EXHIBIT 4.2
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$200,000,000
AMENDED AND RESTATED MULTICURRENCY CREDIT AGREEMENT
DATED AS OF JANUARY 29, 1998
AMONG
▇▇▇▇ GRAPHIC SYSTEMS, INC.,
▇▇▇▇ GRAPHIC SYSTEMS LIMITED,
▇▇▇▇ SYSTEMES GRAPHIQUES NANTES S.A.,
and
▇▇▇▇ GRAPHIC SYSTEMS JAPAN CORPORATION,
as Borrowers,
THE LENDERS LISTED HEREIN,
as Lenders,
BANKERS TRUST COMPANY,
as Administrative Agent,
and
CREDIT SUISSE FIRST BOSTON,
as Syndication Agent
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▇▇▇▇ GRAPHIC SYSTEMS, INC.,
▇▇▇▇ GRAPHIC SYSTEMS LIMITED,
▇▇▇▇ SYSTEMES GRAPHIQUES NANTES S.A.,
and
▇▇▇▇ GRAPHIC SYSTEMS JAPAN CORPORATION
AMENDED AND RESTATED MULTICURRENCY CREDIT AGREEMENT
TABLE OF CONTENTS
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SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . 13
1.1 CERTAIN DEFINED TERMS . . . . . . . . . . . . . 13
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR
PURPOSES OF CALCULATIONS UNDER AGREEMENT . . . 52
1.3 OTHER DEFINITIONAL PROVISIONS . . . . . . . . . 52
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS . . 52
2.1 COMMITMENTS; MAKING OF LOANS; THE REGISTER;
NOTES . . . . . . . . . . . . . . . . . . . . . 52
2.2 INTEREST ON THE LOANS . . . . . . . . . . . . . 63
2.3 FEES . . . . . . . . . . . . . . . . . . . . . 68
2.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN
REVOLVING LOAN COMMITMENTS; GENERAL
PROVISIONS REGARDING PAYMENTS . . . . . . . . . 70
2.5 USE OF PROCEEDS . . . . . . . . . . . . . . . . 76
2.6 SPECIAL PROVISIONS GOVERNING OFFSHORE RATE
LOANS . . . . . . . . . . . . . . . . . . . . . 77
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY . . . 80
2.8 OBLIGATIONS OF LENDERS AND ISSUING LENDERS
TO MITIGATE; REPLACEMENT OF LENDERS . . . . . . 80
2.9 INDEMNIFYING LENDERS . . . . . . . . . . . . . 80
SECTION 3. LETTERS OF CREDIT . . . . . . . . . . . . . . . 80
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS'
PURCHASE OF PARTICIPATIONS THEREIN . . . . . . 80
3.2 LETTER OF CREDIT FEES . . . . . . . . . . . . . 83
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS DRAWN
UNDER LETTERS OF CREDIT. . . . . . . . . . . . 85
3.4 OBLIGATIONS ABSOLUTE . . . . . . . . . . . . . 88
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDERS'
DUTIES . . . . . . . . . . . . . . . . . . . . 89
3.6 INCREASED COSTS AND TAXES RELATING TO
LETTERS OF CREDIT . . . . . . . . . . . . . . . 90
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT . . . 91
4.1 CONDITIONS TO INITIAL EFFECTIVENESS . . . . . . 91
4.2 CONDITIONS TO ALL LOANS . . . . . . . . . . . . 101
4.3 CONDITIONS TO LETTERS OF CREDIT . . . . . . . . 102
SECTION 5. BORROWERS' REPRESENTATIONS AND WARRANTIES . . . 102
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5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD
STANDING, BUSINESS AND SUBSIDIARIES . . . . . . 103
5.2 AUTHORIZATION OF BORROWING, ETC. . . . . . . . 103
5.3 FINANCIAL CONDITION . . . . . . . . . . . . . . 105
5.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED
JUNIOR PAYMENTS . . . . . . . . . . . . . . . . 105
5.5 TITLE TO PROPERTIES; LIENS . . . . . . . . . . 105
5.6 LITIGATION; ADVERSE FACTS . . . . . . . . . . . 106
5.7 PAYMENT OF TAXES . . . . . . . . . . . . . . . 106
5.8 PERFORMANCE OF AGREEMENTS; NO MATERIALLY
ADVERSE AGREEMENTS . . . . . . . . . . . . . . 107
5.9 GOVERNMENTAL REGULATION . . . . . . . . . . . . 107
5.10 SECURITIES ACTIVITIES . . . . . . . . . . . . . 107
5.11 EMPLOYEE BENEFIT PLANS . . . . . . . . . . . . 107
5.12 CERTAIN FEES . . . . . . . . . . . . . . . . . 108
5.13 ENVIRONMENTAL PROTECTION . . . . . . . . . . . 108
5.14 EMPLOYEE MATTERS . . . . . . . . . . . . . . . 110
5.15 SOLVENCY . . . . . . . . . . . . . . . . . . . 110
5.16 DISCLOSURE . . . . . . . . . . . . . . . . . . 110
SECTION 6. BORROWERS' AFFIRMATIVE COVENANTS . . . . . . . 111
6.1 FINANCIAL STATEMENTS AND OTHER REPORTS . . . . 111
6.2 CORPORATE EXISTENCE, ETC. . . . . . . . . . . . 118
6.3 PAYMENT OF TAXES AND CLAIMS; TAX
CONSOLIDATION . . . . . . . . . . . . . . . . . 118
6.4 MAINTENANCE OF PROPERTIES; INSURANCE;
APPLICATION OF NET INSURANCE/ CONDEMNATION
PROCEEDS . . . . . . . . . . . . . . . . . . . 119
6.5 INSPECTION; LENDER MEETING . . . . . . . . . . 121
6.6 COMPLIANCE WITH LAWS, ETC. . . . . . . . . . . 121
6.7 ENVIRONMENTAL DISCLOSURE AND INSPECTION . . . . 121
6.8 EXECUTION OF FUTURE GUARANTIES AND
COLLATERAL DOCUMENTS . . . . . . . . . . . . . 124
6.9 ADDITIONAL REAL PROPERTY COLLATERAL . . . . . . 126
6.10 ASSIGNABILITY AND RECORDING OF LEASE
AGREEMENTS . . . . . . . . . . . . . . . . . . 129
SECTION 7. BORROWERS' NEGATIVE COVENANTS . . . . . . . . . 129
7.1 INDEBTEDNESS . . . . . . . . . . . . . . . . . 129
7.2 LIENS AND RELATED MATTERS . . . . . . . . . . . 131
7.3 INVESTMENTS; JOINT VENTURES . . . . . . . . . . 132
7.4 CONTINGENT OBLIGATIONS . . . . . . . . . . . . 134
7.5 RESTRICTED JUNIOR PAYMENTS . . . . . . . . . . 136
7.6 FINANCIAL COVENANTS . . . . . . . . . . . . . . 137
7.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET
SALES AND ACQUISITIONS . . . . . . . . . . . . 140
7.8 CONSOLIDATED CAPITAL EXPENDITURES . . . . . . . 141
7.9 SALES AND LEASE-BACKS . . . . . . . . . . . . . 142
7.10 TRANSACTIONS WITH SHAREHOLDERS AND
AFFILIATES . . . . . . . . . . . . . . . . . . 142
7.11 DISPOSAL OF SUBSIDIARY STOCK . . . . . . . . . 142
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7.12 CONDUCT OF BUSINESS; LIMITATIONS ON
SUBSIDIARIES . . . . . . . . . . . . . . . . . 143
7.13 AMENDMENTS OF CERTAIN DOCUMENTS; DESIGNATION
OF DESIGNATED SENIOR INDEBTEDNESS . . . . . . . 143
7.14 FISCAL YEAR . . . . . . . . . . . . . . . . . . 144
7.15 FOREIGN UNFUNDED PENSION PLANS . . . . . . . . 144
SECTION 8. EVENTS OF DEFAULT . . . . . . . . . . . . . . . 144
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE . . . . . . . 144
8.2 DEFAULT IN OTHER AGREEMENTS . . . . . . . . . . 144
8.3 BREACH OF CERTAIN COVENANTS . . . . . . . . . . 145
8.4 BREACH OF WARRANTY . . . . . . . . . . . . . . 145
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS . . . . . . 145
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF
RECEIVER, ETC. . . . . . . . . . . . . . . . . 145
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF
RECEIVER, ETC. . . . . . . . . . . . . . . . . 146
8.8 JUDGMENTS AND ATTACHMENTS . . . . . . . . . . . 147
8.9 DISSOLUTION . . . . . . . . . . . . . . . . . . 147
8.10 EMPLOYEE BENEFIT PLANS . . . . . . . . . . . . 147
8.11 CHANGE IN CONTROL . . . . . . . . . . . . . . . 147
8.12 INVALIDITY OF LOAN DOCUMENTS. . . . . . . . . . 148
8.13 FAILURE OF SECURITY. . . . . . . . . . . . . . 149
8.14 ACTION RELATING TO CERTAIN SUBORDINATED
INDEBTEDNESS. . . . . . . . . . . . . . . . . . 149
8.15 AMENDMENT OF CERTAIN DOCUMENTS OF HOLDINGS. . . 149
8.16 CONDUCT OF BUSINESS RELATING TO HOLDINGS. . . . 149
SECTION 9. AGENTS . . . . . . . . . . . . . . . . . . . . 151
9.1 APPOINTMENT . . . . . . . . . . . . . . . . . . 151
9.2 POWERS AND DUTIES; GENERAL IMMUNITY . . . . . . 151
9.3 REPRESENTATIONS AND WARRANTIES; NO
RESPONSIBILITY FOR APPRAISAL OF
CREDITWORTHINESS . . . . . . . . . . . . . . . 153
9.4 RIGHT TO INDEMNITY . . . . . . . . . . . . . . 153
9.5 SUCCESSOR AGENT . . . . . . . . . . . . . . . . 154
9.6 COLLATERAL DOCUMENTS AND GUARANTIES . . . . . . 154
SECTION 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . 155
10.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS AND
LETTERS OF CREDIT . . . . . . . . . . . . . . . 155
10.2 EXPENSES . . . . . . . . . . . . . . . . . . . 158
10.3 INDEMNITY . . . . . . . . . . . . . . . . . . . 159
10.4 SET-OFF; SECURITY INTEREST IN DEPOSIT
ACCOUNTS . . . . . . . . . . . . . . . . . . . 161
10.5 RATABLE SHARING . . . . . . . . . . . . . . . . 162
10.6 AMENDMENTS AND WAIVERS . . . . . . . . . . . . 162
10.7 INDEPENDENCE OF COVENANTS . . . . . . . . . . . 163
10.8 NOTICES . . . . . . . . . . . . . . . . . . . . 164
10.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
AGREEMENTS . . . . . . . . . . . . . . . . . . 164
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10.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES
CUMULATIVE . . . . . . . . . . . . . . . . . . 164
10.11 MARSHALLING; PAYMENTS SET ASIDE . . . . . . . . 164
10.12 SEVERABILITY . . . . . . . . . . . . . . . . . 165
10.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF
LENDERS' RIGHTS . . . . . . . . . . . . . . . . 165
10.14 HEADINGS . . . . . . . . . . . . . . . . . . . 165
10.15 APPLICABLE LAW . . . . . . . . . . . . . . . . 165
10.16 SUCCESSORS AND ASSIGNS . . . . . . . . . . . . 166
10.17 CONSENT TO JURISDICTION AND SERVICE OF
PROCESS . . . . . . . . . . . . . . . . . . . . 166
10.18 WAIVER OF JURY TRIAL . . . . . . . . . . . . . 166
10.19 CONFIDENTIALITY . . . . . . . . . . . . . . . . 167
10.20 JUDGMENT CURRENCY. . . . . . . . . . . . . . . 167
10.21 COUNTERPARTS; EFFECTIVENESS . . . . . . . . . . 168
10.22 NO IMMUNITY . . . . . . . . . . . . . . . . . . 168
Signature pages 159
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EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF REQUEST FOR ISSUANCE OF LETTER OF CREDIT
IV FORM OF REVOLVING NOTE
V FORM OF SWING LINE NOTE
VI FORM OF COMPLIANCE CERTIFICATE
VII FORM OF FINANCIAL CONDITION CERTIFICATE
VIII FORM OF OPINION OF ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
IX-A FORM OF OPINION OF ▇▇▇▇▇▇▇▇ MORI
IX-B FORM OF OPINION OF LINKLATERS & PAINES
IX-C FORM OF OPINION OF COOPERS & ▇▇▇▇▇▇▇
X FORM OF OPINION OF O'MELVENY & ▇▇▇▇▇ LLP
XI FORM OF ASSIGNMENT AGREEMENT
XII FORM OF AUDITOR'S LETTER
XIII FORM OF COLLATERAL ACCOUNT AGREEMENT
XIV FORM OF GUARANTY
XV FORM OF PLEDGE AGREEMENT
XVI FORM OF SECURITY AGREEMENT
XVII FORM OF TRADEMARK SECURITY AGREEMENT
XVIII FORM OF PATENT SECURITY AGREEMENT AND CONDITIONAL ASSIGNMENT
XIX FORM OF SUBSIDIARY GUARANTY
XX FORM OF SUBSIDIARY SECURITY AGREEMENT
XXI FORM OF SUBSIDIARY PLEDGE AGREEMENT
XXII FORM OF SUBSIDIARY TRADEMARK SECURITY AGREEMENT
XXIII FORM OF SUBSIDIARY PATENT SECURITY AGREEMENT AND CONDITIONAL
ASSIGNMENT
XXIV FORM OF MASTER ASSIGNMENT AGREEMENT
XXV FORM OF NOTICE OF ALLOCATION
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SCHEDULES
1.1(a) FUNDING AND PAYMENT OFFICES AND LENDING OFFICES
1.1(b) BANK OF ENGLAND RELATIVE RESERVE RATIO REQUIREMENT
CALCULATION
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
5.1 SUBSIDIARIES OF COMPANY
5.5 REAL PROPERTY ASSETS
5.6 LITIGATION
5.12 CERTAIN FEES
5.13 ENVIRONMENTAL MATTERS
7.1 CERTAIN EXISTING INDEBTEDNESS
7.2 CERTAIN EXISTING LIENS
7.3 CERTAIN EXISTING INVESTMENTS
7.4 CERTAIN EXISTING CONTINGENT OBLIGATIONS; EXISTING LETTERS OF
CREDIT
ANNEXES
A 2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY
B 2.8 OBLIGATIONS OF LENDERS AND ISSUING LENDERS TO MITIGATE
C 2.9 INDEMNIFYING LENDERS
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▇▇▇▇ GRAPHIC SYSTEMS, INC.,
▇▇▇▇ GRAPHIC SYSTEMS LIMITED,
▇▇▇▇ SYSTEMES GRAPHIQUES NANTES S.A.,
AND
▇▇▇▇ GRAPHIC SYSTEMS JAPAN CORPORATION
AMENDED AND RESTATED MULTICURRENCY CREDIT AGREEMENT
This AMENDED AND RESTATED MULTICURRENCY CREDIT AGREEMENT is
dated as of January 29, 1998 and entered into by and among ▇▇▇▇
GRAPHIC SYSTEMS, INC., a corporation organized under the laws of the
State of Delaware ("Company") and whose registered office is at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ GRAPHIC SYSTEMS LIMITED
(Company Number 3212468), a company organized under the laws of
England ("▇▇▇▇ UK") and whose registered office is at ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇ SYSTEMES GRAPHIQUES NANTES
S.A., a societe anonyme organized under the laws of the Republic of
France ("▇▇▇▇ France") and whose registered office is at ▇▇, ▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ GRAPHIC SYSTEMS JAPAN CORPORATION, a
corporation organized under the laws of Japan ("▇▇▇▇ Japan") and whose
registered office is at Mitsuya Toranomon Building, 22-14 Toranomon 1-
Chome, Minato-Ku, Tokyo 105, THE FINANCIAL INSTITUTIONS ACTING AS
LENDERS AND LISTED ON THE SIGNATURE PAGES HEREOF, THE FINANCIAL
INSTITUTIONS ACTING AS INDEMNIFYING LENDERS AND LISTED ON THE
SIGNATURE PAGES HEREOF, BANKERS TRUST COMPANY ("BTCO"), as
administrative agent for Lenders (in such capacity, "ADMINISTRATIVE
AGENT") and whose registered office is at One Bankers Trust Plaza, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and CREDIT SUISSE FIRST
BOSTON ("CSFB"), as syndication agent for Lenders (in such capacity,
"SYNDICATION AGENT") and whose offices are at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
R E C I T A L S
WHEREAS, Company, ▇▇▇▇ UK and ▇▇▇▇ Japan (collectively, the
"EXISTING BORROWERS"), BTCo, CSFB and certain Lenders (this and other
terms used in these recitals without definition being used as defined
in subsection 1.1) are parties to that certain $225,000,000 Credit
Agreement dated as of October 15, 1996 by and among the Existing
Borrowers, the financial institutions acting as lenders and listed on
the signature pages thereto, the financial institutions acting as
indemnifying lenders and listed on the signature pages thereto, BTCo,
as administrative agent, CSFB, as syndication agent, The Bank of Nova
Scotia, as documentation agent, and Bankers Trust Company, Tokyo
Branch, as Japanese agent, as amended by that certain First Amendment
dated as of January 8, 1997, by that certain Second Amendment dated as
of March 31, 1997, by that certain Third Amendment dated as of July 2,
1997, by that certain Fourth Amendment and Limited Waiver dated as of
July 24, 1997 and by that certain Fifth Amendment dated as of November
19, 1997 (as so amended, the "EXISTING CREDIT AGREEMENT");
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WHEREAS, the Existing Borrowers desire to amend and restate
the Existing Credit Agreement, to add ▇▇▇▇ France as a Borrower, to
provide to Borrowers multicurrency revolving credit facilities in an
original aggregate amount of up to $200,000,000, under which Revolving
Loans may be made and under which Letters of Credit may be issued up
to an aggregate sublimit of $175,000,000, and to provide for the
working capital requirements and general corporate purposes of
Borrowers and their respective Subsidiaries, including making
permitted repurchases of Company's outstanding Senior Subordinated
Notes (such amendment and restatement and related transactions are
hereinafter collectively referred to as the "TRANSACTIONS");
WHEREAS, to facilitate the Transactions all Lenders under
the Existing Credit Agreement, pursuant to the Master Assignment
Agreement, have agreed to assign to BTCo all of their existing loans
and existing revolving loan commitments under the Existing Credit
Agreement and BTCo, pursuant to the Master Assignment Agreement, has
agreed to assign to each Lender under this Agreement the Revolving
Loan Commitments set forth on SCHEDULE 2.1 annexed hereto;
WHEREAS, in connection with the Transactions, the parties
hereto desire to make certain other amendments to the terms and
provisions of the Existing Credit Agreement as more fully set forth
herein; and
WHEREAS, Holdings and the Domestic Subsidiaries have agreed
to continue to guaranty the Obligations of Borrowers (including ▇▇▇▇
France) hereunder and under the other Loan Documents, Company has
agreed to guaranty the Obligations of ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇
Japan hereunder and under the other Loan Documents and all such Loan
Parties have agreed to continue to secure such guaranties with a First
Priority Lien on substantially all of their respective real, personal
and mixed property.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Borrowers,
Lenders and Agents agree to amend and restate the Existing Credit
Agreement as follows:
SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the
following meanings:
"ADDITIONAL LETTERS OF CREDIT" means any commercial or
standby letters of credit issued by any lender other than a Lender
under this Agreement for the account of any Borrower as permitted
under subsection 7.4(iii).
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"ADJUSTED OFFSHORE RATE" means, for any Interest Rate
Determination Date with respect to an Interest Period for an Offshore
Rate Loan, the rate per annum equal to the sum of (x) the rate
determined by Administrative Agent to be the arithmetic mean (rounded
upwards, if necessary, to the nearest five decimal places) of the
offered quotations for deposits (for delivery on the first day of such
Interest Period) in the Applicable Currency with maturities comparable
to such Interest Period as of approximately 11:00 A.M. (London time)
on such Interest Rate Determination Date as set forth on Telerate
Display Screen page number 3740 or 3750 (or such other page(s) as may
replace such page(s) from time to time on such Telerate system)
(PROVIDED that in the event the rate referenced in the preceding
clause (x) does not appear on such Telerate page 3740 or 3750 (or
otherwise), such rate shall be the offered quotation (rounded upwards,
if necessary, to the nearest five decimal places) to first class banks
in the London interbank market by Administrative Agent for deposits
(for delivery on the first day of such Interest Period) in the
Applicable Currency of amounts in Same Day Funds comparable to the
principal amount of the Offshore Rate Loan of the Administrative Agent
for which the Adjusted Offshore Rate is then being determined with
maturities comparable to such Interest Period as of approximately
11:00 A.M. (London time) on such Interest Rate Determination Date)
PLUS (y) the additional cost (expressed as a percentage per annum and
rounded upwards, if necessary, to the nearest five decimal places) to
Lenders of complying with (i) the relative reserve asset ratio
required by the Bank of England from time to time, if any, expressed
as a percentage per annum and calculated in the manner set forth in
SCHEDULE 1.1(B), or (ii) any analogous requirement of any central
banking or financial regulatory authority imposed in respect of the
funding or maintenance of Commitments or Loans of the type
contemplated hereby and applicable to the Applicable Currency.
"ADMINISTRATIVE AGENT" has the meaning assigned to that term
in the introduction to this Agreement, and includes any Affiliates of
Administrative Agent performing such functions or acting as collateral
agent with respect to Offshore Currency Loans, and in each case
includes any such successor Administrative Agent appointed pursuant to
subsection 9.5.
"AFFECTED LENDER" has the meaning assigned to that term in
subsection 2.6C.
"AFFILIATE", as applied to any Person, means any other
Person directly or indirectly controlling, controlled by, or under
common control with, that Person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as
applied to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting
securities or by contract or otherwise; PROVIDED that no Agent shall
be considered to be an "Affiliate" of Holdings or any of its
Subsidiaries.
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"AGENTS" means Administrative Agent and Syndication Agent,
collectively.
"AGREEMENT" means this Amended and Restated Multicurrency
Credit Agreement dated as of January 29, 1998, as it may be amended,
supplemented or otherwise modified from time to time.
"APPLICABLE BASE RATE MARGIN" means, as of any date of
determination, a percentage per annum as set forth below opposite the
applicable Consolidated Leverage Ratio:
CONSOLIDATED LEVERAGE RATIO APPLICABLE BASE RATE MARGIN
greater than or equal to 3:50:1.00 1.00%
less than 3.50:1.00 0.75%
but greater than or equal to 3.00:1.00
less than 3.00:1.00 0.50%
but greater than or equal to 2.50:1.00
less than 2.50:1.00 0.25%
but greater than or equal to 2.00:1.00
less than 2.00:1.00 0.00%
; PROVIDED that for the first six months after the Effective Date
until adjusted in accordance with the provisions of subsection 2.2A,
the Applicable Base Rate Margin shall be 0.75% per annum.
"APPLICABLE CURRENCY" means with respect to any particular
Loan or Letter of Credit, Dollars or the applicable Offshore Currency
in which such Loan or Letter of Credit is denominated or payable.
"APPLICABLE OFFSHORE RATE MARGIN" means, as of any date of
determination, a percentage per annum as set forth below opposite the
applicable Consolidated Leverage Ratio:
CONSOLIDATED LEVERAGE RATIO APPLICABLE OFFSHORE RATE MARGIN
greater than or equal to 3:50:1.00 2.00%
less than 3.50:1.00 1.75%
but greater than or equal to 3.00:1.00
less than 3.00:1.00 1.50%
but greater than or equal to 2.50:1.00
less than 2.50:1.00 1.25%
but greater than or equal to 2.00:1.00
less than 2.00:1.00 1.00%
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; PROVIDED that for the first six months after the Effective Date
until adjusted in accordance with the provisions of subsection 2.2A,
the Applicable Offshore Rate Margin shall be 1.75% per annum.
"ASSET SALE" means the sale, assignment or other transfer
for value by Company or any of its Subsidiaries to any Person other
than Company or any of its wholly-owned Subsidiaries of (i) any of the
stock of any of Company's Subsidiaries, (ii) substantially all of the
assets of any division or line of business of Company or any of its
Subsidiaries, or (iii) any other assets (whether tangible or
intangible) of Company or any of its Subsidiaries (other than (a)
inventory sold in the ordinary course of business, (b) the sale of
obsolete, surplus or excess equipment and machinery in the ordinary
course of business or consistent with past practice, (c) the sale of
equipment and machinery returned by or taken in trade from a customer
in the ordinary course of business and consistent with past practice,
and (d) any such other assets to the extent that the aggregate value
of such assets sold in any single transaction or related series of
transactions is equal to $500,000 or less, or $2,000,000 or less in
the aggregate for all such excluded assets under this clause (d));
PROVIDED that the term "Asset Sale" shall not include (i) the sale of
the RGS Customer Notes pursuant to the Loan Portfolio Purchase
Agreement, (ii) the sale from time to time of Secured Customer
Financing Notes and (iii) the sale of certain machine tools located in
Preston, England, in an amount not to exceed $2,000,000.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement in
substantially the form of EXHIBIT XI annexed hereto.
"ASSUMED GUARANTY" means that certain guaranty of not more
than $10,500,000 of the principal on a RGS Customer Note payable by
Socpresse, S.A., Serpo, Presse Ocean and any of their Affiliates
(including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the estate of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and any other
successors, assigns or heirs of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇), which guaranty was
assumed or provided by Company for the benefit of BTCC, as purchaser
of the RGS Customer Notes, and which will expire in approximately
three years, as in effect on the Closing Date and as amended from time
to time to the extent permitted under subsection 7.13.
"AUDITOR'S LETTER" means a letter, substantially in the form
of EXHIBIT XII annexed hereto, acknowledged by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and
delivered to Administrative Agent pursuant to subsection 4.1N or
6.1(iii).
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any
successor statute, and any similar or comparable law of any applicable
Governmental Authority.
"BASE RATE" means, at any time, the higher of (x) the Prime
Rate or (y) the rate which is 1/2 of 1% in excess of the Federal Funds
Effective Rate.
17
"BASE RATE LOANS" means Loans bearing interest at rates
determined by reference to the Base Rate as provided in
subsection 2.2A.
"BORROWER" means (i) with respect to Domestic Revolving
Loans and Swing Line Loans, Company, (ii) with respect to UK Revolving
Loans, ▇▇▇▇ UK, (iii) with respect to French Revolving Loans, ▇▇▇▇
France, and (iv) with respect to Japanese Revolving Loans, ▇▇▇▇ Japan,
and "BORROWERS" means any combination thereof, collectively.
"BTCC" means BT Commercial Corporation, an Affiliate of
BTCo.
"BUSINESS DAY" means (i) for all purposes other than as
covered by clauses (ii) and (iii) below, any day excluding Saturday,
Sunday and any day which is a legal holiday under the laws of the
State of New York or is a day on which banking institutions located in
either such state are authorized or required by law or other
governmental action to close, (ii) with respect to all notices,
determinations, fundings and payments in connection with the Adjusted
Offshore Rate or any Offshore Rate Loans, any day that is a Business
Day described in clause (i) above and that is also a day for trading
by and between banks in Dollar deposits in the London interbank
market, and (iii) with respect to all notices, determinations,
fundings and payments in any Offshore Currency in connection with the
Adjusted Offshore Rate or any Offshore Rate Loans, any day that is a
Business Day described in clause (i) above and that is also a day on
which banks and foreign exchange markets are open for foreign exchange
business in London and on which banks and foreign exchange markets are
also open for foreign exchange business in the principal financial
center of the country of that Offshore Currency.
"CAPITAL LEASE", as applied to any Person, means any lease
of any property (whether real, personal or mixed) by that Person as
lessee that, in conformity with GAAP, is accounted for as a capital
lease on the balance sheet of that Person.
"CASH" means money, currency or a credit balance in a
Deposit Account.
"CASH EQUIVALENTS" means, as at any date of determination,
(i) (a) marketable securities (1) issued or directly and
unconditionally guaranteed as to interest and principal by the United
States Government or (2) issued by any agency of the United States the
obligations of which are backed by the full faith and credit of the
United States, in each case maturing within one year after such date;
(b) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or
any public instrumentality thereof, in each case maturing within one
year after such date and having, at the time of the acquisition
thereof, the highest rating obtainable from either Standard & Poor's
Ratings Group ("S&P") or ▇▇▇▇▇'▇ Investors Service, Inc. ("MOODY'S");
(c) commercial paper maturing no more than one year from the date of
18
creation thereof and having, at the time of the acquisition thereof, a
rating of at least A-1 from S&P or at least P-1 from Moody's;
(d) certificates of deposit or bankers' acceptances maturing within
one year after such date and issued or accepted by any Lender or by
any commercial bank organized under the laws of the United States of
America or any state thereof or the District of Columbia that (1) is
at least "adequately capitalized" (as defined in the regulations of
its primary Federal banking regulator) and (2) has Tier 1 capital (as
defined in such regulations) of not less than $100,000,000; and (e)
shares of any money market mutual fund that (1) has at least 95% of
its assets invested continuously in the types of investments referred
to in clauses (a) and (b) above, (2) has net assets of not less than
$500,000,000, and (3) has the highest rating obtainable from either
S&P or Moody's, and (ii) with respect to ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇
Japan, such other European, Japanese or Australian investments which
are comparable in term and credit quality to those described in the
foregoing clause (i)(a)-(e).
"CERTIFICATE RE NON-BANK STATUS" means a certificate in form
and substance satisfactory to Administrative Agent delivered by a
Lender to Administrative Agent pursuant to subsection 2.7B(iii) (as
fully set forth in ANNEX A) pursuant to which such Lender certifies,
under penalty of perjury, that it is not (i) a "bank" as such term is
defined in subsection 881(c)(3) of the Internal Revenue Code; (ii) a
10 percent shareholder of Company within the meaning of Section
871(h)(3)(B) or Section 881(c)(3)(B) of the Internal Revenue Code; or
(iii) a "controlled" foreign corporation related to Company within the
meaning of Section 864(d)(4) of the Internal Revenue Code.
"CLOSING DATE" means October 15, 1996, the date on which the
initial Loans were made under the Existing Credit Agreement.
"COLLATERAL" means, collectively, all of the real, personal
and mixed property (including capital stock) in which Liens are
purported to be granted by the Collateral Documents.
"COLLATERAL ACCOUNT" has the meaning assigned to that term
in the Collateral Account Agreement.
"COLLATERAL ACCOUNT AGREEMENT" means (i) the Amended and
Restated Collateral Account Agreements executed and delivered by each
of Company, ▇▇▇▇ UK and ▇▇▇▇ Japan and Administrative Agent on the
Effective Date and (ii) the Collateral Account Agreement executed by
▇▇▇▇ France and Administrative Agent, pursuant to which such Borrowers
may pledge cash to Administrative Agent to secure the obligations of
such Borrower to reimburse an Issuing Lender for payments made under
one or more Letters of Credit as provided in Section 3, substantially
in the form of EXHIBIT XIII annexed hereto, as such Collateral Account
Agreements may hereafter be amended, supplemented or otherwise
modified from time to time.
"COLLATERAL DOCUMENTS" means the Collateral Account
Agreements, the Security Agreements, the Pledge Agreements, the IP
19
Collateral Documents, the Subsidiary Security Agreements, the
Subsidiary Pledge Agreements and the Mortgages.
"COMMERCIAL LETTER OF CREDIT" means any letter of credit or
similar instrument issued for the purpose of providing the primary
payment mechanism in connection with the purchase of any materials,
goods or services by a Borrower or any of its Subsidiaries in the
ordinary course of business of such Borrower or such Subsidiary.
"COMMITMENT FEE PERCENTAGE" means, as of any date of
determination, a percentage per annum as set forth below opposite the
applicable Consolidated Leverage Ratio:
CONSOLIDATED LEVERAGE RATIO COMMITMENT FEE PERCENTAGE
greater than or equal to 3:00:1.00 0.500%
less than 3.00:1.00 0.375%
; PROVIDED that for the first six months after the Effective Date
until adjusted in accordance with the provisions of subsection
2.3A(v), the Commitment Fee Percentage shall be 0.500% per annum.
"COMMITMENT TERMINATION DATE" means January 29, 2003.
"COMMITMENTS" means the Domestic Revolving Loan Commitments,
the Swing Line Loan Commitment, the UK Revolving Loan Commitments, the
French Revolving Loan Commitments, the Japanese Revolving Loan
Commitments or any combination thereof.
"COMPANY" has the meaning assigned to that term in the
introduction to this Agreement.
"COMPANY COMMON STOCK" means the common stock of Company,
par value $0.01 per share.
"COMPLIANCE CERTIFICATE" means a certificate substantially
in the form of EXHIBIT VI annexed hereto delivered to Administrative
Agent and Lenders by Company pursuant to subsection 6.1(iv).
"COMPUTATION DATE" has the meaning assigned to that term in
subsection 2.1F(i).
"CONSOLIDATED ADJUSTED EBITDA" means, for any period, (a)
the sum, without duplication, of the amounts for such period of
(i) Consolidated Net Income, (ii) Consolidated Interest Expense,
(iii) provisions for taxes based on income, (iv) total depreciation
expense, (v) total amortization expense, (vi) expenses related to the
RGS Customer Notes, and (vii) other non-cash items reducing
Consolidated Net Income LESS (b) the sum, without duplication, of the
amounts for such period of (i) income related to the RGS Customer
Notes and (ii) other non-cash items increasing Consolidated Net
20
Income, all of the foregoing as determined on a consolidated basis for
Company and its Subsidiaries in conformity with GAAP.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period,
the sum of the aggregate of all expenditures (whether paid in cash or
other consideration or accrued as a liability and including that
portion of Capital Leases which is capitalized on the consolidated
balance sheet of Company and its Subsidiaries) by Company and its
Subsidiaries during that period that, in conformity with GAAP, are
included in "additions to property, plant or equipment" or comparable
items reflected in the consolidated statement of cash flows of Company
and its Subsidiaries.
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period,
Consolidated Interest Expense for such period EXCLUDING, HOWEVER, any
interest expense not payable in Cash (including amortization of
discount and amortization of debt issuance costs).
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum
(without duplication) of the amounts for such period of (i)
Consolidated Cash Interest Expense accrued after the Closing Date,
(ii) scheduled principal payments made on Consolidated Total Debt, and
(iii) consolidated cash taxes accrued after the Closing Date, all of
the foregoing as determined on a consolidated basis for Company and
its Subsidiaries in conformity with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total
interest expense (including that portion attributable to Capital
Leases in accordance with GAAP and capitalized interest) of Company
and its Subsidiaries on a consolidated basis with respect to
Consolidated Total Debt, including, without limitation, all
commissions, discounts and other fees and charges owed with respect to
letters of credit, but EXCLUDING, HOWEVER, (x) any amounts referred to
in subsection 2.3 payable to Administrative Agent and Lenders on or
before the Effective Date and (y) any net interest income.
"CONSOLIDATED LEVERAGE RATIO" means, as at any date of
determination, the ratio of (i) the difference of (x) Consolidated
Total Debt LESS (y) Cash of Company and its Subsidiaries deposited in
any Deposit Account of Company or any of its Subsidiaries, in each
case as of the last day of the Fiscal Quarter for which such
determination is being made, to (ii) Consolidated Adjusted EBITDA for
the four-Fiscal Quarter period ending as of the last day of the Fiscal
Quarter for which such determination is being made.
"CONSOLIDATED NET INCOME" means, for any period, the net
income (or loss) of Company and its Subsidiaries on a consolidated
basis for such period taken as a single accounting period determined
in conformity with GAAP; PROVIDED that there shall be excluded (i) the
income (or loss) of any Person (other than a Subsidiary of Company) in
which any other Person (other than Company or any of its Subsidiaries)
has a joint interest, except to the extent of the amount of dividends
or other distributions actually paid to Company or any of its
21
Subsidiaries by such Person during such period, (ii) the income (or
loss) of any Person accrued prior to the date it becomes a Subsidiary
of Company or is merged into or consolidated with Company or any of
its Subsidiaries or that Person's assets are acquired by Company or
any of its Subsidiaries, (iii) the income of any Subsidiary of Company
to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary, (iv) any after-tax gains or
losses attributable to Asset Sales or returned surplus assets of any
Pension Plan, and (v) (to the extent not included in clauses
(i) through (iv) above) any net extraordinary gains or net non-cash
extraordinary losses.
"CONSOLIDATED NET WORTH" means, as at any date of
determination, the sum of the capital stock and paid-in capital, plus
retained earnings (or minus accumulated deficits) of Company and its
Subsidiaries, determined on a consolidated basis in conformity with
GAAP.
"CONSOLIDATED TOTAL DEBT" means, as at any date of
determination, the aggregate stated balance sheet amount of all
Indebtedness of Company and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"CONTINGENT OBLIGATION", as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person
(i) with respect to any Indebtedness, lease, dividend or other
obligation of another if the primary purpose or intent thereof by the
Person incurring the Contingent Obligation is to provide assurance to
the obligee of such obligation of another that such obligation of
another will be paid or discharged, or that any agreements relating
thereto will be complied with, or that the holders of such obligation
will be protected (in whole or in part) against loss in respect
thereof, (ii) with respect to any letter of credit issued for the
account of that Person or as to which that Person is otherwise liable
for reimbursement of drawings, or (iii) under Hedge Agreements.
Contingent Obligations shall include, without limitation, (a) the
direct or indirect guaranty, endorsement (other than for collection or
deposit in the ordinary course of business), co-making, discounting
with recourse or sale with recourse by such Person of the obligation
of another, (b) the obligation to make take-or-pay or similar payments
if required regardless of non-performance by any other party or
parties to an agreement, and (c) any liability of such Person for the
obligation of another through any agreement (contingent or otherwise)
(X) to purchase, repurchase or otherwise acquire such obligation or
any security therefor, or to provide funds for the payment or
discharge of such obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise) or (Y) to
maintain the solvency or any balance sheet item, level of income or
financial condition of another if, in the case of any agreement
described under subclauses (X) or (Y) of this sentence, the primary
22
purpose or intent thereof is as described in the preceding sentence.
The amount of any Contingent Obligation shall be equal to the amount
of the obligation so guaranteed or otherwise supported or, if less,
the amount to which such Contingent Obligation is specifically
limited.
"CONTRACTUAL OBLIGATION", as applied to any Person, means
any provision of any Security issued by that Person or of any material
indenture, mortgage, deed of trust, contract, undertaking, agreement
or other instrument to which that Person is a party or by which it or
any of its properties is bound or to which it or any of its properties
is subject.
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement, futures contract, option contract, synthetic
cap or other similar agreement or arrangement.
"CUSTOMER FINANCING NOTE GUARANTY" means a guaranty of, or a
recourse arrangement relating to, in each case on terms consistent
with the past practices of Company and its Subsidiaries and with
prevailing industry practices, all or a portion of Secured Customer
Financing Notes provided by Company or any of its Subsidiaries for the
benefit of an unaffiliated purchaser of any Secured Customer Financing
Note, or all or a portion of promissory notes or other financing
provided by third parties to customers of Company or any of its
Subsidiaries to provide for the payment by such customer of all or any
part of the purchase price of finished goods sold by Company or any of
its Subsidiaries to such customer.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or
like account with a bank, savings and loan association, credit union
or like organization, other than an account evidenced by a negotiable
certificate of deposit.
"DOLLAR EQUIVALENTS" means, at any time, (x) as to any
amount denominated in Dollars, the amount thereof at such time, and
(y) as to any amount denominated in an Offshore Currency or any other
currency other than Dollars, the equivalent amount in Dollars as
determined by Administrative Agent at such time on the basis of the
Exchange Rate for the purchase of Dollars with such Offshore Currency
or other currency on the most recent Computation Date provided for in
subsection 2.1F(i) or such other time as may be reasonably specified
by Administrative Agent.
"DOLLARS" and the sign "$" mean the lawful money of the
United States of America.
"DOMESTIC LENDER" and "DOMESTIC LENDERS" means the Lenders
that have Domestic Revolving Loan Commitments or a Swing Line Loan
Commitment or that have Domestic Revolving Loans or Swing Line Loans
outstanding, together with their successors and permitted assigns
pursuant to subsection 10.1, and the term "DOMESTIC LENDERS" shall
include Swing Line Lender unless the context otherwise requires.
23
"DOMESTIC LOAN EXPOSURE" means, with respect to any Domestic
Lender as of any date of determination (i) prior to the termination of
the Domestic Revolving Loan Commitments, that Lender's Domestic
Revolving Loan Commitment and (ii) after the termination of the
Domestic Revolving Loan Commitments, the sum of (a) the aggregate
outstanding principal amount of the Domestic Revolving Loans of that
Lender PLUS (b) in the event that Lender is an Issuing Lender, the
aggregate Letter of Credit Usage in respect of all Letters of Credit
issued by that Lender for the benefit of Company (in each case net of
any participations purchased by other Lenders in such Letters of
Credit or any unreimbursed drawings thereunder) PLUS (c) the aggregate
amount of all participations purchased by that Lender in any
outstanding Letters of Credit for the benefit of Company or any
unreimbursed drawings under any such Letters of Credit PLUS (d) in the
case of Swing Line Lender, the aggregate outstanding principal amount
of all Swing Line Loans (net of any participations therein purchase by
other Lenders) PLUS (e) the aggregate amount of all participations
purchased by that Lender in any outstanding Swing Line Loans.
"DOMESTIC REVOLVING LOAN COMMITMENT" means the commitment of
a Domestic Lender (i) to make Domestic Revolving Loans to Company
pursuant to subsection 2.1A(i)(a), (ii) to issue and/or purchase
participations in Letters of Credit for the account of Company
pursuant to Section 3, and (iii) except for Swing Line Lender, to
purchase participations in Swing Line Loans pursuant to subsection
2.1A(ii), and "DOMESTIC REVOLVING LOAN COMMITMENTS" means such
commitments of all such Lenders in the aggregate.
"DOMESTIC REVOLVING LOANS" means the Loans made by Lenders
to Company pursuant to subsection 2.1A(i)(a).
"DOMESTIC SUBSIDIARY" means a direct or indirect Subsidiary
of Company that is incorporated or organized under the laws of a state
of the United States of America.
"EFFECTIVE DATE" means the date on or before January 29,
1998, on which the conditions precedent to the effectiveness of this
Agreement set forth in subsection 4.1 are satisfied.
"ELIGIBLE ASSIGNEE" means (A) (i) a commercial bank
organized under the laws of the United States or any state thereof;
(ii) a savings and loan association or savings bank organized under
the laws of the United States or any state thereof; (iii) a commercial
bank organized under the laws of any other country or a political
subdivision thereof; PROVIDED that (x) such bank is acting through a
branch or agency located in the United States or (y) such bank is
organized under the laws of a country that is a member of the
Organization for Economic Cooperation and Development or a political
subdivision of such country; and (iv) any other entity which is an
"accredited investor" (as defined in Regulation D under the Securities
Act) which extends credit or buys loans as one of its businesses
including, but not limited to, insurance companies, mutual funds and
lease financing companies, in each case (under clauses (i) through
24
(iv) above) that is reasonably acceptable to Administrative Agent; and
(B) any Lender and any Affiliate of any Lender; PROVIDED that no
Affiliate of Company shall be an Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as
defined in Section 3(3) of ERISA which is, or was at any time,
maintained or contributed to by Company or any of its ERISA
Affiliates. Any such plan of a former ERISA Affiliate of the Company
shall continue to be considered an Employee Benefit Plan within the
meaning of this definition solely with respect to the period during
which such former ERISA Affiliate was an ERISA Affiliate of the
Company and with respect to liabilities existing after such period for
which the Company could be liable under the Internal Revenue Code or
ERISA.
"ENVIRONMENTAL CLAIM" means any allegation, notice of
violation, claim, demand, abatement order or other direction
(conditional or otherwise) by any Governmental Authority or any Person
for any damage, including, without limitation, personal injury
(including sickness, disease or death), tangible or intangible
property damage, contribution, indemnity, indirect or consequential
damages, damage to the environment, nuisance, pollution, contamination
or other adverse effects on the environment, or for fines, penalties
or restrictions, in each case relating to, resulting from or in
connection with Hazardous Materials and relating to Company, any of
its Subsidiaries, any of their respective Affiliates or any Facility.
"ENVIRONMENTAL LAWS" means all statutes, ordinances, orders,
rules, regulations, plans, policies or decrees and requirements having
the force of law of any Governmental Authority relating to
(i) environmental matters, including, without limitation, those
relating to fines, injunctions, penalties, damages, contribution, cost
recovery compensation, losses or injuries resulting from the Release
or threatened Release, (ii) the generation, use, storage,
transportation or disposal of Hazardous Materials, or
(iii) occupational safety and health, industrial hygiene, land use or
the protection of human, plant or animal health or welfare from
environmental hazards, in any manner applicable to Company or any of
its Subsidiaries or any of their respective properties, including,
without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. Section 9601 et seq.) ("CERCLA"),
the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.),
the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.),
the Federal Water Pollution Control Act ( 33 U.S.C. Section 1251 et seq.),
the Clean Air Act (42 U.S.C. Section 7401 et seq.), the Toxic Substances
Control Act (15 U.S.C. Section 2601 et seq.), the Federal Insecticide,
Fungicide and Rodenticide Act (7 U.S.C. Section 136 et seq.), the
Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.) and the
Emergency Planning and Community Right-to-Know Act (42 U.S.C. Section 11001
et seq.), each as amended, and any analogous future or present local,
state and federal laws, statutes and regulations promulgated pursuant
thereto, each as in effect and applicable as of the date of
determination.
25
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute, and any
similar or comparable laws in a jurisdiction outside of the U.S.
applicable to Company or any of its Subsidiaries.
"ERISA AFFILIATE", as applied to any Person, means (i) any
corporation which is a member of a controlled group of corporations
within the meaning of Section 414(b) of the Internal Revenue Code of
which that Person is a member; (ii) any trade or business (whether or
not incorporated) which is a member of a group of trades or businesses
under common control within the meaning of Section 414(c) of the
Internal Revenue Code of which that Person is a member; and
(iii) except for purposes of Title IV of ERISA, any member of an
affiliated service group within the meaning of Section 414(m) or (o)
of the Internal Revenue Code of which that Person, any corporation
described in clause (i) above or any trade or business described in
clause (ii) above is a member. Any former ERISA Affiliate of a Person
shall continue to be considered an ERISA Affiliate within the meaning
of this definition solely with respect to the period during which such
entity was an ERISA Affiliate of the Person and with respect to
liabilities arising after such period for which the Person could be
liable under the Internal Revenue Code or ERISA.
"ERISA EVENT" means (i) a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations issued thereunder
with respect to any Pension Plan (excluding those for which the
provision for 30-day notice to the PBGC has been waived by
regulation); (ii) the failure to meet the minimum funding standard of
Section 412 of the Internal Revenue Code with respect to any Pension
Plan (whether or not waived in accordance with Section 412(d) of the
Internal Revenue Code) or the failure to make by its due date a
required installment under Section 412(m) of the Internal Revenue Code
with respect to any Pension Plan or the failure to make any required
contribution to a Multiemployer Plan; (iii) the provision by the
administrator of any Pension Plan pursuant to Section 4041(a)(2) of
ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 4041(c) of ERISA; (iv) the withdrawal
by Company or any of its ERISA Affiliates from any Pension Plan with
two or more contributing sponsors or the termination of any such
Pension Plan resulting in liability pursuant to Sections 4063 or 4064
of ERISA; (v) the institution by the PBGC of proceedings to terminate
any Pension Plan, or the occurrence of any event or condition which
could reasonably be expected to constitute grounds under ERISA for the
termination of, or the appointment of a trustee to administer, any
Pension Plan; (vi) the imposition of liability on Company or any of
its ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or
by reason of the application of Section 4212(c) of ERISA; (vii) the
withdrawal by Company or any of its ERISA Affiliates in a complete or
partial withdrawal (within the meaning of Sections 4203 and 4205 of
ERISA) from any Multiemployer Plan if there is any potential liability
therefor, or the receipt by Company or any of its ERISA Affiliates of
notice from any Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA, or that it
26
intends to terminate or has terminated under Section 4041A or 4042 of
ERISA; (viii) the occurrence of an act or omission which could
reasonably be expected to give rise to the imposition on Company or
any of its ERISA Affiliates of material fines, penalties, taxes or
related charges under Chapter 43 of the Internal Revenue Code or under
Section 409 or 502(c), (i) or (l) or 4071 of ERISA in respect of any
Employee Benefit Plan; (ix) the assertion of a material claim (other
than routine claims for benefits) against any Employee Benefit Plan
other than a Multiemployer Plan or the assets thereof, or against
Company or any of its ERISA Affiliates in connection with any such
Employee Benefit Plan; (x) receipt from the Internal Revenue Service
of notice of the failure of any Pension Plan (or any other Employee
Benefit Plan intended to be qualified under Section 401(a) of the
Internal Revenue Code) to qualify under Section 401(a) of the Internal
Revenue Code, or the failure of any trust forming part of any Pension
Plan to qualify for exemption from taxation under Section 501(a) of
the Internal Revenue Code; or (xi) the imposition of a Lien pursuant
to Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan; PROVIDED that any
event described in the foregoing clauses shall not be an ERISA Event
if Company and/or its Subsidiaries are (or would be) liable for any
potential liability resulting from such event solely because of their
affiliation with an ERISA Affiliate (excluding Company and all
Subsidiaries) and (i) such events could not reasonably be expected to
result (individually or in the aggregate) in liability (including
joint and several liability) of Company and its Subsidiaries of more
than $1,000,000, or (ii) neither Company and its Subsidiary could
reasonably be expected to be liable (either individually or on a joint
and several basis) for any potential liability resulting from such
event; PROVIDED FURTHER that any event described in the foregoing
proviso shall be an ERISA Event if the PBGC or any other governmental
authority notifies Company or one of its Subsidiaries that Company or
one of its Subsidiaries is liable for any potential liability
resulting from such event.
"EVENT OF DEFAULT" means each of the events set forth in
Section 8.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute, and any
comparable or similar laws in a jurisdiction outside of the United
States applicable to Company or any of its Subsidiaries.
"EXCHANGE RATE" means, with respect to any currency other
than Dollars, the rate of exchange quoted by the Wall Street Journal
on the date of determination as applicable to trading among banks at
4:00 P.M. (New York time) on the immediately preceding Business Day
(or at such other time and on such other date specified in the Wall
Street Journal) in the New York foreign exchange market for such other
currency.
"FACILITIES" means the manufacturing plants, offices,
warehouses and all other real property (including, without limitation,
27
all buildings, fixtures or other improvements located thereon) and
related facilities now, hereafter or heretofore owned, leased,
operated or used by Company or any of its Subsidiaries or any of their
respective predecessors or Affiliates.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a
fluctuating interest rate equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such
transactions received by Administrative Agent from three Federal funds
brokers of recognized standing selected by Administrative Agent.
"FEE PROPERTY" means a Real Property Asset consisting of a
fee interest in real property.
"FINANCIAL PLAN" has the meaning assigned to that term in
subsection 6.1(xiii).
"FIRST PRIORITY" means, with respect to any Lien purported
to be created in any Collateral pursuant to any Collateral Document,
that (i) such Lien has priority over any other Lien (other than
Permitted Encumbrances which as a matter of statutory law have
priority over any other Lien irrespective of the prior perfection or
filing of such other Lien) on such Collateral and (ii) such Lien is
the only Lien (other than Permitted Encumbrances) to which such
Collateral is subject.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Company and its
Subsidiaries ending on September 30 of each calendar year.
"FLOOD HAZARD PROPERTY" means a Mortgaged Property located
in an area in the United States designated by the Federal Emergency
Management Agency as having special flood or mud slide hazards.
"FOREIGN SUBSIDIARY" means a direct or indirect Subsidiary
of Company that is incorporated or organized under the laws of a
jurisdiction other than that of the United States of America.
"FOREIGN UNFUNDED PENSION PLAN" means a Pension Plan
described in Section 4(b)(4) of ERISA that is not required to be
funded pursuant to applicable foreign law.
"FRANCS" and the sign "FF" mean the lawful money of the
Republic of France.
"FRENCH INDEMNIFYING LENDER" means each financial
institution that is designated as a French Indemnifying Lender on
28
SCHEDULE 2.1 annexed hereto, and each financial institution which is
designated, with the approval of Administrative Agent, as a French
Indemnifying Lender in an Assignment Agreement.
"FRENCH LENDER" and "FRENCH LENDERS" means the Lenders that
have French Revolving Loan Commitments or that have French Revolving
Loans outstanding, together with their successors and permitted
assigns pursuant to subsection 10.1.
"FRENCH LOAN EXPOSURE" means, with respect to any French
Lender as of any date of determination (i) prior to the termination of
the French Revolving Loan Commitments, that Lender's French Revolving
Loan Commitment and (ii) after the termination of the French Revolving
Loan Commitments, the sum of (a) the aggregate outstanding principal
amount of the French Revolving Loans of that Lender PLUS (b) in the
event that Lender is an Issuing Lender, the aggregate Letter of Credit
Usage in respect of all Letters of Credit issued by that Lender for
the benefit of ▇▇▇▇ France (in each case net of any participations
purchased by other Lenders in such Letters of Credit or any
unreimbursed drawings thereunder) PLUS (c) the aggregate amount of all
participations purchased by that Lender in any outstanding Letters of
Credit for the benefit of ▇▇▇▇ France or any unreimbursed drawings
under any such Letters of Credit.
"FRENCH REVOLVING LOAN COMMITMENT" means the commitment of a
French Lender (i) to make French Revolving Loans to ▇▇▇▇ France
pursuant to subsection 2.1A(i)(a) and (ii) to issue and/or purchase
participations in Letters of Credit for the account of ▇▇▇▇ France
pursuant to Section 3, and "FRENCH REVOLVING LOAN COMMITMENTS" means
such commitments of all such Lenders in the aggregate.
"FRENCH REVOLVING LOANS" means the Loans made by Lenders to
▇▇▇▇ France pursuant to subsection 2.1A(i)(a).
"FUNDING DATE" means the date of the funding of a Loan.
"FUNDING AND PAYMENT OFFICE" means (i) the office or offices
of Administrative Agent and/or Swing Line Lender set forth on SCHEDULE
1.1(A) annexed hereto, or (ii) such other office or offices of
Administrative Agent and/or Swing Line Lender as may from time to time
hereafter be designated as such in a written notice delivered by
Administrative Agent and/or Swing Line Lender to Borrowers and
Lenders.
"GAAP" means, subject to the limitations on the application
thereof set forth in subsection 1.2, generally accepted accounting
principles set forth in opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other
entity as may be approved by a significant segment of the accounting
profession, in each case as the same are applicable to the
circumstances as of the date of determination.
▇▇
"▇▇▇▇ ▇▇▇▇▇▇" has the meaning assigned to that term in the
introduction to this Agreement and is a wholly-owned Subsidiary of
Company.
"▇▇▇▇ JAPAN" has the meaning assigned to that term in the
introduction to this Agreement and is a wholly-owned Subsidiary of
Company.
"▇▇▇▇ UK" has the meaning assigned to that term in the
introduction to this Agreement and is a wholly-owned Subsidiary of
Company.
"GOVERNMENTAL AUTHORITY" means any federal, state or local
governmental authority, agency or court in the United States, or other
comparable or similar governmental authority, agency or court in a
jurisdiction outside of the United States, in each case applicable to
Company or any of its Subsidiaries.
"GOVERNMENTAL AUTHORIZATION" means any permit, license,
authorization, plan, directive, consent order or consent decree of or
from any Governmental Authority.
"GUARANTOR" means, at any time, Holdings, Company or any of
their respective Subsidiaries that is then a party to any of the
Guaranties or Subsidiary Guaranties.
"GUARANTY" means the Amended and Restated Guaranty executed
and delivered by Company or Holdings on the Effective Date
substantially in the form of EXHIBIT XIV attached hereto, and any
other guaranty, document or instrument with a similar or comparable
effect executed by any Foreign Subsidiary that is a Borrower, in form
and substance satisfactory to Administrative Agent, in each case as
such Guaranty may be amended, supplemented or otherwise modified from
time to time, and "GUARANTIES" means all such Guaranties,
collectively.
"HAZARDOUS MATERIALS" means (i) any chemical, material or
substance which, at the time of determination, is defined as or
included in the definition of "hazardous substances", "hazardous
wastes", "hazardous materials", "extremely hazardous waste",
"restricted hazardous waste", "infectious waste", "toxic substances"
or any other formulations intended to define, list or classify
substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, toxicity, reproductive
toxicity, "TCLP toxicity" or "EP toxicity" or words of similar meaning
and regulatory effect under any applicable Environmental Laws;
(ii) any oil, petroleum, petroleum fraction or petroleum derived
substance; (iii) any drilling fluids, produced waters and other wastes
associated with the exploration, development or production of crude
oil, natural gas or geothermal resources; (iv) any flammable
substances or explosives; (v) any radioactive materials; (vi) asbestos
in any form; (vii) urea formaldehyde foam insulation;
(viii) electrical equipment which contains any dielectric fluid
30
containing a mixture of polychlorinated biphenyls ("PCB") in excess of
fifty parts per million of PCB's; (ix) pesticides; and (x) any other
chemical, material or substance, exposure to which is prohibited,
limited, regulated or determined by any Governmental Authority or
which may or could pose a hazard to the health and safety of the
owners, occupants or any Persons in the vicinity of the Facilities.
"HEDGE AGREEMENT" means an Interest Rate Agreement or a
Currency Agreement designed to hedge against fluctuations in interest
rates or currency values, respectively.
"HOLDINGS" means GGS Holdings, Inc., a corporation organized
under the laws of the State of Delaware.
"HOLDINGS' CERTIFICATE OF DESIGNATION" means Holdings'
Certificate of Designation of 6-1/2% Redeemable Pay-in-Kind Preferred
Stock, in the form delivered to Administrative Agent and Lenders on
the Closing Date and as such provisions may be amended from time to
time to the extent permitted under subsection 7.13.
"HOLDINGS COMMON STOCK" means the voting and nonvoting
common stock of Holdings, par value $0.01 per share.
"HOLDINGS PREFERRED STOCK" means the 6-1/2% Redeemable Pay-
in-Kind Preferred Stock of Holdings, par value $0.01 per share, having
a liquidation preference of $1,000 per share or $47,500,000 in the
aggregate at issuance, and issued to Rockwell in connection with the
transactions contemplated by the Purchase Agreement.
"INACTIVE SUBSIDIARY" means any Subsidiary of Company that
does not engage in any business activity; PROVIDED that the aggregate
assets owned and the aggregate revenues generated by all Inactive
Subsidiaries shall not exceed $1,000,000; and each Inactive Subsidiary
shall be so identified on SCHEDULE 5.1 annexed hereto.
"INDEBTEDNESS", as applied to any Person, means, without
duplication, (i) all indebtedness for borrowed money, (ii) that
portion of obligations with respect to Capital Leases that is properly
classified as a liability on a balance sheet in conformity with GAAP,
(iii) notes payable and drafts accepted representing extensions of
credit whether or not representing obligations for borrowed money,
(iv) any obligation owed for all or any part of the deferred purchase
price of property or services (excluding any such obligations incurred
under ERISA), which purchase price is (a) due more than six months
from the date of incurrence of the obligation in respect thereof or
(b) evidenced by a note or similar written instrument, and (v) all
indebtedness secured by any Lien on any property or asset owned or
held by that Person regardless of whether the indebtedness secured
thereby shall have been assumed by that Person or is nonrecourse to
the credit of that Person. Obligations under Interest Rate Agreements
and Currency Agreements constitute Contingent Obligations and not
Indebtedness.
31
"INDEMNITEE" has the meaning assigned to that term in
subsection 10.3.
"INDEMNIFYING LENDER" means each UK Indemnifying Lender,
each French Indemnifying Lender and each Japanese Indemnifying Lender,
and "INDEMNIFYING LENDERS" means, collectively, all such financial
institutions.
"INDEMNITY AMOUNT" means for each Indemnifying Lender which
is a signatory hereto the amount and the percentage that is so
designated and set forth opposite such Indemnifying Lender's name on
SCHEDULE 2.1 annexed hereto, and for each financial institution which
becomes an Indemnifying Lender pursuant to an Assignment Agreement the
amount and the percentage that is so designated in such Assignment
Agreement.
"INDEMNITY PARTICIPATION" shall have the meaning set forth
therefor in subsection 2.9.
"INTEREST PAYMENT DATE" means (i) with respect to any Base
Rate Loan, each first Business Day after each March 31, June 30,
September 30 and December 31 of each year, commencing on the first
such date to occur after the Effective Date, and (ii) with respect to
any Offshore Rate Loan, the last day of each Interest Period
applicable to such Loan; PROVIDED that in the case of each Interest
Period of six months "Interest Payment Date" shall also include the
date that is three months after the commencement of such Interest
Period.
"INTEREST PERIOD" has the meaning assigned to that term in
subsection 2.2B.
"INTEREST RATE AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement
or other similar agreement or arrangement.
"INTEREST RATE DETERMINATION DATE" means, (i) with respect
to any Interest Period relating to any Loan (other than Loans
denominated in Sterling), the second Business Day prior to the first
day of such Interest Period, and (ii) with respect to any Interest
Period relating to any Loan denominated in Sterling, the first day of
such Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended to the date hereof and from time to time hereafter,
and any successor statute, and any similar or comparable laws in a
jurisdiction outside of the United States applicable to Company or any
of its Subsidiaries.
"INVESTMENT" means (i) any direct or indirect purchase or
other acquisition by Company or any of its Subsidiaries of, or of a
beneficial interest in, any Securities of any other Person (other than
a Person that prior to such purchase or acquisition was a wholly-owned
32
Domestic Subsidiary of Company), (ii) any direct or indirect
redemption, retirement, purchase or other acquisition for value, by
any Subsidiary of Company from any Person other than Company or any of
its Subsidiaries, of any equity Securities of such Subsidiary, or
(iii) any direct or indirect loan, advance (other than advances to
employees for moving, entertainment and travel expenses, drawing
accounts and similar expenditures in the ordinary course of business)
or capital contribution by Company or any of its Subsidiaries to any
other Person other than a wholly-owned Domestic Subsidiary of Company,
including all indebtedness and accounts receivable from that other
Person that are not current assets or did not arise from sales to that
other Person in the ordinary course of business. The amount of any
Investment shall be the original cost of such Investment plus the cost
of all additions thereto and minus returns of capital thereon, without
any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment.
"IP COLLATERAL DOCUMENTS" means, collectively, the Trademark
Security Agreements, the Patent Security Agreements, the Subsidiary
Trademark Security Agreements, and the Subsidiary Patent Security
Agreements.
"ISSUING LENDER" means, with respect to any Letter of
Credit, the Lender which agrees or is otherwise obligated to issue
such Letter of Credit, determined as provided in subsection 3.1B(ii).
"JAPANESE INDEMNIFYING LENDER" means each financial
institution that is designated as a Japanese Indemnifying Lender on
SCHEDULE 2.1 annexed hereto, and each financial institution which is
designated, with the approval of Administrative Agent, as a Japanese
Indemnifying Lender in an Assignment Agreement.
"JAPANESE LENDER" and "JAPANESE LENDERS" means the Lenders
that have Japanese Revolving Loan Commitments or that have Japanese
Revolving Loans outstanding, together with their successors and
permitted assigns pursuant to subsection 10.1.
"JAPANESE LOAN EXPOSURE" means, with respect to any Japanese
Lender as of any date of determination (i) prior to the termination of
the Japanese Revolving Loan Commitments, that Lender's Japanese
Revolving Loan Commitment and (ii) after the termination of the
Japanese Revolving Loan Commitments, the sum of (a) the aggregate
outstanding principal amount of the Japanese Revolving Loans of that
Lender PLUS (b) in the event that Lender is an Issuing Lender, the
aggregate Letter of Credit Usage in respect of all Letters of Credit
issued by that Lender for the benefit of ▇▇▇▇ Japan (in each case net
of any participations purchased by other Lenders in such Letters of
Credit or any unreimbursed drawings thereunder) PLUS (c) the aggregate
amount of all participations purchased by that Lender in any
outstanding Letters of Credit for the benefit of ▇▇▇▇ Japan or any
unreimbursed drawings under any such Letters of Credit.
33
"JAPANESE REVOLVING LOAN COMMITMENT" means the commitment of
a Japanese Lender (i) to make Japanese Revolving Loans to ▇▇▇▇ Japan
pursuant to subsection 2.1A(i)(a) and (ii) to issue and/or purchase
participations in Letters of Credit for the account of ▇▇▇▇ Japan
pursuant to Section 3, and "JAPANESE REVOLVING LOAN COMMITMENTS" means
such commitments of all such Lenders in the aggregate.
"JAPANESE REVOLVING LOANS" means the Loans made by Lenders
to ▇▇▇▇ Japan pursuant to subsection 2.1A(i)(a).
"JOINT VENTURE" means a joint venture, partnership, limited
liability company or other similar arrangement, whether in corporate,
partnership, limited liability company or other legal form; PROVIDED
that in no event shall any corporate Subsidiary of any Person be
considered to be a Joint Venture to which such Person is a party.
"LENDER" and "LENDERS" means the Domestic Lenders, the UK
Lenders, the French Lenders or the Japanese Lenders or any combination
thereof; PROVIDED that the term "Lenders," when used in the context of
a particular Commitment, shall mean Lenders having that Commitment.
"LENDING OFFICE" means, with respect to any Lender, the
office or offices of such Lender specified as its "Lending Office" or
"Domestic Lending Office" or "Offshore Lending Office", as the case
may be, on SCHEDULE 1.1(a) annexed hereto, or such other office or
offices as such Lender may from time to time notify Borrowers and
Administrative Agent.
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means Commercial
Letters of Credit and Standby Letters of Credit issued or to be issued
by Issuing Lenders for the account of a Borrower pursuant to
subsection 3.1.
"LETTERS OF CREDIT SUBALLOCATION" means, as of any date of
determination, for any Borrower, the Dollar Equivalent of the amount
of Revolving Loan Commitments allocated to such Borrower to be made
available for issuing Letters of Credit for the account of such
Borrower as set forth in the most recent Notice of Allocation
delivered to Administrative Agent pursuant to subsection 2.1A(i)(b);
PROVIDED that the Letters of Credit Suballocation shall be
automatically adjusted in accordance with the second proviso contained
in subsection 2.1A(i)(b); PROVIDED FURTHER that (x) the sum of the
Letters of Credit Suballocation for such Borrower PLUS the Revolving
Loan Suballocation for such Borrower shall always equal the Maximum
Revolving Loan Commitments for such Borrower, and (y) the sum of the
Letters of Credit Suballocations for all Borrowers shall not exceed
$175,000,000.
"LETTER OF CREDIT USAGE" means, as at any date of
determination, for any Borrower the Dollar Equivalent of the sum of
(i) the maximum aggregate amount which is or at any time thereafter
may become available for drawing under all Letters of Credit then
outstanding issued for the account of such Borrower PLUS (ii) the
34
aggregate amount of all drawings under such Letters of Credit honored
by Issuing Lenders not theretofore reimbursed.
"LIEN" means any lien, mortgage, pledge, assignment,
security interest, charge or encumbrance of any kind (including any
conditional sale or other title retention agreement, any lease in the
nature thereof, and any agreement to give any security interest) and
any option, trust or other preferential arrangement having the
practical effect of any of the foregoing.
"LOAN" or "LOANS" means one or more of the Revolving Loans
or Swing Line Loans or any combination thereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the
Letters of Credit (and any applications for, or reimbursement
agreements or other documents or certificates executed by a Borrower
in favor of an Issuing Lender relating to, the Letters of Credit), the
Guaranties and the Collateral Documents and, solely for purposes of
the use of the term "Loan Documents" in the definition of the term
"Obligations," the Currency Agreements to which a Loan Party and any
Lender or any of its Affiliates is a party and Interest Rate
Agreements to which any Lender or any of its Affiliates is a party.
"LOAN EXPOSURE" means the Domestic Loan Exposure, the UK
Loan Exposure, French Loan Exposure, or the Japanese Loan Exposure or
any combination thereof.
"LOAN PARTIES" means each of the Borrowers, the Guarantors
or any of Company's Subsidiaries executing any other Loan Document.
"LOAN PORTFOLIO PURCHASE AGREEMENT" means that certain Loan
Portfolio Purchase Agreement dated as of October 15, 1996 entered into
between Company and BTCC, as amended from time to time to the extent
permitted under subsection 7.13.
"LOCAL TIME" means (i) with respect to Base Rate Loans, New
York time, and (ii) with respect to Offshore Rate Loans, London time.
"MANAGEMENT INVESTMENT INCENTIVE PLAN" means the plan
adopted by Holdings on the Closing Date pursuant to which officers and
key employees of Holdings and its Subsidiaries will be granted shares
of Holdings Common Stock as restricted stock and stock options
exercisable into shares of Holdings Common Stock, as such plan may be
amended, supplemented or otherwise modified from time to time to the
extent permitted under subsection 7.13.
"MANAGEMENT INVESTORS" means those Persons in the management
of Company holding any capital stock of Holdings.
"MARGIN DETERMINATION CERTIFICATE" means an Officers'
Certificate of Company delivered with the financial statements
required pursuant to subsections 6.1(ii) or 6.1(iii) setting forth in
reasonable detail the Consolidated Leverage Ratio.
35
"MARGIN STOCK" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System
as in effect from time to time.
"MARKS" and the sign "DM" mean the lawful money of the
Federal Republic of Germany.
"MASTER ASSIGNMENT AGREEMENT" means that certain Master
Assignment Agreement, substantially in the form of EXHIBIT XXIV
annexed hereto, among Company, the lenders under the Existing Credit
Agreement, the Lenders under this Agreement and Administrative Agent
pursuant to which all lenders under the Existing Credit Agreement
assign their revolving loan commitments to Administrative Agent, and
Administrative Agent assigns to each Lender under this Agreement, and
each such Lender purchases from Administrative Agent, the Loans and
Commitments as set forth in SCHEDULE 2.1 annexed hereto.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse
effect upon the business, operations, properties, assets, condition
(financial or otherwise) or prospects of (a) Company and its Domestic
Subsidiaries, taken as a whole, (b) ▇▇▇▇ UK and its Subsidiaries,
taken as a whole, (c) ▇▇▇▇ France and its Subsidiaries, taken as a
whole, (d) ▇▇▇▇ Japan and its Subsidiaries, taken as a whole, or (e)
Company and its Subsidiaries, taken as a whole; PROVIDED that in the
event of the occurrence of a material adverse effect as described in
the foregoing clauses (a), (b), (c) or (d), such Borrower shall have
five days after receipt of notice from Administrative Agent to cure
such material adverse effect (without causing a material adverse
effect for any other Borrower) before it shall become a "Material
Adverse Effect" as defined in this clause (i); (ii) the impairment in
any material respect of the ability of any Loan Party to perform, or
of Agents or any Lender to enforce, the Obligations; or (iii) a
material adverse effect on the value of the Collateral or the amount
which Agents or any Lender would be likely to receive (after giving
consideration to delays in payment and costs of enforcement) in the
liquidation of the Collateral.
"MATERIAL CONTRACT" means any contract or other arrangement
to which any Borrower or any of its Subsidiaries is a party (other
than the Loan Documents) for which breach, nonperformance,
cancellation or failure to renew could reasonably be expected to have
a Material Adverse Effect.
"MATERIAL LEASEHOLD" means a Real Property Asset consisting
of a leasehold interest in an Operating Lease or a Capital Lease which
is reasonably determined by Administrative Agent to be of material
value as collateral for the Obligations.
"MATERIAL SUBSIDIARY" means any Subsidiary of Holdings that
(i) owns 5% or more of the assets of Holdings and its Subsidiaries,
measured on a consolidated basis, or (ii) accounts for 5% or more of
Consolidated Net Income.
36
"MAXIMUM REVOLVING LOAN COMMITMENTS" means, as of any date
of determination, (x) for any Borrower, the Dollar Equivalent of the
Revolving Loan Commitments available to such Borrower as set forth in
the most recent Notice of Allocation delivered by Borrowers to
Administrative Agent pursuant to subsection 2.1A(i)(b), and (y) for
all Borrowers, the Dollar Equivalent of (i) $200,000,000 LESS (ii) the
aggregate amount of all reductions made to all Revolving Loan
Commitments pursuant to subsections 2.4A(ii) and 2.4.A(iii).
"MINIMUM AMOUNT" means (i) in the case of Swing Line Loans,
$250,000 and integral multiples of $100,000 in excess of that amount,
(ii) in the case of Base Rate Loans and Offshore Rate Loans
denominated in Dollars and having a particular Interest Period,
$1,000,000 and integral multiples of $100,000 in excess of that
amount, (iii) in the case of Offshore Rate Loans denominated in
Sterling and having a particular Interest Period, PS1,000,000 and
integral multiples of PS100,000 in excess of that amount, (iv) in the
case of Offshore Rate Loans denominated in Francs and having a
particular Interest Period, FF6,000,000 and integral multiples of
FF600,000 in excess of that amount, (v) in the case of Offshore Rate
Loans denominated in Marks and having a particular Interest Period,
DM3,000,000 and integral multiples of DM300,000 in excess of that
amount, and (vi) in the case of Offshore Rate Loans denominated in Yen
and having a particular Interest Period, YEN150,000,000 and integral
multiples of YEN15,000,000 in excess of that amount.
"MORTGAGE" means an instrument (whether designated as a deed
of trust, a trust deed or a mortgage or by any similar title) executed
and delivered by any Borrower or any of its Subsidiaries encumbering a
Fee Property or a Material Leasehold, as such instrument may be
amended, supplemented or otherwise modified from time to time, and
"MORTGAGES" means all such instruments, including the Mortgages set
forth on SCHEDULE 5.5 and any Additional Mortgages (as defined in
subsection 6.9), collectively.
"MORTGAGED PROPERTY" means any property so identified on
SCHEDULE 5.5 or an Additional Mortgaged Property (as defined in
subsection 6.9).
"MULTIEMPLOYER PLAN" means a "multiemployer plan", as
defined in Section 3(37) of ERISA, to which Company or any of its
ERISA Affiliates is contributing, or ever has contributed, or to which
Company or any of its ERISA Affiliates has, or ever has had, an
obligation to contribute.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset
Sale, Cash payments (including any Cash received by way of deferred
payment pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received) received from such Asset
Sale, net of any bona fide direct costs incurred in connection with
such Asset Sale, including without limitation (i) income taxes
reasonably estimated to be actually payable as a result of such Asset
Sale within two years of the date of such Asset Sale and (ii) payment
37
of the outstanding principal amount of, premium or penalty, if any,
and interest on any Indebtedness (other than the Loans) that is
secured by a Lien on the stock or assets in question and that is
required to be repaid under the terms thereof as a result of such
Asset Sale.
"NET INSURANCE/CONDEMNATION PROCEEDS" means any Cash
payments or proceeds received by Administrative Agent or by any
Borrower or any of such Borrower's Subsidiaries (i) under any business
interruption or casualty insurance policy in respect of a covered loss
thereunder or (ii) as a result of the taking of any assets of any
Borrower or any of its respective Subsidiaries by any Person pursuant
to the power of eminent domain, condemnation or otherwise, or pursuant
to a sale of any such assets to a purchaser with such power under
threat of such a taking, in each case net of any actual and reasonable
documented costs incurred by such Borrower or any of its respective
Subsidiaries in connection with the adjustment or settlement of any
claims of such Borrower or such Subsidiary in respect thereof;
PROVIDED, HOWEVER, that "Net Insurance/Condemnation Proceeds" shall
not include any such proceeds arising from or otherwise relating to
the Sayama Excluded Collateral or the Westmont Excluded Collateral.
"NOTES" means one or more of the Revolving Notes or Swing
Line Notes or any combination thereof.
"NOTICE OF ALLOCATION" means a notice substantially in the
form of EXHIBIT XXV annexed hereto delivered by Borrowers to
Administrative Agent pursuant to subsection 2.1A(i)(b) for the purpose
of (i) allocating the Revolving Loan Commitments among the Domestic
Revolving Loan Commitments, the UK Revolving Loan Commitments, the
French Revolving Loan Commitments and the Japanese Revolving Loan
Commitments, and (ii) suballocating such Revolving Loan Commitment
amounts for each Borrower between the Revolving Loan Suballocation and
Letters of Credit Suballocation for each Borrower.
"NOTICE OF BORROWING" means a notice substantially in the
form of EXHIBIT I annexed hereto delivered by a Borrower to
Administrative Agent pursuant to subsection 2.1B with respect to a
proposed borrowing.
"NOTICE OF CONVERSION/CONTINUATION" means a notice
substantially in the form of EXHIBIT II annexed hereto delivered by a
Borrower to Administrative Agent pursuant to subsection 2.2D with
respect to a proposed conversion or continuation of the applicable
basis for determining the interest rate with respect to the Loans
specified therein.
"OBLIGATIONS" means all obligations of every nature of each
Loan Party from time to time owed to Agents or any Lender under the
Loan Documents, whether for principal, interest (including interest
accruing on or after the occurrence of any of the events described in
subsection 8.6 or 8.7 whether or not allowed), reimbursement of
38
amounts drawn under Letters of Credit, fees, expenses, indemnification
or otherwise.
"OFFICERS' CERTIFICATE" means, as applied to any
corporation, a certificate executed on behalf of such corporation by
its chairman of the board (if an officer) or its president or one of
its vice presidents (or comparable officer in the case of ▇▇▇▇ UK,
▇▇▇▇ France or ▇▇▇▇ Japan) and by its chief financial officer or its
treasurer; PROVIDED that any Officers' Certificate required to be
delivered by any Loan Party on the Effective Date may be executed on
behalf of such Loan Party by any one of the foregoing officers;
PROVIDED FURTHER that every Officers' Certificate with respect to the
compliance with a condition precedent to the making of any Loans
hereunder shall include (i) a statement that the officer or officers
making or giving such Officers' Certificate have read such condition
and any definitions or other provisions contained in this Agreement
relating thereto, (ii) a statement that, in the opinion of the
signers, they have made or have caused to be made such examination or
investigation as is necessary to enable them to express an informed
opinion as to whether or not such condition has been complied with,
and (iii) a statement as to whether, in the opinion of the signers,
such condition has been complied with.
"OFFSHORE CURRENCY" means Sterling, Francs, Marks, or Yen.
"OFFSHORE CURRENCY LOANS" means any Loans denominated in an
Offshore Currency.
"OFFSHORE RATE LOANS" means Loans bearing interest at rates
determined by reference to the Adjusted Offshore Rate as provided in
subsection 2.2A.
"OPERATING LEASE" means, as applied to any Person, any lease
(including, without limitation, leases that may be terminated by the
lessee at any time) of any property (whether real, personal or mixed)
that is not a Capital Lease other than any such lease under which that
Person is the lessor.
"PATENT SECURITY AGREEMENT" means the Amended and Restated
Patent Security Agreement and Conditional Assignment executed and
delivered by Company, or, if applicable, Holdings on the Effective
Date, substantially in the form of EXHIBIT XVIII annexed hereto, or
any other security agreement, document or instrument with a similar or
comparable effect executed by any Foreign Subsidiary that is a
Borrower, in form and substance satisfactory to Administrative Agent,
as such Patent Security Agreement may be amended, supplemented or
otherwise modified from time to time, and "PATENT SECURITY AGREEMENTS"
means all such Patent Security Agreements, collectively.
"PBGC" means the Pension Benefit Guaranty Corporation (or
any successor thereto), or any similar or comparable governmental
agency or authority in a jurisdiction outside of the United States
applicable to Company or any of its Subsidiaries.
39
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal
Revenue Code or Section 302 of ERISA.
"PERMITTED ENCUMBRANCES" means the following types of Liens
(other than any such Lien imposed pursuant to Section 401(a)(29) or
412(n) of the Internal Revenue Code or by ERISA):
(i) Liens for taxes, assessments or governmental charges or
claims the payment of which is not, at the time, required by
subsection 6.3 (other than any Lien relating to or imposed in
connection with any Environmental Claim);
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics and materialmen and other Liens imposed
by law incurred in the ordinary course of business for sums not
yet delinquent or being contested in good faith, if such reserve
or other appropriate provision, if any, as shall be required by
GAAP shall have been made therefor;
(iii) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety
and appeal bonds, bids, leases, government contracts, trade
contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of
borrowed money); PROVIDED, HOWEVER, that "Permitted Encumbrances"
shall not include Liens for the benefit of any customer of
Company or any of its Subsidiaries or for any advances, deposits,
progress payments or other similar payments made to Company or
any of its Subsidiaries by a customer;
(iv) any attachment or judgment Lien not constituting an
Event of Default under subsection 8.8 (other than any Lien
relating to or imposed in connection with any Environmental
Claim);
(v) leases or subleases granted to others not interfering
in any material respect with the ordinary conduct of the business
of Company or any of its Subsidiaries;
(vi) easements, rights-of-way, restrictions, covenants,
declarations, encroachments, minor defects or irregularities in
title, and other similar charges or encumbrances not interfering
in any material respect with the ordinary conduct of the business
of Company or any of its Subsidiaries;
(vii) any (a) restriction or encumbrance that the
interest or title of a lessor or sublessor may be subject to,
or (b) subordination of the interest of the lessee or sublessee
under a lease to any restriction or encumbrance referred to in
the preceding clause (a);
40
(viii) Liens arising from filing UCC financing statements
relating solely to leases permitted by this Agreement;
(ix) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods;
(x) licenses of patents, trademarks and other intellectual
property rights granted by Company or any of its Subsidiaries in
the ordinary course of business and not interfering in any
material respect with the ordinary conduct of the business of
Company or such Subsidiary; and
(xi) the title exceptions approved by Administrative Agent
and shown on Schedule B of the Mortgages set forth on SCHEDULE
5.5.
"PERSON" means and includes natural persons, corporations,
limited partnerships, general partnerships, limited liability
companies, limited liability partnerships, joint stock companies,
Joint Ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts or other organizations,
whether or not legal entities, and governments and agencies and
political subdivisions thereof.
"PLEDGE AGREEMENT" means the Amended and Restated Pledge
Agreement executed and delivered by Company or Holdings on the
Effective Date, substantially in the form of EXHIBIT XV ANNEXEDhereto,
or any other pledge agreement, document or instrument with a similar
or comparable effect executed by a Foreign Subsidiary that is a
Borrower, in form and substance satisfactory to Administrative Agent,
as such Pledge Agreement may be amended, supplemented or otherwise
modified from time to time, and "PLEDGE AGREEMENTS" means all such
Pledge Agreements, collectively.
"POTENTIAL EVENT OF DEFAULT" means a condition or event
that, after notice or passage of time or both, would constitute an
Event of Default.
"PRIME RATE" means the rate that BTCo announces from time to
time as its prime lending rate as in effect from time to time. The
Prime Rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to any customer. Agents or any
other Lender may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate.
"PRO RATA SHARE" means, on any date of determination, with
respect to all payments, computations and other matters relating to a
Type of Revolving Loan Commitment or a Type of Revolving Loans of any
Lender or any Letters of Credit of such Type or participations in such
Revolving Loans or Letters of Credit purchased by any Lender, the
percentage obtained by DIVIDING (x) the Loan Exposure of such Type of
that Lender BY (y) the aggregate Loan Exposure of such Type of all
41
Lenders, as such percentage may be adjusted by assignments permitted
pursuant to subsection 10.1. The initial Pro Rata Share of each
Lender is set forth opposite the name of that Lender in SCHEDULE 2.1
annexed hereto.
"PUBLIC OFFERING" means any bona fide primary underwritten
public offering of Holdings Common Stock or Company Common Stock
pursuant to an effective registration statement under the Securities
Act (other than pursuant to a registration statement on Form S-8 or
otherwise relating to equity securities issuable exclusively under any
employee benefit plan of Holdings).
"PURCHASE AGREEMENT" means that certain Stock and Asset
Purchase Agreement by and between Company and Rockwell dated as of
April 26, 1996, as amended by that certain amendment dated as of July
18, 1996, and as such agreement may be amended further from time to
time thereafter to the extent permitted under subsection 7.13.
"REAL PROPERTY ASSETS" means all real property from time to
time owned in fee by any Loan Party and all rights, title and interest
in and to any and all leases of real property as to which any Loan
Party has a leasehold or license interest, including without
limitation any such fee or leasehold or license interests acquired by
any Loan Party after the date hereof.
"REFUNDED SWING LINE LOANS" has the meaning assigned to that
term in subsection 2.1A(ii).
"REGISTER" has the meaning assigned to that term in
subsection 2.1D.
"REGULATION D" means Regulation D of the Board of Governors
of the Federal Reserve System, as in effect from time to time, and any
similar or comparable laws in the UK, France or Japan.
"REIMBURSEMENT DATE" has the meaning assigned to that term
in subsection 3.3B.
"RELATED AGREEMENTS" means, collectively, the Stockholders
Agreement, the Management Investment Incentive Plan, the Loan
Portfolio Purchase Agreement, the Assumed Guaranty, the Holdings'
Certificate of Designation, the Senior Subordinated Note Indenture,
the Senior Subordinated Notes and those certain secured promissory
notes executed and delivered by certain Management Investors to
Holdings in connection with the purchase of Holdings Common Stock, and
all other agreements or instruments delivered pursuant to or in
connection with any of the foregoing including any purchase agreements
or registration rights agreements, and all documentation evidencing
the mortgage Indebtedness incurred by Company or any of its
Subsidiaries permitted under subsection 7.1(vii).
"RELEASE" means any release, spill, emission, leaking,
pumping, pouring, injection, escaping, deposit, disposal, discharge,
42
dispersal, dumping, leaching or migration of Hazardous Materials into
the environment (including, without limitation, the abandonment or
disposal of any barrels, containers or other closed receptacles
containing any Hazardous Materials), or into or out of any Facility,
including the movement of any Hazardous Material through the air,
soil, surface water or groundwater.
"REQUEST FOR ISSUANCE OF LETTER OF CREDIT" means a notice
substantially in the form of EXHIBIT III annexed hereto delivered by a
Borrower to Administrative Agent pursuant to subsection 3.1B(i) with
respect to the proposed issuance of a Letter of Credit.
"REQUISITE LENDERS" means Lenders having or holding a
majority of the aggregate Loan Exposure of all Types of all Lenders.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any
class of stock of Company now or hereafter outstanding, except a
dividend payable solely in shares of that class of stock to the
holders of that class, (ii) any redemption, retirement, sinking fund
or similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of stock of Company now or
hereafter outstanding, (iii) any payment made to retire, or to obtain
the surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of stock of Company now or hereafter
outstanding, and (iv) any payment or prepayment of principal of,
premium, if any, or interest on, or redemption, purchase, retirement,
defeasance (including in-substance or legal defeasance), sinking fund
or similar payment with respect to, any Subordinated Indebtedness.
"REVOLVING LOAN COMMITMENTS" means the Domestic Revolving
Loan Commitments, the UK Revolving Loan Commitments, the French
Revolving Loan Commitments or the Japanese Revolving Loan Commitments
or any combination thereof.
"REVOLVING LOAN SUBALLOCATION" means, as of any date of
determination, for any Borrower, the Dollar Equivalent of the amount
of Revolving Loan Commitments allocated to such Borrower to be made
available for making Revolving Loans to such Borrower as set forth in
the most recent Notice of Allocation delivered to Administrative Agent
pursuant to subsection 2.1A(i)(b); PROVIDED that the Revolving Loan
Suballocation shall be automatically adjusted in accordance with the
second proviso contained in subsection 2.1A(i)(b); PROVIDED FURTHER
that the sum of the Revolving Loan Suballocation for such Borrower
PLUS the Letters of Credit Suballocation for such Borrower shall
always equal the Maximum Revolving Loan Commitments for such Borrower.
"REVOLVING LOANS" means the Domestic Revolving Loans, the UK
Revolving Loans, the French Revolving Loans or the Japanese Revolving
Loans or any combination thereof.
"REVOLVING NOTES" means (i) the promissory notes of
Borrowers issued pursuant to subsection 2.1E on the Effective Date and
43
(ii) any promissory notes issued by Borrowers pursuant to the last
sentence of subsection 10.1B(i) in connection with assignments of
Revolving Loan Commitments and Revolving Loans of any Lender, in each
case substantially in the form of EXHIBIT IV annexed hereto, as they
may be amended, supplemented or otherwise modified from time to time.
"RGS CUSTOMER NOTES" means those loans and associated
instruments, agreements, documents and collateral created as a result
of customer financing provided by the Rockwell Graphics Systems
business unit of Rockwell in connection with the sale of printing and
like equipment in the conduct of that unit's business and which are
(i) referenced under the heading "Customer Notes and Related
Agreements" on Schedule 5(l) to the Purchase Agreement, (ii) similar
loans entered into between April 29, 1996 and the day preceding the
Closing Date, and which are consented to and purchased by BTCC and
(iii) RGS Customer Notes that are restructured between March 1, 1996
and the Closing Date, and which are consented to and purchased by
BTCC.
"ROCKWELL" means Rockwell International Corporation, a
corporation organized under the laws of the State of Delaware.
"SAME DAY FUNDS" means (i) with respect to disbursements and
payments in Dollars, immediately available funds, and (ii) with
respect to disbursements and payments in an Offshore Currency, same
day or other funds as may be determined by Administrative Agent to be
customary in the place of disbursement or payment for the settlement
of international banking transactions in the relevant Offshore
Currency.
"SAYAMA EXCLUDED COLLATERAL" means the Facilities located at
▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ Prefecture,
Japan, together with all contract rights, rents, issues, royalties,
income, revenue, proceeds, profits, security deposits, accounts or
similar interests derived from such Facilities.
"SAYAMA SUB" means a corporation organized under the laws of
Japan and a wholly-owned Subsidiary of ▇▇▇▇ Japan.
"SECURED CUSTOMER FINANCING ARRANGEMENT" means an
arrangement whereby a customer of Company or any of its Subsidiaries
executes and delivers a Secured Customer Financing Note for all or any
part of the purchase price of finished goods sold by Company or any of
its Subsidiaries to such customer, the repayment of which Secured
Customer Financing Note is secured by a duly perfected security
interest in such finished goods in favor of Company or any such
Subsidiary.
"SECURED CUSTOMER FINANCING NOTE" means a promissory note
(other than RGS Customer Notes), on terms consistent with the past
practices of Company and its Subsidiaries and with prevailing industry
practices, executed and delivered by a customer of Company or any of
44
its Subsidiaries in connection with a Secured Customer Financing
Arrangement.
"SECURITIES" means any stock, shares, partnership interests,
equity interests, voting trust certificates, certificates of interest
or participation in any profit-sharing agreement or arrangement,
whether certificated or uncertificated, options, warrants, bonds,
debentures, notes, or other evidences of indebtedness, secured or
unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as "securities" or any certificates of
interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to
subscribe to, purchase or acquire, any of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as
amended from time to time, and any successor statute, and any
comparable or similar laws in a jurisdiction outside of the United
States applicable to Company or any of its Subsidiaries.
"SECURITY AGREEMENT" means the Amended and Restated Security
Agreement executed and delivered by Company or, if applicable,
Holdings on the Effective Date, substantially in the form of EXHIBIT
XVI annexed hereto, or any other security agreement, document or
instrument with a similar or comparable effect executed by any Foreign
Subsidiary that is a Borrower, in form and substance satisfactory to
Administrative Agent, as such Security Agreement may be amended or
supplemented or otherwise modified from time to time, and "SECURITY
AGREEMENTS" means all such Security Agreements, collectively.
"SENIOR SUBORDINATED NOTE INDENTURE" means the senior
subordinated indenture dated as of October 15, 1996 by and between
Company and The Bank of New York, as Trustee, pursuant to which the
Senior Subordinated Notes are issued, as such indenture may be amended
from time to time to the extent permitted under subsection 7.13.
"SENIOR SUBORDINATED NOTES" means the 12% senior
subordinated unsecured notes issued by Company pursuant to the Senior
Subordinated Note Indenture in the aggregate principal amount of
$225,000,000, as such notes may be amended from time to time to the
extent permitted under subsection 7.13.
"SOLVENT" means, with respect to any Person, that as of the
date of determination both (A) (i) the then fair saleable value of the
property of such Person is (y) greater than the total amount of
liabilities (including contingent liabilities) of such Person and
(z) not less than the amount that will be required to pay the probable
liabilities on such Person's then existing debts as they become
absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person; (ii) such
Person's capital is not unreasonably small in relation to its business
or any contemplated or undertaken transaction; and (iii) such Person
does not intend to incur, or believe (nor should it reasonably
believe) that it will incur, debts beyond its ability to pay such
45
debts as they become due; and (B) such Person is "solvent" within the
meaning given that term and similar terms under applicable laws
relating to fraudulent transfers and conveyances. For purposes of
this definition, the amount of any contingent liability at any time
shall be computed as the amount that, in light of all of the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"STANDBY LETTER OF CREDIT" means any standby letter of
credit or similar instrument issued for the purpose of supporting
(i) Indebtedness of Company or any of its Subsidiaries in respect of
industrial revenue or development bonds or financings; (ii) workers'
compensation liabilities of Company or any of its Subsidiaries;
(iii) the obligations of third party insurers of Company or any of its
Subsidiaries arising by virtue of the laws of any jurisdiction
requiring third party insurers; (iv) obligations with respect to
Capital Leases or Operating Leases of Company or any of its
Subsidiaries; (v) performance, payment, deposit or surety obligations
of Company or any of its Subsidiaries, in any case if required by law
or governmental rule or regulation or in accordance with custom and
practice in the industry; (vi) payment obligations of Company in
respect of the Assumed Guaranty as described in the definition
thereof; (vii) payment obligations of Company or its Subsidiaries in
respect of Customer Financing Note Guaranties; PROVIDED that the
aggregate amount of all such Customer Financing Note Guaranties
supported by a Letter of Credit does not exceed $20,000,000 at any
time outstanding; and (viii) Currency Agreements that are Hedge
Agreements with respect to customer contracts for the sale of finished
goods entered into in the ordinary course of business and consistent
with past practices; PROVIDED that Standby Letters of Credit may not
be issued for the purpose of supporting (a) trade payables or (b) any
Indebtedness constituting "antecedent debt" (as that term is used in
the Bankruptcy Code).
"STERLING" and the sign "PS" mean the lawful money of the
UK.
"STOCKHOLDERS AGREEMENT" means that certain Stockholders
Agreement dated as of the Closing Date entered into by and among
Holdings, Stonington Capital Appreciation 1994 Fund, L.P., a limited
partnership organized under the laws of the State of Delaware, and the
Management Investors, as such agreement may be amended, supplemented
or otherwise modified from time to time to the extent permitted under
subsection 7.13.
"STONINGTON" means Stonington Partners, Inc., a corporation
organized under the laws of Delaware.
"SUBORDINATED INDEBTEDNESS" means (i) the Indebtedness of
Company evidenced by the Senior Subordinated Notes and (ii) any other
Indebtedness of Company (other than Indebtedness to any of its
Subsidiaries) that is subordinated in right of payment to the
Obligations pursuant to documentation containing maturities,
46
amortization schedules, covenants, defaults, remedies, subordination
provisions and other material terms in form and substance satisfactory
to Administrative Agent and Requisite Lenders.
"SUBSIDIARY" means, with respect to any Person, any
corporation, partnership, limited liability company, association,
joint venture or other business entity of which more than 50% of the
total voting power of shares of stock or other ownership interests
entitled (without regard to the occurrence of any contingency) to vote
in the election of the Person or Persons (whether directors, managers,
trustees or other Persons performing similar functions) having the
power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more of the other Subsidiaries of that Person or
a combination thereof.
"SUBSIDIARY GUARANTOR" means any Subsidiary that is party to
a Subsidiary Guaranty.
"SUBSIDIARY GUARANTY" means the Amended and Restated
Subsidiary Guaranty executed and delivered by Domestic Subsidiaries on
the Effective Date and to be executed and delivered by Domestic
Subsidiaries from time to time thereafter in accordance with
subsection 6.8A, substantially in the form of EXHIBIT XIX annexed
hereto, or any other guaranty, document or instrument with a similar
or comparable effect executed by any Foreign Subsidiary other than a
Borrower, in form and substance satisfactory to Administrative Agent,
as such Subsidiary Guaranty may be amended, supplemented or otherwise
modified from time to time, and "SUBSIDIARY GUARANTIES" means all such
Subsidiary Guaranties collectively.
"SUBSIDIARY PATENT SECURITY AGREEMENT" means each Amended
and Restated Subsidiary Patent Security Agreement and Conditional
Assignment executed and delivered by Domestic Subsidiaries on the
Effective Date or to be executed and delivered by Domestic
Subsidiaries from time to time thereafter in accordance with
subsection 6.8A, in each case substantially in the form of EXHIBIT
XXIII annexed hereto, or any other security agreement, document or
instrument with a similar or comparable effect executed by any Foreign
Subsidiary other than a Borrower, in form and substance satisfactory
to Administrative Agent, as such Subsidiary Patent Security Agreement
may be amended, supplemented or otherwise modified from time to time,
and "SUBSIDIARY PATENT SECURITY AGREEMENTS" means all such Subsidiary
Patent Security Agreements collectively.
"SUBSIDIARY PLEDGE AGREEMENT" means each Amended and
Restated Subsidiary Pledge Agreement executed and delivered by
Domestic Subsidiaries on the Effective Date or to be executed and
delivered by Domestic Subsidiaries from time to time thereafter in
accordance with subsection 6.8A, in each case substantially in the
form of EXHIBIT XXI annexed hereto, or any other pledge agreement,
document or instrument with a similar or comparable effect executed by
a Foreign Subsidiary other than a Borrower, in form and substance
47
satisfactory to Administrative Agent, as such Subsidiary Pledge
Agreement may be amended, supplemented or otherwise modified from time
to time, and "SUBSIDIARY PLEDGE AGREEMENTS" means all such Subsidiary
Pledge Agreements, collectively.
"SUBSIDIARY SECURITY AGREEMENT" means each Amended and
Restated Subsidiary Security Agreement executed and delivered by
Domestic Subsidiaries on the Effective Date or to be executed and
delivered by Domestic Subsidiaries from time to time thereafter in
accordance with subsection 6.8A, in each case substantially in the
form of EXHIBIT XX annexed hereto, or any other security agreement,
document or instrument with a similar or comparable effect executed by
any Foreign Subsidiary other than a Borrower, in form and substance
satisfactory to Administrative Agent, as such Subsidiary Security
Agreement may be amended, supplemented or otherwise modified from time
to time, and "SUBSIDIARY SECURITY AGREEMENTS" means all such
Subsidiary Security Agreements, collectively.
"SUBSIDIARY TRADEMARK SECURITY AGREEMENT" means each Amended
and Restated Subsidiary Trademark Security Agreement executed and
delivered by Domestic Subsidiaries on the Effective Date or to be
executed and delivered by Domestic Subsidiaries from time to time
thereafter in accordance with subsection 6.8A, in each case
substantially in the form of EXHIBIT XXII annexed hereto, or any other
security agreement, document or instrument with a similar or
comparable effect executed by any Foreign Subsidiary other than a
Borrower, in form and substance satisfactory to Administrative Agent,
as such Subsidiary Trademark Security Agreement may be amended,
supplemented or otherwise modified from time to time, and "SUBSIDIARY
TRADEMARK SECURITY AGREEMENTS" means all such Subsidiary Trademark
Security Agreements, collectively.
"SWING LINE LENDER" means BTCo, or any Person serving as
successor Administrative Agent hereunder, in its capacity as Swing
Line Lender hereunder.
"SWING LINE LOAN COMMITMENT" means the commitment of Swing
Line Lender to make Swing Line Loans to Company pursuant to subsection
2.1A(ii).
"SWING LINE LOANS" means the Loans made by Swing Line Lender
to Company pursuant to subsection 2.1A(ii).
"SWING LINE NOTES" means (i) the promissory notes of Company
issued pursuant to subsection 2.1E on the Effective Date and (ii) any
promissory notes issued by Company to any successor Administrative
Agent and Swing Line Lender pursuant to the last sentence of
subsection 10.1B(i), in each case substantially in the form of EXHIBIT
V annexed hereto, as it may be amended, supplemented or otherwise
modified from time to time.
48
"SYNDICATION AGENT" has the meaning assigned to that term in
the introduction to this Agreement, and includes any such successor
Syndication Agent appointed pursuant to subsection 9.5.
"TAX" or "TAXES" means any present or future tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature and
whatever called, by whomsoever, on whomsoever and wherever imposed,
levied, collected, withheld or assessed; PROVIDED that "TAX ON THE
OVERALL NET INCOME" of a Person shall be construed as a reference to a
tax imposed by the jurisdiction in which that Person's principal
office (and/or, in the case of a Lender, its lending office) is
located or in which that Person is deemed to be doing business on all
or part of the net income, profits or gains of that Person (whether
worldwide, or only insofar as such income, profits or gains are
considered to arise in or to relate to a particular jurisdiction, or
otherwise).
"TOTAL UTILIZATION OF COMMITMENTS" means, as at any date of
determination, for any Borrower the Dollar Equivalent of the sum of
(i) the aggregate principal amount of all outstanding Revolving Loans
made to such Borrower (other than Revolving Loans made for the purpose
of repaying any Refunded Swing Line Loans in the case of Company, or
reimbursing the applicable Issuing Lender for any amount drawn under
any Letter of Credit but not yet so applied in the case of all
Borrowers) PLUS (ii) the Letter of Credit Usage with respect to all
Letters of Credit issued for the account of such Borrower PLUS (iii)
in the case of Company, the aggregate principal amount of all
outstanding Swing Line Loans made to Company.
"TRADEMARK SECURITY AGREEMENT" means the Amended and
Restated Trademark Security Agreement executed and delivered by
Company or, if applicable, Holdings on the Effective Date,
substantially in the form of EXHIBIT XVII annexed hereto, or any other
security agreement, document or instrument with a similar or
comparable effect executed by any Foreign Subsidiary that is a
Borrower, in form and substance satisfactory to Administrative Agent,
as such Trademark Security Agreement may be amended, supplemented or
otherwise modified from time to time, and "TRADEMARK SECURITY
AGREEMENTS" means all such Trademark Security Agreements,
collectively.
"TRANSACTION COSTS" means the fees, costs and expenses
payable by any Loan Party on or before the Effective Date in
connection with the transactions contemplated hereby or by the
Refinancing.
"TRANSACTIONS" has the meaning assigned to that term in the
Recitals.
"TRIGGERING EVENT" means (i) the occurrence and continuation
of any Event of Default under subsection 8.1, 8.6 or 8.7 or (ii) the
acceleration of the maturity of the Obligations as a result of any
49
Event of Default, which acceleration has not been rescinded in
accordance with the provisions of Section 8.
"TYPE" means (i) with respect to a Commitment, a Revolving
Loan Commitment or a Swing Line Loan Commitment, (ii) with respect to
a Revolving Loan Commitment, a Domestic Revolving Loan Commitment, a
UK Revolving Loan Commitment, a French Revolving Loan Commitment or a
Japanese Revolving Loan Commitment, (iii) with respect to a Loan, a
Revolving Loan or a Swing Line Loan and (iv) with respect to a
Revolving Loan, a Domestic Revolving Loan, a UK Revolving Loan, a
French Revolving Loan or a Japanese Revolving Loan.
"UK" means the United Kingdom of Great Britain and Northern
Ireland.
"UK DOUBLE TAX TREATY LENDER" means a Person resident in a
jurisdiction with a double tax treaty with the UK under which payments
of interest by ▇▇▇▇ UK to such Person may be made without withholding
or deduction for or on account of Tax.
"UK INDEMNIFYING LENDER" means each financial institution
that is designated as a UK Indemnifying Lender on SCHEDULE 2.1 annexed
hereto, and each financial institution which is designated, with the
approval of the Administrative Agent, as a UK Indemnifying Lender in
an Assignment Agreement.
"UK LENDER" and "UK LENDERS" means the Lenders that have UK
Revolving Loan Commitments or that have UK Revolving Loans
outstanding, together with their successors and permitted assigns
pursuant to subsection 10.1.
"UK LOAN EXPOSURE" means, with respect to any UK Lender as
of any date of determination (i) prior to the termination of the UK
Revolving Loan Commitments, that Lender's UK Revolving Loan Commitment
and (ii) after the termination of the UK Revolving Loan Commitments,
the sum of (a) the aggregate outstanding principal amount of the UK
Revolving Loans of that Lender PLUS (b) in the event that Lender is an
Issuing Lender, the aggregate Letter of Credit Usage in respect of all
Letters of Credit issued by that Lender for the benefit of ▇▇▇▇ UK (in
each case net of any participations purchased by other Lenders in such
Letters of Credit or any unreimbursed drawings thereunder) PLUS
(c) the aggregate amount of all participations purchased by that
Lender in any outstanding Letters of Credit for the benefit of ▇▇▇▇ UK
or any unreimbursed drawings under any such Letters of Credit.
"UK QUALIFYING LENDER" means a Person entitled to receive
payments of interest in respect of each UK Revolving Loan under this
Agreement free of withholding or deduction for or on account of UK
income tax under Section 349(3)(a) of the Income and Corporation Taxes
▇▇▇ ▇▇▇▇ of the UK.
"UK REVOLVING LOAN COMMITMENT" means the commitment of a UK
Lender (i) to make UK Revolving Loans to ▇▇▇▇ UK pursuant to
50
subsection 2.1A(i)(a) and (ii) to issue and/or purchase participations
in Letters of Credit for the account of ▇▇▇▇ UK pursuant Section 3,
and "UK REVOLVING LOAN COMMITMENTS" means such commitments of all such
Lenders in the aggregate.
"UK REVOLVING LOANS" means the Loans made by the Lenders to
▇▇▇▇ UK pursuant to subsection 2.1A(i)(a).
"WESTMONT EXCLUDED COLLATERAL" means the Facilities located
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, including all heating/air
conditioning and ventilation systems, all electrical and light
fixtures, appliances, conduits, boxes and outlets serving the
Facilities, all water fixtures, piping, valves, sprinkler systems and
distribution systems for serving the Facilities with water, all
bathroom fixtures, maintenance equipment, windows, window treatments,
doors, elevators and all other personal property or fixtures which are
integral to the use and occupancy of such Facilities and improvements
for general use as stand-alone Facilities, together with all contract
rights, rents, issues, royalties, income, revenue, proceeds, profits,
security deposits, accounts or similar interests derived from such
Facilities.
"WESTMONT SUB" means ▇▇▇▇ Realty, L.L.C., a limited
liability company organized under the laws of Delaware and a wholly-
owned Subsidiary of Company.
"YEN" and the sign "YEN" mean the lawful money of Japan.
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF
CALCULATIONS UNDER AGREEMENT.
Except as otherwise expressly provided in this Agreement,
all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP. Financial
statements and other information required to be delivered by Company
to Lenders pursuant to clauses (i), (ii), (iii) and (xiii) of
subsection 6.1 shall be prepared in accordance with GAAP (to the
extent GAAP is applicable thereto) as in effect at the time of such
preparation (and delivered together with the reconciliation statements
provided for in subsection 6.1(v)). Calculations in connection with
the definitions, covenants and other provisions of this Agreement
shall utilize accounting principles and policies in conformity with
those used to prepare the financial statements referred to in
subsection 5.3.
1.3 OTHER DEFINITIONAL PROVISIONS.
References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Agreement unless
otherwise specifically provided. Any of the terms defined in
subsection 1.1 may, unless the context otherwise requires, be used in
the singular or the plural, depending on the reference. An Event of
51
Default shall "continue" or be "continuing" until such Event of
Default has been waived in accordance with subsection 10.6 hereof.
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; MAKING OF LOANS; THE REGISTER; NOTES.
A. COMMITMENTS. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of
Borrowers set forth herein, Lenders hereby severally agree to make the
Revolving Loans described in subsection 2.1A(i)(a) and Swing Line
Lender hereby agrees to make the Swing Line Loans described in
subsection 2.1A(ii):
(i) REVOLVING LOANS.
(a) REVOLVING LOAN COMMITMENTS AND REVOLVING LOANS.
Each Domestic Lender, UK Lender, French Lender and Japanese
Lender severally agrees, subject to the limitations set forth in
subsection 2.1(A)(i)(b) and 2.1(A)(i)(c), to lend to Company,
▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇ Japan, respectively, from time to
time during the period from the Effective Date to but excluding
the Commitment Termination Date an aggregate amount in the
Applicable Currency, when valued in Dollar Equivalents, not
exceeding its Pro Rata Share of the aggregate amount of the
applicable Revolving Loan Commitments as in effect from time to
time to be used for the purposes identified in subsection 2.5A.
The original amount of each Lender's applicable Revolving Loan
Commitment is set forth opposite its name on SCHEDULE 2.1 annexed
hereto and the Dollar Equivalent of the aggregate original amount
of all Revolving Loan Commitments is $200,000,000, and the Dollar
Equivalent of the aggregate original amount of the Revolving Loan
Commitments, Revolving Loan Suballocations and Letters of Credit
Suballocations allocated to each Borrower are set forth on
SCHEDULE 2.1; PROVIDED that the Revolving Loan Commitments, the
Revolving Loan Suballocations and the Letters of Credit
Suballocations shall be adjusted to give effect to any Notice of
Allocation pursuant to subsection 2.1A(i)(b); PROVIDED FURTHER
that the applicable Revolving Loan Commitments of Lenders shall
be adjusted to give effect to any assignments of the Revolving
Loan Commitments pursuant to subsection 10.1B; PROVIDED FURTHER
that the amount of the Revolving Loan Commitments shall be
reduced from time to time by the amount of any reductions thereto
made pursuant to subsections 2.4A(ii) and 2.4A(iii); and PROVIDED
FURTHER that (w) Domestic Revolving Loans may be made only in
Dollars or any Offshore Currency, (x) UK Revolving Loans may be
made only in Sterling, Marks or Dollars, (y) French Revolving
Loans may be made only in Francs or Dollars, and (z) Japanese
Revolving Loans may be made only in Yen or Dollars. Each
Lender's applicable Revolving Loan Commitment shall expire on the
Commitment Termination Date and all Revolving Loans and all other
amounts owed hereunder with respect to the Revolving Loans and
52
the Revolving Loan Commitments shall be paid in full no later
than that date; PROVIDED that each Lender's applicable Revolving
Loan Commitment shall expire immediately and without further
action on January 31, 1998 if the initial Revolving Loans are not
made on or before that date. Amounts borrowed under this
subsection 2.1A(i)(a) may be repaid and reborrowed to but
excluding the Commitment Termination Date.
(b) ALLOCATION OF REVOLVING LOAN COMMITMENTS; NOTICES OF
ALLOCATION. The initial amounts allocated to the Revolving Loan
Commitments, the Revolving Loan Suballocations and the Letters of
Credit Suballocations for each Borrower are set forth in SCHEDULE
2.1 annexed hereto. Borrowers may change the amount of the
Revolving Loan Commitments, the Revolving Loan Suballocations and
the Letters of Credit Suballocations allocated to each Borrower
at any time by delivering a Notice of Allocation to
Administrative Agent at least three (3) Business Days prior to
the date upon which such allocation is to be effective. Such
Notice of Allocation shall specify the new amounts for each of
(i) the Domestic Revolving Loan Commitments, the Revolving Loan
Suballocation for Company and the Letters of Credit Suballocation
for Company, (ii) the UK Revolving Loan Commitments, the
Revolving Loan Suballocation for ▇▇▇▇ UK and the Letters of
Credit Suballocation for ▇▇▇▇ UK, (iii) the French Revolving Loan
Commitments, the Revolving Loan Suballocation for ▇▇▇▇ France and
the Letters of Credit Suballocation for ▇▇▇▇ France, and (iv) the
Japanese Revolving Loan Commitments, the Revolving Loan
Suballocation for ▇▇▇▇ Japan and the Letters of Credit
Suballocation of ▇▇▇▇ Japan; PROVIDED that (1) the sum of all
Revolving Loan Commitments for all Borrowers shall always equal
the Maximum Revolving Loan Commitments for all Borrowers then in
effect, (2) the sum of the Revolving Loan Suballocation for any
Borrower PLUS the Letters of Credit Suballocation for such
Borrower shall always equal the Maximum Revolving Loan
Commitments for such Borrower, (3) the sum of the Letters of
Credit Suballocations for all Borrower shall not exceed
$175,000,000, (4) the Revolving Loan Commitments for any Borrower
shall not in any event be reduced to an amount that is less than
the Total Utilization of Revolving Loan Commitments for such
Borrower, (5) the Revolving Loan Suballocation for any Borrower
shall not in any event be reduced to an amount that is less than
the Dollar Equivalent of the sum of the aggregate principal
amount of all outstanding Revolving Loans made to such Borrower
(other than Revolving Loans made for the purpose of repaying any
Refunded Swing Line Loans in the case of Company, or reimbursing
the applicable Issuing Lender for any amount drawn under any
Letter of Credit but not yet so applied in the case of all
Borrowers) PLUS in the case of Company, the aggregate principal
amount of all outstanding Swing Line Loans made to Company, and
(6) the Letters of Credit Suballocation for any Borrower shall
not in any event be reduced to an amount less than the Letter of
Credit Usage with respect to all Letters of Credit issued for the
account of such Borrower; PROVIDED FURTHER that in the event that
53
Revolving Loans are made with respect to any Borrower pursuant to
subsection 3.3B to reimburse an Issuing Lender for honoring a
drawing under a Letter of Credit, then (x) the Revolving Loan
Suballocation for such Borrower shall be increased automatically
by an amount equal to the amount of such Revolving Loans made and
(y) the Letters of Credit Suballocation for such Borrower shall
be reduced automatically by an equal amount, in each case such
increase or decrease shall occur without any further action by
any Borrower or Administrative Agent. Administrative Agent shall
promptly notify each Lender of any requested change in the
allocation of the Revolving Loan Commitments and the amount of
such Lender's Pro Rata Share of the new Domestic Revolving Loan
Commitments, the UK Revolving Loan Commitments, the French
Revolving Loan Commitments and the Japanese Revolving Loan
Commitments, as the case may be.
(c) LIMITATION ON REVOLVING LOANS. Anything contained
in this Agreement to the contrary notwithstanding, the
Revolving Loans and the Revolving Loan Commitments shall be
subject to the limitations that (1) in no event shall the
Total Utilization of Commitments for all Borrowers then in
effect exceed the Maximum Revolving Loan Commitments for all
Borrowers then in effect, (2) in no event shall the Total
Utilization of Commitments for any Borrower then in effect
exceed the Maximum Revolving Loan Commitments for such
Borrower then in effect, and (3) with respect to any
Borrower, in no event shall the Dollar Equivalent of the sum
of the aggregate principal amount of all outstanding
Revolving Loans made to such Borrower (other than Revolving
Loans made for the purpose of repaying any Refunded Swing
Line Loans in the case of Company, or reimbursing the
applicable Issuing Lender for any amount drawn under any
Letter of Credit but not yet so applied in the case of all
Borrowers) PLUS in the case of Company, the aggregate
principal amount of all outstanding Swing Line Loans made to
Company, exceed the Revolving Loan Suballocation for such
Borrower then in effect.
(ii) SWING LINE LOANS. Swing Line Lender agrees,
subject to the limitations set forth below with respect to the
maximum amount of Swing Line Loans permitted to be outstanding
from time to time, to make a portion of the Domestic Revolving
Loan Commitments available to Company, from time to time during
the period from the Effective Date to but excluding the
Commitment Termination Date by making Swing Line Loans in Dollars
to Company, in an aggregate amount not exceeding the amount of
the applicable Swing Line Loan Commitment to be used for the
purposes identified in subsection 2.5A, notwithstanding the fact
that such Swing Line Loans, when aggregated with Swing Line
Lender's outstanding Domestic Revolving Loans and such Swing Line
Lender's Pro Rata Share of the Letter of Credit Usage for Company
then in effect, may exceed such Swing Line Lender's Domestic
Revolving Loan Commitment. The original amount of the Swing Line
54
Loan Commitment is $5,000,000; PROVIDED that any reduction of the
Domestic Revolving Loan Commitments made pursuant to subsection
2.4A(ii) or 2.4A(iii) which reduces the aggregate Domestic
Revolving Loan Commitments to an amount less than the then
current amount of the Swing Line Loan Commitment shall result in
an automatic corresponding reduction of the Swing Line Loan
Commitment to the amount of the Domestic Revolving Loan
Commitments, as so reduced, without any further action on the
part of Company, Administrative Agent or the Swing Line Lender.
The Swing Line Loan Commitment shall expire on the Commitment
Termination Date and all Swing Line Loans and all other amounts
owed hereunder with respect to the Swing Line Loans shall be paid
in full no later than that date; PROVIDED that the Swing Line
Loan Commitment shall expire immediately and without further
action on January 31, 1998 if the initial Revolving Loans are not
made on or before that date. Amounts borrowed under this
subsection 2.1A(ii) may be repaid and reborrowed to but excluding
the Commitment Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Swing Line Loans and the Swing Line Loan
Commitment shall be subject to the limitation that in no event
shall the Total Utilization of Commitments for Company exceed the
Maximum Revolving Loan Commitments for Company then in effect.
With respect to Swing Line Loans which have not been
voluntarily prepaid by Company pursuant to subsection 2.4A(i),
Swing Line Lender may, at any time in its sole and absolute dis-
cretion, deliver to Administrative Agent (with a copy to
Company), no later than 12:00 P.M. (New York time) on the first
Business Day in advance of the proposed Funding Date, a notice
(which shall be deemed to be a Notice of Borrowing given by
Company) requesting the Domestic Lenders to make Domestic
Revolving Loans that are Base Rate Loans on such Funding Date in
an amount equal to the amount of such Swing Line Loans (the
"REFUNDED SWING LINE LOANS") outstanding on the date such notice
is given which Swing Line Lender requests such Domestic Lenders
to prepay. Anything contained in this Agreement to the contrary
notwithstanding, (i) the proceeds of such Domestic Revolving
Loans made by such Domestic Lenders other than Swing Line Lender
shall be immediately delivered by Administrative Agent to Swing
Line Lender (and not to Company) and applied to repay a
corresponding portion of such Refunded Swing Line Loans and
(ii) on the day such Domestic Revolving Loans are made, Swing
Line Lender's Pro Rata Share of such Refunded Swing Line Loans
shall be deemed to be paid with the proceeds of a Domestic
Revolving Loan made by Swing Line Lender, and such portion of
such Swing Line Loans deemed to be so paid shall no longer be
outstanding as Swing Line Loans and shall no longer be due under
the Swing Line Note of Swing Line Lender but shall instead
constitute part of Swing Line Lender's outstanding Domestic
Revolving Loans and shall be due under the Domestic Revolving
Note of Swing Line Lender. Company hereby authorizes
55
Administrative Agent and Swing Line Lender to charge Company's
accounts with Administrative Agent and Swing Line Lender (up to
the amount available in each such account) in order to
immediately pay Swing Line Lender the amount of such Refunded
Swing Line Loans to the extent the proceeds of such Domestic
Revolving Loans made by the Domestic Lenders, including the
Domestic Revolving Loan deemed to be made by Swing Line Lender,
are not sufficient to repay in full such Refunded Swing Line
Loans. If any portion of any such amount paid (or deemed to be
paid) to Swing Line Lender should be recovered by or on behalf of
Company from Swing Line Lender in bankruptcy, by assignment for
the benefit of creditors or otherwise, the loss of the amount so
recovered shall be ratably shared among all Domestic Lenders in
the manner contemplated by subsection 10.5.
If for any reason (a) Domestic Revolving Loans are not
made upon the request of Swing Line Lender as provided in the
immediately preceding paragraph in an amount sufficient to repay
any amounts owed to Swing Line Lender in respect of any
outstanding Swing Line Loans or (b) the Domestic Revolving Loan
Commitments are terminated at a time when any Swing Line Loans
are outstanding, each Domestic Lender shall be deemed to, and
hereby agrees to, have purchased a participation in such
outstanding Swing Line Loans in an amount equal to its Pro Rata
Share (calculated, in the case of the foregoing clause (b),
immediately prior to such termination of the Domestic Revolving
Loan Commitments) of the unpaid amount of such Swing Line Loans
together with accrued interest thereon. Upon one Business Day's
notice from Swing Line Lender, each Domestic Lender shall deliver
to Swing Line Lender an amount equal to its respective
participation in Same Day Funds at the Funding and Payment
Office. In the event any such Domestic Lender fails to make
available to Swing Line Lender the amount of such Domestic
Lender's participation as provided in this paragraph, Swing Line
Lender shall be entitled to recover such amount on demand from
such Domestic Lender together with interest thereon at the rate
customarily used by Swing Line Lender for the correction of
errors among banks for three Business Days and thereafter at the
Base Rate. In the event Swing Line Lender receives a payment of
any amount in which other Domestic Lenders have purchased
participations as provided in this paragraph, Swing Line Lender
shall promptly distribute to each such other Domestic Lender its
Pro Rata Share of such payment.
Anything contained herein to the contrary
notwithstanding, each Domestic Lender's obligation to make
Domestic Revolving Loans for the purpose of repaying any Refunded
Swing Line Loans pursuant to the second preceding paragraph and
each Domestic Lender's obligation to purchase a participation in
any unpaid Swing Line Loans pursuant to the immediately preceding
paragraph shall be absolute and unconditional and shall not be
affected by any circumstance, including (a) any set-off, counter-
claim, recoupment, defense or other right which such Domestic
56
Lender may have against Swing Line Lender, Company or any other
Person for any reason whatsoever; (b) the occurrence or con-
tinuation of an Event of Default or a Potential Event of Default;
(c) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of
Company or any of its Subsidiaries; (d) any breach of this
Agreement or any other Loan Document by any party thereto; or
(e) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; PROVIDED that
such obligations of each Domestic Lender are subject to the
condition that (X) Swing Line Lender believed in good faith that
all conditions under Section 4 to the making of the applicable
Refunded Swing Line Loans or other unpaid Swing Line Loans, as
the case may be, were satisfied at the time such Refunded Swing
Line Loans or unpaid Swing Line Loans were made or (Y) the sat-
isfaction of any such condition not satisfied had been waived in
accordance with subsection 10.6 prior to or at the time such
Refunded Swing Line Loans or other unpaid Swing Line Loans were
made.
B. BORROWING MECHANICS.
(i) MINIMUM AMOUNTS. Revolving Loans made on any Funding
Date (other than Domestic Revolving Loans made pursuant to a request
by a Swing Line Lender pursuant to subsection 2.1A(ii) for the purpose
of repaying any Refunded Swing Line Loans or Revolving Loans made
pursuant to subsection 3.3B for the purpose of reimbursing any Issuing
Lender for the amount of a drawing under a Letter of Credit issued by
it) as Base Rate Loans shall be in an aggregate minimum amount equal
to the applicable Minimum Amount. Swing Line Loans made on any
Funding Date shall be in an aggregate minimum amount equal to the
applicable Minimum Amount.
(ii) NOTICE OF BORROWING. Whenever a Borrower desires that
Lenders make Revolving Loans it shall deliver to Administrative Agent
a Notice of Borrowing (1) no later than 12:00 Noon (London time) at
least three Business Days in advance of the proposed Funding Date in
the case of an Offshore Rate Loan or (2) no later than 12:00 Noon (New
York time) at least one Business Day in advance of the proposed
Funding Date in the case of a Revolving Loan made as a Base Rate Loan.
Whenever a Borrower desires that Swing Line Lender make a Swing Line
Loan, it shall deliver to Administrative Agent a Notice of Borrowing
no later than 1:30 P.M. (Chicago time) on the proposed Funding Date.
The Notice of Borrowing shall specify (i) the Borrower, (ii) the
proposed Funding Date (which shall be a Business Day), (iii) the
amount and Type of Loans requested, (iv) in the case of Swing Line
Loans and any Domestic Revolving Loans made on the Effective Date,
that such Loans shall be Base Rate Loans, (v) in the case of any
Domestic Revolving Loans not made on the Effective Date, whether such
Loans shall be Base Rate Loans or Offshore Rate Loans, (vi) in the
case of any Revolving Loans other than Domestic Revolving Loans made
after the Effective Date, that such Loans shall be Offshore Rate
Loans, (vii) in the case of any Revolving Loans requested to be made
57
as Offshore Rate Loans, the initial Interest Period requested
therefor, and (viii) the Applicable Currency the Loan is to be made
in.
(iii) CONTINUATION/CONVERSION. (a) Revolving Loans
denominated in Dollars may be continued as or converted into Base Rate
Loans and Offshore Rate Loans and (b) Revolving Loans denominated in
an Offshore Currency may be continued as Offshore Rate Loans and may
not be converted into Base Rate Loans, in each case in the manner
provided in subsection 2.2D.
(iv) TELEPHONIC NOTICE. In lieu of delivering the above-
described Notice of Borrowing, a Borrower may give Administrative
Agent telephonic notice by the required time of any proposed borrowing
under this subsection 2.1B; PROVIDED that such notice shall be
promptly confirmed in writing by delivery of a Notice of Borrowing to
Administrative Agent on or before the applicable Funding Date.
Neither Administrative Agent nor any Lender shall incur any
liability to Borrower in acting upon any telephonic notice referred to
above that Administrative Agent believes in good faith to have been
given by a duly authorized officer or other person authorized to
borrow on behalf of such Borrower or for otherwise acting in good
faith under this subsection 2.1B, and upon funding of Loans by Lenders
in accordance with this Agreement pursuant to any such telephonic
notice such Borrower shall have effected Loans hereunder.
(v) CERTIFICATION OF CERTAIN ITEMS. The applicable
Borrower shall notify Administrative Agent prior to the funding of any
Loans in the event that any of the matters to which such Borrower is
required to certify in the applicable Notice of Borrowing is no longer
true and correct as of the applicable Funding Date, and the acceptance
by such Borrower of the proceeds of any Loans shall constitute a re-
certification by such Borrower, as of the applicable Funding Date, as
to the matters to which such Borrower is required to certify in the
applicable Notice of Borrowing.
(vi) OFFSHORE RATE LOANS. Except as otherwise provided in
subsections 2.6B, 2.6C and 2.6G, a Notice of Borrowing for an Offshore
Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable
on and after the related Interest Rate Determination Date, and the
Borrower giving such notice shall be bound to make a borrowing in
accordance therewith.
C. DISBURSEMENT OF FUNDS.
(i) Subject to this subsection 2.1C and subsection 2.1D,
(a) all Domestic Revolving Loans under this Agreement shall be made by
Domestic Lenders simultaneously and proportionately to their
respective Pro Rata Shares of the Domestic Revolving Loan Commitments,
(b) all UK Revolving Loans under this Agreement shall be made by UK
Lenders simultaneously and proportionately to their respective Pro
Rata Shares of the UK Revolving Loan Commitments, (c) all French
58
Revolving Loans under this Agreement shall be made by French Lenders
simultaneously and proportionately to their respective Pro Rata Shares
of the French Revolving Loan Commitments, and (d) all Japanese
Revolving Loans under this Agreement shall be made by Japanese Lenders
simultaneously and proportionately to their respective Pro Rata Shares
of the Japanese Revolving Loan Commitments, in each case it being
understood that no Lender shall be responsible for any default by any
other Lender in that other Lender's obligation to make a Revolving
Loan requested hereunder nor shall the Revolving Loan Commitment of
any Lender be increased or decreased as a result of a default by any
other Lender in that other Lender's obligation to make a Revolving
Loan requested hereunder.
(ii) Promptly after receipt by Administrative Agent of a
Notice of Borrowing pursuant to subsection 2.1B (or telephonic notice
in lieu thereof), Administrative Agent shall notify each applicable
Lender or Swing Line Lender, as the case may be, of the proposed
borrowing. Each such Lender shall make the amount of its Revolving
Loan available to Administrative Agent, at the applicable Funding and
Payment Office, not later than 12:00 Noon (Local Time) on the
applicable Funding Date, and Swing Line Lender shall make the amount
of its Swing Line Loan available to Administrative Agent not later
than 3:00 P.M. (Chicago time) on the applicable Funding Date, in each
case in Same Day Funds in the Applicable Currency, at the Funding and
Payment Office. Except as provided in subsection 2.1A (ii) and
subsection 3.3B with respect to Revolving Loans used to repay Refunded
Swing Line Loans or to reimburse any Issuing Lender for the amount of
a drawing under a Letter of Credit issued by it, upon satisfaction or
waiver of the conditions precedent specified in subsection 4.1 (in the
case of Loans made on the Effective Date) and, subject to the
provisions set forth in the immediately preceding paragraph,
subsection 4.2 (in the case of all Loans), Administrative Agent shall
make the proceeds of such Loans available to the applicable Borrower
on the applicable Funding Date by causing an amount of Same Day Funds
in the Applicable Currency equal to the proceeds of all such Loans
received by Administrative Agent from Lenders or Swing Line Lender, as
the case may be, to be credited to the account of such Borrower at the
Funding and Payment Office.
Unless Administrative Agent shall have been notified by any
Lender prior to the Funding Date for any Revolving Loans that such
Lender does not intend to make available to Administrative Agent the
amount of such Lender's Revolving Loan requested on such Funding Date,
Administrative Agent may assume that such Lender has made such amount
available to Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall not be
obligated to, make available to Borrower a corresponding amount on
such Funding Date. If such corresponding amount is not in fact made
available to Administrative Agent by such Lender, Administrative Agent
shall be entitled to recover such corresponding amount on demand from
such Lender together with interest thereon, for each day from such
Funding Date until the date such amount is paid to Administrative
Agent at the customary rate set by Administrative Agent for the
59
correction of errors among banks for three Business Days and
thereafter at the Base Rate. If such Lender does not pay such
corresponding amount forthwith upon Administrative Agent's demand
therefor, Administrative Agent shall promptly notify Borrower and
Borrower shall immediately pay such corresponding amount in the
Applicable Currency to Administrative Agent together with interest
thereon, for each day from such Funding Date until the date such
amount is paid to Administrative Agent at the rate payable under this
Agreement for Base Rate Loans. Nothing in this subsection 2.1C shall
be deemed to relieve any Lender from its obligation to fulfill its
Revolving Loan Commitments hereunder or to prejudice any rights that
Borrower may have against any Lender as a result of any default by
such Lender hereunder.
D. THE REGISTER.
(i) Administrative Agent shall maintain, at its address
referred to in subsection 10.8, a register for the recordation of the
names and addresses of Lenders and the Commitments and Loans of each
Lender from time to time (the "REGISTER"). The Register shall be
available for inspection by any Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(ii) Administrative Agent shall record in the Register the
Revolving Loan Commitments and Revolving Loans from time to time of
each Lender, the Swing Line Loan Commitment and the Swing Line Loans
from time to time of Swing Line Lender, and each repayment or
prepayment in respect of the principal amount of the Revolving Loans
of each Lender or the Swing Line Loans of Swing Line Lender. Any such
recordation shall be conclusive and binding on each Borrower and each
Lender, absent manifest error; PROVIDED that failure to make any such
recordation, or any error in such recordation, shall not affect any
Lender's Revolving Loan Commitment or any Borrower's Obligations in
respect of the applicable Loans.
(iii) Each Lender shall record on its internal records
(including, without limitation, the Notes held by such Lender) the
amount of each Revolving Loan made by it and each payment in respect
thereof. Any such recordation shall be conclusive and binding on each
Borrower, absent manifest error; PROVIDED that failure to make any
such recordation, or any error in such recordation, shall not affect
Lender's Revolving Loan Commitment or any Borrower's Obligations in
respect of the applicable Loans; and PROVIDED FURTHER that in the
event of any inconsistency between the Register and any Lender's
records, the recordations in the Register shall govern.
(iv) Borrowers, Agents and Lenders shall deem and treat the
Persons listed as Lenders in the Register as the holders and owners of
the corresponding Commitments and Loans listed therein for all
purposes hereof, and no assignment or transfer of any such Commitment
or Loan shall be effective, in each case unless and until an
Assignment Agreement effecting the assignment or transfer thereof
shall have been accepted by Administrative Agent and recorded in the
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Register as provided in subsection 10.1B(ii). Prior to such
recordation, all amounts owed with respect to the applicable
Commitment or Loan shall be owed to the Lender listed in the Register
as the owner thereof, and any request, authority or consent of any
Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Lender shall be
conclusive and binding on any subsequent holder, assignee or
transferee of the corresponding Commitments or Loans.
(v) Each Borrower hereby designates BTCo to serve as such
Borrower's agent solely for purposes of maintaining the Register as
provided in this subsection 2.1D, and each Borrower hereby agrees
that, to the extent BTCo serves in such capacity, BTCo and its
officers, directors, employees, agents and affiliates shall constitute
Indemnitees for all purposes under subsection 10.3.
E. NOTES. Each Borrower shall execute and deliver on the
Effective Date (a) to each applicable Lender (or to Administrative
Agent for that Lender) a Revolving Note, substantially in the form of
EXHIBIT IV annexed hereto, to evidence that Lender's Revolving Loans,
in the principal amount of that Lender's applicable Revolving Loans
and with other appropriate insertions, and (b) to Swing Line Lender
(or to Administrative Agent for that Lender) a Swing Line Note,
substantially in the form of EXHIBIT V annexed hereto, to evidence
Swing Line Lender's Swing Line Loans, in the principal amount of the
Swing Line Loan Commitment and with other appropriate insertions.
F. SPECIAL PROVISIONS GOVERNING OFFSHORE CURRENCY LOANS AND
OFFSHORE CURRENCY LETTERS OF CREDIT. Notwithstanding any other
provision of this Agreement to the contrary, the following provisions
shall govern with respect to Offshore Currency Loans and to Letters of
Credit denominated in a currency other than Dollars, in each case as
to the matters covered:
(i) CALCULATION OF DOLLAR EQUIVALENT AMOUNT OF OFFSHORE
CURRENCY LOANS AND FOREIGN CURRENCY LETTERS OF CREDIT. For
purposes of determining (1) whether the Total Utilization of
Commitments exceeds the Maximum Revolving Loan Commitments then
in effect or (2) the Letter of Credit Usage, Administrative Agent
shall determine the Dollar Equivalent amounts with respect to any
Revolving Loans that are Offshore Currency Loans and with respect
to any Letters of Credit denominated in a currency other than
Dollars (a) at the time a Notice of Allocation is given, (b) on
the first Business Day of each month of each calendar year, and
(c) at such other dates as Administrative Agent may reasonably
require (each such date under clauses (a) - (c) being a
"COMPUTATION DATE"). Administrative Agent shall determine the
Dollar Equivalent amount for a particular Revolving Loan at the
time a Notice of Borrowing or a Notice of Conversion/Continuation
is given with respect to such Revolving Loan and for a particular
Letter of Credit at the time a Request for Issuance of Letter of
Credit is given with respect to such Letter of Credit.
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(ii) EUROPEAN ECONOMIC AND MONETARY UNION. The European
Economic and Monetary Union (the "EUROPEAN MONETARY UNION")
anticipates the introduction of a single currency and the
substitution of such currency for the national currencies of the
member states participating in the European Monetary Union. On
the date on which any Offshore Currency is replaced by such
single currency, it is hereby acknowledged and agreed that
"Sterling," "Francs" and "Marks," each as defined herein, shall
include any such single currency and that conversion of any
outstanding Loans denominated in such Offshore Currency into such
single currency shall take effect; PROVIDED that the original
Offshore Currency shall be retained for so long as legally
permissible; PROVIDED FURTHER that any such conversion shall be
based on the rate of conversion officially fixed by the European
Monetary Union on the date such single currency replaces the
applicable Offshore Currency. Notwithstanding anything contained
herein to the contrary, none of the introduction of such single
currency, the substitution of such currency for any Offshore
Currency, the fixing of such official rate of conversion nor any
economic consequences that arise from any of the aforementioned
events or otherwise in connection with the European Monetary
Union shall give rise to any right to terminate prematurely,
contest, cancel, rescind, modify or renegotiate this Agreement or
any of its provisions or to raise any other objections and/or
exceptions or to assert any claims for compensation.
2.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. Subject to the provisions of
subsections 2.6 and 2.7, each Revolving Loan shall bear interest on
the unpaid principal amount thereof from the date made through
maturity (whether by acceleration or otherwise) at a rate determined
by reference to the Base Rate or to the Adjusted Offshore Rate.
Subject to the provisions of subsection 2.7, each Swing Line Loan
shall bear interest on the unpaid principal amount hereof from the
date made through maturity (whether by acceleration or otherwise) at a
rate determined by reference to the Base Rate. The applicable basis
for determining the rate of interest with respect to any Revolving
Loan shall be selected by the Borrower initially at the time a Notice
of Borrowing is given with respect to such Loan pursuant to subsection
2.1B, and the basis for determining the interest rate with respect to
any Revolving Loan may be changed from time to time pursuant to
subsection 2.2D. If on any day a Revolving Loan denominated in
Dollars is outstanding with respect to which notice has not been
delivered to Administrative Agent in accordance with the terms of this
Agreement specifying the applicable basis for determining the rate of
interest, then for that day that Loan shall bear interest determined
by reference to the Base Rate. If on any day a Revolving Loan
denominated in an Offshore Currency is outstanding with respect to
which notice has not been delivered to Administrative Agent in
accordance with the terms of this Agreement specifying the applicable
basis for determining the rate of interest, then such Revolving Loan
shall bear interest determined by reference to the Offshore Rate Loan
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with an Interest Period of, and the applicable Interest Period shall
be deemed to be, one month.
Subject to the provisions of subsections 2.2E and 2.7, the
Revolving Loans shall bear interest through maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base
Rate PLUS the Applicable Base Rate Margin; or
(b) if an Offshore Rate Loan, then at the sum of the
Adjusted Offshore Rate PLUS the Applicable Offshore Rate Margin.
Subject to the provisions of subsections 2.2E and 2.7, the
Swing Line Loans shall bear interest through maturity at the sum of
the Base Rate PLUS the Applicable Base Rate Margin MINUS the
Commitment Fee Percentage.
Upon delivery of the Margin Determination Certificate by
Company to Administrative Agent pursuant to subsection 6.1(xvii), each
of the Applicable Base Rate Margin, the Applicable Offshore Rate
Margin and the Commitment Fee Percentage shall automatically be
adjusted in accordance with such Margin Determination Certificate,
such adjustment to become effective on the first day of the Fiscal
Quarter immediately succeeding the Fiscal Quarter in which
Administrative Agent receives such Margin Determination Certificate;
PROVIDED that if a Margin Determination Certificate is not delivered
at the time required pursuant to subsection 6.1(xvii), the highest
"Applicable Base Rate Margin", "Applicable Offshore Rate Margin" and
"Commitment Fee Percentage", as the case may be, shall be applicable
from such time until delivery of the succeeding Margin Determination
Certificate; PROVIDED FURTHER that if a Margin Determination
Certificate erroneously indicates an applicable margin or commitment
fee percentage, as the case may be, more favorable to Borrowers than
should be afforded by the actual calculation of the Consolidated
Leverage Ratio, each Borrower shall promptly pay additional interest,
letter of credit fees and all other applicable fees or commitment
fees, as the case may be, to correct for such error. Company shall
deliver a Margin Determination Certificate with the financial
statements required to be delivered for the Fiscal Quarter ending on
March 31, 1998 pursuant to subsection 6.1(ii) and the Applicable Base
Rate Margin, the Applicable Offshore Rate Margin and the Commitment
Fee Percentage shall automatically be adjusted in accordance with such
Margin Determination Certificate, such adjustment to become effective
on the first day after the six-month anniversary of the Effective
Date.
B. INTEREST PERIODS. In connection with each Offshore Rate
Loan, a Borrower may, pursuant to the applicable Notice of Borrowing
or Notice of Conversion/Continuation, as the case may be, select an
interest period (each an "INTEREST PERIOD") to be applicable to such
Loan, which Interest Period shall be, at Borrower's option, either a
one, two, three or six month period, or subject to the limitations set
forth in clause (viii) below, a one, two or three week period (such
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one, two or three week period being a "SPECIAL INTEREST PERIOD");
PROVIDED that:
(i) the initial Interest Period for any such Loan shall
commence on the Funding Date in respect of such Loan, in the case of a
Loan initially made as an Offshore Rate Loan or on the date specified
in the applicable Notice of Conversion/Continuation, in the case of a
Loan converted to an Offshore Rate Loan;
(ii) in the case of immediately successive Interest Periods
applicable to an Offshore Rate Loan continued as such pursuant to a
Notice of Conversion/Continuation, each successive Interest Period
shall commence on the day on which the next preceding Interest Period
expires;
(iii) if an Interest Period would otherwise expire on a
day that is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day; PROVIDED that, if any Interest
Period would otherwise expire on a day that is not a Business Day but
is a day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the next preceding
Business Day;
(iv) any Interest Period (other than a Special Interest
Period) that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall, subject to
clause (v) of this subsection 2.2B, end on the last Business Day of a
calendar month;
(v) no Interest Period with respect to any portion of the
Revolving Loans shall extend beyond the Commitment Termination Date;
(vi) there shall be no more than 8 Interest Periods for any
Borrower outstanding at any time;
(vii) in the event a Borrower fails to specify an
Interest Period for any Offshore Rate Loan in the applicable Notice of
Borrowing or Notice of Conversion/Continuation, such Borrower shall be
deemed to have selected an Interest Period of one month; and
(viii) a Borrower may select a Special Interest Period
for Offshore Rate Loans that are Offshore Currency Loans only and with
respect to such Offshore Rate Loans for which a Borrower has selected
a Special Interest Period (x) the aggregate amount of Offshore Rate
Loans denominated in a particular Offshore Currency shall not exceed
the Dollar Equivalent of $5,000,000 for such Offshore Currency, and
(y) the aggregate amount of all Offshore Currency Loans for which
Borrowers have selected Special Interest Periods shall not exceed the
Dollar Equivalent of $20,000,000 for all such Offshore Currency Loans.
C. INTEREST PAYMENTS. Subject to the provisions of subsection
2.2E, interest on each Loan shall be payable in arrears on and to each
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Interest Payment Date applicable to that Loan, upon any prepayment of
that Loan (to the extent accrued on the amount being prepaid) and at
maturity (including final maturity); PROVIDED that in the event any
Swing Line Loans or any Revolving Loans that are Base Rate Loans are
prepaid pursuant to subsection 2.4A(i), interest accrued on such Swing
Line Loans or Revolving Loans through the date of such prepayment
shall be payable on the next succeeding Interest Payment Date
applicable to Base Rate Loans (or, if earlier, at final maturity).
D. CONVERSION OR CONTINUATION. Subject to the provisions of
subsection 2.6, a Borrower shall have the option (i) to convert at any
time all or any part of its outstanding Revolving Loans denominated in
Dollars equal to the Minimum Amount from Loans bearing interest at a
rate determined by reference to one basis to Loans bearing interest at
a rate determined by reference to an alternative basis, or (ii) upon
the expiration of any Interest Period applicable to any Offshore Rate
Loan to continue all or any portion of such Loan equal to the Minimum
Amount as an Offshore Rate Loan; PROVIDED, HOWEVER, that any Offshore
Rate Loan denominated in Dollars may only be converted into a Base
Rate Loan on the expiration date of an Interest Period applicable
thereto; PROVIDED FURTHER that Revolving Loans denominated in an
Offshore Currency may not be converted into Base Rate Loans and that
Revolving Loans denominated in one currency may not be converted into
Revolving Loans denominated in another currency.
A Borrower shall deliver a Notice of Conversion/Continuation
to Administrative Agent no later than 12:00 Noon (Local Time) at least
one Business Day in advance of the proposed conversion date (in the
case of a conversion of an Offshore Rate Loan denominated in Dollars
to a Base Rate Loan) and at least three Business Days in advance of
the proposed conversion/continuation date (in the case of a conversion
to, or a continuation of, an Offshore Rate Loan). A Notice of
Conversion/Continuation shall specify (i) the proposed
conversion/continuation date (which shall be a Business Day), (ii) the
amount and Type of the Loan to be converted/continued, (iii) the
nature of the proposed conversion/continuation, (iv) in the case of a
conversion to, or a continuation of, an Offshore Rate Loan, the
requested Interest Period, and (v) in the case of a conversion to, or
a continuation of, an Offshore Rate Loan, that no Potential Event of
Default or Event of Default has occurred and is continuing. In lieu
of delivering the above-described Notice of Conversion/Continuation, a
Borrower may give Administrative Agent telephonic notice by the
required time of any proposed conversion/continuation under this
subsection 2.2D; PROVIDED that such notice shall be promptly confirmed
in writing by delivery of a Notice of Conversion/Continuation to
Administrative Agent on or before the proposed conversion/continuation
date.
Upon receipt of written or telephonic notice of any proposed
conversion/continuation under this subsection 2.2D, Administrative
Agent shall promptly transmit said notice by telefacsimile or
telephone to each applicable Lender.
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Neither Administrative Agent nor any Lender shall incur any
liability to any Borrower in acting upon any telephonic notice
referred to above that Administrative Agent believes in good faith to
have been given by a duly authorized officer or other person
authorized to act on behalf of such Borrower or for otherwise acting
in good faith under this subsection 2.2D, and upon conversion or
continuation of the applicable basis for determining the interest rate
with respect to any Loans in accordance with this Agreement pursuant
to any such telephonic notice any Borrower shall have effected a
conversion or continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and
2.6G, a Notice of Conversion/Continuation for conversion to, or
continuation of, an Offshore Rate Loan (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and Borrower shall be bound to effect a conversion
or continuation in accordance therewith.
E. DEFAULT RATE. Upon the occurrence and during the
continuation of any Event of Default, the outstanding principal amount
of all Loans and, to the extent permitted by applicable law, any
interest payments thereon not paid when due and any fees and other
amounts then due and payable hereunder, shall thereafter bear interest
(including post-petition interest in any proceeding under the
Bankruptcy Code) payable upon demand at a rate that is 2.00% per annum
in excess of the interest rate otherwise payable under this Agreement
with respect to Base Rate Loans. Payment or acceptance of the
increased rates of interest provided for in this subsection 2.2E is
not a permitted alternative to timely payment and shall not constitute
a waiver of any Event of Default or otherwise prejudice or limit any
rights or remedies of Agents or any Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans (other than
Loans denominated in Sterling) shall be computed on the basis of a
360-day year and interest on Loans denominated in Sterling shall be
computed on the basis of a 365-day year, in each case for the actual
number of days elapsed in the period during which it accrues. In
computing interest on any Loan, (i) the date of the making of such
Loan or the first day of an Interest Period applicable to such Loan
or, with respect to a Base Rate Loan being converted from an Offshore
Rate Loan, the date of conversion of such Offshore Rate Loan to such
Base Rate Loan shall be included, and (ii) the date of payment of such
Loan or the expiration date of an Interest Period applicable to such
Loan or, with respect to a Base Rate Loan being converted to an
Offshore Rate Loan, the date of conversion of such Base Rate Loan to
such Offshore Rate Loan shall be excluded; PROVIDED that if a Loan is
repaid on the same day on which it is made, no interest shall be paid
on that Loan.
G. EFFECTIVE GLOBAL RATE. For the purposes of Articles L 313-1
to L 313-6 of the French CODE DE LA CONSUMMATION, the parties
acknowledge that the TAUX EFFECTIF GLOBAL for Offshore Rate Loans
denominated in Francs may only be determined during the course of the
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Offshore Rate Loans denominated in Francs. By way of example, the
TAUX EFFECTIF GLOBAL applicable on [ ] January 1998 taking into
account the fees, commissions and expenses which are payable or
estimated to be payable by ▇▇▇▇ France and assuming a base interest
rate of [ ] percent, per annum (being the Adjusted Offshore Rate (as
at [ ] January 1998) for Francs for a period of three months) if the
French Revolving Loan Commitment were fully drawn from the Effective
Date to the Commitment Termination Date, would be [ ] percent, per
annum and the TAUX DE PERIODE would be [ ] percent, for a period of
three months.
2.3 FEES.
A. COMMITMENT FEES.
(i) COMPANY. Company agrees to pay to Administrative Agent
in Dollars, for distribution to each Domestic Lender in proportion to
that Lender's Pro Rata Share of the Domestic Revolving Loan
Commitment, commitment fees for the period from and including the
Effective Date to and excluding the Commitment Termination Date in an
amount equal to (x) the average of the daily excess of the Domestic
Revolving Loan Commitments over the sum of (i) the Dollar Equivalent
of the aggregate principal amount of outstanding Domestic Revolving
Loans (but not any outstanding Swing Line Loans) PLUS (ii) the Letter
of Credit Usage of Company MULTIPLIED BY (y) the Commitment Fee
Percentage.
(ii) ▇▇▇▇ UK. ▇▇▇▇ UK agrees to pay to Administrative Agent
in Dollars, for distribution to each UK Lender in proportion to that
Lender's Pro Rata Share of the UK Revolving Loan Commitment,
commitment fees for the period from and including the Effective Date
to and excluding the Commitment Termination Date in an amount equal to
(x) the average of the daily excess of the UK Revolving Loan
Commitments over the sum of (i) the Dollar Equivalent of the aggregate
principal amount of outstanding UK Revolving Loans PLUS (ii) the
Letter of Credit Usage of ▇▇▇▇ UK MULTIPLIED BY (y) the Commitment Fee
Percentage.
(iii) ▇▇▇▇ FRANCE. ▇▇▇▇ France agrees to pay to
Administrative Agent in Dollars, for distribution to each French
Lender in proportion to that Lender's Pro Rata Share of the French
Revolving Loan Commitment, commitment fees for the period from and
including the Effective Date to and excluding the Commitment
Termination Date in an amount equal to (x) the average of the daily
excess of the French Revolving Loan Commitments over the sum of (i)
the Dollar Equivalent of the aggregate principal amount of outstanding
French Revolving Loans PLUS (ii) the Letter of Credit Usage of ▇▇▇▇
France MULTIPLIED BY (y) the Commitment Fee Percentage.
(iv) ▇▇▇▇ JAPAN. ▇▇▇▇ Japan agrees to pay to Administrative
Agent in Dollars, for distribution to each Japanese Lender in
proportion to that Lender's Pro Rata Share of the Japanese Revolving
Loan Commitment, commitment fees for the period from and including the
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Effective Date to and excluding the Commitment Termination Date in an
amount equal to (x) the average of the daily excess of the Japanese
Revolving Loan Commitments over the sum of (i) the Dollar Equivalent
of the aggregate principal amount of outstanding Japanese Revolving
Loans PLUS (ii) the Letter of Credit Usage of ▇▇▇▇ Japan MULTIPLIED BY
(y) the Commitment Fee Percentage.
(v) CALCULATION. Such commitment fees shall be calculated
on the basis of a 360-day year and the actual number of days elapsed
and be payable quarterly in arrears on each date that is three
Business Days after each March 31, June 30, September 30 and December
31 of each year, commencing on the first such date to occur after the
Effective Date, and on the Commitment Termination Date. For purposes
of calculating commitment fees under this subsection 2.3A, the Dollar
Equivalent amount of the aggregate principal amount of any outstanding
Offshore Currency Loans shall be determined based upon the Exchange
Rate as of March 31, June 30, September 30 or December 31, as the case
may be, of each year with respect to such Offshore Currency Loan.
Administrative Agent shall provide to Borrowers on each first Business
Day after each March 31, June 30, September 30 and December 31 of each
year a report specifying the commitment fees payable by each Borrower
and including the calculations of such commitment fees and the
Exchange Rate used, and Borrowers shall pay such commitment fees no
later than two Business Days after delivery of such report. Upon
delivery of the Margin Determination Certificate required pursuant to
the last sentence of subsection 2.2A, the Commitment Fee Percentage
shall be automatically adjusted in accordance with such Margin
Determination Certificate, such adjustment to become effective on the
first day after the six-month anniversary of the Effective Date.
B. OTHER FEES. Each Borrower agrees to pay to Agents such
other fees in the amounts and at the times separately agreed upon
between such Borrower and Agents.
2.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN
COMMITMENTS; GENERAL PROVISIONS REGARDING PAYMENTS.
A. PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN COMMITMENTS.
(i) VOLUNTARY PREPAYMENTS. Company may, upon written or
telephonic notice to Administrative Agent on or prior to 12:00 Noon
(New York time) on the date of prepayment, which notice, if
telephonic, shall be promptly confirmed in writing, at any time from
time to time prepay any Swing Line Loan on any Business Day in whole
or in part in an aggregate minimum amount equal to the applicable
Minimum Amount. Each Borrower may, upon not less than one Business
Day's prior written or telephonic notice, in the case of Base Rate
Loans, and three Business Days' prior written or telephonic notice, in
the case of Offshore Rate Loans, in each case given to Administrative
Agent by 12:00 Noon (Local Time) on the date required and, if given by
telephone, promptly confirmed in writing to Administrative Agent
(which original written or telephonic notice Administrative Agent will
promptly transmit by telefacsimile or telephone to each Lender), at
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any time and from time to time prepay any Loans on any Business Day in
whole or in part in an aggregate minimum amount equal to the
applicable Minimum Amount; PROVIDED, HOWEVER, that an Offshore Rate
Loan may not be prepaid prior to the expiration of the Interest Period
applicable thereto unless such Borrower pays to each Lender all such
amounts as are payable pursuant to subsection 2.6D. Notice of
prepayment having been given as aforesaid, the principal amount of the
Loans specified in such notice shall become due and payable on the
prepayment date specified therein. Any such voluntary prepayment
shall be applied as specified in subsection 2.4A(iv).
(ii) VOLUNTARY REDUCTIONS OF REVOLVING LOAN COMMITMENTS.
Company may, upon not less than three Business Days' prior written or
telephonic notice confirmed in writing to Administrative Agent (which
original written or telephonic notice such Administrative Agent will
promptly transmit by telefacsimile or telephone to each Lender), at
any time and from time to time terminate in whole or permanently
reduce in part, without premium or penalty, the Revolving Loan
Commitments in an amount up to the amount by which the Revolving Loan
Commitments exceed the Total Utilization of Commitments with respect
to all Borrowers; PROVIDED that any such partial reduction of the
Revolving Loan Commitments shall be in an aggregate minimum amount
equal to the applicable Minimum Amount. Company's notice to
Administrative Agent shall designate the date (which shall be a
Business Day) of such termination or reduction and the amount of any
partial reduction, and such termination or reduction of such Revolving
Loan Commitments shall be effective on the date specified in such
notice and shall reduce such Revolving Loan Commitment of each Lender
proportionately to its Pro Rata Share.
(iii) MANDATORY PREPAYMENTS AND MANDATORY REDUCTIONS OF
REVOLVING LOAN COMMITMENTS. The Loans shall be prepaid, and the
Revolving Loan Commitments shall be permanently reduced, in the
amounts and under the circumstances set forth below, all such
prepayment and/or reductions to be applied as set forth below or as
more specifically provided in subsection 2.4A(iv):
(a) PREPAYMENTS AND REDUCTIONS FROM NET ASSET SALE
PROCEEDS. No later than the first Business Day following the
date of receipt by any Borrower or any of its Subsidiaries of any
Net Asset Sale Proceeds in respect of any Asset Sale, (1) such
Borrower shall prepay its Loans and/or such Borrower's Revolving
Loan Commitments shall be permanently reduced in an aggregate
amount equal to such Net Asset Sale Proceeds, and (2) to the
extent that any such Net Asset Sale Proceeds remain after the
applications required pursuant to the foregoing clause (1), such
Borrower shall cause the excess of such Net Asset Sale Proceeds
to be applied to prepay the remaining outstanding Loans of all
other Borrowers and/or the Revolving Loan Commitments of all
other Borrowers shall be permanently reduced, in each case on a
pro rata basis (in accordance with the respective outstanding
amount of Revolving Loan Commitments); PROVIDED, HOWEVER, that
(x) up to $30,000,000 of Net Asset Sale Proceeds received by
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Company from Asset Sales of Secured Customer Financing
Arrangements and/or accounts receivable of Company permitted
under subsection 7.7(iii) shall be excluded from the requirements
of this subsection 2.4A(iii)(a), and (y) up to $10,000,000 of Net
Asset Sale Proceeds received by Borrowers and their respective
Subsidiaries from Asset Sales permitted under subsection 7.7(v)
shall be used to prepay Loans, but shall not be required to be
used to permanently reduce Revolving Loan Commitments pursuant to
this subsection 2.4A(iii)(a), so long as such proceeds are
reinvested by Borrowers or their Subsidiaries within 180 days
after receipt of such proceeds in similar assets of similar fair
market value.
(b) PREPAYMENTS AND REDUCTIONS FROM NET
INSURANCE/CONDEMNATION PROCEEDS. No later than the first
Business Day following the date of receipt by Administrative
Agent or by any Borrower or any of its Subsidiaries of any Net
Insurance/Condemnation Proceeds that are required to be applied
to prepay the Loans and/or reduce the Revolving Loan Commitments
pursuant to the provisions of subsection 6.4C, (1) such Borrower
shall prepay its Loans and/or such Borrower's Revolving Loan
Commitments shall be permanently reduced, in an aggregate amount
equal to such Net Insurance/Condemnation Proceeds, and (2) to the
extent that any such Net Insurance/Condemnation Proceeds remain
after the applications required pursuant to the foregoing clause
(1), such Borrower shall cause the excess of such Net
Insurance/Condemnation Proceeds to be applied to prepay the
remaining outstanding Loans of all other Borrowers and/or the
Revolving Loan Commitments of all other Borrowers shall be
permanently reduced, in each case on a pro rata basis (in
accordance with the respective outstanding amount of Revolving
Loan Commitments).
(c) PREPAYMENTS AND REDUCTIONS DUE TO REVERSION OF
SURPLUS ASSETS OF PENSION PLANS. On the date of return to any
Borrower or any of its Subsidiaries of any surplus assets of any
pension plan of such Borrower or any of its Subsidiaries,
(1) such Borrower shall prepay its Loans and/or such Borrower's
Revolving Loan Commitments shall be permanently reduced in an
aggregate amount (such amount being the "NET REVERSION AMOUNT")
equal to 100% of such returned surplus assets, net of transaction
costs and expenses incurred in obtaining such return, including
incremental taxes payable as a result thereof, and (2) to the
extent that any such Net Reversion Amount remains after the
applications required pursuant to the foregoing clause (1), such
Borrower shall cause the excess of such Net Reversion Amount to
be applied to prepay the remaining outstanding Loans of all other
Borrowers and/or the Revolving Loan Commitments of all other
Borrowers shall be permanently reduced, in each case on a pro
rata basis (in accordance with the respective outstanding amount
of Revolving Loan Commitments).
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(d) PREPAYMENTS AND REDUCTIONS DUE TO ISSUANCE OF
EQUITY SECURITIES. No later than the first Business Day
following the date of receipt by Holdings or Company of the Cash
proceeds (any such proceeds, net of underwriting discounts and
commissions and other reasonable costs associated therewith,
including reasonable legal fees and expenses, being the "NET
EQUITY PROCEEDS") from the issuance of any equity Securities of
Holdings or Company (other than proceeds from Holdings Common
Stock issued to officers and employees of Company and its
Subsidiaries pursuant to option plans or other similar plans or
agreements adopted by Holdings' Board of Directors), (1) Company
shall prepay its Loans and/or Company's Revolving Loan
Commitments shall be permanently reduced in an aggregate amount
equal to 75% of such Net Equity Proceeds, and (2) to the extent
that any such Net Equity Proceeds remain after the applications
required pursuant to the foregoing clause (1), Company shall
cause such remaining Net Equity Proceeds to be applied to prepay
the remaining outstanding Loans of all other Borrowers and/or the
Revolving Loan Commitments of all other Borrowers shall be
permanently reduced, in each case on a pro rata basis (in
accordance with the respective outstanding amount of Revolving
Loan Commitments). In the case of the receipt by Holdings of
such Net Equity Proceeds from the issuance of any equity
Securities of Holdings, Company shall cause Holdings to
immediately contribute such Net Equity Proceeds to Company and
Company shall apply such Net Equity Proceeds pursuant to this
subsection 2.4A(iii)(d) as though initially received by Company
from the issuance of its own equity Securities.
(e) PREPAYMENTS AND REDUCTIONS DUE TO ISSUANCE OF DEBT
SECURITIES. No later than the first Business Day following the
date of receipt by any Borrower or any of its Subsidiaries of the
Cash proceeds (any such proceeds, net of underwriting discounts
and commissions and other reasonable costs and expenses
associated therewith, including reasonable legal fees and
expenses, being the "NET DEBT PROCEEDS") from the issuance of any
debt Securities of Holdings, such Borrower or any such
Subsidiary, (1) such Borrower shall prepay its Loans and/or such
Borrower's Revolving Loan Commitments shall be permanently
reduced in an aggregate amount equal to such Net Debt Proceeds,
and (2) to the extent that such Net Debt Proceeds remain after
the applications required pursuant to the foregoing clause, such
Borrower shall cause the excess of such Net Debt Proceeds to be
applied to prepay the remaining outstanding Revolving Loans of
all other Borrowers and/or the Revolving Loan Commitments of all
other Borrowers shall be permanently reduced in each case on a
pro rata basis (in accordance with the respective outstanding
amount of Revolving Loan Commitments). In the case of the
receipt by Holdings of such Net Debt Proceeds from the issuance
of any debt Securities of Holdings, Holdings shall immediately
contribute such Net Debt Proceeds to Company and Company shall
apply such Net Debt Proceeds pursuant to this subsection
2.4A(iii)(e) as though initially received by Company from the
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issuance of its own debt Securities; PROVIDED, HOWEVER, that up
to $5,000,000 of Net Debt Proceeds received by Borrowers and
their respective Subsidiaries shall be used to prepay Loans, but
shall not be required to be used to permanently reduce Revolving
Loan Commitments pursuant to this subsection 2.4A(iii)(e), so
long as such Net Debt Proceeds are from the issuance of
industrial development revenue bonds or other similar tax-exempt
or government subsidized debt Securities permitted under
subsection 7.1(viii).
(f) CALCULATIONS OF NET PROCEEDS AMOUNTS; ADDITIONAL
PREPAYMENTS AND REDUCTIONS BASED ON SUBSEQUENT CALCULATIONS.
Concurrently with any prepayment of the Loans and/or reduction of
the Revolving Loan Commitments pursuant to subsections
2.4A(iii)(a)-(e), Borrower shall deliver to Administrative Agent
an Officers' Certificate demonstrating the calculation of the
amount (the "NET PROCEEDS AMOUNT") of the applicable Net Asset
Sale Proceeds or Net Insurance/Condemnation Proceeds, the
applicable Net Pension Proceeds, Net Equity Proceeds or Net Debt
Proceeds (as such terms are defined in subsections 2.4A(iii)(c),
(d) and (e)), as the case may be, that gave rise to such
prepayment and/or reduction. In the event that Borrower shall
subsequently determine that the actual Net Proceeds Amount was
greater than the amount set forth in such Officers' Certificate,
Borrower shall promptly make an additional prepayment of the
Loans (and/or, if applicable, the Revolving Loan Commitments
shall be permanently reduced) in an amount equal to the amount of
such excess, and Borrower shall concurrently therewith deliver to
Administrative Agent an Officers' Certificate demonstrating the
derivation of the additional Net Proceeds Amount resulting in
such excess.
(g) PREPAYMENTS DUE TO RESTRICTIONS OF REVOLVING LOAN
COMMITMENTS OR CURRENCY FLUCTUATIONS. If on any Computation Date
Administrative Agent shall have determined that the Total
Utilization of Commitments exceeds the Maximum Revolving Loan
Commitments (whether for a particular Borrower or all Borrowers)
because of a change in applicable rates of exchange between
Dollars and Offshore Currencies, then Administrative Agent shall
give notice to the applicable Borrower(s) that a prepayment is
required under this subsection 2.4A(iii)(g) and (1) in the case
of Company, Company shall promptly (x) prepay FIRST its Swing
Line Loans and SECOND its Revolving Loans and/or (y) cash
collateralize its outstanding Letters of Credit, and (2) in the
case of a Borrower other than Company, such Borrower shall
promptly (x) prepay its Revolving Loans and/or (y) cash
collateralize its outstanding Letters of Credit, in each case to
the extent necessary so that the Total Utilization of Commitments
shall not exceed the Maximum Revolving Loan Commitments (whether
for such Borrower or all Borrowers) then in effect.
(h) REDUCTIONS OF REVOLVING LOAN COMMITMENTS NOT
LIMITED TO AMOUNT OF REVOLVING LOANS OUTSTANDING. The amount of
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any required reduction of the Revolving Loan Commitments pursuant
to any provision of this subsection 2.4A(iii) shall not be
affected by the fact that the outstanding principal amount of
Revolving Loans at the time of such reduction is less than the
amount of such reduction.
(iv) APPLICATION OF PREPAYMENTS.
(a) APPLICATION OF VOLUNTARY PREPAYMENTS BY TYPE OF
LOANS. Any voluntary prepayments pursuant to subsection 2.4A(i)
shall be applied as specified by the Borrower in the applicable
notice of prepayment; PROVIDED that in the event such Borrower
fails to specify the Loans to which any such prepayment shall be
applied, such prepayment shall be applied (x) in the case of
Company FIRST to repay Company's outstanding Swing Line Loans to
the full extent thereof, and SECOND to repay such Borrower's
outstanding Revolving Loans to the full extent thereof, or (y) in
case of any Borrower other than Company to repay such Borrower's
outstanding Revolving Loans to the full extent thereof.
(b) APPLICATION OF MANDATORY PREPAYMENTS BY TYPE OF
LOANS. Any amount (the "APPLIED AMOUNT") required to be applied
as a mandatory prepayment of the Loans and a reduction of the
Revolving Loan Commitments pursuant to subsections 2.4A(iii)(a)-
(e) shall be applied, (x) in the case of Company, FIRST to prepay
the Swing Line Loans to the full extent thereof and to
permanently reduce the Domestic Revolving Loan Commitments by the
amount of such prepayment, and SECOND, to the extent of any
remaining portion of the Applied Amount, to prepay the Domestic
Revolving Loans to the full extent thereof and to further
permanently reduce the Domestic Revolving Loan Commitments by the
amount of such prepayment, and THIRD, to the extent of any
remaining portion of the Applied Amount, to further permanently
reduce on a pro rata basis the UK Revolving Loan Commitments, the
French Revolving Loan Commitments and the Japanese Revolving Loan
Commitments to the full extent thereof, and (y) in the case of
any Borrower other than Company, FIRST to prepay the Revolving
Loans of that Borrower to the full extent thereof and to further
permanently reduce the Revolving Loan Commitments of that
Borrower by the amount of such prepayment and SECOND, to the
extent of any remaining portion of the Applied Amount, to further
permanently reduce on a pro rata basis the Revolving Loan
Commitments of each of the other Borrowers to the full extent
thereof.
(c) APPLICATION OF PREPAYMENTS OF REVOLVING LOANS TO
BASE RATE LOANS AND OFFSHORE RATE LOANS. Any prepayment of the
Revolving Loans shall be applied FIRST to Base Rate Loans to the
full extent thereof before application to Offshore Rate Loans, in
each case in a manner which minimizes the amount of any payments
required to be made by Borrowers pursuant to subsection 2.6D.
B. GENERAL PROVISIONS REGARDING PAYMENTS.
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(i) MANNER AND TIME OF PAYMENT. Borrowers shall make all
payments in respect of any Loan denominated in an Applicable Currency
in the same Applicable Currency. All payments by Borrower of (x)
principal and interest in respect of Loans hereunder and under any
Notes shall be made in the same Applicable Currency as incurred, and
(y) except as may be otherwise provided elsewhere in this Agreement,
all fees and all other Obligations hereunder and under any Notes shall
be made in Dollars (amounts denominated in a currency other than
Dollars shall be converted into Dollars by reference to the applicable
Exchange Rate), in each case in Same Day Funds and without defense,
setoff, counterclaim or other deduction, free of any restriction or
condition, and delivered to Administrative Agent not later than 12:00
Noon (Local Time) on the date due to the applicable Funding and
Payment Office. Funds received by Administrative Agent after the
times specified above on the due dates specified above shall be deemed
to have been paid by Borrowers on the next succeeding Business Day.
Each Borrower hereby authorizes Administrative Agent to charge its
accounts with Administrative Agent in order to cause timely payment to
be made to Administrative Agent of all principal, interest, fees and
expenses due hereunder (subject to sufficient funds being available in
its accounts for that purpose).
(ii) APPLICATION OF PAYMENTS TO PRINCIPAL AND INTEREST.
Except as provided in subsection 2.2C, all payments in respect of the
principal amount of any Loan shall include payment of accrued interest
on the principal amount being repaid or prepaid, and all such payments
(and, in any event, any payments in respect of any Loan on a date when
interest is due and payable with respect to such Loan) shall be
applied to the payment of interest before application to principal.
(iii) APPORTIONMENT OF PAYMENTS. Aggregate principal
and interest payments in respect of Revolving Loans shall be
apportioned among all outstanding Loans to which such payments relate,
in each case proportionately to such Lenders' respective Pro Rata
Shares. Administrative Agent shall promptly distribute to the
applicable Lender, at its primary address set forth below its name on
the appropriate signature page hereof or at such other address as such
Lender may request, its Pro Rata Share of all such payments received
by Administrative Agent and the commitment fees of such Lender when
received by Administrative Agent pursuant to subsection 2.3.
Notwithstanding the foregoing provisions of this subsection 2.4B(iii),
if, pursuant to the provisions of subsection 2.6C, any Notice of
Conversion/Continuation is withdrawn as to any Affected Lender or if
any Affected Lender makes Base Rate Loans in lieu of its Pro Rata
Share of any Offshore Rate Loans, Administrative Agent shall give
effect thereto in apportioning payments received thereafter.
(iv) PAYMENTS ON BUSINESS DAYS. Whenever any payment to be
made hereunder shall be stated to be due on a day that is not a
Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the
computation of the payment of interest hereunder or of the commitment
fees hereunder, as the case may be.
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(v) NOTATION OF PAYMENT. Each Lender agrees that before
disposing of any Revolving Note held by it, or any part thereof (other
than by granting participations therein), that Lender will make a
notation thereon of all Revolving Loans evidenced by that Revolving
Note and all principal payments previously made thereon and of the
date to which interest thereon has been paid; PROVIDED that the
failure to make (or any error in the making of) a notation of any
Revolving Loan made under such Revolving Note shall not limit or
otherwise affect the obligations of any Borrower hereunder or under
such Revolving Note with respect to any Revolving Loan or any payments
of principal or interest on such Revolving Note.
2.5 USE OF PROCEEDS.
A. REVOLVING LOANS; SWING LINE LOANS. The proceeds of the
Revolving Loans and Swing Line Loans shall be used for working capital
and general corporate purposes, including without limitation to pay
approximately $2,000,000 in Transaction Costs, the making of
intercompany loans to any of Company's wholly-owned Subsidiaries for
their own working capital and general corporate purposes in accordance
with subsection 7.1(iii), and the making of permitted repurchases of
Company's Senior Subordinated Notes.
B. MARGIN REGULATIONS. No portion of the proceeds of any
borrowing under this Agreement shall be used by any Borrower or any of
its Subsidiaries in any manner that might cause the borrowing or the
application of such proceeds to violate Regulation G, Regulation U,
Regulation T or Regulation X of the Board of Governors of the Federal
Reserve System or any other regulation of such Board or to violate the
Exchange Act, or to violate any other similar or comparable laws of
the UK, France or Japan in each case as in effect on the date or dates
of such borrowing and such use of proceeds.
2.6 SPECIAL PROVISIONS GOVERNING OFFSHORE RATE LOANS.
Notwithstanding any other provision of this Agreement to the
contrary, the following provisions shall govern with respect to
Offshore Rate Loans as to the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as
practicable after 11:00 A.M. (London time) on each Interest Rate
Determination Date, Administrative Agent shall determine (which
determination shall, absent manifest error, be final, conclusive and
binding upon all parties) the interest rate that shall apply to the
Offshore Rate Loans for which an interest rate is then being
determined for the applicable Interest Period and shall promptly give
notice thereof (in writing or by telephone confirmed in writing) to
the Borrower and each applicable Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the
event that Administrative Agent shall have determined (which
determination shall be final and conclusive and binding upon all
parties hereto), on any Interest Rate Determination Date with respect
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to any Offshore Rate Loans that by reason of circumstances affecting
the interbank Eurodollar market adequate and fair means do not exist
for ascertaining the interest rate applicable to such Loans on the
basis provided for in the definition of Adjusted Offshore Rate,
Administrative Agent shall on such date give notice (by telefacsimile
or by telephone confirmed in writing) to the Borrower and each
applicable Lender, of such determination, whereupon (i) no Loans may
be made as, or converted to, Offshore Rate Loans until such time as
Administrative Agent notifies such Borrower and such Lenders that the
circumstances giving rise to such notice no longer exist and (ii) any
Notice of Borrowing or Notice of Conversion/Continuation given by a
Borrower with respect to the Loans in respect of which such
determination was made shall be deemed to be rescinded by such
Borrower.
C. ILLEGALITY OR IMPRACTICABILITY OF OFFSHORE RATE LOANS. In
the event that on any date any Lender shall have determined (which
determination shall be final and conclusive and binding upon all
parties hereto but shall be made only after consultation with the
Borrower and Administrative Agent) that the making, maintaining or
continuation of its Offshore Rate Loans (i) has become unlawful as a
result of compliance by such Lender in good faith with any law,
treaty, governmental rule, regulation, guideline or order (or would
conflict with any such treaty, governmental rule, regulation,
guideline or order not having the force of law even though the failure
to comply therewith would not be unlawful) or (ii) has become
impracticable, or would cause such Lender material hardship, as a
result of contingencies occurring after the date of this Agreement
which materially and adversely affect the interbank Eurodollar market
or the position of such Lender in that market, then, and in any such
event, such Lender shall be an "AFFECTED LENDER" and it shall on that
day give notice (by telefacsimile or by telephone confirmed in
writing) to the Borrower and Administrative Agent of such
determination (which notice Administrative Agent shall promptly
transmit to each other applicable Lender). Thereafter (a) the
obligation of the Affected Lender to make Loans as, or to convert
Loans to, Offshore Rate Loans shall be suspended until such notice
shall be withdrawn by the Affected Lender, (b) to the extent such
determination by the Affected Lender relates to an Offshore Rate Loan
then being requested by a Borrower pursuant to a Notice of Borrowing
or a Notice of Conversion/Continuation, the Affected Lender shall make
such Loan as (or convert such Loan to, as the case may be) a Base Rate
Loan, (c) the Affected Lender's obligation to maintain its outstanding
Offshore Rate Loans (the "AFFECTED LOANS"), shall be terminated at the
earlier to occur of the expiration of the Interest Period then in
effect with respect to the Affected Loans or when required by law, and
(d) the Affected Loans shall automatically convert into applicable
Base Rate Loans on the date of such termination. Notwithstanding the
foregoing, to the extent a determination by an Affected Lender as
described above relates to an Offshore Rate Loan then being requested
by a Borrower pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, such Borrower shall have the option, subject
to the provisions of subsection 2.6D, to rescind such Notice of
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Borrowing or Notice of Conversion/Continuation as to all Lenders by
giving notice (by telefacsimile or by telephone confirmed in writing)
to Administrative Agent of such rescission on the date on which the
Affected Lender gives notice of its determination as described above
(which notice of rescission Administrative Agent shall promptly
transmit to each other applicable Lender). Except as provided in the
immediately preceding sentence, nothing in this subsection 2.6C shall
affect the obligation of any Lender other than an Affected Lender to
make or maintain Loans as, or to convert Loans to, Offshore Rate Loans
in accordance with the terms of this Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST
PERIODS. A Borrower shall compensate each Lender, upon written
request by that Lender (which request shall set forth in reasonable
detail the basis for requesting such amounts), for all reasonable
losses, expenses and liabilities (including, without limitation, any
interest paid by that Lender to lenders of funds borrowed by it to
make or carry its Offshore Rate Loans, and any loss, expense or
liability sustained by that Lender in connection with the liquidation
or re-employment of such funds) which that Lender may sustain: (i) if
for any reason (other than a default by that Lender) a borrowing of
any Offshore Rate Loan does not occur on a date specified therefor in
a Notice of Borrowing or a telephonic request for borrowing, or a
conversion to or continuation of any Offshore Rate Loan does not occur
on a date specified therefor in a Notice of Conversion/Continuation or
a telephonic request for conversion or continuation, (ii) if any
prepayment or other principal payment or any conversion of any of its
Offshore Rate Loans occurs on a date prior to the last day of an
Interest Period applicable to that Loan, (iii) if any prepayment of
any of its Offshore Rate Loans is not made on any date specified in a
notice of prepayment given by the Borrower, or (iv) as a consequence
of any other default by the Borrower in the repayment of its Offshore
Rate Loans when required by the terms of this Agreement.
E. BOOKING OF OFFSHORE RATE LOANS. Any Lender may make, carry
or transfer Offshore Rate Loans at, to, or for the account of any of
its branch offices or the office of an Affiliate of that Lender.
F. ASSUMPTIONS CONCERNING FUNDING OF OFFSHORE RATE LOANS.
Calculation of all amounts payable to a Lender under this subsection
2.6 and under subsection 2.7A (as fully set forth in Annex A) shall be
made as though that Lender had actually funded each of its relevant
Offshore Rate Loans through the purchase of a Eurodollar deposit
bearing interest at the rate obtained pursuant to clause (i) of the
definition of Adjusted Offshore Rate in an amount equal to the amount
of such Offshore Rate Loan and having a maturity comparable to the
relevant Interest Period and through the transfer of such Eurodollar
deposit from an offshore office of that Lender to a domestic office of
that Lender; PROVIDED, HOWEVER, that each Lender may fund each of its
Offshore Rate Loans in any manner it sees fit and the foregoing
assumptions shall be utilized only for the purposes of calculating
amounts payable under this subsection 2.6 and under subsection 2.7A.
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G. OFFSHORE RATE LOANS AFTER DEFAULT. After the occurrence of
and during the continuation of a Potential Event of Default or an
Event of Default, (i) Borrowers may elect to have an Offshore Rate
Loan denominated in an Offshore Currency made or maintained as an
Offshore Rate Loan, but may not elect to have a Base Rate Loan
denominated in Dollars converted to an Offshore Rate Loan, after the
expiration of any Interest Period then in effect for that Loan and
(ii) subject to the provisions of subsection 2.6D, any Notice of
Borrowing or Notice of Conversion/Continuation given by any Borrower
with respect to a requested borrowing or conversion/continuation that
has not yet occurred shall be deemed to be rescinded by such Borrower.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
Provisions regarding increased costs, taxes, and capital adequacy
are set forth in ANNEX A attached hereto and such ANNEX A is
incorporated herein by this reference.
2.8 OBLIGATIONS OF LENDERS AND ISSUING LENDERS TO MITIGATE;
REPLACEMENT OF LENDERS.
Provisions regarding obligations of Lenders and Issuing Lenders
to mitigate are set forth in ANNEX B attached hereto and such ANNEX B
is incorporated herein by this reference.
2.9 INDEMNIFYING LENDERS.
Provisions regarding Indemnifying Lenders are set forth in ANNEX
C attached hereto and such ANNEX C is incorporated herein by this
reference.
SECTION 3. LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF
PARTICIPATIONS THEREIN.
A. LETTERS OF CREDIT. In addition to Borrowers requesting that
Lenders make Revolving Loans pursuant to subsection 2.1A(i)(a) and
that Swing Line Lender makes Swing Line Loans pursuant to subsection
2.1A(ii), Borrowers may request, in accordance with the provisions of
this subsection 3.1, from time to time during the period from the
Effective Date to but excluding the date which is (x) the fifth
Business Day prior to the Commitment Termination Date (in the case of
Standby Letters of Credit) and (y) the thirtieth Business Day prior to
the Commitment Termination Date (in the case of Commercial Letters of
Credit), that one or more Lenders issue Letters of Credit payable on a
sight basis for the account of such Borrower for the purposes
specified in the definitions of Commercial Letters of Credit and
Standby Letters of Credit. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties
of Borrowers set forth herein, any one or more Lenders may, but
(except as provided in subsection 3.1B(ii)) shall not be obligated to,
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issue such Letters of Credit in accordance with the provisions of this
subsection 3.1; PROVIDED that Borrowers shall not request that any
Lenders issue (and no Lender shall issue):
(i) any Letter of Credit if, after giving effect to such
issuance, the Total Utilization of Commitments for all Borrowers
would exceed the Maximum Revolving Loan Commitments for all
Borrowers then in effect;
(ii) any Letter of Credit if, after giving effect to such
issuance, (x) the Letter of Credit Usage of any Borrower would
exceed the Letters of Credit Suballocation for such Borrower then
in effect, and (y) the Letter of Credit Usage for all Borrowers
would exceed $175,000,000;
(iii) any Letter of Credit if, after giving effect to
such issuance, the aggregate stated amount of all Letters of
Credit supporting Customer Financing Note Guaranties would exceed
$20,000,000 at any time;
(iv) any Standby Letter of Credit having an expiration date
later than the earlier of (a) the date which is five Business
Days prior to the Commitment Termination Date and (b) the date
which is one year from the date of issuance of such Standby
Letter of Credit; PROVIDED that the immediately preceding clause
(b) shall not prevent any Issuing Lender from agreeing that a
Standby Letter of Credit will automatically be extended for one
or more successive periods not to exceed one year each unless
such Issuing Lender elects not to extend for any such additional
period; and PROVIDED FURTHER that such Issuing Lender shall elect
not to extend such Standby Letter of Credit if it has knowledge
that an Event of Default has occurred and is continuing (and has
not been waived in accordance with subsection 10.6) at the time
such Issuing Lender must elect whether or not to allow such
extension; or
(v) any Commercial Letter of Credit having an expiration
date (a) later than the earlier of (X) the date which is thirty
Business Days prior to the Revolving Commitment Termination Date
and (Y) the date which is 180 days from the date of issuance of
such Commercial Letter of Credit or (b) that is otherwise
unacceptable to the applicable Issuing Lender in its reasonable
discretion.
B. MECHANICS OF ISSUANCE.
(i) REQUEST FOR ISSUANCE. Whenever any Borrower desires
the issuance of a Letter of Credit, it shall deliver to
Administrative Agent a Request for Issuance of Letter of Credit
substantially in the form of EXHIBIT III annexed hereto no later
than 12:00 Noon (New York time) at least two (2) Business Days,
or such shorter period as may be agreed to by the Issuing Lender
in any particular instance, in advance of the proposed date of
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issuance. The Request for Issuance of Letter of Credit shall
specify (a) the proposed date of issuance (which shall be a
Business Day), (b) the face amount of the Letter of Credit, (c)
the currency the Letter of Credit is requested to be denominated
in, (d) the expiration date of the Letter of Credit, (e) the name
and address of the beneficiary, and (f) either the verbatim text
of the proposed Letter of Credit or the proposed terms and
conditions thereof, including a precise description of any
documents to be presented by the beneficiary which, if presented
by the beneficiary prior to the expiration date of the Letter of
Credit, would require the Issuing Lender to make payment under
the Letter of Credit; PROVIDED that the Issuing Lender, in its
reasonable discretion, may require changes in the text of the
proposed Letter of Credit or any such documents. The Request for
Issuance of Letter of Credit shall also specify whether the
Letter of Credit is for the purpose of supporting a Customer
Financing Note Guaranty.
Such Borrower shall notify the applicable Issuing
Lender (and Administrative Agent, if Administrative Agent is not
such Issuing Lender) prior to the issuance of any Letter of
Credit in the event that any of the matters to which it is
required to certify in the applicable Request for Issuance of
Letter of Credit is no longer true and correct as of the proposed
date of issuance of such Letter of Credit, and upon the issuance
of any Letter of Credit such Borrower shall be deemed to have re-
certified, as of the date of such issuance, as to the matters to
which it is required to certify in the applicable Request for
Issuance of Letter of Credit.
(ii) DETERMINATION OF ISSUING LENDER. Upon receipt by
Administrative Agent of a Request for Issuance of Letter of
Credit pursuant to subsection 3.1B(i) requesting the issuance of
a Letter of Credit, in the event Administrative Agent elects to
issue such Letter of Credit, Administrative Agent shall promptly
so notify Borrower, and Administrative Agent shall be the Issuing
Lender with respect thereto. In the event that Administrative
Agent, in its sole discretion, elects not to issue such Letter of
Credit, Administrative Agent shall promptly notify Borrower,
whereupon Borrower may request any other Lender to issue such
Letter of Credit by delivering to such Lender a copy of the
applicable Request for Issuance of Letter of Credit. Any Lender
so requested to issue such Letter of Credit shall promptly notify
Borrower and Administrative Agent whether or not, in its sole
discretion, it has elected to issue such Letter of Credit, and
any such Lender which so elects to issue such Letter of Credit
shall be the Issuing Lender with respect thereto. In the event
that all other Lenders shall have declined to issue such Letter
of Credit, notwithstanding the prior election of Administrative
Agent not to issue such Letter of Credit, Administrative Agent
shall be obligated to issue such Letter of Credit and shall be
the Issuing Lender with respect thereto, notwithstanding the fact
that the Letter of Credit Usage with respect to such Letter of
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Credit and with respect to all other Letters of Credit issued by
the Administrative Agent, when aggregated with Administrative
Agent's outstanding Revolving Loans and Swing Line Loans, may
exceed Administrative Agent's Revolving Loan Commitments for such
Borrower then in effect.
(iii) ISSUANCE OF LETTER OF CREDIT. Upon satisfaction
or waiver (in accordance with subsection 10.6) of the conditions
set forth in subsection 4.3, the Issuing Lender shall issue the
requested Letter of Credit in accordance with the Issuing
Lender's standard operating procedures.
(iv) NOTIFICATION TO LENDERS. Upon the issuance of any
Letter of Credit the applicable Issuing Lender shall promptly
notify Administrative Agent of such issuance which notice shall
be accompanied by a copy of such Letter of Credit. Promptly
after receipt of such notice (or, if Administrative Agent is the
Issuing Lender, together with such notice), Administrative Agent
shall notify each Lender, of the amount of such Lender's
respective participation in such Letter of Credit, determined in
accordance with subsection 3.1C.
(v) REPORTS TO LENDERS. In the event that the Issuing
Lender is other than Administrative Agent, such Issuing Lender
will send by facsimile transmission to Administrative Agent,
promptly on the first Business Day of each week, its daily
maximum amount available to be drawn under the Letters of Credit
issued by such Issuing Lender for the previous week.
Administrative Agent shall deliver to each Lender upon each
calendar month end, and upon each Letter of Credit fee payment, a
report setting forth the daily maximum amount available to be
drawn for all Issuing Lenders during such period.
C. REVOLVING LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS OF
CREDIT. Immediately upon the issuance of each Letter of Credit for
the benefit of Company, ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan, as the
case may be, each applicable Lender shall be deemed to, and hereby
agrees to, have irrevocably purchased from the Issuing Lender a
participation in such Letter of Credit and drawings thereunder in an
amount equal to such Lender's Pro Rata Share of the Revolving Loan
Commitment of the maximum amount which is or at any time may become
available to be drawn thereunder.
3.2 LETTER OF CREDIT FEES.
Each Borrower agrees to pay the following amounts with
respect to Letters of Credit issued hereunder for such Borrower's
account:
(i) with respect to each Standby Letter of Credit, (a) a
fronting fee, payable in Dollars directly to the applicable
Issuing Lender for its own account, equal to the greater of (X)
$500 and (Y) 0.25% per annum of the Dollar Equivalent of the
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daily maximum amount available to be drawn under such Standby
Letter of Credit, and (b) a letter of credit fee, payable in
Dollars to Administrative Agent for the account of Lenders, equal
to (x) the Applicable Offshore Rate Margin MULTIPLIED BY (y) the
Dollar Equivalent of the daily maximum amount available to be
drawn under such Standby Letter of Credit, in each case payable
in arrears on and to (but excluding) the date that is three
Business Days after each March 31, June 30, September 30 and
December 31 of each year and computed on the basis of a 360-day
year for the actual number of days elapsed;
(ii) with respect to each Commercial Letter of Credit, (a) a
fronting fee, payable in Dollars directly to the applicable
Issuing Lender for its own account, equal to the greater of (X)
$500 and (Y) 0.25% per annum of the Dollar Equivalent of the
daily maximum amount available to be drawn under such Commercial
Letter of Credit, and (b) a letter of credit fee, payable in
Dollars to Administrative Agent for the account of Lenders, equal
to (x) the Applicable Offshore Rate Margin MULTIPLIED BY (y) the
Dollar Equivalent of the daily maximum amount available to be
drawn under such Commercial Letter of Credit, in each case
payable in arrears on and to (but excluding) the date that is
three Business Days after each March 31, June 30, September 30
and December 31 of each year and computed on the basis of a 360-
day year for the actual number of days elapsed; and
(iii) with respect to the issuance, amendment or
transfer of each Letter of Credit and each payment of a drawing
made thereunder (without duplication of the fees payable under
clauses (i) and (ii) above), documentary and processing charges
payable directly to the applicable Issuing Lender for its own
account in accordance with such Issuing Lender's standard
schedule for such charges in effect at the time of such issuance,
amendment, transfer or payment, as the case may be.
For purposes of calculating any fees payable under clauses (i) or (ii)
of this subsection 3.2, (1) the Dollar Equivalent of the daily amount
available to be drawn under any Letter of Credit shall be determined
as of the close of business on any date of determination, (2) any
adjustments in the Applicable Offshore Rate Margin shall be made in
accordance with subsection 2.2A, (3) any amount which is denominated
in a currency other than Dollars shall be determined based on the
applicable Exchange Rate for such currency as of each first Business
Day after each March 31, June 30, September 30 or December 31, as the
case may be, of each year, and (4) Administrative Agent shall provide
to Borrowers on each first Business Day after each March 31, June 30,
September 30 or December 31 of each year a report specifying the
Letter of Credit fees payable by each Borrower and including the
calculations of such fees and the Exchange Rate used, and Borrowers
shall pay such fees no later than two Business Days after delivery of
such report. Promptly upon receipt by Administrative Agent of any
amount described in clause (i)(b) and (ii)(b) of this subsection 3.2,
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Administrative Agent shall distribute to each other applicable Lender
its Pro Rata Share of such amount.
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS DRAWN UNDER LETTERS OF
CREDIT.
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO DRAWINGS.
In determining whether to honor any drawing under any Letter of Credit
by the beneficiary thereof, the Issuing Lender shall be responsible
only to exercise reasonable care to determine that the documents
required to be delivered under such Letter of Credit have been
delivered and that they substantially comply on their face with the
requirements of such Letter of Credit.
B. REIMBURSEMENT BY BORROWERS OF AMOUNTS DRAWN UNDER LETTERS OF
CREDIT. In the event an Issuing Lender has determined to honor a
drawing under a Letter of Credit issued by it, (i) such Issuing Lender
shall immediately notify the Borrower and Administrative Agent and
(ii) Borrower shall reimburse such Issuing Lender on or before the
Business Day immediately following the date on which such drawing is
honored (the "REIMBURSEMENT DATE") in an amount in same day funds in
Dollars (which amount, in the case of a drawing under a Letter of
Credit which is denominated in a currency other than Dollars, shall be
calculated by reference to the applicable Exchange Rate) equal to the
amount of such drawing; PROVIDED that, anything contained in this
Agreement to the contrary notwithstanding, (i) unless the Borrower
shall have notified Administrative Agent and such Issuing Lender prior
to 12:00 Noon (New York time) on the date such drawing is honored that
such Borrower intends to reimburse such Issuing Lender for the amount
of such drawing with funds other than the proceeds of Revolving Loans,
such Borrower shall be deemed to have given a timely Notice of
Borrowing to Administrative Agent requesting Lenders to make Revolving
Loans that are (x) Base Rate Loans (in the case of Company) or (y)
Offshore Rate Loans with an Interest Period of one week (in the case
of ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan) on the Reimbursement Date in an
amount in Dollars (which amount, in the case of a drawing under a
Letter of Credit which is denominated in a currency other than
Dollars, shall be calculated by reference to the applicable Exchange
Rate) equal to the amount of such drawing and (ii) subject to
satisfaction or waiver of the conditions specified in subsection 4.2C,
Lenders shall, on the Reimbursement Date, make Revolving Loans
denominated in Dollars that are (x) Base Rate Loans (in the case of
Company) or (y) Offshore Rate Loans with an Interest Period of one
week (in the case of ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan) in the amount
of such drawing, the proceeds of which shall be applied directly by
Administrative Agent to reimburse such Issuing Lender for the amount
of such drawing; and PROVIDED FURTHER that if for any reason proceeds
of Revolving Loans are not received by such Issuing Lender on the
Reimbursement Date in an amount equal to the amount of such drawing,
such Borrower shall reimburse such Issuing Lender, on demand, in an
amount in same day funds equal to the excess of the amount of such
drawing over the aggregate amount of such Revolving Loans, if any,
which are so received. Nothing in this subsection 3.3B shall be
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deemed to relieve any Lender from its obligation to make Revolving
Loans on the terms and conditions set forth in this Agreement, and
such Borrower shall retain any and all rights it may have against any
Lender resulting from the failure of such Lender to make such
Revolving Loans under this subsection 3.3B.
C. PAYMENT BY LENDERS OF UNREIMBURSED DRAWINGS UNDER LETTERS OF
CREDIT.
(i) PAYMENT BY LENDERS. In the event that the Borrower
shall fail for any reason to reimburse any Issuing Lender as
provided in subsection 3.3B in an amount (calculated in the case
of a drawing under a Letter of Credit denominated in an Offshore
Currency, by reference to the applicable Exchange Rate) equal to
the amount of any drawing honored by such Issuing Lender under a
Letter of Credit issued by it, such Issuing Lender shall promptly
notify each other Lender having a Revolving Loan Commitment of
such Type, of the unreimbursed amount of such drawing and having
a Revolving Loan Commitment of such Type, of such other Lender's
respective participation therein based on such Lender's Pro Rata
Share. Each such Lender shall make available to such Issuing
Lender an amount equal to its respective participation in same
day funds in Dollars, at the office of such Issuing Lender
specified in such notice, not later than 12:00 Noon (New York
time) on the first business day (under the laws of the
jurisdiction in which such office of such Issuing Lender is
located) after the date notified by such Issuing Lender. In the
event that any such Lender fails to make available to such
Issuing Lender on such business day the amount of such Lender's
participation in such Letter of Credit or the amount of the
unreimbursed drawing regarding such Letter of Credit as provided
in this subsection 3.3C, such Issuing Lender shall be entitled to
recover such amount on demand from such Lender together with
interest thereon at the rate customarily used by such Issuing
Lender for the correction of errors among banks for three
Business Days and thereafter at the Base Rate. Nothing in this
subsection 3.3C shall be deemed to prejudice the right of any
such Lender to recover from any Issuing Lender any amounts made
available by such Lender to such Issuing Lender pursuant to this
subsection 3.3C in the event that it is determined by the final
judgment of a court of competent jurisdiction that the payment
with respect to a Letter of Credit by such Issuing Lender in
respect of which payment was made by such Lender constituted
gross negligence or willful misconduct on the part of such
Issuing Lender.
(ii) DISTRIBUTION TO LENDERS OF REIMBURSEMENTS RECEIVED FROM
BORROWERS. In the event any Issuing Lender shall have been
reimbursed by other Lenders pursuant to subsection 3.3C(i) for
all or any portion of any drawing honored by such Issuing Lender
under a Letter of Credit issued by it, such Issuing Lender shall
distribute to each other Lender which has paid all amounts
payable by it under subsection 3.3C(i) with respect to such
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drawing such other Lender's Pro Rata Share of all payments
subsequently received by such Issuing Lender from a Borrower in
reimbursement of such drawing when such payments are received.
Any such distribution shall be made to a Lender at its primary
address set forth below its name on the appropriate signature
page hereof or at such other address as such Lender may request.
D. INTEREST ON AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
(i) PAYMENT OF INTEREST BY BORROWERS. Each Borrower agrees
to pay to Issuing Lender, with respect to drawings made under any
Letters of Credit issued by such Issuing Lender at such
Borrower's request, interest on the amount paid by such Issuing
Lender in respect of each such drawing from the date of such
drawing to but excluding the date such amount is reimbursed by
the Borrower (including any such reimbursement out of the
proceeds of Revolving Loans pursuant to subsection 3.3B) at a
rate equal to (a) for the period from the date of such drawing to
but excluding the Reimbursement Date, the rate then in effect
under this Agreement with respect to Revolving Loans that are
Base Rate Loans and (b) thereafter, a rate which is 2.00% per
annum in excess of the rate of interest otherwise payable under
this Agreement with respect to Revolving Loans that are Base Rate
Loans. Interest payable pursuant to this subsection 3.3D(i)
shall be computed on the basis of a 360-day year for the actual
number of days elapsed in the period during which it accrues and
shall be payable on demand or, if no demand is made, on the date
on which the related drawing under a Letter of Credit is
reimbursed in full.
(ii) DISTRIBUTION OF INTEREST PAYMENTS BY ISSUING LENDER.
Promptly upon receipt by any Issuing Lender of any payment of
interest pursuant to subsection 3.3D(i) with respect to a drawing
under a Letter of Credit issued by it, (a) such Issuing Lender
shall distribute to each other applicable Lender, out of the
interest received by such Issuing Lender in respect of the period
from the date of such drawing to but excluding the date on which
such Issuing Lender is reimbursed for the amount of such drawing
(including any such reimbursement out of the proceeds of
Revolving Loans pursuant to subsection 3.3B), the amount that
such other Lender would have been entitled to receive in respect
of the letter of credit fee that would have been payable in
respect of such Letter of Credit for such period pursuant to
subsection 3.2 if no drawing had been made under such Letter of
Credit, and (b) in the event such Issuing Lender shall have been
reimbursed by other Lenders pursuant to subsection 3.3C(i) for
all or any portion of such drawing, such Issuing Lender shall
distribute to each other Lender which has paid all amounts
payable by it under subsection 3.3C(i) with respect to such
drawing such other Lender's Pro Rata Share of any interest
received by such Issuing Lender in respect of that portion of
such drawing so reimbursed by such other Lender for the period
from the date on which such Issuing Lender was so reimbursed by
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such other Lender to but excluding the date on which such portion
of such drawing is reimbursed by the Borrower. Any such
distribution shall be made to a Lender at its primary address set
forth below its name on the appropriate signature page hereof or
at such other address as such Lender may request.
3.4 OBLIGATIONS ABSOLUTE.
The obligation of a Borrower to reimburse an Issuing Lender
for drawings made under the Letters of Credit issued by it and to
repay any Revolving Loans made by Lenders pursuant to subsection 3.3B
and the obligations of Lenders under subsection 3.3C(i) shall be
unconditional and irrevocable, and any such payments shall be made
strictly in accordance with the terms of this Agreement under all
circumstances including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, set-off, defense or other
right which any Borrower or any Lender may have at any time
against a beneficiary or any transferee of any Letter of Credit
(or any Persons for whom any such transferee may be acting), any
Issuing Lender or other Lender or any other Person or, in the
case of a Lender, against any Borrower, whether in connection
with this Agreement, the transactions contemplated herein or any
unrelated transaction (including any underlying transaction
between Borrower or one of its Subsidiaries and the beneficiary
for which any Letter of Credit was procured);
(iii) any draft or document presented under any Letter
of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue
or inaccurate in any respect;
(iv) payment by the applicable Issuing Lender under any
Letter of Credit against presentation of a draft or document
which does not substantially comply with the terms of such Letter
of Credit;
(v) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or
prospects of Borrower or any of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document
by any party thereto;
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential
Event of Default shall have occurred and be continuing;
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PROVIDED, in each case, that payment by the applicable Issuing Lender
under the applicable Letter of Credit shall not have constituted gross
negligence or willful misconduct of such Issuing Lender under the
circumstances in question (as determined by a final judgment of a
court of competent jurisdiction).
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDERS' DUTIES.
A. INDEMNIFICATION. In addition to amounts payable as provided
in subsection 3.6, each Borrower hereby agrees to protect, indemnify,
pay and save harmless each Issuing Lender from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable fees, expenses and disbursements of
counsel and reasonable allocated costs of internal counsel) which such
Issuing Lender may incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of any Letter of Credit by such Issuing
Lender, other than as a result of (a) the gross negligence or willful
misconduct of such Issuing Lender as determined by a final judgment of
a court of competent jurisdiction or (b) subject to the following
clause (ii), the wrongful dishonor by such Issuing Lender of a proper
demand for payment made under any Letter of Credit issued by it or
(ii) the failure of such Issuing Lender to honor a drawing under any
such Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any Governmental Authority (all such acts or
omissions herein called "GOVERNMENTAL ACTS").
B. NATURE OF ISSUING LENDERS' DUTIES. As between any Borrower
on the one hand and any Issuing Lender on the other hand, Borrower
assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by such Issuing Lender by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in
limitation of the foregoing, such Issuing Lender shall not be
responsible (absent a determination of a court of competent
jurisdiction of gross negligence or willful misconduct by Issuing
Lender) for: (i) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any such Letter of
Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to
comply fully with any conditions required in order to draw upon such
Letter of Credit; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under any such Letter of Credit or of the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of
Credit of the proceeds of any drawing under such Letter of Credit; or
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(viii) any consequences arising from causes beyond the control of such
Issuing Lender, including without limitation any Governmental Acts,
and none of the above shall affect or impair, or prevent the vesting
of, any of such Issuing Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the
specific provisions set forth in the first paragraph of this
subsection 3.5B, any action taken or omitted by any Issuing Lender
under or in connection with the Letters of Credit issued by it or any
documents and certificates delivered thereunder, if taken or omitted
in good faith, shall not put such Issuing Lender under any resulting
liability to any Borrower.
Notwithstanding anything to the contrary contained in this
subsection 3.5, each Borrower shall retain any and all rights it may
have against any Issuing Lender for any liability arising solely out
of the gross negligence or willful misconduct of such Issuing Lender,
as determined by a final judgment of a court of competent jurisdiction
or out of a wrongful dishonor by Issuing Lender of a proper demand for
payment made under any Letter of Credit.
3.6 INCREASED COSTS AND TAXES RELATING TO LETTERS OF CREDIT.
In the event that any Issuing Lender or Lender shall
determine (which determination shall, absent manifest error, be final
and conclusive and binding upon all parties hereto) that any law,
treaty or governmental rule, regulation or order, or any change
therein or in the interpretation, administration or application
thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a
court or governmental authority, in each case that becomes effective
after the date hereof, or compliance by any Issuing Lender or Lender
with any guideline, request or directive issued or made after the date
hereof by any central bank or other governmental or quasi-governmental
authority (whether or not having the force of law):
(i) subjects such Issuing Lender or Lender (or its
applicable lending or letter of credit office) to any additional
Tax (other than any Tax on the overall net income of such Issuing
Lender or Lender) with respect to the issuing or maintaining of
any Letters of Credit or the purchasing or maintaining of any
participations therein or any other obligations under this
Section 3, whether directly or by such being imposed on or
suffered by any particular Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve
(including without limitation any marginal, emergency,
supplemental, special or other reserve), special deposit,
compulsory loan, FDIC insurance or similar requirement in respect
of any Letters of Credit issued by any Issuing Lender or
participations therein purchased by any Lender; or
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(iii) imposes any other condition (other than with
respect to a Tax matter) on or affecting such Issuing Lender or
Lender (or its applicable lending or letter of credit office)
regarding this Section 3 or any Letter of Credit or any
participation therein;
and the result of any of the foregoing is to increase the cost to such
Issuing Lender or Lender of agreeing to issue, issuing or maintaining
any Letter of Credit or agreeing to purchase, purchasing or
maintaining any participation therein or to reduce any amount received
or receivable by such Issuing Lender or Lender (or its applicable
lending or letter of credit office) with respect thereto in an amount
deemed by such Issuing Lender or Lender (in its sole discretion) to be
material; then, in any case, such Borrower shall promptly pay to such
Issuing Lender or Lender, upon receipt of the statement referred to in
the next sentence, such additional amount or amounts as may be
necessary to compensate such Issuing Lender or Lender for any such
increased cost or reduction in amounts received or receivable
hereunder. Such Issuing Lender or Lender shall deliver to the
Borrower a written statement, setting forth in reasonable detail the
basis for calculating the additional amounts owed to such Issuing
Lender or Lender under this subsection 3.6, which statement shall be
conclusive and binding upon all parties hereto absent manifest error.
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of
Letters of Credit hereunder are subject to the satisfaction of the
following conditions.
4.1 CONDITIONS TO INITIAL EFFECTIVENESS.
The obligations of Lenders to purchase or make any Revolving
Loans and/or Swing Line Loans on the Effective Date are, in addition
to the conditions precedent specified in subsection 4.2, subject to
prior or concurrent satisfaction of the following conditions:
A. BORROWER DOCUMENTS. On or before the Effective Date, each
Borrower shall deliver or cause to be delivered to Lenders (or to
Administrative Agent for Lenders with sufficient originally executed
copies, where appropriate, for each Lender and its counsel) the
following, each, unless otherwise noted, dated the Effective Date:
(i) Certified copies of its Certificate or Articles of
Incorporation, together with a good standing certificate from the
Secretary of State of its jurisdiction of incorporation and each
other state in which it is qualified as a foreign corporation to
do business and, to the extent generally available, a certificate
or other evidence of good standing as to payment of any
applicable franchise or similar taxes from the appropriate taxing
authority of each of such jurisdictions, and in the case of ▇▇▇▇
UK, ▇▇▇▇ France and ▇▇▇▇ Japan, the comparable or equivalent
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documentation under the laws of the applicable Governmental
Authority, each dated a recent date prior to the Effective Date;
(ii) Copies of its Bylaws, certified as of the Effective
Date by its corporate secretary or an assistant secretary, and in
the case of ▇▇▇▇ UK, ▇▇▇▇ France and ▇▇▇▇ Japan, the comparable
or equivalent documentation, certified as of the Effective Date
by a duly authorized officer;
(iii) Resolutions of its Board of Directors approving
and authorizing the execution, delivery and performance of this
Agreement and the other Loan Documents and Related Agreements to
which it is a party, certified as of the Effective Date by its
corporate secretary, an assistant secretary or other duly
authorized officer as being in full force and effect without
modification or amendment;
(iv) Signature and incumbency certificates of its officers
executing this Agreement and the other Loan Documents to which it
is a party;
(v) Executed and acknowledged (where applicable) originals
of this Agreement, the Notes (duly executed in accordance with
subsection 2.1E, drawn to the order of each applicable Lender and
with appropriate insertions) and the other Loan Documents to
which it is a party, which Loan Documents shall include:
a. in the case of Company: a Collateral Account
Agreement, Guaranties of Obligations of ▇▇▇▇ UK, ▇▇▇▇ France
and ▇▇▇▇ Japan, Pledge Agreements pledging 100% of the stock
of its Domestic Subsidiaries and 66% of the stock of its
Foreign Subsidiaries, a Security Agreement, a Trademark
Security Agreement, a Patent Security Agreement and
Mortgages, if any;
b. in the case of ▇▇▇▇ UK: a Collateral Account
Agreement, a Pledge Agreement, a Security Agreement, a
Trademark Security Agreement, a Patent Security Agreement
and Mortgages, if any;
c. in the case of ▇▇▇▇ France: a Collateral Account
Agreement, a Pledge Agreement, a Security Agreement, a
Trademark Security Agreement and a Mortgage, if any;
d. in the case of ▇▇▇▇ Japan: a Collateral Account
Agreement, a Security Agreement, a Trademark Security
Agreement, a Patent Security Agreement and Mortgages, if
any;
(vi) An Officers' Certificate from each Borrower as to
authorized signatories of that Borrower for Notices of Borrowing,
Notices of Conversion/Continuation, Requests of Issuance of
Letters of Credit and Notices of Allocation; and
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(vii) Such other documents as Administrative Agent may
reasonably request.
B. HOLDINGS AND SUBSIDIARY DOCUMENTS. On or before the
Effective Date, Company shall cause Holdings and each Borrower shall
cause each of its Subsidiaries (other than Inactive Subsidiaries) to
deliver to Lenders (or to Administrative Agent for Lenders with
sufficient originally executed copies, where appropriate, for each
Lender and its counsel) the following, each, unless otherwise noted,
dated the Effective Date:
(i) Certified copies of the Certificate or Articles of
Incorporation of such Person, together with a good standing
certificate from the Secretary of State of the State of its
jurisdiction of incorporation and each other state in which such
Person is qualified as a foreign corporation to do business and,
to the extent generally available, a certificate or other
evidence of good standing as to payment of any applicable
franchise or similar taxes from the appropriate taxing authority
of each of such jurisdictions, and in the case of any Foreign
Subsidiary, to the extent generally available the comparable or
equivalent documentation under the laws of the applicable
Governmental Authority, each dated a recent date prior to the
Effective Date;
(ii) Copies of the Bylaws of such Person, certified as of
the Effective Date by such Person's corporate secretary or an
assistant secretary, and in the case of any Foreign Subsidiary,
the comparable or equivalent documentation, certified as of the
Effective Date by a duly authorized officer;
(iii) Resolutions of the Board of Directors of such
Person approving and authorizing the execution, delivery and
performance of the Loan Documents and Related Agreements to which
it is a party, certified as of the Effective Date by the
corporate secretary, an assistant secretary or other duly
authorized officer of such Person as being in full force and
effect without modification or amendment;
(iv) Signature and incumbency certificates of the officers
of such Person executing the Loan Documents to which it is a
party;
(v) Executed originals of the Loan Documents to which such
Person is a party, which Loan Documents shall include:
a. in the case of Holdings: Guaranties of
Obligations of each Borrower, and, with respect to such
Guaranties, a Pledge Agreement pledging 100% of the stock of
Company and a Security Agreement;
b. in the case of each Domestic Subsidiary (other
than Westmont Sub): Subsidiary Guaranties of the
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Obligations of each Borrower, and with respect to such
Subsidiary Guaranties, a Subsidiary Pledge Agreement, a
Subsidiary Security Agreement, a Subsidiary Trademark
Security Agreement, a Subsidiary Patent Security Agreement
and Mortgages, if any;
c. in the case of each other Foreign Subsidiary
(other than Sayama Sub): to the extent available without
causing adverse tax consequences for Company and its
Subsidiaries, Subsidiary Guaranties of the Obligations of
each Borrower, and with respect to such Subsidiary
Guaranties, a Subsidiary Pledge Agreement, a Subsidiary
Security Agreement, a Subsidiary Trademark Security
Agreement, a Subsidiary Patent Security Agreement and
Mortgages, if any; and
(vi) Such other documents as Administrative Agent may
reasonably request.
C. EXISTING CREDIT AGREEMENT PAYMENTS AND ASSIGNMENTS.
(i) With respect to the Existing Credit Agreement,
Borrowers shall have paid to BTCo, as administrative agent under the
Existing Credit Agreement, for distribution to lenders and issuing
lenders, as applicable, under the Existing Credit Agreement all unpaid
accrued interest on all loans, all unpaid accrued commitment fees and
all unpaid accrued fees on all Letters of Credit, in each case through
but excluding the Effective Date.
(ii) On or before the Effective Date, Borrowers, each lender
under the Existing Credit Agreement, BTCo, as administrative agent
under the Existing Credit Agreement, each Lender under this Agreement
and Agents shall have executed and delivered the Master Assignment
Agreement, substantially in the form of EXHIBIT XXIV annexed hereto,
and on the Effective Date, each such lender, BTCo, Lender and Agents
shall have sold, purchased and/or assigned such loans and/or revolving
loan commitments pursuant to the Master Assignment Agreement such that
each Lender's Pro Rata Share of the Loans and/or Revolving Loan
Commitments upon consummation of the closing shall be as set forth on
SCHEDULE 2.1 annexed hereto.
D. NECESSARY CONSENTS. Company and its Subsidiaries shall have
obtained all Governmental Authorizations and all consents of other
Persons, in each case that are necessary or advisable in connection
with the Transactions and the continued operation of the business to
be conducted by Company and its Subsidiaries in substantially the same
manner as conducted prior to the consummation of the Transactions, and
each of the foregoing shall be in full force and effect, in each case
other than those the failure to obtain, which either individually or
in the aggregate, would not be reasonably likely to have a Material
Adverse Effect. All applicable waiting periods shall have expired
without any action being taken or threatened by any competent
authority which would restrain, prevent or otherwise impose adverse
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conditions on the Transactions. No action, request for stay, petition
for review or rehearing, reconsideration or appeal with respect to any
of the foregoing shall be pending, and the time for any applicable
agency to take action to set aside its consent on its own motion shall
have expired. Administrative Agent shall have received an Officer's
Certificate of Company to the effect set forth in this subsection
4.1D.
E. SECURITY INTERESTS IN PERSONAL AND MIXED PROPERTY. To the
extent not already satisfied prior to the Effective Date or pursuant
to subsection 4.1F, Administrative Agent shall have received evidence
satisfactory to it that Holdings, Company and their respective
Subsidiaries (other than Inactive Subsidiaries) shall have taken or
caused to be taken such actions, executed and delivered or caused to
be executed and delivered all such agreements, documents and
instruments, and made or caused to be made all such filings and
recordings (other than the filing or recording of items described in
clauses (ii), (iii) and (v) below) that may be necessary or, in the
opinion of Administrative Agent, desirable in order to create or to
continue in favor of Administrative Agent, for the benefit of Lenders,
a valid and (upon such filing and recording) perfected First Priority
security interest as of such date in the entire personal and mixed
property Collateral. Such actions shall include, without limitation,
the following:
(i) STOCK CERTIFICATES AND INSTRUMENTS. Delivery to
Administrative Agent of (a) certificates (which certificates
shall be registered in the name of Administrative Agent or
properly endorsed in blank for transfer or accompanied by
irrevocable undated stock powers duly endorsed in blank, all in
form and substance satisfactory to Administrative Agent)
representing the capital stock pledged pursuant to the Pledge
Agreements and the Subsidiary Pledge Agreements and (b) all
promissory notes or other instruments (duly endorsed, where
appropriate, in a manner satisfactory to Administrative Agent)
evidencing any Collateral.
(ii) UCC FINANCING STATEMENTS, FIXTURE FILINGS AND OTHER
FILINGS. Delivery to Administrative Agent of UCC financing
statements, and where appropriate, fixture filings, and any other
comparable filings to be made outside of the United States, duly
executed by each applicable Loan Party with respect to all
personal and mixed property Collateral of such Loan Party, for
filing in all jurisdictions as may be necessary or, in the
opinion of Administrative Agent, desirable to perfect or continue
the perfection of the security interests created in such
Collateral pursuant to the Collateral Documents.
(iii) IP COLLATERAL DOCUMENTS, ETC. Delivery to
Administrative Agent of the IP Collateral Documents, together
with accurate and complete schedules thereto and any cover sheets
or other documents or instruments required for filing with the
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United States Patent and Trademark Office (the "PTO") or any
comparable Governmental Authority outside of the United States.
(iv) OPINIONS OF LOCAL COUNSEL. Delivery to Administrative
Agent of an opinion of counsel (which counsel shall be reasonably
satisfactory to Administrative Agent) under the laws of each
jurisdiction in which any Loan Party or any personal or mixed
property Collateral is located with respect to the creation and
perfection, or the continuation of the perfection, of the
security interests in favor of Administrative Agent in such
Collateral and such other matters governed by the laws of such
jurisdiction regarding such security interests, in each case as
Administrative Agent may reasonably request and in form and
substance reasonably satisfactory to Administrative Agent.
(v) OTHER DOCUMENTS. Delivery to Administrative Agent of
such other documents and instruments that Administrative Agent
reasonably deems necessary or advisable to establish, preserve
and perfect or continue the perfection of the First Priority
Liens granted to Administrative Agent on behalf of Lenders under
the Collateral Documents.
(vi) EVIDENCE OF OTHER FILINGS. Evidence reasonably
satisfactory to Administrative Agent that all other filings
(including, without limitation, UCC termination statements and
comparable instruments under the laws and regulations of
Governmental Authorities outside of the United States),
recordings and other actions Administrative Agent deems necessary
or advisable to establish, preserve and perfect or continue the
perfection of the First Priority Liens granted to Administrative
Agent in personal and mixed property shall have been made.
F. REAL PROPERTY ASSETS. SCHEDULE 5.5 annexed hereto sets
forth all Real Property Assets of Borrowers and their respective
Subsidiaries as of the Effective Date and identifies each such Real
Property Asset (aside from the Sayama Excluded Collateral) which is
subject to a Mortgage pursuant to this Agreement as of the Effective
Date. Except with respect to the Sayama Excluded Collateral and the
Westmont Excluded Collateral, Administrative Agent shall have received
from Borrowers and each Subsidiary which owns Real Property Assets
subject to a Mortgage as set forth in SCHEDULE 5.5 (i) fully executed
counterparts of any amendments to Mortgages, in form and substance
satisfactory to Administrative Agent, together with evidence that such
counterparts of such amendments to Mortgages have been recorded in all
places to the extent necessary or desirable, in the judgment of
Administrative Agent, so as to effectively continue the perfection of
the First Priority Lien of the Mortgages on such Mortgaged Properties,
subject only to Permitted Encumbrances, (ii) fully executed
counterparts of Mortgages, in form and substance satisfactory to
Administrative Agent, together with evidence that such counterparts of
Mortgages have been recorded in all places to the extent necessary or
desirable, in the judgment of Administrative Agent, so as to
effectively perfect a First Priority Lien on such Real Property
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Assets, subject only to Permitted Encumbrances, (iii) title reports in
respect of each such Mortgaged Property or endorsements, in form and
substance satisfactory to Administrative Agent, to the ATLA mortgagee
title insurance policies (or comparable or equivalent insurance)
issued by a title company with respect to each such Mortgaged Property
insuring the First Priority Liens or continued First Priority Liens,
as the case may be, created by the Mortgages, subject only to taxes
and all other assessments which are a Lien not yet due and payable and
showing no other exceptions, and (iv) such other documents and
instruments that Administrative Agent reasonably deems necessary or
advisable to perfect or to continue the perfection of the First
Priority Liens created by the Mortgages.
G. CONSOLIDATED COVERAGE RATIO; TRANSACTION COSTS; INACTIVE
SUBSIDIARIES. Administrative Agent shall have received an Officers'
Certificate of Company to the effect that:
(i) as of the Effective Date, the Consolidated Coverage
Ratio (as defined in the Senior Subordinated Note Indenture)
exceeds 2.0 to 1.0 and including a calculation of such
Consolidated Coverage Ratio establishing that, to the extent that
the Revolving Loan Commitments under this Agreement exceed the
Indebtedness incurred under the Existing Credit Agreement,
Company and its Subsidiaries may incur such increased
Indebtedness hereunder under the terms of the Senior Subordinated
Note Indenture; and
(ii) the Transaction Costs will not exceed $2,000,000 in the
aggregate.
H. FINANCIAL STATEMENTS; PRO FORMA BALANCE SHEET. On or before
the Effective Date, Lenders shall have received from Company:
(i) audited financial statements of Borrowers, consisting
of combined balance sheets for Fiscal Years ended September 30,
1997, 1996 and 1995, and the combined statements of operations
and cash flows for Fiscal Years ended September 30, 1997, 1996
and 1995;
(ii) unaudited financial statements of Borrowers as at
November 30, 1997, consisting of a combined balance sheet and the
related combined statement of operations and cash flows for the
two-month period ending on such date, all in reasonable detail
and certified by the chief financial officer of Company that they
fairly present the financial condition of Borrowers as at the
dates indicated and the results of its operations and its cash
flows for the periods indicated, subject to changes resulting
from audit and normal year-end adjustments;
(iii) pro forma combined balance sheet of Company and
its Subsidiaries as at the Effective Date, prepared in accordance
with GAAP and reflecting the consummation of the Transactions
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which pro forma financial statements shall be in form and
substance satisfactory to Lenders; and
(iv) projected financial statements of Company and its
Subsidiaries consisting of a combined balance sheet and the
related combined statements of operations and cash flows for the
five-year period after the Effective Date (including financial
projections for each month during the twelve-month period
following the Effective Date), which financial projections shall
be in form and substance satisfactory to Lenders.
I. NO MATERIAL ADVERSE EFFECT. Since September 30, 1997, no
Material Adverse Effect (in the sole opinion of Administrative Agent)
shall have occurred.
J. SOLVENCY ASSURANCES. On the Effective Date, as to each
Borrower and such Borrower's respective Subsidiaries, Administrative
Agent and Lenders shall have received Financial Condition Certificates
dated the Effective Date, substantially in the form annexed hereto as
EXHIBIT VII and with appropriate attachments, in each case
demonstrating that, after giving effect to the consummation of the
Transactions, each such Borrower and its respective Subsidiaries will
be Solvent under the laws of such Borrower's applicable jurisdiction.
In addition, Administrative Agent shall have received copies of all
such other resolutions, certifications, determinations, appraisals,
opinions and other documents and instruments as may be necessary to
comply with the solvency, financial assistance or other comparable or
equivalent laws of such jurisdictions, all of the foregoing to be in
form and substance satisfactory to Administrative Agent.
K. NO DISRUPTION OF FINANCIAL AND CAPITAL MARKETS. There shall
have been no material adverse change after October 31, 1997 to the
syndication markets for credit facilities similar in nature to the
credit facilities provided herein and there shall not have occurred
and be continuing a material disruption of or material adverse change
in financial, banking or capital markets that would have an adverse
effect on such syndication market, in each case as determined by
Administrative Agent in its sole discretion.
L. OPINIONS OF BORROWERS' COUNSEL. Lenders shall have received
(i) originally executed copies of one or more favorable written
opinions of Schiff, Hardin & ▇▇▇▇▇, counsel for Borrowers, in form and
substance reasonably satisfactory to Administrative Agent and its
counsel, dated as of the Effective Date and setting forth
substantially the matters in the opinions designated in EXHIBIT VIII
annexed hereto and as to such other matters as Administrative Agent
acting on behalf of Lenders may reasonably request, and
(ii) originally executed copies of one or more favorable written
opinions of (i) ▇▇▇▇▇▇▇▇ Mori, local counsel for ▇▇▇▇ Japan, (ii)
Linklaters & Paines, local counsel for ▇▇▇▇ UK, and (iii) Coopers &
▇▇▇▇▇▇▇, local counsel for ▇▇▇▇ France, each in form and substance
reasonably satisfactory to Administrative Agent and its counsel, dated
as of the Effective Date and setting forth substantially the matters
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in the opinions designated in EXHIBIT IX-A annexed hereto, EXHIBIT IX-
B annexed hereto and EXHIBIT IX-C annexed hereto and as to such other
matters as Administrative Agent acting on behalf of Lenders may
reasonably request.
M. OPINIONS OF O'MELVENY & ▇▇▇▇▇ LLP. Lenders shall have
received originally executed copies of one or more favorable written
opinions of O'Melveny & ▇▇▇▇▇ LLP, dated as of the Effective Date,
substantially in the form of EXHIBIT X annexed hereto and as to such
other matters as Administrative Agent acting on behalf of Lenders may
reasonably request.
N. AUDITOR'S LETTERS. Administrative Agent shall have received
copies of the Auditor's Letter acknowledged by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP.
O. EXPENSES AND FEES. Company shall have paid to
Administrative Agent, for distribution (as appropriate) to Agents and
Lenders, the fees payable on the Effective Date referred to in
subsection 2.3. Company shall have paid to Administrative Agent all
of the Administrative Agent's costs and expenses incurred in
connection with the consummation of the transactions contemplated
hereby and shall have paid all of the fees, costs and expenses of all
of Administrative Agent's experts, consultants, auditors, appraisers,
counsel and other advisors, including without limitation the fees and
expenses of O'Melveny & ▇▇▇▇▇ LLP and of local and foreign counsel to
Administrative Agent.
P. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS.
Each Borrower shall have delivered to Administrative Agent an
Officers' Certificate, in form and substance satisfactory to
Administrative Agent, to the effect that the representations and
warranties in Section 5 hereof are true, correct and complete in all
material respects on and as of the Effective Date to the same extent
as though made on and as of that date (or, to the extent such
representations and warranties specifically relate to an earlier date,
that such representations and warranties were true, correct and
complete in all material respects on and as of such earlier date) and
that such Borrower shall have performed in all material respects all
agreements and satisfied all conditions which this Agreement provides
shall be performed or satisfied by it on or before the Effective Date
except as otherwise disclosed to and agreed to in writing by
Administrative Agent and Requisite Lenders.
Q. DUE DILIGENCE. The results of Agents' continuing financial,
legal, tax and accounting due diligence investigations with respect to
the Transactions, including without limitation the due diligence
investigation with respect to the future need for customer notes and
customer advances, shall be satisfactory in all respects to Agents,
and any supplemental business or financial due diligence that Agents
reasonably determine has become necessary shall not have disclosed
information not previously disclosed to Agents which causes the
results of such diligences not to be satisfactory in all respects to
Agents and the other Lenders. Lenders shall have also received any
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information reasonably necessary to conduct their continuing due
diligence.
R. COMPLETION OF PROCEEDINGS. All corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not
previously found acceptable by Administrative Agent, acting on behalf
of Lenders, and its counsel shall be satisfactory in form and
substance to Administrative Agent and such counsel, and Administrative
Agent and such counsel shall have received all such counterpart
originals or certified copies of such documents as Administrative
Agent may reasonably request.
Each Lender hereby agrees that by its execution and
delivery of its signature pages thereto and by the funding of its
loans to be made on the Effective Date, such Lender approves of and
consents to each of the matters set forth in this subsection 4.1 which
must be approved by, or which must be satisfactory to, all or
Requisite Lenders; PROVIDED that in the case of any agreement or
document which must be approved by, or which must be satisfactory to,
all or Requisite Lenders, Administrative Agent or Company shall have
delivered a copy of such agreement or document in substantially the
form in which executed or delivered to such Lender on or prior to the
Effective Date.
4.2 CONDITIONS TO ALL LOANS.
The obligations of Lenders to make Loans on each Funding
Date are subject to the following further conditions precedent:
A. Administrative Agent shall have received before that Funding
Date, in accordance with the provisions of subsection 2.1B, an
originally executed Notice of Borrowing, in each case signed by the
chief executive officer, the chief financial officer or the treasurer
of the Borrower or by any other authorized signatory of such Borrower.
B. As of that Funding Date:
(i) The representations and warranties contained herein and
in the other Loan Documents shall be true, correct and complete
in all material respects on and as of that Funding Date to the
same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to
an earlier date, in which case such representations and
warranties shall have been true, correct and complete in all
material respects on and as of such earlier date;
(ii) No event shall have occurred and be continuing or would
result from the consummation of the borrowing contemplated by
such Notice of Borrowing that would constitute an Event of
Default or a Potential Event of Default;
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(iii) Borrower shall have performed in all material
respects all agreements and satisfied all conditions which this
Agreement provides shall be performed or satisfied by it on or
before that Funding Date;
(iv) No order, judgment or decree of any court, arbitrator
or governmental authority shall purport to enjoin or restrain any
Lender from making the Loans to be made by it on that Funding
Date;
(v) The making of the Loans requested on such Funding Date
shall not violate any law including, without limitation,
Regulation G, Regulation T, Regulation U or Regulation X of the
Board of Governors of the Federal Reserve System or any other
comparable or similar law of any Governmental Authority; and
(vi) There shall not be pending or, to the knowledge of
Borrower, threatened, any action, suit, proceeding, governmental
investigation or arbitration against or affecting Company or any
of its Subsidiaries or any property of Company or any of its
Subsidiaries that has not been disclosed by any Borrower in
writing pursuant to subsection 5.6 or 6.1(x) prior to the making
of the last preceding Loans (or, in the case of the initial
Loans, prior to the execution of this Agreement), and there shall
have occurred no development not so disclosed in any such action,
suit, proceeding, governmental investigation or arbitration so
disclosed, that, in either event, in the opinion of
Administrative Agent or of Requisite Lenders, would be expected
to have a Material Adverse Effect; and no injunction or other
restraining order shall have been issued and no hearing to cause
an injunction or other restraining order to be issued shall be
pending or noticed with respect to any action, suit or proceeding
seeking to enjoin or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, the
transactions contemplated by this Agreement or the making of
Loans hereunder.
4.3 CONDITIONS TO LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder (whether or
not the Issuing Lender is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:
A. On or before the date of issuance of the initial Letter of
Credit pursuant to this Agreement, the initial Loans shall have been
made.
B. On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the
provisions of subsection 3.1B(i), an originally executed Request for
Issuance of Letter of Credit, in each case signed by the chief
executive officer, the chief financial officer or the treasurer of
Borrower, or by any other authorized signatory of Borrower, together
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with all other information specified in subsection 3.1B(i) and such
other documents or information as the Issuing Lender may reasonably
require in connection with the issuance of such Letter of Credit.
C. On the date of issuance of such Letter of Credit, all
conditions precedent described in subsection 4.2B shall be satisfied
to the same extent as if the issuance of such Letter of Credit were
the making of a Loan and the date of issuance of such Letter of Credit
were a Funding Date.
SECTION 5. BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and
to make the Loans, to induce Issuing Lenders to issue Letters of
Credit and to induce other Lenders to purchase participations therein,
each Borrower represents and warrants to each Lender, on the date of
this Agreement, on each Funding Date and on the date of issuance of
each Letter of Credit, that the following statements are true, correct
and complete:
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES.
A. ORGANIZATION AND POWERS. Each Loan Party is a corporation
duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation. Each Loan Party has all
requisite corporate power and authority to own and operate its
properties, to carry on its business as now conducted and as proposed
to be conducted, to enter into the Loan Documents and the Related
Agreements to which it is a party and to carry out the transactions
contemplated thereby.
B. QUALIFICATION AND GOOD STANDING. Each Loan Party is
qualified to do business and in good standing in every jurisdiction
where its assets are located and wherever necessary to carry out its
business and operations, except in jurisdictions, individually or in
the aggregate for all such jurisdictions, where the failure to be so
qualified or in good standing has not had and will not have a Material
Adverse Effect.
C. CONDUCT OF BUSINESS. Company and its Subsidiaries are
engaged only in the businesses permitted to be engaged in pursuant to
subsection 7.12.
D. SUBSIDIARIES. All of the Subsidiaries of Holdings are
identified in SCHEDULE 5.1 annexed hereto. The capital stock of each
of the Subsidiaries of Holdings identified in SCHEDULE 5.1 annexed
hereto is duly authorized, validly issued, fully paid and
nonassessable and none of such capital stock constitutes Margin Stock.
Each of the Subsidiaries of Holdings identified in SCHEDULE 5.1
annexed hereto is a corporation duly organized, validly existing and
in good standing under the laws of its respective jurisdiction of
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incorporation set forth therein, has all requisite corporate power and
authority to own and operate its properties and to carry on its
business as now conducted and as proposed to be conducted, and is
qualified to do business and in good standing in every jurisdiction
where its assets are located and wherever necessary to carry out its
business and operations, in each case except where failure to be so
qualified or in good standing or a lack of such corporate power and
authority, individually or in the aggregate, has not had and will not
have a Material Adverse Effect. SCHEDULE 5.1 annexed hereto correctly
sets forth, the ownership interest of Holdings and each of its
Subsidiaries in each of the Subsidiaries of Holdings identified
therein.
5.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and
performance of the Loan Documents and the Related Agreements have been
duly authorized by all necessary corporate action on the part of each
Loan Party that is a party thereto.
B. NO CONFLICT. The execution, delivery and performance by any
Loan Party of the Loan Documents and the Related Agreements to which
it is a party and the consummation of the transactions contemplated by
the Loan Documents and such Related Agreements do not and will not
(i) violate any provision of any law or any governmental rule or
regulation applicable to any Loan Party, the Certificate or Articles
of Incorporation or Bylaws, or other organizational or governing
documents, of any Loan Party or any order, judgment or decree of any
court or other Governmental Authority binding on any Loan Party,
(ii) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any Contractual
Obligation of any Loan Party, except for such breaches, conflicts and
defaults which could not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, (iii) result in or
require the creation or imposition of any Lien upon any of the
properties or assets of any Loan Party (other than any Liens created
under any of the Loan Documents in favor of Administrative Agent on
behalf of Lenders), or (iv) require any approval of stockholders or
any approval or consent of any Person under any Contractual Obligation
of any Loan Party, except for such approvals or consents (a) which
will be obtained on or before the Effective Date or (b) which the
failure to obtain could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
C. GOVERNMENTAL CONSENTS. The execution, delivery and
performance by any Loan Party of the Loan Documents and the
consummation of the transactions contemplated by the Loan Documents do
not and will not require any registration with, consent or approval
of, or notice to, or other action to, with or by, any federal, state
or other governmental authority or regulatory body, except for filings
required in connection with the perfection of security interests
granted pursuant to the Loan Documents, and such other registrations,
consents, approvals, notices or other actions which have been or will
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be made, obtained, given or taken on or before the Effective Date or
which the failure to obtain or take could not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.
D. BINDING OBLIGATION. Each of the Loan Documents and the
Related Agreements has been duly executed and delivered by each Loan
Party that is a party thereto and is the legally valid and binding
obligation of such Loan Party, enforceable against such Loan Party in
accordance with its respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable
principles relating to enforceability.
E. VALID ISSUANCE OF COMPANY COMMON STOCK, HOLDINGS COMMON
STOCK AND HOLDINGS PREFERRED STOCK. All issued and outstanding shares
of Company Common Stock, Holdings Common Stock and Holdings Preferred
Stock are duly and validly issued, fully paid and nonassessable. No
stockholder of Company nor any stockholder of Holdings, except as
provided in the Stockholders Agreement, has any preemptive rights to
subscribe for any additional equity Securities of Company, equity
securities of Holdings or Holdings Preferred Stock. Any issuance and
sale of such Company Common Stock, Holdings Common Stock, or Holding
Preferred Stock, upon such issuance and sale, will either (a) have
been registered or qualified under applicable federal and state
securities laws or (b) be exempt therefrom.
F. DESIGNATED SENIOR DEBT. All Obligations under this
Agreement and the other Loan Documents constitute "Designated Senior
Debt" (as defined in the Senior Subordinated Note Indenture) for
purposes of the Senior Note Indenture.
5.3 FINANCIAL CONDITION.
Company has heretofore delivered to Lenders, at Lenders'
request, the financial statements and information described in
subsection 4.1H. All such statements (other than the projected
financial statements of Company and its Subsidiaries) were prepared in
conformity with GAAP and fairly present the financial position (on a
consolidated and, where applicable, consolidating basis) of the
entities described in such financial statements as at the respective
dates thereof and the results of operations and cash flows (on a
consolidated and, where applicable, consolidating basis) of the
entities described therein for each of the periods then ended,
subject, in the case of any such unaudited financial statements, to
changes resulting from audit and normal year-end adjustments. None of
the Loan Parties has any Contingent Obligation, contingent liability
or liability for taxes, long-term lease or unusual forward or long-
term commitment that is not reflected in the foregoing financial
statements or the notes thereto and which in any such case is material
in relation to the business, operations, properties, assets, condition
(financial or otherwise) or prospects of Company and its Subsidiaries,
taken as a whole.
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5.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR PAYMENTS.
Since September 30, 1997, no event or change has occurred
that has caused or evidences, either in any case or in the aggregate,
a Material Adverse Effect. Since September 30, 1997, neither Company
nor any of its Subsidiaries has directly or indirectly declared,
ordered, paid or made, or set apart any sum or property for, any
Restricted Junior Payment or agreed to do so except as permitted by
subsection 7.5.
5.5 TITLE TO PROPERTIES; LIENS.
Holdings, Company and their respective Subsidiaries have (i)
good, sufficient and legal title to (in the case of fee interests in
real property), (ii) valid leasehold interests in (in the case of
leasehold interests in real or personal property), or (iii) good title
to (in the case of all other personal property), all of their
respective properties and assets reflected in the financial statements
referred to in subsection 5.3 or in the most recent financial
statements delivered pursuant to subsection 6.1, in each case except
for assets disposed of since the date of such financial statements in
the ordinary course of business or as otherwise permitted under
subsection 7.2. Except for (x) Permitted Encumbrances and (y) Liens
permitted under subsection 7.2, all such properties and assets are
free and clear of Liens. SCHEDULE 5.5 annexed hereto sets forth all
of the Real Property Assets and Mortgaged Properties of Company and
its Subsidiaries as of the Effective Date.
5.6 LITIGATION; ADVERSE FACTS.
Except as set forth in SCHEDULE 5.6 annexed hereto or, with
respect to Environmental Claims, as set forth on SCHEDULE 5.13 annexed
hereto, there are no actions, suits, proceedings, arbitrations or
governmental investigations (whether or not purportedly on behalf of
Holdings, Company or any of their respective Subsidiaries) at law or
in equity or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, pending or, to the knowledge of
any Borrower, threatened against or affecting Holdings, Company or any
of their respective Subsidiaries or any property of Holdings, Company
or any of their respective Subsidiaries that, individually or in the
aggregate, could reasonably be expected to result in a Material
Adverse Effect. Neither Holdings nor Company nor any of their
respective Subsidiaries is (i) in violation of any applicable laws
(excluding Environmental Laws which are covered in subsection 5.13)
that, individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect or (ii) subject to or in
default with respect to any final judgments, writs, injunctions,
decrees, rules or regulations of any court or any federal, state,
municipal or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, that, individually or
in the aggregate, could reasonably be expected to result in a Material
Adverse Effect.
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5.7 PAYMENT OF TAXES.
Except to the extent permitted by subsection 6.3, all
material tax returns and reports of Holdings, Company and their
respective Subsidiaries required to be filed by any of them have been
timely filed, and all material taxes, assessments, fees and other
governmental charges upon Holdings, Company and their respective
Subsidiaries and upon their respective properties, assets, income,
businesses and franchises which are due and payable have been paid
when due and payable. None of the Borrowers knows of any material
proposed tax assessment against Holdings, Company or any of their
respective Subsidiaries which is not being actively contested by
Holdings, Company or such Subsidiary in good faith and by appropriate
proceedings; PROVIDED that such reserves or other appropriate
provisions, if any, as shall be required in conformity with GAAP shall
have been made or provided therefor.
5.8 PERFORMANCE OF AGREEMENTS; NO MATERIALLY ADVERSE AGREEMENTS.
A. Neither Holdings nor Company nor any of their respective
Subsidiaries is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions
contained in any of its Contractual Obligations, and no condition
exists that, with the giving of notice or the lapse of time or both,
would constitute such a default, except where the consequences, direct
or indirect, of such default or defaults, if any, individually or in
the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
B. Neither Holdings nor Company nor any of their respective
Subsidiaries is a party to or is otherwise subject to any agreements
or instruments or any charter or other internal restrictions which,
individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
C. The Contractual Obligations of each of Holdings and Company
and their respective Subsidiaries are in full force and effect and no
defaults that could reasonably be expected to result in a Material
Adverse Effect currently exist thereunder.
5.9 GOVERNMENTAL REGULATION.
Neither Holdings nor Company nor any of their respective
Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce
Act or the Investment Company Act of 1940 or under any other federal
or state statute or regulation or under any other comparable or
similar laws of any Governmental Authority which may limit its ability
to incur Indebtedness or which may otherwise render all or any portion
of the Obligations unenforceable.
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5.10 SECURITIES ACTIVITIES.
Neither Holdings nor Company nor any of their respective
Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of
purchasing or carrying any Margin Stock.
5.11 EMPLOYEE BENEFIT PLANS.
A. Holdings and Company and each of their respective
Subsidiaries are in compliance in all material respects with all
applicable provisions and requirements of ERISA and the regulations
and published interpretations thereunder and the terms of each
Employee Benefit Plan, and have performed all their material
obligations under each Employee Benefit Plan.
B. No ERISA Event has occurred or is reasonably expected to
occur that could reasonably be expected to result in an aggregate
liability to the Company or any of its Subsidiaries of more than
$1,000,000.
C. In accordance with the most recent actuarial valuation for
any Pension Plan, the excess of the aggregated accumulated benefit
obligations, as defined in Statement of Financial Accounting Standards
No. 87, over the aggregate total fair market value for all such
Pension Plans (excluding for purposes of such computation (1) any
Pension Plans with respect to which the fair market value of the
assets exceeds such accumulated benefit obligations and (2) any
Foreign Unfunded Pension Plan), does not exceed $12,000,000.
5.12 CERTAIN FEES.
Except as set forth in SCHEDULE 5.12 annexed hereto, no
broker's or finder's fee or commission will be payable with respect to
this Agreement or any of the transactions contemplated hereby, and
each Borrower hereby indemnifies Lenders against, and agrees that it
will hold Lenders harmless from, any claim, demand or liability for
any such broker's or finder's fees alleged to have been incurred in
connection herewith or therewith and any expenses (including
reasonable fees, expenses and disbursements of counsel) arising in
connection with any such claim, demand or liability.
5.13 ENVIRONMENTAL PROTECTION.
Except as set forth in SCHEDULE 5.13 annexed hereto:
(i) the operations of Company and each of its Subsidiaries
(including, without limitation, all operations and conditions at
or in the Facilities) comply in all material respects with all
Environmental Laws;
(ii) Company and each of its Subsidiaries have obtained all
Governmental Authorizations under Environmental Laws necessary to
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their respective operations, and all such Governmental
Authorizations are being maintained in good standing, and Company
and each of its Subsidiaries are in compliance in all material
respects with such Governmental Authorizations;
(iii) neither Company nor any of its Subsidiaries has
received (a) any notice or claim to the effect that it is or may
be liable to any Person as a result of or in connection with any
Hazardous Materials or (b) any letter or request for information
under Section 104 of the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. Section 9604) or comparable
state laws, and, to the best of the Borrowers' knowledge, none of
the operations of Company or any of its Subsidiaries is the
subject of any federal or state investigation relating to or in
connection with any Hazardous Materials at any Facility or at any
other location except for such of the foregoing which would not
reasonably be expected to have a Material Adverse Effect;
(iv) none of the operations of Company or any of its
Subsidiaries is subject to any judicial or administrative
proceeding alleging the violation of or liability under any
Environmental Laws which if adversely determined could reasonably
be expected to have a Material Adverse Effect;
(v) neither Company nor any of its Subsidiaries nor any of
their respective Facilities or operations are subject to any
outstanding written order or agreement with any governmental
authority or private party relating to (a) any actual or
potential violation of or liability under Environmental Laws or
(b) any Environmental Claims except for such of the foregoing
which would not reasonably be expected to have a Material Adverse
Effect;
(vi) neither Company nor any of its Subsidiaries has any
contingent liability in connection with any Release by Company or
any of its Subsidiaries except for such of the foregoing which
would not reasonably be expected to have a Material Adverse
Effect;
(vii) neither Company nor any of its Subsidiaries nor,
to the best knowledge of the Borrowers, any predecessor of
Company or any of its Subsidiaries has filed any notice under any
Environmental Law indicating past or present treatment, storage
or disposal of hazardous waste at any Facility, as defined under
40 C.F.R. Parts 260-270 or any state equivalent;
(viii) no Hazardous Materials exist on, under or about
any Facility in a manner that would reasonably be expected to
give rise to an Environmental Claim having a Material Adverse
Effect, and neither Company nor any of its Subsidiaries has filed
any notice or report of a Release that would reasonably be
expected to give rise to an Environmental Claim having a Material
Adverse Effect;
106
(ix) neither Company nor any of its Subsidiaries nor, to the
best knowledge of Company, any of their respective predecessors
has disposed of any Hazardous Materials in a manner that would
reasonably be expected to give rise to an Environmental Claim
having a Material Adverse Effect;
(x) to the best knowledge of Company, no underground
storage tanks or surface impoundments are on or at any Facility;
and
(xi) no Lien in favor of any Person relating to or in
connection with any Environmental Claim has been filed or has
been attached to any Facility except for any such Lien which
would not reasonably be expected to have a Material Adverse
Effect.
Notwithstanding anything in this subsection 5.13 to the
contrary, no event or condition has occurred with respect to the Loan
Parties relating to any Environmental Laws or any Release of any
Hazardous Materials at any Facility or any other location, including
without limitation any matter disclosed in SCHEDULE 5.13 annexed
hereto which, individually or in the aggregate, has had or could
reasonably be expected to have, a Material Adverse Effect.
5.14 EMPLOYEE MATTERS.
There is no strike or work stoppage in existence or
threatened involving Company or any of its Subsidiaries that could
reasonably be expected to have a Material Adverse Effect.
5.15 SOLVENCY.
(i) Company and each of its Subsidiaries is and, upon the
incurrence of any Obligations by any Borrower on any date on which
this representation is made, will be, Solvent.
(ii) With respect to ▇▇▇▇ France: (a) ▇▇▇▇ France has not
ceased or suspended or threatened or announced an intention to cease
or suspend payment of its debts whether pursuant to Article 3 of law
No. 85-98 dated 25 January, 1985 or otherwise; (b) ▇▇▇▇ France has not
become insolvent or had any moratorium declared in respect of any of
its indebtedness; (c) ▇▇▇▇ France has not applied for the appointment
of a conciliator pursuant to law ▇▇. ▇▇-▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇; (▇)
▇▇▇▇ ▇▇▇▇▇▇ has not applied for the appointment of a MANDATAIRE ad
hoc; (e) ▇▇▇▇ France is not the object of a judgment declaring its
REDRESSEMENT or LIQUIDATION JUDICIAIRE pursuant to law No. 85-98 dated
25 January 1985 or subject to a plan for the transfer of the whole or
part of its business; and (f) no administrator, receiver, liquidator
or similar officer has been appointed with respect to ▇▇▇▇ France or
its assets nor so far as is aware is any petition or proceeding for
any such appointment pending nor has any resolution for any such
appointment been passed.
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5.16 DISCLOSURE.
No representation or warranty of Company or any of its
Subsidiaries contained in any Loan Document or Related Agreement or in
any other document, certificate or written statement furnished to
Lenders by or on behalf of Company or any of its Subsidiaries for use
in connection with the transactions contemplated by this Agreement
contains any untrue statement of a material fact or omits to state a
material fact (known to any Borrower, in the case of any document not
furnished by it) necessary in order to make the statements contained
herein or therein not misleading in light of the circumstances in
which the same were made. Any projections and pro forma financial
information contained in such materials are based upon good faith
estimates and assumptions believed by the Borrowers to be reasonable
at the time made, it being recognized by Lenders that such projections
as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections
may differ from the projected results. There are no facts known (or
which should upon the reasonable exercise of diligence be known) to
the Borrowers (other than matters of a general economic nature) that,
individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect and that have not been disclosed
herein or in such other documents, certificates and statements
furnished to Lenders for use in connection with the transactions
contemplated hereby.
SECTION 6. BORROWERS' AFFIRMATIVE COVENANTS
Each Borrower covenants and agrees that, so long as any of
the Commitments hereunder shall remain in effect and until payment in
full of all of the Loans and other Obligations and the cancellation or
expiration of all Letters of Credit, unless Requisite Lenders shall
otherwise give prior written consent, such Borrower shall perform, and
shall cause each of its Subsidiaries to perform, all covenants in this
Section 6.
6.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Each Borrower will maintain, and cause each of its
Subsidiaries to maintain, a system of accounting established and
administered in accordance with sound business practices to permit
preparation of financial statements in conformity with GAAP. Company
will deliver to Administrative Agent and Lenders:
(i) MONTHLY FINANCIALS: as soon as available and in any
event within 45 days after the end of each month ending after the
Effective Date, (a) the consolidated and consolidating (by
geographic region, which regions shall consist of the United
States, Europe and Asia, each, a "REGION" and by product line)
balance sheets of each Borrower and its Subsidiaries as at the
end of such month and the related consolidated and consolidating
(by Region and by product line) statements of income,
stockholders' equity and cash flows of such Borrower and its
108
Subsidiaries for such month and for the period from the beginning
of the then current Fiscal Year to the end of such month and
setting forth in comparative form the corresponding figures for
the corresponding periods of the previous Fiscal Year and the
corresponding figures from the Financial Plan for the current
Fiscal Year, all in reasonable detail and certified by the chief
financial officer of Company that they fairly present, in all
material respects, the financial condition of such Borrower and
its Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods indicated,
subject to changes resulting from audit and normal year-end
adjustments, and (b) a report describing the operations of such
Borrower and its Subsidiaries in the form prepared for
presentation to senior management for such month and for the
period from the beginning of the then current Fiscal Year to the
end of such month;
(ii) QUARTERLY FINANCIALS: as soon as available and in any
event within 45 days after the end of each Fiscal Quarter,
(a) the consolidated and consolidating (by Region and by product
line) balance sheets of each Borrower and its Subsidiaries as at
the end of such Fiscal Quarter and the related consolidated and
consolidating (by Region and by product line) statements of
income, stockholders' equity and cash flows of such Borrower and
its Subsidiaries for such Fiscal Quarter and for the period from
the beginning of the then current Fiscal Year to the end of such
Fiscal Quarter, setting forth in each case in comparative form
the corresponding figures for the corresponding periods of the
previous Fiscal Year and the corresponding figures from the
Financial Plan for the current Fiscal Year, all in reasonable
detail and certified by the chief financial officer of Company
that they fairly present, in all material respects, the financial
condition of such Borrower and its Subsidiaries as at the dates
indicated and the results of their operations and their cash
flows for the periods indicated, subject to changes resulting
from audit and normal year-end adjustments, and (b) a narrative
report describing the operations of such Borrower and its
Subsidiaries in the form prepared for presentation to senior
management for such Fiscal Quarter and for the period from the
beginning of the then current Fiscal Year to the end of such
Fiscal Quarter;
(iii) YEAR-END FINANCIALS: as soon as available and in
any event within 100 days after the end of each Fiscal Year,
(a) the consolidated and consolidating (by Region and by product
line) balance sheets of such Borrower and its Subsidiaries as at
the end of such Fiscal Year and the related consolidated and
consolidating (by Region and by product line) statements of
income, stockholders' equity and cash flows of such Borrower and
its Subsidiaries for such Fiscal Year, setting forth in each case
in comparative form the corresponding figures for the previous
Fiscal Year and the corresponding figures from the Financial Plan
for the Fiscal Year covered by such financial statements, all in
109
reasonable detail and certified by the chief financial officer of
Company that they fairly present, in all material respects, the
financial condition of such Borrower and its Subsidiaries as at
the dates indicated and the results of their operations and their
cash flows for the periods indicated, (b) a narrative report
describing the operations of such Borrower and its Subsidiaries
in the form prepared for presentation to senior management for
such Fiscal Year, and (c) in the case of such consolidated
financial statements with respect to Company and its
Subsidiaries, (1) a report thereon of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or
other independent certified public accountants of recognized
national standing selected by Company and satisfactory to
Administrative Agent, which report shall be unqualified as to
scope of audit, shall express no doubts about the ability of
Company and its Subsidiaries to continue as a going concern, and
shall state that such consolidated financial statements fairly
present, in all material respects, the consolidated financial
position of Company and its Subsidiaries as at the dates
indicated and the results of their operations and their cash
flows for the periods indicated in conformity with GAAP applied
on a basis consistent with prior years (except as otherwise
disclosed in such financial statements) and that the examination
by such accountants in connection with such consolidated
financial statements has been made in accordance with generally
accepted auditing standards and (2) a letter acknowledged by such
accounting firm, substantially in the form of EXHIBIT XII annexed
hereto with such changes as are approved by Administrative Agent,
acknowledging that Lenders will receive such consolidated
financial statements in such report and will use such financial
statements and report in their credit analyses of each Borrower
and its Subsidiaries;
(iv) OFFICERS' AND COMPLIANCE CERTIFICATES: (a) together
with each delivery of financial statements of each Borrower and
its Subsidiaries pursuant to subdivisions (i), (ii) and (iii)
above, an Officers' Certificate of Company stating that the
signers have reviewed the terms of this Agreement and have made,
or caused to be made under their supervision, a review in
reasonable detail of the transactions and condition of each
Borrower and its Subsidiaries during the accounting period
covered by such financial statements and that such review has not
disclosed the existence during or at the end of such accounting
period, and that the signers do not have knowledge of the
existence as at the date of such Officers' Certificate, of any
condition or event that constitutes an Event of Default or
Potential Event of Default, or, if any such condition or event
existed or exists, specifying the nature and period of existence
thereof and what action Borrowers have taken, are taking and
propose to take with respect thereto; and (b) together with each
delivery of financial statements pursuant to subdivision (ii) and
(iii) above, a Compliance Certificate demonstrating in reasonable
detail compliance during and at the end of the applicable
accounting periods with the restrictions contained in Section 7;
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(v) RECONCILIATION STATEMENTS: if, as a result of any
change in accounting principles and policies from those used in
the preparation of the audited financial statements referred to
in subsection 5.3, the consolidated financial statements of
Company and its Subsidiaries delivered pursuant to subdivisions
(i), (ii), (iii) or (xiii) of this subsection 6.1 will differ in
any material respect from the consolidated financial statements
that would have been delivered pursuant to such subdivisions had
no such change in accounting principles and policies been made,
then (a) together with the first delivery of financial statements
pursuant to subdivision (i), (ii), (iii) or (xiii) of this
subsection 6.1 following such change, consolidated financial
statements of Company and its Subsidiaries for (y) the current
Fiscal Year to the effective date of such change and (z) the full
Fiscal Year immediately preceding the Fiscal Year in which such
change is made, in each case prepared on a pro forma basis as if
such change had been in effect during such periods, and
(b) together with each delivery of financial statements pursuant
to subdivision (i), (ii), (iii) or (xiii) of this subsection 6.1
following such change, a written statement of the chief
accounting officer or chief financial officer of Company setting
forth the differences (including without limitation any
differences that would affect any calculations relating to the
financial covenants set forth in subsection 7.6) which would have
resulted if such financial statements had been prepared without
giving effect to such change;
(vi) ACCOUNTANTS' CERTIFICATION: together with each
delivery of consolidated financial statements of Company and its
Subsidiaries pursuant to subdivision (iii) above, a written
statement by the independent certified public accountants giving
the report thereon (a) stating that their audit examination has
included a review of the terms of this Agreement and the other
Loan Documents as they relate to accounting matters, (b) stating
whether, in connection with their audit examination, any
condition or event that constitutes an Event of Default or
Potential Event of Default has come to their attention and, if
such a condition or event has come to their attention, specifying
the nature and period of existence thereof; PROVIDED that such
accountants shall not be liable by reason of any failure to
obtain knowledge of any such Event of Default or Potential Event
of Default that would not be disclosed in the course of their
audit examination, and (c) stating that based on their audit
examination nothing has come to their attention that causes them
to believe either or both that the information contained in the
certificates delivered therewith pursuant to subdivision (iv)
above is not correct or that the matters set forth in the
Compliance Certificates delivered therewith pursuant to
subdivision (iv) above for the applicable Fiscal Year are not
stated in accordance with the terms of this Agreement;
(vii) ACCOUNTANTS' REPORTS: promptly upon receipt
thereof (unless restricted by applicable professional standards),
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copies of all reports submitted to any Borrower by independent
certified public accountants in connection with each annual,
interim or special audit of the financial statements of any
Borrower and its Subsidiaries made by such accountants,
including, without limitation, any comment letter submitted by
such accountants to management in connection with their annual
audit;
(viii) SEC FILINGS AND PRESS RELEASES: promptly upon
their becoming available, copies of (a) all financial statements,
reports, notices and proxy statements sent or made available
generally by any Borrower to its security holders or by any
Subsidiary of any Borrower to its security holders other than any
Borrower or another Subsidiary of a Borrower, (b) all regular and
periodic reports and all registration statements (other than on
Form S-8 or a similar form) and prospectuses, if any, filed by a
Borrower or any of its Subsidiaries with any securities exchange
or with the Securities and Exchange Commission or any
governmental or private regulatory authority, and (c) all press
releases and other statements made available generally by a
Borrower or any of its Subsidiaries to the public concerning
material developments in the business of such Borrower or any of
its Subsidiaries;
(ix) EVENTS OF DEFAULT, ETC.: promptly upon any officer of
any Loan Party obtaining knowledge (a) of any condition or event
that constitutes an Event of Default or Potential Event of
Default, or becoming aware that any Lender has given any notice
(other than to Administrative Agent) or taken any other action
with respect to a claimed Event of Default or Potential Event of
Default, (b) that any Person has given any notice to a Borrower
or any of its Subsidiaries or taken any other action with respect
to a claimed default or event or condition of the type referred
to in subsection 8.2, (c) of any condition or event that would be
required to be disclosed in a current report filed by a Borrower
with the Securities and Exchange Commission on Form 8-K (Items 1,
2, 4, 5 and 6 of such Form as in effect on the date hereof) if
such Borrower were required to file such reports under the
Exchange Act, or (d) of the occurrence of any event or change
that has caused or evidences, either in any case or in the
aggregate, a Material Adverse Effect, an Officers' Certificate
specifying the nature and period of existence of such condition,
event or change, or specifying the notice given or action taken
by any such Person and the nature of such claimed Event of
Default, Potential Event of Default, default, event or condition,
and what action Borrowers have taken, are taking and propose to
take with respect thereto;
(x) LITIGATION OR OTHER PROCEEDINGS: (a) promptly upon any
officer of any Loan Party obtaining knowledge of (X) the
institution of, or non-frivolous threat of, any action, suit,
proceeding (whether administrative, judicial or otherwise),
governmental investigation or arbitration against or affecting
112
such Borrower or any of its Subsidiaries or any property of such
Borrower or any of its Subsidiaries (collectively, "PROCEEDINGS")
not previously disclosed in writing by Company or any of its
Subsidiaries to Lenders or (Y) any material development in any
Proceeding that, in any case:
(1) could reasonably be expected to result in a
Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief
as a result of, the transactions contemplated hereby;
written notice thereof together with such other information as
may be reasonably available to such Borrower to enable Lenders
and their counsel to evaluate such matters; and (b) within twenty
days after the end of each Fiscal Quarter, a schedule of all
Proceedings involving an alleged liability of, or claims against
or affecting, any Borrower or any of its Subsidiaries equal to or
greater than $500,000, and promptly after request by
Administrative Agent such other information as may be reasonably
requested by Administrative Agent to enable Administrative Agent
and its counsel to evaluate any of such Proceedings;
(xi) ERISA EVENTS: promptly upon becoming aware of the
occurrence of or forthcoming occurrence of any ERISA Event, a
written notice specifying the nature thereof, what action Company
or any of its ERISA Affiliates has taken, is taking or proposes
to take with respect thereto and, when known, any action taken or
threatened by the Internal Revenue Service, the Department of
Labor or the PBGC with respect thereto;
(xii) ERISA NOTICES: with reasonable promptness, copies
of (a) each Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) filed by Company or any of its ERISA
Affiliates with the Internal Revenue Service with respect to each
Pension Plan; (b) all notices received by Company or any of its
ERISA Affiliates from a Multiemployer Plan sponsor concerning an
ERISA Event; and (c) such other documents or governmental reports
or filings relating to any Employee Benefit Plan as
Administrative Agent shall reasonably request;
(xiii) FINANCIAL PLANS: as soon as practicable and in
any event no later than 45 days after the beginning of each
Fiscal Year, a consolidated and consolidating (by Region and by
product line) plan and financial forecast for such Fiscal Year
(the "FINANCIAL PLAN" for such Fiscal Year), including without
limitation (a) a forecasted consolidated and consolidating (by
Region and by product line) balance sheet and forecasted
consolidated and consolidating (by Region and by product line)
statements of income and cash flows of each Borrower and its
Subsidiaries for such Fiscal Year, together with a PRO FORMA
Compliance Certificate for such Fiscal Year and an explanation of
113
the assumptions on which such forecasts are based, and
(b) forecasted consolidated and consolidating (by Region and by
product line) balance sheet and forecasted consolidated and
consolidating (by Region and by product line) statements of
income and cash flows of each Borrower and its Subsidiaries for
each month of such Fiscal Year, together with an explanation of
the assumptions on which such forecasts are based;
(xiv) INSURANCE: as soon as practicable and in any
event by the last day of each Fiscal Year, a report in form and
substance satisfactory to Administrative Agent outlining all
material insurance coverage maintained as of the date of such
report by Company and its Subsidiaries and all material insurance
coverage planned to be maintained by Company and its Subsidiaries
in the immediately succeeding Fiscal Year and confirming the
status of Administrative Agent as loss payee under all such
insurance to the extent required by subsection 6.4;
(xv) BOARD OF DIRECTORS: with reasonable promptness,
written notice of any change in the Board of Directors of any
Borrower;
(xvi) NEW SUBSIDIARIES: promptly upon any Person
becoming a Subsidiary of Company, a written notice setting forth
with respect to such Person (a) the date on which such Person
became a Subsidiary of Company and (b) all of the data required
to be set forth in SCHEDULE 5.1 annexed hereto with respect to
all Subsidiaries of Company (it being understood that such
written notice shall be deemed to supplement SCHEDULE 5.1 annexed
hereto for all purposes of this Agreement);
(xvii) MARGIN DETERMINATION CERTIFICATE: concurrently
with the delivery of the financial statements required under
subsections 6.1(ii) and 6.1(iii), Company shall deliver to
Administrative Agent in New York a Margin Determination
Certificate with respect to the Fiscal Quarter then ended;
(xviii) UCC SEARCH REPORT: as promptly as practicable after
the date of delivery to Administrative Agent of any UCC financing
statement executed by any Loan Party pursuant to subsection 4.1E
or 6.8A, copies of completed UCC searches evidencing the proper
filing, recording and indexing of all such UCC financing
statements and listing all other effective financing statements
in that jurisdiction that name such Loan Party as debtor,
together with copies of all such financing statements not
previously delivered to Administrative Agent by or on behalf of
any Borrower or such Loan Party;
(xix) ADDITIONAL LETTERS OF CREDIT: (a) promptly upon
the issuance of any Additional Letter of Credit, copies of such
Additional Letter of Credit and any related documentation,
(b) promptly upon the amendment of any Additional Letter of
Credit, copies of such amendment and any related documentation,
114
(c) promptly upon the reduction or termination of any Additional
Letter of Credit, evidence, in form and substance satisfactory to
Administrative Agent, of such reduction or termination, and
(d) concurrently with the delivery of the financial statements
required under subsection 6.1(i), a report, in form and substance
satisfactory to Administrative Agent, setting forth each
outstanding Additional Letter of Credit and with respect to each
such Additional Letter of Credit, the following information: the
issuing lender, the beneficiary, the Borrower that requested such
Additional Letter of Credit, the amount which is or at any time
thereafter may become available under such Additional Letter of
Credit, the aggregate amount of all drawings under such
Additional Letter of Credit, the currency of denomination and the
expiration date; and
(xx) OTHER INFORMATION: with reasonable promptness, such
other information and data with respect to any Borrower or any of
its Subsidiaries as from time to time may be reasonably requested
by Administrative Agent on its own behalf or on behalf of any
Lender.
6.2 CORPORATE EXISTENCE, ETC.
Except as permitted under subsection 7.7, each Borrower
will, and will cause each of its Subsidiaries (other than Inactive
Subsidiaries) to, at all times preserve and keep in full force and
effect its corporate existence and all rights and franchises material
to its business.
6.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
A. Each Borrower will, and will cause each of its Subsidiaries
to, pay all taxes, assessments and other governmental charges imposed
upon it or any of its properties or assets or in respect of any of its
income, businesses or franchises before any material penalty accrues
thereon, and all claims (including, without limitation, claims for
labor, services, materials and supplies) for sums that have become due
and payable and that by law have or may become a material Lien upon
any of its properties or assets, prior to the time when any material
penalty or fine shall be incurred with respect thereto; PROVIDED that
no such charge or claim need be paid if being contested in good faith
by appropriate proceedings promptly instituted and diligently
conducted and if such reserve or other appropriate provision, if any,
as shall be required in conformity with GAAP shall have been made
therefor.
B. None of the Borrowers will nor will any such Borrower permit
any of its Subsidiaries to, file or consent to the filing of any
consolidated income tax return with any Person (other than Holdings or
any of its Subsidiaries).
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6.4 MAINTENANCE OF PROPERTIES; INSURANCE; APPLICATION OF NET
INSURANCE/ CONDEMNATION PROCEEDS.
A. MAINTENANCE OF PROPERTIES. Each Borrower will, and will
cause each of its Subsidiaries to, maintain or cause to be maintained
in good repair, working order and condition, ordinary wear and tear
excepted, all of their respective material properties used or useful
in the business of such Borrower and its Subsidiaries (including,
without limitation, all patents, trademarks, tradenames, copyrights,
registered names, service marks, technology, know-how and processes
used in or necessary for the conduct of the business of Company and
its Subsidiaries as currently conducted that are material to the
condition (financial or otherwise), business or operations of Company
and its Subsidiaries) and from time to time will make or cause to be
made all appropriate repairs, renewals and replacements thereof such
that the properties will remain in substantially the same condition
and working order, ordinary wear and tear excepted, that exists as of
the Effective Date.
B. INSURANCE. Each Borrower will maintain or cause to be
maintained, with financially sound and reputable insurers, insurance
with respect to its properties and business and the properties and
businesses of its Subsidiaries against loss or damage of the kinds
customarily carried or maintained under similar circumstances by
corporations of established reputation engaged in similar businesses.
Without limiting the generality of the foregoing, each Borrower will
maintain or cause to be maintained (i) flood insurance with respect to
each Flood Hazard Property or Covered Real Property Asset (as defined
in subsection 6.9) that is Flood Hazard Property to the extent that
such Flood Hazard Property or Covered Real Property Asset that is
Flood Hazard Property is located in a community that participates in
the National Flood Insurance Program and (ii) public liability
insurance, third party property damage insurance and replacement value
insurance on the Collateral under such policies of insurance, with
such insurance companies, in such amounts and covering such risks as
are at all times satisfactory to Administrative Agent in its
commercially reasonable judgment. Each such policy of insurance that
insures against loss or damage with respect to any Collateral or
against losses due to business interruption shall name Administrative
Agent for the benefit of Lenders as the loss payee thereunder for any
covered loss in excess of $500,000 and shall provide for at least 30
days (15 days in the event of non-payment of premium) prior written
notice to Administrative Agent of any modification or cancellation of
such policy.
C. APPLICATION OF NET INSURANCE/CONDEMNATION PROCEEDS. Upon
receipt by Administrative Agent of any Net Insurance/Condemnation
Proceeds as loss payee (i) in respect of any such business
interruption insurance constituting Net Insurance/Condemnation
Proceeds, (a) Administrative Agent shall, so long as no Event of
Default shall have occurred and be continuing, deliver such Net
Insurance/Condemnation Proceeds to the applicable Borrower, and (b) if
an Event of Default shall have occurred and be continuing,
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Administrative Agent shall, and Borrowers hereby authorize
Administrative Agent to, apply such Net Insurance/Condemnation
Proceeds to prepay the Loans as provided in subsection 2.4A(iii)(b),
and (ii) in respect of any such insurance against loss or damage with
respect to any Collateral, (a) to the extent that any Borrower or any
of its Subsidiaries intends to use any such insurance proceeds to
repair, restore or replace the assets of such Borrower or Subsidiary
in respect of which such Net Insurance/Condemnation Proceeds were
received, Administrative Agent shall, so long as no Event of Default
shall have occurred and be continuing, (A) in the event the aggregate
amount of such Net Insurance/Condemnation Proceeds in respect of any
covered loss does not exceed $2,500,000, deliver such Net
Insurance/Condemnation Proceeds to such Borrower, and such Borrower
shall, or shall cause such Subsidiary to, use such Net
Insurance/Condemnation Proceeds to effect such repair, restoration or
replacement, and (B) in the event the aggregate amount of such Net
Insurance/ Condemnation Proceeds exceeds $2,500,000, hold such
proceeds in a cash collateral account and so long as any Borrower or
any of its Subsidiaries proceeds to repair, restore or replace the
assets of such Borrower or such Subsidiary in respect of which such
Net Insurance/ Condemnation Proceeds were received, Administrative
Agent shall from time to time disburse to such Borrower or such
Subsidiary amounts necessary to pay the cost of such repair,
restoration or replacement after the receipt by Administrative Agent
of invoices or other documentation reasonably satisfactory to
Administrative Agent describing the amount of costs so incurred;
PROVIDED, HOWEVER, that if in the reasonable good faith belief of
Administrative Agent, such Borrower or such Subsidiary is not
proceeding diligently with the repair, restoration or replacement,
Administrative Agent shall, and Borrowers hereby authorize
Administrative Agent to, apply such insurance proceeds to prepay the
Loans as provided in subsection 2.4A(iii)(b), and (b) if an Event of
Default shall have occurred and be continuing or to the extent that
neither the applicable Borrower nor any of its Subsidiaries intends to
use any such Net Insurance/Condemnation Proceeds to repair, restore or
replace assets of such Borrower or any of its Subsidiaries as
described above, Administrative Agent shall, and Borrowers hereby
authorize Administrative Agent to, apply such Net Insurance/
Condemnation Proceeds to prepay the Loans as provided in subsection
2.4A(iii)(b).
6.5 INSPECTION; LENDER MEETING.
A. INSPECTION RIGHTS. Each Borrower shall, and shall cause
each of its Subsidiaries to, permit any authorized representatives
designated by Administrative Agent (which may include representatives
of any Lender at such Lender's expense) to visit and inspect any of
the properties of such Borrower or any of its Subsidiaries, including
its and their financial and accounting records, and to make copies and
take extracts therefrom, and to discuss its and their affairs,
finances and accounts with its and their officers and independent
public accountants (provided that such Borrower may, if it so chooses,
be present at or participate in any such discussion).
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B. LENDER MEETING. Without in any way limiting the foregoing,
each Borrower will participate in a meeting of Administrative Agent
and Lenders at least once during each Fiscal Year to be held at such
Borrower's corporate offices (or such other location as may be agreed
to by such Borrower and Administrative Agent) at such time as may be
agreed to by such Borrower and Administrative Agent.
6.6 COMPLIANCE WITH LAWS, ETC.
Each Borrower shall, and shall cause each of its
Subsidiaries to, comply with the requirements of all applicable laws,
rules, regulations and orders of any governmental authority (including
without limitation all Environmental Laws), noncompliance with which
could reasonably be expected to cause, individually or in the
aggregate at any time, a Material Adverse Effect.
6.7 ENVIRONMENTAL DISCLOSURE AND INSPECTION.
A. COMPLIANCE WITH ENVIRONMENTAL LAWS. Each Borrower shall,
and shall cause each of its Subsidiaries to, exercise all due
diligence in order to comply in all material respects and cause
(i) all tenants under any leases or occupancy agreements affecting any
portion of the Facilities and (ii) all other Persons on or occupying
such property, to comply in all material respects with all
Environmental Laws.
B. ENVIRONMENTAL REVIEW AND INSPECTION. Each Borrower agrees
that Administrative Agent may, from time to time and in its reasonable
discretion, retain, at Borrower's expense, an independent professional
consultant to review any report relating to Hazardous Materials
prepared by or for Borrower and, upon a reasonable belief that any
Borrower has breached any covenant or representation with respect to
environmental matters or that there has been a material violation of
Environmental Laws at any Facility or by any Borrower, to conduct its
own reasonable investigation of such matter at any Facility currently
owned, leased, operated or used by Borrower or any of its
Subsidiaries, and Borrower agrees to use its best efforts to obtain
permission for Administrative Agent's professional consultant to
conduct its own investigation of any such matter at any Facility
previously owned, leased, operated or used by Borrower or any of its
Subsidiaries. Each Borrower hereby grants to Administrative Agent and
its agents, employees, consultants and contractors the right to enter
into or onto the Facilities currently owned, leased, operated or used
by Borrower or any of its Subsidiaries upon reasonable notice to
Borrower to perform such assessments on such property as are
reasonably necessary to conduct such a review and/or investigation.
Any such investigation of any Facility shall be conducted, unless
otherwise agreed to by Borrower and Administrative Agent, during
normal business hours and, to the extent reasonably practicable, shall
be conducted so as not to interfere with the ongoing operations at any
such Facility or to cause any damage or loss to any property at such
Facility. Borrowers and Administrative Agent hereby acknowledge and
agree that any report of any investigation conducted at the request of
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Administrative Agent pursuant to this subsection 6.7B will be obtained
and shall be used by Administrative Agent and Lenders for the purposes
of Lenders' internal credit decisions, to monitor and police the Loans
and to protect Lenders' security interests, if any, created by the
Loan Documents. Administrative Agent agrees to deliver a copy of any
such report to Borrower with the understanding that each Borrower
acknowledges and agrees that (i) it will indemnify and hold harmless
Administrative Agent and each Lender from any costs, losses or
liabilities relating to such Borrower's use of or reliance on such
report, (ii) neither Administrative Agent nor any Lender makes any
representation or warranty with respect to such report, and (iii) by
delivering such report to Borrower, neither Administrative Agent nor
any Lender is requiring or recommending the implementation of any
suggestions or recommendations contained in such report.
C. ENVIRONMENTAL DISCLOSURE. Each Borrower and its
Subsidiaries will deliver to Administrative Agent and Lenders:
(i) ENVIRONMENTAL AUDITS AND REPORTS. As soon as
practicable following receipt thereof, copies of all
environmental audits, investigations, analyses and reports of any
kind or character, whether prepared by personnel of Borrower or
any of its Subsidiaries or by independent consultants,
governmental authorities or any other Persons, with respect to
significant environmental matters at any Facility which,
individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect or with respect to any
Environmental Claims which, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse
Effect;
(ii) NOTICE OF CERTAIN RELEASES, REMEDIAL ACTIONS, ETC.
Each Borrower shall promptly advise Administrative Agent and
Lenders in writing and in reasonable detail of (i) any Release
required to be reported to any Governmental Authority under any
applicable Environmental Laws, (ii) any and all written
communications with respect to any Environmental Claims made to
or on such Borrower or any of its Subsidiaries or Affiliates that
could reasonably be expected to give rise to a Material Adverse
Effect or with respect to any Release required to be reported to
any Governmental Authority, (iii) any remedial action taken by
such Borrower or any other Person in response to (x) any
Hazardous Materials on, under or about any Facility, the
existence of which could reasonably be expected to give rise to
an Environmental Claim having a Material Adverse Effect, or
(y) any Environmental Claim made to or on such Borrower or any of
its Subsidiaries or Affiliates that could have a Material Adverse
Effect, (iv) such Borrower's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of
any Facility that could cause such Facility or any part thereof
to be subject to any restrictions on the ownership, occupancy,
transferability or use thereof under any Environmental Laws, and
(v) any request for information from any Governmental Authority
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that suggests such agency is investigating whether such Borrower
or any of its Subsidiaries may be potentially responsible for a
Release, except for in each case those matters set forth on
SCHEDULE 5.13.
(iii) NOTICE OF CERTAIN PROPOSED ACTIONS HAVING
ENVIRONMENTAL IMPACT. Each Borrower shall promptly notify
Administrative Agent and Lenders of (i) any proposed acquisition
of stock, assets, or property by Borrower or any of its
Subsidiaries that could reasonably be expected to expose Borrower
or any of its Subsidiaries to, or result in, Environmental Claims
that could reasonably be expected to have a Material Adverse
Effect or that could reasonably be expected to have a material
adverse effect on any Governmental Authorization then held by
Borrower or any of its Subsidiaries and (ii) any proposed action
to be taken by Borrower or any of its Subsidiaries to commence
manufacturing, industrial or other operations (beyond those
presently undertaken) that could reasonably be expected to
subject Borrower or any of its Subsidiaries to material
additional obligations or requirements under Environmental Laws.
(iv) OTHER INFORMATION. Each Borrower shall, at its own
expense, provide copies of such documents or information as
Administrative Agent may reasonably request in relation to any
matters disclosed pursuant to this subsection 6.7.
D. BORROWER'S REMEDIAL ACTION REGARDING HAZARDOUS MATERIALS.
(i) REMEDIAL ACTIONS RELATING TO HAZARDOUS MATERIALS
ACTIVITIES. Each Borrower shall promptly take, and shall cause
each of its Subsidiaries promptly to take, any and all remedial
action in connection with the presence, storage, use, disposal,
transportation or Release on, under or about any Facility in
order to comply in all material respects with all applicable
Environmental Laws and Governmental Authorizations. In the event
any Borrower or any of its Subsidiaries undertakes any remedial
action with respect to any Hazardous Materials on, under or about
any Facility, Borrower or such Subsidiary shall conduct and
complete such remedial action in compliance in all material
respects with all applicable Environmental Laws, and in
accordance with the applicable policies, orders and directives of
all Governmental Authorities with jurisdiction except when, and
only to the extent that, Borrower's or such Subsidiary's
liability for such presence, storage, use, disposal,
transportation or discharge of any Hazardous Materials is being
contested in good faith by Borrower or such Subsidiary.
(ii) ACTIONS WITH RESPECT TO ENVIRONMENTAL CLAIMS AND
VIOLATIONS OF ENVIRONMENTAL LAWS. Each Borrower shall promptly
take, and shall cause each of its Subsidiaries promptly to take,
any and all actions necessary to (i) cure any violation of
applicable Environmental Laws by Borrower or its Subsidiaries
that could reasonably be expected to have, individually or in the
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aggregate, a Material Adverse Effect (provided Borrower may
reasonably contest alleged violations so long as the delay in the
cure by reason of such contest could not reasonably be expected
to have a Material Adverse Effect) and (ii) make an appropriate
response to any Environmental Claim made to or on Borrower or any
of its Subsidiaries and discharge any obligations it may have to
any Person thereunder where failure to do so could reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect.
6.8 EXECUTION OF FUTURE GUARANTIES AND COLLATERAL DOCUMENTS.
A. EXECUTION OF FUTURE SUBSIDIARY GUARANTY AND COLLATERAL
DOCUMENTS. In the event that any Person becomes a Domestic Subsidiary
of Company after the date hereof, Company will promptly notify
Administrative Agent of that fact, will execute a pledge amendment to
the Pledge Agreement executed and delivered by Company pledging all of
the stock of such Domestic Subsidiary owned by Company and cause such
Subsidiary (other than an Inactive Subsidiary) to execute and deliver
to Administrative Agent a counterpart of the Subsidiary Guaranty and,
as applicable, a Subsidiary Pledge Agreement, a Subsidiary Security
Agreement, a Subsidiary Trademark Security Agreement, a Subsidiary
Patent Security Agreement and Additional Mortgages (as defined in
subsection 6.9) and to take all such further action and execute all
such further documents and instruments as may be reasonably required
to grant and perfect in favor of Administrative Agent, for the benefit
of Lenders, a First Priority security interest in all of the Real
Property Assets and all of the personal property assets of such
Subsidiary described in the applicable Collateral Documents; PROVIDED,
HOWEVER, that Company shall not be required to take any action nor
execute any documents or instruments granting and perfecting in favor
of Administrative Agent, for the benefit of Lenders, a First Priority
security interest in the Westmont Excluded Collateral or the Sayama
Excluded Collateral.
B. EXECUTION OF FUTURE FOREIGN SUBSIDIARY GUARANTY AND
COLLATERAL DOCUMENTS. In the event that any Person becomes a direct
Foreign Subsidiary of Company or any Domestic Subsidiary of Company
after the date hereof, Company will promptly notify Administrative
Agent of that fact and Company or such Domestic Subsidiary will
execute a pledge amendment to the Pledge Agreement or Subsidiary
Pledge Agreement executed and delivered by Company or such Domestic
Subsidiary pledging not less than 66% of the stock of such Foreign
Subsidiary. In the event that U.S. tax laws are amended to permit a
Foreign Subsidiary to guarantee the Domestic Revolving Loans and Swing
Line Loans without the incurrence of an investment in U.S. property or
other deemed dividends for U.S. tax purposes or without otherwise
resulting in U.S. taxable income, Company will promptly notify
Administrative Agent of that fact and Company or such Domestic
Subsidiary will execute pledge amendments to the Pledge Agreement or
Subsidiary Pledge Agreement executed and delivered by Company or such
Domestic Subsidiary pledging not less than 100% of the stock of its
Foreign Subsidiaries and Company will cause its Foreign Subsidiaries
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(other than Inactive Subsidiaries) to execute and deliver to
Administrative Agent, a counterpart of a Subsidiary Guaranty, a
Subsidiary Pledge Agreement, a Subsidiary Security Agreement, a
Subsidiary Trademark Security Agreement, a Subsidiary Patent Security
Agreement and Additional Mortgages, as applicable, and to take all
such further action and execute all such further documents and
instruments as may be reasonably required to grant and perfect in
favor of Administrative Agent, for the benefit of Lenders, a First
Priority security interest in all of the Real Property Assets and all
of the personal property assets of such Subsidiary described in the
applicable Collateral Documents.
C. SUBSIDIARY CHARTER DOCUMENTS, LEGAL OPINIONS, ETC. With
respect to any such new Subsidiary (other than an Inactive
Subsidiary), Company shall deliver to Administrative Agent, together
with the applicable Guaranty and such Collateral Documents if, and to
the extent, requested by Administrative Agent:
(i) certified copies of such Subsidiary's Articles or
Certificate of Incorporation, together with a good standing
certificate from the Secretary of State (or comparable official)
of the jurisdiction of its incorporation, each to be dated a
recent date prior to their delivery to Administrative Agent
(ii) a copy of such Subsidiary's Bylaws (or comparable or
equivalent documentation), certified by its corporate secretary
or an assistant corporate secretary or other appropriate officer
as of a recent date prior to their delivery to Administrative
Agent;
(iii) a certificate executed by the secretary or an
assistant secretary or other appropriate officer of such
Subsidiary as to (a) the incumbency and signatures of the
officers of such Subsidiary executing such Guaranty and the
Collateral Documents to which such Subsidiary is a party and
(b) the fact that the attached resolutions of the Board of
Directors of such Subsidiary authorizing the execution, delivery
and performance of such Guaranty and such Collateral Documents
are in full force and effect and have not been modified or
rescinded; and
(iv) a favorable opinion of counsel to such Subsidiary, in
form and substance satisfactory to Administrative Agent and its
counsel, as to (a) the due organization and good standing of such
Subsidiary, (b) the due authorization, execution and delivery by
such Subsidiary of such Guaranty and such Collateral Documents,
(c) the enforceability of such Guaranty and such Collateral
Documents against such Subsidiary, and (d) such other matters as
Administrative Agent may reasonably request, all of the foregoing
to be satisfactory in form and substance to Administrative Agent
and its counsel.
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6.9 ADDITIONAL REAL PROPERTY COLLATERAL.
A. ADDITIONAL MORTGAGES, ETC. From and after the Effective
Date, in the event that (i) any Borrower or any of its Subsidiaries
(other than Inactive Subsidiaries) acquires any Fee Property or any
Material Leasehold (other than any Fee Property or Material Leasehold
which Administrative Agent in its sole discretion affirmatively waives
the requirements set forth in this subsection 6.9 with respect to such
Fee Property or Material Leasehold) (each a "COVERED REAL PROPERTY
ASSET") or (ii) at the time any Person becomes a Subsidiary (other
than an Inactive Subsidiary) of any Borrower, such Person owns or
holds any Covered Real Property Asset, such Borrower or such
Subsidiary shall, as soon as practicable after the acquisition of such
Covered Real Property Asset or such Person's becoming a Subsidiary of
any Borrower, as the case may be, deliver to Administrative Agent the
following:
(a) ADDITIONAL MORTGAGE. Fully executed and acknowledged
counterparts of Mortgages (each an "ADDITIONAL MORTGAGE" and
collectively, the "ADDITIONAL MORTGAGES") in recordable form
encumbering such Covered Real Property Asset, which Mortgages
shall create a valid and enforceable First Priority Lien (or such
other priority lien as may be specified in the applicable
Additional Mortgage), subject to Permitted Encumbrances, on such
Covered Real Property Asset in favor of Administrative Agent (or
such other trustee as may be required or desired under local law)
for the benefit of Lenders;
(b) OPINION OF COUNSEL. If required by Administrative
Agent, an opinion of local counsel (which counsel shall be
reasonably satisfactory to Administrative Agent) in the
jurisdiction in which such Covered Real Property Asset is located
with respect to the enforceability of Additional Mortgage
recorded in such jurisdiction and such other matters as
Administrative Agent may reasonably request, in form and
substance reasonably satisfactory to Administrative Agent;
(c) LANDLORD CONSENT AND ESTOPPEL; RECORDED LEASEHOLD
INTEREST. In the case of a Covered Real Property Asset
consisting of a Material Leasehold, such estoppel letters from
the landlord on such Material Leasehold as may be reasonably
requested by Administrative Agent, in form and substance
reasonably satisfactory to Administrative Agent;
(d) TITLE INSURANCE. (1) If required by Administrative
Agent, in the case of each such Covered Real Property Asset
consisting of a Fee Property, an ALTA mortgagee title insurance
policy issued by a title insurer reasonably satisfactory to
Administrative Agent (an "ADDITIONAL MORTGAGE POLICY"), in an
amount reasonably satisfactory to Administrative Agent, ensuring
Administrative Agent that the applicable Additional Mortgage
creates a valid and enforceable First Priority mortgage Lien (or
such other priority lien as may be specified in the applicable
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Additional Mortgage) on such Covered Real Property Asset, free
and clear of all defects and encumbrances except Permitted
Encumbrances, which Additional Mortgage Policy (x) shall be in
form and substance satisfactory to Administrative Agent and (y)
shall include an endorsement for mechanics' liens, for future
advances under this Agreement, the Notes and the other Loan
Documents, and for any other matters that Administrative Agent
may request, and (z) shall provide for affirmative insurance and
such reinsurance as Administrative Agent may request, all of the
foregoing in form and substance reasonably satisfactory to
Administrative Agent; and (2) a current survey prepared in
accordance with the Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys jointly established and adopted by
ALTA and ACSM in 1992 and meeting the requirement of a Class A
Survey, as defined therein with respect to such Covered Real
Property Asset showing gross area of such Covered Real Property
Asset, lot lines and monuments, building lines, easements both
burdening and benefiting such Covered Real Property Asset,
utilities, including water and sewer lines to the point of
connection with the public system, the improvements (including
loading docks and the location and number of parking spaces),
encroachments, if any, on such Covered Real Property Asset or
over adjoining properties, and other matters located on or
affecting such Covered Real Property Asset requested by the
Administrative Agent. Each such Survey will contain a
certificate addressed to the Administrative Agent and First
American Title Insurance Company in form and substance
satisfactory to Administrative Agent;
(e) TITLE REPORT. If no Additional Mortgage Policy is
required with respect to such Covered Real Property Asset, a
title report obtained by Borrower in respect of any such Covered
Real Property Asset, dated not more than 30 days prior to the
date such Additional Mortgage is to be recorded and satisfactory
in form and substance to Administrative Agent;
(f) MATTERS RELATING TO FLOOD HAZARD PROPERTIES. (i)
Evidence, which may be in the form of a letter from an insurance
broker or a municipal engineer, as to whether (1) such Covered
Real Property Asset (an "ADDITIONAL FLOOD HAZARD PROPERTY") is
Flood Hazard Property and (2) the community in which such Covered
Real Property Asset (if it is an Additional Flood Hazard
Property) is located is participating in the National Flood
Insurance Program; (ii) if such Covered Real Property Asset is an
Additional Flood Hazard Property, Borrower's written
acknowledgement of receipt of written notification from
Administrative Agent (1) as to the existence of such Additional
Flood Hazard Property and (2) as to whether the community in
which such Flood Hazard Property is located is participating in
the National Flood Insurance Program; and (iii) in the event such
Covered Real Property Asset is an Additional Flood Hazard
Property that is located in a community that participates in the
National Flood Insurance Program, evidence that Borrower has
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obtained flood insurance in respect of such Flood Hazard Property
to the extent required under the applicable regulations of the
Board of Governors of the Federal Reserve System; and
(g) ENVIRONMENTAL AUDIT. If required by Administrative
Agent, in the case of each such Covered Real Property Asset
consisting of a Fee Property, environmental audits, reports and
other information prepared by professional consultants mutually
acceptable to Borrower and Administrative Agent, in form, scope
and substance satisfactory to Administrative Agent in its
reasonable discretion, concerning any environmental hazards or
liabilities to which Borrower or any of its Subsidiaries may be
subject with respect to such Additional Mortgaged Property.
B. REAL ESTATE APPRAISALS. Each Borrower shall, and shall
cause each of its Subsidiaries to, permit any authorized
representatives designated by Administrative Agent, upon reasonable
notice, to visit and inspect any Additional Mortgaged Property for the
purpose of obtaining an appraisal of value, conducted by consultants
retained by Administrative Agent in compliance with all applicable
banking regulations, with respect to such Covered Real Property Asset.
6.10 ASSIGNABILITY AND RECORDING OF LEASE AGREEMENTS.
From and after the Effective Date, in the event that any
Borrower or any of its Subsidiaries enters into any lease that is a
Material Leasehold (other than any Material Leasehold as to which
Administrative Agent in its sole discretion affirmatively waives the
requirements set forth in this subsection 6.10), such Borrower shall,
or shall cause such Subsidiary to, (i) obtain lease terms permitting
(or not expressly prohibiting) the encumbrancing of such Material
Leasehold pursuant to an Additional Mortgage and the assignment of
such Material Leasehold interest to the successful bidder at a
foreclosure or similar sale (and to a subsequent third party assignee
by Administrative Agent or any Lender to the extent Administrative
Agent or such Lender is the successful bidder at such sale) in the
event of a foreclosure or similar action pursuant to such Additional
Mortgage and (ii) cause such lease, or a memorandum of lease with
respect thereto, or other evidence of such lease in form and substance
reasonably satisfactory to Administrative Agent, to be recorded in all
places to the extent necessary or desirable, in the reasonable
judgment of Administrative Agent, so as to enable an Additional
Mortgage encumbering such Material Leasehold to effectively create a
valid and enforceable First Priority Lien (subject to Permitted
Encumbrances) on such Material Leasehold in favor of Administrative
Agent (or such other Person as may be required or desired under local
law) for the benefit of Lenders.
SECTION 7. BORROWERS' NEGATIVE COVENANTS
Each Borrower covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full
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of all of the Loans and other Obligations and the cancellation or
expiration of all Letters of Credit, unless Requisite Lenders shall
otherwise give prior written consent, such Borrower shall perform, and
shall cause each of its Subsidiaries to perform, all covenants in this
Section 7.
7.1 INDEBTEDNESS.
Each Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or
guaranty, or otherwise become or remain directly or indirectly liable
with respect to, any Indebtedness, except:
(i) Borrowers may become and remain liable with respect to
the Obligations;
(ii) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations permitted by
subsection 7.4 and, upon any matured obligations actually arising
pursuant thereto, the Indebtedness corresponding to the
Contingent Obligations so extinguished;
(iii) Company may become and remain liable with respect
to Indebtedness to any of its wholly-owned Subsidiaries, and any
wholly-owned Subsidiary of Company may become and remain liable
with respect to Indebtedness to Company or any other wholly-owned
Subsidiary of Company; PROVIDED that (a) all such intercompany
Indebtedness shall be evidenced by promissory notes that are
pledged to Administrative Agent pursuant to the terms of the
applicable Collateral Documents, (b) all such intercompany
Indebtedness owed by any Borrower to any of its Subsidiaries
shall be subordinated in right of payment to the payment in full
of the applicable Obligations pursuant to the terms of the such
promissory notes or an intercompany subordination agreement, and
(c) any payment by any Subsidiary of any Borrower under any
guaranty of the applicable Obligations shall result in a PRO
TANTO reduction of the amount of any intercompany Indebtedness
owed by such Subsidiary to such Borrower or to any of its
Subsidiaries for whose benefit such payment is made; PROVIDED
FURTHER that the aggregate amount of all such intercompany
Indebtedness owing at any time from the Foreign Subsidiaries of
Company to Company or the Domestic Subsidiaries of Company shall
not exceed $100,000,000 outstanding at any time;
(iv) Company and its Subsidiaries, as applicable, may remain
liable with respect to Indebtedness described in SCHEDULE 7.1
annexed hereto;
(v) Company may become and remain liable with respect to
repurchase obligations not in excess of $4,000,000 and indemnity
obligations to BTCC as set forth in the Loan Portfolio Purchase
Agreement and the Assumed Guaranty;
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(vi) Company may become and remain liable with respect to
Indebtedness evidenced by the Senior Subordinated Notes in the
original aggregate principal amount of $225,000,000;
(vii) Westmont Sub may become and remain liable with
respect to mortgage Indebtedness in the original principal amount
of $30,000,000 secured by the Westmont Excluded Collateral, and
Sayama Sub may become and remain liable with respect to mortgage
Indebtedness in the original principal amount of YEN3 billion
secured by the Sayama Excluded Collateral;
(viii) Company may become and remain liable with respect
to Indebtedness evidenced by industrial development revenue bonds
or other similar tax-exempt or government subsidized debt
Securities in an aggregate principal amount not to exceed
$5,000,000; PROVIDED that (1) such Indebtedness shall be non-
recourse to Company and its Subsidiaries and for the purpose of
developing, constructing or improving a Facility of Company and
(2) any security interest granted in connection with such
Indebtedness is solely limited to the assets or improvements
being so financed; and
(ix) Company and its Subsidiaries may become and remain
liable with respect to Capital Leases and other Indebtedness in
an aggregate principal amount with respect to such Capital
Leases, other Indebtedness and any outstanding Contingent
Obligations permitted pursuant to subsection 7.4(xii) which does
not exceed $7,500,000 at any time outstanding.
7.2 LIENS AND RELATED MATTERS.
A. PROHIBITION ON LIENS. No Borrower shall, nor shall any
Borrower permit any of its Subsidiaries to, directly or indirectly,
create, incur, assume or permit to exist any Lien on or with respect
to any property or asset of any kind (including any document or
instrument in respect of goods or accounts receivable) of such
Borrower or any of its Subsidiaries, whether now owned or hereafter
acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or
other similar notice of any Lien with respect to any such property,
asset, income or profits under the Uniform Commercial Code of any
State or under any similar recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the applicable Collateral
Documents;
(iii) Liens described in SCHEDULE 7.2 annexed hereto;
(iv) Liens securing the mortgage Indebtedness permitted
under subsection 7.1(vii);
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(v) Liens securing the Indebtedness permitted under
subsection 7.1(viii); PROVIDED, HOWEVER, that such Liens shall be
solely limited to the assets or improvements being financed with
such Indebtedness; and
(vi) Liens securing Capital Leases and other Indebtedness
permitted under subsection 7.1(ix).
B. EQUITABLE LIEN IN FAVOR OF LENDERS. If any Borrower or any
of its Subsidiaries shall create or assume any Lien upon any of its
properties or assets, whether now owned or hereafter acquired, other
than Liens excepted by the provisions of subsection 7.2A, it shall
make or cause to be made effective a provision whereby the Obligations
will be secured by such Lien equally and ratably with any and all
other Indebtedness secured thereby as long as any such Indebtedness
shall be so secured; PROVIDED that, notwithstanding the foregoing,
this covenant shall not be construed as a consent by Requisite Lenders
to the creation or assumption of any such Lien not permitted by the
provisions of subsection 7.2A.
C. NO FURTHER NEGATIVE PLEDGES. Except with respect to
specific property encumbered to secure payment of particular
Indebtedness or to be sold pursuant to an executed agreement with
respect to an Asset Sale, none of the Borrowers or any of their
respective Subsidiaries shall enter into any agreement (other than the
Senior Subordinated Note Indenture) prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether
now owned or hereafter acquired; PROVIDED that the mortgage
Indebtedness of each of Westmont Sub and Sayama Sub permitted under
subsection 7.1(vii) may prohibit the creation or assumption of Liens
upon the Westmont Excluded Collateral and the Sayama Excluded
Collateral, respectively.
D. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO BORROWERS OR
OTHER SUBSIDIARIES. Except as provided herein, no Borrower will, nor
will any Borrower permit any of its Subsidiaries to, create or
otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any such
Subsidiary to (i) pay dividends or make any other distributions on any
of such Subsidiary's capital stock owned by such Borrower or any other
Subsidiary of such Borrower, (ii) repay or prepay any Indebtedness
owed by such Subsidiary to such Borrower or any other Subsidiary of
such Borrower, (iii) make loans or advances to such Borrower or any
other Subsidiary of such Borrower, or (iv) transfer any of its
property or assets to such Borrower or any other Subsidiary of such
Borrower; PROVIDED that the mortgage Indebtedness of each of Westmont
Sub and Sayama Sub permitted under subsection 7.1(vii) may create or
otherwise cause or suffer to exist or become effective encumbrances or
restrictions on such Subsidiary's ability to pay dividends on its
capital stock.
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7.3 INVESTMENTS; JOINT VENTURES.
No Borrower shall, nor shall any Borrower permit any of its
Subsidiaries to, directly or indirectly, make or own any Investment in
any Person, including any Joint Venture, except:
(i) Company and its Subsidiaries may make and own
Investments in Cash Equivalents;
(ii) Company and its Subsidiaries may (1) continue to own
the Investments owned by them as of the Effective Date in
Borrowers; (2) make and own Investments in (a) Westmont Sub, (b)
Sayama Sub, (c) ▇▇▇▇ Graphics Systems Australasia PTY Limited, a
corporation organized under the laws of Australia and a wholly-
owned Subsidiary of Company, (d) ▇▇▇▇ Services Corporation, a
corporation organized under the laws of Delaware and a wholly-
owned Subsidiary of Company, and (e) ▇▇▇▇ International, Inc., a
corporation organized under the laws of Delaware and a wholly-
owned Subsidiary of Company; PROVIDED, HOWEVER, that in each case
the provisions of subsection 6.8 are complied with prior to or at
the time of such Investment and that the aggregate amount of all
such Investments pursuant to this clause (2) in excess of the
above-described contributions of property and other assets does
not exceed $5,000,000 in the aggregate; and (3) make additional
Investments in such wholly-owned Subsidiaries or any other Person
or Persons that after giving effect thereto are or will be a
wholly-owned Subsidiary of the Company or any of its other
Subsidiaries of up to $5,000,000 in the aggregate for all such
additional Investments;
(iii) in addition to the amounts permitted pursuant to
subsection 7.3(ii), Company and its Subsidiaries may make
intercompany loans to the extent permitted under subsection
7.1(iii);
(iv) Company and its Subsidiaries may continue to own the
Investments owned by them and described in SCHEDULE 7.3 annexed
hereto;
(v) Company may continue to own its Joint Venture interests
in Shanghai ▇▇▇▇ Graphic Systems Co., Ltd. pursuant to the terms
of its joint venture contract with Shanghai Printing & Packaging
Machinery Co., as in effect on the Closing Date, and may make
additional Investments in such Joint Venture of up to $7,500,000
in the aggregate;
(vi) Company may continue to own the Investments owned by it
in DALiM GmbH, a German corporation, as of the Effective Date,
and may make additional Investments in DALiM GmbH of up to
$2,500,000 in the aggregate; PROVIDED that such additional
Investments shall concurrently increase Company's equity interest
in DALiM to 20% or more;
129
(vii) Company and its Subsidiaries may make and maintain
Investments in non-cash proceeds of Asset Sales in accordance
with the provisions of subsection 7.7(v);
(viii) Company and its Subsidiaries may make and maintain
investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and
suppliers, in each case arising in the ordinary course of
business;
(ix) Company and its Subsidiaries may make and maintain
Investments with respect to Secured Customer Financing
Arrangements; PROVIDED that the aggregate outstanding amount of
such Secured Customer Financing Arrangements made after the
Closing Date PLUS, without duplication, the aggregate outstanding
amount of Contingent Obligations with respect to Customer
Financing Note Guaranties provided after the Closing Date under
subsection 7.4(ix)(b) does not exceed $30,000,000 at any time;
(x) Company and its Subsidiaries may make Consolidated
Capital Expenditures permitted by subsection 7.8; and
(xi) Company and its Subsidiaries may make and own other
Investments in an aggregate amount not to exceed at any time
$1,000,000.
7.4 CONTINGENT OBLIGATIONS.
No Borrower shall nor shall any Borrower permit any of its
Subsidiaries to, directly or indirectly, create or become or remain
liable with respect to any Contingent Obligation, except:
(i) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations arising under their
respective Guaranties, including Contingent Obligations
thereunder with respect to Interest Rate Agreements and Currency
Agreements entered into with any Lender or any of its Affiliates;
(ii) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations in respect of
Letters of Credit, including without limitation the Letters of
Credit listed on SCHEDULE 7.4 annexed hereto;
(iii) Company and its Subsidiaries may become and remain
liable with respect to unsecured Contingent Obligations in
respect of Additional Letters of Credit in an aggregate stated or
face amount, when valued in Dollar Equivalents, not to exceed
$10,000,000 at any time; PROVIDED that for purposes of
calculating such aggregate stated or face amount of all
Additional Letters of Credit, it may be assumed that the full
aggregate stated or face amount of each Additional Letter of
Credit is outstanding for the full period of such Additional
130
Letter of Credit until Administrative Agent receives evidence
pursuant to subsection 6.1(xix) of any reduction or termination
of such Additional Letter of Credit;
(iv) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations in respect of
customary indemnification and purchase price adjustment
obligations incurred in connection with Asset Sales or other
sales of assets;
(v) Company may become and remain liable with respect to
the Assumed Guaranty relating to the RGS Customer Notes;
(vi) Company may become and remain liable with respect to
Contingent Obligations in respect of any Indebtedness of any of
Company's Subsidiaries permitted by subsection 7.1;
(vii) Company and its Subsidiaries, as applicable, may
remain liable with respect to Contingent Obligations described in
SCHEDULE 7.4 annexed hereto;
(viii) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations under Hedge
Agreements entered into in the ordinary course of business;
(ix) Company and its Subsidiaries (a) may become and remain
liable with respect to Customer Financing Note Guaranties
existing as of the Closing Date in an aggregate amount not to
exceed $7,000,000; (b) may become and remain liable with respect
to Customer Financing Note Guaranties provided after the Closing
Date which Customer Financing Note Guaranties are not supported
by Letters of Credit; PROVIDED that the aggregate outstanding
amount of such Customer Financing Note Guaranties under this
clause (b) PLUS, without duplication, the aggregate outstanding
amount of Investments with respect to Secured Customer Financing
Arrangements made after the Closing Date in accordance with
subsection 7.3(ix) does not exceed $30,000,000 at any time; and
(c) may become and remain liable with respect to Customer
Financing Note Guaranties supported by Letters of Credit;
PROVIDED that the aggregate amount of all Customer Financing Note
Guaranties supported by Letters of Credit under this clause (c)
shall not exceed $20,000,000 outstanding at any time;
(x) Company may become and remain liable with respect to
Contingent Obligations in respect of performance guarantees
entered into in favor of a customer of ▇▇▇▇ UK, ▇▇▇▇ France or
▇▇▇▇ Japan, in the ordinary course of business and consistent
with past practice, whereby Company guarantees the performance
obligations of ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan in connection
with the manufacture and delivery of any printing press and/or
other machinery or equipment, including without limitation the
repayment of any downpayment or other customer advance amount;
131
(xi) Company may become and remain liable with respect to
Contingent Obligations in respect of performance bonds in favor
of a customer (or designee of such customer) of ▇▇▇▇ UK, ▇▇▇▇
France or ▇▇▇▇ Japan, in the ordinary course of business and
consistent with past practice, in an aggregate amount not to
exceed $10,000,000; and
(xii) Company and its Subsidiaries may become and remain
liable with respect to other Contingent Obligations; PROVIDED
that the maximum aggregate liability, contingent or otherwise, of
Company and its Subsidiaries in respect of all such other
Contingent Obligations shall at no time exceed $1,000,000.
7.5 RESTRICTED JUNIOR PAYMENTS.
No Borrower shall nor shall any Borrower permit any of its
Subsidiaries to, directly or indirectly, declare, order, pay, make or
set apart any sum for any Restricted Junior Payment; PROVIDED that
(i) Company may make payments of regularly scheduled interest in
respect of the Senior Subordinated Notes, in accordance with the terms
of and to the extent required by, and subject to the subordination
provisions contained in, the Senior Subordinated Note Indenture; (ii)
so long as no Event of Default or Potential Event of Default shall
have occurred and be continuing or shall be caused thereby, Company
may (a) make repurchases of Senior Subordinated Notes in an aggregate
amount not to exceed $25,000,000 (including principal, interest,
premiums, fees and other expenses) and (b) so long as the Consolidated
Leverage Ratio, after giving PRO FORMA effect to such repurchases and
any Indebtedness incurred in connection therewith, does not exceed
3.00:1.00, repurchase an additional $25,000,000 (including principal,
interest, premiums, fees and other expenses) of such Senior
Subordinated Notes; and (iii) so long as no Event of Default or
Potential Event of Default shall have occurred and be continuing or
shall be caused thereby, Company may make Restricted Junior Payments
to Holdings (X) in an aggregate amount not to exceed $500,000 in any
Fiscal Year in order to permit Holdings to pay general administrative
costs and expenses, (Y) in an aggregate amount not to exceed in the
aggregate $1,000,000 in any Fiscal Year (PROVIDED that the unused
portion of such $1,000,000 may be carried forward to the succeeding
Fiscal Year, but only up to an aggregate amount not to exceed
$2,000,000 of such Restricted Junior Payments for any given Fiscal
Year) or $5,000,000 during the term of this Agreement PLUS the net
cash proceeds of any issuance of Holdings Common Stock to Management
Investors and other officers and employees of Company and its
Subsidiaries in accordance with the terms of the Stockholders
Agreement and the Management Investment Incentive Plan, which net cash
proceeds have been contributed to Company, and (Z) in an amount
necessary to permit Holdings to discharge the consolidated tax
liabilities of Holdings, Company and Company's Subsidiaries, in each
case so long as Holdings applies the amount of any such Restricted
Junior Payment for such purpose.
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7.6 FINANCIAL COVENANTS.
A. MINIMUM FIXED CHARGE RATIO. Company shall not permit the
ratio of (i) Consolidated Adjusted EBITDA to (ii) Consolidated Fixed
Charges for any four-Fiscal Quarter period ending during any of the
periods set forth below to be less than the correlative ratio
indicated:
PERIOD MINIMUM FIXED CHARGE RATIO
1st Fiscal Quarter, 1998 1.20:1.00
2nd Fiscal Quarter, 1998 1.20:1.00
3rd Fiscal Quarter, 1998 1.20:1.00
4th Fiscal Quarter, 1998 1.75:1.00
1st Fiscal Quarter, 1999 1.75:1.00
2nd Fiscal Quarter, 1999 1.75:1.00
3rd Fiscal Quarter, 1999 1.75:1.00
4th Fiscal Quarter, 1999 1.75:1.00
1st Fiscal Quarter, 2000 1.80:1.00
2nd Fiscal Quarter, 2000 1.80:1.00
3rd Fiscal Quarter, 2000 1.80:1.00
4th Fiscal Quarter, 2000 1.80:1.00
1st Fiscal Quarter, 2001 1.85:1.00
2nd Fiscal Quarter, 2001 1.85:1.00
3rd Fiscal Quarter, 2001 1.85:1.00
4th Fiscal Quarter, 2001 1.90:1.00
1st Fiscal Quarter, 2002 2.00:1.00
2nd Fiscal Quarter, 2002 2.00:1.00
3rd Fiscal Quarter, 2002 2.00:1.00
4th Fiscal Quarter, 2002 2.00:1.00
1st Fiscal Quarter, 2003 2.00:1.00
2nd Fiscal Quarter, 2003 2.00:1.00
B. MAXIMUM CONSOLIDATED LEVERAGE RATIO. Company shall not
permit the ratio of (i) Consolidated Total Debt as of the last day of
any Fiscal Quarter occurring during any of the periods set forth below
to (ii) Consolidated Adjusted EBITDA for the four-Fiscal Quarter
period ending on such last day to exceed the correlative ratio
indicated:
MAXIMUM CONSOLIDATED
PERIOD LEVERAGE RATIO
1st Fiscal Quarter, 1998 5.25:1.00
2nd Fiscal Quarter, 1998 5.25:1.00
3rd Fiscal Quarter, 1998 4.75:1.00
4th Fiscal Quarter, 1998 4.75:1.00
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MAXIMUM CONSOLIDATED
PERIOD LEVERAGE RATIO
1st Fiscal Quarter, 1999 4.50:1.00
2nd Fiscal Quarter, 1999 4.50:1.00
3rd Fiscal Quarter, 1999 4.50:1.00
4th Fiscal Quarter, 1999 4.25:1.00
1st Fiscal Quarter, 2000 3.75:1.00
2nd Fiscal Quarter, 2000 3.75:1.00
3rd Fiscal Quarter, 2000 3.75:1.00
4th Fiscal Quarter, 2000 3.50:1.00
1st Fiscal Quarter, 2001 3.25:1.00
2nd Fiscal Quarter, 2001 3.00:1.00
3rd Fiscal Quarter, 2001 3.00:1.00
4th Fiscal Quarter, 2001 3.00:1.00
1st Fiscal Quarter, 2002 3.00:1.00
2nd Fiscal Quarter, 2002 3.00:1.00
3rd Fiscal Quarter, 2002 3.00:1.00
4th Fiscal Quarter, 2002 3.00:1.00
1st Fiscal Quarter, 2003 3.00:1.00
2nd Fiscal Quarter, 2003 3.00:1.00
C. MINIMUM CONSOLIDATED ADJUSTED EBITDA. Company shall not
permit Consolidated Adjusted EBITDA for any four-Fiscal Quarter period
ending as of the last day of any Fiscal Quarter occurring during any
of the periods set forth below to be less than the correlative amount
indicated:
MINIMUM CONSOLIDATED
PERIOD ADJUSTED EBITDA
1st Fiscal Quarter, 1998 $67,500,000
2nd Fiscal Quarter, 1998 $68,000,000
3rd Fiscal Quarter, 1998 $72,000,000
4th Fiscal Quarter, 1998 $73,500,000
1st Fiscal Quarter, 1999 $74,000,000
2nd Fiscal Quarter, 1999 $75,000,000
3rd Fiscal Quarter, 1999 $75,000,000
4th Fiscal Quarter, 1999 $75,000,000
1st Fiscal Quarter, 2000 $80,000,000
2nd Fiscal Quarter, 2000 $80,000,000
3rd Fiscal Quarter, 2000 $80,000,000
4th Fiscal Quarter, 2000 $80,000,000
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MINIMUM CONSOLIDATED
PERIOD ADJUSTED EBITDA
1st Fiscal Quarter, 2001 $80,000,000
2nd Fiscal Quarter, 2001 $80,000,000
3rd Fiscal Quarter, 2001 $80,000,000
4th Fiscal Quarter, 2001 $80,000,000
1st Fiscal Quarter, 2002 $80,000,000
2nd Fiscal Quarter, 2002 $80,000,000
3rd Fiscal Quarter, 2002 $80,000,000
4th Fiscal Quarter, 2002 $80,000,000
1st Fiscal Quarter, 2003 $80,000,000
2nd Fiscal Quarter, 2003 $80,000,000
D. MINIMUM CONSOLIDATED NET WORTH. Company shall not permit
Consolidated Net Worth at any time during any of the periods set forth
below to be less than the correlative amount indicated:
MINIMUM CONSOLIDATED
PERIOD NET WORTH
1st Fiscal Quarter, 1998 $ 94,000,000
2nd Fiscal Quarter, 1998 $ 94,000,000
3rd Fiscal Quarter, 1998 $ 99,000,000
4th Fiscal Quarter, 1998 $104,000,000
1st Fiscal Quarter, 1999 $104,000,000
2nd Fiscal Quarter, 1999 $105,000,000
3rd Fiscal Quarter, 1999 $105,000,000
4th Fiscal Quarter, 1999 $106,000,000
1st Fiscal Quarter, 2000 $108,000,000
2nd Fiscal Quarter, 2000 $111,000,000
3rd Fiscal Quarter, 2000 $115,000,000
4th Fiscal Quarter, 2000 $121,000,000
1st Fiscal Quarter, 2001 $122,000,000
2nd Fiscal Quarter, 2001 $125,000,000
3rd Fiscal Quarter, 2001 $129,000,000
4th Fiscal Quarter, 2001 $135,000,000
1st Fiscal Quarter, 2002 $137,000,000
2nd Fiscal Quarter, 2002 $139,000,000
3rd Fiscal Quarter, 2002 $147,000,000
4th Fiscal Quarter, 2002 $159,000,000
1st Fiscal Quarter, 2003 $159,000,000
2nd Fiscal Quarter, 2003 $159,000,000
135
7.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS.
No Borrower shall nor shall any Borrower permit any of its
Subsidiaries to, alter the corporate, capital or legal structure of
such Borrower or any of its Subsidiaries, or enter into any
transaction of merger or consolidation, or liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution), or convey,
sell, lease or sub-lease (as lessor or sub-lessor), transfer or
otherwise dispose of, in one transaction or a series of transactions,
all or any part of its business, property or fixed assets, whether now
owned or hereafter acquired, or acquire by purchase or otherwise all
or substantially all the business, property or fixed assets of, or
stock or other evidence of beneficial ownership of, any Person or any
division or line of business of any Person, except:
(i) any Subsidiary of Company may be merged with or into
Company or any wholly-owned Subsidiary of Company, or may be
liquidated, wound up or dissolved, or all or any part of its
business, property or assets may be conveyed, sold, leased,
transferred or otherwise disposed of, in one transaction or a
series of transactions, to Company or any wholly-owned Subsidiary
of Company; PROVIDED that, in the case of such a merger, Company
or such wholly-owned Subsidiary shall be the continuing or
surviving corporation and if any such transaction involves a
Subsidiary Guarantor, the surviving corporation shall be the
Company or such Subsidiary Guarantor;
(ii) Company and its Subsidiaries may make Consolidated
Capital Expenditures permitted by subsection 7.8;
(iii) Company may make Asset Sales of (a) Secured
Customer Financing Arrangements and (b) accounts receivable of
Company, together having a fair market value not in excess of
$30,000,000 for any given Fiscal Year; PROVIDED that (1) such
Asset Sale shall be non-recourse to Company and its Subsidiaries,
(2) the consideration received for such assets shall be in an
amount at least equal to the fair market value thereof and (3)
after giving PRO FORMA effect to such Asset Sale the aggregate
net accounts receivable for Company is not less than
$150,000,000; PROVIDED FURTHER that up to $30,000,000 of Net
Asset Sale Proceeds received by Company from Asset Sales of
Secured Customer Financing Arrangements and/or accounts
receivable of Company permitted under this subsection 7.7(iii)
shall be excluded from the requirements of this subsection
2.4A(iii)(a) so long as Company is in compliance with clause (3)
of the immediately preceding proviso;
(iv) Company and its Subsidiaries may sell or otherwise
dispose of assets in transactions that do not constitute Asset
Sales (PROVIDED that the consideration received for such assets
shall be in an amount at least equal to the fair market value
thereof) and make Investments pursuant to subsection 7.3; and
136
(v) subject to subsection 7.11, Company and its
Subsidiaries may make Asset Sales of (a) the apartment buildings
located in Sayama, Japan, and (b) other assets having a fair
market value not in excess of $5,000,000 for any given Fiscal
Year and $10,000,000 during the term of this Agreement; PROVIDED
that (x) the consideration received for such assets shall be in
an amount at least equal to the fair market value thereof;
(y) the consideration received therefor shall be at least 85% in
cash and the balance of any consideration not received as cash
shall be represented by promissory notes which shall be pledged
to Administrative Agent pursuant to the applicable Collateral
Documents; and (z) the Net Asset Sale Proceeds of such Asset
Sales shall be applied as mandatory prepayments as required by
subsection 2.4A(iii)(a) in an amount equal to such Net Asset Sale
Proceeds; PROVIDED, HOWEVER, that up to $10,000,000 of Net Asset
Proceeds of such Asset Sales received by Borrowers and their
respective Subsidiaries shall be used to prepay Loans, but shall
not be required to be used to permanently reduce Revolving Loan
Commitments pursuant to subsection 2.4A(iii)(a), so long as such
proceeds are reinvested by the applicable Borrower or Subsidiary
within 180 days after receipt of such proceeds in similar assets
of similar fair market value.
7.8 CONSOLIDATED CAPITAL EXPENDITURES.
No Borrower shall nor shall any Borrower permit any of its
Subsidiaries to make or incur Consolidated Capital Expenditures, in
any Fiscal Year indicated below, in an aggregate amount in excess of
the corresponding amount (the "MAXIMUM CONSOLIDATED CAPITAL
EXPENDITURES AMOUNT") set forth below opposite such Fiscal Year:
MAXIMUM CONSOLIDATED
FISCAL YEAR CAPITAL EXPENDITURES
Fiscal Year 1998 $25,000,000
Fiscal Year 1999 and each
Fiscal Year thereafter $20,000,000
; PROVIDED that the Maximum Consolidated Capital Expenditures Amount
for any Fiscal Year shall be increased by an amount equal to the
excess, if any, (but in no event more than $5,000,000) of the Maximum
Consolidated Capital Expenditures Amount for the previous Fiscal Year
over the actual amount of Consolidated Capital Expenditures for such
previous Fiscal Year.
7.9 SALES AND LEASE-BACKS.
No Borrower shall nor shall any Borrower permit any of its
Subsidiaries to, directly or indirectly, become or remain liable as
lessee or as a guarantor or other surety with respect to any lease,
whether an Operating Lease or a Capital Lease, of any property
(whether real, personal or mixed), whether now owned or hereafter
acquired, (i) which such Borrower or any of its Subsidiaries has sold
137
or transferred or is to sell or transfer to any other Person (other
than such Borrower or any of its Subsidiaries) or (ii) which such
Borrower or any of its Subsidiaries intends to use for substantially
the same purpose as any other property which has been or is to be sold
or transferred by such Borrower or any of its Subsidiaries to any
Person (other than such Borrower or any of its Subsidiaries) in
connection with such lease.
7.10 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
No Borrower shall nor shall any Borrower permit any of its
Subsidiaries to, directly or indirectly, enter into or permit to exist
any transaction (including, without limitation, the purchase, sale,
lease or exchange of any property or the rendering of any service)
with any holder of 5% or more of any class of equity Securities of
Holdings or Company or with any Affiliate of Holdings or Company or of
any such holder, on terms that are less favorable to Holdings or
Company or that Subsidiary, as the case may be, than those that might
be obtained at the time from Persons who are not such a holder or
Affiliate; PROVIDED that the foregoing restriction shall not apply to
(i) any transaction between Company and any of its wholly-owned
Subsidiaries or between any of its wholly-owned Subsidiaries,
(ii) reasonable and customary fees paid to members of the Boards of
Directors of Company and its Subsidiaries, (iii) payment of
Transaction Costs and payments permitted under subsection 7.5, (iv)
reasonable financial advisory or structuring fees paid to Stonington
for services rendered by Stonington and reimbursement of out-of-pocket
expenses, and (v) arms-length transactions in the ordinary course of
business with other companies managed by Stonington.
7.11 DISPOSAL OF SUBSIDIARY STOCK.
Except pursuant to the Collateral Documents and except for
any sale of 100% of the capital stock or other equity Securities of
any of its Subsidiaries in compliance with the provisions of
subsection 7.7(i) or (v), no Borrower shall:
(i) directly or indirectly sell, assign, pledge or
otherwise encumber or dispose of any shares of capital stock or
other equity Securities of any of its Subsidiaries, except to
qualify directors if required by applicable law; or
(ii) permit any of its Subsidiaries directly or indirectly
to sell, assign, pledge or otherwise encumber or dispose of any
shares of capital stock or other equity Securities of any of its
Subsidiaries (including such Subsidiary), except to Company,
another Subsidiary of Company, or to qualify directors if
required by applicable law.
7.12 CONDUCT OF BUSINESS; LIMITATIONS ON SUBSIDIARIES.
A. From and after the Effective Date, no Borrower shall nor
shall any Borrower permit any of its Subsidiaries to, engage in any
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business other than (i) the businesses engaged in by such Borrower and
its Subsidiaries on the Effective Date and similar or related
businesses and (ii) such other lines of business as may be consented
to by Requisite Lenders.
B. Neither Holdings nor any of its Subsidiaries shall incur any
Indebtedness, Contingent Obligations or other obligations or
liabilities on behalf of, or with respect to, an Inactive Subsidiary.
7.13 AMENDMENTS OF CERTAIN DOCUMENTS; DESIGNATION OF DESIGNATED SENIOR
INDEBTEDNESS.
A. AMENDMENTS OR WAIVERS OF CERTAIN RELATED AGREEMENTS. No
Borrower will, nor will any Borrower permit any of its Subsidiaries
to, agree to any material amendment to, or waive any of its material
rights under, or make any payment consistent with such an amendment
of, or change to, any Related Agreement (other than any Related
Agreement evidencing or governing any Subordinated Indebtedness, the
Assumed Guaranty and the RGS Customer Notes related to the Assumed
Guaranty) after the Effective Date without in each case obtaining the
prior written consent of Requisite Lenders to such amendment or
waiver.
B. AMENDMENTS OF DOCUMENTS RELATING TO SUBORDINATED
INDEBTEDNESS, THE ASSUMED GUARANTY AND THE RGS CUSTOMER NOTES RELATED
TO THE ASSUMED GUARANTY. Except as may be permitted by subsection
7.5, no Borrower shall nor shall any Borrower permit any of its
Subsidiaries to, amend or otherwise change the terms of any
Subordinated Indebtedness, the Assumed Guaranty and the RGS Customer
Notes related to the Assumed Guaranty or any agreement related thereto
or any guaranty entered into by any Loan Party in connection
therewith, or make any payment consistent with an amendment thereof or
change thereto, if the effect of such amendment or change is to
increase the interest rate on such Subordinated Indebtedness, such
Assumed Guaranty or such RGS Customer Notes, change any dates upon
which payments of principal or interest are due thereon, change any of
the covenants with respect thereto in a manner which is more
restrictive to such Borrower or any of its Subsidiaries, change any
event of default or condition to an event of default with respect
thereto in a manner which is more restrictive to such Borrower, change
the redemption, prepayment or defeasance provisions thereof, change
the subordination provisions thereof (or of any guaranty thereof), or
change any collateral therefor (other than to release such
collateral), or if the effect of such amendment or change, together
with all other amendments or changes made, is to increase the
obligations of the obligor thereunder or to confer any additional
rights on the holders of such Subordinated Indebtedness, such Assumed
Guaranty or such RGS Customer Notes (or a trustee or other
representative on their behalf) which would be adverse to any Loan
Party or Lenders.
C. DESIGNATION OF "DESIGNATED SENIOR DEBT". No Borrower shall
nor shall any Borrower permit any of its Subsidiaries to, designate
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any Indebtedness as "Designated Senior Debt" (as defined in the Senior
Subordinated Note Indenture) for purposes of the Senior Subordinated
Note Indenture without the prior written consent of Requisite Lenders.
7.14 FISCAL YEAR.
No Borrower shall change its Fiscal Year-end from
September 30 without giving 60 days notice to Administrative Agent and
Lenders of such change.
7.15 FOREIGN UNFUNDED PENSION PLANS.
No Borrower shall, nor shall any Borrower permit any of its
Subsidiaries to, adopt or amend any Foreign Unfunded Pension Plan if
such adoption or amendment could reasonably be expected to result in a
Material Adverse Effect.
SECTION 8. EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF
DEFAULT") shall occur:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by any Borrower to pay any installment of principal
of any Loan when due, whether at stated maturity, by acceleration, by
notice of voluntary prepayment, by mandatory prepayment or otherwise;
failure by any Borrower to pay when due any amount payable to an
Issuing Lender in reimbursement of any drawing under a Letter of
Credit; or failure by any Borrower to pay interest on any Loan or any
fee or any other amount due under this Agreement within five days
after the date due; or
8.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of any Borrower or any of its Subsidiaries to
pay when due any principal of or interest on one or more items of
Indebtedness (other than Indebtedness referred to in subsection
8.1) or Contingent Obligations in an aggregate principal amount
of $5,000,000 or more, in each case beyond the end of any grace
period provided therefor; or (ii) breach or default by any
Borrower or any of its Subsidiaries with respect to any other
material term of (a) one or more items of Indebtedness or
Contingent Obligations in the aggregate principal amounts
referred to in clause (i) above or (b) any loan agreement,
mortgage, indenture or other agreement relating to such item(s)
of Indebtedness or Contingent Obligation(s), if the effect of
such breach or default is to cause, or to permit the holder or
holders of that Indebtedness or Contingent Obligation(s) (or a
trustee on behalf of such holder or holders) to cause, that
Indebtedness or Contingent Obligation(s) to become or be declared
due and payable prior to its stated maturity or the stated
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maturity of any underlying obligation, as the case may be (upon
the giving or receiving of notice, lapse of time, both, or
otherwise); or
8.3 BREACH OF CERTAIN COVENANTS.
Failure of any Borrower to perform or comply with any term
or condition contained in subsection 2.5 or 6.2 or Section 7 of this
Agreement; or
8.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other
statement made by any Borrower or any of its Subsidiaries in any Loan
Document or in any statement or certificate at any time given by any
Borrower or any of its Subsidiaries in writing pursuant hereto or
thereto or in connection herewith or therewith shall be false in any
material respect on the date as of which made; or
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Any Borrower or any of its Subsidiaries shall default in the
performance of or compliance with any term contained in this Agreement
or any of the other Loan Documents, other than any such term referred
to in any other subsection of this Section 8, and such default shall
not have been remedied or waived within 30 days after receipt by any
Borrower of notice from Administrative Agent or any Lender of such
default; or
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter
a decree or order for relief in respect of Holdings, any Borrower
or any of its Material Subsidiaries in an involuntary case under
the Bankruptcy Code which decree or order is not stayed; or
(ii) an involuntary case shall be commenced against Holdings, any
Borrower or any of its Material Subsidiaries under the Bankruptcy
Code; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar
powers over Holdings, any Borrower or any of its Material
Subsidiaries, or over all or a substantial part of its property,
shall have been entered; or there shall have occurred the
involuntary appointment of an interim receiver, trustee or other
custodian of Holdings, any Borrower or any of its Material
Subsidiaries for all or a substantial part of its property; or a
warrant of attachment, execution or similar process shall have
been issued against any substantial part of the property of
Holdings, any Borrower or any of its Material Subsidiaries, and
any such event described in this clause (ii) shall continue for
60 days unless dismissed, bonded or discharged; or (iii) with
respect to ▇▇▇▇ France: (a) ▇▇▇▇ France ceases or threatens or
announces an intention to cease or suspend payment of its debts
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whether pursuant to Article 3 of law No. 85-89 dated 25 January
1985 or otherwise, (b) ▇▇▇▇ France becomes insolvent or has any
moratorium declared in respect of any of its indebtedness, (c)
▇▇▇▇ France applies for the appointment of a CONCILIATOR pursuant
to law ▇▇. ▇▇-▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇, (▇) ▇▇▇▇ ▇▇▇▇▇▇ applies for
the appointment of a MANDATAIRE ad hoc, (e) ▇▇▇▇ France becomes
the object of a judgment declaring its REDRESSMENT JUDICIARE
(after notice to terminate addressed to the ADMINISTRATEUR
remaining without response for one month or upon the
ADMINISTRATEUR electing to terminate) or LIQUIDATION JUDICIAIRE
pursuant to law No. 85-998 of 25 January 1985 or subject to a
plan for the transfer of the whole or part of its business, or
(f) an administrator, receiver, liquidator or similar officer is
appointed with respect to ▇▇▇▇ France or its assets or any
petition or proceedings for any such appointment is brought or a
resolution for such appointment is passed; or
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Holdings, any Borrower or any of its Material
Subsidiaries shall have an order for relief entered with respect
to it or commence a voluntary case under the Bankruptcy Code, or
shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to
a voluntary case, under any such law, or shall consent to the
appointment of or taking possession by a receiver, trustee or
other custodian for all or a substantial part of its property; or
Holdings, any Borrower or any of its Material Subsidiaries shall
make any assignment for the benefit of creditors; or
(ii) Holdings, any Borrower or any of its Material Subsidiaries
shall be unable, or shall fail generally, or shall admit in
writing its inability, to pay its debts as such debts become due;
or the Board of Directors of Holdings, any Borrower or any of its
Material Subsidiaries (or any committee thereof) shall adopt any
resolution or otherwise authorize any action to approve any of
the actions referred to in clause (i) above or this clause (ii);
or
8.8 JUDGMENTS AND ATTACHMENTS.
Any money judgment, writ or warrant of attachment or similar
process involving (i) in any individual case an amount in excess of
$2,500,000 or (ii) in the aggregate at any time an amount in excess of
$5,000,000 (in either case to the extent not adequately covered by
insurance as to which a solvent and unaffiliated insurance company has
acknowledged coverage) shall be entered or filed against Holdings, any
Borrower or any of its Subsidiaries or any of their respective assets
and shall remain undischarged, unvacated, unbonded or unstayed for a
period of 60 days (or in any event later than five days prior to the
date of any proposed sale thereunder); or
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8.9 DISSOLUTION.
Any order, judgment or decree shall be entered against
Holdings, any Borrower or any of its Subsidiaries decreeing the
dissolution or split up of Holdings, any Borrower or that Subsidiary
and such order shall remain undischarged or unstayed for a period in
excess of 60 days; or
8.10 EMPLOYEE BENEFIT PLANS.
There shall occur one or more ERISA Events which
individually or in the aggregate results in or might reasonably be
expected to result in liability of any Borrower or any of its
Subsidiaries in excess of $2,500,000 during the term of this
Agreement; or there shall exist an excess of aggregated accumulated
benefit obligations, as defined in Statement of Financial Accounting
Standards No. 87, over the aggregate total fair market value for all
Pension Plans (excluding for purposes of such computation (1) each
Pension Plan with respect to which the fair market value of the assets
exceeds such accumulated benefit obligations and (2) each Foreign
Unfunded Pension Plan), which exceeds $12,000,000; or
8.11 CHANGE IN CONTROL.
(i) A change shall occur in the Board of Directors of
Holdings so that a majority of the Board of Directors of Holdings
ceases to consist of the individuals who constituted the Board of
Directors of Holdings on the Effective Date (or individuals whose
election or nomination for election was approved by a vote of at
least 75% of the directors then in office who either were
directors of Holdings on the Effective Date or whose election or
nomination for election previously was so approved); or
(ii) any Person or Group (within the meaning of Rule 13d-3
of the Securities and Exchange Commission), other than Stonington
and its Affiliates, shall become or be the owner, directly or
indirectly, beneficially or of record, of shares representing
more than 30% of the aggregate ordinary voting power represented
by the issued and outstanding capital stock of Holdings on a
fully diluted basis, unless Stonington and its Affiliates shall
own and continue to so own capital stock representing not less
than a majority of such aggregate ordinary voting power; or
(iii) at any time prior to a Public Offering, Stonington
shall cease to own, directly or indirectly, beneficially or of
record, at least 51% of each of the Holdings Common Stock or any
other class of voting capital stock of Holdings; or
(iv) Holdings shall cease to beneficially own and control,
directly or indirectly, 100% of the issued and outstanding shares
of capital stock of Company or shall cease to have the ability to
elect all of the Board of Directors of Company; or
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(v) Company shall cease to beneficially own and control,
directly or indirectly, 100% of the issued and outstanding shares
of capital stock of each of the other Borrowers (other than
directors' qualifying shares) or Company shall cease to have the
ability to elect all of the Board of Directors of each of the
other Borrowers; or
(vi) any "Change of Control" (as defined in the Senior
Subordinated Note Indenture) shall occur; or
8.12 INVALIDITY OF LOAN DOCUMENTS.
Any Guaranty for any reason, other than the satisfaction in
full of all Obligations, ceases to be in full force and effect (other
than in accordance with its terms) or is declared to be null and void;
or any Loan Party denies that it has any further liability, including
without limitation with respect to future advances by Lenders, under
any Loan Document to which it is a party, or gives notice to such
effect; or the validity of any Loan Document shall be contested by any
Governmental Authority (whether by a general suspension of payments or
a moratorium on the payment of any class of indebtedness or
otherwise); or any treaty, law, regulation, communique, decree,
ordinance or policy of any Governmental Authority shall purport to
render any provision of any Loan Document invalid or unenforceable or
shall purport to prevent or materially delay the performance or
observance by any Loan Party of its obligations under any Loan
Documents; or
8.13 FAILURE OF SECURITY.
Any Collateral Document shall, at any time, cease to be in
full force and effect (other than by reason of a release of Collateral
in accordance with the terms thereof) or shall be declared null and
void, or the validity or enforceability thereof shall be contested by
any Loan Party, or Administrative Agent shall not have or shall cease
to have a valid and perfected First Priority security interest in the
Collateral; or
8.14 ACTION RELATING TO CERTAIN SUBORDINATED INDEBTEDNESS.
Any event shall occur which, under the terms of the Senior
Subordinated Note Indenture shall require Holdings or any of its
Subsidiaries to purchase, redeem or otherwise acquire or offer to
purchase, redeem or otherwise acquire all or any portion of any such
Subordinated Indebtedness; or Holdings or any of its Subsidiaries
shall for any other reason purchase, redeem or otherwise acquire or
offer to purchase, redeem or otherwise acquire, or make any other
payments in respect of, all or any portion of any such Subordinated
Indebtedness, except to the extent expressly permitted by subsection
7.5; or
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8.15 AMENDMENT OF CERTAIN DOCUMENTS OF HOLDINGS.
Holdings shall agree to any material amendment to, or waive
any of its material rights under, or otherwise change any material
terms of, any of the Purchase Agreement, the Holdings' Certificate of
Designation, or the Stockholders Agreement, in each case as in effect
on the Effective Date, in a manner adverse to Holdings or any of its
Subsidiaries or to Lenders without the prior written consent of
Administrative Agent and Requisite Lenders; or Holdings or any other
Guarantor shall designate any Indebtedness as "Designated Senior Debt"
(as defined in the Senior Subordinated Note Indenture) for purposes of
the Senior Subordinated Note Indenture or any guaranty relating
thereto without the prior written consent of Requisite Lenders; or
8.16 CONDUCT OF BUSINESS RELATING TO HOLDINGS.
Holdings shall engage in any business other than owning 100%
of the capital stock of Company and entering into and performing its
obligations under and in accordance with the Loan Documents and the
Related Agreements to which it is a party, or shall own any assets
other than (a) the capital stock of Company and (b) Cash and Cash
Equivalents in an amount not to exceed $1,000,000 at any one time for
the purpose of paying general operating expenses of Holdings or shall
incur or permit to exist any Indebtedness or any other liabilities
other than liabilities related to the permitted business of Holdings
and which are not material in amount, either individually or in the
aggregate:
THEN (i) upon the occurrence of any Event of Default described in
subsection 8.6 or 8.7, each of (a) the unpaid principal amount of and
accrued interest on the Loans, (b) an amount equal to the maximum
amount that may at any time be drawn under all Letters of Credit then
outstanding (whether or not any beneficiary under any such Letter of
Credit shall have presented, or shall be entitled at such time to
present, the drafts or other documents or certificates required to
draw under such Letter of Credit), and (c) all other Obligations shall
automatically become immediately due and payable, without presentment,
demand, protest or other requirements of any kind, all of which are
hereby expressly waived by each Borrower, and the obligation of each
Lender to make any Loan, the obligation or right of any Issuing Lender
to issue any Letter of Credit hereunder shall thereupon terminate, and
(ii) upon the occurrence and during the continuation of any other
Event of Default, Administrative Agent shall, upon the written request
or with the written consent of Requisite Lenders, by written notice to
each Borrower, declare all or any portion of the amounts described in
clauses (a) through (c) above to be, and the same shall forthwith
become, immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby
expressly waived by each Borrower, and the obligation of each Lender
to make any Loan, the obligation or right of any Issuing Lender to
issue any Letter of Credit hereunder shall thereupon terminate;
PROVIDED that the foregoing shall not affect in any way the
obligations of Lenders under subsection 3.3C(i).
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Any amounts described in clause (b) above, when received by
Administrative Agent, shall be held by Administrative Agent pursuant
to the terms of the Collateral Account Agreement and shall be applied
as therein provided.
Notwithstanding anything contained in the second preceding
paragraph, if at any time within 60 days after an acceleration of the
Loans pursuant to clause (ii) of such paragraph each Borrower shall
pay all arrears of interest and all payments on account of principal
which shall have become due otherwise than as a result of such
acceleration (with interest on principal and, to the extent permitted
by law, on overdue interest, at the rates specified in this Agreement)
and all Events of Default and Potential Events of Default (other than
non-payment of the principal of and accrued interest on the Loans, in
each case which is due and payable solely by virtue of acceleration)
shall be remedied or waived pursuant to subsection 10.6, then
Requisite Lenders, by written notice to each Borrower, may at their
option rescind and annul such acceleration and its consequences; but
such action shall not affect any subsequent Event of Default or
Potential Event of Default or impair any right consequent thereon.
The provisions of this paragraph are intended merely to bind Lenders
to a decision which may be made at the election of Requisite Lenders
and are not intended to benefit any Borrower and do not grant any
Borrower the right to require Lenders to rescind or annul any
acceleration hereunder, even if the conditions set forth herein are
met.
SECTION 9. AGENTS
9.1 APPOINTMENT.
BTCo and its applicable Affiliates are hereby appointed by
each Lender as the Administrative Agent so appointed hereunder and
under the other Loan Documents, and each such Lender hereby authorizes
Administrative Agent to act as its agent in accordance with the terms
of this Agreement and the other Loan Documents. CSFB is hereby
appointed by each Lender as the Syndication Agent so appointed
hereunder. Administrative Agent agrees to act upon the express
conditions contained in this Agreement and the other Loan Documents,
as applicable. The provisions of this Section 9 are solely for the
benefit of Agents and Lenders and Borrowers shall have no rights as a
third party beneficiary of any of the provisions thereof. In
performing its functions and duties under this Agreement,
Administrative Agent shall act solely as an agent of Lenders and does
not assume and shall not be deemed to have assumed any obligation
towards or relationship of agency or trust with or for any Borrower or
any of its Subsidiaries.
9.2 POWERS AND DUTIES; GENERAL IMMUNITY.
▇. ▇▇▇▇▇▇; DUTIES SPECIFIED. Each Lender irrevocably
authorizes Administrative Agent to take such action on such Lender's
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behalf and to exercise such powers, rights and remedies hereunder and
under the other Loan Documents as are specifically delegated or
granted to Administrative Agent by the terms hereof and thereof,
together with such powers, rights and remedies as are reasonably
incidental thereto. Administrative Agent shall have only those duties
and responsibilities that are expressly specified in this Agreement
and the other Loan Documents. Administrative Agent may exercise such
powers, rights and remedies and perform such duties by or through its
agents or employees. Agents shall not have, by reason of this
Agreement or any of the other Loan Documents, a fiduciary relationship
in respect of any Lender; and nothing in this Agreement or any of the
other Loan Documents, expressed or implied, is intended to or shall be
so construed as to impose upon Agents any obligations in respect of
this Agreement or any of the other Loan Documents except as expressly
set forth herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. Agents shall not be
responsible to any Lender for the execution, effectiveness,
genuineness, validity, enforceability, collectibility or sufficiency
of this Agreement or any other Loan Document or for any
representations, warranties, recitals or statements made herein or
therein or made in any written or oral statements or in any financial
or other statements, instruments, reports or certificates or any other
documents furnished or made by Agents to Lenders or by or on behalf of
any Borrower to Agents or any Lender in connection with the Loan
Documents and the transactions contemplated thereby or for the
financial condition or business affairs of any Borrower or any other
Person liable for the payment of any Obligations, nor shall Agents be
required to ascertain or inquire as to the performance or observance
of any of the terms, conditions, provisions, covenants or agreements
contained in any of the Loan Documents or as to the use of the
proceeds of the Loans or the use of the Letters of Credit or as to the
existence or possible existence of any Event of Default or Potential
Event of Default. Anything contained in this Agreement to the
contrary notwithstanding, Agents shall not have any liability arising
from confirmations of the amount of outstanding Loans or the Letter of
Credit Usage or the component amounts thereof.
C. EXCULPATORY PROVISIONS. Neither Agents nor any of their
officers, directors, employees or agents shall be liable to Lenders
for any action taken or omitted by Agents under or in connection with
any of the Loan Documents except to the extent caused by an Agent's
gross negligence or willful misconduct. If an Agent shall request
instructions from Lenders with respect to any act or action (including
the failure to take an action) in connection with this Agreement or
any of the other Loan Documents, such Agent shall be entitled to
refrain from such act or taking such action unless and until such
Agent shall have received instructions from Requisite Lenders.
Without prejudice to the generality of the foregoing, (i) Agents shall
be entitled to rely, and shall be fully protected in relying, upon any
communication, instrument or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or
persons, and shall be entitled to rely and shall be protected in
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relying on opinions and judgments of attorneys (who may be attorneys
for Borrowers and their Subsidiaries), accountants, experts and other
professional advisors selected by it; and (ii) no Lender shall have
any right of action whatsoever against Agents as a result of Agents
acting or (where so instructed) refraining from acting under this
Agreement or any of the other Loan Documents in accordance with the
instructions of Requisite Lenders. Agents shall be entitled to
refrain from exercising any power, discretion or authority vested in
it under this Agreement or any of the other Loan Documents unless and
until it has obtained the instructions of Requisite Lenders.
D. AGENTS ENTITLED TO ACT AS LENDER. The agency hereby created
shall in no way impair or affect any of the rights and powers of, or
impose any duties or obligations upon, Agents in their individual
capacity as a Lender hereunder. With respect to their participation
in the Loans and the Letters of Credit, Agents shall have the same
rights and powers hereunder as any other Lender and may exercise the
same as though it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" or "Lenders" or any
similar term shall, unless the context clearly otherwise indicates,
include Agents, in each case in its individual capacity. Agents and
each of their respective Affiliates may accept deposits from, lend
money to and generally engage in any kind of banking, trust, financial
advisory or other business with any Borrower or any of its Affiliates
as if it were not performing the duties specified herein, and may
accept fees and other consideration from any Borrower for services in
connection with this Agreement and otherwise without having to account
for the same to Lenders.
9.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR APPRAISAL
OF CREDITWORTHINESS.
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of
each Borrower and its Subsidiaries in connection with the making of
the Loans and the issuance of Letters of Credit hereunder and that it
has made and shall continue to make its own appraisal of the
creditworthiness of each Borrower and its Subsidiaries. Agents shall
not have any duty or responsibility, either initially or on a
continuing basis, to make any such investigation or any such appraisal
on behalf of Lenders or to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession
before the making of the Loans or at any time or times thereafter, and
Agents shall not have any responsibility with respect to the accuracy
of or the completeness of any information provided to Lenders.
9.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally
agrees to indemnify Agents to the extent that Agents shall not have
been reimbursed by Borrowers, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits and
reasonable costs and expenses (including, without limitation,
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reasonable counsel fees and disbursements) or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or
asserted against Agents in exercising its powers, rights and remedies
or performing its duties hereunder or under the other Loan Documents
or otherwise in its capacity as Agent in any way relating to or
arising out of this Agreement or the other Loan Documents; PROVIDED
that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Agent's gross
negligence or willful misconduct. If any indemnity furnished to an
Agent for any purpose shall, in the opinion of such Agent be
insufficient or become impaired, such Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished.
9.5 SUCCESSOR AGENT.
Administrative Agent or Syndication Agent may resign at any
time by giving 30 days' prior written notice thereof to Lenders and
each Borrower, and either Agent may be removed at any time with or
without cause by an instrument or concurrent instruments in writing
delivered to each Borrower and such Agent, as the case may be, and
signed by Requisite Lenders. Upon any such notice of resignation or
any such removal, Requisite Lenders shall have the right, upon five
Business Days' notice to each Borrower, to appoint a successor
Administrative Agent or Syndication Agent. Upon the acceptance of any
appointment as Administrative Agent or Syndication Agent hereunder by
a successor Administrative Agent or Syndication Agent that successor
Administrative Agent or Syndication Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties
of the retiring or removed Administrative Agent or syndication Agent
and the retiring or removed Administrative Agent or Syndication Agent
shall be discharged from its duties and obligations under this
Agreement. After any retiring or removed Administrative Agent's or
Syndication Agent's resignation or removal hereunder as Administrative
Agent or Syndication Agent, the provisions of this Section 9 shall
inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent or Syndication Agent under this
Agreement.
9.6 COLLATERAL DOCUMENTS AND GUARANTIES.
Each Lender hereby further authorizes Administrative Agent
to enter into each Collateral Document as secured party on behalf of
and for the benefit of Lenders and agrees to be bound by the terms of
each Collateral Document; PROVIDED that, subject to any provision of
subsection 10.6 requiring the consent of any additional Lenders,
Administrative Agent shall not enter into or consent to any amendment,
modification, termination or waiver of any provision contained in any
Collateral Document or any Guaranty without the prior consent of
Requisite Lenders, but Administrative Agent may (i) release any Lien
covering any items of Collateral that are the subject of a sale or
other disposition of assets permitted by this Agreement or to which
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Requisite Lenders have consented and (ii) release any Guarantor (other
than any Borrower or Holdings) from its Guaranty if all of the capital
stock of such Guarantor is sold to a Person that is not any Affiliate
of Company pursuant to a sale or other disposition permitted hereunder
or to which Requisite Lenders have consented. Each Lender hereby
further authorizes Administrative Agent to execute and deliver on
behalf of and for the benefit of Lenders the "Reiteration et
Reservation Hypothecaire" to be executed before a "notaire" (notary)
in France. Anything contained in any of the Loan Documents to the
contrary notwithstanding, each Lender agrees that no Lender shall have
any right individually to realize upon any of the Collateral under any
Collateral Document or to enforce any of the Guaranties, it being
understood and agreed that all rights and remedies under the
Collateral Documents and the Guaranties may be exercised solely by
Administrative Agent for the benefit of Lenders in accordance with the
terms thereof.
It is herein specified that the obligations of ▇▇▇▇ France under
this Agreement shall be substituted in lieu of its obligations
resulting from the "Delegation imparfaite" dated October 15, 1996
among Administrative Agent, ▇▇▇▇ France (formerly named Rockwell
Systemes Graphiques Nantes, S.A.) and ▇▇▇▇ UK, and that Administrative
Agent hereby reserves, as provided under Article 1278 of the French
Civil Code, as security for the obligations of ▇▇▇▇ France under this
Agreement, the benefit of the security interest created by the
"Reiteration Delegation et Affectation Hypothecaire" (mortgage
agreement) dated October 15, 1996 (registered with the Mortgage
Registry of Nantes on November 25, 1996, Volume 1696 V, n degree 56)
between Administrative Agent and ▇▇▇▇ France (formerly named Rockwell
Systemes Graphiques Nantes, S.A.).
It is herein specified that obligations of Company under this
Agreement shall be substituted in lieu of its obligations resulting
from the Existing Credit Agreement, and that therefore Administrative
Agent hereby reserves, as provided under Article 1278 of the French
Civil Code, as security for the obligations of Company under this
Agreement, the benefit of the security interest created by the Share
Pledge Agreement dated October 15, 1996 among Company and
Administrative Agent relating to the pledge of ▇▇▇▇ France's shares
by Company.
SECTION 10. MISCELLANEOUS
10.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS AND LETTERS OF CREDIT.
A. GENERAL. Subject to subsection 10.1B, each Lender shall
have the right at any time to (i) sell, assign or transfer to any
Eligible Assignee, or (ii) sell participations to any Person in, all
or any part of its Commitments or any Loan or Loans made by it or its
Letters of Credit or participations therein or any other interest
herein or in any other Obligations owed to it; PROVIDED that no such
sale, assignment, transfer or participation shall, without the consent
of Company, require Company to file a registration statement with the
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Securities and Exchange Commission or apply to qualify such sale,
assignment, transfer or participation under the securities laws of any
state; PROVIDED FURTHER that no such sale, assignment or transfer
described in clause (i) above shall be effective unless and until an
Assignment Agreement effecting such sale, assignment or transfer shall
have been accepted by Administrative Agent and recorded in the
Register as provided in subsection 10.1B(ii); and PROVIDED FURTHER
that no such sale, assignment, transfer or participation of any Letter
of Credit or any participation therein may be made separately from a
sale, assignment, transfer or participation of a corresponding
interest in the Revolving Loan Commitment and the Revolving Loans of
the Lender effecting such sale, assignment, transfer or participation.
Except as otherwise provided in this subsection 10.1, no Lender shall,
as between Borrowers and such Lender, be relieved of any of its
obligations hereunder as a result of any sale, assignment or transfer
of, or any granting of participations in, all or any part of its
Commitments or the Loans, the Letters of Credit or participations
therein, or the other Obligations owed to such Lender.
B. ASSIGNMENTS.
(i) AMOUNTS AND TERMS OF ASSIGNMENTS. Each Commitment,
Loan, Letter of Credit or participation therein, or other
Obligation may (a) be assigned in any amount to another Lender,
or to an Affiliate of the assigning Lender or another Lender,
with the giving of notice to Company and Administrative Agent or
(b) be assigned in an aggregate amount of not less than
$5,000,000 (or such lesser amount as shall constitute the
aggregate amount of the Commitments, Loans, Letters of Credit and
participations therein, and other Obligations of the assigning
Lender) to any other Eligible Assignee with the consent of
Company if there has not occurred and is then continuing an Event
of Default and of Administrative Agent and, in the case of an
assignment of an Indemnity Amount or an Indemnity Participation,
the consent of Administrative Agent (which consent of Company and
Administrative Agent shall not be unreasonably withheld);
PROVIDED that any such assignment by a Lender in accordance with
either clause (a) or (b) above shall effect a pro rata assignment
of each Type of Commitment and each Type of Loan of the assigning
Lender, and in the event that any such assigning Lender is an
Indemnifying Lender, shall also effect a pro rata assignment of
any Indemnity Participation and Indemnity Amount; PROVIDED
FURTHER that notwithstanding the foregoing, in the event that an
Indemnifying Lender is making an assignment to any other Lender
or Eligible Assignee, which Lender or Eligible Assignee desires
to become a UK Lender, a French Lender or a Japanese Lender
hereunder, as the case may be, Administrative Agent shall be
entitled to assign to such other Lender or Eligible Assignee,
without making a pro rata assignment of any other Type of
Commitment or Type of Loan of Administrative Agent, that portion
of its UK Revolving Loan Commitment, its French Revolving Loan
Commitment or its Japanese Revolving Loan Commitment, as the case
may be, which represents the portion of the Indemnity
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Participation and Indemnity Amount being assigned to such other
Lender or Eligible Assignee by such Indemnifying Lender, and upon
such assignment by Administrative Agent, such other Lender or
Eligible Assignee shall become a UK Lender, a French Lender or a
Japanese Lender hereunder, as the case may be. To the extent of
any such assignment in accordance with either clause (a) or (b)
above, the assigning Lender shall be relieved of its obligations
with respect to its Commitments, Loans, Letters of Credit or
participations therein, or other Obligations or the portion
thereof so assigned. The parties to each such assignment shall
execute and deliver to Administrative Agent, for its acceptance
and recording in the Register, an Assignment Agreement, together
with a processing and recordation fee of $3,500, and with such
forms, certificates or other evidence, if any, with respect to
any withholding tax matters as the assignee under such Assignment
Agreement may be required to deliver to Administrative Agent or
the appropriate persons, as the case may be, pursuant to
subsection 2.7B(iii)(a) (as fully set forth in ANNEX A). Upon
such execution, delivery, acceptance and recordation, from and
after the effective date specified in such Assignment Agreement,
(y) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned
to it pursuant to such Assignment Agreement, shall have the
rights and obligations of a Lender hereunder and (z) the
assigning Lender thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such
Assignment Agreement, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of an
Assignment Agreement covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto; PROVIDED that,
anything contained in any of the Loan Documents to the contrary
notwithstanding, if such Lender is the Issuing Lender with
respect to any outstanding Letters of Credit such Lender shall
continue to have all rights and obligations of an Issuing Lender
with respect to such Letters of Credit until the cancellation or
expiration of such Letters of Credit and the reimbursement of any
amounts drawn thereunder). The Commitments hereunder shall be
modified to reflect the Commitment of such assignee and any
remaining Commitment of such assigning Lender and, if any such
assignment occurs after the issuance of the Notes hereunder, the
assigning Lender shall, upon the effectiveness of such assignment
or as promptly thereafter as practicable, surrender its
applicable Notes to Administrative Agent for cancellation, and
thereupon new Notes shall be issued to the assignee and/or to the
assigning Lender, substantially in the form of EXHIBIT IV or
EXHIBIT V annexed hereto, as the case may be, with appropriate
insertions, to reflect the new Commitments and/or outstanding
Loans, as the case may be, of the assignee and/or the assigning
Lender.
(ii) ACCEPTANCE BY ADMINISTRATIVE AGENT; RECORDATION IN
REGISTER. Upon its receipt of an Assignment Agreement executed
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by an assigning Lender and an assignee representing that it is an
Eligible Assignee, together with the processing and recordation
fee referred to in subsection 10.1B(i) and any forms,
certificates or other evidence with respect to any withholding
tax matters that such assignee may be required to deliver to
Administrative Agent or the appropriate persons, as the case may
be, pursuant to subsection 2.7B(iii) (as fully set forth in ANNEX
A), Administrative Agent shall, if Administrative Agent and
Company have consented to the assignment evidenced thereby (in
each case to the extent such consent is required pursuant to
subsection 10.1B(i)), (a) accept such Assignment Agreement by
executing a counterpart thereof as provided therein (which
acceptance shall evidence any required consent of Administrative
Agent to such assignment), (b) record the information contained
therein in the Register, and (c) give prompt notice thereof to
Company. Administrative Agent shall maintain a copy of each
Assignment Agreement delivered to and accepted by it as provided
in this subsection 10.1B(ii).
C. PARTICIPATIONS. The holder of any participation (other than
an Indemnity Participation), other than an Affiliate of the Lender
granting such participation, shall not be entitled to require such
Lender to take or omit to take any action hereunder except action
directly affecting (i) the extension of the scheduled final maturity
date of any Loan allocated to such participation or (ii) a reduction
of the principal amount of or the rate of interest payable on any Loan
allocated to such participation, and all amounts payable by Borrowers
hereunder (including without limitation amounts payable to such Lender
pursuant to subsections 2.6D, 2.7 and 3.6) shall be determined as if
such Lender had not sold such participation. Each Borrower and each
Lender hereby acknowledges and agrees that, solely for purposes of
subsections 10.4 and 10.5, (a) any participation will give rise to a
direct obligation of such Borrower to the participant and (b) the
participant shall be considered to be a "Lender".
D. ASSIGNMENTS TO FEDERAL RESERVE BANKS. In addition to the
assignments and participations permitted under the foregoing
provisions of this subsection 10.1, any Lender may assign and pledge
all or any portion of its Loans, the other Obligations owed to such
Lender, and its Notes to any Federal Reserve Bank as collateral
security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any operating circular issued by such
Federal Reserve Bank; PROVIDED that (i) no Lender shall, as between
any Borrower and such Lender, be relieved of any of its obligations
hereunder as a result of any such assignment and pledge and (ii) in no
event shall such Federal Reserve Bank be considered to be a "Lender"
or be entitled to require the assigning Lender to take or omit to take
any action hereunder.
E. INFORMATION. Each Lender may furnish any information
concerning Company and its Subsidiaries in the possession of that
Lender from time to time to assignees and participants (including
prospective assignees and participants), subject to subsection 10.19.
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10.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, each Borrower agrees to pay promptly (i) all the actual
and reasonable costs and expenses of preparation of the Loan Documents
and any consents, amendments, waivers or other modifications thereto;
(ii) all the actual and reasonable costs of furnishing all opinions by
counsel for any Borrower (including without limitation any opinions
requested by Lenders as to any legal matters arising hereunder) and of
any Borrower's performance of and compliance with all agreements and
conditions on its part to be performed or complied with under this
Agreement and the other Loan Documents including, without limitation,
with respect to confirming compliance with environmental and insurance
requirements; (iii) the actual and reasonable fees, expenses and
disbursements of counsel to Administrative Agent (including actual and
reasonable allocated costs of internal counsel) in connection with the
negotiation, preparation, execution and administration of the Loan
Documents and any consents, amendments, waivers or other modifications
thereto and any other documents or matters requested by any Borrower;
(iv) all the actual and reasonable costs and expenses of creating and
perfecting Liens in favor of Administrative Agent on behalf of Lenders
pursuant to the Loan Documents, including without limitation costs of
conducting record searches, examining Collateral, costs of title
insurance premiums, real estate survey costs, and fees and taxes in
connection with the filing of financing statements, costs of preparing
and recording Loan Documents, fees and expenses of counsel for
providing such opinions as Administrative Agent or Requisite Lenders
may reasonably request, and fees and expenses of legal counsel to
Administrative Agent; (v) all the actual costs and reasonable expenses
of obtaining and reviewing any appraisals provided for under this
Agreement and any environmental audits or reports provided for under
this Agreement; (vi) all other actual and reasonable costs and
expenses incurred by Agents in connection with the syndication of the
Commitments and the negotiation, preparation and execution of the Loan
Documents and any consents, amendments, waivers or other modifications
thereto and the transactions contemplated thereby; and (vii) after the
occurrence of an Event of Default, all costs and expenses, including
reasonable attorneys' fees (including actual and reasonable allocated
costs of internal counsel) and costs of settlement, incurred by
Administrative Agent and Lenders in enforcing any Obligations of or in
collecting any payments due from any Loan Party hereunder or under the
other Loan Documents by reason of such Event of Default or in
connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-
out" or pursuant to any insolvency or bankruptcy proceedings.
10.3 INDEMNITY.
In addition to the payment of expenses pursuant to
subsection 10.2, whether or not the transactions contemplated hereby
shall be consummated, each Borrower agrees to defend, indemnify, pay
and hold harmless Administrative Agent and Lenders, and the officers,
directors, employees, agents and affiliates of Administrative Agent
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and Lenders (collectively called the "INDEMNITEES") from and against
any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including without
limitation the reasonable fees and disbursements of counsel for such
Indemnitees in connection with any investigative, administrative or
judicial proceeding commenced or threatened by any Person, whether or
not any such Indemnitee shall be designated as a party or a potential
party thereto), whether direct, indirect or consequential and whether
based on any federal, state or foreign laws, statutes, rules or
regulations (including without limitation securities and commercial
laws, statutes, rules or regulations and Environmental Laws), on
common law or equitable cause or on contract or otherwise, that may be
imposed on, incurred by, or asserted against any such Indemnitee, in
any manner relating to or arising out of this Agreement or the other
Loan Documents or the Related Agreements or the transactions
contemplated hereby or thereby (including without limitation Lenders'
agreement to make the Loans hereunder or the use or intended use of
the proceeds of any of the Loans or the issuance of Letters of Credit
hereunder or the use or intended use of any of the Letters of Credit)
or the statements contained in the commitment letter delivered by any
Lender to any Borrower with respect thereto (collectively called the
"INDEMNIFIED LIABILITIES"); PROVIDED that Borrowers shall not have any
obligation to any Indemnitee hereunder with respect to any Indemnified
Liabilities to the extent such Indemnified Liabilities arise solely
from the gross negligence or willful misconduct of that Indemnitee as
determined by a final judgment of a court of competent jurisdiction.
To the extent that the undertaking to defend, indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable
because it is violative of any law or public policy, each Borrower
shall contribute the maximum portion that it is permitted to pay and
satisfy under applicable law to the payment and satisfaction of all
Indemnified Liabilities incurred by the Indemnitees or any of them.
Without limiting the generality of the foregoing, each
Borrower further agrees to fully and promptly pay, perform, discharge,
defend (subject to Indemnitee's selection of counsel), indemnify and
hold harmless each Indemnitee from and against any Indemnified
Environmental Liabilities; PROVIDED that Borrowers shall not have any
obligation to any Indemnitee hereunder with respect to any Indemnified
Environmental Liabilities to the extent such Indemnified Environmental
Liabilities arise solely from the gross negligence or willful
misconduct of that Indemnitee as determined by a final judgment of a
court of competent jurisdiction. To the extent that the undertaking
to defend, indemnify, pay and hold harmless set forth in the preceding
sentence may be unenforceable because it is violative of any law or
public policy, each Borrower shall contribute the maximum portion that
it is permitted to pay and satisfy under applicable law to the payment
and satisfaction of all Indemnified Environmental Liabilities incurred
by the Indemnitees or any of them. As used herein, "INDEMNIFIED
ENVIRONMENTAL LIABILITIES" means any liabilities, obligations, losses,
damages (including, without limitation, natural resource damages),
penalties, actions, judgments, suits, claims (including Environmental
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Claims), costs (including, without limitation, the costs of any
investigation, study, sampling, testing, abatement, cleanup, removal,
remediation, or other response action necessary to remove, remediate,
clean up, or ▇▇▇▇▇ any Hazardous Materials or any activity relating to
Hazardous Materials that is in violation of any Environmental Laws or
that presents a material risk of giving rise to an Environmental
Claim), expenses and disbursements of any kind or nature whatsoever,
whether direct, indirect or consequential and whether based on any
federal, state or foreign laws, statutes, rules or regulations
(including without limitation securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law
or equitable cause or on contract or otherwise, that may be imposed
on, incurred by, or asserted against any such Indemnitee, in any
manner relating to or arising out of: (i) any Release, threatened
Release or disposal of any Hazardous Materials at any of the
Facilities; (ii) the Release, threatened Release, or disposal at any
location of any Hazardous Materials generated at or originating from
any of the Facilities by or at the direction of Company or any of its
Subsidiaries; (iii) any Environmental Claim in connection with any of
the Facilities; or (iv) the operation of or violation of any
Environmental Law at any of the Facilities.
10.4 SET-OFF; SECURITY INTEREST IN DEPOSIT ACCOUNTS.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon
the occurrence of any Event of Default and consultation with
Administrative Agent each Lender is hereby authorized by each Borrower
at any time or from time to time, without notice to any Borrower or to
any other Person, any such notice being hereby expressly waived, to
set off and to appropriate and to apply any and all deposits (general
or special, including, but not limited to, Indebtedness evidenced by
certificates of deposit, whether matured or unmatured, but not
including trust accounts) and any other Indebtedness at any time held
or owing by that Lender or any of its Affiliates to or for the credit
or the account of such Borrower against and on account of the
obligations and liabilities of such Borrower under this Agreement, the
Letters of Credit and participations therein and the other Loan
Documents, including, but not limited to, all claims of any nature or
description arising out of or connected with this Agreement, the
Letters of Credit and participations therein or any other Loan
Document, irrespective of whether or not (i) that Lender shall have
made any demand hereunder or (ii) the principal of or the interest on
the Loans or any amounts in respect of the Letters of Credit or any
other amounts due hereunder shall have become due and payable pursuant
to Section 8 and although said obligations and liabilities, or any of
them, may be contingent or unmatured. Each Borrower hereby further
grants to Administrative Agent and each Lender for the benefit of all
Lenders a security interest in all deposits and accounts maintained
with Administrative Agent or such Lender as security for the
Obligations.
10.5 RATABLE SHARING
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Lenders hereby agree among themselves that if any of them
shall, whether by voluntary payment, by realization upon security,
through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under
the Loan Documents or otherwise, or as adequate protection of a
deposit treated as cash collateral under the Bankruptcy Code, receive
payment or reduction of a proportion of the aggregate amount of
principal, interest, amounts payable in respect of Letters of Credit,
fees and other amounts then due and owing to that Lender from a
Borrower hereunder or under the other Loan Documents (collectively,
the "AGGREGATE AMOUNTS DUE" to such Lender) which is greater than the
proportion received by any other Lender in respect of the Aggregate
Amounts Due to such other Lender, then the Lender receiving such
proportionately greater payment shall (i) notify Administrative Agent
and each other Lender of the receipt of such payment and (ii) apply a
portion of such payment to purchase participations (which it shall be
deemed to have purchased from each seller of a participation
simultaneously upon the receipt by such seller of its portion of such
payment) in the Aggregate Amounts Due to the other Lenders so that all
such recoveries of Aggregate Amounts Due shall be shared by all
Lenders in proportion to the Aggregate Amounts Due to them; PROVIDED
that if all or part of such proportionately greater payment received
by such purchasing Lender is thereafter recovered from such Lender
upon the bankruptcy or reorganization of such Borrower or otherwise,
those purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to such purchasing Lender
ratably to the extent of such recovery, but without interest. Each
Borrower expressly consents to the foregoing arrangement and agrees
that any holder of a participation so purchased may exercise any and
all rights of banker's lien, set-off or counterclaim with respect to
any and all monies owing by such Borrower to that holder with respect
thereto as fully as if that holder were owed the amount of the
participation held by that holder.
10.6 AMENDMENTS AND WAIVERS.
No amendment, modification, termination or waiver of any
provision of this Agreement or of the Notes, and no consent to any
departure by any Borrower therefrom, shall in any event be effective
without the written concurrence of such Borrower and Requisite
Lenders; PROVIDED that any such amendment, modification, termination,
waiver or consent which: increases the amount of any of the
Commitments or reduces the principal amount of any of the Loans;
changes in any manner the definition of "Pro Rata Share" or the
definition of "Requisite Lenders"; changes in any manner any provision
of this Agreement which, by its terms, expressly requires the approval
or concurrence of all Lenders; postpones the Commitment Termination
Date; postpones the date on which any interest or any fees are
payable; decreases the interest rate borne by any of the Loans (other
than any waiver of any increase in the interest rate applicable to any
of the Loans pursuant to subsection 2.2E) or the amount of any fees
payable hereunder; increases the maximum duration of Interest Periods
permitted hereunder; releases all or any significant portion of the
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Collateral other than in accordance with the terms of the Loan
Documents; reduces the amount or postpones the due date of any amount
payable in respect of, or extends the required expiration date of, any
Letter of Credit; changes in any manner the obligations of Lenders
relating to the purchase of participations in Letters of Credit; or
changes in any manner the provisions contained in subsection 8.1 or
this subsection 10.6 shall be effective only if evidenced by a writing
signed by or on behalf of all Lenders. In addition, (i) no amendment,
modification, termination or waiver of any provision of any Note shall
be effective without the written concurrence of the Lender which is
the holder of that Note, (ii) to the extent related to (a) UK
Indemnifying Lenders or UK Revolving Loan Commitments, (b) French
Indemnifying Lenders or French Revolving Loan Commitments, or (c)
Japanese Indemnifying Lenders or Japanese Revolving Loan Commitments,
no amendment, modification, termination or waiver of any provision of
subsection 2.9 or of related definitions shall be effective without
the written concurrence of, respectively, (x) the UK Indemnifying
Lenders holding a majority of the UK Loan Exposure and of
Administrative Agent, (y) the French Indemnifying Lenders holding a
majority of the French Loan Exposure and of Administrative Agent, and
(z) the Japanese Indemnifying Lenders holding a majority of the
Japanese Loan Exposure and of Administrative Agent, and (iii) no
amendment, modification, termination or waiver of any provision of
Section 9 or of any other provision of this Agreement which, by its
terms, expressly requires the approval or concurrence of
Administrative Agent shall be effective without the written
concurrence of Administrative Agent. Administrative Agent may, but
shall have no obligation to, with the concurrence of any Lender,
execute amendments, modifications, waivers or consents on behalf of
that Lender. Any waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it was given.
No notice to or demand on any Borrower in any case shall entitle such
Borrower to any other or further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or
consent effected in accordance with this subsection 10.6 shall be
binding upon each Lender at the time outstanding, each future Lender
and, if signed by any Borrower, on such Borrower.
10.7 INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of
such covenants, the fact that it would be permitted by an exception
to, or would otherwise be within the limitations of, another covenant
shall not avoid the occurrence of an Event of Default or Potential
Event of Default if such action is taken or condition exists.
10.8 NOTICES.
Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be
in writing and may be personally served, telexed or sent by
telefacsimile or mail or courier service and shall be deemed to have
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been given when delivered in person or by courier service, upon
receipt of telefacsimile or telex, or three Business Days after
depositing it in the mail with postage prepaid and properly addressed;
PROVIDED that notices to Administrative Agent shall not be effective
until received. For the purposes hereof, the address of each party
hereto shall be as set forth under such party's name on the signature
pages hereof or (i) as to Borrowers and Administrative Agent, such
other address as shall be designated by such Person in a written
notice delivered to the other parties hereto and (ii) as to each other
party, such other address as shall be designated by such party in a
written notice delivered to Administrative Agent.
10.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
A. All representations, warranties and agreements made herein
shall survive the execution and delivery of this Agreement and the
making of the Loans and the issuance of the Letters of Credit
hereunder.
B. Notwithstanding anything in this Agreement or implied by law
to the contrary, the agreements of Borrowers set forth in subsections
2.6D, 2.7, 3.5A, 3.6, 10.2, 10.3 and 10.4 and the agreements of
Lenders set forth in subsections 9.2C, 9.4 and 10.5 shall survive the
payment of the Loans, the cancellation or expiration of the Letters of
Credit and the reimbursement of any amounts drawn thereunder, and the
termination of this Agreement.
10.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of Administrative Agent or
any Lender in the exercise of any power, right or privilege hereunder
or under any other Loan Document shall impair such power, right or
privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any
such power, right or privilege preclude other or further exercise
thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents
are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
10.11 MARSHALLING; PAYMENTS SET ASIDE.
None of Agents or any Lender shall be under any obligation
to marshal any assets in favor of any Borrower or any other party or
against or in payment of any or all of the Obligations. To the extent
that any Borrower makes a payment or payments to Administrative Agent
or Lenders (or to Agent for the benefit of Lenders), or Administrative
Agent or Lenders enforce any security interests or exercise their
rights of setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, any other state or federal law, common law
159
or any equitable cause, then, to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and
all Liens, rights and remedies therefor or related thereto, shall be
revived and continued in full force and effect as if such payment or
payments had not been made or such enforcement or setoff had not
occurred.
10.12 SEVERABILITY.
In case any provision in or obligation under this Agreement
or the Notes shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the
remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be affected
or impaired thereby.
10.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS.
The obligations of Lenders hereunder are several and no
Lender shall be responsible for the obligations or Commitments of any
other Lender hereunder. Nothing contained herein or in any other Loan
Document, and no action taken by Lenders pursuant hereto or thereto,
shall be deemed to constitute Lenders as a partnership, an
association, a joint venture or any other kind of entity. The amounts
payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and
enforce its rights arising out of this Agreement and it shall not be
necessary for any other Lender to be joined as an additional party in
any proceeding for such purpose.
10.14 HEADINGS.
Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given
any substantive effect.
10.15 APPLICABLE LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
10.16 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the parties hereto and
their respective successors and assigns and shall inure to the benefit
of the parties hereto and the successors and assigns of Lenders (it
being understood that Lenders' rights of assignment are subject to
subsection 10.1). None of Borrowers' rights or obligations hereunder
160
nor any interest therein may be assigned or delegated by any Borrower
without the prior written consent of all Lenders.
10.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY BORROWER
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR ANY OBLIGATION MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT EACH BORROWER ACCEPTS FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS
AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY AGREES
TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS
AGREEMENT, SUCH OTHER LOAN DOCUMENT OR SUCH OBLIGATION. Each Borrower
hereby agrees that service of all process in any such proceeding in
any such court may be made by registered or certified mail, return
receipt requested, to such Borrower at its address provided in
subsection 10.8, such service being hereby acknowledged by such
Borrower to be sufficient for personal jurisdiction in any action
against such Borrower in any such court and to be otherwise effective
and binding service in every respect. Nothing herein shall affect the
right to serve process in any other manner permitted by law or shall
limit the right of any Lender to bring proceedings against any
Borrower in the courts of any other jurisdiction.
10.18 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE
ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER
OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS
BEING ESTABLISHED. The scope of this waiver is intended to be all-
encompassing of any and all disputes that may be filed in any court
and that relate to the subject matter of this transaction, including
without limitation contract claims, tort claims, breach of duty claims
and all other common law and statutory claims. Each party hereto
acknowledges that this waiver is a material inducement to enter into a
business relationship, that each has already relied on this waiver in
entering into this Agreement, and that each will continue to rely on
this waiver in their related future dealings. Each party hereto
further warrants and represents that it has reviewed this waiver with
its legal counsel and that it knowingly and voluntarily waives its
jury trial rights following consultation with legal counsel. THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER
SPECIFICALLY REFERRING TO THIS SUBSECTION 10.18 AND EXECUTED BY EACH
OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT
OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the event of
161
litigation, this Agreement may be filed as a written consent to a
trial by the court.
10.19 CONFIDENTIALITY.
Each Lender shall hold all non-public information obtained
pursuant to the requirements of this Agreement which has been
identified in writing as confidential by any Borrower in accordance
with such Lender's customary procedures for handling confidential
information of this nature and in accordance with safe and sound
banking practices, it being understood and agreed by each Borrower
that in any event a Lender may make disclosures to Affiliates of such
Lender, to the legal counsel and accountants of such Lender or of such
Affiliates, or disclosures reasonably required by any bona fide
assignee, transferee or participant (who shall have agreed to the
confidentiality of the same) in connection with the contemplated
assignment or transfer by such Lender of any Loans or any
participations therein or disclosures required or requested by any
governmental agency or representative thereof or pursuant to legal
process; PROVIDED that, unless specifically prohibited by applicable
law or court order, each Lender shall notify Company of any request by
any governmental agency or representative thereof (other than any such
request in connection with any examination of the financial condition
of such Lender by such governmental agency) for disclosure of any such
non-public information prior to disclosure of such information; and
PROVIDED, FURTHER that in no event shall any Lender be obligated or
required to return any materials furnished by Company or any of its
Subsidiaries.
10.20 JUDGMENT CURRENCY.
(a) If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder in any currency
(the "ORIGINAL CURRENCY") into another currency (the "OTHER
CURRENCY"), the parties hereto agree, to the fullest extent permitted
by law, that the rate of exchange used shall be that at which in
accordance with normal banking procedures Administrative Agent or a
Lender could purchase the Original Currency with such Other Currency
in New York, New York on the Business Day immediately preceding the
day on which any such judgment, or any relevant part thereof, is
given.
(b) The obligations of each Borrower in respect of any sum
due from it to Administrative Agent or any Lender hereunder shall,
notwithstanding any judgment in such Other Currency, be discharged
only to the extent that on the Business Day following receipt by
Administrative Agent or Lender of any sum adjudged to be so due in
such Other Currency Administrative Agent or Lender may in accordance
with normal banking procedures purchase the Original Currency with
such Other Currency; if the Original Currency so purchased is less
than the sum originally due Administrative Agent or Lender in the
Original Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify Administrative Agent
162
or Lender against such loss, and if the Original Currency so
purchased exceed the sum originally due to Administrative Agent or
Lender in the Original Currency, Lender shall remit such excess to
such Borrower.
10.21 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall
constitute but one and the same instrument; signature pages may be
detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the
same document. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto and
receipt by each Borrower and Administrative Agent of written or
telephonic notification of such execution and authorization of
delivery thereof.
10.22 NO IMMUNITY.
To the extent that any Borrower has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect
to itself or its property, such Borrower hereby irrevocably waives
such immunity in respect of its obligations under this Agreement and,
without limiting the generality of the foregoing, agrees that the
waivers set forth in this subsection 10.22 shall have the fullest
scope permitted under the Foreign Sovereign Immunities Act of 1976 of
the United States and are intended to be irrevocable for purposes of
such Act.
[Remainder of page intentionally left blank]
163
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized as of the date first written above.
BORROWERS:
▇▇▇▇ GRAPHIC SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: Treasurer
---------------------------------
Notice Address:
▇▇▇▇ Graphics Systems, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
with copies to:
Stonington Partners, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇/8586
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr., Esq.
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
164
▇▇▇▇ GRAPHIC SYSTEMS LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Title:
----------------------------------
Notice Address:
▇▇▇▇ Graphic Systems Limited
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, The United Kingdom
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: ▇▇-▇▇▇▇-▇▇▇▇▇▇
with copies to:
Stonington Partners, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇/8586
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr., Esq.
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
165
▇▇▇▇ SYSTEMES GRAPHIQUES NANTES S.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Title:
----------------------------------
Notice Address:
▇▇▇▇ Systemes Graphiques Nantes S.A.
▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: ▇▇-▇▇-▇▇-▇▇-▇▇
with copies to:
Stonington Partners, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇/8586
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr., Esq.
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
166
▇▇▇▇ GRAPHIC SYSTEMS JAPAN CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Title:
----------------------------------
Notice Address:
▇▇▇▇ Graphic Systems Japan K. K.
Mitsuya Toranomon Building
22-14 Toranomon 1-Chome
Minato-Ku, Tokyo 105
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy No.: ▇▇-▇-▇▇▇▇-▇▇▇▇
with copies to:
Stonington Partners, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇/8586
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr., Esq.
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
167
LENDERS:
BANKERS TRUST COMPANY,
as Administrative Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Assistant Vice President
---------------------------------
Notice Address:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
168
CREDIT SUISSE FIRST BOSTON,
as Syndication Agent and as a Lender
By:
------------------------------------
Title:
---------------------------------
By:
------------------------------------
Title:
---------------------------------
Notice Address:
Credit Suisse First Boston
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇/5441
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as a Lender
By:
------------------------------------
Title:
---------------------------------
Notice Address:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ NATIONAL TRUST & SAVINGS
ASSOCIATION, as a Lender
By:
------------------------------------
Title:
---------------------------------
Notice Address:
Bank of America National Trust &
Savings Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, as a Lender
By:
------------------------------------
Title:
---------------------------------
Notice Address:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
172
NATIONSBANK, N.A., as a Lender
By:
------------------------------------
Title:
---------------------------------
Notice Address:
NationsBank, N.A.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
173
CREDIT AGRICOLE INDOSUEZ, as a Lender
By:
------------------------------------
Title:
---------------------------------
By:
------------------------------------
Title:
---------------------------------
Notice Address:
Credit Agricole Indosuez
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
174
DEUTSCHE FINANCIAL SERVICES CORPORATION, as a
Lender and as an Indemnifying Lender
By:
------------------------------------
Title:
---------------------------------
Notice Address:
Deutsche Financial Services Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Deutsche Financial Services Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
175
THE FIRST NATIONAL BANK OF CHICAGO, as a
Lender
By:
------------------------------------
Title:
---------------------------------
Notice Address:
The First National Bank of Chicago
One First National Plaza
Suite 0088, 14th Floor
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
176
THE FUJI BANK, LIMITED, as a Lender
By:
------------------------------------
Title:
---------------------------------
Notice Address:
The Fuji Bank, Limited
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
177
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as a Lender
By:
------------------------------------
Title:
---------------------------------
Notice Address:
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
with copy to:
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
178
▇▇▇▇▇▇ FINANCIAL, INC., as a Lender
By:
------------------------------------
Title:
---------------------------------
Notice Address:
▇▇▇▇▇▇ Financial, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
179
THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY,
as a Lender and as an Indemnifying Lender
By:
------------------------------------
Title:
---------------------------------
Notice Address:
The Industrial Bank of Japan Trust
Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
180
LASALLE NATIONAL BANK, as a Lender
By:
------------------------------------
Title:
---------------------------------
Notice Address:
LaSalle National Bank
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
with copy to:
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Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇, A CANADIAN CHARTERED
BANK, as a Lender
By:
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Title:
---------------------------------
By:
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Title:
---------------------------------
Notice Address:
National Bank of Canada,
a Canadian Chartered Bank
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
182
THE SANWA BANK, LIMITED, CHICAGO BRANCH, as a
Lender
By:
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Title:
---------------------------------
Notice Address:
The Sanwa Bank, Limited,
Chicago Branch
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
183
TRANSAMERICA BUSINESS CREDIT CORPORATION, as
a Lender and as an Indemnifying Lender
By:
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Title:
---------------------------------
Notice Address:
Transamerica Business Credit Corporation
International Corporation Centre
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Attention: ▇▇▇ ▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
184
GENERAL ELECTRIC CAPITAL CORPORATION, as a
Lender
By:
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Title:
---------------------------------
Notice Address:
General Electric Capital Corporation
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
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as a Lender
By:
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Title: Manager and Vice President
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NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH, as a Lender
By:
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Title: Manager and Vice President
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Notice Address:
National Westminster Bank Plc,
New York Branch
NatWest Markets Branch Operations
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
BARCLAYS BANK PLC, as a Lender
By:
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Title:
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Notice Address:
Barclays Bank, Plc
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ AND GRAND CAYMAN
BRANCHES, as a Lender
By:
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Title:
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By:
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Title:
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Notice Address:
Dresdner Bank
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
187
CANADIAN IMPERIAL BANK OF COMMERCE, as a
Lender
By:
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Title:
---------------------------------
Notice Address:
Canadian Imperial Bank of Commerce
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Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
188
THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH, as an Existing Lender
By:
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Title:
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Notice Address:
The Dai-Ichi Kangyo Bank, Ltd.,
Chicago Branch
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
189
THE MITSUBISHI TRUST AND BANKING CORPORATION,
as an Existing Lender
By:
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Title:
---------------------------------
Notice Address:
The Mitsubishi Trust and Banking
Corporation
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
190
THE SAKURA BANK, LIMITED, as an Existing
Lender
By:
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Title:
---------------------------------
Notice Address:
The Sakura Bank, Limited
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Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
191
ANNEX A
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to the
provisions of subsection 2.7B, in the event that any Lender shall
determine (which determination shall, absent manifest error, be final
and conclusive and binding upon all parties hereto) that any law,
treaty or governmental rule, regulation or order, or any change
therein or in the interpretation, administration or application
thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a
court or governmental authority, in each case that becomes effective
after the date hereof, or compliance by such Lender with any
guideline, request or directive issued or made after the date hereof
by any central bank or other governmental or quasi-governmental
authority (whether or not having the force of law):
(i) subjects such Lender (or its applicable lending office)
to any additional Tax (other than any Tax on the overall net
income of such Lender) with respect to this Agreement or any of
its obligations hereunder or any payments to such Lender (or its
applicable lending office) of principal, interest, commitment
fees or any other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve
(including without limitation any marginal, emergency,
supplemental, special or other reserve), special deposit,
compulsory loan, FDIC insurance or similar requirement against
assets held by, or deposits or other liabilities in or for the
account of, or advances or loans by, or other credit extended by,
or any other acquisition of funds by, any office of such Lender
(other than any such reserve or other requirements with respect
to Offshore Rate Loans that are reflected in the definition of
Adjusted Offshore Rate); or
(iii) imposes any other condition (other than with
respect to a Tax matter) on or affecting such Lender (or its
applicable lending office) or its obligations hereunder or the
interbank Eurodollar market for the Applicable Currency;
and the result of any of the foregoing is to increase the cost to such
Lender of agreeing to make, making or maintaining Loans hereunder or
to reduce any amount received or receivable by such Lender (or its
applicable lending office) with respect thereto in an amount deemed by
such Lender (in its sole discretion) to be material; then, in any such
case, the applicable Borrower shall promptly pay to such Lender, upon
receipt of the statement referred to in the next sentence, such
additional amount or amounts (in the form of an increased rate of, or
a different method of calculating, interest or otherwise as such
Lender in its sole discretion shall determine) as may be necessary to
compensate such Lender for any such increased cost or reduction in
amounts received or receivable hereunder. Such Lender shall deliver
192
to the applicable Borrower (with a copy to Administrative Agent) a
written statement, setting forth in reasonable detail the basis for
calculating the additional amounts owed to such Lender under this
subsection 2.7A, which statement shall be conclusive and binding upon
all parties hereto absent manifest error.
B. WITHHOLDING OF TAXES.
(i) PAYMENTS TO BE FREE AND CLEAR. All sums payable by
Borrowers under this Agreement and the other Loan Documents shall
be paid free and clear of, and, except to the extent required by
law, without any deduction or withholding on account of, any Tax
(other than a Tax on the overall net income of any Lender)
imposed, levied, collected, withheld or assessed by or within the
United States of America, the UK, France or Japan or any
political subdivision in or of the United States of America, the
UK, France or Japan or any other jurisdiction from or to which a
payment is made by or on behalf of any Borrower or by any
federation or organization of which the United States of America,
the UK, France or Japan or any such jurisdiction is a member at
the time of payment.
(ii) GROSSING-UP OF PAYMENTS. If any Borrower or any other
Person (including any Funding Lender with respect to any payments
made to an Indemnifying Lender under subsection 2.9) is required
by law to make any deduction or withholding on account of any
such Tax from any sum paid or payable by any Borrower to
Administrative Agent or any Lender under any of the Loan
Documents or by any Funding Lender with respect to any payments
made to an Indemnifying Lender under subsection 2.9:
(a) such Borrower shall notify Administrative Agent of
any such requirement or any change in any such requirement
as soon as such Borrower becomes aware of it;
(b) such Borrower shall pay any such Tax before the
date on which penalties attach thereto, such payment to be
made (if the liability to pay is imposed on such Borrower)
for its own account or (if that liability is imposed on
Administrative Agent or any such Lender, as the case may be)
on behalf of and in the name of Administrative Agent or any
such Lender;
(c) the sum payable by such Borrower or by such
Funding Lender in respect of which the relevant deduction,
withholding or payment is required shall be increased to the
extent necessary to ensure that, after the making of that
deduction, withholding or payment, Administrative Agent,
such Lender or Indemnifying Lender, as the case may be,
receives on the due date a net sum equal to what it would
have received had no such deduction, withholding or payment
been required or made; and
193
(d) within 30 days after paying any sum from which it
is required by law to make any deduction or withholding, and
within 30 days after the due date of payment of any Tax
which it is required by clause (b) above to pay, such
Borrower shall deliver to Administrative Agent evidence
reasonably satisfactory to the other affected parties of
such deduction, withholding or payment and of its making
payment thereof to the relevant taxing or other authority;
PROVIDED that no such additional amount of United States Tax
shall be required to be paid to any Lender under clause (c) above
except to the extent that any change after the date hereof (in
the case of each Lender listed on the signature pages hereof) or
after the date of the Assignment Agreement pursuant to which such
Lender became a Lender (in the case of each other Lender) in any
such requirement for a deduction, withholding or payment as is
mentioned therein shall result in an increase in the rate of such
deduction, withholding or payment from that in effect at the date
of this Agreement or at the date of such Assignment Agreement, as
the case may be, in respect of payments to such Lender; PROVIDED
FURTHER that any such additional amount of UK, French, or
Japanese Tax, as the case may be, shall be required to be paid by
Borrower to Administrative Agent, any applicable Indemnifying
Lender or to any other Lender under clause (c) above whether or
not any such payment shall be required as a result of any change
in applicable laws and regulations after the date hereof (i.e.,
Borrower shall be required to pay such additional amount of UK,
French, or Japanese Tax, as the case may be, even if the
obligation to make such payment shall have arisen under
applicable laws and regulations as in effect on the date hereof);
and PROVIDED FURTHER that notwithstanding anything to the
contrary contained in this Agreement or in any other Loan
Document, to the extent that Administrative Agent is required by
any applicable law or regulation, whether or not in effect on the
date hereof, to make any deduction or withholding on account of
any such UK, French, or Japanese Tax from any sum paid or payable
by Administrative Agent to any Indemnifying Lender pursuant to
subsection 2.9, (a) Borrower shall pay any such Tax before the
date on which penalties attach thereto, such payment to be made
(if the liability to pay is imposed on such Borrower) for its own
account or (if that liability is imposed on Administrative Agent
or such Indemnifying Lender, as the case may be) on behalf of and
in the name of Administrative Agent or such Indemnifying Lender;
and (b) the sum payable by such Borrower or by Administrative
Agent in respect of which the relevant deduction, withholding or
payment is required shall be increased to the extent necessary to
ensure that, after the making of that deduction, withholding or
payment, Administrative Agent or Indemnifying Lender, as the case
may be, receives on the due date a net sum equal to what it would
have received had no such deduction, withholding or payment been
required or made. Borrower shall indemnify Administrative Agent
and each applicable Indemnifying Lender for any Tax (other than a
Tax on the overall net income of any Lender) imposed, levied,
194
collected, withheld or assessed by or under any applicable
Governmental Authority with respect to the payments to be made
pursuant to subsection 2.9.
(iii) EVIDENCE OF EXEMPTION FROM WITHHOLDING TAXES.
(a) (1) Each Lender that is organized under the laws
of any jurisdiction other than the United States or any
state or other political subdivision thereof (for purposes
of this subsection 2.7B(iii), a "NON-US LENDER") shall
deliver to Administrative Agent for transmission to Company,
on or prior to the Effective Date (in the case of each
Lender listed on the signature pages hereof) or on or prior
to the date of the Assignment Agreement pursuant to which it
becomes a Lender (in the case of each other Lender), and at
such other times as may be necessary in the determination of
Company or Administrative Agent (each in the reasonable
exercise of its discretion), (X) two original copies of
Internal Revenue Service Form 1001 or 4224 (or any successor
forms), properly completed and duly executed by such Non-US
Lender, together with any other certificate or statement of
exemption required under the Internal Revenue Code or the
regulations issued thereunder to establish that such Non-US
Lender is not subject to deduction or withholding of United
States federal income tax with respect to any payments to
such Non-US Lender of principal, interest, fees or other
amounts payable under any of the Loan Documents or (Y) if
such Non-US Lender is not a "bank" or other Person described
in Section 881(c)(3) of the Internal Revenue Code and cannot
deliver either Internal Revenue Service Form 1001 or 4224
pursuant to clause (X) above, a Certificate re Non-Bank
Status together with two original copies of Internal Revenue
Service Form W-8 (or any successor form), properly completed
and duly executed by such Non-US Lender, together with any
other certificate or statement of exemption required under
the Internal Revenue Code or the regulations issued
thereunder to establish that such Non-US Lender is not
subject to deduction or withholding of United States federal
income tax with respect to any payments to such Non-US
Lender of interest payable under any of the Loan Documents.
(2) Each UK Lender (other than a UK Qualifying
Lender; PROVIDED that this clause 2.7B(iii)(a)(3) shall
apply to a UK Qualifying Lender who loses such status, other
than through a change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof after
the Relevant Date (as defined below) as set out in clause
2.7B(iii)(c), from the date of such loss) shall deliver to
the appropriate Person such application forms, certificates,
documents or other evidence as may be required from time to
time, properly completed and duly executed by such UK
Lender, to enable ▇▇▇▇ UK to be able to pay interest on the
195
UK Loans from it without withholding or deduction for or on
account of any UK income tax. Each UK Lender severally
warrants to ▇▇▇▇ UK that on the Relevant Date (as defined in
clause 2.7B(iii)(c)) (i) it is a UK Qualifying Lender or
(ii) it is a UK Double Tax Treaty Lender that has or will
timely fulfill its obligations under subsection 2.7B(iii).
(3) Each French Lender that is organized under the
laws of any jurisdiction other than France or any political
subdivision thereof (for purposes of this subsection
2.7B(iii), a "NON-FRENCH LENDER") agrees to deliver to ▇▇▇▇
France and Administrative Agent upon request such
certificates, documents or other evidence as may be required
from time to time, properly completed and duly executed by
such Non-French Lender, to establish the basis for any
applicable exemption from or reduction of Taxes with respect
to any payments to such Non-French Lender of principal,
interest, fees, commissions or any other amount payable
under this Agreement or the French Revolving Loans.
(4) Each Japanese Lender that is organized under
the laws of any jurisdiction other than Japan or any
political subdivision thereof (for purposes of this
subsection 2.7B(iii), a "NON-JAPANESE LENDER") agrees to
deliver to ▇▇▇▇ Japan and Administrative Agent upon request
such certificates, documents or other evidence as may be
required from time to time, properly completed and duly
executed by such Non-Japanese Lender, to establish the basis
for any applicable exemption from or reduction of Taxes with
respect to any payments to such Non-Japanese Lender of
principal, interest, fees, commissions or any other amount
payable under this Agreement or the Japanese Revolving
Loans.
(b) Each Lender required to deliver any forms,
certificates or other evidence with respect to United States
federal income tax withholding matters or UK, French or
Japanese income tax withholding matters pursuant to
subsection 2.7B(iii)(a) hereby agrees, from time to time
after the initial delivery by such Lender of such forms,
certificates or other evidence, whenever a lapse in time or
change in circumstances renders such forms, certificates or
other evidence obsolete or inaccurate in any material
respect, that such Lender shall (1)(W) in the case of any
Non-US Lender, promptly deliver to Administrative Agent for
transmission to Company two new original copies of Internal
Revenue Service Form 1001 or 4224, or a Certificate re Non-
Bank Status and two original copies of Internal Revenue
Service Form W-8, as the case may be, (X) in the case of any
Non-French Lender, promptly deliver to Administrative Agent
for transmission to ▇▇▇▇ France such certificates, documents
or other evidence as may be required from time to time under
the third paragraph of subsection 2.7B(iii)(a), (Y) in the
196
case of any Non-Japanese Lender, promptly deliver to
Administrative Agent for transmission to ▇▇▇▇ Japan such
certificates, documents or other evidence as may be required
from time to time under the fourth paragraph of subsection
2.7B(iii)(a), or (Z) in the case of any UK Lender, promptly
deliver to the appropriate Persons such application forms,
certificates, documents or other evidence as may be required
from time to time under the second paragraph of subsection
2.7B(iii)(a), in each case properly completed and duly
executed by such Lender, together with any other certificate
or statement of exemption required in order to confirm or
establish that such Lender is not subject to deduction or
withholding of United States, French, Japanese or UK (as
applicable) Tax with respect to payments to such Lender
under the Loan Documents or (2) notify Administrative Agent
and Borrower of its inability to deliver any such forms,
certificates or other evidence.
(c) The Borrower shall not be required to pay any
additional amount to or in respect of any payment to any
Non-US Lender, Non-French Lender, Non-Japanese Lender or UK
Lender that is not a UK Indemnifying Lender in respect of
that payment, as the case may be, under clause (c) of
subsection 2.7B(ii) if such Lender shall both (i) have
failed to satisfy the requirements of clause (a) or (b)
(PROVIDED that for the purpose of this subsection
2.7B(iii)(c) its obligations under such clause (b) shall not
be considered to be duly fulfilled by its notification to
Administrative Agent and Borrower of its inability to
deliver any form, certificate or other evidence) of this
subsection 2.7B(iii) and (ii) is not a UK Qualifying Lender;
PROVIDED FURTHER that if such Lender shall have satisfied
the requirements of subsection 2.7B(iii)(a) (in the case of
any payment, or part thereof, connected with any Commitment,
Loan, Letter of Credit or Indemnity Participation, sold,
assigned or transferred pursuant to an Assignment Agreement)
after the date of such Assignment Agreement or (in any other
case) after the Effective Date (hereinafter, the "RELEVANT
DATE"), or is a UK Qualifying Lender on the Relevant Date,
as the case may be, nothing in this subsection 2.7B(iii)(c)
shall relieve the Borrower of its obligation to pay any
additional amounts pursuant to clause (c) of subsection
2.7B(ii) in the event that, as a result of any change in any
applicable law, treaty or governmental rule, regulation or
order, or any change in the interpretation, administration
or application thereof, such Lender either is no longer a UK
Qualifying Lender or is no longer properly entitled to
deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender is
exempt from withholding tax or is subject to withholding tax
at a rate higher than on the Relevant Date, as described in
subsection 2.7B(iii)(a), as the case may be.
197
(d) The Borrower shall not be required to pay any
additional amount under clause (c) of subsection 2.7B(ii) to
any French Indemnifying Lender if Administrative Agent is
not either a French corporation or a bank which has and acts
through a permanent establishment in France and holds a
valid Certificate of Exemption from withholding tax for
foreign corporations or non-residents, PROVIDED, HOWEVER,
that nothing in this subsection 2.7(iii) shall relieve the
applicable Borrower of its obligation to pay any additional
amounts pursuant to clause (c) of subsection 2.7B(ii) to an
Indemnifying Lender which becomes a French Lender, Japanese
Lender or a UK Lender, as the case may be, upon the
occurrence of a Triggering Event under subsection 2.9A,
notwithstanding the fact that such Indemnifying Lender is
not properly entitled to deliver forms, certificates or
other evidence establishing that such Indemnifying Lender is
exempt from Tax (other than Tax on its overall net income)
with respect to payments received from such Borrower,
whether or not as a result of any change in applicable law,
treaty or governmental rule, regulation or order, or any
change in the interpretation, administration or application
thereof after the Effective Date.
(e) The Borrower shall not be required to pay any
additional amount under clause (c) of subsection 2.7B(ii) to
any Japanese Indemnifying Lender if Administrative Agent is
not either a Japanese corporation or a bank which has and
acts through a permanent establishment in Japan and holds a
valid Certificate of Exemption from withholding tax for
foreign corporations or non-residents, PROVIDED, HOWEVER,
that nothing in this subsection 2.7(iii) shall relieve the
applicable Borrower of its obligation to pay any additional
amounts pursuant to clause (c) of subsection 2.7B(ii) to an
Indemnifying Lender which becomes a Japanese Lender, a
French Lender or a UK Lender, as the case may be, upon the
occurrence of a Triggering Event under subsection 2.9A,
notwithstanding the fact that such Indemnifying Lender is
not properly entitled to deliver forms, certificates or
other evidence establishing that such Indemnifying Lender is
exempt from Tax (other than Tax on its overall net income)
with respect to payments received from such Borrower,
whether or not as a result of any change in applicable law,
treaty or governmental rule, regulation or order, or any
change in the interpretation, administration or application
thereof after the Effective Date.
(e) If:
(i) ▇▇▇▇ UK makes a payment under paragraph (c)
of subsection 2.7B(ii) (a "TAX PAYMENT") in respect of a
payment to a UK Double Tax Treaty Lender (that had duly
fulfilled its obligations under subsection 2.7B(iii)), such
198
payment having been made prior to ▇▇▇▇ UK receiving a notice
from the Inland Revenue permitting it to pay gross, and
(ii) that UK Double Tax Treaty Lender determines
that it has obtained a refund of Tax or obtained and used a
credit against Tax on its Overall Net Income (a "TAX
CREDIT") which that UK Lender is attributable to that Tax
Payment
then, if in its absolute discretion it can do so without any
adverse consequences, that UK Double Tax Treaty Lender shall
reimburse ▇▇▇▇ UK such amount as that UK Double Tax Treaty
Lender shall reasonably determine to be such proportion of
that Tax Credit as will leave that UK Double Tax Treaty
Lender (after that reimbursement) in no better or worse
position in respect of its world wide Tax liabilities than
it would have been in if no Tax Payment had been required.
No UK Double Tax Treaty Lender shall be obliged to disclose
any information regarding its Tax affairs and computations.
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have
determined that the adoption, effectiveness, phase-in or applicability
after the date hereof of any law, rule or regulation (or any provision
thereof) regarding capital adequacy, or any change therein or in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender
(or its applicable lending office) with any guideline, request or
directive regarding capital adequacy (whether or not having the force
of law) of any such governmental authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on
the capital of such Lender or any corporation controlling such Lender
as a consequence of, or with reference to, such Lender's Loans,
Commitments or Letters of Credit or any participations therein or any
other obligations hereunder with respect to the Loans or the Letters
of Credit, in the case of any Lender, to a level below that which such
Lender or such controlling corporation could have achieved but for
such adoption, effectiveness, phase-in, applicability, change or
compliance (taking into consideration the policies of such Lender or
such controlling corporation with regard to capital adequacy and in an
amount deemed by such Lender (in its sole discretion) to be material),
then from time to time, within five Business Days after receipt by the
Borrower from such Lender of the statement referred to in the next
sentence, Borrowers shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such controlling corporation
on an after-tax basis for such reduction. Such Lender shall deliver
to the Borrower (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis of the
calculation of such additional amounts, which statement shall be
conclusive and binding upon all parties hereto absent manifest error.
Notwithstanding any provision of this subsection 2.7 to the contrary,
Borrowers shall pay, on terms and conditions consistent with this
subsection 2.7, any additional amount or amounts as will compensate
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any Lender or any corporation controlling such Lender on an after-tax
basis for any reduction in the rate of return on the capital of such
Lender or such controlling entity because of any overlap of the
Revolving Loan Commitments, whether or not as a result of any change
in applicable law, treaty or governmental rule, regulation or order,
or any change in the interpretation, administration or application
thereof.
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ANNEX B
2.8 OBLIGATION OF LENDERS AND ISSUING LENDERS TO MITIGATE;
REPLACEMENT OF LENDERS.
A. Each Lender and Issuing Lender agrees that, as promptly
as practicable after the officer of such Lender or Issuing Lender
responsible for administering the Loans or Letters of Credit of such
Lender or Issuing Lender, as the case may be, becomes aware of the
occurrence of an event or the existence of a condition that would
cause such Lender to become an Affected Lender or that would entitle
such Lender or Issuing Lender to receive payments under subsection 2.7
or subsection 3.6, it will, to the extent not inconsistent with the
internal policies of such Lender or Issuing Lender and any applicable
legal or regulatory restrictions, use reasonable efforts (i) to make,
issue, fund or maintain the Commitments of such Lender or the affected
Loans or Letters of Credit of such Lender or Issuing Lender through
another lending or letter of credit office of such Lender or Issuing
Lender, or (ii) take such other measures as such Lender or Issuing
Lender may deem reasonable, if as a result thereof the circumstances
which would cause such Lender to be an Affected Lender would cease to
exist or the additional amounts which would otherwise be required to
be paid to such Lender or Issuing Lender pursuant to subsection 2.7 or
subsection 3.6 would be materially reduced and if, as determined by
such Lender or Issuing Lender in its sole discretion, the making,
issuing, funding or maintaining of such Commitments or Loans or
Letters of Credit through such other lending or letter of credit
office or in accordance with such other measures, as the case may be,
would not otherwise materially adversely affect such Commitments or
Loans or Letters of Credit or the interests of such Lender or Issuing
Lender; PROVIDED that such Lender or Issuing Lender will not be
obligated to utilize such other lending or letter of credit office
pursuant to this subsection 2.8 unless the applicable Borrower agrees
to pay all incremental expenses incurred by such Lender or Issuing
Lender as a result of utilizing such other lending or letter of credit
office as described in clause (i) above or if the use of such other
office is inconsistent with the internal policies of such Lender or
any applicable legal or regulatory restrictions. A certificate as to
the amount of any such expenses payable by a Borrower pursuant to this
subsection 2.8 (setting forth in reasonable detail the basis for
requesting such amount) submitted by such Lender or Issuing Lender to
such Borrower (with a copy to Administrative Agent) shall be
conclusive absent manifest error.
B. If any Borrower receives a notice pursuant to subsection
2.6C, Borrowers shall have the right, if no Potential Event of Default
or Event of Default then exists, to replace such Lender (a "REPLACED
LENDER") with one or more Eligible Assignees (collectively, the
"REPLACEMENT LENDER") acceptable to Administrative Agent; PROVIDED
that (i) at the time of any replacement pursuant to this subsection
2.8B, the Replacement Lender shall enter into one or more Assignment
Agreements pursuant to subsection 10.1B (and with all fees payable
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pursuant to such subsection 11.1B to be paid by the Replacement
Lender) pursuant to which the Replacement Lender shall acquire all of
the outstanding Loans and Commitments of, and in each case
participations in Letters of Credit and Swing Line Loans by, the
Replaced Lender and, in connection therewith, shall pay to (x) the
Replaced Lender in respect thereof an amount equal to the sum of (A)
an amount equal to the principal of, and all accrued interest on, all
outstanding Loans of the Replaced Lender, (B) an amount equal to all
unpaid drawings with respect to Letters of Credit that have been
funded by (and not reimbursed to) such Replaced Lender, together with
all then unpaid interest with respect thereto at such time and (C) an
amount equal to all accrued, but theretofore unpaid, fees owing to the
Replaced Lender with respect thereto, (y) the appropriate Issuing
Lender an amount equal to such Replaced Lender's Pro Rata Share of any
unpaid drawings with respect to Letters of Credit (which at such time
remains an unpaid drawing) issued by it to the extent such amount was
not theretofore funded by such Replaced Lender, and (z) Swing Line
Lender an amount equal to such Replaced Lender's Pro Rata Share of any
Refunded Swing Line Loans to the extent such amount was not
theretofore funded by such Replaced Lender, and (ii) all obligations
(including without limitation all such amounts, if any, owing under
subsection 2.6D) of Company owing to the Replaced Lender (other than
those specifically described in clause (i) above in respect of which
the assignment purchase price has been, or is concurrently being,
paid), shall be paid in full to such Replaced Lender concurrently with
such replacement. Upon the execution of the respective Assignment
Agreements, recordation of such assignment in the Register by
Administrative Agent pursuant to subsection 2.1D, the payment of
amounts referred to in clauses (i) and (ii) above and delivery to the
Replacement Lender of the appropriate Note or Notes executed by
Borrowers, the Replacement Lender shall become a Lender hereunder and
the Replaced Lender shall cease to constitute a Lender hereunder
except with respect to indemnification provisions under this Agreement
which by the terms of this Agreement survive the termination of this
Agreement, which indemnification provisions shall survive as to such
Replaced Lender. Notwithstanding anything to the contrary contained
above, no Issuing Lender may be replaced hereunder at any time while
it has Letters of Credit outstanding hereunder unless arrangements
satisfactory to such Issuing Lender (including the furnishing of a
Standby Letter of Credit in form and substance, and issued by an
issuer, satisfactory to such Issuing Lender or the furnishing of cash
collateral in amounts and pursuant to arrangements satisfactory to
such Issuing Lender) have been made with respect to such outstanding
Letters of Credit.
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ANNEX C
2.9 INDEMNIFYING LENDERS.
A. PURCHASE OF PARTICIPATIONS BY INDEMNIFYING LENDERS. Upon
the execution of this Agreement or an Assignment Agreement, as the
case may be, (1) each UK Indemnifying Lender shall be deemed to, and
hereby agrees to, have irrevocably purchased an Indemnity
Participation (as defined below) from Administrative Agent in the UK
Revolving Loan Commitment of Administrative Agent, including without
limitation the UK Revolving Loans and the participations purchased by
Administrative Agent pursuant to subsection 3.1C in the Letters of
Credit issued by Administrative Agent for the benefit of ▇▇▇▇ UK and
any drawings thereunder, (2) each French Indemnifying Lender shall be
deemed to, and hereby agrees to, have irrevocably purchased an
Indemnity Participation (as defined below) from Administrative Agent
in the French Revolving Loan Commitment of Administrative Agent,
including without limitation the French Revolving Loans and the
participations purchased by Administrative Agent pursuant to
subsection 3.1C in the Letters of Credit issued by Administrative
Agent for the benefit of ▇▇▇▇ France and any drawings thereunder, and
(3) each Japanese Indemnifying Lender shall be deemed to, and hereby
agrees to, have irrevocably purchased a participation (the "INDEMNITY
PARTICIPATION") from Administrative Agent in the Japanese Revolving
Loan Commitment of Administrative Agent, including without limitation
the Japanese Revolving Loans and the participations purchased by
Administrative Agent pursuant to subsection 3.1C in the Letters of
Credit issued by the Administrative Agent and any drawings thereunder,
in each case in a proportionate amount based on such Indemnifying
Lender's Indemnity Amount. Upon the occurrence of a Triggering Event,
each Indemnifying Lender, upon one Business Day's notice from
Administrative Agent, shall deliver to Administrative Agent by wire
transfer in immediately available funds its proportionate share based
on its Indemnity Amount of the aggregate unpaid principal amount of
Administrative Agent's UK Revolving Loans, French Revolving Loans or
Japanese Revolving Loans, as the case may be, and any accrued and
unpaid interest thereon and the aggregate unreimbursed amount of any
payments made by Administrative Agent pursuant to subsection 3.3C to
the applicable Issuing Lender with respect to any unreimbursed
drawings on Letters of Credit issued by such Issuing Lender. Each
Indemnifying Lender's obligations under this subsection 2.9 shall be
absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (a) any set-off,
counterclaim, recoupment, defense or other right which Administrative
Agent or any Lender may have against Administrative Agent, Loan Party
or other Person for any reason whatsoever; (b) the occurrence or
continuance of an Event of Default or a Potential Event of Default;
(c) any adverse change in the condition (financial or otherwise) of
any Loan Party; (d) any breach of this Agreement by any Loan Party,
Administrative Agent or any Lender; or (e) any other circumstance,
happening, or event whatsoever, whether or not similar to any of the
foregoing; PROVIDED that the obligations of each Indemnifying Lender
are subject to the condition that at the time such UK Revolving Loan,
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French Revolving Loan or Japanese Revolving Loan, as the case may be,
was made or such Letter of Credit was issued the duly authorized
officer of Administrative Agent responsible for the administration of
the credit relationship with ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan, as
the case may be, believed in good faith that either (x) no Event of
Default had occurred and was continuing or (y) any Event of Default
that had occurred and was continuing had been waived by Requisite
Lenders at the time such UK Revolving Loan, French Revolving Loan or
Japanese Revolving Loan, as the case may be, was made or such Letter
of Credit was issued.
B. PAYMENT OF INDEMNITY FEES. Administrative Agent shall
promptly pay by wire transfer of immediately available funds to each
applicable Indemnifying Lender, as an indemnity fee for the Indemnity
Participation provided to Administrative Agent by such Indemnifying
Lender in this subsection 2.9, the following amounts, in each case in
proportion to such Indemnifying Lender's Indemnity Amount: (i) with
respect to the UK Revolving Loans, French Revolving Loans or Japanese
Revolving Loans, as the case may be, an amount equal to (x) the excess
of the interest received by Administrative Agent pursuant to
subsection 2.2C from ▇▇▇▇ UK, from ▇▇▇▇ France or ▇▇▇▇ Japan, as the
case may be, over the Adjusted Offshore Rate on such UK Revolving
Loans, French Revolving Loans or Japanese Revolving Loans LESS (y)
0.125% per annum to be retained by Administrative Agent as an
Indemnity Participation fee; (ii) with respect to Letters of Credit,
(x) letter of credit fees received by Administrative Agent pursuant to
subsections 3.2(i)(b) and 3.2(ii)(b) from the applicable Issuing
Lender LESS (y) 0.125% per annum to be retained by Administrative
Agent as an Indemnity Participation fee; and (iii) commitment fees
received by Administrative Agent pursuant to subsection 2.3A from
Administrative Agent; PROVIDED that if any such indemnity fee is less
than $10,000, Administrative Agent shall not be required to so
promptly pay such indemnity fee to an Indemnifying Lender until the
aggregate unpaid amount of indemnity fees accumulates to an amount
exceeding $10,000. The excess, if any, of the interest payable to
Administrative Agent on the UK Revolving Loans, the French Revolving
Loans or Japanese Revolving Loans, as the case may be, over the
interest distributable to an Indemnifying Lender under this subsection
2.9B in respect thereof, and the excess, if any, of the letter of
credit and commitment fees payable to Administrative Agent over and in
addition to the letter of credit and commitment fees distributable to
such Indemnifying Lender under this subsection 2.9B, shall be retained
by Administrative Agent.
C. OTHER PAYMENTS. Provided that an Indemnifying Lender
shall have made any payments to Administrative Agent required by this
subsection 2.9, including the payments required to be made upon the
occurrence of a Triggering Event pursuant to subsection 2.9A,
Administrative Agent shall promptly pay by wire transfer of
immediately available funds to such Indemnifying Lender any principal
or other payments thereafter recovered by Administrative Agent from
▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan, as the case may be, to the extent
allocable to such Indemnifying Lender's Indemnity Participation. If
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Administrative Agent shall pay any amount to an Indemnifying Lender
pursuant to this subsection 2.9 in the belief or expectation that a
related payment has been or will be received or collected and such
related payment is not received or collected by Administrative Agent,
then such Indemnifying Lender will promptly on demand by
Administrative Agent return such amount to Administrative Agent,
together with interest thereon at such rate as Administrative Agent
shall determine to be customary between banks for correction of
errors. If Administrative Agent determines at any time that any
amount received or collected by Administrative Agent pursuant to this
Agreement is to be returned to ▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan, as
the case may be, under this Agreement or paid to any other Person or
entity pursuant to any insolvency law, any sharing clause in this
Agreement, or otherwise, then, notwithstanding any other provision of
this Agreement, Administrative Agent shall not be required to
distribute any portion thereof to any Indemnifying Lender, and each
Indemnifying Lender will promptly on demand by Administrative Agent
repay any portion that Administrative Agent shall have distributed to
such Indemnifying Lender, together with interest thereon at such rate,
if any, as Administrative Agent shall pay to ▇▇▇▇ UK, ▇▇▇▇ France or
▇▇▇▇ Japan, as the case may be, or such other Person or entity with
respect thereto. If any amounts returned by Administrative Agent to
▇▇▇▇ UK, ▇▇▇▇ France or ▇▇▇▇ Japan, as the case may be, pursuant to
this subsection 2.9 are later recouped by Administrative Agent,
Administrative Agent shall promptly pay to each Indemnifying Lender a
proportionate amount based on such Indemnifying Lender's Indemnity
Amount.
D. INDEMNITY FOR COSTS AND EXPENSES. If Administrative
Agent incurs any costs or expenses (including, without limitation, in
indemnifying Administrative Agent pursuant to subsection 9.4) in
connection with any effort to enforce or protect Administrative
Agent's or any Indemnifying Lender's rights or interests with respect
to this Agreement or the other Loan Documents, then, other than in the
case of Administrative Agent's gross negligence or willful misconduct,
each Indemnifying Lender will reimburse Administrative Agent on demand
for each such Indemnifying Lender's proportionate share based on such
Indemnifying Lender's Indemnity Amount of any portion of such costs or
expenses which is not reimbursed by or on behalf of ▇▇▇▇ UK, ▇▇▇▇
France or ▇▇▇▇ Japan, as the case may be. If Administrative Agent
recovers any amounts for which Administrative Agent has previously
been reimbursed by an Indemnifying Lender hereunder, Administrative
Agent shall promptly distribute to such Indemnifying Lender such
Indemnifying Lender's proportionate share thereof based on such
Indemnifying Lender's Indemnity Amount.
E. CERTAIN TAX MATTERS. Each Indemnifying Lender agrees
to deliver to Administrative Agent from time to time upon request such
certificates, statements, documents, forms or other evidence, properly
completed and executed by such Indemnifying Lender, as may be required
at any time in order to comply with any applicable tax laws or
regulations or to confirm or maintain in effect such Indemnifying
Lender's entitlement to exemption from or reduction of any applicable
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withholding tax on any payments hereunder. Each Indemnifying Lender
hereby agrees to indemnify and hold harmless Administrative Agent from
any applicable taxes, penalties, interest and other expenses, costs
and losses incurred or payable by Administrative Agent as a result of
either (i) such Indemnifying Lender's failure to submit any statement,
document, form or certificate or other evidence that such Indemnifying
Lender is required to provide pursuant to this subsection or (ii)
Administrative Agent's reliance on any such statement, document, form
or certificate or other evidence which such Indemnifying Lender has
provided to Administrative Agent pursuant to this subsection.
F. INDEMNIFYING LENDER CONSENT. Notwithstanding any
provision to the contrary contained in this Agreement or the other
Loan Documents and so long as an Indemnifying Lender has not failed to
make any payments required to be made by such Indemnifying Lender
under this subsection 2.9 or is not otherwise in default under its
obligations under this subsection 2.9, Administrative Agent hereby
agrees that, to the extent of but only to the extent of such
Indemnifying Lender's proportionate share based on its Indemnity
Amount, Administrative Agent will not agree to any amendment,
modification, termination or waiver of any provision of this Agreement
or the other Loan Documents, or to any departure by ▇▇▇▇ UK, ▇▇▇▇
France or ▇▇▇▇ Japan, as the case may be, therefrom, in each case
related to the Indemnity Participation without the prior written
consent of such Indemnifying Lender. Nothing herein contained shall
prevent Administrative Agent from consenting to any amendment,
modification, termination or waiver of any provision of this Agreement
or the other Loan Documents, or to any departure by ▇▇▇▇ UK, ▇▇▇▇
France or ▇▇▇▇ Japan, as the case may be, therefrom, to the extent
unrelated to the Indemnity Participation or to the extent that
Administrative Agent's interests or Pro Rata Share is not related to
the Indemnity Participation or the Indemnity Amount.
G. FAILURE TO MAKE REQUIRED PAYMENTS. In the event that
any Person obligated to make a payment to any other Person pursuant to
this subsection 2.9 fails to make available to the Person entitled to
receive such payment the amount of such payment, the Person entitled
to receive such payment shall be entitled to recover such amount on
demand from such other Person, together with interest at the customary
rate set by Administrative Agent for the correction of errors among
Lenders for three Business Days and thereafter at the sum of the Base
Rate PLUS 1.50% per annum.
H. ASSIGNMENT MATTERS. Administrative Agent may from time
to time sell or transfer to other Persons assignments or
participations or other interests in Administrative Agent's UK
Revolving Loans and UK Revolving Loan Commitments, French Revolving
Loans and French Revolving Loan Commitments or Japanese Revolving
Loans and Japanese Revolving Loan Commitments, as the case may be, but
not in the portion thereof allocated to the Indemnity Participation
hereunder. An Indemnifying Lender's Indemnity Participation may not
be sold, pledged, assigned, or otherwise transferred (i) without
Administrative Agent's prior written consent; PROVIDED that this
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restriction shall not apply to any such transfer to any of such
Indemnifying Lender's Affiliates; or (ii) without a pro rata
assignment in accordance with subsection 10.1B of each Type of
Revolving Loan Commitment and Revolving Loan held by such Indemnifying
Lender.
I. MISCELLANEOUS. In no event shall the Indemnity
Participation be construed as a loan or other extension of credit by
an Indemnifying Lender to Administrative Agent. In no event shall
this Agreement be construed to require an Indemnifying Lender to make
any Loans or to otherwise extend any credit to ▇▇▇▇ UK, ▇▇▇▇ France or
▇▇▇▇ Japan, as the case may be, or to Administrative Agent under this
Agreement or under the other Loan Documents. In no event shall this
Agreement be construed to require an Indemnifying Lender to fund or
pay to Administrative Agent such Indemnifying Lender's Indemnity
Amount except upon the occurrence of a Triggering Event pursuant to
subsection 2.9A. Each Indemnifying Lender agrees that Administrative
Agent may take legal action to enforce or protect an Indemnifying
Lender's or Administrative Agent's interests in respect of this
Agreement and the other Loan Documents.
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