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EXHIBIT 10.10
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CREDIT AGREEMENT
DATED AS OF FEBRUARY 27, 1998
AMONG
ZILOG, INC.
(FOLLOWING THE MERGER),
AS BORROWER,
THE LENDERS LISTED HEREIN,
AS LENDERS,
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
AS ARRANGER AND SYNDICATION AGENT,
AND
BANKBOSTON, N.A.,
AS ADMINISTRATIVE AGENT
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ZILOG, INC.
CREDIT AGREEMENT
TABLE OF CONTENTS
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SECTION 1.
DEFINITIONS.................................... 2
1.1 Certain Defined Terms.............................................. 2
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations
Under Agreement.................................................... 32
1.3 Other Definitional Provisions and Rules of Construction............ 32
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS
AND REVOLVING LOANS ................................ 33
2.1 Commitments; Making of Revolving Loans; the Register; Revolving
Notes.............................................................. 33
2.2 Interest on the Revolving Loans.................................... 37
2.3 Fees............................................................... 40
2.4 Repayments, Prepayments and Reductions in Revolving Loan
Commitments; General Provisions Regarding Payments; Application of
Proceeds of Collateral and Payments Under Subsidiary Guaranty...... 40
2.5 Use of Proceeds.................................................... 44
2.6 Special Provisions Governing Eurodollar Rate Loans................. 44
2.7 Increased Costs; Taxes; Capital Adequacy........................... 47
2.8 Obligation of Lenders and Issuing Lender to Mitigate............... 51
SECTION 3.
LETTERS OF CREDIT................................. 52
3.1 Issuance of Letters of Credit and Lenders' Purchase of
Participations Therein............................................. 52
3.2 Letter of Credit Fees.............................................. 54
3.3 Drawings and Reimbursement of Amounts Paid Under Letters
of Credit ......................................................... 55
3.4 Obligations Absolute............................................... 57
3.5 Indemnification; Nature of Issuing Lender's Duties................. 58
3.6 Increased Costs and Taxes Relating to Letters of Credit............ 59
SECTION 4.
CONDITIONS TO REVOLVING LOANS AND LETTERS OF CREDIT................ 60
4.1 Conditions to be Satisfied on the Closing Date..................... 60
4.2 Conditions to All Revolving Loans.................................. 65
4.3 Conditions to Letters of Credit.................................... 66
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SECTION 5.
COMPANY'S REPRESENTATIONS AND WARRANTIES...................... 67
5.1 Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries....................................................... 67
5.2 Authorization of Borrowing, etc.................................... 68
5.3 Financial Condition................................................ 69
5.4 No Material Adverse Change; No Restricted Payments................. 70
5.5 Title to Properties; Liens......................................... 70
5.6 Litigation; Adverse Facts.......................................... 70
5.7 Payment of Taxes................................................... 70
5.8 Performance of Agreements; Materially Adverse Agreements; Material
Contracts.......................................................... 71
5.9 Governmental Regulation............................................ 71
5.10 Securities Activities.............................................. 71
5.11 Employee Benefit Plans............................................. 71
5.12 Certain Fees....................................................... 72
5.13 Environmental Protection........................................... 72
5.14 Employee Matters................................................... 73
5.15 Solvency........................................................... 74
5.16 Matters Relating to Collateral..................................... 74
5.17 Related Agreements................................................. 75
5.18 Disclosure......................................................... 75
SECTION 6.
COMPANY'S AFFIRMATIVE COVENANTS.......................... 75
6.1 Financial Statements and Other Reports............................. 76
6.2 Corporate Existence, etc........................................... 80
6.3 Payment of Taxes and Claims; Tax Consolidation..................... 81
6.4 Maintenance of Properties; Insurance; Application of Net
Insurance/Condemnation Proceeds.................................... 81
6.5 Inspection Rights; Audits of Inventory and Accounts Receivable;
Lender Meeting..................................................... 82
6.6 Compliance with Laws, etc.......................................... 82
6.7 Environmental Review and Investigation, Disclosure, Etc.; Company's
Actions Regarding Hazardous Materials Activities, Environmental
Claims and Violations of Environmental Laws........................ 83
6.8 Execution of Subsidiary Guaranty and Personal Property Collateral
Documents by Certain Subsidiaries and Future Subsidiaries.......... 85
6.9 Determination of Borrowing Base.................................... 86
6.10 Lockbox System..................................................... 87
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SECTION 7.
COMPANY'S NEGATIVE COVENANTS............................ 88
7.1 Indebtedness....................................................... 88
7.2 Liens and Related Matters.......................................... 90
7.3 Restricted Payments................................................ 91
7.4 Financial Covenants................................................ 94
7.5 Restriction on Fundamental Changes; Asset Sales.................... 95
7.6 Sales and Lease-Backs.............................................. 95
7.7 Sale of Receivables................................................ 95
7.8 Transactions with Shareholders and Affiliates...................... 96
7.9 Disposal of Subsidiary Stock....................................... 96
7.10 Amendments or Waivers of Certain Related Agreements................ 97
7.11 Fiscal Year........................................................ 97
SECTION 8.
EVENTS OF DEFAULT................................. 97
8.1 Failure to Make Payments When Due.................................. 97
8.2 Default in Other Agreements........................................ 98
8.3 Breach of Certain Covenants........................................ 98
8.4 Breach of Warranty................................................. 98
8.5 Other Defaults Under Loan Documents................................ 98
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc............... 99
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc................. 99
8.8 Judgments and Attachments.......................................... 99
8.9 Dissolution........................................................ 100
8.10 Employee Benefit Plans............................................. 100
8.11 Change in Control.................................................. 100
8.12 Invalidity of Subsidiary Guaranty; Failure of Security;
Repudiation of Obligations......................................... 100
SECTION 9.
AGENTS....................................... 102
9.1 Appointment........................................................ 102
9.2 Powers and Duties; General Immunity................................ 103
9.3 Representations and Warranties; No Responsibility For Appraisal of
Creditworthiness................................................... 104
9.4 Right to Indemnity................................................. 105
9.5 Successor Administrative Agent..................................... 105
9.6 Collateral Documents and Guaranties................................ 106
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SECTION 10.
MISCELLANEOUS................................... 107
10.1 Assignments and Participations in Revolving Loans and Letters of
Credit............................................................. 107
10.2 Expenses........................................................... 110
10.3 Indemnity.......................................................... 111
10.4 Set-Off; Security Interest in Deposit Accounts..................... 112
10.5 Ratable Sharing.................................................... 112
10.6 Amendments and Waivers............................................. 113
10.7 Independence of Covenants.......................................... 114
10.8 Notices............................................................ 114
10.9 Survival of Representations, Warranties and Agreements............. 114
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative.............. 115
10.11 Marshalling; Payments Set Aside.................................... 115
10.12 Severability....................................................... 115
10.13 Obligations Several; Independent Nature of Lenders' Rights......... 115
10.14 Headings........................................................... 116
10.15 Applicable Law..................................................... 116
10.16 Successors and Assigns............................................. 116
10.17 Consent to Jurisdiction and Service of Process..................... 116
10.18 Waiver of Jury Trial............................................... 117
10.19 Confidentiality.................................................... 117
10.20 Maximum Amount..................................................... 118
10.21 Counterparts; Effectiveness........................................ 118
Signature pages S-1
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EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
IV FORM OF REVOLVING NOTE
V FORM OF COMPLIANCE CERTIFICATE
VI FORM OF OPINIONS OF COUNSEL TO LOAN PARTIES
VII FORM OF OPINION OF O'MELVENY & ▇▇▇▇▇ LLP
VIII FORM OF ASSIGNMENT AGREEMENT
IX FORM OF CERTIFICATE RE NON-BANK STATUS
X FORM OF COLLATERAL ACCOUNT AGREEMENT
XI FORM OF COMPANY SECURITY AGREEMENT
XII FORM OF SUBSIDIARY GUARANTY
XIII FORM OF SUBSIDIARY SECURITY AGREEMENT
XIV FORM OF CERTIFICATE OF DESIGNATIONS
XV FORM OF COLLATERAL ACCESS AGREEMENT
XVI FORM OF BORROWING BASE CERTIFICATE
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SCHEDULES
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
4.1C CORPORATE AND CAPITAL STRUCTURE; OWNERSHIP; MANAGEMENT
5.1 SUBSIDIARIES OF COMPANY
5.12 CERTAIN FEES
5.13 ENVIRONMENTAL MATTERS
5.14 EMPLOYEE MATTERS
7.1 CERTAIN EXISTING ▇▇▇▇▇▇▇▇▇▇▇▇
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ZILOG, INC.
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of February 27, 1998, and entered into
by and among ZILOG, INC., a Delaware corporation ("COMPANY"), ▇▇▇▇▇▇▇ SACHS
CREDIT PARTNERS L.P. ("GSCP"), as arranger (in such capacity, "ARRANGER") and
syndication agent (in such capacity, "SYNDICATION AGENT"), THE FINANCIAL
INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (each individually referred to
herein as a "LENDER" and collectively as "LENDERS"), and BANKBOSTON, N.A.
("BANKBOSTON"), as administrative agent for Lenders (in such capacity,
"ADMINISTRATIVE AGENT").
R E C I T A L S
WHEREAS, TPG (this and other capitalized terms used in these recitals
without definition being used as defined in subsection 1.1) has formed Merger
Sub for the purpose of acquiring not less than 90% of the outstanding shares of
capital stock of Zilog;
WHEREAS, on or before the Closing Date, Merger Sub shall issue and sell
common and preferred equity with net Cash proceeds of not less than $117,500,000
which will be contributed by TPG and certain other investors to Company, which
equity shall after the Closing Date constitute the Company Common Stock and
Company Preferred Stock;
WHEREAS, on or before the Closing Date, Company shall issue and sell not
less than $280,000,000 in aggregate principal amount of Senior Secured Notes;
WHEREAS, on the Closing Date, Merger Sub will be merged with and into
Zilog pursuant to the Merger Agreement, with Zilog being the surviving
corporation in such merger;
WHEREAS, Lenders have agreed to extend certain credit facilities to
Company, the proceeds of which will be used to provide financing for working
capital and other general corporate purposes of Company and its Subsidiaries;
WHEREAS, Company desires to secure all of the Obligations hereunder and
under the other Loan Documents by granting to Administrative Agent, on behalf of
Lenders, a Lien on all of its Accounts Receivable and Inventory;
WHEREAS, all of the Domestic Subsidiaries of Company have agreed to
guarantee the Obligations hereunder and under the other Loan Documents and to
secure their guaranties by granting to Administrative Agent, on behalf of
Lenders, a Lien on all of their Accounts Receivable and Inventory;
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NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Company, Lenders and Agents agree as
follows:
SECTION 1.
DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the following
meanings:
"ACCOUNT RECEIVABLE" means, with respect to any Person, all
present and future rights of such Person to payment for goods sold or
leased or for services rendered no matter how evidenced, including, but
not limited to accounts receivable, contract rights, notes, drafts,
acceptances, instruments and other forms of obligations in accounts,
whether now existing or hereafter arising and wherever arising, and
whether or not they have been earned by performance.
"ACQUIRED DEBT" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person
is merged with or into or became a Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection with,
or in contemplation of, such other Person merging with or into or
becoming a Subsidiary of such specified Person, and (ii) Indebtedness
secured by a Lien encumbering any asset acquired by such specified
Person.
"ADJUSTED EURODOLLAR RATE" means, for any Interest Rate
Determination Date with respect to an Interest Period for a Eurodollar
Rate Loan, the rate per annum obtained by dividing (i) (a) the per annum
rate for deposits in Dollars for the period corresponding to the
duration of the relevant Interest Period which appears on Telerate Page
3750 at approximately 11:00 A.M. (London time) on such Interest Rate
Determination Date or (b) if such rate does not appear on Telerate Page
3750 on such Interest Rate Determination Date, the per annum rate
(rounded upward to the nearest 1/16th of one percent) at which deposits
in Dollars are offered by Administrative Agent to first class banks in
the London interbank market, in the approximate amount of Administrative
Agent's relevant Eurodollar Loan and having a maturity approximately
equal to such Interest Period, at approximately 11:00 A.M. (London time)
on such Interest Rate Determination Date by (ii) a percentage equal to
100% minus the stated maximum rate of all reserve requirements
(including any marginal, emergency, supplemental, special or other
reserves) applicable on such Interest Rate Determination Date to any
member bank of the Federal Reserve System in respect of "Eurocurrency
liabilities" as defined in Regulation D (or any successor category of
liabilities under Regulation D). The reference to Telerate Page 3750 in
this definition shall be construed to be a reference to the relevant
page or any other page that may replace such page on the Telerate
service or any other service that may be nominated by the British
Bankers Association as the information vendor for the
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purpose of displaying British Bankers' Association Interest Settlement
Rates for deposit in Dollars.
"ADMINISTRATIVE AGENT" has the meaning assigned to that term in
the introduction to this Agreement and also means and includes any
successor Administrative Agent appointed pursuant to subsection 9.5A.
"AFFECTED LENDER" has the meaning assigned to that term in
subsection 2.6C.
"AFFECTED LOANS" 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 or policies
of that Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or
more of the voting securities of a Person shall be deemed to be control.
"AGENT" means, individually, each of Arranger, Syndication Agent
and Administrative Agent and "AGENTS" means Arranger, Syndication Agent
and Administrative Agent, collectively.
"AGGREGATE AMOUNTS DUE" has the meaning assigned to that term in
subsection 10.5.
"AGREEMENT" means this Credit Agreement dated as of February 27,
1998, as it may be amended, supplemented or otherwise modified from time
to time.
"APPLICABLE MARGIN" means, with respect to any Pricing Period,
the percentage per annum set forth below corresponding to the Pricing
Level in effect for such Pricing Period:
REVOLVING LOANS
---------------------------
PRICING BASE RATE EURODOLLAR
LEVEL LOANS LOANS
------- -------- ----------
I 1.25% 2.25%
II 1.50% 2.50%
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"ARRANGER" has the meaning assigned to that term in the
introduction to this Agreement.
"ASSET SALE" means (i) the sale, lease (other than an operating
lease), conveyance or other disposition of any assets or rights
(including, without limitation, by way of a sale and leaseback) other
than in the ordinary course of business consistent with past practices
and (ii) the sale by Company and the issue or sale by any of its
Subsidiaries of Equity Interests of any of Company's Subsidiaries, in
the case of either clause (i) or (ii), whether in a single transaction
or a series of related transactions that have a fair market value (as
determined in good faith by the Board of Directors of Company) in excess
of $1,000,0000 or for net cash proceeds in excess of $1,000,000.
Notwithstanding the foregoing: (i) a transfer of assets by the Company
to a Subsidiary Guarantor or by a Subsidiary Guarantor to Company or to
another Subsidiary Guarantor, (ii) an issuance of Equity Interests by a
Subsidiary Guarantor to Company or to another Subsidiary Guarantor,
(iii) a Restricted Payment that is permitted by subsection 7.3, (iv) a
Collateral Asset Sale (as defined in the Senior Secured Note Indenture)
and (v) the sale and leaseback of any assets within 90 days of the
acquisition of such assets, will not be deemed to be Asset Sales.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement in
substantially the form of Exhibit VII annexed hereto.
"ATTRIBUTABLE DEBT" in respect of a sale and leaseback
transaction means, at the time of determination, the present value
(discounted at the rate of interest implicit in such transaction,
determined in accordance with GAAP) of the obligation of the lessee for
net rental payments during the remaining term of the lease included in
such sale and leaseback transaction (including any period for which such
lease has been extended or may, at the option of the lessor, be
extended).
"BANKBOSTON" has the meaning assigned to that term in the
introduction to this Agreement.
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any successor
statute.
"BASE RATE" means, at any time, the higher of (i) the annual rate
of interest announced from time to time by BankBoston at its head office
Boston, Massachusetts, as its "base rate" or (ii) the rate which is 1/2
of 1% in excess of the Federal Funds Effective Rate. The "base rate" of
BankBoston is a reference rate and does not necessarily represent the
lowest or best rate charged to any customer. BankBoston or any other
Lender may make commercial loans or other loans at rates of interest at,
above or below such base rate.
"BASE RATE LOANS" means Loans bearing interest at rates
determined by reference to the Base Rate as provided in subsection 2.2A.
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"BORROWING BASE" means as at any date of determination, an amount
equal to (i) the sum of 80% of the Dollar value of (a) Eligible Accounts
Receivable plus (b) 40% of Eligible Inventory minus (ii) the aggregate
amount of any reserves established by Administrative Agent, in its
reasonable judgment and in accordance with its customary commercial
lending practices, against Eligible Accounts Receivable and Eligible
Inventory.
"BORROWING BASE CERTIFICATE" means a certificate substantially in
the form of Exhibit XVI annexed hereto delivered by Company to
Administrative Agent pursuant to subsection 4.1H(v), or subsection
6.1(xvi).
"BUSINESS DAY" means (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the States of New York or
Massachusetts or is a day on which banking institutions located in such
state are authorized or required by law or other governmental action to
close, and (ii) with respect to all notices, determinations, fundings
and payments in connection with the Adjusted Eurodollar Rate or any
Eurodollar 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 interbank Eurodollar market.
"CAPITAL LEASE OBLIGATION" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a
capital lease that would at such time be required to be capitalized on a
balance sheet in accordance with GAAP.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock, (iii) in the case of a
partnership or limited liability company, partnership or membership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of
the profits and losses of, or distributions of assets of, the issuing
Person.
"CASH" means money, currency or a credit balance in a Deposit
Account.
"CASH EQUIVALENTS" means, as at any date of determination, (i)
securities issued or unconditionally and fully guaranteed or insured by
the full faith and credit of the United States Government or any agency
or instrumentality thereof having maturities of not more than one year
from the date of acquisition; (ii) obligations issued or unconditionally
and fully guaranteed by any state of the United States of America or any
political subdivision of any such state or any public instrumentality
thereof, maturing within one year from the date of acquisition thereof
and, at the time of the acquisition, having one of the two highest
ratings obtainable from either Standard & Poor's Ratings Group ("S&P")
or ▇▇▇▇▇'▇ Investors Service, Inc. ("MOODY'S"); (iii) certificates of
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deposit and Eurodollar time deposits with maturities of one year or less
from the date of acquisition, bankers' acceptances with maturities not
exceeding one year and overnight bank deposits, in each case with any
Lender party to this Agreement or with any domestic commercial bank
having capital and surplus in excess of $250,000,000; (iv) repurchase
obligations with a term of not more than seven days for underlying
securities of the types described in clauses (i) and (iii) above entered
into with any financial institution meeting the qualifications specified
in clause (iii) above; (v) commercial paper having one of the two
highest ratings obtainable from either Moody's or S&P and in each case
maturing within one year after the date of acquisition; and (vi)
investments in funds investing exclusively in investments of the types
described in clauses (i) through (v) above.
"CERTIFICATE OF DESIGNATIONS" means the provisions of Company's
Certificate of Designations of Series A Cumulative Preferred Stock
substantially in the form of Exhibit XIV annexed hereto and as such
provisions may be amended from time to time thereafter to the extent
permitted under subsection 7.10.
"CERTIFICATE RE NON-BANK STATUS" means a certificate
substantially in the form of Exhibit IX annexed hereto delivered by a
Lender to Administrative Agent pursuant to subsection 2.7B(iii).
"CHANGE OF CONTROL" means the occurrence of any of the following:
(i) the sale, lease, transfer, conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of Company and
its Subsidiaries taken as a whole to any "person" (as such term is used
in Section 13(d)(3) of the Exchange Act) other than TPG and its
Affiliates, (ii) the adoption of a plan relating to the liquidation or
dissolution of the Company, (iii) the consummation of any transaction
(including, without limitation, any merger or consolidation) the result
of which is that (a) any "person" (as defined above), other than TPG and
its Affiliates, becomes the "beneficial owner" (as such term is defined
in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or
indirectly, of 40% or more of the Voting Stock of Company (measured by
voting power rather than number of shares) and (b) TPG and its
Affiliates beneficially own, directly or indirectly, in the aggregate a
lesser percentage of the Voting Stock of Company than such other
"person", (iv) the first day on which a majority of the members of the
Board of Directors of Company are not Continuing Directors or (v)
Company consolidates with, or merges with or into, any Person, or any
Person consolidates with, or merges with or into, Company, in any such
event pursuant to a transaction in which any of the outstanding Voting
Stock of Company is converted into or exchanged for cash, securities or
other property, other than any such transaction where (a) the Voting
Stock of Company outstanding immediately prior to such transaction is
converted into or exchanged for Voting Stock (other than Disqualified
Stock) of the surviving or transferee Person and (b) either (1) the
"beneficial owners" (as defined above) of the Voting Stock of Company
immediately prior to such transaction own, directly or indirectly
through one or more Subsidiaries, not less than a majority of the total
Voting Stock of the surviving or transferee corporation
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immediately after such transaction or (2) if, immediately prior to such
transaction Company is a direct or indirect Subsidiary of any other
Person (such other Person, the "Holding Company"), then the "beneficial
owners" (as defined above) of the Voting Stock of such Holding Company
immediately prior to such transaction own, directly or indirectly
through one or more Subsidiaries, not less than a majority of the Voting
Stock of the surviving or transferee corporation immediately after such
transaction.
"CLOSING DATE" means the date on or before February 28, 1998, on
which all of the conditions set forth in subsection 4.1 have been
satisfied.
"COLLATERAL" means, collectively, all of the Accounts Receivable
and Inventory and proceeds thereof and any amounts held in the
Collateral Account in which Liens are purported to be granted pursuant
to the Collateral Documents as security for the Obligations.
"COLLATERAL ACCESS AGREEMENT" means a Collateral Access Agreement
substantially in the form of Exhibit XV annexed hereto, executed by any
mortgagee, lessor or contract warehouseman of Company and its
Subsidiaries in connection with the Collateral.
"COLLATERAL ACCOUNT" has the meaning assigned to that term in
the Collateral Account Agreement.
"COLLATERAL ACCOUNT AGREEMENT" means the Collateral Account
Agreement executed and delivered by Company and Administrative Agent on
the Closing Date, substantially in the form of Exhibit X annexed hereto,
as such Collateral Account Agreement may hereafter be amended,
supplemented or otherwise modified from time to time.
"COLLATERAL DOCUMENTS" means the Company Security Agreement, the
Collateral Account Agreement, the Subsidiary Security Agreement, and all
other instruments or documents delivered by any Loan Party pursuant to
this Agreement or any of the other Loan Documents in order to grant to
Administrative Agent, on behalf of Lenders, a Lien on any personal
property of that Loan Party as security for the Obligations.
"COMMITMENT PERCENTAGE" means, with respect to any Pricing
Period, the percentage per annum set forth below corresponding to the
Pricing Level in effect for such Pricing Period:
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COMMITMENT
PRICING LEVEL PERCENTAGE
------------- ----------
I 0.25%
II 0.50%
"COMMITMENTS" means the commitments of Lenders to make Loans as
set forth in subsection 2.1A.
"COMPANY" means Zilog after the consummation of the Merger, as
the surviving corporation in the Merger.
"COMPANY COMMON STOCK" means the common stock of Company upon and
following the consummation of the Merger, par value $.01 per share.
"COMPANY PREFERRED STOCK" means the Series A Cumulative Preferred
Stock of Company with the terms set forth in the Certificate of
Designations.
"COMPANY SECURITY AGREEMENT" means the Company Security Agreement
executed and delivered by Company on the Closing Date, substantially in
the form of Exhibit XI annexed hereto, as such Company Security
Agreement may thereafter be amended, supplemented or otherwise modified
from time to time.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the
form of Exhibit V annexed hereto delivered to Administrative Agent and
Lenders by Company pursuant to subsection 6.1(iii).
"CONSOLIDATED ADJUSTED EBITDA" means, for any period, the sum of
the amounts for such period of Consolidated Net Income of such Person
for such period plus (i) an amount equal to any extraordinary loss plus
any net loss realized in connection with an Asset Sale (to the extent
such losses were deducted in computing such Consolidated Net Income),
plus (ii) provision for taxes based on income or profits of such Person
and its Subsidiaries for such period, to the extent that such provision
for taxes was included in computing such Consolidated Net Income, plus
(iii) consolidated interest expense of such Person and its Subsidiaries
for such period, whether paid or accrued and whether or not capitalized
(including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of
all payments associated with Capital Lease Obligations, imputed interest
with respect to Attributable Debt, commissions, discounts and other fees
and charges incurred in respect of letters of credit or bankers'
acceptance financings, and net payments (if any) pursuant to obligations
under Hedge Agreements), to the extent that any such expense was
deducted in computing such Consolidated Net
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Income, plus (iv) depreciation and amortization (including amortization
of goodwill and other intangibles but excluding amortization of prepaid
cash expenses that were paid in a prior period) and other non-cash
expenses (excluding any such non-cash expense to the extent that it
represents an accrual of or reserve for cash expenses in any future
period or amortization of a prepaid cash expense that was paid in a
prior period) of such Person and its Subsidiaries for such period to the
extent that such depreciation, amortization and other non-cash expenses
were deducted in computing such Consolidated Net Income, plus (v)
Recapitalization Related Special Charges of such Person and its
Subsidiaries for such period, to the extent any such expense was
deducted in computing Consolidated Net Income of such Person for such
period, plus (vi) deferred compensation expense of such Person and its
Subsidiaries for such period (provided, however, that any payments
actually made with respect to the liabilities for which such charges
were created shall be deducted from Consolidated Adjusted EBITDA in the
period when made), to the extent any such expense was deducted in
computing Consolidated Net Income of such Person for such period, plus
(vii) the impact on Consolidated Adjusted EBITDA of such Person for such
period in an aggregate amount not to exceed $5,000,000 since the Closing
Date, of the deferral of recognition of revenue by Company until
products are shipped by Company's distributors, minus (viii) non-cash
items increasing such Consolidated Net Income for such period, in each
case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the foregoing, the provision for taxes based on the
income or profits of, and the depreciation and amortization and other
non-cash charges of, a Subsidiary of a Person shall be added to
Consolidated Net Income to compute Consolidated Adjusted EBITDA only to
the extent (and in the same proportion) that the Net Income of such
Subsidiary was included in calculating the Consolidated Net Income of
such Person and only if a corresponding amount would be permitted at the
date of determination to be dividended to Company by such Subsidiary
without prior approval (that has not been obtained), pursuant to the
terms of its charter and all agreements, instruments,judgments, decrees,
orders, statutes, rules and governmental regulations applicable to that
Subsidiary or its stockholders.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
sum of (i) the aggregate of all expenditures (whether paid in cash or
other consideration or accrued as a liability and including Capital
Lease Obligations but excluding capitalized interest) 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 plus (ii) to the extent not covered by clause (i)
of this definition, the aggregate of all expenditures by Company and its
Subsidiaries during that period (a) to purchase or develop computer
software or systems (but only to the extent such expenditures are
capitalized on the consolidated balance sheet of Company and its
Subsidiaries in conformity with GAAP) or (b) to acquire (by purchase or
otherwise) the business, property or fixed assets of any Person, or the
stock or other evidence of beneficial ownership of any Person that, as a
result of such acquisition, becomes a Subsidiary of Company (but only to
the extent such expenditures are capitalized on the consolidated balance
sheet of Company and its
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Subsidiaries in conformity with GAAP), net of landlord contributions and
landlord allowances. "Consolidated Capital Expenditures" shall not
include (a) expenditures made in connection with the replacement,
substitution or restoration of assets (i) to the extent financed from
insurance proceeds paid on account of the loss or damage to the assets
being replaced or restored or (ii) with awards of compensation arising
from the taking by eminent domain or condemnation of the assets being
replaced, (b) the purchase price of equipment that is purchased
simultaneously with the trade-in of existing equipment to the extent and
only to the extent that the gross amount of such purchase price is
reduced by the credit granted by the seller of such equipment for the
equipment being traded in at such time and (c) the purchase of plant,
property or equipment made within one year of the sale of any assets to
the extent purchased with the proceeds of such sale.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum
(without duplication) of the amounts for such period of (i) scheduled
repayments of principal of Indebtedness, (ii) Consolidated Interest
Expense, (iii) Maintenance Capital Expenditures, (iv) scheduled cash
dividends on any preferred stock, (v) cash payments for taxes based on
income, and (vi) Consolidated Rental Payments, 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, with
respect to any Person for any period, the sum, without duplication, of
(i) the consolidated interest expense (net of interest income) of such
Person and its Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest
component of all payments associated with Capital Lease Obligations,
imputed interest with respect to Attributable Debt, commissions,
discounts and other fees and charges incurred in respect of letters of
credit or bankers' acceptance financings, and net payments (if any)
pursuant to obligations under Hedge Agreements); provided, however, that
in no event shall any of the following be included in Consolidated
Interest Expense (i) amortization of deferred financing costs incurred
in connection with the Merger, (ii) the consolidated interest expense of
such Person and its Subsidiaries that was capitalized during such
period, (iii) any interest expense on Indebtedness of another Person
that is guaranteed by such Person or one of its Subsidiaries or secured
by a Lien on assets of such Person or one of its Subsidiaries (whether
or not such guarantee or Lien is called upon) and (iv) the product of
(a) (without duplication) (1) all dividends paid or accrued in respect
of Disqualified Stock which are not treated as interest for tax purposes
and (2) all cash dividend payments, on any series of preferred stock of
such Person or any of its Subsidiaries, other than dividend payments on
Equity Interests payable solely in Equity Interests (other than
Disqualified Stock) of Company, times (b) a fraction, the numerator of
which is one and the denominator of which is one minus the then current
combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in
accordance with GAAP.
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"CONSOLIDATED NET INCOME" means, with respect to any Person for
any period, the aggregate of the Net Income of such Person and its
Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that (i) the Net Income (but not loss) of
any Person that is not a Subsidiary or that is accounted for by the
equity method of accounting shall be included only to the extent of the
amount of dividends or distributions paid in cash to the referent Person
or a Wholly Owned Subsidiary thereof that is a Subsidiary Guarantor,
(ii) the Net Income of any Subsidiary shall be excluded to the extent
that the declaration or payment of dividends or similar distributions by
that Subsidiary of that Net Income is not at the date of determination
permitted without any prior governmental approval (that has not been
obtained) or, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Subsidiary or its
stockholders, (iii) the Net Income of any Person acquired in a pooling
of interests transaction for any period prior to the date of such
acquisition shall be excluded, (iv) the cumulative effect of a change in
accounting principles shall be excluded and (v) the amortization of (a)
any premiums, fees or expenses incurred in connection with the Merger
and related financings, or (b) any amounts required or permitted by
Accounting Principles Board Opinion Nos. 16 (including non-cash
write-ups and non-cash charges relating to inventory and fixed assets,
in each case arising in connection with the Merger) and 17 (including
non-cash charges relating to intangibles and goodwill arising in
connection with the Merger) shall be excluded.
"CONSOLIDATED RENTAL PAYMENTS" means, for any period, the
aggregate amount of all rents paid or payable by Company and its
Subsidiaries on a consolidated basis during that period under all
capital leases and operating leases to which Company or any of its
Subsidiaries is a party.
"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.
"CONTINUING DIRECTORS" means as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of
such Board of Directors immediately after consummation of the Merger or
(ii) was nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were
members of such Board of Directors at the time of such nomination or
election, or any successor Continuing Directors appointed by such
Continuing Directors (or their successors).
"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.
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"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement, futures contract, option contract, synthetic
cap or other similar agreement or arrangement to which Company or any of
its Subsidiaries is a party.
"DEFERRED PREPAYMENT AMOUNT" has the meaning assigned such term
in subsection 2.4A(iv).
"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.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible or for
which it is exchangeable at the option of the holder thereof), or upon
the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the
option of the holder thereof, in whole or in part, on or prior to the
date on which the Senior Secured Notes mature; provided, however, that a
class of Capital Stock shall not be Disqualified Stock hereunder solely
as the result of any maturity or redemption that is conditioned upon,
and subject to, compliance with subsection 7.3; and provided, further,
that Capital Stock issued to any plan for the benefit of employees of
Company or its Subsidiaries or by any such plan to such employees shall
not constitute Disqualified Stock solely because it may be required to
be repurchased by Company in order to satisfy applicable statutory or
regulatory obligations.
"DOLLARS" and the sign "$" mean the lawful money of the United
States of America.
"DOMESTIC SUBSIDIARY" means any Wholly Owned Subsidiary of
Company organized under the laws of the United States or any state
thereof.
"ELIGIBLE ACCOUNTS RECEIVABLE" means the Dollar value of the
Accounts Receivable of Company and its Wholly Owned Subsidiaries which
at all times continue to be acceptable to Administrative Agent in its
reasonable judgment and in accordance with its customary commercial
lending practices, less any returns, discounts, claims, credits, and
allowances of any nature (whether issued, owing, granted or
outstanding). An Account Receivable shall not be included in Eligible
Accounts Receivable if:
(i) it arises out of a sale made by such Loan Party to an
Affiliate; or
(ii) its payment terms are longer than 60 days from date of
invoice; or
(iii) it is unpaid (a) more than 60 days after the original
payment due date on payment terms of 30 days or less from date of
invoice, or (b) more than 30 days after the
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original payment due date on payment terms of more than 30 days from
date of invoice; or
(iv) it is from the same account debtor (including any Affiliate
of such account debtor) and fifty percent (50%) or more of all Accounts
Receivable from that account debtor (and its Affiliates) are ineligible
under clause (iii) above; or
(v) when aggregated with all other Accounts Receivable of an
account debtor, such Account Receivable exceeds 25% in face value of all
Accounts Receivable of such Loan Party then outstanding, but only to the
extent of such excess, unless such excess is supported by an irrevocable
letter of credit reasonably satisfactory to Administrative Agent (as to
form, substance and issuer); or
(vi) the account debtor for such Account Receivable is a creditor
of such Loan Party, has or has asserted a right of setoff against such
Loan Party, or has disputed its liability or otherwise has made any
claim with respect to such Account Receivable or any other Account
Receivable which has not been resolved, in each case to the extent of
the amount owed by such Loan Party to such account debtor, the amount of
such actual or asserted right of setoff, or the amount of such dispute
or claim, as the case may be; or
(vii) such Account Receivable is owed by an account debtor which
has (a) commenced a voluntary case under the bankruptcy or insolvency
laws of any jurisdiction, or made an assignment for the benefit of
creditors, (b) against which a decree or order for relief has been
entered by a court in an involuntary case under the bankruptcy or
insolvency laws of any jurisdiction, or (c) against which any other
petition or any other application for relief under the bankruptcy or
insolvency laws of any jurisdiction has been filed and such petition or
application shall have continued unstayed or undischarged for 60 days,
or (d) which has suspended business or consented to or suffered a
receiver, trustee, liquidator or custodian to be appointed for it or for
all or a significant portion of its assets or affairs;
(viii) the sale to the account debtor is on a ▇▇▇▇-and-hold,
guarantied sale, sale-and-return, sale on approval or consignment basis
or was made pursuant to any other written agreement providing for
repurchase or return; or
(ix) the account debtor is the United States of America or any
department, agency or instrumentality thereof, unless such Loan Party
duly assigns its rights to payment of such Account Receivable to
Administrative Agent pursuant to the Assignment of Claims Act of 1940,
as amended (31 U.S.C. Sections 3727 et seq.); or
(x) the goods giving rise to such Account Receivable have not
been shipped and delivered to and accepted by the account debtor, the
services giving rise to such Account Receivable have not been performed
and accepted, or such Account Receivable otherwise does not represent a
final sale; or
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21
(xi) such Account Receivable does not comply in all material
respects with all Governmental Authorizations and laws, rules or
regulations of any governmental authority, including the Federal
Consumer Credit Protection Act, the Federal Truth in Lending Act and
Regulation Z of the Board of Governors of the Federal Reserve System; or
(xii) such Account Receivable is, as a result of the
creditworthiness, payment record or other similar circumstances of the
account debtor, subject to any security deposit, progress payment or
other similar advance made by or for the benefit of the applicable
account debtor; or
(xiii) such Account Receivable (a) in the case of Accounts
Receivable of Domestic Subsidiaries, is not subject to a valid and
perfected First Priority Lien in favor of Administrative Agent, (b) in
the case of Accounts Receivable of Foreign Subsidiaries, is subject to
any Lien, or (c) does not otherwise conform to the representations and
warranties contained in the Loan Documents; or
(xiv) any Account Receivable which Administrative Agent, in
accordance with its reasonable judgment and its customary criteria,
deems ineligible;
provided that notwithstanding anything herein to the contrary, Accounts
Receivable of Foreign Subsidiaries shall not constitute Eligible
Accounts Receivable to the extent the aggregate amount of Eligible
Accounts Receivable of Foreign Subsidiaries exceeds 33% of the total
aggregate amount of all Eligible Accounts Receivable.
"ELIGIBLE ASSIGNEE" means (i) (a) a commercial bank organized
under the laws of the United States or any state thereof; (b) a savings
and loan association or savings bank organized under the laws of the
United States or any state thereof; (c) a commercial bank organized
under the laws of any other country or a political subdivision thereof;
provided that (1) such bank is acting through a branch or agency located
in the United States or (2) 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 (d) any
other entity which is an "accredited investor" (as defined in Regulation
D under the Securities Act) which extends credit or buys loans as one of
its businesses including insurance companies, mutual funds and lease
financing companies; and (ii) any Lender and any Affiliate of any
Lender; provided that no Affiliate of Company shall be an Eligible
Assignee.
"ELIGIBLE INVENTORY" means the Dollar value of the Inventory of
Company and Subsidiary Guarantors which at all times continues to be
acceptable to Administrative Agent in its reasonable judgment and in
accordance with its customary commercial lending practices. In
determining the amount of Eligible Inventory to be so included,
Inventory shall be valued at the lower of cost or market on a basis
consistent with such
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Loan Party's current and historical accounting practices. An item of
Inventory shall not be included in Eligible Inventory if:
(i) it is not owned solely by such Loan Party or such Loan Party
does not have good, valid and marketable title thereto; or
(ii) it is not located in the United States; or
(iii) it is not located on property owned or leased by such Loan
Party or in a contract warehouse, in each case segregated or otherwise
separately identifiable from goods of others, if any, stored on the
premises and, if requested by Administrative Agent, subject to a
Collateral Access Agreement executed by any applicable mortgagee, lessor
or contract warehouseman, as the case may be; or
(iv) it is not subject to a valid and perfected First Priority
Lien in favor of Administrative Agent; or
(v) it consists of goods returned or rejected by such Loan
Party's customers or goods in transit to third parties (other than to
warehouse sites); or
(vi) it is obsolete or does not otherwise conform to the
representations and warranties contained in the Loan Documents; or
(vii) any item of Inventory which Administrative Agent, in
accordance with its reasonable judgment and its customary criteria,
deems ineligible.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as
defined in Section 3(3) of ERISA which is or was maintained or
contributed to by Company, any of its Subsidiaries or any of their
respective ERISA Affiliates (unless the context provides otherwise).
"ENVIRONMENTAL CLAIM" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or
other order, by any governmental authority or any other Person, arising
(i) pursuant to or in connection with any actual or alleged violation of
any Environmental Law, (ii) in connection with any Hazardous Materials
or any actual or alleged Hazardous Materials Activity, or (iii) in
connection with any actual or alleged damage, injury, threat or harm to
employee health or safety, natural resources or the environment.
"ENVIRONMENTAL LAWS" means any and all current or future
applicable statutes, ordinances, orders, rules, regulations, judgments,
Governmental Authorizations relating to (i) environmental matters,
including those relating to any Hazardous Materials Activity, or (ii)
occupational safety and health, in any manner applicable to Company or
any of its Subsidiaries or any Facility, including the Comprehensive
Environmental Response,
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Compensation, and Liability Act (42 U.S.C. Section 9601 et seq.), 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.), the Oil Pollution Act (33 U.S.C. Section 2701 et seq) and the
Emergency Planning and Community Right-to-Know Act (42 U.S.C. Section
11001 et seq.), each as amended or supplemented, any analogous present
or future applicable state or local statutes or laws, and any applicable
regulations promulgated pursuant to any of the foregoing.
"EQUITY INTERESTS" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor thereto.
"ERISA AFFILIATE" means, as applied to any Person, (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) 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 Company or any of its Subsidiaries shall continue to be considered an
ERISA Affiliate of Company or such Subsidiary within the meaning of this
definition with respect to the period such entity was an ERISA Affiliate
of Company or such Subsidiary and with respect to liabilities arising
after such period for which Company or such Subsidiary 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, any
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24
of its Subsidiaries or any of their respective ERISA Affiliates from any
Pension Plan with two or more contributing sponsors or the termination
of any such Pension Plan resulting in a material liability pursuant to
Section 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 might constitute grounds under ERISA for the
termination of, or the appointment of a trustee to administer, any
Pension Plan; (vi) the imposition of a material liability on Company,
any of its Subsidiaries or any of their respective 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 of
Company, any of its Subsidiaries or any of their respective 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 material liability therefor, or the receipt by Company,
any of its Subsidiaries or any of their respective 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 intends
to terminate or has terminated under Section 4041A or 4042 of ERISA;
(viii) the occurrence of an act or omission which could give rise to the
imposition on Company, any of its Subsidiaries or any of their
respective ERISA Affiliates of material fines, penalties, taxes or
related charges under Chapter 43 of the Internal Revenue Code or under
Section 409, Section 502(c), (i) or (l), or Section 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, any of its Subsidiaries or any of their respective
ERISA Affiliates in connection with any 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.
"EURODOLLAR RATE LOANS" means Revolving Loans bearing interest
at rates determined by reference to the Adjusted Eurodollar Rate as
provided in subsection 2.2A.
"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.
"FACILITIES" means any and all real property (including all
buildings, fixtures or other improvements located thereon) now,
hereafter or heretofore owned, leased, operated or used by Company or
any of its Subsidiaries or any of their respective predecessors or
Affiliates.
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"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a
fluctuating interest rate equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by Administrative Agent from three Federal funds
brokers of recognized standing selected by Administrative Agent.
"FINANCIAL PLAN" has the meaning assigned to that term in
subsection 6.1(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 on such Collateral and (ii)
such Lien is the only Lien (other than Permitted Encumbrances) to which
such Collateral is subject.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Company and its
Subsidiaries ending on December 31 of each calendar year. For purposes
of this Agreement, any particular Fiscal Year shall be designated by
reference to the calendar year in which such Fiscal Year ends.
"FOREIGN SUBSIDIARY" means any Wholly Owned Subsidiary of Company
organized under the laws of a country or jurisdiction other than the
United States or a state thereof.
"FUNDING AND PAYMENT OFFICE" means (i) the office of
Administrative Agent located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or (ii) such other office of Administrative Agent as
may from time to time hereafter be designated as such in a written
notice delivered by Administrative Agent to Company and each Lender.
"FUNDING DATE" means the date of the funding of a Revolving Loan
and does not include any date such Revolving Loan is continued or
converted.
"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.
"GOVERNMENTAL ACTS" has the meaning assigned to that term in
subsection 3.5A.
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"GOVERNMENTAL AUTHORIZATION" means any permit, license,
authorization, plan, directive, consent order or consent decree of or
from any federal, state or local governmental authority, agency or
court.
"GSCP" has the meaning assigned to that term in the introduction
to this Agreement.
"GUARANTEE" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of
business), direct or indirect, in any manner (including, without
limitation, letters of credit and reimbursement agreements in respect
thereof), of all or any part of any Indebtedness.
"HAZARDOUS MATERIALS" means (i) any chemical, material or
substance defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials", "extremely
hazardous waste", "acutely hazardous waste", "radioactive waste",
"biohazardous waste", "pollutant", "toxic pollutant", "contaminant",
"restricted hazardous waste", "infectious waste", "toxic substances", or
any other term or expression intended to define, list or classify
substances by reason of properties harmful to health, safety or the
indoor or outdoor environment 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) any asbestos-containing
materials; (vii) urea formaldehyde foam insulation; (viii) electrical
equipment which contains any oil or dielectric fluid containing
polychlorinated biphenyls; and (ix) pesticides.
"HAZARDOUS MATERIALS ACTIVITY" means any past, current, or
threatened activity, event or occurrence involving any Hazardous
Materials, including the use, manufacture, storage, presence, Release,
threatened Release, generation, transportation, processing, treatment or
handling of any Hazardous Materials, and any corrective action or
response or remedial action with respect to any of the foregoing.
"HEDGE AGREEMENT" means an Interest Rate Agreement or a Currency
Agreement designed to hedge against fluctuations in interest rates or
currency values, respectively.
"INDEBTEDNESS" means, with respect to any Person, any
indebtedness of such Person, whether or not contingent, in respect of
borrowed money or evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect
thereof) or banker's acceptances or representing Capital Lease
Obligations or the balance deferred and unpaid of the purchase price of
any property or representing any obligations under Hedge Agreements,
except any such balance that constitutes an accrued expense or trade
payable, if and to the extent any of the foregoing indebtedness (other
than letters of credit and obligations under Hedge Agreements) would
appear as a liability
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upon a balance sheet of such Person prepared in accordance with GAAP, as
well as all indebtedness of others secured by a Lien on any asset of
such Person (whether or not such indebtedness is assumed by such Person)
and, to the extent not otherwise included, the Guarantee by such Person
of any indebtedness of any other Person. The amount of any Indebtedness
outstanding as of any date shall be (i) the accreted value thereof, in
the case of any Indebtedness that does not require current payments of
interest, and (ii) the principal amount thereof, together with any
interest thereon that is more than 30 days past due, in the case of any
other Indebtedness.
"INDEMNIFIED LIABILITIES" has the meaning assigned to that term
in subsection 10.3.
"INDEMNITEE" has the meaning assigned to that term in subsection
10.3.
"INTELLECTUAL PROPERTY" means all patents, trademarks,
tradenames, copyrights, technology, know-how and processes used in or
necessary for the conduct of the business of Company and its
Subsidiaries as currently conducted that are material to the condition
(financial or otherwise), business or operations of Company and its
Subsidiaries, taken as a whole.
"INTEREST PAYMENT DATE" means (i) with respect to any Base Rate
Loan, each March 15, June 15, September 15 and December 15 of each year,
commencing on the first such date to occur after the Closing Date, and
(ii) with respect to any Eurodollar Rate Loan, the last day of each
Interest Period applicable to such Revolving Loan; provided that in the
case of each Interest Period of longer than three months "Interest
Payment Date" shall also include each date that is three months after
the commencement of such Interest Period.
"INTEREST PERIOD" has the meaning assigned to that term in
subsection 2.2B.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other
similar agreement or arrangement to which Company or any of its
Subsidiaries is a party.
"INTEREST RATE DETERMINATION DATE" means, with respect to any
Interest Period, the second Business Day prior to 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.
"INVENTORY" means, with respect to any Person as of any date of
determination, all goods, merchandise and other personal property which
are then held by such Person for sale or lease, including raw materials
and work in process.
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"INVESTMENTS" means, with respect to any Person, all investments
by such Person in other Persons (including Affiliates) in the forms of
direct or indirect loans (including guarantees of Indebtedness or other
obligations) advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities,
together with all items that are or would be classified as investments
on a balance sheet prepared in accordance with GAAP. If Company or any
Subsidiary of Company sells or otherwise disposes of any Equity
Interests of any direct or indirect Subsidiary of Company such that,
after giving effect to any such sale or disposition, such Person is no
longer a Subsidiary of Company, Company shall be deemed to have made an
Investment on the date of such sale or disposition equal to the fair
market value of the Equity Interests of such Subsidiary not sold or
disposed of in an amount determined as provided in the final paragraph
of subsection 7.3.
"ISSUING LENDER" means BankBoston or any Person serving as
successor Administrative Agent hereunder, in its capacity as Issuing
Lender.
"JOINT VENTURE" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal
form; provided that in no event shall any corporate Subsidiary of any
Person be considered to be a Joint Venture to which such Person is a
party.
"LENDER" and "LENDERS" means the persons identified as "Lenders"
and listed on the signature pages of this Agreement, together with their
successors and permitted assigns pursuant to subsection 10.1.
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means Standby Letters
of Credit issued or to be issued by Issuing Lender for the account of
Company pursuant to subsection 3.1.
"LETTER OF CREDIT USAGE" means, as at any date of determination,
the sum of (i) the maximum aggregate amount which is or at any time
thereafter may become available for drawing under all Letters of Credit
then outstanding plus (ii) the aggregate amount of all drawings under
Letters of Credit honored by Issuing Lender and not theretofore
reimbursed by Company (either directly or as a result of any such
reimbursement out of the proceeds of Revolving Loans pursuant to
subsection 3.3B).
"LEVERAGE RATIO" has the meaning assigned such term in
subsection 7.4C.
"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.
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"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 Company in favor of Issuing Lender
relating to, the Letters of Credit), the Subsidiary Guaranty and the
Collateral Documents.
"LOAN PARTY" means each of Company and any of Company's
Subsidiaries from time to time executing a Loan Document, and "LOAN
PARTIES" means all such Persons, collectively.
"MAINTENANCE CAPITAL EXPENDITURES" means, for any period, the
aggregate amount of all Consolidated Capital Expenditures made by
Company and its Subsidiaries during that period for repair or
maintenance of property, plant or equipment.
"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.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect
upon the business, operations, properties, assets, condition (financial
or otherwise) or prospects of Company or any of its Subsidiaries or (ii)
the material impairment of the ability of any Loan Party to perform, or
of Administrative Agent or Lenders to enforce, the Obligations.
"MATERIAL CONTRACT" means any contract or other arrangement to
which Company or any of its Subsidiaries is a party (other than the Loan
Documents) for which breach, nonperformance, cancellation or failure to
renew would reasonably be expected to have a Material Adverse Effect.
"MAXIMUM AMOUNT" has the meaning assigned to that term in
subsection 10.20.
"MERGER" means (i) the merger of Merger Sub with and into Zilog
in accordance with the terms of the Merger Agreement, with Zilog being
the surviving corporation in such Merger and (ii) the recapitalization
of Company effected concurrently with the Merger.
"MERGER AGREEMENT" means that certain Agreement and Plan of
Merger by and among TPG, Zilog, and Merger Sub dated as of July 20,
1997, as amended by Amendments Number One, Two and Three to the
Agreement and Plan of Merger, dated as of November 18, 1997, December
10, 1997 and January 26, 1998, respectively, in the form delivered to
Arranger, Administrative Agent and Lenders prior to their execution of
this Agreement and as such agreement may be amended from time to time
thereafter to the extent permitted under subsection 7.10.
"MERGER SUB" means TPG Zeus Acquisition Corporation, a Delaware
corporation existing prior to the Merger.
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"MULTIEMPLOYER PLAN" means any Employee Benefit Plan which is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"NET INCOME" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however,
(i) any gain (but not loss), together with any related provision for
taxes on such gain (but not loss), realized in connection with (a) any
Asset Sale or Collateral Asset Sale (as defined in the Senior Secured
Note Indenture) (including, without limitation, dispositions pursuant to
sale and leaseback transactions) or (b) the disposition of any
securities by such Person or any of its Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its
Subsidiaries and (ii) any extraordinary or nonrecurring gain (but not
loss), together with any related provision for taxes on such
extraordinary or nonrecurring gain (but not loss).
"NON-U.S. LENDER" has the meaning assigned to that term in
subsection 2.7(iii).
"NOTICE OF BORROWING" means a notice substantially in the form of
Exhibit I annexed hereto delivered by Company 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 Company 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 Revolving Loans
specified therein.
"NOTICE OF ISSUANCE OF LETTER OF CREDIT" means a notice
substantially in the form of Exhibit III annexed hereto delivered by
Company to Administrative Agent pursuant to subsection 3.1B(i) with
respect to the proposed issuance of a Letter of Credit.
"OBLIGATIONS" means all obligations of every nature of each Loan
Party from time to time owed to Agents, Lenders or their respective
Affiliates or any of them under the Loan Documents whether for
principal, interest, reimbursement of amounts drawn under Letters of
Credit, fees, expenses, indemnification or otherwise.
"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
and by its chief financial officer or its treasurer; provided that every
Officers' Certificate with respect to the compliance with a condition
precedent to the making of any Revolving 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
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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.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"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:
(i) Liens existing as of the Closing Date to the extent and in
the manner such Liens are in effect on the Closing Date; (ii) Liens on
assets other than Collateral securing the Senior Secured Notes and the
Subsidiary guarantees thereof; (iii) Liens of Company or a Subsidiary
Guarantor on assets of any Subsidiary of Company; (iv) Liens securing
any permitted refinancing indebtedness which is incurred in accordance
with subsection 7.1(vii) to refinance any Indebtedness which has been
secured by a Lien permitted under this Agreement and which has been
incurred in accordance with the provisions of this Agreement; provided,
however, that such Liens (a) are not materially less favorable to the
Lenders and are not materially more favorable to the lienholders with
respect to such Liens than the Liens in respect of the Indebtedness
being refinanced and (b) do not extend to or cover any property or
assets of Company or any of its Subsidiaries not securing the
Indebtedness so refinanced; (v) Liens for taxes, assessments or
governmental charges or claims either (a) not delinquent or (b)
contested in good faith by appropriate proceedings and as to which
Company or its Subsidiaries shall have set aside on its books such
reserves as may be required pursuant to GAAP; (vi) statutory Liens of
landlords and Liens of carriers, warehousemen, mechanics, suppliers,
materialmen, repairmen and other Liens imposed by law incurred in the
ordinary course of business for sums not yet delinquent for a period of
more than 60 days 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 in respect thereof; (vii) 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 similar obligations, including any Lien securing letters of credit
issued in the ordinary course of business consistent with past practice
in connection therewith, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed
money); (viii) judgment Liens not giving rise to an Event of Default so
long as such Lien is adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review of such
judgment shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired; (ix)
easements, rights-of-way, zoning restrictions and other similar charges
or encumbrances
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in respect of real property not interfering in any material respect with
the ordinary conduct of the business of Company or any of its
Subsidiaries; (x) any interest or title of a lessor under any lease,
whether or not characterized as capital or operating; provided that such
Liens do not extend to any property or assets which is not leased
property subject to such lease; (xi) Liens securing Capital Lease
Obligations and purchase money Indebtedness incurred in accordance with
subsection 7.1(iv); provided, however, that in the case of purchase
money Indebtedness (a) the Indebtedness shall not exceed the cost of
such property or assets being acquired or constructed and shall not be
secured by any property or assets of Company or any Subsidiary of
Company other than the property and assets being acquired or constructed
and (b) the Lien securing such Indebtedness shall be created within 90
days of such acquisition or construction; (xii) Liens securing
reimbursement obligations with respect to letters of credit which
encumber documents and other property relating to such letters of credit
and products and proceeds thereof; (xiii) Liens encumbering deposits
made to secure obligations arising from statutory, regulatory,
contractual, or warranty requirements of Company or any of its
Subsidiaries, including rights of offset and set-off; (xiv) Liens
securing obligations under Hedge Agreements which obligations relate to
Indebtedness that is otherwise permitted under this Agreement; (xv)
Liens securing Acquired Debt incurred in accordance with subsection
7.1(vi); provided that (a) such Liens secured such Acquired Debt at the
time of and prior to the incurrence of such Acquired Debt by Company or
a Subsidiary of Company and were not granted in connection with, or in
anticipation of, the incurrence of such Acquired Debt by Company or a
Subsidiary of Company and (b) such Liens do not extend to or cover any
property or assets of Company or of any of its Subsidiaries other than
the property or assets that secured Acquired Debt prior to time such
Indebtedness became Acquired Debt of Company or a Subsidiary of Company
and are no more favorable to the lienholders than those securing the
Acquired Debt prior to the incurrence of such Acquired Debt by Company
or a Subsidiary of Company; (xvi) leases or subleases granted to others
not interfering in any material respect with the business of Company or
its Subsidiaries; (xvii) Liens arising out of consignment or similar
arrangements for the sale of goods entered into by Company or any
Subsidiary in the ordinary course of business; (xiii) Liens incurred in
the ordinary course of business of Company or any Subsidiary of Company
with respect to obligations that do not exceed $5,000,000 at any one
time outstanding and that (a) are not incurred in connection with the
borrowing of money or the obtaining of advances or credit (other than
trade credit in the ordinary course of business) and (b) do not in the
aggregate materially detract from the value of the property or
materially impair the use thereof in the operation of business by
Company or such Subsidiary and (xix) Liens granted pursuant to the
Collateral Documents.
"PERMITTED INVESTMENTS" means (i) any Investment in Company or in
a Subsidiary; (ii) any Investment in Cash and Cash Equivalents; (iii)
any Investment by Company or any Subsidiary in a Person, if as a result
of such Investment (a) such Person becomes a Subsidiary or (b) such
Person is merged, consolidated or amalgamated with or into, or transfers
or conveys substantially all of its assets to, or is liquidated into,
Company or a Subsidiary; (iv) any Restricted Investment made as a result
of the receipt
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of non-cash consideration from an Asset Sale that was made pursuant to
and in compliance with the Senior Secured Note Indenture or a
transaction not constituting an Asset Sale by reason of the $1,000,000
threshold contained in the definition thereof; (v) any acquisition of
assets solely in exchange for the issuance of Equity Interests (other
than Disqualified Stock) of Company; (vi) obligations under Hedge
Agreements entered into the ordinary course of business by Company or
its Subsidiaries and otherwise in accordance with this Agreement; (vii)
loans and advances to employees and officers of Company and its
Subsidiaries in the ordinary course of business for bona fide business
purposes not in excess of $5,000,000 at any one time outstanding; (viii)
Investments in securities of trade creditors or customers received in
settlement of obligations or pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of such trade
creditors or customers; and (ix) other Investments in any Person having
an aggregate fair market value (measured on the date each such
Investment was made and without giving effect to subsequent changes in
value), when taken together with all other Investments made pursuant to
this clause (ix) that are at that time outstanding, not to exceed
$25,000,000.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of
Company or any of its Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, prepay, retire, renew,
replace, defease or refund Indebtedness of Company or any of its
Subsidiaries (other than such Indebtedness described in clauses (i),
(v), (viii), (x), (xi), (xii), (xiii), (xiv) and (xv) of subsection
7.1), provided that: (i) the principal amount (or accreted value, if
applicable) of such Permitted Refinancing Indebtedness does not exceed
the principal amount of (or accreted value, if applicable), plus accrued
interest on, the Indebtedness so extended, refinanced, prepaid, retired,
renewed, replaced, defeased or refunded (plus the amount of reasonable
expenses incurred in connection therewith including premiums paid, if
any, to the holders thereof); (ii) such Permitted Refinancing
Indebtedness has a final maturity date at or later than the final
maturity date of, and has a Weighted Average Life to Maturity equal to
or greater than the Weighted Average Life to Maturity of, the
Indebtedness being extended, refinanced, prepaid, retired, renewed,
replaced, defeased or refunded; (iii) if the Indebtedness being
extended, refinanced, prepaid, retired, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Revolving Loans,
such Permitted Refinancing Indebtedness has a final maturity date later
than the final maturity date of, and is subordinated in right of payment
to, the Revolving Loans on terms at least as favorable to the Lenders as
those contained in the documentation governing the Indebtedness being
extended, refinanced, prepaid, retired, renewed, replaced, defeased or
refunded; and (iv) such Indebtedness is incurred either by the Company
or by the Subsidiary who is the obligor on the Indebtedness being
extended, refinanced, prepaid, retired, renewed, replaced, defeased or
refunded.
"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
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trusts, business trusts or other organizations, whether or not legal
entities, and governments (whether federal, state or local, domestic or
foreign, and including political subdivisions thereof) and agencies or
other administrative or regulatory bodies thereof.
"POTENTIAL EVENT OF DEFAULT" means a condition or event that,
after notice or lapse of time or both, would constitute an Event of
Default.
"PRICING DETERMINATION DATE" means any date after the six month
anniversary of the Closing Date on which Company delivers financial
statements to Administrative Agent and Lenders pursuant to clause (i) or
(ii) of subsection 6.1 (accompanied by a Compliance Certificate
delivered by Company pursuant to clause (iii) of subsection 6.1).
"PRICING LEVEL" means Pricing Level I or Pricing Level II as may
be in effect for a Pricing Period; provided that Pricing Level II shall
be in effect for the initial Pricing Period commencing on the Closing
Date until the first Pricing Determination Date.
"PRICING LEVEL I" means the Pricing Level in effect if the
Leverage Ratio for the most recently ended four-Fiscal Quarter period is
equal to or less than 3.5:1.
"PRICING LEVEL II" means the Pricing Level in effect if the
Leverage Ratio for the most recently ended four-Fiscal Quarter period
(i) exceeds 3.5:1 or (ii) an Event of Default shall have occurred and be
continuing.
"PRICING PERIOD" means (i) initially, the period commencing on
the Closing Date and ending on the initial Pricing Determination Date
and (ii) thereafter, any period commencing on the day immediately
following a Pricing Determination Date and ending on the next succeeding
Pricing Determination Date.
"PRO RATA SHARE" means the percentage obtained by dividing (i)
the Revolving Loan Exposure of that Lender by (ii) the aggregate
Revolving Loan Exposure of all Lenders, as the applicable 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.
"QUALIFIED PROCEEDS" means any of the following or any
combination of the following: (i) Cash, (ii) Cash Equivalents, (iii)
long-term assets that are used or useful in the business of Company or
its Subsidiaries on the Closing Date or businesses reasonably related
thereto (the "Permitted Business"), (iv) the Capital Stock of any Person
engaged primarily in a Permitted Business if, in connection with the
receipt by Company or any Subsidiary of the Company of such Capital
Stock, (a) such Person becomes a Wholly Owned Subsidiary of Company and
a Subsidiary Guarantor or (b) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of
its assets to, or is liquidated into, Company or any Wholly Owned
Subsidiary of Company that is a Subsidiary Guarantor.
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"RECAPITALIZATION RELATED SPECIAL CHARGES" means (i) up to
$10,000,000 million of retention bonuses paid to employees of Company
within six months following the Closing Date, (ii) up to $5,000,000 of
(a) severance costs paid by Company within six months following the
Closing Date and (b) bonuses paid by Company to members of management of
Company retained effective on or after January 1, 1998 and paid within
six months following the Closing Date, (iii) expense incurred by Company
as a result of (a) payments made by the Company on the Closing Date in
respect of options to purchase common stock of Company outstanding on
the Closing Date and (b) the grant by Company on the Closing Date or
within six months thereafter of options to purchase common stock of
Company and (iv) consulting fees, not exceeding $1,500,000, paid by
Company within six months following the Closing Date.
"REGISTER" has the meaning assigned to that term in subsection
2.1D.
"REGULATION D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"REIMBURSEMENT DATE" has the meaning assigned to that term in
subsection 3.3B.
"RELATED AGREEMENTS" means, collectively, the Merger Agreement,
the Certificate of Designations, the Stockholders Agreement, the Senior
Secured Note Indenture, the Senior Secured Notes, the Senior Secured
Note Purchase Agreement and the Senior Secured Registration Rights
Agreement.
"RELEASE" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal,
dumping, leaching or migration of Hazardous Materials into the indoor or
outdoor environment (including the abandonment or disposal of any
barrels, containers or other closed receptacles containing any Hazardous
Materials), including the movement of any Hazardous Materials through
the air, soil, surface water or groundwater.
"REQUISITE LENDERS" means Lenders having or holding more than 50%
of the aggregate Revolving Loan Exposure of all Lenders.
"RESTRICTED INVESTMENT" means an Investment other than a
Permitted Investment.
"RESTRICTED PAYMENT" has the meaning assigned to that term in
subsection 7.3.
"REVOLVING LOAN COMMITMENT" means the commitment of a Lender to
make Revolving Loans to Company pursuant to subsection 2.1A(iii), and
"REVOLVING LOAN COMMITMENTS" means such commitments of all Lenders in
the aggregate.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" means February 27,
2003.
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"REVOLVING LOAN EXPOSURE" means, with respect to any Lender as of
any date of determination (i) prior to the termination of the Revolving
Loan Commitments, that Lender's Revolving Loan Commitment and (ii) after
the termination of the Revolving Loan Commitments, the sum of (a) the
aggregate outstanding principal amount of the Revolving Loans of that
Lender plus (b) in the event that Lender is an Issuing Lender, the
aggregate Letter of Credit Usage in respect of all Letters of Credit
issued by that Lender (in each case net of any participations purchased
by other Lenders in such Letters of Credit or any unreimbursed drawings
thereunder) plus (c) the aggregate amount of all participations
purchased by that Lender in any outstanding Letters of Credit or any
unreimbursed drawings under any Letters of Credit.
"REVOLVING LOANS" means the Revolving Loans made by Lenders to
Company pursuant to subsection 2.1A(iii).
"REVOLVING NOTES" means any promissory notes issued by Company
pursuant to subsection 2.1E or the last sentence of subsection 10.1B(i)
in connection with assignments of the Revolving Loan Commitments and
Revolving Loans of any Lenders, in each case substantially in the form
of Exhibit IV annexed hereto, as they may be amended, supplemented or
otherwise modified from time to time.
"SECURITIES" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in
any profit-sharing agreement or arrangement, options, warrants, bonds,
debentures, notes, or other evidences of indebtedness, secured or
unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as "securities" or any certificates of
interest, shares or participations in temporary or interim certificates
for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"SENIOR SECURED NOTE INDENTURE" means the indenture pursuant to
which the Senior Secured Notes are issued, as such indenture may be
amended from time to time to the extent permitted under subsection 7.10.
"SENIOR SECURED NOTES" means the $280,000,000 in aggregate
principal amount of 9.5% Senior Secured Notes due 2005 of Company issued
pursuant to the Senior Secured Note Indenture.
"SENIOR SECURED NOTE PURCHASE AGREEMENT" means the agreement or
agreements pursuant to which the Senior Secured Notes are purchased by
the initial purchasers thereof, as such agreement or agreements may be
amended from time to time to the extent permitted under subsection 7.10.
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"SENIOR SECURED NOTE REGISTRATION RIGHTS AGREEMENT" means the
registration rights agreement entered into by Company relating to the
Senior Secured Notes, as such agreement may be amended from time to time
to the extent permitted under subsection 7.10.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Act, as such Regulation is
in effect on the date of this Agreement.
"SOLVENT" means, with respect to any Person, that as of the date
of determination both (i) (a) the then fair saleable value of the
property of such Person is (1) greater than the total amount of
liabilities (including contingent liabilities) of such Person and (2)
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; (b) such Person's capital is
not unreasonably small in relation to its business or any contemplated
or undertaken transaction; and (c) 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 debts as they become due; and (ii) 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, and (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; 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 Section 547 of the Bankruptcy
Code).
"STOCKHOLDERS AGREEMENT" means that certain Stockholders
Agreement, entered into in connection with the Merger, by and among
Company, TPG and the stockholders of Company party thereto, as such
agreement may be amended from time to time to the extent permitted by
subsection 7.10.
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"SUBORDINATED INDEBTEDNESS" means any Indebtedness of Company
subordinated in right of payment to the Obligations pursuant to
documentation containing maturities, amortization schedules, covenants,
defaults, remedies, subordination provisions and other material terms in
form and substance reasonably 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 of Company that
executes and delivers a counterpart of the Subsidiary Guaranty on the
Closing Date or from time to time thereafter pursuant to subsection 6.8.
"SUBSIDIARY GUARANTY" means the Subsidiary Guaranty executed and
delivered by existing Subsidiaries of Company on the Closing Date and to
be executed and delivered by additional Subsidiaries of Company from
time to time thereafter in accordance with subsection 6.8, substantially
in the form of Exhibit XII annexed hereto, as such Subsidiary Guaranty
may hereafter be amended, supplemented or otherwise modified from time
to time.
"SUBSIDIARY SECURITY AGREEMENT" means the Subsidiary Security
Agreement executed and delivered by each existing Subsidiary Guarantor
on the Closing Date and to be executed and delivered by any additional
Subsidiary Guarantor from time to time thereafter in accordance with
subsection 6.8, substantially in the form of Exhibit XIII annexed
hereto, as such Subsidiary Security Agreement may be amended,
supplemented or otherwise modified from time to time.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning assigned to that
term in subsection 9.1B.
"SYNDICATION AGENT" has the meaning assigned to that term in the
introduction to this Agreement.
"TAX" or "TAXES" means any present or future tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed, levied,
collected, withheld or assessed; provided that "TAX ON THE OVERALL NET
INCOME" of a Person shall be construed as a reference to a tax imposed
by the jurisdiction in which that Person is organized or in which that
Person's
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principal office (and/or, in the case of a Lender, its lending office)
is located or in which that Person (and/or, in the case of a Lender, its
lending office) is deemed to be doing business on all or part of the net
income, profits or gains (whether worldwide, or only insofar as such
income, profits or gains are considered to arise in or to relate to a
particular jurisdiction, or otherwise) of that Person (and/or, in the
case of a Lender, its lending office).
"TOTAL UTILIZATION OF REVOLVING LOAN COMMITMENTS" means, as at
any date of determination, the sum of (i) the aggregate principal amount
of all outstanding Revolving Loans (other than Revolving Loans made for
the purpose reimbursing the applicable Issuing Lender for any amount
drawn under any Letter of Credit but not yet so applied) plus (ii) the
Letter of Credit Usage.
"TPG" means TPG Partners II, L.P.
"TRANSACTION COSTS" means the fees, costs and expenses payable by
Company on or before the Closing Date in connection with the
transactions contemplated by the Loan Documents and the Related
Agreements.
"UCC" means the Uniform Commercial Code (or any similar or
equivalent legislation) as in effect in any applicable jurisdiction.
"VOTING STOCK" of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the
election of the Board of Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i)
the sum of the products obtained by multiplying (a) the amount of each
then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in
respect thereof, by (b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such
payment, by (ii) the then outstanding principal amount of such
Indebtedness.
"WHOLLY OWNED SUBSIDIARY" of any Person means a Subsidiary of
such Person all of the outstanding Capital Stock or other ownership
interest of which (other than directors' qualifying shares) shall at the
time be owned by such Person or by one or more Wholly Owned Subsidiaries
of such Person or a combination thereof.
"ZILOG" means Zilog, Inc., a Delaware corporation; provided that,
after the consummation of the Merger, Zilog shall be referred to herein
as "Company".
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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) and (xii) of
subsection 6.1 shall be prepared in accordance with GAAP as in effect at the
time of such preparation (and delivered together with the reconciliation
statements provided for in subsection 6.1(iv)). 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 AND RULES OF CONSTRUCTION.
Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference.
References to "Sections" and "subsections" shall be to Sections and subsections,
respectively, of this Agreement unless otherwise specifically provided. The use
herein of the word "include" or "including", when following any general
statement, term or matter, shall not be construed to limit such statement, term
or matter to the specific items or matters set forth immediately following such
word or to similar items or matters, whether or not nonlimiting language (such
as "without limitation" or "but not limited to" or words of similar import) is
used with reference thereto, but rather shall be deemed to refer to all other
items or matters that fall within the broadest possible scope of such general
statement, term or matter.
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND REVOLVING LOANS
2.1 COMMITMENTS; MAKING OF REVOLVING LOANS; THE REGISTER; REVOLVING NOTES.
A. REVOLVING LOAN COMMITMENTS. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of
Company herein set forth, each Lender severally agrees, subject to the
limitations set forth below with respect to the maximum amount of Revolving
Loans permitted to be outstanding from time to time, to lend to Company from
time to time during the period from the Closing Date to but excluding the
Revolving Loan Commitment Termination Date an aggregate amount not exceeding its
Pro Rata Share of the aggregate amount of the Revolving Loan Commitments to be
used for the purposes identified in subsection 2.5A. The original amount of each
Lender's Revolving Loan Commitment is set forth opposite its name on Schedule
2.1 annexed hereto and the aggregate original amount of the Revolving Loan
Commitments is $25,000,000; provided that the Revolving Loan Commitments of
Lenders shall be adjusted to give effect to any assignments of the Revolving
Loan Commitments pursuant to subsection 10.1B; and provided, further that the
amount of the Revolving Loan Commitments shall be reduced from time to time by
the amount of any
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reductions thereto made pursuant to subsection 2.4A. Each Lender's Revolving
Loan Commitment shall expire on the Revolving Loan Commitment Termination Date
and all Revolving Loans and all other amounts owed hereunder with respect to the
Revolving Loans and the Revolving Loan Commitments shall be paid in full no
later than that date; provided that each Lender's Revolving Loan Commitment
shall expire immediately and without further action on February 28, 1998 if the
Closing Date has not occurred on or before that date. Amounts borrowed under
this subsection 2.1A may be repaid and reborrowed to but excluding the Revolving
Loan Commitment Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Revolving Loans and the Revolving Loan Commitments shall be
subject to the following limitations in the amounts and during the periods
indicated:
(a) in no event shall the Total Utilization of Revolving
Loan Commitments at any time exceed the Revolving Loan
Commitments then in effect or the Borrowing Base then in effect;
and
(b) no Revolving Loans shall be made on the Closing Date.
B. BORROWING MECHANICS. Revolving Loans made on any Funding Date (other
than Revolving Loans made pursuant to subsection 3.3B for the purpose of
reimbursing Issuing Lender for the amount of a drawing under a Letter of Credit)
shall be in an aggregate minimum amount of $500,000 and integral multiples of
$100,000 in excess of that amount; provided that Revolving Loans made on any
Funding Date as Eurodollar Rate Loans with a particular Interest Period shall be
in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000
in excess of that amount. Whenever Company desires that Lenders make Revolving
Loans it shall deliver to Administrative Agent a Notice of Borrowing no later
than 12:00 noon (Eastern Standard Time) at least three Business Days in advance
of the proposed Funding Date (in the case of a Eurodollar Rate Loan) or at least
one Business Day in advance of the proposed Funding Date (in the case of a Base
Rate Loan). The Notice of Borrowing shall specify (i) the proposed Funding Date
(which shall be a Business Day), (ii) the amount of Revolving Loans requested,
(iii) whether such Revolving Loans shall be Base Rate Loans or Eurodollar Rate
Loans, (iv) in the case of any Revolving Loans requested to be made as
Eurodollar Rate Loans, the initial Interest Period requested therefor and (v)
that after giving effect to the requested Revolving Loans, the Total Utilization
of Revolving Loan Commitments will not exceed the Borrowing Base then in effect.
Revolving Loans may be continued as or converted into Base Rate Loans or
Eurodollar Rate Loans, as applicable, in the manner provided in subsection 2.2D.
In lieu of delivering the above-described Notice of Borrowing, Company may give
and hereby authorizes Administrative Agent to accept 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
Company in acting upon any telephonic notice referred to above that
Administrative Agent believes in good
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faith to have been given by a duly authorized officer or other person authorized
to borrow on behalf of Company or for otherwise acting in good faith under this
subsection 2.1B, and upon funding of Revolving Loans by Lenders in accordance
with this Agreement pursuant to any such telephonic notice Company shall have
effected Revolving Loans hereunder.
Company shall notify Administrative Agent prior to the funding of any
Revolving Loans in the event that any of the matters to which Company 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 Company of the
proceeds of any Revolving Loans shall constitute a re-certification by Company,
as of the applicable Funding Date, as to the matters to which Company is
required to certify in the applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a
Notice of Borrowing for a Eurodollar Rate Loan (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and Company shall be bound to make a borrowing in accordance
therewith.
C. DISBURSEMENT OF FUNDS. All Revolving Loans under this Agreement shall
be made by Lenders simultaneously and proportionately to their respective Pro
Rata Shares, it being understood that no Lender shall be responsible for any
default by any other Lender in that other Lender's obligation to make a
Revolving Loan requested hereunder nor shall the Commitment of any Lender to
make the particular type of Revolving Loan requested be increased or decreased
as a result of a default by any other Lender in that other Lender's obligation
to make a Revolving Loan requested hereunder. Promptly after receipt by
Administrative Agent of a Notice of Borrowing pursuant to subsection 2.1B (or
telephonic notice in lieu thereof), Administrative Agent shall notify each
Lender of the proposed borrowing. Each Lender shall make the amount of its
Revolving Loan available to Administrative Agent not later than 1:00 P.M.
(Eastern Standard Time) on the applicable Funding Date in same day funds in
Dollars, at the Funding and Payment Office. Except as provided in subsection
3.3B with respect to Revolving Loans used to reimburse 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 4.2 (in the case of
all Revolving Loans), Administrative Agent shall make the proceeds of such
Revolving Loans available to Company as soon as reasonably practicable on the
applicable Funding Date by causing an amount of same day funds in Dollars equal
to the proceeds of all such Revolving Loans received by Administrative Agent
from Lenders to be credited to the account of Company 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 Company a corresponding amount on such Funding
Date. If such corresponding amount is not in fact made available to
Administrative
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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
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 Company and Company shall immediately pay such corresponding amount 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 Commitments hereunder or to prejudice any rights that Company 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 Revolving Loans of each
Lender from time to time (the "REGISTER"). The Register shall be
available for inspection by Company 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 Commitment and Revolving Loans from time to time of each
Lender, and each repayment or prepayment in respect of the principal
amount of the Revolving Loans of each Lender. Any such recordation shall
be prima facie evidence of the amount of such Loans; provided that
failure to make any such recordation, or any error in such recordation,
shall not affect any Lender's Commitments or Company's Obligations in
respect of any applicable Revolving Loans.
(iii) Each Lender shall record on its internal records (including
the Revolving 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 prima facie evidence of the amount of such Loans;
provided that failure to make any such recordation, or any error in such
recordation, shall not affect any Lender's Commitments or Company's
Obligations in respect of any applicable Revolving 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) Company, Administrative Agent and Lenders shall deem and
treat the Persons listed as Lenders in the Register as the holders and
owners of the corresponding Commitments and Revolving Loans listed
therein for all purposes hereof, and no assignment or transfer of any
such Commitment or Revolving Loan shall be effective, in each case
unless and until an Assignment Agreement effecting the assignment or
transfer thereof shall have been accepted by Administrative Agent and
recorded in the Register
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as provided in subsection 10.1B(ii). Prior to such recordation, all
amounts owed with respect to the applicable Commitment or Revolving 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 Revolving Loans.
(v) Company hereby designates BankBoston to serve as Company's
agent solely for purposes of maintaining the Register as provided in
this subsection 2.1D, and Company hereby agrees that, to the extent
BankBoston serves in such capacity, BankBoston and its officers,
directors, employees, agents and affiliates shall constitute Indemnitees
for all purposes under subsection 10.3.
E. REVOLVING NOTES. Upon request of any Lender, Company shall execute
and deliver on to each 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
Revolving Loan Commitment and with other appropriate insertions.
2.2 INTEREST ON THE REVOLVING 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 the Adjusted
Eurodollar Rate. The applicable basis for determining the rate of interest with
respect to any Revolving Loan shall be selected by Company initially at the time
a Notice of Borrowing is given with respect to such Revolving Loan pursuant to
subsection 2.1B; provided that for the first 30 days following the Closing Date,
no Eurodollar Rate Loans shall be available. 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 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 Revolving Loan shall
bear interest determined by reference to the Base Rate.
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 Margin in effect from time to time; or
(b) if a Eurodollar Rate Loan, then at the sum of the
Adjusted Eurodollar Rate plus the Applicable Margin in effect
from time to time during the applicable Interest Period.
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B. INTEREST PERIODS. In connection with each Eurodollar Rate Loan,
Company 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 Revolving Loan, which Interest
Period shall be, at Company's option, either a one-, two-, three- or six-month
period; provided that:
(i) the initial Interest Period for any Eurodollar Rate Loan
shall commence on the Funding Date in respect of such Revolving Loan, in
the case of a Revolving Loan initially made as a Eurodollar Rate Loan,
or on the date specified in the applicable Notice of
Conversion/Continuation, in the case of a Revolving Loan converted to a
Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods
applicable to a Eurodollar 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 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 Revolving Loan Commitment
Termination Date;
(vi) there shall be no more than 5 Interest Periods outstanding
at any time; and
(vii) in the event Company fails to specify an Interest Period
for any Eurodollar Rate Loan in the applicable Notice of Borrowing or
Notice of Conversion/Continuation, Company shall be deemed to have
selected an Interest Period of one month.
C. INTEREST PAYMENTS. Subject to the provisions of subsection 2.2E,
interest on each Revolving Loan shall be payable in arrears on and to each
Interest Payment Date applicable to that Revolving Loan, upon any prepayment of
that Revolving Loan (to the extent accrued on the amount being prepaid) and at
maturity (including final maturity).
D. CONVERSION OR CONTINUATION. Subject to the provisions of subsection
2.6, Company shall have the option (i) to convert at any time all or any part of
its outstanding
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Revolving Loans equal to $1,000,000 and integral multiples of $100,000 in excess
of that amount from Revolving Loans bearing interest at a rate determined by
reference to one basis to Revolving Loans bearing interest at a rate determined
by reference to an alternative basis or (ii) upon the expiration of any Interest
Period applicable to a Eurodollar Rate Loan, to continue all or any portion of
such Revolving Loan equal to $1,000,000 and integral multiples of $100,000 in
excess of that amount as a Eurodollar Rate Loan; provided, however, that a
Eurodollar Rate Loan may only be converted into a Base Rate Loan on the
expiration date of an Interest Period applicable thereto.
Company shall deliver a Notice of Conversion/Continuation to
Administrative Agent no later than 11:00 A.M. (Eastern Standard Time) at least
one Business Day in advance of the proposed conversion date (in the case of a
conversion to a Base Rate Loan) and at least three Business Days in advance of
the proposed conversion/continuation date (in the case of a
conversion to, or a continuation of, a Eurodollar 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 Revolving
Loan to be converted/continued, (iii) the nature of the proposed
conversion/continuation, (iv) in the case of a conversion to, or a continuation
of, a Eurodollar Rate Loan, the requested Interest Period, and (v) in the case
of a conversion to, or a continuation of, a Eurodollar 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,
Company 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 such notice by telefacsimile or telephone to each
Lender.
Neither Administrative Agent nor any Lender shall incur any liability to
Company 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 Company 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 Revolving Loans in accordance with this Agreement pursuant to any
such telephonic notice Company 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, a
Eurodollar Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable
on and after the related Interest Rate Determination Date, and Company 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 under subsection 8.1, the outstanding principal amount of all
Revolving Loans and, to the extent permitted by applicable law, any interest
payments thereon not paid when due and any
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fees and other amounts then due and payable hereunder, shall thereafter bear
interest (including post-petition interest in any proceeding under the
Bankruptcy Code or other applicable bankruptcy laws) payable upon demand at a
rate that is 2% per annum in excess of the interest rate otherwise payable under
this Agreement with respect to the applicable Revolving Loans (or, in the case
of any such fees and other amounts, at a rate which is 2% per annum in excess of
the interest rate otherwise payable under this Agreement for Base Rate Loans);
provided that, in the case of Eurodollar Rate Loans, upon the expiration of the
Interest Period in effect at the time any such increase in interest rate is
effective such Eurodollar Rate Loans shall thereupon become Base Rate Loans and
shall thereafter bear interest payable upon demand at a rate which is 2% per
annum in excess of the interest rate otherwise payable under this Agreement for
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 Administrative Agent or any Lender.
F. COMPUTATION OF INTEREST. Interest on the Revolving Loans shall be
computed on the basis of a 360-day year, in each case for the actual number of
days elapsed in the period during which it accrues. In computing interest on any
Revolving Loan, the date of the making of such Revolving Loan or the first day
of an Interest Period applicable to such Revolving Loan or, with respect to a
Base Rate Loan being converted from a Eurodollar Rate Loan, the date of
conversion of such Eurodollar Rate Loan to such Base Rate Loan, as the case may
be, shall be included, and the date of payment of such Revolving Loan or the
expiration date of an Interest Period applicable to such Revolving Loan or, with
respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the date
of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the case
may be, shall be excluded; provided that if a Revolving Loan is repaid on the
same day on which it is made, one day's interest shall be paid on that Revolving
Loan.
2.3 FEES.
A. COMMITMENT FEES. Company agrees to pay to Administrative Agent, for
distribution to each Lender in proportion to that Lender's Pro Rata Share,
commitment fees for the period from and including the Closing Date to and
excluding the Revolving Loan Commitment Termination Date equal to the average of
the daily excess of the Revolving Loan Commitments over the sum of (i) the
aggregate principal amount of outstanding Revolving Loans plus (ii) the Letter
of Credit Usage multiplied by the Commitment Percentage per annum, such
commitment fees to be calculated on the basis of a 360-day year and the actual
number of days elapsed and to be payable quarterly in arrears on each of the
Interest Payment Dates with respect to Base Rate Loans, commencing on the first
such date to occur after the Closing Date, and on the Revolving Loan Commitment
Termination Date.
B. OTHER FEES. Company agrees to pay to Arranger and Administrative
Agent such other fees in the amounts and at the times separately agreed upon
between Company, Arranger and Administrative Agent.
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2.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN COMMITMENTS;
GENERAL PROVISIONS REGARDING PAYMENTS; APPLICATION OF PROCEEDS OF
COLLATERAL AND PAYMENTS UNDER SUBSIDIARY GUARANTY.
A. PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN COMMITMENTS.
(i) Voluntary Prepayments. Company 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 Eurodollar Rate Loans, in each case given to
Administrative Agent by 12:00 Noon (Eastern Standard Time) on the date
required and, if given by telephone, promptly confirmed in writing to
Administrative Agent (which original written or telephonic notice
Administrative Agent will promptly transmit by telefacsimile or
telephone to each Lender), at any time and from time to time prepay any
Revolving Loans on any Business Day in whole or in part in an aggregate
minimum amount of $500,000 and integral multiples of $100,000 in excess
of that amount; provided, however, that with respect to any Eurodollar
Rate Loan prepaid prior to the expiration of the Interest Period
applicable thereto, Company shall pay all amounts payable pursuant to
subsection 2.6D. Notice of prepayment having been given as aforesaid,
the principal amount of the Revolving 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 Administrative Agent will promptly transmit
by telefacsimile or telephone to each Lender), at any time and from time
to time terminate in whole or permanently reduce in part, without
premium or penalty, the Revolving Loan Commitments in an amount up to
the amount by which the Revolving Loan Commitments exceed the Total
Utilization of Revolving Loan Commitments at the time of such proposed
termination or reduction; provided that any such partial reduction of
the Revolving Loan Commitments shall be in an aggregate minimum amount
of $500,000 and integral multiples of $100,000 in excess of that amount.
Company's notice to Administrative Agent shall designate the date (which
shall be a Business Day) of such termination or reduction and the amount
of any partial reduction, and such termination or reduction of the
Revolving Loan Commitments shall be effective on the date specified in
Company's notice and shall reduce the Revolving Loan Commitment of each
Lender proportionately to its Pro Rata Share.
(iii) Mandatory Prepayments Due to Reductions or Restrictions of
Revolving Loan Commitments or Due to Insufficient Borrowing Base.
Company shall from time to time prepay the Revolving Loans to the extent
necessary so that the Total Utilization of Revolving Loan Commitments
shall not at any time exceed the Revolving Loan
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Commitments then in effect or the Borrowing Base then in effect.
Prepayments pursuant to this subsection 2.4A(iii) shall be applied as
provided in subsection 2.4A(iv).
(iv) Application of Prepayments.
(a) Application of Voluntary Prepayments . Any voluntary
prepayments pursuant to subsection 2.4A(i) shall be applied to
repay outstanding Revolving Loans to the full extent thereof.
(b) Application of Prepayments to Base Rate Loans and
Eurodollar Rate Loans. Any prepayment shall be applied first to
Base Rate Loans to the full extent thereof before application to
Eurodollar Rate Loans, in each case in a manner which minimizes
the amount of any payments required to be made by Company
pursuant to subsection 2.6D. In the event that the amount of any
prepayment required to be made pursuant to subsection 2.4A(iii)
exceeds the aggregate principal amount of the Base Rate Loans
outstanding required to be prepaid (the amount of any such excess
being called the "DEFERRED PREPAYMENT AMOUNT"), Company shall
have the right, in lieu of making such prepayment in full, to
prepay all the outstanding Base Rate Loans and to deposit an
amount equal to the Deferred Prepayment Amount with the
Administrative Agent in the Collateral Account. Any amount so
deposited shall be held by Administrative Agent as Collateral for
the Obligations and applied to the prepayment of the applicable
Eurodollar Rate Loans at the end of the expiration of the
Interest Periods applicable thereto and Company hereby authorizes
Administrative Agent to apply such Deferred Prepayment Amount to
repay outstanding Revolving Loans at the end of the expiration of
the Interest Periods applicable thereto. As long as the Deferred
Prepayment Amount is deposited in the Collateral Account on the
date the applicable prepayment is required to be made pursuant to
subsection 2.4(A)(iii), Company shall not be required to pay
interest pursuant to subsection 2.2E or compensation for breakage
pursuant to subsection 2.6D.
B. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) Manner and Time of Payment. Except as expressly provided in
subsection 2.7B with respect to Taxes, all payments by Company of
principal, interest, fees and other Obligations hereunder and under the
Revolving Notes shall be made in Dollars in same day funds, without
defense, setoff or counterclaim, free of any restriction or condition,
and delivered to Administrative Agent not later than 1:00 P.M. (Eastern
Standard Time) on the date due at the Funding and Payment Office for the
account of Lenders; funds received by Administrative Agent after that
time on such due date shall be deemed to have been paid by Company on
the next succeeding Business Day. Company 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
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and expenses due hereunder (subject to sufficient funds being available
in its accounts for that purpose).
(ii) Application of Payments to Principal and Interest. All
payments in respect of the principal amount of any Revolving Loan shall
include payment of accrued interest on the principal amount being repaid
or prepaid, and all such payments 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 Revolving Loans to which such payments relate, in each case
proportionately to Lenders' respective Pro Rata Shares. Administrative
Agent shall promptly distribute to each Lender, at its 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 2.4C(iii), if, pursuant to the provisions of subsection 2.6C,
any Notice of Conversion/Continuation is withdrawn as to any Affected
Lender or if any Affected Lender makes Base Rate Loans in lieu of its
Pro Rata Share of any Eurodollar 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.
(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 Company hereunder or under such Revolving Note with respect to any
Revolving Loan or any payments of principal or interest on such
Revolving Note.
C. APPLICATION OF PROCEEDS OF COLLATERAL AND PAYMENTS UNDER SUBSIDIARY
GUARANTY.
(i) Application of Proceeds of Collateral. All proceeds received
by Administrative Agent in respect of any sale of, collection from, or
other realization upon all or any part of the Collateral under any
Collateral Document may, in the discretion of
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Administrative Agent, be held by Administrative Agent as Collateral for,
and/or (then or at any time thereafter) applied in full or in part by
Administrative Agent against, the applicable Secured Obligations (as
defined in such Collateral Document) in the following order of priority:
(a) To the payment of all costs and expenses of such sale,
collection or other realization, including reasonable
compensation to Administrative Agent and its agents and counsel,
and all other expenses, liabilities and advances made or incurred
by Administrative Agent in connection therewith, and all amounts
for which Administrative Agent is entitled to indemnification
under such Collateral Document and all advances made by
Administrative Agent thereunder for the account of the applicable
Loan Party, and to the payment of all costs and expenses paid or
incurred by Administrative Agent in connection with the exercise
of any right or remedy under such Collateral Document, all in
accordance with the terms of this Agreement and such Collateral
Document;
(b) thereafter, to the extent of any excess such proceeds,
to the payment of all other such Secured Obligations for the
ratable benefit of the holders thereof; and
(c) thereafter, to the extent of any excess such proceeds,
to the payment to or upon the order of such Loan Party or to
whosoever may be lawfully entitled to receive the same or as a
court of competent jurisdiction may direct.
(ii) Application of Payments Under Subsidiary Guaranty. All
payments received by Administrative Agent under the Subsidiary Guaranty
shall be applied promptly from time to time by Administrative Agent in
the following order of priority:
(a) To the payment of the costs and expenses of any
collection or other realization under the Subsidiary Guaranty,
including reasonable compensation to Administrative Agent and its
agents and counsel, and all expenses, liabilities and advances
made or incurred by Administrative Agent in connection therewith,
all in accordance with the terms of this Agreement and the
Subsidiary Guaranty;
(b) thereafter, to the extent of any excess such payments,
to the payment of all other Guarantied Obligations (as defined in
the Subsidiary Guaranty) for the ratable benefit of the holders
thereof; and
(c) thereafter, to the extent of any excess such payments,
to the payment to the applicable Subsidiary Guarantor or to
whosoever may be lawfully entitled to receive the same or as a
court of competent jurisdiction may direct.
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2.5 USE OF PROCEEDS.
A. REVOLVING LOANS. The proceeds of any Revolving Loans shall be applied
by Company for general corporate purposes, which may include capital
expenditures and the making of intercompany loans to any Subsidiary Guarantor,
in accordance with subsection 7.1(v), for their own general corporate purposes.
B. MARGIN REGULATIONS. No portion of the proceeds of any borrowing under
this Agreement shall be used by Company 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, in each case as in effect on the date or dates of
such borrowing and such use of proceeds.
2.6 SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS.
Notwithstanding any other provision of this Agreement to the contrary,
the following provisions shall govern with respect to Eurodollar Rate Loans as
to the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as practicable
after 10:00 A.M. (Eastern Standard Time) on each Interest Rate Determination
Date, Administrative Agent shall determine (which determination shall be prima
facie evidence of such rate) the interest rate that shall apply to the
Eurodollar 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 Company and each Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event that
Administrative Agent shall have reasonably determined, on any Interest Rate
Determination Date with respect to any Eurodollar 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 Revolving
Loans on the basis provided for in the definition of Adjusted Eurodollar Rate,
Administrative Agent shall on such date give notice (by telefacsimile or by
telephone confirmed in writing) to Company and each Lender of such
determination, whereupon (i) no Revolving Loans may be made as, or converted to,
Eurodollar Rate Loans until such time as Administrative Agent notifies Company
and 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
Company with respect to the Revolving Loans in respect of which such
determination was made shall be deemed to be rescinded by Company.
C. ILLEGALITY OR MATERIAL HARDSHIP OF EURODOLLAR RATE LOANS. In the
event that on any date any Lender (after consultation with Company and
Administrative Agent) shall have reasonably determined that the making,
maintaining or continuation of its Eurodollar 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,
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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) 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
Company and Administrative Agent of such determination (which notice
Administrative Agent shall promptly transmit to each other Lender). Thereafter
(a) the obligation of the Affected Lender to make Revolving Loans as, or to
convert Revolving Loans to, Eurodollar 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 a Eurodollar Rate Loan then
being requested by Company pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, the Affected Lender shall make such Revolving Loan as
(or convert such Revolving Loan to, as the case may be) a Base Rate Loan, (c)
the Affected Lender's obligation to maintain its outstanding Eurodollar 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 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 a Eurodollar Rate Loan then being requested by Company pursuant
to a Notice of Borrowing or a Notice of Conversion/Continuation, Company shall
have the option, subject to the provisions of subsection 2.6D, to rescind such
Notice of Borrowing or Notice of Conversion/Continuation as to all Lenders by
giving notice (by telefacsimile or by telephone confirmed in writing) to
Administrative Agent of such rescission on the date on which the Affected Lender
gives notice of its determination as described above (which notice of rescission
Administrative Agent shall promptly transmit to each other Lender). Except as
provided in the immediately preceding sentence, nothing in this subsection 2.6C
shall affect the obligation of any Lender other than an Affected Lender to make
or maintain Revolving Loans as, or to convert Revolving Loans to, Eurodollar
Rate Loans in accordance with the terms of this Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST PERIODS.
Company shall compensate each Lender, upon written request by that Lender (which
request shall set forth the basis for requesting such amounts), for all
reasonable losses, expenses and liabilities (including any interest paid by that
Lender to lenders of funds borrowed by it to make or carry its Eurodollar 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 Eurodollar 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 Eurodollar 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 (including any prepayment
pursuant to subsection 2.4B(i)) or other principal payment or any conversion of
any of its Eurodollar Rate Loans occurs on a date prior to the last day of an
Interest Period applicable to that Revolving Loan, (iii) if any prepayment of
any of its Eurodollar Rate Loans is not made on any date
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specified in a notice of prepayment given by Company, or (iv) as a consequence
of any other default by Company in the repayment of its Eurodollar Rate Loans
when required by the terms of this Agreement.
E. BOOKING OF EURODOLLAR RATE LOANS. Any Lender may make, carry or
transfer Eurodollar 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 EURODOLLAR RATE LOANS. Calculation
of all amounts payable to a Lender under this subsection 2.6 and under
subsection 2.7A shall be made as though that Lender had actually funded each of
its relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit
bearing interest at the rate obtained pursuant to clause (i) of the definition
of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar
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 in the United States of America;
provided, however, that each Lender may fund each of its Eurodollar 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.
G. EURODOLLAR RATE LOANS AFTER DEFAULT. After the occurrence of and
during the continuation of a Potential Event of Default or an Event of Default,
(i) Company may not elect to have a Revolving Loan be made or maintained as, or
converted to, a Eurodollar Rate Loan after the expiration of any Interest Period
then in effect for that Revolving Loan and (ii) subject to the provisions of
subsection 2.6D, any Notice of Borrowing or Notice of Conversion/Continuation
given by Company with respect to a requested borrowing or
conversion/continuation that has not yet occurred shall be deemed to be
rescinded by Company.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to the provisions
of subsection 2.7B (which shall be controlling with respect to the matters
covered thereby), in the event that any Lender shall reasonably determine that
any change in any law, treaty or governmental rule, regulation or order, or any
change in the interpretation, administration or application thereof (including
the adoption 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 (at its
applicable lending office) 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
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applicable lending office) of principal, interest, fees or any other
amount payable hereunder; or
(ii) imposes, modifies or holds applicable any reserve (including
any marginal, emergency, supplemental, special or other reserve),
special deposit, compulsory loan, FDIC insurance or similar requirement
against assets held by, or deposits or other liabilities in or for the
account of, or advances or loans by, or other credit extended by, or any
other acquisition of funds by, such Lender (other than any such reserve
or other requirements with respect to Eurodollar Rate Loans that are
reflected in the definition of Adjusted Eurodollar Rate);
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Revolving Loans hereunder or to reduce
any amount received or receivable by such Lender (or its applicable lending
office) with respect thereto; then, in any such case, Company shall pay to such
Lender, within five days after receipt of the statement referred to below, 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; provided that the foregoing shall apply only to the extent that such
Lender's Revolving Loan is a Eurodollar Rate Loan; and provided further, that
Company shall not be liable in respect of any such increased cost for any period
during which such Lender had actual knowledge thereof and failed to notify
Company as soon as reasonably practicable in accordance with the next sentence
if and to the extent such earlier notice would have avoided or lessened the
payments required by Company hereunder relating to such period. Such Lender
shall deliver to Company (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis for calculating the
additional amounts owed to such Lender under this subsection 2.7A, which
statement shall be prima facie evidence of such additional amounts.
B. WITHHOLDING OF TAXES.
(i) Payments to Be Free and Clear. All sums payable by Company
under this Agreement and the other Loan Documents shall (except to the
extent required by law) be paid free and clear of, and without any
deduction or withholding on account of, any 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 or any political
subdivision in or of the United States of America or any other
jurisdiction from or to which a payment is made by or on behalf of
Company or by any federation or organization of which the United States
of America or any such jurisdiction is a member at the time of payment.
(ii) Grossing-up of Payments. If Company or any other Person is
required by law to make any deduction or withholding on account of any
such Tax from any sum paid
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or payable by Company to Administrative Agent or any Lender under any of
the Loan Documents:
(a) Company shall notify Administrative Agent of any such
requirement or any change in any such requirement as soon as
Company becomes aware of it;
(b) Company 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 Company) for its own account or
(if that liability is imposed on Administrative Agent or such
Lender, as the case may be) on behalf of and in the name of
Administrative Agent or such Lender;
(c) the sum payable by Company in respect of which the
relevant deduction, withholding or payment is required shall be
increased to the extent necessary to ensure that, after the
making of that deduction, withholding or payment, Administrative
Agent or such Lender, as the case may be, receives on the due
date a net sum equal to what it would have received had no such
deduction, withholding or payment been required or made,
provided, however, that no such additional amounts shall be
payable in respect of (i) any Taxes imposed on a Lender by reason
of any connection between the Lender and the taxing jurisdiction
other than by reason of being a party to the Loan Documents and
receiving payments thereunder or (ii) any Taxes imposed by reason
of the Lender's failure to comply with the provisions of
subsection 2.7B(iii)(a) and (b) hereof as set forth in subsection
2.7B(iii)(c); and
(d) within 30 days after paying any sum from which it is
required by law to make any deduction or withholding, and within
30 days after the due date of payment of any Tax which it is
required by clause (b) above to pay, Company shall deliver to
Administrative Agent evidence satisfactory to the other affected
parties of such deduction, withholding or payment and of the
remittance thereof to the relevant taxing or other authority;
provided that no such additional amount shall be required to be paid to
any Lender under clause (c) above except to the extent that any change
after the date hereof (in the case of each Lender listed on the
signature pages hereof) or after the date of the Assignment Agreement
pursuant to which such Lender became a Lender (in the case of each other
Lender) in any such requirement for a deduction, withholding or payment
as is mentioned therein shall result in an increase in the rate of such
deduction, withholding or payment from that in effect at the date of
this Agreement or at the date of such Assignment Agreement, as the case
may be, in respect of payments to such Lender.
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(iii) Evidence of Exemption from U.S. Withholding Tax.
(a) Each Lender that is organized under the laws of any
jurisdiction other than the United States or any state or other
political subdivision thereof (for purposes of this subsection
2.7B(iii), a "NON-US LENDER") shall deliver to Administrative
Agent for transmission to Company, on or prior to the Closing
Date (in the case of each Lender listed on the signature pages
hereof) or on or prior to the date of the Assignment Agreement
pursuant to which it becomes a Lender (in the case of each other
Lender), and at such other times as may be necessary in the
determination of Company or Administrative Agent (each in the
reasonable exercise of its discretion), (1) two original copies
of Internal Revenue Service Form 1001 or 4224 (or any successor
forms), properly completed and duly executed by such Lender,
together with any other certificate or statement of exemption
required under the Internal Revenue Code or the regulations
issued thereunder to establish that such Lender is not subject to
deduction or withholding of United States federal income tax with
respect to any payments to such Lender of principal, interest,
fees or other amounts payable under any of the Loan Documents or
(2) if such Lender is not a "bank" or other Person described in
Section 881(c)(3) of the Internal Revenue Code and cannot deliver
either Internal Revenue Service Form 1001 or 4224 pursuant to
clause (1) above, a Certificate re Non-Bank Status together with
two original copies of Internal Revenue Service Form W-8 (or any
successor form), properly completed and duly executed by such
Lender, together with any other certificate or statement of
exemption required under the Internal Revenue Code or the
regulations issued thereunder to establish that such Lender is
not subject to deduction or withholding of United States federal
income tax with respect to any payments to such Lender of
interest payable under any of the Loan Documents.
(b) Each Lender required to deliver any forms,
certificates or other evidence with respect to United States
federal income tax withholding matters pursuant to subsection
2.7B(iii)(a) hereby agrees, from time to time after the initial
delivery by such Lender of such forms, certificates or other
evidence, whenever a lapse in time or change in circumstances
renders such forms, certificates or other evidence obsolete or
inaccurate in any material respect, that such Lender shall
promptly (1) deliver to Administrative Agent for transmission to
Company two new original copies of Internal Revenue Service Form
1001 or 4224, or a Certificate re Non-Bank Status and two
original copies of Internal Revenue Service Form W-8, as the case
may be, properly completed and duly executed by such Lender,
together with any other certificate or statement of exemption
required in order to confirm or establish that such Lender is not
subject to deduction or withholding of United States federal
income tax with respect to payments to such Lender under the Loan
Documents or (2) notify Administrative Agent and Company of its
inability to deliver any such forms, certificates or other
evidence.
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(c) Company shall not be required to pay any additional
amount to any Non-US Lender under clause (c) of subsection
2.7B(ii) if such Lender shall have failed to satisfy the
requirements of clause (a) or (b)(1) of this subsection
2.7B(iii); provided that if such Lender shall have satisfied the
requirements of subsection 2.7B(iii)(a) on the Closing Date (in
the case of each Lender listed on the signature pages hereof) or
on the date of the Assignment Agreement pursuant to which it
became a Lender (in the case of each other Lender), nothing in
this subsection 2.7B(iii)(c) shall relieve Company of its
obligation to pay any additional amounts pursuant to clause (c)
of subsection 2.7B(ii) in the event that, as a result of any
change in any applicable law, treaty or governmental rule,
regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer
properly entitled to deliver forms, certificates or other
evidence at a subsequent date establishing the fact that such
Lender is not subject to withholding as described in subsection
2.7B(iii)(a).
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have reasonably
determined that any law, rule or regulation (or any provision thereof) regarding
capital adequacy, which is adopted or phased in, or becomes effective or
applicable, after the date hereof, or any change in any such law, rule or
regulation, or in the interpretation or administration thereof, made after the
date hereof by any governmental authority, central bank, the National
Association of Insurance Commissioners, 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, the National Association of Insurance
Commissioners or comparable agency issued or made after the date hereof, 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 Revolving Loans or Commitments or Letters of Credit
or participations therein or other obligations hereunder with respect to the
Revolving Loans or the Letters of Credit to a level below that which such Lender
or such controlling corporation would 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), then from time to time, within five Business Days
after receipt by Company from such Lender of the statement referred to in the
next sentence, Company 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 Company (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 prima facie evidence of such additional amounts.
D. SUBSTITUTE LENDERS. In the event Company is required under the
provisions of subsections 2.7 or 3.6 to make payments in a material amount to
any Lender or an Affected Lender has given notice thereof to Company under
subsection 2.6C, or in the event any Lender fails to lend to Company in
accordance with this Agreement, Company may, so long as no Event of Default
shall have occurred and be continuing, elect to terminate such Lender as a party
to
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this Agreement; provided that, concurrently with such termination, (i) Company
shall pay that Lender all principal, interest and fees and other amounts
(including without limitation, amounts, if any, owed under this subsection 2.7)
owed to such Lender through such date of termination, (ii) another financial
institution reasonably satisfactory to Administrative Agent (or if
Administrative Agent is also the Lender to be terminated, the successor
Administrative Agent) shall agree, as of such date, to become a Lender for all
purposes under this Agreement (whether by assignment or amendment) and to assume
all obligations of the Lender to be terminated as of such date, and (iii) all
documents and supporting materials necessary, in the reasonable judgment of
Administrative Agent (or if Administrative Agent is also the Lender to be
terminated, the successor Administrative Agent), to evidence the substitution of
such Lender shall have been received and approved by Administrative Agent as of
such date.
2.8 OBLIGATION OF LENDERS AND ISSUING LENDER TO MITIGATE.
Each Lender and Issuing Lender agrees that, as promptly as practicable
after the officer of such Lender or Issuing Lender responsible for administering
the Revolving 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 Revolving 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 reasonable
measures 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
reasonably determined by such Lender or Issuing Lender in its sole discretion,
the making, issuing, funding or maintaining of such Commitments or Revolving
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 Revolving 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
Company 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. A certificate as to the amount of any
such expenses payable by Company 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 Company (with a copy to Administrative Agent) shall
be prima facie evidence of such amount.
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SECTION 3.
LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF PARTICIPATIONS
THEREIN.
A. LETTERS OF CREDIT. In addition to Company requesting that Lenders
make Revolving Loans pursuant to subsection 2.1A(iii), Company may request, in
accordance with the provisions of this subsection 3.1, from time to time during
the period from the Closing Date to but excluding the Revolving Loan Commitment
Termination Date, that Issuing Lender issue Letters of Credit for the account of
Company for the purposes specified in the definition of Standby Letter of
Credit. Subject to the terms and conditions of this Agreement and in reliance
upon the representations and warranties of Company herein set forth, Issuing
Lender shall issue such Letters of Credit in accordance with the provisions of
this subsection 3.1; provided that Company shall not request that Issuing Lender
issue and Issuing Lender shall not issue:
(i) any Letter of Credit if, after giving effect to such
issuance, the Total Utilization of Revolving Loan Commitments would
exceed the Revolving Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such
issuance, the Letter of Credit Usage would exceed $25,000,000;
(iii) any Letter of Credit having an expiration date later than
the earlier of (a) the Revolving Loan Commitment Termination Date and
(b) the date which is one year from the date of issuance of such Letter
of Credit; provided that the immediately preceding clause (b) shall not
prevent Issuing Lender from agreeing that a Letter of Credit will
automatically be extended for one or more successive periods not to
exceed one year each unless Issuing Lender elects not to extend for any
such additional period; and provided, further that Issuing Lender shall
elect not to extend such 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 Issuing Lender must
elect whether or not to allow such extension; or
(iv) any Letter of Credit denominated in a currency other than
Dollars.
B. MECHANICS OF ISSUANCE.
(i) Notice of Issuance. Whenever Company desires the issuance of
a Letter of Credit, it shall deliver to Issuing Lender a Notice of
Issuance of Letter of Credit substantially in the form of Exhibit III
annexed hereto no later than 1:00 P.M. (Eastern Standard Time) at least
three Business Days or in such shorter period as may be agreed to by
Issuing Lender in any particular instance, in advance of the proposed
date of issuance. The Notice of 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,
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(c) the expiration date of the Letter of Credit, (d) the name and
address of the beneficiary, (e) 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 Issuing Lender to
make payment under the Letter of Credit, and (f) that, after giving
effect to the issuance of the Letter of Credit, the Total Utilization of
Revolving Loan Commitments will not exceed the Borrowing Base then in
effect; provided that Issuing Lender, in its reasonable discretion, may
require changes in the text of the proposed Letter of Credit or any such
documents; and provided, further that no Letter of Credit shall require
payment against a conforming draft to be made thereunder on the same
business day (under the laws of the jurisdiction in which the office of
Issuing Lender to which such draft is required to be presented is
located) that such draft is presented if such presentation is made after
10:00 A.M. (in the time zone of such office of Issuing Lender) on such
business day.
Company shall notify Issuing Lender (and Administrative Agent, if
Administrative Agent is not Issuing Lender) prior to the issuance of any
Letter of Credit in the event that any of the matters to which Company
is required to certify in the applicable Notice of Issuance of Letter of
Credit is no longer true and correct as of the proposed date of issuance
of such Letter of Credit, and upon the issuance of any Letter of Credit
Company shall be deemed to have recertified, as of the date of such
issuance, as to the matters to which Company is required to certify in
the applicable Notice of Issuance of Letter of Credit.
(ii) Issuance of Letter of Credit. Upon satisfaction or waiver
(in accordance with subsection 10.6) of the conditions set forth in
subsection 4.3, Issuing Lender shall issue the requested Letter of
Credit in accordance with Issuing Lender's standard operating procedures
and using Issuing Lender's standard form of Standby Letter of Credit.
(iii) Notification to Lenders. Upon the issuance of any Letter of
Credit Issuing Lender shall promptly notify Administrative Agent (if
Administrative Agent is not Issuing Lender) and each other Lender 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 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.
(iv) Reports to Lenders. Within 20 days after the end of each
calendar quarter ending after the Closing Date, so long as any Letter of
Credit shall have been outstanding during such calendar quarter, Issuing
Lender shall deliver to each other Lender a report setting forth for
such calendar quarter the daily aggregate amount available to be drawn
under the Letters of Credit issued by such Issuing Lender that were
outstanding during such calendar quarter.
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C. LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS OF CREDIT. Immediately
upon the issuance of each Letter of Credit, each Lender having a Revolving Loan
Commitment shall be deemed to, and hereby agrees to, have irrevocably purchased
from Issuing Lender a participation in such Letter of Credit and any drawings
honored thereunder in an amount equal to such Lender's Pro Rata Share (with
respect to the Revolving Loan Commitments) of the maximum amount which is or at
any time may become available to be drawn thereunder.
3.2 LETTER OF CREDIT FEES.
Company agrees to pay the following amounts with respect to Letters of
Credit issued hereunder:
(i) with respect to each Letter of Credit, (a) a fronting fee,
payable directly to Issuing Lender for its own account, equal to the
greater of (1) $500 and (2) 0.125% per annum of the daily amount
available to be drawn under such Letter of Credit and (b) a letter of
credit fee, payable to Administrative Agent for the account of Lenders,
equal to the product of (1) the Applicable Margin with respect to
Revolving Loans that are Eurodollar Rate Loans and (2) the daily amount
available to be drawn under such Letter of Credit, each such fronting
fee or letter of credit fee to be payable in arrears on and to (but
excluding) each Interest Payment Date with respect to Base Rate Loans
and computed on the basis of a 360-day year for the actual number of
days elapsed; and
(ii) with respect to the issuance, amendment or transfer of each
Letter of Credit and each payment of a drawing made thereunder (without
duplication of the fees payable under clause (i) above), documentary and
processing charges payable directly to Issuing Lender for its own
account in accordance with Issuing Lender's standard schedule for such
charges in effect at the time of such issuance, amendment, transfer or
payment, as the case may be.
For purposes of calculating any fees payable under clause (i) of this subsection
3.2, 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. Promptly
upon receipt by Administrative Agent of any amount described in clause (i)(b) of
this subsection 3.2, Administrative Agent shall distribute to each Lender its
Pro Rata Share of such amount.
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS PAID UNDER LETTERS OF CREDIT.
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO DRAWINGS. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, Issuing Lender shall be responsible only to examine the
documents delivered under such Letter of Credit with reasonable care so as to
ascertain whether they appear on their face to be in accordance with the terms
and conditions of such Letter of Credit.
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B. REIMBURSEMENT BY COMPANY OF AMOUNTS PAID UNDER LETTERS OF CREDIT. In
the event Issuing Lender has determined to honor a drawing under a Letter of
Credit issued by it, Issuing Lender shall immediately notify Company and
Administrative Agent, and Company shall reimburse Issuing Lender on or before
the Business Day immediately following the date on which such drawing is honored
(the "REIMBURSEMENT DATE") in an amount in Dollars and in same day funds equal
to the amount of such honored drawing; provided that, anything contained in this
Agreement to the contrary notwithstanding, (i) unless Company shall have
notified Administrative Agent and Issuing Lender prior to 1:00 P.M. (Eastern
Standard Time) on the date such drawing is honored that Company intends to
reimburse Issuing Lender for the amount of such honored drawing with funds other
than the proceeds of Revolving Loans, Company shall be deemed to have given a
timely Notice of Borrowing to Administrative Agent requesting Lenders to make
Revolving Loans that are Base Rate Loans on the Reimbursement Date in an amount
in Dollars equal to the amount of such honored drawing and (ii) subject to
satisfaction or waiver of the conditions specified in subsection 4.2B, Lenders
shall, on the Reimbursement Date, make Revolving Loans that are Base Rate Loans
in the amount of such honored drawing, the proceeds of which shall be applied
directly by Administrative Agent to reimburse Issuing Lender for the amount of
such honored drawing; and provided, further that if for any reason proceeds of
Revolving Loans are not received by Issuing Lender on the Reimbursement Date in
an amount equal to the amount of such honored drawing, Company shall reimburse
Issuing Lender, on demand, in an amount in same day funds equal to the excess of
the amount of such honored drawing over the aggregate amount of such Revolving
Loans, if any, which are so received. Nothing in this subsection 3.3B shall be
deemed to relieve any Lender from its obligation to make Revolving Loans on the
terms and conditions set forth in this Agreement, and Company shall retain any
and all rights it may have against any Lender resulting from the failure of such
Lender to make such Revolving Loans under this subsection 3.3B.
C. PAYMENT BY LENDERS OF UNREIMBURSED AMOUNTS PAID UNDER LETTERS OF
CREDIT.
(i) Payment by Lenders. In the event that Company shall fail for
any reason to reimburse Issuing Lender as provided in subsection 3.3B in
an amount equal to the amount of any drawing honored by Issuing Lender
under a Letter of Credit issued by it, Issuing Lender shall promptly
notify each other Lender of the unreimbursed amount of such honored
drawing and of such other Lender's respective participation therein
based on such Lender's Pro Rata Share of the Revolving Loan Commitments.
Each Lender shall make available to Issuing Lender an amount equal to
its respective participation, in Dollars and in same day funds, at the
office of such Issuing Lender specified in such notice, not later than
12:00 Noon (Eastern Standard Time) on the first business day (under the
laws of the jurisdiction in which such office of Issuing Lender is
located) after the date notified by Issuing Lender. In the event that
any Lender fails to make available to Issuing Lender on such business
day the amount of such Lender's participation in such Letter of Credit
as provided in this subsection 3.3C, Issuing Lender shall be entitled to
recover such amount on demand from such Lender together with interest
thereon at the rate customarily used by 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
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deemed to prejudice the right of any Lender to recover from Issuing
Lender any amounts made available by such Lender to 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 Issuing Lender in respect of which
payment was made by such Lender constituted gross negligence or willful
misconduct on the part of Issuing Lender.
(ii) Distribution to Lenders of Reimbursements Received From
Company. In the event 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 Issuing Lender under a Letter of Credit issued by it,
Issuing Lender shall distribute to each other Lender which has paid all
amounts payable by it under subsection 3.3C(i) with respect to such
honored drawing such other Lender's Pro Rata Share of all payments
subsequently received by Issuing Lender from Company in reimbursement of
such honored drawing when such payments are received. Any such
distribution shall be made to a Lender at its primary address set forth
below its name on the appropriate signature page hereof or at such other
address as such Lender may request.
D. INTEREST ON AMOUNTS PAID UNDER LETTERS OF CREDIT.
(i) Payment of Interest by Company. Company agrees to pay to
Issuing Lender, with respect to drawings honored under any Letters of
Credit issued by it, interest on the amount paid by Issuing Lender in
respect of each such honored drawing from the date such drawing is
honored to but excluding the date such amount is reimbursed by Company
(including any such reimbursement out of the proceeds of Revolving Loans
pursuant to subsection 3.3B) at a rate equal to (a) for the period from
the date such drawing is honored to but excluding the Reimbursement
Date, the Base Rate plus the Applicable Margin with respect to Revolving
Loans that are Base Rate Loans and (b) thereafter, a rate which is 2%
per annum in excess of the rate of interest otherwise payable under this
Agreement with respect to Revolving Loans that are Base Rate Loans.
Interest payable pursuant to this subsection 3.3D(i) shall be computed
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 Issuing Lender of any payment of interest
pursuant to subsection 3.3D(i) with respect to a drawing honored under a
Letter of Credit issued by it, (a) Issuing Lender shall distribute to
each other Lender, out of the interest received by Issuing Lender in
respect of the period from the date such drawing is honored to but
excluding the date on which 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
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period pursuant to subsection 3.2 if no drawing had been honored under
such Letter of Credit, and (b) in the event Issuing Lender shall have
been reimbursed by other Lenders pursuant to subsection 3.3C(i) for all
or any portion of such honored drawing, Issuing Lender shall distribute
to each other Lender which has paid all amounts payable by it under
subsection 3.3C(i) with respect to such honored drawing such other
Lender's Pro Rata Share of any interest received by Issuing Lender in
respect of that portion of such honored drawing so reimbursed by other
Lenders for the period from the date on which Issuing Lender was so
reimbursed by other Lenders to but excluding the date on which such
portion of such honored drawing is reimbursed by Company. Any such
distribution shall be made to a Lender at its primary address set forth
below its name on the appropriate signature page hereof or at such other
address as such Lender may request.
3.4 OBLIGATIONS ABSOLUTE.
The obligation of Company to reimburse Issuing Lender for drawings
honored under the Letters of Credit issued by it and to repay any Revolving
Loans made by Lenders pursuant to subsection 3.3B and the obligations of Lenders
under subsection 3.3C(i) shall be unconditional and irrevocable and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances including any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, set-off, defense or other right
which Company or any Lender may have at any time against a beneficiary
or any transferee of any Letter of Credit (or any Persons for whom any
such transferee may be acting), Issuing Lender or other Lender or any
other Person or, in the case of a Lender, against Company, whether in
connection with this Agreement, the transactions contemplated herein or
any unrelated transaction (including any underlying transaction between
Company or one of its Subsidiaries and the beneficiary for which any
Letter of Credit was procured);
(iii) any draft or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(iv) payment by Issuing Lender under any Letter of Credit against
presentation of a draft or other document which does not substantially
comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or
any of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by
any party thereto;
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(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;
provided, in each case, that payment by Issuing Lender under the applicable
Letter of Credit shall not have constituted gross negligence or willful
misconduct of Issuing Lender under the circumstances in question.
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDER'S DUTIES.
A. INDEMNIFICATION. In addition to amounts payable as provided in
subsection 3.6, Company hereby agrees to protect, indemnify, pay and save
harmless Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance or payment of any Letter of Credit by
Issuing Lender, other than as a result of (a) the gross negligence or willful
misconduct of Issuing Lender or (b) subject to the following clause (ii), the
wrongful dishonor by Issuing Lender of a proper demand for payment made under
any Letter of Credit issued by it or (ii) the failure of Issuing Lender to honor
a drawing under any such Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts or omissions herein called
"GOVERNMENTAL ACTS").
B. NATURE OF ISSUING LENDER'S DUTIES. As between Company and Issuing
Lender, Company assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by Issuing Lender by, the respective beneficiaries of
such Letters of Credit. In furtherance and not in limitation of the foregoing,
Issuing Lender shall not be responsible for: (i) the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted by
any party in connection with the application for and issuance of any such Letter
of Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency
of any instrument transferring or assigning or purporting to transfer or assign
any such Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective for
any reason; (iii) failure of the beneficiary of any such Letter of Credit to
comply fully with any conditions required in order to draw upon such Letter of
Credit; (iv) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether
or not they be in cipher; (v) errors in interpretation of technical terms; (vi)
any loss or delay in the transmission or otherwise of any document required in
order to make a drawing under any such Letter of Credit or of the proceeds
thereof; (vii) the misapplication by the beneficiary of any such Letter of
Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any
consequences arising from causes beyond the control of Issuing Lender,
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including any Governmental Acts, and none of the above shall affect or impair,
or prevent the vesting of, any of 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 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 and not constituting gross negligence or willful
misconduct, shall not put Issuing Lender under any resulting liability to
Company.
Notwithstanding anything to the contrary contained in this subsection
3.5, Company shall retain any and all rights it may have against Issuing Lender
for any liability arising solely out of the gross negligence or willful
misconduct of Issuing Lender, as determined by a final judgment of a court of
competent jurisdiction.
3.6 INCREASED COSTS AND TAXES RELATING TO LETTERS OF CREDIT.
Subject to the provisions of subsection 2.7B (which shall be controlling
with respect to the matters covered thereby), in the event that Issuing Lender
or any Lender shall reasonably determine that any change in any law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof (including the adoption 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 Issuing Lender or any Lender (at its applicable
lending office) 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 Issuing Lender or such Lender (or its applicable
lending or letter of credit office) to any additional Tax (other than
any Tax on the overall net income of Issuing Lender or such 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 Issuing Lender; or
(ii) imposes, modifies or holds applicable any reserve (including
any marginal, emergency, supplemental, special or other reserve),
special deposit, compulsory loan, FDIC insurance or similar requirement
in respect of any Letters of Credit issued by Issuing Lender or
participations therein purchased by such Lender;
and the result of any of the foregoing is to increase the cost to Issuing Lender
or such 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 such
Lender (or its applicable lending or letter of credit office) with respect
thereto; then, in any case, Company shall pay to Issuing Lender or such Lender,
within five days after receipt of the statement referred to below, such
additional amount
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or amounts as may be necessary to compensate Issuing Lender or such Lender for
any such increased cost or reduction in amounts received or receivable
hereunder; provided that Company shall not be liable in respect of any such
increased cost for any period during which such Lender had actual knowledge
thereof and failed to notify Company as soon as reasonably practicable in
accordance with the next sentence if and to the extent such earlier notice would
have avoided or lessened the payments required by Company hereunder relating to
such period. Issuing Lender or such Lender shall deliver to Company a written
statement, setting forth in reasonable detail the basis for calculating the
additional amounts owed to Issuing Lender or such Lender under this subsection
3.6, which statement shall be prima facie evidence of such additional amounts.
SECTION 4.
CONDITIONS TO REVOLVING LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Revolving Loans and of Issuing Lender
to the issue of Letters of Credit hereunder are subject to the satisfaction of
the following conditions.
4.1 CONDITIONS TO BE SATISFIED ON THE CLOSING DATE.
The obligations of Lenders to make Revolving Loans are, in addition to
the conditions precedent specified in subsection 4.2, subject to prior or
concurrent satisfaction of the following conditions on or before the Closing
Date:
A. LOAN PARTY DOCUMENTS. On or before the Closing Date, Company shall,
and shall cause each other Loan Party to, deliver to Lenders (or to
Administrative Agent for Lenders with sufficient originally executed copies,
where appropriate, for each Lender and its counsel) the following with respect
to Company or such Loan Party, as the case may be, each, unless otherwise noted,
dated the Closing Date:
(i) Certified copies of the Certificate or Articles of
Incorporation of such Person, together with a good standing certificate
from the Secretary of 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, each dated a recent date prior
to the Closing Date;
(ii) Copies of the Bylaws of such Person, certified as of the
Closing Date by such Person's corporate secretary or an assistant
secretary;
(iii) Resolutions of the Board of Directors of such Person
approving and authorizing the execution, delivery and performance of the
Loan Documents and Related Agreements to which it is a party, certified
as of the Closing Date by the corporate
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secretary or an assistant secretary of such Person as being in full
force and effect without modification or amendment;
(iv) Signature and incumbency certificates of the officers of
such Person executing the Loan Documents to which it is a party;
(v) Executed originals of the Loan Documents to which such Person
is a party; and
(vi) Such other documents as Arranger or Administrative Agent may
reasonably request.
B. NO MATERIAL ADVERSE EFFECT. Since December 31, 1997, no Material
Adverse Effect shall have occurred.
C. CORPORATE AND CAPITAL STRUCTURE
The corporate organizational structure and ownership and capital
structure of Company and its Subsidiaries, both before and after giving effect
to the Merger, shall be as set forth on Schedule 4.1C annexed hereto.
D. PROCEEDS OF DEBT AND EQUITY CAPITALIZATION OF COMPANY AND CASH
BALANCES.
(i) Debt and Equity Capitalization of Company. On or before the
Closing Date, (a) Company shall have received net Cash proceeds of not
less than $117,500,000 from the issuance of equity to TPG and certain
other investors of which not less than $92,500,000 shall be common
stock, and (b) Company shall have issued and sold not less than
$280,000,000 in aggregate principal amount of Senior Secured Notes.
(ii) Use of Proceeds by Company. Company shall have provided
evidence satisfactory to Arranger and Administrative Agent that the
proceeds of the debt and equity capitalization of Company described in
the immediately preceding clause have been irrevocably committed to the
payment of a portion of the costs of the Merger and Transaction Costs.
E. RELATED AGREEMENTS. (i) Administrative Agent and Arranger shall have
received executed and conformed copies of each of the Related Agreements and any
amendments thereto on or before the Closing Date, the forms, terms and
conditions of which shall be in all respects satisfactory to Administrative
Agent and Arranger, (ii) the Related Agreements shall be in full force and
effect and no term or condition thereof shall have been amended, modified or
waived after the execution thereof, except as provided in a written amendment
thereto delivered to and approved by Administrative Agent and Arranger, such
approval not to be unreasonably withheld, (iii) no Loan Party shall have failed
in any material respect to perform any material obligation or covenant required
by the Related Agreement to be performed or complied with by it on or
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before the Closing Date and (iv) Administrative Agent and Arranger shall have
received an Officers' Certificate from Company in form and substance
satisfactory to Administrative Agent and Arranger and to the effect set forth in
clauses (i), (ii) and (iii) above.
F. NECESSARY GOVERNMENTAL AUTHORIZATIONS AND CONSENTS; EXPIRATION OF
WAITING PERIODS, ETC. Company shall have obtained all Governmental
Authorizations and all consents of other Persons, in each case that are
necessary or advisable in connection with the Merger, the other transactions
contemplated by the Loan Documents and the Related Agreements, and the continued
operation of the business conducted by Zilog and its Subsidiaries in
substantially the same manner as conducted prior to the consummation of the
Merger, and each of the foregoing shall be in full force and effect, in each
case other than those the failure to obtain or maintain which, either
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect. All applicable waiting periods shall have expired
without any action being taken or threatened by any competent authority which
would restrain, prevent or otherwise impose adverse conditions on the Merger or
the financing thereof. 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.
G. CONSUMMATION OF MERGER AND CASH BALANCES AT ZILOG.
(i) All conditions to the Merger set forth in the Merger
Agreement shall have been satisfied or the fulfillment of any such
conditions shall have been waived with the consent of Arranger and
Administrative Agent, such approval not to be unreasonably withheld.
(ii) the Merger shall have become effective on the Closing Date
in accordance with the terms of the Merger Agreement and the laws of the
State of Delaware;
(iii) The aggregate cash consideration paid to the holders of
equity interests in Zilog in respect of such equity interests in
connection with the Merger shall not exceed $20 per share of capital
stock of Zilog;
(iv) Transaction Costs shall not exceed $30,000,000, and Arranger
and Administrative Agent shall have received evidence to their
reasonable satisfaction to such effect;
(v) Immediately prior to the consummation of the Merger, Zilog
shall have not less than $100,000,000 in Cash on hand; and
(vi) Arranger and Administrative Agent shall have received an
Officers' Certificate of Company to the effect set forth in clauses
(i)-(v) above.
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H. SECURITY INTERESTS IN PERSONAL PROPERTY. Each of Arranger and
Administrative Agent shall have received evidence satisfactory to it that
Company and Subsidiary Guarantors shall have taken or caused to be taken all
such actions, executed and delivered or caused to be executed and delivered all
such agreements, documents and instruments, and made or caused to be made all
such filings and recordings (other than the filing or recording of items
described in clause (iii) and (iv) below) that may be necessary or, in the
reasonable opinion of Arranger and Administrative Agent, desirable in order to
create in favor of Administrative Agent, for the benefit of Lenders, a valid and
(upon such filing and recording) perfected First Priority security interest in
Collateral (other than Liens on Collateral located outside the United States
unless such Lien has been perfected in accordance with the laws of the
applicable foreign jurisdiction and Liens described in clause (vi) of the
definition of Permitted Encumbrances). Such actions shall include the following:
(i) Schedules to Collateral Documents. Delivery to Administrative
Agent of accurate and complete schedules to all of the applicable
Collateral Documents;
(ii) Lien Searches and UCC Termination Statements. Delivery to
Arranger and Administrative Agent of (a) the results of a recent search,
by a Person reasonably satisfactory to Arranger and Administrative
Agent, of all effective UCC financing statements and fixture filings and
all judgment and tax lien filings which may have been made with respect
to any personal property of any Loan Party, together with copies of all
such filings disclosed by such search, and (b) UCC termination
statements duly executed by all applicable Persons for filing in all
applicable jurisdictions as may be necessary to terminate any effective
UCC financing statements or fixture filings disclosed in such search
(other than any such financing statements or fixture filings in respect
of Liens permitted to remain outstanding pursuant to the terms of this
Agreement);
(iii) UCC Financing Statements. Delivery to Administrative Agent
of UCC financing statements duly executed by each applicable Loan Party
with respect to all personal property Collateral of such Loan Party, for
filing in all jurisdictions as may be necessary or, in the opinion of
Arranger and Administrative Agent, desirable to perfect the security
interests created in such Collateral pursuant to the Collateral
Documents;
(iv) Other Filings. Delivery to Administrative Agent of all cover
sheets or other documents or instruments required to be filed with the
United States Copyright Office in order to create or perfect Liens in
respect of the Collateral; and
(v) Collateral Audit and Borrowing Base Certificate. Delivery to
Arranger and Administrative Agent an audit of all Inventory and Accounts
Receivable in form and substance reasonably satisfactory to Arranger and
Administrative Agent.
I. ENVIRONMENTAL REPORTS. Arranger and Administrative Agent shall have
received reports and other information as requested by Arranger and
Administrative Agent, regarding
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environmental matters relating to Company and its Subsidiaries and the
Facilities, in form and substance reasonably satisfactory to Arranger and
Administrative Agent.
J. FINANCIAL STATEMENTS; PRO FORMA BALANCE SHEET. On or before the
Closing Date, Lenders shall have received from Company (i) audited financial
statements of Zilog and its Subsidiaries for Fiscal Years 1994, 1995, 1996 and
1997, consisting of balance sheets and the related consolidated and
consolidating statements of income, stockholders' equity and cash flows for such
Fiscal Years, (ii) pro forma consolidated balance sheets of Company and its
Subsidiaries as at the Closing Date, prepared in accordance with GAAP and
reflecting the consummation of the Merger, the related financings and the other
transactions contemplated by the Loan Documents and the Related Agreements,
which pro forma balance sheets shall be in form reasonably satisfactory to
Arranger and Administrative Agent and (iii) all management letters provided to
Zilog by its auditors during the last three Fiscal Years ended prior to the
Closing Date.
K. SOLVENCY ASSURANCES. On the Closing Date, Arranger, Administrative
Agent and Lenders shall have received a letter from Houlihan, Lokey, ▇▇▇▇▇▇ &
▇▇▇▇▇, dated the Closing Date and addressed to Arranger, Administrative Agent
and Lenders, in form and substance reasonably satisfactory to Arranger and
Administrative Agent and with appropriate attachments.
L. EVIDENCE OF INSURANCE. Arranger and Administrative Agent shall have
received a certificate from Company's insurance broker or other evidence
satisfactory to it that all insurance required to be maintained pursuant to
subsection 6.4 is in full force and effect and that Administrative Agent on
behalf of Lenders has been named as additional insured and/or loss payee
thereunder to the extent required under subsection 6.4.
M. OPINIONS OF COUNSEL TO LOAN PARTIES. Lenders and their respective
counsel shall have received (i) originally executed copies of one or more
favorable written opinions of Pillsbury Madison & Sutro LLP, and Cleary,
Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇, Thomas, Barrett, Rock & Fields, counsel
for Loan Parties, dated as of the Closing Date, and substantially in the forms
set forth in Exhibit VI annexed hereto and as to such other matters as
Administrative Agent or Arranger and acting on behalf of Lenders may reasonably
request and (ii) evidence satisfactory to Arranger and Administrative Agent that
Company has requested such counsel to deliver such opinions to Lenders.
N. OPINION OF ARRANGER'S AND ADMINISTRATIVE AGENT'S COUNSEL. Lenders
shall have received originally executed copies of one or more favorable written
opinions of O'Melveny & ▇▇▇▇▇ LLP, counsel to Arranger and Administrative Agent,
dated as of the Closing Date, substantially in the form of Exhibit VII annexed
hereto and as to such other matters as Arranger and Administrative Agent may
reasonably request.
O. OPINIONS OF COUNSEL DELIVERED UNDER RELATED AGREEMENTS.
Administrative Agent and Arranger and its counsel shall have received (i) copies
of each of the opinions of counsel delivered to (a) the parties under the Merger
Agreement and to the purchaser(s) of the
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Senior Secured Notes, together with (ii) a letter from each such counsel
authorizing Lenders to rely upon such opinion to the same extent as though it
were addressed to Lenders.
P. FEES. Company shall have paid to Arranger and Administrative Agent,
for distribution (as appropriate) to Arranger, Administrative Agent and Lenders,
the fees payable on the Closing Date referred to in subsection 2.3B.
Q. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS. Company
shall have delivered to Arranger and Administrative Agent an Officers'
Certificate, in form and substance satisfactory to Arranger and 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 Closing
Date to the same extent as though made on and as of that date (or, to the extent
such representations and warranties specifically relate to an earlier date, that
such representations and warranties were true, correct and complete in all
material respects on and as of such earlier date) and that Company 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 Closing Date except as otherwise disclosed to and agreed to in writing by
Arranger, Administrative Agent and Requisite Lenders.
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 reasonably acceptable by
Administrative Agent, acting on behalf of Lenders, or Arranger and its counsel
shall be reasonably satisfactory in form and substance to Administrative Agent
and Arranger and such counsel, and Administrative Agent, Arranger and such
counsel shall have received all such counterpart originals or certified copies
of such documents as Administrative Agent or Arranger may reasonably request.
4.2 CONDITIONS TO ALL REVOLVING LOANS.
The obligations of Lenders to make Revolving 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 Company or by any executive officer of
Company designated by any of the above-described officers on behalf of Company
in a writing delivered to Administrative Agent.
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
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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;
(iii) Each Loan Party 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 Revolving Loans to be made by it on that Funding Date;
(v) The making of the Revolving Loans requested on such Funding
Date shall not violate any law including Regulation G, Regulation T,
Regulation U or Regulation X of the Board of Governors of the Federal
Reserve System;
(vi) There shall not be pending or, to the knowledge of Company,
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 Company in writing pursuant to subsection 5.6 or 6.1(x)
prior to the making of the last preceding Revolving Loans (or, in the
case of the initial Revolving 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, would
reasonably be expected to have a Material Adverse Effect; and
(vii) Since the last audited financial statements delivered to
Lenders pursuant to subsection 6.1(ii), no event or change has occurred
that caused or evidences, either in any case or in the aggregate, a
Material Adverse Effect.
4.3 CONDITIONS TO LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder 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 Revolving 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 Notice of
Issuance of Letter of Credit, in each case signed by the
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chief executive officer, the chief financial officer or the treasurer of
Company or by any executive officer of Company designated by any of the
above-described officers on behalf of Company in a writing delivered to
Administrative Agent, together with all other information specified in
subsection 3.1B(i) and such other documents or information as the
applicable 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 Revolving Loan and the date of issuance of such Letter of
Credit were a Funding Date.
SECTION 5.
COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make the
Revolving Loans, to induce Issuing Lender to issue Letters of Credit and to
induce other Lenders to purchase participations therein, Company hereby
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 as specified in Schedule 5.1 annexed hereto. Each
Loan Party has all requisite corporate power and authority to own and operate
its properties, to carry on its business substantially as now conducted and as
proposed to be conducted, to enter into the Loan Documents and 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 where the failure to be so qualified or in good standing has not
had and would not reasonably be expected individually or in the aggregate to
have a Material Adverse Effect.
C. CONDUCT OF BUSINESS. Loan Parties are engaged only in the businesses
permitted to be engaged in pursuant to subsection 7.14.
D. SUBSIDIARIES. All of the Subsidiaries of Company as of the Closing
Date are identified in Schedule 5.1 annexed hereto, as said Schedule 5.1 may be
supplemented from time to time pursuant to the provisions of subsection 6.1(xv).
The capital stock of each of the Subsidiaries of Company identified in Schedule
5.1 annexed hereto (as so supplemented) is duly
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authorized, validly issued, fully paid and nonassessable and none of such
capital stock constitutes Margin Stock. Each of the Subsidiaries of Company
identified in Schedule 5.1 annexed hereto (as so supplemented) is a corporation
duly organized, validly existing and in good standing under the laws of its
respective jurisdiction of 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 has not had and would not reasonably be
expected individually or in the aggregate to have a Material Adverse Effect.
Schedule 5.1 annexed hereto (as so supplemented) correctly sets forth the
ownership interest of Company and each of its Subsidiaries in each of the
Subsidiaries of Company 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 Loan Parties
of the Loan Documents and the Related Agreements to which they are parties 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 or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws of any Loan
Party or any of its Subsidiaries or any order, judgment or decree of any court
or other agency of government binding on any Loan Party or any of its
Subsidiaries, (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 or any of its Subsidiaries which would reasonably be expected
individually or in the aggregate to have 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 or any of its Subsidiaries (other than any Liens
created under any of the Loan Documents in favor of Administrative Agent on
behalf of Lenders), or (iv) require any approval of stockholders or any approval
or consent of any Person under any Contractual Obligation of any Loan Party or
any of its Subsidiaries, except for such approvals or consents which will be
obtained on or before the Closing Date and disclosed in writing to Lenders and
except to the extent, with respect to any approvals or consents required under
any Contractual Obligations, the failure to obtain such approval or consent
would not reasonably be expected individually or in the aggregate to have a
Material Adverse Effect.
C. GOVERNMENTAL CONSENTS. The execution, delivery and performance by
Loan Parties of the Loan Documents and the Related Agreements to which they are
parties and the consummation of the transactions contemplated by the Loan
Documents and such Related Agreements do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
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body (other than filings required in connection with the perfection of security
interests granted pursuant to the Collateral Documents and routine and customary
filings with, or consents or approvals of, or notices to, governmental or
regulatory bodies required in connection with the conduct of the business of
Company and its Subsidiaries or the absence of which would not individually or
in the aggregate be reasonably expected to have a Material Adverse Effect).
D. BINDING OBLIGATION. Each of the Loan Documents and 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, COMPANY PREFERRED STOCK AND
SENIOR SECURED NOTES.
(i) Company Common Stock and Company Preferred Stock. The Company
Common Stock and Company Preferred Stock to be sold on or before the
Closing Date, when issued and delivered, will be duly and validly
issued, fully paid and nonassessable. No stockholder of Company has or
will have any preemptive rights to subscribe for any additional equity
Securities of Company. The issuance and sale of such Company Common
Stock and Company 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.
(ii) Senior Secured Notes. Company has the corporate power and
authority to issue the Senior Secured Notes. The Senior Secured Notes,
when issued and paid for, will be the legally valid and binding
obligations of Company, enforceable against Company in accordance with
their 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. The Senior Secured Notes, when issued and sold, will
either (a) have been registered or qualified under applicable federal
and state securities laws or (b) be exempt therefrom.
5.3 FINANCIAL CONDITION.
Company has heretofore delivered to Lenders, at Lenders' request, the
following financial statements and information: (i) the audited consolidated
balance sheet of Company and its Subsidiaries as at December 31, 1997 and the
related consolidated statements of income, stockholders' equity and cash flows
of Company and its Subsidiaries for the Fiscal Year then ended. All such
statements were prepared in conformity with GAAP and fairly present, in all
material respects, the financial position (on a consolidated basis) of the
entities described in such financial statements as at the respective dates
thereof and the results of operations and cash flows (on a consolidated basis)
of the entities described therein for each of the periods then ended.
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Company does not have 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 individually or in the aggregate would reasonably be expected to have
a Material Adverse Effect.
5.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED PAYMENTS.
As of the date hereof, since December 31, 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 December 31, 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 Payment or agreed to do so except
as permitted by subsection 7.3.
5.5 TITLE TO PROPERTIES; LIENS.
Loan Parties 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 7.5 and except as would not individually or in the
aggregate reasonably be expected to have a Material Adverse Effect. Except as
permitted by this Agreement, all such properties and assets are free and clear
of Liens.
5.6 LITIGATION; ADVERSE FACTS.
There are no actions, suits, proceedings, arbitrations or governmental
investigations (whether or not purportedly on behalf of any Loan Party or any of
its Subsidiaries) at law or in equity, or before or by any federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign (including any Environmental Claims) that
are pending or, to the knowledge of Company, threatened against or affecting any
Loan Party or any of its Subsidiaries or any property of any Loan Party or any
of its Subsidiaries and that, individually or in the aggregate, would reasonably
be expected to result in a Material Adverse Effect. No Loan Party nor any of its
Subsidiaries (i) is in violation of any applicable laws (including Environmental
Laws) that, individually or in the aggregate, would reasonably be expected to
result in a Material Adverse Effect, or (ii) is 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, would 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 Company and its Subsidiaries required to be filed by any
of them have been timely filed, and all material taxes shown on such tax returns
to be due and payable and all assessments, fees and other governmental charges
upon Company and its Subsidiaries and upon their respective properties, assets,
income, businesses and franchises which are due and payable have been paid when
due and payable. No Loan Party knows of any proposed material tax assessment
against any Loan Party or any of its Subsidiaries which is not being actively
contested by such Loan Party 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; MATERIALLY ADVERSE AGREEMENTS; MATERIAL
CONTRACTS.
A. No Loan Party nor any of its 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, would not individually or in the aggregate
have a Material Adverse Effect.
B. No Loan Party nor any of its 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, would reasonably
be expected to have a Material Adverse Effect.
5.9 GOVERNMENTAL REGULATION.
No Loan Party nor any of its 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 which may limit its ability to incur
Indebtedness or which may otherwise render all or any portion of the Obligations
unenforceable.
5.10 SECURITIES ACTIVITIES.
A. No Loan Party nor any of its 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.
B. Following application of the proceeds of each Revolving Loan, not
more than 25% of the value of the assets (either of Company only or of Company
and its Subsidiaries on a consolidated basis) subject to the provisions of
subsection 7.2 or 7.5 or subject to any restriction contained in any agreement
or instrument, between Company and any Lender or any Affiliate of
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any Lender, relating to Indebtedness and within the scope of subsection 8.2,
will be Margin Stock.
5.11 EMPLOYEE BENEFIT PLANS.
A. Each of Company and its Subsidiaries is in material compliance with
all applicable provisions and requirements of ERISA and the regulations and
published interpretations thereunder with respect to each Employee Benefit Plan
of Company and its Subsidiaries, and have performed all their material
obligations under each such Employee Benefit Plan. Each Employee Benefit Plan of
Company and its Subsidiaries which is intended to qualify under Section 401(a)
of the Internal Revenue Code is so qualified.
B. No ERISA Event with respect to Company or its Subsidiaries has
occurred or is reasonably expected to occur and no ERISA Event with respect to
any ERISA Affiliate of Company and its Subsidiaries has occurred or is
reasonably expected to occur which would be reasonably expected to result in a
Material Adverse Effect.
C. As of the most recent valuation date for any Pension Plan maintained
or contributed to by Company and its Subsidiaries, the amount of unfunded
benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually
or in the aggregate for all such Pension Plans (excluding for purposes of such
computation any Pension Plans with respect to which assets exceed benefit
liabilities), does not exceed $5,000,000. As of the most recent evaluation date
for any Pension Plan maintained or contributed by Company and its Subsidiaries
or any ERISA Affiliate, the amount of unfunded benefit liabilities (as defined
in Section 4001(a)(18) of ERISA), individually or in the aggregate for all such
Pension Plans (excluding for purposes of such computation any Pension Plans with
respect to which assets exceed benefit liabilities), if required to be fully
paid, would not reasonably be expected to have Material Adverse Effect.
D. As of the most recent valuation date for each Multiemployer Plan for
which the actuarial report is available, the potential liability of Loan Parties
for a complete withdrawal from such Multiemployer Plan (within the meaning of
Section 4203 of ERISA), when aggregated with such potential liability for a
complete withdrawal from all Multiemployer Plans, based on information available
pursuant to Section 4221(e) of ERISA, does not exceed $5,000,000. As of the most
recent valuation date for each Multiemployer Plan for which the actuarial report
is available, the potential liability of Loan Parties together with their
respective ERISA Affiliates for a complete withdrawal from such Multiemployer
Plan (within the meaning Section 4203 of ERISA), when aggregated with such
potential liability for a complete withdrawal from all Multiemployer Plans,
based on information available pursuant to Section 4221(e) of ERISA, would not
reasonably be expected to have Material Adverse Effect.
5.12 CERTAIN FEES.
Except as set forth on 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
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contemplated hereby, and Company 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) no Loan Party nor any of its Subsidiaries nor any of their
respective Facilities or operations are subject to any written order,
consent decree or settlement agreement with any Person that is
outstanding (except for documentation retention or confidentiality
requirements) relating to (a) any Environmental Law, (b) any
Environmental Claim, or (c) any Hazardous Materials Activity;
(ii) No Loan Party nor any of its Subsidiaries has received 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 any comparable state law;
(iii) there have been no conditions, occurrences, or Hazardous
Materials Activities which could reasonably be expected to form the
basis of an Environmental Claim against any Loan Party or any of its
Subsidiaries that could reasonably be expected individually or in the
aggregate to have a Material Adverse Effect;
(iv) Company has an environmental management system for its and
each of its Subsidiaries' operations with respect to environmental
compliance and includes procedures for (a) preparing and updating
written compliance manuals covering pertinent regulatory areas, (b)
tracking changes in applicable Environmental Laws and modifying
operations to comply with new requirements thereunder, (c) training
employees to comply with applicable environmental requirements and
updating such training as necessary, (d) ensuring correction of any
incidents of non-compliance and (e) reviewing the compliance status of
off-site waste disposal facilities;
(v) compliance with all current or reasonably foreseeable future
requirements pursuant to or under Environmental Laws will not,
individually or in the aggregate, have a reasonable possibility of
giving rise to a Material Adverse Effect.
Notwithstanding anything in this subsection 5.13 to the contrary, no
event or condition has occurred or is occurring with respect to any Loan Party
or any of its Subsidiaries relating to any Environmental Law, any Release of
Hazardous Materials, or any Hazardous Materials Activity, including any matter
disclosed on Schedule 5.13 annexed hereto, which individually or in the
aggregate has had or could reasonably be expected to have a Material Adverse
Effect.
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5.14 EMPLOYEE MATTERS.
Except as set forth in Schedule 5.14 annexed hereto, no Loan Party or
any of its Subsidiaries is a party to any collective bargaining agreement and,
to the knowledge of any Loan Party, no union representation question exists with
respect to the employees of any Loan Party or any of its Subsidiaries. There is
no strike, work stoppage, slowdown, lockout or any other labor dispute pending,
or to the knowledge of Company, threatened, involving any Loan Party or any of
its Subsidiaries that individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect.
5.15 SOLVENCY.
Each Loan Party is and, upon the incurrence of any Obligations by such
Loan Party on any date on which this representation is made, will be, Solvent.
5.16 MATTERS RELATING TO COLLATERAL.
A. CREATION, PERFECTION AND PRIORITY OF LIENS. The execution and
delivery of the Collateral Documents by Loan Parties, together with the actions
taken on or prior to the date hereof pursuant to subsections 4.1H and 6.8 are
effective to create in favor of Administrative Agent for the benefit of Lenders,
as security for the respective Secured Obligations (as defined in the applicable
Collateral Document in respect of any Collateral), a valid and perfected First
Priority Lien on all of the Collateral (other than Liens on Collateral located
outside the United States unless such Lien has been perfected in accordance with
the laws of the applicable foreign jurisdiction and Liens described in clause
(vi) of the definition of Permitted Encumbrances), and all filings and other
actions necessary or desirable to perfect and maintain the perfection and First
Priority status of such Liens (other than Liens on Collateral located outside
the United States unless such Lien has been perfected in accordance with the
laws of the applicable foreign jurisdiction and Liens described in clause (vi)
of the definition of Permitted Liens) have been duly made or taken and remain in
full force and effect, other than the filing of any UCC financing statements
delivered to Administrative Agent for filing (but not yet filed) and the
periodic filing of UCC continuation statements in respect of UCC financing
statements filed by or on behalf of Administrative Agent.
B. GOVERNMENTAL AUTHORIZATIONS. No authorization, approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for either (i) the pledge or grant by any Loan Party
of the Liens purported to be created in favor of Administrative Agent pursuant
to any of the Collateral Documents or (ii) the exercise by Administrative Agent
of any rights or remedies in respect of any Collateral (whether specifically
granted or created pursuant to any of the Collateral Documents or created or
provided for by applicable law), except for filings or recordings contemplated
by subsection 5.16A.
C. ABSENCE OF THIRD-PARTY FILINGS. Except such as may have been filed in
favor of Administrative Agent as contemplated by subsection 5.16A and in respect
of Liens permitted
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under subsection 7.2A, no effective UCC financing statement, fixture filing or
other instrument similar in effect covering all or any part of the Collateral is
on file in any filing or recording office.
D. MARGIN REGULATIONS. The pledge of the Pledged Collateral pursuant to
the Collateral Documents does not violate Regulation G, T, U or X of the Board
of Governors of the Federal Reserve System.
E. INFORMATION REGARDING COLLATERAL. All information supplied to
Administrative Agent by or on behalf of any Loan Party with respect to any of
the Collateral (in each case taken as a whole with respect to any particular
Collateral) is accurate and complete in all material respects.
5.17 RELATED AGREEMENTS.
A. REPRESENTATIONS AND WARRANTIES IN MERGER AGREEMENT. Each of the
representations and warranties given by Zilog to Merger Sub and TPG and by
Merger Sub and TPG to Zilog in the Merger Agreement is true and correct in all
material respects as of the date hereof (or as of any earlier date to which such
representation and warranty specifically relates) and will be true and correct
in all material respects as of the Closing Date, or as of such earlier date (as
the case may be), in each case subject to the qualifications set forth in the
schedules to the Merger Agreement and as supplemented by the representations and
warranties in this Agreement and the information contained in Company's Offering
Circular relating to the Senior Secured Notes. Notwithstanding anything in the
Merger Agreement to the contrary, the representations and warranties set forth
in this subsection shall, solely for purposes of this Agreement, survive the
Closing Date for the benefit of Lenders.
5.18 DISCLOSURE.
The representations and warranties of the Loan Parties contained in the
Loan Documents and the Related Agreements and the information set forth in
Company's Offering Circular relating to the Senior Secured Notes (excluding any
projections or pro forma financial information), taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein not misleading as of
the date made and 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 Company to be
reasonable at the time made, it being recognized by Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
from the projected results. As of the date hereof, there are no facts known (or
which should upon the reasonable exercise of diligence be known) to Company
(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 in the documents referenced above.
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SECTION 6.
COMPANY'S AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the
Revolving Loans and other Obligations and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior written
consent, Company shall perform, and shall cause each of its Subsidiaries to
perform, all covenants in this Section 6.
6.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Company 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) Quarterly Financials: as soon as practicable and in any event
within 45 days after the end of each of the first three Fiscal Quarters
of each Fiscal Year, (a) the consolidated balance sheet of Company and
its Subsidiaries as at the end of such Fiscal Quarter and the related
consolidated statements of income, stockholders' equity and cash flows
of Company and its Subsidiaries for such Fiscal Quarter and for the
period from the beginning of the then current Fiscal Year to the end of
such Fiscal Quarter, setting forth in each case 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 Company 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 Company 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;
(ii) Year-End Financials: as soon as practicable and in any event
within 90 days after the end of each Fiscal Year, (a) the consolidated
balance sheet of Company and its Subsidiaries as at the end of such
Fiscal Year and the related consolidated statements of income,
stockholders' equity and cash flows of Company and its Subsidiaries for
such Fiscal Year, setting forth in each case 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 reasonable detail and certified by the
chief financial officer of Company that they fairly present, in all
material respects, the financial condition of Company and its
Subsidiaries as at 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 Company and its
Subsidiaries in the form prepared for
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presentation to senior management for such Fiscal Year, and (c) a report
thereon of Ernst & Young, LLP or other independent certified public
accountants of recognized national standing selected by Company and
reasonably 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;
(iii) Officers' and Compliance Certificates: together with each
delivery of financial statements of Company and its Subsidiaries
pursuant to subdivisions (i) and (ii), (a) 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 Company
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 Company has taken, is taking and
proposes to take with respect thereto; and (b) a Compliance Certificate
demonstrating in reasonable detail compliance or noncompliance during
and at the end of the applicable accounting periods with the
restrictions contained in Section 7, in each case to the extent
compliance with such restrictions is required to be tested at the end of
the applicable accounting period;
(iv) 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) or (xii) 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) or (xii) of this subsection 6.1 following such
change, consolidated financial statements of Company and its
Subsidiaries for (1) the current Fiscal Year to the effective date of
such change and (2) the two full Fiscal Years 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) or (xii) of this subsection 6.1 following such
change, a written
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statement of the chief accounting officer or chief financial officer of
Company setting forth the differences (including any differences that
would affect any calculations relating to the financial covenants set
forth in subsection 7.4) which would have resulted if such financial
statements had been prepared without giving effect to such change;
(v) 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 clause (b)
of subdivision (iv) above for the applicable Fiscal Year are not stated
in accordance with the terms of this Agreement;
(vi) Accountants' Reports: promptly upon receipt thereof (unless
restricted by applicable professional standards), copies of all reports
submitted to Company by independent certified public accountants in
connection with each annual, interim or special audit of the financial
statements of Company and its Subsidiaries made by such accountants,
including any comment letter submitted by such accountants to management
in connection with their annual audit;
(vii) 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 Company
to its security holders or by any Subsidiary of Company to its security
holders other than Company or another Subsidiary of Company, (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
Company 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 Company or any of its Subsidiaries to the
public concerning material developments in the business of Company or
any of its Subsidiaries;
(viii) Events of Default, etc.: promptly upon any officer of
Company 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
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Administrative Agent) or taken any other action with respect to a
claimed Event of Default or Potential Event of Default, (b) of any
condition or event that would be required to be disclosed in a current
report filed by Company 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 Company were required to file such reports under the Exchange
Act, or (c) 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 Company has taken, is taking and proposes to
take with respect thereto;
(ix) Litigation or Other Proceedings: promptly upon any officer
of Company obtaining knowledge of (a) the institution of, or
non-frivolous threat of, any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration against or affecting any Loan Party or any of its
Subsidiaries or any property of any Loan Party or any of its
Subsidiaries (collectively, "PROCEEDINGS") not previously disclosed in
writing by Company to Lenders or (b) any material development in any
Proceeding that, in any case:
(1) could reasonably be expected to give rise to 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 Company to enable Lenders and their counsel to
evaluate such matters;
(x) ERISA Events: promptly upon becoming aware of the occurrence
of or forthcoming occurrence of any ERISA Event which could reasonably
be expected to result in a liability to any Loan Party in excess of
$5,000,000 in any single case or $10,000,000 in the aggregate, a written
notice specifying the nature thereof, what action Loan Parties or any of
their respective 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;
(xi) ERISA Notices: with reasonable promptness, copies of (a)
each Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by Loan Parties with the Internal Revenue Service with
respect to each Pension Plan; (b) all notices received by Loan Parties
from a Multiemployer Plan sponsor concerning an ERISA Event; and (c)
copies of such other documents or governmental reports or filings
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relating to any Employee Benefit Plan of Company and its Subsidiaries as
Administrative Agent shall reasonably request;
(xii) Financial Plans: as soon as practicable and in any event no
later than 45 days after the beginning of each Fiscal Year, a
consolidated plan and financial forecast for such Fiscal Year, in the
form prepared for senior management and the Board of Directors,
including a forecasted consolidated balance sheet and forecasted
consolidated statements of income and cash flows of Company and its
Subsidiaries for such Fiscal Year, together with an explanation of the
assumptions on which such forecasts are based;
(xiii) Insurance: as soon as practicable and in any event by the
last day of each Fiscal Year, a report in form and substance reasonably
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;
(xiv) Board of Directors: with reasonable promptness, written
notice of any change in the Board of Directors of Company;
(xv) 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;
(xvi) Borrowing Base Certificates. (a) As soon as available and
in any event within ten (10) Business Days after the last Business Day
of (1) if any Revolving Loans or Letters of Credit are outstanding, each
month or (2) if no Revolving Loans or Letters of Credit are outstanding,
each Fiscal Quarter, in each case ending after the Closing Date, and (b)
upon the date of delivery of any Notice of Borrowing if a Borrowing Base
Certificate has not been delivered within the last 30 days prior to the
applicable Funding Date, a Borrowing Base Certificate dated as of the
last Business Day of such month or Fiscal Quarter or the date of the
Notice of Borrowing, as applicable, together with any additional
schedules and other information that Administrative Agent may reasonably
request (it being understood that (a) Company, in addition to such
monthly Borrowing Base Certificate, may from time to time deliver to
Administrative Agent and Lenders, on any Business Day after the Closing
Date, a Borrowing Base Certificate dated as of such Business Day,
together with any additional schedules and other information that
Administrative Agent may reasonably request, and (b) the most recent
Borrowing Base Certificate described in this subdivision (xvi) that is
delivered to Administrative Agent shall be used in calculating the
Borrowing Base as of any date of determination); and
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(xvii) Other Information: with reasonable promptness, such other
information and data with respect to Company or any of its Subsidiaries
as from time to time may be reasonably requested by Administrative Agent
on behalf of any Lender.
6.2 CORPORATE EXISTENCE, ETC.
Except as permitted under subsection 7.5, Company will, and will cause
each of its Subsidiaries to, at all times preserve and keep in full force and
effect (i) its corporate existence and (ii) all rights and franchises material
to its business; provided, however that neither Company nor any of its
Subsidiaries shall be required to preserve any such right or franchise if the
Board of Directors of Company or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
Company or such Subsidiary, as the case may be, and that the loss thereof would
not individually or in the aggregate reasonably be expected to have a Material
Adverse Effect.
6.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
A. Company will, and will cause each of its Subsidiaries to, pay all
material taxes, assessments and other governmental charges imposed upon it or
any of its properties or assets or in respect of any of its income, businesses
or franchises before any penalty accrues thereon, and all material claims
(including claims for labor, services, materials and supplies) for sums that
have become due and payable and that by law have or may become a Lien upon any
of its properties or assets, prior to the time when any penalty or fine shall be
incurred with respect thereto; provided that no such charge or claim need be
paid if it is being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted, so long as (1) such reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor and (2) in the case of a charge or claim which has
or may become a Lien against any of the Collateral, such contest proceedings
conclusively operate to stay the sale of any portion of the Collateral to
satisfy such charge or claim.
B. Company will not, nor will it permit any of its Subsidiaries to, file
or consent to the filing of any consolidated income tax return with any Person
(other than Company or any of its Subsidiaries).
6.4 MAINTENANCE OF PROPERTIES; INSURANCE; APPLICATION OF NET
INSURANCE/CONDEMNATION PROCEEDS.
A. MAINTENANCE OF PROPERTIES. Company 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 material properties
used or useful in the business of Company and its Subsidiaries (including all
Intellectual Property) and from time to time will make or cause to be made all
appropriate repairs, renewals and replacements thereof.
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B. INSURANCE. Company will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance, third
party property damage insurance, business interruption insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of Company and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by corporations
of established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for
corporations similarly situated in the industry. Without limiting the generality
of the foregoing, Company will maintain or cause to be maintained casualty
insurance on the Collateral under such policies of insurance, with such
insurance companies, in such amounts, with such deductibles, and covering such
risks as are at all times satisfactory to Administrative Agent in its
commercially reasonable judgment. Each such policy of insurance on the
Collateral shall (a) name Administrative Agent for the benefit of Lenders as an
additional insured thereunder as its interests may appear and (b) in the case of
each casualty insurance policy, contain a loss payable clause or endorsement,
reasonably satisfactory in form and substance to Administrative Agent, that
names Administrative Agent for the benefit of Lenders as the loss payee
thereunder for any covered loss with respect to the Collateral provides for at
least 30 days prior written notice to Administrative Agent of any modification
or cancellation of such policy.
If Administrative Agent receives any insurance proceeds in respect of
the Collateral as loss payee, as long as no Event of Default has occurred and is
continuing, Administrative Agent shall deliver such insurance proceeds to
Company. If an Event of Default has occurred and is continuing Administrative
Agent shall, and Company hereby authorizes Administrative Agent to, apply such
insurance proceeds to prepay any outstanding Revolving Loans.
6.5 INSPECTION RIGHTS; AUDITS OF INVENTORY AND ACCOUNTS RECEIVABLE; LENDER
MEETING.
A. INSPECTION RIGHTS. Company shall, and shall cause each of its
Subsidiaries to, permit any authorized representatives designated by any Lender
to visit and inspect any of the properties of Company or of any of its
Subsidiaries, to inspect, copy and take extracts from its and their financial
and accounting records, and to discuss its and their affairs, finances and
accounts with its and their officers and independent public accountants
(provided that Company may, if it so chooses, be present at or participate in
any such discussion), all upon reasonable notice and at such reasonable times
during normal business hours and at such intervals as may reasonably be
requested and at the expense of Lenders.
B. AUDITS OF INVENTORY AND ACCOUNTS. Company shall, and shall cause each
of its Subsidiaries to, permit any authorized representatives designated by
Administrative Agent to conduct an audit of all Inventory and Accounts
Receivable of Loan Parties once during each twelve-month period after the
Closing Date and at any time an Event of Default has occurred and is continuing,
all upon reasonable notice and at such reasonable times during normal business
hours as may reasonably be requested.
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C. LENDER MEETING. Company will, upon the request of Arranger,
Administrative Agent or Requisite Lenders, participate in a meeting of
Administrative Agent and Lenders once during each Fiscal Year to be held at
Company's corporate offices (or at such other location as may be agreed to by
Company and Administrative Agent) at such time as may be agreed to by Company
and Administrative Agent, such meeting, as long as no Event of Default has
occurred and is continuing, to be at the expense of Lenders.
6.6 COMPLIANCE WITH LAWS, ETC.
Company shall comply, 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 all Environmental Laws),
noncompliance with which would reasonably be expected to cause, individually or
in the aggregate, a Material Adverse Effect.
6.7 ENVIRONMENTAL REVIEW AND INVESTIGATION, DISCLOSURE, ETC.; COMPANY'S
ACTIONS REGARDING HAZARDOUS MATERIALS ACTIVITIES, ENVIRONMENTAL CLAIMS
AND VIOLATIONS OF ENVIRONMENTAL LAWS.
A. ENVIRONMENTAL REVIEW AND INVESTIGATION. Company agrees that in the
event (a) Administrative Agent reasonably believes that Company has breached any
representation, warranty or covenant contained in subsection 5.6, 5.13, 6.6 or
6.7 or that there has been a material violation of Environmental Laws at any
Facility or by Company or any of its Subsidiaries at any other location or (b)
an Event of Default has occurred and is continuing, Administrative Agent may
conduct, at Company's expense, its own investigation of any Facility; provided
that, in the case of any Facility no longer owned, leased, operated or used by
Company or any of its Subsidiaries, Company shall only be obligated to use its
best efforts to obtain permission for Administrative Agent's professional
consultant to conduct an investigation of such Facility. For purposes of
conducting such a review and/or investigation, Company hereby grants to
Administrative Agent and its agents, employees, consultants and contractors the
right to enter into or onto any Facilities currently owned, leased, operated or
used by Company or any of its Subsidiaries and to perform such tests on such
property (including taking samples of soil, groundwater and suspected
asbestos-containing materials) as are reasonably necessary in connection
therewith. Any such investigation of any Facility shall be conducted, unless
otherwise agreed to by Company 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 such Facility or to cause any damage or
loss to any property at such Facility. To the extent soil or ground water
samples are taken, Company may, at its option, take split samples for separate
testing. Company and Administrative Agent hereby acknowledge and agree that any
report of any investigation conducted at the request of Administrative Agent
pursuant to this subsection 6.7A 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 Revolving 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 Company with the understanding
that Company acknowledges and agrees that (1) it will indemnify and hold
harmless Administrative Agent and
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each Lender from any costs, losses or liabilities relating to Company's use of
or reliance on such report, (2) neither Administrative Agent nor any Lender
makes any representation or warranty with respect to such report, and (3) by
delivering such report to Company, neither Administrative Agent nor any Lender
is requiring or recommending the implementation of any suggestions or
recommendations contained in such report.
B. ENVIRONMENTAL DISCLOSURE. Company 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
(collectively, "REPORTS"), whether prepared by personnel of Company or
any of its Subsidiaries or by independent consultants, governmental
authorities or any other Persons, with respect to 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; except to the extent such Reports are a privileged attorney
client communication or constitute privileged attorney work product,
provided that Company agrees to identify all privileged Reports and to
provide reasonable information concerning the facts or circumstances
giving rise to the Reports in order to enable Administrative Agent to
evaluate and assess the environmental matters covered by the Reports.
(ii) Notice of Certain Releases, Remedial Actions, Etc. Promptly
upon the occurrence thereof, written notice describing in reasonable
detail (a) any Release required to be reported to any federal, state or
local governmental or regulatory agency under any applicable
Environmental Laws that could reasonably be expected to have a Material
Adverse Effect, (b) any remedial action taken by Company or any other
Person in response to any Hazardous Materials Activities or any
Environmental Claims that, individually or in the aggregate, have a
reasonable possibility of resulting in a Material Adverse Effect, and
(c) Company's discovery of any occurrence or condition on any real
property adjoining or in the vicinity of any Facility that could
reasonably be expected to 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 that could reasonably be
expected to have a Material Adverse Effect.
(iii) Written Communications Regarding Environmental Claims,
Releases, Etc. As soon as practicable following the sending or receipt
thereof by Company or any of its Subsidiaries, a copy of any and all
written communications with respect to (a) any Environmental Claims
that, individually or in the aggregate, have a reasonable possibility of
giving rise to a Material Adverse Effect, and (b) any request for
information from any governmental agency that suggests such agency is
investigating whether Company or any of its Subsidiaries may be
potentially responsible for an Environmental Claim; except to the extent
such written communications are a privileged attorney client
communication
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or constitute privileged attorney work product, provided that Company
agrees to identify all privileged written communications and to provide
reasonable information concerning the facts or circumstances giving rise
to the communications in order to enable Administrative Agent to
evaluate and assess the environmental matters covered by the
communication.
(iv) Notice of Certain Proposed Actions Having Environmental
Impact. Prompt written notice describing in reasonable detail (a) any
proposed acquisition of stock, assets, or property by Company or any of
its Subsidiaries that could reasonably be expected to (1) expose Company
or any of its Subsidiaries to, or result in, Environmental Claims that
could reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect or (2) affect the ability of Company or any of
its Subsidiaries to maintain in full force and effect all material
Governmental Authorizations required under any Environmental Laws for
their respective operations and (b) any proposed action to be taken by
Company or any of its Subsidiaries to modify current operations in a
manner that could reasonably be expected to subject Company or any of
its Subsidiaries to any additional obligations or requirements under any
Environmental Laws that could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(v) Other Information. With reasonable promptness, such other
documents and information as from time to time may be reasonably
requested by Administrative Agent in relation to any matters disclosed
pursuant to this subsection 6.7.
C. COMPANY'S ACTIONS REGARDING HAZARDOUS MATERIALS ACTIVITIES,
ENVIRONMENTAL CLAIMS AND VIOLATIONS OF ENVIRONMENTAL LAWS.
(i) Remedial Actions Relating to Hazardous Materials Activities.
Company shall promptly undertake, and shall cause each of its
Subsidiaries promptly to undertake, any and all investigations, studies,
sampling, testing, abatement, cleanup, removal, remediation or other
response actions necessary to remove, remediate, clean up or ▇▇▇▇▇ any
Hazardous Materials Activity on, under or about any Facility that
presents a material risk of giving rise to an Environmental Claim. In
the event Company or any of its Subsidiaries undertakes any such action
with respect to any Hazardous Materials, Company or such Subsidiary
shall conduct and complete such action in compliance with all applicable
Environmental Laws and in accordance with the policies, orders and
directives of all federal, state and local governmental authorities
except when, and only to the extent that, Company's or such Subsidiary's
liability with respect to such Hazardous Materials Activity is being
contested in good faith by Company or such Subsidiary.
(ii) Actions with Respect to Environmental Claims and Violations
of Environmental Laws. Company shall promptly take, and shall cause each
of its Subsidiaries promptly to take, any and all actions necessary to
(i) cure any material violation of applicable Environmental Laws by
Company or its Subsidiaries and (ii) make
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an appropriate response to any Environmental Claim against Company 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;
except when, and only to the extent that, Company is contesting in good
faith such violation of Environmental Law or such Environmental Claim.
6.8 EXECUTION OF SUBSIDIARY GUARANTY AND PERSONAL PROPERTY COLLATERAL
DOCUMENTS BY CERTAIN SUBSIDIARIES AND FUTURE SUBSIDIARIES.
A. EXECUTION OF SUBSIDIARY GUARANTY AND PERSONAL PROPERTY COLLATERAL
DOCUMENTS. Except as otherwise provided below in subsection 6.8C with respect to
Foreign Subsidiaries, in the event that any Person becomes a Subsidiary of
Company after the date hereof in accordance with and to the extent permitted by
this Agreement, Company will promptly notify Administrative Agent of that fact
and cause such Subsidiary to execute and deliver to Administrative Agent a
counterpart of the Subsidiary Guaranty, Subsidiary Security Agreement and to
take all such further actions and execute all such further documents and
instruments (including actions, documents and instruments comparable to those
described in subsection 4.1H) as may be necessary or, in the opinion of
Administrative Agent, desirable to create in favor of Administrative Agent, for
the benefit of Lenders, a valid and perfected First Priority Lien (other than
Liens on Collateral located outside the United States unless such Lien has been
perfected in accordance with the laws of the applicable foreign jurisdiction and
Liens described in clause (vi) of the definition of Permitted Encumbrances) on
all of the personal property assets of such Subsidiary described in the
applicable forms of Collateral Documents.
B. SUBSIDIARY CHARTER DOCUMENTS, LEGAL OPINIONS, ETC. Company shall
deliver to Administrative Agent, together with such Loan Documents described in
subsection 6.8A, (i) certified copies of such Subsidiary's Certificate or
Articles of Incorporation, together with a good standing certificate from the
Secretary of State of the jurisdiction of its 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, each to be dated a
recent date prior to their delivery to Administrative Agent, (ii) a copy of such
Subsidiary's Bylaws, certified by its corporate secretary or an assistant
secretary as of a recent date prior to their delivery to Administrative Agent,
(iii) a certificate executed by the secretary or an assistant secretary of such
Subsidiary as to (a) the fact that the attached resolutions of the Board of
Directors of such Subsidiary approving and authorizing the execution, delivery
and performance of such Loan Documents are in full force and effect and have not
been modified or amended and (b) the incumbency and signatures of the officers
of such Subsidiary executing such Loan Documents, and (iv) a favorable opinion
of counsel to such Subsidiary, in form and substance reasonably 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 Loan Documents, (c) the enforceability of such Loan
Documents against such Subsidiary, (d) such other matters (including matters
relating to the
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creation and perfection of Liens in any Collateral pursuant to such Loan
Documents) as Administrative Agent may reasonably request, all of the foregoing
to be satisfactory in form and substance to Administrative Agent and its
counsel.
C. FOREIGN SUBSIDIARIES. In the event that (i) any Person which becomes
a Subsidiary of Company is a Foreign Subsidiary and (ii) Company reasonably
determines that the execution of a counterpart of the Subsidiary Guaranty and
the Collateral Documents required to be executed by such Subsidiary pursuant to
subsection 6.8A would result in material negative tax consequences to Company,
then, notwithstanding anything in this subsection 6.8A to the contrary, such
Foreign Subsidiary shall not be required to execute counterparts of the Security
Guaranty and the Collateral Documents required to be executed pursuant to
subsection 6.8A.
6.9 DETERMINATION OF BORROWING BASE.
A. Company shall deliver a Borrowing Base Certificate to the
Administrative Agent in accordance with subsection 6.1(xvi) and upon request of
Administrative Agent. Each such Borrowing Base Certificate shall be dated as of
the last day of the applicable reporting period or such date as may be
reasonably requested by Administrative Agent from time to time. Promptly
following its receipt of each such Borrowing Base Certificate, the
Administrative Agent shall determine, or, as the case may be, re-determine the
Borrowing Base based on such Borrowing Base Certificate and the definitions of
Eligible Inventory and Eligible Accounts Receivable and deliver written notice
of such determination to Company. In the event Administrative Agent disagrees
with Company's determination of Eligible Receivables, Eligible Inventory or the
Borrowing Base, Administrative Agent shall notify Company and consult with
Company regarding Company's determination prior to determining or redetermining
the Borrowing Base. Each Borrowing Base so determined or re-determined by the
Administrative Agent shall remain in effect until a notice of a re-determined
Borrowing Base shall have been given by the Administrative Agent in accordance
with the provisions of this subsection 6.9. Administrative Agent shall consult
with Company prior to establishing or changing any reserves or standards of
eligibility of Accounts Receivable and Inventory.
B. Each such Eligible Account Receivable shown on each Borrowing Base
Certificate shall conform to the requirements set forth in the definition
thereof. All Inventory shown on each Borrowing Base Certificate shall conform to
the requirements of the definition of Eligible Inventory.
C. Company will, and will cause each of its Subsidiaries to, keep proper
books of record and account in which full, true and correct entries in
conformity with sound business practices shall be made of all dealings and
transactions in relation to the Accounts Receivable and Inventory. Company
agrees to furnish to Administrative Agent any information which it may
reasonably request regarding the determination and calculation of the Borrowing
Base including, without limitation, correct and complete copies of any invoices,
underlying agreements, instruments or other documents and the identity of all
obligors.
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D. Administrative Agent may, at any time, reevaluate the value of any
item included in the Borrowing Base in accordance with the definition of such
item as set forth in subsection 1.1. Administrative Agent may determine, as a
result of any such reevaluation and after consultation with Company, to reduce
the amount which such item contributes to the Borrowing Base or exclude such
item from the Borrowing Base. If Administrative Agent determines that the
Borrowing Base shall be reduced pursuant to this subsection 6.9, Administrative
Agent shall give written notice to Company and Lenders which states the amount
of such reduction and the nature of the action taken by Administrative Agent,
which reduction shall be effective upon receipt of such notice by Company.
E. Company shall promptly notify Administrative Agent in writing of any
information which Company receives or otherwise gains knowledge of relating to
the eligibility of any item or items included in the Borrowing Base which would
cause the Borrowing Base to be decreased by $150,000 or more in the aggregate.
6.10 LOCKBOX SYSTEM.
Within 120 days following the Closing Date, Company shall
transfer its lockbox account system with respect to Accounts Receivable of
Company and its Subsidiaries maintained with its current lockbox bank to
Administrative Agent and thereafter maintain such lockbox account system with
Administrative Agent.
SECTION 7.
COMPANY'S NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the
Revolving Loans and other Obligations and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior written
consent, Company shall perform, and shall cause each of its Subsidiaries to
perform, all covenants in this Section 7.
7.1 INDEBTEDNESS.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guaranty or otherwise
become or remain directly or indirectly liable, contingently or otherwise, with
respect to any Indebtedness (including Acquired Debt) and Company shall not
issue any Disqualified Stock and shall not permit any of its Subsidiaries to
issue any shares of preferred stock except:
(i) Company may become and remain liable with respect to the
Obligations;
(ii) Company and its Subsidiaries, as applicable, may remain
liable with respect to existing Indebtedness described in Schedule 7.1
annexed hereto;
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(iii) Company may become and remain liable with respect to
Indebtedness evidenced by the Senior Secured Notes in an aggregate
principal amount not to exceed $280,000,000 and Subsidiary Guarantors
may become and remain liable with respect to guarantees thereof;
(iv) Company or any of its Subsidiaries may become and remain
liable for Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case incurred
for the purpose of financing all or any part of the purchase price or
cost of construction or improvement of property, plant or equipment used
in the business of the Company or such Subsidiary, in an aggregate
principal amount not to exceed $25,000,000 at any time outstanding;
(v) Company may become and remain liable with respect to
Indebtedness to any Subsidiary Guarantor, and any Subsidiary Guarantor
may become and remain liable with respect to Indebtedness to Company or
any other Subsidiary Guarantor provided that (a) all such intercompany
Indebtedness owed by Company to any of such Subsidiaries shall be
expressly subordinated in right of payment to the payment in full of the
Obligations and (b) (1) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a Person
other than Company or a Subsidiary Guarantor and (2) any sale or other
transfer of any such Indebtedness to a Person that is not either Company
or a Subsidiary Guarantor shall be deemed, in each case, to constitute
an incurrence of such Indebtedness by Company or such Subsidiary
Guarantor, as the case may be;
(vi) Company and its Subsidiaries may become and remain liable
with respect to Acquired Debt in an aggregate principal amount at any
time outstanding not to exceed $5,000,000;
(vii) Company and its Subsidiaries may become and remain liable
with respect to Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to refund, refinance or replace
Indebtedness (other than intercompany Indebtedness) that was permitted
by this Agreement to exist or be incurred;
(viii) Company and its Subsidiaries may become and remain liable
for Indebtedness incurred in respect of worker's compensation claims,
self-insurance obligations, performance, surety and similar bonds and
completion guarantees provided by the Company in the ordinary course of
business;
(ix) Subsidiaries of Company may become and remain liable with
respect to Indebtedness in respect of the Subsidiary Guaranty;
(x) Company and Subsidiary Guarantors may become and remain
liable with respect to obligations under Hedge Agreements;
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(xi) Company and Subsidiaries may become and remain liable with
respect to Indebtedness providing for indemnification, adjustment of
purchase price or similar obligations, in each case, incurred or assumed
in connection with the disposition of any business, assets or Capital
Stock of the Company or any Subsidiary, or other guarantees of
Indebtedness incurred by any person acquiring all or any portion of such
business, assets or Capital Stock of the Company or any Subsidiary for
the purpose of financing such acquisition, provided that the maximum
aggregate liability in respect of all such Indebtedness shall at no time
exceed the gross proceeds actually received by the Company and its
Subsidiaries in connection with such disposition;
(xii) the guarantee by the Company or any of the Subsidiary
Guarantors of Indebtedness of the Company or a Subsidiary Guarantor that
was permitted to be incurred by this subsection 7.1;
(xiii) Company and its Subsidiaries may incur and remain liable
for Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently
(except in the case of daily overdrafts) drawn against insufficient
funds in the ordinary course of business; provided, however, that such
Indebtedness is extinguished within five business days of incurrence;
(xiv) Company may incur Indebtedness (including Acquired Debt) or
issue shares of Disqualified Stock and the Subsidiary Guarantors may
incur Indebtedness or issue shares of preferred stock if Company's
Leverage Ratio as of the last day of the most recently ended Fiscal
Quarter, on a pro forma basis after giving effect to the incurrence of
such additional Indebtedness or the issuance of such Disqualified Stock
or preferred stock, is in compliance with subsection 7.4C; and
(xv) Company or any Subsidiary Guarantor may become and remain
liable with respect to other Indebtedness in an aggregate principal
amount (or accreted value, as applicable) at any time outstanding,
including all Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (xv) not to exceed
25,000,000.
7.2 LIENS AND RELATED MATTERS.
A. PROHIBITION ON LIENS. Company shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Company 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 Permitted Encumbrances. Without limiting the
generality of the foregoing, Company shall not, and shall not permit any of its
Subsidiaries
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to, directly or indirectly, create, incur, assume or permit to exist any Lien on
or with respect to any Accounts Receivable or Inventory other than Liens granted
in favor of Administrative Agent, on behalf of Lenders and Liens described in
clause (vi) of the definition of Permitted Encumbrances.
B. EQUITABLE LIEN IN FAVOR OF LENDERS. If Company 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
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, neither Company nor any
of its Subsidiaries shall enter into any agreement (other than the Senior
Secured Note Indenture, or any other agreement prohibiting only the creation of
Liens securing Secured Indebtedness) prohibiting the creation or assumption of
any Lien upon any of its properties or assets, whether now owned or hereafter
acquired.
D. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO COMPANY OR OTHER
SUBSIDIARIES. Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any Subsidiary
to (i) (a) pay dividends or make any other distributions to Company or any of
its Subsidiaries (1) on its Capital Stock or (2) with respect to any other
interest or participation in, or measured by, its profits, or (b) pay any
Indebtedness owed to Company or any of its Subsidiaries, or (ii) make loans or
advances to Company or any of its Subsidiaries or (iii) transfer any of its
property or assets to Company or any of its Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (a) Indebtedness
existing on the date of this Agreement pursuant to subsection 7.1(ii), (b) the
Senior Secured Note Indenture and collateral documents relating thereto as in
effect as of the date of this Agreement and any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings thereof, provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings are no more restrictive with respect to such dividend and other
payment restrictions than those contained in the Senior Secured Note Indenture
and collateral documents relating thereto as in effect on the date of this
Agreement, (c) applicable law, rule, regulation or order, (d) any agreement or
instrument governing Indebtedness or Capital Stock of a Person acquired by
Company or any of its Subsidiaries as in effect at the time of such acquisition
(except to the extent such agreement or instrument was entered into in
connection with or in contemplation of such acquisition), which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person and its Subsidiaries, or the property or assets of
the Person and its
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Subsidiaries, so acquired, provided that, in the case of Indebtedness, such
Indebtedness was permitted by the terms of this Agreement to be incurred, (e) by
reason of customary non-assignment provisions in leases, licenses, encumbrances,
contracts or similar agreements entered into or acquired in the ordinary course
of business and consistent with past practices, (f) purchase money obligations
for property acquired in the ordinary course of business that impose
restrictions of the nature described in clause (iii) above on the property so
acquired, (g) Permitted Refinancing Indebtedness, provided that the restrictions
contained in the agreements governing such Permitted Refinancing Indebtedness
are no more restrictive than those contained in the agreements governing the
Indebtedness being refinanced or (h) contracts for the sale of assets containing
customary restrictions with respect to a Subsidiary pursuant to an agreement
that has been entered into for the sale or disposition of all or substantially
all of the Capital Stock or assets of such Subsidiary.
7.3 RESTRICTED PAYMENTS.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly: (i) declare or pay any dividend or make any other
payment or distribution on account of Company's or any of its Subsidiaries'
Equity Interests (including, without limitation, any such dividend, distribution
or other payment in connection with any merger or consolidation involving
Company or any Subsidiary) or to the direct or indirect holders of Company's or
any of its Subsidiaries' Equity Interests in their capacity as such (other than
dividends or distributions payable in Equity Interests (other than Disqualified
Stock) of Company or dividends or distributions payable to Company or any Wholly
Owned Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or
retire for value (including, without limitation, any such purchase, redemption,
acquisition or retirement for value in connection with any merger or
consolidation involving Company) any Equity Interests of Company (other than any
such Equity Interests owned by Company or any Wholly Owned Subsidiary of
Company); (iii) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
subordinated to the Revolving Loans, except a payment of interest or a payment
of principal at stated maturity for such payment; or (iv) make any Restricted
Investment (all such payments and other actions set forth in clauses (i) through
(iv) above being collectively referred to as "RESTRICTED PAYMENTS", unless, at
the time of and immediately after giving effect to such Restricted Payment:
(a) no Potential Event of Default or Event of Default shall have
occurred and be continuing or would occur as a consequence thereof; and
(b) Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto, have been permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio (as defined in the Senior Secured Note Indenture) test
set forth in the first paragraph of Section 4.09 of the Senior Secured
Note Indenture; and
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(c) such Restricted Payment, together with the aggregate amount
of all other Restricted Payments made by Company and its Subsidiaries
after the Closing Date (excluding Restricted Payments permitted by
clauses (ii), (iii), (iv) and (viii) of the next succeeding paragraph),
is less than the sum (without duplication) of (i) 50% of the
Consolidated Net Income of Company for the period (taken as one
accounting period) from the beginning of the first fiscal quarter
commencing after the Closing Date to the end of Company's most recently
ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such
Consolidated Net Income for such period is a deficit, less 100% of such
deficit), plus (ii) 100% of the aggregate Qualified Proceeds received by
Company from contributions to capital or the issue or sale since the
Closing Date of Equity Interests of Company (other than Disqualified
Stock) or of Disqualified Stock or debt securities of the Company that
have been converted into such Equity Interests (other than Equity
Interests (or Disqualified Stock or convertible debt securities) sold to
a Subsidiary of Company and other than Disqualified Stock or convertible
debt securities that have been converted into Disqualified Stock), plus
(iii) to the extent that any Restricted Investment that was made after
the Closing Date is sold for Qualified Proceeds or otherwise liquidated
or repaid the lesser of (1) the Qualified Proceeds with respect to such
Restricted Investment (less the cost of disposition, if any) and (2) the
initial amount of such Restricted Investment, plus (iv) $5,000,000.
The foregoing provisions will not prohibit (i) the payment of any
dividend within 60 days after the date of declaration thereof, if at said date
of declaration such payment would have complied with the provisions of this
Agreement; (ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness or Equity Interests of the Company
or any Subsidiary Guarantor in exchange for, or out of the net cash proceeds of
the substantially concurrent sale (other than to a Subsidiary of Company) of,
other Equity Interests of Company (other than any Disqualified Stock); provided
that the amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement, defeasance or other acquisition shall be
excluded from clause (c)(ii) of the preceding paragraph; (iii) the defeasance,
redemption, repurchase, retirement or other acquisition of subordinated
Indebtedness in exchange for, or with the net cash proceeds from, an incurrence
of Permitted Refinancing Indebtedness; (iv) the payment of any dividend (or the
making of any similar distribution or redemption) by a Subsidiary of Company to
the holders of its common Equity Interests on a pro rata basis; (v) the
repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of Company or any Subsidiary of Company held by any member of
Company's (or any of its Subsidiaries') management, employees or consultants
pursuant to any management, employee or consultant equity subscription agreement
or stock option agreement in effect as of the Closing Date; provided that (a)
the aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests shall not exceed the sum of (1) $5,0000,000 and (2) the
aggregate cash proceeds received by Company from any reissuance of Equity
Interests (other than Disqualified Stock) by Company to members of management of
Company and its Subsidiaries (provided that the cash proceeds referred to in
this clause (2) shall be excluded from clause (c)(ii) of the preceding
paragraph) and (b) no Potential Event of Default or Event of Default shall have
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occurred and be continuing immediately after such transaction; (vi) cash
payments in lieu of fractional shares issuable as dividends on preferred
securities of Company or any of its Subsidiaries; provided that such cash
payments shall not exceed $20,000 in the aggregate in any twelve-month period
and no Potential Event of Default or Event of Default shall have occurred and be
continuing immediately after such transaction; (vii) the declaration and payment
of dividends to holders of any class or series of Disqualified Stock of Company
or a Subsidiary Guarantor issued after the Closing Date in accordance with
subsection 7.13; provided, that no Potential Event of Default or Event of
Default shall have occurred and be continuing immediately after making such
declaration or payment; and (viii) from and after January 1, 1999 so long as no
Potential Event of Default or Event of Default has occurred and is continuing,
payments by the Company not exceeding $35,000,000 in the aggregate since the
Closing Date in respect of the redemption of shares of Company Preferred Stock
outstanding on the Closing Date (or shares of Company Preferred Stock issued as
dividends thereon) if both before and after giving effect to any such payment,
the Fixed Charge Coverage Ratio (as defined in the Senior Secured Note
Indenture) for the Company's most recently ended four full Fiscal Quarters for
which internal financial statements are available immediately preceding the date
of such payment would be at least 2.5 to 1.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by Company or such Subsidiary,
as the case may be, pursuant to the Restricted Payment. The fair market value of
any non-cash Restricted Payment shall be determined by the Board of Directors of
Company whose resolution with respect thereto shall be delivered to the
Administrative Agent, such determination to be based upon an opinion or
appraisal issued by an accounting, appraisal or investment banking firm of
national standing if such fair market value exceeds $10,000,000. Not later than
the date of making any Restricted Payment, Company shall deliver to the
Administrative Agent an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which the calculations
required by this subsection 7.4 were computed, together with a copy of any
fairness opinion or appraisal required by this subsection 7.4.
7.4 FINANCIAL COVENANTS.
A. MINIMUM INTEREST COVERAGE RATIO. Company shall not permit the ratio
of (i) Consolidated Adjusted EBITDA to (ii) Consolidated Interest Expense as of
the last day of any Fiscal Quarter ending during any of the periods set forth
below for the four Fiscal Quarter period then ended to be less than the
correlative ratio indicated:
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MINIMUM
INTEREST COVERAGE
PERIOD RATIO
==================== ================
March 31, 1998 1.5:1.0
through December 31,
1999
January 1, 2000 and 2.5:1.0
thereafter
B. MINIMUM FIXED CHARGE COVERAGE RATIO. Company shall not permit the
ratio of (i) Consolidated Adjusted EBITDA to (ii) Consolidated Fixed Charges as
of the last day of any Fiscal Quarter for the four-Fiscal Quarter period then
ended to be less than 1:1.
C. MAXIMUM LEVERAGE RATIO. Company shall not permit the ratio of (i)
Consolidated Total Debt less Cash and Cash Equivalents to (ii) Consolidated
Adjusted EBITDA as of the last day of any Fiscal Quarter ending during any of
the periods set forth below for the four Fiscal Quarter period then ended (the
"LEVERAGE RATIO") to exceed the correlative ratio indicated:
MAXIMUM
PERIOD LEVERAGE RATIO
==================== ==============
March 31, 1998 5.0:1.0
through December 31,
1999
January 1, 2000 and 3.5:1.0
thereafter
D. CERTAIN CALCULATIONS. With respect to calculations of Consolidated
Adjusted EBITDA, Consolidated Interest Expense and Consolidated Fixed Charges
for any four-Fiscal Quarter period including the Closing Date, such calculations
shall be made on a pro forma basis assuming, in each case, that the Closing
Date, the Merger, the issuance and sale of the Senior Secured Notes, the Company
Common Stock and the Company Preferred Stock occurred on the first day of the
applicable four-Fiscal Quarter period.
7.5 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES.
Company may not consolidate or merge with or into (whether or not
Company is the surviving corporation), or sell, assign, transfer, lease, convey
or otherwise dispose of all or
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substantially all of its properties or assets in one or more related
transactions, to another Person unless (i) Company is the surviving corporation;
and (ii) immediately after giving effect to such transaction no Event of Default
or Potential Event of Default shall exist under this Agreement and Company shall
have delivered a Compliance Certificate to Administrative Agent demonstrating
pro forma compliance with this Agreement after giving effect to such
transaction. Company shall not and shall not permit any of its Subsidiaries to
make Asset Sales or Collateral Asset Sales (as defined in the Senior Secured
Note Indenture) except as permitted by and in accordance with the Senior Secured
Note Indenture and not expressly prohibited by this Agreement.
7.6 SALES AND LEASE-BACKS.
Company will not, and will not permit any of its Subsidiaries to, enter
into any sale and leaseback transaction with respect to any property or asset of
Company or any of its Subsidiaries; provided that Company may enter into such a
sale and leaseback transaction if (i) Company could have (a) incurred
Indebtedness in an amount equal to the Attributable Debt relating to such sale
and leaseback transaction pursuant to subsection 7.1 and (b) incurred a Lien to
secure such Indebtedness pursuant to subsection 7.2, (ii) the gross cash
proceeds of such sale and leaseback transaction are at least equal to the fair
market value (as determined in good faith by the Board of Directors of Company
and set forth in an Officers' Certificate delivered to the Administrative Agent)
of the property that is the subject of such sale and leaseback transaction and
(iii) the transfer of assets in such sale and leaseback transaction is excluded
from the definition of Asset Sale pursuant to clause (v) thereof, or is
permitted by, and Company applies the proceeds of such transaction in compliance
with, the Senior Secured Note Indenture.
7.7 SALE OF RECEIVABLES.
Company shall not, and shall not permit any Subsidiary to directly or
indirectly, sell any of its Accounts Receivable, other than Accounts Receivable
(i) excluded from the definition Eligible Accounts Receivable pursuant to
clauses (iii), (vi), (vii) or (xii) and (ii) with respect to which Company, in
its reasonable judgment, has determined that a sale of such Accounts Receivable
would be in the best economic interests of Company.
7.8 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
Company will not, and will not permit any of its Subsidiaries to, make
any payment to or Investment in, or sell, lease, transfer or otherwise dispose
of any of its properties or assets to, or purchase any property or assets from,
or enter into or make or amend any contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate (each of the
foregoing, an "Affiliate Transaction"), unless (i) such Affiliate Transaction is
on terms that are no less favorable to Company or the relevant Subsidiary than
those that would have been obtained in a comparable transaction by Company or
such Subsidiary with an unrelated Person and (ii) Company delivers to the
Administrative Agent (a) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess
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of $1,000,000, a resolution of the Board of Directors set forth in an Officers'
Certificate certifying that such Affiliate Transaction complies with clause (i)
above and that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors of Company and (b) with respect
to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $10,000,000, an opinion as to the
fairness to the Lenders of such Affiliate Transaction from a financial point of
view issued by an accounting, appraisal or investment banking firm of national
standing; provided that (1) payments of fees and expenses (including any such
payments to TPG) in connection with the Merger, (2) contracts, agreements,
understandings or other arrangements existing on the Closing Date, (3)
transactions with suppliers or other purchasers or sales of goods or services,
in each case in the ordinary course of business (including, without limitation,
pursuant to joint venture agreements) and otherwise in accordance with the terms
of this Agreement which are fair to Company, in the good faith determination of
the Board of Directors of Company or the senior management of Company, and are
on terms at least as favorable as might reasonably have been obtained at such
time from an unaffiliated party (4) any employment agreements, stock option or
other compensation agreements or plans (and the payment of amounts or the
issuance of securities thereunder) and other reasonable fees, compensation,
benefits and indemnities paid or entered into by Company or any of its
Subsidiaries with the officers, directors or employees of Company or its
Subsidiaries in the ordinary course of business, (5) transactions between or
among Company and/or its Subsidiaries and (6) Restricted Payments (other than
Restricted Investments) that are permitted by subsection 7.3, shall not be
deemed Affiliate Transactions.
7.9 DISPOSAL OF SUBSIDIARY STOCK.
Company (i) shall not, and shall not permit any Wholly Owned Subsidiary
of Company to, transfer, convey, sell, lease or otherwise dispose of any Capital
Stock of any Wholly Owned Subsidiary of Company to any Person (other than to
Company or to a wholly-owned Subsidiary of Company), unless (a) such transfer,
conveyance, sale, lease or other disposition is of all the Capital Stock of such
Wholly Owned Subsidiary and (b) the net cash proceeds from such transfer,
conveyance, sale, lease or other disposition are applied in accordance with the
terms of the Senior Secured Note Indenture and (ii) will not permit any Wholly
Owned Subsidiary of Company to issue any of its Equity Interests (other than, if
necessary, shares of its Capital Stock constituting directors' qualifying
shares) to any Person other than to Company or to a Wholly Owned Subsidiary of
Company.
7.10 AMENDMENTS OR WAIVERS OF CERTAIN RELATED AGREEMENTS.
Neither Company nor any of its Subsidiaries will agree to any amendment
to, or request any waiver of (other than a waiver for which no fee is paid and
no other concessions or considerations are granted by Company), or waive any of
their respective rights under, any of the Related Agreements (other than any
amendment or waiver described in the next succeeding sentence) without in each
case obtaining the prior written consent of Administrative Agent and Requisite
Lenders to such amendment, request or waiver (such consent not to be
unreasonably withheld) and the giving of prior written notice to Arranging
Agent. Notwithstanding the
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foregoing, Company and its Subsidiaries may agree to amend or waive any
provisions of the Related Agreements (i) to cure any ambiguity, to correct or
supplement any provision therein which may be defective or inconsistent with any
other provision therein, or (ii) to comply with the Trust Indenture Act of 1939,
as amended, or (iii) to make modifications of a technical or clarifying nature
or which are no less favorable to the Lenders, in the reasonable opinion of
Administrative Agent and Requisite Lenders, than the provisions of the Related
Agreements as in effect on the Closing Date (for the purposes of this subsection
7.14, any amendment, modification or change which would extend the maturity or
reduce the amount of any payment of principal on the Senior Secured Notes or
which would reduce the rate or extend the date for payment of interest thereon,
provided that no fee is payable in connection therewith, shall be deemed to be
an amendment, modification or change that is no less favorable to the Lenders).
7.11 FISCAL YEAR
Company shall not change its Fiscal Year-end from December 31 without
the consent of Requisite Lenders, such consent not to be unreasonably withheld.
SECTION 8.
EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF DEFAULT") shall
occur:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by Company to pay any installment of principal of any Revolving
Loan when due, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; failure by Company
to pay when due any amount payable to Issuing Lender in reimbursement of any
drawing under a Letter of Credit (including reimbursement out of the proceeds of
Revolving Loans pursuant to subsection 3.3B); or failure by Company to pay any
interest on any Revolving 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 Company or any of its Subsidiaries to pay when due any
principal of or interest on or any other amount payable in respect of one or
more items of Indebtedness (other than Indebtedness referred to in subsection
8.1) in an individual principal amount of $5,000,000 or more or with an
aggregate principal amount of $10,000,000 or more, in each case beyond the end
of any grace period provided therefor; or (ii) breach or default by Company or
any of its Subsidiaries with respect to any other material term of (a) one or
more items of Indebtedness in the individual or 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, if the effect of
such breach or default is to cause, or to permit the holder or holders of that
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Indebtedness (or a trustee on behalf of such holder or holders) to cause, that
Indebtedness to become or be declared due and payable prior to its stated
maturity (upon the giving or receiving of notice, lapse of time, both, or
otherwise); or
8.3 BREACH OF CERTAIN COVENANTS.
Failure of Company to perform or comply with any term or condition
contained in subsections 2.5, 6.2, 7.4, 7.5 or 7.7 of this Agreement; provided,
however, that the failure of Company to perform or comply with subsection 7.1 or
the financial covenant ratios set forth in subsection 7.4 during the period
commencing on the Closing Date and ending on the first anniversary of the
Closing Date shall not constitute an Event of Default as long as there are no
Revolving Loans or Letters of Credit outstanding; provided, further, that a
failure to comply with subsection 7.1 or the financial covenants set forth in
subsection 7.4 shall at all times constitute an Event of Default for purposes of
any Notice of Borrowing, Notice of Issuance of Letter of Credit or Notice of
Conversion/Continuation; or
8.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement made by
Company or any of its Subsidiaries in any Loan Document or in any statement or
certificate at any time given by Company or any of its Subsidiaries in writing
pursuant hereto or thereto shall have been false in any material respect on the
date as of which made; or
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Any Loan Party shall default in the performance of or compliance with
any term contained in this Agreement or any of the other Loan Documents, other
than any such term referred to in any other subsection of this Section 8, and
such default shall not have been remedied or waived within 30 days after the
earlier of (i) an officer of Company or such Loan Party becoming aware of such
default or (ii) receipt by Company and such Loan Party of written 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 Company or any of its Significant Subsidiaries in
an involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree
or order is not stayed; or any other similar relief shall be granted under any
applicable federal or state law; or (ii) an involuntary case shall be commenced
against Company or any of its Significant Subsidiaries under the Bankruptcy Code
or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over Company or any of its
Significant Subsidiaries, or over all or a substantial part of its property,
shall have been
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entered; or there shall have occurred the involuntary appointment of an interim
receiver, trustee or other custodian of Company or any of its Significant
Subsidiaries for all or a substantial part of its property; or a warrant of
attachment, execution or similar process shall have been issued against any
substantial part of the property of Company or any of its Significant
Subsidiaries, and any such event described in this clause (ii) shall continue
for 60 days unless dismissed, bonded or discharged; or
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Company or any of its Significant Subsidiaries shall have an order
for relief entered with respect to it or commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or shall consent to the appointment of or
taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; or Company or any of its Significant
Subsidiaries shall make any assignment for the benefit of creditors; or (ii)
Company or any of its Significant 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 Company or any of its Significant
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 $5,000,000 or (ii)
in the aggregate at any time an amount in excess of $10,000,000 (in either case
not adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage) shall be entered or filed against
Company or any of its Subsidiaries or any of their respective assets and shall
remain undischarged, unvacated, unbonded or unstayed for a period of 60 days; or
8.9 DISSOLUTION.
Any order, judgment or decree shall be entered against Company or any of
its Significant Subsidiaries decreeing the dissolution or split up of Company or
such 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 with respect to Employee
Benefit Plans maintained by or contributed to by Company and its Subsidiaries
which results in or would reasonably be expected to result in liability of
Company and any of its Subsidiaries in any individual case in excess of
$5,000,000 or in the aggregate in excess of $10,000,000 during the term of this
Agreement; or there shall exist an amount of unfunded benefit liabilities (as
defined
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in Section 4001(a)(18) of ERISA), individually or in the aggregate for all
Pension Plans of Company and its Subsidiaries (excluding for purposes of such
computation any Pension Plans with respect to which assets exceed benefit
liabilities), which exceeds $5,000,000; or there shall occur one or more ERISA
Events with respect to Company and its Subsidiaries, together with its ERISA
Affiliates, which result in or would reasonably be expected to result in
liability of Company, any of its Subsidiaries or any ERISA Affiliate which would
reasonably be expected to have a Material Adverse Effect; or there shall exist
an amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans of Company, its
Subsidiaries and ERISA Affiliates (excluding for purposes of such computation
any Pension Plans with respect to which assets exceed benefit liabilities),
which if required to be fully paid (taking into account any permitted
amortization over a period not exceeding ten years), would reasonably be
expected to have Material Adverse Effect; or
8.11 CHANGE IN CONTROL.
There shall occur any Change of Control; or
8.12 INVALIDITY OF SUBSIDIARY GUARANTY; FAILURE OF SECURITY; REPUDIATION OF
OBLIGATIONS.
At any time after the execution and delivery thereof, (i) the Subsidiary
Guaranty for any reason, other than the satisfaction in full of all Obligations
(other than inchoate obligations with respect to claims, losses or liabilities
which have not yet arisen), shall cease to be in full force and effect (other
than in accordance with its terms) or shall be declared to be null and void,
(ii) any Collateral Document shall cease to be in full force and effect (other
than by reason of a release of Collateral thereunder in accordance with the
terms hereof or thereof, the satisfaction in full of the Obligations (other than
inchoate obligations with respect to claims, losses or liabilities which have
not yet arisen) or any other termination of such Collateral Document in
accordance with the terms hereof or thereof) or shall be declared null and void,
or Administrative Agent shall not have or shall cease to have a valid and
perfected First Priority Lien in any Collateral (other than Liens on Collateral
located outside the United States unless such Lien has been perfected in
accordance with the laws of the applicable foreign jurisdiction and Liens
described in clause (vi) of the definition of Permitted Encumbrances) purported
to be covered thereby, in each case for any reason other than the failure of
Administrative Agent or any Lender to take any action within its control, or
(iii) any Loan Party shall contest the validity or enforceability of any Loan
Document in writing or deny in writing that it has any further liability,
including with respect to future advances by Lenders, under any Loan Document to
which it is a party;
THEN (i) upon the occurrence of any Event of Default described in subsection 8.6
or 8.7, each of (a) the unpaid principal amount of and accrued interest on the
Revolving 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
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immediately due and payable, without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by Company,
and the obligation of each Lender to make any Revolving Loan, the obligation of
Administrative Agent to issue any Letter of Credit and the right of any Lender
to issue any Letter of Credit hereunder shall thereupon terminate, and (ii) upon
the occurrence and during the continuation of any other Event of Default,
Administrative Agent shall, upon the written request or with the written consent
of Requisite Lenders, by written notice to Company, 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, and the obligation of each
Lender to make any Revolving Loan, the obligation of Administrative Agent to
issue any Letter of Credit and the right of Issuing Lender to issue Letter of
Credits hereunder shall thereupon terminate; provided that the foregoing shall
not affect in any way the obligations of Lenders under subsection 3.3C(i).
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 Revolving Loans pursuant
to clause (ii) of such paragraph Company 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 Revolving 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 Company, may at their option rescind and annul such
acceleration and its consequences; but such action shall not affect any
subsequent Event of Default or Potential Event of Default or impair any right
consequent thereon. The provisions of this paragraph are intended merely to bind
Lenders to a decision which may be made at the election of Requisite Lenders and
are not intended, directly or indirectly, to benefit Company, and such
provisions shall not at any time be construed so as to grant Company the right
to require Lenders to rescind or annul any acceleration hereunder or to preclude
Administrative Agent or Lenders from exercising any of the rights or remedies
available to them under any of the Loan Documents, even if the conditions set
forth in this paragraph are met.
SECTION 9.
AGENTS
9.1 APPOINTMENT.
A. APPOINTMENT OF AGENTS. GSCP is hereby appointed Arranger and
Syndication Agent hereunder, and each Lender hereby authorizes Arranger and
Syndication Agent to act as its agent in accordance with the terms of this
Agreement and the other Loan Documents.
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BankBoston is hereby appointed Administrative Agent hereunder and under the
other Loan Documents and each Lender hereby authorizes Administrative Agent to
act as its agent in accordance with the terms of this Agreement and the other
Loan Documents. Each Agent hereby 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 Company shall have no rights as a third party beneficiary of any of the
provisions thereof. In performing its functions and duties under this Agreement,
each Agent shall act solely as an agent of Lenders and does not assume and shall
not be deemed to have assumed any obligation towards or relationship of agency
or trust with or for Company or any of its Subsidiaries. Each of Arranger and
Syndication Agent, without consent of or notice to any party hereto, may assign
any and all of its rights or obligations hereunder to any of its Affiliates. As
of the Closing Date, all obligations of Arranger and Syndication Agent hereunder
shall terminate.
B. APPOINTMENT OF SUPPLEMENTAL COLLATERAL AGENTS. It is the purpose of
this Agreement and the other Loan Documents that there shall be no violation of
any law of any jurisdiction denying or restricting the right of banking
corporations or associations to transact business as agent or trustee in such
jurisdiction. It is recognized that in case of litigation under this Agreement
or any of the other Loan Documents, and in particular in case of the enforcement
of any of the Loan Documents, or in case Administrative Agent deems that by
reason of any present or future law of any jurisdiction it may not exercise any
of the rights, powers or remedies granted herein or in any of the other Loan
Documents or take any other action which may be desirable or necessary in
connection therewith, it may be necessary that Administrative Agent appoint an
additional individual or institution as a separate trustee, co-trustee,
collateral agent or collateral co-agent (any such additional individual or
institution being referred to herein individually as a "SUPPLEMENTAL COLLATERAL
AGENT" and collectively as "SUPPLEMENTAL COLLATERAL AGENTS").
In the event that Administrative Agent appoints a Supplemental
Collateral Agent with respect to any Collateral, (i) each and every right,
power, privilege or duty expressed or intended by this Agreement or any of the
other Loan Documents to be exercised by or vested in or conveyed to
Administrative Agent with respect to such Collateral shall be exercisable by and
vest in such Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents and necessary to the exercise or performance
thereof by such Supplemental Collateral Agent shall run to and be enforceable by
either Agent or such Supplemental Collateral Agent, and (ii) the provisions of
this Section 9 and of subsections 10.2 and 10.3 that refer to Administrative
Agent shall inure to the benefit of such Supplemental Collateral Agent and all
references therein to Administrative Agent shall be deemed to be references to
Administrative Agent and/or such Supplemental Collateral Agent, as the context
may require.
Should any instrument in writing from Company or any other Loan Party be
required by any Supplemental Collateral Agent so appointed by Administrative
Agent for more fully and
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certainly vesting in and confirming to him or it such rights, powers, privileges
and duties, Company shall, or shall cause such Loan Party to, execute,
acknowledge and deliver any and all such instruments promptly upon request by
Administrative Agent. In case any Supplemental Collateral Agent, or a successor
thereto, shall die, become incapable of acting, resign or be removed, all the
rights, powers, privileges and duties of such Supplemental Collateral Agent, to
the extent permitted by law, shall vest in and be exercised by Administrative
Agent until the appointment of a new Supplemental Collateral Agent.
9.2 POWERS AND DUTIES; GENERAL IMMUNITY.
▇. ▇▇▇▇▇▇; DUTIES SPECIFIED. Each Lender irrevocably authorizes each
Agent to take such action on such Lender's behalf and to exercise such powers,
rights and remedies hereunder and under the other Loan Documents as are
specifically delegated or granted to such Agent by the terms hereof and thereof,
together with such powers, rights and remedies as are reasonably incidental
thereto. Each Agent shall have only those duties and responsibilities that are
expressly specified in this Agreement and the other Loan Documents. Each Agent
may exercise such powers, rights and remedies and perform such duties by or
through its agents or employees. No Agent shall have, by reason of this
Agreement or any of the other Loan Documents, a fiduciary relationship in
respect of any Lender; and nothing in this Agreement or any of the other Loan
Documents, expressed or implied, is intended to or shall be so construed as to
impose upon any Agent any obligations in respect of this Agreement or any of the
other Loan Documents except as expressly set forth herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. No Agent shall be responsible
to any Lender for the execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement or any other
Loan Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statements or in any
financial or other statements, instruments, reports or certificates or any other
documents furnished or made by any of Agent to Lenders or by or on behalf of
Company to any Agent or any Lender in connection with the Loan Documents and the
transactions contemplated thereby or for the financial condition or business
affairs of Company or any other Person liable for the payment of any
Obligations, nor shall any Agent be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained in any of the Loan Documents or as to the use of the
proceeds of the Revolving Loans or as to the existence or possible existence of
any Event of Default or Potential Event of Default. Anything contained in this
Agreement to the contrary notwithstanding, Administrative Agent shall not have
any liability arising from confirmations of the amount of outstanding Revolving
Loans or the Letter of Credit Usage or the component amounts thereof.
C. EXCULPATORY PROVISIONS. None of Agents nor any of their respective
officers, partners, directors, employees or agents shall be liable to Lenders
for any action taken or omitted by any Agent under or in connection with any of
the Loan Documents except to the extent caused by such Agent's gross negligence
or willful misconduct. Each Agent shall be entitled to refrain from any act or
the taking of any action (including the failure to take an action) in
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connection with this Agreement or any of the other Loan Documents or from the
exercise of any power, discretion or authority vested in it hereunder or
thereunder unless and until such Agent shall have received instructions in
respect thereof from Requisite Lenders (or such other Lenders as may be required
to give such instructions under subsection 10.6) and, upon receipt of such
instructions from Requisite Lenders (or such other Lenders, as the case may be),
such Agent shall be entitled to act or (where so instructed) refrain from
acting, or to exercise such power, discretion or authority, in accordance with
such instructions. Without prejudice to the generality of the foregoing, (i)
each Agent shall be entitled to rely, and shall be fully protected in relying,
upon any communication, instrument or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons, and
shall be entitled to rely and shall be protected in relying on opinions and
judgments of attorneys (who may be attorneys for Company and its Subsidiaries),
accountants, experts and other professional advisors selected by it; and (ii) no
Lender shall have any right of action whatsoever against any Agent as a result
of such Agent acting or (where so instructed) refraining from acting under this
Agreement or any of the other Loan Documents in accordance with the instructions
of Requisite Lenders (or such other Lenders as may be required to give such
instructions under subsection 10.6).
D. AGENT 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, any Agent in its individual capacity as a Lender hereunder.
With respect to its participation in the Revolving Loans and the Letters of
Credit, each Agent shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not performing the duties and
functions delegated to it hereunder, and the term "Lender" or "Lenders" or any
similar term shall, unless the context clearly otherwise indicates, include each
Agent in its individual capacity. Any Agent and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of banking, trust,
financial advisory or other business with Company or any of its Affiliates as if
it were not performing the duties specified herein, and may accept fees and
other consideration from Company 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 Company and its
Subsidiaries in connection with the making of the Revolving Loans and the
issuance of Letters of Credit hereunder and that it has made and shall continue
to make its own appraisal of the creditworthiness of Company and its
Subsidiaries. No Agent shall have any duty or responsibility, either initially
or on a continuing basis, to make any such investigation or any such appraisal
on behalf of Lenders or to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Revolving Loans or at any time or times thereafter, and no Agent
shall have any responsibility with respect to the accuracy of or the
completeness of any information provided to Lenders.
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9.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify each Agent, to the extent that such Agent shall not have been
reimbursed by Company, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including counsel fees and disbursements) or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against such
Agent in exercising its powers, rights and remedies or performing its duties
hereunder or under the other Loan Documents or otherwise in its capacity as such
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 any 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; provided
that in no event shall this sentence require any Lender to indemnify any Agent
against any liability, obligation, loss, damage, penalty, action, judgment,
suit, cost, expense or disbursement in excess of such Lender's Pro Rata Share
thereof; and provided, further, that this sentence shall not be deemed to
require any Lender to indemnify any Agent against any liability, obligation,
loss, damage, penalty, action, judgment, suit, cost, expense or disbursement
described in the proviso in the immediately preceding sentence.
9.5 SUCCESSOR ADMINISTRATIVE AGENT.
A. SUCCESSOR ADMINISTRATIVE AGENT. Administrative Agent may resign at
any time by giving 30 days' prior written notice thereof to Lenders and Company,
and Administrative Agent may be removed at any time with or without cause by an
instrument or concurrent instruments in writing delivered to Company and
Administrative Agent 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 Company, to appoint a successor Administrative
Agent who shall, if no Event of Default shall have occurred and be continuing at
the time of such notice, be reasonably acceptable to Company. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, that successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring or removed Administrative Agent and the retiring or removed
Administrative Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring or removed Administrative Agent's resignation
or removal hereunder as Administrative Agent, the provisions of this Section 9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
9.6 COLLATERAL DOCUMENTS AND GUARANTIES.
Each Lender hereby further authorizes Administrative Agent, on behalf of
and for the benefit of Lenders, to enter into each Collateral Document as
secured party and to be the agent
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for and representative of Lenders under the Subsidiary Guaranty, and each Lender
agrees to be bound by the terms of each Collateral Document and the Subsidiary
Guaranty; provided that Administrative Agent shall not (i) enter into or consent
to any material amendment, modification, termination or waiver of any provision
contained in any Collateral Document or the Subsidiary Guaranty or (ii) release
any Collateral (except as otherwise expressly permitted or required pursuant to
the terms of this Agreement or the applicable Collateral Document), in each case
without the prior consent of Requisite Lenders (or, if required pursuant to
subsection 10.6, all Lenders); provided further, however, that, without further
written consent or authorization from Lenders, Administrative Agent may execute
any documents or instruments necessary to (a) release any Lien encumbering any
item of Collateral that is the subject of a sale or other disposition of assets
permitted by this Agreement or to which Requisite Lenders have otherwise
consented or (b) release any Subsidiary Guarantor from the Subsidiary Guaranty
if all of the capital stock of such Subsidiary Guarantor is sold to any Person
(other than an Affiliate of Company) pursuant to a sale or other disposition
permitted hereunder or to which Requisite Lenders have otherwise consented. Upon
payment in full of all of the Obligations, all outstanding Letters of Credit
being terminated or returned for cancellation and termination of the
Commitments, Administrative Agent shall release the Liens on such Collateral
granted pursuant to the Collateral Documents. Upon any release of Collateral
pursuant to the foregoing, Administrative Agent shall, at Borrowers' expense,
execute and deliver such documents (without recourse or representation or
warranty) as reasonably requested to evidence such release. Anything contained
in any of the Loan Documents to the contrary notwithstanding, Company,
Administrative Agent and each Lender hereby agree that (1) no Lender shall have
any right individually to realize upon any of the Collateral under any
Collateral Document or to enforce the Subsidiary Guaranty, it being understood
and agreed that all powers, rights and remedies under the Collateral Documents
and the Subsidiary Guaranty may be exercised solely by Administrative Agent for
the benefit of Lenders in accordance with the terms thereof, and (2) in the
event of a foreclosure by Administrative Agent on any of the Collateral pursuant
to a public or private sale, Administrative Agent or any Lender may be the
purchaser of any or all of such Collateral at any such sale and Administrative
Agent, as agent for and representative of Lenders (but not any Lender or Lenders
in its or their respective individual capacities unless Requisite Lenders shall
otherwise agree in writing) shall be entitled, for the purpose of bidding and
making settlement or payment of the purchase price for all or any portion of the
Collateral sold at any such public sale, to use and apply any of the Obligations
as a credit on account of the purchase price for any collateral payable by
Administrative Agent at such sale.
SECTION 10.
MISCELLANEOUS
10.1 ASSIGNMENTS AND PARTICIPATIONS IN REVOLVING 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 Revolving Loan or Revolving Loans made by it
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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 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); 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
Company and such Lender, be relieved of any of its obligations hereunder as a
result of any sale, assignment or transfer of, or any granting of participations
in, all or any part of its Commitments or the Revolving Loans, the Letters of
Credit or participations therein, or the other Obligations owed to such Lender.
The expenses of the Lenders in connection with any sale, assignment or transfer
of, or any granting of participations in, any Commitment or other Obligation
pursuant to this subsection 10.1 shall be borne among the parties thereto and no
Loan Party shall be liable for such expense.
B. ASSIGNMENTS.
(i) Amounts and Terms of Assignments. Each Commitment, Revolving
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, Revolving Loans,
Letters of Credit and participations therein, and other Obligations of
the assigning Lender and its Affiliates) to any other Eligible Assignee
with, except in the case of assignment by GSCP, the consent of
Administrative Agent (which consent of Administrative Agent shall not be
unreasonably withheld or delayed). 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,
Revolving 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 $500 in the case an
assignment from one Lender to another Lender or an Affiliate of a Lender
and of $2000 in the case of an assignment to an Eligible Assignee other
than a Lender or an Affiliate of a Lender and such forms, certificates
or other evidence, if any, with respect to United States federal income
tax withholding matters as the assignee under such Assignment Agreement
may be required to deliver to Administrative Agent pursuant to
subsection 2.7B(iii)(a). Upon such execution, delivery, acceptance and
recordation, from and after the effective date specified
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in such Assignment Agreement, (1) 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 (2) the
assigning Lender thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such
Assignment Agreement, relinquish its rights (other than any rights which
survive the termination of this Agreement under subsection 10.9B) 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 Issuing Lender with respect to any outstanding Letters
of Credit such Lender shall continue to have all rights and obligations
of Issuing Lender with respect to such Letters of Credit until the
cancellation or expiration of such Letters of Credit and the
reimbursement of any amounts drawn thereunder). The Commitments
hereunder shall be modified to reflect the Commitment of such assignee
and any remaining Commitment of such assigning Lender and, if any such
assignment occurs after the issuance of any Revolving Notes hereunder,
the assigning Lender shall, upon the effectiveness of such assignment or
as promptly thereafter as practicable, surrender its applicable
Revolving Notes to Administrative Agent for cancellation, and thereupon,
upon the request of the assignee and/or the assigning Lender, new
Revolving Notes shall be issued to the assignee and/or to the assigning
Lender, substantially in the form of Exhibit IV annexed hereto, as the
case may be, with appropriate insertions, to reflect the new Commitments
of the assignee and/or the assigning Lender.
(ii) Acceptance by Administrative Agent; Recordation in Register.
Upon its receipt of an Assignment Agreement executed by an assigning
Lender and an assignee representing that it is an Eligible Assignee,
together with the processing and recordation fee referred to in
subsection 10.1B(i) and any forms, certificates or other evidence with
respect to United States federal income tax withholding matters that
such assignee may be required to deliver to Administrative Agent
pursuant to subsection 2.7B(iii)(a), Administrative Agent shall, if
Administrative Agent has consented to the assignment evidenced thereby
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
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
Revolving Loan allocated to such participation, (ii) a reduction of the
principal amount of or the rate of interest payable on any Revolving Loan
allocated to such
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participation, or (iii) release of all or substantially all of the Collateral
except as permitted hereunder and under the Collateral Documents, and all
amounts payable by Company hereunder (including amounts payable to such Lender
pursuant to subsections 2.6D, 2.7 and 3.6) shall be determined as if such Lender
had not sold such participation. Company and each Lender hereby acknowledge and
agree that, solely for purposes of subsections 10.4 and 10.5, (a) any
participation will give rise to a direct obligation of Company to the
participant and (b) the participant shall be considered to be a "Lender".
D. ASSIGNMENTS TO FEDERAL RESERVE BANKS. 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 Revolving
Loans, the other Obligations owed to such Lender, and its Revolving 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 Company and such Lender, be relieved of any of its obligations hereunder
as a result of any such assignment and pledge and (ii) in no event shall such
Federal Reserve Bank be considered to be a "Lender" or be entitled to require
the assigning Lender to take or omit to take any action hereunder.
E. INFORMATION. Each Lender may furnish any information concerning
Company and its Subsidiaries in the possession of that Lender from time to time
to assignees and participants (including prospective assignees and
participants), subject to subsection 10.19.
F. REPRESENTATIONS OF LENDERS. Each Lender listed on the signature pages
hereof hereby represents and warrants (i) that it is an Eligible Assignee
described in clause (i) of the definition thereof; (ii) that it has experience
and expertise in the making of loans such as the Revolving Loans; and (iii) that
it will make its Revolving Loans for its own account in the ordinary course of
its business and without a view to distribution of such Revolving Loans within
the meaning of the Securities Act or the Exchange Act or other federal
securities laws (it being understood that, subject to the provisions of this
subsection 10.1, the disposition of such Revolving Loans or any interests
therein shall at all times remain within its exclusive control). Each Lender
that becomes a party hereto pursuant to an Assignment Agreement shall be deemed
to agree that the representations and warranties of such Lender contained in
Section 2(c) of such Assignment Agreement are incorporated herein by this
reference.
10.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, Company agrees to pay promptly (i) all the actual and reasonable
costs and expenses of preparation of the Loan Documents and any consents,
amendments, waivers or other modifications thereto; (ii) all the actual and
reasonable costs of furnishing all opinions by counsel for Company (including
any opinions requested by Lenders as to any legal matters arising hereunder) and
of Company's performance of and compliance with all agreements and conditions on
its part to be performed or complied with under this Agreement and the other
Loan Documents including with respect to
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confirming compliance with environmental, insurance and solvency requirements;
(iii) the reasonable fees, expenses and disbursements of counsel to Arranger and
counsel to Administrative Agent (in each case including 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 Company; (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 any Collateral Document, including filing and recording
fees, expenses and taxes, stamp or documentary taxes, search fees, title
insurance premiums, and reasonable fees, expenses and disbursements of counsel
to Arranger and counsel to Administrative Agent and of counsel providing any
opinions that Arranger, Administrative Agent or Requisite Lenders may request in
respect of the Collateral Documents or the Liens created pursuant thereto; (v)
all the actual and reasonable costs and expenses (including the reasonable fees,
expenses and disbursements of any auditors, accountants or appraisers and any
environmental or other consultants, advisors and agents employed or retained by
Administrative Agent or Arranger and its counsel) of obtaining and reviewing any
environmental audits or reports provided for under subsection 4.1I and any
audits or reports provided for under subsection 6.5B with respect to Inventory
and Accounts Receivable of Company and its Subsidiaries; (vi) all the actual and
reasonable costs and expenses (including the reasonable fees, expenses and
disbursements of any consultants, advisors and agents employed or retained by
Administrative Agent and its counsel) in connection with the custody or
preservation of any of the Collateral; (vii) all other actual and reasonable
costs and expenses incurred by Syndication Agent, Arranger or Administrative
Agent in connection with the syndication of the Commitments and the negotiation,
preparation and execution of the Loan Documents and any consents, amendments,
waivers or other modifications thereto and the transactions contemplated
thereby; and (viii) after the occurrence of an Event of Default, all costs and
expenses, including reasonable attorneys' fees (including reasonable allocated
costs of internal counsel) and costs of settlement, incurred by Arranger,
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 (including in connection with
the sale of, collection from, or other realization upon any of the Collateral or
the enforcement of the Subsidiary Guaranty) 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. Company shall not be required to pay any expenses
pursuant to this subsection 10.2 which have been expressly identified in any of
the Loan Documents as expenses to be borne by Lenders.
10.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection 10.2,
whether or not the transactions contemplated hereby shall be consummated,
Company agrees to defend (subject to Indemnitees' selection of counsel),
indemnify, pay and hold harmless Agents and Lenders, and the officers, partners,
directors, employees, agents and affiliates of any of Agents and Lenders
(collectively called the "INDEMNITEES"), from and against any and all
Indemnified Liabilities (as hereinafter defined); provided that Company shall
not have any obligation to any Indemnitee
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hereunder with respect to any Indemnified Liabilities to the extent such
Indemnified Liabilities arise from the gross negligence or willful misconduct of
that Indemnitee.
As used herein, "INDEMNIFIED LIABILITIES" means, collectively, any and
all liabilities, obligations, losses, damages (including natural resource
damages), penalties, actions, judgments, suits, claims (including Environmental
Claims), costs (including 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
Activity), expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto, and any fees or expenses
incurred by Indemnitees in enforcing this indemnity), whether direct, indirect
or consequential and whether based on any federal, state or foreign laws,
statutes, rules or regulations (including securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of (i) this Agreement or the other Loan Documents or the Related
Agreements or the transactions contemplated hereby or thereby (including
Lenders' agreement to make the Revolving Loans hereunder or the use or intended
use of the proceeds thereof or the issuance of Letters of Credit hereunder or
the use or intended use of any thereof, or any enforcement of any of the Loan
Documents (including any sale of, collection from, or other realization upon any
of the Collateral or the enforcement of the Subsidiary Guaranty)), (ii) the
statements contained in the commitment letter delivered by any Lender to Company
with respect thereto, or (iii) any Environmental Claim or any Hazardous
Materials Activity relating to or arising from, directly or indirectly, any past
or present activity, operation, land ownership, or practice of Company or any of
its Subsidiaries; provided, however, that Indemnified Liabilities shall not
include any expenses expressly identified in any of the Loan Documents as
expenses to be borne by Lenders.
To the extent that the undertakings to defend, indemnify, pay and hold
harmless set forth in this subsection 10.3 may be unenforceable in whole or in
part because they are violative of any law or public policy, Company shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.
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 and during
the continuance of any Event of Default each Lender is hereby authorized by
Company at any time or from time to time, without notice to Company or to any
other Person, any such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or special, including
Indebtedness evidenced by certificates of deposit, whether matured or unmatured,
but not including trust accounts) and any other Indebtedness at any time held or
owing by that
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Lender to or for the credit or the account of Company against and on account of
the obligations and liabilities of Company then due and payable to that Lender
under this Agreement, the Letters of Credit and participations therein and the
other Loan Documents, including 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 that Lender shall have made any demand hereunder.
10.5 RATABLE SHARING.
Lenders hereby agree among themselves that if any of them shall, whether
by voluntary payment (other than a voluntary prepayment of Revolving Loans made
and applied in accordance with the terms of this Agreement), by realization upon
security, through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the Loan
Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and owing to that
Lender hereunder or under the other Loan Documents (collectively, the "AGGREGATE
AMOUNTS DUE" to such Lender) which is greater than the proportion received by
any other Lender in respect of the Aggregate Amounts Due to such other Lender,
then the Lender receiving such proportionately greater payment shall (i) notify
Administrative Agent and each other Lender of the receipt of such payment and
(ii) apply a portion of such payment to purchase participations (which it shall
be deemed to have purchased from each seller of a participation simultaneously
upon the receipt by such seller of its portion of such payment) in the Aggregate
Amounts Due to the other Lenders so that all such recoveries of Aggregate
Amounts Due shall be shared by all Lenders in proportion to the Aggregate
Amounts Due to them; provided that if all or part of such proportionately
greater payment received by such purchasing Lender is thereafter recovered from
such Lender upon the bankruptcy or reorganization of Company or otherwise, those
purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such purchasing Lender ratably to the extent
of such recovery, but without interest. Company expressly consents to the
foregoing arrangement and agrees that any holder of a participation so purchased
may exercise any and all rights of banker's lien, set-off or counterclaim with
respect to any and all monies owing by Company to that holder with respect
thereto as fully as if that holder were owed the amount of the participation
held by that holder.
10.6 AMENDMENTS AND WAIVERS.
A. No amendment, modification, termination or waiver of any provision of
the Loan Documents, or consent to any departure by Company therefrom, shall in
any event be effective without the written concurrence of Company and Requisite
Lenders; provided that no such amendment, modification, termination, waiver or
consent shall, without the consent of each Lender (with Obligations directly
affected in the case of the following clause (i)): (i) extend the scheduled
final maturity of any Revolving Loan or Revolving Note, or extend the stated
expiration date of any Letter of Credit beyond the Revolving Loan Commitment
Termination
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Date, or reduce the rate of interest on any Revolving Loan (other than any
waiver of any increase in the interest rate applicable to any Revolving Loan
pursuant to subsection 2.2E) or any commitment fees or letter of credit fees
payable hereunder, or extend the time for payment of any such interest or fees,
or reduce the principal amount of any Revolving Loan or any reimbursement
obligation in respect of any Letter of Credit, (ii) amend, modify, terminate or
waive any provision of this subsection 10.6, (iii) reduce the percentage
specified in the definition of "Requisite Lenders" (it being understood that,
with the consent of Requisite Lenders, additional extensions of credit pursuant
to this Agreement may be included in the determination of "Requisite Lenders" on
substantially the same basis as the Revolving Loan Commitments and the Revolving
Loans are included on the Closing Date), (iv) consent to the assignment or
transfer by Company of any of its rights and obligations under this Agreement,
(v) release all or substantially all of the Collateral or all or substantially
all of the Subsidiary Guarantors from the Subsidiary Guaranty except as
expressly provided in the Loan Documents or (vi) increases the percentage
advance rates set forth in the definition of "Borrowing Base"; provided, further
that no such amendment, modification, termination or waiver shall (a) increase
the Commitments of any Lender over the amount thereof then in effect without the
consent of such Lender (it being understood that no amendment, modification or
waiver of any condition precedent, covenant, Potential Event of Default or Event
of Default shall constitute an increase in the Commitment of any Lender, and
that no increase in the available portion of any Commitment of any Lender shall
constitute an increase in such Commitment of such Lender); (b) amend, modify,
terminate or waive any obligation of Lenders relating to the purchase of
participations in Letters of Credit as provided in subsection 3.1C without the
written concurrence of Administrative Agent and of each Issuing Lender which has
a Letter of Credit then outstanding or which has not been reimbursed for a
drawing under a Letter of Credit issued it; or (c) amend, modify, terminate or
waive any provision of Section 9 as the same applies to any Agent, or any other
provision of this Agreement as the same applies to the rights or obligations of
any Agent, in each case without the consent of such 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 Company
in any case shall entitle Company 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 on Company.
B. If, in connection with any proposed change, waiver, discharge or
termination to any of the provision of this Agreement as contemplated by the
proviso in the first sentence of subsection 10.6A, the consent of Requisite
Lenders is obtained but consent of one or more of such other Lenders whose
consent is required is not obtained, then Company may, so long as all
non-consenting Lenders are so treated, elect to terminate such Lender as a party
to this Agreement; provided that, concurrently with such termination, (i)
Company shall pay that Lender all principal, interest and fees and other amounts
owed to such Lender through such date of termination, (ii) another financial
institution satisfactory to Administrative Agent (or if Administrative Agent is
also the Lender to be terminated, the successor Administrative Agent)
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shall agree, as of such date, to become a Lender for all purposes under this
Agreement (whether by assignment or amendment) and to assume all obligations of
the Lender to be terminated as of such date, and (iii) all documents and
supporting materials necessary, in the judgment of Administrative Agent (or if
Administrative Agent is also the Lender to be terminated, the successor
Administrative Agent), to evidence the substitution of such Lender shall have
been received and approved by Administrative Agent as of such date.
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 United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service, or upon receipt of telefacsimile or telex or
United States mail with postage prepaid. For the purposes hereof, the address of
each party hereto shall be as set forth under such party's name on the signature
pages hereof or (i) as to Company and 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
Revolving 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 Company 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, 10.5 and 10.19 shall survive the payment of the Revolving 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
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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.
Neither Administrative Agent nor any Lender shall be under any
obligation to marshal any assets in favor of Company or any other party or
against or in payment of any or all of the Obligations. To the extent that
Company makes a payment or payments to Administrative Agent or Lenders (or to
Administrative 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 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
Revolving 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.
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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 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). Neither Company's
rights or obligations hereunder nor any interest therein may be assigned or
delegated by Company without the prior written consent of all Lenders.
10.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS
THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇. BY EXECUTING AND
DELIVERING THIS AGREEMENT, COMPANY, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY (I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (II) WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS; (III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO COMPANY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SUBSECTION 10.8; (IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER COMPANY IN ANY SUCH PROCEEDING
IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN
EVERY RESPECT; (V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN THE
COURTS OF ANY OTHER JURISDICTION; AND (VI) AGREES THAT THE PROVISIONS OF THIS
SUBSECTION 10.17 RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND
ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS
LAW SECTION 5-1402 OR OTHERWISE.
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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 AND BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this transaction,
including contract claims, tort claims, breach of duty claims and all other
common law and statutory claims. Each party hereto acknowledges that this waiver
is a material inducement to enter into a business relationship, that each has
already relied on 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 REVOLVING LOANS MADE HEREUNDER. In the event of
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 in accordance with such Lender's customary
procedures for handling confidential information of this nature and in
accordance with prudent lending or investing practices, it being understood and
agreed by Company that in any event a Lender may make disclosures to Affiliates
of such Lender or disclosures reasonably required by any bona fide assignee,
transferee or participant who agrees to keep such information confidential in
connection with the contemplated assignment or transfer by such Lender of any
Revolving Loans or any participations therein or disclosures required or
requested by any governmental agency or representative thereof or by the
National Association of Insurance Commissioners 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.
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10.20 MAXIMUM AMOUNT.
A. It is the intention of Company and Lenders to conform strictly to the
usury and similar laws relating to interest from time to time in force, and all
agreements between Company, Administrative Agent and Lenders, whether now
existing or hereafter arising and whether oral or written, are hereby expressly
limited so that in no contingency or event whatsoever, whether by acceleration
of maturity hereof or otherwise, shall the amount paid or agreed to be paid in
the aggregate to Lenders or to Administrative Agent on behalf of Lenders as
interest hereunder or under the other Loan Documents or in any other security
agreement given to secure the Obligations, or in any other document evidencing,
securing or pertaining to the indebtedness evidenced hereby or thereby, exceed
the maximum amount permissible under applicable usury or such other laws (the
"MAXIMUM AMOUNT"). If under any circumstances whatsoever fulfillment of any
provision hereof, or of any of the other Loan Documents, at the time performance
of such provision shall be due, shall involve exceeding the Maximum Amount,
then, ipso facto, the obligation to be fulfilled shall be reduced to the Maximum
Amount. For the purposes of calculating the actual amount of interest paid
and/or payable hereunder in respect of laws pertaining to usury or such other
laws, all sums paid or agreed to be paid to Lenders for the use, forbearance or
detention of the indebtedness of Company evidenced hereby, outstanding from time
to time shall, to the extent permitted by applicable law, be amortized, pro
rated, allocated and spread from the date of disbursement of the proceeds of the
Revolving Loans until payment in full of all of such indebtedness, so that the
actual rate of interest on account of such indebtedness is uniform throughout
the term hereof. The terms and provisions of this subsection shall control and
supersede every other provision of all agreements between Company,
Administrative Agent and Lenders.
B. If under any circumstances Lenders shall receive an amount which
would exceed the Maximum Amount, such amount shall be deemed a payment in
reduction of the principal amount of the Revolving Loans and shall be treated as
a voluntary prepayment under subsection 2.4A(i), and shall be so applied in
accordance with subsection 2.4A(iv) hereof, or if such amount exceeds the unpaid
balance of the Revolving Loans and any other indebtedness of Company in favor of
Lenders, the excess shall be deemed to have been a payment made by mistake and
shall be refunded to Company.
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 Company and
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY:
ZILOG, INC. a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
Notice Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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AGENTS AND LENDERS:
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
individually, as Arranger and as
Syndication Agent
By: /s/ ▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.
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Authorized Signatory
Notice Address:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P.
c/o Goldman, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Telecopy:
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BANKBOSTON, N.A.,
individually and as Administrative Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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