EXHIBIT 10.1
EXECUTION COPY
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CREDIT AGREEMENT
Dated as of January 31, 2003
Among
VIASYSTEMS GROUP, INC.,
as Guarantor,
VIASYSTEMS, INC.,
as Borrower,
The Several Banks and other Financial Institutions
from time to time parties hereto,
and
JPMORGAN CHASE BANK,
as Administrative Agent
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Sole Bookrunner and Sole Lead Arranger
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS........................................................................................... 1
1.1. Defined Terms.................................................................................. 1
1.2. Other Definitional Provisions.................................................................. 23
SECTION 2. TERMS OF REVOLVING CREDIT COMMITMENTS................................................................. 24
2.1. Revolving Credit Commitments; Assumed Letter of Credit Commitments............................. 24
2.2. Termination or Reduction of Revolving Credit Commitments....................................... 24
2.3. Procedure for Revolving Credit Borrowing....................................................... 25
2.4. Commitment Fee; Administrative Agent Fees; Maturity Date....................................... 25
2.5. Letters of Credit.............................................................................. 25
2.6. Fees, Commissions and Other Charges............................................................ 26
2.7. Letter of Credit Participations................................................................ 27
2.8. Reimbursement Obligation of the Borrower....................................................... 28
2.9. Commitment Increases........................................................................... 28
SECTION 3. TERMS OF TRANCHE A TERM LOAN COMMITMENT............................................................... 30
3.1. Tranche A Term Loans........................................................................... 30
3.2. Amortization of Tranche A Term Loans........................................................... 30
SECTION 4. TERMS OF TRANCHE B TERM LOAN COMMITMENT............................................................... 30
4.1. Tranche B Term Loans........................................................................... 30
4.2. Amortization of Tranche B Term Loans........................................................... 30
SECTION 5. REPAYMENT, CONTINUATIONS AND CONVERSIONS.............................................................. 31
5.1. Repayment of Loans............................................................................. 31
5.2. Optional Prepayments........................................................................... 32
5.3. Mandatory Prepayments and Commitment Reductions................................................ 32
5.4. Conversion and Continuation Options............................................................ 34
5.5. Minimum Amounts of Tranches.................................................................... 34
SECTION 6. GENERAL LETTER OF CREDIT PROVISIONS................................................................... 34
6.1. Obligations Absolute........................................................................... 34
6.2. Letter of Credit Payments...................................................................... 35
6.3. Letter of Credit Applications.................................................................. 35
6.4. Cash Collateralization of Letters of Credit.................................................... 35
SECTION 7. OTHER GENERAL PROVISIONS.............................................................................. 35
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7.1. Interest Rates and Payment Dates............................................................... 35
7.2. Computation of Interest and Fees............................................................... 36
7.3. Inability to Determine Interest Rate........................................................... 36
7.4. Pro Rata Treatment and Payments................................................................ 37
7.5. Illegality..................................................................................... 39
7.6. Requirements of Law............................................................................ 39
7.7. Taxes.......................................................................................... 40
7.8. Indemnity...................................................................................... 43
7.9. Replacement of Lender.......................................................................... 44
SECTION 8. REPRESENTATIONS AND WARRANTIES........................................................................ 44
8.1. Financial Condition............................................................................ 44
8.2. No Change...................................................................................... 45
8.3. Corporate Existence; Compliance with Law....................................................... 45
8.4. Corporate Power; Authorization; Enforceable Obligations........................................ 45
8.5. No Legal Bar................................................................................... 46
8.6. No Material Litigation......................................................................... 46
8.7. No Default..................................................................................... 46
8.8. Ownership of Property; Liens................................................................... 46
8.9. Intellectual Property.......................................................................... 46
8.10. Taxes.......................................................................................... 46
8.11. US Federal Regulations......................................................................... 47
8.12. ERISA.......................................................................................... 47
8.13. Non-US Benefit and Pension Plans............................................................... 47
8.14. Investment Company Act; Other Regulations...................................................... 47
8.15. Subsidiaries, Etc.............................................................................. 48
8.16. Environmental Matters.......................................................................... 48
8.17. Disclosure..................................................................................... 49
8.18. Guarantee and Collateral Agreement; Mortgages.................................................. 49
8.19. Solvency....................................................................................... 50
8.20. No Fees........................................................................................ 50
8.21. Insurance...................................................................................... 50
SECTION 9. CONDITIONS PRECEDENT.................................................................................. 50
9.1. Conditions to Closing Date..................................................................... 50
9.2. Conditions to Each Loan........................................................................ 52
SECTION 10. AFFIRMATIVE COVENANTS................................................................................ 53
10.1. Financial Statements........................................................................... 53
10.2. Certificates; Other Information................................................................ 54
10.3. Payment of Obligations......................................................................... 55
10.4. Conduct of Business and Maintenance of Existence............................................... 55
10.5. Maintenance of Property; Insurance............................................................. 55
10.6. Inspection of Property; Books and Records; Discussions......................................... 56
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10.7. Notices........................................................................................ 56
10.8. Benefit and Pension Plans...................................................................... 57
10.9. Environmental Laws............................................................................. 57
10.10. Pledge of After Acquired Property.............................................................. 57
10.11. Pledge During Event of Default................................................................. 58
10.12. Additional Subsidiaries........................................................................ 58
10.13. Intellectual Property.......................................................................... 58
10.14. Use of Proceeds................................................................................ 58
10.15. Change in Location, Names, etc................................................................. 58
10.16. Hedge Agreement Liabilities.................................................................... 59
10.17. Title Insurance; Surveys, etc.................................................................. 59
SECTION 11. NEGATIVE COVENANTS................................................................................... 59
11.1. Financial Condition Covenants.................................................................. 59
11.2. Limitation on Indebtedness..................................................................... 61
11.3. Limitation on Liens............................................................................ 63
11.4. Limitation on Guarantee Obligations............................................................ 64
11.5. Limitation on Fundamental Changes.............................................................. 65
11.6. Limitation on Sale of Assets................................................................... 66
11.7. Limitation on Dividends........................................................................ 66
11.8. Limitation on Capital Expenditures............................................................. 67
11.9. Limitation on Investments, Loans and Advances.................................................. 68
11.10. Limitation on Optional Payments and Modifications of Certain Instruments....................... 70
11.11. Limitation on Transactions with Affiliates..................................................... 71
11.12. Limitation on Sales and Leasebacks............................................................. 72
11.13. Limitation on Changes in Fiscal Year........................................................... 72
11.14. Negative Pledge Clauses; Restrictions Affecting Subsidiaries................................... 72
11.15. Limitation on Lines of Business................................................................ 72
11.16. Amendments to Corporate Documents; Supply Agreement............................................ 72
11.17. Passive Status................................................................................. 73
11.18. Hedge Agreements............................................................................... 73
11.19. Cash Accounts.................................................................................. 73
11.20. Restructuring Expenses......................................................................... 73
SECTION 12. EVENTS OF DEFAULT.................................................................................... 73
SECTION 13. THE AGENTS........................................................................................... 76
13.1. Appointment.................................................................................... 76
13.2. Delegation of Duties........................................................................... 77
13.3. Exculpatory Provisions......................................................................... 77
13.4. Reliance by the Agents......................................................................... 77
13.5. Notice of Default.............................................................................. 77
13.6. Non-Reliance on Agent and Lenders.............................................................. 77
13.7. Indemnification................................................................................ 78
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13.8. Agents in Their Individual Capacity............................................................ 78
13.9. Successor Agents............................................................................... 78
13.10. Additional Ministerial Powers of the Agents.................................................... 79
13.11. Issuing Lender................................................................................. 79
SECTION 14. GUARANTEE............................................................................................ 79
14.1. Guarantee...................................................................................... 79
14.2. Waiver of Subrogation.......................................................................... 79
14.3. Modification of Obligations.................................................................... 79
14.4. Waiver by Holdings............................................................................. 80
14.5. Reinstatement.................................................................................. 80
14.6. Negative Covenants............................................................................. 80
SECTION 15. MISCELLANEOUS........................................................................................ 81
15.1. Amendments and Waivers......................................................................... 81
15.2. Notices........................................................................................ 82
15.3. No Waiver; Cumulative Remedies................................................................. 83
15.4. Survival of Representations and Warranties..................................................... 83
15.5. Payment of Expenses and Taxes.................................................................. 83
15.6. Successors and Assigns; Participations and Assignments......................................... 84
15.7. Adjustments; Set-off........................................................................... 87
15.8. Counterparts................................................................................... 87
15.9. Severability................................................................................... 88
15.10. Integration.................................................................................... 88
15.11. Judgment Currency.............................................................................. 88
15.12. GOVERNING LAW.................................................................................. 88
15.13. Submission To Jurisdiction; Waivers............................................................ 89
15.14. Acknowledgements............................................................................... 89
15.15. WAIVERS OF JURY TRIAL.......................................................................... 89
15.16. Confidentiality................................................................................ 89
15.17. Conflicts...................................................................................... 90
15.18. Intercreditor Agreement........................................................................ 90
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EXHIBITS
A Assignment and Assumption
B Perfection Certificate
C Closing Certificate
D Form of Addendum
E Form of Guarantee and Collateral Agreement
F Form of Mortgage
G Form of New Lender Supplement
H Form of Commitment Increase Supplement
I Form of Intercreditor Agreement
SCHEDULES
1.1A Commitments
1.1B Certain Non-Cash Losses
1.1C Specified Indebtedness
2.5(a) Existing Letters of Credit
8.1 Financial Condition
8.4 Required Consents
8.6 Litigation
8.9 Intellectual Property
8.10 Taxes
8.15 Subsidiaries, Joint Ventures, etc.
8.18 Filing Locations and Properties
8.20 Fees
11.2 Existing Indebtedness
11.3 Existing Liens
11.4 Existing Guarantee Obligations
11.9 Existing Investments
11.20 Asset Sales
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CREDIT AGREEMENT, dated as of January 31, 2003, among VIASYSTEMS
GROUP, INC., a Delaware corporation ("Holdings"), VIASYSTEMS, INC., a Delaware
corporation (the "Borrower"), the several banks and other financial institutions
from time to time parties to this agreement (the "Lenders") and JPMORGAN CHASE
BANK ("JPMCB"), as administrative agent for the Lenders (in such capacity, the
"Administrative Agent").
WHEREAS, on October 1, 2002 (the "Petition Date"), the Borrower and
Holdings filed voluntary petitions with the United States Bankruptcy Court for
the Southern District of New York (the "Bankruptcy Court") initiating cases (the
"Cases") under chapter 11 of title 11 of the United States Code (the "Bankruptcy
Code");
WHEREAS, by order, dated January 14, 2003 (the "Confirmation
Order"), the Bankruptcy Court confirmed that certain Prepackaged Joint Plan of
Reorganization of Viasystems Group, Inc. and Viasystems, Inc., dated August 30,
2002 (the "Reorganization Plan"), in accordance with section 1129 of the
Bankruptcy Code;
WHEREAS, pursuant to the Reorganization Plan, certain Lenders, as
holders of Pre-Petition Lender Secured Claims (as defined below), shall receive
Tranche B Term Loans (as defined below) in exchange for certain of their
Pre-Petition Lender Secured Claims; and
WHEREAS, pursuant to the Reorganization Plan, certain Lenders have
agreed to make available to the Borrower revolving extensions of credit in the
manner provided for herein and shall receive Tranche A Term Loans (as defined
below) in exchange for certain of their Pre-Petition Lender Secured Claims in
lieu of the Tranche B Term Loans that such Lenders would have otherwise
received;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"Additional Senior Subordinated Indebtedness": any unsecured
subordinated Indebtedness of Holdings or the Borrower; provided such
Indebtedness has (a) no maturity, amortization, mandatory redemption or
purchase option (other than with asset sale proceeds, subject to the
provisions of this Agreement, or following a change of control) or sinking
fund payment prior to October 1, 2009, (b) no financial maintenance
covenants and (c) such other terms and conditions (including without
limitation, interest rate, events of default, subordination and covenants)
as shall be reasonably satisfactory to the Administrative Agent.
"Administrative Agent": as defined in the preamble hereto.
"Affected Eurodollar Loans": as defined in subsection 5.3(g).
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) that, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 20% or more of the securities having ordinary voting
power for the election of directors of such Person or (b) direct or cause
the direction of the management and policies of such Person, whether by
contract or otherwise.
"Agents": the collective reference to the Administrative Agent, the
Collateral Agent, the Junior Agent and the Senior Agent.
"Agreement": this Credit Agreement, as amended, amended and
restated, supplemented or otherwise modified from time to time.
"Applicable Margin": for each Type of Loan and for purposes of
subsections 2.4 and 2.6, the rate per annum set forth under the relevant
column heading below:
Base Rate Loans
Type Applicable Margin
---- -----------------
Tranche A Term Loans 3.75%
Tranche B Term Loans 4.25%
Revolving Credit Loans 3.50%
Eurodollar Loans
Type Applicable Margin
---- -----------------
Tranche A Term Loans 4.75%
Tranche B Term Loans 5.25%
Revolving Credit Loans 4.50%
Commitment Fee
Applicable Margin
-----------------
0.50%
"Asset Sale": any sale, transfer or other disposition (including any
sale and leaseback of assets and any sale of accounts receivable in
connection with a receivable financing transaction) by Holdings or any of
its Subsidiaries of any property of Holdings or any such Subsidiary
(including property subject to any Lien under any Loan Document), other
than as permitted pursuant to subsection 11.6(a), (b), (c) (provided that,
except with respect to the loss or condemnation of all or substantially
all of the assets of Holdings and its Subsidiaries, the proceeds from such
casualty or condemnation (including insurance) in excess of the Equivalent
Amount of $10,000,000 are used to replace or rebuild the lost or condemned
assets or are otherwise invested in assets useful in the business within
the time period specified in subsection 5.3(e)), (d) (but only to the
extent that the Net Cash Proceeds of sales, transfers and other
dispositions pursuant to such subsection constitute Excluded Asset Sales
or otherwise do not exceed the Equivalent Amount of $2,000,000 in any
fiscal year) and (e) through (i).
"Assignee": as defined in subsection 15.6(c).
"Assignment and Assumption": an assignment and assumption entered
into by a Lender and an assignee, substantially in the form of Exhibit A.
"Assumed Letter of Credit": as defined in Section 2.5(a).
"Assumed Letter of Credit Commitment": as to any Assumed Letter of
Credit Lender, its obligation to participate in Assumed Letters of Credit
in an aggregate amount not to exceed at any one time outstanding the
amount set forth opposite such Assumed Letter of Credit Lender's name
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in Schedule 1.1A under the heading "Assumed Letter of Credit Commitment",
as such amount may be reduced from time to time as provided herein;
collectively, as to all the Assumed Letter of Credit Lenders, the "Assumed
Letter of Credit Commitments".
"Assumed Letter of Credit Commitment Percentage": as to any Assumed
Letter of Credit Lender, the percentage of the aggregate Assumed Letter of
Credit Commitments constituted by its Assumed Letter of Credit Commitment.
"Assumed Letter of Credit Lender": any Lender that has an Assumed
Letter of Credit Commitment.
"Available Revolving Credit Commitment": as to any Revolving Credit
Lender at any time with respect to its Revolving Credit Commitment, an
amount equal to the excess, if any, of (a) the amount of such Revolving
Credit Lender's Revolving Credit Commitment at such time over (b) the
aggregate of (i) such Revolving Credit Lender's Revolving Extensions of
Credit at such time and (ii) such Revolving Credit Lender's Revolving
Credit Commitment Percentage of the Hedge Agreement Liabilities at such
time; collectively, as to all Revolving Credit Lenders, the "Available
Revolving Credit Commitments"; provided, that for purposes of (and only
for the purpose of) calculating any Revolving Credit Lender's Available
Revolving Credit Commitment pursuant to Section 2.4, such Revolving Credit
Lender's Available Revolving Credit Commitment shall be an amount equal to
the excess, if any, of (x) the amount of such Revolving Credit Lender's
Revolving Credit Commitment at such time over (b) such Revolving Credit
Lender's Revolving Extensions of Credit at such time.
"Bankruptcy Code": as defined in the preamble hereto.
"Bankruptcy Court": as defined in the preamble hereto.
"Base Rate": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime
Rate in effect on such day, (b) the Base CD Rate in effect on such day
plus 1% and (c) the Federal Funds Effective Rate in effect on such day
plus -1/2 of 1%. For purposes hereof: "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time by the
Administrative Agent as its prime rate in effect at its principal office
in New York City; "Base CD Rate" shall mean the sum of (a) the product of
(i) the Three-Month Secondary CD Rate and (ii) a fraction, the numerator
of which is one and the denominator of which is one minus the C/D Reserve
Percentage and (b) the C/D Assessment Rate; "Three-Month Secondary CD
Rate" shall mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such day (or, if
such day shall not be a Business Day, the next preceding Business Day) by
the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of
the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day, the average of
the secondary market quotations for three-month certificates of deposit of
major money center banks in New York City received at approximately 10:00
a.m., New York City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by the Administrative
Agent from three New York City negotiable certificate of deposit dealers
of recognized standing selected by it; "Federal Funds Effective Rate"
shall mean, for any day, 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 on the next succeeding
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
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for the day of such transactions received by the Administrative Agent from
three federal funds brokers of recognized standing selected by it; "C/D
Assessment Rate" shall mean for any day as applied to the Base CD Rate,
the net annual assessment rate (rounded upward to the nearest 1/100th of
1%) determined by the Administrative Agent to be payable on such day to
the Federal Deposit Insurance Corporation or any successor ("FDIC") for
FDIC's insuring time deposits made in Dollars at offices of the
Administrative Agent in the United States; and "C/D Reserve Percentage"
shall mean, for any day as applied to the CD Base Rate, that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by
the Board, for determining the maximum reserve requirement for a member
bank of the Federal Reserve System in New York City with deposits
exceeding one billion Dollars in respect of new non-personal time deposits
in Dollars in New York City having a three month maturity and in an amount
of $100,000 or more. If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Base CD Rate or the Federal Funds
Effective Rate, or both, for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in
accordance with the terms thereof, the Base Rate shall be determined
without regard to clause (b) or (c), or both, of the first sentence of
this definition, as appropriate, until the circumstances giving rise to
such inability no longer exist. Any change in the Base Rate due to a
change in the Prime Rate, the Base CD Rate or the Federal Funds Effective
Rate shall be effective on the effective day of such change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Base Rate Loan": any Loan bearing interest by reference to the
applicable Base Rate.
"Benefitted Lender": as defined in subsection 15.7(a).
"Board": the Board of Governors of the Federal Reserve System (or
any successor thereto).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice pursuant to
subsection 2.3 as a date on which the Borrower requests the relevant
Lenders to make Loans hereunder and, with respect to subsections 3.1 and
4.1, the Business Day on which the Borrower is deemed to request the
relevant Lenders to make Term Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law
to close, provided that when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which commercial
banks are not open for dealing in deposits in the London interbank
eurodollar market.
"Capital Expenditures": expenditures (including, without limitation,
obligations created under Financing Leases and purchase money Indebtedness
in the year in which created but excluding payments made thereon) of the
Borrower and its Subsidiaries in respect of the purchase or other
acquisition of fixed or capital assets (excluding any such asset acquired
(w) in connection with normal replacement and maintenance programs
properly expensed in accordance with GAAP, (x) with the proceeds of any
casualty insurance or condemnation award (with such expenditures to be
made, to the extent subsection 5.3(e) is applicable, in accordance with
subsection 5.3(e)), (y) with the cash proceeds of any asset sale made
pursuant to subsection 11.6(d), applied or contractually committed to be
applied within 365 days from receipt of such proceeds and (z) in any
Permitted Acquisition).
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"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Cases": as defined in the preamble hereto.
"Cash Equivalents": (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured by
the United States Government or by the Central Bank or a national or
provincial government of the country whose currency is the currency of
such securities or, if such currency is euros, of any participating state,
in any such case, or any agency thereof, (b) certificates of deposit, time
deposits, overnight bank deposits, bankers acceptances and repurchase
agreements of any commercial bank which has, or whose obligations are
guaranteed by an affiliated commercial bank which has, capital and surplus
in excess of $500,000,000 having maturities of one year or less from the
date of acquisition, (c) commercial paper or similar obligations of an
issuer rated at least A-2 by Standard & Poor's Ratings Services or P-2 by
▇▇▇▇▇'▇ Investors Service, Inc., or carrying an equivalent rating by a
nationally or internationally recognized rating agency if both of the two
named rating agencies cease publishing ratings of investments, (d) money
market accounts or funds with or issued by Qualified Issuers (as defined
below), (e) repurchase obligations with a term of not more than 90 days
for underlying securities of the types described in clause (a) above
entered into with any bank meeting the qualifications specified in clause
(b) above, and (f) demand deposit accounts maintained in the ordinary
course of business with any Lender or with any bank that is not a Lender
not in excess of $100,000 in the aggregate on deposit with any such bank;
"Qualified Issuer" means any commercial bank (a) which has, or whose
obligations are guaranteed by an affiliated commercial bank which has,
capital and surplus in excess of $500,000,000 and (b) the outstanding
short-term debt securities of which are rated at least A-2 by Standard &
Poor's Ratings Services or at least P-2 by ▇▇▇▇▇'▇ Investors Service,
Inc., or carry an equivalent rating by a nationally or internationally
recognized rating agency if both of the two named rating agencies cease
publishing ratings of investments.
"Change in Control": the occurrence of any of the following: (a) any
"Person" or "group" (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
excluding Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇, their principals
and their Affiliates and management ("HMTF") and their respective
employees, directors and officers (the "HMTF Group") and all shares of
Capital Stock of Holdings held by the HMTF Group, shall become the
"beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under such
Act), directly or indirectly, of more than the greater of (i) 35% of the
shares of voting Capital Stock of Holdings then outstanding or (ii) the
percentage of the then outstanding voting Capital Stock of Holdings owned
by the HMTF Group, provided that the occurrence of the foregoing event
shall not be deemed a Change in Control if (x) at any time prior to the
consummation of an Initial Public Offering, and for any reason whatever,
the HMTF Group otherwise has the right to designate (and does so
designate) a majority of the board of directors of Holdings or (y) at any
time after the consummation of an Initial Public Offering, and for any
reason whatever, (i) the HMTF Group shall own greater than 10% of the
outstanding common stock of Holdings and (ii) any "Person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the Exchange Act),
excluding the HMTF Group, is not or shall not become the "beneficial
owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act),
directly or indirectly, of a greater percentage of voting Capital Stock of
Holdings than is owned by the HMTF Group; (b) the board of directors of
Holdings shall not consist of a majority of Continuing Directors; or (c) a
"Change of Control" (or any comparable concept) as defined in any document
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pertaining to any Additional Senior Subordinated Indebtedness. The
existence of the Shareholders Agreement substantially as in effect on the
Closing Date shall not be deemed to cause the parties thereto to be a
"group" for the purposes of this definition.
"Chinese Opco": each of Viasystems Asia Pacific Property BVI, Ltd,
Kalex Circuit Board (China) Ltd., Termbray Laminate Company Ltd., Termbray
Circuit Board Company Ltd., Kalex Circuit Board (Guangzhou) Ltd.,
Viasystems Supply Company Ltd., Viasystems CY EMS Shenzhen Co Ltd.,
Shanghai Viasystems EMS Co Ltd., Qingdao Viasystems Telecom Tech Co Ltd.,
Guangzhou Termbray Electronics Tech Co Ltd., Kalex MultiLayer Circuit
Board (Zhongshan) Ltd., Guangzhou Kalex Laminate Company Ltd., Guangzhou
Termbray Circuit Board Co Ltd., Shanghai Reltec Communications Tech Co
Ltd., Viasystems (Nantong) Electronic Tech Co Ltd., Viasystems Taiwan,
Inc., Viasystems (South China) Co Ltd., Viasystems EMS (Hong Kong) Co
Ltd., Viasystems Kalex Printed Circuit Board Ltd., and Viasystems Asia
Pacific Co Ltd.
"Closing Date": the date on which this Agreement becomes effective
in accordance with its terms, which date is January 31, 2003.
"Code": the U.S. Internal Revenue Code of 1986, as amended from time
to time.
"Collateral Agent": JPMCB in its capacity as collateral agent for
the Secured Parties under the Loan Documents.
"Commitment Increase Notice": as defined in subsection 2.9(a).
"Commitment Increase Supplement": as defined in subsection 2.9(c).
"Commitments": the collective reference to the Revolving Credit
Commitments, the Assumed Letter of Credit Commitments, the Tranche A Term
Loan Commitments and the Tranche B Term Loan Commitments; individually, a
"Commitment."
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Borrower and which is treated as a single employer under Section 414 of
the Code.
"Confirmation Order": as defined in the preamble hereto.
"Consolidated Current Assets": at any date, the amount which, in
conformity with GAAP, would be set forth opposite the caption "Total
Current Assets" (or any like caption) on a consolidated balance sheet of
the Borrower and its Subsidiaries at such date, except that there shall be
excluded therefrom cash and Cash Equivalents and equipment and other fixed
assets held for sale.
"Consolidated Current Liabilities": at any date, the amount which,
in conformity with GAAP, would be set forth opposite the caption "Total
Current Liabilities" (or any like caption) on a consolidated balance sheet
of the Borrower and its Subsidiaries at such date, except that there shall
be excluded therefrom the current portion of (a) all Loans and, (b) all
long-term Indebtedness for borrowed money (including Financing Leases) in
each case, to the extent included therein.
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"Consolidated EBITDA": for any period, with respect to any Person,
Consolidated Net Income of such Person for such period (A) plus, without
duplication and to the extent reflected as a charge in the statement of
such Net Income for such period, the sum of (i) total income and franchise
tax expense, (ii) interest expense, amortization or writeoff of debt
discount and debt issuance costs and commissions and discounts and other
fees and charges associated with Indebtedness, (iii) depreciation and
amortization expense, (iv) amortization of intangibles (including, but not
limited to, goodwill and organization costs), (v) other noncash charges
(including, but not limited to, any writeoffs of purchased technology),
(vi) any extraordinary losses (not to exceed $10,000,000 for any period in
the case of extraordinary cash losses) and unusual noncash losses
(including any such losses on sales of assets other than inventory sold in
the ordinary course of business) other than any loss from any discontinued
operation, (vii) costs and charges related to the closing of operations in
Rouen, France and Terni, Italy, (viii) any non-operational costs and
charges related to the restructuring contemplated by the Reorganization
Plan incurred through and including January 31, 2003 (such costs and
charges to consist primarily of, but not be limited to, professional fees,
printing fees and financing fees), (ix) non-recurring operational
restructuring charges in an aggregate amount not to exceed $25,000,000 and
(x) non-cash losses described on Schedule 1.1B resulting from the
cancellation of intercompany Indebtedness and (B) minus, without
duplication, (i) any extraordinary and unusual gains (including gains on
the sales of assets, other than inventory sold in the ordinary course of
business) other than any income from discontinued operations and (ii) non
cash gains included in Consolidated Net Income; provided that for purposes
of calculating Consolidated EBITDA for any period (each a "Reference
Period") in connection with the determination of compliance with the
covenants set forth in subsection 11.1(b) for such period, if during such
Reference Period (or in the case of pro forma calculations, during the
period from the last day of such Reference Period to and including the
date as of which such calculation is made), the Borrower or any of its
Subsidiaries shall have made a disposition of property or a Permitted
Acquisition, Consolidated EBITDA for such Reference Period shall be
calculated after giving pro forma effect to (a) such disposition or
Permitted Acquisition as if such disposition or Permitted Acquisition
occurred on the first day of such Reference Period (with the Reference
Period for the purposes of pro forma calculations being the most recent
period of four consecutive fiscal quarters for which the relevant
financial information is available) and (b) any operating expense
reductions and other cost savings to be implemented in connection with any
such disposition or Permitted Acquisition, determined on the basis of a
four-quarter period in accordance with the provisions of Regulation S-X of
the Securities Act of 1933, as amended ("Regulation S-X"); provided that
in connection with any OEM Acquisition, such cost savings (not to exceed
$5,000,000 for any OEM Acquisition and not to exceed $10,000,000 in the
aggregate for any fiscal year) shall be determined in good faith by the
Borrower irrespective of whether such implementation would be permitted
under GAAP or Regulation S-X. Consolidated EBITDA shall include the net
income of the Borrower and its Subsidiaries attributable to joint ventures
in which their ownership interest is 50% or greater but not to joint
ventures in which their ownership interest is less than 50%. References in
this definition to any "disposition" shall be deemed to include
liquidation and receivership transactions.
"Consolidated Net Income": for any period, with respect to any
Person, the amount which, in conformity with GAAP, would be set forth
opposite the caption "Net Income/(Loss)" (or any like caption) on a
consolidated statement of operations of such Person and its Subsidiaries
for such period.
"Consolidated Total Debt": at a particular date, with respect to the
Borrower, the aggregate principal amount of Indebtedness under this
Agreement, Financing Leases, purchase money Indebtedness, and any other
Indebtedness for borrowed money of the Borrower and its
7
Subsidiaries at such date in conformity with GAAP, including unreimbursed
drawings in respect of Revolving Letters of Credit but excluding undrawn
letters of credit and Specified Indebtedness.
"Consolidated Working Capital": at any date, the excess of
Consolidated Current Assets at such date over Consolidated Current
Liabilities at such date.
"Continuing Directors": the directors of Holdings on the Closing
Date and each other director, if, in each case, such other director's
nomination for election to the board of directors of Holdings is
recommended or supported by a majority of the then Continuing Directors or
such other director receives the vote of HMTF in his or her election by
the shareholders.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Parties": the collective reference to Holdings, the Borrower
and each of their respective Domestic Subsidiaries which from time to time
is a party to any Loan Document.
"Default": any of the events specified in Section 12, whether or not
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Denominated Currency": as defined in subsection 15.11(a).
"DIP Credit Agreement": the Revolving Credit Agreement, dated as of
October 1, 2002, as amended, among Holdings, the Borrower, each of the
financial institutions party thereto, as lenders, Deutsche Bank Trust
Company Americas, as documentation agent, and JPMorgan Chase Bank, as
administrative agent.
"DIP Lenders": the "Lenders" under and as defined in the DIP Credit
Agreement.
"DIP Letters of Credit": as defined in subsection 2.5(a).
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Domestic Asset Coverage Ratio": the ratio of (a) the sum of (i) the
aggregate amount of cash held in Qualified Accounts (but not serving as
cash collateral for specific Obligations) and (ii) the aggregate net book
value of accounts receivable and inventory of the Borrower and its
Domestic Subsidiaries (excluding accounts receivable and inventory
relating to the Borrower's San Jose, California facility) to (b) the
aggregate Revolving Extensions of Credit.
"Domestic Subsidiary": as to any Person, any Subsidiary of such
Person other than a Foreign Subsidiary of such Person.
"DTI": the United Kingdom's Department of Trade and Industry.
"Environmental Laws": any applicable foreign, federal, state,
provincial, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, legally binding requirements of any
Governmental Authority or other Requirements of Law (including common law)
regulating, relating to or imposing liability or standards of conduct
concerning protection of human health or the environment, as now or may at
any time hereafter be in effect.
8
"Equivalent Amount": at any time of determination, with respect to
any amount in any currency denominated in a different currency, the amount
at which such amount of different currency could be converted into the
determination currency at such time as reasonably determined by the
Administrative Agent.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined on the basis of the rate for deposits in Dollars for a period
equal to such Interest Period commencing on the first day of such Interest
Period appearing on Page 3750 of the Telerate screen as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest
Period. In the event that such rate does not appear on Page 3750 of the
Telerate screen (or otherwise on such screen), the "Eurodollar Base Rate"
shall be determined by reference to such other comparable publicly
available service for displaying eurodollar rates as may be selected by
the Administrative Agent or, in the absence of such availability, by
reference to the rate at which the Administrative Agent is offered Dollar
deposits at or about 11:00 A.M., New York City time, two Business Days
prior to the beginning of such Interest Period in the interbank eurodollar
market where its eurodollar and foreign currency and exchange operations
are then being conducted for delivery on the first day of such Interest
Period for the number of days comprised therein.
"Eurodollar Loan": any Loan bearing interest by reference to the
applicable Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
______________________________________
1.00 - Eurodollar Reserve Requirements
"Eurodollar Reserve Requirements": for any day as applied to any
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal and
emergency reserves) under any regulations of any applicable Governmental
Authority for the Borrower dealing with reserve requirements prescribed
for Eurodollar funding (currently referred to as "Eurodollar Liabilities"
in Regulation D of the Board).
"Event of Default": any of the events specified in Section 12,
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the excess
of (a) the sum, without duplication, of (i) Consolidated EBITDA for such
fiscal year, (ii) the amount of returned surplus assets of any Plan during
such fiscal year to the extent not included in Consolidated Net Income to
determine Consolidated EBITDA for such fiscal year, (iii) decreases in
Consolidated Working Capital of the Borrower and its Subsidiaries for such
fiscal year, (iv) the amount of any refund received by Holdings and its
Subsidiaries on taxes paid by Borrower and its Subsidiaries, (v) cash
dividends, cash interest and other similar cash payments received by
Holdings in respect of investments to the extent not included in
Consolidated Net Income to determine Consolidated
9
EBITDA for such fiscal year and (vi) extraordinary cash gains to the
extent subtracted or otherwise not included in Consolidated Net Income to
determine Consolidated EBITDA for such fiscal year over (b) the sum,
without duplication, of (i) the aggregate amount of cash Capital
Expenditures made by Borrower and its Subsidiaries during such fiscal year
and permitted hereunder (other than Capital Expenditures permitted under
subsection 11.8(b)), (ii) the aggregate amount of all reductions of the
Revolving Credit Commitments or payments or prepayments of the Term Loans
during such fiscal year other than pursuant to subsection 5.3(a), (b) or
(c), (iii) the aggregate amount of payments of principal in respect of any
Indebtedness permitted hereunder during such fiscal year (other than under
this Agreement), (iv) increases in Consolidated Working Capital of the
Borrower and its Subsidiaries for such fiscal year, (v) cash interest
expense of the Borrower and its Subsidiaries for such fiscal year, (vi)
taxes actually paid in such fiscal year or to be paid in the subsequent
fiscal year on account of such fiscal year to the extent added to
Consolidated Net Income to determine Consolidated EBITDA for such fiscal
year, (vii) extraordinary cash losses to the extent added to Consolidated
Net Income to determine Consolidated EBITDA for such fiscal year and
(viii) the amount of all Investments made in such fiscal year as permitted
by clauses (d), (h) and (j) of subsection 11.9, provided that (x)
increases or decreases in Consolidated Working Capital resulting from any
disposition or acquisition shall be excluded from the calculation of
Excess Cash Flow and (y) net income of any Foreign Subsidiary of the
Borrower which is not a Credit Party will only be included to the extent
distributed to a Credit Party. Notwithstanding the foregoing, all payments
made and received in connection with any Permitted Acquisition or any
issuance of shares of Capital Stock by Holdings shall be excluded from the
calculation of Excess Cash Flow. References in this definition to any
"disposition" shall be deemed to include liquidation and receivership
transactions.
"Excluded Asset Sale": any sale, transfer or other disposition
permitted pursuant to subsection 11.6 that (i) is described on Schedule
11.20, (ii) constitutes the sale of the Borrower's facility in Richmond,
Virginia (but only to the extent that the Net Cash Proceeds from such
sale, together with the aggregate amount of the Revolving Credit
Commitments at such time, does not exceed $61,850,000) or (iii)
constitutes an individual sale of equipment yielding Net Cash Proceeds of
less than $1,000,000 (provided that the aggregate Net Cash Proceeds from
such sales do not exceed $10,000,000 in any fiscal year and that all such
Net Cash Proceeds are invested in assets useful in the Borrower's business
within 180 days).
"Existing Letters of Credit": as defined in Section 2.5(a).
"Facility": each of (a) the Tranche A Term Loan Commitments and the
Tranche A Term Loans made thereunder (the "Tranche A Term Loan Facility"),
(b) the Tranche B Term Loan Commitments and the Tranche B Term Loans made
thereunder (the "Tranche B Term Loan Facility"), (c) the Assumed Letter of
Credit Commitments and the Assumed Letters of Credit (the "Assumed Letter
of Credit Facility") and (d) the Revolving Credit Commitments and the
extensions of credit made thereunder (the "Revolving Credit Facility").
"Fee Properties": the collective reference to the real properties
owned by Holdings and its Subsidiaries described on Part I of Schedule
8.18, including all buildings, improvements, structures and fixtures now
or subsequently located thereon.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
10
"First Priority Obligations": as defined in the Intercreditor
Agreement.
"Foreign Subsidiary": as to any Person any Subsidiary of such Person
which is organized or formed under the laws of any jurisdiction outside of
the country in which such Person is organized.
"GAAP": the generally accepted accounting principles in the United
States of America (or, in the case of financial statements or the like
with respect to any Foreign Subsidiary of the Borrower for any period
prior to the date it became a Foreign Subsidiary, in the country of
organization of such Foreign Subsidiary) as in effect from time to time
set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and the
statements and pronouncements of the Financial Accounting Standards Board
and the rules and regulations of the Securities and Exchange Commission
(or in the case of financial statements or the like with respect to any
Foreign Subsidiary of the Borrower for any period prior to the date it
became a Foreign Subsidiary, the applicable authority in such country of
organization of such Foreign Subsidiary), or in such other statements by
such other entity as may be in general use by significant segments of the
accounting profession, which are applicable to the circumstances of the
Borrower as of the date of determination except that for purposes of
subsection 11.1, GAAP shall be determined on the basis of such principles
used in the preparation of the financial statements referred to in
subsections 8.1(a) and (b). In the event that any "Accounting Change" (as
defined below) shall occur and such change results in a change in the
method of calculation of financial covenants, standards or terms in this
Agreement, then Holdings, the Borrower and the Administrative Agent agree
to enter into negotiations in order to amend such provisions of this
Agreement so as to equitably reflect such Accounting Changes with the
desired result that the criteria for evaluating the Borrower's financial
condition shall be the same after such Accounting Changes as if such
Accounting Changes had not been made. Until such time as such an amendment
shall have been executed and delivered by Holdings, the Borrower, the
Administrative Agent and the Required Lenders, all financial covenants,
standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Changes had not occurred. "Accounting
Changes" means: changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the
Financial Accounting Standards Board of the American Institute of
Certified Public Accountants or, if applicable, the Securities and
Exchange Commission (or successors thereto or agencies with similar
functions).
"Governmental Authority": any nation or government, any state,
province, municipality, or other political subdivision thereof and any
entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"GSC": the collective reference to GSC Recovery II, L.P., GSC
Recovery IIA, L.P., GSC Recovery IIA, L.P. (Second Close), GSC Recovery
IIA, L.P. (Third Close) and GSC Partners Gemini Fund Limited.
"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement, dated as of the Closing Date, made by Holdings, the Borrower
and its Domestic Subsidiaries in favor of the Collateral Agent for the
benefit of the Secured Parties, substantially in the form of Exhibit E, as
the same may be amended, restated, supplemented or otherwise modified from
time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued
a
11
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "primary obligations") of any other third Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of
the primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include endorsements
of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the
stated or determinable amount of the primary obligation in respect of
which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may
be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as determined by the
board of directors of such Person in good faith.
"▇▇▇▇▇▇": ▇▇▇▇▇▇ Partners, Inc.
"Hedge Agreement": any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving,
or settled by reference to, one or more rates, currencies, commodities,
equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or
value or any similar transaction or any combination of these transactions.
"Hedge Agreement Liabilities": the aggregate amount of the
▇▇▇▇-to-market liability of Holdings and its Subsidiaries in respect of
Hedge Agreements.
"HMTF": as defined in the definition of "Change of Control".
"Holdings": as defined in the preamble hereto.
"Increasing Lender": as defined in subsection 2.9(c).
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services (other
than current trade payables incurred in the ordinary course of such
Person's business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all indebtedness
created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though
the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such
property), (e) all Financing Leases entered into by such Person, (f) all
obligations of such Person, contingent or otherwise, as an account party
or applicant under or in respect of acceptances, letters of credit, surety
bonds or similar arrangements, (g) the liquidation value of all
mandatorily redeemable preferred Capital Stock of such Person (other than
preferred Capital Stock of Holdings), (h) all obligations of the kind
referred to in clauses (a)
12
through (g) above secured by (or for which the holder of such obligation
has an existing right, contingent or otherwise, to be secured by) any Lien
on property (including accounts and contract rights) owned by such Person,
whether or not such Person has assumed or become liable for the payment of
such obligation, provided however, that the amount of such Indebtedness of
any Person described in this clause (h) shall, for purposes of this
Agreement, be deemed to be equal to the lesser of (i) the aggregate unpaid
amount of such Indebtedness and (ii) the fair market value of the property
or asset encumbered, as determined by such Person in good faith, and (i)
for the purposes of Section 12(e) only, all obligations of such Person in
respect of Hedge Agreements. The Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which
such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness expressly provide that such Person is not liable therefor.
"Initial Public Offering": an underwritten public offering of common
stock of Holdings pursuant to a registration statement filed with the
Securities and Exchange Commission in accordance with the Securities
Exchange Act of 1933, as amended.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": as defined in subsection 8.9.
"Intercreditor Agreement": the Intercreditor Agreement, dated as of
the Closing Date, among Holdings, the Borrower and its Domestic
Subsidiaries, the Junior Agent and the Senior Agent, substantially in the
form of Exhibit I, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"Interest Coverage Ratio": for any period, with respect to the
Borrower, the ratio of (a) Consolidated EBITDA to (b) consolidated cash
interest expense (including any such cash interest expense in respect of
Indebtedness under Financing Leases and purchase money Indebtedness
permitted under subsection 11.2(e), but excluding cash interest expense in
respect of Specified Indebtedness) of the Borrower and its Subsidiaries
net of cash interest income (such consolidated cash interest expense to
include fees payable on account of letters of credit and banker's
acceptances but to exclude amortization of debt discount (including
discount of liabilities and reserves established under Accounting
Principles Board Opinion No. 16 as in effect on the date hereof) and costs
of debt issuance).
"Interest Payment Date": (a) as to any Base Rate Loan, the last day
of each of March, June, September and December to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any
Eurodollar Loan having an Interest Period of three months or less, the
last day of such Interest Period, (c) as to any Eurodollar Loan having an
Interest Period longer than three months, each day which is three months
or a whole multiple thereof, after the first day of such Interest Period
as well as the last day of such Interest Period, (d) as to any Loan (other
than any Revolving Credit Loan that is a Base Rate Loan), the date of any
repayment or prepayment made in respect thereof and (e) as to any Loan,
February 28, 2003 and March 31, 2003.
"Interest Period": with respect to any Eurodollar Loan:
13
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending at the end of one, two, three, six (or, with the
consent of all applicable Lenders, nine or twelve) months
thereafter, as selected by the Borrower in its notice of borrowing
or notice of conversion, as the case may be, given with respect
thereto; and
(b) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such Eurodollar
Loan and ending at the end of one, two, three, six (and, with the
consent of all applicable Lenders, nine or twelve) months
thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the
last day of the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a Eurodollar Loan
would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business
Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(2) no Interest Period shall extend beyond the Scheduled
Revolving Credit Commitment Termination Date in the case of
Revolving Credit Loans or the scheduled date final payment is due on
any tranche or class of Term Loans in the case of such tranche or
class of Term Loans;
(3) no Interest Period with respect to any tranche or class of
the Term Loans shall extend beyond any date upon which repayment of
principal thereof is required to be made if, after giving effect to
the selection of such Interest Period, the aggregate principal
amount of such tranche or class of Term Loans with Interest Periods
ending after such date would exceed the aggregate principal amount
of such tranche or class of Term Loans permitted to be outstanding
after such scheduled repayment; and
(4) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of a calendar month.
"International Holdings": Viasystems International, Inc., a Delaware
corporation.
"Investments": as defined in subsection 11.9.
"Issuing Lender": JPMCB or any of its affiliates (including JPMCB
Delaware), in its capacity as issuer of any Letter of Credit.
"JPMCB": as defined in the preamble hereto.
"JPMCB Delaware": JPMorgan Chase Bank Delaware together with its
successors and assigns.
14
"Judgment Conversion Date": as defined in subsection 15.11(a).
"Judgment Currency": as defined in subsection 15.11(a).
"Junior Agent": as defined in the Intercreditor Agreement.
"Junior Lenders": as defined in the Intercreditor Agreement.
"Junior Preferred Stock": the junior preferred stock issued by
Holdings pursuant to the Reorganization Plan.
"Leased Properties": the collective reference to the real properties
leased by Holdings and its Subsidiaries described on Part II of Schedule
8.18, including all buildings, improvements, structures and fixtures now
or subsequently located thereon and owned or leased by Holdings and its
Subsidiaries.
"Lenders": as defined in the preamble hereto.
"Letter of Credit Application": with respect to (a) a Standby L/C, a
Standby L/C Application and (b) a Trade L/C, a Trade L/C Application;
collectively, the "Letter of Credit Applications".
"Letters of Credit": as defined in subsection 2.5(a).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
agreement and any Financing Lease having substantially the same economic
effect as any of the foregoing).
"Loan Documents": the collective reference to this Agreement, the
Notes, the Letter of Credit Applications, the Guarantee and Collateral
Agreement, the Intercreditor Agreement and the Mortgages, and any other
document, instrument or agreement guaranteeing, or granting a Lien to
secure, any Obligations.
"Loans": the collective reference to any loan made by any Lender
hereunder.
"Majority Facility Lenders": with respect to any Facility, the
holders of more than 50% of the aggregate unpaid principal amount of the
Term Loans, the aggregate Assumed Letter of Credit Commitments or the
aggregate Revolving Extensions of Credit, as the case may be, outstanding
under such Facility (or, in the case of the Revolving Credit Facility,
prior to any termination of the Revolving Credit Commitments, the holders
of more than 50% of the aggregate Revolving Credit Commitments), provided,
that, for the purposes of any such determination, (a) HMTF, GSC, Trust
Company of the West and any Lender that provides a Revolving Credit
Commitment pursuant to subsection 2.9 (if such Lender or an Affiliate
thereof is a holder of the common stock of Holdings), and their respective
Affiliates, shall be deemed not to have any Revolving Credit Commitment or
Revolving Extensions of Credit and (b) HMTF, GSC and their respective
Affiliates shall be deemed not to have any outstanding Term Loans. For the
purposes of this definition, any Lender's Assumed Letter of Credit
Commitment shall be deemed to constitute a Tranche B Term Loan.
15
"Material Adverse Change": any event, development, or circumstance
that has had or could reasonably be expected to have a Material Adverse
Effect.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of Holdings and its Subsidiaries, taken as a whole or (b) the
validity or enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Secured Parties hereunder or
thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated
as such in or under any Environmental Law, including, without limitation,
friable asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Mortgaged Properties": the collective reference to the Fee
Properties owned by the Borrower and its Subsidiaries listed on Part III
of Schedule 8.18.
"Mortgages": the collective reference to the mortgages and deeds of
trust, substantially in the form of Exhibit F hereto, encumbering each of
the Mortgaged Properties executed and delivered by the Borrower or its
Domestic Subsidiaries, with such modifications as are determined by the
Collateral Agent as necessary or desirable to create a valid and
enforceable first mortgage Lien securing the obligations and liabilities
of the Borrower or any guarantor under any Loan Document, as the same may
be amended, supplemented, replaced, restated, or otherwise modified from
time to time.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale
(including any sale and leaseback of assets and any sale of accounts
receivable in connection with a receivables financing transaction) the
cash proceeds (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale net of all reasonable legal fees, notarial
fees, accountants' fees, investment banking fees, survey costs, title
insurance premiums, debt payments (other than pursuant hereto) and other
customary fees actually incurred and satisfactorily documented in
connection therewith and net of taxes paid or reasonably expected to be
payable as a result thereof and net of purchase price adjustments
reasonably expected to be payable in connection therewith and (b) in
connection with any issuance by Holdings or any of its Subsidiaries of (i)
Capital Stock or (ii) debt securities or instruments or the incurrence of
loans other than Indebtedness permitted by subsection 11.2, the cash
proceeds received from such issuance, net of all reasonable investment
banking fees, legal fees, notarial fees, accountants fees, underwriting
discounts and commissions and other customary fees and expenses, actually
incurred and satisfactorily documented in connection therewith; provided,
that, with respect to any issuance of debt instruments or securities as
described in clause (b) above, only in the event that such net cash
proceeds are used to refinance any Indebtedness permitted by this
Agreement, then such net cash proceeds shall not constitute "Net Cash
Proceeds" for the purpose of this Agreement.
"New Lender": as defined in subsection 2.9(b).
"New Lender Supplement": as defined in subsection 2.9(b).
16
"Non-Credit Parties": the Subsidiaries of Holdings other than the
Borrower and the Domestic Subsidiaries party to the Guarantee and
Collateral Agreement.
"Non-Excluded Taxes": as defined in subsection 7.7(a).
"Non-Funding Lender": as defined in subsection 7.4(c).
"Non-U.S. Lender": any Lender, the Issuing Lender (if applicable),
any Participant or any Agent that is not a United States person as defined
in Section 7701(a)(30) of the Code.
"Nonconsenting Lender": as defined in subsection 7.9.
"Notes": the collective reference to the Revolving Credit Notes and
the Term Notes.
"Obligations": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans made
to the Borrower and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the
Loans made to the Borrower and all other obligations and liabilities of
the Borrower to the Secured Parties, whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this
Agreement, the Guarantee and Collateral Agreement, or the other Loan
Documents, any Hedge Agreement entered into with a Lender or in respect of
overdrafts and related liabilities owed to the Administrative Agent, any
Lender or any of their respective Affiliates or any treasury, depositary
and cash management services in connection with any automated clearing
house transfers of funds for the Borrower or in respect of guarantees by
the Borrower of any such obligations or liabilities of any of its
Subsidiaries for any such services, or any other document made, delivered
or given in connection therewith or herewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees and disbursements of
counsel to the Secured Parties that are required to be paid by the
Borrower pursuant to the terms of this Agreement) or otherwise.
"OEM Acquisition": the acquisition by Holdings or any of its
Subsidiaries of a captive division, business unit or facility of an
original equipment manufacturer.
"Offered Increase Amount": as defined in subsection 2.9(a).
"Participant": as defined in subsection 15.6(b).
"Participating Interest": with respect to any Letter of Credit, (a)
in the case of the Issuing Lender, its interest in such Letter of Credit
after giving effect to the granting of participating interests therein, if
any, pursuant hereto and (b) in the case of each Participating Lender, its
undivided participating interest in such Letter of Credit relating
thereto.
"Participating Lender": (a) in the case of the Revolving Letters of
Credit, the Revolving Credit Lenders, and (b) in the case of the Assumed
Letters of Credit, the Assumed Letter of Credit Lenders, in each case
including, if applicable, the Issuing Lender.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
17
"Permitted Acquisition": the acquisition by Holdings or a Subsidiary
of Holdings of a Related Business approved by the board of directors of
Holdings or such Subsidiary, as the case may be.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Petition Date": as defined in the preamble hereto.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pledged Securities": as defined in the Guarantee and Collateral
Agreement.
"Print Service": as defined in the preamble hereto.
"Pre-Petition Credit Agreement": the Credit Agreement, dated as of
March 29, 2000 (as amended, supplemented or otherwise modified prior to
the Petition Date) among the Borrower, Holdings, the Foreign Subsidiary
Borrowers party thereto, the several lenders from time to time party
thereto, ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Bank Canada, as Canadian administrative agent,
▇.▇. ▇▇▇▇▇▇ Europe Limited, as multicurrency administrative agent, and
JPMorgan Chase Bank, as administrative agent.
"Pre-Petition Lenders": collectively, the "Lenders" under and as
defined in the Pre-Petition Credit Agreement, together with any successors
or assigns thereof.
"Pre-Petition Lender Secured Claim": a Secured Claim held by the
Pre-Petition Lenders.
"Pro Forma Balance Sheet": as defined in subsection 8.1(c).
"Properties": as defined in subsection 8.16(a).
"Qualified Account": any deposit account of Holdings or any Domestic
Subsidiary in which the Collateral Agent has a perfected first priority
security interest, in each case on terms and conditions satisfactory to
the Collateral Agent.
"Ratable Portion": for each Lender, the amount of such Lender's pro
rata portion of any applicable Loan.
"rate of exchange": as defined in subsection 15.11(d).
"Re-Allocation Date": as defined in subsection 2.9(e).
"Register": as defined in subsection 15.6(c).
"Regulation T, U or X": Regulation T, U or X of the Board as in
effect from time to time.
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"Related Business": any business which is the same as or related,
ancillary or complementary to any of the businesses of the Borrower and
its Subsidiaries on the Closing Date, as reasonably determined by the
Board of Directors of Holdings or the determining Subsidiary of Holdings.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reorganization Plan": as defined in the preamble hereto.
"Reportable Event": any of the events set forth in Section 4043(c)
of ERISA and the regulations thereunder, other than those events as to
which the thirty day notice period is waived under subsections .13, .14,
.16, .18, .19 or .20 of PBGC Reg. Section 2615.
"Required Junior Lenders": as defined in the Intercreditor
Agreement.
"Required Lenders": at any time, both (a) Lenders the Total Credit
Percentages of which aggregate at least a majority and (b) except in the
case of matters affecting only the Term Loans or the Term Loan Lenders (as
determined by the Administrative Agent), Revolving Credit Lenders the
Revolving Credit Commitments of which aggregate at least a majority of the
aggregate Revolving Credit Commitments (or, if the Revolving Credit
Commitments have terminated or expired, the outstanding Revolving
Extensions of Credit of which aggregate at least of majority of the
aggregate outstanding Revolving Extensions of Credit), provided, that, for
the purposes of any such determination, (i) HMTF, GSC, Trust Company of
the West and any Lender that provides a Revolving Credit Commitment
pursuant to subsection 2.9 (if such Lender or an Affiliate thereof is a
holder of the common stock of Holdings), and their respective Affiliates,
shall be deemed not to have any Revolving Credit Commitment or Revolving
Extensions of Credit and (ii) HMTF, GSC and their respective Affiliates
shall be deemed not to have any outstanding Term Loans. For the purposes
of this definition, any Lender's Assumed Letter of Credit Commitment shall
be deemed to constitute a Term Loan.
"Required Senior Lenders": as defined in the Intercreditor
Agreement.
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents
of such Person, and any law (including laws enacted after the date hereof
as and when enacted), treaty, statute, rule, regulation, common law or
determination of an arbitrator or a court or other Governmental Authority
and all official directives, consents, approvals, authorizations,
guidelines, restrictions and policies of any Governmental Authority, in
each case applicable to or binding upon such Person or any of its property
or to which such Person or any of its property is subject.
"Responsible Officer": as to any Person, the chief executive
officer, the president, the chief financial officer, managing or other
director, any vice president, secretary, any assistant secretary,
treasurer or any assistant treasurer of such Person.
"Restricted Payments": as defined in subsection 11.7.
"Revolving Credit Commitment": as to any Revolving Credit Lender,
its obligation to make Revolving Credit Loans pursuant to subsection 2.1
and to participate in Revolving Letters of Credit in an aggregate amount
not to exceed at any one time outstanding the amount set forth opposite
such Revolving Credit Lender's name in Schedule 1.1A under the heading
"Revolving
19
Credit Commitment", as such amount may be reduced from time to time as
provided herein; collectively, as to all the Revolving Credit Lenders, the
"Revolving Credit Commitments."
"Revolving Credit Commitment Percentage": as to any Revolving Credit
Lender, the percentage of the aggregate Revolving Credit Commitments
constituted by its Revolving Credit Commitment.
"Revolving Credit Commitment Period": the period from and including
the Closing Date to, but not including, the Scheduled Revolving Credit
Commitment Termination Date or such earlier date on which the Revolving
Credit Commitments are terminated (whether pursuant to Section 12 or
otherwise).
"Revolving Credit Lender": any Lender having a Revolving Credit
Commitment or that holds outstanding Revolving Credit Loans or
Participating Interests in Revolving Letters of Credit hereunder.
"Revolving Credit Loans": Loans made by any Revolving Credit Lender
to the Borrower pursuant to subsection 2.1.
"Revolving Credit Notes": the collective reference to any promissory
note evidencing Revolving Credit Loans.
"Revolving Extensions of Credit": as to any Revolving Credit Lender
at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Credit Loans held by such Lender then outstanding
and (b) such Lender's Revolving Credit Commitment Percentage of the
Revolving Letter of Credit Obligations then outstanding.
"Revolving Letter of Credit Commitment": (a) as to the Issuing
Lender, its obligation to issue Revolving Letters of Credit for the
account of the Borrower in an aggregate amount not to exceed $15,000,000
and (b) as to any Revolving Credit Lender, its unconditional obligation to
participate in such Revolving Letters of Credit.
"Revolving Letter of Credit Obligations": the obligation of the
Borrower to reimburse the Issuing Lender in accordance with the terms of
this Agreement and any related Letter of Credit Application for any
payment made or honored by the Issuing Lender under any Revolving Letter
of Credit.
"Revolving Letter of Credit Outstandings": at any date, the sum of
(a) the aggregate amount then available to be drawn under all outstanding
Revolving Letters of Credit and (b) the aggregate amount of drawings or
payments under Revolving Letters of Credit which have not then been
reimbursed pursuant to subsection 2.8.
"Revolving Letters of Credit": all Letters of Credit other than
Assumed Letters of Credit.
"Scheduled Revolving Credit Commitment Termination Date": January
31, 2008 or, if such date is not a Business Day, the Business Day next
preceding such date.
"Second Priority Obligations": as defined in the Intercreditor
Agreement.
"Secured Claim": as defined in the Reorganization Plan.
20
"Secured Parties": the collective reference to the Agents and the
Lenders.
"Senior Agent": as defined in the Intercreditor Agreement.
"Senior Convertible Preferred Stock": the senior convertible
preferred stock issued by Holdings pursuant to the Reorganization Plan.
"Senior Lenders": as defined in the Intercreditor Agreement.
"Senior Subordinated Indebtedness": the $500,000,000 in aggregate
principal amount of the 9 3/4% Senior Subordinated Notes of the Borrower
due 2007 and any other unsecured subordinated Indebtedness of Holdings or
the Borrower; provided such other indebtedness has (i) no maturity,
amortization, mandatory redemption or purchase option (other than with
asset sale proceeds, subject to the provisions of this Agreement, or
following a change of control) or sinking fund payment prior to October 1,
2009, (ii) no financial maintenance covenants and (iii) such other terms
and conditions (including without limitation, interest rate, events of
default, subordination and covenants) as shall be reasonably satisfactory
to the Administrative Agent.
"Shareholders Agreement": means the Stockholders Agreement dated as
of January __, 2003, among Holdings and the stockholders of Holdings
signatory thereto on the date thereof or thereafter becoming signatory
thereto (as the same may be amended, modified or supplemented from time to
time).
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvent" and "Solvency": with respect to any Person on a particular
date, that on such date, (a) the fair value of the property of such Person
is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair
saleable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond
such Person's ability to pay as such debts and liabilities mature, and (d)
such Person is not engaged in business or a transaction, and is not about
to engage in business or a transaction, for which such Person's property
would constitute an unreasonably small capital.
"Specified Indebtedness": the Indebtedness described on Schedule
1.1C.
"Standby L/C": an irrevocable letter of credit issued by the Issuing
Lender for the account of the Borrower in respect of obligations of the
Borrower or any Subsidiary incurred pursuant to contracts made or
performances undertaken or to be undertaken or like matters relating to
contracts to which the Borrower or such Subsidiary is or proposes to
become a party, including, without limiting the foregoing, for insurance
purposes.
"Standby L/C Application": a standby letter of credit application in
the Issuing Lender's then customary form.
"Subsidiary": as to any Person, any other Person of which shares of
stock or other ownership interests having ordinary voting power (other
than stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the board
of directors or other managers of such other Person are at the time owned,
or the
21
management of which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by such Person. "Subsidiary"
shall not include certain Foreign Subsidiaries in receivership or similar
proceedings that have been previously identified by the Borrower to the
Administrative Agent. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"Supply Agreement": the Supply Agreement dated November 26, 1996
between Lucent Technologies Inc. and VTC, as amended, supplemented or
otherwise modified from time to time.
"Term Loan Lenders": the collective reference to the Tranche A Term
Loan Lenders and the Tranche B Term Loan Lenders.
"Term Loans": the collective reference to the Tranche A Term Loans
and the Tranche B Term Loans.
"Term Notes": the collective reference to any promissory note
evidencing Term Loans.
"Title Insurance Company": as defined in Section 10.17(b).
"Total Credit Percentage": as to any Lender at any time, the
percentage (calculated without duplication) of the aggregate Revolving
Credit Commitments, Assumed Letter of Credit Commitments and outstanding
Term Loans then constituted by its Revolving Credit Commitment, its
Assumed Letter of Credit Commitment and its outstanding Term Loans (or, if
the Revolving Credit Commitments have terminated or expired, the
percentage of the aggregate Revolving Extensions of Credit then
constituted by its outstanding Revolving Extensions of Credit).
"Trade L/C": a commercial documentary letter of credit issued by the
Issuing Lender pursuant to subsection 2.5, for the account of the Borrower
for the purchase of goods in the ordinary course of business.
"Trade L/C Application": a commercial letter of credit application
in the Issuing Lender's then customary form.
"Tranche": the reference to Eurodollar Loans the Interest Periods
with respect to all of which begin on the same date and end on the same
later date (whether or not such Loans shall originally have been made on
the same day).
"Tranche A Term Loan Commitment": as to any Tranche A Term Loan
Lender, its obligation to maintain Tranche A Term Loans to the Borrower
pursuant to subsection 3.1 in an aggregate amount not to exceed the amount
set forth opposite such Tranche A Term Loan Lender's name in Schedule 1.1A
under the heading "Tranche A Term Loan Commitment"; collectively, as to
all Tranche A Term Loan Lenders, the "Tranche A Term Loan Commitments".
"Tranche A Term Loan Lender": any Lender having a Tranche A Term
Loan Commitment hereunder or a Tranche A Term Loan outstanding hereunder.
"Tranche A Term Loans": as defined in subsection 3.1.
22
"Tranche B Termination Date": the scheduled date of the final
installment of the Tranche B Term Loans.
"Tranche B Term Loan Commitment": as to any Tranche B Term Loan
Lender, its obligation to maintain Tranche B Term Loans to the Borrower
pursuant to subsection 4.1 in an aggregate amount not to exceed the amount
set forth opposite such Tranche B Term Loan Lender's name in Schedule 1.1A
under the heading "Tranche B Term Loan Commitment"; collectively, as to
all Tranche B Term Loan Lenders, the "Tranche B Term Loan Commitments".
"Tranche B Term Loan Lender": any Lender having a Tranche B Term
Loan Commitment hereunder or a Tranche B Term Loan outstanding hereunder.
"Tranche B Term Loans": as defined in subsection 4.1.
"Transferee": as defined in subsection 15.6(d).
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, and any revisions thereof or successors (in whole or in part)
thereto.
"U.S. Lender": any Lender, the Issuing Lender (if applicable), any
Participant or any Agent that is a United States person as defined in
Section 7701(a)(30) of the Code.
"U.S. Tax Compliance Certificate": as defined in subsection
7.7(b)(ii).
"Virginia Property": the Mortgaged Property located in Henrico
County, Virginia.
"VTC": Viasystems Technologies Corp., L.L.C. (formerly known as
Viasystems Technologies Corp.), a Delaware limited liability company.
"Wholly Owned Subsidiary": as to any Person, any Subsidiary of which
such Person owns, directly or indirectly, all of the Capital Stock of such
Subsidiary other than directors' qualifying shares or any shares held by
nominees.
1.2. Other Definitional Provisions. (a) Unless otherwise specified
therein or unless the context otherwise requires, all terms defined in this
Agreement shall have the defined meanings when used in any Note or any
certificate or other document made or delivered pursuant hereto.
(b) As used herein and in any Note, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to
Holdings and its Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
23
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. TERMS OF REVOLVING CREDIT COMMITMENTS
2.1. Revolving Credit Commitments; Assumed Letter of Credit
Commitments. (a) Subject to the terms and conditions hereof, each Revolving
Credit Lender severally agrees to make Revolving Credit Loans to the Borrower in
Dollars from time to time during the Revolving Credit Commitment Period in an
aggregate principal amount at any one time outstanding which, when added to such
Lender's Revolving Credit Commitment Percentage of the Revolving Letter of
Credit Outstandings and such Lender's Revolving Credit Commitment Percentage of
the Hedge Agreement Liabilities, does not exceed the amount of such Lender's
Revolving Credit Commitment then in effect. During the Revolving Credit
Commitment Period, the Borrower may use the Revolving Credit Commitments by
borrowing, prepaying the Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. The
Revolving Credit Loans may from time to time be of any available Type, as
determined by the Borrower and notified to the Administrative Agent in
accordance herewith.
(a) The principal amount of each Revolving Credit Loan shall be due
and payable on the Scheduled Revolving Credit Commitment Termination Date or on
such earlier date as provided herein.
2.2. Termination or Reduction of Revolving Credit Commitments. (a)
So long as no Term Loans remain outstanding, the Borrower shall have the right,
upon not less than five (5) Business Days' notice to the Administrative Agent,
to terminate the Revolving Credit Commitments or, from time to time, reduce the
unutilized portion of the amount of the Revolving Credit Commitments, provided
that any such termination of the Revolving Credit Commitments shall be
accompanied by prepayment (or payment of cash collateral in the case of
Revolving Letters of Credit) in full of the Revolving Credit Loans and Revolving
Letter of Credit Obligations then outstanding, together with accrued interest
thereon to the date of such prepayment, cancellation of all Revolving Letters of
Credit and payment of any unpaid commitment fees then accrued hereunder. Any
such reduction shall be in a minimum amount of $500,000 and integral multiples
of $100,000 in excess thereof, and shall reduce permanently the amount of the
Revolving Credit Commitments then in effect. Upon termination of the Revolving
Credit Commitments, any Revolving Letter of Credit then outstanding which has
been fully cash collateralized shall no longer be considered a "Revolving Letter
of Credit" as defined in subsection 1.1, and any participating interest
theretofore granted by the Issuing Lender to the Revolving Credit Lenders in
such Letter of Credit shall be deemed terminated but the letter of credit
commissions fees payable pursuant hereto shall continue to accrue to the Issuing
Lender with respect to such Letter of Credit until the expiry thereof.
(a) In the case of any reduction of the Revolving Credit Commitments
hereunder, to the extent, if any, that the sum of the Revolving Credit Loans,
the Revolving Letter of Credit Outstandings and the Hedge Agreement Liabilities
exceeds the aggregate Revolving Credit Commitments as so reduced, the Borrower
shall make a prepayment equal to such excess amount, the proceeds of which shall
be applied first, to payment of the Revolving Credit Loans, then outstanding,
second, to payment of any applicable Revolving Letter of Credit Obligations then
outstanding and last, to cash collateralize any outstanding Revolving Letter of
Credit on terms reasonably satisfactory to the Administrative Agent.
(b) Any Revolving Credit Commitments once terminated or reduced may
not be reinstated.
24
2.3. Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice by 12:00 noon, New York City time, three
Business Days (in the case of a Eurodollar Rate borrowing) or one Business Day
(in the case of a Base Rate borrowing) prior to the requested Borrowing Date,
specifying (i) the amount to be borrowed, (ii) the requested Borrowing Date,
(iii) the Type or Types of Loan, and (iv) if the borrowing is to be entirely or
partly of Eurodollar Loans, the respective amounts of each such Type of Loan and
the respective lengths of the initial Interest Periods therefor. Each borrowing
under the Revolving Credit Commitments shall be in a minimum amount equal to (A)
in the case of Base Rate Loans, $500,000 (or, if the then Available Revolving
Credit Commitments are less than $500,000, such lesser amount) and (B) in the
case of Eurodollar Loans, $1,000,000. Upon receipt of any such notice from the
Borrower, the Administrative Agent shall promptly notify each Revolving Credit
Lender thereof. Each Revolving Credit Lender will make the amount of its pro
rata share of each borrowing available to the Administrative Agent for the
account of the Borrower at the office of the Administrative Agent specified in
subsection 15.2 prior to 11:00 a.m., New York City time, on the Borrowing Date
requested by the Borrower in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent crediting the account of the Borrower on the books of such
office with the aggregate of the amounts made available to the Administrative
Agent by the Revolving Credit Lenders and in like funds as received by the
Administrative Agent.
2.4. Commitment Fee; Administrative Agent Fees; Maturity Date(a) .
The Borrower agrees to pay to the Administrative Agent for the account of each
Revolving Credit Lender a commitment fee for the period from and including the
first day of the Revolving Credit Commitment Period to the last day of the
Revolving Credit Commitment Period, computed at a rate per annum equal to the
Applicable Margin for Commitment Fees on the average daily Available Revolving
Credit Commitment of such Revolving Credit Lender during the period for which
payment is made, payable quarterly in arrears on the last day of each of March,
June, September, and December and on the Scheduled Revolving Credit Commitment
Termination Date.
(b) The Borrower shall pay to JPMCB the amounts payable by it set
forth in the Fee Letter dated August 30, 2002 in the amounts and on the dates
set forth therein.
2.5. Letters of Credit.
(a) The Borrower acknowledges and confirms that the Issuing Lender
has issued, and that there are outstanding, certain letters of credit under the
DIP Credit Agreement (the "DIP Letters of Credit") and certain letters of credit
under the Pre-Petition Credit Agreement (the "Assumed Letters of Credit";
together with the DIP Letters of Credit, the "Existing Letters of Credit"), in
each case as described on Schedule 2.5(a). The Borrower hereby represents,
warrants, agrees, covenants and reaffirms that (i) it has no (and it permanently
and irrevocably waives, and releases the Issuing Lender and the Lenders from
any, to the extent arising on or prior to the Closing Date) defense, setoff,
claim or counterclaim against the Issuing Lender or any Lender in regard to any
obligation in respect of the Existing Letters of Credit and (ii) reaffirms its
obligations in respect of the Existing Letters of Credit in accordance with the
terms and provisions of this Agreement and the other Loan Documents. Subject to
the terms and conditions hereof, the Issuing Lender, in reliance on the
agreements of the other Revolving Credit Lenders set forth in subsection 2.7,
agrees to issue other letters of credit (together with the Existing Letters of
Credit, the "Letters of Credit") for the account of the Borrower on any Business
Day during the Revolving Credit Commitment Period in such form as may be
approved from time to time by the Issuing Lender; provided, that, the Issuing
Lender shall not issue any Revolving Letter of Credit if, after giving effect to
such issuance, (i) the Revolving Letter of Credit Outstandings would exceed the
Revolving Letter of Credit Commitment or (ii) the sum of the Revolving
Extensions of Credit and the Hedge
25
Agreement Liabilities would exceed the Revolving Credit Commitments. Each
Revolving Letter of Credit shall (i) be (x) a Standby L/C or (y) a Trade L/C,
and (ii) expire or mature no later than five (5) Business Days prior to the
Scheduled Revolving Credit Commitment Termination Date. No Letter of Credit
shall have an expiry or maturity date more than one year after its date of
issuance or creation; provided, that, any Letter of Credit may provide for the
renewal thereof for additional periods not to exceed one (1) year (which shall
in no event extend beyond the Scheduled Revolving Credit Commitment Termination
Date or (in the case of Assumed Letters of Credit) the Tranche B Termination
Date, as the case may be); provided, further, that in no case shall any Letter
of Credit have an expiry or maturity date later than five (5) Business Days
prior to the Scheduled Revolving Credit Commitment Termination Date or (in the
case of Assumed Letters of Credit) the Tranche B Termination Date, as the case
may be. Each Letter of Credit shall be denominated in Dollars, provided that
certain Assumed Letters of Credit may be denominated in pounds sterling as
indicated on Schedule 2.5(a). Each Letter of Credit shall be subject to such
laws and agreements as the Issuing Lender may agree. The Issuing Lender shall
not at any time be obligated to issue any Letter of Credit hereunder if such
issuance would conflict with, or cause the Issuing Lender or any Lender to
exceed any limits imposed by, any applicable Requirement of Law.
(b) The Borrower may from time to time request that the Issuing
Lender issue a Revolving Letter of Credit for the account of the Borrower by
delivering to the Issuing Lender and the Administrative Agent at their
respective address for notices specified herein, a Trade L/C Application or a
Standby L/C Application, completed to the satisfaction of the Issuing Lender,
and such other certificates, documents and other papers and information as may
be customary for letters of credit of the kind being requested and as the
Issuing Lender may reasonably request. Upon receipt of any Letter of Credit
Application and other appropriate documentation, the Issuing Lender will process
such documents, certificates and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and, upon
receipt by the Issuing Lender of confirmation from the Administrative Agent that
issuance of such Revolving Letter of Credit will not contravene this Agreement,
the Issuing Lender shall promptly issue the Revolving Letter of Credit requested
thereby (but in no event shall the Issuing Lender be required to issue any
Revolving Letter of Credit earlier than three (3) Business Days after its
receipt of the appropriate documentation therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Revolving Letter of Credit to the beneficiary
thereof or as otherwise may be agreed by the Issuing Lender and the Borrower.
The Issuing Lender shall furnish a copy of such Revolving Letter of Credit to
the Borrower and the Administrative Agent promptly following the issuance
thereof.
2.6. Fees, Commissions and Other Charges. (a) The Borrower shall pay
to the Administrative Agent, for the account of the Issuing Lender and the
relevant Participating Lenders, a letter of credit commission with respect to
each Letter of Credit, in an amount equal to 1/8 of 1% plus the Applicable
Margin applicable to Revolving Credit Loans or (in the case of Assumed Letters
of Credit) Tranche B Term Loans, as the case may be, bearing interest at the
Eurodollar Rate of the average daily face amount of such Letter of Credit,
payable quarterly in arrears on the last day of each of March, June, September
and December and on the last day of the Revolving Credit Commitment Period or
the date on which all Assumed Letters of Credit cease to be outstanding, as the
case may be. A portion of such commission equal to 1/8 of 1% of the average
daily face amount of such Letter of Credit shall be payable to the Issuing
Lender for its own account, and the remaining portion of such commission shall
be payable to the relevant Participating Lenders to be shared ratably among them
in accordance with their respective Revolving Credit Commitment Percentages or
Assumed Letter of Credit Percentages, as the case may be. Such commission shall
be nonrefundable.
(a) In addition to the foregoing commissions, the Borrower shall pay
or reimburse the Issuing Lender for such normal and customary costs and expenses
as are incurred or charged by the
26
Issuing Lender in issuing, effecting payment under, amending or otherwise
administering any Letter of Credit.
(b) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Issuing Lender and the relevant Participating Lenders
all fees and commissions received by the Administrative Agent for their
respective accounts pursuant to this subsection.
2.7. Letter of Credit Participations. (a) Effective on the Closing
Date (in the case of the Existing Letters of Credit) or the date of issuance (in
the case of any other Letter of Credit), the Issuing Lender irrevocably agrees
to grant and hereby grants to each relevant Participating Lender, and each
relevant Participating Lender irrevocably agrees to accept and purchase and
hereby accepts and purchases from the Issuing Lender, on the terms and
conditions hereinafter stated, for such Participating Lender's own account and
risk an undivided interest equal to its Revolving Credit Commitment Percentage
or Assumed Letter of Credit Percentage, as the case may be, in the Issuing
Lender's obligations and rights under each Letter of Credit and the amount of
each draft paid by the Issuing Lender thereunder. Each relevant Participating
Lender unconditionally and irrevocably agrees with the Issuing Lender that, if a
draft is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such Participating Lender shall pay to the Administrative Agent, for
the account of the Issuing Lender, upon demand at the Administrative Agent's
address specified in subsection 15.2, an amount equal to its Revolving Credit
Commitment Percentage or Assumed Letter of Credit Percentage, as the case may
be, of the amount of such draft, or any part thereof, which is not so
reimbursed. In the event that such draft is denominated in a currency other than
Dollars, such funding obligation shall be denominated in Dollars based on the
Equivalent Amount of the relevant drawing. On the date that any Assignee becomes
a Revolving Credit Lender or Assumed Letter of Credit Lender party to this
Agreement in accordance with subsection 15.6, participating interests in any
relevant outstanding Letters of Credit held by the transferor Lender from which
such Assignee acquired its interest hereunder shall be proportionately
reallotted between such Assignee and such transferor Lender. Each Participating
Lender hereby agrees that its obligation to participate in each relevant Letter
of Credit, and to pay or to reimburse the Issuing Lender for its participating
share of the drafts drawn or amounts otherwise paid thereunder, is absolute,
irrevocable and unconditional and shall not be affected by any circumstances
whatsoever (including, without limitation, the occurrence or continuance of any
Default or Event of Default), and that each such payment shall be made without
offset, abatement, withholding or other reduction whatsoever.
(a) If any amount required to be paid by any Participating Lender to
the Issuing Lender pursuant to subsection 2.7(a) in respect of any unreimbursed
portion of any draft paid by the Issuing Lender under any Letter of Credit is
paid to the Issuing Lender after the date such payment is due, such
Participating Lender shall pay to the Administrative Agent, for the account of
the Issuing Lender, on demand, an amount equal to the product of such amount,
times the daily average Base Rate during the period from and including the date
such payment is required to the date on which such payment is immediately
available to the Issuing Lender, times a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
365 or 366, as applicable. A certificate of the Issuing Lender submitted to any
Participating Lender with respect to any amounts owing under this subsection
shall be conclusive in the absence of manifest error.
(b) Whenever, at any time after the Issuing Lender has paid a draft
under any Revolving Letter of Credit and has received from any Revolving Credit
Lender its pro rata share of such payment in accordance with subsection 2.7(a),
the Issuing Lender receives any reimbursement on account of such unreimbursed
portion, or any payment of interest on account thereof, the Issuing Lender will
pay to the Administrative Agent, for the account of such Revolving Credit
Lender, its pro rata share thereof; provided, however, that in the event that
any such payment received by the Issuing Lender shall be
27
required to be returned by the Issuing Lender, such Revolving Credit Lender
shall return to the Administrative Agent for the account of the Issuing Lender,
the portion thereof previously distributed to it.
2.8. Reimbursement Obligation of the Borrower. (a) The Borrower
agrees to reimburse the Issuing Lender on each date on which the Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any
Revolving Letter of Credit and paid by the Issuing Lender for the amount of (i)
such draft so paid and (ii) any taxes, fees, charges or other costs or expenses
incurred by the Issuing Lender in connection with such payment.
(b) The Tranche B Term Loan of each Tranche B Term Loan Lender shall
automatically be deemed to be increased by any participating interest funded by
such Lender in respect of any Assumed Letter of Credit pursuant to subsection
2.7(a), provided, that, if such participating interest is not funded by such
Lender within five Business Days after demand therefor, the Borrower agrees to
reimburse the Issuing Lender on each date on which the Issuing Lender notifies
the Borrower of such failure for the amount that such Lender has failed to fund.
In addition, the Borrower shall reimburse the Issuing Lender on demand for any
taxes, fees, charges or other costs or expenses incurred by the Issuing Lender
in connection with any payment of a draft in respect of any Assumed Letter of
Credit. The amount of any Lender's Assumed Letter of Credit Commitment will
automatically be permanently reduced by the amount of any increase in such
Lender's Tranche B Term Loan pursuant to this subsection 2.8(b). Each such
increase shall initially be in the form of a Base Rate Loan and may be converted
into a Eurodollar Loan at such times and in such amounts as may be agreed to by
the Administrative Agent and the Borrower.
(c) Each payment pursuant to this subsection 2.8 shall be made to
the Issuing Lender at its address for notices specified herein in Dollars and in
immediately available funds. Interest shall be payable on any and all amounts
remaining unpaid by the Borrower under this subsection 2.8 from the date such
amounts become payable until payment in full, at the rate which would be payable
on Revolving Credit Loans or (in the case of Assumed Letters of Credit) Tranche
B Term Loans, as the case may be, which are Base Rate Loans.
2.9. Commitment Increases. (a) At any time after the Closing Date,
provided that no Default or Event of Default shall have occurred and be
continuing, the Borrower may request an increase of the aggregate Revolving
Credit Commitments by notice to the Administrative Agent in writing of the
amount (the "Offered Increase Amount") of such proposed increase (such notice, a
"Commitment Increase Notice"). Any such Commitment Increase Notice must offer
each Revolving Credit Lender the opportunity to subscribe for its pro rata share
of the increased Revolving Credit Commitments; provided, that the Borrower may,
without offering to each Revolving Credit Lender the opportunity to subscribe
for its pro rata share of the increased Revolving Credit Commitments, offer to
(x) any Person that is not a Revolving Credit Lender that is acceptable to the
Administrative Agent or (y) to an affiliate of HMTF or GSC the opportunity to
provide a new Revolving Credit Commitment pursuant to paragraph (b) below. If
any portion of the increased Revolving Credit Commitments offered to the
Revolving Credit Lenders as contemplated in the immediately preceding sentence
is not subscribed for by the Revolving Credit Lenders, the Borrower may offer to
any one or more additional Persons that are acceptable to the Administrative
Agent or to an affiliate of HMTF or GSC the opportunity to provide all or a
portion of such unsubscribed portion of the increased Revolving Credit
Commitments pursuant to paragraph (b) below.
(b) Any Person that the Borrower selects to offer the opportunity to
provide any portion of the increased Revolving Credit Commitments, and that
accepts such offer, shall execute a New Lender Supplement with the Borrower and
the Administrative Agent, substantially in the form of Exhibit G (a
28
"New Lender Supplement"), whereupon such Person (a "New Lender") shall become a
Lender for all purposes and to the same extent as if originally a party hereto
and shall be bound by and entitled to the benefits of this Agreement, and
Schedule 1.1A shall be deemed to be amended to add the name and Revolving Credit
Commitment of such New Lender.
(c) Any Lender that accepts an offer to it by the Borrower to
increase its Commitment pursuant to this subsection 2.9 shall, in each case,
execute a Commitment Increase Supplement with the Borrower and the
Administrative Agent, substantially in the form of Exhibit H (a "Commitment
Increase Supplement"), whereupon such Lender (an "Increasing Lender") shall be
bound by and entitled to the benefits of this Agreement with respect to the full
amount of its Revolving Credit Commitment as so increased, and Schedule 1.1A
shall be deemed to be amended to so increase the Revolving Credit Commitment of
such Lender.
(d) The effectiveness of any New Lender Supplement or Commitment
Increase Supplement shall be contingent upon receipt by the Administrative Agent
of such corporate resolutions of the Borrower and legal opinions of counsel to
the Borrower as the Administrative Agent shall reasonably request with respect
thereto.
(e) (i) Except as otherwise provided in subparagraphs (ii) and (iii)
of this paragraph (e), if any Person becomes a New Lender pursuant to subsection
2.9(b) or any Lender's Revolving Credit Commitment is increased pursuant to
subsection 2.9(c), additional Revolving Credit Loans made on or after the date
of the effectiveness thereof (the "Re-Allocation Date") shall be made in
accordance with the pro rata provisions of subsection 7.4(a) based on the
Revolving Credit Commitments in effect on and after such Re-Allocation Date
(except to the extent that any such pro rata borrowings would result in any
Lender making an aggregate principal amount of Revolving Credit Loans in excess
of its Revolving Credit Commitment, in which case such excess amount will be
allocated to, and made by, the relevant New Lenders and Increasing Lenders to
the extent of, and in accordance with the pro rata provisions of subsection
7.4(a) based on, their respective Revolving Credit Commitments). On each
Re-Allocation Date, the Administrative Agent shall deliver a notice to each
Lender setting forth the adjusted Revolving Credit Commitment Percentages after
giving effect to any increase in the aggregate Revolving Credit Commitments made
pursuant to this subsection 2.9 on such Re-Allocation Date.
(ii) In the event that on any such Re-Allocation Date there is an
unpaid principal amount of Base Rate Loans, the Borrower shall make prepayments
thereof and the Borrower shall make borrowings of Base Rate Loans and/or
Eurodollar Loans, as the Borrower shall determine, so that, after giving effect
thereto, the Base Rate Loans and Eurodollar Loans outstanding are held as nearly
as may be in accordance with the pro rata provisions of subsection 7.4(a) based
on such new Revolving Credit Commitment Percentages.
(iii) In the event that on any such Re-Allocation Date there is an
unpaid principal amount of Eurodollar Loans, such Eurodollar Loans shall remain
outstanding with the respective holders thereof until the expiration of their
respective Interest Periods (unless the Borrower elects to prepay any thereof in
accordance with the applicable provisions of this Agreement), and on the last
day of the respective Interest Periods the Borrower shall make prepayments
thereof and the Borrower shall make borrowings of Base Rate Loans and/or
Eurodollar Loans so that, after giving effect thereto, the Base Rate Loans and
Eurodollar Loans outstanding are held as nearly as may be in accordance with the
pro rata provisions of subsection 7.4(a) based on such new Revolving Credit
Commitment Percentages.
(f) Notwithstanding anything to the contrary in this subsection 2.9,
(i) in no event shall any transaction effected pursuant to this subsection 2.9
cause the aggregate Revolving Credit Commitments to exceed $61,850,000 less the
amount of the Net Cash Proceeds from the sale of the
29
Borrower's facility in Richmond, Virginia and (ii) no Lender shall have any
obligation to increase its Revolving Credit Commitment unless it agrees to do so
in its sole discretion.
SECTION 3. TERMS OF TRANCHE A TERM LOAN COMMITMENT
3.1. Tranche A Term Loans. In order to give effect to the
Reorganization Plan and provide for the repayment, in part, of the Pre-Petition
Lender Secured Claims as contemplated thereby, the Borrower shall be deemed to
have requested term loans ("Tranche A Term Loans") in the full amount of the
Tranche A Term Loan Commitments and each Tranche A Term Loan Lender shall be
deemed to have made a Tranche A Term Loan in the amount of its Tranche A Term
Loan Commitment, without any actual funding, on the Closing Date. The Tranche A
Term Loans deemed made on the Closing Date shall initially be Base Rate Loans.
3.2. Amortization of Tranche A Term Loans. The Tranche A Term Loans
shall be payable in thirteen (13) consecutive quarterly installments on the
dates and in principal amount equal to the amount set forth below (together with
all accrued interest thereon) opposite the applicable installment date.
Installment Amount
----------- ------
March 31, 2003 $ 7,250,000
June 30, 2003 $ 250,000
September 30, 2003 $ 7,250,000
December 31, 2003 $ 250,000
March 31, 2004 $ 9,750,000
June 30, 2004 $ 250,000
September 30, 2004 $ 9,750,000
December 31, 2004 $ 250,000
March 31, 2005 $14,750,000
June 30, 2005 $ 250,000
September 30, 2005 $14,750,000
December 31, 2005 $ 250,000
March 31, 2006 $ 4,433,365
SECTION 4. TERMS OF TRANCHE B TERM LOAN COMMITMENT
4.1. Tranche B Term Loans. In order to give effect to the
Reorganization Plan and provide for the repayment, in part, of the Pre-Petition
Lender Secured Claims as contemplated thereby, the Borrower shall be deemed to
have requested term loans ("Tranche B Term Loans") in the full amount of the
Tranche B Term Loan Commitments and each Tranche B Term Loan Lender shall be
deemed to have made a Tranche B Term Loan in the amount of its Tranche B Term
Loan Commitment, without any actual funding, on the Closing Date. The Tranche B
Term Loans deemed made on the Closing Date shall initially be Base Rate Loans.
4.2. Amortization of Tranche B Term Loans. The Tranche B Term Loans
shall be payable in twenty-three (23) consecutive quarterly installments on the
dates and in principal amount equal to the amount set forth below (together with
all accrued interest thereon) opposite the applicable installment date.
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Installment Amount
----------- ------
March 31, 2003 $ 250,000
June 30, 2003 $ 250,000
September 30, 2003 $ 250,000
December 31, 2003 $ 250,000
March 31, 2004 $ 250,000
June 30, 2004 $ 250,000
September 30, 2004 $ 250,000
December 31, 2004 $ 250,000
March 31, 2005 $ 250,000
June 30, 2005 $ 250,000
September 30, 2005 $ 250,000
December 31, 2005 $ 250,000
March 31, 2006 $ 10,750,000
June 30, 2006 $ 250,000
September 30, 2006 $ 15,250,000
December 31, 2006 $ 250,000
March 31, 2007 $ 15,250,000
June 30, 2007 $ 250,000
September 30, 2007 $ 15,250,000
December 31, 2007 $ 250,000
March 31, 2008 $ 17,750,000
June 30, 2008 $ 250,000
September 30, 2008 $299,967,819
Any increase in any Tranche B Term Loan Lender's Tranche B Term Loan pursuant to
subsection 2.8(b) shall increase the amount of the final installment thereof.
SECTION 5. REPAYMENT, CONTINUATIONS AND CONVERSIONS
5.1. Repayment of Loans. The Borrower hereby unconditionally
promises to pay to the Administrative Agent, for the account of: (i) each
Revolving Credit Lender, the then unpaid principal amount of each Revolving
Credit Loan of such Lender, on the Scheduled Revolving Credit Commitment
Termination Date (or such earlier date on which the applicable Revolving Credit
Loans become due and payable pursuant to Section 12) and (ii) each Tranche A
Term Loan Lender or Tranche B Term Loan Lender, such Lender's Ratable Portion of
the amounts specified in subsection 3.2 or 4.2 (or, if less, the aggregate
amount of the Tranche A Term Loan or Tranche B Term Loan of such Lender as
applicable then outstanding), on the dates specified in subsection 3.2 or 4.2
(or such earlier date on which such Loans become due and payable pursuant to
Section 12). The Borrower hereby further agrees to pay interest on the unpaid
principal amount of its Loans from time to time outstanding from the date hereof
until payment in full thereof at the rates per annum, and on the dates, set
forth in subsection 7.1.
(a) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(b) The Administrative Agent shall maintain the Register pursuant to
subsection 15.6(c), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, the Type thereof and each
Interest Period, if any, applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender
31
hereunder and (iii) both the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share thereof.
(c) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 5.1(c) shall, to the extent permitted by
applicable law and absent manifest error, be prima facie evidence of the
existence and amounts of the obligations of the Borrower therein recorded;
provided, however, that the failure of any Lender or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of the Borrower to repay (with applicable
interest) the Loans owing to such Lender in accordance with the terms of this
Agreement.
(d) The Borrower agrees that, upon request to the Administrative
Agent by any applicable Lender, the Borrower will execute and deliver to such
Lender a promissory note of the Borrower evidencing the Loans of such Lender to
the Borrower.
5.2. Optional Prepayments. (a) The Borrower may, at any time and
from time to time, prepay the Loans, in whole or in part, without premium or
penalty, upon at least three (3) Business Days' irrevocable notice to the
Administrative Agent, specifying the date and amount of prepayment and the Types
and classes of Loans to be prepaid. Upon receipt of any such notice the
Administrative Agent shall promptly notify each applicable Lender thereof. If
any such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with, in the case of prepayments
of the Eurodollar Loans only, accrued interest to such date on the amount
prepaid.
(a) Optional prepayments of the Term Loans shall be applied first,
to the Tranche A Term Loans and second, to the Tranche B Term Loans, in each
case to the next four installments thereof (to be applied to such installments
as directed by the Borrower), with any remainder being applied to the subsequent
installments thereof ratably in accordance with the then outstanding amounts
thereof. Amounts prepaid on account of any Term Loans may not be reborrowed.
Partial prepayments shall be in an aggregate principal amount of at least
$500,000 and integral multiples of $100,000 in excess thereof and shall include
any amounts due in respect thereof under subsection 7.8.
5.3. Mandatory Prepayments and Commitment Reductions. Subsequent to
the Closing Date, if Holdings or any of its Subsidiaries shall issue any Capital
Stock (other than Capital Stock of Holdings purchased by management in
connection with incentive plans and common stock of Holdings purchased by
Persons that are holders of common stock of Holdings as of the Closing Date and
their respective Affiliates) or incur any Indebtedness (other than any
Indebtedness permitted pursuant to subsection 11.2 (other than paragraph (n)
thereof) or 14.6), on the date of such issuance or incurrence, the Borrower
shall prepay the Term Loans, shall cash collateralize an amount of the Assumed
Letters of Credit and shall reduce the Revolving Credit Commitments in an
aggregate amount equal to 75% (in the case of Capital Stock) or 100% (in the
case of Indebtedness) of the Net Cash Proceeds thereof as set forth in paragraph
(d) of this subsection.
(a) If Holdings or any of its Subsidiaries shall consummate any
Asset Sale, on the date of consummation of such Asset Sale, the Borrower shall
prepay the Term Loans, shall cash collateralize an amount of the Assumed Letters
of Credit and shall reduce the Revolving Credit Commitments in an aggregate
amount equal to 100% of the Net Cash Proceeds thereof as set forth in paragraph
(d) of this subsection.
(b) If for any fiscal year, commencing with the fiscal year ending
December 31, 2003, there shall be Excess Cash Flow, the Borrower shall prepay
the Term Loans, shall cash collateralize an amount of the Assumed Letters of
Credit and shall reduce the Revolving Credit Commitments in an
32
amount equal to the lesser of (i) 75% of such Excess Cash Flow (or Equivalent
Amount thereof, as the case may be) and (ii) the amount of cash and Cash
Equivalents on hand at Holdings and its Subsidiaries as at December 31 of such
fiscal year in excess of $87,500,000, as set forth in paragraph (d) of this
subsection. Each such prepayment, cash collateralization and commitment
reduction shall be made on or before the date which is seven (7) Business Days
after the earlier of (A) the date on which the financial statements referred to
in subsection 10.1(a) are required to be delivered to the Lenders and (B) the
date on which said financial statements are actually delivered.
(c) Amounts to be applied in connection with prepayments and
commitment reductions pursuant to subsection 5.3 shall be applied (i) first, to
the Tranche A Term Loans, to the installments thereof ratably in accordance with
the then outstanding amounts thereof, (ii) second, to the Tranche B Term Loans,
to the installments thereof ratably in accordance with the then outstanding
amounts thereof, (iii) third, to cash collateralize the Assumed Letters of
Credit, (iv) fourth, to the permanent reduction of the Revolving Credit
Commitments and (v) subject to clauses (i) through (iv), first to Base Rate
Loans and second, pro rata, to Eurodollar Loans.
(d) If at any time Holdings or any Subsidiary shall receive any cash
proceeds of any casualty or condemnation in excess of the Equivalent Amount of
$10,000,000 pursuant to subsection 11.6(c), such proceeds shall be deposited
with the Collateral Agent who shall hold such proceeds in a cash collateral
account reasonably satisfactory to it. From time to time upon request, the
Collateral Agent will release such proceeds to Holdings or such Subsidiary, as
necessary, to pay for replacement or rebuilding of the assets lost or condemned
or to otherwise acquire assets useful in the business. If such proceeds are not
so applied within eighteen months (subject to reasonable extension for force
majeure or weather delays) (or such earlier date as may be necessary to
eliminate any obligation on the part of Holdings or any of its Subsidiaries to
prepay or cash collateralize Indebtedness other than Indebtedness hereunder)
following the condemnation or casualty or if the Borrower fails to notify the
Collateral Agent in writing on or before 180 days after such casualty or
condemnation that the Borrower shall commence the replacement or rebuilding of
such asset (or shall otherwise reinvest such proceeds), then, in either case,
the Collateral Agent may treat any amounts in the cash collateral account as Net
Cash Proceeds of an Asset Sale in accordance with subsection 5.3(b).
(e) The provisions of this subsection 5.3 shall not be in derogation
of any other covenant or obligation of Holdings and its Subsidiaries under the
Loan Documents and shall not be construed as a waiver of, or a consent to
departure from, any such covenant or obligation.
(f) Notwithstanding the foregoing provisions of this subsection 5.3,
if at any time the mandatory prepayment of any Term Loans pursuant to this
Agreement would result, after giving effect to the procedures set forth in this
Agreement, in the Borrower incurring costs as a result of Eurodollar Loans
("Affected Eurodollar Loans") being prepaid other than on the last day of an
Interest Period applicable thereto, which costs are required to be paid pursuant
to subsection 7.8, then, the Borrower may, in its sole discretion, initially
deposit a portion (up to 100%) of the amounts that otherwise would have been
paid in respect to the Affected Eurodollar Loans with the Collateral Agent
(which deposit must be equal in amount to the amount of the Affected Eurodollar
Loans not immediately prepaid) to be held as security for the obligations of the
Borrower to make such mandatory prepayment pursuant to a cash collateral
agreement to be entered into in form and substance reasonably satisfactory to
the Collateral Agent, with such cash collateral to be directly applied upon the
first occurrence (or occurrences) thereafter of the last day of an Interest
Period applicable to the relevant Term Loan that is a Eurodollar Loan (or such
earlier date or dates as shall be requested by the Borrower), to repay an
aggregate principal amount of such Term Loan equal to the Affected Eurodollar
Loans not initially repaid pursuant to this sentence.
33
5.4. Conversion and Continuation Options. Subject to the terms
and conditions hereof, the Borrower may elect from time to time to convert its
Base Rate Loans to Eurodollar Loans by giving the Administrative Agent at least
three (3) Business Days' prior irrevocable notice of such election. Any such
notice of conversion to Eurodollar Loans shall specify the length of the initial
Interest Period or Interest Periods therefor. Upon receipt of any such notice
the Administrative Agent shall promptly notify each affected Term Loan Lender or
Revolving Credit Lender, as the case may be, thereof. All or any part of
outstanding Base Rate Loans may be converted as provided herein, provided that
(i) no Base Rate Loan may be converted into a Eurodollar Loan when any Event of
Default has occurred and is continuing and the Administrative Agent has or the
Majority Facility Lenders under the relevant Facility have determined that such
a conversion is not appropriate and (ii) any such conversion may only be made
if, after giving effect thereto, subsection 5.5 shall not have been contravened.
(a) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued as such (i) when any Event of
Default has occurred and is continuing and the Administrative Agent has or the
Majority Facility Lenders under the relevant Facility have determined that such
a continuation is not appropriate or (ii) if, after giving effect thereto,
subsection 5.5 would be contravened and provided, further, that if (x) the
Borrower shall fail to give any required notice as described above in this
paragraph or (y) such continuation is not permitted pursuant to the preceding
proviso, such Eurodollar Loans shall be automatically continued as Eurodollar
Loans with a new Interest Period of one (1) month (or, in the case of clause (y)
above, converted to Base Rate Loans) on the last day of such then expiring
Interest Period.
(b) Subject to the terms and conditions hereof, the Borrower may
elect from time to time to convert its Eurodollar Loans to Base Rate Loans, by
giving the Administrative Agent at least two (2) Business Days' prior
irrevocable notice of such election, provided that, unless the Borrower elects
to deposit with the Administrative Agent the amount of any breakage costs and
other Eurodollar Loan related costs to be incurred by the Borrower under this
Agreement with respect to the prepayment or conversion of such Eurodollar Loan
prior to the end of an Interest Period, any such conversion of Eurodollar Loans
may only be made on the last day of an Interest Period with respect thereto.
(c) For greater certainty, the conversion of any Loan to another
Type of Loan, as provided in this subsection 5.4, shall not constitute a
repayment of amounts owing under the Loans under this Agreement nor a new
advance of funds hereunder.
5.5. Minimum Amounts of Tranches. All borrowings, conversions and
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the Loans
comprising each Eurodollar Tranche shall be in a minimum amount of $5,000,000
and so that there shall not be more than ten (10) Eurodollar Tranches at any one
time outstanding.
SECTION 6. GENERAL LETTER OF CREDIT PROVISIONS
6.1. Obligations Absolute. The Borrower's obligations under this
Agreement in respect of Letters of Credit issued for its account shall be
absolute and unconditional under any and all circumstances and irrespective of
any set-off, counterclaim or defense to payment which the Borrower or any other
Person may have or have had against the Issuing Lender or any beneficiary of a
Letter of Credit. The Borrower also agrees with the Issuing Lender that the
Issuing Lender shall not be responsible for, and the Borrower's obligations
under this Agreement in respect of Letters of Credit issued for its account
shall
34
not be affected by, among other things, the enforceability, validity or
genuineness of documents or of any endorsements thereon, even though such
documents shall in fact prove to be unenforceable, invalid, fraudulent or
forged, or any dispute between or among the Borrower and any beneficiary of any
Letter of Credit or any other party to which such Letter of Credit may be
transferred or any claims whatsoever of the Borrower against any beneficiary of
such Letter of Credit or any such transferee, except for errors or omissions
caused by the Issuing Lender's gross negligence or wilful misconduct. The
Issuing Lender shall not be liable for any error, omission, interruption or
delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions caused by the Issuing Lender's gross negligence or wilful misconduct.
The Borrower agrees that any action taken or omitted by the Issuing Lender under
or in connection with any Letter of Credit or the related drafts or documents,
if done in the absence of gross negligence or wilful misconduct and in
accordance with the standards of care specified in the Uniform Commercial Code
of the State of New York, including, without limitation, Article V thereof or
the standards of care specified in the laws of the jurisdiction of the Issuing
Lender's issuing office, as applicable, shall be binding on the Borrower and
shall not result in any liability of the Issuing Lender to the Borrower.
6.2. Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower and the Administrative Agent of the date and amount thereof. The
responsibility of the Issuing Lender to the Borrower in connection with any
draft presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with such
Letter of Credit.
6.3. Letter of Credit Applications. To the extent that any provision
of any Letter of Credit Application, including any reimbursement provision
contained therein, related to any Letter of Credit is inconsistent with the
provisions of this Agreement, the provisions of this Agreement shall prevail.
6.4. Cash Collateralization of Letters of Credit. Upon termination
of the Revolving Credit Commitments, the Revolving Letters of Credit then
existing which have been fully cash collateralized to the satisfaction of the
Issuing Lender shall no longer be considered outstanding hereunder, and any
Participating Interest heretofore granted to any Revolving Credit Lender by the
Issuing Lender shall be deemed terminated; provided that letter of credit
commissions and fees payable pursuant hereto shall continue to accrue to the
Issuing Lender with respect to the applicable Revolving Letters of Credit until
the expiry thereof.
SECTION 7. OTHER GENERAL PROVISIONS
7.1. Interest Rates and Payment Dates. Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(a) Each Base Rate Loan shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin.
(b) Upon the occurrence and during the continuance of any Event of
Default specified in subsection 12(a), the Loans and any overdue amounts
hereunder shall bear interest at a rate per annum which is (x) in the case of
the Loans, the rate that would otherwise be applicable thereto pursuant to the
foregoing provisions of this subsection plus 2% per annum or (y) in the case of
overdue
35
interest, commitment fee, or other amount, the rate described in paragraph (b)
of this subsection 7.1 plus 2% per annum.
(c) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
7.2. Computation of Interest and Fees. Interest on Loans, fees,
interest on overdue interest, and other amounts payable hereunder shall be
calculated on the basis of a 360-day year for the actual days elapsed, except
that, with respect to Base Rate Loans the rate of interest on which is
calculated on the basis of the Prime Rate, the interest thereon shall be
calculated on the basis of a 365- or 366-day year, in each case, for the actual
days elapsed. The Administrative Agent shall as soon as practicable notify the
Borrower and the Revolving Credit Lenders or the applicable Term Loan Lenders,
as the case may be, of each determination of a Eurodollar Rate. Any change in
the interest rate on a Loan resulting from a change in the Base Rate or the
Eurodollar Rate shall become effective as of the opening of business on the day
on which such change becomes effective. The Administrative Agent shall as soon
as practicable notify the Borrower and the Revolving Credit Lenders or the
applicable Term Loan Lenders, as the case may be, of the effective date and the
amount of each such change in interest rate.
(a) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the applicable Lenders and the other parties hereto
in the absence of manifest error. The Administrative Agent shall, at the request
of the Borrower, deliver to the Borrower a statement showing the quotations used
by the Administrative Agent in determining any interest rate pursuant to
subsection 7.1(a) or (b).
(b) If any provision of any Loan Document would oblige the Borrower
to make any payment of interest or other amount payable to any Lender in an
amount or calculated at a rate which would be prohibited by law or would result
in a receipt by that Lender of interest at a criminal rate (as such terms are
construed under the applicable Requirement of Law), then notwithstanding such
provision, such amount or rate shall be deemed to have been adjusted with
retroactive effect to the maximum amount or rate of interest, as the case may
be, as would not be so prohibited by law or so result in a receipt by that
Lender of interest at a criminal rate, such adjustment to be effected, to the
extent necessary, as follows:
(i) firstly, by reducing the amount or rate of interest
required to be paid to the affected Lender under subsection 7.1; and
(ii) thereafter, by reducing any fees, commissions, premiums
and other amounts required to be paid to the affected Lender which
would constitute interest for purposes of any applicable Requirement
of Law.
7.3. Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination, absent manifest error, shall be conclusive and
binding upon the Borrower) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for such Interest Period,
or
(b) the Administrative Agent shall have received notice from
holders of a majority of the Loans subject to such Interest Period
that the Eurodollar Rate determined
36
or to be determined for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (as conclusively certified
by such Lenders) of making or maintaining their affected Loans
during such Interest Period, by an amount which such Lenders deem
material, the Administrative Agent shall give telecopy or telephonic
notice thereof to the Borrower and the applicable Lenders as soon as
practicable thereafter. If such notice is given (x) any Eurodollar
Loans requested to be made on the first day of such Interest Period
shall be made as Base Rate Loans, (y) any Loans that were to have
been converted on the first day of such Interest Period to
Eurodollar Loans shall be converted to or continued as Base Rate
Loans and (z) any outstanding Eurodollar Loans shall be converted,
on the last day of the Interest Periods therefor, to Base Rate
Loans. Until such notice has been withdrawn by the Administrative
Agent (which the Administrative Agent agrees to do when the
circumstances that prompted the delivery of such notice no longer
exist), no further Eurodollar Loans shall be made or continued as
such, nor shall the Borrower have the right to convert Loans to
Eurodollar Loans.
7.4. Pro Rata Treatment and Payments. (a) Each borrowing, conversion
or continuation pursuant to subsection 5.4, of Loans by the Borrower from the
applicable Lenders and any reduction of the Commitments of the Lenders hereunder
shall be made pro rata, according to the respective principal amounts of such
Loans held by the Lenders or the respective Commitments of the Lenders, as the
case may be.
(b) Whenever (i) any payment received by the Administrative Agent
under this Agreement or any Note or (ii) any other amounts received by the
Administrative Agent for or on behalf of the Borrower (including, without
limitation, proceeds of collateral or payments under any guarantee) is
insufficient to pay in full all amounts then due and payable to the Agents and
the applicable Lenders under this Agreement and any Note and the other Loan
Documents, such payment shall be distributed by the Administrative Agent and
applied by the Administrative Agent and the applicable Lenders in the following
order: First, to the payment of fees and expenses due and payable to the Agents
under and in connection with this Agreement and the other Loan Documents;
Second, to the payment in full of all other First Priority Obligations, ratably
among the Senior Lenders in accordance with the aggregate amount of such
payments owed to such Senior Lenders; and Third, to the payment in full of all
Second Priority Obligations, ratably among the Junior Lenders in accordance with
the aggregate amount of such payments owed to such Junior Lenders.
(c) If any Lender (a "Non-Funding Lender") has (x) failed to make a
Loan or otherwise to make a payment as required to be made by it hereunder, and
the Administrative Agent has determined that such Lender is not likely to make
such Loan or payment or (y) given notice to the Borrower or the Administrative
Agent that it will not make, or that it has disaffirmed or repudiated any
obligation to make, any such Loan or payment, in each case by reason of the
provisions of the Financial Institutions Reform, Recovery and Enforcement Act of
1989 or otherwise, any payment made on account of the principal of such Loans
outstanding shall be made as follows:
(i) in the case of any such payment made on any date when and to the
extent that, in the determination of the Administrative Agent, the
Borrower would be able, under the terms and conditions hereof, to reborrow
the amount of such payment under the applicable Commitments and to satisfy
any applicable conditions precedent to such reborrowing, such payment
shall be made on account of the outstanding applicable Loans held by the
applicable Lenders other than the Non-Funding Lender pro rata according to
the respective outstanding principal amounts of the applicable Loan of
such Lenders;
37
(ii) otherwise, such payment shall be made on account of the
outstanding applicable Loans held by the applicable Lenders, pro rata
according to the respective outstanding principal amounts of such Loans;
and
(iii) any payment made on account of interest on such Loans shall be
made pro rata according to the respective amounts of accrued and unpaid
interest due and payable on such Loans.
The Borrower agrees to give the Administrative Agent such assistance in making
any determination pursuant to this paragraph as the Administrative Agent may
reasonably request. Any such determination by the Administrative Agent shall be
conclusive and binding on the applicable Lenders.
(d) All payments (including prepayments) to be made by the Borrower
on account of principal, interest and fees shall be made without set-off or
counterclaim and shall be made to the Administrative Agent, for the account of
the applicable Lenders at the Administrative Agent's office listed in subsection
15.2, in the currency in which such amounts are denominated and in immediately
available funds. The Administrative Agent shall promptly distribute such
payments in accordance with the provisions of subsections 7.4(b) and (c)
promptly upon receipt in like funds as received. If any payment hereunder (other
than payments on the Eurodollar Loans) would become due and payable on a day
other than a Business Day, such payment shall become due and payable on the next
succeeding Business Day and, with respect to payments of principal, interest
thereon shall be payable at the applicable rate during such extension. If any
payment on a Eurodollar Loan becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day (and with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension), unless the result
of such extension would be to extend such payment into another calendar month in
which event such payment shall be made on the immediately preceding Business
Day.
(e) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a Borrowing Date that such Lender will not make
the amount that would constitute its relevant Ratable Portion of the applicable
Loans on such date available to the Administrative Agent, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent on such Borrowing Date, and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrower a corresponding
amount. If such amount is made available to the Administrative Agent on a date
after such Borrowing Date, such Lender shall pay to the Administrative Agent on
demand an amount equal to the product of (i) the daily average Base Rate during
such period, times (ii) the amount of such Lender's relevant Ratable Portion of
such Loans, times (iii) a fraction the numerator of which is the number of days
that elapse from and including such Borrowing Date to the date on which such
Lender's relevant Ratable Portion of such Loans shall have become immediately
available to the Administrative Agent and the denominator of which is 365/366 or
360, as applicable. A certificate of the Administrative Agent submitted to any
Lender with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error. If such Lender's relevant Ratable
Portion of such Loans is not in fact made available to the Administrative Agent
by such Lender within three (3) Business Days of such Borrowing Date, the
Administrative Agent shall be entitled to recover such amount with interest
thereon at the rate per annum applicable to Base Rate Loans (or, if a Base Rate
is not available, a Eurodollar Rate with an Interest Period of one day), on
demand, from the Borrower. The failure of any Lender to make any Loan to be made
by it shall not relieve any other Lender of its obligation, if any, hereunder to
make its Loan on such Borrowing Date, but no Lender shall be responsible for the
failure of any other Lender to make the Loan to be made by such other Lender on
such Borrowing Date.
38
7.5. Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert Base Rate Loans to Eurodollar Loans, as applicable, shall forthwith be
cancelled and (b) such Lender's Loans then outstanding as Eurodollar Loans, if
any, shall be converted automatically to Base Rate Loans on the respective last
days of the then current Interest Periods with respect to such Loans or within
such earlier period as required by law; provided that before making any such
demand, each Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions and so long as such
efforts would not be disadvantageous to it, in its reasonable discretion, in any
legal, economic or regulatory manner) to designate a different lending office if
the making of such a designation would allow such Lender or its lending office
to continue to perform its obligations to make Eurodollar Loans. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, the Borrower shall pay to
such Lender such amounts, if any, as may be required pursuant to subsection 7.8.
If circumstances subsequently change so that any affected Lender shall determine
that it is no longer so affected, such Lender will promptly notify the Borrower
and the Administrative Agent, and upon receipt of such notice, the obligations
of such Lender to make or continue Eurodollar Loans or to convert Base Rate
Loans into Eurodollar Loans, as applicable, shall be reinstated.
If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify (in any event no later
than ninety (90) days after such Lender becomes entitled to make such claim) the
Borrower, through the Administrative Agent, of the event by reason of which it
has become so entitled.
7.6. Requirements of Law. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Eurodollar Loan, any Note, any Letter of
Credit or Letter of Credit Application or change the basis of taxation of
payments to such Lender in respect thereof (except for taxes covered by
subsection 7.7 and the establishment of a tax based on the net income of
such Lender or changes in the rate of tax on the net income of such
Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit (including, without limitation, letters of
credit or bankers acceptances) by, or any other acquisition of funds by,
any office of such Lender; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to increase the cost to such
Lender, by an amount which such Lender deems to be material, of issuing or
maintaining any Letter of Credit or participation therein or to reduce any
amount receivable hereunder in respect thereof, then, in any such case, the
Borrower shall promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such increased cost or reduced amount
receivable, provided, in respect of Eurodollar Loans that before making any such
demand, each Lender
39
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions and so long as such efforts would not be
disadvantageous to it, in its reasonable discretion, in any legal, economic or
regulatory manner) to designate a different Eurodollar lending office if the
making of such designation would allow the Lender or its Eurodollar Loan lending
office to continue to perform its obligations to make Eurodollar Loans or to
continue to fund or maintain Eurodollar Loans or and avoid the need for, or
materially reduce the amount of, such increased cost. If any Lender becomes
entitled to claim any additional amounts pursuant to this subsection, it shall
promptly notify (in any event no later than ninety (90) days after such Lender
becomes entitled to make such claim) the Borrower, through the Administrative
Agent, of the event by reason of which it has become so entitled. A certificate
as to any additional amounts payable pursuant to this subsection submitted by
such Lender, through the Administrative Agent, to the Borrower shall be
conclusive in the absence of manifest error. If the Borrower so notifies the
Administrative Agent within five (5) Business Days after any Lender notifies the
Borrower of any increased cost pursuant to the foregoing provisions of this
subsection 7.6, the Borrower may convert all Eurodollar Loans of such Lender
then outstanding into Base Rate Loans if a Base Rate option is available in
accordance with subsection 5.4 and, additionally, reimburse such Lender for any
cost in accordance with subsection 7.8. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder for nine (9) months following such termination and repayment.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof does or shall have the effect of
reducing the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter of Credit to a
level below that which such Lender or such corporation could have achieved but
for such change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, after submission by such
Lender to the Borrower (with a copy to the Administrative Agent) of a prompt
written request therefor, the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender for such reduction; provided
that the Borrower shall not be required to compensate a Lender pursuant to this
paragraph for any amounts incurred more than four months prior to the date that
such Lender notifies the Borrower of such Lender's intention to claim
compensation therefor; and provided further that, if the circumstances giving
rise to such claim have a retroactive effect, then such four-month period shall
be extended to include the period of such retroactive effect. This covenant
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder for nine (9) months following such
termination and repayment.
7.7. Taxes. (a) Except as provided below in this subsection, all
payments made by the Borrower under this Agreement and any Notes shall be made
free and clear of, and without deduction or withholding for or on account of,
any present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding (i) net
income taxes and franchise taxes (imposed in lieu of net income taxes) imposed
on any Agent, any Lender, the Issuing Lender or any Participant as a result of a
present or former connection between such Agent, such Lender, the Issuing Lender
or such Participant and the jurisdiction imposing such taxes or any political
subdivision thereof (other than any such connection arising solely from such
Agent, such Lender, the Issuing Lender or such Participant having executed,
delivered or performed its obligations or received a payment under, or enforced,
this Agreement, the Notes or any other Loan Documents) and (ii) any United
States withholding taxes payable with respect to payments under this Agreement
or the Notes under laws (including any governing statute, treaty or regulation)
in effect on the Closing Date (or (x) in the case of an Assignee, the date of
the
40
Assignment and Acceptance and (y) in the case of a Participant, the date of the
related purchase) applicable to any Lender, the Issuing Lender, any Agent, or
any Participant, as the case may be. If any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings ("Non-Excluded
Taxes") are required to be withheld from any amounts payable to any Agent, any
Lender or the Issuing Lender hereunder or under any Notes, the amounts so
payable to such Agent, such Lender or the Issuing Lender shall be increased to
the extent necessary to yield to such Agent, such Lender or the Issuing Lender
(after deduction for all Non-Excluded Taxes) an amount equal to the sum it would
have received had no such deductions been made, provided, however, that the
Borrower shall be entitled to deduct and withhold any Non-Excluded Taxes and
shall not be required to increase any such amounts payable to any Agent, any
Lender, or the Issuing Lender if such Agent, such Lender, or the Issuing Lender
fails to comply with the requirements of paragraph (b) of this subsection 7.7
(other than if such failure is due to a change in governing statute, treaty, or
regulation occurring subsequent to the date on which a form or certification
originally was required to be provided pursuant to paragraph (b) of this
subsection 7.7) or if such Agent, such Lender, or the Issuing Lender fails to
comply with the requirements of paragraphs (c) or (d) of this subsection 7.7.
Whenever any Non-Excluded Taxes are payable by the Borrower, reasonably promptly
thereafter, the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender or the Issuing Lender, as the case may
be, the original or a certified copy of an official receipt, if any, received by
the Borrower or such other document acceptable to such Agent, such Lender, or
the Issuing Lender showing payment thereof. If the Borrower fails to pay any
Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Administrative Agent, the
Lenders, and the Issuing Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent, any Lender, or
the Issuing Lender as a result of any such failure; provided, however, that for
any period with respect to which any Lender, the Issuing Lender, or any Agent
fails to comply with the requirements of paragraph (b) of this subsection 7.7
(other than if such failure is due to a change in governing statute, treaty, or
regulation occurring subsequent to the date on which a form or certification
originally was required to be provided pursuant to paragraph (b) of this
subsection 7.7), such Lender, the Issuing Lender or such Agent shall not be
entitled to indemnification under this paragraph (a) of this subsection 7.7. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder for a
period of nine (9) months thereafter.
(b) Each Non-U.S. Lender and each U.S. Lender shall:
(ii) in the case of a Non-U.S. Lender, on or before the date
of any payment under this Agreement or any Notes to such Non-U.S.
Lender, deliver to the Borrower and the Administrative Agent two
properly completed copies of United States Internal Revenue Service
Form W-8BEN (certifying to its entitlement to treaty benefits) or
W-8ECI (certifying that the income received is effectively connected
with a U.S. trade or business), or successor applicable form, as the
case may be, (A) certifying that all payments that it is entitled to
receive under this Agreement, any Notes, and any Loan Document may
be made without any deduction or withholding of any United States
federal income taxes and (B) certifying that it is entitled to an
exemption from United States backup withholding tax (to the extent
that such Non-U.S. Lender receives fees that are not interest
income, separate Forms W-8BEN and W-8ECI shall be provided for such
amounts at the written request of the Borrower) or, in the case of a
U.S. Lender other than (I) a U.S. Lender that may be treated as an
exempt recipient based on the indicators described in Treasury
Regulation Section 1.6049-4(c)(1)(ii) or (II) a U.S. Lender that is
a Pre-Petition Lender, on or before the date of any payment under
this Agreement or any Notes to such U.S. Lender, deliver to the
Borrower and the Administrative Agent two properly completed copies
of United States Internal Revenue Service Form W-9,
41
certifying that such U.S. Lender is entitled to an exemption from
United States backup withholding tax;
(x) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the
date that any such form or certification expires or becomes
obsolete, after the occurrence of any event requiring a change in
the most recent form previously delivered by it to the Borrower, and
upon the written request of the Borrower; and
(y) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent; or
(ii) in the case of any Non-U.S. Lender that is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Code, such
Non-U.S. Lender, in lieu of complying with subparagraph (i) of this
paragraph (b) with respect to interest payments received by such
Non-U.S. Lender, may, (x) represent to the Borrower (for the benefit
of the Borrower and the Administrative Agent) that it is not a bank
within the meaning of Section 881(c)(3)(A) of the Code, (y) deliver
to the Borrower on or before the date of any payment by the
Borrower, with a copy to the Administrative Agent, (A) a certificate
stating that such Non-U.S. Lender (1) is not a "bank" under Section
881(c)(3)(A) of the Code, is not subject to regulatory or other
legal requirements as a bank in any jurisdiction, and has not been
treated as a bank for purposes of any tax, securities law or other
filing or submission made to any Governmental Authority, any
application made to a rating agency or qualification for any
exemption from tax, securities law or other legal requirements, (2)
is not a "10-percent shareholder" within the meaning of Sections
881(c)(3)(B) and 871(h)(3)(B) of the Code and (3) is not a
"controlled foreign corporation" receiving interest from a related
person within the meaning of Section 881(c)(3)(C) of the Code (any
such certificate a "U.S. Tax Compliance Certificate") and (B) two
duly completed copies of Internal Revenue Service Form W-8BEN, or
successor applicable form, certifying to such Non-U.S. Lender's
legal entitlement at the date of such certificate to an exemption
from U.S. withholding tax under the provisions of Sections 881(c) or
871(h) of the Code with respect to interest payments to be made
under this Agreement, any Notes and any Loan Document (and to
deliver to the Borrower and the Administrative Agent two further
copies of Form W-8BEN on or before the date it expires or becomes
obsolete, after the occurrence of any event requiring a change in
the most recently provided form, and upon the written request of the
Borrower, and, if necessary, obtain any extensions of time
reasonably requested by the Borrower or the Administrative Agent for
filing and completing such forms), and (z) agree, to the extent
legally entitled to do so, upon reasonable request by the Borrower,
to provide to the Borrower (for the benefit of the Borrower and the
Administrative Agent) such other forms as may be reasonably required
in order to establish the legal entitlement of such Non-U.S. Lender
to an exemption from withholding with respect to interest payments
under this Agreement, any Notes, and any Loan Document; or
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender, an Issuing Lender or an Agent
hereunder which renders all such forms and certificates inapplicable or which
would prevent such Lender, the Issuing Lender, or such Agent from duly
completing and delivering any such form or certificate with respect to it and
such Lender, the Issuing Lender, or such Agent so advises the Borrower and the
Administrative Agent. Each Person that shall become a Lender, an Issuing Lender,
an Agent or a Participant pursuant to subsection 15.6 shall, upon the
42
effectiveness of the related transfer, be required to provide all of the forms,
certifications and statements required pursuant to this subsection; provided
that in the case of a Participant the obligations of such Participant pursuant
to this paragraph (b) shall be determined as if such Participant were a Lender
except that such Participant shall furnish all such required forms,
certifications and statements to the Lender from which the related participation
shall have been purchased.
(c) Each Lender, the Issuing Lender, and each Agent shall, upon
request by the Borrower, deliver to the Borrower or the applicable Governmental
Authority, as the case may be, any form or certificate required in order that
any payment by the Borrower under this Agreement, any Notes, or any Loan
Document may be made free and clear of, and without deduction or withholding for
or on account of any Non-Excluded Taxes (or to allow any such deduction or
withholding to be at a reduced rate) imposed on such payment under the laws of
any jurisdiction, provided that such Lender, the Issuing Lender, or such Agent
is legally entitled to complete, execute and deliver such form or certificate
and such completion, execution or submission would not materially prejudice the
legal position of such Lender, the Issuing Lender, or such Agent.
(d) If any Lender, the Issuing Lender, or any Agent becomes entitled
to claim any additional amounts pursuant to this subsection, it shall promptly
notify in writing (in any event no later than ninety (90) days after such
Lender, the Issuing Lender or any Agent becomes entitled to make such claim) the
Borrower, through the Administrative Agent, of the event by reason of which it
has become so entitled in accordance with clause (a) of this subsection. Any
Lender, the Issuing Lender, and any Agent claiming any additional amounts
payable pursuant to this subsection 7.7 shall use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its principal office or its applicable lending office, if the
making of such change would avoid the need for, or reduce the amount of, any
such additional amounts that may thereafter accrue and such Lender, the Issuing
Lender, or such Agent in its reasonable discretion would not otherwise be
disadvantaged.
(e) In the event that any Agent, any Lender, or the Issuing Lender
receives a refund or credit in respect of Non-Excluded Taxes paid by the
Borrower, such Agent, such Lender, or the Issuing Lender shall, to the extent it
can do so without jeopardizing its right to such refund or credit, pay over to
the relevant Borrower an amount that would leave such Agent, such Lender, or the
Issuing Lender in the same position as if no such Non-Excluded Taxes had been
imposed. Nothing contained in this paragraph shall interfere with the right of
such Agent, such Lender, or the Issuing Lender to arrange its tax affairs in
whatever manner it thinks fit, nor to disclose any information relating to its
tax affairs or any computations in respect thereof or to do anything that would
prejudice its ability to benefit from any other credits, relief, remissions or
repayments to which it may be entitled.
7.8. Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in payment when due of
the principal amount of or interest on any Eurodollar Loan, (b) default by the
Borrower in making a borrowing of, conversion into or continuation of Eurodollar
Loans after the Borrower has given a notice requesting the same in accordance
with the provisions of this Agreement, (c) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (d) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto, including, without limitation, in each case, any such loss or expense
(but excluding loss of margin) arising from the reemployment of funds obtained
by it or from fees payable to terminate the deposits from which such funds were
obtained. Calculation of all amounts payable to a Lender under this subsection
7.8 shall be made as though such Lender had actually funded its relevant
Eurodollar Loan through the purchase of a deposit bearing interest at the
Eurodollar Rate in an amount equal to the amount of such Eurodollar Loan and
having a maturity comparable to the relevant Interest Period; provided,
43
however, that each applicable Lender may fund each of its Eurodollar Loans in
any manner it sees fit, and the foregoing assumption shall be utilized only for
the calculation of amounts payable under this subsection 7.8. This covenant
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder for a period of nine (9) months thereafter.
7.9. Replacement of Lender. If at any time (a) the Borrower becomes
obligated to pay additional amounts described in subsections 7.5, 7.6 or 7.7 as
a result of any condition described in such subsections or any Lender ceases to
make Eurodollar Loans pursuant to subsection 7.5, (b) any Lender becomes
insolvent and its assets become subject to a receiver, liquidator, trustee,
custodian or other Person having similar powers, (c) any Lender becomes a
"Nonconsenting Lender" (as defined below in this subsection 7.9) or (d) any
Lender becomes a "Non-Funding Lender", then the Borrower may, on ten (10)
Business Days' prior written notice to the Administrative Agent and such Lender,
replace such Lender by causing such Lender to (and such Lender shall) assign
pursuant to subsection 15.6(c) all of its rights and obligations under this
Agreement to a Lender or other entity selected by the Borrower and acceptable to
the Administrative Agent for a purchase price equal to the outstanding principal
amount of such Lender's Loans and all accrued interest and fees and other
amounts payable hereunder; provided that (i) the Borrower shall have no right to
replace the Administrative Agent, (ii) neither the Administrative Agent nor any
Lender shall have any obligation to the Borrower to find a replacement Lender or
other such entity, (iii) in the event of a replacement of a Nonconsenting Lender
or a Lender to which the Borrower becomes obligated to pay additional amounts
pursuant to clause (a) of this subsection 7.9, in order for the Borrower to be
entitled to replace such a Lender, such replacement must take place no later
than 180 days after (A) the date the Nonconsenting Lender shall have notified
the Borrower and the Administrative Agent of its failure to agree to any
requested consent, waiver or amendment or (B) the Lender shall have demanded
payment of additional amounts under one of the subsections described in clause
(a) of this subsection 7.9, as the case may be, and (iv) in no event shall the
Lender hereby replaced be required to pay or surrender to such replacement
Lender or other entity any of the fees received by such Lender hereby replaced
pursuant to this Agreement. In the case of a replacement of a Lender to which
the Borrower becomes obligated to pay additional amounts pursuant to clause (a)
of this subsection 7.9, the Borrower shall pay such additional amounts to such
Lender prior to such Lender being replaced and the payment of such additional
amounts shall be a condition to the replacement of such Lender. In the event
that (x) the Borrower or the Administrative Agent has requested the Lenders to
consent to a departure or waiver of any provisions of the Loan Documents or to
agree to any amendment thereto, (y) the consent, waiver or amendment in question
requires the agreement of all Lenders in accordance with the terms of subsection
15.1 and (z) the Required Lenders have agreed to such consent, waiver or
amendment, then any Lender who does not agree to such consent, waiver or
amendment shall be deemed a "Nonconsenting Lender." The Borrower's right to
replace a Non-Funding Lender pursuant to this subsection 7.9 is, and shall be,
in addition to, and not in lieu of, all other rights and remedies available to
the Borrower against such Non-Funding Lender under this Agreement, at law, in
equity, or by statute.
SECTION 8. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement
and to make their respective Loans and to issue and participate in Letters of
Credit, Holdings, and the Borrower hereby represent and warrant to the Agents
and each Lender that:
8.1. Financial Condition. The audited consolidated financial
statements of the Borrower and its Subsidiaries, dated December 31, 2001, copies
of which have been furnished to the Administrative Agent, have been prepared
using accounting methods, procedures and policies which, except as set forth in
Schedule 8.1, are in accordance with GAAP and present fairly in all material
44
respects the financial positions of the Borrower and its Subsidiaries on a
consolidated basis as at the date thereof and the results of operations and cash
flows for the period then ended.
(b) The unaudited consolidated financial statements of the Borrower
and its Subsidiaries, dated September 30, 2002, copies of which have been
furnished to the Administrative Agent, have been prepared using accounting
methods, procedures and policies which, except as set forth in Schedule 8.1, are
in accordance with GAAP (except as disclosed therein) and present fairly in all
material respects the financial positions of the Borrower and its Subsidiaries
on a consolidated basis as at the date thereof and the results of operations and
cash flows for the period then ended (subject to normal year-end audit
adjustments).
(c) The pro forma balance sheet of the Borrower and its Subsidiaries
(the "Pro Forma Balance Sheet"), certified by a Responsible Officer of the
Borrower, copies of which have been heretofore furnished to the Administrative
Agent, is, to the best knowledge of the Borrower, the unaudited consolidated
balance sheet of the Borrower as at September 30, 2002, adjusted to give effect
to (i) the consummation of the Reorganization Plan and (ii) the other
transactions contemplated hereby. The Pro Forma Balance Sheet was prepared based
on good faith assumptions and are based on the best information available to the
Borrower as of the date of delivery thereof, and reflect on a pro forma basis,
in all material respects, the financial position of the Borrower and its
Subsidiaries as at the Closing Date.
8.2. No Change. Since September 30, 2002 there has been no Material
Adverse Change other than those changes that customarily occur as a result of
events and circumstances leading up to and following the commencement of a
proceeding under Chapter 11 of the Bankruptcy Code and the commencement of the
Cases (including, without limitation, those reflected in the financial
projections heretofore made available to the Lenders).
8.3. Corporate Existence; Compliance with Law. Holdings and each of
its Subsidiaries (a) is duly organized or formed and validly existing or
subsisting under the laws of the jurisdiction of its organization, incorporation
or formation, (b) has the power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged, (c) is in good standing in the
jurisdiction of its organization, incorporation or formation and duly qualified
and in good standing under the laws of each other jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification, except to the extent in each case that the failure
to so qualify could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect and (d) is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Affect.
8.4. Corporate Power; Authorization; Enforceable Obligations. Each
Credit Party has the power and authority, and the legal right, to execute,
deliver and perform this Agreement and the other Loan Documents to which it is a
party and, with respect to the Borrower, to borrow hereunder. Each Credit Party
has taken all necessary action to authorize the execution, delivery and
performance of this Agreement and the other Loan Documents to which it is a
party, including the borrowings on the terms and conditions of and the granting
of any security interests under this Agreement and the other Loan Documents. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the borrowings under this Agreement or with the execution,
delivery, performance, validity or enforceability of, or the granting of any
security interests under, this Agreement, the Notes or the other Loan Documents
to which any Credit Party is a party, except for (i) those set forth on Schedule
8.4, each of which have been or will be made or taken and are or will be in full
force and effect, (ii) consents under immaterial Contractual Obligations or
(iii) those referred to subsection 8.18. This Agreement, the Notes and each of
the other Loan Documents
45
has been duly executed and delivered on behalf of each Credit Party party
thereto. This Agreement, the Notes and each of the other Loan Documents
constitutes a legal, valid and binding obligation of the Credit Party party
thereto enforceable against such Credit Party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
8.5. No Legal Bar. The execution, delivery and performance of this
Agreement and the other Loan Documents, the borrowings hereunder and thereunder
and the use of the proceeds thereof will not violate any Requirement of Law or
any material Contractual Obligation of any Credit Party or of any of their
Subsidiaries.
8.6. No Material Litigation. Except as set forth in Schedule 8.6, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of Holdings or the
Borrower, threatened by or against any of the Credit Parties or any of their
Subsidiaries or against any of their respective properties or revenues (a) with
respect to this Agreement, the other Loan Documents, or any of the transactions
contemplated hereby or thereby or (b) which could reasonably be expected to have
a Material Adverse Effect.
8.7. No Default. None of the Credit Parties or any of their
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
8.8. Ownership of Property; Liens. Each of the Credit Parties and
their Subsidiaries has good and valid title in fee simple (or the substantial
equivalent thereof) to, or a valid leasehold interest in, as applicable, all its
material real and immovable property, and good title to, or a valid leasehold
interest in, all its other material property, and none of such property is
subject to any Lien except as permitted by subsection 11.3. Such real and other
properties comprise all of the material properties the use of which is necessary
for the conduct of Holdings' and its Subsidiaries' business as presently
conducted and as proposed to be conducted by it. As of the Closing Date, the Fee
Properties as listed on Part I of Schedule 8.18 constitute all the material real
and immovable properties owned by Holdings or its Subsidiaries, and the Leased
Properties as listed on Part II of Schedule 8.18 constitute all of the material
real and immovable properties leased by Holdings or its Subsidiaries.
8.9. Intellectual Property. Each of the Credit Parties and their
Subsidiaries owns, or is validly licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those of which the failure to own or
license could not reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). To the knowledge of the Borrower and Holdings, and
except as set forth on Schedule 8.9, no claim has been asserted and is pending
by any Person challenging or questioning the use of any such Intellectual
Property or the validity or effectiveness of any such Intellectual Property, nor
do the Credit Parties know of any valid basis for any such claim which could
reasonably be expected to have a Material Adverse Effect. The use of such
Intellectual Property by the Credit Parties and their Subsidiaries does not
infringe on the rights of any Person, except for such claims and infringements
that, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
8.10. Taxes. Except as set forth on Schedule 8.10, each of the
Credit Parties and their Subsidiaries has filed or caused to be filed all
federal and all other material tax returns which, to the knowledge of the Credit
Parties, are required to be filed and has paid all taxes shown to be due and
payable on said returns and all other material taxes, assessments, fees or other
charges imposed on it or
46
any of its property by any Governmental Authority (other than (i) any such
taxes, assessments, fees or other charges the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Credit Parties or their Subsidiaries, as the case may be, (ii)
taxes, assessments, fees or other charges imposed by any Governmental Authority,
other than income taxes imposed by any Governmental Authority, with respect to
which the failure to make payments could not, by reason of the amount thereof or
of remedies available to such Governmental Authorities, reasonably be expected
to have a Material Adverse Effect, and (iii) taxes, assessments, fees or other
charges covered by indemnities from third parties that are reasonably expected
to be collectible); and, to the knowledge of the Credit Parties, no claim is
being asserted with respect to any such tax, fee or other charge other than
those being contested in good faith by appropriate proceedings and with respect
to which reserves in conformity with GAAP have been provided on the books of the
Credit Parties or their Subsidiaries, as the case may be.
8.11. US Federal Regulations. No part of the proceeds of any Loans
will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulations T, U or X as
now and from time to time hereafter in effect or for any purpose which violates
the provisions of the regulations of the Board. If requested by any US Lender or
the Administrative Agent, the Borrower will furnish to the Administrative Agent
and each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 or G-3 referred to in Regulation U.
8.12. ERISA. Except where the liability which could reasonably be
expected to result, individually or in the aggregate, has not had or could not
reasonably be expected to have a Material Adverse Effect: (i) neither a
Reportable Event nor an "accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Single Employer Plan; (ii) each Plan (other than
a Multiemployer Plan) has complied in all material respects with the applicable
provisions of ERISA and the Code; (iii) no termination of a Single Employer Plan
has occurred, and no Lien in favor of the PBGC or a Single Employer Plan has
arisen and remains outstanding, during such five-year period; (iv) the present
value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
by an amount which could reasonably be expected to have a Material Adverse
Effect; (v) none of the Credit Parties nor any Commonly Controlled Entity has
had a complete or partial withdrawal from any Multiemployer Plan, and, to the
knowledge of the Credit Parties, no such complete or partial withdrawal is
expected to occur which would cause any of the Credit Parties or any Commonly
Controlled Entity to become subject to any liability under ERISA; and (vi) no
such Multiemployer Plan is in Reorganization or Insolvent.
8.13. Non-US Benefit and Pension Plans. Except as could not
reasonably be expected to have a Material Adverse Effect, the Borrower and its
Subsidiaries are in compliance in all material respects with the laws,
regulations and terms applicable to them in respect of all pension and employee
benefit plans of, or maintain, for the benefit of employees of, the Foreign
Subsidiaries of the Borrower.
8.14. Investment Company Act; Other Regulations. Neither Holdings
nor any of its Subsidiaries is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended. No Credit Party is subject to regulation under
any Requirement of Law which limits its ability to incur Indebtedness (except as
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law)).
47
8.15. Subsidiaries, Etc. As of the Closing Date, the only
Subsidiaries of Holdings, and the only Person in which Holdings or any of its
Subsidiaries has an interest are those listed on Schedule 8.15. As of the date
hereof, Holdings owns the percentage of the Capital Stock or other evidences of
the ownership of each Person listed on Schedule 8.15 as set forth on such
Schedule. As of the date hereof, no such Subsidiary has issued any securities
convertible into shares of its Capital Stock to any Person other than Holdings
or its Subsidiaries, and the outstanding stock and securities (or other evidence
of ownership) of such Persons owned by Holdings and its Subsidiaries are so
owned free and clear of all Liens, warrants, options or rights of others of any
kind except as permitted by subsection 11.3 or subsection 11.6.
8.16. Environmental Matters. After taking into account environmental
indemnities from third parties reasonably expected to be collectible:
(a) The facilities and properties owned, leased or operated by
Holdings or any of its Subsidiaries (the "Properties") do not contain, and, to
the knowledge of the Borrower and Holdings, have not previously contained, any
Materials of Environmental Concern in amounts or concentrations or under such
conditions which (i) constitute or constituted a violation of, or could
reasonably be expected to give rise to liability under, any Environmental Law in
effect at the time of the making of this representation, (ii) could materially
and adversely interfere with the continued operation of the Properties, or (iii)
materially impair the fair saleable value thereof except in each case insofar as
such violation, liability, interference, or reduction in fair market value, or
any aggregation thereof, could not reasonably be expected to have a Material
Adverse Effect.
(b) The business of Holdings and its Subsidiaries, the Properties
and all operations at the Properties are, and to the knowledge of the Borrower
and Holdings have been, in compliance in all material respects with all
applicable Environmental Laws except for noncompliance which could not
reasonably be expected to have a Material Adverse Effect.
(c) Neither Holdings nor any of its Subsidiaries has received any
written notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the business of
Holdings and its Subsidiaries, nor does Holdings or the Borrower have knowledge
or reason to believe that any such notice will be received or is being
threatened except insofar as such notice or threatened notice, or any
aggregation thereof, does not involve a matter or matters that could reasonably
be expected to have a Material Adverse Effect.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a location
which could reasonably be expected to give rise to liability under, any
Environmental Law in effect at the time of the making of this representation,
nor have any Materials of Environmental Concern been generated, treated, stored
or disposed of at, on or under any of the Properties in violation of, or in a
manner that could reasonably be expected to give rise to liability under, any
applicable Environmental Law in effect at the time of the making of this
representation except insofar as any such violation or liability referred to in
this paragraph, or any aggregation thereof, could not reasonably be expected to
have a Material Adverse Effect.
(e) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Borrower or Holdings, threatened, under
any Environmental Law to which Holdings or any Subsidiary is or will be named as
a party with respect to the Properties or the business of Holdings and its
Subsidiaries, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to
the Properties or the business of Holdings and its Subsidiaries except
48
insofar as such proceeding, action, decree, order or other requirement, or any
aggregation thereof, could not reasonably be expected to have a Material Adverse
Effect.
(f) There has been no release or, to the knowledge of the Borrower
and Holdings, threat of release of Materials of Environmental Concern at or from
the Properties, or arising from or related to the operations of Holdings or any
Subsidiary in connection with the Properties or otherwise in connection with the
business of Holdings and its Subsidiaries, in violation of or in amounts or in a
manner that could reasonably be expected to give rise to liability under
Environmental Laws in effect at the time of making this representation except
insofar as any such violation or liability referred to in this paragraph, or any
aggregation thereof, could not reasonably be expected to have a Material Adverse
Effect.
8.17. Disclosure. No information, financial statement, report,
certificate or other document prepared or furnished by or on behalf of any
Credit Party to any Agent or any Lender in connection with this Agreement or any
other Loan Document (but excluding all projections and pro forma financial
statements which shall have been prepared in good faith and based upon
reasonable assumptions at the time made) contains any untrue statement of a
material fact or omits to state any material fact necessary to make the
statements herein or therein not materially misleading. As of the Closing Date,
there is no fact known to the Borrower or Holdings (other than general economic
conditions, which conditions are commonly known and affect businesses generally)
which has, or which could reasonably be expected to have, in the reasonable
judgment of such Credit Party, a Material Adverse Effect.
8.18. Guarantee and Collateral Agreement; Mortgages. (a) The
Guarantee and Collateral Agreement is effective to create in favor of the
Collateral Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Pledged Securities described therein and
proceeds thereof and all actions have been taken to cause the Liens created by
the Guarantee and Collateral Agreement to constitute a fully perfected Lien on,
and security interest in, all right, title and interest of Holdings, and its
Domestic Subsidiaries, respectively, in such Pledged Securities described
therein and in proceeds thereof superior in right to any other Person other than
Liens permitted hereby.
(b) The Guarantee and Collateral Agreement is effective to create in
favor of the Collateral Agent, for the benefit of the Secured Parties, a legal,
valid and enforceable security interest in the collateral described therein and
proceeds thereof, and the Liens created by the Guarantee and Collateral
Agreement constitute fully perfected Liens on, and security interests in, all
right, title and interest of Holdings, and its Domestic Subsidiaries in such
collateral and the proceeds thereof superior in right to any other Person other
than Liens permitted hereby.
(c) As of the Closing Date, the properties listed on Part I of
Schedule 8.18 constitute all material real properties owned by Holdings or any
of its Subsidiaries. The Mortgages are each effective to create in favor of the
Collateral Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable Lien on the properties described therein owned by the Borrower and
its Domestic Subsidiaries and proceeds thereof, subject to obtaining necessary
consents and, the Mortgages shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Borrower and its
Domestic Subsidiaries in the Mortgaged Properties and the proceeds thereof,
superior in right to any other Person other than Liens permitted hereby.
(d) Each other Loan Document to which any Credit Party is a party
and which purports to ▇▇▇▇▇ ▇ ▇▇▇▇ on any property of such Credit Party to
secure the applicable Obligations is effective to create in favor of the
Administrative Agent, for the benefit of the applicable Lenders, a legal, valid
and enforceable security interest in the respective collateral described therein
and proceeds thereof, and when appropriate filings and notices have been taken
or given, the Liens created by such Loan Document shall constitute fully
perfected Liens on, and security interests in, all right, title and interest of
49
such Credit Party in such collateral and the proceeds thereof superior in right
to any other Person other than Liens permitted hereby.
8.19. Solvency. Each of Holdings and the Borrower is, individually
and together with its Subsidiaries, Solvent.
8.20. No Fees. Neither Holdings nor any Subsidiary is under any
obligation to pay any broker's fees, finder's fee, commission, transaction fee
or expenses, other than customary professional fees and expenses, in connection
with the transactions contemplated by this Agreement other than fees and
expenses listed on Schedule 8.20.
8.21. Insurance. The insurance maintained by or reserved against on
the books of Holdings, the Borrower and their respective Subsidiaries is
sufficient to protect Holdings and its Subsidiaries against such risks as are
usually insured against in the same general area by Persons engaged in the same
or similar business. None of the Credit Parties or any of their Subsidiaries is
in material default under any provisions of any such policy of insurance or has
received notice of cancellation of any such insurance (other than in connection
with the replacement of any such policy). None of the Credit Parties or any of
their Subsidiaries has made any claims under any policy of insurance with
respect to which the insurance carrier has denied liability, except as could not
reasonably be expected to have a Material Adverse Effect.
SECTION 9. CONDITIONS PRECEDENT
9.1. Conditions to Closing Date. The effectiveness of this Agreement
is subject to the satisfaction, at or prior to the Closing Date, of the
following conditions:
(a) Agreement; Guarantee and Collateral Agreement; Intercreditor
Agreement. The Administrative Agent shall have received (i)(A) from
Holdings and the Borrower, counterparts of this Agreement and (B) from
each Lender, an Addendum in the form of Exhibit D, signed on behalf of
such Lender, (ii) from Holdings, the Borrower and each relevant Subsidiary
thereof, the Guarantee and Collateral Agreement or any other security
documents reasonably satisfactory to the Administrative Agent, signed on
behalf of each such Person and (iii) from Holdings, the Borrower, each
relevant Subsidiary thereof, the Senior Agent and the Junior Agent, the
Intercreditor Agreement, signed on behalf of each such Person.
(b) Reduction of Certain Indebtedness. Indebtedness under the
Pre-Petition Credit Agreement shall have been reduced by at least
$50,000,000 in aggregate principal amount by (i) the conversion of such
Indebtedness held by or on behalf of HMTF, other holders of Senior
Subordinated Indebtedness and Trust Company of the West into preferred
stock of Holdings and (ii) receipt by Holdings of cash in connection with
a rights offering of Holdings' preferred stock to HMTF and such holders of
Senior Subordinated Indebtedness, with the net proceeds thereof having
been contributed to the Borrower as a capital contribution in order to
prepay Indebtedness under the Pre-Petition Credit Agreement, in each case
on reasonably satisfactory terms and conditions.
(c) Treatment of Other Indebtedness. (i) All outstanding Senior
Subordinated Indebtedness shall have been converted into common stock of
Holdings, (ii) all outstanding Investor Loans (as defined in the
Pre-Petition Credit Agreement) shall have been converted into common stock
and junior preferred stock of Holdings, (iii) there shall not have been
any cash payment on account of any junior securities of Holdings or its
subsidiaries, or on account of the Borrower's obligations to DTI, after
the Petition Date and prior to or upon consummation of the
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Reorganization Plan; and (iv) Holdings and its Subsidiaries shall not have
outstanding any class of securities that provides for any payment in cash
(whether by dividend, interest or otherwise) prior to the repayment in
full of all amounts outstanding hereunder.
(d) Fees. The Lenders, the Administrative Agent shall have received
all fees required to be paid in connection herewith, and all expenses for
which invoices have been presented (including the fees and expenses of
legal counsel in connection with the DIP Credit Agreement and this
Agreement), on or before the Closing Date.
(e) Reorganization Plan. (i) The Bankruptcy Court shall have entered
the Confirmation Order confirming the Reorganization Plan and authorizing
the Credit Parties to enter into this Agreement and the other Loan
Documents and consummate the transactions contemplated hereby and thereby;
(ii) the Reorganization Plan, all modifications thereof, the Confirmation
Order and all legal matters pertaining to the Credit Parties and their
respective Subsidiaries under the Reorganization Plan and its confirmation
and consummation shall be satisfactory to the Administrative Agent in its
reasonable discretion; (iii) the Confirmation Order shall be a final,
non-appealable order and shall not have been stayed, reversed, vacated or
materially modified without the Administrative Agent's reasonable consent;
and (iv) the Reorganization Plan, including the transactions contemplated
thereby, shall have been consummated.
(f) Consents. (i) All governmental and third party approvals
necessary or, in the reasonable discretion of the Administrative Agent,
advisable in connection with this Agreement, the transactions contemplated
hereby and the continuing operations of the Borrower and its Subsidiaries
shall have been obtained and be in full force and effect, and (ii) all
applicable waiting periods shall have expired without any action being
taken or threatened by any competent Governmental Authority that would
restrain, prevent or otherwise impose adverse conditions on the
transactions contemplated herein or the financing thereof.
(g) Financial Statements. The Lenders shall have received the
financial statements referred to in subsection 8.1(a) and (b).
(h) Balance Sheet. The Lenders shall have received the Pro Forma
Balance Sheet.
(i) Projections. The Lenders shall have received projections for
fiscal years of the Borrower and its Subsidiaries for the period from the
Closing Date through the 2007 fiscal year of the Borrower, prepared on a
pro forma basis giving effect to (i) the consummation of the
Reorganization Plan and (ii) the other transactions contemplated hereby.
(j) Opinions. The Lenders shall have received such legal opinions
(including an opinion (A) from counsel to the Borrower and its
Subsidiaries and (B) from such special and local counsel as may be
reasonably required by the Administrative Agent), documents and other
instruments as are customary for transactions of this type or as they may
reasonably request.
(k) DIP Credit Agreement; Pre-Petition Credit Agreement. All loans
outstanding, interest thereon and other amounts due and payable under the
DIP Credit Agreement and the Pre-Petition Credit Agreement and under each
other agreement related thereto shall have been repaid in full (other than
the Existing Letters of Credit, all of which shall be assumed under this
Agreement as provided herein) and the commitments thereunder shall have
been terminated in accordance with subsection 10.14.
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(l) Corporate Proceedings of the Credit Parties. The Administrative
Agent shall have received a copy of the resolutions, in form and substance
reasonably satisfactory to the Administrative Agent, of the Board of
Directors or duly authorized committee of each of Holdings, the Borrower
and its applicable Subsidiaries authorizing (i) the execution, delivery
and performance of this Agreement and the other Loan Documents to which it
is a party and (ii) the borrowings contemplated hereunder, certified by
the Secretary, Assistant Secretary, or comparable officer of such Person
as of the Closing Date, which resolutions and certificates shall be in
form and substance reasonably satisfactory to the Administrative Agent.
(m) Incumbency Certificates. The Administrative Agent shall have
received a certificate of the Secretary, Assistant Secretary or comparable
officer of each of Holdings, the Borrower and its applicable Subsidiaries,
dated the Closing Date, as to the incumbency and signature of the officers
of such Person executing this Agreement and any certificate or other
document to be delivered by it pursuant hereto and thereto, together with
evidence of the incumbency of such Secretary, Assistant Secretary, or
comparable officer.
(n) Perfection Certificate. The Administrative Agent shall have
received a Perfection Certificate in the form of Exhibit B duly completed
by Borrower and its Subsidiaries that are Credit Parties.
(o) Closing Certificate. The Administrative Agent shall have
received a Closing Certificate substantially in the form of Exhibit C
hereto and dated the Closing Date, executed by a Responsible Officer of
the Borrower and Holdings.
(p) Environmental Audit. The Collateral Agent shall have received a
Phase I Environmental Assessment with respect to the real properties of
the Borrower and its Subsidiaries specified by the Collateral Agent.
(q) Mortgages. (i) The Collateral Agent shall have received a
Mortgage with respect to each Mortgaged Property, executed and delivered
by a duly authorized officer of each party thereto.
(ii) If requested by the Collateral Agent, the Collateral Agent
shall have received (A) a policy of flood insurance that (1) covers any
parcel of improved real property that is encumbered by any Mortgage (2) is
written in an amount not less than the outstanding principal amount of the
indebtedness secured by such Mortgage that is reasonably allocable to such
real property or the maximum limit of coverage made available with respect
to the particular type of property under the National Flood Insurance Act
of 1968, whichever is less, and (3) has a term ending not later than the
maturity of the Indebtedness secured by such Mortgage and (B) confirmation
that the Borrower has received the notice required pursuant to Section
208(e)(3) of Regulation H of the Board.
9.2. Conditions to Each Loan. The agreement of each applicable
Lender to make any Loan requested to be made by it on any date (including the
Closing Date) or of the Issuing Lender to issue any Letter of Credit is subject
to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Credit Parties and their Subsidiaries in or
pursuant to the Loan Documents shall be true and correct in all material
respects on and as of such date as if made on and as of such date, except
for any representation and warranty which is expressly made as of an
earlier date, which
52
representation and warranty shall have been true and correct in all
material respects as of such earlier date.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Loans
requested to be made, or Letter of Credit requested to be issued, on such
date.
(c) Domestic Asset Coverage Ratio. On such date and after giving
effect to the Loans requested to made, or Letters of Credit requested to
be issued, the Domestic Asset Coverage Ratio shall exceed 1.15 to 1.0.
(d) Maximum Cash on Hand. In the case of the making of any Revolving
Credit Loan, on such date and after giving effect to such Loans (and the
disbursement of the proceeds thereof), Holdings and its Subsidiaries shall
have less than $20,000,000 in cash and Cash Equivalents.
(e) Hedge Agreement Liabilities. The Borrower shall have furnished
to the Administrative Agent written notice of the aggregate amount of
Hedge Agreement Liabilities calculated in a manner reasonably satisfactory
to the Administrative Agent.
(f) Letter of Credit Application. With respect to the issuance of
any Letter of Credit, the Issuing Lender shall have received a Letter of
Credit Application, completed to its reasonable satisfaction and duly
executed by a Responsible Officer; provided that if such Letter of Credit
is being issued to support the repayment of any Indebtedness of any
Subsidiary of the Borrower, such Subsidiary shall also execute such Letter
of Credit Application and shall agree to be jointly and severally liable
with the Borrower for any and all obligations arising under or in
connection with such Letter of Credit or the Letter of Credit Application
related thereto; provided that such Subsidiary shall not be required to
execute such Letter of Credit Application and shall not be jointly and
severally liable if such liability could reasonably be expected to result
in any adverse tax liability under applicable Requirements of Law.
Each borrowing by the Borrower hereunder and issuance of any Letter of Credit
shall constitute a representation and warranty by Holdings and the Borrower as
of the date of such Loan or issuance, as the case may be, that the conditions
contained in this subsection 9.2 have been satisfied.
SECTION 10. AFFIRMATIVE COVENANTS
The Borrower and Holdings each hereby agrees that, so long as any
Commitment remains in effect, any Loan remains outstanding and unpaid, any
Letter of Credit is outstanding, or any other Obligations are owing to any
Secured Party, the Borrower and Holdings shall and (except in the case of
delivery of financial information, reports and notices) shall cause each of its
Subsidiaries to:
10.1. Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the consolidated (and
unaudited consolidating) balance sheet of the Borrower as at the end of
such year and the consolidated (and unaudited consolidating) statements of
income and retained earnings and consolidated statement of cash flows for
such year, setting forth in each case in comparative form the figures for
the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope of
the audit, by independent certified public accountants of nationally
recognized standing;
53
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three (3) quarterly periods of each
fiscal year of the Borrower, the unaudited consolidating and consolidated
balance sheet of the Borrower as at the end of such quarter and the
related unaudited consolidating and consolidated statements of income and
retained earnings and consolidated statement of cash flows of the Borrower
for such quarter and the portion of the fiscal year through the end of
such quarter, setting forth in each case in comparative form (i) the
figures for the previous year and (ii) the figures set forth in the
relevant budgets required to be delivered in accordance with subsection
10.2(c); and
(c) as soon as available, but in any event not later than 45 days
after the end of each month, the unaudited consolidated balance sheet of
the Borrower as at the end of such month and the related unaudited
consolidated statements of income and retained earnings and consolidated
statement of cash flows of the Borrower for such month and the portion of
the fiscal year through the end of such month, setting forth in each case
in comparative form (i) the figures for the previous year and (ii) the
figures set forth in the relevant budgets required to be delivered in
accordance with subsection 10.2(c);
all such financial statements shall fairly present in all material respects the
consolidated financial position of the Borrower and its Subsidiaries as of such
date and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or Responsible Officer, as the
case may be, and disclosed therein).
10.2. Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 10.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default relating to the covenants
contained in subsection 11.1, except as specified in such certificate.
(b) concurrently with the delivery of the financial statements
referred to in subsections 10.1(a) and 10.1(b), a certificate of a
Responsible Officer (i) stating that, to such Responsible Officer's
knowledge, each of Holdings and the Borrower and its Subsidiaries during
such period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement, in
the Notes and the other Loan Documents to which it is a party to be
observed, performed or satisfied by it, in all material respects, and that
such Responsible Officer has obtained no knowledge of any Default or Event
of Default except as specified in such certificate, (ii) stating that all
such financial statements fairly present in all material respects
(subject, in the case of interim statements, to normal year-end audit
adjustments) and have been prepared in reasonable detail and in accordance
with GAAP applied consistently throughout the periods reflected therein
(except as disclosed therein) and (iii) showing in detail the calculations
supporting such statement in respect of subsections 11.1, 11.8 and 11.9;
(c) as soon as available but not later than forty-five (45) days
subsequent to the end of each fiscal year of the Borrower, a copy of the
projections by Borrower of the operating budget and cash flow budget of
the Borrower and its Subsidiaries for the succeeding fiscal year (set
forth on a quarter-by-quarter basis for such fiscal year), such
projections to be accompanied by a certificate of a Responsible Officer to
the effect that such projections have been prepared in good faith and
based upon reasonable assumptions as of the date thereof;
54
(d) within five (5) days after the same are filed, copies of all
financial statements and reports which Holdings or any Subsidiary may make
to, or file with, the Securities and Exchange Commission or any successor
or analogous Governmental Authority;
(e) concurrently with the delivery of the financial statements
referred to in subsections 10.1(a) and 10.1(b), a listing of applications
filed for the registration of any Copyright, Patent or Trademark with the
United States Patent and Trademark Office or any similar office or agency
in any other country or any political subdivision thereof by any Credit
Party, either by itself or through an agent, employee, licensee or
designee, during the period covered by such financial statements;
(f) concurrently with the delivery of the financial statements
referred to in subsections 10.1(a) and 10.1(b), each Instrument or Chattel
Paper (as each such term is defined in the Guarantee and Collateral
Agreement) in excess of $1,000,000 not previously delivered to the
Collateral Agent to be held pursuant to the Guarantee and Collateral
Agreement;
(g) concurrently with the delivery of the financial statements
referred to in subsection 10.1(c), a letter from a Responsible Officer
describing the business, operations and financial results of the Borrower
and its Subsidiaries, which letter shall include a discussion of the
liquidity of the Borrower and its Subsidiaries as of the date of such
financial statements and a projection, prepared in good faith and based
upon reasonable assumptions as of the date thereof, of the liquidity of
the Borrower and its Subsidiaries as of the end of the month subsequent to
the date of such financial statements; and
(h) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
10.3. Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where (i) such payment is not
overdue by more than sixty (60) days or (ii) the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
Holdings or its Subsidiaries, as the case may be; provided that, notwithstanding
the foregoing, Holdings and each of its Subsidiaries shall have the right to pay
any such obligation and in good faith contest, by proper legal actions or
proceedings, the validity or amount of such claims.
10.4. Conduct of Business and Maintenance of Existence.
(a) Except as provided in subsection 11.5, continue to engage in
business of the same general type as now conducted by it and preserve,
renew and keep in full force and effect its existence and take all
reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business except for
any failure to preserve and maintain such privileges, rights or franchises
that could not reasonably be expected to have a Material Adverse Effect.
(b) Comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
10.5. Maintenance of Property; Insurance. Keep all property
(including the Mortgaged Properties) useful and necessary in its business in
good working order and condition (ordinary wear and
55
tear and casualty or condemnation excepted); maintain with financially sound and
reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks as are usually insured against in the
same general area by companies engaged in the same or a similar business or as
otherwise reasonably requested by the Administrative Agent; and furnish to each
Lender, upon written request, full information as to the insurance carried,
except to the extent that the failure to do any of the foregoing with respect to
any such property could not reasonably be expected to materially adversely
affect the value or usefulness of such property.
10.6. Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
all material respects in conformity with GAAP and all Requirements of Law shall
be made of all material dealings and transactions in relation to its business
and activities; and permit representatives of any Lender to visit and inspect
any of its properties and examine and make abstracts from any of its books and
records upon reasonable advance notice at any reasonable time on any Business
Day and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of Holdings and its
Subsidiaries with officers and employees of Holdings and its Subsidiaries and
with its independent certified public accountants; provided that the
Administrative Agent or such Lender shall notify Borrower prior to any contact
with such accountants and give Borrower the opportunity to participate in such
discussions.
10.7. Notices. Promptly give notice to the Administrative Agent and
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of Holdings or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between Holdings
or any of its Subsidiaries and any Governmental Authority, which in either
case, if not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
(c) the following events, if, individually or in the aggregate, the
liability that could reasonably be expected to result would be material to
Holdings and its Subsidiaries, taken as a whole: (i) the occurrence or
expected occurrence of any Reportable Event with respect to any Single
Employer Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Single Employer Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of
any other action by the PBGC or the Borrower or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the withdrawal from, or
the terminating, Reorganization or Insolvency of, any Single Employer Plan
or Multiemployer Plan;
(d) the occurrence of any Material Adverse Change; and
(e) the receipt by Holdings or any Subsidiary of any complaint,
order, citation, notice or other written communication from any Person
with respect to the existence or alleged existence of a violation of any
Environmental Laws or Materials of Environmental Concern or any other
environmental matter including the occurrence of any spill, discharge or
release in a quantity that is reportable under any Environmental Law on
any Mortgaged Property or any other property owned, leased or utilized by
Holdings or any Subsidiary of Holdings but only to the extent that such
complaint, order, citation, notice or written communication individually
or in the aggregate could reasonably be expected to result in Holdings and
its Subsidiaries incurring material liability or a material obligation
under any Environmental Law.
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Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action Holdings or the applicable Commonly Controlled Entity
proposes to take with respect thereto.
10.8. Benefit and Pension Plans. The Borrower shall deliver to the
Administrative Agent, if requested by the Administrative Agent, acting
reasonably, promptly after the filing thereof with any applicable Governmental
Authority, copies of any annual and other return, report or valuation with
respect to each pension or benefit plan of, or for the benefit of any employees
of, the Borrower or any of its Subsidiaries prepared by them or at their
direction, and promptly after receipt thereof, a copy of any direction, notice
or other communication in respect of any breach of any Requirement of Law, which
would have the effect of increasing in any material respect for the Borrower and
its Subsidiaries taken as a whole the funding obligation in respect of any such
plan, or which could reasonably be expected to result in the imposition of any
Lien on any of the properties or assets of the Borrower or any of its
Subsidiaries, and any order or ruling that it may receive from any applicable
Governmental Authority with respect to any such plan.
10.9. Environmental Laws.
(a) Comply with, and will use commercially reasonable efforts to
ensure compliance by all tenants and subtenants, if any, with, all
applicable Environmental Laws, except to the extent that the failure to
comply therewith could not reasonably be expected to have a Material
Adverse Effect; and
(b) Conduct and complete (or cause to be conducted and completed)
all investigations, studies, sampling and testing, and all remedial,
removal and other actions required by Environmental Laws and in a timely
fashion comply with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws except to the extent that the
failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
10.10. Pledge of After Acquired Property. If at any time following
the Closing Date the Borrower or any of its Domestic Subsidiaries shall acquire
property with a monetary value on the date of such acquisition in excess of the
Equivalent Amount of $1,000,000 in the aggregate, the Borrower and any such
Domestic Subsidiary shall grant to the Collateral Agent for the benefit of the
Secured Parties a first priority or first ranking Lien on and security interest
in such property as collateral security for the Obligations pursuant to
documentation reasonably satisfactory to the Collateral Agent and take such
actions as the Collateral Agent shall reasonably require to ensure the priority
and perfection of such Lien, provided that (i) only 66% of the voting Capital
Stock of any direct Foreign Subsidiary of the Borrower or its Domestic
Subsidiaries need be so pledged, (ii) with respect to real or immovable
property, only fee owned real estate or immovable property in excess of
$1,000,000 need be mortgaged (provided, however, that if such mortgage would be
reasonably likely to result in any materially adverse liability (as determined
by Holdings and agreed to by the Collateral Agent, which agreement shall not be
unreasonably withheld), the property mortgaged pursuant hereto will be that
property, if any, which can be pledged without incurring such liability), (iii)
property subject to restrictions or limitations of the type permitted under
subsection 11.14(a)(ii) or (iii) need not be so pledged and (iv) property as to
which the Collateral Agent shall determine in its sole discretion that the costs
of obtaining such a security interest are excessive in relation to the value of
the security to be afforded thereby need not be so pledged. With respect to any
Mortgage required by this Section 10.10, if requested by the Collateral Agent,
the Borrower or such Domestic Subsidiary shall provide the Secured Parties with
(x) title and extended coverage insurance covering such real property in an
amount at least equal to the purchase price of such real property (or such other
amount as shall be reasonably specified by the Collateral Agent) as well as a
current ALTA survey thereof, together with a surveyor's certificate, (y) any
consents or estoppels
57
reasonably deemed necessary or advisable by the Collateral Agent in connection
with such Mortgage, each of the foregoing in form and substance reasonably
satisfactory to the Collateral Agent and (z) legal opinions relating to the
matters described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Collateral Agent.
10.11. Pledge During Event of Default. At any time during the
continuance of an Event of Default, upon the request of the Administrative
Agent, grant to the Collateral Agent for the benefit of the Secured Parties a
first priority or first ranking Lien on and security interest in any
unencumbered property of the Borrower and its Subsidiaries of any nature
whatsoever, as collateral security for the applicable Obligations, pursuant to
documentation reasonably satisfactory to the Administrative Agent and take such
actions as the Administrative Agent shall reasonably require to ensure the
priority and perfection of such Lien, provided, however, that if the grant of
such Lien would be reasonably likely to result in any adverse tax liability (as
determined by Holdings and agreed to by the Administrative Agent), the property
pledged pursuant hereto will be that property which can be pledged without
incurring such liability; provided, further, that (i) except with respect to the
Capital Stock of Viasystems Luxembourg S.a.r.l., only 66% of the voting Capital
Stock of any direct Foreign Subsidiary of the Borrower or its Domestic
Subsidiaries need be so pledged and (ii) no voting Capital Stock of any indirect
Foreign Subsidiary of the Borrower and its Domestic Subsidiaries need be so
pledged.
10.12. Additional Subsidiaries. If, at any time after the date of
this Agreement, the Borrower or any Domestic Subsidiary of the Borrower shall
form any new Subsidiary, the Borrower or such Subsidiary, as the case may be,
shall (i) if such Subsidiary is a Domestic Subsidiary of the Borrower, (x) cause
such new Subsidiary to guarantee the Obligations and (y) pledge to the
Administrative Agent all of the Capital Stock of such Subsidiary owned by the
Borrower or any of its Subsidiaries to secure the relevant obligations under the
Loan Documents and (ii) if such Subsidiary is a direct Foreign Subsidiary of the
Borrower or its Domestic Subsidiaries, pledge 66% of the voting Capital Stock of
such Subsidiary. Each pledge shall be accompanied by such resolutions,
incumbency certificates and legal opinions as are reasonably requested by the
Administrative Agent.
10.13. Intellectual Property. Upon request of the Administrative
Agent, the Credit Parties shall execute and deliver any and all agreements,
instruments, documents, and papers as the Collateral Agent may reasonably
request to evidence the Agent's security interest in any Copyright, Patent or
Trademark or such Intellectual Property and the goodwill and general intangibles
of such Credit Party relating thereto or represented thereby.
10.14. Use of Proceeds. Use the Revolving Credit Commitments to
refinance obligations of the Borrower under the DIP Credit Agreement and for
general corporate purposes (including to finance the working capital needs) of
the Borrower and its Subsidiaries. Use the Term Loans solely to refinance
obligations of the Borrower under the Pre-Petition Credit Agreement.
10.15. Change in Location, Names, etc. Neither the Borrower nor any
Domestic Subsidiary will, except on not less than 15 days' prior written notice
to the Collateral Agent under the Guarantee and Collateral Agreement and
delivery of all additional executed financing statements and other documents
reasonably requested by the Collateral Agent to maintain the validity,
perfection and priority of the security interests provided for in the Guarantee
and Collateral Agreement: (i) change its jurisdiction of organization or the
location of its chief executive office or sole place of business or principal
residence from that referred to in the Guarantee and Collateral Agreement or
(ii) change its name.
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10.16. Hedge Agreement Liabilities. Upon reasonable request of the
Administrative Agent, furnish to the Administrative Agent written notice of the
aggregate amount of Hedge Agreement Liabilities calculated in a manner
reasonably satisfactory to the Administrative Agent.
10.17. Title Insurance; Surveys, etc. (a) Within thirty (30) days
after the Closing Date, the Collateral Agent shall have received in respect of
the Virginia Property a mortgagee's title insurance policy (or policies) or
marked up unconditional binder for such insurance. Each such policy shall (A) be
in an amount satisfactory to the Collateral Agent; (B) be issued at ordinary
rates; (C) insure that the Mortgage insured thereby creates a valid first Lien
on the Virginia Property free and clear of all defects and encumbrances, except
as disclosed therein; (D) name the Collateral Agent for the benefit of the
Secured Parties as the insured thereunder; (E) be in the form of ALTA Loan
Policy - 1970 (Amended 10/17/70 and 10/17/84) (or equivalent policies); (F)
contain such endorsements and affirmative coverage as the Collateral Agent may
reasonably request and (G) be issued by title companies satisfactory to the
Collateral Agent (including any such title companies acting as co-insurers or
reinsurers, at the option of the Collateral Agent). The Collateral Agent shall
have received evidence satisfactory to it that all premiums in respect of each
such policy, all charges for mortgage recording tax, and all related expenses,
if any, have been paid. The Collateral Agent shall have received a copy of all
recorded documents referred to, or listed as exceptions to title in, the title
policy or policies referred to above and a copy of all other material documents
affecting the Virginia Property.
(b) Within thirty (30) days after the Closing Date, the Collateral
Agent shall have received, and the title insurance company issuing the policy
referred to in clause (a)(G) above (the "Title Insurance Company") shall have
received, maps or plats of an as-built survey of the Virginia Property certified
to the Collateral Agent and the Title Insurance Company in a manner satisfactory
to them, dated a date satisfactory to the Collateral Agent and the Title
Insurance Company by an independent professional licensed land surveyor
satisfactory to the Collateral Agent and the Title Insurance Company, which maps
or plats and the surveys on which they are based shall be made in accordance
with the Minimum Standard Detail Requirements for Land Title Surveys jointly
established and adopted by the American Land Title Association and the American
Congress on Surveying and Mapping in 1992, and, without limiting the generality
of the foregoing, there shall be surveyed and shown on such maps, plats or
surveys the following: (A) the locations on such sites of all the buildings,
structures and other improvements and the established building setback lines;
(B) the lines of streets abutting the sites and width thereof; (C) all access
and other easements appurtenant to the sites; (D) all roadways, paths,
driveways, easements, encroachments and overhanging projections and similar
encumbrances affecting the site, whether recorded, apparent from a physical
inspection of the sites or otherwise known to the surveyor; (E) any
encroachments on any adjoining property by the building structures and
improvements on the sites; (F) if the site is described as being on a filed map,
a legend relating the survey to said map; and (G) the flood zone designations,
if any, in which the Virginia Property is located.
SECTION 11. NEGATIVE COVENANTS
The Borrower and Holdings each hereby agrees that, so long as any
Commitment remains in effect, any Loan remains outstanding and unpaid, any
Letter of Credit is outstanding or any other Obligations are owing to any
Secured Party, the Borrower and Holdings shall not, and (except with respect to
subsection 11.1) shall not permit any of its Subsidiaries to, directly or
indirectly:
11.1. Financial Condition Covenants.
(a) Interest Coverage. Permit the Interest Coverage Ratio of the
Borrower for any period of four consecutive calendar quarters ending at
the end of the calendar quarters set forth below to be less than the ratio
set forth opposite such calendar quarter below:
59
Calendar Quarter Ratio
2002 4th 2.00 to 1.00
2003 1st 2.00 to 1.00
2nd 2.25 to 1.00
3rd 2.25 to 1.00
4th 2.25 to 1.00
2004 1st 2.75 to 1.00
2nd 2.75 to 1.00
3rd 3.00 to 1.00
4th 3.25 to 1.00
2005 1st 4.00 to 1.00
2nd 4.00 to 1.00
3rd 4.25 to 1.00
4th 4.25 to 1.00
2006 1st 4.25 to 1.00
2nd 4.25 to 1.00
3rd 4.50 to 1.00
4th 4.50 to 1.00
2007 1st 4.50 to 1.00
2nd 4.50 to 1.00
3rd 4.75 to 1.00
4th 4.75 to 1.00
2008 1st 5.00 to 1.00
2nd 5.00 to 1.00
(b) Maintenance of Consolidated Total Debt to Consolidated EBITDA.
Permit the ratio of Consolidated Total Debt of the Borrower to
Consolidated EBITDA of the Borrower for any period of four consecutive
calendar quarters ending at the end of the calendar quarters set forth
below to be greater than the ratio set forth opposite such calendar
quarter below:
Calendar Quarter Ratio
2002 4th 7.50 to 1.00
2003 1st 6.50 to 1.00
2nd 6.00 to 1.00
3rd 5.50 to 1.00
4th 5.25 to 1.00
2004 1st 4.25 to 1.00
2nd 4.00 to 1.00
3rd 3.75 to 1.00
4th 3.25 to 1.00
2005 1st 3.00 to 1.00
2nd 3.00 to 1.00
3rd 2.75 to 1.00
4th 2.50 to 1.00
2006 1st 2.50 to 1.00
2nd 2.50 to 1.00
3rd 2.25 to 1.00
4th 2.25 to 1.00
60
2007 1st 2.25 to 1.00
2nd 2.00 to 1.00
3rd 2.00 to 1.00
4th 2.00 to 1.00
2008 1st 1.75 to 1.00
2nd 1.75 to 1.00
(c) Maintenance of Consolidated EBITDA. Permit Consolidated EBITDA
of the Borrower for any period of four consecutive calendar quarters
ending at the end of the calendar quarters set forth below to be less than
the amount set forth opposite such calendar quarter below:
Calendar Quarter Amount
----------------- ------------
2002 4th $63,600,000
2003 1st $70,000,000
2nd $75,000,000
3rd $80,000,000
4th $85,000,000
2004 1st $100,000,000
2nd $105,000,000
3rd $110,000,000
4th $130,000,000
2005 1st $152,900,000
2nd $156,500,000
3rd $159,900,000
4th $163,700,000
2006 1st $166,600,000
2nd $169,700,000
3rd $172,700,000
4th $175,900,000
2007 1st $178,000,000
2nd $180,200,000
3rd $182,400,000
4th $184,700,000
2008 1st $186,900,000
2nd $189,200,000
11.2. Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness of the Credit Parties under the Loan Documents;
(b) (i) Indebtedness among the Credit Parties, (ii) Indebtedness of
Foreign Subsidiaries of the Borrower that are not Credit Parties to the Credit
Parties in an aggregate Equivalent Amount outstanding not to exceed $25,000,000
at any one time, (iii) Indebtedness of Non-Credit Parties to other Non-Credit
Parties and (iv) Indebtedness of any Credit Party to any Non-Credit Party (so
long as the obligations of such Credit Party in respect thereof are
contractually subordinated to the obligations of such Credit Party under the
Loan Documents to which it is a party on terms reasonably satisfactory to the
Administrative Agent);
61
(c) Indebtedness of Subsidiaries of Holdings listed on Schedule 11.2
and extensions, renewals or replacements thereof provided that no such
extension, renewal or replacement shall increase the principal amount thereof
except to the extent the increase in such Indebtedness could otherwise be
incurred under this subsection 11.2;
(d) Indebtedness resulting from the endorsement of negotiable
instruments in the ordinary course of business;
(e) Indebtedness of Subsidiaries of Holdings in respect of
obligations under Financing Leases and purchase money Indebtedness in an
aggregate amount outstanding not to exceed, together with Indebtedness permitted
under clauses (l) and (o) below, the Equivalent Amount of $25,000,000 at any one
time;
(f) Indebtedness in respect of Hedge Agreements expressly permitted
by subsection 11.18;
(g) Guarantee Obligations permitted by subsection 11.4;
(h) Indebtedness (other than for borrowed money) subject to Liens
permitted under subsections 11.3(b), (c), (d), (e) and (i);
(i) INTENTIONALLY OMITTED
(j) additional Indebtedness of Subsidiaries of Holdings in an
aggregate principal amount outstanding not to exceed the Equivalent Amount of
$10,000,000 at any one time;
(k) at any time following the termination of the Revolving Credit
Commitments, Indebtedness of Subsidiaries of Holdings in respect of unsecured
revolving lines of credit in an aggregate amount outstanding not to exceed
$100,000,000 at any one time;
(l) (i) unsecured Indebtedness of Subsidiaries of Holdings to the
seller in any Permitted Acquisition or (ii) Indebtedness assumed in connection
with any Permitted Acquisition in an aggregate amount for clauses (i) and (ii)
for all Permitted Acquisitions not to exceed, together with Indebtedness
permitted under clause (e) above and clause (o) below, the Equivalent Amount of
$25,000,000; provided that at the time of incurrence the requirements of
subsection 11.9(k) shall be satisfied;
(m) Indebtedness of any Foreign Subsidiary of the Borrower which is
not a Credit Party under overdraft facilities incurred in the ordinary course of
business in an aggregate amount outstanding not to exceed the Equivalent Amount
of $20,000,000 at any one time;
(n) (i) Additional Senior Subordinated Indebtedness of Holdings or
the Borrower (subject to pro forma compliance with subsection 11.1), so long as
any Net Cash Proceeds of such Indebtedness are immediately used to make a
prepayment of the Term Loans in accordance with subsection 5.3(a) and (ii)
Guarantee Obligations of any such Indebtedness incurred by any Credit Party so
long as such obligations are subordinated to the obligations of such Credit
Party under the Loan Documents on terms substantially comparable to the
subordination terms applicable to such Indebtedness (as reasonably determined by
the Administrative Agent); and
(o) Indebtedness arising from agreements with Governmental
Authorities of any foreign country, or political subdivision or agency thereof,
relating to the construction of plants and the
62
purchase and installation (including related training costs) of equipment to be
used in a Related Business; provided that such Indebtedness in the aggregate,
together with Indebtedness permitted under clauses (e) and (l) above, does not
exceed the Equivalent Amount of $25,000,000.
Notwithstanding the foregoing, no Subsidiary of Holdings that is organized under
the laws of or contains assets located in (a) the People's Republic of China
shall create, incur, assume or suffer to exist any Indebtedness other than (i)
Indebtedness of any such Subsidiary listed on Schedule 11.2 and extensions,
renewals or replacements thereof provided that no such extension, renewal or
replacement shall increase the principal amount thereof, (ii) Indebtedness of
such Subsidiaries permitted pursuant to subsection 11.2(b) and (iii) additional
Indebtedness of such Subsidiaries in an aggregate principal amount which,
together with the aggregate principal amount of Indebtedness outstanding
pursuant to the foregoing clause (a)(i), does not exceed the Equivalent Amount
of $27,600,000 at any one time or (b) the Netherlands shall create, incur,
assume or suffer to exist any Indebtedness other than (i) Indebtedness of any
such Subsidiary listed on Schedule 11.2 and extensions, renewals or replacements
thereof provided that no such extension, renewal or replacement shall increase
the principal amount thereof, (ii) Indebtedness of such Subsidiaries permitted
pursuant to subsection 11.2(b) and (iii) additional Indebtedness of such
Subsidiaries in an aggregate principal amount which, together with the aggregate
principal amount of Indebtedness outstanding pursuant to the foregoing clause
(b)(i), does not exceed the Equivalent Amount of $10,000,000 at any one time.
11.3. Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens created by the Loan Documents;
(b) Liens for taxes not yet overdue by more than sixty (60) days or
which are being contested in good faith by appropriate proceedings,
provided that adequate reserves with respect to contested taxes are
maintained on the books of Holdings or its Subsidiaries, as the case may
be, in conformity with GAAP;
(c) carriers', landlords', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business which are not overdue for a period of more than sixty
(60) days or which are being contested in good faith by appropriate
proceedings;
(d) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(e) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, insurance
contracts, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(f) easements, rights-of-way, zoning restrictions, restrictions and
other similar encumbrances (i) previously or hereinafter incurred in the
ordinary course of business which, in the aggregate, are not material in
amount and which, in the case of such encumbrances on any of the Mortgaged
Properties, do not in the aggregate materially detract from the value of
the Mortgaged Property subject thereto or, in the case of such
encumbrances on any Mortgaged Property, materially interfere with the
ordinary conduct of the business of Holdings or its Subsidiaries or (ii)
which are set forth in the "marked up" commitments for title insurance at
any time delivered to the Administrative Agent;
63
(g) Liens in existence listed on Schedule 11.3, securing
Indebtedness permitted by subsection 11.2(c) (including extensions,
renewals and replacements of such Indebtedness as permitted under
subsection 11.2(c)), provided that no such Lien is spread to cover any
additional property (other than after acquired title in or on such
property and proceeds of the existing collateral in accordance with the
instrument creating such Lien) after such date and that the amount of
Indebtedness secured thereby is not increased (other than pursuant to
subsection 11.3(o));
(h) (i) purchase money Liens and Liens in respect of Financing
Leases upon or in any property acquired or held by Subsidiaries of
Holdings to secure Indebtedness permitted under subsection 11.2(e)
incurred solely for the purpose of financing the acquisition of such
property, and (ii) Liens existing on such property at the time of its
acquisition or existing on property of any Person that becomes a
Subsidiary after the date hereof at the time such Person becomes a
Subsidiary (other than any such Lien created in contemplation of such
acquisition), provided that in the case of clauses (i) and (ii), the
aggregate principal amount of Indebtedness secured thereby, together with
the aggregate principal amount of Indebtedness secured pursuant to clause
(o) below, shall not exceed $25,000,000;
(i) Liens on the property of Holdings or any of its Subsidiaries in
favor of landlords securing licenses, subleases, or leases permitted
hereunder;
(j) licenses, leases or subleases permitted hereunder granted to
others not interfering in any material respect in the business of Holdings
or any of its Subsidiaries;
(k) attachment or judgment Liens (other than judgment Liens paid or
fully covered by insurance which are not outstanding for more than sixty
(60) days unless such judgment has been vacated, discharged, stayed or
bonded pending appeal) in an aggregate amount outstanding at any one time
not in excess of the Equivalent Amount of $20,000,000;
(l) Liens arising from precautionary Uniform Commercial Code
financing statement filings with respect to operating leases or
consignment arrangements entered into by Holdings or any of its
Subsidiaries in the ordinary course of business;
(m) Liens in favor of a banking institution arising by operation of
law encumbering deposits (including the right of set-off) held by such
banking institutions incurred in the ordinary course of business and which
are within the general parameters customary in the banking industry;
(n) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to Subsidiaries of Holdings) the Equivalent
Amount of $10,000,000 in aggregate amount at any time outstanding; and
(o) Liens on property financed thereby securing grants and
Indebtedness permitted under subsection 11.2(o).
11.4. Limitation on Guarantee Obligations. Create, incur, assume or
suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations pursuant to the Loan Documents;
64
(b) guarantees set forth on Schedule 11.4 and extensions, renewals
and replacements thereof, provided, however, that no such extension,
renewal or replacement shall (i) amend or modify the subordination
provisions, if any, contained in such guarantee in a manner adverse to the
Secured Parties or (ii) increase the principal amount of such Indebtedness
guaranteed by the original guarantee except to the extent that the
increase in the Indebtedness covered by such guarantee was permitted under
subsection 11.2;
(c) the Letter of Credit Obligations;
(d) indemnities in favor of the companies issuing title insurance
policies insuring the title to any property to induce such issuance;
(e) surety bonds issued in respect of the type of obligations
described in subsection 11.3(e);
(f) indemnities made in the Loan Documents, the monitoring and
oversight agreement and the financial advisory agreements terminated on
March 29, 2000 or in any of the agreements contemplated thereby and in the
corporate charter and/or bylaws of Holdings and its Subsidiaries;
(g) (i) indemnities and guarantees (other than guarantees of
Indebtedness), provided that such indemnities and guarantees could not
individually or in the aggregate have a Material Adverse Effect and (ii)
guarantees of Indebtedness of Subsidiaries of Holdings permitted hereunder
made in the ordinary course of business, provided that such guarantees
could not individually or in the aggregate have a Material Adverse Effect,
provided, that in each case with respect to this paragraph (g), no
guarantee may be made by any Credit Party in respect of obligations or
liabilities of any Non-Credit Party;
(h) Guarantee Obligations of Holdings or its Subsidiaries in respect
of the incurrence of grants and Indebtedness permitted under subsection
11.2(o);
(i) guarantees by Holdings and the Borrower of Indebtedness
permitted under subsection 11.2(j); and
(j) Guarantee Obligations permitted by subsection 11.2(n)(ii).
11.5. Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except (i) a merger, consolidation, amalgamation, liquidation, winding
up, dissolution, conveyance, sale, lease, assignment, transfer or disposition of
a Subsidiary of the Borrower or all or substantially all of the property,
business or assets of a Subsidiary of the Borrower, the purpose of which is to
dispose of assets in a transaction otherwise permitted under subsection 11.6,
(ii) any merger, consolidation or amalgamation, the purpose of which is to
effect an Investment otherwise expressly permitted by subsection 11.9, (iii) any
Subsidiary of Holdings (other than the Borrower) may be merged or consolidated
with or into the Borrower or any one or more Subsidiaries of the Borrower, (iv)
any Subsidiary of Holdings (other than the Borrower) may liquidate or dissolve
if, in connection therewith, all of its assets are transferred to the Borrower
or a Subsidiary thereof; and (v) any Subsidiary of Holdings (other than the
Borrower) may convey, sell, lease, assign, transfer or otherwise dispose of all
or substantially all of its assets to the Borrower or any other Subsidiary;
provided that (A) in the case of clause (ii) above, if Holdings or any of its
Subsidiaries party thereto is a Credit Party, the survivor of such transaction
shall become a Credit Party, (B) in the case of
65
each of clauses (iii), (iv) and (v) above, if any such merger, consolidation,
liquidation, dissolution, conveyance, sale, lease, assignment, transfer or
disposition shall be between (x) a Subsidiary that is not a Wholly Owned
Subsidiary and a Wholly Owned Subsidiary, the continuing or surviving Person
shall be owned in a percentage such that the value of the continuing or
surviving Person shall not be less than the aggregate value of such Subsidiaries
immediately prior to such transaction and (y) a Credit Party and a Non-Credit
Party, the continuing or surviving Person, or the transferee, as the case may
be, shall be (i) a Credit Party or (ii) such transaction shall fit within the
limitations for Indebtedness to or Investments in Non-Credit Parties set forth
in subsections 11.2 and 11.9 and (C) in the case of clause (iv) above, if such
Subsidiary is a Non-Credit Party, such assets need not be so transferred if such
liquidation, wind up or dissolution is reasonably determined by the
Administrative Agent not to adversely affect the interests of the Lenders.
11.6. Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, except:
(a) (i) obsolete or worn out property disposed of in the ordinary
course of business or (ii) property that is no longer useful in the
conduct of Holdings' business disposed of in the ordinary course of
business (provided, that with respect to clause (ii) above, the aggregate
book value of assets disposed shall not exceed $5,000,000 in the
aggregate);
(b) the sale, transfer or exchange of inventory in the ordinary
course of business;
(c) transfers resulting from any casualty or condemnation of
property or assets;
(d) any sale or other transfer of any property or assets
constituting fixed assets for at least 75% cash, provided that the net
cash proceeds of the sales and transfers made pursuant to this paragraph
(d) in the aggregate do not exceed the Equivalent Amount of $25,000,000 in
any fiscal year;
(e) intercompany sales or transfers of assets made in the ordinary
course of business;
(f) licenses or sublicenses of intellectual property and general
intangibles and licenses, leases or subleases of other property in the
ordinary course of business and which do not materially interfere with the
business of Holdings and its Subsidiaries;
(g) any consignment arrangements or similar arrangements for the
sale of assets in the ordinary course of business;
(h) the sale or discount of overdue accounts receivable arising in
the ordinary course of business, but only in connection with the
compromise or collection thereof; and
(i) dispositions permitted by subsection 11.5 or listed on Schedule
11.20.
11.7. Limitation on Dividends. Declare or pay any dividend (other
than dividends payable solely in Capital Stock of the Borrower or Holdings of
the same class or pursuant to a dividend reinvestment plan whereby the relevant
dividend results solely in an increase of the amount of Capital Stock of the
relevant class held by the relevant stockholder) on, or make any payment on
account of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition of, any class
of Capital Stock of Holdings or any of its Subsidiaries, whether now or
hereafter outstanding, or make any other distribution in respect thereof, either
directly or indirectly,
66
whether in cash or property, obligations of Holdings or any Subsidiary or
otherwise (such declarations, payments, setting apart, purchases, redemptions,
defeasances, retirements, acquisitions and distributions being herein called
"Restricted Payments"), except that:
(a) the Borrower may make Restricted Payments to Holdings, so long
as no Event of Default under subsection 12(a) exists with respect to
clause (ii) below and no other Event of Default exists with respect to any
other clause in this paragraph (a), or would be continuing after giving
effect to such Restricted Payment:
(i) the proceeds of which shall be applied by Holdings
directly to pay out of pocket expenses, for administrative, legal
and accounting services provided by third parties that are
reasonable and customary and incurred in the ordinary course of
business for such professional services, or to pay franchise fees,
costs and expenses associated with the issuance and maintenance of
its Capital Stock and similar costs and expenses;
(ii) payments, the proceeds of which will be used to pay taxes
of Holdings as part of a consolidated group;
(iii) if such Restricted Payment is a purchase of Capital
Stock or a distribution to Holdings to permit Holdings to purchase
its Capital Stock, in either case (except as provided below), made
in order to fulfill the obligations of Holdings or the Borrower
under an employee stock purchase plan or similar plan covering
employees of Holdings or any Subsidiary as from time to time in
effect in an aggregate net amount not to exceed $5,000,000, provided
that up to $1,000,000 may be expended pursuant to this clause to
permit Holdings to purchase Capital Stock from employees of Holdings
or any Subsidiary whether or not Holdings is obligated to do so
pursuant to any such plan; and
(iv) Restricted Payments made to Holdings to finance any
Investment permitted to be made by Holdings pursuant to subsection
11.9, provided that (i) such Restricted Payment shall be made
concurrently with the closing of such Investment and (ii) Holdings
shall, immediately following the closing thereof, cause (A) the
assets or Capital Stock acquired to be contributed to the Borrower
or its Subsidiaries or (B) the merger of the Borrower with the
Person formed to consummate or acquired in such Investment;
(b) preferred stock of Holdings may be exchanged into common stock
of Holdings so long as no cash or other amounts are paid or contributed to
Holdings or its Subsidiaries in connection therewith;
(c) any Subsidiary of the Borrower may make Restricted Payments to
the Borrower or to its Subsidiaries (and, on a pro rata basis, to any
other stockholder of such Subsidiary); and
(d) the Borrower may make Restricted Payments to Holdings, the
proceeds of which will be used to make cash payments in lieu of issuing
fractional shares of Holding's Capital Stock in an aggregate amount not to
exceed $100,000.
11.8. Limitation on Capital Expenditures. (a) Make or commit to make
any Capital Expenditure except for expenditures in the ordinary course of
business not exceeding, in the aggregate for the Borrower and its Subsidiaries
during any period of two consecutive calendar quarters ending at the end of the
calendar quarters set forth below, the amount set forth opposite such calendar
quarter below:
67
Calendar Quarter Amount
---------------- ------
2002 4th $13,400,000
2003 2nd $45,000,000
4th $47,000,000
2004 2nd $50,400,000
4th $52,600,000
2005 2nd $54,800,000
4th $57,200,000
2006 2nd $57,200,000
4th $59,800,000
2007 2nd $57,200,000
4th $59,800,000
2008 2nd $57,200,000
; provided that 100% of any amount not used in any period of two consecutive
calendar quarters may be carried forward only into the next succeeding period of
two consecutive calendar quarters (except that with respect to the last two
calendar quarters in 2002, the amount permitted to be carried over to the first
two calendar quarters of 2003 shall be the sum of (i) the unused amount for the
period of the last two calendar quarters of 2002 and (ii) $10,700,000);
provided, further, that Capital Expenditures made pursuant to this Section
during any such period shall be deemed made, first, in respect of amounts
permitted for such period as provided above and, second, in respect of amounts
carried over from the prior period pursuant to the proviso above.
(b) In addition to the Capital Expenditures permitted pursuant to
paragraph (a) of this subsection 11.8, to the extent such proceeds are not
otherwise utilized pursuant to the penultimate paragraph of subsection 11.9,
Borrower and its Subsidiaries may make additional Capital Expenditures (which
shall not be counted in the limitations set forth in paragraph (a) of this
subsection 11.8) consisting of the investment of the Net Cash Proceeds not
required to be applied to prepay the Term Loans or cash collateralize Letters of
Credit pursuant to subsection 5.3, including (x) with respect to the investment
of proceeds of the insurance and condemnation proceeds not required to prepay
the Term Loans pursuant to subsection 5.3(e) and (y) with respect to the
investment of proceeds of the sale of assets which are permitted pursuant to
subsection 11.6
(c) Notwithstanding the foregoing, in no event shall Capital
Expenditures be made by Holdings (other than in connection with an Investment
permitted under subsection 11.9).
11.9. Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person
("Investments"), except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) (i) Investments (other than Permitted Acquisitions) by Holdings
and its Subsidiaries in any of the Guarantors that are Domestic
Subsidiaries, (ii) Investments by Credit Parties in other Credit Parties;
(iii) Investments by Non-Credit Parties in Credit Parties (on a
subordinated basis in the case of any Indebtedness) or other Non-Credit
Parties; (iv) if the ratio of Consolidated Total Debt of the Borrower to
Consolidated EBITDA of the Borrower for the most
68
recent period of four consecutive calendar quarters is greater than 3.0 to
1.00, capital contributions to Foreign Subsidiaries in order to comply
with "thin capitalization" requirements in an aggregate principal amount
not exceeding, unless otherwise agreed by the Administrative Agent, the
Equivalent Amount of $5,000,000 and (v) if the ratio of Consolidated Total
Debt of the Borrower to Consolidated EBITDA of the Borrower for the most
recent period of four consecutive calendar quarters is less than or equal
to 3.0 to 1.00, capital contributions to Foreign Subsidiaries in an
aggregate principal amount not exceeding, unless otherwise agreed by the
Administrative Agent, the Equivalent Amount of $10,000,000 (provided that
the Equivalent Amount of such capital contributions pursuant to the
foregoing clauses (iv) and (v) shall reduce the amount of Indebtedness
that is permitted by subsection 11.2(b)(ii) dollar for dollar);
(d) loans and advances by Holdings or its Subsidiaries to their
respective directors, officers and employees in an aggregate principal
amount not exceeding the Equivalent Amount of $2,500,000 at any one time
outstanding;
(e) loans, advances or Investments listed on Schedule 11.9, and
extensions, renewals, modifications or restatements or replacements
thereof, provided that no such extension, renewal, modification or
restatement shall (i) increase the amount of the original loan, advance or
investment, or (ii) adversely affect the interests of the Secured Parties
with respect to such original loan, advance or investment or the interests
of the Lenders under this Agreement or any other Loan Document in any
material respect;
(f) Investments permitted by subsection 11.2(b), (c) or (j),
subsection 11.4, subsection 11.7 or subsection 11.8;
(g) promissory notes and other similar non-cash consideration
received by the Subsidiaries of Holdings in connection with the
dispositions permitted by subsection 11.6;
(h) Investments in Hedge Agreements expressly permitted by
subsection 11.18;
(i) Investments (including debt obligations and Capital Stock)
received in connection with the bankruptcy or reorganization of suppliers
and customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course of
business;
(j) in addition to the foregoing and clause (l) below, Investments
by Holdings and its Subsidiaries in an aggregate amount not exceeding the
Equivalent Amount of $25,000,000 (at cost, without regard to any write
down or write up thereof) at any one time outstanding; provided that if
such Investment is consummated by Holdings, Holdings shall, immediately
following the closing thereof, cause (A) the assets or Capital Stock
acquired to be contributed to the Borrower or its Subsidiaries or (B) the
merger of the Borrower with the Person formed to consummate or acquired in
such Investment;
(k) so long as after giving effect thereto no Default or Event of
Default shall have occurred and be continuing, Investments after the
Closing Date by Holdings and its Subsidiaries resulting from Permitted
Acquisitions in an aggregate amount not exceeding the Equivalent Amount of
$5,000,000 in any fiscal year (and, in addition, with respect to Permitted
Acquisitions from customers in "outsourcing transactions", $10,000,000 in
any fiscal year); provided, that (i) the Administrative Agent shall have
received, prior to or simultaneously with such Permitted Acquisition, such
opinions (including with respect to environmental matters), certificates
and copies of related agreements and documents as it shall reasonably
request, (ii) such actions as
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may be required or reasonably requested to ensure that the Collateral
Agent, for the benefit of the Secured Parties, has a perfected first
priority security interest or first ranking hypothec in any assets
required to be secured pursuant to subsections 10.10 and 10.12 or any
other Loan Document, subject to Liens permitted by subsection 11.3, shall
have been taken, (iii) (I) on a pro forma basis for the period of four
consecutive fiscal quarters most recently ended (assuming the consummation
of such Permitted Acquisition and the incurrence or assumption of any
Indebtedness in connection therewith occurred on the first day of such
period of four consecutive fiscal quarters), (A) the Borrower shall be in
compliance with the covenants contained in subsection 11.1 (and, if
applicable, the requirements of subsection 11.2) and (B) at least
$10,000,000 in Revolving Credit Commitments shall be available to the
Borrower and (II) the Administrative Agent shall have received
calculations in reasonable detail reasonably satisfactory to it showing
compliance with the requirements of this clause (iii) certified by a
Responsible Officer of the Borrower and (iv) if such Permitted Acquisition
is entered into by Holdings, Holdings shall, immediately following the
closing thereof cause (A) the assets or stock acquired to be contributed
to the Borrower or its Subsidiaries or (B) the merger of the Borrower with
the Person formed to consummate or acquired in such Permitted Acquisition;
and
(l) Investments by Holdings made with the proceeds of issuances of
Capital Stock by Holdings (i) in Subsidiaries of Holdings or (ii) made in
any other Person not to exceed the Equivalent Amount of $50,000,000 in the
case of this clause (ii); provided, that on a pro forma basis for the
period of four consecutive fiscal quarters most recently ended (assuming
such Investment was made on the first day of such period of four
consecutive fiscal quarters), the Borrower shall be in compliance with the
covenants contained in subsection 11.1.
In addition to the Investments permitted pursuant to this subsection
11.9, to the extent such proceeds are not otherwise utilized pursuant to
subsection 11.8(b), Holdings and its Subsidiaries may make additional
Investments (which shall not be counted in the limitations set forth above)
consisting of the investment of Net Cash Proceeds not required to be applied to
prepay the Term Loans or cash collateralize the Letters of Credit pursuant to
subsection 5.3(b) with respect to the investment of proceeds of the insurance
and condemnation proceeds not required to prepay the Term Loans or cash
collateralize the Letters of Credit pursuant to subsection 5.3; provided that if
such Investment is consummated by Holdings, Holdings shall, immediately
following the closing thereof, cause (A) the assets or Capital Stock acquired to
be contributed to the Borrower or its Subsidiaries or (B) the merger of the
Borrower with the Person formed to consummate or acquired in such Investment.
Notwithstanding anything to the contrary in this subsection 11.9, no
hostile acquisition of any publicly traded Capital Stock of any Person
contemplated to become a Subsidiary of (or merged into) Holdings or any of its
Subsidiaries may be made by Holdings or any of its Subsidiaries.
11.10. Limitation on Optional Payments and Modifications of Certain
Instruments. (a) Amend, modify, waive or otherwise change, or consent or agree
to any amendment, modification, waiver or other change to, any of the terms of
the Senior Convertible Preferred Stock or the Junior Preferred Stock (other than
any such amendment, modification, waiver or other change that (i) would extend
the scheduled redemption date or reduce the amount of any scheduled redemption
payment or reduce the rate or extend any date for payment of dividends thereon
or does not otherwise adversely affect the rights and interests of the Lenders
and (ii) does not involve the payment of a consent fee).
(b) Make any optional payment or prepayment on or redemption of any
Additional Senior Subordinated Indebtedness or Specified Indebtedness and any
payments in redemption, defeasance or repurchase thereof, except mandatory
payments of interest, fees and expenses required by the terms of the agreement
governing or instrument evidencing such Indebtedness but only to the extent
permitted
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under the subordination provisions applicable thereto and except, in the case of
Additional Senior Subordinated Indebtedness, for refinancings of any such
Additional Senior Subordinated Indebtedness under terms that would be permitted
for new issuances of Additional Senior Subordinated Indebtedness by virtue of
the definition thereof.
(c) Amend, supplement or otherwise modify any of the provisions of
any Additional Senior Subordinated Indebtedness or Specified Indebtedness:
(i) which amends or modifies the subordination provisions contained
therein;
(ii) which, with respect to any such Indebtedness already
outstanding under the relevant agreement or instrument, shortens the fixed
maturity, or increases the rate or shortens the time of payment of
interest on, or increases the amount (other than pursuant to an
incremental incurrence of Indebtedness resulting in cash proceeds to
Holdings or the Borrower, as applicable) or shortens the time of payment
of any principal or premium payable whether at maturity, at a date fixed
for prepayment or by acceleration or otherwise of such Indebtedness, or
increases the amount of, or accelerates the time of payment of, any fees
payable in connection therewith;
(iii) which relates to the affirmative or negative covenants, events
of default or remedies under the documents or instruments evidencing such
Indebtedness and the effect of which is to subject the Borrower or any of
its Subsidiaries, to any materially more onerous or more restrictive
provisions; or
(iv) which otherwise adversely affects the interests of the Lenders
as senior creditors or the interests of the Lenders under this Agreement
or any other Loan Document in any material respect.
(d) Make any payment in cash on any subordinated debt security that
may be made under the terms thereof by the issuance of any security of the same
nature.
(e) Designate any Indebtedness (other than the Indebtedness under
the Loan Documents) as "Designated Senior Indebtedness" (or any comparable
concept) under any Additional Senior Subordinated Indebtedness.
11.11. Limitation on Transactions with Affiliates. (a) Enter into
any transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (i) otherwise permitted under this Agreement, or (ii) upon
fair and reasonable terms no less favorable to Holdings or such Subsidiary, as
the case may be, than it would obtain in a comparable arm's length transaction
with a Person which is not an Affiliate.
(a) In addition, notwithstanding the foregoing, Holdings and its
Subsidiaries shall be entitled to make the following payments and/or to enter
into the following transactions:
(i) the payment of reasonable and customary fees and reimbursement
of expenses payable to directors of Holdings; and
(ii) the employment arrangements with respect to the procurement of
services of directors, officers and employees in the ordinary course of
business and the payment of reasonable fees in connection therewith.
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Notwithstanding anything to the contrary in this Agreement (including the
foregoing clauses (a) and (b)), neither Holdings nor any of its Subsidiaries
shall accrue or make any payment with respect to any management fee (i) to any
Affiliate of Holdings or any of its Subsidiaries or (ii) to HMTF or any of its
Affiliates, except that (x) a management fee may be accrued (but not paid) in
respect of each fiscal year of the Borrower (commencing with the 2003 fiscal
year) in an amount equal to the lesser of (I) 2% of Consolidated EBITDA for such
fiscal year and (II) $1,500,000, which accrual shall be deemed earned upon
delivery of financial statements for such fiscal year in accordance with
subsection 10.1(a) and shall be subordinated to the Obligations on terms
reasonably satisfactory to the Administrative Agent, and (y) if, and only if,
the ratio of Consolidated Total Debt of the Borrower to Consolidated EBITDA of
the Borrower for the relevant fiscal year is less than the applicable ratio set
forth below, the Borrower may pay up to 100% of the management fee earned in
respect of such fiscal year and up to 50% of any management fees earned but not
paid in respect of any previous fiscal year.
Fiscal Year Ratio
----------- -----
2003 3.50 to 1.00
2004 3.25 to 1.00
2005 2.50 to 1.00
2006 2.25 to 1.00
2007 2.00 to 1.00
11.12. Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by Holdings or any
Subsidiary of real or personal, immovable or movable, property which has been or
is to be sold or transferred by Holdings or such Subsidiary to such Person or to
any other Person to whom funds have been or are to be advanced by such Person on
the security of such property or rental obligations of Holdings or such
Subsidiary; provided that this subsection 11.12 shall not prohibit any sale and
leaseback resulting from the incurrence of any lease in respect of any capital
asset entered into within 180 days of the acquisition of such capital asset for
the purpose of providing permanent financing of such capital asset.
11.13. Limitation on Changes in Fiscal Year. Permit the fiscal year
of the Borrower to end on a day other than December 31; provided that the
Borrower may change such fiscal year upon the approval of the Administrative
Agent.
11.14. Negative Pledge Clauses; Restrictions Affecting Subsidiaries.
Enter into with any Person, or suffer to exist any agreement which prohibits or
limits the ability of Holdings or any of its Subsidiaries to (a) create, incur,
assume or suffer to exist any Lien upon any of its property, assets or revenues,
whether now owned or hereafter acquired, other than (i) this Agreement and the
other Loan Documents, (ii) any industrial revenue bonds (including government
loans), purchase money mortgages or Financing Leases or any other similar
agreement or transaction permitted by this Agreement (in which cases, any
prohibition or limitation shall only be effective against the assets financed
thereby) and (iii) restrictions in leases, licenses and asset sale agreements
otherwise permitted hereby so long as such restrictions apply only to the assets
subject thereto or (b) pay dividends or make other distributions or pay any
Indebtedness owed to Holdings or any of its Subsidiaries except as permitted by
this Agreement and the other Loan Documents.
11.15. Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for any Related Business.
11.16. Amendments to Corporate Documents; Supply Agreement. (a)
Amend its certificate of incorporation or by-laws or other governing documents
unless such amendment does not
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adversely affect the interests of any Secured Party (as such) in any material
respect, or (b) amend, supplement or otherwise modify the terms and conditions
of the Supply Agreement except to the extent that any such amendment, supplement
or modification could not reasonably be expected to have a Material Adverse
Effect.
11.17. Passive Status. (a) Permit International Holdings to (i)
conduct, transact or otherwise engage in, or commit to conduct, transact or
otherwise engage in, any business or operations other than those incidental to
its ownership of the Capital Stock of certain Subsidiaries of the Borrower, (ii)
incur, create, assume or suffer to exist any Indebtedness or other liabilities
or financial obligations, except obligations pursuant to the Loan Documents to
which it is a party and Indebtedness to the Borrower in which the Collateral
Agent has been granted a Lien for the benefit of the Secured Parties, or (iii)
own, lease, manage or otherwise operate any properties or assets other than the
ownership of shares of Capital Stock of certain Subsidiaries of the Borrower.
(b) Permit any Subsidiary of Holdings that is organized under the
laws of or owns assets located in the People's Republic of China (other than any
Chinese Opco), or any Subsidiary of International Holdings that directly or
indirectly owns the Capital Stock of any such Subsidiary or any Chinese Opco, to
(i) conduct, transact or otherwise engage in, or commit to conduct, transact or
otherwise engage in, any business or operations other than those incidental to
its ownership of the Capital Stock of any other Person, (ii) incur, create,
assume or suffer to exist any Indebtedness or other liabilities or financial
obligations, except obligations pursuant to the Loan Documents to which it is a
party, or (iii) own, lease, manage or otherwise operate any properties or assets
other than the ownership of shares of Capital Stock of any other Person.
11.18. Hedge Agreements. Enter into any Hedge Agreement, except
Hedge Agreements entered into with a Lender to hedge or mitigate risks to which
Holdings or any Subsidiary has actual exposure in connection with its cash
management in order to effectively cap, collar or exchange interest rates (from
fixed to floating rates, from one floating rate to another floating rate or
otherwise) with respect to any interest-bearing liability or investment of
Holdings or any Subsidiary; provided that the aggregate ▇▇▇▇-to-market liability
in respect of such Hedge Agreements shall not exceed $5,000,000.
11.19. Cash Accounts. (i) Permit the aggregate amount of cash or
Cash Equivalents held by Holdings and its Domestic Subsidiaries that is not held
in Qualified Accounts to exceed $5,000,000 (provided that Holdings and the
Borrower shall use commercially reasonable efforts to cause all deposit accounts
of Holdings and its Domestic Subsidiaries to be Qualified Accounts) or (ii)
permit the aggregate amount of cash or Cash Equivalents held by Foreign
Subsidiaries to exceed the Equivalent Amount of $25,000,000 (or, with the
Administrative Agent's prior written consent, such larger amount as may be
necessary in order to comply with statutory "thin capitalization" requirements).
11.20. Restructuring Expenses. Make payments in connection with the
operational restructuring of the business of the Borrower and its Subsidiaries
in an aggregate amount in excess of $20,000,000 (plus the Net Cash Proceeds from
the sale of the assets set forth on Schedule 11.20).
SECTION 12. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or any
Letter of Credit Obligation when due in accordance with the terms thereof
or hereof; or the Borrower shall fail to pay any interest on any Loan, or
any other amount payable hereunder by it, within five (5) days
73
after any such interest or other amount becomes due in accordance with the
terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by any Credit
Party or any of its Subsidiaries herein or in any other Loan Document or
which is contained in any certificate, document or financial or other
statement furnished at any time under or in connection with any Loan
Document shall prove to have been incorrect in any material respect on or
as of the date made or deemed made; or
(c) Any Credit Party or any of its Subsidiaries shall default in the
performance or observance of any agreement contained in Section 11 or
subsection 14.6 of this Agreement or Section 5.6 of the Guarantee and
Collateral Agreement; or
(d) Any Credit Party or any of its Subsidiaries shall default in the
observance or performance of any other agreement contained in this
Agreement or in any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of thirty (30) days after written notice
from the Administrative Agent; or
(e) Any Credit Party or any of its Subsidiaries shall (i) default
(x) in any payment of principal of or interest on any Indebtedness (other
than any of the Loans) or (y) in the payment of any Guarantee Obligation
(other than the guarantees pursuant to the Loan Documents), having an
outstanding principal amount individually or in the aggregate for both of
clauses (x) and (y) in excess of the Equivalent Amount of $20,000,000,
beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee Obligation was
created; or (ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or Guarantee
Obligation or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness or
beneficiary or beneficiaries of such Guarantee Obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries)
to cause, with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity or such Guarantee Obligation to
become payable; or
(f) (i) Any Credit Party or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future law
of any jurisdiction, domestic or foreign, relating to bankruptcy,
liquidation, administration, winding up, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with
respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, administration, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, administrator, liquidator, custodian, conservator or other
similar official for it or for all or any substantial part of its assets,
or any of the Credit Parties or any of their Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii) there shall
be commenced against any Credit Party or any of its Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of sixty (60) days; or (iii) there shall be
commenced against any Credit Party or any of its Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within sixty
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(60) days from the entry thereof; or (iv) any Credit Party or any of its
Subsidiaries shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or (v) any Credit Party or any of its
Subsidiaries shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts (other than intercompany debts) as
they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Single
Employer Plan or any Lien in favor of the PBGC or a Single Employer Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall
be appointed, to administer or to terminate, any Single Employer Plan,
which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to
result in the termination of such Plan for purposes of Title IV of ERISA,
(iv) any Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) the Borrower or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vi) above, such event or condition, together with all
other such events or conditions, if any, could reasonably be expected to
have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
Holdings, the Borrower or any of their Subsidiaries involving in the
aggregate a liability (not paid or fully covered by insurance) of the
Equivalent Amount of $20,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within sixty (60) days from the entry thereof; or
(i) Holdings, the Borrower or any of their Subsidiaries shall incur
any liability (not paid or fully covered by insurance) under any
Environmental Law in an amount which could reasonably be expected to have
a Material Adverse Effect; or
(j) Any Loan Document shall, at any time, cease to be in full force
and effect (unless released by the Administrative Agent, at the direction
of the Required Lenders or as otherwise permitted under this Agreement) or
shall be declared null and void (and, if such invalidity is such so as to
be amenable to cure without materially disadvantaging the position of the
Administrative Agent and the Secured Parties, as secured parties
thereunder, the relevant Credit Party shall have failed to cure such
invalidity within thirty (30) days after notice from the Administrative
Agent or such shorter time period as is specified by the Administrative
Agent in such notice and is reasonable in the circumstances), or the
validity or enforceability thereof shall be contested by any Credit Party,
or any of the Liens intended to be created by the Loan Documents shall
cease to be or shall not be a valid and perfected Lien having the priority
contemplated thereby (and, if such invalidity is such so as to be amenable
to cure without materially disadvantaging the position of the
Administrative Agent and the Secured Parties, as secured parties
thereunder, the relevant Credit Party shall have failed to cure such
invalidity within thirty (30) days after notice from the Administrative
Agent or such shorter time period as specified by the Administrative Agent
in such notice and is reasonable in the circumstances); or
(k) (x) A Change in Control shall occur or (y) Holdings shall fail
to own directly or indirectly, beneficially and of record 100% of the
Capital Stock of the Borrower free and clear of
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all Liens other than Liens in favor of the Secured Parties pursuant to the
Guarantee and Collateral Agreement;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon), the maximum amount available to be
drawn under all outstanding Letters of Credit and all other amounts owing under
this Agreement and any Notes shall immediately become due and payable, and (B)
if such event is any other Event of Default, either or both of the following
actions may be taken: (i) (a) with the consent of the Required Senior Lenders,
the Administrative Agent may, or upon the request of the Required Senior
Lenders, the Administrative Agent shall, by notice to the Borrower declare the
Revolving Credit Commitments to be terminated forthwith, whereupon the Revolving
Credit Commitments shall immediately terminate and (b) with the consent of the
Required Junior Lenders, the Administrative Agent may, or upon the request of
the Required Junior Lenders, the Administrative Agent shall, by notice to the
Borrower declare the Assumed Letter of Credit Commitments, the Tranche A Term
Loan Commitments and the Tranche B Term Loan Commitments to be terminated
forthwith, whereupon the Assumed Letter of Credit Commitments, the Tranche A
Term Loan Commitments and the Tranche B Term Loan Commitments shall immediately
terminate; and (ii) (x) with the consent of the Required Senior Lenders, the
Administrative Agent may, or upon the request of the Required Senior Lenders,
the Administrative Agent shall, by notice to the Borrower declare the Revolving
Credit Loans hereunder (with accrued interest thereon), the maximum amount
available to be drawn under all outstanding Revolving Letters of Credit and all
other amounts owing to the Revolving Credit Lenders under this Agreement and any
Notes to be due and payable forthwith, whereupon the same shall immediately
become due and payable and (y) with the consent of the Required Junior Lenders,
the Administrative Agent may, or upon the request of the Required Junior
Lenders, the Administrative Agent shall, by notice to the Borrower declare the
Term Loans hereunder (with accrued interest thereon), the maximum amount
available to be drawn under all outstanding Assumed Letters of Credit and all
other amounts owing to the Term Loan Lenders and the Assumed Letter of Credit
Lenders under this Agreement and any Notes to be due and payable forthwith,
whereupon the same shall immediately become due and payable. All payments under
this Section 12 on account of undrawn Letters of Credit shall be made by the
Borrower directly to a cash collateral account established for such purpose for
application to the Borrower's obligations with respect thereto as drafts are
presented under the Letters of Credit. Any remaining amounts paid by the
Borrower in respect of such undrawn Letters of Credit shall be returned to the
Borrower after the last expiry date of the Letters of Credit and after the
Obligations have been paid in full. Except as expressly provided above in this
Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived.
SECTION 13. THE AGENTS
13.1. Appointment. Each Lender hereby irrevocably designates and
appoints each Agent in its capacity as such an Agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes such Agent for such Lender, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to such Agent by
the terms of this Agreement and the other Loan Documents, together with such
other powers as are reasonably incidental thereto including, without limitation,
the appointment of JPMCB, as Collateral Agent, Junior Agent and Senior Agent
thereunder, and the performance of each Agent's obligations and duties
thereunder. Notwithstanding any provision to the contrary elsewhere in this
Agreement, no Agent shall have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against any Agent.
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13.2. Delegation of Duties. Each Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
13.3. Exculpatory Provisions. The Agents shall not, nor shall any of
their officers, directors, controlling persons, employees, agents,
attorneys-in-fact or Affiliates be (i) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this
Agreement or any other Loan Document (except for its or such Person's own gross
negligence or wilful misconduct) or (ii) responsible in any manner to any of the
Lenders for any recitals, statements, representations or warranties made by any
Credit Party or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under or
in connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any Notes or any other Loan Document or for any failure of any
Credit Party to perform its obligations hereunder or thereunder. No Agent shall
be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Credit Parties.
13.4. Reliance by the Agents. The Agents shall be entitled to rely,
and shall be fully protected in relying, upon any Note, writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to any Credit Party), independent accountants and other
experts selected by the Agent. The Agents shall deem and treat the payee of any
Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. Each Agent shall be fully justified in failing or refusing
to take any action under this Agreement or any other Loan Document unless it
shall first receive such advice or concurrence of the Required Lenders or all
the Lenders, as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
Each Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement and any Notes and the other Loan Documents in
accordance with a request of the Required Lenders or all the Lenders, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders and all future holders of the Obligations.
13.5. Notice of Default. No Agent shall be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default hereunder unless
it has received written notice from a Lender or any Credit Party referring to
this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that an Agent receives such a
notice, the Administrative Agent shall give notice thereof to the applicable
Lenders and other Agents. The Agents shall each take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Required
Lenders or all the Lenders; provided that unless and until such Agents shall
have received such directions, the Agents may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as they shall deem advisable in the best interests
of the Lenders.
13.6. Non-Reliance on Agent and Lenders. Each Lender expressly
acknowledges that no Agent has, nor has any of its officers, directors,
employees, agents, attorneys-in-act or Affiliates made any representations or
warranties to it and that no act by any Agent hereinafter taken, including any
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review of the affairs of any Credit Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender represents to
the Agents that it has, independently and without reliance upon the Agents or
any other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Credit Parties and made its own decision to make its Loans hereunder and enter
into this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Agents or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of any
Credit Party. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder, the Agents
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any Credit Party
which may come into the possession of the Agents or any of their officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
13.7. Indemnification. The applicable Lenders agree to indemnify
each Agent in its capacity as such (to the extent not reimbursed by the Borrower
and without limiting the obligation of the Borrower to do so), ratably according
to their respective applicable Total Credit Percentages in effect on the date on
which indemnification is sought under this subsection, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the
applicable Loans) be imposed on, incurred by or asserted against such Agent in
any way relating to or arising out of this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by such Agent under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from such Agent's gross negligence or
wilful misconduct. The agreements in this subsection shall survive the payment
of the applicable Loans and all other amounts payable hereunder.
13.8. Agents in Their Individual Capacity. The Agents and their
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Credit Parties as though the Agents were not the
Agents hereunder and under the other Loan Documents. With respect to its Loans
made or renewed by it and any Note issued to it, the Administrative Agent shall
have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not an
Agent, and the terms "Lender" and "Lenders" shall include each of the Agents in
its individual capacity.
13.9. Successor Agents. Any Agent may resign as an Agent upon thirty
(30) days' prior written notice to the Lenders. If any such Agent shall resign
as Agent under this Agreement and the other Loan Documents, then the Required
Lenders shall appoint from among the applicable Lenders a successor agent for
the applicable Lenders, which successor agent shall (unless an Event of Default
shall have occurred and be continuing) be subject to the approval of the
Borrower (which approval shall not be unreasonably withheld or delayed),
whereupon such successor agent shall succeed to the rights, powers and duties of
such Agent, and the term "Administrative Agent" and "Collateral Agent", as
applicable, shall mean such successor agent effective upon such appointment and
approval, and the former Agent's rights, powers and duties as Agent shall be
terminated, without any other or further act or deed on the part of such former
Agent or any of the parties to this Agreement or any holders of the Loans. After
any
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retiring Agent's resignation as such Agent, the provisions of this subsection
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was an Agent under this Agreement and the other Loan Documents.
13.10. Additional Ministerial Powers of the Agents. Each Agent is
hereby irrevocably authorized by each of the applicable Lenders to execute any
document creating any Lien and to release any Lien covering any asset of the
Borrower or any of its Subsidiaries (including, without limitation, any
Properties, accounts receivable or inventory) that is the subject of a
disposition, sale or assignment which is permitted under this Agreement or which
has been consented to in accordance with subsection 15.1.
13.11. Issuing Lender. Each Lender hereby acknowledges that the
provisions of this Section 13 shall apply to the Issuing Lender, in its capacity
as issuer of any Letter of Credit, in the same manner as such provisions are
expressly stated to apply to an Agent.
SECTION 14. GUARANTEE
14.1. Guarantee. To induce the Lenders to execute and deliver this
Agreement, to make Loans, and to issue and participate in Letters of Credit, and
in consideration thereof, Holdings hereby unconditionally and irrevocably
guarantees, as primary obligor and joint and several co-debtor and not merely as
surety to the Agents, the Secured Parties and their successors, indorsees,
transferees and assigns, the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations, and Holdings further agrees to pay the expenses which may be paid
or incurred by the Agents or the Secured Parties in collecting any or all of the
Obligations and/or enforcing any rights under this Section 14 or under the
Obligations in accordance with subsection 15.5. The guarantee contained in this
Section 14 shall remain in full force and effect until the Obligations are paid
in full and each of the Commitments is terminated, notwithstanding that from
time to time prior thereto the Borrower may be free from any Obligations.
14.2. Waiver of Subrogation. Notwithstanding any payment or payments
made by Holdings in respect of the Obligations or any setoff or application of
funds of Holdings by any Agent or any Lender, until payment in full of the
Obligations and the termination of each of Commitments and until the Letters of
Credit have been terminated, Holdings shall not be entitled to be subrogated to
any of the rights of the Agents or the Lenders against the Borrower or any
collateral security or guarantee or right of offset held by any Agent or any
Lender for the payment of the Obligations, nor shall Holdings seek any
reimbursement from the Borrower in respect of payments made by Holdings
hereunder.
14.3. Modification of Obligations. Holdings hereby consents that,
without the necessity of any reservation of rights against Holdings and without
notice to or further assent by Holdings, (a) any demand for payment of the
Obligations made by any Agent, the Issuing Lender or any Lender may be rescinded
by the Agent, the Issuing Lender, or the Lenders, and the Obligations continued;
(b) the Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by any Agent, the Issuing Lender, or any Lender, and that this
Agreement, any Notes, and the other Loan Documents, including, without
limitation, any collateral security document or other guarantee or document in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Agents, the Issuing Lender, or the Lenders, may deem
advisable from time to time; and (c) to the extent permitted by applicable law,
any collateral security or guarantee or right of offset at any time held by any
Agent, the Issuing Lender, or any Lender, for the payment of the Obligations may
be sold, exchanged, waived, surrendered or released, all without the necessity
of any reservation of rights against Holdings and without notice to or further
assent by Holdings which will remain bound hereunder
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notwithstanding any such renewal, extension, modification, acceleration,
compromise, amendment, supplement, termination, sale, exchange, waiver,
surrender or release. The Agents, the Issuing Lender, and the Lenders shall not
have any obligation to protect, secure, perfect or insure any collateral
security document or property subject thereto at any time held as security for
the Obligations. When making any demand hereunder against Holdings, the Agents,
the Issuing Lender, or the Lenders, may, but shall be under no obligation to,
make a similar demand on any other party or any other guarantor, and any failure
by any Agent, the Issuing Lender, or any Lender, to make any such demand or to
collect any payments from the Borrower or any such other guarantor shall not
relieve Holdings of its obligations or liabilities hereunder, and shall not
impair or affect the rights and remedies, express or implied, or as a matter of
law, of the Agents, the Issuing Lender, or the Lenders, against Holdings. For
the purposes of this subsection "demand" shall include the commencement and
continuance of any legal proceedings.
14.4. Waiver by Holdings. Holdings waives the benefits of division
and discussion and any and all notice of the creation, renewal, extension or
accrual of the Obligations and notice of or proof of reliance by the Agents, the
Issuing Lender, or the Lenders upon the guarantee contained in this Section 14
or acceptance of the guarantee contained in this Section 14, and the
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted, continued or incurred in reliance upon the guarantee contained in
this Section 14, and all dealings between Holdings and the Agents, the Issuing
Lender, or the Lenders shall likewise be conclusively presumed to have been had
or consummated in reliance upon the guarantee contained in this Section 14.
Holdings waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the Borrower or Holdings with respect to any
Obligations. This guarantee shall be construed as a continuing absolute and
unconditional guarantee of payment without regard to the validity, regularity or
enforceability of this Agreement, any Note or any other Loan Document,
including, without limitation, any collateral security or guarantee therefor or
right of offset with respect thereto at any time or from time to time held by
any Agent, the Issuing Lender, or any Lender and without regard to any defense,
setoff or counterclaim which may at any time be available to or be asserted by
the Borrower against any Agent, the Issuing Lender, or any Lender, or any other
Person, or by any other circumstance whatsoever (with or without notice to or
knowledge of the Borrower or Holdings) which constitutes, or might be construed
to constitute, an equitable or legal discharge of the Borrower for any of its
Obligations, or of Holdings under the guarantee contained in this Section 14 in
bankruptcy or in any other instance, and the obligations and liabilities of
Holdings hereunder shall not be conditioned or contingent upon the pursuit by
any Agent, the Issuing Lender or any Lender or any other Person at any time of
any right or remedy against the Borrower or against any other Person which may
be or become liable in respect of any Obligations or against any collateral
security or guarantee therefor or right of offset with respect thereto. The
guarantee contained in this Section 14 shall remain in full force and effect and
be binding in accordance with and to the extent of its terms upon Holdings and
the successors and assigns thereof, and shall inure to the benefit of the
Lenders and their successors, indorsees, transferees and assigns, until the
Obligations shall have been satisfied in full and the Commitments shall be
terminated, notwithstanding that from time to time during the term of this
Agreement the Borrower may be free from any Obligations.
14.5. Reinstatement. This guarantee shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any Obligations is rescinded or must otherwise be restored or
returned by any Agent, the Issuing Lender, or any Lender upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of Holdings or the
Borrower or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, Holdings, the Borrower or any
substantial part of their respective property, or otherwise, all as though such
payments had not been made.
14.6. Negative Covenants. Until the Obligations shall have been paid
in full, the Letters of Credit shall have expired or been terminated and the
Commitments shall have been terminated,
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Holdings hereby agrees that it shall not (i) amend its certificate of
incorporation or by-laws unless such amendment does not adversely affect the
interests of any Secured Party in any material respect, (ii) engage in any
activities other than (A) owning the stock of the Borrower and Persons formed to
consummate, or acquired in, Permitted Acquisitions or Investments permitted
under subsection 11.9 (so long as Holdings shall, immediately following the
closing thereof, cause the assets or Capital Stock acquired to be contributed to
the Borrower or its Subsidiaries or cause the merger of the Borrower with the
Person formed to consummate or acquired in such Investment), (B) its activities
incident to the performance of (x) the Loan Documents, and (y) the issuance
and/or sale of its Capital Stock or options or warrants in respect of its
Capital Stock, (C) transactions contemplated hereby, (D) as permitted by
subsections 11.2(b), (d), (h) and (n), 11.3(b), (e), (h), (i), (j), (k), (l) and
(m), 11.4(b), (e), (f), (g), (h) and (i), ▇▇.▇, ▇▇.▇, ▇▇.▇ ▇▇▇ ▇▇.▇(▇), (▇),
(▇), (▇), (▇), (▇), (▇), (▇) and (l) and the penultimate paragraph of subsection
11.9 and Schedules 11.2, 11.3, 11.4 and 11.9 (provided that in no event shall
Holdings directly own the Capital Stock of any Person other than the Borrower or
other Persons to the extent expressly contemplated by clause (ii)(A) above) and
(D) activities contemplated by this Section 14, or (iii) make any Restricted
Payment except as permitted by subsection 11.7.
SECTION 15. MISCELLANEOUS
15.1. Amendments and Waivers. Neither this Agreement, any Note, any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or otherwise modified except in accordance with the provisions of
this subsection. The Required Lenders may, or, with the written consent of the
Required Lenders, the Administrative Agent may, from time to time, (a) enter
into with any Credit Party written amendments, supplements or modifications
hereto and to any Notes and the other Loan Documents for the purpose of adding
any provisions to this Agreement or any Notes or the other Loan Documents or
changing in any manner the rights of the Secured Parties or any Credit Party or
any other Person hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement or
any Notes or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall directly (i) reduce the aggregate principal
amount or extend the final scheduled date of maturity of any Loan or any
installment thereof, or reduce the stated rate of any interest or fee payable
hereunder or thereunder (except in connection with the waiver of applicability
of any post-default increase in interest rates) or extend the scheduled date of
any payment thereof, increase the aggregate amount or extend the expiration date
of any Lender's Revolving Credit Commitment (other than in accordance with
subsection 2.9), eliminate or reduce the voting rights of any Lender under this
subsection 15.1 or change the currency of any Commitment, Loan or Letter of
Credit, or subordinate the rights to payment or collateral of any Lenders to any
other Indebtedness, or permit the extension of an Interest Period beyond six
months, in each case without the consent of each Lender directly affected
thereby (for the avoidance of doubt, it being understood and agreed that (A) any
such extension beyond six months but less than twelve months shall only require
the consent of each Lender directly affected thereby and (B) any such extension
beyond twelve months shall require the consent of the Required Lenders and each
Lender directly affected thereby), (ii) reduce the percentage specified in the
definition of Required Lenders or consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement and the other
Loan Documents (other than in a transaction permitted hereby), release all or
substantially all of the collateral, release Holdings from its Guarantee
Obligations under the Loan Documents or release all or substantially all of the
other guarantors from their Guarantee Obligations under the Loan Documents, in
each case, except as set forth in subsection 13.10, without the written consent
of all the Lenders, (iii) amend, modify or waive any provision of Section 13
without the written consent of each Agent directly affected thereby, (iv) amend,
modify or waive any prepayment required by subsection 5.3(a), (b) or (c),
without the consent of Lenders having in the aggregate at least a majority of
the outstanding Tranche A Term Loans and at least a majority of the outstanding
Tranche B Term Loans,
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(v) amend, modify or waive the provisions of any Letter of Credit or any Letter
of Credit Obligation without the written consent of the Issuing Lender, (vi)
amend, modify or waive any provision of subsection 5.3(d) without the written
consent of the Majority Facility Lenders under each adversely affected Facility
or (vii) amend, modify or waive any provision of this Agreement relating to
Assumed Letters of Credit or the Assumed Letter of Credit Lenders without the
written consent of the Majority Facility Lenders under the Assumed Letter of
Credit Facility. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon each of the Borrower, the Agents, the Lenders, and all future holders of
any of the Obligations. In the case of any waiver, the Credit Parties, the
Lenders, and each of the Agents shall be restored to their former position and
rights hereunder and under the outstanding Loans and the other Loan Documents,
and any Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
15.2. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or two (2) days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower, Holdings and the
Agents and the Issuing Lender, and as set forth on the signature pages hereto in
the case of the other parties hereto, or to such other address as may be
hereafter notified by the respective parties hereto and any future holders of
the Loans or any Notes:
The Borrower: c/o Hanley and Partners, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Holdings: c/o Hanley and Partners, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agent or JPMorgan Chase Bank
the Issuing Lender: Loan & Agency Services Group
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Collateral Agent: JPMorgan Chase Bank
Loan & Agency Services Group
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Senior Agent: JPMorgan Chase Bank
Loan & Agency Services Group
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Junior Agent: JPMorgan Chase Bank
Loan & Agency Services Group
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
or the applicable Lenders shall not be effective until received.
15.3. No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
15.4. Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the making of the Loans
hereunder.
15.5. Payment of Expenses and Taxes. The Borrower agrees (a) to pay
or reimburse each Agent for all reasonable out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby,
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including, without limitation, the reasonable fees and disbursements of counsel
to the Senior Agent and recording fees and expenses (provided, that, in addition
to the reimbursement obligation with respect to the reasonable fees and
disbursements of counsel to the Senior Agent, the Borrower shall be obligated to
reimburse the reasonable fees and disbursements of additional counsel for the
Junior Agent in the event that the Required Junior Lenders appoint an
institution to serve as Junior Agent that is not the Senior Agent), (b) to pay
or reimburse each Lender and each Agent for all its reasonable out-of-pocket
costs and expenses incurred in connection with the enforcement or preservation
of any rights under this Agreement, any Notes, the other Loan Documents and any
such other documents, including, without limitation, the reasonable fees and
disbursements of counsel to such Agent and, at any time after and during the
continuance of an Event of Default, of one counsel to all the Lenders, and (c)
to pay, indemnify, and hold each Lender and each Agent (and their respective
directors, officers, employees and agents) harmless from, any and all recording
and filing fees and any and all liabilities with respect to, or resulting from
any delay in paying, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, any Notes, the other Loan
Documents and any such other documents, and (d) to pay, indemnify, and hold each
Lender and each Agent (and their respective directors, officers, employees and
agents) harmless from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, any
Notes, the other Loan Documents and any such other documents (all the foregoing
in this clause (d), collectively, the "indemnified liabilities"), provided that
the Borrower shall have no obligation hereunder to any Agent, or any Lender (or
their respective directors, officers, employees and agents) with respect to
indemnified liabilities arising from the gross negligence or wilful misconduct
of the indemnified party or, in the case of indemnified liabilities arising
under this Agreement, any Notes and the other documents, from material breach by
the indemnified party of this Agreement, any Notes or the other Loan Documents,
as the case may be. The agreements in this subsection shall survive repayment of
the Loans and all other amounts payable hereunder.
15.6. Successors and Assigns; Participations and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, Agents, and all future holders of the Loans and their respective
successors and assigns, except that no Borrower nor Holdings may, except as
permitted under subsection 11.5 or subsection 15.1, assign or transfer any of
its rights or obligations under this Agreement without the prior written consent
of each Lender directly affected thereby.
(a) Any Lender may, in the ordinary course of its commercial lending
business and in accordance with applicable law, at any time sell to one or more
banks, insurance companies, mutual funds, or other financial institutions or
other entities ("Participants") participating interests in any Loan owing to
such Lender, any Note held by such Lender, any Commitment of such Lender or any
other interest of such Lender hereunder and under the other Loan Documents. In
the event of any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. No Lender shall
permit any Participant to have the right to consent to any amendment or waiver
in respect of this Agreement or any of the other Loan Documents, except that
such Lender may grant such Participant the right to consent to any amendment or
waiver in respect of this Agreement or the other Loan Documents that would,
directly or indirectly, (i) reduce the aggregate amount or extend the final
maturity of any Loan, or reduce the stated rate of any interest or fee payable
hereunder or extend the scheduled date of any payment thereof or (ii) consent to
the assignment
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or transfer by the Borrower of any of its rights and obligations under this
Agreement or any of the other Loan Documents. The Borrower agrees that if
amounts outstanding under this Agreement and the Loans are due or unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to have the
right of setoff in respect of its participating interest in amounts owing under
this Agreement and any Note to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement or any Note, provided that in purchasing such participating interest,
such Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in subsection 15.7(a) as fully as if it were a
Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of subsections 7.5, 7.6, 7.7 and 7.8 with respect to
its participation in the Commitments and the Loans and Letters of Credit
outstanding from time to time as if it was a Lender; provided that in the case
of subsections 7.5, 7.6, 7.7 and 7.8, such Participant shall have complied with
the requirements of said subsections as if it were a Lender and provided,
further, that no Participant shall be entitled to receive any greater amount
pursuant to any such subsection than the transferor Lender would have been
entitled to receive in respect of the amount of the participation transferred by
such transferor Lender to such Participant had no such transfer occurred. In
addition, each Lender selling or transferring a participation to a Participant
shall keep a register, meeting the requirements of Treasury Regulation Section
5f.103-1(c), of each Participant, specifying such Participant's entitlement to
payments of principal and interest with respect to such participation.
(b) (i) Subject to the conditions set forth in paragraph (c)(ii)
below, any Lender may assign to one or more assignees (each, an "Assignee") all
or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitments and the Loans at the time owing to it) with the
prior written consent (such consent not to be unreasonably withheld or delayed)
of the Administrative Agent, provided that no consent of the Administrative
Agent shall be required for an assignment of (x) any Revolving Credit Commitment
to an assignee that is a Lender with a Revolving Credit Commitment immediately
prior to giving effect to such assignment or (y) all or any portion of a Term
Loan to a Lender, an Affiliate of a Lender, an Approved Fund, HMTF, GSC or an
Affiliate of HMTF or GSC.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of
a Lender, an Approved Fund or an Affiliate of HMTF or an assignment of the
entire remaining amount of the assigning Lender's Commitments or Loans
under any Facility, the amount of the Commitments or Loans of the
assigning Lender subject to each such assignment (determined as of the
date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $2,500,000
unless the Administrative Agent otherwise consents, if any;
(B) the parties to each assignment shall (I) execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500 (with only one such fee payable
in connection with simultaneous assignments to or by two or more Approved
Funds), (II) shall deliver to the Administrative Agent or the Borrower any
Note (if the assigning Lender's Loans are evidenced by a Note) subject to
such assignment and (III) shall execute and deliver to the Borrower and
the Administrative Agent the appropriate forms, certificates and
statements described in Section 7.7 to satisfy the requirements of Section
7.7;
(C) the Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire; and
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(D) no assignee shall be entitled to receive any greater amount
pursuant to Sections 7.5, 7.6, 7.7 and 7.8 than the transferor Lender
would have been entitled to receive in respect of the Loans transferred by
such transferor Lender to such Assignee had no such transfer occurred.
For the purposes of this subsection 15.6, the term "Approved Fund"
has the following meaning:
"Approved Fund" means any Person (other than a natural person) that
is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and
that is administered or managed by (a) a Lender, (b) an Affiliate of a
Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (c)(iv) below, from and after the effective date specified in each
Assignment and Assumption the Assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of
subsections 7.6, 7.7, 7.8 and 15.5; provided, that the Borrower shall not be
obligated to pay any greater amount under such Sections than the transferor
Lender would have been entitled to receive in respect of the Loans transferred
by such transferor Lender to such Assignee had no such transfer occurred). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this subsection 15.6 shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (b) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders and the Issuing Lenders, and the Commitments of,
and principal amount of the Loans, Revolving Letter of Credit Obligations,
Revolving Letter of Credit Outstandings, and amounts described in Sections 2.6,
2.7 and 2.8 owing to, each Lender and the Issuing Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, the Issuing Lender and
the Lenders shall treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender or as an Issuing Lender, as the case
may be, hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an Assignee, the Assignee's completed
administrative questionnaire (unless the Assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (c) of
this Section and any written consent to such assignment required by paragraph
(c) of this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information in such Lender's possession concerning the
Credit Parties and their Affiliates which has been delivered to such Lender by
or on behalf of the Credit Parties pursuant to this Agreement or which has been
delivered to such Lender
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by or on behalf of the Credit Parties in connection with such Lender's credit
evaluation of the Borrower and its Affiliates prior to becoming a party to this
Agreement, under the condition such Transferee or prospective Transferee agrees
to comply with the provisions of subsection 15.16.
(d) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to (i) any
Federal Reserve Bank in accordance with applicable law or (ii) any trustee for,
or any other representative of, holders of obligations owed, or securities
issued, by such Lender, as security for such obligations or securities (provided
that such Lender shall not, as between the Borrower and such Lender, be relieved
of any of its obligations hereunder as a result thereof).
(e) With respect to each Letter of Credit if an Issuing Lender
transfers its rights with respect to the Borrower's Revolving Letter of Credit
Obligations with respect to a Letter of Credit, such Issuing Lender shall give
notice of such transfer to the Administrative Agent for notation in the
Register, and no such transfer will be effective for purposes of this Agreement
unless it has been recorded in the Register.
15.7. Adjustments; Set-off. (a) If any Lender (a "Benefitted
Lender") shall at any time receive any payment of all or part of the Obligations
owing to it or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in subsection 12(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of the Obligations owing to such other Lender, such Benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of the Obligations owing to each such other Lender, or shall provide
such other Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such Benefitted Lender to share the
excess payment or benefits of such collateral or proceeds ratably with each of
the Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such Benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest.
(a) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to any Credit
Party, any such notice being expressly waived by each Credit Party to the extent
permitted by applicable law, upon any amount becoming due and payable by any
Credit Party hereunder or under any Notes (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Lender or any branch,
affiliate or agency thereof to or for the credit or the account of such Credit
Party. Each Lender agrees promptly to notify the relevant Credit Party and the
Administrative Agent after any such set-off and application made by such Lender,
provided that the failure to give such notice shall not affect the validity of
such set-off and application.
15.8. Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with each of the Borrower and Agents. The execution and delivery
of this Agreement by any Lender shall be binding upon each of its successors and
assigns (including Transferees of its Commitments and Loans in whole or in part
prior to effectiveness hereof) and binding in respect of
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all of its Commitments and Loans, including any acquired subsequent to its
execution and delivery hereof and prior to the effectiveness hereof.
15.9. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
15.10. Integration. This Agreement and the other Loan Documents
represent the agreement of the Credit Parties and the Secured Parties with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by any of the Agents or any Lender relative to the
subject matter hereof not expressly set forth or referred to herein or in the
other Loan Documents.
15.11. Judgment Currency.
(a) If, for the purpose of obtaining or enforcing a judgment against
any Credit Party in any court in any jurisdiction, it becomes necessary to
convert into any other currency (such other currency being hereinafter in this
subsection 15.11 referred to as the "Judgment Currency") an amount due in a
particular currency (the "Denominated Currency") under any Loan Document, the
conversion shall be made at the rate of exchange prevailing on the Business Day
immediately preceding the date of actual payment of the amount due, in the case
of any proceeding in the courts of any jurisdiction that will give effect to
such conversion being made on such date, or the date on which the judgment is
given, in the case of any proceeding in the courts of the province of Ontario or
in the courts of any other jurisdiction (the applicable date as of which such
conversion is made pursuant to this subsection 15.11 being hereinafter in this
subsection 15.11 referred to as the "Judgment Conversion Date").
(b) If, in the case of any proceeding in the court of any
jurisdiction referred to in subsection 15.11(a), there is a change in the rate
of exchange prevailing between the Judgment Conversion Date and the time of
actual receipt of the amount due in immediately available funds, the applicable
Credit Party shall pay such additional amount (if any, but in any event not a
lesser amount) as may be necessary to ensure that the amount actually received
in the Judgment Currency, when converted at the rate of exchange prevailing on
the date of payment, will produce the amount of Denominated Currency which could
have been purchased with the amount of the Judgment Currency stipulated in the
judgment or judicial order at the rate of exchange prevailing on the Judgment
Conversion Date.
(c) Any amount due from any Credit Party under this subsection 15.11
shall be due as a separate debt, shall survive as a separate cause of action
independent of the judgment and shall not be affected by judgment being obtained
for any other amounts due under or in respect of any of the Loan Documents.
The term "rate of exchange" in this subsection 15.11 means the spot
rate of exchange at which the Administrative Agent would, on the relevant date
at or about 12:00 noon, be prepared to sell Denominated Currency against the
Judgment Currency.
15.12. GOVERNING LAW. THIS AGREEMENT AND ANY NOTES AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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15.13. Submission To Jurisdiction; Waivers. Each of the Borrower and
Holdings hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts
of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to Holdings
or the Borrower at their respective addresses set forth in subsection 15.2
or at such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this subsection any special, exemplary, punitive or consequential
damages.
15.14. Acknowledgements. Each of the Borrower and Holdings hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and any Notes and the other Loan Documents;
(b) no Secured Party has any fiduciary relationship with or duty to
the Credit Parties arising out of or in connection with this Agreement or
any of the other Loan Documents, and the relationship between the Secured
Parties, on one hand, and the Credit Parties, on the other hand, in
connection herewith or therewith is solely that of creditor and debtor;
and
(c) no joint venture exists among the Secured Parties or among the
Credit Parties and the Secured Parties.
15.15. WAIVERS OF JURY TRIAL. HOLDINGS, THE BORROWER, THE LENDERS,
AND EACH AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY NOTES OR ANY OTHER
LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
15.16. Confidentiality(a) . Each Lender agrees to keep confidential
any information obtained by it pursuant hereto and the other Loan Documents
identified as confidential in writing at the time of delivery in accordance with
such Lender's customary practices and agrees that it will only use such
information in connection with the transactions contemplated by this
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Agreement and not disclose any of such information other than (a) to such
Lender's officers, directors, employees, representatives, attorneys, agents or
affiliates who are advised of the confidential nature of such information, (b)
to the extent such information presently is or hereafter becomes available to
such Lender on a non-confidential basis from any source or such information that
is in the public domain at the time of disclosure, (c) to the extent disclosure
is required by law, regulation, subpoena or judicial order or process (provided
that notice of such requirement or order shall be promptly furnished to the
Borrower unless such notice is legally prohibited) or requested or required by
bank regulators or auditors or any administrative body, commission, or other
Governmental Authority to whose jurisdiction such Lender may be subject, (d) to
Assignees or Participants or potential Assignees or Participants or to
professional advisors or direct or indirect contractual counterparties in swap
agreements provided in each case such Person agrees to be bound by the
provisions of this subsection 15.16, (e) to the extent required in connection
with any litigation between any Credit Party and any Lender with respect to the
Loans or this Agreement and the other Loan Documents, (f) to rating agencies,
their employees, representatives, attorneys, agents or affiliates who are
advised of the confidential nature of such information and agree to be bound by
provisions of this subsection 15.16, (g) to the National Association of
Insurance Commissioners and (h) with the Borrower's prior written consent. The
agreements in this subsection shall survive repayment of the Loans and all other
amounts payable hereunder.
(b) Notwithstanding anything herein or otherwise to the contrary,
any party to this Agreement (and any employee, representative, or other agent of
any party to this Agreement) may disclose to any and all Persons, without
limitation of any kind, the structure and tax aspects of the transactions
contemplated by this Agreement, and all materials of any kind (including
opinions or other tax analyses) related to such structure and tax aspects.
15.17. Conflicts. In the event of a conflict between the terms and
conditions of this Agreement and the terms and conditions of the other Loan
Documents, the terms and conditions of this Agreement shall control.
15.18. Intercreditor Agreement. Each Lender agrees to be bound by
the terms of the Intercreditor Agreement and hereby authorizes JPMCB, in its
capacity as Senior Agent and Junior Agent thereunder, (a) to execute such
Intercreditor Agreement on its behalf, (b) in the case of each Revolving Credit
Lender, serve as Senior Agent on its behalf and (c) in the case of each Assumed
Letter of Credit Lender and each Term Loan Lender, serve as Junior Agent on its
behalf.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
VIASYSTEMS GROUP, INC., as Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior VP
VIASYSTEMS, INC., as Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior VP
JPMORGAN CHASE BANK, as Administrative
Agent, Senior Agent, Junior Agent and
Collateral Agent, and as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director