit and such Lender's rights and interests in Reimbursement
Obligations and fees, interest and other amounts payable in connection with
Letters of Credit and Reimbursement Obligations.
"Letter of Credit Liability" shall mean, without duplication, at any
time and in respect of any Letter of Credit, the sum of (a) the undrawn amount
of such Letter of Credit plus (b) the aggregate unpaid principal amount of all
Reimbursement Obligations of the Company at such time due and payable in respect
of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Series A Lender (other than the Issuing Lender) shall be deemed to
hold a Letter of Credit Liability in an amount equal to its participation
interest in the related Letter of Credit under Section 2.03 hereof, and the
Issuing Lender shall be deemed to hold a Letter of Credit Liability in an amount
equal to its retained interest in the related Letter of Credit after giving
effect to the acquisition by the Series A Lenders other than the Issuing Lender
of their participation interests under said Section 2.03.
"Level I Period" shall mean any period during which (a) no Event of
Default shall have occurred and be continuing, and (b) Rating Level 1 is in
effect or the Leverage Ratio is less than 1.75 to 1; "Level II Period" shall
mean any period, other than a Level I Period, during which (a) no Event of
Default shall have occurred and be continuing, (b) neither Rating ▇▇▇▇▇ ▇ nor
Rating Level 2 is in effect and (c) the Leverage Ratio is greater than or equal
to 1.75 to 1 but less than 2.25 to 1; "Level III Period" shall mean any period,
other than a Level I Period or a
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Level II Period, during which (a) no Event of Default shall have occurred and be
continuing, (b) neither Rating ▇▇▇▇▇ ▇ nor Rating Level 2 is in effect and (c)
the Leverage Ratio is greater than or equal to 2.25 to 1 but less than 2.75 to
1; "Level IV Period" shall mean any period, other than a Level I Period, a Level
II Period or a Level III Period, during which (a) no Event of Default shall have
occurred and be continuing, (b) neither Rating ▇▇▇▇▇ ▇ nor Rating Level 2 is in
effect and (c) the Leverage Ratio is greater than or equal to 2.75 to 1 but less
than 3.25 to 1; "Level V Period" shall mean any period, other than a Level I
Period, a Level II Period, a Level III Period or a Level IV Period during which
(a) no Event of Default shall have occurred and be continuing, (b) neither
Rating ▇▇▇▇▇ ▇ nor Rating Level 2 is in effect and (c) the Leverage Ratio is
greater than or equal to 3.25 to 1 but less than 3.75 to 1; "Level VI Period"
shall mean any period, other than a Level I Period, a Level II Period, a Level
III Period, Level IV Period or a Level V Period during which (a) no Event of
Default shall have occurred and be continuing, (b) neither Rating ▇▇▇▇▇ ▇ nor
Rating Level 2 is in effect and (c) the Leverage Ratio is greater than or equal
to 3.75 to 1 but less than 4.25 to 1; and "Level VII Period" shall mean any
period that is not a Level I Period, a Level II Period, a Level III Period, a
Level IV Period, a Level V Period or a Level VI Period. Any change in the
Applicable Margin for any Type of Loan or any change in the Commitment Fee by
reason of (x) a change in the Standard & Poor's Rating or the ▇▇▇▇▇'▇ Rating
shall become effective on the date of announcement or publication by the
respective rating agencies of a change in such rating or, in the absence of such
announcement or publication, the effective date of such rating and (y) a change
in the Leverage Ratio shall become effective on the first day of the next
succeeding fiscal quarterly period of the Company following receipt by the
Administrative Agent of the financial statements of the Company and its
Subsidiaries for such most recent Fiscal Date delivered as required by Section
8.01(a) or (b) hereof; provided that failure to deliver such financial
statements as required by Section 8.01(a) or (b) hereof shall result in the
Applicable Margin and Commitment Fee Rate being at the rates set forth opposite
Level VII Period.
"Leverage Ratio" shall mean, at any time, the ratio of Total Funded
Debt at such time to EBITDA for the four most recent fiscal quarters for which
financial statements have been delivered pursuant to Section 6.01(i), 8.01(a) or
8.01(b) hereof.
"Lien" shall mean, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Agreement and the other Basic Documents, a Person
shall be deemed to own subject to a Lien any Property that it has acquired or
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19
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holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement (other than an
operating lease) relating to such Property.
"Loans" shall mean the Series A Loans and the Series B Loans.
"Majority Lenders" shall mean Majority Series A Lenders and Majority
Series B Lenders.
"Majority Series A Lenders" shall mean Series A Lenders having at
least 60% of the aggregate amount of the Series A Commitments or, if the Series
A Commitments shall have terminated, Lenders holding at least 60% of the sum of
(a) the aggregate unpaid principal amount of the Series A Loans plus (b) the
aggregate amount of all Letter of Credit Liabilities.
"Majority Series B Lenders" shall mean Series B Lenders having at
least 60% of the aggregate amount of the Series B Commitments or, if the Series
B Commitments shall have terminated, Lenders holding at least 60% of the
aggregate unpaid principal amount of the Series B Loans.
"Margin Stock" shall mean "margin stock" within the meaning of
Regulations U and X.
"Material Adverse Effect" shall mean a material adverse effect on
(a) the Property, business, operations, financial condition, prospects,
liabilities or capitalization of the Company and its Subsidiaries taken as a
whole, (b) the ability of the Company to perform its obligations under any of
the Basic Documents to which it is a party, (c) the validity or enforceability
of any of the Basic Documents, (d) the rights and remedies of the Lenders and
the Administrative Agent under any of the Basic Documents or (e) the timely
payment of the principal of or interest on the Loans or the Reimbursement
Obligations or other amounts payable in connection therewith.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Services, Inc. or any
successor corporation thereto.
"▇▇▇▇▇'▇ Rating" shall mean, at any time, the then current rating
(including the failure to rate) by Moody's of the Company's long-term senior
unsecured Indebtedness.
"Multiemployer Plan" shall mean a multiemployer plan defined as such
in Section 3 (37) of ERISA to which contributions have been made by the Company
or any ERISA Affiliate and which is covered by Title IV of ERISA.
Credit Agreement
20
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"Net Available Proceeds" shall mean:
(i) in the case of any Disposition, the amount of Net Cash Payments
received in connection with such Disposition;
(ii) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation received
by the Company and its Subsidiaries in respect of such Casualty Event net
of (A) reasonable expenses incurred by the Company and its Subsidiaries in
connection therewith and (B) contractually required repayments of
Indebtedness to the extent secured by a Lien on such Property and any
income and transfer taxes payable by the Company or any of its
Subsidiaries in respect of such Casualty Event;
(iii) in the case of any Equity Issuance, the aggregate amount of
all cash received by the Company and its Subsidiaries in respect of such
Equity Issuance net of reasonable expenses incurred by the Company and its
Subsidiaries in connection therewith; and
(iv) in the case of any Reversion, the aggregate amount of all cash
received by the Company or any of its Subsidiaries in respect of such
Reversion net of (A) reasonable expenses incurred by the Company and its
Subsidiaries in connection therewith and (B) any income and excise taxes
payable by the Company or any of its Subsidiaries in respect of such
Reversion.
"Net Cash Payments" shall mean, with respect to any Disposition, the
aggregate amount of all cash payments, and the fair market value of any non-cash
consideration, received by the Company and its Subsidiaries directly or
indirectly in connection with such Disposition; provided that (a) Net Cash
Payments shall be net of (i) the amount of any legal, accounting and other
professional fees, title and recording tax expenses, commissions and other fees
and expenses paid by the Company and its Subsidiaries in connection with such
Disposition and (ii) any Federal, state and local income or other taxes
estimated to be payable by the Company and its Subsidiaries as a result of such
Disposition (but only to the extent that such estimated taxes are in fact paid
to the relevant Federal, state or local governmental authority within three
months of date of such Disposition or the Company or any of its Subsidiaries
uses any applicable tax benefit available to it as set forth on its balance
sheet to reduce such estimated taxes payable within such three month period),
(b) Net Cash Payments shall not include any cash payments of less than $100,000
from any one Disposition or a series of related Dispositions, and (c) Net Cash
Payments shall
Credit Agreement
21
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be net of any repayments by the Company or any of its Subsidiaries of
Indebtedness to the extent that (i) such Indebtedness is secured by a Lien on
the Property that is the subject of such Disposition and (ii) the transferee of
(or holder of a Lien on) such Property requires that such Indebtedness be repaid
as a condition to the purchase of such Property.
"Notes" shall mean the promissory notes (if any) executed and
delivered by the Company pursuant to Section 2.08 hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Permitted Investments" shall mean any Investment in (i) direct
obligations of the United States of America or any agency thereof, or
obligations guaranteed by the United States of America, or of any agency
thereof; (ii) commercial paper rated at least A-1 by S&P or P-1 by Moody's;
(iii) time deposits with, including certificates of deposit issued by, any
office located in the United States of America of any bank or trust company
which is organized under the laws of the United States of America or any state
thereof and has capital, surplus and undivided profits aggregating at least
$1,000,000,000; (iv) shares of any money market or mutual fund not less than 80%
of the assets of which are invested solely in securities or obligations of the
type described in clauses (i) through (iii) above and (v) repurchase agreements
with respect to securities described in clause (i) above entered into with an
office of a bank or trust company meeting the criteria specified in clause (iii)
above, provided in each case that such Investment matures within one year from
the date of acquisition thereof by the Company or a Subsidiary of the Company.
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof).
"Plan" shall mean an employee benefit plan established or maintained
by the Company or any ERISA Affiliate and that is covered by Title IV of ERISA,
other than a Multiemployer Plan.
"Post-Default Rate" shall mean, in respect of any principal of any
Loan, any Reimbursement Obligation or any other amount under this Agreement, any
Note or any other Basic Document that is not paid when due (whether at stated
maturity, by acceleration, by optional or mandatory prepayment or otherwise), a
rate per annum during the period from and including the due
Credit Agreement
22
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date to but excluding the date on which such amount is paid in full equal to 2%
plus the Base Rate as in effect from time to time plus the Applicable Margin for
Base Rate Loans (provided that, if the amount so in default is principal of a
Eurodollar Loan and the due date thereof is a day other than the last day of the
Interest Period therefor, the "Post-Default Rate" for such principal shall be,
for the period for and including such due date to but excluding the last day of
the Interest Period, 2% plus the interest rate for such Loan as provided in
Section 3.02 hereof and, thereafter, the rate provided for above in this
definition)
"Prime Rate" shall mean the rate of interest from time to time
announced by Chase at the Principal Office as its prime commercial lending rate.
"Principal Office" shall mean the principal office of Chase, located
on the date hereof at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Property" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Quarterly Dates" shall mean the quarterly anniversaries of the
Restatement Date; provided that, if any such date is not a Business Day, the
Quarterly Date shall be the next succeeding Business Day (or, if such next
succeeding Business Day falls in the next succeeding calendar month, the next
preceding Business Day).
"Rating Level 1" shall mean (a) the Standard & Poor's Rating is at
or above BBB- (or any successor rating) and (b) the ▇▇▇▇▇'▇ Rating is at or
above Baa3 (or any successor rating).
"Rating Level 2" shall mean (a) the Standard & Poor's Rating is
below BB- (or any successor rating) or (b) the ▇▇▇▇▇'▇ Rating is below Ba3 (or
any successor rating).
"Recapture Date" shall mean the last day of the Recapture Period.
"Recapture Period" shall mean each period (a) commencing on the
later of (i) October 29, 1993 and (ii) the day immediately following the last
day of the immediately preceding Recapture Period, and (b) ending on the date on
which the Company and/or its Subsidiaries receives Net Available Proceeds which,
together with all Net Available Proceeds received since the first day of such
Recapture Period, equal or exceeds in the aggregate $1,000,000.
Credit Agreement
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"Reference Lenders" shall mean Chase and NationsBank, N.A.
"Regulations A, D, U and X" shall mean, respectively, Regulations A,
B, U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
"Regulatory Change" shall mean, with respect to any Lender, any
change after the date of this Agreement in Federal, state or foreign law or
regulations (including, without limitation, Regulation D) or the adoption or
making after such date of any interpretation, directive or request applying to a
class of banks including such Lender of or under any Federal, state or foreign
law or regulations (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful) by any court or governmental or
monetary authority charged with the interpretation or administration thereof.
"Reimbursement Obligations" shall mean, at any time, the obligations
of the Company then outstanding, or which may thereafter arise in respect of all
Letters of Credit then outstanding, to reimburse amounts paid by the Issuing
Lender in respect of any drawings under a Letter of Credit.
"Release" shall mean any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including, without limitation, the movement
of Hazardous Materials through ambient air, soil, surface water, groundwater,
wetlands, land or subsurface strata. The terms "Release" and "Released" used as
a verb shall have a correlative meaning.
"Reserve Requirement" shall mean, for any Interest Period for any
Eurodollar Loan, the average maximum rate at which reserves (including, without
limitation, any marginal, supplemental or emergency reserves) are required to be
maintained during such Interest Period under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding one billion
Dollars against "Eurocurrency liabilities" (as such term is used in Regulation
D). Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change with respect to (i) any category of liabilities
that includes deposits by reference to which the Eurodollar Base Rate is to be
determined as provided in the definition of "Eurodollar Base Rate" in this
Section 1.01 or (ii) any category of extensions of credit or other assets that
includes Eurodollar Loans.
Credit Agreement
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"Restatement Date" shall mean May 29, 1997.
"Restricted Payment" shall mean, with respect to any Person, (a)
dividends (in cash, Property or obligations) on, or other payments or
distributions on account of, or the setting apart of money for a sinking or
other analogous fund for, or the purchase, redemption, retirement or other
acquisition of, any shares of any class of stock of such Person or of any
warrants (other than of shares of common stock, warrants or options of such
Person as payment for the exercise price of options or warrants to purchase
common stock of such Person having a fair market value equal to such exercise
price), options or other rights to acquire the same (or to make any payments to
any other Person, such as "phantom stock" payments, where the amount thereof is
calculated with reference to the fair market or equity value of such Person or
any of its Subsidiaries), but excluding dividends payable solely in shares of
common stock or in options, warrants or other rights to purchase such common
stock of such Person or (b) any payment (whether made by such Person or any of
its Subsidiaries) on account of the purchase, redemption, prepayment, defeasance
or other acquisition or retirement of value of any Indebtedness (i) which is
subordinated in right of payment to the prior payment of the Loans or (ii) which
is evidenced by the Senior Notes.
"Reversion" shall mean the termination by the Company or any of its
Subsidiaries of a Plan which results in a payment to the Company or any of its
Subsidiaries of any part of the over-funded portion of such Plan.
"Revolving Credit Security Agreement" shall mean the Revolving
Credit Security Agreement dated as of October 29, 1993 between the Company and
the Agent, a copy of which is attached as Exhibit A-l hereto, as amended by
Section 11.13 (a) hereof and as the same shall be further modified, supplemented
and in effect from time to time.
"Securities Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Security Documents" shall mean, collectively, the Revolving Credit
Security Agreement and the Term Loan Security Agreement.
"Senior Indenture" shall mean the Indenture dated as of March 3,
1993 between the Company and United States Trust Company of New York, as
Trustee, as the same shall be modified and supplemented and in effect from time
to time.
Credit Agreement
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"Senior Notes" shall mean the Company's 9-3/4% Senior Notes due 2003
issued pursuant to the Senior Indenture, as the same shall be modified and
supplemented and in effect from time to time.
"Senior Subordinated Indenture" shall mean the Indenture dated as of
February 1, 1996 between the Company and Fleet National Bank Connecticut, N.A.,
as Trustee, as the same shall be modified and supplemented and in effect from
time to time.
"Senior Subordinated Notes" shall mean the Company's Senior
Subordinated Notes due 2006 issued pursuant to the Senior Subordinated
Indenture, as the same shall be modified and supplemented and in effect from
time to time.
"Series A Commitment" shall mean, for each Series A Lender, the
obligation of such Lender to make Series A Loans in an aggregate amount at any
one time outstanding up to but not exceeding the amount set opposite the name of
such Lender on Annex 1 hereto under the caption "Series A Commitment" (as the
same may be reduced from time to time pursuant to Section 2.04 hereof or
increased or reduced from time to time pursuant to Section 11.06 hereof). The
original aggregate principal amount of the Series A Commitments is $100,000,000.
"Series A Commitment Percentage" shall mean, with respect to any
Series A Lender, the ratio of (a) the amount of the Series A Commitment of such
Lender to (b) the aggregate amount of the Series A Commitments of all of the
Lenders.
"Series A Commitment Termination Date" shall mean the fifth
anniversary of the Restatement Date; provided that if such day is not a Business
Day, the Series A Commitment Termination Date shall be the immediately preceding
Business Day.
"Series A Lenders" shall mean (a) on the Amendment Effective Date,
the Lenders having Series A Commitments as indicated on Annex 1 hereto and (b)
thereafter, the Lenders from time to time holding Series A Loans and Series A
Commitments after giving effect to any assignments thereof permitted by Section
11.06 hereof.
"Series A Loans" shall mean the loans provided for by Section
2.01(a) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Series A Notes" shall mean the promissory notes provided for by
Section 2.08 (a) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as
Credit Agreement
26
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the same shall be modified and supplemented and in effect from time to time.
"Series B Commitment" shall mean, for each Series B Lender, the
obligation of such Lender to make Series B Loans in an aggregate amount at any
one time outstanding up to but not exceeding the amount set opposite the name of
such Lender on Annex 1 hereto under the caption "Series B Commitment" (as the
same may be reduced from time to time pursuant to Section 2.04 hereof or
increased or reduced from time to time pursuant to Section 11.06 hereof). The
original aggregate principal amount of the Series B Commitments is $25,000,000.
"Series B Commitment Reduction Dates" shall mean the eight Quarterly
Dates commencing with the Quarterly Date falling on or nearest to the date three
years and three months after the Restatement Date and ending on the Series B
Commitment Termination Date.
"Series B Commitment Termination Date" shall mean the fifth
anniversary of the Restatement Date; provided that if such day is not a Business
Day, the Series B Commitment Termination Date shall be the immediately preceding
Business Day.
"Series B Lenders" shall mean (a) on the Amendment Effective Date,
the Lenders having Series B Commitments as indicated on Annex 1 hereto and (b)
thereafter, the Lenders from time to time holding Series B Loans and Series B
Commitments after giving effect to any assignments thereof permitted by Section
11.06 hereof.
"Series B Loans" shall mean the loans provided for by Section
2.01(b) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Series B Notes" shall mean the promissory notes provided for by
Section 2.08(b) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"S&P" shall mean Standard & Poor's Rating Group or any successor
thereto.
"Specified Subsidiary" shall mean each of BE Aerospace
International, Inc., BE Aerospace (France) S.A.R.L. and ▇▇▇▇▇▇▇▇ Industries,
Inc., but only until all (or, in the case of a Subsidiary that is not a Domestic
Subsidiary, 65%) of its shares that are owned by the Company become subject to
the Lien of the Revolving Credit Security Agreement or are otherwise pledged to
Credit Agreement
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the Administrative Agent for the benefit of the Series A Lenders pursuant to
documentation in form and substance reasonably satisfactory to the Majority
Series A Lenders.
"Standard & Poor's Rating" shall mean, at any time, the then current
rating (including the failure to rate) by S&P of the Company's long-term senior
unsecured Indebtedness.
"Subsidiary" shall mean, for any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person. "Wholly Owned Subsidiary" shall mean any such corporation,
partnership or other entity of which all of the equity securities or other
ownership interests (other than, in the case of a corporation, directors'
qualifying shares) are so owned or controlled.
"Term Loan Security Agreement" shall mean the Term Loan Security
Agreement dated as of October 29, 1993, a copy of which is attached as Exhibit
A-2 hereto, as amended by Section 11.13(b) hereof and as the same shall be
further modified, supplemented and in effect from time to time.
"Total Funded Debt" shall mean, as at any date, the sum, for the
Company and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of all Funded Debt.
"Type" shall have the meaning assigned to such term in Section 1.03
hereof.
1.02 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to the
Lenders hereunder shall (unless otherwise disclosed to the Lenders in writing at
the time of delivery thereof in the manner described in subsection (b) below) be
prepared, in accordance with generally accepted accounting principles applied on
a basis consistent with those
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used in the preparation of the latest financial statements furnished to the
Lenders hereunder (which, prior to the delivery of the first financial
statements under Section 8.01 hereof, shall mean the audited financial
statements as at February 22, 1997 referred to in Section 7.02 hereof). All
calculations made for the purposes of determining compliance with this Agreement
shall (except as otherwise expressly provided herein) be made by application of
generally accepted accounting principles applied on a basis consistent with
those used in the preparation of the latest annual or quarterly financial
statements furnished to the Lenders pursuant to Section 8.01 hereof (or, prior
to the delivery of the first financial statements under Section 8.01 hereof,
used in the preparation of the audited financial statements as at February 22,
1997 referred to in Section 7.02 hereof) unless (i) the Company shall have
objected to determining such compliance on such basis at the time of delivery of
such financial statements or (ii) the Majority Lenders shall so object in
writing within 30 days after delivery of such financial statements, in either of
which events such calculations shall be made on a basis consistent with those
used in the preparation of the latest financial statements as to which such
objection shall not have been made (which, if objection is made in respect of
the first financial statements delivered under Section 8.01 hereof, shall mean
the audited financial statements as at February 22, 1997 referred to in Section
7.02 hereof)
(b) The Company shall deliver to the Lenders at the same time as the
delivery of any annual or quarterly financial statement under Section 8.01
hereof (i) a description in reasonable detail of any material variation between
the application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
subsection (a) above and (ii) reasonable estimates of the difference between
such statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of compliance
with the covenants set forth in Section 8 hereof, the fiscal year of the Company
shall end on the last Saturday in February of each year, and the last days of
the first three fiscal quarters shall fall on the last Saturday in each of May,
August and November of each year, respectively.
1.03 Classes and Types of Loans. Loans hereunder are distinguished
by "Class" and by "Type". The "Class" of a Loan (or of a Commitment to make a
Loan) refers to whether such Loan is a Series A Loan or a Series B Loan, each of
which constitutes a Class. The "Type" of a Loan refers to whether such Loan is a
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Base Rate Loan or a Eurodollar Loan, each of which constitutes a Type. Loans may
be identified by both Class and Type.
Section 2. Commitments, Loans, Notes and Prepayments.
2.01 Loans.
(a) Series A Loans. Each Series A Lender severally agrees, on the
terms and conditions of this Agreement, to make loans to the Company in Dollars
to but not including the Series A Commitment Termination Date in an aggregate
principal amount at any one time outstanding up to but not exceeding the amount
of the Series A Commitment of such Lender as in effect from time to time (such
Loans, together with the "Series A Loans" made under the Existing Credit
Agreement, being herein called "Series A Loans"), provided that in no event
shall the aggregate principal amount of all Series A Loans, together with the
aggregate amount of all Letter of Credit Liabilities, exceed the aggregate
amount of the Series A Commitments or the Borrowing Base as in effect from time
to time. Subject to the terms and conditions of this Agreement, the Company may
borrow, repay and reborrow the amount of the Series A Commitments by means of
Base Rate Loans and Eurodollar Loans and may Convert Series A Loans of one Type
into Series A Loans of another Type (as provided in Section 2.09 hereof) or
Continue Series A Loans of one Type as Series A Loans of the same Type (as
provided in Section 2.09 hereof); provided that prior to the earlier of (i) the
date that the Administrative Agent shall have notified the Company that it has
completed its syndication of the Commitments or (ii) the date 90 days after the
Restatement Date, all Eurodollar Loans must have Interest Periods of one month.
(b) Series B Loans. Each Series B Lender severally agrees, on the
terms and conditions of this Agreement, to make loans to the Company in Dollars
to but not including the Series B Commitment Termination Date in an aggregate
principal amount at any one time outstanding up to but not exceeding the amount
of the Series B Commitment of such Lender as in effect from time to time (such
Loans, together with the "Series B Loans" made under the Existing Credit
Agreement, being herein called "Series B Loans"), provided that in no event
shall the aggregate principal amount of all Series B Loans exceed the aggregate
amount of the Series B Commitments as in effect from time to time. Subject to
the terms and conditions of this Agreement, the Company may borrow, repay and
reborrow the amount of the Series B Commitments by means of Base Rate Loans and
Eurodollar Loans and may Convert Series B Loans of one Type into Series B Loans
of another Type (as provided in Section 2.09 hereof) or Continue Series B Loans
of one Type as Series B Loans of the same Type (as provided in Section 2.09
hereof); provided that prior to the earlier of (i)
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the date that the Administrative Agent shall have notified the Company that it
has completed its syndication of the Commitments or (ii) the date 90 days after
the Restatement Date, all Eurodollar Loans must have Interest Periods of one
month.
(c) Limit on Eurodollar Loans. No more than six separate Interest
Periods in respect of Eurodollar Loans of either Class from each Lender may be
outstanding at any one time.
2.02 Borrowings. The Company shall give the Administrative Agent
(which shall promptly notify the Lenders) notice of each borrowing hereunder as
provided in Section 4.05 hereof. Not later than 1:00 p.m. New York time on the
date specified for each borrowing hereunder, each Lender shall make available
the amount of the Loan or Loans to be made by it on such date to the
Administrative Agent, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders, in immediately
available funds, for account of the Company. The amount so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Company by depositing the same, in
immediately available funds, in an account of the Company maintained with Chase
at the Principal Office designated by the Company.
2.03 Letters of Credit. Subject to the terms and conditions of this
Agreement, the Series A Commitments may be utilized, upon the request of the
Company, in addition to the Series A Loans provided for by Section 2.01(a)
hereof, by the issuance by the Issuing Lender of letters of credit
(collectively, "Letters of Credit") for account of the Company or any of its
Subsidiaries (as specified by the Company), provided that in no event shall (i)
the aggregate amount of all Letter of Credit Liabilities, together with the
aggregate principal amount of the Series A Loans, exceed the aggregate amount of
the Series A Commitments as in effect from time to time, (ii) the outstanding
aggregate amount of all Letter of Credit Liabilities exceed $15,000,000 and
(iii) the expiration date of any Letter of Credit extend beyond the earlier of
the Series A Commitment Termination Date and the date twelve months following
the issuance of such Letter of Credit. The following additional provisions shall
apply to Letters of Credit:
(a) The Company shall give the Administrative Agent at least three
Business Days' irrevocable prior notice (effective upon receipt)
specifying the Business Day (which shall be no later than thirty days
preceding the Series A Commitment Termination Date) each Letter of Credit
is to be issued and the account party or parties therefor and describing
in reasonable detail the proposed terms of such
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Letter of Credit (including the beneficiary thereof) and the nature of the
transactions or obligations proposed to be supported thereby (including
whether such Letter of Credit is to be a commercial letter of credit or a
standby letter of credit). Upon receipt of any such notice, the
Administrative Agent shall advise the Issuing Lender of the contents
thereof.
(b) On each day during the period commencing with the issuance by
the Issuing Lender of any Letter of Credit and until such Letter of Credit
shall have expired or been terminated, the Series A Commitment of each
Series A Lender shall be deemed to be utilized for all purposes of this
Agreement in an amount equal to such Lender's Series A Commitment
Percentage of the then undrawn face amount of such Letter of Credit. Each
Series A Lender (other than the Issuing Lender) agrees that, upon the
issuance of any Letter of Credit hereunder, it shall automatically acquire
a participation in the Issuing Lender's liability under such Letter of
Credit in an amount equal to such Lender's Series A Commitment Percentage
of such liability, and each Series A Lender (other than the Issuing
Lender) thereby shall absolutely, unconditionally and irrevocably assume,
as primary obligor and not as surety, and shall be unconditionally
obligated to the Issuing Lender to pay and discharge when due, its Series
A Commitment Percentage of the Issuing Lender's liability under such
Letter of Credit.
(c) Upon receipt from the beneficiary of any Letter of Credit of any
demand for payment under such Letter of Credit, the Issuing Lender shall
promptly notify the Company (through the Administrative Agent) of the
amount to be paid by the Issuing Lender as a result of such demand and the
date on which payment is to be made by the Issuing Lender to such
beneficiary in respect of such demand. Notwithstanding the identity of the
account party of any Letter of Credit, the Company hereby unconditionally
agrees to pay and reimburse the Administrative Agent for account of the
Issuing Lender for the amount of each demand for payment under such Letter
of Credit at or prior to the date on which payment is to be made by the
Issuing Lender to the beneficiary thereunder, without presentment, demand,
protest or other formalities of any kind.
(d) Forthwith upon its receipt of a notice referred to in clause (c)
of this Section 2.03, the Company shall advise the Administrative Agent
whether or not the Company intends to borrow hereunder to finance its
obligation to reimburse the Issuing Lender for the amount of the related
demand for payment and, if it does, submit a notice of such borrowing
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as provided in Section 4.05 hereof. In the event that the Company fails to
so advise the Administrative Agent, or if the Company fails to reimburse
the Issuing Lender for a demand for payment under a Letter of Credit by
the date of such payment, the Administrative Agent shall give each Series
A Lender prompt notice of the amount of the demand for payment, specifying
such Lender's Series A Commitment Percentage of the amount of the related
demand for payment.
(e) Each Series A Lender (other than the Issuing Lender) shall pay
to the Administrative Agent for account of the Issuing Lender at the
Principal Office in Dollars and in immediately available funds, the amount
of such Lender's Series A Commitment Percentage of any payment under a
Letter of Credit upon notice by the Issuing Lender (through the
Administrative Agent) to such Series A Lender requesting such payment and
specifying such amount; provided that such Series A Lender shall not be
obligated to reimburse the Issuing Bank if such payment is the result of
the willful misconduct or gross negligence of the Issuing Bank in
determining that the request or demand for such payment complied with the
terms of such Letter of Credit. Each such Series A Lender's obligation to
make such payments to the Administrative Agent for account of the Issuing
Lender under this clause (e), and the Issuing Lender's right to receive
the same, shall be absolute and unconditional and shall not be affected by
any circumstance whatsoever, including, without limitation, (i) the
failure of any other Series A Lender to make its payment under this clause
(e), the financial condition of the Company (or any other account party),
the existence of any Default or (ii) the termination of the Commitments.
Each such payment to the Issuing Lender shall be made without any offset,
abatement, withholding or reduction whatsoever. If any Series A Lender
shall default in its obligation to make any such payment to the
Administrative Agent for account of the Issuing Lender, for so long as
such default shall continue the Administrative Agent shall at the request
of the Issuing Bank withhold from any payments received by the
Administrative Agent under this Agreement or any Note for account of such
Series A Lender the amount so in default and the Administrative Agent
shall pay the same to the Issuing Lender in satisfaction of such defaulted
obligation.
(f) Upon the making of each payment by a Series A Lender to the
Issuing Lender pursuant to clause (e) above in respect of any Letter of
Credit, such Lender shall, automatically and without any further action on
the part of the Administrative Agent, the Issuing Lender or such Lender,
acquire (i) a participation in an amount equal to such
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payment in the Reimbursement Obligation owing to the Issuing Lender by the
Company hereunder and under the Letter of Credit Documents relating to
such Letter of Credit and (ii) a participation in a percentage equal to
such Lender's Series A Commitment Percentage in any interest or other
amounts payable by the Company hereunder and under such Letter of Credit
Documents in respect of such Reimbursement Obligation (other than the
commissions, charges, costs and expenses payable to the Issuing Lender
pursuant to clause (g) of this Section 2.03). Upon receipt by the Issuing
Lender from or for account of the Company of any payment in respect of any
Reimbursement Obligation or any such interest or other amount (including
by way of setoff or application of proceeds of any collateral security)
the Issuing Lender shall promptly pay to the Administrative Agent for
account of each Series A Lender entitled thereto, such Series A Lender's
Series A Commitment Percentage of such payment, each such payment by the
Issuing Lender to be made in the same money and funds in which received by
the Issuing Lender. In the event any payment received by the Issuing
Lender and so paid to the Series A Lenders hereunder is rescinded or must
otherwise be returned by the Issuing Lender, each Series A Lender shall,
upon the request of the Issuing Lender (through the Administrative Agent),
repay to the Issuing Lender (through the Administrative Agent) the amount
of such payment paid to such Lender, with interest as specified in clause
(j) of this Section 2.03.
(g) The Company shall pay to the Administrative Agent for account of
the Series A Lenders in respect of each Letter of Credit a letter of
credit fee in an amount equal to the product of the Applicable Margin for
Eurodollar Loans times the daily average undrawn amount of such Letter of
Credit for the period from and including the date of issuance of such
Letter of Credit to and including the date such Letter of Credit is drawn
in full, expires or is terminated (such fee to be non-refundable, to be
paid in arrears on each Quarterly Date and on the Series A Commitment
Termination Date and to be calculated, for any day, after giving effect to
any payments made under such Letter of Credit on such day). In addition,
the Company shall pay to the Administrative Agent for account of the
Issuing Lender all commissions, charges, costs and expenses in the amounts
customarily charged by the Issuing Lender from time to time in like
circumstances with respect to the issuance of each Letter of Credit and
drawings and other transactions relating thereto.
(h) Promptly following the end of each calendar month, the Issuing
Lender shall deliver (through the Administrative
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Agent) to each Series A Lender and the Company a notice describing the
aggregate amount of all Letters of Credit outstanding at the end of such
month. Upon the request of any Series A Lender from time to time, the
Issuing Lender shall deliver any other information reasonably requested by
such Lender with respect to each Letter of Credit then outstanding.
(i) The issuance by the Issuing Lender of each Letter of Credit
shall, in addition to the conditions precedent set forth in Section 6
hereof, be subject to the conditions precedent that (i) such Letter of
Credit shall be in such form, contain such terms and support such
transactions as shall be satisfactory to the Issuing Lender consistent
with its then current practices and procedures with respect to letters of
credit of the same type and (ii) the Company shall have executed and
delivered such applications, agreements and other instruments relating to
such Letter of Credit as the Issuing Lender shall have reasonably
requested consistent with its then current practices and procedures with
respect to letters of credit of the same type, provided that in the event
of any conflict between any such application, agreement or other
instrument and the provisions of this Agreement or any Security Document,
the provisions of this Agreement and the Security Documents shall control.
(j) To the extent that any Series A Lender fails to pay any amount
required to be paid pursuant to clause (e) or (f) of this Section 2.03 on
the due date therefor, such Lender shall pay interest to the Issuing
Lender (through the Administrative Agent) on such amount from and
including such due date to but excluding the date such payment is made (i)
during the period from and including such due date to but excluding the
date three Business Days thereafter, at a rate per annum equal to the
Federal Funds Rate (as in effect from time to time) and (ii) thereafter,
at a rate per annum equal to the Base Rate (as in effect from time to
time) plus 2%.
(k) The issuance by the Issuing Lender of any modification or
supplement to any Letter of Credit hereunder shall be subject to the same
conditions applicable under this Section 2.03 to the issuance of new
Letters of Credit, and no such modification or supplement shall be issued
hereunder unless either (x) the respective Letter of Credit affected
thereby would have complied with such conditions had it originally been
issued hereunder in such modified or supplemented form or (y) each Series
A Lender shall have consented thereto.
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(l) Pursuant to Section 2.03 of the Existing Credit Agreement, Chase
has issued the Letters of Credit identified on Schedule V hereto (the
"Existing Letters of Credit"). Each Series A Lender hereby agrees that
each Existing Letter of Credit shall constitute, on and after the
Amendment Effective Date, a Letter of Credit for all purposes of this
Agreement.
The Company hereby indemnifies and holds harmless each Series A Lender and the
Administrative Agent from and against any and all claims and damages, losses,
liabilities, costs or expenses which such Lender or the Administrative Agent may
incur (or which may be claimed against such Lender or the Administrative Agent
by any Person whatsoever) by reason of or in connection with the execution and
delivery or transfer of or payment or refusal to pay by the Issuing Lender under
any Letter of Credit; provided that the Company shall not be required to
indemnify any Lender or the Administrative Agent for any claims, damages,
losses, liabilities, costs or expenses to the extent, but only to the extent,
caused by (x) the willful misconduct or gross negligence of the Issuing Lender
in determining whether a request presented under any Letter of Credit complied
with the terms of such Letter of Credit or (y) in the case of the Issuing
Lender, such Lender's failure to pay under any Letter of Credit after the
presentation to it of a request strictly complying with the terms and conditions
of such Letter of Credit. Nothing in this Section 2.03 is intended to limit the
other obligations of the Company, any Lender or the Administrative Agent under
this Agreement.
2.04 Changes of Commitments.
(a) Series A Commitments.
(i) The Series A Commitments shall terminate on the Series A
Commitment Termination Date.
(ii) The Company shall have the right at any time or from time to
time (x) so long as no Series A Loans or Letter of Credit Liabilities are
outstanding, to terminate the Series A Commitments and (y) to reduce the
aggregate unused amount of the Series A Commitments (for which purpose use
of the Series A Commitments shall be deemed to include the aggregate
amount of Letter of Credit Liabilities); provided that (A) the Company
shall give notice of each such termination or reduction as provided in
Section 4.05 hereof, (B) each partial reduction shall be in an aggregate
amount at least equal to $5,000,000 or in multiples of $1,000,000 in
excess thereof and (C) the aggregate amount of the Series A Commitments
may not be (I) terminated so long as
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the Series B Commitments are outstanding or (II) reduced below the
aggregate amount of the Series B Commitments then outstanding.
(b) Series B Commitments.
(i) The Series B Commitments shall terminate on the Series B
Commitment Termination Date. In addition, the aggregate amount of the
Series B Commitments shall be automatically reduced on each Series B
Commitment Reduction Date by an amount equal to the product of (x) the
aggregate amount of the Series B Commitments as originally in effect times
(y) 12.5%.
(ii) The Company shall have the right at any time or from time to
time (x) so long as no Series B Loans are outstanding, to terminate the
Series B Commitments and (y) to reduce the aggregate amount of the Series
B Commitments; provided that (A) the Company shall give notice of each
such termination or reduction as provided in Section 4.05 hereof; (B) each
partial reduction shall be in an aggregate amount at least equal to
$5,000,000 or in multiples of $1,000,000 in excess thereof; and (C) to the
extent that, after giving effect to any such reduction, the aggregate
principal amount of the Series B Loans would exceed the Series B
Commitments, the Company shall prepay the Series B Loans.
(c) All Commitments. The Commitments once terminated or reduced may
not be reinstated.
2.05 Commitment Fee. The Company shall pay to the Administrative
Agent for account of (i) each Series A Lender a commitment fee on the daily
average unused amount of such Lender's Series A Commitment (for which purpose
Letter of Credit Liabilities shall be deemed to be a use of any Lender's Series
A Commitment) and (ii) each Series B Lender a commitment fee on the daily
average unused amount of such Lender's Series B Commitment, for the period from
and including the Amendment Effective Date to but not including the date such
Commitment is terminated, at a rate per annum equal to the Commitment Fee Rate.
Accrued commitment fee shall be payable on each Quarterly Date and on the date
the relevant Commitments are terminated.
2.06 Lending Offices. The Loans of each Type made by each Lender
shall be made and maintained at such Lender's Applicable Lending Office for
Loans of such Type.
2.07 Several Obligations; Remedies Independent. The failure of any
Lender to make any Loan to be made by it on the
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date specified therefor shall not relieve any other Lender of its obligation to
make its Loan on such date, but neither any Lender nor the Administrative Agent
shall be responsible for the failure of any other Lender to make a Loan to be
made by such other Lender, and no Lender shall have any obligation to the
Administrative Agent (except as provided in Section 4.06 hereof) or any other
Lender for the failure by such Lender to make any Loan required to be made by
such Lender.
2.08 Evidence of Debt.
(a) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Company to such Lender
resulting from each Loan made or continued hereunder by such Lender, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(b) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made or continued hereunder, the Class
and Type thereof and the Interest Period applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from the
Company to each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender's
share thereof.
(c) The entries made in the accounts maintained pursuant to
paragraph (a) or (b) of this Section 2.08 shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Company
to repay the Loans in accordance with the terms of this Agreement.
(d) Any Lender may request that Loans made or continued by it
hereunder be evidenced by a promissory note(s). In such event, the Company, at
its own expense, shall prepare, execute and deliver to such Lender a promissory
note(s) payable to the order of such Lender (or, if requested by such Lender, to
such Lender and its registered assigns) and in a form approved by the
Administrative Agent and such note(s) shall be evidence of such Loans (and all
amounts payable in respect thereof).
2.09 Optional Prepayments and Conversions or Continuations of Loans.
Subject to Sections 4.04 and 5.05 hereof, the Company shall have the right to
prepay Loans, or to Convert Loans of one Type into Loans of another Type or
Continue Loans of one Type as Loans of the same Type, at any time or from
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time to time, provided that the Company shall give the Administrative Agent
notice of each such prepayment, Conversion or Continuation as provided in
Section 4.05 hereof (and, upon the date specified in any such notice of
prepayment, the amount to be prepaid shall become due and payable hereunder).
Notwithstanding the foregoing, and without limiting the rights and remedies of
the Lenders under Section 9 hereof, in the event that any Event of Default shall
have occurred and be continuing, the Administrative Agent may (and at the
request of the Majority Lenders shall) suspend the right of the Company to
Convert any Loan into a Eurodollar Loan, or to Continue any Loan as a Eurodollar
Loan, in which event all Loans shall be Converted (on the last day(s) of the
respective Interest Periods therefor) or Continued, as the case may be, as Base
Rate Loans.
2.10 Mandatory Prepayments and Reductions of Commitments.
(a) Borrowing Base. Until the Series A Commitment Termination Date,
the Company shall from time to time prepay the Series A Loans (and/or provide
cover for Letter of Credit Liabilities as specified in clause (f) below) in such
amounts as shall be necessary so that at all times the aggregate outstanding
amount of the Series A Loans together with the outstanding Letter of Credit
Liabilities shall not exceed the Borrowing Base, such amount to be applied,
first, to Series A Loans outstanding and, second, as cover for Letter of Credit
Liabilities outstanding.
(b) Casualty Events. Unless the Company or any of its Subsidiaries,
as the case may be, shall have irrevocably committed to repair or replace any
Property of the Company or such Subsidiary affected by a Casualty Event, on the
date 30 days following the receipt by the Company of the proceeds of insurance,
condemnation award or other compensation in respect of such Casualty Event
affecting such Property (or upon such earlier date as the Company or such
Subsidiary, as the case may be, shall have determined not to repair or replace
the Property affected by such Casualty Event), the Company shall prepay the
Loans (and/or provide cover for Letter of Credit Liabilities as specified in
clause (f) below), and the Commitments shall be subject to automatic reduction,
in an aggregate amount, if any, equal to 75% of the Net Available Proceeds of
such Casualty Event not theretofore applied to the repair or replacement of such
Property (or reserved by the Company for application to such purposes), such
prepayment and reduction to be effected in each case in the manner and to the
extent specified in clause (e) of this Section 2.10. Nothing in this clause (b)
shall be deemed to limit any obligation of the Company or any of its
Subsidiaries pursuant to any of the Security Documents to remit to a collateral
or similar account (including, without limitation, the
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Collateral Account) maintained by the Administrative Agent pursuant to any of
the Security Documents the proceeds of insurance, condemnation award or other
compensation received in respect of any Casualty Event.
(c) Recapture of Proceeds from Asset Sales. In the event of a
Disposition, the Company shall deposit 75% of the Net Available Proceeds
therefrom into the Collateral Account no later than five Business Days after
receipt thereof; provided that prior to such deposit the Company may invest such
Net Available Proceeds, or after such deposit the Company may withdraw such Net
Available Proceeds from the Collateral Account within 270 days after such
Disposition so long as immediately thereafter such Net Available Proceeds are
invested, in Property to be used by the Company or any of its Subsidiaries in
the lines of business in which the Company or any of its Subsidiaries is engaged
as of the Restatement Date or in any business related thereto. No later than 270
days following the occurrence of any such Disposition, the Company will deliver
to the Lenders a statement, certified by the chief financial officer of the
Company, in form and detail satisfactory to the Administrative Agent, of the
amount of the Net Available Proceeds of such Disposition not applied as
contemplated by the immediately preceding sentence and, on the first Recapture
Date thereafter, the Company shall withdraw the remaining Net Available Proceeds
from the Collateral Account and prepay the Loans (and/or provide cover for
Letter of Credit Liabilities as specified in clause (f) below), and the
Commitments shall be subject to automatic reduction, in an aggregate amount
equal to 75% of the Net Available Proceeds received or which become available
for prepayment or reduction during such Recapture Period ending on such
Recapture Date, such prepayment and reduction to be effected in each case in the
manner and to the extent specified in clause (e) of this Section 2.10. In
addition to the foregoing, to the extent the remaining 25% of the Net Available
Proceeds from such Disposition would become "Excess Proceeds" (as defined in the
Senior Subordinated Indenture) under clause (b) of Section 1016 of the Senior
Subordinated Indenture (the "Remainder Amount"), the Company shall, immediately
prior to such Remainder Amount becoming "Excess Proceeds" as aforesaid, prepay
the Loans (and/or provide cover for Letter of Credit Liabilities as specified in
clause (f) below), and the Commitments shall be subject to automatic reduction,
in an aggregate amount equal to such Remainder Amount, such prepayment and
reduction to be effected in each case in the manner and to the extent specified
in clause (e) of this Section 2.10. Nothing in this Section 2.10(c) shall be
deemed to excuse or otherwise limit the obligation of the Company to obtain the
consent of the Majority Lenders pursuant to Section 8.05 hereof to any
Disposition not otherwise permitted hereunder.
Credit Agreement
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(d) Reversions. Without limiting the obligation of the Company under
Section 8.01(c) hereof, upon any Reversion the Company shall prepay the Loans
(and/or provide cover for Letter of Credit Liabilities as specified in clause
(f) below), and the Commitments shall be subject to automatic reduction, in an
aggregate amount equal to 75% of the Net Available Proceeds thereof, such
prepayment and reduction to be effected in each case in the manner and to the
extent specified in clause (e) of this Section 2.10.
(e) Application. Prepayments and reductions of Commitments described
in the above clauses of this Section 2.10 (other than clause (a) above) shall be
effected as follows:
(i) first, the Series B Commitments shall be reduced in an amount
equal to the prepayment or reduction specified in such clauses (and to the
extent that, after giving effect to such reduction, the aggregate
principal amount of Series B Loans would exceed the Series B Commitments,
the Company shall prepay Series B Loans (such prepayments shall be applied
first to Base Rate Loans and then to Eurodollar Loans) in an aggregate
amount equal to such excess); and
(ii) second, any excess over the amount referred to in the foregoing
clause (i) shall automatically reduce the Series A Commitments (and to the
extent that, after giving effect to such reduction, the aggregate
principal amount of Series A Loans, together with the aggregate amount of
all Letter of Credit Liabilities, would exceed the Series A Commitments,
the Company shall, first, prepay Series A Loans (such prepayments shall be
applied first to Base Rate Loans and then to Eurodollar Loans) and,
second, provide cover for Letter of Credit Liabilities as specified in
clause (f) below, in an aggregate amount equal to such excess).
(f) Cover for Letter of Credit Liabilities. In the event that the
Company shall be required pursuant to this Section 2.10 to provide cover for
Letter of Credit Liabilities, the Company shall effect the same by paying to the
Administrative Agent immediately available funds in an amount equal to the
required amount, which funds shall be retained by the Administrative Agent in
the Collateral Account (as provided therein as collateral security in the first
instance for the Letter of Credit Liabilities) until such time as the Letters of
Credit shall have been terminated and all of the Letter of Credit Liabilities
paid in full.
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Section 3. Payments of Principal and Interest.
3.02. Repayment of Loans.
(a) The Company hereby promises to pay to the Administrative Agent
for account of each Series A Lender the entire outstanding principal amount of
such Lender's Series A Loans, and each Series A Loan shall mature, on the Series
A Commitment Termination Date.
(b) The Company hereby promises to pay to the Administrative Agent
for account of each Series B Lender the entire outstanding principal amount of
such Lender's Series B Loans, and each Series B Loan shall mature, on the Series
B Commitment Termination Date. In addition, if following any Series B Commitment
Reduction Date the aggregate principal amount of the Series B Loans shall exceed
the Series B Commitments, the Company shall pay Series B Loans in an aggregate
amount equal to such excess.
3.02 Interest. The Company hereby promises to pay to the
Administrative Agent for account of each Lender interest on the unpaid principal
amount of each Loan made by such Lender for the period from and including the
date of such Loan to but excluding the date such Loan shall be paid in full, at
the following rates per annum:
(a) during such periods as such Loan is a Base Rate Loan, the Base
Rate (as in effect from time to time) plus the Applicable Margin (if any)
and
(b) during such periods as such Loan is a Eurodollar Loan, for each
Interest Period relating thereto, the Eurodollar Rate for such Loan for
such Interest Period p1us the Applicable Margin.
Notwithstanding the foregoing, the Company hereby promises to pay to the
Administrative Agent for account of each Lender interest at the applicable
Post-Default Rate on any principal of any Loan made by such Lender, on any
Reimbursement Obligation held by such Lender and on any other amount payable by
the Company hereunder or under the Notes held by such Lender to or for account
of such Lender, which shall not be paid in full when due (whether at stated
maturity, by acceleration, by mandatory prepayment or otherwise), for the period
from and including the due date thereof to but excluding the date the same is
paid in full. Accrued interest on each Loan shall be payable (i) in the case of
a Base Rate Loan, quarterly on the Quarterly Dates, (ii) in the case of a
Eurodollar Loan, on the last day of each Interest Period therefor and, if such
Interest Period is longer than three
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months, at three-month intervals following the first day of such Interest
Period, and (iii) in the case of any Loan, upon the payment or prepayment
thereof or the Conversion of such Loan to a Loan of another Type (but only on
the principal amount so paid, prepaid or Converted), except that interest
payable at the Post-Default Rate shall be payable from time to time on demand.
Promptly after the determination of any interest rate provided for herein or any
change therein, the Administrative Agent shall give notice thereof to the
Lenders to which such interest is payable and to the Company.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein, all payments of
principal, interest, Reimbursement Obligations and other amounts to be made by
the Company under this Agreement and the Notes, and, except to the extent
otherwise provided therein, all payments to be made by the Company under any
other Basic Document, shall be made in Dollars, in immediately available funds,
without deduction, set-off or counterclaim, to the Administrative Agent to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Company, not later than 1:00 p.m. New York time on the
date on which such payment shall become due (each such payment made after such
time on such due date to be deemed to have been made on the next succeeding
Business Day)
(b) Any Lender for whose account any such payment is to be made may
(but shall not be obligated to) debit the amount of any such payment that is not
made by such time to any ordinary deposit account of the Company with such
Lender (with notice to the Company and the Administrative Agent).
(c) The Company shall, at the time of making each payment under this
Agreement or any Note for account of any Lender, specify to the Administrative
Agent (which shall so notify the intended recipient(s) thereof) the Loans,
Reimbursement Obligations or other amounts payable by the Company hereunder to
which such payment is to be applied (and in the event that the Company fails to
so specify, or if an Event of Default has occurred and is continuing, the
Administrative Agent may distribute such payment to the Lenders for application
in such manner as it or the Majority Lenders, subject to Section 4.02 hereof,
may determine to be appropriate).
(d) Except to the extent otherwise provided in the last sentence of
Section 2.03 (e) hereof, each payment received by
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the Administrative Agent under this Agreement or any Note for account of any
Lender shall be paid by the Administrative Agent promptly to such Lender, in
immediately available funds, for account of such Lender's Applicable Lending
Office for the Loan or other obligation in respect of which such payment is
made.
(e) If the due date of any payment under this Agreement or any Note
would otherwise fall on a day that is not a Business Day, such date shall be
extended to the next succeeding Business Day, and interest shall be payable for
any principal so extended for the period of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise provided
herein: (a) each borrowing of Loans of a particular Class from the Lenders under
Section 2.01 hereof shall be made from the relevant Lenders, each payment of
commitment fee under Section 2.05 hereof in respect of Commitments of a
particular Class shall be made for account of the relevant Lenders, and each
termination or reduction of the amount of the Commitments of a particular Class
under Section 2.04 hereof and under Section 2.10(e) hereof shall be applied to
the respective Commitments of such Class of the relevant Lenders, pro rata
according to the amounts of their respective Commitments of such Class; (b) the
making, Conversion and Continuation of Series A Loans and Series B Loans of a
particular Type (other than Conversions provided for by Section 5.04 hereof)
shall be made pro rata among the relevant Lenders according to the amounts of
their respective Series A and Series B Commitments (in the case of making of
Loans) or their respective Series A and Series B Loans (in the case of
Conversions and Continuations of Loans) and the then current Interest Period for
each Eurodollar Loan shall be coterminous; (c) each payment or prepayment of
principal of Series A Loans or Series B Loans by the Company shall be made for
account of the relevant Lenders pro rata in accordance with the respective
unpaid principal amounts of the Loans of such Class held by them; and (d) each
payment of interest on Series A Loans and Series B Loans by the Company shall be
made for account of the relevant Lenders pro rata in accordance with the amounts
of interest on such Loans then due and payable to the respective Lenders.
4.03 Computations. Interest on Eurodollar Loans and Reimbursement
Obligations and commitment fee and letter of credit fee shall be computed on the
basis of a year of 360 days and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable and interest
on Base Rate Loans shall be computed on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable.
Notwithstanding the foregoing, for
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each date that the Base Rate is calculated by reference to the Federal Funds
Rate, interest on Base Rate Loans shall be computed on the basis of a year of
360 days and actual days elapsed.
4.04 Minimum Amounts. Except for mandatory prepayments made pursuant
to Section 2.10 hereof and Conversions or prepayments made pursuant to Section
5.04 hereof, (i) each borrowing, Conversion and partial prepayment of principal
of Series A Loans shall be in multiples of $1,000,000 and (ii) each borrowing,
Conversion or partial prepayment of principal of Series B Loans shall be in
multiples of $1,000,000 (borrowings, Conversions or prepayments of or into Loans
of different Types, or, in the case of Eurodollar Loans, having different
Interest Periods at the same time hereunder to be deemed separate borrowings,
Conversions and prepayments for purposes of the foregoing, one for each Type or
Interest Period). Anything in this Agreement to the contrary notwithstanding,
the aggregate principal amount of Eurodollar Loans having the same Interest
Period shall be in an amount at least equal to $5,000,000 or in multiples of
$1,000,000 in excess thereof and, if any Eurodollar Loans would otherwise be in
a lesser principal amount for any period, such Loans shall be Base Rate Loans
during such period.
4.05 Certain Notices. Notices by the Company to the Administrative
Agent of terminations or reductions of the Commitments, of borrowings,
Conversions, Continuations and optional prepayments of Loans and of Classes of
Loans and of Types of Loans and of the duration of Interest Periods shall be
irrevocable and shall be effective only if received by the Administrative Agent
not later than 10:00 a.m. New York time on the number of Business Days prior to
the date of the relevant termination, reduction, borrowing, Conversion,
Continuation or prepayment or the first day of such Interest Period specified
below:
Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of Commitments 3
Borrowing or prepayment of, or Conversions into,
Base Rate Loans 1
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
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Each such notice of termination or reduction shall specify the amount and the
Class of the Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or optional prepayment shall specify the
Class of Loans to be borrowed, Converted, Continued or prepaid and the amount
(subject to Section 4.04 hereof) and Type of each Loan to be borrowed,
Converted, Continued or prepaid and the date of borrowing, Conversion,
Continuation or optional prepayment (which shall be a Business Day). Each such
notice of the duration of an Interest Period shall specify the Loans to which
such Interest Period is to relate. The Administrative Agent shall promptly
notify the Lenders of the contents of each such notice. In the event that the
Company fails to select the Type of Loan, or the duration of any Interest Period
for any Eurodollar Loan, within the time period and otherwise as provided in
this Section 4.05, such Loan (if outstanding as a Eurodollar Loan) will be
automatically Converted into a Base Rate Loan on the last day of the then
current Interest Period for such Loan or (if outstanding as a Base Rate Loan)
will remain as, or (if not then outstanding) will be made as, a Base Rate Loan.
4.06 Non-Receipt of Funds by the Administrative Agent. Unless the
Administrative Agent shall have been notified by a Lender or the Company (the
"Payor") prior to the date on which the Payor is to make payment to the
Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be
made by such Lender, or a participation in a Letter of Credit drawing to be
acquired by such Lender, hereunder or (in the case of the Company) a payment to
the Administrative Agent for account of one or more of the Lenders hereunder
(such payment being herein called the "Required Payment"), which notice shall be
effective upon receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such assumption
(but shall not be required to), make the amount thereof available to the
intended recipient(s) on such date; and, if the Payor has not in fact made the
Required Payment to the Administrative Agent, the recipient(s) of such payment
shall, on demand, repay to the Administrative Agent the amount so made available
together with interest thereon in respect of each day during the period
commencing on the date (the "Advance Date") such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to the Federal Funds Rate for such day and, if
such recipient(s) shall fail promptly to make such payment, the Administrative
Agent shall be entitled to recover such amount, on demand, from the Payor,
together with interest as aforesaid, provided that if neither the recipient(s)
nor the Payor shall return the Required Payment to the Administrative Agent
within three Business Days of the
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Advance Date, then, retroactively to the Advance Date, the Payor and the
recipient(s) shall each be obligated to pay interest on the Required Payment as
follows:
(i) if the Required Payment shall represent a payment to be made by
the Company to the Lenders, the Company and the recipient(s) shall each be
obligated retroactively to the Advance Date to pay interest in respect of
the Required Payment at the Post-Default Rate (and, in case the
recipient(s) shall return the Required Payment to the Administrative
Agent, without limiting the obligation of the Company under Section 3.02
hereof to pay interest to such recipient(s) at the Post-Default Rate in
respect of the Required Payment) and
(ii) if the Required Payment shall represent proceeds of a loan to
be made by the Lenders to the Company, the Payor and the Company shall
each be obligated retroactively to the Advance Date to pay interest in
respect of the Required Payment at the rate of interest provided for such
Required Payment pursuant to Section 3.02 hereof (and, in case the Company
shall return the Required Payment to the Administrative Agent, without
limiting any claim the Company may have against the Payor in respect of
the Required Payment).
4.07 Sharing of Payments. Etc.
(a) The Company agrees that, in addition to (and without limitation
of) any right of set-off, banker's lien or counterclaim a Lender may otherwise
have, each Lender shall be entitled, at its option, to offset balances held by
it for account of the Company at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Lender's Loans,
Reimbursement Obligations or any other amount payable to such Lender hereunder,
that is not paid when due (regardless of whether such balances are then due to
the Company), in which case it shall promptly notify the Company and the
Administrative Agent thereof, provided that such Lender's failure to give such
notice shall not affect the validity thereof.
(b) If any Lender shall obtain from the Company payment of any
principal of or interest on any Loan of any Class or Letter of Credit Liability
owing to it or payment of any other amount under this Agreement or any other
Basic Document through the exercise of any right of set-off, banker's lien or
counterclaim or similar right or otherwise (other than from the Administrative
Agent as provided herein), and, as a result of such payment, such Lender shall
have received a greater
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percentage of the principal of or interest on the Loans of such Class or Letter
of Credit Liabilities or such other amounts then due hereunder or thereunder by
the Company to such Lender than the percentage received by any other Lender, it
shall promptly purchase from such other Lenders participations in (or, if and to
the extent specified by such Lender, direct interests in) the Loans of such
Class or Letter of Credit Liabilities or such other amounts, respectively, owing
to such other Lenders (or in interest due thereon, as the case may be) in such
amounts, and make such other adjustments from time to time as shall be
equitable, to the end that all the Lenders shall share the benefit of such
excess payment (net of any expenses that may be incurred by such Lender in
obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal of and/or interest on the Loans of such Class or Letter of
Credit Liabilities or such other amounts, respectively, owing to each of the
Lender. To such end all the Lenders shall make appropriate adjustments among
themselves (by the resale of participations sold or otherwise) if such payment
is rescinded or must otherwise be restored.
(c) The Company agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of Loans or other amounts (as the case
may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise
any such right or shall affect the right of any Lender to exercise, and retain
the benefits of exercising, any such right with respect to any other
indebtedness or obligation of the Company. If, under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a set-off to which this Section 4.07 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this Section 4.07 to
share in the benefits of any recovery on such secured claim.
Section 5. Yield Protection, Etc.
5.01 Additional Costs.
(a) The Company shall pay directly to each Lender from time to time
such amounts as such Lender may determine to be necessary to compensate such
Lender for any costs that such Lender determines are attributable to its making
or maintaining of any Eurodollar Loans or its obligation to make any Eurodollar
Loans hereunder, or any reduction in any amount receivable by
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such Lender hereunder in respect of any of such Loans or such obligation (such
increases in costs and reductions in amounts receivable being herein called
"Additional Costs"), resulting from any Regulatory Change that:
(i) changes the basis of taxation of any amounts payable to such
Lender under this Agreement or its Notes in respect of any of such Loans
(other than taxes imposed on or measured by the overall net income of such
Lender or of its Applicable Lending Office for any of such Loans by the
jurisdiction in which such Lender has its principal office or such
Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate for such Loan) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender (including, without limitation, any of such
Loans or any deposits referred to in the definition of "Eurodollar Base
Rate" in Section 1.01 hereof), or any commitment of such Lender
(including, without limitation, the Commitments of such Lender hereunder);
or
(iii) imposes any other condition affecting this Agreement or its
Notes (or any of such extensions of credit or liabilities) or its
Commitments.
If any Lender requests compensation from the Company under this Section 5.01(a),
the Company may, by notice to such Lender (with a copy to the Administrative
Agent), suspend the obligation of such Lender thereafter to make or Continue
Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar Loans, until the
Regulatory Change giving rise to such request ceases to be in effect (in which
case the provisions of Section 5.04 hereof shall be applicable), provided that
such suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b) Without limiting the effect of the provisions of paragraph (a)
of this Section 5.01, in the event that, by reason of any Regulatory Change, any
Lender either (i) incurs Additional Costs based on or measured by the excess
above a specified level of the amount of a category of deposits or other
liabilities of such Lender that includes deposits by reference to which the
interest rate on Eurodollar Loans is determined as provided in this Agreement or
a category of extensions of credit or other assets of such Lender that includes
Eurodollar Loans or (ii) becomes subject to restrictions on the amount of such a
category of liabilities or assets that it may hold, then, if such
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Lender so elects by notice to the Company (with a copy to the Administrative
Agent), the obligation of such Lender to make or Continue, or to Convert Base
Rate Loans into, Eurodollar Loans hereunder shall be suspended until such
Regulatory Change ceases to be in effect (in which case the provisions of
Section 5.04 hereof shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this
Section 5.01 (but without duplication), the Company shall pay directly to each
Lender from time to time on request such amounts as such Lender may determine to
be necessary to compensate such Lender (or, without duplication, the bank
holding company of which such Lender is a subsidiary) for any costs that it
determines are attributable to the maintenance by such Lender (or any Applicable
Lending Office or such bank holding company), pursuant to any law or regulation
or any interpretation, directive or request (whether or not having the force of
law and whether or not failure to complete therewith would be unlawful) of any
court or governmental or monetary authority (i) following any Regulatory Change
or (ii) implementing any risk-based capital guideline or other requirement
(whether or not having the force of law and whether or not the failure to comply
therewith would be unlawful) heretofore or hereafter issued by any government or
governmental or supervisory authority implementing at the national level the
Basle Accord (including, without limitation, the Final Risk-Based Capital
Guidelines of the Board of Governors of the Federal Reserve System (12 C.F.R.
Part 208, Appendix A; ▇▇ ▇.▇.▇. ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇) and the Final Risk-Based
Capital Guidelines of the Office of the Comptroller of the Currency (12 C.F.R.
Part 3, Appendix A)), of capital in respect of its Commitments or Loans (such
compensation to include, without limitation, an amount equal to any reduction of
the rate of return on assets or equity of such Lender (or any Applicable Lending
Office or such bank holding company) to a level below that which such Lender (or
any Applicable Lending Office or such bank holding company) could have achieved
but for such law, regulation, interpretation, directive or request). For
purposes of this Section 5.01(c) and Section 5.06 hereof, "Basle Accord" shall
mean the proposals for risk-based capital framework described by the Basle
Committee on Banking Regulations and Supervisory Practices in its paper entitled
"International Convergence of Capital Measurement and Capital Standards" dated
July 1988, as amended, modified and supplemented and in effect from time to time
or any replacement thereof.
(d) Each Lender shall notify the Company of any event occurring
after the Amendment Effective Date entitling such Lender to compensation under
paragraph (a) or (c) of this Section 5.01 as promptly as practicable, but in any
event within
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45 days, after such Lender obtains actual knowledge thereof; provided that (i)
if any Lender fails to give such notice within 45 days after it obtains actual
knowledge of such an event, such Lender shall, with respect to compensation
payable pursuant to this Section 5.01 in respect of any costs resulting from
such event, only be entitled to payment under this Section 5.01 for costs
incurred from and after the date 45 days prior to the date that such Lender does
give such notice and (ii) each Lender will designate a different Applicable
Lending Office for the Loans of such Lender affected by such event if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole opinion of such Lender, be disadvantageous to such
Lender, except that such Lender shall have no obligation to designate an
Applicable Lending Office located in the United States of America. Each Lender
will furnish to the Company a certificate setting forth the basis and amount of
each request by such Lender for compensation under paragraph (a) or (c) of this
Section 5.01. Determinations and allocations by any Lender for purposes of this
Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) or
(b) of this Section 5.01, or of the effect of capital maintained pursuant to
paragraph (c) of this Section 5.01, on its costs or rate of return of
maintaining Loans or its obligation to make Loans, or on amounts receivable by
it in respect of Loans, and of the amounts required to compensate such Lender
under this Section 5.01, shall be conclusive, provided that such determinations
and allocations are made on a reasonable basis.
5.02 Limitation on Types of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any Eurodollar Base
Rate for any Interest Period:
(a) the Administrative Agent reasonably determines, which
determination shall be conclusive, that quotations of interest rates for
the relevant deposits referred to in the definition of "Eurodollar Base
Rate" in Section 1.01 hereof are not being provided in the relevant
amounts or for the relevant maturities for purposes of determining rates
of interest for Eurodollar Loans as provided herein; or
(b) if the related Loans are Series A Loans, the Majority Series A
Lenders or, if the related Loans are Series B Loans, the Majority Series B
Lenders reasonably determine, which determination shall be conclusive, and
notify the Administrative Agent that the relevant rates of interest
referred to in the definition of "Eurodollar Base Rate" in Section 1.01
hereof upon the basis of which the rate of interest for Eurodollar Loans
for such Interest Period is to be determined are not likely adequately to
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cover the cost to such Lenders of making or maintaining Eurodollar Loans
for such Interest Period;
then the Administrative Agent shall give the Company and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional Eurodollar Loans, to Continue
Eurodollar Loans or to Convert Base Rate Loans into Eurodollar Loans, and the
Company shall, on the last day(s) of the then current Interest Period(s) for the
outstanding Eurodollar Loans, either prepay such Loans or Convert such Loans
into Base Rate Loans in accordance with Section 2.09 hereof.
5.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain Eurodollar
Loans hereunder, then such Lender shall promptly notify the Company thereof
(with a copy to the Administrative Agent) and such Lender's obligation to make
or Continue, or to Convert Loans of any other Type into, Eurodollar Loans shall
be suspended until such time as such Lender may again make and maintain
Eurodollar Loans (in which case the provisions of Section 5.04 hereof shall be
applicable).
5.04 Treatment of Affected Loans. If the obligation of any Lender to
make Eurodollar Loans or to Continue, or to Convert Base Rate Loans into,
Eurodollar Loans shall be suspended pursuant to Section 5.01 or 5.03 hereof,
such Lender's Eurodollar Loans shall be automatically Converted into Base Rate
Loans on the last day(s) of the then current Interest Period(s) for Eurodollar
Loans (or, in the case of a Conversion required by Section 5.01(b) or 5.03
hereof, on such earlier date as such Lender may specify to the Company with a
copy to the Administrative Agent) and, unless and until such Lender gives notice
as provided below that the circumstances specified in Section 5.01 or 5.03
hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's Eurodollar Loans shall be applied instead to
its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such
Lender as Eurodollar Loans shall be made or Continued instead as Base Rate
Loans, and all Base Rate Loans of such Lender that would otherwise be
Converted into Eurodollar Loans shall remain as Base Rate Loans.
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If such Lender gives notice to the Company with a copy to the Administrative
Agent that the circumstances specified in Section 5.01 or 5.03 hereof that gave
rise to the Conversion of such Lender's Eurodollar Loans pursuant to this
Section 5.04 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Eurodollar Loans, to the extent necessary so that, after giving
effect thereto, all Loans held by the Lenders holding Eurodollar Loans and by
such Lender are held pro rata (as to principal amounts, Types and Interest
Periods) in accordance with their respective Commitments.
5.05 Compensation. The Company shall pay to the Administrative Agent
for account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense incurred by it that such Lender determines is attributable to:
(a) any payment, mandatory or optional prepayment or Conversion of a
Eurodollar Loan made by such Lender for any reason (including, without
limitation, the acceleration of the Loans pursuant to Section 9 hereof) on
a date other than the last day of the Interest Period for such Loan; or
(b) any failure by the Company for any reason (including, without
limitation, the failure of any of the conditions precedent specified in
Section 6 hereof to be satisfied) to borrow a Eurodollar Loan from such
Lender on the date for such borrowing specified in the relevant notice of
borrowing given pursuant to Section 2.02 hereof.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid or
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan that would have commenced on the date specified
for such borrowing) at the applicable rate of interest for such Loan provided
for herein over (ii) the amount of interest that otherwise would have accrued on
such principal amount at a rate per annum equal to the interest component of the
amount such Lender would have bid in the London interbank market for Dollar
deposits of leading banks in amounts comparable to such principal amount and
with
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maturities comparable to such period (as reasonably determined by such Lender).
5.06 Additional Costs in Respect of Letters of Credit. Without
limiting the obligations of the Company under Section 5.01 hereof (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any government
or governmental or supervisory authority implementing at the national level the
Basle Accord there shall be imposed, modified or deemed applicable any tax,
reserve, special deposit, capital adequacy or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder and the result shall be to increase the cost to any Lender or
Lenders of issuing (or purchasing or maintaining participations in) or
maintaining its obligation hereunder to issue (or purchase participations in)
any Letter of Credit hereunder or reduce any amount receivable by any Lender
hereunder in respect of any Letter of Credit (which increases in cost, or
reductions in amount receivable, shall be the result of such Lender's or
Lenders' reasonable allocation of the aggregate of such increases or reductions
resulting from such event), then, upon demand by such Lender or Lenders (through
the Administrative Agent), the Company shall pay immediately to the
Administrative Agent for account of such Lender or Lenders, from time to time as
specified by such Lender or Lenders (through the Administrative Agent), such
additional amounts as shall be sufficient to compensate such Lender or Lenders
(through the Administrative Agent) for such increased costs or reductions in
amount. A statement as to such increased costs or reductions in amount incurred
by any such Lender or Lenders, submitted by such Lender or Lenders to the
Company shall be conclusive in the absence of manifest error as to the amount
thereof, provided that the determination of such increased costs or reductions
are made on a reasonable basis.
5.07 U.S. Taxes.
(a) The Company agrees to pay to each Lender that is not a U.S.
Person such additional amounts as are necessary in order that the net payment of
any amount due to such non-U.S. Person hereunder after deduction for or
withholding in respect of any U.S. Taxes imposed with respect to such payment
(or in lieu thereof, payment of such U.S. Taxes by such non-U.S. Person), will
not be less than the amount stated herein to be then due and payable, provided
that the foregoing obligation to pay such additional amounts shall not apply:
(i) to any payment to a Lender hereunder unless such Lender is, on
the Amendment Effective Date (or on the date
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it becomes a Lender as provided in Section 11.06 (b) hereof) and on the
date of any change in the Applicable Lending Office of such Lender, either
entitled to submit a Form 1001 (relating to such Lender and entitling it
to a complete exemption from withholding on all interest to be received by
it hereunder in respect of the Loans) or Form 4224 (relating to all
interest to be received by such Lender hereunder in respect of the Loans),
or
(ii) to any U.S. Taxes imposed solely by reason of the failure by
such non-U.S. Person to comply with applicable certification, information,
documentation or other reporting requirements concerning the nationality,
residence, identity or connections with the United States of America of
such non-U.S. Person if such compliance is required by statute or
regulation of the United States of America as a precondition to relief or
exemption from such U.S. Taxes.
For the purposes of this Section 5.O7(a), (w) "Form 1001" shall mean Form 1001
(Ownership, Exemption, or Reduced Rate Certificate) of the Department of the
Treasury of the United States of America, (x) "Form 4224" shall mean Form 4224
(Exemption from Withholding of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States) of the Department of the
Treasury of the United States of America (or in relation to either such Form
such successor and related forms as may from time to time be adopted by the
relevant taxing authorities of the United States of America to document a claim
to which such Form relates), (y) "U.S. Person" shall mean a citizen, national or
resident of the United States of America, a corporation, partnership or other
entity created or organized in or under any laws of the United States of
America, or any estate or trust that is subject to Federal income taxation
regardless of the source of its income and (z) "U.S. Taxes" shall mean any
present or future tax, assessment or other charge or levy imposed by or on
behalf of the United States of America or any taxing authority thereof or
therein.
(b) Within 30 days after paying any amount to the Administrative
Agent or any Lender from which it is required by law to make any deduction or
withholding, and within 30 days after it is required by law to remit such
deduction or withholding to any relevant taxing or other authority, the Company
shall deliver to the Administrative Agent for delivery to such non-U.S. Person
evidence satisfactory to such Person of such deduction, withholding or payment
(as the case may be).
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Section 6. Conditions Precedent.
6.01 Conditions to Effectiveness. The effectiveness of the amendment
and restatement of the Existing Credit Agreement provided for hereby is subject
to the receipt by the Administrative Agent of the following documents, each of
which shall be satisfactory to the Administrative Agent (and to the extent
specified below, to each Lender) in form and substance:
(a) Corporate Documents. The following documents, each certified as
indicated below:
(i) a copy of the charter, as amended and in effect, of the
Company certified as of a recent date by the Secretary of State of
the State of Delaware (or, if there have been no modifications to
such charter from the copy thereof delivered by the Company pursuant
to the Existing Credit Agreement, a certificate of the Secretary or
an Assistant Secretary of the Company to that effect), and a
certificate from such Secretary of State dated as of a recent date
as to the good standing of and charter documents filed by the
Company;
(ii) a certificate of the Secretary or an Assistant Secretary
of the Company, dated the Amendment Effective Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws
of the Company as amended and in effect at all times from the date
on which the resolutions referred to in clause (B) below were
adopted to and including the date of such certificate (or if there
have been no modifications to such by-laws from the copy thereof
delivered by the Company pursuant to the Existing Credit Agreement,
a certificate of the Secretary or an Assistant Secretary of the
Company to that effect), (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the board of directors
of the Company authorizing the execution, delivery and performance
of the amendment and restatement of the Existing Credit Agreement
and such other of the Basic Documents to which the Company is or is
intended to be a party and the extensions of credit hereunder, and
that such resolutions have not been modified, rescinded or amended
and are in full force and effect, (C) that the charter of the
Company has not been amended since the date of the certification
thereto furnished pursuant to clause (i) above, and (D) as to the
incumbency and specimen signature of each officer of the Company
executing the amendment and restatement of the Existing Credit
Agreement and such other of the Basic Documents
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to which the Company is intended to be a party and each other
document to be delivered by the Company from time to time in
connection therewith (and the Administrative Agent and each Lender
may conclusively rely on such certificate until it receives notice
in writing from the Company to the contrary); and
(iii) a certificate of another officer of the Company as to
the incumbency and specimen signature of the Secretary or Assistant
Secretary, as the case may be, of the Company.
(b) Officer's Certificate. A certificate of a senior officer of the
Company, dated the Amendment Effective Date, to the effect that (i) no
Default shall have occurred and be continuing and (ii) the representations
and warranties made by the Company in Section 7 hereof, and in each of the
other Basic Documents, are true and correct on and as of the Amendment
Effective Date with the same force and effect as if made on and as of such
date (or, if any such representation or warranty is expressly stated to
have been made as of a specific date, as of such specific date)
(c) Opinion of Counsel to the Company. An opinion, dated the
Amendment Effective Date, of Ropes & ▇▇▇▇, counsel to the Company, in form
and substance satisfactory to the Administrative Agent (and the Company
hereby instructs such counsel to deliver such opinions to the Lenders and
the Administrative Agent).
(d) Opinion of Special New York Counsel to Chase. An opinion, dated
the Amendment Effective Date, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special
New York counsel to Chase, in form and substance satisfactory to the
Administrative Agent.
(e) Financial Information. True, correct and complete copies of the
financial statements, projections and other information referred to in
Section 7.02 hereof.
(f) Approvals and Consents. Evidence that all necessary governmental
and third party filings, licenses, permits, consents and approvals have
been obtained by the Company and are in full force and effect on the
Amendment Effective Date.
(g) Payment of Fees and Expenses. Evidence that (i) all principal of
and interest on, and all other amount owing in respect of, the loans made
by the Existing Lenders under the Existing Credit Agreement shall have
been paid in full
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and (ii) all fees and expenses payable to the Existing Lenders and the
Administrative Agent under the Existing Credit Agreement accrued to the
Amendment Effective Date and unpaid and such fees as the Company shall
have agreed to pay or deliver to the Administrative Agent in connection
herewith, including, without limitation, the reasonable fees and expenses
of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special New York counsel to Chase in
connection with the negotiation, preparation, execution and delivery of
the amendment and restatement of the Existing Credit Agreement and the
Notes and the other Basic Documents and the extensions of credit hereunder
(to the extent that statements for such fees and expenses have been
delivered to the Company) shall have been paid in full.
(h) Governmental Proceedings: Etc. Evidence that no litigation or
similar proceeding is threatened by any governmental agency or authority
or any other person with respect to the execution and delivery of the
amendment and restatement of the Existing Credit Agreement, the Notes and
the other Basic Documents, and the consummation of the transactions herein
or therein contemplated which, in each case, the Lenders shall reasonably
determine is likely to have a material adverse effect on (i) the assets,
business, operations, or condition (financial or otherwise) or prospects
of the Company and its Subsidiaries taken as a whole or (ii) the timely
payment of the Loans and interest thereon or the enforceability of the
Basic Documents or the rights and remedies thereunder.
(i) Leverage Ratio. A certificate of a senior officer of the
Company, dated the Amendment Effective Date, setting forth the Leverage
Ratio as at the Amendment Effective Date.
(i) Other Documents. Such other documents as the Administrative
Agent or any Lender or special New York counsel to Chase may reasonably
request.
6.02 Initial and Subsequent Extensions of Credit. The obligation of
the Lenders to make any Loan or otherwise extend any credit to the Company upon
the occasion of each borrowing or other extension of credit hereunder (including
the initial borrowing) is subject to the further conditions precedent that:
(a) Both immediately prior to the making of such Loan or other
extension of credit and also after giving effect thereto and to the
intended use thereof: (i) no Default shall have occurred and be
continuing; (ii) the representations and warranties made by the Company in
Section 7 hereof, and in each of the other Basic Documents,
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shall be true and correct on and as of the date of the making of such Loan
or other extension of credit with the same force and effect as if made on
and as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such
specific date). Each notice of borrowing or request for the issuance of a
Letter of Credit by the Company hereunder shall constitute a certification
by the Company to the effect set forth in the preceding sentence (both as
of the date of such notice or request and, unless the Company otherwise
notifies the Administrative Agent prior to the date of such borrowing or
issuance, as of the date of such borrowing or issuance); and
(b) The Administrative Agent shall have received a certificate of a
senior financial officer of the Company setting forth in reasonable detail
the computations necessary to demonstrate that both immediately prior to
the making of such Loan or other extension of credit and immediately after
giving effect thereto, the Company is or will be in compliance with (i)
Section 1010 of the Senior Indenture, (ii) Section 1010 of the Senior
Subordinated Indenture, (iii) if the Loan to be made is a Series A Loan or
the extension of credit is to be a Letter of Credit, Section 1014 of the
Senior Indenture and (iv) the Borrowing Base as at the end of the
quarterly fiscal period of the Company ending on or most recently ended
prior to the date of such extension of credit.
Section 7. Representations and Warranties. The Company represents
and warrants to the Lenders that:
7.01 Corporate Existence. Each of the Company and its Subsidiaries:
(a) is a corporation, partnership or other entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization; (b) has all requisite corporate or other power, and has all
material governmental licenses, authorizations, consents and approvals necessary
to own its assets and carry on its business as now being or as proposed to be
conducted; and (c) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify could have a Material
Adverse Effect.
7.02 Financial Condition. (a) The Company has heretofore furnished
to each of the Lenders the consolidated balance sheet of the Company and its
Subsidiaries as at February 22, 1997 and the related consolidated statements of
operations, stockholders' equity and cash flows of the Company
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and its Subsidiaries for the fiscal year ended on said date, with the opinion
thereon of Deloitte & Touche. All such financial statements are complete and
correct and fairly present the financial condition of the Company and its
Subsidiaries as at, and the results of operations for the fiscal year ended on
said date, all in accordance with generally accepted accounting principles and
practices applied on a consistent basis. Neither the Company nor any of its
Subsidiaries has on the Restatement Date any material contingent liabilities,
liabilities for taxes, unusual forward or long-term commitments or unrealized or
anticipated losses from any unfavorable commitments, except as referred to or
reflected or provided for in said balance sheets as at said dates.
(b) Since February 22, 1997, there has been no material adverse
change in the financial condition, operations, business or prospects of the
Company and its Subsidiaries from that set forth in said financial statements as
at said date.
7.03 Litigation. Except as disclosed to the Lenders in writing prior
to the Amendment Effective Date, there are no legal or arbitral proceedings, or
any proceedings by or before any governmental or regulatory authority or agency,
now pending or (to the knowledge of the Company) threatened against the Company
or any of its Subsidiaries which, if adversely determined, could have a Material
Adverse Effect.
7.04 No Breach. None of the execution and delivery of this Agreement
and the Notes and the other Basic Documents, the consummation of the
transactions herein and therein contemplated or compliance with the terms and
provisions hereof and thereof will conflict with or result in a breach of, or
require any consent under, the charter or by-laws of the Company, or any
applicable law or regulation, or any order, writ, injunction or decree of any
court or governmental authority or agency, or any agreement or instrument to
which the Company or any of its Subsidiaries is a party (including, without
limitation, the Senior Indenture and the Senior Subordinated Indenture) or by
which any of them or any of their Property is bound or to which any of them is
subject, or constitute a default under any such agreement or instrument, or
(except for Liens created pursuant to the Security Documents) result in the
creation or imposition of any Lien upon any Property of the Company or any of
its Subsidiaries pursuant to the terms of any such agreement or instrument.
7.05 Action. The Company has all necessary corporate power,
authority and legal right to execute, deliver and perform its obligations under
each of the Basic Documents; the execution, delivery and performance by the
Company of each of the Basic
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Documents have been duly authorized by all necessary corporate action on its
part (including, without limitation, any required shareholder approvals); and
this Agreement has been duly and validly executed and delivered by the Company
and constitutes, and each of the Notes and the other Basic Documents to which it
is a party when executed and delivered (in the case of the Notes, for value)
will constitute, its legal, valid and binding obligation, enforceable against
the Company in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of
general applicability affecting the enforcement of creditors' rights and the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
7.06 Approvals. No authorizations, approvals or consents of, and no
filings or registrations with, any governmental or regulatory authority or
agency, or any securities exchange, are necessary for the execution, delivery or
performance by the Company of the Basic Documents to which it is a party or for
the legality, validity or enforceability hereof or thereof, except for filings
and recordings in respect of the Liens created pursuant to the Security
Documents.
7.07 Use of Credit. Neither the Company nor any of its Subsidiaries
is engaged principally, or as one of its important activities, in the business
of extending credit for the purpose, whether immediate, incidental or ultimate,
of buying or carrying Margin Stock, and no part of the proceeds of any extension
of credit hereunder will be used to buy or carry any Margin Stock.
7.08 ERISA. Each Plan, and, to the knowledge of the Company, each
Multiemployer Plan, is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law, and no event
or condition has occurred and is continuing as to which the Company would be
under an obligation to furnish a report to the Lenders under Section 8.01(f)
hereof.
7.09 Taxes. The Company and its Domestic Subsidiaries are members of
an affiliated group of corporations filing consolidated returns for Federal
income tax purposes, of which the Company is the "common parent" (within the
meaning of Section 1504 of the Code) of such group. Except as set forth in
Schedule VI hereto, the Company and its Domestic Subsidiaries have filed all
Federal income tax returns and all other material tax returns that are required
to be filed by them and have paid all taxes due pursuant to such returns or
pursuant to any
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assessment received by the Company or any of its Domestic Subsidiaries. The
charges, accruals and reserves on the books of the Company and its Subsidiaries
in respect of taxes and other governmental charges are, in the opinion of the
Company, adequate. The Company has not given or been requested to give a waiver
of the statute of limitations relating to the payment of Federal, state, local
and foreign taxes or other impositions.
7.10 Investment Company Act. Neither the Company nor any of its
Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
7.11 Public Utility Holding Company Act. Neither the Company nor any
of its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
7.12 Material Agreements and Liens.
(a) Part A of Schedule I hereto is a complete and correct list, as
of the Restatement Date, of each credit agreement, loan agreement, indenture,
purchase agreement, guarantee, letter of credit or other arrangement providing
for or otherwise relating to any Indebtedness or any extension of credit (or
commitment for any extension of credit) to, or guarantee by, the Company or any
of its Subsidiaries the aggregate principal or face amount of which equals or
exceeds (or may equal or exceed) $1,000,000, and the aggregate principal or face
amount outstanding or that may become outstanding under each such arrangement is
correctly described in Part A of said Schedule I.
(b) Part B of Schedule I hereto is a complete and correct list, as
of the Restatement Date, of each Lien securing Indebtedness the aggregate
principal or face amount of which equals or exceeds $1,000,000 of any Person and
covering any Property of the Company or any of its Subsidiaries, and the
aggregate amount of such Indebtedness secured (or which may be secured) by each
such Lien and the Property covered by each such Lien is correctly described in
Part B of said Schedule I.
7.13 Environmental Matters. Except as set forth in Schedule II
hereto, each of the Company and its Subsidiaries has obtained all environmental,
health and safety permits, licenses and other authorizations required under all
Environmental Laws to carry on its business as now being or as proposed to be
conducted, except to the extent failure to have any such permit, license or
authorization would not have a Material Adverse Effect. All of the permits,
licenses and authorizations that
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have been obtained are in full force and effect and each of the Company and its
Subsidiaries is in compliance with the terms and conditions thereof, and is also
in compliance with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and timetables contained in
any applicable Environmental Law or in any regulation, code, plan, order,
decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, except to the extent failure to comply
therewith would not have a Material Adverse Effect.
In addition, except as set forth in Schedule II hereto:
(a) To the Company's knowledge after due inquiry, no written notice,
notification, demand, request for information, citation, summons or order
has been issued, no complaint has been filed, no penalty has been assessed
and no investigation or review is pending or threatened by any
governmental or other entity with respect to any alleged failure by the
Company or any of its Subsidiaries to have any environmental, health or
safety permit, license or other authorization required under any
Environmental Law in connection with the conduct of the business of the
Company or any of its Subsidiaries or with respect to any generation,
treatment, storage, recycling, transportation, discharge or disposal, or
any Release of any Hazardous Materials generated by the Company or any of
its Subsidiaries.
(b) Neither the Company nor any of its Subsidiaries owns, operates
or leases a treatment, storage or disposal facility requiring a permit
under the Resource Conservation and Recovery Act of 1976, as amended, or
under any comparable state or local statute; and
(i) to the Company's knowledge after due inquiry, no PCB
Transformers (as defined in the Toxic Substances Control Act, 15
U.S.C. ss.1601, et seq., as amended, and the regulations relating
thereto) are present at any site or facility owned, operated or
leased by the Company or any of its Subsidiaries;
(ii) to the Company's knowledge after due inquiry, no asbestos
or asbestos-containing materials is present at any site or facility
owned, operated or leased by the Company or any of its Subsidiaries;
(iii) to the Company's knowledge after due inquiry, there are
no underground storage tanks or surface impoundments for Hazardous
Materials, active or
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abandoned, at any site or facility owned, operated or leased by the
Company or any of its Subsidiaries; and
(iv) to the Company's knowledge after due inquiry, no Hazardous
Materials have been Released by the Company or any of its
Subsidiaries at, on or under any site or facility now owned,
operated or leased by the Company or any of its Subsidiaries in a
reportable quantity established by any Environmental Law.
(c) To the Company's knowledge after due inquiry, neither the
Company nor any of its Subsidiaries has transported or arranged for the
transportation of any Hazardous Material to any location that is listed on
the National Priorities List ("NPL") under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA"),
listed for possible inclusion on the NPL by the Environmental Protection
Agency, or listed in the Comprehensive Environmental Response and
Liability Information System, as provided for by 40 C.F.R. ss. 300.5
("CERCLIS"), or on any similar state or local list or that is the subject
of Federal, state or local enforcement actions or other investigations
that may lead to Environmental Claims against the Company or any of its
Subsidiaries.
(d) No Liens are presently recorded with the appropriate land
records under or pursuant to any Environmental Laws on any site or
facility owned, operated or leased by the Company or any of its
Subsidiaries, and to the Company's knowledge no government action has been
taken or is in process that could subject any such site or facility to
such Liens. Neither the Company nor any of its Subsidiaries would be
required to place any notice or restriction relating to the presence of
Hazardous Materials at any site or facility owned by it in any deed to the
real property on which such site or facility is located.
(e) There have been no environmental investigations, written
studies, audits, tests, reviews or other analyses conducted by or that are
in the possession of the Company or any of its Subsidiaries in relation to
any site or facility now or previously owned, operated or leased by the
Company or any of its Subsidiaries which have not been made available to
the Lenders.
7.14 Capitalization. The authorized capital stock of the Company
consists, on the Amendment Effective Date, of an aggregate of 31,000,000 shares
consisting of (i) 30,000,000 shares of common stock, par value $0.01 per share,
of which
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21,893,392 shares were, as at February 22, 1997 duly and validly issued and
outstanding, each of which shares is fully paid and nonassessable and (ii)
1,000,000 shares of preferred stock, par value $0.01 per share, of which no
shares were outstanding as at February 22, 1997. As of the Amendment Effective
Date the Company is registered with the Securities and Exchange Commission under
the Securities Exchange Act, and its shares of common stock are publicly owned
and traded on the NASDAQ National Market System. As of the Amendment Effective
Date, (x) except for options to purchase 2,447,425 shares of the common stock of
the Company, there are no outstanding Equity Rights with respect to the Company
and (y) there are no outstanding obligations of the Company or any of its
Subsidiaries to repurchase, redeem, or otherwise acquire any shares of capital
stock of the Company nor are there any outstanding obligations of the Company or
any of its Subsidiaries to make payments to any Person, such as "phantom stock"
payments, where the amount thereof is calculated with reference to the fair
market value or equity value of the Company or any of its Subsidiaries.
7.15 Subsidiaries, Etc.
(a) Set forth in Part A of Schedule III hereto is a complete and
correct list, as of the Restatement Date, of all of the Subsidiaries of the
Company, together with, for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding ownership interests in
such Subsidiary and (iii) the nature of the ownership interests held by each
such Person and the percentage of ownership of such Subsidiary represented by
such ownership interests. Except as disclosed in Part A of Schedule III hereto,
(x) each of the Company and its Subsidiaries owns, free and clear of Liens
(other than Liens created pursuant to the Security Documents), and has the
unencumbered right to vote, all outstanding ownership interests in each Person
shown to be held by it in Part A of Schedule III hereto, (y) all of the issued
and outstanding capital stock of each such Person organized as a corporation is
validly issued, fully paid and nonassessable and (z) there are no outstanding
Equity Rights with respect to such Person.
(b) Set forth in Part B of Schedule III hereto is a complete and
correct list, as of the Restatement Date, of all Investments (other than
Investments disclosed in Part A of said Schedule III hereto) of $100,000 or more
held by the Company or any of its Subsidiaries in any Person and, for each such
Investment, (x) the identity of the Person or Persons in which such Investment
has been made, (y) the nature of such Investment and (z) the amount of such
Investment. Except as disclosed in Part B of Schedule III hereto, each of the
Company and its Subsidiaries owns, free and clear of all Liens (other than Liens
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created pursuant to the Security Documents), all such Investments.
(c) Except as set forth in Schedule III hereto, none of the
Subsidiaries of the Company is, on the Restatement Date, subject to any
indenture, agreement, instrument or other arrangement of the type described in
the last sentence of Section 8.17 hereof.
7.16 Title to Assets. The Company owns and has on the Restatement
Date, and will own and have on the Amendment Effective Date, good and marketable
title (subject only to Liens permitted by Section 8.06 hereof) to the Properties
shown to be owned in the most recent financial statements referred to in Section
7.02 hereof (other than Properties disposed of in the ordinary course of
business or otherwise permitted to be disposed of pursuant to Section 8.05
hereof). The Company owns and has on the Restatement Date, and will own and
have on the Amendment Effective Date, good and marketable title to, and enjoys
on the Restatement Date, and will enjoy on the Amendment Effective Date,
peaceful and undisturbed possession of, all Properties (subject only to Liens
permitted by Section 8.06 hereof) that are necessary for the operation and
conduct of its businesses.
7.17 Compliance with Law. Except as set forth in Schedule IV hereto,
each of the Company and its Subsidiaries is in compliance with all applicable
laws, rules, regulations and orders of, and all applicable restrictions imposed
by, all governmental authorities or bodies, domestic or foreign, in respect of
the conduct of its business and the ownership of its Property (including
Environmental Laws), except such noncompliance as would not, in the aggregate,
have a Material Adverse Effect on the business, properties, assets, operations,
condition (financial or otherwise), or prospects of the Company and its
Subsidiaries, taken as a whole.
7.18 True and Complete Disclosure. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of the Company to the Administrative Agent or any Lender prior to the
Amendment Effective Date in connection with the negotiation, preparation or
delivery of this Agreement and the other Basic Documents or included herein or
therein or delivered pursuant hereto or thereto, when taken as a whole (together
with the Information Memorandum which the Lenders acknowledge contains
projections based on certain assumptions therein stated) do not contain any
untrue statement of material fact or omit to state any material fact necessary
to make the statements herein or therein, in light of the circumstances under
which they were made, not misleading. All written information furnished on or
after the Amendment Effective Date by the Company
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and its Subsidiaries to the Administrative Agent and the Lenders in connection
with this Agreement and the other Basic Documents and the transactions
contemplated hereby and thereby will be true, complete and accurate in every
material respect, or (in the case of projections) based on reasonable estimates,
on the date as of which such information is stated or certified. There is no
fact known to the Company that could have a Material Adverse Effect that has not
been disclosed herein, in the other Basic Documents or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing furnished to
the Lenders for use in connection with the transactions contemplated hereby or
thereby.
Section 8. Covenants of the Company. The Company covenants and
agrees with the Lenders and the Administrative Agent that, so long as any
Commitment, Loan or Letter of Credit Liability is outstanding and until payment
in full of all amounts payable by the Company hereunder:
8.01 Financial Statements, Etc. The Company shall deliver to each of
the Lenders:
(a) as soon as available and in any event within 45 days after the
end of each of the first three quarterly fiscal periods of each fiscal
year of the Company, consolidated statements of earnings, stockholders'
equity and cash flows of the Company and its Subsidiaries, and of Acurex,
for such period and for the period from the beginning of the respective
fiscal year to the end of such period, setting forth in each case in
comparative form the corresponding consolidated figures for the
corresponding period in the preceding fiscal year, and the related
consolidated balance sheet of the Company and its Subsidiaries, and of
Acurex, as at the end of such period, setting forth in comparative form
the corresponding consolidated figures for the last day of the preceding
fiscal year, accompanied by a certificate of a senior financial officer of
the Company, which certificate shall state that said consolidated
financial statements present fairly, in all material respects, the
consolidated financial condition and results of operations of the Company
and its Subsidiaries, and of Acurex, in accordance with generally accepted
accounting principles, consistently applied, as at the end of, and for,
such period (subject to normal year-end audit adjustments);
(b) as soon as available and in any event within 90 days after the
end of each fiscal year of the Company, consolidated and consolidating
statements of operations and stockholders' equity of the Company and its
Subsidiaries,
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and consolidated statements of cash flows of the Company and its
Subsidiaries, for such fiscal year and the related consolidated and
consolidating balance sheets of the Company and its Subsidiaries as at the
end of such fiscal year, setting forth in each case in comparative form
the corresponding consolidated and consolidating figures for the preceding
fiscal year, and accompanied, (i) in the case of said consolidated
statements and balance sheet of the Company, by an opinion thereon of
independent certified public accountants of recognized national standing,
which opinion shall state that said consolidated financial statements
present fairly, in all material respects, the consolidated financial
condition and results of operations of the Company and its Subsidiaries as
at the end of, and for, such fiscal year in accordance with generally
accepted accounting principles, and a report of such accountants stating
that, in making the examination necessary for their opinion, nothing came
to their attention, except as specifically stated, that caused them to
believe that the Company had failed to comply with Sections 8.10, 8.11,
8.12 or 8.13 hereof, or any other provisions hereof, insofar as they
relate to accounting matters, and (ii) in the case of said consolidating
statements and balance sheets, by a certificate of a senior financial
officer of the Company which certificate shall state that said
consolidating financial statements fairly present the respective
individual unconsolidated financial condition and results of operations of
the Company and of each of its Subsidiaries, in each case in accordance
with generally accepted accounting principles, consistently applied, as at
the end of, and for, such fiscal year;
(c) as soon as available and in any event within 90 days after the
end of each fiscal year of the Company, statements of information
concerning net sales, operating earnings, depreciation and amortization of
each division of the Company and its Subsidiaries (including, without
limitation, the Seating Products Division, Galley Products Division,
In-Flight Entertainment Division and Service Division) for such period
setting forth in each case in comparative form the corresponding figures
for the preceding fiscal year;
(d) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, which the
Company shall have filed with the Securities and Exchange Commission (or
any governmental agency substituted therefor) or any national securities
exchange;
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(e) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) as soon as possible, and in any event within ten days after the
Company knows or has reason to believe that any of the events or
conditions specified below with respect to any Plan or Multiemployer Plan
has occurred or exists, a statement signed by a senior financial officer
of the Company setting forth details respecting such event or condition
and the action, if any, that the Company or its ERISA Affiliate proposes
to take with respect thereto (and a copy of any report or notice required
to be filed with or given to PBGC by the Company or an ERISA Affiliate
with respect to such event or condition):
(i) any reportable event, as defined in Section 4043(b) of
ERISA and the regulations issued thereunder, with respect to a Plan,
as to which PBGC has not by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within 30 days of the
occurrence of such event (provided that a failure to meet the
minimum funding standard of Section 412 of the Code or Section 302
of ERISA, including, without limitation, the failure to make on or
before its due date a required installment under Section 412(m) of
the Code or Section 302(e) of ERISA, shall be a reportable event
regardless of the issuance of any waivers in accordance with Section
412(d) of the Code); and any request for a waiver under Section
412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of ERISA of a notice
of intent to terminate any Plan or any action taken by the Company
or an ERISA Affiliate to terminate any Plan;
(iii) the institution by PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by the Company or
any ERISA Affiliate of a notice from a Multiemployer Plan that such
action has been taken by PBGC with respect to such Multiemployer
Plan;
(iv) the complete or partial withdrawal from a Multiemployer
Plan by the Company or any ERISA Affiliate that results in liability
under Section 4201 or 4204 of ERISA (including the obligation to
satisfy
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secondary liability as a result of a purchaser default) or the
receipt by the Company or any ERISA Affiliate of notice from a
Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA or that it intends to
terminate or has terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Company or any ERISA Affiliate to
enforce Section 515 of ERISA, which proceeding is not dismissed
within 30 days; and
(vi) the adoption of an amendment to any Plan that, pursuant
to Section 401(a) (29) of the Code or Section 307 of ERISA, would
result in the loss of tax-exempt status of the trust of which such
Plan is a part if the Company or an ERISA Affiliate fails to timely
provide security to the Plan in accordance with the provisions of
said Sections;
(g) promptly after the Company knows or has reason to believe that
any Default has occurred, a notice of such Default describing the same in
reasonable detail and, together with such notice or as soon thereafter as
possible, a description of the action that the Company has taken or
proposes to take with respect thereto;
(h) within 45 days after the end of each quarterly fiscal period of
each fiscal year of the Company, a certificate of a senior financial
officer of the Company setting forth in reasonable detail a true and
accurate calculation of the Borrowing Base as at the end of such quarterly
fiscal period;
(i) within 45 days after the end of each quarterly fiscal period of
each fiscal year of the Company, a statement of a senior officer of the
Company (A) listing each Disposition by the Company and its Subsidiaries
that occurred during such quarterly fiscal period if the Net Available
Proceeds thereof exceeded $50,000 and (B) setting forth in reasonable
detail the Net Available Proceeds of each such Disposition and the
aggregate Net Available Proceeds since the first day of the then current
Recapture Period; and
(j) from time to time such other information regarding the financial
condition, operations, business or prospects of the Company or any of its
Subsidiaries (including, without limitation, any Plan or Multiemployer
Plan and any reports or other information required to be filed under
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ERISA) as any Lender or the Administrative Agent may reasonably request.
The Company will furnish to each Lender, at the time it furnishes each set of
financial statements pursuant to paragraph (a) or (b) above, a certificate of a
senior financial officer of the Company (i) to the effect that no Default has
occurred and is continuing (or, if any Default has occurred and is continuing,
describing the same in reasonable detail and describing the action that the
Company has taken or proposes to take with respect thereto) and (ii) setting
forth in reasonable detail the computations necessary to determine whether the
Company is in compliance with Sections 8.07(e), 8.07(g), 8.08(f), 8.08(h), 8.09,
8.10, 8.11, 8.12 and 8.13 hereof as of the end of the respective quarterly
fiscal period or fiscal year.
8.02 Litigation. The Company will promptly give to each Lender
notice of all legal or arbitral proceedings, and of all proceedings by or before
any governmental or regulatory authority or agency, and any material development
in respect of such legal or other proceedings, affecting the Company or any of
its Subsidiaries, except proceedings which, if adversely determined, would not
have a Material Adverse Effect. Without limiting the generality of the
foregoing, the Company will give to each Lender notice of the assertion of any
Environmental Claim by any Person against, or with respect to the activities of,
the Company or any of its Subsidiaries and notice of any alleged violation of or
non-compliance with any Environmental Laws or any permits, licenses or
authorizations, other than any Environmental Claim or alleged violation which,
if adversely determined, would not have a Material Adverse Effect.
8.03 Existence. Etc. The Company will, and will cause each of its
Subsidiaries to:
(a) preserve and maintain its legal existence and all of its
material rights, privileges, licenses and franchises (provided that
nothing in this Section 8.03 shall prohibit any transaction expressly
permitted under Section 8.05 hereof);
(b) comply with the requirements of all applicable laws, rules,
regulations and orders of governmental or regulatory authorities if
failure to comply with such requirements could have a Material Adverse
Effect;
(c) pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any of
its Property prior to the date on which penalties attach thereto, except
for any such
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tax, assessment, charge or levy the payment of which is being contested in
good faith and by proper proceedings and against which adequate reserves
are being maintained;
(d) maintain all of its Properties used or useful in its business in
good working order and condition, ordinary wear and tear excepted;
(e) keep adequate records and books of account, in which complete
entries will be made in accordance with generally accepted accounting
principles consistently applied; and
(f) permit representatives of any Lender or the Administrative
Agent, during normal business hours, to examine, copy and make extracts
from its books and records, to inspect any of its Properties, and to
discuss its business and affairs with its officers, all to the extent
reasonably requested by such Lender or the Administrative Agent (as the
case may be).
8.04 Insurance. The Company will, and will cause each of its
Subsidiaries to, keep insured by financially sound and reputable insurers all
Property of a character usually insured by corporations engaged in the same or
similar business similarly situated against loss or damage of the kinds and in
the amounts customarily insured against by such corporations and carry such
other insurance as is usually carried by such corporations.
8.05 Prohibition of Fundamental Changes. The Company will not, nor
will it permit any of its Subsidiaries to, enter into any transaction of merger
or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution) or Dispose of all or substantially all of
its Property. The Company will not, nor will it permit any of its Subsidiaries
to, to make any Acquisition except for Investments permitted under Section 8.08
hereof. Notwithstanding the foregoing provisions of this Section 8.05:
(a) any Subsidiary of the Company may be merged or consolidated with
or into: (i) the Company if the Company shall be the continuing or
surviving corporation or (ii) any other such Subsidiary; provided that (x)
if any such transaction shall be between a Subsidiary and a Wholly Owned
Subsidiary, the Wholly Owned Subsidiary shall be the continuing or
surviving corporation;
(b) subject to Section 8.14 hereof, the Company or any Subsidiary of
the Company may make any Acquisition; provided that immediately prior to
and after giving effect to any
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such Acquisition, (i) no Default shall have occurred and be continuing and
(ii) not more than $50,000,000 of the proceeds of Loans then outstanding
shall have been applied, directly by the Company or indirectly through a
Subsidiary, to the purchase price of one or more Acquisitions (provided,
that, an amount in excess of $25,000,000 (the "Increased Acquisition
Amount") of the proceeds of the Loans may be applied directly by the
Company or indirectly through a Subsidiary, to the purchase price of one
or more Acquisitions so long as the amount of such excess plus the
Increased Senior Note Prepayment Amount shall not at any time exceed
$25,000,000); and
(c) the Company or any Subsidiary of the Company may make any
Acquisition from any Subsidiary of the Company in each case for
consideration that is not in excess of the fair market value of the
Property acquired in such Acquisition as determined in good faith by the
chief financial officer of the Company.
8.06 Limitation on Liens. The Company will not, nor will it permit
any of its Domestic Subsidiaries to, create, incur, assume or suffer to exist
any Lien upon any of its Property, whether now owned or hereafter acquired,
except:
(a) Liens created pursuant to the Security Documents;
(b) Liens outstanding on the Restatement Date and listed in Part B
of Schedule I hereto;
(c) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or which are being contested in good
faith and by appropriate proceedings if, unless the amount thereof is not
material with respect to it or its financial condition, adequate reserves
with respect thereto are maintained on the books of the Company or the
affected Domestic Subsidiaries, as the case may be, in accordance with
GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 30 days or which are being
contested in good faith and by appropriate proceedings and Liens securing
judgments but only to the extent for an amount and for a period not
resulting in an Event of Default under Section 9(h) hereof;
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(e) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on
the use of Property or minor imperfections in title thereto which, in the
aggregate, are not material in amount, and which do not in any case
materially detract from the value of the Property subject thereto or
interfere with the ordinary conduct of the business of the Company or any
of its Domestic Subsidiaries;
(h) Liens on Property of any corporation which becomes a Domestic
Subsidiary of the Company after Restatement Date, provided that such Liens
are in existence at the time such corporation becomes a Domestic
Subsidiary of the Company and were not created in anticipation thereof;
(i) subject to the restrictions contained in the Security Documents,
Liens upon real and/or tangible personal Property acquired after the
Restatement Date (by purchase, construction or otherwise) by the Company
or any of its Domestic Subsidiaries (other than Acurex) other than in
connection with any Acquisition by the Company or any of its Domestic
Subsidiaries, each of which Liens either (A) existed on such Property
before the time of its acquisition and was not created in anticipation
thereof, or (B) was created solely for the purpose of securing
Indebtedness representing, or incurred to finance, refinance or refund,
the cost (including the cost of construction) of such Property; provided
that no such Lien shall extend to or cover any Property of the Company or
such Domestic Subsidiary other than the Property so acquired and
improvements thereon; and provided, further, that the principal amount of
Indebtedness secured by any such Lien shall at no time exceed 100% of the
fair market value (as determined in good faith by a senior financial
officer of the Company) of such Property at the time it was acquired (by
purchase, construction or otherwise);
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(j) additional Liens upon real and/or tangible personal Property of
the Company or any of its Domestic Subsidiaries (other than Acurex)
created after the Restatement Date, provided that the aggregate
Indebtedness secured thereby and incurred on and after the Restatement
Date shall not exceed $20,000,000 in the aggregate at any one time
outstanding; and
(k) any extension, renewal or replacement of the foregoing, provided
however, that the Liens permitted hereunder shall not be spread to cover
any additional Indebtedness or Property (other than a substitution of like
Property).
8.07 Indebtedness. The Company will not, nor will it permit any of
its Subsidiaries to, create, incur or suffer to exist any Indebtedness except:
(a) Indebtedness to the Lenders hereunder;
(b) Indebtedness outstanding or committed on the Restatement Date
and listed in Part A of Schedule I hereto and any extension, renewal or
replacement thereof;
(c) Indebtedness of Subsidiaries of the Company to the Company in
the aggregate amounts permitted by Section 8.08(d) hereof;
(d) Indebtedness of the Company to its Subsidiaries and Indebtedness
of Subsidiaries of the Company to other Subsidiaries of the Company;
(e) Indebtedness of the Company and its Subsidiaries secured by
Liens permitted under Sections 8.06(i) and 8.06(j) hereof;
(f) Guarantees by any Subsidiary of the Company (other than Acurex,
at all times prior to the Series B Commitment Termination Date) of
Indebtedness of the Company or any Subsidiary of the Company; provided
that at all times prior to the Series B Commitment Termination Date,
Acurex may Guarantee Indebtedness of the Company or any Subsidiary of the
Company from time to time so long as the Company shall reduce the Series B
Commitments pursuant to Section 2.04(b) (ii) hereof simultaneously with
the execution of any such Guarantee by Acurex in an amount equal to the
value of such Guarantee; and
(g) additional unsecured Indebtedness of the Company and its
Subsidiaries (other than Acurex) up to but not
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exceeding in the aggregate $40,000,000 at any one time outstanding;
provided that (i) any such Indebtedness of any such individual Subsidiary
may not exceed $10,000,000 in the aggregate at any one time outstanding
and (ii) any such Indebtedness shall not be used to refinance the Senior
Notes;
provided that the Company may incur additional unsecured Indebtedness that has
no regularly scheduled maturity or mandatory prepayments on or before the Series
A Commitment Termination Date.
8.08 Investments. The Company will not, nor will it permit any of
its Subsidiaries to, make or permit to remain outstanding any Investments
except:
(a) Investments outstanding on the Restatement Date and identified
in Schedule III Part B hereto;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Company in capital stock of Subsidiaries of
the Company and advances by the Company to Subsidiaries of the Company in
the ordinary course of business; provided that the aggregate amount of the
Investments by the Company or any of its Subsidiaries in the Specified
Subsidiaries shall not exceed $5,000,000 at any one time outstanding;
(e) Investments by Subsidiaries of the Company in capital stock of
other Subsidiaries of the Company and advances by Subsidiaries of the
Company to the Company and to other Subsidiaries of the Company in the
ordinary course of business;
(f) Interest Rate Protection Agreements so long as the aggregate
credit exposure under all Interest Rate Protection Agreements calculated
at the time any Interest Rate Protection Agreement is entered into does
not exceed $10,000,000;
(g) Investments permitted by clause (b) of the last sentence of
Section 8.05 hereof; and
(h) Investments of the Company and its Subsidiaries in joint
ventures or representing obligations of customers owing to the Company and
its Subsidiaries in respect of the deferred purchase price of products or
services sold or the
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leasing of products to customers, [in each case in the ordinary course of
business of the Company] and its Subsidiaries as provided for in Section
8.14 hereof and on such terms as the management of the Company may
determine in its reasonable business judgment, provided that the aggregate
amount of such obligations that are not fully secured (whether by a
perfected Lien on, or an indefeasible title retention to, the products so
sold or leased, or otherwise) plus the aggregate fair market value of all
Property (whether now owned or hereafter acquired) of the Company or any
of its Subsidiaries (as determined in good faith by the chief financial
officer of the Company) sold, assigned, transferred or otherwise disposed
of on or after the Restatement Date to all such joint ventures shall not
exceed at any one time outstanding the greater of (i) $15,000,000 and (ii)
5% of Adjusted Net Worth.
8.09 Restricted Payments. The Company will not, nor will it permit
any of its Subsidiaries to, declare or make any Restricted Payment at any time;
provided that (i) the Company may pay dividends ("Dividend Payments") and/or
prepay, redeem or otherwise retire the Senior Notes ("Senior Note Payments" and,
together with Dividend Payments, "Permitted Payments") during any fiscal year
(the "Current Fiscal Year") in an aggregate amount up to but not exceeding 25%
of the net earnings of the Company for the immediately preceding fiscal year
("Available Net Earnings"), provided that (x) any portion of Available Net
Earnings not used for Permitted Payments in the Current Fiscal Year (the
"Carry-Over Amount") may be used for Senior Note Payments only (for which
purpose Senior Note Payments shall first be deemed to have been made from the
Carry-over Amount and only thereafter from Available Net Earnings) in any
succeeding fiscal year and (y) no more than $25,000,000 in the aggregate of
principal of the Senior Notes may be prepaid, redeemed or retired (provided,
that, an amount in excess of $25,000,000 (the "Increased Senior Note Prepayment
Amount") of principal of the Senior Notes may be prepaid, redeemed or retired so
long as the amount of such excess of the Increased Acquisition Amount shall not
at any time exceed $25,000,000) and (ii) any Subsidiary of the Company (other
than Acurex, at all times prior to the Series B Commitment Termination Date) may
make Restricted Payments to the Company from time to time; and provided,
further, that at all times prior to the Series B Commitment Termination Date,
Acurex may make Restricted Payments to the Company from time to time so long as
the Company shall reduce the Series B Commitments pursuant to Section 2.04(b)
(ii) hereof simultaneously with the receipt of each such Restricted Payment in
an amount equal to the proceeds thereof (less the amount of any such proceeds,
if any, applied to the payment of interest on the Series B Loans).
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8.10 Leverage Ratio. The Company will not permit the Leverage Ratio
to exceed the following respective ratios at any time during the following
respective periods:
Period Ratio
------ -----
From the Fiscal Date in
February 1997 through the
Fiscal Date in August 1997 5.5 to 1
From (but not including) the
Fiscal Date in August 1997
through the Fiscal Date in
February 1998 5.0 to 1
From (but not including) the
Fiscal Date in February 1998
through the Fiscal Date in
February 1999 4.5 to 1
From (but not including) the
Fiscal Date in February 1999
through the Fiscal Date in
February 2000 4.0 to 1
Thereafter 3.50 to 1
8.11 Adjusted Net Worth. The Company will not at any date permit
Adjusted Net Worth to be less than the sum of (a) $125,761,000 plus (b) 75% of
the aggregate amount of Net Available Proceeds of Equity Issuances received
after the Restatement Date plus (c) 75% of the sum of consolidated net earnings
of the Company and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP) for each fiscal quarter of the Company
ending after February 22, 1997; provided that consolidated net earnings for any
fiscal quarter in which there is a consolidated net loss shall be deemed to be
zero.
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8.12 Interest Coverage Ratio. The Company will not permit the
Interest Coverage Ratio to be less than the following respective ratios during
the following respective periods:
Period Ratio
------ -----
From the Fiscal Date in
February 1997 through the
Fiscal Date in August 1997 2.00 to 1
From (but not including) the
Fiscal Date in August 1997
through the Fiscal Date in
February 1998 2.25 to 1
From (but not including) the
Fiscal Date in February 1998
through the Fiscal Date in
February 1999 2.50 to 1
From (but not including) the
Fiscal Date in February 1999
through the Fiscal Date in
February 2000 2.75 to 1
Thereafter 3.00 to 1
8.13 Net Worth of Acurex. The Company shall cause Acurex to
maintain, at all times, a minimum net worth of not less than two times the
aggregate outstanding amount of the Series B Loans.
8.14 Lines of Business. Neither the Company nor any of its
Subsidiaries shall engage to any substantial extent in any line or lines of
business activity other than the business of designing, manufacturing,
distributing, selling, leasing and servicing products used in the interior of
airplanes, buses and trains and servicing and acting as a broker in the sales
and leases of such products together with any other business directly related to
the foregoing.
8.15 Transactions with Affiliates. Except as set forth in Schedule
VII hereto or as expressly permitted by this Agreement, the Company will not,
nor will it permit any of its Subsidiaries to, directly or indirectly: (a) make
any Investment in an Affiliate; (b) transfer, sell, lease, assign or otherwise
dispose of any Property to an Affiliate; (c) merge into or consolidate with or
purchase or acquire Property from an Affiliate; or (d) enter into any other
transaction directly or indirectly with or for the benefit of an Affiliate
(including,
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without limitation, guarantees and assumptions of obligations of an Affiliate);
provided that (x) any Affiliate who is an individual may serve as a director,
officer or employee of the Company or any of its Subsidiaries and receive
reasonable compensation for his or her services in such capacity and (y) the
Company and its Subsidiaries may enter into transactions (other than extensions
of credit by the Company or any of its Subsidiaries to an Affiliate) providing
for the leasing of Property, the rendering or receipt of services or the
purchase or sale of inventory and other Property in the ordinary course of
business if the monetary or business consideration arising therefrom would be
substantially as advantageous to the Company and its Subsidiaries as the
monetary or business consideration which would obtain in a comparable
transaction with a Person not an Affiliate.
8.16 Use of Proceeds. The Company will use the proceeds of the Loans
hereunder solely to finance ongoing working capital and other capital
requirements of the Company and to finance Acquisitions (subject to clause (b)
of the last sentence of Section 8.05) (in compliance with all applicable legal
and regulatory requirements); provided that neither the Administrative Agent nor
any Lender shall have any responsibility as to the use of any of such proceeds.
8.17 Certain Obligations Respecting Subsidiaries.
(a) The Company will, and will cause each of its Subsidiaries to,
take such action from time to time as shall be necessary to ensure that the
Company and each of its Subsidiaries at all times owns (subject only to the Lien
of the Security Documents) at least the same percentage of the issued and
outstanding shares of each class of stock of each of its Subsidiaries as is
owned on the Restatement Date. Without limiting the generality of the foregoing,
none of the Company nor any of its Subsidiaries shall sell, transfer or
otherwise dispose of any shares of stock in any Subsidiary owned by them, nor
permit any Subsidiary to issue any shares of stock of any class whatsoever to
any Person (other than to the Company or the immediate parent of such Subsidiary
which is a Wholly Owned Subsidiary of the Company). In the event that (a) any
such additional shares of stock shall be issued by any such Subsidiary or (b)
the Company shall create any new Subsidiary or Acquire any additional Subsidiary
and shall thereby become the owner, directly or indirectly, of the shares of
capital stock of such new or additional Subsidiary, as the case may be, the
Company agrees forthwith to deliver to the Administrative Agent pursuant to
terms of the Revolving Credit Security Agreement the certificates representing
such shares of stock, accompanied by undated stock powers executed in blank and
shall take such other
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action as the Administrative Agent shall request to perfect the security
interest created therein pursuant to the Revolving Credit Security Agreement;
provided that if any such Subsidiary is organized under the laws of a
jurisdiction other than the United States of America or a State thereof, the
Company need not pledge to the Administrative Agent more than 65% of the capital
stock or other ownership interest in such Subsidiary and such pledge shall, at
the request of the Majority Series A Lenders, be made either under the Revolving
Credit Security Agreement or under a pledge or other agreement governed by the
law of such Subsidiary's jurisdiction of organization.
(b) The Company will not permit any of its Subsidiaries to enter
into, after the Restatement Date, any indenture, agreement, instrument or other
arrangement that, directly or indirectly, prohibits or restrains, or has the
effect of prohibiting or restraining, or imposes materially adverse conditions
upon, the incurrence or payment of Indebtedness, the granting of Liens, the
declaration or payment of dividends, the making of loans, advances or
Investments or the sale, assignment, transfer or other disposition of Property.
8.18 Modifications of Certain Documents. The Company will not
consent to any modification, supplement or waiver of any of the provisions of
the Senior Indenture, the Senior Subordinated Indenture, the Senior Notes, the
Senior Subordinated Notes or the corporate documents referred to in Section
6.01(a) hereof (other than the by-laws of the Company) without the prior consent
of the Administrative Agent (with the approval of the Majority Lenders).
8.19 Environmental Matters.
(a) The Company will, and will cause each of its Subsidiaries to,
comply with all Environmental Laws applicable to the Company and each of its
Subsidiaries, except to the extent that failure to comply with such laws would
not have a Material Adverse Effect, and shall obtain, at or prior to the time
required by applicable Environmental Laws, all environmental, health and safety
permits, licenses and other authorizations necessary for its operations and
maintain such authorizations in full force and effect.
(b) If the Company discovers evidence of the presence of any
Hazardous Materials in any amount that is required to be reported under
Environmental Law, the Company will promptly clean-up such Hazardous Materials
or take such other remedial action as is (a) required by law or (b) deemed
necessary by the Company in its reasonable determination, such determination to
be based in part on the advice of independent environmental
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consultants acceptable to the Company and the Administrative Agent.
(c) The Company shall promptly furnish to the Administrative Agent
all written notices of any Environmental Claims received by the Company or any
of its Subsidiaries with respect to any alleged violation of or non-compliance
with any Environmental Laws or any permits, licenses or authorizations issued
thereunder in connection with the ownership, operation or use of any site or
facility or the operation of their businesses or the presence or Release of
Hazardous Substances, which Environmental Claim if determined adversely to the
Company would have a Material Adverse Effect.
8.20 Security for Series A Loans. The Company shall, no later than
90 days following the request by the Majority Series A Lenders, file in each
governmental office or agency in each appropriate jurisdiction as owner of
record of each of the Foreign Trademarks identified on Annex 4 to the Revolving
Credit Security Agreement.
8.21 Redemption of Senior Subordinated Notes. The Company will not
prepay, redeem, effect a defeasance or covenant defeasance or otherwise retire
any of the Senior Subordinated Notes.
Section 9. Events of Default. If one or more of the following events
(herein called "Events of Default") shall occur and be continuing:
(a) The Company shall (i) default in the payment of any principal of
any Loan or any Reimbursement Obligation when due (whether at stated
maturity or upon mandatory or optional prepayment) or (ii) default in the
payment of any interest on any Loan, any fee or any other amount payable
by it hereunder or under any other Basic Document when due (whether at
stated maturity or upon mandatory or optional prepayment or otherwise)
and such default shall have continued unremedied for three or more
Business Days; or
(b) The Company or any of its Subsidiaries shall default in the
payment when due of any principal of or interest on any of its other
Indebtedness aggregating $5,000,000 or more, or in the payment when due of
any amount aggregating $5,000,000 or more under any Interest Rate
Protection Agreement; or any event specified in any note, agreement,
indenture or other document evidencing or relating to any such
Indebtedness or any event specified in any Interest Rate Protection
Agreement shall occur if the effect of such event is to cause, or (with
the giving of any
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notice or the lapse of time or both) to permit the holder or holders of
such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, such Indebtedness to become due, or to be prepaid in
full (whether by redemption, purchase, offer to purchase or otherwise),
prior to its stated maturity or to have the interest rate thereon reset to
a level so that securities evidencing such Indebtedness trade at a level
specified in relation to the par value thereof or, in the case of an
Interest Rate Protection Agreement, to permit the payments owing under
such Interest Rate Protection Agreement to be liquidated in an amount
aggregating $5,000,000 or more; or
(c) Any representation, warranty or certification made or deemed
made herein or in any other Basic Document (or in any modification or
supplement hereto or thereto) by the Company, or any certificate furnished
to any Lender or the Administrative Agent pursuant to the provisions
hereof or thereof shall prove to have been false or misleading in any
material respect as of the time made or furnished; or
(d) The Company shall default in the performance of any of its
obligations under any of Sections 8.01(g), 8.05, 8.06, 8.07, 8.08, 8.09,
8.10, 8.11, 8.12 or 8.13 hereof or the Company shall default in the
performance of any of its obligations under Section 5.02 of the Revolving
Credit Security Agreement or Section 4.02 of the Term Loan Security
Agreement; or the Company shall default in the performance of any of its
other obligations in this Agreement or any other Basic Document and such
default shall continue unremedied for a period of thirty days after notice
thereof to the Company by the Administrative Agent or any Lender (through
the Administrative Agent); or
(e) The Company or any of its Subsidiaries shall admit in writing
its inability to, or be generally unable to, pay its debts as such debts
become due; or
(f) The Company or any of its Subsidiaries shall (i) apply for or
consent to the appointment of, or the taking of possession by, a receiver,
custodian, trustee, examiner or liquidator of itself or of all or a
substantial part of its Property, (ii) make a general assignment for the
benefit of its creditors, (iii) commence a voluntary case under the
Bankruptcy Code, (iv) file a petition seeking to take advantage of any
other law relating to bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement or winding-up, or composition or readjustment of
debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed
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against it in an involuntary case under the Bankruptcy Code or (vi) take
any corporate action for the purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the application
or consent of the Company or any of its Subsidiaries, in any court of
competent jurisdiction, seeking (i) its reorganization, liquidation,
dissolution, arrangement or winding-up, or the composition or readjustment
of its debts, (ii) the appointment of a receiver, custodian, trustee,
examiner, liquidator or the like of the Company or such Subsidiary or of
all or any substantial part of its Property, or (iii) similar relief in
respect of the Company or such Subsidiary under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any of
the foregoing shall be entered and continue unstayed and in effect, for a
period of 60 or more days; or an order for relief against the Company or
such Subsidiary shall be entered in an involuntary case under the
Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money in excess
of $5,000,000 in the aggregate (exclusive of judgment amounts fully
covered by insurance where the insurer has admitted liability in respect
of such judgment) or in excess of $20,000,000 in the aggregate (regardless
of insurance coverage) shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction against the
Company or any of its Subsidiaries and the same shall not be discharged
(or provision shall not be made for such discharge), or a stay of
execution thereof shall not be procured, within 30 days from the date of
entry thereof and the Company or the relevant Subsidiary shall not, within
said period of 30 days, or such longer period during which execution of
the same shall have been stayed, appeal therefrom and cause the execution
thereof to be stayed during such appeal; or
(i) An event or condition specified in Section 8.01(f) hereof shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events or
conditions, the Company or any ERISA Affiliate shall incur or in the
opinion of the Majority Lenders shall be reasonably likely to incur a
liability to a Plan, a Multiemployer Plan or PBGC (or any combination of
the foregoing) which would constitute, in the determination of the
Majority Lenders, a Material Adverse Effect; or
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(j) A reasonable basis shall exist for the assertion against the Company
or any of its Subsidiaries of (or there shall have been asserted against the
Company or any of its Subsidiaries) claims or liabilities, whether accrued,
absolute or contingent, based on or arising from the generation, storage,
transport, handling or disposal of Hazardous Materials by the Company or any of
its Subsidiaries or Affiliates, or any predecessor in interest of the Company or
any of its Subsidiaries or Affiliates, or relating to any site or facility
owned, operated or leased by the Company or any of its Subsidiaries or
Affiliates, which claims or liabilities (insofar as they are payable by the
Company or any of its Subsidiaries but after deducting any portion thereof which
is reasonably expected to be paid by other creditworthy Persons jointly and
severally liable therefor), in the judgment of the Majority Lenders are
reasonably likely to be determined adversely to the Company or any of its
Subsidiaries, and the amount thereof is, singly or in the aggregate, reasonably
likely to have a Material Adverse Effect; or
(k) Any "person" or "group" (as such terms are defined in Sections 13(d)
and 14(d) of the Securities Exchange Act (other than Amin or ▇▇▇▇▇▇ ▇▇▇▇▇▇,
their lineal descendants or trusts established by such Persons for their
respective lineal descendants)) is or becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all shares that any such person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of 30% or more of the aggregate
voting rights of the outstanding capital stock of the Company (on a fully
diluted basis); or during any consecutive 25-month period, individuals who at
the beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election by the stockholders of the
Company was approved by a vote of 66-2/3% of the directors then still in office
who were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the Company then in office;
or
(1) Except for expiration in accordance with its terms, any of the
Security Documents shall be terminated or shall cease to be in full force and
effect, for whatever reason;
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THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Section 9 with respect to the Company, the
Administrative Agent may, by notice to the Company, terminate the Commitments
and/or declare the principal amount then outstanding of, and the accrued
interest on, the Loans, the Reimbursement Obligations and all other amounts
payable by the Company hereunder and under the Notes (including, without
limitation, any amounts payable under Section 5.05 or 5.06 hereof) to be
forthwith due and payable (provided that (x) if so requested by the Majority
Series A Lenders, the Administrative Agent shall take such action with respect
to the Series A Commitments and/or the Series A Loans, Reimbursement Obligations
and such interest and other amounts to the extent owed to the Series A Lenders
and (y) if so requested by the Majority Series B Lenders, the Administrative
Agent shall take such action with respect to the Series B Commitments and the
Series B Loans and such interest and other amounts to the extent owed to the
Series B Lenders), whereupon such amounts shall be immediately due and payable
without presentment, demand, protest or other formalities of any kind, all of
which are hereby expressly waived by the Company; and (2) in the case of the
occurrence of an Event of Default referred to in clause (f) or (g) of this
Section 9 with respect to the Company, the Commitments shall automatically be
terminated and the principal amount then outstanding of, and the accrued
interest on, the Loans, the Reimbursement Obligations and all other amounts
payable by the Company hereunder and under the Notes (including, without
limitation, any amounts payable under Section 5.05 or 5.06 hereof) shall
automatically become immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by the Company.
In addition, upon the occurrence and during the continuance of any
Event of Default (if the Administrative Agent has declared the principal amount
then outstanding of, and accrued interest on, the Series A Loans and all other
amounts payable by the Company hereunder and under the Notes to be due and
payable), the Company agrees that it shall, if requested by the Administrative
Agent or the Majority Series A Lenders through the Administrative Agent (and, in
the case of any Event of Default referred to in clause (f) or (g) of this
Section 9 with respect to the Company, forthwith, without any demand or the
taking of any other action by the Administrative Agent or such Lenders) provide
cover for the Letter of Credit Liabilities by paying to the Administrative Agent
immediately available funds in an amount equal to the then aggregate undrawn
face amount of all Letters of Credit, which funds shall be held by the
Administrative Agent in the Collateral Account as collateral security in the
first instance for the Letter of Credit
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Liabilities and be subject to withdrawal only as therein provided.
Section 10. The Administrative Agent.
10.01 Appointment, Powers and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Administrative Agent to act as its agent
hereunder and under the other Basic Documents with such powers as are
specifically delegated to the Administrative Agent by the terms of this
Agreement and of the other Basic Documents, together with such other powers as
are reasonably incidental thereto. The Administrative Agent (which term as used
in this sentence and in Section 10.05 and the first sentence of Section 10.06
hereof shall include reference to its affiliates and its own and its affiliates'
officers, directors, employees and agents): (a) shall have no duties or
responsibilities except those expressly set forth in this Agreement and in the
other Basic Documents, and shall not by reason of this Agreement or any other
Basic Document be a trustee for any Lender; (b) shall not be responsible to the
Lenders for any recitals, statements, representations or warranties contained in
this Agreement or in any other Basic Document, or in any certificate or other
document referred to or provided for in, or received by any of them under, this
Agreement or any other Basic Document, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement, any
Note or any other Basic Document or any other document referred to or provided
for herein or therein or for any failure by the Company or any other Person to
perform any of its obligations hereunder or thereunder; (c) shall not be
required to initiate or conduct any litigation or collection proceedings
hereunder or under any other Basic Document; and (d) shall not be responsible
for any action taken or omitted to be taken by it hereunder or under any other
Basic Document or under any other document or instrument referred to or provided
for herein or therein or in connection herewith or therewith, except for its own
gross negligence or willful misconduct. The Administrative Agent may deem and
treat the payee of any Note as the holder thereof for all purposes hereof unless
and until a notice of the assignment or transfer thereof shall have been filed
with the Administrative Agent, together with the consent of the Company to such
assignment or transfer (to the extent provided in Section 11.06(b) hereof).
10.02 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including, without limitation, any thereof by telephone, telecopy, telex,
telegram or cable) believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel,
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independent accountants and other experts selected by the Administrative Agent.
As to any matters not expressly provided for by this Agreement or any other
Basic Document, the Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, hereunder or thereunder in accordance
with instructions given by the Majority Lenders or, if provided herein, in
accordance with the instructions given by the Majority Series A Lenders, the
Majority Series B Lenders or all of the Lenders as is required in such
circumstance, and such instructions of such Lenders and any action taken or
failure to act pursuant thereto shall be binding on all of the Lenders.
10.03 Defaults. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default unless the Administrative
Agent has received notice from a Lender or the Company specifying such Default
and stating that such notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall (subject to Section 10.07 hereof) take such action
with respect to such Default as shall be directed by the Majority Lenders or, if
provided herein, the Majority Series A Lenders or the Majority Series B Lenders,
provided that, unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interest of the Lenders except to
the extent that this Agreement expressly requires that such action be taken, or
not be taken, only with the consent or upon the authorization of the Majority
Lenders, the Majority Series A Lenders, the Majority Series B Lenders or all of
the Lenders.
10.04 Rights as a Lender. With respect to its Commitments and the
Loans made by it, Chase (and any successor acting as Administrative Agent) in
its capacity as a Lender hereunder shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
acting as the Administrative Agent, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include the Administrative Agent in its
individual capacity. Chase (and any successor acting as Administrative Agent)
and its affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Company (and any of its
Subsidiaries or Affiliates) as if it were not acting as the Administrative
Agent, and Chase and its affiliates may accept fees and other consideration from
the
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Company for services in connection with this Agreement or otherwise without
having to account for the same to the Lenders.
10.05 Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed under Section 11.03 hereof,
but without limiting the obligations of the Company under said Section 11.03,
and including in any event any payments under any indemnity that the
Administrative Agent is required to issue to any bank referred to in Section
4.02 of the Revolving Credit Security Agreement to which remittances in respect
of Accounts, as defined therein, are to be made) ratably in accordance with the
aggregate principal amount of the Loans and Reimbursement Obligations held by
the Lenders (or, if no Loans or Reimbursement Obligations are at the time
outstanding, ratably in accordance with their respective Commitments), for any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the
Administrative Agent (including by any Lender) arising out of or by reason of
any investigation in or in any way relating to or arising out of this Agreement
or any other Basic Document or any other documents contemplated by or referred
to herein or therein or the transactions contemplated hereby or thereby
(including, without limitation, the costs and expenses that the Company is
obligated to pay under Section 11.03 hereof, and including also any payments
under any indemnity that the Administrative Agent is required to issue to any
bank referred to in Section 4.02 of the Revolving Credit Security Agreement to
which remittances in respect of Accounts, as defined therein, are to be made,
but excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or thereof or of
any such other documents, provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the party to be indemnified.
10.06 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender agrees that it has, independently and without reliance on the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Company and its Subsidiaries and decision to enter into this Agreement and that
it will, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement. The Administrative Agent shall
not be required to keep itself informed as to the
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performance or observance by the Company of this Agreement or any of the other
Basic Documents or any other document referred to or provided for herein or
therein or to inspect the Properties or books of the Company or any of its
Subsidiaries. Except for notices, reports and other documents and information
expressly required to be furnished to the Lenders by the Administrative Agent
hereunder, the Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the affairs,
financial condition or business of the Company or any of its Subsidiaries (or
any of their affiliates) that may come into the possession of the Administrative
Agent or any of its affiliates.
10.07 Failure to Act. Except for action expressly required of the
Administrative Agent hereunder and under the other Basic Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 10.05 hereof against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such
action.
10.08 Resignation or Removal of Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Lenders and the Company, and the Administrative Agent may be removed at
any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Majority Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent's giving of
notice of resignation or the Majority Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, after consultations with the Company, appoint a successor
Administrative Agent, that shall be a bank which has an office in New York, New
York with a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Section 10 shall continue in effect
for its benefit in
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respect of any actions taken or omitted to be taken by it while it was acting as
the Administrative Agent.
10.09 Consents under Basic Documents. Except as otherwise provided
in Section 11.04 hereof with respect to this Agreement, the Administrative Agent
may, with the prior consent of the Majority Lenders (but not otherwise), consent
to any modification, supplement or waiver under any of the Basic Documents,
provided that, (i) without the prior consent of the Majority Series B Lenders,
the Administrative Agent shall not consent to any modification, supplement or
waiver under the Term Loan Security Agreement, (ii) without the prior consent of
the Majority Series A Lenders, the Administrative Agent shall not consent to any
modification, supplement or waiver under the Revolving Credit Security
Agreement, (iii) without the consent of each Series B Lender, the Administrative
Agent shall not (except as provided herein or in the Term Loan Security
Agreement) release any collateral or otherwise terminate any Lien under the Term
Loan Security Agreement providing for collateral security, or agree to
additional obligations being secured by such collateral security (unless the
Lien for such additional obligations shall be junior to the Lien in favor of the
other obligations secured by such Term Loan Security Agreement) and (iv) without
the consent of each Series A Lender, the Administrative Agent shall not (except
as provided herein or in the Revolving Credit Security Agreement) release any
collateral or otherwise terminate any Lien under the Revolving Credit Security
Agreement providing for collateral security, or agree to additional obligations
being secured by such collateral security (unless the Lien for such additional
obligations shall be junior to the Lien in favor of the other obligations
secured by such Revolving Credit Security Agreement), except that no such
consent shall be required, and the Administrative Agent is hereby authorized, to
release any Lien covering Property which (a) is the subject of a Disposition of
Property permitted hereunder or to which the Majority Lenders have consented or
(b) is all or any part of the Company's United States Services' Division to the
extent that such Property is transferred to a Wholly Owned Subsidiary of the
Company so long as the shares of such Wholly Owned Subsidiary have been pledged
to the Administrative Agent pursuant to the Revolving Credit Security Agreement.
10.10 Collateral Sub-Agents. Each Series A Lender by its execution
and delivery of this Agreement agrees, as contemplated by Section 4.03 of the
Revolving Credit Security Agreement, that, in the event it shall hold any
Permitted Investments referred to therein, such Permitted Investments shall be
held in the name and under the control of such Series A Lender, and such Series
A Lender shall hold such Permitted Investments as a collateral sub-agent for the
Administrative
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Agent thereunder. The Company by its execution and delivery of this Agreement
hereby consents to the foregoing.
10.11 Co-Agent. The Co-Agent identified on the front cover page of
this Agreement shall have no duties or responsibilities hereunder other than as
a Bank hereunder.
Section 11. Miscellaneous.
11.01 Waiver. No failure on the part of the Administrative Agent or
any Lender to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement or any Note shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under this Agreement or any Note preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
11.02 Notices. All notices, requests and other communications
provided for herein and under the Security Documents (including, without
limitation, any modifications of, or waivers or consents under, this Agreement)
shall be given or made in writing (including, without limitation, by telecopy)
delivered to the intended recipient at (i) in the case of the Company and the
Administrative Agent, the "Address for Notices" specified below its name on the
signature pages hereof) and (ii) in the case of each of the Lenders, the address
(or telecopy number) set forth in its Administrative Questionnaire; or, as to
any party, at such other address as shall be designated by such party in a
notice to each other party. Except as otherwise provided in this Agreement, all
such communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
11.03 Expenses, Etc. The Company agrees to pay or reimburse each of
the Lenders and the Administrative Agent for paying: (a) all reasonable
out-of-pocket costs and expenses of the Administrative Agent (including, without
limitation, the reasonable fees and expenses of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
special New York counsel to Chase), in connection with (i) the negotiation,
preparation, execution and delivery of this Agreement and the other Basic
Documents and the extension of credit hereunder and (ii) any modification,
supplement or waiver of any of the terms of this Agreement or any of the other
Basic Documents; (b) all reasonable costs and expenses of the Lenders and the
Administrative Agent (including, without limitation, reasonable counsels' fees)
in connection with (i) any Default and
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any enforcement or collection proceedings resulting therefrom or in connection
with the negotiation of any restructuring or "work-out" (whether or not
consummated), or the obligations of the Company hereunder and (ii) the
enforcement of this Section 11.03; and (c) all transfer, stamp, documentary,
intangibles or other similar taxes, assessments or charges levied by any
governmental or revenue authority in respect of this Agreement or any of the
other Basic Documents or any other document referred to herein or therein and
all costs, expenses, taxes, assessments and other charges incurred in connection
with any filing, registration, recording or perfection of any security interest
contemplated by any Basic Document or any other document referred to therein.
The Company hereby agrees (i) to indemnify the Administrative Agent
and each Lender and their respective directors, officers, employees, attorneys
and agents from, and hold each of them harmless against, any and all losses,
liabilities, claims, damages or expenses incurred by any of them (including,
without limitation, any and all losses, liabilities, claims, damages or expenses
incurred by the Administrative Agent to any Lender, whether or not the
Administrative Agent or any Lender is a party thereto) arising out of or by
reason of any investigation or litigation or other proceedings (including any
threatened investigation or litigation or other proceedings) relating to the
extensions of credit hereunder or any actual or proposed use by the Company or
any of its Subsidiaries of the proceeds of any of the extensions of credit
hereunder, including, without limitation, the reasonable fees and disbursements
of counsel incurred in connection with any such investigation or litigation or
other proceedings (but excluding any such losses, liabilities, claims, damages
or expenses incurred by reason of the gross negligence or willful misconduct of
the Person to be indemnified) and (ii) not to assert any claim against the
Administrative Agent, any Lender, any of their affiliates, or any of their
respective directors, officers, employees, attorneys and agents, on any theory
of liability, for special, indirect, consequential or punitive damages arising
out of or otherwise relating to any of the transactions contemplated herein or
in any other Basic Document. Without limiting the generality of the foregoing,
the Company will (x) indemnify the Administrative Agent for any payments that
the Administrative Agent is required to make under any indemnity issued to any
bank referred to in Section 4.02 of the Revolving Credit Security Agreement to
which remittances in respect to Accounts, as defined therein, are to be made and
(y) indemnify the Administrative Agent and each Lender from, and hold the
Administrative Agent and each Lender harmless against, any losses, liabilities,
claims, damages or expenses described in the preceding sentence (but excluding,
as provided in the preceding sentence, any loss, liability, claim, damage or
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expense incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified) arising under any Environmental Law as a result of the
past, present or future operations of the Company or any of its Subsidiaries (or
any predecessor in interest to the Company or any of its Subsidiaries), or the
past, present or future condition of any site or facility owned, operated or
leased by the Company or any of its Subsidiaries (or any such predecessor in
interest), or any Release or threatened Release of any Hazardous Materials from
any such site or facility, including any such Release or threatened Release
which shall occur during any period when the Administrative Agent or any Lender
shall be in possession of any such site or facility following the exercise by
the Administrative Agent or any Lender of any of its rights and remedies
hereunder or under any of the Security Documents but only to the extent that
such Release or threatened Release is directly or indirectly attributable to
facts, circumstances or Releases of Hazardous Materials existing prior to the
date of such possession.
11.04 Amendments, Etc. Except as otherwise expressly provided in
this Agreement, any provision of this Agreement may be modified or supplemented
only by an instrument in writing signed by the Company, the Administrative Agent
and the Majority Lenders, or by the Company and the Administrative Agent acting
with the consent of the Majority Lenders, and any provision of this Agreement
may be waived by the Majority Lenders or by the Administrative Agent acting with
the consent of the Majority Lenders; provided that: (a) no modification,
supplement or waiver shall, unless by an instrument signed by all of the Lenders
or by the Administrative Agent acting with the consent of all of the Lenders:
(i) increase, or extend the term of any of the Commitments, or extend the time
or waive any requirement for the reduction or termination of any of the
Commitments, (ii) extend the date fixed for the payment of principal of or
interest on any Loan, the Reimbursement Obligations or any fee hereunder, (iii)
reduce the amount of any such payment of principal, (iv) reduce the rate at
which interest is payable thereon or any fee is payable hereunder, (v) alter the
rights or obligations of the Company to prepay Loans, (vi) alter the terms of
this Section 11.04, (vii) modify the definition of the term "Majority Lenders",
"Majority Series A Lenders" or "Majority Series B Lenders", or modify in any
other manner the number or percentage of the Lender required to make any
determinations or waive any rights hereunder or to modify any provision hereof,
or (viii) waive any of the conditions precedent set forth in Section 6 hereof;
(b) any modification or supplement of Section 10 hereof shall require the
consent of the Administrative Agent; and (c) notwithstanding the above, (i)
Sections 2.01(a), 2.03, 2.04(a), 2.05(i) and 5.06, may be modified or
supplemented
Credit Agreement
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only by an instrument in writing signed by the Company, the Administrative Agent
and the Series A Lenders, or by the Company and the Administrative Agent acting
with the consent of the Series A Lenders, and any such provision may be waived
by the Series A Lenders or by the Administrative Agent acting with the consent
of the Series A Lenders, and (ii) Sections 2.01(b), 2.04(b) and 2.05(ii) may be
modified or supplemented only by an instrument in writing signed by the Company,
the Administrative Agent and the Series B Lenders, or by the Company and the
Administrative Agent acting with the consent of the Series B Lenders, and any
such provision may be waived by the Series B Lenders or by the Administrative
Agent acting with the consent of the Series B Lenders.
11.05 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
11.06 Assignments and Participations.
(a) The Company may not assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of the Lenders and
the Administrative Agent.
(b) Each Lender may assign any of its Loans, its Notes, its
Commitments, and, if such Lender is a Series A Lender, its Letter of Credit
Interest (but only with the consent of the Company and the Administrative Agent
and, in the case of a Series A Commitment or a Letter of Credit Interest, the
Issuing Lender, which consents in the case of the Company and the Administrative
Agent shall not be unreasonably withheld or delayed); provided that (i) any such
consent by the Company shall not be unreasonably withheld, (ii) no such consent
by the Company or the Administrative Agent shall be required in the case of any
assignment to another Lender; (iii) any such partial assignment shall be in an
amount at least equal to $5,000,000; (iv) unless the Company and the
Administrative Agent shall otherwise consent (which consents shall not be
unreasonably withheld or delayed), each such assignment by a Lender of its
Series A Loans, Series A Note, Series A Commitment or Letter of Credit Interest
shall be made in such manner so that the same percentage of its Series A Loans,
Series A Note, Series A Commitment and Letter of Credit Interest, Series B
Loans, Series B Note and Series B Commitment is assigned to the respective
assignee; and (v) unless the Company and the Administrative Agent shall
otherwise consent (which consents shall not be unreasonably withheld or
delayed), each such assignment by a Lender of its Series B Loans, Series B Note
or Series B Commitment shall be made in such manner so that the same percentage
of its Series B Loans, Series B Note and Series B Commitment, Series A Loans,
Series A Note, Series A
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Commitment and Letter of Credit Interest is assigned to the respective assignee.
Upon execution and delivery by the assignee to the Company, the Administrative
Agent and the Issuing Lender of an instrument in writing pursuant to which such
assignee agrees to become a "Lender" hereunder (if not already a Lender) having
the Commitment(s), Loans, and, if applicable, Letter of Credit Interest
specified in such instrument, and upon consent thereto by the Company, the
Administrative Agent and the Issuing Lender, to the extent required above, the
assignee shall have, to the extent of such assignment (unless otherwise provided
in such assignment with the consent of the Company, the Administrative Agent and
the Issuing Lender), the obligations, rights and benefits of a Lender hereunder
holding the Commitment(s), Loans and, if applicable, Letter of Credit Interest
(or portions thereof) assigned to it (in addition to the Commitment(s), Loans
and Letter of Credit Interest, if any, theretofore held by such assignee) and
the assigning Lender shall, to the extent of such assignment, be released from
the Commitment(s) (or portion(s) thereof) so assigned. Upon each such assignment
the assigning Lender shall pay the Administrative Agent an assignment fee of
$3,000.
(c) A Lender may sell or agree to sell to one or more other Persons
a participation in all or any part of any Loans or Letter of Credit Interest
held by it, or in its Commitments, in which event each purchaser of a
participation (a "Participant") shall be entitled to the rights and benefits of
the provisions of Section 8.01(j) hereof with respect to its participation in
such Loans, Letter of Credit Interest and Commitments as if (and the Company
shall be directly obligated to such Participant under such provisions as if)
such Participant were a "Lender" for purposes of said Section, but, except as
otherwise provided in Section 4.07(c) hereof, shall not have any other rights or
benefits under this Agreement or any Note or any other Basic Document (the
Participant's rights against such Lender in respect of such participation to be
those set forth in the agreements executed by such Lender in favor of the
Participant). All amounts payable by the Company to any Lender under Section 5
hereof in respect of Loans, Letter of Credit Interest held by it, and its
Commitments, shall be determined as if such Lender had not sold or agreed to
sell any participations in such Loans, Letter of Credit Interest and
Commitments, and as if such Lender were funding each of such Loan, Letter of
Credit Interest and Commitments in the same way that it is funding the portion
of such Loan, Letter of Credit Interest and Commitments in which no
participations have been sold. In no event shall a Lender that sells a
participation agree with the Participant to take or refrain from taking any
action hereunder or under any other Basic Document except that such Lender may
agree with the Participant that it will not, without the consent of the
Participant, agree
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to (i) increase or extend the term, or extend the time or waive any requirement
for the reduction or termination, of such Lender's related Commitment, (ii)
extend the date fixed for the payment of principal of or interest on the related
Loan or Loans, Reimbursement Obligations or any portion of any fee hereunder
payable to the Participant, (iii) reduce the amount of any such payment of
principal, (iv) reduce the rate at which interest is payable thereon, or any fee
hereunder payable to the Participant, to a level below the rate at which the
Participant is entitled to receive such interest or fee, (v) alter the rights or
obligations of the Company to prepay the related Loans or (vi) consent to any
modification, supplement or waiver hereof or of any of the other Basic Documents
to the extent that the same, under Section 10.10 or 11.04 hereof, requires the
consent of each Lender.
(d) In addition to the assignments and participations permitted
under the foregoing provisions of this Section 11.06, any Lender may assign and
pledge all or any portion of its Loans and its Notes to any Federal Reserve Bank
as collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank. No such assignment shall release the
assigning Lender from its obligations hereunder.
(e) A Lender may furnish any information concerning the Company or
any of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 11.12(b) hereof.
(f) Anything in this Section 11.06 to the contrary notwithstanding,
no Lender may assign or participate any interest in any Loan or Reimbursement
Obligation held by it hereunder to the Company or any of its Affiliates or
Subsidiaries without the prior written consent of each Lender.
11.07 Survival. The obligations of the Company under Sections 5.01,
5.05, 5.06, 5.07 and 11.03 hereof and the obligations of the Lenders under
Sections 10.05 and 11.12 hereof shall survive the repayment of the Loans and
Reimbursement Obligations and the termination of the Commitments. In addition,
each representation and warranty made, or deemed to be made by a notice of any
extension of credit (whether by means of a Loan or a Letter of Credit), herein
or pursuant hereto shall survive the making of such representation and warranty,
and no Lender shall be deemed to have waived, by reason of making any extension
of credit hereunder (whether by means of a Loan or a Letter of Credit), any
Default which may arise by reason of such representation or warranty proving to
have been false or misleading, notwithstanding that such Lender or the
Administrative Agent may have had notice or knowledge or reason
Credit Agreement
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to believe that such representation or warranty was false or misleading at the
time such extension of credit was made.
11.08 Captions. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
11.09 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
11.10 Governing Law; Submission to Jurisdiction. This Agreement and
the Notes shall be governed by, and construed in accordance with, the law of the
State of New York. The Company hereby submits to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
the Supreme Court of the State of New York sitting in New York County (including
its Appellate Division), and any other appellate court in the State of New York,
for the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The Company irrevocably
waives, to the fullest extent permitted by applicable law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
11.11 Waiver of Jury Trial. EACH OF THE COMPANY, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
11.12 Treatment of Certain Information; Confidentiality.
(a) The Company acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
the Company or one or more of its Subsidiaries (in connection with this
Agreement or otherwise) by any Lender or by one or more subsidiaries or
affiliates of such Lender and the Company hereby authorizes each Lender to share
any information delivered to such Lender by the Company and its Subsidiaries
pursuant to this Agreement, or in connection with the decision of such Lender to
enter into this Agreement, to any such subsidiary or affiliate, it being
understood that any such
Credit Agreement
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subsidiary or affiliate receiving such information shall be bound by the
provisions of clause (b) below as if it were a Lender hereunder.
(b) Each Lender and the Administrative Agent agrees (on behalf of
itself and each of its affiliates, directors, officers, employees and
representatives) to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of this nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by the Company pursuant to this Agreement
which is identified by the Company as being confidential at the time the same is
delivered to the Lenders or the Administrative Agent, provided that nothing
herein shall limit the disclosure of any such information (i) to the extent
required by statute, rule, regulation or judicial process, (ii) to counsel for
any of the Lenders or the Administrative Agent, (iii) to bank examiners,
auditors or accountants, (iv) to the Administrative Agent or any other Lender
(or to Chase Securities Inc.), (v) in connection with any litigation to which
any one or more of the Lenders or the Administrative Agent is a party, (vi) to a
subsidiary or affiliate of such Lender as provided in clause (a) above or (vii)
to any assignee or participant (or prospective assignee or participant) so long
as such assignee or participant (or prospective assignee or participant) first
executes and delivers to the respective Lender a Confidentiality Agreement
substantially in the form of Exhibit B hereto; provided, further, that (x)
unless specifically prohibited by applicable law or court order, each Lender and
the Administrative Agent shall, prior to disclosure thereof, notify the Company
of any request for disclosure of any such non-public information (A) by any
governmental agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such Lender by such
governmental agency) or (B) pursuant to legal process and (y) in no event shall
any Lender or the Administrative Agent be obligated or required to return any
materials furnished by the Company.
11.13 Amendments to Security Documents.
(a) The Revolving Credit Security Agreement is hereby amended so
that from and after the Amendment Effective Date, all references therein to the
Credit Agreement shall be deemed to be a reference to the Credit Agreement as
amended and restated hereby.
(b) The Term Loan Security Agreement is hereby amended so that from
and after the Amendment Effective Date, (x) all references therein to the Credit
Agreement shall be deemed to be
Credit Agreement
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a reference to the Credit Agreement as amended and restated hereby.
Credit Agreement
100
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
BE AEROSPACE, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President & CFO
Address for Notices:
BE Aerospace, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No. : (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Ropes & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier No. : (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No. : (▇▇▇) ▇▇▇-▇▇▇▇
Credit Agreement
101
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LENDERS
THE CHASE MANHATTAN BANK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
NATIONSBANK, N.A. (SOUTH)
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Senior Vice President
LASALLE BUSINESS CREDIT, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
LTCB TRUST COMPANY
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Executive Vice President
CREDITANSTALT- BANKVEREIN
By /s/ ▇▇▇▇ ▇▇▇▇
-----------------------------------
Title: Vice President
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title: Senior Vice President
Credit Agreement
102
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FUJI BANK & TRUST COMPANY
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Executive Vice President
CREDIT LYONNAIS, NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Authorized Signature
THE SUMITOMO BANK, LIMITED
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President & Manager
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Senior Vice President &
Regional Manager (East)
Credit Agreement
103
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THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
Address for Notices to
Chase as Administrative Agent:
The Chase Manhattan Bank
Loan and Agency Services Group
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Credit Agreement
104
Annex 1
Series A Series B Total
Bank Commitment Commitment Commitments
---- ---------- ---------- -----------
The Chase Manhattan Bank $ 16,000,000 $ 4,000,000 $ 20,000,000
NationsBank, N.A. (South) $ 16,000,000 $ 4,000,000 $ 20,000,000
LTCB Trust Company $ 15,200,000 $ 3,800,000 $ 19,000,000
LaSalle Business
Credit, Inc. $ 15,200,000 $ 3,800,000 $ 19,000,000
Credit Lyonnais, New
York Branch $ 11,200,000 $ 2,800,000 $ 14,000,000
Creditanstalt-Bankverein $ 10,400,000 $ 2,600,000 $ 13,000,000
Fuji Bank Ltd $ 8,000,000 $ 2,000,000 $ 10,000,000
The Sumitomo Bank
Limited $ 8,000,000 $ 2,000,000 $ 10,000,000
------------ ----------- ------------
Total $100,000,000 $25,000,000 $125,000,000
Annex 1 to Credit Agreement
105
SCHEDULE I
Material Agreements and Liens
[See Sections 7.12 and 8.07(b)]
Part A - Material Agreements
1. Indenture dated as of March 3, 1993 between the Company, as issuer, and
the United States Trust Company of New York, as trustee, in connection
with $125,000,000 of 9-3/4. Senior Notes of the Company.
2. Loan agreements dated February 24, 1993 between the Company's subsidiary
Flight Equipment and Engineering Limited, an English corporation ("FEEL"),
and Barclays Bank PLC ("Barclays"), as amended, providing for an overdraft
facility in the aggregate principal amount of (pound)3,000,000.
3. Guarantee dated February 24, 1993 by the Company to Barclays limited to
(pound)2,750,000 of the Indebtedness of FEEL described in Item 2 above.
4. Guarantee as of March 1, 1993 of Aircraft Furnishing Limited ("AFL") in an
unlimited amount of the Indebtedness of FEEL described in described in
Item 2 above.
5. Loan agreement between Royal Inventum B.V. and ING Bank dated July 14,
1993 in the aggregate principal amount of Dfl. 2,000,000.
6. Demand Promissory Note dated August 27, 1993 from Aero Holdings
Acquisition Corp. (now known as Acurex Corporation) to the Company in the
aggregate principal amount of approximately $2,000,000.
7. Acquisition Agreement among the Company, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
Industries, Inc. dated July 27, 1993. (Acquisition purchase price
adjustments unknown)
8. Purchase Agreement dated October 26, 1993 between the Company and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Trustees of the ▇▇▇▇▇▇ ▇. and ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇ Living Trust, Dated August 3, 1990 pursuant to which the
trust sold certain residential property located in San Clemente,
California to the Company, and the Company, among other things, assumed
Indebtedness which, as of the date hereof, is outstanding to Countrywide
Funding Corporation in the aggregate principal amount of $457,484.
9. Capitalized lease obligations of FEEL and AFL for machinery and equipment
in the aggregate amount of $945,000.
Schedule I to Credit Agreement
106
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10. Indebtedness of FEEL to the Company in an aggregate principal amount not
in excess of (pound)3,369,541.
11. Indebtedness of BE Aerospace (Netherlands) B.V. to the Company in an
aggregate principal amount not in excess of Dfls. 49,385,000.
12. Indenture dated as of January 24, 1996 between the Company and First
National Bank of Connecticut, as trustee, in connection with $100,000,000
of 9-7/8% Senior Subordinated Notes due 2006.
13. Acquisition Agreement dated as of December 14, 1995, among the Company,
▇▇▇▇▇ Aerospace Corporation, Eagle Industrial Products Corporation, Eagle
Industries, Inc. and Great American Management and Investment, Inc.
(Acquisition purchase price adjustment unknown.)
Schedule I to Credit Agreement
107
SCHEDULE I
Part B - Liens
BE Aerospace, Inc.
1. California
a. UCC - Secretary of State
(i) 1st Source Bank, filed September 3, 1993, file number
93180963. Certain leased machining equipment.
(ii) Allied American Insurance Company, filed May 24, 1993, file
number 93099606. Certain leased machining equipment.
(iii) United Jersey Bank, filed May 3, 1993, file number
93086057. Certain leased computer equipment and related
tangible and intangible property,
(iv) 1st Source Bank, filed March 18, 1993, file number
93054020. Certain leased computer equipment.
(v) 1st Source Bank, filed March 18, 1993, file number
93054019. Certain leased machining equipment.
(vi) Yale Financial Services, Inc., filed March 15, 1993, file
number 93052839. Fork lift.
(vii) ▇▇▇▇▇▇ Financial Corp., filed March 4, 1993, file number
93044645. Certain leased equipment.
(viii) United Jersey Bank, filed March 5, 1993, file number 93043802.
Certain leased computer equipment and related tangible and
intangible property.
(ix) Bankers Leasing Association, Inc., filed December 29, 1992,
file number 92275389. Certain leased computer equipment.
(x) First Bank and Trust Company of Illinois, filed May 7, 1993,
file number 92275389. Certain leased computer equipment.
(Assignment of No. 92275389)
108
(xi) United Jersey Bank, filed December 14, 1992, file number
92263097. Certain leased machining equipment.
(xii) United Jersey Bank, filed March 30, 1993, file number
92263097. Certain leased computer equipment.
(xiii) Guaranty Lease Funding Corporation, filed September 24, 1992,
file number 92207704. Certain leased equipment.
(xiv) GE Capital Corporation, filed August 7, 1992, file number
92170592. Certain leased office furniture and fixtures.
(xv) Copelco Capital, Inc., filed October 12, 1993, file number
93208050. Certain leased office equipment.
(xvi) The Chase Manhattan Bank, filed November 3, 1993, file number
93221435. Blanket filing.
(xvii) UJB Leasing Corporation, filed December 1, 1994, file number
▇▇▇▇▇▇▇▇▇▇. Miscellaneous equipment.
(xviii) Hewlett-Packard Company Finance and Remark, filed December 6,
1994, file number 9435560656. Miscellaneous equipment.
(xix) NEC America, Inc., filed March 17, 1995, file number
▇▇▇▇▇▇▇▇▇▇. Miscellaneous telephone equipment.
(xx) British Airways PLC, filed May 20, 1996, file number
9614460354. Miscellaneous equipment.
(xxi) Hewlett-Packard Company Finance and Remark, filed May 9, 1997,
file number 9712861105. Certain leased equipment and related
tangible and intangible property.
(xxii) Hewlett-Packard Company Finance and Remark, filed May 7, 1997,
file number 9712960794. Certain leased equipment and related
tangible and intangible property.
b. Other
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109
(i) An outstanding mortgage on a residential property in San
Clemente, California in favor of Countrywide Funding
Corporation secures, as of the date hereof, $457,484 of
Indebtedness.
2. Connecticut
a. UCC - Secretary of State
(i) Yale Financial Services, Inc., filed March 11, 1993, file
number 1001222. Forklift.
(ii) The Chase Manhattan Bank, filed November 3, 1993, file number
1034166; Blanket; Amendment filed February 1, 1996, file
number 1678686 (Debtor address change); Partial Release filed
December 16, 1996, file number 1741071 (miscellaneous
equipment).
(iii) IBM Credit Corporation, filed July 6, 1992, file number
972855. Certain leased computer equipment.
(iv) IBM Credit Corporation, filed November 24, 1992, file number
0988857. Certain leased computer equipment.
(v) Colonial Pacific Leasing, filed September 28, 1992, file
number 982477. Certain leased equipment.
(vi) ▇▇▇▇▇▇ Financial Corp., filed March 4, 1993, file number
1000393. Certain leased equipment.
(vii) European American Bank, filed November 26, 1993, file number
1036973. Miscellaneous leased computer equipment.
(viii) UJB Leasing Corporation, filed August 23, 1994, file number
1070220. Miscellaneous leased computer equipment.
(ix) UJB Leasing Corporation, filed September 8, 1994, file number
1574243. Miscellaneous leased equipment.
(x) Nationsbank of Florida, N.A. filed December 22, 1994, file
number 1593984. Blanket.
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(xi) UJB Leasing Corporation, filed January 23, 1995, file number
1600177. Miscellaneous Leased Equipment.
(xii) United Jersey Bank, filed January 25, 1995, file number
1600740. Leased equipment and related tangible and intangible
property.
(xiii) United Jersey Bank, filed January 25, 1995, file number
1600746. Leased equipment and related tangible and
intangible property.
(xiv) United Jersey Bank, filed January 25, 1995, file number
1600748. Leased equipment and related tangible and intangible
property.
(xv) UJB Leasing Corporation, filed March 7, 1995, file number
1608175. Miscellaneous equipment.
(xvi) AT&T Systems Leasing Corp., Inc., filed July 20, 1995, file
number 1633709. Miscellaneous leased computer and office
equipment.
(xvii) GE Capital filed August 17, 1995, file number 1639218. Leased
computer equipment.
(xviii) Hyster Credit Company, filed September 27, 1995, file number
1647676. Ford truck and miscellaneous equipment.
(xix) AT&T Systems Leasing Corp., Inc., filed January 19, 1996, file
number 1668254. Miscellaneous equipment.
(xx) AT&T Systems Leasing Corp., Inc., filed March 29, 1996, file
number 1683373. Miscellaneous equipment.
(xxi) AT&T Systems Leasing Corp., Inc., filed March 29, 1996, file
number 1683381. Miscellaneous equipment.
(xxii) USL Capital Corporation, filed September 5, 1996, file number
1717760. Miscellaneous machinery.
(xxiii) Bankers Leasing Association, Inc., filed December 20, 1996,
file number 1739286. Miscellaneous office equipment.
(xxiv) General Electric Capital Corporation, filed March 5, 1997,
file number 1754332. Leased aircraft.
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3. Florida
a. UCC - Secretary of State
(i) GE Capital Corporation, filed October 9, 1992, file number
92204637. Certain equipment.
(ii) United Jersey Bank, filed December 14, 1992, file number
92255761. Certain leased machining equipment.
(iii) United Jersey Bank, filed March 1, 1993, file number 93044459.
Certain leased computer equipment.
(iv) Bankers Leasing Association, Inc., filed January 15, 1993,
file number 93010622. Certain computer hardware and software.
(v) First Bank and Trust Company of Illinois, filed May 6, 1993,
file number 93095513. Certain computer hardware and software.
(Assignment of No. 93010622)
(vi) United Jersey Bank, filed March 4, 1993, file number 93047191.
Certain leased computer equipment and certain other tangible
and intangible property related thereto.
(vii) NationsBank Leasing Corporation, filed March 22, 1993, file
number 93060950. Certain leased machining equipment.
(viii) Equilease Systems Corp., filed March 25, 1993, file number
93063496. Certain leased computer equipment.
(ix) St. ▇▇▇▇▇ Leasing, filed May 3, 1993, file number 93091970.
Certain leased computer equipment and certain other tangible
and intangible property relaxed thereto,
(x) The Chase Manhattan Bank, filed November 4, 1993, file number
930227345, Blanket; Amendment filed January 31, 1996, file
number 960000020922 (Debtor address change); Partial Release
filed December 16, 1996, file number 960000262425
(miscellaneous equipment).
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(xi) EQ Financial Services Corporation, filed November 30, 1993,
file number 930244109. Miscellaneous leased equipment.
(xii) European American Bank, filed November 30, 1993, file number
930244111. Miscellaneous leased equipment.
(xiii) EQ Financial Services Corporation, filed March 15, 1994, file
number 94051606. Miscellaneous leased equipment.
(xiv) St. ▇▇▇▇▇ Leasing Ltd., filed August 23, 1994, file number
940171957. Miscellaneous leased equipment.
(xv) St. ▇▇▇▇▇ Leasing Ltd., filed September 6, 1994, file number
940180451. Miscellaneous leased equipment.
(xvi) St. ▇▇▇▇▇ Leasing Ltd., filed September 7, 1994, file number
940182527. Miscellaneous leased equipment.
(xvii) St. ▇▇▇▇▇ Leasing Ltd., filed December 2, 1994, file number
940242154. Miscellaneous leased equipment.
(xviii) St. ▇▇▇▇▇ Leasing Ltd., filed January 29, 1995, file number
95017299. Miscellaneous equipment and related tangible and
intangible property.
(xix) St. ▇▇▇▇▇ Leasing Ltd., filed January 26, 1995, file number
95017303, Miscellaneous equipment and related tangible and
intangible property.
(xx) NEC America, Inc., filed March 20, 1995, file number 95053838.
Miscellaneous telephone equipment.
(xxi) AT&T Systems Leasing Corporation Division, Inc., filed July
19, 1995, file number 950143452. Miscellaneous computer
equipment.
(xxii) ▇▇▇▇▇/Botle, Inc., filed October 3, 1995, file number
950219964. Ford truck.
(xxiii) NationsBank, N.A., filed January 26, 1996, file number
96018099. Blanket.
(xxiv) Chemical Leasing, filed September 26, 1996, file number
960201890. Miscellaneous office equipment.
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(xxv) Yale Financial Services, Inc., filed December 23, 1996, file
number 960266376. Miscellaneous equipment.
(xxvi) Yale Financial Services, Inc. filed February 24, 1997, file
number 97038608. Forklift and related equipment.
(xxvii) General Electric Capital Corporation filed March 5, 1997, file
number 97047206. Leased aircraft.
4. North Carolina
a. Other
(i) An outstanding mortgage on a residential property in
Pfafftown, North Carolina in favor of The ▇▇▇▇▇▇▇▇▇▇▇ Company
secures, as of the date hereof, $136,568 of
Indebtedness.
(ii) The Chase Manhattan Bank N.A. filed January 30, 1996, file
number 1304283, blanket.
(iii) CLG. Inc., filed May 1, 1996, file number 1335435,
miscellaneous computer equipment.
(iv) USL Capital Corporation, filed May 23, 1996, file number
1342441, miscellaneous leased equipment.
(v) NationsBank Leasing, filed December 20, 1996, file number
1409484, miscellaneous equipment.
(vi) Yale Financial Services Inc., filed December 23, 1996, file
number 1409894, miscellaneous equipment.
(vii) Yale Financial Services Inc., filed February 19, 1997, file
number 1429174, fork lift and rented equipment.
(viii) Pullman Bank and Trust Company, filed April 15, 1997, file
number 1450646, miscellaneous leased office equipment.
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5. Forsyth County, NC
(i) The Chase Manhattan Bank, filed January 29, 1996, file number
215975, miscellaneous leased equipment.
(ii) CLG, Inc., filed May 1, 1996, file number 217178,
miscellaneous leased equipment.
(iii) USL Capital Corporation, filed May 28, 1996, file number
217462, [ ]
(iv) USL Capital Corporation, filed September 10, 1996, file number
218787, miscellaneous leased equipment.
(v) Yale Financial Services, Inc., filed December 20, 1996, file
number 220219, miscellaneous equipment.
(vi) NationsBank Leasing Corporation, filed December 24, 1996, file
number 220297, miscellaneous leased equipment.
(vii) Yale Financial Services, Inc., filed February 19, 1997, file
number 220980, Forklift and related accessories.
(ix) US Technology Leasing Corporation, filed April 14, 1997, file
number 221618, miscellaneous leased equipment.
BE Avionics, Inc.
1. California
a. UCC - Secretary of State
(i) California City Bank, filed February 20, 1990, file number
90045391. Certain computer equipment.
(ii) AT&T Credit Corporation, filed September 17, 1990, file number
90231153. Certain leased equipment.
(iii) Pitney ▇▇▇▇▇ Credit Corporation, filed February 22, 1991, file
number 91037908. Certain leased copier equipment.
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115
(iv) Pitney ▇▇▇▇▇ Credit Corporation, filed June 21, 1991, file
number 91135535. Certain leased equipment.
(v) Leasametric Inc., filed May 18, 1992, file number 92111404.
Certain leased equipment.
(vi) Colonial Pacific Leasing, filed September 24, 1992, file
number 92208231. Certain leased equipment.
2. Massachusetts
a. UCC - Secretary of State
(i) The Chase Manhattan Bank, N.A. as Agent, filed March 3, 1992,
file number 077540. All personal property, whether tangible or
intangible.
Aircraft Products Company
1. Florida
a. UCC- Secretary of State
(i) Chrysler Capital Corporation, filed November 9, 1989, file
number 89297767. Certain leased computer equipment.
(ii) General Electric Capital Corporation, filed September 29,
1992, file number 92197513. Certain leased computer hardware
and software. (Assignment of No. 89297767)
(iii) Chrysler Capital Corporation, filed November 9, 1989, file
number 89297768. Certain leased computer hardware and
software.
(iv) General Electric Capital Corporation, filed September 25,
1992, file number 92194967. Certain leased equipment.
(Assignment of No. 89297768)
(v) Chrysler Capital Corporation, filed September 27, 1990, file
number 90245856. Certain leased equipment.
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(vi) Chrysler Capital Corporation, filed December 24, 1990, file
number 90315841. Certain leased equipment.
(vii) ▇▇▇▇▇▇-▇▇▇▇▇ Corporation, filed July 22, 1991, file number
91157029. Certain leased equipment.
(viii) Datamatic Leasing Inc., filed August 12, 1991, file number
91173649. Certain leased equipment.
(ix) GE Capital Corporation, filed October 8, 1992, file number
92204637. Certain leased machining equipment.
(x) Minolta Leasing Services, filed June 14, 1993, file number
93123779. Certain leased equipment.
PTC Aerospace Inc.
1. California
a. UCC - Secretary of State
(i) Chrysler Credit Corporation, filed January 9, 1990, file
number 90004136, certain leased computer equipment.
(ii) Pactel Finance, filed April 2, 1990, file number 90085088,
certain equipment.
(iii) ▇▇▇▇▇▇-▇▇▇▇▇ Corporation, filed March 20, 1991, file number
91057403, certain leased equipment.
(iv) LB Credit Corporation, filed September 11, 1992, file number
91057403, certain leased equipment. (Assignment of File No.
91057403)
(v) Yale Financial Services, Inc., filed November 3, 1992, file
number 92237178, certain leased transportation equipment.
(vi) Yale Financial Services, Inc., filed November 17, 1992, file
number 92247474, certain leased transportation equipment.
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(vii) 1st Source Bank, filed March 18, 1993, file number 93054019,
certain leased machining equipment.
(viii) 1st Source Bank, filed March 18, 1993, file number 93054020.
certain leased computer equipment.
(ix) Allied American Insurance Company, filed May 24, 1993, file
number 93099606, certain leased equipment.
(x) The CIT Group/Equipment Financing Inc., filed June 2, 1993,
file number 93105767, certain leased equipment.
(xi) 1st Source Bank, filed September 3, 1993, file number
93180960, certain leased equipment
2. Connecticut
a. UCC - Secretary of State
(i) ▇▇▇▇▇▇-▇▇▇▇▇ Corporation, filed June 30, 1992, file number
971989. Certain leased printer.
(ii) LB Credit Corporation, filed September 14, 1992, file number
980699. Certain leased printer. (Assignment of No. 971989)
(iii) United Financial Corporation, filed July 17, 1992, file number
974379. Certain equipment.
(iv) SNET Credit, Inc., filed May 18, 1992, file number 966514.
Certain equipment.
(v) SNET Credit, Inc., filed November 12, 1991, file number
945438. Certain leased equipment.
(vi) Colonial Pacific Leasing, filed March 18, 1991, file number
916823. Certain leased equipment.
(vii) Tenant Company, filed January 22, 1991, file number 909896.
Certain sweeper/scrubber.
(viii) Citicorp Dealer Finance, filed May 18, 1990, file number
877886. Forklift.
(ix) Bank One Leasing Corp., filed November 20, 1989, file number
853254. Certain leased copier equipment.
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(x) Chrysler Capital Corporation, filed December 27, 1990, file
number 905889. Certain leased machining and computer
equipment.
(xi) Chrysler Capital Corporation, filed January 25, 1991, file
number 908754. Certain leased equipment.
(xii) Chrysler Capital Corporation, filed March 28, 1991, file
number 916898. Certain manufacturing equipment.
(xiii) General Electric Capital Corporation, filed November 17, 1992,
file number 0988131. Certain leased equipment.
(xiv) XL/Datacomp, Inc., filed March 16, 1992, file number 959099.
Certain leased computer hardware and software.
(xv) Citicorp Leasing, Inc., filed April 22, 1993, file number
1006782. Certain leased computer hardware and software.
(xvi) R.A.S. Financial, Inc. filed November 20, 1992, file number
0988534. Certain leased computer equipment.
(xvii) First Source Bank, filed January 8, 1993, file number 0993996.
Certain leased computer equipment.
(xviii) 1st Source Bank, filed March 12, 1993, file number 1001480.
Certain leased machining equipment.
(xix) R.A.S. Financial, Inc., filed December 28, 1992, file number
0992519. Certain leased computer equipment.
(xx) First Source Bank, filed January 27, 1993, file number
0996132. Certain leased computer equipment.
(xxi) 1st Source Bank, filed March 12, 1993, file number 1001481.
Certain leased computer equipment.
(xxii) XL/Datacomp, Inc., filed March 17, 1993, file number 1002012.
Certain leased computer hardware and software.
(xxiii) Allied American Insurance Company, filed May 24, 1993, file
number 1013743. Certain leased manufacturing equipment.
(xxiv) The CIT Group/Equipment Financing, Inc., filed June 2, 1993,
file number 1015241. Certain leased machining equipment.
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(xxv) 1st Source Bank, filed August 19, 1993, file number 1025133.
Certain leased manufacturing equipment.
(xxvi) XL/Datacomp, Inc., filed October 18, 1991, file number 942433.
Certain leased computer hardware and software.
(xxvii) Citicorp Leasing, Inc., filed January 17, 1992, file number
952759. Certain leased computer hardware and software.
(xxviii) Chrysler Capital Corporation, filed January 10, 1990, file
number 859351. Certain leased computer hardware and software.
3. New Jersey
a. UCC - Secretary of State
(i) Chrysler Corporation, filed January 9, 1990, file number
1314179. Certain computer hardware and software.
(ii) General Electric Capital Corporation, filed December 2, 1992,
file number 1314179. Certain computer hardware and software.
(Assignment of No. 1314179)
Acurex Corporation
1. California
a. UCC - Secretary of State
(i) Foothill Bank, filed March 30, 1992, file number 92063114.
Certain leased equipment.
▇▇▇▇▇▇▇▇ Industries. The
1. California
a. UCC - Secretary of State
(i) Hewlett Packard Company, Finance and Remarketing Division,
filed February 14, 1989, file number 89032824. Certain leased
computer equipment.
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(ii) Hewlett Packard Company, filed September 11, 1989, file number
89240841. Certain leased computer equipment
(iii) Hewlett Packard Company, filed February 9, 1990, file number
89240841 (Amendment).
(iv) Leasefirst, filed June 19, 1993, file number 90153748. Certain
leased computer equipment.
(v) Hewlett Packard Company/Finance & Remarketing Division,
filed on March 11, 1991, file number 91053748. Certain
leased computer equipment.
(vi) Lease America Corporation, filed November 22, 1991, file
number 91250205. Certain leased copier equipment.
(vii) NEC America, Inc., filed January 31, 1992, file number
92020999. Certain leased telephone equipment
(viii) NEC America, Inc., filed April 27, 1992, file number 92083995.
Certain leased telephone equipment.
(ix) The Bank of California, N.A., filed August 30, 1992, file
number 93177146. Security interest in general intangibles to
secure a Letter of Credit to Self-Insurance Plans, State of
California, in the aggregate principal amount of $962,809.
(x) Hewlett Packard Company/Finance & Remarketing Division, filed
November 12, 1992, file number 92243227. Certain leased
computer equipment.
Flight Equipment and Engineering Limited
The Indebtedness of FEEL identified in Section 2 of Part A of this
Schedule I is cross-collateralized in the U.K. by the following:
1. A Debenture over the assets of FEEL on Barclays' standard form dated 19th
November 1982.
2. A charge over the leasehold, Nashleigh Works, Nashleigh Hill, Chesham, on
Barclays' standard form dated 11th May 1985.
3. A charge over the freehold Asheridge Road, Chesham, on Barclays' standard
form dated 7th July 1975.
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4. A charge over the freehold property on the Northwest side of Grovebury
Road, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, on Barclays' standard form dated 2nd March 1993.
5. A charge over the leasehold property, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, on Barclays' standard form dated 2nd March 1993.
6. A charge over the leasehold property lying on the East of the Grand Union
Canal, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on Barclays' standard form dated 3rd March 1993.
7. A charge over the Guardian Assurance Life Policy on the life of ▇▇▇▇
▇▇▇▇▇▇▇ on Barclays' standard form dated 24th September 1991.
8. A charge over the life policy on the life of ▇▇▇▇ ▇▇▇▇▇▇ to be charged on
Barclays' standard form.
9. A charge over the life policy on the life of ▇▇▇▇▇ ▇▇▇▇▇▇▇ to be charged
on Barclays' standard form.
10. The AFL guarantee referred to in Section 5 of Part A of this Schedule I.
11. A debenture over the assets of AFL on Barclays' standard form granted as
of March 1, 1993.
12. The Company's guarantee referred to in Section 4 of Part A of this
Schedule I.
13. A Letter of Set Off allowing Barclays' to combine any account, Sterling or
Currency dated 24th September 1991.
In addition, FEEL and AFL have capitalized lease obligations outstanding
for machinery and equipment in the aggregate amount of $945,000.
Royal Inventum B.V.
The Indebtedness of Royal Inventum B.V. identified in Section 6 of Part A
of this Schedule I is secured by a charge over the assets of Royal Inventum B.V.
by ING Bank.
BE Aerospace (UK) Limited
1. Guarantee (Unlimited) on Barclays' standard form given by Aircraft
Furnishing Limited (now known as Fort Hill Aircraft Limited) for the
benefit of Flight Equipment and Engineering Limited (now BE Aerospace (UK)
Limited). [No date, but believed to be dated 24 February 1993. We believe
that it was given to guarantee a medium term loan agreement dated 28
February 1993.]
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2. Guarantee (Foreign) on Barclays' standard form given by BE Aerospace, Inc.
for (pound)2.75 million for the benefit of BE Aerospace (UK) Limited,
dated 24 February 1993. It appears to cover a medium term loan agreement
dated 28 February 1993.
3. Legal charge over ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, dated 11 May 1995.
In addition, there may be other liens securing indebtedness of amounts
less than $1,000,000.
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SCHEDULE II
Hazardous Materials
1. Litchfield, CT, facility historically did not have state or federal clean
Water Act permits authorizing discharge of wastewater to the Bantam River.
The discharge has been substantially eliminated as of this date.
2. Litchfield, CT, facility may not have required air permits for air
emissions associated with paint booths and adhesive operations. A request
for determination of the need for permits has been made to the state
officials.
3. In 1992, the Garden Grove, CA, facility paid a $45,000 penalty for
violation of air pollution regulations.
4. The Route 209 facility of Pullman in Bantam, CT, is an interim status
facility under RCRA. There appears to be documentary evidence that waste
from the Route 209 facility may have been transshipped through the
Litchfield, CT, facility, raising potential issues of RCRA compliance
relating to the Litchfield, CT facility.
5. Asbestos-containing materials may be present in the Litchfield, CT,
facility. A preliminary investigation has been completed and does not
indicate any large-scale concerns.
6. Hazardous Materials have been detected in the soils and groundwater at the
Litchfield, CT facility. A groundwater assessment is ongoing under the
supervision of the CTDEP. The latest groundwater monitoring reports show
that contaminant levels in groundwater meet applicable standards.
7. Certain sites to which the Company and its Subsidiaries may have sent
waste which are listed on CERCLIS, or any similar state or local list or
are under investigation by governmental agencies are set forth in Exhibits
3-2, 3-3, 3-4 and 3-5 of the ICF ▇▇▇▇▇▇, Engineers report entitled
"Environmental Assessment of PTC Aerospace and Aircraft Products Companies
Final Report" dated February 14, 1992 and, with respect to the ▇▇▇▇▇
Aerospace facility, in a report entitled "Phase I Environmental Due
Diligence Examination of the ▇▇▇▇▇ Aerospace Corporation, Winston-Salem,
North Carolina, dated January 1994, prepared by ENSR Consulting and
Engineering".
8. The Litchfield, CT, facility has two utility-owned transformers, one
contains less than 50 ppm PCBs. The other contains 63 ppm PCBs.
124
9. Hazardous waste from the Altamonte Springs, Florida facility was sent to
the Chemical Conservation Corporation landfill in Valdosta, Georgia which
is on the CERCLIS list.
10. Hazardous waste from the Altamonte Springs, Florida site may have been
disposed of at the Seaboard Chemical site in North Carolina, which is
being remediated under consent order with the State of North Carolina.
11. Certain ▇▇▇▇▇ upgradient of the Anaheim, California site have been
impacted by dichlorodifluoromethane (refrigerant) and trichloroethane
(degreaser), both of which are believed to have been used by the
predecessor of Acurex.
12. At a facility in Santa Ana, California which EECO Incorporated, a former
owner of part of the BE Avionics business, owned and later leased, there
may have been some seepage into the soil of toxic materials involved in
metal plating, including arsenic. The Company purchased the BE Avionics
business from EECO in a 1989 asset acquisition, and EECO has subsequently
filed for bankruptcy protection and is no longer in operation. The BE
Avionics business was never conducted in the affected facility.
13. Certain of the ovens manufactured by ▇▇▇▇▇▇▇▇ prior to 1981 contain
asbestos.
14. Hazardous waste originating from the ▇▇▇▇▇ Aerospace, Winston-Salem, North
Carolina facility may have been shipped to the Seaboard Chemical site in
North Carolina which is listed on CERCLIS. In 1991, a letter was received
from the North Carolina Department of Environmental Health and National
Resources indicating that ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Company was a de minimis
contributor of waste to that site. By letter dated February 26, 1992 ▇▇▇▇▇
Aerospace Corporation notified ▇▇▇▇▇▇▇▇▇ Industries, from whom it had
acquired the Winston-Salem facility, that ▇▇▇▇▇▇▇▇▇ Industries was
responsible for that liability.
15. In May, 1994, the Company received notice that is was considered a de
minimis PRP with respect to the Frontier Chemical Site in Niagara Fails,
NY relating to a shipment of waste from the Litchfield, CT facility in
1992. The Company joined a group of de minimis PRPs that performed certain
actions under an Administrative Consent Order with EPA. The Company
believes that it has fully settled Its liability with respect to the site
through payment to the group.
16. The roof at the Chesham, UK facility may contain asbestos cement-root
sheeting.
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125
Compliance Issues
PTC Aerospace, Litchfield, CT
(1) Facility is listed on the CERCLIS Data Base.
(2) Pursuant to a Notice of Violation issued by the Connecticut DEP in March,
1992, the Facility has implemented a RCRA closure plan and has upgraded
record keeping and training functions.
PTC Aerospace Garden Grove, CA
(1) Oily compressor blowdown is discharged directly to the ground.
(2) Facility does not comply with state RCRA regulations governing generators
of less than 1,000 kilograms of hazardous waste per month.
(3) Facility does not comply with state OSHA requirements governing a written
respiratory protection program, personnel training and recordkeeping,
personnel medical monitoring, and other worker safety and health
requirements.
(4) Facility may require NPDES stormwater discharge permit.
Aircraft Products Company, Delray Beach, FL
(1) Facility has not applied for an air emissions permit or conditional
exemption from the State for its air emission sources.
(2) Paint booth filters, empty drums, and solvent-contaminated rags are
disposed of as nonhazardous solid wastes.
(3) Not all hazardous waste drums were properly labeled.
(4) Unused chemicals are stored onsite that are no longer used in the
production process and should be disposed of as hazardous waste.
(5) Plant does not have a written respiratory protection program or a hearing
conservation program, although such protection is provided to employees.
(6) Plant may require an NPDES stormwater discharge permit.
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Aircraft Products Company, Jacksonville, FL
(1) Facility has no data to indicate that its nonhazardous solid wastes, which
include solvent-contaminated rags, are properly disposed of as
nonhazardous waste.
(2) The facility qualifies currently as a large quantity generator of
regulated hazardous wastes but does not comply with the RCRA requirements
applicable to these generators or to the storage of wastes onsite for less
than 90 days.
(3) Unused chemicals are stored onsite that are no longer used in the
production process and should be disposed of as nonhazardous waste.
(4) Areas designed for hazardous waste drum storage are not posted as such or
signs are obscured.
(5) Plant personnel with responsibility to handle hazardous wastes have not
received the requisite health and safety training.
(6) Containers of hazardous materials are not consistently labeled as to the
hazards they may present to worker health and safety.
(7) Plant does not have a written respiratory protection program nor are
employees fit tested to wear respirators as required by OSHA.
(8) Plant may require an NPDES stormwater discharge permit.
▇▇▇▇▇▇▇▇ Industries, Inc., Van Nuys, CA
(1) Several facilities to which hazardous waste may have been shipped for
disposal are on the CERCLIS data base, as noted in Table 1 of the June
4, 1993 Draft Phase I Environmental Site Assessment.
(2) There may be a compliance issue concerning the mixing of hazardous and
non-hazardous wastes prior to 1984.
(3) The facility has had historical problems meeting effluent standards for
metal finishing. Wastewater is treated in an on-site clarifier prior to
discharge to the municipal sewer.
(4) ▇▇▇▇▇▇▇▇ received a Notice to Comply dated July 21, 1993 from the South
Coast Air Quality Management District requiring ▇▇▇▇▇▇▇▇ to (i) keep more
detailed usage records as required by Rule 109, including all "VOC" and
vapor pressure information,
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(ii) use only HLVP or 65% efficient spray equipment, (iii) use only
closed containers for all solvents, and (iv) use only Rule 1171 and 1124
compliance cleaning solvents.
Status of Mountain View, CA Property
The Prudential Insurance Company of America ("Prudential") is the owner of
property known as ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇ ▇), ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the
"Property"). Acurex Corporation (Acurex) owned the Property in the early 1970s
and then entered into a sale-leaseback arrangement with Prudential in connection
with the Property. The Property itself sits on part of a very large
contamination plume said to result from discharges into the soil and groundwater
from a nearby Hewlett Packard manufacturing facility. As of the date hereof, the
Company believes that the municipal authorities in Mountain View do not intend
to commence an environmental clean-up in connection with the plume and do not
intend to permit any owner of property on or contiguous with the plume to
commence a clean-up of such owner's property.
In 1992, pursuant to an Amended and Restated Agreement and Plan of Merger
(the "Merger Agreement") among Acurex, Xeruca, Inc. and others, the lease was
assigned front Acurex to Xeruca. The Merger Agreement included an indemnity from
Xeruca to Acurex for, among other things, those liabilities associated with the
Property. In connection with the expiration of the lease for the Property on
July 13, 1993, Prudential requested that Acurex execute an indemnification
agreement whereby Xeruca would agree to clean-up the Property (if and when
permitted by the municipal authorities) and provide a general indemnity for
matters related to the clean-up while Acurex would agree to guarantee Xeruca's
performance and indemnify Prudential for Xeruca's failure to perform its
obligations. Acurex refused to enter into this agreement, and Prudential
threatened to ▇▇▇ Acurex to compel it to acknowledge such alleged
indemnification obligations.
This dispute between Acurex and Prudential was resolved by an Agreement
made as of August 27, 1993 (the "Settlement Agreement") among Prudential, Xeruca
and Acurex. Pursuant to the Settlement Agreement, Xeruca agreed to indemnify
Prudential with respect to environmental claims related to the Property. In
addition, Acurex assigned to Prudential the benefit of the indemnification
provisions from Xeruca under the Merger Agreement with respect to environmental
claims related to the Property. As a result of the Settlement Agreement, Acurex
is now a co-beneficiary with Prudential of Xeruca's Indemnification obligations
and Prudential has released and forever discharged Acurex from any and all
claims that Acurex is obligated to sign an indemnification agreement with
Prudential.
No lawsuit is currently pending or threatened against Acurex in connection
with the Property.
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128
▇▇▇▇▇ Aerospace - Winston-Salem, NC
Contaminants have been detected in the soil and groundwater at the former
▇▇▇▇▇-Aerospace facility at levels that may require remediation under the
regulations of the North Carolina Department of Environmental Health and Natural
Resources. Initial conditions at the site at the time of purchase are described
in a report entitled "Site Characterization Report" dated January 19, 1996,
prepared by Groundwater Technology. Further site assessment work is being
conducted by the Company that includes groundwater and soils testing. The
Company has informed the Seller of the facility, Eagle Industries, that the
environmental remedial costs are subject to the indemnification claims of the
purchase contract. Certain other compliance issues at the facility are
identified in a report entitled "Environmental Survey and Compliance
Evaluation," prepared by Environmental Quality Management, dated February
21, 1996.
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129
SCHEDULE III
Subsidiaries and Investments
[See Sections 7.17 and 8.08(a)]
Part A - Subsidiaries
Jurisdiction
of Percentage
Subsidiary Organization Owners of Ownership
---------- ------------ ------ ------------
BE Aerospace Barbados BEA 100%
International, Ltd.
BE Aerospace (UK) England BEA 100%
Limited ("BEA-UK")
Flight Equipment and England BEA-UK 100%
Engineering Limited
BE Aerospace England BEA-UK 100%
(Services), Limited
Aircraft Furnishing England BEA-UK 99.00%
Limited ("AFL") 1.00%
Fort Hill Aircraft Northern AFL 100%
Limited Ireland
AFI Holdings Northern AFL 100%
Limited Ireland
BE Aerospace France BEA 98.00%
(France) S.A.R.L. K.A.D. 1.00%
Companies, 1.00%
Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
(director)
BE Aerospace Delaware BEA 100%
(U.S.A.), Inc.
BE Aerospace Netherlands BEA 90%
(Netherlands) B.V. BEA (U.S.A.) 10%
("▇▇▇-▇▇▇▇")
Royal Inventum B.V. Netherlands ▇▇▇-▇▇▇▇ 96.60%*
Tepaco Properties B.V. Netherlands ▇▇▇-▇▇▇▇ 100%
Acurex Corporation Delaware BEA 100%
Schedule III to Credit Agreement
▇▇▇
-▇-
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ BEA 100%
Inc.
----------
* The balance of these shares were lost prior to the sale of the shares of
this entity to BEA.
Schedule III to Credit Agreement
131
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Part B - Investments
In addition to the Investments set forth in Part A above, as of the
date hereof the Company has the following outstanding Investments:
a. an Investment in a Middle East sales office in an amount not to
exceed $200,000;
b. an Investment in a residential property in San Clemente, California
in an amount of approximately $600,000; and
c. Money Market Funds in the amount, as of May 23, 1997, of
approximately $35M.
Finally, each of the matters described in Items 3, 5, 9 and 10 of
Part A of Schedule I constitutes an Investment in or by FEEL, AFL and the
Company, as the case may be.
Schedule III to Credit Agreement
132
SCHEDULE IV
Approvals and Compliance
None, except compliance with certain Environmental Laws disclosed in
the materials set forth in Schedule II hereto.
Schedule IV to Credit Agreement
133
SCHEDULE V
Existing Letters of Credit
Letter of Credit No. Amount Outstanding Expiry Date
-------------------- ------------------ -----------
P-259468 636,380.00 5/29/97
P-361496 25,509.00 5/31/97
P-258984 534,000.00 12/11/97
P-754546 800,000.00 1/10/98
P-259114 1,400,000.00 1/31/98
P-751178 307,817.00 2/28/98
P-754750 505,000.00 3/16/98
P-753306 313,719.00 5/1/98
--------------
Total Letters of Credit
Outstanding $4,522,425.00
Schedule V to Credit Agreement
134
SCHEDULE VI
Taxes
None.
Schedule VI to Credit Agreement
135
SCHEDULE VII
Transactions with Affiliates
Under a Supply Agreement dated April 17, 1990 with Applied Extrusion
Technologies, Inc., a Delaware corporation ("AET"), the Company purchases from
AET its requirements of injection-molded plastic parts for use in the
manufacture of passenger control units and other products for installation in
commercial aircraft for the period ending March 31, 1998. Under that agreement,
AET has agreed to use its best efforts at all times to maintain available and in
good working order a sufficient number and variety of injection molding machines
to satisfy the Company's orders as received and to use its best efforts to
initiate production within three days of receipt of an order or, in emergency
situations, on the date on which the order is received. The price to be paid by
the Company to AET for products purchased under the Supply Agreement is an
amount which results in a 33-1/3% gross margin to AET, after including in AET's
standard cost for such products, all direct and indirect costs of labor,
materials, equipment and overhead. Purchases by the Company under this agreement
for the fiscal year ended on February 22, 1997 were approximately $1,642,000.
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇ is a director and significant stockholder of AET and serves
as its Chairman and Chief Executive Officer. Messrs. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, directors of BE Aerospace, Inc. are also directors of AET.
Schedule VII to Credit Agreement
136
CONFORMED COPY
EXHIBIT A-1
REVOLVING CREDIT SECURITY AGREEMENT
REVOLVING CREDIT SECURITY AGREEMENT dated as of October 29, 1993
between BE AEROSPACE, INC., a corporation duly organized and validly existing
under the laws of Delaware (the "Company"); and THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), as agent for certain lenders or other financial
institutions or entities party, as lenders, to the Credit Agreement referred to
below (in such capacity, together with its successors in such capacity, the
"Agent").
The Company, certain lenders and the Agent are parties to a Credit
Agreement dated as of October 29, 1993 (as modified and supplemented and in
effect from time to time, the "Credit Agreement"), providing, subject to the
terms and conditions thereof, for extensions of credit (by making of loans and
issuing letters of credit) to be made by said lenders to the Company in an
aggregate principal or face amount not exceeding $85,000,000.
To induce said lenders to enter into the Credit Agreement and to
extend credit thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company has agreed
to pledge and grant a security interest in the Revolving Credit Collateral (as
hereinafter defined) as security for the Revolving Credit Secured Obligations
(as so defined). Accordingly, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are
used herein as defined therein. In addition, as used herein:
"Accounts" shall have the meaning ascribed thereto in Section 3(d)
hereof.
"Collateral Account" shall have the meaning ascribed thereto in
Section 4.01 hereof.
"Copyright Collateral" shall mean all Copyrights, whether now owned
or hereafter acquired by the Company, including each Copyright identified
in Annex 2 hereto.
"Copyrights" shall mean all copyrights, copyright registrations and
applications for copyright registrations, including, without limitation,
all renewals and extensions thereof, the right to recover for all past,
present and future infringements thereof, and all other rights of any kind
whatsoever accruing thereunder or pertaining thereto.
Revolving Credit Security Agreement
137
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"Documents" shall have the meaning ascribed thereto in Section 3(j)
hereof.
"Equipment" shall have the meaning ascribed thereto in Section 3(h)
hereof.
"Instruments" shall have the meaning ascribed thereto in Section
3(e) hereof.
"Intellectual Property" shall mean all Copyright Collateral, all
Patent Collateral and all Trademark Collateral, together with (a) all
inventions, processes, production methods, proprietary information,
know-how and trade secrets; (b) all licenses or user or other agreements
granted to the Company with respect to any of the foregoing, in each case
whether now or hereafter owned or used including, without limitation, the
licenses or other agreements with respect to the Copyright Collateral, the
Patent Collateral or the Trademark Collateral, listed in Annex 5 hereto;
(c) all information, customer lists, identification of suppliers, data,
plans, blueprints, specifications, designs, drawings, recorded knowledge,
surveys, engineering reports, test reports, manuals, materials standards,
processing standards, performance standards, catalogs, computer and
automatic machinery software and programs; (d) all field repair data,
sales data and other information relating to sales or service of products
now or hereafter manufactured; (e) all accounting information and all
media in which or on which any information or knowledge or data or records
may be recorded or stored and all computer programs used for the
compilation or printout of such information, knowledge, records or data;
(f) all licenses, consents, permits, variances, certifications and
approvals of governmental agencies now or hereafter held by the Company;
and (g) all causes of action, claims and warranties now or hereafter owned
or acquired by the Company in respect of any of the items listed above.
"Inventory" shall have the meaning ascribed thereto in Section 3(f)
hereof.
"Issuers" shall mean, collectively, (a) the respective corporations
identified on Annex 1 hereto under the caption "Issuer" and (b) to the
extent not otherwise identified on Annex 1 hereto, each other Subsidiary
of the Company.
"Motor Vehicles" shall mean motor vehicles, tractors, trailers and
other like property, whether or not the title thereto is governed by a
certificate of title or ownership.
Revolving Credit Security Agreement
138
- 3 -
"Patent Collateral" shall mean all Patents, whether now owned or
hereafter acquired by the Company, including each Patent identified in
Annex 3 hereto.
"Patents" shall mean all patents and patent applications, including,
without limitation, the inventions and improvements described and claimed
therein together with the reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof, all income, royalties,
damages and payments now or hereafter due and/or payable under and with
respect thereto, including, without limitation, damages and payments for
past or future infringements thereof, the right to ▇▇▇ for past, present
and future infringements thereof, and all rights corresponding thereto
throughout the world.
"Pledged Stock" shall have the meaning ascribed thereto in Section
3(a) hereof.
"Revolving Credit Collateral" shall have the meaning ascribed
thereto in Section 3 hereof.
"Revolving Credit Secured Obligations" shall mean, collectively, (a)
the principal of and interest on the Revolving Credit Loans made by the
Revolving Credit Lenders to, and the Revolving Credit Note(s) held by each
Revolving Credit Lender of, the Company and all other amounts from time to
time owing to the Revolving Credit Lenders or the Agent by the Company
under the Basic Documents including, without limitation, all Reimbursement
Obligations and interest thereon and (b) all obligations of the Company to
the Revolving Credit Lenders and the Agent hereunder.
"Stock Collateral" shall mean, collectively, the Revolving Credit
Collateral described in clauses (a) through (c) of Section 3 hereof and
the proceeds of and to any such property and, to the extent related to any
such property or such proceeds, all books, correspondence, credit files,
records, invoices and other papers.
"Term Loan Collateral" shall have the meaning assigned to such term
in the Term Loan Security Agreement.
"Trademark Collateral" shall mean all Trademarks, whether now owned
or hereafter acquired by the Company, including each Trademark identified
in Annex 4 hereto. Notwithstanding the foregoing, the Trademark Collateral
does not and shall not include any Trademark which would be rendered
invalid, abandoned, void or unenforceable by reason of its being included
as part of the Trademark Collateral.
Revolving Credit Security Agreement
139
- 4 -
"Trademarks" shall mean all trade names, trademarks and service
marks, logos, trademark and service ▇▇▇▇ registrations, and applications
for trademark and service ▇▇▇▇ registrations, including, without
limitation, all renewals of trademark and service ▇▇▇▇ registrations, all
rights corresponding thereto throughout the world, the right to recover
for all past, present and future infringements thereof, all other rights
of any kind whatsoever accruing thereunder or pertaining thereto,
together, in each case, with the product lines and goodwill of the
business connected with the use of, and symbolized by, each such trade
name, trademark and service ▇▇▇▇.
"Uniform Commercial Code" shall mean the Uniform Commercial Code as
in effect from time to time in the State of New York.
Section 2. Representations and Warranties. The Company represents
and warrants to the Revolving Credit Lenders and the Agent that:
(a) The Company is the sole beneficial owner of the Revolving Credit
Collateral and no Lien exists or will exist upon the Revolving Credit
Collateral at any time (and no right or option to acquire the same exists
in favor of any other Person), except for Liens permitted under Section
8.06 of the Credit Agreement and except for the pledge and security
interest in favor of the Agent for the benefit of the Revolving Credit
Lenders created or provided for herein, which pledge and security interest
constitute a first priority perfected pledge and security interest in and
to all of the Revolving Credit Collateral (other than Intellectual
Property registered or otherwise located outside of the United States of
America).
(b) The Pledged Stock represented by the certificates identified in
Annex 1 hereto is, and all other Pledged Stock in which the Company shall
hereafter grant a security interest pursuant to Section 3 hereof will be,
duly authorized, validly existing, fully paid and non-assessable and none
of such Pledged Stock is or will be subject to any contractual
restriction, or any restriction under the charter or by-laws of the
respective Issuer, upon the transfer of such Pledged Stock (except for any
such restriction contained herein or in the Credit Agreement).
(c) The Pledged Stock represented by the certificates identified in
Annex 1 hereto constitutes at least 65% of the issued and outstanding
shares of capital stock of any class
Revolving Credit Security Agreement
140
- 5 -
of the Issuers beneficially owned by the Company on the date hereof
(whether or not registered in the name of the Company) and said Annex 1
correctly identifies, as at the date hereof, the respective Issuers of
such Pledged Stock, the respective class and par value of the shares
comprising such Pledged Stock and the respective number of shares (and
registered owners thereof) represented by each such certificate.
(d) Annex 2, 3 and 4 hereto set forth a complete and correct list of
all Copyrights, Patents and Trademarks owned by the Company on the date
hereof; except pursuant to licenses and other user agreements entered into
by the Company in the ordinary course of business, which are listed in
Annex 5 hereto, the Company owns and possesses the right to use, and has
done nothing to authorize or enable any other Person to use, any
Copyright, Patent or Trademark listed in said Annex 2, 3 and 4, and all
registrations listed in said Annex 2, 3 and 4 are valid and in full force
and effect; except as may be set forth in said Annex 5, the owns and
possesses the right to use all Copyrights, Patents and Trademarks.
(e) Annex 5 hereto sets forth a complete and correct list of all
licenses and other user agreements included in the Intellectual Property
on the date hereof.
(f) To the Company's knowledge, (i) except as set forth in Annex 5
hereto, there is no violation by others of any right of the Company with
respect to any Copyright, Patent or Trademark listed in ▇▇▇▇▇ ▇, ▇ ▇▇▇ ▇
▇▇▇▇▇▇ ▇▇▇ (▇▇) the Company is not infringing in any respect upon any
Copyright, Patent or Trademark of any other Person; and no proceedings
have been instituted or are pending against the Company or, to the
Company's knowledge, threatened, and no claim against the Company has been
received by the Company, alleging any such violation, except as may be set
forth in said Annex 5.
(g) The Company does not own any Trademarks registered in the United
States of America to which the last sentence of the definition of
Trademark Collateral applies.
(h) Any goods now or hereafter produced by the Company or any of its
Subsidiaries included in the Revolving Credit Collateral have been and
will be produced in compliance with the requirements of the Fair Labor
Standards Act, as amended.
Revolving Credit Security Agreement
141
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Section 3. Revolving Credit Collateral. As collateral security for
the prompt payment in full when due (whether at stated maturity, by acceleration
or otherwise) of the Revolving Credit Secured Obligations, the Company hereby
pledges and grants to the Agent, for the benefit of the Revolving Credit Lenders
as hereinafter provided, a security interest in all of the Company's right,
title and interest in the following property, whether now owned by the Company
or hereafter acquired and whether now existing or hereafter coming into
existence (all being collectively referred to herein as "Revolving Credit
Collateral"):
(a) the shares of capital stock of the Issuers represented by the
certificates identified in Annex 1 hereto and, subject to the limitation
set forth in Section 5.04(a) (1) hereof, all other shares of capital stock
of whatever class of the Issuers, now or hereafter owned by the Company,
in each case together with the certificates evidencing the same
(collectively, the "Pledged Stock");
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Stock, or representing a distribution or
return of capital upon or in respect of the Pledged Stock, or resulting
from a split-up, revision, reclassification or other like change of the
Pledged Stock or otherwise received in exchange therefor, and any
subscription warrants, rights or options issued to the holders of, or
otherwise in respect of, the Pledged Stock;
(c) without affecting the obligations of the Company under any
provision prohibiting such action hereunder or under the Credit Agreement,
in the event of any consolidation or merger in which the Issuer is not the
surviving corporation, all shares of each class of the capital stock of
the successor corporation formed by or resulting from such consolidation
or merger (the Pledged Stock, together with all other certificates,
shares, securities, properties or moneys as may from time to time be
pledged hereunder pursuant to clause (a) or (b) above and this clause (c)
being herein collectively called the "Stock Collateral");
(d) all accounts and general intangibles (each as defined in the
Uniform Commercial Code) of the Company constituting any right to the
payment of money, including (but not limited to) all moneys due and to
become due to the Company in respect of any loans or advances or for
Inventory or Equipment or other goods sold or leased or for services
rendered, all moneys due and to become due to the Company
Revolving Credit Security Agreement
142
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under any guarantee (not including a letter of credit) of the purchase
price of Inventory or Equipment sold by the Company and all tax refunds
(such accounts, general intangibles and moneys due and to become due being
herein called collectively "Accounts");
(e) all instruments, chattel paper or letters of credit (each as
defined in the Uniform Commercial Code) of the Company evidencing,
representing, arising from or existing in respect of, relating to,
securing or otherwise supporting the payment of, any of the Accounts,
including (but not limited to) promissory notes, drafts, bills of exchange
and trade acceptances (herein collectively called "Instruments");
(f) all inventory (as defined in the Uniform Commercial Code) of the
Company, including Motor Vehicles held by the Company for lease (including
lease to Subsidiaries of the Company), fuel, tires and other spare parts,
all goods obtained by the Company in exchange for such inventory, and any
products made or processed from such inventory including all substances,
if any, commingled therewith or added thereto (herein collectively called
"Inventory");
(g) all Intellectual Property and all other accounts or general
intangibles of the Company not constituting Intellectual Property or
Accounts;
(h) all equipment (as defined in the Uniform Commercial Code) of the
Company, including all Motor Vehicles (herein collectively called
"Equipment");
(i) each contract and other agreement of the Company relating to the
sale or other disposition of Inventory or Equipment;
(j) all documents of title (as defined in the Uniform Commercial
Code) or other receipts of the Company covering, evidencing or
representing Inventory or Equipment (herein collectively called
"Documents");
(k) all rights, claims and benefits of the Company against any
Person arising out of, relating to or in connection with Inventory or
Equipment purchased by the Company, including, without limitation, any
such rights, claims or benefits against any Person storing or transporting
such Inventory or Equipment;
Revolving Credit Security Agreement
143
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(1) the balance from time to time in the Collateral Account;
(m) all other tangible and intangible property of the Company (other
than Term Loan Collateral), including, without limitation, all proceeds,
products, offspring, accessions, rents, profits, income, benefits,
substitutions and replacements of and to any of the property of the
Company described in the preceding clauses of this Section 3 (including,
without limitation, any proceeds of insurance thereon) and, to the extent
related to any property described in said clauses or such proceeds,
products and accessions, all books, correspondence, credit files, records,
invoices and other papers, including without limitation all tapes, cards,
computer runs and other papers and documents in the possession or under
the control of the Company or any computer bureau or service company from
time to time acting for the Company.
Section 4. Cash Proceeds of Revolving Credit Collateral.
4.01 Collateral Account. The Agent may establish with Chase a cash
collateral account (the "Collateral Account") in the name and under the control
of the Agent into which there shall be deposited from time to time the cash
proceeds of any of the Revolving Credit Collateral (including proceeds of
insurance thereon) required to be delivered to the Agent pursuant hereto and
into which the Company may from time to time deposit any additional amounts
which it wishes to pledge to the Agent for the benefit of the Revolving Credit
Lenders as additional collateral security hereunder. The balance from time to
time in the Collateral Account shall constitute part of the Revolving Credit
Collateral hereunder and shall not constitute payment of the Revolving Credit
Secured Obligations until applied as hereinafter provided. Except as expressly
provided in the next sentence, the Agent shall remit the collected balance
outstanding to the credit of the Collateral Account to or upon the order of the
Company as the Company shall from time to time instruct; provided that the Net
Available Proceeds from Dispositions deposited in the Collateral Account (but
not the investment earnings thereof) shall remain in the Collateral Account
until withdrawn as permitted or required by Section 2.10(c) of the Credit
Agreement. However, at any time following the occurrence and during the
continuance of an Event of Default, the Agent may (and, if instructed by the
Revolving Credit Lenders as specified in Section 10.03 of the Credit Agreement,
shall) in its (or their) discretion apply or cause to be applied (subject to
collection) the balance from time to time outstanding to the credit of the
Revolving Credit Security Agreement
144
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Collateral Account to the payment of the Revolving Credit Secured Obligations in
the manner specified in Section 5.09 hereof. The balance from time to time in
the Collateral Account shall be subject to withdrawal only as provided herein
and in Section 2.10(c) of the Credit Agreement.
4.02 Proceeds of Accounts. At any time after the occurrence and
during the continuance of an Event of Default, the Company shall, upon the
request of the Agent, instruct all account debtors and other Persons obligated
in respect of all Accounts to make all payments in respect of the Accounts
either (a) directly to the Agent (by instructing that such payments be remitted
to a post office box which shall be in the name and under the control of the
Agent) or (b) to one or more other banks in the United States of America (by
instructing that such payments be remitted to a post office box which shall be
in the name and under the control of the Agent) under arrangements, in form and
substance satisfactory to the Agent pursuant to which the Company shall have
irrevocably instructed such other bank (and such other bank shall have agreed)
to remit all proceeds of such payments directly to the Agent for deposit into
the Collateral Account. All payments made to the Agent, as provided in the
preceding sentence, shall be immediately deposited in the Collateral Account. In
addition to the foregoing, the Company agrees that, at any time after the
occurrence and during the continuance of an Event of Default, if the proceeds of
any Revolving Credit Collateral hereunder (including the payments made in
respect of Accounts) shall be received by it, the Company shall as promptly as
possible deposit such proceeds into the Collateral Account. Until so deposited,
all such proceeds shall be held in trust by the Company for and as the property
of the Agent and shall not be commingled with any other funds or property of the
Company.
4.03 Investment of Balance in Collateral Account. Amounts on deposit
in the Collateral Account shall be invested from time to time in such Permitted
Investments as the Company (or, after the occurrence and during the continuance
of a Default, the Agent) shall determine, which Permitted Investments shall be
held in the name and be under the control of the Agent, provided that (i) at any
time after the occurrence and during the continuance of an Event of Default, the
Agent may (and, if instructed by the Revolving Credit Lenders as specified in
Section 10.03 of the Credit Agreement, shall) in its (or their) discretion at
any time and from time to time elect to liquidate any such Permitted Investments
and to apply or cause to be applied the proceeds thereof to the payment of the
Revolving Credit Secured Obligations in the manner specified in Section 5.09
hereof and (ii) if requested by the Company, such Permitted Investments may be
held in the name and under the
Revolving Credit Security Agreement
145
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control of one or more of the Revolving Credit Lenders (and in that connection
each Revolving Credit Lender, pursuant to Section 10.10 of the Credit Agreement,
has agreed that such Permitted Investments shall be held by such Revolving
Credit Lender as a collateral sub-agent for the Agent hereunder).
4.04 Cover for Letter of Credit Liabilities. Amounts deposited into
the Collateral Account as cover for Letter of Credit Liabilities under the
Credit Agreement pursuant to Section 2.10(f) or Section 9 thereof shall be held
by the Agent in a separate sub-account (designated "Letter of Credit Liabilities
Sub-Account") and all amounts held in such sub-account shall constitute
collateral security first for the Letter of Credit Liabilities outstanding from
time to time and second as collateral security for the other Revolving Credit
Secured Obligations hereunder.
Section 5. Further Assurances; Remedies. In furtherance of the grant
of the pledge and security interest pursuant to Section 3 hereof, the Company
hereby agrees with each Revolving Credit Lender and the Agent as follows:
5.01 Delivery and Other Perfection. The Company shall:
(a) subject to Section 5.04(a)(1) hereof, if any of the
above-described shares, securities, moneys or property required to be
pledged by the Company under clauses (a), (b) and (c) of Section 3 hereof
are received by the Company, forthwith either (x) transfer and deliver to
the Agent such shares or securities so received by the Company (together
with the certificates for any such shares and securities duly endorsed in
blank or accompanied by undated stock powers duly executed in blank), all
of which thereafter shall be held by the Agent, pursuant to the terms of
this Agreement, as part of the Revolving Credit Collateral or (y) take
such other action as the Agent shall deem necessary or appropriate to duly
record the Lien created hereunder in such shares, securities, moneys or
property in said clauses (a), (b) and (c);
(b) deliver and pledge to the Agent any and all Instruments,
endorsed and/or accompanied by such instruments of assignment and transfer
in such form and substance as the Agent may request; provided, that so
long as no Default shall have occurred and be continuing, the Company may
retain for collection in the ordinary course any Instruments received by
the Company in the ordinary course of business and the Agent shall,
promptly upon request of the Company,
Revolving Credit Security Agreement
146
- 11 -
make appropriate arrangements for making any other Instrument pledged by
the Company available to the Company for purposes of presentation,
collection or renewal (any such arrangement to be effected, to the extent
deemed appropriate by the Agent, against trust receipt or like document);
(c) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that
may be necessary or desirable (in the judgment of the Agent) to create,
preserve, perfect or validate the security interest granted pursuant
hereto or to enable the Agent to exercise and enforce its rights hereunder
with respect to such pledge and security interest, including, without
limitation, causing any or all of the Stock Collateral to be transferred
of record into the name of the Agent or its nominee (and the Agent agrees
that if any Stock Collateral is transferred into its name or the name of
its nominee, the Agent will thereafter promptly give to the Company copies
of any notices and communications received by it with respect to the Stock
Collateral), provided that notices to account debtors in respect of any
Accounts or Instruments shall be subject to the provisions of clause (i)
below;
(d) from time to time as requested by any Revolving Credit Lender,
cause the Agent to be listed as the lienholder of any Equipment covered by
a certificate of title or ownership and within 120 days of such request
deliver evidence of the same to the Agent;
(e) keep full and accurate books and records relating to the
Revolving Credit Collateral, and stamp or otherwise ▇▇▇▇ such books and
records in such manner as the Agent may reasonably require in order to
reflect the security interests granted by this Agreement;
(f) furnish to the Agent from time to time (but, unless a Default
shall have occurred and be continuing, no more frequently than quarterly)
statements and schedules further identifying and describing the Copyright
Collateral, the Patent Collateral and the Trademark Collateral and such
other reports in connection with the Copyright Collateral, the Patent
Collateral and the Trademark Collateral, as the Agent may reasonably
request, all in reasonable detail;
(g) promptly upon request of the Agent, following receipt by the
Agent of any statements, schedules or reports pursuant to clause (f)
above, modify this Agreement by amending Annex 2, 3 and/or 4 hereto to
include any
Revolving Credit Security Agreement
147
- 12 -
Copyright, Patent or Trademark which becomes part of the Revolving Credit
Collateral under this Agreement;
(h) permit representatives of the Agent, upon reasonable notice, at
any time during normal business hours to inspect and make abstracts from
its books and records pertaining to the Revolving Credit Collateral, and
permit representatives of the Agent to be present at the Company's place
of business to receive copies of all communications and remittances
relating-to the Revolving Credit Collateral, and forward copies of any
notices or communications received by the Company with respect to the
Revolving Credit Collateral, all in such manner as the Agent may require;
(i) upon the occurrence and during the continuance of any Event of
Default, upon request of the Agent, promptly notify (and the Company
hereby authorizes the Agent so to notify) each account debtor in respect
of any Accounts or Instruments that such Revolving Credit Collateral has
been assigned to the Agent hereunder, and that any payments due or to
become due in respect of such Revolving Credit Collateral are to be made
directly to the Agent.
5.02 Other Financing Statements and Liens. Except as otherwise
permitted under Section 8.06 of the Credit Agreement, without the prior written
consent of the Agent (granted with the authorization of the Revolving Credit
Lenders as specified in Section 10.09 of the Credit Agreement), the Company
shall not file or suffer to be on file, or authorize or permit to be filed or to
be on file, in any jurisdiction, any financing statement or like instrument with
respect to the Revolving Credit Collateral in which the Agent is not named as
the sole secured party for the benefit of the Revolving Credit Lenders.
5.03 Preservation of Rights. The Agent shall not be required to take
steps necessary to preserve any rights against prior parties to any of the
Revolving Credit Collateral.
5.04 Special Provisions Relating to Certain Revolving Credit
Collateral.
(a) Stock Collateral.
(1) The Company will cause the Stock Collateral to constitute at all
times 100% of the total number of shares of each class of capital stock of each
Issuer then outstanding; provided that if any such Issuer is organized under the
laws of jurisdiction other than the United States of America or a State thereof,
the Company need only cause the Stock Collateral of such
Revolving Credit Security Agreement
148
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Issuer to constitute 65% of the total number of shares of each class of capital
stock of such Issuer then outstanding.
(2) So long as no Event of Default shall have occurred and be
continuing, the Company shall have the right to exercise all voting, consensual
and other powers of ownership pertaining to the Stock Collateral for all
purposes not inconsistent with the terms of this Agreement, the Credit
Agreement, the Notes or any other instrument or agreement referred to herein or
therein, provided that the Company agrees that it will not vote the Stock
Collateral in any manner that is inconsistent with the terms of this Agreement,
the Credit Agreement, the Notes or any such other instrument or agreement; and
the Agent shall execute and deliver to the Company or cause to be executed and
delivered to the Company all such proxies, powers of attorney, dividend and
other orders, and all such instruments, without recourse, as the Company may
reasonably request for the purpose of enabling the Company to exercise the
rights and powers which it is entitled to exercise pursuant to this Section
5.04(a)(2).
(3) Unless and until an Event of Default has occurred and is
continuing, the Company shall be entitled to receive and retain any dividends on
the Stock Collateral paid in cash out of earned surplus.
(4) If any Event of Default shall have occurred, then so long as
such Event of Default shall continue, and whether or not the Agent or any
Revolving Credit Lender exercises any available right to declare any Revolving
Credit Secured Obligations due and payable or seeks or pursues any other relief
or remedy available to it under applicable law or under this Agreement, the
Credit Agreement, the Notes or any other agreement relating to such Revolving
Credit Secured Obligations, all dividends and other distributions on the Stock
Collateral shall be paid directly to the Agent and retained by it in the
Collateral Account as part of the Stock Collateral, subject to the terms of this
Agreement, and, if the Agent shall so request in writing, the Company agrees to
execute and deliver to the Agent appropriate additional dividend, distribution
and other orders and documents to that end, provided that if such Event of
Default is cured, any such dividend or distribution theretofore paid to the
Agent shall, upon request of the Company (except to the extent theretofore
applied to the Revolving Credit Secured Obligations), be returned by the Agent
to the Company.
(b) Intellectual Property.
(1) For the purpose of enabling the Agent to exercise rights and
remedies under Section 5.05 hereof at such time as the Agent shall be lawfully
entitled to exercise such rights and
Revolving Credit Security Agreement
149
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remedies, and for no other purpose, the Company hereby grants to the Agent, to
the extent assignable, an irrevocable, non-exclusive license (exercisable
without payment of royalty or other compensation to the Company) to use, assign,
license or sublicense any of the Intellectual Property now owned or hereafter
acquired by the Company, wherever the same may be located, including in such
license reasonable access to all media in which any of the licensed items may be
recorded or stored and to all computer programs used for the compilation or
printout thereof.
(2) Notwithstanding anything contained herein to the contrary, but
subject to the provisions of Section 8.05 of the Credit Agreement which limit
the right of the Company to dispose of its property, so long as no Event of
Default shall have occurred and be continuing, the Company will be permitted to
exploit, use, enjoy, protect, license, sublicense, assign, sell, dispose of or
take other actions with respect to the Intellectual Property in the ordinary
course of the business of the Company. In furtherance of the foregoing, unless
an Event of Default shall have occurred and be continuing the Agent shall from
time to time, upon the request of the Company, execute and deliver any
instruments, certificates or other documents, in the form so requested, which
the Company shall have certified are appropriate (in its judgment) to allow it
to take any action permitted above (including relinquishment of the license
provided pursuant to clause (i) immediately above as to any specific
Intellectual Property). Further, upon the payment in full of all of the
Revolving Credit Secured Obligations and cancellation or termination of the
Revolving Credit Commitments and Letter of Credit Liabilities or earlier
expiration of this Agreement or release of the Revolving Credit Collateral, the
Agent shall grant back to the Company the license granted pursuant to clause (1)
immediately above. The exercise of rights and remedies under Section 5.05 hereof
by the Agent shall not terminate the rights of the holders of any licenses or
sublicenses theretofore granted by the Company in accordance with the first
sentence of this clause (2).
5.05 Events of Default, Etc. During the period during which an Event
of Default shall have occurred and be continuing:
(a) the Company shall, at the request of the Agent, assemble the
Revolving Credit Collateral owned by it at such place or places,
reasonably convenient to both the Agent and the Company, designated in the
Agent's request;
(b) the Agent may make any reasonable compromise or settlement
deemed desirable with respect to any of the Revolving Credit Collateral
and may extend the time of
Revolving Credit Security Agreement
150
- 15 -
payment, arrange for payment in installments, or otherwise modify the
terms of, any of the Revolving Credit Collateral;
(c) the Agent shall have all of the rights and remedies with respect
to the Revolving Credit Collateral of a secured party under the Uniform
Commercial Code (whether or not said Code is in effect in the jurisdiction
where the rights and remedies are asserted) and such additional rights and
remedies to which a secured party is entitled under the laws in effect in
any jurisdiction where any rights and remedies hereunder may be asserted,
including, without limitation, the right, to the maximum extent permitted
by law, to exercise all voting, consensual and other powers of ownership
pertaining to the Revolving Credit Collateral as if the Agent were the
sole and absolute owner thereof (and the Company agrees to take all such
action as may be appropriate to give effect to such right);
(d) the Agent in its discretion may, in its name or in the name of
the Company or otherwise, demand, ▇▇▇ for, collect or receive any money or
property at any time payable or receivable on account of or in exchange
for any of the Revolving Credit Collateral, but shall be under no
obligation to do so; and
(e) the Agent may, upon ten Business Days' prior written notice to
the Company of the time and place, with respect to the Revolving Credit
Collateral or any part thereof which shall then be or shall thereafter
come into the possession, custody or control of the Agent, the Revolving
Credit Lenders or any of their respective agents, sell, lease, assign or
otherwise dispose of all or any part of such Revolving Credit Collateral,
at such place or places as the Agent deems best, and for cash or for
credit or for future delivery (without thereby assuming any credit risk),
at public or private sale, without demand of performance or notice of
intention to effect any such disposition or of the time or place thereof
(except such notice as is required above or by applicable statute and
cannot be waived), and the Agent or any Revolving Credit Lender or anyone
else may be the purchaser, lessee, assignee or recipient of any or all of
the Revolving Credit Collateral so disposed of at any public sale (or, to
the extent permitted by law, at any private sale) and thereafter hold the
same absolutely, free from any claim or right of whatsoever kind,
including any right or equity of redemption (statutory or otherwise), of
the Company, any such demand, notice and right or equity being hereby
expressly waived and released. In the event of any sale, assignment, or
other disposition of any of the Trademark Collateral, the goodwill
connected with and
Revolving Credit Security Agreement
151
- 16 -
symbolized by the Trademark Collateral subject to such disposition shall
be included, and the Company shall supply to the Agent or its designee,
for inclusion in such sale, assignment or other disposition, all
Intellectual Property relating to such Trademark Collateral. The Agent
may, without notice or publication, adjourn any public or private sale or
cause the same to be adjourned from time to time by announcement at the
time and place fixed for the sale, and such sale may be made at any time
or place to which the sale may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
5.05, including by virtue of the exercise of the license granted to the Agent in
Section 5.04(b) hereof, shall be applied in accordance with Section 5.09 hereof.
The Company recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Agent may be compelled, with respect to any sale of all or
any part of the Revolving Credit Collateral, to limit purchasers to those who
will agree, among other things, to acquire the Revolving Credit Collateral for
their own account, for investment and not with a view to the distribution or
resale thereof. The Company acknowledges that any such private sales may be at
prices and on terms less favorable to the Agent than those obtainable through a
public sale without such restrictions, and, notwithstanding such circumstances,
agrees that any such private sale shall be deemed to have been made in a
commercially reasonable manner and that the Agent shall have no obligation to
engage in public sales and no obligation to delay the sale of any Revolving
Credit Collateral for the period of time necessary to permit the Agent or issuer
thereof to register it for public sale.
5.06 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Revolving Credit Collateral pursuant to Section 5.05
hereof are insufficient to cover the costs and expenses of such realization and
the payment in full of the Revolving Credit Secured Obligations, the Company
shall remain liable for any deficiency.
5.07 Removals. Etc. Without at least 30 days' prior written notice
to the Agent, the Company shall not (i) maintain any of its books and records
with respect to the Revolving Credit Collateral at any office or maintain its
principal place of business at any place, or permit any Inventory or Equipment
to be located anywhere, other than at the address indicated beneath the
signature of the Company to the Credit Agreement or at one of the locations
identified in Part A of Annex 6 hereto or in transit from one of such locations
to another or (ii) change its name, or
Revolving Credit Security Agreement
152
- 17 -
the name under which it does business, from the name shown on the signature
pages hereto; provided, however, that the Company may do business in the states
and under the names specified in Part B of Annex 6 hereto.
5.08 Private Sale. The Agent and the Revolving Credit Lenders shall
incur no liability as a result of the sale of the Revolving Credit Collateral,
or any part thereof, at any private sale pursuant to Section 5.05 hereof
conducted in a commercially reasonable manner. The Company hereby waives any
claims against the Agent or any Revolving Credit Lender arising by reason of the
fact that the price at which the Revolving Credit Collateral may have been sold
at such a private sale was less than the price which might have been obtained at
a public sale or was less than the aggregate amount of the Revolving Credit
Secured Obligations, even if the Agent accepts the first offer received and does
not offer the Revolving Credit Collateral to more than one offeree.
5.09 Application of Proceeds. Except as otherwise herein expressly
provided and except as provided below in this Section 5.09, the proceeds of any
collection, sale or other realization of all or any part of the Revolving Credit
Collateral pursuant hereto, and any other cash at the time held by the Agent
under Section 4 hereof or this Section 5, shall be applied by the Agent:
First, to the payment of the costs and expenses of such collection,
sale or other realization, including reasonable out-of-pocket costs and
expenses of the Agent and the reasonable fees and expenses of its agents
and counsel, and all reasonable expenses incurred and advances made by the
Agent in connection therewith;
Next, to the payment in full of the Revolving Credit Secured
Obligations, in each case equally and ratably in accordance with the
respective amounts thereof then due and owing or as the Revolving Credit
Lenders holding the same may otherwise agree; and
Finally, to the payment to the Company, or its successors or
assigns, or as a court of competent jurisdiction may direct, of any
surplus then remaining.
Notwithstanding the foregoing, the proceeds of any cash or other amounts held in
the "Letter of Credit Liabilities Sub-Account" of the Collateral Account
pursuant to Section 4.04 hereof shall be applied first to the Letter of Credit
Liabilities outstanding from time to time and second to the other Revolving
Credit Secured Obligations in the manner provided above in this Section 5.09.
Revolving Credit Security Agreement
153
- 18 -
As used in this Section 5, "proceeds" of Revolving Credit Collateral shall mean
cash, securities and other property realized in respect of, and distributions in
kind of, Revolving Credit Collateral, including any thereof received under any
reorganization, liquidation or adjustment of debt of the Company or any issuer
of or obligor on any of the Revolving Credit Collateral.
5.10 Attorney-in-Fact. Without limiting any rights or powers granted
by this Agreement to the Agent while no Event of Default has occurred and is
continuing, upon the occurrence and during the continuance of any Event of
Default the Agent is hereby appointed the attorney-in-fact of the Company for
the purpose of carrying out the provisions of this Section 5 and taking any
action and executing any instruments which the Agent may deem necessary or
advisable to accomplish the purposes hereof, which appointment as
attorney-in-fact is irrevocable and coupled with an interest. Without limiting
the generality of the foregoing, so long as the Agent shall be entitled under
this Section 5 to make collections in respect of the Revolving Credit
Collateral, the Agent shall have the right and power to receive, endorse and
collect all checks made payable to the order of the Company representing any
dividend, payment or other distribution in respect of the Revolving Credit
Collateral or any part thereof and to give full discharge for the same.
5.11 Perfection. Prior to or concurrently with the execution and
delivery of this Agreement, the Company shall (i) file such financing statements
and other documents in such offices as the Agent may request to perfect the
security interests granted by Section 3 of this Agreement, (ii) cause the Agent
(to the extent requested by any Revolving Credit Lender) to be listed as the
lienholder on all certificates of title or ownership relating to Motor Vehicles
owned by the Company and (iii) deliver to the Agent all certificates identified
in Annex 1 hereto, accompanied by undated stock powers duly executed in blank.
5.12 Termination. When all Revolving Credit Secured Obligations
shall have been paid in full and the Revolving Credit Commitments of the
Revolving Credit Lenders under the Credit Agreement and all Letter of Credit
Liabilities shall have expired or been terminated, this Agreement shall
terminate, and the Agent shall forthwith cause to be assigned, transferred and
delivered, against receipt but without any recourse, warranty or representation
whatsoever, any remaining Revolving Credit Collateral and money received in
respect thereof, to or on the order of the Company and to be released and
canceled all licenses and rights referred to in Section 5.04(b) hereof. The
Agent shall also execute and deliver to the Company upon such
Revolving Credit Security Agreement
154
- 19 -
termination such Uniform Commercial Code termination statements, certificates
for terminating the Liens on the Motor Vehicles and such other documentation as
shall be reasonably requested by the Company to effect the termination and
release of the Liens on the Revolving Credit Collateral.
5.13 Expenses. The Company agrees to pay to the Agent all reasonable
out-of-pocket expenses (including reasonable expenses for legal services of
every kind) of, or incident to, the enforcement of any of the provisions of this
Section 5, or performance by the Agent of any obligations of the Company in
respect of the Revolving Credit Collateral which the Company has failed or
refused to perform, or any actual or attempted sale, or any exchange,
enforcement, collection, compromise or settlement in respect of any of the
Revolving Credit Collateral, and for the care of the Revolving Credit Collateral
and defending or asserting rights and claims of the Agent in respect thereof, by
litigation or otherwise, including expenses of insurance, and all such expenses
shall be Revolving Credit Secured Obligations to the Agent secured under Section
3 hereof.
5.14 Further Assurances. The Company agrees that, from time to time
upon the written request of the Agent, the Company will execute and deliver such
further documents and do such other acts and things as the Agent may reasonably
request in order fully to effect the purposes of this Agreement.
5.15 Release of Motor Vehicles. So long as no Event of Default shall
have occurred and be continuing, upon the request of the Company, the Agent
shall execute and deliver to the Company such instruments as the Company shall
reasonably request to remove the notation of the Agent as lienholder on any
certificate of title for any Motor Vehicle; provided that any such instruments
shall be delivered, and the release effective only upon receipt by the Agent of
a certificate from the Company stating that the Motor Vehicle the lien on which
is to be released is to be sold or has suffered a casualty loss (with title
thereto passing to the casualty insurance company therefor in settlement of the
claim for such loss).
Section 6. Miscellaneous.
6.01 No Waiver. No failure on the part of the Agent or any of its
agents to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Agent or any of its
agents of any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right,
Revolving Credit Security Agreement
155
- 20 -
power or remedy. The remedies herein are cumulative and are not exclusive of
any remedies provided by law.
6.02 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
6.03 Notices. All notices, requests, consents and demands hereunder
shall be in writing and telexed, telecopied or delivered to the intended
recipient at its "Address for Notices" specified pursuant to Section 11.02 of
the Credit Agreement and shall be deemed to have been given at the times
specified in said Section 11.02.
6.04 Waivers, Etc. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by the Company
and the Agent (with the consent of the Revolving Credit Lenders as specified in
Section 10.09 of the Credit Agreement). Any such amendment or waiver shall be
binding upon the Agent and each Revolving Credit Lender, each holder of any of
the Revolving Credit Secured Obligations and the Company.
6.05 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of the
Company, the Agent, the Revolving Credit Lenders and each holder of any of the
Revolving Credit Secured Obligations (provided, however, that the Company shall
not assign or transfer its rights hereunder without the prior written consent of
the Agent).
6.06 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and either of the parties hereto may execute this Agreement by
signing any such counterpart.
6.07 Agents. The Agent may employ agents and attorneys-in-fact in
connection herewith and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it in good faith.
6.08 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Agent and the
Revolving Credit Lenders in order to carry out the intentions of the parties
hereto as nearly as may be possible and (ii) the invalidity or unenforceability
of any provision hereof in any
Revolving Credit Security Agreement
156
- 21 -
jurisdiction shall not affect the validity or enforceability of such provision
in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Revolving
Credit Security Agreement to be duly executed and delivered as of the day and
year first above written.
BE AEROSPACE, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Title: Secretary
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: Vice President
Revolving Credit Security Agreement
157
ANNEX 1
PLEDGED STOCK
Certificate Registered
Issuer Nos. Owner Number of Shares
------ ----------- ---------- ----------------
Flight Equipment 26 BE Avionics, 325,000
and Engineering Inc. (now ordinary
Limited known as BE shares, (pound)1 par
Aerospace, value
Inc.)
BE Aerospace 1-23 BE 23 shares of
(Netherlands) (uncertificated Aerospace, capital stock,
B.V. shares) Inc. dfl. 1,000 par value
BE Aerospace 2 BE 65 shares of
(U.S.A.), Inc. Aerospace, common stock,
Inc. $0.01 par value
Annex 1 to Revolving Credit Security Agreement
158
ANNEX 2
LIST OF COPYRIGHTS, COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
Title Date Filed Registration No. Effective Date
----- ---------- ---------------- --------------
None.
Annex 2 to Revolving Credit Security Agreement
159
ANNEX 3
LIST OF PATENTS AND PATENT APPLICATIONS
File Patent Country Registration No. Date
---- ------ ------- ---------------- ----
Locking USA 37103076 01/23/73
Electrical Cable
Connector
Acoustic Yoke Great Brit. 1510243 02/27/76
Coupler Switch
Transducer USA 4028491 06/07/77
Switching System
Miniature USA 4029375 06/14/77
Electrical
Connector
Acoustic Yoke USA 4029169 06/14/77
Ear Coupler USA 4055233 10/25/77
Variable USA 4352084 09/28/82
Resistor Disk
Assembly
Controller ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ 04/02/85
Quick Release USA 4547016 10/15/85
Mounting
Matrix Control USA 4577191 03/18/86
Method &
Apparatus
574259-1 Coffee/Tea Maker APPLICATION BEING PREPARED
574259-11 Auto Retractable Step II APPLICATION BEING PREPARED
574259-12 Auto Retractable Step I APPLICATION BEING PREPARED
776650 Auto Monitor Tilt Mechanism APPLICATION FILED 10/03/91
Annex 3 to Revolving Credit Security Agreement
-1-
160
File Patent Country Registration No. Date
---- ------ ------- ---------------- ----
574267-12 Apparatus for France 46414
Selectively
574267-13 Apparatus for Great Brit. 46414
Selectively
574267-14 Apparatus for Italy 46414
Selectively
574267- Brewing Inline USA 3898428 08/05/75
Apparatus
574267- Cart, Serving USA 3986582 10/19/76
Has Spaced
574267-30 Des. Dish Singl- ▇▇▇ ▇▇▇▇▇▇ 06/10/86
Serv.
574267- Des. Dish Singl- ▇▇▇ ▇▇▇▇▇▇ 10/15/85
Serv.
574267- Des. Dish Singl- ▇▇▇ ▇▇▇▇▇▇ 01/28/86
Serv.
▇▇▇▇▇▇- ▇▇▇▇▇ ▇▇▇▇▇- ▇▇▇ ▇▇▇▇▇▇▇ 12/24/85
Serv.
574267- Heater Assy USA 4294643 10/13/81
Method
574267- Heater Assy USA 4286143 08/25/81
Laminated
574267- Oven Freezer Canada 0891768 02/01/72
Has Fan
574267-5 Singl-Serv. Australia 515828 09/15/78
Heater Shelf
574267-17 Singl Serv. Canada 1218245 02/24/87
574267-18 Singl Serv. Canada 1231543 01/19/88
574267-11 Singl Serv. Europe 0046414 08/20/81
Annex 3 to Revolving Credit Security Agreement
-2-
161
File Patent Country Registration No. Date
---- ------ ------- ---------------- ----
574267-15 Singl Serv. Japan ▇▇▇▇▇▇▇ 10/20/83
574267-10 Singl Serv. Germany 31728324 08/20/81
System
574267-20 Singl Serv. Great Brit. 2017293 09/14/78
Heater
574267-8 Singl Serv. Japan ▇▇▇▇▇▇▇ 06/18/81
Heater
574267-25 Singl Serv. USA 4180125 12/25/79
Heater
574267-33 Singl Serv. ▇▇▇ ▇▇▇▇▇ 05/26/81
Heater
574267-34 Singl Serv. USA 4346756 08/31/82
System
574267-29 Singl Serv. USA 4776485 10/11/88
with Insulat.
Aircraft USA 4647980 03/03/87
Passenger
Television
System
Airline USA 281940 12/03/85
Passenger
Seatback
Combined LCD
Display and
Battery Pack
Unit For an
Entertainment
and Information
System
Television USA 295042 04/05/88
Nodule
Annex 3 to Revolving Credit Security Agreement
-3-
162
File Patent Country Registration No. Date
---- ------ ------- ---------------- ----
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 11/10/87
Passenger
Television
System
Television Taiwan 17791 03/10/89
Module
Aircraft Australia 577768 02/13/89
Passenger
Television
System
Aircraft Canada 1227735 10/06/87
Passenger
Television
System
Aircraft Europe Application Filed 1/15/87;
Passenger (designated Ser. No. 87100474.3
Television countries
System are:
Austria,
Belg., Fr.,
Ger., U.K.,
Italy,
Swed.,
Switz. And
Neth.)
Airline Japan Application Filed 5/18/87;
Passenger Ser. ▇▇. ▇▇▇▇▇/▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Application Filed 5/23/86;
Module Ser. No. 61-19680
Annex 3 to Revolving Credit Security Agreement
-4-
163
ANNEX 4
LIST OF TRADE NAMES, TRADEMARKS, SERVICE MARKS,
TRADEMARK AND SERVICE ▇▇▇▇ REGISTRATIONS AND
APPLICATIONS FOR TRADEMARK AND SERVICE ▇▇▇▇ REGISTRATIONS
U.S. Trademarks
▇▇▇▇ Registration Registration Goods
---- ------------ ------------ -----
No. Date
--- ----
1. Airvision
Logo 1,404,654 8/12/86 Audio visual
entertainment units for
installation in the rear
seats of transportation
vehicles, consisting of:
a viewing screen,
earphones, cassettes,
cassette players - sold
as a unit, in
international class 9.
2. Airvision 1,449,452 7/28/87 Audio visual
entertainment units for
installation in the rear
seats of transportation
vehicles, consisting of:
a viewing screen,
earphones, cassettes,
cassette players - sold
as a unit, in
international class 9.
Annex 4 to Revolving Credit Security Agreement
164
Foreign Trademarks
▇▇▇▇ Full Ctry Status Application Filing Registration Reg. Date Next Classes
Name No. Date No. Renewal
Date
AIRVISION ALGERIA Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION AUSTRALIA Registered A490611 06/07/88 A19D511 06/07/88 06/07/95 41,
AIRVISION AUSTRALIA Registered A490612 06/07/88 A19D512 06/07/88 06/07/95 9,
AIRVISION AUSTRIA Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION BENELUX Registered 710868 07/01/88 438360 03/06/88 07/01/98 9,37,41,
AIRVISION BULGARIA Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION CROATIA Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION CZECHOSLOVAKIA Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION DENMARK Pending 4276/88 24/06/88 3671-1991 14/06/91 14/06/01 9,37,41,
AIRVISION EGYPT Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION FINLAND Registered 3756/88 24/06/88 106329 06/06/90 06/06/00 9,37,41,
AIRVISION FRANCE Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION GERMANY EAST Registered 22/06/88 525719 22/06/88 22/06/98 9,37,41,
AIRVISION GERMANY WEST Withdrawn 22/06/88 525719 22/06/88 22/06/98 9,37,41,
AIRVISION GREAT BRITAIN Registered 1360025 29/04/88 9,
AIRVISION GREAT BRITAIN _________ 1360026 29/04/88 41,
AIRVISION GREECE Pending 89642 06/07/88 89642 17/12/90 06/07/98 9,
AIRVISION HUNGARY Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION INDONESIA Registered 22/06/88 248940 24/04/89 24/04/98 9,
AIRVISION INTERNATIONAL Registered 22/06/88 525719 22/06/88 22/06/98 9,37,41,
AIRVISION INTERNATIONAL Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION IRELAND Registered 2593/88 23/06/88 129284 26/11/90 07/01/95 9,
AIRVISION ITALY Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION JAPAN Registered 78073/88 07/01/88 229993T 31/01/91 31/10/00 24,
AIRVISION JAPAN Pending 78072/88 07/01/88 11,
AIRVISION JAPAN Registered 78074/88 07/01/88 2325T84 30/05/91 30/05/01 26,
AIRVISION JAPAN Drop 78072/88 07/01/88 11,
AIRVISION KOREA PEP. DEM. R. Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION LIECHTENSTEIN Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION MALAYSIA Pending 88/03214 04/07/88 9,
AIRVISION MONACO Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION MOROCCO Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION NEW ZEALAND Registered 184982 24/06/88 184952 10/03/92 24/06/95 41,
AIRVISION NEW ZEALAND Registered 184951 24/06/88 184951 10/03/92 24/06/95 9,
AIRVISION NORWAY Registered 882834 27/06/88 140052 11/01/90 11/01/00 9,37,41,
AIRVISION PORTUGAL Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION ROMANIA Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION SAN MARINO Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION SINGAPORE Registered 3332/88 30/06/88 3332/88 30/06/88 07/01/95 9,
AIRVISION SLOVENIA Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION SOUTH KOREA Registered 1388/88 29/06/88 10336 20/09/89 20/09/99 ▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Registered 14427/88 29/06/88 181022 11/10/89 11/10/99 ▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Registered 14429/88 29/06/88 177402 23/06/89 23/06/99 ▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Registered 14428/88 29/06/88 177778 29/08/89 29/06/99 31,
AIRVISION SOVIET UNION Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION SPAIN Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION SUDAN Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION SWEDEN Pending 88-5694 06/07/88 227109 18/10/91 18/10/01 9,37,41,
AIRVISION SWITZERLAND Registered 22/06/88 525719A 22/06/88 22/06/98 9,
AIRVISION TAIWAN Registered (▇▇)▇▇▇▇▇ ▇▇/06/88 447777 01/06/89 01/06/99 73,
AIRVISION TAIWAN Registered 77-29896 24/06/88 457033 01/11/89 01/11/99 93,
AIRVISION TAIWAN Registered (▇▇)▇▇▇▇▇ ▇▇/06/88 33324 15/01/89 15/01/99 1,
Annex 4 to Revolving Credit Agreement Security Agreement
-2-
165
▇▇▇▇ Full Ctry Status Application Filing Registration Reg. Date Next Classes
Name No. Date No. Renewal
Date
AIRVISION TAIWAN Registered (▇▇)▇▇▇▇▇ ▇▇/06/88 424801 31/01/89 31/01/98 66,
AIRVISION UKRAINE Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION YUGOSLAVIA Registered 22/06/88 525719A 22/06/88 22/06/98 9,37,41,
AIRVISION (LOGO) ALGERIA Registered 06/01/89 533525A 06/01/89 06/01/98 9,16,41,
AIRVISION (LOGO) AUSTRALIA Registered 492951 08/08/88 A482981 09/06/88 08/06/95 41,
AIRVISION (LOGO) AUSTRALIA Registered 492979 08/08/88 A482979 09/06/88 08/06/95 9,
AIRVISION (LOGO) AUSTRALIA Registered 492980 08/08/88 A482969 09/06/88 08/06/95 16,
AIRVISION (LOGO) AUSTRIA Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41,
AIRVISION (LOGO) BENELUX Registered 717180 06/07/88 447996 10/02/89 06/07/98 9,16,41,
AIRVISION (LOGO) BULGARIA Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41,
AIRVISION (LOGO) CROATIA Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41,
AIRVISION (LOGO) CZECHOSLOVAKIA Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41
AIRVISION (LOGO) DENMARK Registered 5390/88 04/06/88 689-990 08/02/90 09/02/90 9,16,41
AIRVISION (LOGO) EGYPT Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41
AIRVISION (LOGO) FINLAND Registered 3412/88 05/08/88 108123 05/10/90 05/10/00 9,16,41
AIRVISION (LOGO) FRANCE Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41
AIRVISION (LOGO) GERMANY EAST Registered 06/01/89 533525 06/01/89 06/01/99 9,16,41
AIRVISION (LOGO) GERMANY WEST Registered 06/01/89 533525 06/01/89 06/01/99 9,16,41
AIRVISION (LOGO) GREAT BRITAIN Registered 1353493 06/08/88 1353483 23/10/92 05/05/95 41,
AIRVISION (LOGO) GREAT BRITAIN Registered 1492841 21/02/82 1492041 21/02/93 26/02/99 9,
AIRVISION (LOGO) GREAT BRITAIN Rejected 1353992 05/08/88 16,
AIRVISION (LOGO) GREAT BRITAIN Pending 1353991 05/08/88 9,
AIRVISION (LOGO) GREECE Registered 90143 10/06/88 90143 10/08/88 10/08/98 9,16
AIRVISION (LOGO) HONG KONG Registered 5053/88 16/06/88 8700/83 16/02/93 16/06/95 16,
AIRVISION (LOGO) HONG KONG Withdrawn 5052/88 16/06/88 9,
AIRVISION (LOGO) HUNGARY Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41
AIRVISION (LOGO) INDONESIA Registered 11/06/88 266038 01/04/91 01/04/01 9,16,
AIRVISION (LOGO) INTERNATIONAL Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41
AIRVISION (LOGO) INTERNATIONAL Registered 06/01/89 533525 06/01/89 06/01/99 9,16,41
AIRVISION (LOGO) IRELAND Registered 3410/88 06/06/88 129285 26/11/90 08/08/95 9,
AIRVISION (LOGO) IRELAND Registered 3411/88 06/06/88 129286 26/11/90 08/08/95 16,
AIRVISION (LOGO) ITALY Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41
AIRVISION (LOGO) JAPAN Registered 92602/88 10/06/88 2402644 30/04/92 30/04/02 26,
AIRVISION (LOGO) JAPAN Pending 92599/88 10/06/88 11,
AIRVISION (LOGO) JAPAN Registered 92601/88 10/06/88 2364916 25/12/91 29/12/01 25,
AIRVISION (LOGO) JAPAN Registered 92600/88 10/06/88 2340952 30/09/91 30/06/01 24,
AIRVISION (LOGO) KOREA PEP. DEM. R. Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41
AIRVISION (LOGO) LIECHTENSTEIN Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41
AIRVISION (LOGO) MALAYSIA Pending 88/05223 10/10/88 9,
AIRVISION (LOGO) MALAYSIA Pending 88/05222 10/10/88 16,
AIRVISION (LOGO) MONACO Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41,
AIRVISION (LOGO) MOROCCO Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41,
AIRVISION (LOGO) NEW ZEALAND Registered 186296 10/06/88 186296 12/03/92 10/08/95 16,
AIRVISION (LOGO) NEW ZEALAND Registered 186295 10/06/88 186295 12/03/92 10/08/95 9,
AIRVISION (LOGO) NEW ZEALAND Registered 186297 10/06/88 186297 12/03/92 10/08/95 41,
AIRVISION (LOGO) NORWAY Registered 88-3533 01/06/88 145136 23/05/91 23/05/01 9,16,41,
AIRVISION (LOGO) POLAND Pending Z-82457 22/06/90 9,
AIRVISION (LOGO) PORTUGAL Registered 06/01/89 533525A 06/01/99 06/01/99 9,16,41,
AIRVISION (LOGO) ROMANIA Registered 06/01/89 533525A 06/01/99 06/01/99 9,16,41,
AIRVISION (LOGO) SAN MARINO Registered 06/01/89 533525A 06/01/99 06/01/99 9,16,41
AIRVISION (LOGO) SINGAPORE Pending 5234/88 24/09/88 16,
AIRVISION (LOGO) SINGAPORE Registered 5232/88 24/09/88 5232/88 24/09/88 24/09/95 9,
AIRVISION (LOGO) SLOVENIA Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41
Annex 4 to Revolving Credit Agreement Security Agreement
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166
▇▇▇▇ Full Ctry Status Application Filing Registration Reg. Date Next Classes
Name No. Date No. Renewal
Date
AIRVISION (LOGO) SOUTH KOREA Registered 19260/88 27/06/88 177776 29/06/89 29/06/99 51,
AIRVISION (LOGO) SOUTH KOREA Registered 1797/88 27/06/88 10537 16/11/89 16/11/99 111,
AIRVISION (LOGO) SOUTH KOREA Pending 19259/88 27/06/88 39,
AIRVISION (LOGO) SOUTH KOREA Registered 19261/88 27/06/88 177396 23/06/89 23/06/99 52,
AIRVISION (LOGO) SOVIET UNION Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41,
AIRVISION (LOGO) SPAIN Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41,
AIRVISION (LOGO) SUDAN Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41,
AIRVISION (LOGO) SWEDEN Registered 88-6794 12/08/88 227113 18/10/91 18/10/01 9,16,41,
AIRVISION (LOGO) SWTZERLAND Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41,
AIRVISION (LOGO) TAIWAN Registered 77-44068 22/08/88 437928 01/04/89 01/04/99 95,
AIRVISION (LOGO) TAIWAN Registered 77-44066 22/08/88 435019 16/03/89 16/03/99 49,
AIRVISION (LOGO) TAIWAN Registered 77-44069 22/08/88 445192 01/07/89 31/01/99 96,
AIRVISION (LOGO) TAIWAN Registered 77-44066 22/08/88 35082 16/04/89 15/01/99 1,
AIRVISION (LOGO) TAIWAN Registered 77-44067 22/08/88 447783 01/08/89 01/08/99 73,
AIRVISION (LOGO) UKRAINE Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41,
AIRVISION (LOGO) YUGOSLAVIA Registered 06/01/89 533525A 06/01/89 06/01/99 9,16,41,
Annex 4 to Revolving Credit Agreement Security Agreement
-4-
167
ANNEX 5
LIST OF CONTRACTS. LICENSES AND OTHER AGREEMENT
1. Pursuant to an Amended and Restated Asset Purchase Agreement (the
"Asset Purchase Agreement") between the Company and Philips Electronics North
America Corporation ("▇▇▇▇") dated August 27, 1993, on October 13, 1993 the
Company purchased certain assets and liabilities from the Philips Airvision
division ("Airvision") of ▇▇▇▇, including certain patents, patent applications,
trademarks and trademark applications of Airvision.
Based on copies of affidavits and other letters of the inventors'
attorney in ▇▇▇▇'▇ files, a public disclosure by the inventors of a
representative airline seat with seatback mounted television was made on or
about October 1984 at a meeting of the World Airline Entertainment Association
in San Diego. This disclosure was not brought to the attention of the Patent and
Trademark Office examiner during the prosecution of this application.
Based on such affidavits and letters, it is believed that the
mock-up consisted of a small LCD color television screen supported by tape and
wood blocks in the seat headrest. The screen was removed from a hand-held
portable television and combined with electronic components externally of the
seat to provide a visual display with separate channels of a seatback mounted
television.
Such affidavits and letters disclose that the above mock-up was
displayed on a limited basis in a hotel room to others attending the conference
for the purpose of soliciting a research and development partner having access
to an aircraft upon which the system could be tested. At the time, no in-flight
demonstration testing had occurred.
Based on facts averred in a Declaration Under 37 C.F.R. 1.131 filed
by the inventors during prosecution of the application, there is also a possible
basis for the assertion that the television system was "on sale" more than one
year prior to the date of application. As ▇▇▇▇ understands it, Airvision's
predecessor in interest (a) made a confidential offer to sell the system to The
Boeing Company on October 11, 1982 including a description of and offer to
include "Second Generation Devices" intended to permit a selection of movies;
(b) completed a first prototype (seat mounted LCD screen in 1983); (c) completed
a working second prototype (TV modular system for installation into passenger
seat) in September, 1984; (d) conducted market studies
Annex 5 to Revolving Credit Security Agreement
-1-
168
for the remainder of 1984 and 1985; (e) completed a third prototype (production
model) on August 13, 1985; and (f) filed a patent application on January 21,
1986, more than one year after the working prototype was made.
2. Pursuant to a Letter Agreement dated February 5, 1992 between ▇▇▇▇▇▇
Avicom International and Philips Airvision Ltd., Airvision agreed not to assert
against ▇▇▇▇▇▇ Avicom Airvision's U.S. Patent No. 4,647,980, and ▇▇▇▇▇▇ Avicom
agreed not to assert against Airvision ▇▇▇▇▇▇ Avicom's U.S. Patent Application
Serial No. 07/579,335. Pursuant to the Asset Purchase Agreement, the Company has
assumed this agreement.
3. Pursuant to the Asset Purchase Agreement, the Company agreed with ▇▇▇▇
that the assignment of patents and patent applications thereunder was subject to
existing cross-licenses of ▇▇▇▇ to which the Company will not have the benefit
and that ▇▇▇▇ will have the right to renew and extend such cross-licenses under
such patents and patent applications.
4. The foreign trademarks of the Company were agreed to be transferred to
the Company pursuant to the Asset Purchase Agreement by Philips Electronics
N.V., a Netherlands corporation and indirect parent of ▇▇▇▇. However, until
certain transfer documents have been filed in certain jurisdictions outside of
the United States, the Company cannot be said to hold all ownership, right,
title and interest in and to such trademarks.
Annex 5 to Revolving Credit Security Agreement
-2-
169
ANNEX 6
LIST OF LOCATIONS AND TRADE NAMES
Part A - List of Locations
1. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
4. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
6. ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
7. ▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
8. Nashleigh Works, Preston Hill, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
9. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
10. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
11. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Annex 6 to Revolving Credit Security Agreement
170
Part B - Trade Names/State
Trade Name State
---------- -----
BE Avionics California
Florida
PTC Aerospace California
Connecticut
Aircraft Products Company California
Florida
Trans Video Systems Florida
New Jersey
BE Services California
Florida
Annex 6 to Revolving Credit Security Agreement
171
CONFORMED COPY
EXHIBIT A-2
TERM LOAN SECURITY AGREEMENT
TERM LOAN SECURITY AGREEMENT dated as of October 29, 1993 between BE
AEROSPACE, INC., a corporation duly organized and validly existing under the
laws of Delaware (the "Company"); and THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as agent for certain lenders or other financial institutions or
entities party to the Credit Agreement referred to below (in such capacity,
together with its successors in such capacity, the "Agent").
The Company, certain lenders and the Agent are parties to a Credit
Agreement dated as of October 29, 1993 (as modified and supplemented and in
effect from time to time, the "Credit Agreement"), providing, subject to the
terms and conditions thereof, for extensions of credit (by making of loans and
issuing letters of credit) to be made by said lenders to the Company in an
aggregate principal or face amount not exceeding $85,000,000.
To induce said lenders to enter into the Credit Agreement and to
extend credit thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company has agreed
to pledge and grant a security interest in the Term Loan Collateral (as
hereinafter defined) as security for the Term Loan Secured Obligations (as so
defined). Accordingly, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are
used herein as defined therein. In addition, as used herein:
"Issuer" shall mean the corporation identified on Annex 1 hereto
under the caption "Issuer".
"Pledged Stock" shall have the meaning ascribed thereto in Section
3(a) hereof.
"Term Loan Collateral" shall have the meaning ascribed thereto in
Section 3 hereof.
"Term Loan Secured Obligations" shall mean, collectively, (a) the
principal of and interest on the Term Loans made by the Term Loan Lenders
to, and the Term Loan Note(s) held by each Term Loan Lender of, the
Company and all other amounts from time to time owing to the Term Loan
Lenders or the Agent by the Company under the Basic Documents and (b) all
obligations of the Company to the Term Loan Lenders and the Agent
hereunder.
Term Loan Security Agreement
172
-2-
"Uniform Commercial Code" shall mean the Uniform Commercial Code as
in effect from time to time in the State of New York.
Section 2. Representations and Warranties. The Company represents
and warrants to the Term Loan Lenders and the Agent that:
(a) The Company is the sole beneficial owner of the Term Loan
Collateral and no Lien exists or will exist upon the Term Loan Collateral
at any time (and no right or option to acquire the same exists in favor of
any other Person), except for Liens permitted under Section 8.06 of the
Credit Agreement and except for the pledge and security interest in favor
of the Agent for the benefit of the Term Loan Lenders created or provided
for herein, which pledge and security interest constitute a first priority
perfected pledge and security interest in and to all of the Term Loan
Collateral.
(b) The Pledged Stock represented by the certificates identified in
Annex 1 hereto is, and all other Pledged Stock in which the Company shall
hereafter grant a security interest pursuant to Section 3 hereof will be,
duly authorized, validly existing, fully paid and non-assessable and none
of such Pledged Stock is or will be subject to any contractual
restriction, or any restriction under the charter or by-laws of the
Issuer, upon the transfer of such Pledged Stock (except for any such
restriction contained herein or in the Credit Agreement).
(c) The Pledged Stock represented by the certificates identified in
Annex 1 hereto constitutes all of the issued and outstanding shares of
capital stock of any class of the Issuer beneficially owned by the Company
on the date hereof (whether or not registered in the name of the Company)
and said Annex 1 correctly identifies, as at the date hereof, the Issuer
of such Pledged Stock, the respective class and par value of the shares
comprising such Pledged Stock and the respective number of shares (and
registered owners thereof) represented by each such certificate.
Section 3. The Pledge. As collateral security for the prompt payment
in full when due (whether at stated maturity, by acceleration or otherwise) of
the Term Loan Secured Obligations, the Company hereby pledges and grants to the
Agent, for the benefit of the Term Loan Lenders as hereinafter provided, a
security interest in all of the Company's right, title and interest in the
following property, whether now owned by the
Term Loan Security Agreement
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Company or hereafter acquired and whether now existing or hereafter coming into
existence (all being collectively referred to herein as "Term Loan Collateral"):
(a) the shares of capital stock of the Issuer represented by the
certificates identified in Annex 1 hereto and all other shares of capital
stock of whatever class of the Issuer, now or hereafter owned by the
Company, in each case together with the certificates evidencing the same
(collectively, the "Pledged Stock");
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Stock, or representing a distribution or
return of capital upon or in respect of the Pledged Stock, or resulting
from a split-up, revision, reclassification or other like change of the
Pledged Stock or otherwise received in exchange therefor, and any
subscription warrants, rights or options issued to the holders of, or
otherwise in respect of, the Pledged Stock;
(c) without affecting the obligations of the Company under any
provision prohibiting such action hereunder or under the Credit Agreement,
in the event of any consolidation or merger in which the Issuer is not the
surviving corporation, all shares of each class of the capital stock of
the successor corporation formed by or resulting from such consolidation
or merger; and
(d) all proceeds of and to any of the property of the Company
described in the preceding clauses of this Section 3 and, to the extent
related to any property described in said clauses or such proceeds, all
books, correspondence, credit files, records, invoices and other papers.
Section 4. Further Assurances; Remedies. In furtherance of the grant
of the pledge and security interest pursuant to Section 3 hereof, the Company
hereby agrees with each Term Loan Lender and the Agent as follows:
4.01 Delivery and Other Perfection. The Company shall:
(a) if any of the above-described shares, securities, moneys or
property required to be pledged by the Company under clauses (a), (b) and
(c) of Section 3 hereof are received by the Company, forthwith either (x)
transfer and deliver to the Agent such shares or securities so received by
the Company (together with the certificates for any such
Term Loan Security Agreement
174
-4-
shares and securities duly endorsed in blank or accompanied by undated
stock powers duly executed in blank), all of which thereafter shall be
held by the Agent, pursuant to the terms of this Agreement, as part of the
Term Loan Collateral or (y) take such other action as the Agent shall deem
necessary or appropriate to duly record the Lien created hereunder in such
shares, securities, moneys or property in said clauses (a), (b) and (c);
(b) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that
may be necessary or desirable (in the judgment of the Agent) to create,
preserve, perfect or validate the security interest granted pursuant
hereto or to enable the Agent to exercise and enforce its rights hereunder
with respect to such pledge and security interest, including, without
limitation, causing any or all of the Term Loan Collateral to be
transferred of record into the name of the Agent or its nominee (and the
Agent agrees that if any Term Loan Collateral is transferred into its name
or the name of its nominee, the Agent will thereafter promptly give to the
Company copies of any notices and communications received by it with
respect to the Term Loan Collateral);
(c) keep full and accurate books and records relating to the Term
Loan Collateral, and stamp or otherwise ▇▇▇▇ such books and records in
such manner as the Agent may reasonably require in order to reflect the
security interests granted by this Agreement; and
(d) permit representatives of the Agent, upon reasonable notice, at
any time during normal business hours to inspect and make abstracts from
its books and records pertaining to the Term Loan Collateral, and permit
representatives of the Agent to be present at the Company's place of
business to receive copies of all communications and remittances relating
to the Term Loan Collateral, and forward copies of any notices or
communications received by the Company with respect to the Term Loan
Collateral, all in such manner as the Agent may require.
4.02 Other Financing Statements and Liens. Except as otherwise
permitted under Section 8.06 of the Credit Agreement, without the prior written
consent of the Agent (granted with the authorization of the Term Loan Lenders as
specified in Section 10.09 of the Credit Agreement), the Company shall not file
or suffer to be on file, or authorize or permit to be filed or to be on file, in
any jurisdiction, any financing statement or like instrument with respect to the
Term Loan Collateral in which
Term Loan Security Agreement
175
-5-
the Agent is not named as the sole secured party for the benefit of the Term
Loan Lenders.
4.03 Preservation of Rights. The Agent shall not be required to take
steps necessary to preserve any rights against prior parties to any of the Term
Loan Collateral.
4.04 Term Loan Collateral.
(1) The Company will cause the Term Loan Collateral to constitute at
all times 100% of the total number of shares of each class of capital stock of
the Issuer then outstanding.
(2) So long as no Event of Default shall have occurred and be
continuing, the Company shall have the right to exercise all voting, consensual
and other powers of ownership pertaining to the Term Loan Collateral for all
purposes not inconsistent with the terms of this Agreement, the Credit
Agreement, the Notes or any other instrument or agreement referred to herein or
therein, provided that the Company agrees that it will not vote the Term Loan
Collateral in any manner that is inconsistent with the terms of this Agreement,
the Credit Agreement, the Notes or any such other instrument or agreement; and
the Agent shall execute and deliver to the Company or cause to be executed and
delivered to the Company all such proxies, powers of attorney, dividend and
other orders, and all such instruments, without recourse, as the Company may
reasonably request for the purpose of enabling the Company to exercise the
rights and powers which it is entitled to exercise pursuant to this Section
4.04(2).
(3) Unless and until an Event of Default has occurred and is
continuing, the Company shall be entitled to receive and retain any dividends on
the Term Loan Collateral paid in cash out of earned surplus.
(4) If any Event of Default shall have occurred, then so long as
such Event of Default shall continue, and whether or not the Agent or any Term
Loan Lender exercises any available right to declare any Secured Obligation due
and payable or seeks or pursues any other relief or remedy available to it under
applicable law or under this Agreement, the Credit Agreement, the Notes or any
other agreement relating to such Secured Obligation, all dividends and other
distributions on the Term Loan Collateral shall be paid directly to the Agent
and retained by it as part of the Term Loan Collateral, subject to the terms of
this Agreement, and, if the Agent shall so request in writing, the Company
agrees to execute and deliver to the Agent appropriate additional dividend,
distribution and other orders and documents to that end, provided that if such
Event of Default is cured, any such dividend or distribution theretofore paid to
the Agent shall,
Term Loan Security Agreement
176
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upon request of the Company (except to the extent theretofore applied to the
Term Loan Secured Obligations), be returned by the Agent to the Company.
4.05 Events of Default, Etc. During the period during which an Event
of Default shall have occurred and be continuing:
(a) the Agent shall have all of the rights and remedies with respect
to the Term Loan Collateral of a secured party under the Uniform
Commercial Code (whether or not said Code is in effect in the jurisdiction
where the rights and remedies are asserted) and such additional rights and
remedies to which a secured party is entitled under the laws in effect in
any jurisdiction where any rights and remedies hereunder may be asserted,
including, without limitation, the right, to the maximum extent permitted
by law, to exercise all voting, consensual and other powers of ownership
pertaining to the Term Loan Collateral as if the Agent were the sole and
absolute owner thereof (and the Company agrees to take all such action as
may be appropriate to give effect to such right);
(b) the Agent in its discretion may, in its name or in the name of
the Company or otherwise, demand, ▇▇▇ for, collect or receive any money or
property at any time payable or receivable on account of or in exchange
for any of the Term Loan Collateral, but shall be under no obligation to
do so; and
(c) the Agent may, upon ten Business Days' prior written notice to
the Company of the time and place, with respect to the Term Loan
Collateral or any part thereof which shall then be or shall thereafter
come into the possession, custody or control of the Agent, the Term Loan
Lenders or any of their respective agents, sell, lease, assign or
otherwise dispose of all or any part of such Term Loan Collateral, at such
place or places as the Agent deems best, and for cash or for credit or for
future delivery (without thereby assuming any credit risk), at public or
private sale, without demand of performance or notice of intention to
effect any such disposition or of the time or place thereof (except such
notice as is required above or by applicable statute and cannot be
waived), and the Agent or any Term Loan Lender or anyone else may be the
purchaser, lessee, assignee or recipient of any or all of the Term Loan
Collateral so disposed of at any public sale (or, to the extent permitted
by law, at any private sale) and thereafter hold the same absolutely, free
from any claim or right of whatsoever kind, including any right or equity
of redemption (statutory or otherwise), of the Company, any such demand,
Term Loan Security Agreement
177
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notice and right or equity being hereby expressly waived and released. The
Agent may, without notice or publication, adjourn any public or private
sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for the sale, and such sale may be made at any
time or place to which the sale may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
4.05 shall be applied in accordance with Section 4.09 hereof.
The Company recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Agent may be compelled, with respect to any sale of all or
any part of the Term Loan Collateral, to limit purchasers to those who will
agree, among other things, to acquire the Term Loan Collateral for their own
account, for investment and not with a view to the distribution or resale
thereof. The Company acknowledges that any such private sales may be at prices
and on terms less favorable to the Agent than those obtainable through a public
sale without such restrictions, and, notwithstanding such circumstances, agrees
that any such private sale shall be deemed to have been made in a commercially
reasonable manner and that the Agent shall have no obligation to engage in
public sales and no obligation to delay the sale of any Term Loan Collateral for
the period of time necessary to permit the or issuer thereof to register it for
public sale.
4.06 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Term Loan Collateral pursuant to Section 4.05 hereof
are insufficient to cover the costs and expenses of such realization and the
payment in full of the Term Loan Secured Obligations, the Company shall remain
liable for any deficiency.
4.07 Removals, Etc. Without at least 30 days' prior written notice
to the Agent, the Company shall not (i) maintain any of its books and records
with respect to the Term Loan Collateral at any office or maintain its principal
place of business at any place other than at the address indicated beneath the
signature of the Company to the Credit Agreement or (ii) change its name, or the
name under which it does business, from the name shown on the signature pages
hereto; provided that the Company may do business in the states and under the
names specified in Annex 2 hereto.
4.08 Private Sale. The Agent and the Term Loan Lenders shall incur
no liability as a result of the sale of the Term Loan Collateral, or any part
thereof, at any private sale
Term Loan Security Agreement
178
-8-
pursuant to Section 4.05 hereof conducted in a commercially reasonable manner.
The Company hereby waives any claims against the Agent or any Term Loan Lender
arising by reason of the fact that the price at which the Term Loan Collateral
may have been sold at such a private sale was less than the price which might
have been obtained at a public sale or was less than the aggregate amount of the
Term Loan Secured Obligations, even if the Agent accepts the first offer
received and does not offer the Term Loan Collateral to more than one offeree.
4.09 Application of Proceeds. Except as otherwise herein expressly
provided, the proceeds of any collection, sale or other realization of all or
any part of the Term Loan Collateral pursuant hereto, and any other cash at the
time held by the Agent under this Section 4, shall be applied by the Agent:
First, to the payment of the costs and expenses of such collection,
sale or other realization, including reasonable out-of-pocket costs and
expenses of the Agent and the reasonable fees and expenses of its agents
and counsel, and all reasonable expenses incurred and advances made by the
Agent in connection therewith;
Next, to the payment in full of the Term Loan Secured Obligations,
in each case equally and ratably in accordance with the respective amounts
thereof then due and owing or as the Term Loan Lenders holding the same
may otherwise agree; and
Finally, to the payment to the Company, or its successors or
assigns, or as a court of competent jurisdiction may direct, of any
surplus then remaining.
As used in this Section 4, "proceeds" of Term Loan Collateral shall mean cash,
securities and other property realized in respect of, and distributions in kind
of, Term Loan Collateral, including any thereof received under any
reorganization, liquidation or adjustment of debt of the Company or any issuer
of or obligor on any of the Term Loan Collateral.
4.10 Attorney-in-Fact. Without limiting any rights or powers granted
by this Agreement to the Agent while no Event of Default has occurred and is
continuing, upon the occurrence and during the continuance of any Event of
Default the Agent is hereby appointed the attorney-in-fact of the Company for
the purpose of carrying out the provisions of this Section 4 and taking any
action and executing any instruments which the Agent may deem necessary or
advisable to accomplish the purposes hereof, which appointment as
attorney-in-fact is irrevocable and coupled with an interest. Without limiting
the generality of the
Term Loan Security Agreement
179
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foregoing, so long as the Agent shall be entitled under this Section 4 to make
collections in respect of the Term Loan Collateral, the Agent shall have the
right and power to receive, endorse and collect all checks made payable to the
order of the Company representing any dividend, payment or other distribution in
respect of the Term Loan Collateral or any part thereof and to give full
discharge for the same.
4.11 Perfection. Prior to or concurrently with the execution and
delivery of this Agreement, the Company shall deliver to the Agent all
certificates identified in Annex 1 hereto, accompanied by undated stock powers
duly executed in blank.
4.12 Termination. When all Term Loan Secured Obligations shall have
been paid in full and the Term Loan Commitments of the Term Loan Lenders under
the Credit Agreement shall have expired or been terminated, this Agreement shall
terminate, and the Agent shall forthwith cause to be assigned, transferred and
delivered, against receipt but without any recourse, warranty or representation
whatsoever, any remaining Term Loan Collateral and money received in respect
thereof, to or on the order of the Company.
4.13 Expenses. The Company agrees to pay to the Agent all reasonable
out-of-pocket expenses (including reasonable expenses for legal services of
every kind) of, or incident to, the enforcement of any of the provisions of this
Section 4, or performance by the Agent of any obligations of the Company in
respect of the Term Loan Collateral which the Company has failed or refused to
perform, or any actual or attempted sale, or any exchange, enforcement,
collection, compromise or settlement in respect of any of the Term Loan
Collateral, and for the care of the Term Loan Collateral and defending or
asserting rights and claims of the Agent in respect thereof, by litigation or
otherwise, and all such expenses shall be Term Loan Secured Obligations to the
Agent secured under Section 3 hereof.
4.14 Further Assurances. The Company agrees that, from time to time
upon the written request of the Agent, the Company will execute and deliver such
further documents and do such other acts and things as the Agent may reasonably
request in order fully to effect the purposes of this Agreement.
Section 5. Miscellaneous.
5.01 No Waiver. No failure on the part of the Agent or any of its
agents to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or
Term Loan Security Agreement
180
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remedy hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise by the Agent or any of its agents of any right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies herein are cumulative and are not
exclusive of any remedies provided by law.
5.02 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
5.03 Notices. All notices, requests, consents and demands hereunder
shall be in writing and telecopied or delivered to the intended recipient at its
"Address for Notices" specified pursuant to Section 11.02 of the Credit
Agreement and shall be deemed to have been given at the times specified in said
Section 11.02.
5.04 Waivers, Etc. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by the Company
and the Agent (with the consent of the Term Loan Lenders as specified in Section
10.09 of the Credit Agreement). Any such amendment or waiver shall be binding
upon the Agent and each Term Loan Lender, each holder of any of the Term Loan
Secured Obligations and the Company.
5.05 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of the
Company, the Agent, the Term Loan Lenders and each holder of any of the Term
Loan Secured Obligations (provided, however, that the Company shall not assign
or transfer its rights hereunder without the prior written consent of the
Agent).
5.06 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and either of the parties hereto may execute this Agreement by
signing any such counterpart.
5.07 Agents. The Agent may employ agents and attorneys-in-fact in
connection herewith and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it in good faith.
5.08 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Agent and the Term
Loan
Term Loan Security Agreement
181
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Lenders in order to carry out the intentions of the parties hereto as nearly as
may be possible and (ii) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Term Loan
Security Agreement to be duly executed and delivered as of the day and year
first above written.
BE AEROSPACE, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Title: Secretary
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Vice President
Term Loan Security Agreement
182
ANNEX 1
PLEDGED STOCK
Certificate Registered
Issuer Nos. Owner Number of Shares
------ ----------- ---------- ----------------
Acurex 2 BE 100 shares of
Corporation Aerospace, common stock,
Inc. $0.01 par
value
Annex 1 to Term Loan Security Agreement
183
ANNEX 2
TRADE NAMES
Trade Name State
---------- -----
BE Avionics California
Florida
PTC Aerospace California
Connecticut
Aircraft Products Company California
Florida
Trans Video Systems Florida
New Jersey
BE Services California
Florida
Annex 2 to Term Loan Security Agreement
184
EXHIBIT B
[Form of Confidentiality Agreement]
CONFIDENTIALITY AGREEMENT
[Date)
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Third Amended and Restated Credit Agreement dated as of
October 29, 1993 and amended and restated as of _______, 1997
(as so amended and restated, the "Credit Agreement"), between
BE Aerospace, Inc. (the "Company"), the lenders named therein
and The Chase Manhattan Bank, as Administrative Agent.
Ladies and Gentlemen:
As a Lender party to the Credit Agreement, we have agreed with the
Company pursuant to Section 11.12 of the Credit Agreement to use reasonable
precautions to keep confidential, except as otherwise provided therein, all
non-public information identified by the Company as being confidential at the
time the same is delivered to us pursuant to the Credit Agreement.
As provided in said Section 11.12, we are permitted to provide you,
as a prospective [holder of a participation in the Loans (as defined in the
Credit Agreement)] [assignee Lender], with certain of such non-public
information subject to the execution and delivery by you, prior to receiving
such non-public information, of a Confidentiality Agreement in this form. Such
information will not be made available to you until your execution and return to
us of this Confidentiality Agreement.
Accordingly, in consideration of the foregoing, you agree (on behalf
of yourself and each of your affiliates, directors, officers, employees and
representatives) that (A) such information will not be used by you except in
connection with the proposed [participation] [assignment] mentioned above and
(B) you shall use reasonable precautions, in accordance with your customary
procedures for handling confidential information and in accordance with safe and
sound banking practices, to keep such information confidential, provided that
nothing herein shall limit the disclosure of any such information (i) to the
extent required by statute, rule, regulation or judicial process, (ii) to your
counsel or to counsel for any of the Lenders or the
Confidentiality Agreement
▇▇▇
-▇-
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (▇▇▇) to bank examiners, auditors or accountants, (iv) to
the Administrative Agent or any other Lender (or to Chase Securities Inc.), (v)
in connection with any litigation to which you or any one or more of the Lenders
or the Administrative Agent are a party, (vi) to a subsidiary or affiliate of
yours as provided in Section 11.12(a) of the Credit Agreement or (vii) to any
assignee or participant (or prospective assignee or participant) so long as such
assignee or participant (or prospective assignee or participant) first executes
and delivers to you a Confidentiality Agreement substantially in the form
hereof; provided, further, that (x) unless specifically prohibited by applicable
law or court order, you agree, prior to disclosure thereof, to notify the
Company of any request for disclosure of any such non-public information (A) by
any governmental agency or representative thereof (other than any such request
in connection with an examination of your financial condition by such
governmental agency) or (B) pursuant to legal process and (y) that in no event
shall you be obligated to return any materials furnished to you pursuant to this
Confidentiality Agreement.
Please indicate your agreement to the foregoing by signing as
provided below the enclosed copy of this Confidentiality Agreement and returning
the same to us.
Very truly yours,
[INSERT NAME OF LENDER]
By________________________________
The foregoing is agreed to as of the date of this letter.
[INSERT NAME OF PROSPECTIVE
PARTICIPANT OR ASSIGNEE]
By__________________________]
Confidentiality Agreement