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EXHIBIT 10.1
L-3 COMMUNICATIONS CORPORATION,
a Delaware corporation
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CREDIT AGREEMENT
dated as of April 30, 1997
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$275,000,000
Credit Facility
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XXXXXX COMMERCIAL PAPER INC.,
as Arranger, Syndication Agent and Documentation Agent,
and
BANK OF AMERICA NT & SA
as Administrative Agent
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . .
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . .
1.2 Other Definitional Provisions . . . . . . . . . . . . . . .
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS AND LOANS . . . . . . . . . .
2.1 Commitments . . . . . . . . . . . . . . . . . . . . . . . .
2.2 Procedure for Borrowing . . . . . . . . . . . . . . . . . .
2.3 Commitment Fee . . . . . . . . . . . . . . . . . . . . . .
2.4 Termination or Reduction of Revolving Credit
Commitments . . . . . . . . . . . . . . . . . . . . . .
2.5 Repayment of Loans; Evidence of Debt . . . . . . . . . . .
2.6 Optional Prepayments; Mandatory Prepayments and
Reduction of Commitments . . . . . . . . . . . . . . .
2.7 Conversion and Continuation Options . . . . . . . . . . . .
2.8 Minimum Amounts and Maximum Number of Tranches . . . . . .
2.9 Interest Rates and Payment Dates . . . . . . . . . . . . .
2.10 Computation of Interest and Fees . . . . . . . . . . . . .
2.11 Inability to Determine Interest Rate . . . . . . . . . . .
2.12 Pro Rata Treatment and Payments . . . . . . . . . . . . .
2.13 Illegality . . . . . . . . . . . . . . . . . . . . . . . .
2.14 Requirements of Law . . . . . . . . . . . . . . . . . . .
2.15 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . .
2.16 Indemnity . . . . . . . . . . . . . . . . . . . . . . . .
2.17 Replacement of Lenders . . . . . . . . . . . . . . . . . .
2.18 Certain Fees . . . . . . . . . . . . . . . . . . . . . . .
2.19 Certain Rules Relating to the Payment of Additional
Amounts . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 3. LETTERS OF CREDIT . . . . . . . . . . . . . . . . . . . . . .
3.1 L/C Commitment . . . . . . . . . . . . . . . . . . . . . .
3.2 Procedure for Issuance of Letters of Credit . . . . . . . .
3.3 Fees, Commissions and Other Charges . . . . . . . . . . . .
3.4 L/C Participation . . . . . . . . . . . . . . . . . . . . .
3.5 Reimbursement Obligation of the Borrower . . . . . . . . .
3.6 Obligations Absolute . . . . . . . . . . . . . . . . . . .
3.7 Letter of Credit Payments . . . . . . . . . . . . . . . . .
3.8 Application . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 4. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . .
4.1 Financial Condition . . . . . . . . . . . . . . . . . . . .
4.2 No Change . . . . . . . . . . . . . . . . . . . . . . . . .
4.3 Corporate Existence; Compliance with Law . . . . . . . . .
4.4 Corporate Power; Authorization; Enforceable Obligations . .
4.5 No Legal Bar . . . . . . . . . . . . . . . . . . . . . . .
4.6 No Material Litigation . . . . . . . . . . . . . . . . . .
4.7 No Default . . . . . . . . . . . . . . . . . . . . . . . .
4.8 Ownership of Property; Liens . . . . . . . . . . . . . . .
4.9 Intellectual Property . . . . . . . . . . . . . . . . . . .
4.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . .
4.11 Federal Regulations . . . . . . . . . . . . . . . . . . .
4.12 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . .
4.13 Investment Company Act; Other Regulations . . . . . . . .
4.14 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . .
4.15 Purpose of Loans . . . . . . . . . . . . . . . . . . . . .
4.16 Environmental Matters . . . . . . . . . . . . . . . . . .
4.17 Collateral Documents . . . . . . . . . . . . . . . . . . .
4.18 Accuracy and Completeness of Information . . . . . . . . .
4.19 Solvency. . . . . . . . . . . . . . . . . . . . . . . . .
4.20 Labor Matters . . . . . . . . . . . . . . . . . . . . . .
4.21 Transaction Documents . . . . . . . . . . . . . . . . . .
SECTION 5. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . .
5.1 Conditions to Initial Loans . . . . . . . . . . . . . . . .
5.2 Conditions to Each Extension of Credit . . . . . . . . . .
SECTION 6. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . .
6.1 Financial Statements . . . . . . . . . . . . . . . . . . .
6.2 Certificates; Other Information . . . . . . . . . . . . . .
6.3 Payment of Obligations . . . . . . . . . . . . . . . . . .
6.4 Conduct of Business and Maintenance of Existence . . . . .
6.5 Maintenance of Property; Insurance . . . . . . . . . . . .
6.6 Inspection of Property; Books and Records; Discussions . .
6.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . .
6.8 Environmental Laws . . . . . . . . . . . . . . . . . . . .
6.9 Further Assurances . . . . . . . . . . . . . . . . . . . .
6.10 Additional Collateral . . . . . . . . . . . . . . . . . .
6.11 Interest Rate Protection . . . . . . . . . . . . . . . . .
6.12 Foreign Jurisdictions . . . . . . . . . . . . . . . . . .
6.13 Novation; Federal Assignment of Claims . . . . . . . . . .
6.14 Maintenance of Collateral; Alterations . . . . . . . . . .
6.15 Arrangements with the Seller . . . . . . . . . . . . . . .
SECTION 7. NEGATIVE COVENANTS
7.1 Financial Condition Covenants . . . . . . . . . . . . . . .
7.2 Limitation on Indebtedness . . . . . . . . . . . . . . . .
7.3 Limitation on Liens . . . . . . . . . . . . . . . . . . . .
7.4 Limitation on Guarantee Obligations . . . . . . . . . . . .
7.5 Limitation on Fundamental Changes . . . . . . . . . . . . .
7.6 Limitation on Sale of Assets . . . . . . . . . . . . . . .
7.7 Limitation on Dividends . . . . . . . . . . . . . . . . . .
7.8 Limitation on Capital Expenditures . . . . . . . . . . . .
7.9 Limitation on Investments, Loans and Advances . . . . . . .
7.10 Limitation on Optional Payments and Modifications of
Instruments and Agreements . . . . . . . . . . . . . .
7.11 Limitation on Transactions with Affiliates . . . . . . . .
7.12 Limitation on Sales and Leasebacks . . . . . . . . . . . .
7.13 Limitation on Changes in Fiscal Year . . . . . . . . . . .
7.14 Limitation on Negative Pledge Clauses . . . . . . . . . .
7.15 Limitation on Lines of Business . . . . . . . . . . . . .
7.16 Designated Senior Debt . . . . . . . . . . . . . . . . . .
SECTION 8. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . .
SECTION 9. THE AGENTS; THE ARRANGER . . . . . . . . . . . . . . . . . .
9.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . .
9.2 Delegation of Duties . . . . . . . . . . . . . . . . . . .
9.3 Exculpatory Provisions . . . . . . . . . . . . . . . . . .
9.4 Reliance by Agents . . . . . . . . . . . . . . . . . . . .
9.5 Notice of Default . . . . . . . . . . . . . . . . . . . . .
9.6 Non-Reliance on Agents and Other Lenders . . . . . . . . .
9.7 Indemnification . . . . . . . . . . . . . . . . . . . . . .
9.8 Agents, in Their Individual Capacities . . . . . . . . . .
9.9 Successor Administrative Agent . . . . . . . . . . . . . .
9.10 The Arranger . . . . . . . . . . . . . . . . . . . . . . .
SECTION 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . .
10.1 Amendments and Waivers . . . . . . . . . . . . . . . . .
10.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . .
10.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . . .
10.4 Survival of Representations and Warranties . . . . . . . .
10.5 Payment of Expenses and Taxes . . . . . . . . . . . . . .
10.6 Successors and Assigns; Participation and Assignments . .
10.7 Adjustments; Set-off . . . . . . . . . . . . . . . . . . .
10.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . .
10.9 Severability . . . . . . . . . . . . . . . . . . . . . . .
10.10 Integration . . . . . . . . . . . . . . . . . . . . . . .
10.11 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . .
10.12 SUBMISSION TO JURISDICTION; WAIVERS . . . . . . . . . . .
10.13 Acknowledgements . . . . . . . . . . . . . . . . . . . .
10.14 WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . . . . .
10.15 Confidentiality . . . . . . . . . . . . . . . . . . . . .
EXHIBITS
Exhibit A-1 Form of Tranche A Term Note
Exhibit A-2 Form of Tranche B Term Note
Exhibit A-3 Form of Tranche C Term Note
Exhibit A-4 Form of Revolving Credit Note
Exhibit A-5 Form of Swing Line Note
Exhibit B-1 Form of Parent Guarantee
Exhibit B-2 Form of Subsidiary Guarantees
Exhibit B-3 Form of Parent Pledge and Security Agreement
Exhibit B-4 Form of Borrower Pledge and Security Agreement
Exhibit B-5 Form of Subsidiary Pledge and Security Agreement
Exhibit C-1 Form of Mortgage
Exhibit C-2 Form of Deed of Trust
Exhibit D-1 Form of Legal Opinion of Xxxxxxx Xxxxxxx and
Xxxxxxxx
Exhibit D-2 Form of Legal Opinion of Fried, Frank, Harris,
Xxxxxxx & Xxxxxxxx
Exhibit E Form of Borrowing Certificate
Exhibit F Form of Certificate of Non-U.S. Lender
Exhibit G Form of Assignment and Acceptance
SCHEDULES
Schedule I Lenders and Commitments
Schedule II Pricing Grid
Schedule III Real Property to be Mortgaged
Schedule IV Transaction Documents
Schedule 4.4 Required Consents
Schedule 4.5 No Legal Bar
Schedule 4.6 Material Litigation
Schedule 4.8 Real Property
Schedule 4.9 Intellectual Property Claims
Schedule 4.10 Taxes
Schedule 4.14 Subsidiaries
Schedule 4.17 Filing Jurisdictions
Schedule 6.5 Insurance
Schedule 6.10 Certain Real Property
Schedule 7.2(f) Existing Indebtedness
Schedule 7.3(f) Existing Liens
Schedule 7.4 Existing Guarantee Obligations
Schedule 7.9(c) Officers
Schedule 7.9(g) Existing Investments
CREDIT AGREEMENT, dated as of April 30, 1997, among L-3
Communications Corporation, a Delaware corporation (the "Borrower") which is
wholly owned by L-3 Communications Holdings, Inc., a Delaware corporation
("Holdings"), the several lenders from time to time parties hereto (the
"Lenders"), Xxxxxx Commercial Paper Inc. ("LCPI") as arranger (in such
capacity, the "Arranger"), LCPI, as syndication agent (in such capacity, the
"Syndication Agent"), LCPI, as documentation agent (in such capacity, the
"Documentation Agent") and Bank of America NT & SA ("BOA"), as administrative
agent for the Lenders (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower is a party to the Transaction Agreement, dated
as of March 28, 1997 (as amended through the date hereof the "Transaction
Agreement"), by and among Lockheed Xxxxxx Corporation, a Maryland corporation
(the "Seller"), the Borrower, Xxxxxx Brothers Capital Partners III, L.P.
("Capital Partners") and its Affiliates, Xxxxx X. Xxxxx and Xxxxxx X. XxXxxxx;
WHEREAS, pursuant to the Transaction Agreement, on the Closing Date:
(i) the Seller, on behalf of itself and its various transferor subsidiaries,
will transfer (the "Asset Contribution") to the Borrower, on behalf of and at
the direction of Holdings, the Transferred Assets (as defined in the
Transaction Agreement); (ii) Holdings will issue to the Seller 6,980,000 shares
of its Class A Common Stock par value $.01 per share; (iii) Holdings will pay
the Seller $479,835,000 in cash (subject to adjustment as provided in the
Transaction Agreement) (the "Cash Consideration"); and (iv) the Borrower, on
behalf of and at the direction of Holdings, will assume the Assumed Liabilities
(as defined in the Transaction Agreement);
WHEREAS, Holdings' obligation to pay the Cash Consideration will be
financed with (i) an investment of not less than $79,835,000 in Holdings Class
A Common Stock (the "Equity Investment"), of which (x) $64,835,000 will be
provided by Capital Partners and (y) $7,500,000 will be provided by each of
Xxxxx X. Xxxxx and Xxxxxx X. XxXxxxx, (ii) the issuance and sale by the
Borrower of senior subordinated debt securities for cash proceeds of at least
$225.0 million (the "Securities Offering") and (iii) senior debt financing;
WHEREAS, the Borrower has requested the Lenders to extend credit to
it (i) to finance a portion of the Cash Consideration to be paid by Holdings in
connection with the Asset Contribution and (ii) for working capital and general
corporate purposes of the Borrower and its Subsidiaries after the Closing Date;
and
WHEREAS, the Lenders are willing to extend such credit to the
Borrower upon and subject to the terms and conditions hereafter set forth;
NOW, THEREFORE, 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:
1
"Adjustment Date": the fifth day following the receipt by the
Administrative Agent of the financial statements for the most recently
completed fiscal period furnished pursuant to subsection 6.1(a) or (b), as
the case may be, and the compliance certificate with respect to such
financial statements furnished pursuant to subsection 6.2(c). For purposes
of determining the Applicable Margin and the Commitment Fee Rate, the
first "Adjustment Date" shall mean the date on which the financial
statements for the fiscal quarter ended September 30, 1997 furnished
pursuant to subsection 6.1(b) and the related compliance certificate
furnished pursuant to subsection 6.2(c) are delivered to the
Administrative Agent pursuant to subsection 6.1(b) and 6.2(c),
respectively.
"Affiliate": as to any Person, any other Person which, 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 10% 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 Syndication Agent, the
Documentation Agent and the Administrative Agent.
"Aggregate Outstanding Extensions of Credit": as to any Lender with
respect to any Type of Loan at any time, an amount equal to the sum of (a)
the aggregate principal amount of all Loans of such Type made by such
Lender then outstanding and (b) in the case of Revolving Credit Loans,
such Lender's Commitment Percentage of the L/C Obligations then
outstanding.
"Agreement": this Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
"Applicable Margin": at any time, the percentages set forth on
Schedule II under the relevant column heading opposite the level of the
Debt Ratio most recently determined; provided that (a) the Applicable
Margins commencing on the Closing Date shall be those set forth in
Schedule II opposite a Debt Ratio captioned "greater than or equal to
4.75" until the first Adjustment Date, (b) the Applicable Margins
determined for any Adjustment Date (including the first Adjustment Date)
shall remain in effect until a subsequent Adjustment Date for which the
Debt Ratio falls within a different level and (c) if the financial
statements and related compliance certificate for any fiscal period are
not delivered by the date due pursuant to subsections 6.1 and 6.2, the
Applicable Margins shall be (i) for the first 35 days subsequent to such
due date, the Applicable Margin in effect prior to such due date and (ii)
thereafter, those set forth opposite a Debt Ratio captioned "greater than
or equal to 4.75," in either case, until the date of delivery of such
financial statements and compliance certificate.
"Application": an application, in such form as the Issuing Lender
may specify from time to time, requesting the Issuing Lender to issue a
Letter of Credit.
2
"Asset Contribution": as defined in the recitals to this
Agreement.
"Asset Sale": any sale, sale-leaseback, or other disposition by
any Person or any Subsidiary thereof of any of its property or assets,
including the stock of any Subsidiary of such Person, except sales and
dispositions permitted by subsection 7.6 other than subsection 7.6(b) or
(e).
"Assignee": as defined in subsection 10.6(c).
"Attributable Debt": in respect of a sale and leaseback transaction
means, at the time of determination, the present value (discounted at the
rate of interest implicit in such transaction, determined in accordance
with GAAP) of the obligation of the lessee for net rental payments during
the remaining term of the lease included in such sale and leaseback
transaction (including any period for which such lease has been extended
or may, at the option of the lessor, be extended).
"Available Commitment": as to any Lender and any Type of Loan, at any
time, an amount equal to the excess, if any, of (a) such Lender's
Commitment with respect to such Type of Loan over (b) such Lender's
Aggregate Outstanding Extensions of Credit with respect to such Type of
Loan.
"Base Rate": means, for any day, the higher of: (a) 0.50% per annum
above the latest Federal Funds Rate; and (b) the rate of interest in
effect for such day as publicly announced from time to time by BOA in San
Francisco, California, as its "reference rate." (The "reference rate" is a
rate set by BOA based upon various factors including BOA's costs and
desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at,
above, or below such announced rate.)
"Base Rate Loans": Loans the rate of interest applicable to which
is based upon the Base Rate.
"BOA": as defined in the recitals to this Agreement.
"Borrower Pledge and Security Agreement": the Borrower Pledge and
Security Agreement substantially in the form of Exhibit B-4, to be
executed and delivered by the Borrower, as the same may be amended,
supplemented or otherwise modified.
"Borrowing Date": any Business Day specified in a notice pursuant
to subsection 2.2 as a date on which the Borrower requests the Lenders
to make Loans hereunder.
"Business": as defined in subsection 4.16.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City or San Francisco, California are
authorized or required by law to close and, if the applicable Business Day
relates to Eurodollar Loans, any day on which dealings are carried on in
the applicable London interbank market.
3
"Capital Expenditures" shall mean, for any fiscal period, the
aggregate of all expenditures that, in conformity with GAAP (but excluding
capitalized interest), are or are required to be included as additions
during such period to property, plant or equipment reflected on the
consolidated balance sheet of the Borrower and its Subsidiaries, excluding
the expenditures relating to the Transaction.
"Capital Lease Obligations": of any Person as of the date of
determination, the aggregate liability of such Person under Financing
Leases reflected on a balance sheet of such Person under GAAP.
"Capital Partners": as defined in the recitals to this Agreement.
"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.
"Cash Consideration": as defined in the recitals to this
Agreement.
"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 any agency thereof, (b) certificates of
deposit and time deposits with maturities of one year or less from the
date of acquisition and overnight bank deposits of any Lender or of any
commercial bank having capital and surplus in excess of $500,000,000, (c)
repurchase obligations of any Lender or of any commercial bank satisfying
the requirements of clause (b) of this definition, having a term of not
more than 90 days with respect to securities issued or fully guaranteed or
insured by the United States Government, (d) commercial paper of a
domestic issuer rated at least A-2 by Standard and Poor's Rating Group
("S&P") or P-2 by Xxxxx'x Investors Service, Inc. ("Moody's"), or carrying
an equivalent rating by a nationally recognized rating agency if both of
S&P and Moody's cease publishing ratings of investments, (e) securities
with maturities of one year or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United
States, by any political subdivision or taxing authority of any such
state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at
least A by S&P or A by Moody's, (f) securities with maturities of one year
or less from the date of acquisition backed by standby letters of credit
issued by any Lender or any commercial bank satisfying the requirements of
clause (b) of this definition or (g) shares of money market mutual or
similar funds which invest exclusively in assets satisfying the
requirements of clauses (a) through (f) of this definition.
"Change of Control": the occurrence of any of the following
events:
(i) the Principals and their Related Parties, as a whole, shall
at any time cease to own, directly or indirectly, 60% of the Capital
Stock of Holdings, determined on a fully diluted basis; or
4
(ii) the Principals or their Related Parties, as a whole, shall
at any time cease to own, determined on a fully diluted basis,
sufficient shares of the Capital Stock of Holdings, determined on a
fully diluted basis, to elect a majority of the Board of Directors of
Holdings and the Borrower or otherwise cease to have the right or
ability, by voting power, contract or otherwise, to elect or
designate for election a majority of the Board of Directors of
Holdings and the Borrower; or
(iii) Holdings shall, at any time, cease to own 100% of the
Capital Stock of the Borrower; or
(iv) a "Change of Control" shall have occurred under the
Indenture.
"Class": (i) Lenders having Tranche A Term Loan Exposure and/or
Revolving Loan Exposure (taken together as a single class), (ii) Lenders
having Tranche B Term Loan Exposure and (iii) Lenders having Tranche C
Term Loan Exposure.
"Closing Date": the date on which the conditions precedent set
forth in subsection 5.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all assets of the Credit Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by
any Security Document.
"Commitment": as to any Lender, such Lender's Tranche A Term Loan
Commitment, Tranche B Term Loan Commitment, Tranche C Term Loan
Commitment and Revolving Credit Commitment.
"Commitment Letter": the Commitment Letter, dated as of April 2,
1997, among Holdings, the Borrower and LCPI, as the same may be amended,
supplemented or otherwise modified from time to time.
"Commitment Fee Rate": at any time, the rates per annum set forth on
Schedule II under the relevant column heading opposite the level of the
Debt Ratio most recently determined; provided that (a) the Commitment Fee
Rate commencing on the Closing Date shall be that set forth in Schedule II
opposite a Debt Ratio captioned "greater than or equal to 4.75" until the
first Adjustment Date, (b) the Commitment Fee Rate determined for any
Adjustment Date (including the first Adjustment Date) shall remain in
effect until a subsequent Adjustment Date for which the Debt Ratio falls
within a different level and (c) if the financial statements and related
compliance certificate for any fiscal period are not delivered by the date
due pursuant to subsections 6.1 and 6.2, the Commitment Fee Rate shall be
(i) for the first 35 days subsequent to such due date, the Commitment Fee
Rate in effect prior to such due date and (ii) thereafter, that set forth
opposite a Debt Ratio captioned "greater than or equal to 4.75," in either
case, until the date of delivery of such financial statements and
compliance certificate.
5
"Commitment Percentage": as to the Commitment of any Lender with
respect to any Type of Loan at any time, the percentage which the
Commitment of such Lender with respect to such Type of Loan then
constitutes of the aggregate Commitments with respect to such Type of Loan
(or, at any time after such Commitments shall have expired or terminated,
the percentage which the aggregate amount of the Aggregate Outstanding
Extensions of Credit of such Lender with respect to such Type of Loan
constitutes of the aggregate amount of the Aggregate Outstanding
Extensions of Credit of all Lenders with respect to such Type of Loan).
"Commitment Period": the period from and including the date hereof
to but not including the Revolving Loan Termination Date or such earlier
date on which the Revolving Credit Commitments shall terminate as
provided herein.
"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 (b) or (c) of
the Code.
"Consolidated EBITDA": as of the last day of any fiscal quarter,
Consolidated Net Income (excluding without duplication, (x) extraordinary
gains and losses in accordance with GAAP, (y) gains and losses in
connection with asset dispositions whether or not constituting
extraordinary gains and losses and (z) gains or losses on discontinued
operations) for such period, plus (i) Consolidated Cash Interest Expense
for such period, plus (ii) to the extent deducted in computing such
Consolidated Net Income, the sum of income taxes, depreciation and
amortization for the four fiscal quarters ended on such date; provided
that for any calculation of Consolidated EBITDA for any fiscal period
ending during the first three full fiscal quarters following March 31,
1997, Consolidated EBITDA shall be deemed to be Consolidated EBITDA from
March 31, 1997 to the last day of such period multiplied by a fraction the
numerator of which is 365 and the denominator of which is the number of
days from March 31, 1997 to the last day of such period.
"Consolidated Cash Interest Expense": as of the last day of any
fiscal quarter, the amount of interest expense, payable in cash, of the
Borrower and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP for the four fiscal quarters
ended on such date; provided that for any calculation of Consolidated Cash
Interest Expense for any fiscal period ending during the first three full
fiscal quarters following March 31, 1997, Consolidated Cash Interest
Expense shall be deemed to be Consolidated Cash Interest Expense from
March 31, 1997 to the last day of such period multiplied by a fraction the
numerator of which is 365 and the denominator of which is the number of
days from March 31, 1997 to the last day of such period.
"Consolidated Net Income": for any fiscal period, net income of
the Borrower and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Total Debt": at any date, all Indebtedness of the
Borrower and its Subsidiaries outstanding on such date for borrowed
money or the deferred purchase price of property, including, without
6
limitation, in respect of Financing Leases but excluding Indebtedness
permitted pursuant to subsection 7.2(h).
"Consolidated Working Capital": at any date, the excess of (a) the
sum of all amounts (other than cash and Cash Equivalents) that would, in
accordance with GAAP, 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 over (b) the sum of all amounts
that would, in accordance with GAAP, be set forth opposite the caption
"total current liabilities" (or any like caption) on a consolidated
balance sheet of the Borrower and its Subsidiaries on such date
(excluding, to the extent it would otherwise be included under current
liabilities, any short-term Consolidated Total Debt and the current
portion of any long-term Consolidated Total Debt).
"Constitutional Documents": as to any Person, the articles or
certificate of incorporation and by-laws, partnership agreement or other
organizational documents of such Person.
"Contingent Purchase Price Receipts": at any date, the aggregate
cash received by Holdings, the Borrower or any of their Subsidiaries in
respect of any purchase price adjustment made pursuant to, or in
connection with, the Transaction Agreement subsequent to the date
hereof.
"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 Documents": this Agreement, the Notes, the Applications,
the Guarantees and the Security Documents.
"Credit Parties": the Borrower, Holdings, and each Subsidiary of
the Borrower which is a party to a Credit Document.
"Debt Ratio": as at the last day of any fiscal quarter, the ratio
of (a) Consolidated Total Debt on such date to (b) Consolidated EBITDA.
"Default": any of the events specified in Section 8, whether or
not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Environmental Laws": any and all laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, or other legally enforceable
requirement (including, without limitation, common law) of any foreign
government, the United States, or any state, local, municipal or other
governmental authority, regulating, relating to or imposing liability or
standards of conduct concerning protection of the environment or of human
health as affected by the environment as has been, is now, or may at any
time hereafter be, in effect, including, but not limited to, the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. Sections 9601 et seq.; the Toxic Substance
Control Act, 15 U.S.C. Sections 9601
7
et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. Section
1802 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C.
Sections 6901 et seq.; the Clean Water Act; 33 U.S.C. Sections 1251 et
seq.; the Clean Air Act, 42 U.S.C. Sections 7401 et seq.; or other similar
federal and/or state environmental laws.
"Environmental Permits": any and all permits, licenses,
registrations, notifications, exemptions and any other authorization
required under any applicable Environmental Law.
"Equity Documents": the Stockholder Agreement, the Subscription
Agreements and the Option Agreements.
"Equity Investment": as defined in the recitals to this Agreement.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": means for any day for any
Interest Period the maximum reserve percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1%) in effect on such day (whether
or not applicable to any Lender) under regulations issued from time to
time by the FRB for determining the maximum reserve requirement (including
any emergency, supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities").
"Eurodollar Loans": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
"Eurodollar Rate": means, for any Interest Period, with respect to
Eurodollar Loans comprising part of the same borrowing, the rate of
interest per annum (rounded upward to the next 1/16th of 1%) determined
by the Administrative Agent as follows:
Eurodollar Rate = LIBOR
1.00 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage": for any day for any Interest Period
the maximum reserve percentage (expressed as a decimal, rounded upward to
the next 1/100th of 1%) in effect on such day (whether or not applicable
to any Lender) under regulations issued from time to time by the FRB for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as "Eurocurrency
liabilities").
"Event of Default": any of the events specified in Section 8,
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 Net Income for
such fiscal year, (ii) the net decrease, if any, in Consolidated Working
Capital during such fiscal year, (iii) to the extent deducted in computing
such Consolidated Net Income, non-cash
8
interest expense, depreciation and amortization for such fiscal year, (iv)
extraordinary non-cash losses during such fiscal year subtracted in the
determination of Consolidated Net Income for such fiscal year, (v) change
in deferred tax liability of the Borrower for such fiscal year, (vi)
non-cash losses in connection with asset dispositions whether or not
constituting extraordinary losses, (vii) non-cash ordinary losses and
(viii) Contingent Purchase Price Receipts in excess of $10,000,000 over
(b) the sum, without duplication, of (i) the aggregate amount of permitted
cash Capital Expenditures made by the Borrower and its Subsidiaries during
such fiscal year, (ii) the net increase, if any, in Consolidated Working
Capital during such fiscal year, (iii) the aggregate amount of payments of
principal in respect of any Indebtedness not prohibited hereunder during
such fiscal year (other than prepayments of Revolving Credit Loans not
accompanied by reductions of the Commitments), (iv) deferred income tax
credit of the Borrower for such fiscal year, (v) extraordinary non-cash
gains during such fiscal year added in the determination of Consolidated
Net Income for such fiscal year, (vi) non-cash gains in connection with
asset dispositions whether or not constituting extraordinary gains and
(vii) non-cash ordinary gains.
"Excess Cash Flow Payment Date": in respect of any fiscal year,
the date on which the Borrower is required to deliver audited financial
statements for such fiscal year to each Lender pursuant to subsection
6.1(a).
"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.
"Final Maturity Date": March 31, 2006.
"Foreign Subsidiary": any Subsidiary which is organized under the
laws of any jurisdiction outside the United States or under the laws of
the U.S. Virgin Islands.
"FRB": means the Board of Governors of the Federal Reserve System,
and any governmental authority succeeding to any of its principal
functions.
"GAAP": generally accepted accounting principles in the United
States of America in effect from on the Closing Date.
"GC Notice Recipient": with respect to any Government Contract,
the true and correct (x) contracting officer, or the head of the
respective U.S. government department or agency, (y) surety or sureties
upon the bond or bonds, if any, in connection with such Government
Contract, and (z) disbursing officer, if any designated in such
Government Contract to make payment.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
9
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued
a 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, reimbursement obligations under letters of
credit and 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
Borrower in good faith.
"Guarantees": the Parent Guarantee and the Subsidiary Guarantees.
"Indebtedness": of any Person at any date, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities incurred in the
ordinary course of business and payable in accordance with customary
practices and accrued expenses incurred in the ordinary course of
business), (b) any other indebtedness of such Person which is evidenced by
a note, bond, debenture or similar instrument, (c) all obligations of such
Person under Financing Leases, (d) all obligations of such Person in
respect of acceptances issued or created for the account of such Person,
(e) all liabilities secured by any Lien on any property owned by such
Person even though such Person has not assumed or otherwise become liable
for the payment thereof and (f) all Attributable Debt of such Person with
respect to sale and leaseback transactions of such Person.
"Indenture": the Indenture between the Borrower and The Bank of
New York, as trustee, pursuant to which the Subordinated Notes are
issued.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245
of ERISA.
10
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any Base Rate Loan, the last
Business Day of each March, June, September and December, (b) as to any
Eurodollar Loan having an Interest Period of three months or less, the
last Business Day of such Interest Period, and (c) as to any Eurodollar
Loan having an interest period longer than three months, (i) each Business
Day which is three months or a whole multiple thereof after the first day
of such Interest Period and (ii) the last Business Day of such Interest
Period.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two, three or six 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
preceding Interest Period applicable to such Eurodollar Loan and
ending one, two, three or six 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:
(i) 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;
(ii) any Interest Period for any Loan that would otherwise
extend beyond the Termination Date of such Loan shall end on the
Termination Date of such Loan;
(iii) 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
in which such Interest Period would otherwise be scheduled to end)
shall end on the last Business Day of the appropriate calendar month;
and
(iv) no Interest Period with respect to any portion of any Type
of Term Loan shall extend beyond a date on which the Borrower is
required to make a scheduled payment of principal of Term Loans of
such Type unless the sum of (a) the aggregate principal amount of
Term Loans of such Type that are Base Rate Loans plus (b) the
aggregate principal amount of Term Loans of such Type that are
Eurodollar Rate Loans with Interest Periods expiring on or before
11
such date equals or exceeds the principal amount required to be paid
on Term Loans of such Type on such date.
"Interest Rate Agreement": any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other
similar agreement or arrangement.
"Interest Rate Agreement Obligations": the obligations of the
Borrower or any of its Subsidiaries to make payments to counterparties
under Interest Rate Agreements in the event of the occurrence of a
termination event thereunder.
"Issuing Lender": BOA, in its capacity as issuer of any Letter of
Credit or, at the election of BOA, such other Lender or Lenders that
agree to act as Issuing Lender at the request of the Company.
"LCPI": as defined in the recitals to this Agreement.
"L/C Commitment": $15,000,000.
"L/C Fee Payment Date": the last Business Day of each March, June,
September and December.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters
of Credit which have not then been reimbursed pursuant to subsection 3.5.
"L/C Participants": the collective reference to all the Revolving
Credit Lenders other than the Issuing Lender.
"Lender" and "Lenders": the persons identified as Lenders and listed
on the signature pages of this Agreement (including the Issuing Bank and
the Swing Line Lender), together with their successors and permitted
assigns pursuant to subsection 10.6; provided that the term "Lenders",
when used in the context of a particular Commitment, shall mean Lenders
having that Commitment.
"Letters of Credit": as defined in subsection 3.1.
"LIBOR": the rate of interest per annum determined by the
Administrative Agent to be the arithmetic mean (rounded upward to the next
1/16th of 1%) of the rates of interest per annum notified to the
Administrative Agent by each Reference Bank as the rate of interest at
which dollar deposits in the approximate amount of the amount of the Loan
to be made or continued as, or converted into, a Eurodollar Rate Loan by
such Reference Bank and having a maturity comparable to such Interest
Period would be offered to major banks in the London interbank market at
their request at approximately 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period.
"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
12
retention agreement and any Financing Lease having substantially the same
economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Lockheed Xxxxxx Predecessor Businesses": the businesses to be
transferred by the Seller and its Subsidiaries to the Borrower
pursuant to the Transaction Agreement.
"Loral Acquired Businesses": that portion of the Lockheed Xxxxxx
Predecessor Businesses consisting of the Seller's Wide Band Systems
Division and Products Group, comprised of ten autonomous operations,
acquired by the Seller effective April 1, 1996, as part of the
acquisition by the Seller of the defense electronics business of
Loral Corporation.
"Material Adverse Effect": a material adverse effect on (a) the
business, assets, operations, property or condition (financial or
otherwise) of Holdings and its Subsidiaries taken as a whole, (b) the
validity or enforceability of this or any of the other Credit Documents or
the rights or remedies of the Agents or the Lenders hereunder or
thereunder or (c) the Transaction.
"Materials of Environmental Concern": any hazardous or toxic
substances, materials or wastes, defined or regulated as such in or under,
or that could give rise to liability under, any applicable Environmental
Law, including, without limitation, asbestos, polychlorinated biphenyls,
urea-formaldehyde insulation, gasoline or petroleum (including crude oil
or any fraction thereof) or petroleum products.
"Mortgages": the collective reference to the mortgages and deeds of
trust to be executed and delivered by the Borrower or the appropriate
Subsidiary, substantially in the forms of Exhibit C-1 and C-2 (with such
changes therein as may be required to reflect different laws and practices
in the various jurisdictions in which the Mortgages are to be recorded),
covering the parcels of real property identified in Schedule III, as the
same may be amended, supplemented 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 Proceeds": the aggregate cash proceeds (including Cash
Equivalents) received by Holdings or any of its Subsidiaries in respect
of:
(a) any issuance by the Borrower or any of its Subsidiaries
of Indebtedness after the Closing Date;
(b) any Asset Sale; and
(c) any cash payments received in respect of promissory notes or
other evidences of indebtedness delivered to Holdings or such
Subsidiary in respect of an Asset Sale;
13
in each case net of (without duplication) (i), (A) in the case of an Asset
Sale, the amount required to repay any Indebtedness (other than the Loans)
secured by a Lien on any assets of Holdings or a Subsidiary of Holdings
that are sold or otherwise disposed of in connection with such Asset Sale
and (B) reasonable and appropriate amounts established by Holdings or such
Subsidiary, as the case may be, as a reserve against liabilities
associated with such Asset Sale and retained by Holdings or such
Subsidiary, (ii) the reasonable expenses (including legal fees and
brokers' and underwriters' commissions, lenders fees, credit enhancement
fees, accountants' fees, investment banking fees, survey costs, title
insurance premiums and other customary fees, in any case, paid to third
parties or, to the extent permitted hereby, Affiliates) incurred in
effecting such issuance or sale and (iii) any taxes reasonably
attributable to such sale and reasonably estimated by Holdings or such
Subsidiary to be actually payable.
"Non-Excluded Taxes": as defined in subsection 2.15.
"Non-U.S. Lender": as defined in subsection 2.15(b).
"Notes": The Tranche A Term Notes, the Tranche B Term Notes, the
Tranche C Term Notes, the Revolving Credit Notes and the Swing Line Note
(or any of them).
"Novation Agreement": as defined in the Transaction Agreement.
"Obligations": as defined in the Guarantees and the Security
Documents.
"Option Agreements": the Option Agreements between Holdings and
each of Xxxxx X. Xxxxx and Xxxxxx X. XxXxxxx, each dated as of the
Closing Date.
"Parent Distributions": as defined in the Parent Guarantee.
"Parent Guarantee": the Parent Guarantee substantially in the form
of Exhibit B-1, to be executed and delivered by Holdings, as the same
may be amended, supplemented or otherwise modified.
"Parent Pledge and Security Agreement": the Parent Pledge and
Security Agreement substantially in the form of Exhibit B-3, to be
executed and delivered by Holdings, as the same may be amended,
supplemented or otherwise modified.
"Participant": as defined in subsection 10.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any successor thereto.
"Permitted Liens": Liens permitted to exist under subsection 7.3.
"Permitted Stock Payments": (A) dividends by the Borrower to Holdings
in amounts equal to the amounts required for Holdings to pay franchise
taxes and other fees required to maintain its legal existence and provide
for other operating costs of up to $1,000,000 per fiscal year, (B)
dividends by the Borrower to Holdings in amounts equal to amounts required
for Holdings to pay federal, state and local income
14
taxes to the extent such income taxes are actually due and owing; provided
that the aggregate amount paid under this clause (B) does not exceed the
amount that the Borrower would be required to pay in respect of the income
of the Borrower and its Subsidiaries if the Borrower were a stand alone
entity that was not owned by Holdings, and (C) from and after May 1, 1999,
dividends by the Borrower to Holdings payable solely out of Excess Cash
Flow which is not required to be applied to the prepayment of Loans and
the permanent reduction of Commitments pursuant to subsection 2.6(a)(iii),
provided that (i) as of the last day of the most recently completed fiscal
quarter the Debt Ratio is less than or equal to 3.5 to 1, (ii) the
aggregate amount of dividends paid by the Borrower to Holdings under this
clause (C) since the date of this Agreement does not exceed $5,000,000 and
(iii) Holdings promptly uses the proceeds of such dividends to repurchase
Capital Stock of Holdings.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan covered by
ERISA and in respect of which the Borrower or any Commonly Controlled
Entity maintains, administers, contributes to or is required to
contribute to, or under which the Borrower or any Commonly Controlled
Entity may incur any liability.
"Principals": each of Xxxxxx Brothers Holdings, Inc., Capital
Partners, the Seller, Xxxxx X. Xxxxx and Xxxxxx X. XxXxxxx.
"Pro Forma Financial Statements": as defined in subsection 4.1(c).
"Properties": as defined in subsection 4.17.
"Purchase Agreement": the Purchase Agreement, dated as of April
25, 1997, among the Borrower and each of Xxxxxx Brothers, Inc. and
BancAmerica Securities, Inc.
"Receivables": as defined in the Security Documents.
"Reference Bank": the Bank of America NT & SA.
"Register": as defined in subsection 10.6(d).
"Registration Rights Agreement": the Registration Rights
Agreement, dated as of April 30, 1997, among the Borrower and each of
Xxxxxx Brothers, Inc. and BancAmerica Securities, Inc.
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to subsection 3.5 for amounts
drawn under Letters of Credit.
"Refunded Swing Line Loan": as defined in subsection 2.1(b)(iii).
"Related Party": with respect to the Principals, (a) any
controlling stockholder, 51% (or more) owned Subsidiary, or spouse or
15
immediate family member (in the case of an individual) of such Principal
or (b) a trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially
holding an 51% or more controlling interest of which consist of the
Principals and/or such other Persons referred to in the immediately
preceding clause (a).
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty-day notice
period is waived under the regulations of the PBGC.
"Required Lenders": at any time, Lenders the Commitment
Percentages for all Types of Loans of which aggregate more than 50%.
"Requirement of Law": as to any Person, the Constitutional Documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other 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.
"Requisite Class Lenders": at any time, (a) for the Class Lenders
having Tranche A Term Loan Exposure, Lenders having or holding 66 2/3% of
the aggregate Tranche A Term Loan Exposure of all Lenders, (b) for the
Class Lenders having Revolving Credit Loan Exposure, Lenders having or
holding 66 2/3% of the aggregate Revolving Credit Loan Exposure of all
Lenders, (c) for the Class Lenders having Tranche B Term Loan Exposure,
Lenders having or holding 66 2/3% of the aggregate Tranche B Term Loan
Exposure of all Lenders and (d) for the Class Lenders having Tranche C
Term Loan Exposure, Lenders having or holding 66 2/3% of the aggregate
Tranche C Term Loan Exposure of all Lenders.
"Responsible Officer": the chief executive officer, the president
or vice president of the Borrower or, with respect to financial matters,
the chief financial officer, vice president--finance or treasurer of the
Borrower.
"Restricted Government Contracts": as defined in the Security
Documents.
"Revolving Credit Commitment": the commitment of a Lender, as set
forth on Schedule I hereto, to make Revolving Credit Loans to the Borrower
pursuant to Subsection 2.1(a)(iv) and, to issue and/or purchase
participations in Letters of Credit pursuant to Section 3; and "Revolving
Credit Commitments" means such commitments of all Lenders in the
aggregate, which shall initially be $100,000,000.
"Revolving Credit Lender": any Lender or Lenders having a Revolving
Credit Commitment or a Revolving Credit Loan outstanding.
"Revolving Credit Loans": the Loans made by Revolving Credit
Lenders to the Borrower pursuant to Subsection 2.1(a)(iv).
16
"Revolving Credit Loan Exposure": with respect to any Lender as of
date of determination, (i) if there are no outstanding Letters of Credit
or Revolving Credit Loans, that Lender's Revolving Credit Commitment, and
(ii) otherwise, the sum of (a) the aggregate outstanding principal amount
of the Revolving Credit Loans of that Lender plus (b) in the event that
Lender is an Issuing Lender, the aggregate Letter of Credit Usage in
respect of all Letters of Credit issued by that Lender (in each case net
of any participations purchased by other Lenders in such Letters of Credit
or any unreimbursed drawings thereunder) plus (c) in the event that such
Lender is the Swing Line Lender, the aggregate principal amount of Swing
Line Loans made by such Lender then outstanding (net of any participations
purchased by other Lenders in such Swing Line Loans) plus (d) the
aggregate amount of all participations purchased by that Lender in any
outstanding Swing Line Loans or Letters of Credit or any unreimbursed
drawings under any Letters of Credit.
"Revolving Credit Notes": (i) the promissory notes of the Borrower
issued pursuant to subsection 2.5(i)(iv) on the Closing Date to evidence
the Revolving Credit Loans of any Lender and (ii) any promissory notes
issued by the Borrower pursuant to Section 10.6(d) in connection with
assignments of the Revolving Credit Commitments and Revolving Credit Loans
of any Lenders, in each case substantially in the form of Exhibit A-4
annexed hereto, as they may be amended, supplemented or otherwise modified
from time to time.
"Revolving Loan Termination Date": March 31, 2003.
"Security Documents": the collective reference to the Parent Pledge
and Security Agreement, the Borrower Pledge and Security Agreement and the
Subsidiary Pledge and Security Agreement, the Mortgages and all other
security documents hereafter delivered to the Administrative Agent
granting a Lien on any asset or assets of any Person to secure the
obligations and liabilities of the Borrower hereunder and under any of the
other Credit Documents or to secure any guarantee of any such obligations
and liabilities.
"Securities Offering": as defined in the recitals to this
Agreement.
"Seller": as defined in the recitals to this Agreement.
"Similar Business": a business, at least a majority of whose revenues
in the most recently ended calendar year were derived from (i) the sale of
defense products, electronics, communications systems, aerospace products,
avionics products and/or communications products, (ii) any services
related thereto, (iii) any business or activity that is reasonably similar
thereto or a reasonable extension, development or expansion thereof or
ancillary thereto, and (iv) any combination of any of the foregoing.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Stockholders Agreement": the Stockholders Agreement, dated as of
April 30, 1997, by and among the Borrower, Holdings, the Seller, the
Principals and any other party that may from time to time become a party
17
thereto as provided therein, as the same may be amended, supplemented or
otherwise modified from time to time.
"Subordinated Debt": indebtedness outstanding under the
Subordinated Notes.
"Subordinated Debt Documents": the Indenture, the Registration
Rights Agreement, the Purchase Agreement and the Subordinated Notes.
"Subordinated Notes": the Borrower's 10 3/8% Senior Subordinated
Notes, due 2007 (the "Initial Subordinated Notes"), issued on the Closing
Date, and the subordinated notes of the Borrower, having the same terms as
the Initial Subordinated Notes, issued in exchange for the Initial
Subordinated Notes as contemplated by the Subordinated Debt Documents.
"Subscription Agreements": the Common Stock Subscription
Agreements between Holdings and each of Xxxxx X. Xxxxx, Xxxxxx X.
XxXxxxx, Capital Partners and the Seller, each dated as of the Closing
Date.
"Subsidiary": as to any Person, a corporation, partnership or other
entity 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
corporation, partnership or other entity are at the time owned, directly
or indirectly, by such Person. Unless otherwise qualified, all references
to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"Subsidiary Guarantees": the Subsidiary Guarantees substantially
in the form of Exhibit B-2, to be executed and delivered by the
Borrower's Subsidiaries, as the same may be amended, supplemented or
otherwise modified.
"Subsidiary Pledge and Security Agreement": the Subsidiary Pledge
and Security Agreement substantially in the form of Exhibit B-5, to be
executed and delivered by the Borrower's Subsidiaries, as the same may
be amended, supplemented or otherwise modified.
"Swing Line Lender": means Bank of America NT & SA.
"Swing Line Loans": as defined in Section 2.1(b).
"Term Loan Commitment or Term Loan Commitments": the commitments
of a Lender to make any Term Loans pursuant to subsection 2.1(a); and
Term Loan Commitments means such commitments of all Lenders in the
aggregate, which shall initially be $175,000,000.
"Term Loan Exposure": with respect to a Lender of a Type of Term Loan
as of any date of determination, (i) prior to the termination of all of a
Lender's Commitment with respect to the Term Loans of such Type, that
Lender's Commitment with respect to Term Loans of such Type (or any
portion thereof that has not been terminated) plus the outstanding
principal amount of the Term Loan of such Type of that Lender, and (ii)
after the termination of all of a Lender's Commitment
18
with respect to the Term Loans of such Type, the outstanding principal
amount of the Term Loan of such Type of that Lender.
"Term Loans": one or more of the Tranche A Term Loans, the Tranche
B Term Loans or the Tranche C Term Loans.
"Termination Date": (i) with respect to Tranche A Term Loans, March
31, 2003; (ii) with respect to Tranche B Term Loans, March 31, 2005; (iii)
with respect to Tranche C Term Loans, March 31, 2006; and (iv) with
respect to Revolving Credit Loans and Swing Line Loans, the Revolving
Credit Termination Date.
"Tranche": the collective reference to Eurodollar Loans the then
current 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); Tranches may be identified as
"Eurodollar Tranches".
"Tranche A Term Lender": any Lender having a Tranche A Term Loan
Commitment or a Tranche A Term Loan outstanding.
"Tranche A Term Loans": the Loans made by Tranche A Term Lenders
to the Borrower pursuant to subsection 2.1(a)(i).
"Tranche A Term Loan Commitment": the commitment of a Tranche A Term
Lender, as set forth on Schedule I hereto, to make a Tranche A Term Loan
to the Borrower pursuant to subsection 2.1(a)(i); and "Tranche A Term Loan
Commitments" means such commitments of all Tranche A Term Lenders in the
aggregate, which shall initially be $100,000,000.
"Tranche A Term Notes": (i) the promissory notes of the Borrower
issued pursuant to subsection 2.5(i)(i) on the Closing Date to evidence
the Tranche A Term Loans of any Lender and (ii) any promissory notes
issued by the Borrower pursuant to subsection 10.6(d) in connection with
assignments of the Tranche A Term Loan Commitments and Tranche A Term
Loans of any Lender, in each case substantially in the form of Exhibit A-1
annexed hereto, as they may be amended, supplemented or otherwise modified
from time to time.
"Tranche B Term Lenders": any Lender having a Tranche B Term Loan
Commitment or a Tranche B Term Loan outstanding.
"Tranche B Term Loans": the Loans made by Tranche B Term Lenders
to the Borrower pursuant to subsection 2.1(a)(ii).
"Tranche B Term Loan Commitment": the commitment of a Tranche B Term
Lender to make a Tranche B Term Loan to the Borrower pursuant to
subsection 2.1(a)(ii); and "Tranche B Term Loan Commitments" means such
commitments of all Tranche B Term Lenders in the aggregate, which shall
initially be $45,000,000.
"Tranche B Term Notes": (i) the promissory notes of the Borrower
issued pursuant to subsection 2.5(i)(ii) on the Closing Date to evidence
the Tranche B Term Loans of any Lender and (ii) any promissory notes
issued by the Borrower pursuant to subsection 10.6(d) in connection with
assignments of the Tranche B Term Loan Commitments and Tranche B Term
Loans of any Lender, in each case substantially in the form of
19
Exhibit A-2 annexed hereto, as they may be amended, supplemented or
otherwise modified from time to time.
"Tranche C Term Lender": any Lender having a Tranche C Term Loan
Commitment or a Tranche C Term Loan outstanding.
"Tranche C Term Loan Commitment": the commitment of a Tranche C Term
Lender, as set forth on Schedule I hereto, to make a Tranche C Term Loan
to the Borrower pursuant to subsection 2.1(a)(iii); and "Tranche C Term
Loan Commitments" means such commitments of all Tranche C Term Lenders in
the aggregate, which shall initially be $30,000,000.
"Tranche C Term Loans": the Loans made by Tranche C Term Lenders to
the Borrower pursuant to subsection 2.1(a)(iii).
"Tranche C Term Notes": (i) the promissory notes of the Borrower
issued pursuant to subsection 2.5(i)(iii) on the Closing Date to evidence
the Tranche C Term Loans of any Lender and (ii) any promissory notes
issued by the Borrower pursuant to subsection 10.6(d) in connection with
assignments of the Tranche C Term Loan Commitments and Tranche C Term
Loans of any Lender, in each case substantially in the form of Exhibit A-3
annexed hereto, as they may be amended, supplemented or otherwise modified
from time to time.
"Transaction": the transactions contemplated by the Transaction
Documents.
"Transaction Agreement": as defined in the recitals to this
Agreement.
"Transaction Documents": (i) the Transaction Agreement, the
Schedules thereto and the documents set forth on Schedule IV hereto,
(ii) the Equity Documents and (iii) the Subordinated Debt Documents.
"Transferee": as defined in subsection 10.6(f).
"Type": a Revolving Loan, a Tranche A Term Loan, a Tranche B Term
Loan, a Tranche C Term Loan or a Swing Line Loan.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
"U.S. Taxes": any tax, assessment, or other charge or levy and any
liabilities with respect thereto, including any penalties, additions to
tax, fines or interest thereon, imposed by or on behalf of the United
States or any taxing authority thereof.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Credit Document or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any Credit Document, and any certificate or
other document made or delivered pursuant hereto, accounting terms relating to
the Borrower and its Subsidiaries not defined in subsection 1.1
20
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.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments. (a) Subject to the terms and conditions hereof, each
Lender severally agrees to make the loans described in this Section 2.1(a) as
applicable to the Borrower.
(i) Tranche A Term Loans. Each Tranche A Term Lender severally
agrees to make a term loan to the Borrower on the Closing Date in an
aggregate principal amount which does not exceed the amount of such
Lender's Tranche A Term Loan Commitment. Amounts borrowed under this
subsection 2.1(a)(i) and subsequently repaid may not be reborrowed.
(ii) Tranche B Term Loans. Each Tranche B Term Lender severally
agrees to make a term loan to the Borrower on the Closing Date in an
aggregate principal amount which does not exceed the amount of such
Lender's Tranche B Term Loan Commitment. Amounts borrowed under this
subsection 2.1(a)(ii) and subsequently repaid may not be reborrowed.
(iii) Tranche C Term Loans. Each Tranche C Term Lender severally
agrees to make a term loan to the Borrower on the Closing Date in an
aggregate principal amount which does not exceed the amount of such
Lender's Tranche C Term Loan Commitment. Amounts borrowed under this
subsection 2.1(a)(iii) and subsequently repaid may not be reborrowed.
(iv) Revolving Credit Loans. Each Revolving Credit Lender
severally agrees to make revolving credit loans to the Borrower, from
time to time during the Commitment Period, in an aggregate principal
amount at any one time outstanding which, when added to the aggregate
principal amount of outstanding Swing Line Loans made by such Lender
(or in which such Lender has purchased a participation) and such
Lender's Revolving Credit Commitment Percentage of the then
outstanding L/C Obligations, does not exceed the amount of such
Lender's Revolving Credit Commitment. During the 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.
(b) (i) Subject to the terms and conditions hereof, the Swing Line
Lender agrees to make swing line loans (individually, a "Swing Line Loan";
collectively, the "Swing Line Loans") to the Borrower from time to
21
time during the Commitment Period in an aggregate principal amount at any one
time outstanding not to exceed $10,000,000; provided, that no Swing Line Loan
shall be made if, after giving effect thereto and to the simultaneous use of
the proceeds thereof, the aggregate principal amount of Revolving Credit Loans
then outstanding plus the aggregate principal amount of Swing Line Loans then
outstanding, plus the aggregate amount of L/C Obligations then outstanding
would exceed the Revolving Credit Commitments of the Revolving Credit Lenders.
Amounts borrowed by the Borrower under this subsection 2.1(b) may be repaid
and, through but excluding the Termination Date, reborrowed. All Swing Line
Loans shall be made as Base Rate Loans and may not be converted into Eurodollar
Loans. In order to borrow a Swing Line Loan, the Borrower shall give the Swing
Line Lender, with a copy to the Administrative Agent, irrevocable notice (which
notice must be received by the Swing Line Lender prior to 12:00 Noon, New York
City time) on the requested Borrowing Date specifying the amount of the
requested Swing Line Loan which shall be in a minimum amount of $500,000 or
whole multiples of $100,000 in excess thereof. The proceeds of the Swing Line
Loan will be made available by the Swing Line Lender to the Borrower at the
office of the Swing Line Lender by crediting the account of the Borrower at
such office with such proceeds.
(ii) The Swing Line Loans shall be evidenced by a promissory
note of the Borrower, substantially in the form of Exhibit A-5 (the "Swing Line
Note"), with appropriate insertions, payable to the order of the Swing Line
Lender and representing the obligation of the Borrower to pay the unpaid
principal amount of the Swing Line Loans, with interest thereon as prescribed
in subsection 2.9. The Swing Line Note shall (i) be dated the Closing Date,
(ii) be stated to mature on the Termination Date and (iii) bear interest,
payable on the dates specified in 2.9, for the period from the date thereof to
the Termination Date on the unpaid principal amount thereof from time to time
outstanding at the applicable interest rate per annum specified in subsection
2.9.
(iii) The Swing Line Lender, at any time in its sole and
absolute discretion, may on behalf of the Borrower (which hereby irrevocably
directs the Swing Line Lender to act on its behalf) request each Lender,
including the Swing Line Lender, to make a Revolving Credit Loan (which shall
be a Base Rate Loan) in an amount equal to such Lender's Commitment Percentage
with respect to Revolving Credit Loans of such Revolving Credit Loan (the
"Refunded Swing Line Loans") outstanding on the date such notice is given.
Unless any of the events described in subsection 8(f) shall have occurred (in
which event the procedures of subsection 2.1(b)(iv) shall apply) each Lender
shall, not later than 12:00 P.M., New York City time, on the Business Day next
succeeding the date on which such notice is given, make available to the Swing
Line Lender in immediately available funds the amount equal to the Revolving
Credit Loan to be made by such Lender. The proceeds of such Revolving Credit
Loans shall be immediately applied to repay the Refunded Swing Line Loans. Upon
any request by the Swing Line Lender to the Lender pursuant to this subsection
2.1(b)(iii), the Administrative Agent shall promptly give notice to the
Borrower of such request.
(iv) If prior to the making of a Revolving Credit Loan pursuant
to subsection 2.1(b)(iii) one of the events described in subsection 8(f) shall
have occurred, each Lender will, on the date such Loan was to have been made,
purchase an undivided participating interest in the Swing Line Loans in an
amount equal to its Commitment Percentage with respect to
22
Revolving Credit Loans. Each Lender will immediately transfer to the Swing
Line Lender, in immediately available funds, the amount of its participation.
(v) Whenever, at any time after the Swing Line Lender has
received from any Lender such Lender's participating interest in a Swing Line
Loan, the Swing Line Lender receives any payment on account thereof, the Swing
Line Lender will distribute to such Lender its participating interest in such
amount (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Lender's participating interest was
outstanding and funded); provided, however, that in the event that such payment
received by the Swing Line Lender is required to be returned, such Lender will
return to the Swing Line Lender any portion thereof previously distributed by
the Swing Line Lender to it.
(vi) Each Lender's obligation to purchase participating
interests pursuant to subsection 2.1(b)(iv) shall be absolute and unconditional
and shall not be affected by any circumstance, including, without limitation,
(a) any set-off, counterclaim, recoupment, defense or other right which such
Lender or the Borrower may have against the Swing Line Lender, any other Lender
or anyone else for any reason whatsoever, (b) the occurrence or continuance of
any Default or Event of Default; (c) any adverse change in the condition
(financial or otherwise) of the Borrower; (d) any breach of this Agreement by
the Borrower or any other Lender; or (e) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
(c) Except for Swing Line Loans, which shall be Base Rate Loans, the
Loans may from time to time be (i) Eurodollar Loans, (ii) Base Rate Loans or
(iii) a combination thereof, as determined by the Borrower and notified to the
Administrative Agent in accordance with subsections 2.2 and 2.7, provided that
no Revolving Credit Loan shall be made as a Eurodollar Loan after the day that
is one month prior to the Termination Date with respect to such Loan.
2.2 Procedure for Borrowing. The Borrower may borrow under the
Commitments during the Commitment Period on any Business Day, provided that the
Borrower shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent prior to (a) 11:00 A.M., New York
City time, three Business Days prior to the requested Borrowing Date, if all or
any part of the requested Loans are to be initially Eurodollar Loans, (b) 11:00
A.M., New York City time, on the requested Borrowing Date in the case of a
Swing Line Loan or a Base Rate Loan), specifying (i) the amount to be borrowed
of each Type of Loan, (ii) the requested Borrowing Date, (iii) whether the
borrowing is to be of Eurodollar Loans, Base Rate Loans or a combination
thereof and (iv) if the borrowing is to be entirely or partly of Eurodollar
Loans, the respective lengths of the initial Interest Periods therefor. Each
borrowing under the Commitments shall be in an amount equal to (x) in the case
of Base Rate Loans (other than Swing Line Loans), $2,000,000 or a whole
multiple of $500,000 in excess thereof (or, if the then Available Commitments
are less than $2,000,000, such lesser amount), (y) in the case of Swing Line
Loans, as provided in subsection 2.1(b)(i) and (z) in the case of Eurodollar
Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon
receipt of any such notice from the Borrower, the Administrative Agent shall
promptly notify each Lender thereof. Each 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
23
10.2 prior to 11:00 A.M., New York City time (in the case of Eurodollar Loans)
or 2:30 P.M., New York City time (in the case of Base Rate Loans), 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 Lenders and in like funds as received by the
Administrative Agent. All notices given by the Borrower under this subsection
2.2 may be made by telephonic notice promptly confirmed in writing.
2.3 Commitment Fee. 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 Commitment Period to and
including the Revolving Loan Termination Date, computed at the Commitment Fee
Rate on the average daily amount of the Available Commitment of such Revolving
Credit Lender during the period for which payment is made, payable quarterly in
arrears on the last Business Day of each March, June, September and December
and on the Revolving Loan Termination Date, commencing on the first of such
dates to occur after the date hereof.
2.4 Termination or Reduction of Revolving Credit Commitments. The
Borrower shall have the right, upon not less than three Business Days' written
notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time, to reduce the amount of the Revolving Credit
Commitments ratably among the Revolving Credit Lenders; provided that no such
termination or reduction shall be permitted if, after giving effect thereto and
to any prepayments of the Revolving Credit Loans made on the effective date
thereof, the aggregate principal amount of the Revolving Credit Loans then
outstanding, when added to the then outstanding L/C Obligations and the
outstanding Swing Line Loans, would exceed the Revolving Credit Commitments
then in effect. Any such reduction shall be in an amount equal to $2,000,000 or
a whole multiple of $500,000 in excess thereof and shall reduce permanently the
Revolving Credit Commitments then in effect.
2.5 Repayment of Loans; Evidence of Debt.
(a) Scheduled Payments of Tranche A Term Loans. The Borrower
shall make principal payments on the Tranche A Term Loans on March 31, June 30,
September 30 and December 31 of each year, commencing on June 30, 1997, in the
amounts set forth opposite the corresponding Payment Period as follows:
Scheduled Repayment
Payment Period of Tranche A Term Loans
-------------- -----------------------
Closing Date - 6/30/97 $ 800,000
7/1/97 - 9/30/97 800,000
10/1/97 - 12/31/97 800,000
1/1/98 - 3/31/98 800,000
4/1/98 - 6/30/98 800,000
7/1/98 - 9/30/98 1,250,000
10/1/98 - 12/31/98 1,250,000
1/1/99 - 3/31/99 1,250,000
4/1/99 - 6/30/99 1,250,000
24
7/1/99 - 9/30/99 3,750,000
10/1/99 - 12/31/99 3,750,000
1/1/00 - 3/31/00 3,750,000
4/1/00 - 6/30/00 3,750,000
7/1/00 - 9/30/00 5,250,000
10/1/00 - 12/31/00 5,250,000
1/1/01 - 3/31/01 5,250,000
4/1/01 - 6/30/01 5,250,000
7/1/01 - 9/30/01 6,750,000
10/1/01 - 12/31/01 6,750,000
1/1/02 - 3/31/02 6,750,000
4/1/02 - 6/30/02 6,750,000
7/1/02 - 9/30/02 9,333,333.33
10/1/02 - 12/31/02 9,333,333.33
1/1/03 - 3/31/03 9,333,333.34
$ 100,000,000;
provided that the scheduled installments of principal of the Tranche A Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Term Loans in accordance with subsection 2.6 (as
provided in such subsection); and provided further that the Tranche A Term
Loans and all other amounts owed hereunder with respect to the Tranche A Term
Loans shall be paid in full no later than March 31, 2003, and the final
installment payable by the Borrower in respect of the Tranche A Term Loans on
such date shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by the Borrower under
this Agreement with respect to the Tranche A Term Loans.
(b) Scheduled Payments of Tranche B Term Loans. The Borrower
shall make principal payments on the Tranche B Term Loans on March 31, June 30,
September 30 and December 31 of each year, commencing on June 30, 1997, in the
amounts set forth opposite the corresponding Payment Period as follows:
Scheduled Repayment
Payment Period of Tranche B Term Loans
-------------- -----------------------
Closing Date - 6/30/97 $ 100,000
7/1/97 - 9/30/97 100,000
10/1/97 - 12/31/97 100,000
1/1/98 - 3/31/98 100,000
4/1/98 - 6/30/98 100,000
7/1/98 - 9/30/98 125,000
10/1/98 - 12/31/98 125,000
1/1/99 - 3/31/99 125,000
4/1/99 - 6/30/99 125,000
7/1/99 - 9/30/99 125,000
10/1/99 - 12/31/99 125,000
25
1/1/00 - 3/31/00 125,000
4/1/00 - 6/30/00 125,000
7/1/00 - 9/30/00 125,000
10/1/00 - 12/31/00 125,000
1/1/01 - 3/31/01 125,000
4/1/01 - 6/30/01 125,000
7/1/01 - 9/30/01 125,000
10/1/01 - 12/31/01 125,000
1/1/02 - 3/31/02 125,000
4/1/02 - 6/30/02 125,000
7/1/02 - 9/30/02 125,000
10/1/02 - 12/31/02 125,000
1/1/03 - 3/31/03 125,000
4/1/03 - 6/30/03 125,000
7/1/03 - 9/30/03 5,000,000
10/1/03 - 12/31/03 5,000,000
1/1/04 - 3/31/04 5,000,000
4/1/04 - 6/30/04 5,000,000
7/1/04 - 9/30/04 7,333,333.33
10/1/04 - 12/31/04 7,333,333.33
1/1/05 - 3/31/05 7,333,333.33
$ 45,000,000;
provided that the scheduled installments of principal of the Tranche B Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Term Loans in accordance with subsection 2.6 (as
provided in such subsection); and provided further that the Tranche B Term
Loans and all other amounts owed hereunder with respect to the Tranche B Term
Loans shall be paid in full no later than March 31, 2005, and the final
installment payable by the Borrower in respect of the Tranche B Term Loans on
such date shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by the Borrower under
this Agreement with respect to the Tranche B Term Loans.
(c) Scheduled Payments of Tranche C Term Loans. The Borrower
shall make principal payments on the Tranche C Term Loans on March 31, June 30,
September 30 and December 31 of each year, commencing on June 30, 1997, in the
amounts set forth opposite the corresponding Payment Period as follows:
Scheduled Repayment
Payment Period of Tranche C Term Loans
-------------- -----------------------
Closing Date - 6/30/97 $ 100,000
7/1/97 - 9/30/97 100,000
10/1/97 - 12/31/97 100,000
1/1/98 - 3/31/98 100,000
4/1/98 - 6/30/98 100,000
26
7/1/98 - 9/30/98 125,000
10/1/98 - 12/31/98 125,000
1/1/99 - 3/31/99 125,000
4/1/99 - 6/30/99 125,000
7/1/99 - 9/30/99 125,000
10/1/99 - 12/31/99 125,000
1/1/00 - 3/31/00 125,000
4/1/00 - 6/30/00 125,000
7/1/00 - 9/30/00 125,000
10/1/00 - 12/31/00 125,000
1/1/01 - 3/31/01 125,000
4/1/01 - 6/30/01 125,000
7/1/01 - 9/30/01 125,000
10/1/01 - 12/31/01 125,000
1/1/02 - 3/31/02 125,000
4/1/02 - 6/30/02 125,000
7/1/02 - 9/30/02 125,000
10/1/02 - 12/31/02 125,000
1/1/03 - 3/31/03 125,000
4/1/03 - 6/30/03 125,000
7/1/03 - 9/30/03 125,000
10/1/03 - 12/31/03 125,000
1/1/04 - 3/31/04 125,000
4/1/04 - 6/30/04 125,000
7/1/04 - 9/30/04 125,000
10/1/04 - 12/31/04 125,000
1/1/05 - 3/31/05 125,000
4/1/05 - 6/30/05 125,000
7/1/05 - 9/30/05 8,666,666.66
10/1/05 - 12/31/05 8,666,666.67
1/1/06 - 3/31/06 8,666,666.67
$ 30,000,000;
provided that the scheduled installments of principal of the Tranche C Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Term Loans in accordance with subsection 2.6 (as
provided in such subsection); and provided further that the Tranche C Term
Loans and all other amounts owed hereunder with respect to the Tranche C Term
Loans shall be paid in full no later than March 31, 2006, and the final
installment payable by the Borrower in respect of the Tranche C Term Loans on
such date shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by the Borrower under
this Agreement with respect to the Tranche C Term Loans.
(d) Payments on Revolving Credit and Swing Line Loans. The
Borrower hereby unconditionally promises to pay to the Administrative Agent on
the Revolving Credit Termination Date (or such earlier date on which the Loans
become due and payable pursuant to Section 8) (i) for the account of each
Revolving Credit Lender the then unpaid principal amount of each Revolving
Credit Loan of such Lender and (ii) for the account of the Swing
27
Line Lender (and each other Revolving Credit Lender that has purchased a
participation in then outstanding Swing Line Loans) the then unpaid principal
amount of Swing Line Loans.
(e) Interest. The Borrower hereby further agrees to pay
interest on the unpaid principal amount of the Loans from time to time
outstanding from the date such Loans are made until payment in full thereof at
the rates per annum, and on the dates, set forth in subsection 2.9.
(f) Recording. 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.
(g) Register. The Administrative Agent shall maintain the
Register pursuant to subsection 10.6(d), and a subaccount therein for each
Lender, in which shall be recorded (i) the amount of each Loan and each
Obligation evidenced by a Note made hereunder, the Type thereof, whether each
such Loan is a Base Rate Loan or a Eurodollar Loan and each Interest Period
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 hereunder
and (iii) both the amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Lender's share thereof.
(h) Prima Facie Evidence. The entries made in the Register and
the accounts of each Lender maintained pursuant to subsection 2.5(g) shall, to
the extent permitted by applicable law, 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 made to the Borrower by such Lender in accordance with the
terms of this Agreement.
(i) Notes. The Borrower agrees that the Borrower will execute
and deliver to each Lender a promissory note of the Borrower evidencing (i) the
Tranche A Term Loans of such Lender, substantially in the form of Exhibit A-1
with appropriate insertions as to date and principal amount (a "Tranche A Term
Note"), (ii) the Tranche B Term Loans of such Lender, substantially in the form
of Exhibit A-2 with appropriate insertions as to date and principal amount (a
"Tranche B Term Note"), (iii) the Tranche C Term Loans of such Lender
substantially in the form of Exhibit A-3 with appropriate insertions as to date
and principal amount (a "Tranche C Term Note") and (iv) the Revolving Credit
Loans of such Lender, substantially in the form of Exhibit A-4 with appropriate
insertions as to date and principal amount ("Revolving Credit Note"). A Note
and the Obligation evidenced thereby may be assigned or otherwise transferred
in whole or in part only by registration of such assignment or transfer of such
Note and the Obligation evidenced thereby in the Register (and each Note shall
expressly so provide). Any assignment or transfer of all or part of an
Obligation evidenced by a Note shall be registered in the Register only upon
surrender for registration of assignment or transfer of the Note evidencing
such Obligation, duly endorsed by (or accompanied by a written instrument of
assignment or transfer duly executed by) the holder thereof, and thereupon one
or more new Notes shall be issued to the designated Assignee and the old Note
shall be returned by the Administrative Agent to the Borrower marked
"cancelled." No
28
assignment of a Note and the Obligation evidenced thereby shall be effective
unless it shall have been recorded in the Register by the Administrative Agent
as provided in this subsection 2.5(i).
2.6 Optional Prepayments; Mandatory Prepayments and Reduction
of Commitments. (a) Subject to subsection 2.16, the Borrower may at any time
and from time to time prepay any Loans, in whole or in part, without premium or
penalty, upon irrevocable notice to the Administrative Agent prior to 11:00
A.M., New York City time, three Business Days prior to the date of prepayment,
specifying the date and amount of prepayment, the Type of Loan to be prepaid
(which loans shall be prepaid on a pro rata basis among the applicable Lenders)
and whether the prepayment is of Eurodollar Loans, Base Rate Loans or a
combination thereof, and, if of a combination thereof, the amount allocable to
each. 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 any amounts payable pursuant to subsection 2.16. Partial
prepayments shall be in an aggregate principal amount of $2,000,000 or a whole
multiple of $1,000,000 in excess thereof.
(b) (i) If, subsequent to the Closing Date, Holdings or any of
its Subsidiaries shall incur or permit the incurrence of any Indebtedness
(other than Indebtedness permitted pursuant to subsection 7.2) 100% of the Net
Proceeds thereof shall be promptly applied toward the prepayment of the Loans
and permanent reduction of the Commitments as set forth in clause (iv) of this
subsection 2.6(b). Nothing in this paragraph (b) shall be deemed to permit any
Indebtedness not permitted by subsection 7.2.
(ii) If, subsequent to the Closing Date, Holdings or any of
its Subsidiaries shall receive Net Proceeds from any Asset Sale, such Net
Proceeds shall be promptly applied toward the prepayment of the Loans and
permanent reduction of the Commitments as set forth in clause (iv) of this
subsection 2.6(b); provided that Net Proceeds from any Asset Sales shall not be
required to be so applied to the extent that such Net Proceeds are used by the
Borrower or such Subsidiary to acquire assets to be employed in the business of
the Borrower or its Subsidiaries within 365 days of receipt thereof, but if
such Net Proceeds are not so used, 100% of such Net Proceeds shall be applied
toward the prepayment of the Loans and the permanent reduction of the
Commitments as set forth in clause (iv) of this subsection 2.6(b) on the
earlier of (x) the 366th day after receipt of such Net Proceeds and (y) the
date on which the Borrower has determined that such Net Proceeds shall not be
so used.
(iii) If there is Excess Cash Flow for any fiscal year and
the Debt Ratio as of the last day of such fiscal year is greater than 3.5 to
1.0, 75% of such Excess Cash Flow shall be applied toward the prepayment of the
Loans and the permanent reduction of the Commitments as set forth in clause
(iv) of this subsection 2.6(b) on the Excess Cash Flow Payment Date for such
fiscal year. If there is Excess Cash Flow for any fiscal year and the Debt
Ratio as of the last day of such fiscal year is less than or equal to 3.5 to
1.0, 50% of such Excess Cash Flow shall be applied toward the prepayment of the
Loans and the permanent reduction of the Commitments as set forth in clause
(iv) of this subsection 2.6(b) on the Excess Cash Flow Payment Date for such
fiscal year.
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(iv) Any mandatory prepayments of the Loans pursuant to
subsection 2.6 shall be applied (x) to the Tranche A Term Loans, the Tranche B
Term Loans and the Tranche C Term Loans on a pro rata basis to reduce the
unpaid scheduled installments of principal of each such Tranche of Term Loans
on a pro rata basis, and (y) thereafter to the permanent reduction of the
Revolving Credit Commitment; provided that, in the case of Tranche B Term Loans
and Tranche C Term Loans, so long as any Tranche A Term Loans are outstanding,
each of the Tranche B Term Lenders and the Tranche C Term Lenders shall have
the right to waive such Lender's right to receive any portion of such
prepayment. The Administrative Agent shall notify the Tranche B Term Lenders
and the Tranche C Term Lenders of such receipt and the amount of the prepayment
to be applied to each such Lender's Term Loans; provided, that the Borrower
shall use its reasonable efforts to notify the Tranche B Term Lenders and the
Tranche C Term Lenders of such waivable mandatory prepayment three (3) Business
Days prior to the payment to the Administrative Agent of such waivable
mandatory prepayment (it being understood that the Borrower shall have no
liabilities for failing to so notify such Lenders). In the event any such
Tranche B Term Lender or Tranche C Term Lender desires to waive such Lender's
right to receive any such waivable mandatory prepayment, such Lender shall so
advise the Administrative Agent no later than the close of business on the
Business Day immediately following the date of such notice from the
Administrative Agent. In the event that any such Lender waives such Lender's
right to any such waivable mandatory prepayment, the Administrative Agent shall
apply 50% of the amount so waived by such Lender to prepay the Tranche A Term
Loans to reduce unpaid scheduled installments of principal of the Tranche A
Term Loans on a pro rata basis. The Administrative Agent shall return the
remainder of the amount so waived by such Lender to the Borrower. Revolving
Credit Commitment reductions made pursuant to subsections 2.6(b)(i), (ii) and
(iii) shall be applied to each Lender's Revolving Credit Commitment on a pro
rata basis and shall reduce permanently such Commitments.
(v) If after giving effect to any reduction of the Revolving
Credit Commitments under subsection 2.4, 2.5 or 2.6 the aggregate outstanding
principal amount of Swing Line Loans plus the aggregate outstanding principal
amount of Revolving Credit Loans plus the aggregate outstanding amount of L/C
Obligations shall exceed the aggregate amount of the Revolving Credit
Commitments, such reduction shall be accompanied by prepayment in the amount of
such excess to be applied (x) first, to the outstanding Swing Line Loans and
(y) second, to outstanding Revolving Credit Loans (in each case, together with
any amounts payable under subsection 2.16)); provided that if the aggregate
principal amount of Swing Line Loans and Revolving Credit Loans then
outstanding is less than the amount of such excess (because Letters of Credit
constitute a portion of such excess), the Borrower shall immediately, without
notice or demand, to the extent of the balance of such excess, replace
outstanding Letters of Credit and/or deposit an amount (but in no event greater
than such balance) in a cash collateral account satisfactory to the
Administrative Agent established for the benefit of the Revolving Credit
Lenders.
2.7 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to Base Rate Loans, by
giving the Administrative Agent prior irrevocable notice of such election on or
before 11:00 A.M. New York City time, on the Business Day immediately preceding
the date of the proposed conversion and of the amount and Type of Loan to be
converted, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto.
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The Borrower may elect from time to time to convert Base Rate Loans (other than
Swing Line Loans) to Eurodollar Loans by giving the Administrative Agent prior
irrevocable notice of such election on or before 11:00 A.M., New York City
time, on the third Business Day immediately preceding the date of the proposed
conversion and of the amount and Type of Loan to be converted. 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 applicable Lender thereof.
All or any part of outstanding Eurodollar Loans and Base Rate Loans may be
converted as provided herein, provided that (i) no Loan may be converted into a
Eurodollar Loan when any Event of Default has occurred and is then continuing
and (ii) no Loan may be converted into a Eurodollar Loan after the date that is
one month prior to the Termination Date with respect to such Loan.
(b) 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
and of the amount and Type of Loan to be converted, provided that no Eurodollar
Loan may be continued as such (i) when any Event of Default has occurred and is
then continuing or (ii) after the date that is one month prior to the
Termination Date with respect to such Loan and provided, further, that if the
Borrower shall fail to give such notice or if such continuation is not
permitted such Loans shall be automatically converted to Base Rate Loans on the
last day of such then expiring Interest Period.
(c) All notices given by Borrower under this subsection 2.7
may be made by telephonic notice promptly confirmed in writing.
2.8 Minimum Amounts and Maximum Number 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 equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. In no event
shall there be more than 10 Eurodollar Tranches outstanding at any time.
2.9 Interest Rates and Payment Dates. (a) 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.
(b) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any Loan, (ii)
any interest payable thereon, (iii) any commitment fee or (iv) any other amount
payable hereunder shall not be paid when due (whether at the stated maturity,
by acceleration or otherwise), the principal of the Loans and any such overdue
interest, commitment fee or other amount shall bear interest at a rate per
annum which is (x) in the case of principal, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this subsection plus
2% or (y) in the case of any such overdue interest, commitment fee or other
amount, the rate described in paragraph (b) of this
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subsection plus 2%, in each case from the date of such non-payment until such
overdue principal, interest, commitment fee or other amount is paid in full (as
well after as before judgment).
(d) Interest shall be payable with respect to each Loan in
arrears on each Interest Payment Date and on the Termination Date with respect
to such Loan, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
2.10 Computation of Interest and Fees. (a) Interest on Base
Rate Loans and fees shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed; all other interest shall be
calculated on the basis of a 360-day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders 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 Eurocurrency
Reserve Requirements 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 Lenders of the effective
date and the amount of each such change in interest rate.
(b) 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 Lenders 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
2.9(a) or (c).
2.11 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the eurodollar 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
the Required Lenders that the Eurodollar Rate determined 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,
the Administrative Agent shall give telecopy or telephonic notice thereof to
the Borrower and the 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 first day of such
Interest Period, to Base Rate Loans. Until such notice has been withdrawn in
writing by the Administrative Agent (which the Administrative Agent agrees to
do when the Administrative Agent has determined, or has been instructed by the
Required Lenders that, the circumstances that prompted the
32
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.
2.12 Pro Rata Treatment and Payments. (a) Each borrowing by
the Borrower from the Revolving Credit Lenders hereunder, each payment by the
Borrower on account of any commitment fee hereunder and any reduction of the
Revolving Credit Commitments of Revolving Credit Lenders shall be made pro rata
according to the respective Commitment Percentages of the Revolving Credit
Lenders. Each payment (including each prepayment) by the Borrower on account of
principal of and interest on any Term Loans or the Revolving Credit Loans shall
be made pro rata according to the respective outstanding principal amounts of
such Loans then held by the Lenders. All payments (including prepayments) to be
made by the Borrower hereunder in respect of any Loan, whether on account of
principal, interest, Reimbursement Obligations, fees or otherwise, shall be
made without set off or counterclaim and shall be made prior to 11:00 A.M., New
York City time, on the due date thereof to the Administrative Agent, for the
account of the Lenders with respect to such Loans, at the Administrative
Agent's office specified in subsection 10.2, in Dollars and in immediately
available funds. The Administrative Agent shall distribute such payments to the
applicable Lenders promptly upon receipt in like funds as received. If any
payment hereunder becomes due and payable on a day other than a Business Day,
such payment 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.
(b) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make
the amount that would constitute its Commitment Percentage of such borrowing
available to the Administrative Agent, the Administrative Agent may assume that
such Lender is making 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 not made available to the Administrative Agent by the required time
on the Borrowing Date therefor, such Lender shall pay to the Administrative
Agent, on demand, such amount with interest thereon at a rate equal to the
daily average Federal Funds Effective Rate for the period until such Lender
makes such amount immediately available to the Administrative Agent. 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 Commitment Percentage of such borrowing is not
made available to the Administrative Agent by such Lender within three Business
Days of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
Base Rate Loans hereunder, 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 hereunder to make its Loan on such Borrowing Date.
2.13 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 shall
forthwith be cancelled and (b) such Lender's Loans then outstanding as
33
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. 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
2.16. 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 shall be reinstated.
2.14 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 Note, any Letter of
Credit, any Application or any Eurodollar Loan made by it, or change
the basis of taxation of payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by subsection 2.15 and changes
in the rate of net income taxes (including branch profits taxes and
minimum taxes) or franchise taxes (imposed in lieu of net income
taxes) 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 by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; 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 issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender
upon written demand such additional amount or amounts as will compensate such
Lender for such increased cost or reduced amount receivable; 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 Eurodollar lending office if the making of such designation would
allow the Lender or its Eurodollar lending office to continue to perform its
obligations to make Eurodollar Loans or to continue to fund or maintain
Eurodollar Loans and avoid the need for, or 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 the Borrower, through the
Administrative Agent, of the event by reason of which it has become so
entitled. If the Borrower so
34
notifies the Administrative Agent within five Business Days after any Lender
notifies the Borrower of any increased cost pursuant to the foregoing
provisions of this Section, the Borrower may convert all Eurodollar Loans of
such Lender then outstanding into Base Rate Loans in accordance with the terms
hereof. Each Lender shall notify the Borrower within 120 days after it becomes
aware of the imposition of such costs; provided that if such Lender fails to so
notify the Borrower within such 120-day period, such Lender shall not be
entitled to claim any additional amounts pursuant to this subsection for any
period ending on a date which is prior to 120 days before such notification.
(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 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 adoption, 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 promptly pay to
such Lender such additional amount or amounts as will compensate such Lender
for such reduction. Each Lender shall notify the Borrower within 120 days after
it becomes aware of the imposition of such additional amount or amounts;
provided that if such Lender fails to so notify the Borrower within such
120-day period, such Lender shall not be entitled to claim any additional
amount or amounts pursuant to this subsection for any period ending on a date
which is prior to 120 days before such notification.
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the Borrower
(with a copy to 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, showing the calculation thereof in reasonable
detail, submitted by such Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
2.15 Taxes. (a) Except as provided in this subsection 2.15,
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
("Taxes"), excluding Taxes on net income (including, without limitation, branch
profits taxes and minimum taxes) and franchise taxes (imposed in lieu of net
income taxes) imposed on any Agent or any Lender as a result of a present or
former connection between any Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely
from such Agent or such Lender having
35
executed, delivered or performed its obligations or received a payment under,
or enforced, this Agreement or any Note). 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 or any Lender hereunder or under any Note, the amounts so payable to
such Agent or such Lender shall be increased to the extent necessary to yield
to such Agent or such Lender (after payment of all Non-Excluded Taxes) interest
or any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement, provided, however, that the Borrower shall not be
required to increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a state thereof
with respect to any Taxes that are imposed on amounts payable to such Lender at
the time such Lender becomes a party to this Agreement or that are attributable
to such Lender's failure to comply with the requirements of paragraph (b) of
this subsection. Whenever any Non-Excluded Taxes are payable by the Borrower,
as promptly as possible thereafter, the Borrower shall send to the relevant
Agent for its own account or for the account of such Lender, as the case may
be, a certified copy of an original official receipt, if any, received by the
Borrower 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
relevant Agent the required receipts or other required documentary evidence,
the Borrower shall indemnify the Agents and the Lenders for any incremental
taxes, interest or penalties that may become payable by any Agent or any Lender
as a result of any such failure. The agreements in this subsection shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
(b) Each Lender, Assignee and Participant that is not a
citizen or resident of the United States of America, a corporation, partnership
created or organized in or under the laws of the United States of America, any
estate that is subject to U.S. federal income taxation regardless of the source
of its income or any trust which is subject to the supervision of a court
within the United States and the control of a United States fiduciary as
described in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall
deliver to the Borrower and the Administrative Agent, and if applicable, the
assigning Lender (or, in the case of a Participant, to the Lender from which
the related participation shall have been purchased) on or before the date on
which it becomes a party to this Agreement (or, in the case of a Participant,
on or before the date on which such Participant purchases the related
participation) either:
(A) two duly completed and signed copies of either Internal
Revenue Service Form 1001 (relating to such Non-U.S. Lender and
entitling it to a complete exemption from withholding of U.S. Taxes on
all amounts to be received by such Non-U.S. Lender pursuant to this
Agreement and the other Credit Documents) or Form 4224 (relating to
all amounts to be received by such Non-U.S. Lender pursuant to this
Agreement and the other Credit Documents), or successor and related
applicable forms, as the case may be; or
(B) in the case of a Non-U.S. Lender that is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Code and that does
not comply with the requirements of clause (A) hereof, (x) a statement
in the form of Exhibit F (or such other form of statement as shall be
reasonably requested by the Borrower from time to time) to the effect
that such Non-U.S. Lender is eligible for a complete
36
exemption from withholding of U.S. Taxes under Code Section 871(h) or
881(c), and (y) two duly completed and signed copies of Internal
Revenue Service Form W-8 or successor and related applicable form (it
being understood and agreed that no Participant and, without the prior
written consent of the Borrower described in clause (B) of the proviso
to the first sentence of subsection 10.6(c), no Assignee shall be
entitled to deliver any forms or statements pursuant to this clause
(B), but rather shall be required to deliver forms pursuant to clause
(A) of this subsection 2.15(b)).
Further, each Non-U.S. Lender agrees (i) to deliver to the Borrower and the
Administrative Agent, and if applicable, the assigning Lender (or, in the case
of a Participant, to the Lender from which the related participation shall have
been purchased) two further duly completed and signed copies of such Forms 1001
or 4224, as the case may be, or successor and related applicable forms, on or
before the date that any such form expires or becomes obsolete and promptly
after the occurrence of any event requiring a change from the most recent
form(s) previously delivered by it to the Borrower (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) in accordance with applicable U.S. laws and regulations and (ii) in
the case of a Non-U.S. Lender that delivers a statement in the form of Exhibit
F (or such other form of statement as shall have been requested by the
Borrower), to deliver to the Borrower and the Administrative Agent, and if
applicable, the assigning Lender, such statement on an annual basis on the
anniversary of the date on which such Non-U.S. Lender became a party to this
Agreement and to deliver promptly to the Borrower and the Administrative Agent,
and if applicable, the assigning Lender, such additional statements and forms
as shall be reasonably requested by the Borrower from time to time unless, in
any such case, any change in law or regulation has occurred subsequent to the
date such Lender became a party to this Agreement (or in the case of a
Participant, the date on which such Participant purchased the related
participation) which renders all such forms inapplicable or which would prevent
such Lender (or Participant) from properly completing and executing any such
form with respect to it and such Lender promptly notifies the Borrower and the
Administrative Agent (or, in the case of a Participant, the Lender from which
the related participation shall have been purchased) if it is no longer able to
deliver, or if it is required to withdraw or cancel, any form or statement
previously delivered by it pursuant to this subsection 2.15(b). Each Non-U.S.
Lender agrees to indemnify and hold harmless the Borrower from and against any
taxes, penalties, interest or other costs or losses (including, without
limitation, reasonable attorneys' fees and expenses) incurred or payable by the
Borrower as a result of the failure of the Borrower to comply with its
obligations to deduct or withhold any U.S. Taxes from any payments made
pursuant to this Agreement to such Non-U.S. Lender or the Administrative Agent
which failure resulted from the Borrower's reliance on any form, statement,
certificate or other information provided to it by such Non-U.S. Lender
pursuant to clause (B) or clause (ii) of this subsection 2.15(b). The Borrower
hereby agrees that for so long as a Non-U.S. Lender complies with this
subsection 2.15(b), the Borrower shall not withhold any amounts from any
payments made pursuant to this Agreement to such Non-U.S. Lender, unless the
Borrower reasonably determines that it is required by law to withhold or deduct
any amounts from any payments made to such Non-U.S. Lender pursuant to this
Agreement. A Non-U.S. Lender shall not be required to deliver any form or
statement pursuant to the immediately preceding sentences in this subsection
2.15(b) that such Non-U.S. Lender is not legally able to deliver (it being
understood and agreed that the Borrower shall withhold or deduct such amounts
from any
37
payments made to such Non-U.S. Lender that the Borrower reasonably determines
are required by law and that payments resulting from a failure to comply with
this paragraph (b) shall not be subject to payment or indemnity by the Borrower
pursuant to subsection 2.15(a)). If any Credit Party other than the Borrower
makes any payment to any Non-U.S. Lender under any Credit Document, the
foregoing provisions of this subsection 2.15 shall apply to such Non-U.S.
Lender and such Credit Party as if such Credit Party were the Borrower (but a
Non-U.S. Lender shall not be required to provide any form or make any statement
to any such Credit Party unless such Non-U.S. Lender has received a request to
do so from such Credit Party and has a reasonable time to comply with such
request).
(c) If a Lender shall become aware that it is entitled to
receive a refund (whether by way of a direct payment or by offset) in respect
of a Non-Excluded Tax paid by the Borrower, which refund, in the good faith
judgment of such Lender, is allocable to such payment made pursuant to this
Section, it shall promptly notify the Borrower of the availability of such
refund and shall, within 30 days after the receipt of a request from the
Borrower, apply for such refund at the Borrower's sole expense. If any Lender
receives such refund (as described in the preceding sentence), it shall repay
the amount of such refund (together with any interest received thereon) to the
Borrower if all the payments due under this Section has been paid in full.
2.16 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 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, (b) 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 (c) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto (but excluding loss of margin). Such indemnification under this
subsection 2.16 may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans
provided for herein (but excluding loss of margin) over (ii) the amount of
interest (as reasonably determined by such Lender) which would have accrued to
such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank eurodollar market. Each Lender
claiming any payment pursuant to this subsection 2.16 shall do so by giving
notice thereof to the Borrower and the Administrative Agent (showing
calculation of the amount claimed in reasonable detail) within 60 Business Days
after a failure to borrow, convert or continue Eurodollar Loans, or to prepay,
after notice or after a prepayment of Eurodollar Loans on a day which is not
the last day of an Interest Period therefor. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
2.17 Replacement of Lenders. If at any time (a) the Borrower
becomes obligated to pay additional amounts described in subsections 2.13, 2.14
or 2.15 as a result of any condition described in such
38
subsections, or any Lender ceases to make Eurodollar Loans pursuant to
subsection 2.13, (b) any Lender becomes insolvent and its assets become subject
to a receiver, liquidator, trustee, custodian or other Person having similar
powers or (c) any Lender becomes a "Nonconsenting Lender" (hereinafter
defined), then the Borrower may, on ten 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 10.6 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
(including amounts payable under subsection 2.16 as though such Loans were
being paid instead of being purchased); 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 this subsection 2.17, 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 this subsection 2.17, 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 this subsection 2.17, 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 Credit
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 10.1 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."
2.18 Certain Fees. The Company agrees to pay to the
Administrative Agent, for its own account, a non-refundable administration fee
in an amount previously agreed to with the Administrative Agent, payable in
advance on the Closing Date and annually in advance on each anniversary thereof
prior to the earlier of (x) the Final Maturity Date and (y) the payment in full
of all Loans and all other amounts owing under this Agreement.
2.19 Certain Rules Relating to the Payment of Additional
Amounts. (a) Upon the request, and at the expense, of the Borrower, each Lender
to which the Borrower is required to pay any additional amount pursuant to
Section 2.14 or 2.15 shall reasonably afford the Borrower the opportunity to
contest, and reasonably cooperate with the Borrower in contesting, the
imposition of any Non-Excluded taxes giving rise to such payment; provided that
(i) such Lender shall not be required to afford the Borrower the opportunity to
so contest unless the Borrower shall have confirmed in writing to such Lender
its obligation to pay such amounts
39
pursuant to this Agreement and (ii) the Borrower shall reimburse such Lender
for its reasonable attorneys' and accountants' fees and disbursements incurred
in so cooperating with the Borrower in contesting the imposition of such
Non-Excluded Taxes.
(b) Each Lender agrees that if it makes any demand for payment
under subsection 2.14 or 2.15(a), or if any adoption or change of the type
described in subsection 2.13 shall occur with respect to it, it will 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, as determined in its reasonable discretion) to designate
a different lending office if the making of such a designation would allow the
Lender to continue to make and maintain Eurodollar Loans and would reduce or
obviate the need for the Borrower to make payments under subsection 2.14 or
2.15(a), or would eliminate or reduce the effect of any adoption or change
described in subsection 2.13.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the Revolving
Credit Lenders set forth in subsection 3.4(a), agrees to issue letters of
credit ("Letters of Credit") for the account of the Borrower on any Business
Day during the Commitment Period in such form as may be approved from time to
time by the Issuing Lender; provided that the Issuing Lender shall have no
obligation to issue any Letter of Credit if, after giving effect to such
issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the
Available Commitment with respect to Revolving Credit Loans of all Revolving
Credit Lenders less the aggregate principal amount of the Swing Line Loans then
outstanding would be less than zero.
(b) Each Letter of Credit shall (i) be denominated in Dollars,
(ii) be a standby letter of credit issued to support obligations of the
Borrower or any of its Subsidiaries, contingent or otherwise and (iii) expire
no later than the earlier of (x) the date that is 12 months after the date of
its issuance and (y) the fifth Business Day prior to the Revolving Loan
Termination Date; provided that any Letter of Credit with an expiration date
occurring up to twelve months after such Letter of Credit's date of issuance
may be automatically renewable for subsequent 12-month periods (but in no event
later than the fifth Business Day prior to the Revolving Loan Termination
Date).
(c) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
(d) 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 L/C Participant to exceed any limits imposed
by, any applicable Requirement of Law or any policies of the Issuing Lender.
3.2 Procedure for Issuance of Letters of Credit. The Borrower
may from time to time request that the Issuing Lender issue a Letter of Credit
at any time prior to the fifth Business Day prior to the Revolving Loan
Termination Date by delivering to the Issuing Lender with a copy to the
40
Administrative Agent at its address for notices specified herein an Application
therefor, completed to the satisfaction of the Issuing Lender, and such other
certificates, documents and other papers and information as the Issuing Lender
may reasonably request. Upon receipt of any Application, the Issuing Lender
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such 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 Letter of Credit to the Borrower and the Administrative Agent (with copies
for each Lender) promptly following the issuance thereof.
3.3 Fees, Commissions and Other Charges. (a) The Borrower
shall pay to the Administrative Agent, for the account of the Issuing Lender
and the L/C Participants, a letter of credit fee with respect to each Letter of
Credit, computed for the period from and including the date of issuance of such
Letter of Credit to the expiration date of such Letter of Credit at a rate per
annum equal to the Applicable Margin then in effect for Eurodollar Loans, of
the aggregate face amount of Letters of Credit outstanding, payable in arrears
on each L/C Fee Payment Date and on the Revolving Loan Termination Date. Such
fee shall be payable to the Administrative Agent to be shared ratably among the
Revolving Credit Lenders in accordance with their respective Commitment
Percentages with respect to Revolving Credit Loans. In addition, the Borrower
shall pay to the Administrative Agent, for the sole account of the Issuing
Lender, a fee equal to 0.1250% per annum of the aggregate face amount of
outstanding Letters of Credit payable quarterly in arrears on each L/C Fee
Payment Date and on the Revolving Loan Termination Date.
(b) In addition to the foregoing fees and 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 Issuing Lender
in issuing, effecting payment under, amending or otherwise administering any
Letter of Credit.
(c) The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Lender and the L/C Participants all
fees and commissions received by the Administrative Agent for their respective
accounts pursuant to this subsection.
3.4 L/C Participation. (a) The Issuing Lender irrevocably
agrees to sell and hereby sells to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
the Issuing Lender, on the terms and conditions hereinafter stated, for such
L/C Participant's own account and risk an undivided interest equal to such L/C
Participant's Commitment Percentage with respect to Revolving Credit Loans from
time to time in effect in the Issuing Lender's obligations and rights under
each Letter of Credit issued hereunder and the amount of each draft paid by the
Issuing Lender thereunder. Each L/C Participant 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
41
reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at
the Issuing Lender's address for notices specified herein an amount equal to
such L/C Participant's then Commitment Percentage with respect to Revolving
Credit Loans of the amount of such draft, or any part thereof, which is not so
reimbursed; provided that, if such demand is made prior to 11:00 A.M., New York
City time, on a Business Day, such L/C Participant shall make such payment to
the Issuing Lender prior to the end of such Business Day and otherwise such L/C
Participant shall make such payment on the next succeeding Business Day.
(b) If any amount required to be paid by any L/C Participant
to the Issuing Lender pursuant to subsection 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit is paid to the Issuing Lender within three Business Days after the
date such payment is due, such L/C Participant shall pay to the Issuing Lender
on demand an amount equal to the product of (i) such amount, times (ii) the
daily average Federal funds rate, as quoted by the Issuing Lender, 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 (iii)
a fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. If any such amount required to be
paid by any L/C Participant pursuant to subsection 3.4(a) is not in fact made
available to the Issuing Lender by such L/C Participant within three Business
Days after the date such payment is due, the Issuing Lender shall be entitled
to recover from such L/C Participant, on demand, such amount with interest
thereon calculated from such due date at the rate per annum applicable to Base
Rate Loans hereunder. A certificate of the Issuing Lender submitted to any L/C
Participant with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant
its pro rata share of such payment in accordance with subsection 3.4(a), the
Issuing Lender receives any payment related to such Letter of Credit (whether
directly from the Borrower or otherwise, including proceeds of collateral
applied thereto by the Issuing Lender), or any payment of interest on account
thereof, the Issuing Lender will, if such payment is received prior to 11:00
A.M., New York City time, on a Business Day, distribute to such L/C Participant
its pro rata share thereof prior to the end of such Business Day and otherwise
the Issuing Lender will distribute such payment on the next succeeding Business
Day; provided, however, that in the event that any such payment received by the
Issuing Lender and distributed to the L/C Participants shall be required to be
returned by the Issuing Lender, each such L/C Participant shall return to the
Issuing Lender the portion thereof previously distributed by the Issuing Lender
to it.
3.5 Reimbursement Obligation of the Borrower. (a) The Borrower
agrees to reimburse the Issuing Lender on the same Business Day on which the
Issuing Lender notifies the Borrower of the date and amount of a draft
presented under any Letter of Credit and paid by the Issuing Lender provided
such notice is received by 1:00 P.M., New York City time, on such Business Day,
and the next Business Day if such notice is received after such time. The
Issuing Lender shall provide notice to the Borrower on each Business Day on
which a draft is presented and paid by the Issuing Lender indicating the amount
of (i) such draft so paid and (ii) any taxes, fees,
42
charges or other costs or expenses incurred by the Issuing Lender in connection
with such payment. Each such payment shall be made to the Issuing Lender at its
address for notices specified herein in lawful money of the United States of
America and in immediately available funds.
(b) Interest shall be payable on any and all amounts remaining
unpaid by the Borrower under this subsection from the date a draft presented
under any Letter of Credit is paid by the Issuing Lender until payment in full
(i) at the rate which would be payable on any Loans that are Base Rate Loans at
such time until such payment is required to be made pursuant to subsection
3.5(a), and (ii) thereafter, at the rate which would be payable on any Loans
that are Base Rate Loans at such time which were then overdue.
3.6 Obligations Absolute. (a) The Borrower's obligations under
subsection 3.5(a) shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Borrower may have or have had against the Issuing Lender, any
L/C Participant or any beneficiary of a Letter of Credit.
(b) The Borrower also agrees with the Issuing Lender that the
Issuing Lender shall not be responsible for, and the Borrower's Reimbursement
Obligations under subsection 3.5(a) shall not be affected by, among other
things, (i) the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged (unless the Issuing Lender has knowledge of such
invalidity, fraud or forgery), or (ii) 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 (iii) any claims whatsoever
of the Borrower against any beneficiary of such Letter of Credit or any such
transferee.
(c) Neither the Issuing Lender nor any L/C Participant shall
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 willful misconduct.
(d) 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
willful misconduct and in accordance with the standards of care specified in
the Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of the Issuing Lender or any L/C
Participant to the Borrower.
3.7 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. If any draft shall be presented for payment under any Letter of
Credit, the responsibility of the Issuing Lender to the Borrower in connection
with such draft 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 appear on their face to be in conformity with such Letter of
Credit.
43
3.8 Application. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall govern and control.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents, the Issuing Lender, the Swing Line
Lender and the Lenders to enter into this Agreement and to make the Loans and
issue or participate in the Letters of Credit, the Borrower hereby represents
and warrants to the Agents, the Issuing Lender, the Swing Line Lender and each
Lender that:
4.1 Financial Condition. (a) The combined balance sheets of
the Lockheed Xxxxxx Predecessor Businesses as at December 31, 1996 and December
31, 1995 and the related combined statements of operations and changes in
invested equity and cash flows for each of the three years in the period ended
December 31, 1996, audited by Coopers & Xxxxxxx L.L.P., copies of which have
heretofore been furnished to each Lender, present fairly, in all material
respects, in accordance with GAAP the combined financial condition of the
Lockheed Xxxxxx Predecessor Businesses as of such dates, and the combined
results of their operations and changes in invested equity and cash flows for
each of the years in the period ended December 31, 1996. All such financial
statements have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by such auditors and as
disclosed therein). To the best of the Borrower's knowledge, none of the
Lockheed Xxxxxx Predecessor Businesses had, at the date of each balance sheet
referred to above, any material Guarantee Obligation, contingent liability or
liability for taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any material interest rate or
foreign currency swap or exchange transaction, which is not reflected in the
foregoing statements or in the notes thereto or expressly permitted to be
incurred hereunder. To the best of the Borrower's knowledge, during the period
from December 31, 1996 to and including the date hereof there has been no sale,
transfer or other disposition by the Lockheed Xxxxxx Predecessor Businesses of
any material part of its business or property (except as disclosed in the
Transaction Documents) other than pursuant to the Asset Contribution and no
purchase or other acquisition of any business or property (including any
capital stock of any other Person) material in relation to the consolidated
financial condition of the Lockheed Xxxxxx Predecessor Businesses at December
31, 1996.
(b) The combined statements of operations and cash flows for
the three months ended March 31, 1996 and the years ended December 31, 1995 and
1994 of the Loral Acquired Businesses, audited by Coopers & Xxxxxxx L.L.P.,
copies of which have heretofore been furnished to each Lender, present fairly,
in all material respects, in accordance with GAAP the combined results of
operations and cash flows of the Loral Acquired Businesses for the three months
ended March 31, 1996, and the years ended December 31, 1995 and 1994. All such
financial statements have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by such
accountants and as disclosed therein). To the best of the Borrower's knowledge,
during the period from December 31, 1996 to and including the date hereof,
there has been no sale, transfer or other disposition by any of the Loral
Acquired Businesses of any material part of its business or property (except as
disclosed in the Transaction Documents) other than pursuant to the Asset
Contribution and no purchase or other acquisition of any business or property
(including any capital stock of any
44
other Person) material in relation to the consolidated financial condition of
Loral Acquired Businesses at December 31, 1996.
(c) The unaudited pro forma condensed consolidated financial
statements of the Borrower, as of December 31, 1996 and for the year then
ended, certified by a Responsible Officer (the "Pro Forma Financial
Statements"), copies of which have been furnished to each Lender, comprise the
unaudited combined financial statements of (x) the Lockheed Xxxxxx Predecessor
Businesses as of December 31, 1996 and for the year then ended and (y) the
Loral Acquired Businesses for the three months ended March 31, 1996, adjusted
to give effect (as if such events had occurred on such dates) to the Asset
Contribution and each of the other transactions contemplated by the Transaction
Documents. The Pro Forma Financial Statements have been prepared based on good
faith assumptions in accordance with Regulation S-X under the Securities
Exchange Act of 1934, as amended, and based on the best information available
to the Borrower, as of the date of delivery thereof, and reflect on a pro forma
basis the financial position and results of operations of the Borrower and its
Subsidiaries, as of December 31, 1996, and for the year then ended.
4.2 No Change. Since December 31, 1996 there has been no
development, event or circumstance which has had or could reasonably be
expected to have a Material Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of
Holdings, the Borrower and its Subsidiaries (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate 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, or will
be on or before the date set forth in subsection 6.12, duly qualified as a
foreign corporation and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification, except to the extent 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 Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations.
Each of Holdings, the Borrower and its Subsidiaries has the corporate power and
authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party and, in the case of the Borrower, to borrow
hereunder and has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Agreement and to authorize the
execution, delivery and performance of such Credit Documents and Transaction
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 hereunder or with the execution, delivery,
performance, validity or enforceability of the Credit Documents and Transaction
Documents to which the Borrower and each other Credit Party is a party, except
those referred to in subsections 4.17 and 6.13 and those set forth on Schedule
4.4. This Agreement has been, and each other Credit Document and Transaction
Document will be, duly executed and delivered on behalf of the Borrower and
each other Credit Party. This Agreement constitutes, and each other Credit
Document and Transaction Document to which it is a party when executed and
delivered will constitute,
45
a legal, valid and binding obligation of each Credit Party thereto enforceable
against each such Credit Party, as the case may be, in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered
in a proceeding in equity or at law) and an implied covenant of good faith and
fair dealing.
4.5 No Legal Bar. Except as set forth on Schedule 4.5 or as
could not reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect, the execution, delivery and performance of each Credit
Document, the borrowing and use of the proceeds of the Loans and the
consummation of the transactions contemplated by the Credit Documents and the
Transaction Documents: (a) will not violate any Requirement of Law or any
Contractual Obligation applicable to or binding upon Holdings, the Borrower or
any Subsidiary of the Borrower or any of their respective properties or assets
and (b) will not result in the creation or imposition of any Lien on any of its
properties or assets pursuant to any Requirement of Law applicable to it or any
of its Contractual Obligations, except for the Liens arising under the Security
Documents.
4.6 No Material Litigation. Except as set forth on Schedule
4.6, no litigation by, investigation by, or proceeding of or before any
arbitrator or any Governmental Authority is pending or, to the knowledge of the
Borrower, overtly threatened by or against the Borrower or any of its
Subsidiaries or against any of its or their respective properties or revenues
(including after giving effect to the Asset Contribution and the other
transactions contemplated by the Transaction Documents) with respect to any
Credit Document or any of the transactions contemplated hereby or thereby or
which could reasonably be expected to have a Material Adverse Effect.
4.7 No Default. Neither Holdings, the Borrower nor any of its
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.
4.8 Ownership of Property; Liens. Each of Holdings, the
Borrower and its Subsidiaries (i) has good record and insurable title in fee
simple to all the real property listed on Schedule 4.8, (ii) has good record
and insurable title in fee simple to, or a valid leasehold interest in, all its
other material real property, (iii) has good title to, or a valid leasehold
interest in, all its other material property and (iv) none of such property in
clauses (i) through (iii) is or shall be subject to any Lien except as
permitted by subsection 7.3.
4.9 Intellectual Property. Holdings, the Borrower and each of
its Subsidiaries owns, or is 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 the failure to own or license
which could not reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). To the best of the Borrower's knowledge, and except
as set forth on Schedule 4.9, 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 does the
Borrower know of any valid basis for any such claim which could reasonably be
expected to have a Material Adverse
46
Effect. The use of such Intellectual Property by Holdings, the Borrower and its
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.
4.10 Taxes. Except as set forth on Schedule 4.10, each of
Holdings, the Borrower and its Subsidiaries has filed or caused to be filed all
material tax returns which, to the knowledge of the Borrower, are required to
be filed and has paid all taxes shown to be due and payable on said returns or
on any assessments made against it or any of its property and all other
material taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than any 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 Holdings, the Borrower or its Subsidiaries, as the case may be); no
tax Lien has been filed, and, to the knowledge of the Borrower, no claim is
being asserted, with respect to any such tax, fee or other charge.
4.11 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 Regulation G or
Regulation U of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect.
4.12 ERISA. The Borrower has provided to the Agents a true and
correct copy of all Agreements, arrangements and understandings relating to the
transfer of Plans from the Seller to the Borrower (the "Transfer Agreements").
The Transfer Agreements are in full force and effect and have not been waived
or modified without the consent of the Agents (which shall not be unreasonably
withheld) except to the extent any such waiver or modification, singly or in
the aggregate, could not be reasonably expected to have a Material Adverse
Effect. Except as could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect, no Reportable Event has occurred
with respect to any Single Employer Plan, all contributions required to be made
with respect to a Plan have been timely made; none of the Borrower or any of
its Subsidiaries nor any Commonly Controlled Entity has incurred any material
liability to or on account of a Plan pursuant to Section 409, 502(i), 502(1),
515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29),
4971, 4975 or 4980 of the Code or expects to incur any liability (including any
indirect, contingent or secondary liability) under any of the foregoing
Sections with respect to any Plan; no termination or, or institution of
proceedings to terminate or appoint a trustee to administer, a Single Employer
Plan has occurred; and each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code (except that with respect to any
Multiemployer Plan, such representation is deemed made only to the knowledge of
the Borrower). No "accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA), extension of any amortization
period (within the meaning of Section 412 of the Code) or Lien in favor of the
PBGC or a Plan has arisen or 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. As of the last annual valuation date prior to the
date on which this representation is made or deemed made, the fair market value
of the assets available for benefits under each Single Employer Plan did not
exceed the actuarial present value of all accumulated benefit obligations under
such Plan by more than $20,000,000, all
47
as determined in accordance with Statement of Financial Accounting Standards
No. 87. Neither the Borrower nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan for which there is
any outstanding liability, and neither the Borrower nor any Commonly Controlled
Entity would become subject to any liability under ERISA if the Borrower or any
such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made in an amount which would be
reasonably likely to have a Material Adverse Effect. To the best knowledge of
the Borrower, no such Multiemployer Plan is in Reorganization or Insolvent.
4.13 Investment Company Act; Other Regulations. None of the
Borrower or 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. None of the Borrower or any of its
subsidiaries is not subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board of Governors of the Federal
Reserve System) which limits its ability to incur Indebtedness.
4.14 Subsidiaries. After giving effect to the consummation of
the Transaction, the Subsidiaries of the Borrower and their respective
jurisdictions of incorporation shall be as set forth on Schedule 4.14.
4.15 Purpose of Loans. The proceeds of the Loans shall be used
by the Borrower (i) to finance a portion of the Transaction and related fees
and expenses in an aggregate amount not to exceed $185,000,000 and (ii) for
working capital purposes in the ordinary course of business of the Borrower and
its Subsidiaries.
4.16 Environmental Matters.
Except insofar as any exception to any of the following, or
any aggregation of such exceptions, is not reasonably likely to result in a
Material Adverse Effect:
(a) The facilities and properties owned, leased or operated
Holdings, by the Borrower or any of its Subsidiaries (the
"Properties") do not contain, and have not previously contained, any
Materials of Environmental Concern in amounts or concentrations which
(i) constitute or constituted a violation of, or (ii) could reasonably
be expected to give rise to liability under, any applicable
Environmental Law.
(b) None of Holdings, the Borrower 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, nor does the Borrower
have knowledge or reason to believe that any such notice will be
received or is being threatened.
(c) 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 applicable Environmental Law, nor have
any Materials of Environmental Concern been generated, treated,
48
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.
(d) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Borrower, threatened,
under any Environmental Law to which Holdings, the Borrower or any
Subsidiary is or, to the knowledge of the Borrower, will be named as a
party or with respect to the Properties or the Business, 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.
(e) There has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or
arising from or related to the operations of Holdings, the Borrower or
any Subsidiary in connection with the Properties or otherwise in
connection with the Business, in violation of or in amounts or in a
manner that could reasonably give rise to liability under any
applicable Environmental Laws.
(f) The Properties and all operations at the Properties are in
compliance, and have in the last 3 years been in compliance, in all
material respects with all applicable Environmental Laws, and there is
no contamination at, under or about the Properties or violation of any
applicable Environmental Law with respect to the Properties or the
business operated by Holdings, the Borrower or any of its Subsidiaries
(the "Business") which could materially interfere with the continued
operation of the Properties or materially impair the fair saleable
value thereof.
(g) Holdings, the Borrower and its Subsidiaries hold and are
in compliance with all Environmental Permits necessary for their
operations.
4.17 Collateral Documents. (a) Upon execution and delivery
thereof by the parties thereto, each of the Borrower Pledge and Security
Agreement, the Subsidiary Pledge and Security Agreement and the Parent Pledge
and Security Agreement will be effective to create in favor of the
Administrative Agent, for the ratable benefit of the Lenders, a legal, valid
and enforceable security interest in the pledged stock described therein and,
when stock certificates representing or constituting the pledged stock
described therein are delivered to the Administrative Agent, such security
interest shall, subject to the existence of Permitted Liens, constitute a
perfected first lien on, and security interest in, all right, title and
interest of the pledgor party thereto in the pledged stock described therein.
(b) Upon execution and delivery thereof by the parties
thereto, each of the Borrower Pledge and Security Agreement, the Subsidiary
Pledge and Security Agreement and the Parent Pledge and Security Agreement will
be effective to create in favor of the Administrative Agent, for the ratable
benefit of the Lenders, a legal, valid and enforceable security interest in the
collateral described therein. Uniform Commercial Code financing statements have
been filed in each of the jurisdictions listed on Schedule 4.17, each such
Agreement has been filed in each of the government
49
offices listed on Schedule 4.17 or arrangements have been made for such filing
in such jurisdictions, and upon such filings, and upon the taking of possession
by the Administrative Agent of any such collateral the security interests in
which may be perfected only by possession, such security interests will,
subject to the existence of liens as permitted by the definition of Permitted
Liens, constitute perfected first priority liens on, and security interests in,
all right, title and interest of the debtor party thereto in the collateral
described therein, except, in the case of each of the Borrower Pledge and
Security Agreement, the Subsidiary Pledge and Security Agreement and the Parent
Pledge and Security Agreement, to the extent that a security interest cannot be
perfected therein by the filing of a financing statement or the taking of
possession under the Uniform Commercial Code of the relevant jurisdiction.
(c) Upon (a) execution and delivery of the Mortgages by the
parties thereto, (b) the recording of such Mortgages in the jurisdiction listed
on Schedule 4.17 and (c) the payment of any required mortgage recording taxes,
each of the Mortgages will be effective to create in favor of the
Administrative Agent, for the ratable benefit of the Lenders, a legal, valid
and enforceable lien on the real property described therein and such liens
will, as of the Closing Date, subject to the existence of liens as permitted by
clauses (a), (e), (f) and (g) of the definition of Permitted Liens, constitute
first priority liens on the real property described therein.
4.18 Accuracy and Completeness of Information. No fact is
known to Holdings, the Borrower or any of its Subsidiaries which has had or
could reasonably be expected to have a Material Adverse Effect, which has not
been disclosed to the Lenders by Holdings, the Borrower or its Subsidiaries in
writing prior to the date hereof. No document furnished or statement made in
writing to the Lenders by Holdings, the Borrower, any Subsidiary or any party
to any of the Transaction Documents in connection with the negotiation,
preparation or execution of this Agreement or any of the other Credit
Documents, taken as a whole, (including the Confidential Offering Memorandum
dated April 1997 relating to this facility but excluding all projections
(including industry forecasts and statistical data) and pro forma financial
statements (whether or not contained therein) which shall have been prepared in
good faith and based upon reasonable assumptions) contains any untrue statement
of a material fact or omits to state any such material fact necessary in order
to make the statements contained therein not misleading in the context in which
such statements are made. The Equity Documents constitute all of the agreements
relating to the Equity Investment and the Subordinated Debt Documents
constitute all of the agreements relating to the Subordinated Debt.
4.19 Solvency. On the Closing Date and after giving effect to
the Asset Contribution and the other transactions contemplated by the
Transaction Documents including borrowings hereunder on such date and the
incurrence of all other Indebtedness and Guarantee Obligations being incurred
on such date, the Borrower is "Solvent," in that (a) the property, at a fair
valuation, of Holdings and its Subsidiaries, individually and taken together as
a single entity, will exceed their debts, (b) the present fair salable value of
the assets of Holdings and its Subsidiaries, individually and taken together as
a single entity, is not less than the amount that will be required to pay their
probable liabilities as such debts become absolute and matured, and (c) the
Borrower does not intend to, and does not believe that Holdings and its
Subsidiaries, individually and taken together as a single
50
entity, will, incur debts or liabilities beyond the their ability to pay as
such debts and liabilities mature. For purposes of this subsection, "debt"
means "liability on a claim" and "claim" means any (i) right to payment,
whether or not such a right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured, or unsecured or (ii) right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured, or unsecured.
4.20 Labor Matters. There are no strikes pending or, to the
Borrower's knowledge, overtly threatened against Holdings, the Borrower or any
of its Subsidiaries which, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect. The hours worked and payments
made to employees of Holdings, the Borrower and each of its Subsidiaries (and
their predecessors) have not been in violation of the Fair Labor Standards Act
or any other applicable Requirement of Law, except to the extent such
violations could not, or in the aggregate, be reasonably expected to have a
Material Adverse Effect.
4.21 Transaction Documents. To the best of the Borrower's
knowledge, the representations and warranties contained in the Transaction
Documents, taken as a whole, are true and correct in all material respects as
of the Closing Date. On the Closing Date, the Asset Contribution will have been
consummated in accordance with the Transaction Documents.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Loans. The agreement of each Lender
to make the initial extension of credit requested to be made by it is subject
to the satisfaction, immediately prior to or concurrently with the making of
such extension of credit (including the making of any Loan or the issuance of
any Letter of Credit) on the Closing Date, of the following conditions
precedent:
(a) Credit Documents. The Administrative Agent shall have
received (i) this Agreement, (ii) the Guarantees, (iii) the Mortgages
and (iv) the Security Documents, in each case executed, duly
acknowledged and delivered by duly authorized officers of each party
thereto, with a counterpart or a conformed copy for each Lender.
Notwithstanding the foregoing, no Foreign Subsidiary of Holdings or
the Borrower shall be required to execute a Subsidiary Guarantee or
Subsidiary Pledge and Security Agreement, and no more than 65% of the
capital stock of or equity interests in any Foreign Subsidiary of the
Borrower, Holdings or any of their Subsidiaries, or any other of their
Subsidiaries if more than 65% of the assets of such Subsidiary are
securities of foreign companies (such determination to be made on the
basis of fair market value), shall be required to be pledged
hereunder.
(b) Related Agreements. The Administrative Agent shall have
received, with a copy for each Lender, true and correct copies,
certified as to authenticity by the Borrower, of each of the
Transaction Documents and such other documents or instruments as may
be reasonably requested by the Administrative Agent, including,
51
without limitation, a copy of any debt instrument, security agreement
or other material contract to which the Borrower or any of its
Subsidiaries may be a party (after giving effect to the Asset
Contribution).
(c) Asset Contribution. The Asset Contribution shall have been
consummated pursuant to the Transaction Agreement, and no material
provision of the Transaction Agreement shall have been amended,
supplemented, waived or otherwise modified without the prior written
consent of the Agents. The Agents shall be reasonably satisfied with
the aggregate amount of fees and expenses payable by the Borrower and
its Subsidiaries in connection with the transactions contemplated
hereby and by the Transaction Documents.
(d) Capitalization; Capital Structure (i) After giving effect
to the Asset Contribution and the other transactions contemplated by
the Transaction Documents, the Borrower shall have the capital
structure set forth in the Pro Forma Financial Statements.
(ii) The Subordinated Debt Documents shall have been
executed and delivered by the parties thereto (and shall be in form
and substance reasonably satisfactory to the Agents), shall be in full
force and effect and none of the provisions thereof shall have been
amended, waived, supplemented or otherwise modified without the prior
written consent of the Agents; and the Borrower shall have issued the
Subordinated Debt in a principal amount, and received gross proceeds
in the amount of $225,000,000.
(iii) The Equity Documents shall have been executed and
delivered by the parties thereto (and shall be in form and substance
reasonably satisfactory to the Agents), shall be in full force and
effect and none of the provisions thereof shall have been amended,
waived, supplemented or otherwise modified without the prior written
consent of the Agents; and the Borrower shall have received at least
$79,850,000 in net cash proceeds in accordance with the terms of the
Equity Documents.
(e) Fees. The Agents, the Arranger and the Lenders shall have
received all fees, expenses and other consideration required to be
paid on or before the Closing Date.
(f) Lien Searches. The Administrative Agent shall have
received the results of a search of Uniform Commercial Code, tax and
judgment filings made with respect to each of the Borrower and its
Subsidiaries (after giving effect to the Asset Contribution) and,
without duplication, the Lockheed Xxxxxx Predecessor Businesses and
the Loral Acquired Businesses in the jurisdictions set forth on
Schedule 4.17 together with copies of financing statements disclosed
by such searches, and such searches shall disclose no Liens on any
assets encumbered by any Security Document, except for Liens permitted
hereunder or, if unpermitted Liens are disclosed, the Administrative
Agent shall have received satisfactory evidence of the release of such
Liens.
(g) Consents, Authorizations and Filings, etc. Except for the
financing statements contemplated by the Security Documents and
52
the filing of the Security Documents and the Assignment Consent, all
consents, authorizations and filings, if any, required in connection
with the execution, delivery and performance by the Credit Parties,
and the validity and enforceability against the Credit Parties, of the
Credit Documents to which any of them is a party, shall have been
obtained or made, and such consents, authorizations and filings shall
be in full force and effect, except such consents, authorizations and
filings, the failure to obtain which would not have a Material Adverse
Effect.
(h) Insurance. The Lenders shall have received (i) a
reasonably satisfactory schedule describing all insurance maintained
by the Borrower and its Subsidiaries (after giving effect to the Asset
Contribution) pursuant to subsection 6.5, and (ii) binders (or other
customary evidence as to the obtaining and maintenance by the Borrower
and its Subsidiaries of such insurance) for each policy set forth on
such schedule insuring against casualty and other usual and customary
risks.
(i) Litigation. On the Closing Date, there shall be no
actions, suits or proceedings pending or threatened against any Credit
Party (a) with respect to this Agreement or any other Credit Document
or any Transaction Document or the transactions contemplated hereby or
thereby (including the Asset Contribution) or (b) which the Agents or
the Required Lenders shall determine could reasonably be expected to
have a Material Adverse Effect.
(j) Borrowing Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of the
Borrower, dated the Closing Date, substantially in the form of Exhibit
E, with appropriate insertions and attachments, reasonably
satisfactory in form and substance to the Administrative Agent,
executed by the President or any Vice President and the Secretary or
any Assistant Secretary of the Borrower.
(k) Corporate Proceedings of the Borrower. The Administrative
Agent shall have received, with a counterpart for each Lender, a copy
of the resolutions, in form and substance reasonably satisfactory to
the Administrative Agent, of the Board of Directors of the Borrower
authorizing (i) the execution, delivery and performance of the Credit
Documents to which it is a party, (ii) the borrowings contemplated
hereunder, (iii) the granting by it of the Liens created pursuant to
the Security Documents to which it is a party and (iv) the execution,
delivery and performance of the Transaction Documents to which it is a
party, certified by the Secretary or an Assistant Secretary of the
Borrower as of the Closing Date, which certificate shall be in form
and substance reasonably satisfactory to the Administrative Agent and
shall state that the resolutions thereby certified have not been
amended, modified, revoked or rescinded.
(l) Borrower Incumbency Certificate. The Administrative Agent
shall have received, with a counterpart for each Lender, a Certificate
of the Borrower, dated the Closing Date, as to the incumbency and
signature of the officers of the Borrower executing any Credit
Document reasonably satisfactory in form and substance to the
Administrative Agent, executed by the President or any Vice
53
President and the Secretary or any Assistant Secretary of the
Borrower.
(m) Corporate Proceedings of Other Credit Parties. The
Administrative Agent shall have received, with a counterpart for each
Lender, a copy of the resolutions, in form and substance satisfactory
to the Administrative Agent, of the Board of Directors of each Credit
Party (other than the Borrower) authorizing (i) the execution,
delivery and performance of the Credit Documents to which it is a
party, (ii) the granting by it of the Liens created pursuant to the
Security Documents to which it is a party and (iii) the execution,
delivery and performance of the Transaction Documents to which it is a
party, certified by the Secretary or an Assistant Secretary of each
such Credit Party as of the Closing Date, which certificate shall be
in form and substance reasonably satisfactory to the Administrative
Agent and shall state that the resolutions thereby certified have not
been amended, modified, revoked or rescinded.
(n) Credit Party Incumbency Certificates. The Administrative
Agent shall have received, with a counterpart for each Lender, a
certificate of each Credit Party (other than the Borrower), dated the
Closing Date, as to the incumbency and signature of the officers of
such Credit Party executing any Credit Document, reasonably
satisfactory in form and substance to the Administrative Agent,
executed by the President or any Vice President and the Secretary or
any Assistant Secretary of each such Credit Party.
(o) Corporate Documents. The Administrative Agent shall have
received, with a counterpart for each Lender, true and complete copies
of the certificate of incorporation and by-laws of each Credit Party,
certified as of the Closing Date as complete and correct copies
thereof by the Secretary or an Assistant Secretary of the such Credit
Party.
(p) Legal Opinions. The Administrative Agent shall have
received, with a counterpart for each Lender, the following executed
legal opinions:
(i) the executed legal opinion of each of
Xxxxxxx Xxxxxxx and Xxxxxxxx and Fried, Harris, Xxxxxxx &
Xxxxxxxx, counsel to the Borrower and the other Credit
Parties, substantially in the form of Exhibits D-1 and D-2,
respectively; and
(ii) the executed legal opinions of each of
Xxxxxxx Xxxxxxx and Xxxxxxxx and Miles & StockBridge, counsel
to the Seller delivered pursuant to the Transaction Agreement,
each accompanied by a reliance letter in favor of the Lenders.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Agents may
reasonably require.
(q) Pledged Stock; Stock Powers. The Administrative Agent
shall have received the certificates representing the shares pledged
pursuant to each of the Security Documents together with an undated
54
stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof.
(r) Actions to Perfect Liens. (i) The Administrative Agent
shall have received evidence in form and substance reasonably
satisfactory to it that all filings, recordings, registrations and
other actions, including, without limitation, the filing of duly
executed financing statements on form UCC-1, necessary or, in the
opinion of the Administrative Agent, desirable to perfect the Liens
created by the Security Documents shall have been completed. The
Borrower shall have delivered to the Administrative Agent (A) each
Mortgage, each executed and delivered by a duly authorized officer of
the mortgagor party thereto, with a counterpart or a conformed copy
for each Lender and (B) legal opinions from local counsel in the
jurisdictions of such Mortgage relating to such Mortgage and the
perfection of Liens created by the Security Documents on personal
property located in such jurisdiction, which opinions shall be in form
and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(ii) The Borrower shall have delivered to the
Administrative Agent and the title insurance company issuing
the policy referred to below (the "Title Insurance Company")
maps or plats of an as-built survey of the sites of the
property covered by each Mortgage (other than as set forth on
Schedule 6.10) certified to the Administrative Agent and the
Title Insurance Company in a manner satisfactory to them,
dated a date reasonably satisfactory to the Administrative
Agent and the Title Insurance Company by an independent
professional licensed land surveyor reasonably satisfactory to
the Administrative 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 or necessary or desirable
to use 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; and (F) if the site is described as being on a filed
map, a legend relating the survey to said map.
(iii) The Borrower shall deliver to the
Administrative Agent in respect of each parcel covered by each
Mortgage (other than as set forth on Schedule 6.10) a
mortgagee's title policy (or policies) or marked up
55
unconditional binder for such insurance dated a date
reasonably satisfactory to the Agents. Each such policy shall
(A) be in an amount reasonably satisfactory to the Agents; (B)
be issued at ordinary rates; (C) insure that the Mortgage
insured thereby creates a valid first Lien on such parcel free
and clear of all defects and encumbrances, except for liens
permitted by clauses (a), (e), (f) and (g) of the definition
of Permitted Liens and such other liens and defects as may be
approved by the Agents; (D) name the Administrative Agent for
the benefit of the Lenders as the insured thereunder; (E) be
in the form of ALTA Loan Policy - 1992; (F) contain such
endorsements and affirmative coverage as the Agents may
reasonably request and (G) be issued by title companies
satisfactory to the Agents (including any such title companies
acting as co-insurers or reinsures, at the option of the
Agents). The Administrative Agent shall have received evidence
reasonably satisfactory to it that all premiums in respect of
each such policy, and all charges for mortgage recording tax,
if any, have been paid.
(iv) If required pursuant to Regulation H of the
Board of Governors of the Federal Reserve System ("Regulation
H") the Borrower shall deliver to the Administrative Agent (A)
a policy of flood insurance which (1) covers any parcel of
improved real property which 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
which 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
earlier 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.
(v) The Borrower shall deliver to the
Administrative Agent a copy of all recorded documents referred
to, or listed as exceptions to title in, the title policy or
policies referred to in this subsection 3.1(r) and a copy,
certified by such parties as the Agents may reasonably deem
appropriate, of all other documents affecting the property
covered by each Mortgage (other than as set forth on Schedule
6.10).
(vi) With respect to any parcel of real property
owned in fee by the Borrower or any Subsidiary on which
fixtures having an aggregate book value exceeding $250,000 are
located, take all actions that the Agents may reasonably
require, including (if such property is not covered by a
recorded Mortgage) the filing of UCC fixture filing financing
statements, to cause the security interest created by the
Security Documents in such fixtures to be perfected and with
respect to any parcel of real property leased by the Borrower
or any Subsidiary on which fixtures having an aggregate book
value exceeding $250,000 are
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located, use commercially reasonable efforts to obtain the
consent of the landlord of such property to the filing of UCC
fixture filing financing statements and make such filings if
such consent is obtained.
(s) Solvency Opinion. The Administrative Agent shall have
received, with a counterpart for each Lender, a solvency opinion
reasonably satisfactory to the Agents from an independent valuation
firm reasonably satisfactory to the Agents which shall document the
solvency of Holdings and its Subsidiaries (including the Borrower)
individually and taken together as a single entity, after giving
effect to the Asset Contribution, the making of the Loans, the
issuance of the Subordinated Debt and the other transactions
contemplated hereby and by the Transaction Documents.
(t) Environmental Report. The Administrative Agent shall have
received an environmental report prepared by H2M Associates, Inc.,
dated April 1997, regarding Holdings and its Subsidiaries, and a
letter that entitles the Administrative Agent, the other Agents and
the Lenders to rely on such report as if prepared for and addressed to
each of them.
(u) Business Plan. The Lenders shall have received a
reasonably satisfactory business plan for Holdings and its
Subsidiaries for the period beginning January 1, 1997 and ending
December 31, 2006, which plan shall include a written analysis of the
business and prospects of Holdings and its Subsidiaries.
5.2 Conditions to Each Extension of Credit. The agreement of
each Lender to make any extension of credit requested to be made by it on any
date (including, without limitation, its initial Loan but excluding Revolving
Credit Loans made to repay Refunded Swing Line Loans) is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower and each Credit
Party in or pursuant to the Credit 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 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 will occur or exist after
giving effect to the extensions of credit requested to be made on such
date.
(c) Additional Matters. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection
with the transactions contemplated by this Agreement and the other
Credit Documents shall be satisfactory in form and substance to the
Agents, and the Administrative Agent shall have received such other
documents and legal opinions in respect of any aspect or consequence
of the transactions contemplated hereby or thereby as it shall
reasonably request.
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Each borrowing by, and each Letter of Credit issued on behalf of, the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date thereof that the conditions contained in this subsection have been
satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect or any amount is owing to any Lender or any Agent hereunder or
under any other Credit Document, the Borrower shall and (except in the case of
delivery of financial information, reports and notices) shall cause each of its
Subsidiaries to:
6.1 Financial Statements. Furnish to the Administrative
Agent with copies for each Lender:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, (i) a copy of the
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related consolidated
statements of income and retained earnings and 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 and (ii) an unaudited unconsolidated
balance sheet of Holdings prepared on an equity basis (without
footnote disclosure) certified by a Responsible Officer of Holdings as
being fairly stated in all material respects;
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of
each fiscal year of the Borrower, the unaudited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end
of such quarter and the related unaudited consolidated statements of
income and retained earnings and of cash flows of the Borrower and its
consolidated Subsidiaries for such quarter and the portion of the
fiscal year through the end of such quarter, setting forth in each
case in comparative form the figures for the previous year, certified
by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects 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 officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to the
Administrative Agent with copies for each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that, in performing their audit, nothing came to their
attention that caused them to believe that the Borrower failed
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to comply with the provisions of subsection 7.1, except as specified
in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a) and (b), a certificate of a
Responsible Officer stating that, to the best of such Officer's
knowledge, during such period (i) no Subsidiary has been formed or
acquired (or, if any such Subsidiary has been formed or acquired, the
Borrower has complied with the requirements of subsection 6.10 with
respect thereto), (ii) none of Holdings, the Borrower nor any of its
Subsidiaries has changed its name, its principal place of business,
its chief executive office or the location of any material item of
tangible Collateral without complying with the requirements of this
Agreement and the Security Documents with respect thereto and (iii)
such Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate;
(c) concurrently with the delivery of financial statements
pursuant to subsection 6.1(a) or (b), a certificate of the chief
financial officer of the Borrower setting forth, in reasonable detail,
the computations, as applicable, of (i) the Debt Ratio, (ii) Excess
Cash Flow and (iii) the financial covenants set forth in subsection
7.1, as of such last day or for the fiscal period then ended, as the
case may be;
(d) not later than 60 days after the end of each fiscal year
of the Borrower, a copy of the projections by the Borrower of the
operating budget and cash flow budget of the Borrower and its
Subsidiaries for the succeeding fiscal year, such projections to be
accompanied by a certificate of a Responsible Officer to the effect
that such projections have been prepared on the basis of sound
financial planning practice and that such Officer has no reason to
believe they are incorrect or misleading in any material respect;
(e) within five days after the same are sent, copies of all
financial statements and reports which the Borrower or Holdings sends
to its stockholders, and within five days after the same are filed,
copies of all financial statements and other reports which the
Borrower or Holdings may make to, or file with, the Securities and
Exchange Commission or any successor or analogous Governmental
Authority; and
(f) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
6.3 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 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 the Borrower or its Subsidiaries, as the case may be;
provided that, notwithstanding the foregoing, the Borrower and each of its
Subsidiaries shall have the right not to pay any such obligation and in good
faith contest, by proper legal actions or proceedings, the invalidity or amount
of such claims.
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6.4 Conduct of Business and Maintenance of Existence. Except
as permitted by subsection 7.5 and subsection 7.6, continue to engage in
business of the same general type as now conducted by it (after giving effect
to the Transaction); preserve, renew and keep in full force and effect its
corporate existence and take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business; and keep all property useful and necessary in its business in good
working order and condition except if (i) in the reasonable business judgment
of the Borrower or such Subsidiary, as the case may be, it is in its best
economic interest not to preserve and maintain such rights, privileges or
franchises, and (ii) such failure to preserve and maintain such privileges,
rights or franchises would not materially adversely affect the rights of the
Lenders hereunder or the value of the Collateral, and except as otherwise
permitted pursuant to subsection 7.5; comply with all Contractual Obligations
and Requirements of Law except to the extent that failure to comply therewith
could not, in the aggregate, be reasonably expected to have a Material Adverse
Effect.
6.5 Maintenance of Property; Insurance. (a) Maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks (but
including in any event public liability, cargo loss and business interruption)
as are usually insured against in the same general area by companies engaged in
the same or a similar business; and furnish to the Administrative Agent with
copies for 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; provided
that in any event the Borrower will maintain, and will cause each of its
Subsidiaries to maintain, to the extent obtainable on commercially reasonable
terms, (i) property and casualty insurance on all real and personal property on
an all risks basis (including the perils of flood and quake), covering the
repair or replacement cost of all such property and consequential loss coverage
for business interruption and extra expense (which shall be limited to fixed
construction expenses and such other business interruption expenses as are
otherwise generally available to similar businesses), covering such risks, for
such amounts not less than those, and with deductible and self-insurance
amounts not greater than those, set forth in Schedule 6.5, (ii) public
liability insurance (including products liability coverage) covering such
risks, for such amounts no less than those, and with deductible amounts not
greater than those, set forth in Schedule 6.5 and (iii) such other insurance
coverage in such amounts and with respect to such risks as the Required Lenders
may reasonably request. All such insurance shall be provided by insurers or
reinsurers which (x) in the case of the United States insurers and reinsurers
have an A.M. Best policyholders rating of not less than A- with respect to
primary insurance and B+ with respect to excess insurance and (y) in the case
of non-United States insurers or reinsurers, the providers of at least 80% of
such insurance have either an ISI policyholders rating of not less than A, an
A.M. Best policyholders rating of not less than A- or a surplus of not less
than $500,000,000 with respect to primary insurance, and an ISI policyholders
rating of not less than BBB with respect to excess insurance, or, if the
relevant insurance is not available from such insurers, such other insurers as
the Administrative Agent may approve in writing. Such insurers may include a
Subsidiary of the Borrower; provided that such Subsidiary need not satisfy the
foregoing requirements if all but $15,000,000 of the insurance
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provided by such Subsidiary is reinsured by one or more reinsurers which
satisfy such requirements.
(b) The Borrower will deliver to the Administrative Agent on
behalf of the Lenders, (i) on the Closing Date, a certificate dated such date
showing the amount of coverage as of such date, (ii) upon request of any Lender
through the Administrative Agent from time to time full information as to the
insurance carried, (iii) promptly following receipt of notice from any insurer,
a copy of any notice of cancellation or material change in coverage from that
existing on the Closing Date, (iv) forthwith, notice of any cancellation or
nonrenewal of coverage by the Borrower or any Subsidiary, and (v) promptly
after such information is available to the Borrower, full information as to any
claim for an amount in excess of $2,500,000 which respect to any property and
casualty insurance policy maintained by the Borrower or any Subsidiary. The
Administrative Agent shall be named as additional insured on all property and
casualty insurance policies and a loss payee on all property insurance
policies. Any proceeds from any such insurance policy in respect of any claim,
or any condemnation award or other compensation in respect of a condemnation
(or any transfer or disposition of property in lieu of condemnation) for which
the Borrower or any of its Subsidiaries receives a condemnation award or other
compensation shall be paid to the Borrower or the Subsidiary; provided that:
(A) the Borrower or the Subsidiary will use such proceeds, condemnation award
or other compensation to repair, restore or replace the assets which were the
subject of such claim within 6 months (or in the case of real property, 12
months) after receipt thereof (and a Responsible Officer shall deliver a
certificate specifying in reasonable detail such usage not later than the last
day of such relevant period), and (B) if, at the time of the receipt of such
proceeds, condemnation award or other compensation, an Event of Default has
occurred and is continuing, the aggregate amount of all such proceeds,
condemnation award or other compensation shall be paid to the Administrative
Agent and held as collateral for application in accordance with the Security
Documents; and provided further that, to the extent that any amount of such
proceeds, condemnation award or other compensation are not used or committed
during the time periods specified in proviso (A) above, then, if requested by
notice from the Required Lenders to the Borrower, all such remaining
uncommitted proceeds, condemnation award or other compensation shall be paid to
the Administrative Agent and held as Collateral for application in accordance
with the Security Documents.
6.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of
all 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 (except to the
extent any such access is restricted by a Requirement of Law) at any reasonable
time on a Business Day and as often as may reasonably be desired and to discuss
the business, operations, properties and financial and other condition of the
Borrower and its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and with its independent certified public accountants;
provided that the Administrative Agent or such Lender shall notify the Borrower
prior to any contact with such accountants and give the Borrower the
opportunity to participate in such discussions; provided, further, that the
Borrower shall notify the Administrative Agent of any such visits, inspections
or discussions prior to each occurrence thereof.
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6.7 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 the Borrower or any of its Subsidiaries, (ii)
litigation, investigation or proceeding which may exist at any time
between the Borrower 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 or (iii) any material asset sale (describing
in reasonable detail the assets sold, the consideration received
therefor and the proposed use of the proceeds thereof);
(c) any other litigation or proceeding affecting the Borrower
or any of its Subsidiaries in which the amount involved is $7,500,000
or more and not covered by insurance or in which injunctive or similar
relief is sought; and
(d) the following events, as soon as possible and in any event
within 45 days after the Borrower knows or has reason to know thereof:
(i) the incurrence of an accumulated funding deficiency or the filing
of an application to the Secretary of the Treasury for a waiver or
modification of the minimum funding standard (including any required
installment payments) or an extension of any amortization period under
Section 412 of the Code with respect to a Plan, the creation of any
Lien in favor of the PBGC or a Plan, the occurrence of any "Trigger
Event" (as defined in the Transfer Agreements) and the reassumption by
the Seller of sponsorship of any Single Employer Plan, (ii) except
where such event or liability could not reasonably be expected to have
a Material Adverse Effect, the occurrence or expected occurrence of
any Reportable Event with respect to any Plan (other than a Multiple
Employer Plan), or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan, or a failure
to make any required contribution to a Plan, (iii) the institution of
proceedings by the PBGC with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Single Employer Plan
or Multiemployer Plan or (iv) except as could not reasonably be
expected to have a Material Adverse Effect, the institution of
proceedings or the taking of any other action with respect to the
withdrawal from or termination of any Single Employer Plan;
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 the Borrower proposes to take with respect
thereto.
6.8 Environmental Laws. (a)(i) Comply in all material respects
with all Environmental Laws applicable to it, and obtain, comply in all
material respects with and maintain any and all material Environmental Permits
necessary for its operations as conducted and as planned; and (ii) take all
reasonable efforts to ensure that all of its tenants, subtenants, contractors,
subcontractors, and invitees comply in all material respects with all
applicable Environmental Laws, and obtain, comply in all material
62
respects with and maintain any and all material Environmental Permits,
applicable to any of them. Notwithstanding the foregoing, upon learning of any
actual or suspected noncompliance, the Borrower or one or more of its
Subsidiaries, as appropriate, shall promptly undertake all reasonable efforts
to achieve material compliance.
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions in each case required
under applicable Environmental Laws and promptly comply in all material
respects with all lawful orders and directives of all Governmental Authorities
regarding applicable Environmental Laws except to the extent that the same are
being contested in good faith by appropriate proceedings and the pendency of
such proceedings could not be reasonably expected to have a Material Adverse
Effect.
6.9 Further Assurances. Upon the reasonable request of the
Administrative Agent, promptly perform or cause to be performed any and all
acts and execute or cause to be executed any and all documents (including,
without limitation, financing statements and continuation statements) for
filing under the provisions of the Uniform Commercial Code or any other
Requirement of Law which are necessary or advisable to maintain in favor of the
Administrative Agent, for the benefit of the Lenders, Liens on the Collateral
that are duly perfected in accordance with all applicable Requirements of Law.
6.10 Additional Collateral. (a) With respect to any assets
acquired after the Closing Date by the Borrower or any of its Subsidiaries
(including the Stock of newly created or acquired Subsidiaries) that are
intended to be subject to the Lien created by any of the Security Documents but
which are not so subject (other than (x) any assets described in paragraph (b)
of this Section and (y) immaterial assets a Lien on which cannot be perfected
by filing UCC-1 financing statements), promptly (and in any event within 30
days after the acquisition thereof): (i) execute and deliver to the
Administrative Agent such amendments to the relevant Security Documents or such
other documents as the Administrative Agent shall deem necessary or advisable
to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on
such assets, (ii) take all actions necessary or advisable to cause such Lien to
be duly perfected in accordance with all applicable Requirements of Law,
including, without limitation, the filing of financing statements in such
jurisdictions as may be requested by the Administrative Agent, and (iii) if
requested by the Administrative Agent, deliver to the Administrative Agent
legal opinions relating to the matters described in clauses (i) and (ii)
immediately preceding, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
(b) With respect to any Person that, subsequent to the Closing
Date, becomes a direct or indirect Subsidiary, promptly: (i) execute and
deliver to the Administrative Agent, for the benefit of the Lenders, such
amendments to the Subsidiary Pledge and Security Agreement as the
Administrative Agent shall deem necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a Lien on the Capital
Stock of such Subsidiary which is owned by the Borrower or any of its
Subsidiaries, (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers executed
and delivered in blank by a duly authorized officer of the Borrower or such
Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become
63
a party to the Subsidiary Pledge and Security Agreement, the Subsidiary
Guarantee and the Mortgages delivered pursuant to clause (B) below, in each
case pursuant to documentation which is in form and substance reasonably
satisfactory to the Administrative Agent, (B) to deliver to the Documentation
Agent Mortgages in form and substance reasonably satisfactory to the
Documentation Agent with respect to all real property of such Subsidiary, and
(C) to take all actions necessary or advisable to cause each Lien created by
the Subsidiary Pledge and Security Agreement and the Mortgages delivered
pursuant to clause (B) above to be duly perfected in accordance with all
applicable Requirements of Law, including, without limitation, the filing of
financing statements in such jurisdictions as may be requested by the
Administrative Agent and (iv) if requested by the Administrative Agent, deliver
to the Administrative Agent legal opinions relating to the matters described in
clauses (i), (ii) and (iii) immediately preceding, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent. Notwithstanding the foregoing, no Foreign Subsidiary of
Holdings or the Borrower shall be required to execute a Subsidiary Guarantee or
Subsidiary Pledge and Security Agreement, and no more than 65% of the capital
stock of or equity interests in any Foreign Subsidiary of the Borrower,
Holdings or any of their Subsidiaries, or any other of their Subsidiaries if
more than 65% of the assets of such Subsidiary are securities of foreign
companies (such determination to be made on the basis of fair market value),
shall be required to be pledged hereunder.
(c) As promptly as practicable, but in any event within 120
days following the Closing Date, the Borrower shall have delivered to the
Administrative Agent (A) a Mortgage with respect the real property described in
Part I of Schedule 6.10, executed and delivered by a duly authorized officer of
the mortgagor party thereto, with a counterpart or a conformed copy for each
Lender and (B) legal opinions from local counsel in the jurisdiction of such
Mortgage relating to such Mortgage and the perfection of Liens created by the
Security Documents on personal property located in such jurisdiction, which
opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
(d) As promptly as practical, but in any event within 120 days
following the Closing Date, the Borrower shall have delivered to the
Administrative Agent and the Title Insurance Company maps or plats of an
as-built survey of the sites of the property covered by each Mortgage set forth
on Part II of Schedule 6.10 certified to the Administrative Agent and the Title
Insurance Company in a manner satisfactory to them, dated a date reasonably
satisfactory to the Administrative Agent and the Title Insurance Company by an
independent professional licensed land surveyor reasonably satisfactory to the
Administrative 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 or necessary or desirable to use 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
64
encroachments on any adjoining property by the building structures and
improvements on the sites; and (F) if the site is described as being on a filed
map, a legend relating the survey to said map.
(e) As promptly as practical, but in any event within 120 days
following the Closing Date, the Borrower shall deliver to the Administrative
Agent in respect of each parcel covered by each Mortgage set forth on Part II
Schedule 6.10 a mortgagee's title policy (or policies) or marked up
unconditional binder for such insurance dated a date reasonably satisfactory to
the Agents. Each such policy shall (A) be in an amount reasonably satisfactory
to the Agents; (B) be issued at ordinary rates; (C) insure that the Mortgage
insured thereby creates a valid first Lien on such parcel free and clear of all
defects and encumbrances, except for liens permitted by clauses (a), (e), (f)
and (g) of the definition of Permitted Liens and such other liens and defects
as may be approved by the Agents; (D) name the Administrative Agent for the
benefit of the Lenders as the insured thereunder; (E) be in the form of ALTA
Loan Policy - 1992; (F) contain such endorsements and affirmative coverage as
the Agents may reasonably request and (G) be issued by title companies
satisfactory to the Agents (including any such title companies acting as
co-insurers or reinsures, at the option of the Agents). The Administrative
Agent shall have received evidence reasonably satisfactory to it that all
premiums in respect of each such policy, and all charges for mortgage recording
tax, if any, have been paid.
(f) As promptly as possible, but in any event within 120 days
following the Closing Date, the Borrower shall deliver to the Administrative
Agent a copy of all recorded documents referred to, or listed as exceptions to
title in, the title policy or policies referred to in subsection 6.10(d) and a
copy, certified by such parties as the Agents may reasonably deem appropriate,
of all other documents affecting the property covered by each Mortgage set
forth on Schedule 6.10.
(g) As promptly as possible, but in any event within 120 days
following the Closing Date, if required pursuant to Regulation H of the Board
of Governors of the Federal Reserve System ("Regulation H") the Borrower shall
deliver to the Administrative Agent (A) a policy of flood insurance which (1)
covers the parcel of improved real property which is encumbered by the Mortgage
with respect to the real property set forth on Part I of Schedule 6.10, (2) is
written in an amount not less than the outstanding principal amount of the
indebtedness secured by such Mortgage which 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 earlier 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.
(h) As promptly as possible, but in any event within 120 days
following the Closing Date, with respect to the parcel of real property
described in Part I of Schedule 6.10, the Borrower shall take all actions that
the Agents may reasonably require, including (if such property is not covered
by a recorded Mortgage) the filing of UCC fixture filing financing statements,
to cause the security interest created by the Security Documents in such
fixtures to be perfected and with respect to any parcel of real property leased
by the Borrower or any Subsidiary on which fixtures having an aggregate book
value exceeding $250,000 are located, use commercially reasonable efforts to
obtain the consent of the landlord of such property to
65
the filing of Ucc fixture filing financing statements and make such filings if
such consent is obtained.
(i) Use reasonable efforts to take any action reasonably
requested by the Agents with respect to any ground lease still in effect on the
real property described in Part III of Schedule 6.10.
6.11 Interest Rate Protection. Within 180 days after the
Closing Date, obtain interest rate protection for a period through June 30,
1999 for a notional amount of at least $59,000,000 on terms and conditions
reasonably satisfactory to the Agents.
6.12 Foreign Jurisdictions. Within 60 days following the
Closing Date, (i) be duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, except to the extent that the failure to so qualify could not,
in the aggregate, reasonably be expected to have a Material Adverse Effect, and
(ii) deliver to the Administrative Agent certificates of good standing issued
by the Secretary of State (or other relevant officers) of each jurisdiction
referred to in clause (i) of this subsection 6.12.
6.13 Novation; Federal Assignment of Claims. (a) (i) Use
commercially reasonable efforts to cause the Seller to perform its obligations
under subsection 7.08 of the Transaction Agreement, (ii) use best efforts to
perform its obligations under subsection 8.07 of the Transaction Agreement and
(iii) use its best efforts to obtain as soon as practicable after the Closing
Date the completion and effectiveness of the novation of each Government
Contract (as defined in the Transaction Agreement) and the consent under the
Assignment of Claims Act to the security interest of the Agents and the Lenders
in all of the right, title and interest of the Borrower and its Subsidiaries in
the Government Contracts (other than the Restricted Government Contracts) sold,
assigned, transferred and conveyed by the Seller under the Transaction
Agreement.
(b) Within ninety (90) days of the creation of a Government
Contract or, upon the occurrence and during the continuance of a Default or an
Event of Default, the Borrower and its Subsidiaries shall notify the
Administrative Agent thereof, which notice shall set forth (i) each GC Notice
Recipient with respect to such Government Contract and (ii) the anticipated
annual gross revenue under such Government Contract and shall execute and
deliver to the Administrative Agent all documents, in form and substance
reasonably satisfactory to the Administrative Agent, and take all such other
action (other than the transmittal of the notice of assignment to the U.S.
Government) reasonably required by the Administrative Agent to assign the
Receivables arising under such Government Contract (other than any Restricted
Government Contract), to the Administrative Agent pursuant to the Assignment of
Claims Act. The Borrower agrees that promptly upon obtaining knowledge that any
of the information provided pursuant to the first sentence of subsection
6.13(b) has changed, it shall give written notice of such change to the
Administrative Agent. Upon the occurrence and during the continuance of an
Event of Default, the Administrative Agent may, and shall at the direction of
the Required Lenders, transmit any such notice of assignment received by it
from the Borrower and its Subsidiaries to the U.S. Government.
(c) The Borrower and its Subsidiaries shall apply for and
maintain all material facility security clearances and personnel security
66
clearances required of the Borrower under all Requirements of Law to perform
and deliver under any and all Government Contracts and as otherwise may be
necessary to continue to perform the business of the Borrower and its
Subsidiaries.
6.14 Maintenance of Collateral; Alterations. Refrain from
committing any waste on any Collateral, except in the ordinary course of its
business, or make any material change in the use of any Collateral, provided
that any Credit Party may sell or lease to any other Person all or any portion
of any item of Collateral that the Borrower has determined in good faith is not
used or useful in such Credit Party's operating business. Each Credit Party
granting a security interest in Collateral constituting real property
represents and warrants that, to the best of its knowledge: (a) such Collateral
is served by all utilities required or necessary for the current use thereof;
(b) all streets (or public rights-of-way) necessary to serve such Collateral
are completed and serviceable and have been dedicated and accepted as such by
the appropriate governmental entities or such Collateral is served by insurable
easements (or rights-of-way) for ingress and egress to and from such streets
(or rights-of-way); and (c) such Credit Party has access to such Collateral
from public roads (or rights-of-way), either directly or by insurable easements
(or rights-of-way), sufficient to allow such Credit Parties to conduct its
business at such Collateral in accordance with sound commercial and industrial
practices. The Credit Parties shall, at all times, maintain all non-possessory
collateral and all real estate collateral that is materially useful or
necessary in their respective businesses, in good operating order, condition
and repair, ordinary wear and tear and damage by fire and/or other casualty or
taking by condemnation excepted, and in accordance with all applicable laws,
rules and regulations, (including, without limitation, Environmental Laws) the
failure to comply with which would have a material adverse effect on the value
or usefulness of such Collateral, except where the necessity of compliance
therewith is contested in good faith by appropriate proceedings. Each Credit
Party shall do what is deemed commercially reasonable to maintain and preserve
the value of the Collateral.
6.15 Arrangements with the Seller.
(a) As promptly as practicable, but in any event within 90
days following the Closing Date, the Borrower shall have delivered to
the Administrative Agent the Supply Agreement, the License Agreement
and the Interim Services Agreement (each as defined in the Transaction
Agreement) executed and delivered by the Seller and the Borrower which
shall be reasonably satisfactory in form and substance to the Agents;
and
(b) As promptly as practicable, but in any event within 120
days following the Closing Date, the Borrower shall have delivered to
the Administrative Agent the executed consents of the lessors of the
real property leased by the Seller (which leaseholds constitute
Transferred Assets (as defined in the Transaction Agreement)) to the
transfer of such leaseholds to the Borrower, which consents shall be
reasonably satisfactory in form and substance to the Agents.
67
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as any portion of the
Commitments remain in effect or any amount is owing to any Lender or any of the
Agents hereunder or under any other Credit Document, the Borrower shall not,
and (except with respect to subsection 7.1), shall not permit any of its
Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) Debt Ratio. Permit the Debt Ratio at the last day of any
fiscal quarter to be greater than the ratio set forth below opposite
the fiscal quarter during which such fiscal quarter occurs:
Fiscal Quarter Ending Ratio
--------------------- -----
September 30, 1997 5.75
December 31, 1997 5.50
March 31, 1998 5.50
June 30, 1998 5.50
September 30, 1998 5.25
December 31, 1998 5.25
March 31, 1999 5.25
June 30, 1999 5.25
September 30, 1999 4.75
December 31, 1999 4.75
March 31, 2000 4.75
June 30, 2000 4.75
September 30, 2000 4.25
December 31, 2000 4.25
March 31, 2001 4.25
June 30, 2001 4.25
September 30, 2001 3.60
December 31, 2001 3.60
March 31, 2002 3.60
June 30, 2002 3.60
September 30, 2002 3.10
December 31, 2002 3.10
March 31, 2003 3.10
June 30, 2003 3.10
September 30, 2003 3.10
December 31, 2003 3.10
March 31, 2004 3.10
June 30, 2004 3.10
September 30, 2004 3.10
December 31, 2004 3.10
March 31, 2005 3.10
June 30, 2005 3.10
68
September 30, 2005 3.10
December 31, 2005 3.10
and thereafter
(b) Interest Coverage. Permit the ratio of (i) Consolidated
EBITDA to (ii) Consolidated Cash Interest Expense during any Test
Period to be less than the ratio set forth opposite such period below
(such ratio, the "Interest Coverage Ratio"):
Test Period Interest Coverage Ratio
----------- -----------------------
7/1/97 - 9/30/97 1.50
10/1/97 - 12/31/97 1.85
1/1/98 - 3/31/98 1.85
4/1/98 - 6/30/98 1.85
7/1/98 - 9/30/98 1.90
10/1/98 - 12/31/98 1.90
1/1/99 - 3/31/99 1.90
4/1/99 - 6/30/99 1.90
7/1/99 - 9/30/99 2.15
10/1/99 - 12/31/99 2.15
1/1/00 - 3/31/00 2.15
4/1/00 - 6/30/00 2.15
7/1/00 - 9/30/00 2.35
10/1/00 - 12/31/00 2.35
1/1/01 - 3/31/01 2.35
4/1/01 - 6/30/01 2.35
7/1/01 - 9/30/01 2.75
10/1/01 - 12/31/01 2.75
1/1/02 - 3/31/02 2.75
4/1/02 - 6/30/02 2.75
7/1/02 - 9/30/02 3.10
10/1/02 - and thereafter 3.10
7.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness (including in respect of Interest
Rate Agreements, except:
(a) Indebtedness of the Borrower under this Agreement;
(b) Indebtedness of the Borrower incurred to finance the
acquisition of fixed or capital assets (whether pursuant to a loan, a
Financing Lease or otherwise) in an aggregate principal amount not
exceeding $15,000,000 at any time outstanding;
(c) Indebtedness of a corporation which becomes a Subsidiary
after the date hereof, provided that (i) such indebtedness existed at
the time such corporation became a Subsidiary and was not created in
anticipation thereof and (ii) immediately after giving
69
effect to the acquisition of such corporation by the Borrower no
Default or Event of Default shall have occurred and be continuing;
(d) additional Indebtedness of the Borrower not exceeding
$15,000,000 in aggregate principal amount at any one time outstanding;
(e) Indebtedness of the Borrower in respect of not more than
$225,000,000 principal amount of Subordinated Debt issued on the
Closing Date;
(f) the Indebtedness of the Borrower and its Subsidiaries
outstanding on the Closing Date and reflected on Schedule 7.2(f), and
refundings or refinancings thereof, provided that no such refunding or
refinancing shall shorten the maturity or increase the principal
amount of the original Indebtedness;
(g) Indebtedness in respect of the Interest Rate Agreements
required by subsection 6.11;
(h) Guarantee Obligations permitted by subsection 7.4;
(i) the incurrence by any Credit Party of intercompany
Indebtedness between or among the Credit Parties; provided, however,
that if the Borrower is the obligor on such Indebtedness, such
Indebtedness is expressly subordinated to the prior payment in full in
cash of all Obligations;
(j) Indebtedness secured by Permitted Liens;
(k) Up to $25,000,000 of purchase money Indebtedness the
proceeds of which are utilized to acquire the real property (including
improvements thereon) and related assets currently utilized by the
Wide Band Systems division in Salt Lake City, Utah, on terms
reasonably satisfactory to the Lenders.
7.3 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 for taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements;
70
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, zoning restrictions, other
restrictions and other similar encumbrances previously or hereafter
incurred in the ordinary course of business which, in the aggregate,
are not substantial in amount and which do not in any case materially
detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the Borrower or
such Subsidiary, or which are set forth in title insurance policies or
commitments delivered to Administrative Agent pursuant to the terms of
this Agreement;
(f) Liens in existence on the date hereof listed on Schedule
7.3(f), securing Indebtedness permitted by subsection 7.2(f), provided
that no such Lien is expanded 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 the Closing Date and that the amount of Indebtedness
secured thereby is not increased and extensions, renewals or
replacements thereof provided that no such extension, renewal or
replacement shall shorten the fixed maturity or increase the principal
amount of the original Indebtedness; and provided, further, that the
assets of the Borrower and its Subsidiaries encumbered by such Liens
are existing equipment and other existing tangible assets;
(g) Liens securing Indebtedness of the Borrower and its
Subsidiaries permitted by subsection 7.2(b) and subsection 7.2(k)
incurred to finance the acquisition of fixed or capital assets,
provided that (i) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets,
(ii) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness (other than after acquired
title in or on such property and proceeds of the existing collateral
in accordance with the instrument creating such Lien) and (iii) the
principal amount of Indebtedness secured by any such Lien shall at no
time exceed 100% of the original purchase price of such property of
such property at the time it was acquired;
(h) Liens on the property or assets of a corporation which
becomes a Subsidiary after the date hereof securing Indebtedness
permitted by subsection 7.2(c), provided that (i) such Liens existed
at the time such corporation became a Subsidiary and were not created
in anticipation thereof, (ii) any such Lien is not expanded to cover
any property or assets of such corporation after the time such
corporation becomes a Subsidiary (other than after acquired title in
or on such property and proceeds of the existing collateral in
accordance with the instrument creating such Lien), and (iii) the
amount of Indebtedness secured thereby is not increased;
(i) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Borrower and all Subsidiaries)
$2,500,000 in aggregate amount at any time outstanding;
71
(j) Liens created pursuant to the Security Documents;
(k) Liens on the property of the Borrower or any of its
Subsidiaries in favor of landlords securing licenses, subleases or
leases entered into in the ordinary course of business;
(l) licenses, leases or subleases permitted hereunder granted
to other Persons not interfering in any material respect in the
business of the Borrower or any of its Subsidiaries;
(m) so long as no Default or Event of Default shall have
occurred and be continuing under subsection 8(h), attachment or
judgment Liens in an aggregate amount outstanding at any one time not
in excess of $7,500,000;
(n) Liens arising from precautionary Uniform Commercial Code
financing statement filings with respect to operating leases or
consignment arrangements entered into by the Borrower, or any of its
subsidiaries in the ordinary course of business; and
(o) 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.
7.4 Limitation on Guarantee Obligations. Create, incur, assume
or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date hereof and
listed on Schedule 7.4 and extensions, renewals and replacements
thereof, provided, however, that no such extension, renewal or
replacement shall shorten the fixed maturity or increase the principal
amount of the Indebtedness guaranteed by the original guarantee;
(b) Guarantee Obligations incurred after the date hereof in an
aggregate amount not to exceed $15,000,000 at any one time outstanding
for the Borrower and its Subsidiaries;
(c) guarantees made by the Subsidiaries of the Borrower
pursuant to the Subordinated Debt Documents;
(d) Guarantee Obligations under the Credit Documents;
(e) the L/C Obligations;
(f) Guarantee Obligations of the Borrower or any Subsidiary in
respect of obligations of a Subsidiary permitted to be incurred by
such Subsidiary by this Agreement;
(g) Guarantee Obligations in respect of surety bonds which
shall not exceed $10,000,000 at any time;
72
(h) indemnities in favor of the companies issuing title
insurance policies insuring the Mortgages to induce such issuance; and
(i) indemnities made in the Commitment Letter, the Credit
Documents and the Transaction Documents and in the Constitutional
Documents of the Borrower and its Subsidiaries.
7.5 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, or make any material change in its present method of
conducting business, except:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower
shall be the continuing or surviving corporation) or with or into any
one or more wholly owned Subsidiaries of the Borrower (provided that
the wholly owned Subsidiary or Subsidiaries shall be the continuing or
surviving corporations);
(b) any wholly owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any other wholly owned
Subsidiary of the Borrower that is a Credit Party; and
(c) the Asset Contribution.
7.6 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, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person other than the
Borrower or any wholly owned Subsidiary, except:
(a) the sale or other disposition of obsolete or worn out
property in the ordinary course of business;
(b) the sale of any property or assets not otherwise permitted
by this Section 7.6; provided that the Net Proceeds thereof shall be
applied pursuant to subsection 2.6(b)(ii); provided, further, that (i)
the aggregate amount of proceeds of all such Asset Sales does not
exceed (x) $20,000,000 in fiscal year 1997 or (y) $30,000,000 since
the date of this Agreement and (ii) the aggregate amount of non-cash
consideration received from such Asset Sales under shall not exceed
$5,000,000 since the date of this Agreement;
(c) as permitted pursuant to subsection 7.5(b);
(d) the sale, lease, transfer or exchange of inventory in the
ordinary course of business;
(e) subject to subsection 6.5, transfers resulting from any
casualty or condemnation of property or assets;
73
(f) intercompany sales or transfers of assets made in the
ordinary course of business;
(g) licenses, leases or subleases of tangible property in the
ordinary course of business;
(h) any consignment arrangements or similar arrangements for
the sale of assets in the ordinary course of business;
(i) 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
(j) (i) the sale of the real property used by the Borrower's
Aviation Recorder Division on the date hereof (including all
improvements thereto) in Sarasota, Florida, solely for cash proceeds
of at least $7,500,000 and (ii) the sale of all or substantially all
of the assets of the Borrower's Hycor Division (as constituted on the
date hereof) solely for cash proceeds of at least $5,000,000, provided
that (x) the first $20,000,000 of the proceeds of such sales are
applied pursuant to subsection 2.6(b)(ii) and (y) to the extent the
aggregate proceeds of asset sales permitted by this clause (j) exceed
$20,000,000, the Borrower shall utilize such excess proceeds for the
prepayment of Loans and the reduction of Commitments pursuant to
subsection 2.6(b)(ii) (without giving effect to the proviso thereto).
7.7 Limitation on Dividends. Declare or pay any dividend
(other than dividends payable solely in common stock of the Borrower) 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 shares of any class of Capital Stock of the Borrower or any
warrants or options to purchase any such Capital Stock, whether now or
hereafter outstanding, or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in obligations of
the Borrower or any Subsidiary other than Permitted Stock Payments.
7.8 Limitation on Capital Expenditures. Make or commit to make
(by way of the acquisition of securities of a Person or otherwise) any
expenditure in respect of the purchase or other acquisition of fixed or capital
assets (excluding any such asset acquired in connection with normal replacement
and maintenance programs properly charged to current operations) except for
capital expenditures in the ordinary course of business not exceeding, in the
aggregate for the Borrower and its Subsidiaries during any of the fiscal years
of the Borrower set forth below, the amount set forth opposite such fiscal year
below:
Fiscal Year Amount
----------- ------
1997 $18,500,000
1998 27,500,000
1999 27,500,000
2000 30,000,000
2001 32,500,000
2002 32,500,000
2003 35,000,000
74
Text Limit > Table Limit >
2004 37,500,000
2005 and thereafter 40,000,000;
provided, that up to 25% of any such amount not so expended in the fiscal year
for which it is permitted above may be carried over for expenditure in the next
following fiscal year.
7.9 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) loans to officers of the Borrower listed on Schedule
7.9(c) in aggregate principal amounts outstanding not to exceed the
respective amounts set forth for such officers on said Schedule;
(d) loans and advances to employees of the Borrower or its
Subsidiaries for travel, entertainment and relocation expenses in the
ordinary course of business in an aggregate amount for the Borrower
and its Subsidiaries not to exceed $1,000,000 at any one time
outstanding;
(e) investments by the Borrower in its Subsidiaries that are
Credit Parties and investments by such Subsidiaries in the Borrower
and in other Subsidiaries that are Credit Parties;
(f) so long as no Event of Default has occurred and is
continuing, loans by the Borrower to its employees (other than any
Principals or their Related Parties) in connection with (i) management
incentive plans and (ii) management stock purchase plans, in an
aggregate amount not to exceed $3,000,000;
(g) Investments in existence on the Closing Date set forth on
Schedule 7.9(g) and extensions, renewals, modifications or
restatements or replacements thereof; provided that no such extension,
renewal, modification or restatement shall increase the amount of the
original loan, advance or investment;
(h) promissory notes and other similar non-cash consideration
received by the Borrower and its Subsidiaries in connection with the
dispositions permitted by subsection 7.6(b);
(i) Investments required by subsection 6.11 and Investments
permitted by subsection 7.6(b) and subsection 7.6(j);
(j) 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; and
75
(k) so long as no Event of Default has occurred and is
continuing, in addition to the foregoing, Investments in an aggregate
amount not exceeding $15,000,000 (at cost, without regard to any write
down or write up thereof) at any one time outstanding.
7.10 Limitation on Optional Payments and Modifications of
Instruments and Agreements. (a) Make any optional payment or prepayment on or
redemption or purchase of, or deliver any funds to any trustee for the
prepayment, redemption or defeasance of, any Subordinated Debt or (b) amend,
modify or change, or consent or agree to any amendment, modification or change
to any of the material terms of any such Subordinated Debt Documents (other
than any such amendment, modification or change which would extend the maturity
or reduce the amount of any payment of principal thereof or which would reduce
the rate or extend the date for payment of interest thereon).
(b) Amend its Constitutional Documents in any manner which
could adversely affect the rights of the Lenders under the Credit Documents or
their ability to enforce the same.
(c) Modify or amend, or waive any provision or condition
contained in, any of the Transaction Documents in any manner that could
reasonably be expected to be adverse to the Lenders.
7.11 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, (ii)
in the ordinary course of the Borrower's or such Subsidiary's business and
(iii) upon fair and reasonable terms no less favorable to the Borrower 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.
(b) In addition, notwithstanding the foregoing, the Borrower
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 the Borrower;
(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;
(iii) payments to directors and officers of the Borrower
and its Subsidiaries in respect of the indemnification of such Persons
in such respective capacities from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements, as the case may
be, pursuant to the Constitutional Documents or other corporate action
of the Borrower or its Subsidiaries, respectively, or pursuant to
applicable law; and
(iv) transactions described in the Transaction Documents.
76
7.12 Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by the Borrower or any
Subsidiary of real or personal property which has been or is to be sold or
transferred by the Borrower 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 the Borrower or such
Subsidiary; provided that the Borrower may enter into a sale and leaseback
transaction if the Borrower could have (a) incurred Indebtedness in an amount
equal to the Attributable Debt relating to such sale and leaseback transaction
and (b) incurred a Lien to secure such Indebtedness, in each case in accordance
with the restrictions contained in this Agreement and the other Credit
Documents.
7.13 Limitation on Changes in Fiscal Year. Permit the fiscal
year of the Borrower to end on a day other than December 31.
7.14 Limitation on Negative Pledge Clauses. Enter into with
any Person any agreement, other than (a) this Agreement, (b) the Subordinated
Debt Documents and (c) any industrial revenue bonds, purchase money mortgages
or Financing Leases permitted by this Agreement (in which cases, any
prohibition or limitation shall only be effective against the assets financed
thereby other than after acquired title in or on such property and proceeds of
the existing collateral in accordance with the instrument creating such Lien),
which prohibits or limits the ability of the Borrower or any of its
Subsidiaries to create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired.
7.15 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for Similar Businesses.
7.16 Designated Senior Debt. Designate any Indebtedness or
other obligation, other than Indebtedness under the Credit Documents, as
"Designated Senior Debt," as such term is defined in the Indenture as in effect
on the Closing Date, or any comparable designation that confers upon the
holders of such Indebtedness or other obligation (or any Person acting on their
behalf) the right to initiate blockage periods under the Indenture or any other
Indebtedness or other obligation of the Borrower and its Subsidiaries(other
than as a result of a payment default).
SECTION 8. 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 Reimbursement 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, within five days
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 the
Borrower or any other Credit Party herein or in any other Credit
Document or which is contained in any certificate, document or
77
financial or other statement furnished by it at any time under or in
connection with this Agreement or any such other Credit Document shall
prove to have been incorrect in any material respect on or as of the
date made or deemed made; or
(c) The Borrower or any other Credit Party shall default in
the observance or performance of any agreement contained in Section 7
or subsection 6.5(a) of this Agreement, Section 4 of the Parent
Guarantee, Section 4 of the Subsidiary Guarantee, Section 4 of the
Parent Pledge and Security Agreement, Section 4 of the Borrower Pledge
and Security Agreement, or Section 4 of the Subsidiary Pledge and
Security Agreement; or
(d) The Borrower or any other Credit Party shall default in
the observance or performance of any other agreement contained in this
Agreement or any other Credit Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days; or
(e) The Borrower or any of its Subsidiaries shall (i) default
(x) in any payment of principal of or interest of any Indebtedness
(other than the Loans, the L/C Obligations and any intercompany debt)
or Interest Rate Agreement Obligations or (y) in the payment of any
Guarantee Obligation (excluding any guaranties of the Obligations),
beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness, Interest Rate Agreement
Obligation or Guarantee Obligation was created; or (ii) default in the
observance or performance of any other agreement or condition relating
to any such Indebtedness, Interest Rate Agreement Obligation 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; provided,
however, that no Default or Event of Default shall exist under this
paragraph unless (i) the aggregate amount of Indebtedness, Interest
Rate Agreement Obligations and/or Guarantee Obligations in respect of
which any default or other event or condition referred to in this
paragraph shall have occurred shall be equal to at least $7,500,000
and (ii) such default continues for a period in excess of 10 days; or
(f) (i) Holdings, the Borrower 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, 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, 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, custodian,
conservator or other similar official for it or for all or any
substantial part of its assets, or Holdings, the Borrower or any of
78
its Subsidiaries shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against Holdings, the
Borrower 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 60 days; or (iii) there shall be commenced against the
Holdings, Borrower 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 60 days from the entry thereof; or (iv)
Holdings, the Borrower 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) Holdings, the Borrower or any of its Subsidiaries
shall generally not, or shall be unable to, or shall admit in writing
its inability to, pay its 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 Plan or any Lien in favor of
the PBGC or a 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, reasonably 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 similar
event or condition shall occur or exist with respect to a Plan that is
not in the ordinary course; 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 its Subsidiaries involving in the
aggregate a liability (not paid or fully covered by insurance (which
coverage has been acknowledged by the appropriate insurers)) of
$7,500,000 or more, and all such judgments or decrees shall not have
been vacated, discharged, stayed or bonded pending appeal within 60
days from the entry thereof; or
(i) (i) Any of the Security Documents shall cease, for any
reason, to be in full force and effect (unless released by the
Administrative Agent at the direction of the requisite Lenders or as
otherwise permitted under this Agreement or the other Credit
Documents), or the Borrower or any other Credit Party which is a
79
party to any of the Security Documents shall so assert or (ii) the
Lien created by any of the Security Documents shall cease to be
enforceable and of the same effect and priority purported to be
created 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 Lenders, as the case may be, as secured
parties thereunder, the Credit Party shall have failed to cure such
invalidity within 30 days after notice from the Administrative Agent);
or
(j) the Guarantee Obligation of any Credit Party under the
Credit Documents shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full
force and effect or any Credit Party or any Person acting on behalf of
any Credit Party, shall deny or disaffirm its obligations under such
Guarantee Obligation;
(k) There shall have occurred a Change in Control; or
(l) either (i) the novation of any Government Contract
existing on the date of this Agreement shall not be complete and
effective prior to October 31, 1998 if such failures, individually or
in the aggregate, could reasonably be expected to have a Material
Adverse Effect, (ii) the consent to assignment of claims under any
Government Contract (other than any Restricted Government Contract)
existing on the date of this Agreement to the Administrative Agent on
behalf of the Lenders shall not have been obtained prior to October
31, 1998 if such failures, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, or (iii) the
Governmental Authority authorized to approve any such novation or
consent to any such assignment requires a condition to the
effectiveness to any such novation or consent which, if agreed to by
the Company, could reasonably be expected to have a Material Adverse
Effect;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section above with respect to
the Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder) and the 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)
with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, by notice
to the Borrower declare the Commitments to be terminated forthwith, whereupon
the Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice of default to the
Borrower, declare the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) and the Notes to be due and payable forthwith, whereupon the same
shall immediately become due and payable.
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With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Borrower shall at such time deposit in
a cash collateral account opened by the Administrative Agent an amount equal to
the aggregate then undrawn and unexpired amount of such Letters of Credit. The
Borrower hereby grants to the Administrative Agent, for the benefit of the
Issuing Lender and the L/C Participants, a security interest in such cash
collateral to secure all obligations of the Borrower under this Agreement and
the other Credit Documents. Amounts held in such cash collateral account shall
be applied by the Administrative Agent to the payment of drafts drawn under
such Letters of Credit, and the unused portion thereof after all such Letters
of Credit shall have expired or been fully drawn upon, if any, shall be applied
to repay other obligations of the Borrower hereunder and under the Notes. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations
of the Borrower hereunder and under the Notes shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the
Borrower. The Borrower shall execute and deliver to the Administrative Agent,
for the account of the Issuing Lender and the L/C Participants, such further
documents and instruments as the Administrative Agent may request to evidence
the creation and perfection of the within security interest in such cash
collateral account.
EXCEPT AS EXPRESSLY PROVIDED ABOVE IN THIS SECTION, PRESENTMENT,
DEMAND, PROTEST AND ALL OTHER NOTICES OF ANY KIND ARE HEREBY EXPRESSLY
WAIVED.
SECTION 9. THE AGENTS; THE ARRANGER
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints each of the Agents as the agent of such Lender under this Agreement
and the other Credit Documents, and each such Lender irrevocably authorizes
each of the Agents, in such capacity, to take such action on its behalf under
the provisions of this Agreement and the other Credit 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 Credit Documents, together with such
other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, none of the Agents 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 Credit Document or otherwise exist against any
of the Agents.
9.2 Delegation of Duties. The Agents may execute any of their
duties under this Agreement and the other Credit Documents by or through agents
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. None of the Agents shall be responsible for
the negligence or misconduct of any agents or attorneys in-fact selected by it
with reasonable care.
9.3 Exculpatory Provisions. Neither any of the Agents nor any
of their officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall 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
81
other Credit Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Credit Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by such Agent under or in connection with, this Agreement
or any other Credit Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
Credit Document or for any failure of the Borrower to perform its obligations
hereunder or thereunder. None of the Agents 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 Credit Document, or to inspect the properties, books or records of the
Borrower.
9.4 Reliance by 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 the Borrower), independent accountants and other
experts selected by such Agent. The Agents may 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 such
Agent. Except as expressly provided in this Agreement, the Agents shall be
fully justified in failing or refusing to take any action under this Agreement
or any other Credit Document unless it shall first receive such advice or
concurrence of the Required 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. The Agents shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Credit
Documents in accordance with a request of the Required 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 Loans.
9.5 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 such Agent has received notice from a Lender or the Borrower
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 any Agent
receives such a notice, such Agent shall give notice thereof to the Lenders.
Each Agent shall take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Required Lenders; provided that
unless and until such Agent shall have received such directions, such Agent 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 it shall deem
advisable in the best interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither any of the Agents nor any of their
officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by any of the
Agents hereafter taken, including any review of the affairs of the Borrower,
shall be deemed to constitute any representation or warranty by any of the
82
Agents to any Lender. Each Lender represents to each of the Agents that it has,
independently and without reliance upon any of 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 credit worthiness of the Borrower 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 any of 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 Credit Documents, and to make such investigation
as it deems necessary to inform itself as to the business, operations,
property, financial and other condition and credit worthiness of the Borrower.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by any of the Agents hereunder (or copies of which
have been provided to the Administrative Agent pursuant to this Agreement),
none of the Agents shall 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 credit worthiness of
the Borrower which may come into the possession of such Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
9.7 Indemnification. The Lenders agree to indemnify each of
the Agents in their respective capacities 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 Commitment Percentages with respect to
all Types of Loans in effect on the date on which indemnification is sought,
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 Loans) be imposed on, incurred by or asserted
against any of the Agents in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Credit 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 any of the
Agents 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 willful misconduct. The agreements in this subsection shall survive the
payment of the Loans and all other amounts payable hereunder.
9.8 Agents, in Their Individual Capacities. The Agents and
their respective Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower as though the Agents
were not acting in such capacities hereunder and under the other Credit
Documents. With respect to the Loans made or renewed by it and any Note issued
to it and with respect to any Letter of Credit issued or participated in by it,
each Agent shall have the same rights and powers under this Agreement and the
other Credit Documents as any Lender and may exercise the same as though it
were not an Agent, and the terms "Lender" and "Lenders" shall include the
Agents in their individual capacities.
9.9 Successor Administrative Agent, Syndication Agents and
Documentation Agent. The Administrative Agent, the Syndication Agent or the
83
Documentation Agent may resign as Administrative Agent, Syndication Agent or
Documentation Agent, as the case may be, upon 30 days' notice to the Lenders.
If the Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Credit Documents or if Syndication Agent or the
Documentation Agent shall resign as Syndication Agent or Documentation Agent
under this Agreement and the other Credit Documents, then the Required Lenders
shall appoint from among the Lenders a successor agent for the Lenders, which
successor agent (provided that it shall have been approved by the Borrower,
which approval shall not be unreasonably withheld), shall succeed to the
rights, powers and duties of the Administrative Agent or a Syndication Agent or
the Documentation Agent, as the case may be, hereunder. Effective upon such
appointment and approval, the term "Administrative Agent" or a "Syndication
Agent" or "Documentation Agent," as the case may be, shall mean or include such
successor agent, and the former Administrative Agent's or Syndication Agent's
or Documentation Agent's, as the case may be, rights, powers and duties as
Administrative Agent or Syndication Agent or Documentation Agent, as the case
may be, shall be terminated, without any other or further act or deed on the
part of such former Administrative Agent or Syndication Agent or Documentation
Agent, as the case may be, or any of the parties to this Agreement or any
holders of the Loans. After any retiring Administrative Agent's or Syndication
Agent's or Documentation Agent's resignation as Administrative Agent or
Syndication Agent or Documentation Agent, as the case may be, the provisions of
this Section 9 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent or Syndication Agent or
Documentation Agent, as the case may be, under this Agreement and the other
Credit Documents.
9.10 The Arranger. Except as expressly set forth herein, the
Arranger, in its capacity as such, shall have no duties or responsibilities,
and shall incur no liabilities, under this Agreement or the other Credit
Documents.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement nor any
other Credit Document, nor any terms hereof or thereof may be amended,
supplemented or 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 the Borrower written amendments, supplements or modifications hereto
and to the other Credit Documents for the purpose of adding any provisions to
this Agreement or the other Credit Documents or changing in any manner the
rights of the Lenders or of the Borrower 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 the other Credit 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 (i) reduce the amount
or extend any scheduled date of maturity of any Loan, extend the expiration of
any Letter of Credit beyond the Revolving Credit Termination Date, or reduce
the stated rate of any interest or fee payable hereunder or extend the
scheduled date of any payment thereof, in each case without the consent of each
Lender affected thereby, or increase the commitment of any Lender or extend the
expiry of the commitment of any Lender without the consent of such Lender, or
(ii) amend, modify or waive any
84
provision of this subsection or reduce the percentage specified in the
definition of Required Lenders or Requisite Class Lenders, or consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Credit Documents, in each case without the
written consent of all the Lenders, or (iii) release all or substantially all
of the Collateral or release all or substantially all of the Credit Parties
from their Guarantee Obligations under the Credit Document without the consent
of all Lenders, or (iv) amend, modify or waive any provision of Section 9
without the written consent of the then Agents, (v) amend, modify or waive any
provision of subsection 2.1(b), any other provision of this Agreement relating
to the Swing Line Loans or the Swing Line Note without the written consent of
the Swing Line Lender, or (vi) amend, modify or waive any provision of this
Agreement or any other Credit Document which would directly and adversely
affect the Arrangers or the Agents or the Issuing Lender or the Swing Line
Lender without the written consent of the Arranger, the Agents or the Issuing
Lender or the Swing Line Lender, as the case may be. In addition to the
foregoing, no amendment, modification, termination or waiver of any provision
of subsection 2.5 or subsection 2.6 which has the effect of changing any
interim scheduled payments, voluntary or mandatory prepayments (or the
applications thereof) or Commitment reductions applicable to any Class (an
"Affected Class") in a manner that disproportionately disadvantages such Class
relative to the other Class shall be effective without the written concurrence
of the Requisite Class Lenders of the Affected Class (it being understood and
agreed that any amendment, modification, termination or waiver of any provision
which only postpones or reduces any interim scheduled payment, voluntary or
mandatory prepayment or Commitment reduction from those set forth in subsection
2.6 with respect to only one Class shall be deemed to not disproportionately
disadvantage the other Class and, therefore, shall not require the consent of
Requisite Class Lenders of such other Class). Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the
Lenders and shall be binding upon the Borrower, the Lenders, the Agents and the
Issuing Lender and all future holders of the Loans. Any extension of a Letter
of Credit by the Issuing Lender shall be treated hereunder as issuance of a new
Letter of Credit. In the case of any waiver, the Borrower, the Lenders and the
Agents and the Issuing Lender shall be restored to their former positions and
rights hereunder and under the other Credit Documents, and any Default or Event
of Default waived shall be deemed to be cured and not continuing; no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three days after being
deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of the Borrower, the Administrative Agent, the Syndication
Agent and the Documentation Agent, and as set forth in Schedule I in the case
of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto:
The Borrower or
any of its
Subsidiaries: L-3 Communications Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
85
Attention: Xxxxxx XxXxxxx
Fax: (000) 000-0000
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
The Administrative
Agent: Bank of America NT & SA
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
The Documentation
Agent: Xxxxxx Commercial Paper Inc.
3 World Financial Center, 9th Floor
New York, New York 10285
Attention: Xxxxxxxx Xxxxxxx
Fax: (000) 000-0000
The Syndication
Agent: Xxxxxx Commercial Paper Inc.
3 World Financial Center, 9th Floor
New York, New York 10285
Attention: Xxxxxxxx Xxxxxxx
Fax: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.2, 2.4, 2.6, 2.7, 2.12 or 3.2 shall not
be effective until received.
10.3 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 or under the other Credit Documents 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.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Credit Documents
and in any document, certificate or statement delivered pursuant hereto or in
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connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse each of the Agents for all its 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 Credit Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation,
the reasonable fees, charges and disbursements of a single counsel for the
Lenders (in addition to any local counsel), (b) to pay or reimburse each Lender
and each Agent for all its costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the other
Credit Documents and any such other documents, including, without limitation,
the fees and disbursements of counsel to each Lender and of counsel to any
Agent, (c) to pay, indemnify, and hold each Lender and each Agent and each
Issuing Lender 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, the other Credit Documents and any such other documents, and
(d) to pay, indemnify, and hold each Lender and each Arranger, each Agent and
each Issuing Lender 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 or the other Credit Documents or the use of the proceeds of the Loans
in connection with the Transaction, including, without limitation, any of the
foregoing relating to the violation of, noncompliance with or liability under,
any Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries or any of the Properties (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"), it being understood that the
Borrower shall have an obligation hereunder to the Lender or any Agent with
respect to any indemnified liabilities incurred by any Agents, Arranger or the
Issuing Lender or any Lender as a result of any Materials of Environmental
Concern that are first manufactured, emitted, generated, treated, released,
spilled, stored or disposed of on, at or from any Property or any violation of
any Environmental Law, which in any case first occurs on or with respect to
such Property (i) after the Property is transferred to any Agent, Arranger,
Issuing Lender or any Lender or their successors or assigns by foreclosure
sale, deed in lieu of foreclosure, or similar transfer or, following such
transfer, (ii) in connection with, but prior to, the sale, leasing or other
transfer of such Property by such Agent, Arranger, Issuing Lender, or any
Lender or their successors or assigns to one or more third parties; provided,
however, that the Borrower shall have no obligation hereunder to any Agent or
the Issuing Lender or any Lender with respect to otherwise indemnified
liabilities arising from the gross negligence or willful misconduct of such
Agent or the Issuing Lender or any such Lender, or with respect to otherwise
indemnified liabilities following the sale, leasing or other transfer of such
Property to one or more third parties. The agreements in this subsection shall
survive repayment of the Loans and all other amounts payable hereunder.
87
10.6 Successors and Assigns; Participation and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Agents and their respective successors and assigns,
except that the Borrower may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its business and
in accordance with applicable law, at any time sell to one or more banks or
other entities ("Participants") participating interests in any Loan owing to
such Lender or any other interest of such Lender hereunder and under the other
Credit 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
Credit Documents, and the Borrower and the Agents 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 Credit Documents. No Lender
shall be entitled to create in favor of any Participant, in the participation
agreement pursuant to which such Participant's participating interest shall be
created or otherwise, any right to vote on, consent to or approve any matter
relating to this Agreement or any other Credit Document except for those
specified in clauses (i) and (ii) of the proviso to subsection 10.1. The
Borrower agrees that if amounts outstanding under this Agreement 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, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement; 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 10.7(a)
as fully as if it were a Lender hereunder. The Borrower also agrees that each
Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16
with respect to its participation in the Letters of Credit, the Commitments and
the Loans outstanding from time to time as if it was a Lender; provided that in
the case of subsection 2.15, such Participant shall have complied with the
requirements of said Section; 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.
(c) Any Lender may, in the ordinary course of its business and
in accordance with applicable law, at any time and from time to time assign to
any Lender, any affiliate thereof or, in the case of Lender that is an
investment fund which is regularly engaged in making, purchasing or investing
in loans or securities, any other such fund which is under common management
with such Lender, or, with the consent of the Borrower and the Agents (which in
each case shall not be unreasonably withheld), to an additional bank, fund
which is regularly engaged in making, purchasing or investing in loans or
securities, or financial institution (an "Assignee") all or any part of its
rights and obligations under this Agreement and the other Credit Documents
pursuant to an Assignment and Acceptance, substantially in the form of Exhibit
G, executed by such Assignee, such
88
assigning Lender (and, in the case of an Assignee that is not then a Lender or
an affiliate thereof, by the Borrower and the Agents) and delivered to the
Administrative Agent for its acceptance and recording in the Register with a
copy to the Syndication Agent, provided that, in the case of any such
assignment to an additional bank or financial institution, (A) either (x) such
assignment is of all the rights and obligations of the assigning Lender or (y)
the sum of the aggregate principal amount of the Loans, the aggregate amount of
the L/C Obligations and the aggregate amount of the unused Commitments being
assigned and, if such assignment is of less than all of the rights and
obligations of the assigning Lender, the sum of the aggregate principal amount
of the Loans, the aggregate amount of the L/C Obligations and the aggregate
amount of the unused Commitments remaining with the assigning Lender are each
not less than $5,000,000 (or such lesser amount as may be agreed to by the
Borrower and the Agents) and (B) each Assignee which is a Non-U.S. Lender shall
comply with the provisions of clause (A) of subsection 2.15(b) hereof, or, with
the prior written consent of the Borrower, which shall not be unreasonably
withheld, the provisions of clause (B) of subsection 2.15(b) hereof (and, in
either case, with all of the other provisions of subsection 2.15(b) hereof).
Upon such execution, delivery, acceptance and recording, from and after the
effective date determined pursuant to such Assignment and Acceptance, (x) the
Assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein and (y) the assigning Lender
thereunder shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such assigning Lender
shall cease to be a party hereto). Notwithstanding any provision of this
paragraph (c) and paragraph (f) of this subsection, the consent of the Borrower
shall not be required for any assignment which occurs at any time when any of
the events described in Section 8(f) shall have occurred and be continuing.
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in subsection
10.2 a copy of each Assignment and Acceptance delivered to it and a register
(the "Register") for the recordation of the names and addresses of the Lenders
and Commitments of and principal amounts of the Loans of each Type owing to,
each Lender from time to time and the registered owners of the Obligations
evidenced by the Notes. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Administrative Agent and the
Lenders shall treat each Person whose name is recorded in the Register as the
owner of a Loan, a Note or other Obligation hereunder as the owner thereof for
all purposes of this Agreement and the other Credit Documents, notwithstanding
any notice to the contrary. Any assignment of any Loan or other obligation
evidenced by a Note shall be effective only upon appropriate entries with
respect thereto being made in the Register. Any assignment or transfer of all
or part of an Obligation evidenced by a Note shall be registered in the
Register only upon surrender for registration of assignment or transfer of the
Note evidencing such Obligation, duly endorsed by (or accompanied by a written
instrument of assignment or transfer duly executed by) the holder thereof, and
thereupon one or more new Notes shall be issued to the designated Assignee and
the old Note shall be returned by the Administrative Agent to the Borrower
marked "cancelled."
89
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an affiliate thereof, by the Borrower and the Agents)
together with payment to the Administrative Agent of a registration and
processing fee of $3,000 (provided that no such payment shall be required
whenever LCPI or BOA is the assigning Lender), the Administrative Agent shall
(i) promptly accept such Assignment and Acceptance and (ii) on the effective
date determined pursuant thereto record the information contained therein in
the Register and give notice of such acceptance and recordation to the Lenders
and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
subject to the provisions of subsection 10.15, any and all financial
information in such Lender's possession concerning the Borrower and its
Affiliates which has been delivered to such Lender by or on behalf of the
Borrower pursuant to this Agreement or which has been delivered to such Lender
by or on behalf of the Borrower in connection with such Lender's credit
evaluation of the Borrower and its Affiliates prior to becoming a party to this
Agreement.
(g) If, pursuant to this subsection 10.6, any interest in this
Agreement or any Loan is transferred to any Transferee which would be a
Non-U.S. Lender upon the effectiveness of such transfer, the assigning Lender
shall cause such Transferee, concurrently with the effectiveness of such
transfer, (i) to represent to the assigning Lender (for the benefit of the
assigning Lender, the Administrative Agent and the Borrower) that under
applicable law and treaties no U.S. Taxes will be required to be withheld by
the Administrative Agent, the Borrower or the assigning Lender with respect to
any payments to be made to such Transferee in respect of the Loans, (ii) to
furnish to the assigning Lender (and, in the case of any Assignee registered in
the Register, the Administrative Agent and the Borrower such Internal Revenue
Service Forms required to be furnished pursuant to subsection 2.15(b) and (iii)
to agree (for the benefit of the assigning Lender, the Administrative Agent and
the Borrower) to be bound by the provisions of subsection 2.15(b).
(h) 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 any
Federal Reserve Bank in accordance with applicable law.
10.7 Adjustments; Set-off. (a) If any Lender (a "benefitted
Lender") shall at any time receive any payment of all or part of its Loans or
the Reimbursement Obligations owing to it, or interest thereon, 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 Section
8(f), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans or the Reimbursement Obligations owing to it, or interest
thereon, such benefitted Lender shall purchase for cash from the other Lenders
a participating interest in such portion of each such other Lender's Loans or
the Reimbursement Obligations owing to it, 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
90
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.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (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 or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower 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.
10.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), 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 the
Borrower and the Administrative Agent.
10.9 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.
10.10 Integration. This Agreement and the other Credit
Documents represent the agreement of the Borrower, the Agents and the Lenders
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by any Agent or any Lender relative
to subject matter hereof not expressly set forth or referred to herein or in
the other Credit Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 SUBMISSION TO JURISDICTION; WAIVERS. THE BORROWER
HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER CREDIT 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;
91
(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 THE BORROWER AT ITS ADDRESS SET FORTH IN SUBSECTION 10.2
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 XXX 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.
10.13 Acknowledgements. The Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Credit
Documents;
(b) none of the Arrangers, the Agents nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or
in connection with this Agreement or any of the other Credit
Documents, and the relationship between any of the Agents and the
Lenders, on one hand, and the Borrower, on the other hand, in
connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
10.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS, THE
ARRANGERS, THE LENDERS AND THE OTHER PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
10.15 Confidentiality. Each Lender agrees to keep confidential
all non-public information provided to it by the Borrower pursuant to this
Agreement that is designated by the Borrower in writing as confidential;
provided that nothing herein shall prevent any Lender from disclosing any such
information (i) to any Agent or any other Lender or any of its Affiliates, (ii)
to any Transferee or prospective Transferee or to any direct or indirect
contractual counterparties in swap agreements or such contractual
counterparties' professional advisors which receives such information and
agrees to be bound by the confidentiality provisions hereof,
92
(iii) to its employees, directors, agents, attorneys, accountants and other
professional advisors, (iv) upon the request or demand of any Governmental
Authority having jurisdiction over such Lender, (v) in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, (vi) which has been publicly disclosed
other than in breach of this Agreement, or (vii) in connection with the
exercise of any remedy hereunder.
93
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
L-3 Communications Corporation
By:__________________________________
Title:
Xxxxxx Commercial Paper Inc.,
as Documentation Agent, Syndication Agent,
Arranger and as a Lender
By:__________________________________
Title:
Bank of America NT & SA
as Administrative Agent
and as a Lender
By:__________________________________
Title:
CITIBANK, N.A.
as a Lender
By:__________________________________
Title:
CREDIT LYONNAIS, NEW YORK BRANCH
as Co-Agent and as a Lender
By:__________________________________
Title:
FLEET NATIONAL BANK,
as Co-Agent and Lender
By:__________________________________
Name:
Title:
94
MARINE MIDLAND BANK
as Co-Agent and as a Lender
By:__________________________________
Title:
BANK OF NOVA SCOTIA
as Co-Agent and as a Lender
By:__________________________________
Name:
Title:
BANKBOSTON, N.A.
By:__________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON
as Co-Agent and as a Lender
By:__________________________________
Title:
THE FIRST NATIONAL BANK OF CHICAGO
as Co-Agent and as a Lender
By:__________________________________
Title:
THE FUJI BANK, LIMITED NEW YORK BRANCH
as Co-Agent and as a Lender
By:__________________________________
Title:
95
CANADIAN IMPERIAL BANK OF COMMERCE
By:__________________________________
Name:
Title:
CITIBANK, N.A.
as Co-Agent and as a Lender
By:__________________________________
Title:
THE ING CAPITAL SENIOR SECURED
HIGH INCOME FUND, L.P.
as a Lender
By:__________________________________
Title:
KZH HOLDING CORPORATION II
By:__________________________________
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC., as a Lender
By:__________________________________
Title:
KZH HOLDING CORPORATION
By:__________________________________
Name:
Title:
METROPOLITAN LIFE INSURANCE COMPANY
By:__________________________________
Name:
Title:
00
XXX XXXX SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.
its General Partner
By: Oak Hill Securities MGP, Inc.,
its General Partner
By:__________________________________
Name:
Title:
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (a unit of the Chase
Manhattan Bank)
By:__________________________________
Name:
Title:
PARIBAS CAPITAL FUNDING LLC
as a Lender
By:__________________________________
Title:
PILGRIM AMERICA PRIME RATE TRUST
as a Lender
By:__________________________________
Title:
PRIME INCOME TRUST
as a Lender
By:__________________________________
Title:
ROYALTON COMPANY
as a Lender
By:__________________________________
Title:
97
CRESCENT/MACHI PARTNERS L.P.
By TCW Asset Management Company
its Investment Manager,
as a Lender
By:__________________________________
Name:
Title:
TCW Asset Management Company
as Attorney-in Fact for United
Companies Life Insurance Company,
as a Lender
By:__________________________________
Name:
Title:
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By:__________________________________
Name:
Title:
BANK OF MONTREAL
as a Lender
By:__________________________________
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
as a Lender
By:__________________________________
Title:
00
XXXXXX XXXXXXXXX XX XXXXXXXX
XXXXXXXXX
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
BHF BANK AKTIENGESELLSCHAFT
GRAND CAYMAN BRANCH
By:__________________________________
Name:
Title:
CORESTATES BANK, N.A.
as a Lender
By:__________________________________
Title:
XXXXXXX SACHS CREDIT PARTNERS, L.P.
as a Lender
By:__________________________________
Title:
PNC BANK, NATIONAL ASSOCIATION
as a Lender
By:__________________________________
Name:
Title:
99
SKANDINAVISKA ENSKILDA BANKEN
CORPORATION
as a Lender
By:__________________________________
Title:
SOCIETE GENERALE, NEW YORK BRANCH
By:__________________________________
Name:
Title:
THE SUMITOMO BANK, LIMITED
as a Lender
By:__________________________________
Title:
THE BANK OF NEW YORK
as a Lender
By:__________________________________
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION
as a Lender
By:__________________________________
Title:
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By:__________________________________
Name:
Title:
U.S. BANK
as a Lender
By:__________________________________
Title:
000
X-0 XXXXXXXXXXXXXX XXXXXXXXXXX
FIRST AMENDMENT
TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT")
is dated as of August 13, 1997 and entered into by and among L-3
COMMUNICATIONS CORPORATION, a Delaware corporation (the "BORROWER") which is
wholly owned by L-3 COMMUNICATIONS HOLDINGS, INC., a Delaware corporation
("HOLDINGS"), the Lenders party to the Credit Agreement referred to below on
the date hereof (the "LENDERS"), XXXXXX COMMERCIAL PAPER INC. ("LCPI") as
arranger (in such capacity, the "ARRANGER"), LCPI, as syndication agent (in
such capacity, the "SYNDICATION AGENT"), LCPI, as documentation agent (in such
capacity, the "DOCUMENTATION AGENT") and BANK OF AMERICA NT & SA ("BOA"), as
administrative agent for the Lenders (in such capacity, the "ADMINISTRATIVE
AGENT"). All capitalized terms used herein without definition shall have the
same meanings herein as set forth in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Arranger, the
Syndication Agent, the Documentation Agent and the Administrative Agent are
parties to the Credit Agreement dated as of April 30, 1997 (the "CREDIT
AGREEMENT"); and
WHEREAS, the parties hereto wish to amend the Credit
Agreement as herein provided.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto
agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT
1.1. The definition of L/C Commitment in Section 1.1 of the
Credit Agreement is hereby stricken and amended to read as follows:
""L/C Commitment": $30,000,000."
1.2. The second sentence of Section 2.2 of the Credit
Agreement is hereby stricken and amended to read as follows:
"Each borrowing under the Commitments shall be in
an amount equal to (x) in the case of Base Rate Loans (other than
Swing Line Loans), $2,000,000 or a whole multiple of $100,000 in
excess thereof (or, if the then Available Commitments are less than
$2,000,000, such lesser amount), (y) in the case of Swing Line Loans,
as provided in subsection 2.1(b)(i) and (z) in the case of Eurodollar
Loans, $5,000,000 or a whole multiple of $100,000 in excess thereof."
1.3. The last sentence of Section 2.6(a) of the Credit
Agreement is hereby stricken and amended to read as follows:
"Partial prepayments shall be in an aggregate
principal amount of $2,000,000 or a whole multiple of $100,000 in
excess thereof."
1.4. Section 2.6(b)(iv) of the Credit Agreement is hereby
amended by adding the
following sentence to the end of the Section:
"Mandatory prepayments shall not be subject to any
minimum amount requirement."
1.5. Section 2.8 of the Credit Agreement is hereby stricken
and amended to read as follows:
"2.8 Minimum Amounts and Maximum Number 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 equal to $5,000,000 or a
whole multiple of $100,000 in excess thereof. All Loans hereunder may
be converted or continued into Base Rate Loans without reference to
the minimum principal amount requirements for new Base Rate
borrowings set forth in Section 2.2 above. In no event shall there be
more than 15 Eurodollar Tranches outstanding at any time.
1.6. The second sentence of Section 3.5(a) of the Credit
Agreement is hereby stricken and amended to read as follows:
"The Issuing Lender shall provide notice to the
Borrower on each Business Day on which a draft is presented
indicating 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."
1.7. Section 6.1 of the Credit Agreement is hereby
stricken and amended to read as follows:
"(a) as soon as available, but in any event within
95 days after the end of each fiscal year of the Borrower, (i) a copy
of the consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such year and the related
consolidated statements of income and retained earnings and 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 and (ii) an unaudited
unconsolidated balance sheet of Holdings prepared on an equity basis
(without footnote disclosure) certified by a Responsible Officer of
Holdings as being fairly stated in all material respects;
(b) as soon as available, but in any event not
later than 50 days after the end of each of the first three quarterly
periods of each fiscal year of the Borrower, the unaudited
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated statements of income and retained earnings and of cash
flows of the Borrower and its consolidated Subsidiaries for such
quarter and the portion of the fiscal year through the end of such
quarter, setting forth in each case in comparative form the figures
for the previous year, certified by a Responsible Officer as being
fairly stated in all material respects (subject to normal year-end
audit adjustments)."
1.8. Exhibit G to the Credit Agreement is hereby stricken an
amended to read as Exhibit A hereto.
2
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon
the satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "FIRST
AMENDMENT EFFECTIVE DATE"):
2.1. On or before the First Amendment Effective Date, the
Borrower shall have delivered to Administrative Agent executed copies of this
Amendment.
2.2. On or before the First Amendment Effective Date, the
Required Lenders shall have delivered to the Administrative Agent an executed
original or facsimile of a counterpart of this Amendment.
2.3. The Boards of Directors of Holdings and the Borrower
shall have duly authorized the execution, delivery and performance of this
Amendment.
SECTION 3. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and
to amend the Credit Agreement in the manner provided herein, the Borrower
represents and warrants to each Lender that the following statements are true,
correct and complete:
3.1. Corporate Power and Authority. The Borrower has all
requisite corporate power and authority to enter into this Amendment and to
carry out the transactions contemplated by, and perform its obligations under,
the Credit Agreement as amended by this Amendment (the "AMENDED AGREEMENT").
3.2. Authorization of Amendment. The execution and delivery
of this Amendment has been duly authorized by all necessary corporate action
on the part of the Borrower.
3.3. No Conflict. The execution and delivery by the Borrower
of this Amendment and the performance by the Borrower of the Amended Agreement
by the Borrower does not and will not (i) violate any provision of any law or
any governmental rule or regulation applicable to the Borrower or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws of the
Borrower or any of its Subsidiaries or any order, judgment or decree of any
court or other agency of government binding on the Borrower or any of its
Subsidiaries, (ii) conflict with, result in a breach of or constitute (with
due notice or lapse of time or both) a default under any contractual
obligation of the Borrower or any of its Subsidiaries, (iii) result in or
require the creation or of any Lien upon any of the properties or assets of
the Borrower or any of its Subsidiaries (other than Liens created under any of
the Credit Documents in favor of the Administrative Agent on behalf of
Lenders), or (iv) require any approval of stockholders or any approval or
consent of any Person under any contractual obligation of the Borrower or any
of its Subsidiaries.
3.4. Governmental Consents. The execution and delivery by
the Borrower of this Amendment and the performance by the Borrower of the
Amended Agreement by the Borrower does not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body.
3.5. Binding Obligation. This Amendment and the Amended
Agreement have been
3
duly executed and delivered by the Borrower and, when executed and delivered,
will be the legally valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms, except as may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limiting creditors' rights generally or by equitable
principles relating to enforceability.
3.6. Incorporation of Representations and Warranties From
Credit Agreement. The representations and warranties contained in Section 4 of
the Credit Agreement are and will be true, correct and complete in all
material respects on and as of the First Amendment Effective Date to the same
extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in
which case they were true, correct and complete in all material respects on
and as of such earlier date.
3.7. Absence of Default. No event has occurred and is
continuing or will result from the consummation of the transactions
contemplated by this Amendment that would constitute an Event of Default or a
potential Event of Default.
SECTION 4. MISCELLANEOUS
4.1. Reference to and Effect on the Credit Agreement and the
other Credit Documents.
(a) On and after the First Amendment Effective
Date, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import referring to
the Credit Agreement, and each reference in the other Credit
Documents to the "Credit Agreement", "thereunder", "thereof" or words
of like import referring to the Credit Agreement shall mean and be a
reference to the Amended Agreement.
(b) Except as specifically amended by this
Amendment, the Credit Agreement and the other Credit Documents shall
remain in full force and effect and are hereby ratified and
confirmed.
(c) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute
a waiver of any provision of, or operate as a waiver of any right,
power or remedy of the Administrative Agent or any Lender under, the
Credit Agreement or any of the other Credit Documents.
4.2. Fees and Expenses. The Borrower acknowledges that all
costs, fees and expenses as described in Section 9 of the Credit Agreement
incurred by Administrative Agent and its counsel with respect to this
Amendment and the documents and transactions contemplated hereby shall be for
the account of the Borrower.
4.3. Headings. Section and subsection headings in this
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given any
substantive effect.
4.4. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
4
4.5. SUBMISSION TO JURISDICTION; WAIVERS. THE BORROWER HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER
CREDIT 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 THE BORROWER AT ITS ADDRESS SET FORTH IN
SECTION 10.2 OF THE CREDIT AGREEMENT 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 XXX 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.
4.6. Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the
negotiation, execution and delivery of this Agreement;
(b) none of the Arrangers, the Agents nor any
Lender has any fiduciary relationship with or duty to the Borrower
arising out of or in connection with this Agreement, and the
relationship between any of the Agents and the Lenders, on one hand,
and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or otherwise
exists by virtue of the transactions contemplated hereby among the
Lenders or among the Borrower and the Lenders.
4.7. WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS, THE
ARRANGERS, THE LENDERS AND THE OTHER PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
5
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
4.8. Confidentiality. Each Lender agrees to keep
confidential all non-public information provided to it by the Borrower
pursuant to this Agreement that is designated by the Borrower in writing as
confidential (excluding any such information already in the possession of such
Lender or provided to such Lender by a third party not in violation of this
Agreement which, in either case, is not, to the knowledge of such Lender,
subject to a confidentiality agreement); provided that nothing herein shall
prevent any Lender from disclosing any such information (i) to any Agent or
any other Lender or any of its Affiliates, (ii) to any Transferee or
prospective Transferee or to any direct or indirect contractual counterparties
in swap agreements or such contractual counterparties' professional advisors
which receives such information and agrees to be bound by the confidentiality
provisions hereof, (iii) to its employees, directors, agents, attorneys,
accountants and other professional advisors, (iv) upon the request or demand
of any Governmental Authority having jurisdiction over such Lender, (v) in
response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (vi) which has been
publicly disclosed other than in breach of this Agreement, or (vii) in
connection with the exercise of any remedy hereunder.
4.9. Counterparts; Effectiveness. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but
one and the same instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so that all
signature pages are physically attached to the same document. This Amendment
shall become effective upon the execution of a counterpart hereof by the
Borrower, the Required Lenders, the Arranger, the Syndication Agent, the
Documentation Agent and the Administrative Agent and receipt by the Borrower
and the Administrative Agent of written or telephonic notification of such
execution and authorization of delivery thereof.
6
In WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
L-3 COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxxx X. X'Xxxxx
-----------------------
Name: Xxxxxxxx X'Xxxxx
Title: Vice President & Treasurer
XXXXXX COMMERCIAL PAPER INC.,
as Documentation Agent, Syndication
Agent, Arranger and as a Lender
By: /S/ Xxxxxxx Xxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative
Agent
By: /s/ Xxxxxxx Xxxxxx
-----------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Lender
By: /s/ Xxxxx X. Xxxxxx
-----------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
7
CREDIT LYONNAIS, NEW YORK BRANCH
as Co-Agent and as a Lender
By: /s/ Xxxxxx Xxx
-----------------------
Name: Xxxxxx Xxx
Title:
FLEET NATIONAL BANK,
as Co-Agent and Lender
By: /s/ Xxxxx X. Xxxxxxx
-----------------------
Name: XXXXX X. XXXXXXX
Title: VICE PRESIDENT
MARINE MIDLAND BANK
as Co-Agent and as a Lender
By:/s/ XX Xxxxx
-----------------------
Name: XX Xxxxx
Title:
BANK OF NOVA SCOTIA,
as Co-Agent and as a Lender
By: /s/ J.R. Trimble
-----------------------
Name: J.R. Trimble
Title: Senior Relationship Manager
KZH - CRESCENT CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Agent
8
BANKBOSTON, N.A.
By: /s/ Xxxxxxx X.X. Xxxxx
-----------------------
Name: Xxxxxxx X.X. Xxxxx
Title: Managing Director
THE FIRST NATIONAL BANK OF CHICAGO
as Co-Agent and as a Lender
By: /s/ Xxx X. Xxxx
-----------------------
Name: Xxx X. Xxxx
Title: Vice President
THE FUJI BANK, LIMITED NEW YORK BRANCH
as Co-Agent and as a Lender
By: /s/ Xxxxx Xxxxxxxx
-----------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President & Manager
CITIBANK, N.A.
as Co-Agent and as a Lender
By: /s/ Xxxx X. Xxxxxxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
9
THE ING CAPITAL SENIOR SECURED
HIGH INCOME FUND, L.P.
as a Lender
By:
-----------------------
Name:
Title:
KZH - ING-1 CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Agent
KZH - SOLEIL CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Agent
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.,
as a Lender
By:
-----------------------
Name:
Title:
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
00
XXX XXXX SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.
its General Partner
By: Oak Hill Securities MGP, Inc.,
its General Partner
By:
-----------------------
Name:
Title:
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (a unit of the Chase
Manhattan Bank)
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
PARIBAS CAPITAL FUNDING LLC
as a Lender
By:
-----------------------
Name:
Title:
PRIME INCOME TRUST
as a Lender
By:
-----------------------
Name:
Title:
11
ROYALTON COMPANY, By Pacific
Investment Management Company, as its
Investment Advisor
By: /s/ Xxx Xxxxxxx
-----------------------
Name: Xxx Xxxxxxx
Title: Vice President
CRESCENT/MACHI PARTNERS L.P.
By: TCW Asset Management Company,
its Investment Manager,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
TCW ASSET MANAGEMENT COMPANY
as Attorney-in-Fact for United
Companies Life Insurance Company, as
a Lender
By:
-----------------------
Name:
Title:
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & Director
12
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
as a Lender
By: /s/ Xxxx X. Xxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
NATEXIS BANQUE BFCE F/K/A
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By: G.K. DT
-----------------------
Name: Xxxxx Xxxxxx
Title: Vice President
By: FL
-----------------------
Name: VP
Title: VP
BHF BANK AKTIENGESELLSCHAFT
GRAND CAYMAN BRANCH
By: /s/ Xxxx Xxxxx /s/ Xxxx Xxxxx
-----------------------------
Name: Xxxx Xxxxx Xxxx Xxxxx
Title: AVP AVP
CORESTATES BANK, N.A.
as a Lender
By: /s/ Xxxxxxx X. Panarzse
-----------------------
Name: Xxxxxxx X. Panarzse
Title: Vice President
13
XXXXXXX SACHS CREDIT PARTNERS, L.P.
as a Lender
By:
-----------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
as a Lender
By:
-----------------------
Name:
Title:
SKANDINAVISKA ENSKILDA BANKEN
CORPORATION
as a Lender
By: /s/ Sveriger Johansson
-----------------------
Name: Sveriger Johansson
Title: Vice President
SOCIETE GENERALE, NEW YORK BRANCH
By: /s/ Xxxx XX Xxxxxx
-----------------------
Name: Xxxx XX Xxxxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED
as a Lender
By: /s/ Xxxxxx X. Tata
-----------------------
Name: Xxxxxx X. Tata
Title: Senior Vice President
00
XXX XXXX XX XXX XXXX
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx, Xx
--------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION
as a Lender
By: /s/ Xxxxxxxxx Xxxxxxx
-----------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Senior Vice President
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ Xxxxx Xxxxxxxx
-----------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
U.S. BANK
as a Lender
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
INDOSUEZ CAPITAL FUNDING II, LTD.
by Indosuez Capital as Portfolio Advisor
By: /s/ Xxxxxxxxx Xxxxxxxxx
-----------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Vice President
15
SENIOR DEBT PORTFOLIO
c/o BOSTON MANAGEMENT AND RESEARCH
as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
-----------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
PAMCO CAYMAN LTD.
By: Protective Asset Management, L.L.C.,
as Collateral Manager
By: /s/ Xxxxx Xxxxxxx
-----------------------
Name: Xxxxx Xxxxxxx
Title: CFA, CPA President Protective
Asset Management Company
FLOATING RATE PORTFOLIO
By: Chancellor LGT Senior Secured
Management, Inc., as attorney in
fact
By: /s/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
16
[BANK OF AMERICA LOGO]
January 13, 1998
To: Lender Group Via Facsimile
Xxxxxxxx X'Xxxxx, Vice President and Treasurer
L-3 Communications Corporation
REF: L-3 COMMUNICATIONS CORPORATION
Please be advised that the Second Amendment to the Credit Agreement dated
April 30, 1997 among L-3 Communications Corporation (the "Borrower"), the
Lenders party to the Credit Agreement,
Xxxxxx Commercial Paper Inc. as Arranger, Syndication Agent and Documentation
Agent and Bank of America NT&SA as Administrative Agent, was executed by the
Required Lenders, the Borrower and the Agents and became effective as of
January 12, 1998.
An executed copy of the Second Amendment will be sent to you shortly.
Regards,
/s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Vice President
(000) 000-0000
cc: Xxxxxxx XxXxxxxxx, Xxxxxx & Xxxxxxx
L-3 COMMUNICATIONS CORPORATION
SECOND AMENDMENT
TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT")
is dated as of January 12, 1998 and entered into by and among L-3
COMMUNICATIONS CORPORATION, a Delaware corporation (the "BORROWER") which is
wholly owned by L-3 COMMUNICATIONS HOLDINGS, INC., a Delaware corporation
("HOLDINGS"), the Lenders party to the Credit Agreement referred to below on
the date hereof (the "LENDERS"), XXXXXX COMMERCIAL PAPER INC. ("LCPI") as
arranger (in such capacity, the "ARRANGER"), LCPI, as syndication agent (in
such capacity, the "SYNDICATION AGENT"), LCPI, as documentation agent (in such
capacity, the "DOCUMENTATION AGENT") and BANK OF AMERICA NT & SA ("BOA"), as
administrative agent for the Lenders (in such capacity, the "ADMINISTRATIVE
AGENT"). All capitalized terms used herein without definition shall have the
same meanings herein as set forth in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Arranger, the
Syndication Agent, the Documentation Agent and the Administrative Agent are
parties to the Credit Agreement dated as of April 30, 1997, as amended August
13, 1997, (the "CREDIT AGREEMENT"); and
WHEREAS, the parties hereto wish to amend the Credit
Agreement as herein provided.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT
1.1. The definition of L/C Commitment in Section 1.1 of the
Credit Agreement is hereby stricken and amended to read as follows:
""L/C Commitment": $50,000,000."
1.2. Section 7.9 of the Credit Agreement is hereby stricken
and amended to read as follows:
"7.9 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) loans to officers of the Borrower listed on Schedule
7.9(c) in aggregate principal amounts outstanding not to exceed the
respective amounts set forth for such officers on said Schedule;
(d) loans and advances to employees of the Borrower or its
Subsidiaries for travel, entertainment and relocation expenses in the
ordinary course of business in an aggregate amount for the Borrower
and its Subsidiaries not to exceed $1,000,000 at any one time
outstanding;
(e) investments by the Borrower in its Subsidiaries that are
Credit Parties and investments by such Subsidiaries in the Borrower
and in other Subsidiaries that are Credit Parties;
(f) so long as no Event of Default has occurred and is
continuing, loans by the Borrower to its employees (other than any
Principals or their Related Parties) in connection with (i) management
incentive plans and (ii) management stock purchase plans, in an
aggregate amount not to exceed $3,000,000;
(g) Investments in existence on the Closing Date set forth on
Schedule 7.9(g) and extensions, renewals, modifications or
restatements or replacements thereof; provided that no such extension,
renewal, modification or restatement shall increase the amount of the
original loan, advance or investment;
(h) promissory notes and other similar non-cash consideration
received by the Borrower and its Subsidiaries in connection with the
dispositions permitted by subsection 7.6(b);
(i) Investments required by subsection 6.11 and Investments
permitted by subsection 7.6(b) and subsection 7.6(j);
(j) 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;
(k) so long as no Event of Default has occurred and is
continuing, in addition to the foregoing, Investments in an aggregate
amount not exceeding $15,000,000 (at cost, without regard to any write
down or write up thereof) at any one time outstanding;
(l) Investments in an aggregate amount not exceeding (i)
$80.0 million in cash and (ii) the assumption or replacement of $20.0
million of letters of credit for performance (in each case, at cost,
without regard to any write down or write up thereof) at any one time
outstanding made pursuant to the Asset Purchase Agreement dated
December 22, 1997 between the Borrower and Allied Signal pursuant to
which the Borrower is purchasing all of the assets of Ocean Systems, a
division of Allied Signal ("OCEAN SYSTEMS"); and
(m) Investments in an aggregate amount not exceeding (i)
$27.0 million in cash and (ii) the assumption or replacement of $22.0
million of letters of credit for performance (in each case, at cost,
without regard to any write down or write up thereof) at any one time
outstanding made pursuant to the Asset Purchase Agreement dated
December 19, 1997 between the Borrower and
2
California Microwave Inc. pursuant to which the Borrower is purchasing
all of the assets of Satellite Transmission Systems, a division of
California Microwave Inc. ("TRANSMISSION SYSTEMS"); and
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon
the satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "SECOND
AMENDMENT EFFECTIVE DATE"):
2.1. On or before the Second Amendment Effective Date, the
Borrower shall have delivered to Administrative Agent executed copies of this
Amendment.
2.2. On or before the Second Amendment Effective Date, the
Required Lenders shall have delivered to the Administrative Agent an executed
original or facsimile of a counterpart of this Amendment.
2.3 On or before the Second Amendment Effective Date, the
Borrower shall have delivered executed copies of all documents required in
order to comply with the requirements of Section 6.10 of the Credit Agreement
(without giving effect to the 30 day delivery period referenced in such Section
6.10).
2.4. The Boards of Directors of Holdings and the Borrower
shall have duly authorized the execution, delivery and performance of this
Amendment.
SECTION 3. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and
to amend the Credit Agreement in the manner provided herein, the Borrower
represents and warrants to each Lender that the following statements are true,
correct and complete:
3.1. Corporate Power and Authority. The Borrower has all
requisite corporate power and authority to enter into this Amendment and to
carry out the transactions contemplated by, and perform its obligations under,
the Credit Agreement as amended by this Amendment (the "AMENDED AGREEMENT").
3.2. Authorization of Amendment. The execution and delivery
of this Amendment has been duly authorized by all necessary corporate action on
the part of the Borrower.
3.3. No Conflict. The execution and delivery by the Borrower
of this Amendment and the performance by the Borrower of the Amended Agreement
by the Borrower does not and will not (i) violate any provision of any law or
any governmental rule or regulation applicable to the Borrower or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws of the
Borrower or any of its Subsidiaries or any order, judgment or decree of any
court or other agency of government binding on the Borrower or any of its
Subsidiaries, (ii) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any contractual obligation of
the Borrower or any of its Subsidiaries, (iii) result in or require the
creation or of any Lien upon any of the properties or assets of
3
the Borrower or any of its Subsidiaries (other than Liens created under any of
the Credit Documents in favor of the Administrative Agent on behalf of
Lenders), or (iv) require any approval of stockholders or any approval or
consent of any Person under any contractual obligation of the Borrower or any
of its Subsidiaries.
3.4. Governmental Consents. The execution and delivery by the
Borrower of this Amendment and the performance by the Borrower of the Amended
Agreement by the Borrower does not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body.
3.5. Binding Obligation. This Amendment and the Amended
Agreement have been duly executed and delivered by the Borrower and, when
executed and delivered, will be the legally valid and binding obligations of
the Borrower, enforceable against the Borrower in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
3.6. Incorporation of Representations and Warranties From
Credit Agreement. The representations and warranties contained in Section 4 of
the Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Second Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
3.7. Absence of Default. No event has occurred and is
continuing or will result from the consummation of the transactions
contemplated by this Amendment that would constitute an Event of Default or a
potential Event of Default.
SECTION 4. MISCELLANEOUS
4.1. Reference to and Effect on the Credit Agreement and the
other Credit Documents.
(a) On and after the Second Amendment Effective
Date, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import referring to
the Credit Agreement, and each reference in the other Credit Documents
to the "Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement shall mean and be a reference
to the Amended Agreement.
(b) Except as specifically amended by this
Amendment, the Credit Agreement and the other Credit Documents shall
remain in full force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any right, power
or remedy of the Administrative Agent or any Lender under, the Credit
Agreement or any of the other Credit Documents.
4
4.2. Fees and Expenses. The Borrower acknowledges that all
costs, fees and expenses as described in Section 9 of the Credit Agreement
incurred by Administrative Agent and its counsel with respect to this Amendment
and the documents and transactions contemplated hereby shall be for the account
of the Borrower.
4.3. Headings. Section and subsection headings in this
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given any
substantive effect.
4.4. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
4.5. SUBMISSION TO JURISDICTION; WAIVERS. THE BORROWER HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER CREDIT
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 THE BORROWER AT ITS ADDRESS SET FORTH IN
SECTION 10.2 OF THE CREDIT AGREEMENT 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 XXX 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.
5
4.6. Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement;
(b) none of the Arrangers, the Agents nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or
in connection with this Agreement, and the relationship between any of
the Agents and the Lenders, on one hand, and the Borrower, on the
other hand, in connection herewith or therewith is solely that of
debtor and creditor; and
(c) no joint venture is created hereby or otherwise exists by
virtue of the transactions contemplated hereby among the Lenders or
among the Borrower and the Lenders.
4.7. WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS, THE
ARRANGERS, THE LENDERS AND THE OTHER PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
4.8. Confidentiality. Each Lender agrees to keep confidential
all non-public information provided to it by the Borrower pursuant to this
Agreement that is designated by the Borrower in writing as confidential
(excluding any such information already in the possession of such Lender or
provided to such Lender by a third party not in violation of this Agreement
which, in either case, is not, to the knowledge of such Lender, subject to a
confidentiality agreement); provided that nothing herein shall prevent any
Lender from disclosing any such information (i) to any Agent or any other
Lender or any of its Affiliates, (ii) to any Transferee or prospective
Transferee or to any direct or indirect contractual counterparties in swap
agreements or such contractual counterparties' professional advisors which
receives such information and agrees to be bound by the confidentiality
provisions hereof, (iii) to its employees, directors, agents, attorneys,
accountants and other professional advisors, (iv) upon the request or demand of
any Governmental Authority having jurisdiction over such Lender, (v) in
response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (vi) which has been
publicly disclosed other than in breach of this Agreement, or (vii) in
connection with the exercise of any remedy hereunder.
4.9. Counterparts; Effectiveness. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original (whether by facsimile or otherwise, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and
attached to a single counterpart so that all signature pages are physically
attached to the same document. This Amendment shall become effective upon the
execution of a counterpart hereof by the Borrower, the Required Lenders, the
Arranger, the Syndication Agent, the Documentation Agent and the Administrative
Agent and receipt by the Borrower and the Administrative Agent of written or
telephonic notification of such execution and authorization of delivery
thereof.
[Signature Page(s) Follow]
6
L-3 COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxxx X. X'Xxxxx
----------------------------------------
Name: Xxxxxxxx X. X'Xxxxx
Title: Vice President and Treasurer
XXXXXX COMMERCIAL PAPER INC.,
as Documentation Agent, Syndication Agent,
Arranger and as a Lender
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
BANK OF AMERICA NT & SA
as Administrative Agent
and as a Lender
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx x. Xxxxxx
Title: Managing Director
BANKBOSTON N.A.
By: /s/ Xxxxxxx X.X. Xxxxx
----------------------------------------
Name: Xxxxxxx X.X. Xxxxx
Title: Managing Director
THE BANK OF NEW YORK
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President
BHF-BANK AKTIEGESELLSCHAFT
By: /s/ Xxx Xxxxxxxxxxx
----------------------------------------
Name: Xxx Xxxxxxxxxxx
Title: Assistant Vice President
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: A.T.
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
as a Lender
By: /s/ Xxxxx XxXxxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
CITIBANK, N.A.
as Co-Agent and as a Lender
By: /s/ Xxxx X. Xxxxxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
CORESTATES BANK, N.A.
as a Lender
By: /s/ Xxxx X. Xxxxx
----------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
as Co-Agent and as a Lender
By: /s/ Xxxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxxx Xxxxx
Title: First Vice President-Manager
THE FIRST NATIONAL BANK OF CHICAGO
as Co-Agent and as a Lender
By: /s/ Xxx X. Xxxxxxx
----------------------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
FLEET NATIONAL BANK
as Co-Agent and Lender
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX XXXXX CREDIT PARTNERS, L.P.
as a Lender
By: /s/ Xxxx Lubein
----------------------------------------
Name: Xxxx Lubein
Title:
KZH-CRESCENT CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Agent
KZH-ING-1 CORPORATION (formerly
known as
KZH HOLDING CORPORATION II)
By: Xxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Aurthorized Agent
KZH-SOLEIL CORPORATION (formerly
known as
KZH HOLDING CORPORATION)
By: Xxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Agent
XXXXXX SYNDICATED LOANS, INC.
By: /s/ Xxxxxx X. Xxx
----------------------------------------
Name: Xxxxxx X. Xxx
Title: Vice President
MARINE MIDLAND BANK
as Co-Agent and as a Lender
By: /s/ X.X. Xxxxx
----------------------------------------
Name: X.X. Xxxxx
Title: Authorized Signatory
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
THE MITSUBISHI TRUST AND BANKING
CORPORATION
as a Lender
By: /s/ Xxxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Senior Vice President
NATEXIS BANQUE BFCE, Formerly
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By: /s/ G.K. DJ
--------------
Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Associate
PAMCO CAYMAN LTD.
By: Protective Asset Management, L.L.C.,
as Collateral Manager
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx CFA, CPA
Title: President Protective Asset Management
Company
PRIME INCOME TRUST
as a Lender
By: /s/
----------------------------------------
Name:
Title:
ROYALTON COMPANY
as a Lender
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
SENIOR DEBT PORTFOLIO
c/o BOSTON MANAGEMENT AND RESEARCH
as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
----------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
SKANDINAVISKA ENSKILDA BANKEN
CORPORATION
as a Lender
By: /s/ Sveriger Johansson
----------------------------------------
Name: Sveriger Johansson
Title: Vice President
By: /s/ Xxxxxx X. Montenuero
----------------------------------------
Name: Xxxxxx X. Montenuero
Title: Vice President
SOCIETE GENERALE, NEW YORK BRANCH
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ Xxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
U.S. BANK National Association
as a Lender
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Commercial Banking Officer
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & Director
XXX XXXXXX CLO1, LIMITED
BY: XXX XXXXXX AMERICAN
CAPITAL MANAGEMENT, INC.
as Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & Director
L-3 COMMUNICATIONS CORPORATION
THIRD AMENDMENT
TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is dated
as of February 19, 1998 and entered into by and among L-3 COMMUNICATIONS
CORPORATION, a Delaware corporation (the "BORROWER"), certain of the Lenders
party to the Credit Agreement referred to below on the date hereof (the
"REQUIRED LENDERS"), XXXXXX COMMERCIAL PAPER INC. ("LCPI"), as arranger (in
such capacity, the "ARRANGER"), LCPI, as syndication agent (in such capacity,
the "SYNDICATION AGENT"), LCPI, as documentation agent (in such capacity, the
"DOCUMENTATION AGENT"), and BANK OF AMERICA NT & SA ("BOA"), as administrative
agent for the Lenders (in such capacity, the "ADMINISTRATIVE AGENT") and as
Issuing Lender (in such capacity, the "Issuing Lender"). All capitalized terms
used herein without definition shall have the same meanings herein as set forth
in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Arranger, the Syndication
Agent, the Documentation Agent, the Administrative Agent and the Issuing Lender
are parties to the Credit Agreement, dated as of April 30, 1997, as previously
amended by that certain First Amendment to Credit Agreement, dated as of August
13, 1997, and that certain Second Amendment to Credit Agreement, dated as of
January 12, 1998 (collectively, the "CREDIT AGREEMENT"); and
WHEREAS, the parties hereto wish to amend the Credit Agreement as
herein provided.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT
(a) The definition of "Business Day" in subsection 1.1 of the Credit
Agreement is hereby amended by adding the words "or Foreign L/Cs" after the
phrase "relates to Eurodollar Loans" therein.
(b) The definition of "Consolidated EBITDA" in subsection 1.1 of the
Credit Agreement is hereby stricken and amended to read as follows:
""Consolidated EBITDA": as of the last day of any fiscal quarter,
Consolidated Net Income of the Borrower, its Subsidiaries and, without
duplication, the Acquired Businesses (excluding, without duplication,
(x) extraordinary gains and losses in accordance with GAAP, (y) gains
and losses in connection with asset dispositions
whether or not constituting extraordinary gains and losses and (z)
gains or losses on discontinued operations) for such period, plus (i)
Consolidated Interest Expense of the Borrower, its Subsidiaries and,
without duplication, the Acquired Businesses for such period, plus
(ii) to the extent deducted in computing such Consolidated Net Income
of the Borrower, its Subsidiaries and, without duplication, the
Acquired Businesses, the sum of income taxes, depreciation and
amortization for the four fiscal quarters ended on such date; provided
that for any calculation of Consolidated EBITDA for any fiscal period
ending during the first three full fiscal quarters following March 31,
1997, Consolidated EBITDA shall be deemed to be Consolidated EBITDA
from March 31, 1997 to the last day of such period multiplied by a
fraction the numerator of which is 365 and the denominator of which is
the number of days from March 31, 1997 to the last day of such
period."
(c) The definition of "Consolidated Net Income" in subsection 1.1 of
the Credit Agreement is hereby stricken and amended to read as follows:
""Consolidated Net Income": for any Person and for any fiscal period,
net income of such Person, determined on a consolidated basis in accordance
with GAAP."
(d) The definition of "Excess Cash Flow" in subsection 1.1 of the
Credit Agreement is hereby amended by deleting each reference to "Consolidated
Net Income" and inserting the words "Consolidated Net Income for the Borrower
and its Subsidiaries" therefor.
(e) The definition of "L/C Commitment" in subsection 1.1 of the Credit
Agreement is hereby stricken and amended to read as follows:
""L/C Commitment": $200,000,000."
(f) The definition of "L/C Obligations" in subsection 1.1 of the
Credit Agreement is hereby amended by inserting the words "the Dollar
Equivalent of" at the beginning of each of clause (a) and clause (b) of such
definition.
(g) The definition of "Revolving Credit Commitment" in subsection 1.1
of the Credit Agreement is hereby amended by (i) deleting the word "initially"
in the last line of such definition and (ii) deleting the reference to
"$100,000,000" in the last line of such definition and inserting "$200,000,000"
therefor.
(h) The definition of "Revolving Credit Loan Exposure" in subsection
1.1 of the Credit Agreement is hereby stricken and amended to read as follows:
""Revolving Credit Loan Exposure": with respect to any Lender as of
date of determination, (i) if there are no outstanding Letters of
Credit or Revolving Credit Loans, that Lender's Revolving Credit
Commitment, and (ii) otherwise, the sum of (a) the aggregate
outstanding principal amount of the Revolving Credit Loans of that
Lender
2
plus (b) in the event that Lender is an Issuing Lender, the Dollar
Equivalent of the aggregate stated or face amount in respect of all
Letters of Credit issued by that Lender and outstanding (in each case
net of any participations purchased by other Lenders in such Letters
of Credit or any unreimbursed drawings thereunder) plus (c) in the
event that such Lender is the Swing Line Lender, the aggregate
principal amount of Swing Line Loans made by such Lender then
outstanding (net of any participations purchased by other Lenders in
such Swing Line Loans) plus (d) the Dollar Equivalent of the aggregate
amount of all participations purchased by that Lender in any
outstanding Swing Line Loans or Letters of Credit or any unreimbursed
drawings under any Letters of Credit."
(i) The definition of "Subordinated Debt" in subsection 1.1 of the
Credit Agreement is hereby amended by inserting at the end of such definition
the following: "and indebtedness outstanding under the New Subordinated Notes,
if any"
(j) The definition of "Transaction Documents" in subsection 1.1 of the
Credit Agreement is hereby stricken and amended to read as follows:
"Transaction Documents": (i) the Transaction Agreement, the
Schedules thereto and the documents set forth on Schedule IV hereto,
(ii) the Equity Documents, (iii) the Subordinated Debt Documents and
(iv) following the issuance of the New Subordinated Notes, the New
Subordinated Debt Documents."
(k) The following definitions are hereby inserted in subsection 1.1 of
the Credit Agreement in the appropriate alphabetical order:
""Acquired Business": a company or business unit acquired by the
Borrower or any of its Subsidiaries, provided that the Borrower has
delivered to the Administrative Agent historical financial statements
of such company or business unit prepared in accordance with GAAP.
""Agreement Currency": as defined in subsection 10.16(b)."
"Alternative Currency": any currency which as of the time of any
issuance or renewal, as applicable, of a Foreign L/C is freely
tradeable and convertible into Dollars and has been approved as an
"Alternative Currency" for the purposes of this Agreement by the
Issuing Bank."
"Applicable Creditor: as defined in subsection 10.16(b)."
"Calculation Date": with respect to each Foreign L/C, during the
period that such Foreign L/C is outstanding (or the Reimbursement
Obligation in connection therewith has not been fully satisfied) (i)
the last Business Day of a fiscal month, (ii) the date on which such
Letter of Credit is to be issued or renewed by the Issuing Bank, (iii)
the date on
3
which any draft presented under such Letter of Credit is paid by the
Issuing Bank, (iv) such other dates as the Borrower may reasonably
request from time to time, and (v) such other dates as the Issuing
Bank or the Administrative Agent may select from time to time,
provided that the Borrower receives prompt notice thereof."
""Consolidated Interest Expense": for any Person, as of the last day
of any fiscal quarter, the amount of interest expense of such Person
for such period, determined on a consolidated basis in accordance
with GAAP for the four fiscal quarters ended on such date; provided
that for any calculation of Consolidated Interest Expense for any
fiscal period ending during the first three full fiscal quarters
following March 31, 1997, Consolidated Interest Expense shall be
deemed to be Consolidated Interest Expense from March 31, 1997 to the
last day of such period multiplied by a fraction the numerator of
which is 365 and the denominator of which is the number of days from
March 31, 1997 to the last day of such period."
""Dollar Equivalent": at any time, (a) as to any amount denominated
in Dollars, the amount thereof at such time, and (b) as to any amount
denominated in an Alternative Currency, the equivalent amount in
Dollars as determined on the basis of the Exchange Rate for the
purchase of Dollars with such Alternative Currency as of the most
recent Calculation Date."
""Domestic L/C": a Letter of Credit denominated in Dollars."
""Exchange Rate": on any day, with respect to any Alternative
Currency, the spot rate at which Dollars are offered on such day by
the Issuing Bank in San Francisco, California for such Alternative
Currency."
""Federal Funds Effective Rate": for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the FRB (including any such
successor, "H.15(519)") for such day opposite the caption "Federal
Funds (Effective)". If on any relevant day the appropriate rate for
such previous day is not yet published in H.15(519), the rate for
such day will be the arithmetic mean of the rates for the last
transaction in overnight Federal funds arranged prior to 9:00 a.m.
(New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the
Administrative Agent."
""Foreign L/C": a Letter of Credit denominated in an Alternative
Currency."
""Foreign L/C Obligations": at any time, an amount equal to the sum
of (i) the Dollar Equivalent of the aggregate then undrawn and
unexpired face amount of all then outstanding Foreign L/Cs and (ii)
the Dollar Equivalent of the aggregate amount of all drawings under
Foreign L/Cs which have not then been reimbursed pursuant to
subsection 3.5.
4
""Foreign L/C Overdrawn Amount": as defined in subsection 6.16."
""Foreign L/C Sublimit": $30,000,000."
""Judgment Currency": as defined in subsection 10.16 (b)."
""New Subordinated Debt Documents": the documents that govern the
terms of the New Subordinated Notes, if issued."
""New Subordinated Notes": the Borrower's (i) notes issued within six
months of February 19, 1998 pursuant to a public offering registered
under the Securities Act or (ii) notes ("Initial New Subordinated
Notes") issued within six months of February 19, 1998 pursuant to
Rule 144A under the Securities Act or similar exemption from the
registration requirements under the Securities Act and any notes,
having the same terms as the Initial New Subordinated Notes, issued
in exchange for the Initial New Subordinated Notes as contemplated by
the documents governing the issuance of the Initial New Subordinated
Notes, in each case expressly subordinate by their terms to the
obligations of the Credit Parties under this Agreement and each other
Credit Document and otherwise in form and substance satisfactory to
the Agents in all respects."
""Reimbursement Amount": as defined in subsection 3.5(a)."
""Securities Act": Securities Act of 1933, as amended."
""Wide Band Assets": as defined in subsection 7.2(k)."
(l) Subsection 2.6(b)(v) of the Credit Agreement is hereby stricken
and amended to read as follows:
"(v) If after giving effect to (i) any reduction of the
Revolving Credit Commitments under subsection 2.4, 2.5 or 2.6 or (ii)
any recalculation of the Exchange Rate pursuant to subsection 3.9, the
aggregate outstanding principal amount of Swing Line Loans plus the
aggregate outstanding principal amount of Revolving Credit Loans plus
the aggregate outstanding amount of L/C Obligations shall exceed the
aggregate amount of the Revolving Credit Commitments, such reduction
or recalculation shall be accompanied by prepayment in the amount of
such excess to be applied (x) first, to the outstanding Swing Line
Loans and (y) second, to outstanding Revolving Credit Loans (in each
case, together with any amounts payable under subsection 2.16));
provided that if the aggregate principal amount of Swing Line Loans
and Revolving Credit Loans then outstanding is less than the amount of
such excess (because Letters of Credit constitute a portion of such
excess), the Borrower shall immediately, without notice or demand, to
the extent of the balance of such excess, replace outstanding Letters
of Credit and/or deposit an amount (but in no event greater than such
balance) in a cash collateral account opened by the Administrative
Agent for the benefit of the Revolving Credit Lenders
5
(such deposit to be in Dollars with respect to Domestic L/Cs and the
applicable Alternative Currency with respect to Foreign L/Cs). The
Borrower hereby grants to the Administrative Agent, for the benefit of
the Issuing Lender and the L/C Participants, a security interest in
such cash collateral to secure all obligations of the Borrower under
this Agreement and the other Credit Documents. Any amounts deposited
in such accounts shall be released to the Borrower on any Calculation
Date on which the aggregate outstanding principal amount of Swing Line
Loans plus the aggregate outstanding principal amount of Revolving
Credit Loans plus the aggregate outstanding amount of L/C Obligations
equals or is less than the aggregate amount of the Revolving Credit
Commitments; provided that no Default or Event of Default has occurred
and is continuing."
(m) Subsection 2.12(a) of the Credit Agreement is hereby amended by
(i) deleting the phrase ", fees or otherwise," in the third sentence of such
subsection and inserting the phrase "(whether in respect of Domestic L/Cs or
Foreign L/Cs), fees, expenses or otherwise," therefor and (ii) inserting at the
end of the third sentence of such subsection the phrase "; provided, that, with
respect to any Reimbursement Obligations of the Borrower arising from the
presentment to the Issuing Lender of a draft under a Foreign L/C, the Borrower
may make payment in the applicable Alternative Currency if such payment is
received by the Issuing Bank on the date such draft is paid by the Issuing
Bank".
(n) Section 3 of the Credit Agreement is hereby stricken in its
entirety and amended to read as follows:
"SECTION 3 LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and
conditions hereof, the Issuing Lender, in reliance on the agreements
of the Revolving Credit Lenders set forth in subsection 3.4(a), agrees
to issue letters of credit ("Letters of Credit") for the account of
the Borrower on any Business Day during the Commitment Period in such
form as may be approved from time to time by the Issuing Lender;
provided that the Issuing Lender shall have no obligation to issue any
Letter of Credit if, after giving effect to such issuance, (i) the L/C
Obligations would exceed the L/C Commitment, (ii) the Foreign L/C
Obligations would exceed the Foreign L/C Sublimit or (iii) the
Available Commitment with respect to Revolving Credit Loans of all
Revolving Credit Lenders less the aggregate principal amount of the
Swing Line Loans then outstanding would be less than zero.
(b) Each Domestic L/C shall (i) be denominated in
Dollars, (ii) be a standby letter of credit issued to support
obligations of the Borrower or any of its Subsidiaries, contingent or
otherwise and (iii) expire no later than the fifth Business Day prior
to the Revolving Loan Termination Date.
6
(c) Each Foreign L/C shall (i) be denominated in an
Alternative Currency, (ii) be a standby letter of credit issued to
support obligations of the Borrower or any of its Subsidiaries,
contingent or otherwise, and (iii) expire no later than the fifth
Business Day prior to the Revolving Loan Termination Date. For
purposes of this Agreement, the amount deemed outstanding under each
Foreign L/C at any time, and the amount of the Borrower's
Reimbursement Obligations under subsection 3.5 for any amounts paid by
the Issuing Lender in connection with any Foreign L/C, shall be the
Dollar Equivalent, as determined on the most recent Calculation Date,
of (x) such Letter of Credit or (y) the Reimbursement Amount (as
defined in Subsection 3.5(a)), as applicable.
(d) Each Letter of Credit shall be subject to the
Uniform Customs and, to the extent not inconsistent therewith,
Domestic L/Cs shall also be subject to the laws of the State of New
York.
(e) The Issuing Lender shall not at any time be
obligated to issue any Letter of Credit hereunder if (i) such issuance
would conflict with, or cause the Issuing Lender or any L/C
Participant to exceed any limits imposed by, any applicable
Requirement of Law or any policies of the Issuing Lender or (ii) in
the case of any Foreign L/C, it has determined that it cannot provide
such Letter of Credit in the applicable Alternative Currency.
3.2 Procedure for Issuance of Letters of Credit. The
Borrower may from time to time request that the Issuing Lender issue a
Letter of Credit at any time prior to the fifth Business Day prior to
the Revolving Loan Termination Date by delivering to the Issuing
Lender with a copy to the Administrative Agent at its address for
notices specified herein an Application therefor, completed to the
satisfaction of the Issuing Lender, and such other certificates,
documents and other papers and information as the Issuing Lender may
reasonably request. Upon receipt of any Application, the Issuing
Lender will process such Application and the certificates, documents
and other papers and information delivered to it in connection
therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event
shall the Issuing Lender be required to issue any Letter of Credit
earlier than three Business Days after its receipt of the Application
therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such
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 Letter of Credit to the Borrower and the
Administrative Agent (with copies for each Lender) promptly following
the issuance thereof.
3.3 Fees, Commissions and Other Charges. (a) The
Borrower shall pay to the Administrative Agent, for the account of the
Issuing Lender and the L/C Participants, a letter of credit fee with
respect to each Letter of Credit, computed for the period from and
including the date of issuance of such Letter of Credit to the
expiration
7
date of such Letter of Credit at a rate per annum equal to the
Applicable Margin then in effect for Eurodollar Loans, of the Dollar
Equivalent of the aggregate face amount of Letters of Credit
outstanding, payable in arrears on each L/C Fee Payment Date and on
the Revolving Loan Termination Date; provided, that, with respect to
any Foreign L/C, the Dollar Equivalent of the face amount of such
Letter of Credit shall be recalculated on each Calculation Date during
the period that such Letter of Credit is outstanding. Such fee shall
be payable to the Administrative Agent to be shared ratably among the
Revolving Credit Lenders in accordance with their respective
Commitment Percentages with respect to Revolving Credit Loans. In
addition, the Borrower shall pay to the Issuing Lender, for its sole
account, a fee equal to 0.1250% per annum of the Dollar Equivalent of
the aggregate face amount of outstanding Letters of Credit payable
quarterly in arrears on each L/C Fee Payment Date and on the Revolving
Loan Termination Date; provided, that, with respect to any Foreign
L/C, the Dollar Equivalent of the face amount of such Letter of Credit
shall be recalculated on each Calculation Date during the period that
such Letter of Credit is outstanding.
(b) In addition to the foregoing fees and
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 Issuing Lender in issuing, effecting payment under,
amending or otherwise administering any Letter of Credit.
(c) The Administrative Agent shall, promptly
following its receipt thereof, distribute to the Issuing Lender and
the L/C Participants all fees and commissions received by the
Administrative Agent for their respective accounts pursuant to this
subsection.
3.4 L/C Participation. (a) The Issuing Lender
irrevocably agrees to sell and hereby sells to each L/C Participant,
and, to induce the Issuing Lender to issue Letters of Credit
hereunder, each L/C Participant irrevocably agrees to accept and
purchase and hereby accepts and purchases from the Issuing Lender, on
the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such
L/C Participant's Commitment Percentage with respect to Revolving
Credit Loans from time to time in effect in the Issuing Lender's
obligations and rights under each Letter of Credit issued hereunder
and the amount of each draft paid by the Issuing Lender thereunder.
Each L/C Participant 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 L/C Participant
shall pay to the Issuing Lender upon demand in Dollars at the Issuing
Lender's address for notices specified herein an amount equal to such
L/C Participant's then Commitment Percentage with respect to Revolving
Credit Loans of the Dollar Equivalent of the amount of such draft
(determined on the date such draft is paid), or any part thereof,
which is not so reimbursed; provided that, if such demand is made
prior to 11:00 A.M., New York City time, on a Business Day, such L/C
Participant shall make such payment to the Issuing Lender prior to the
end of
8
such Business Day and otherwise such L/C Participant shall make such
payment on the next succeeding Business Day.
(b) If any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to subsection 3.4(a) in
respect of any unreimbursed portion of any payment made by the Issuing
Lender under any Letter of Credit is paid to the Issuing Lender within
three Business Days after the date such payment is due, such L/C
Participant shall pay to the Issuing Lender on demand an amount equal
to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate, as quoted by the Issuing Lender, 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 (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant
pursuant to subsection 3.4(a) is not in fact made available to the
Issuing Lender by such L/C Participant within three Business Days
after the date such payment is due, the Issuing Lender shall be
entitled to recover from such L/C Participant, on demand, such amount
with interest thereon calculated from such due date at the rate per
annum applicable to Base Rate Loans hereunder. A certificate of the
Issuing Lender submitted to any L/C Participant with respect to any
amounts owing under this subsection shall be conclusive in the absence
of manifest error.
(c) Whenever, at any time after the Issuing Lender
has made payment under any Letter of Credit and has received from any
L/C Participant its pro rata share of such payment in accordance with
subsection 3.4(a), the Issuing Lender receives any payment related to
such Letter of Credit (whether directly from the Borrower or
otherwise, including proceeds of collateral applied thereto by the
Issuing Lender), or any payment of interest on account thereof, the
Issuing Lender will, if such payment is received prior to 11:00 A.M.,
New York City time, on a Business Day, distribute to such L/C
Participant its pro rata share thereof prior to the end of such
Business Day and otherwise the Issuing Lender will distribute such
payment on the next succeeding Business Day; provided, however, that
in the event that any such payment received by the Issuing Lender and
distributed to the L/C Participants shall be required to be returned
by the Issuing Lender, each such L/C Participant shall return to the
Issuing Lender the portion thereof previously distributed by the
Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. (a)
The Borrower agrees to reimburse the Issuing Lender on the same
Business Day on which the Issuing Lender notifies the Borrower of the
date and amount of a draft presented under any Letter of Credit and
paid by the Issuing Lender provided such notice is received by 1:00
P.M., New York City time, on such Business Day, and the next Business
Day if such notice is received after such time. The Issuing Lender
shall provide notice to the Borrower on each Business Day on which a
draft is presented indicating the Dollar Equivalent of the amount of
(i) such draft so paid (and, in the case of a Foreign L/C, the amount
of such draft so paid stated in the applicable Alternative Currency)
and (ii) any
9
taxes, fees, charges or other costs or expenses incurred by the
Issuing Lender in connection with such payment ((i) and (ii)
collectively with any interest accruing pursuant to paragraph (b)
below, the "Reimbursement Amount"). Each such payment shall be made to
the Issuing Lender at its address for notices specified herein in
lawful money of the United States of America and in immediately
available funds; provided, that, with respect to any Reimbursement
Obligations of the Borrower arising from the presentment to the
Issuing Lender of a draft under a Foreign L/C, the Borrower may make
payment in the applicable Alternative Currency if such payment is
received by the Issuing Bank on the date such draft is paid by the
Issuing Bank.
(b) Interest shall be payable on the Dollar
Equivalent of any and all amounts remaining unpaid by the Borrower
under this subsection from the date a draft presented under any Letter
of Credit is paid by the Issuing Lender until payment in full (i) at
the rate which would be payable on any Loans that are Base Rate Loans
at such time until such payment is required to be made pursuant to
subsection 3.5(a), and (ii) thereafter, at the rate which would be
payable on any Loans that are Base Rate Loans at such time which were
then overdue.
(c) For the avoidance of doubt, subject to the
provisos in the third sentence of subsection 2.12(a) and the last
sentence of subsection 3.5(a) of this Agreement, all payments due from
the Borrower hereunder in respect of Foreign L/Cs (and Reimbursement
Obligations in connection therewith) shall be made in Dollars as
provided in subsection 2.12 of this Agreement.
3.6 Obligations Absolute. (a) The Borrower's
obligations under subsection 3.5(a) shall be absolute and
unconditional under any and all circumstances and irrespective of any
set-off, counterclaim or defense to payment which the Borrower may
have or have had against the Issuing Lender, any L/C Participant or
any beneficiary of a Letter of Credit.
(b) The Borrower also agrees with the Issuing Lender
that the Issuing Lender shall not be responsible for, and the
Borrower's Reimbursement Obligations under subsection 3.5(a) shall not
be affected by, among other things, (i) the validity or genuineness of
documents or of any endorsements thereon, even though such documents
shall in fact prove to be invalid, fraudulent or forged (unless the
Issuing Lender has knowledge of such invalidity, fraud or forgery),
(ii) 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 (iii) any claims whatsoever of the Borrower
against any beneficiary of such Letter of Credit or any such
transferee.
(c) Neither the Issuing Lender nor any L/C
Participant shall 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
10
for errors or omissions caused by the Issuing Lender's gross
negligence or willful misconduct.
(d) 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 willful misconduct and in accordance with the
standards of care specified in the Uniform Commercial Code of the
State of New York, shall be binding on the Borrower and shall not
result in any liability of the Issuing Lender or any L/C Participant
to the Borrower.
3.7 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 the Dollar Equivalent of the amount thereof (and, in the case
of a Foreign L/C, the amount thereof stated in the applicable
Alternative Currency). If any draft shall be presented for payment
under any Letter of Credit, the responsibility of the Issuing Lender
to the Borrower in connection with such draft 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 appear on their face to be in conformity with such Letter
of Credit.
3.8 Application. To the extent that any provision of
any Application related to any Letter of Credit is inconsistent with
the provisions of this Section 3, the provisions of this Section 3
shall govern and control.
3.9 Determination of Exchange Rate. On each
Calculation Date with respect to each outstanding Foreign L/C, the
Issuing Bank shall determine the Exchange Rate as of such Calculation
Date with respect to the applicable Alternative Currency and shall
promptly notify the Administrative Agent and the Borrower thereof and
of the Dollar Equivalent of all Foreign L/Cs outstanding on such
Calculation Date. The Exchange Rate so determined shall become
effective on such Calculation Date and shall remain effective until
the next succeeding Calculation Date."
(o) Subsection 4.21 of the Credit Agreement is hereby amended by
inserting at the end of the first sentence of such subsection the phrase "and,
upon consummation of the issuance of the New Subordinated Notes, the
representations and warranties contained in the New Subordinated Debt Documents
will be true and correct in all material respects as of the date of the
respective agreements".
(p) Subsection 5.2(a) of the Credit Agreement is hereby amended by
inserting immediately following the words "as if made on and as of such date"
in such subsection the parenthetical "(including, without limitation, the
representation and warranty set forth in subsection 4.7 of this Agreement with
respect to each of the Subordinated Debt Documents)".
11
(q) Subsection 6.2(c) of the Credit Agreement is hereby amended by
deleting the reference to "the chief financial officer" therein and inserting
the words "a Responsible Officer" therefor.
(r) The following shall be added to the Credit Agreement as subsection
6.16 of the Credit Agreement:
"6.16 Foreign L/Cs. Within one (1) Business Day of any day
that the Foreign L/C Obligations exceed the Foreign L/C Sublimit based
on the most recent Calculation Date (such excess, the "Foreign L/C
Overdrawn Amount"), deposit an amount equal to the Foreign L/C
Overdrawn Amount in Dollars in a cash collateral account opened by the
Administrative Agent established for the benefit of the Revolving
Credit Lenders; provided, that the Borrower shall not be required to
make such deposits in such cash collateral account if (i) the Foreign
L/C Overdrawn Amount is equal to or less than 10% of the Foreign L/C
Sublimit, (ii) the Available Commitments with respect to Revolving
Credit Loans of all Revolving Credit Lenders less the aggregate
principal amount of the Swing Line Loans then outstanding exceeds such
Foreign L/C Overdrawn Amount and (iii) the Borrower is otherwise in
compliance with its obligations under this Agreement. The Borrower
hereby grants to the Administrative Agent, for the benefit of the
Issuing Lender and the L/C Participants, a security interest in such
cash collateral to secure all obligations of the Borrower under this
Agreement and the other Credit Documents. Any amounts deposited in
such accounts shall be released to the Borrower on any Calculation
Date on which the Foreign L/C Obligations equal or are less than the
Foreign L/C Sublimit."
(s) The following shall be added to the Credit Agreement as subsection
6.17 of the Credit Agreement:
"6.17 New Subordinated Debt Documents. At least ten Business
Days prior to the date of issuance of the New Subordinated Notes, the
Borrower shall deliver to the Agents copies of the New Subordinated
Debt Documents. The New Subordinated Debt Documents shall be in form
and substance satisfactory to the Agents."
(t) Subsection 7.2(e) of the Credit Agreement is hereby stricken and
amended to read as follows:
"(e) Indebtedness of the Borrower in respect of not more than
(i) $225,000,000 principal amount of Subordinated Notes issued on the
Closing Date and (ii) $150,000,000 principal amount of New
Subordinated Notes; provided that, to the extent that any of the Net
Proceeds of the New Subordinated Notes are used by the Borrower to
prepay any of the Loans, such prepayments shall be subject to the
provisions of Subsection 2.6(iv) of this Agreement (notwithstanding
the fact that such Net Proceeds are not otherwise required to be
applied to the prepayment of the Loans);"
12
(u) Subsection 7.2(k) of the Credit Agreement is hereby stricken and
amended to read as follows:
"(k) Up to $30,000,000 of purchase money Indebtedness the
proceeds of which are utilized to acquire the real property (including
improvements thereon) and related assets currently utilized by the Wide Band
Systems division in Salt Lake City, Utah (the "Wide Band Assets"), on terms
reasonably satisfactory to the Agents."
(v) Subsection 7.4(c) of the Credit Agreement is hereby stricken and
amended to read as follows:
"(c) guarantees made by the Subsidiaries of the Borrower
pursuant to the Subordinated Debt Documents and the New Subordinated
Debt Documents; provided, that any guarantee of the New Subordinated
Notes shall be expressly subordinated to all obligations of the Credit
Parties under this Agreement and each other Credit Document;"
(w) Subsection 7.4(g) of the Credit Agreement is hereby amended by
deleting the reference to "$10,000,000" in the last line of such subsection and
inserting "$30,000,000" therefor.
(x) Subsection 7.8 of the Credit Agreement is hereby amended by
deleting the reference to "27,500,000" for Fiscal Year 1998 and inserting
"35,000,000" therefor.
(y) Subsection 7.9(l) of the Credit Agreement is hereby amended by (i)
deleting the words "for performance" in clause (ii) of such subsection, (ii)
adding at the end of such subsection the phrase "; provided, the aggregate
amount of the Investment pursuant to this subsection 7.9(l) (cash plus assumed
letters of credit and/or other indebtedness) may exceed $100.0 million by $10.0
million" immediately following the phrase "Allied Signal ("Ocean Systems")"
therein, and (iii) deleting the word "and".
(z) Subsection 7.9 of the Credit Agreement is hereby further amended
by (i) replacing the period at the end of subsection 7.9(m) with a semi-colon
and (ii) adding the following to the end of subsection 7.9:
"(n) Investments in an aggregate amount not exceeding $59.4
million (including all fees and expenses related thereto) made to
acquire substantially all of the assets of ILEX Systems Inc. pursuant
to the Asset Purchase Agreement between the Borrower and FAP Trust,
dated as of February 9, 1998;
(o) Investments in an aggregate amount not exceeding $30.0
million (including all fees and expenses related thereto) made to
acquire the Wide Band Assets, on terms reasonably satisfactory to the
Agents; and
13
(p) Investments made to acquire (i) all of the Capital Stock,
or all or substantially all of the assets, of any Person (other than
the Borrower or any of its Subsidiaries) that is engaged in a Similar
Business, or (ii) all or substantially all of the assets of any
division of any Person (other than the Borrower or any of its
Subsidiaries) that is engaged in a Similar Business; provided, that at
the time of each such Investment (both before and after giving effect
to such Investment), there shall exist no Default or Event of Default
and the aggregate consideration paid in connection with all
Investments made pursuant to this subsection 7.9(p) shall not exceed
$100,000,000; provided, further, that in connection with each
individual, or series of related, Investments made pursuant to this
subsection 7.9(p) with an aggregate consideration (i) equal to or less
than $35,000,000, the Borrower shall deliver to the Administrative
Agent, on or prior to the date which is ten Business Days prior to the
consummation of such Investment or Investments, a certificate of a
Responsible Officer that sets forth calculations that demonstrate the
Borrower's compliance, after giving pro forma effect to such
Investment or Investments, with each of the covenants set forth in
this subsection 7 and (ii) greater than $35,000,000, the Borrower
shall provide the Lenders, on or prior to the consummation of such
Investment or Investments, with information and pro forma calculations
in connection with such Investment or Investments as the Lenders may
reasonably request and the Borrower shall have received the prior
written consent of the Required Lenders regarding the making of such
Investment or Investments."
(aa) Subsection 7.10(a) of the Credit Agreement is hereby amended by
(i) deleting the reference to "(b)" after the words "any Subordinated Debt or"
therein and (ii) inserting the words "or New Subordinated Debt Documents"
immediately following the reference to "Subordinated Debt Documents" therein.
(ab) Subsection 7.14 of the Credit Agreement is hereby amended by
inserting the words "and the New Subordinated Debt Documents" immediately
following the reference to "Subordinated Debt Documents" therein.
(ac) Subsection 7.16 of the Credit Agreement is hereby amended by
inserting the parenthetical "(including, without limitation, the New
Subordinated Debt Documents)" immediately following the fourth reference to
"Indebtedness" therein.
(ad) Subsection 8(c) of the Credit Agreement is hereby amended by
deleting the phrase "subsection 6.5(a)" therein and inserting the phrase
"subsections 6.5(a) or 6.16" therefor.
(ae) The penultimate paragraph of Section 8 of the Credit Agreement is
hereby amended by inserting the words "the Dollar Equivalent of" immediately
following the words "an amount equal to" in the first sentence of such
paragraph.
14
(af) The following shall be added to the Credit Agreement as
subsection 10.16 thereof:
"10.16 Conversion of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum
owing hereunder in one currency into another currency, each party
hereto agrees, to the fullest extent that it may effectively do so,
that the rate of exchange used shall be that at which in accordance
with normal banking procedures in the relevant jurisdiction the first
currency could be purchased with such other currency on the Business
Day immediately preceding the date on which final judgment is given.
(b) The obligations of the Borrower in respect of any sum due
to any party hereto or any holder of the obligations owing hereunder
(the "Applicable Creditor") shall, notwithstanding any judgment in a
currency (the "Judgment Currency") other than the currency in which
such sum is stated to be due hereunder (the "Agreement Currency"), be
discharged only to the extent that, on the Business Day following
receipt by the Applicable Creditor of any sum adjudged to be so due in
the Judgment Currency, the Applicable Creditor may in accordance with
normal banking procedures in the relevant jurisdiction purchase the
Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to
the Applicable Creditor in the Agreement Currency, the Borrower
agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Applicable Creditor against such loss. The
obligations of the Borrower contained in this subsection 10.16 shall
survive the termination of this Agreement and the payment of all other
amounts owing hereunder."
(ag) Schedule I to the Credit Agreement is hereby replaced with the
amended Schedule I attached hereto.
SECTION 2. WAIVERS
The Required Lenders hereby waive compliance by the Borrower with (i)
the provisions of subsection 2.6(b)(iii) of the Credit Agreement for the fiscal
year of the Borrower ended December 31, 1997 and (ii) the Borrower's obligation
to deliver to the Administrative Agent the Supply Agreement and the Interim
Services Agreement pursuant to subsection 6.15(a) of the Credit Agreement.
SECTION 3. CONDITIONS TO EFFECTIVENESS
Sections 1 and 2 of this Amendment shall become effective only upon
the prior satisfaction of all of the following conditions precedent (the date
of satisfaction of such conditions being referred to herein as the "Third
Amendment Effective Date"):
(a) The Borrower shall have delivered to the Administrative Agent
executed copies of this Amendment.
15
(b) The Required Lenders, the Agents and the Issuing Lender shall have
each delivered to the Administrative Agent an executed original or facsimile of
a counterpart of this Amendment.
(c) The Borrower shall have delivered to the Administrative Agent
executed copies of all documents, instruments and agreements, if any, required
in order for the Borrower and its Subsidiaries to be in full compliance with
the requirements of subsection 6.10 of the Credit Agreement as of the Third
Amendment Effective Date (without giving effect to the thirty (30) day delivery
period referenced in such subsection 6.10, but after giving effect to any
acquisitions that are consummated on or prior to such date); provided that (i)
any Mortgages (and related documentation), (ii) legal opinions and (iii)
security documentation regarding newly-acquired Intellectual Property required
to be delivered to the Administrative Agent pursuant to this subsection (c) may
be delivered to the Administrative Agent within thirty (30) days after the
Third Amendment Effective Date. Filings of UCC financing statements may also be
accomplished during such thirty (30) day period, provided that they are
executed and delivered to the Administrative Agent on or prior to the Third
Amendment Effective Date. The time periods set forth in this subsection (c) may
be extended by the Agents in their discretion, with notice thereof to each of
the Lenders.
(d) The Administrative Agent shall have received evidence satisfactory
to the Administrative Agent that the Boards of Directors of Holdings and the
Borrower have duly authorized the execution, delivery and performance of (i)
this Amendment, (ii) the acquisition of Southern California Microwave, Inc. and
the assets of the satellite transmission services division of California
Microwave, Inc. and (iii) any other agreements and documents to be delivered to
the Administrative Agent on the Third Amendment Effective Date.
(e) The Administrative Agent shall have received evidence satisfactory
to the Administrative Agent that the Board of Directors of Southern California
Microwave, Inc. has duly authorized the execution, delivery and performance of
the Subsidiary Guarantees and the Subsidiary Pledge and Security Agreement.
(f) The Administrative Agent shall have received a legal opinion
addressed to the Agents, the Arranger, the Lenders and the Issuing Bank from
Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the Borrower, in form and substance
reasonably satisfactory to the Administrative Agent.
(g) The Borrower shall have executed Revolving Credit Notes for the
benefit of each Revolving Credit Lender in such amount as set forth across from
such Revolving Credit Lender's name on Schedule I to the Credit Agreement (as
amended pursuant to this Amendment).
16
SECTION 4. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce the Required Lenders, the Agents and the Issuing
Lender to enter into this Amendment and to amend the Credit Agreement in the
manner provided herein, the Borrower represents and warrants to each Lender,
each Agent and the Issuing Lender that the following statements are true,
correct and complete:
(a) Corporate Power and Authority. The Borrower has all requisite
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Amendment (the "Amended Agreement").
(b) Authorization of Amendment. The execution and delivery of this
Amendment has been duly authorized by all necessary corporate action on the
part of the Borrower.
(c) No Conflict. The execution and delivery by the Borrower of this
Amendment and the performance by the Borrower of the Amended Agreement does not
and will not (i) violate any provision of any law or any governmental rule or
regulation applicable to the Borrower or any of its Subsidiaries, the
Certificate or Articles of Incorporation or Bylaws of the Borrower or any of
its Subsidiaries or any order, judgment or decree of any court or other agency
of government binding on the Borrower or any of its Subsidiaries, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any contractual obligation of the Borrower or any of its
Subsidiaries (including, without limitation, the Indenture) or (iii) result in,
or require the creation of, any Lien upon any of the properties or assets of
the Borrower or any of its Subsidiaries (other than Liens created under any of
the Credit Documents in favor of the Administrative Agent on behalf of the
Lenders).
(d) Governmental Consents. The execution and delivery by the Borrower
of this Amendment and the performance by the Borrower of the Amended Agreement
by the Borrower does not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any federal, state
or other governmental authority or regulatory body.
(e) Binding Obligation. This Amendment and the Amended Agreement have
been duly executed and delivered by the Borrower and, when executed and
delivered, will be the legally valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered
in a proceeding in equity or at law) and an implied covenant of good faith and
fair dealing.
(f) Incorporation of Representations and Warranties From Credit
Agreement. The representations and warranties contained in Section 4 of the
Credit Agreement (as expressly amended hereby) are and will be true, correct
and complete in all material respects on and as of the Third Amendment
Effective Date to the same extent as though made on and as of that
17
date, except to the extent such representations and warranties specifically
relate to an earlier date.
(g) Absence of Default. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or a potential Event of
Default.
SECTION 5. MISCELLANEOUS
(a) Effect of this Amendment. On and after the Third Amendment
Effective Date, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import referring to the Credit
Agreement, and each reference in the other Credit Documents to the "Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Credit Agreement shall mean and be a reference to the Amended Agreement. Except
as specifically amended or waived by this Amendment, the Credit Agreement and
the other Credit Documents shall remain in full force and effect and are hereby
ratified and confirmed. The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a waiver
of any provision of, or operate as a waiver of any right, power or remedy of
the Administrative Agent or any Lender under, the Credit Agreement or any of
the other Credit Documents.
(b) Fees and Expenses. The Borrower acknowledges that all costs, fees
and expenses as described in Section 9 of the Credit Agreement incurred by the
Agents and their counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be paid by the Borrower.
(c) Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive
effect.
(d) GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
(e) SUBMISSION TO JURISDICTION; WAIVERS. THE BORROWER HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(i) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AMENDMENT AND THE OTHER CREDIT
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
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UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
APPELLATE COURTS FROM ANY THEREOF;
(ii) 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;
(iii) 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 THE BORROWER AT ITS ADDRESS SET FORTH IN
SUBSECTION 10.2 OF THE CREDIT AGREEMENT OR AT SUCH OTHER ADDRESS OF
WHICH THE ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT
THERETO;
(iv) 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 XXX IN ANY OTHER JURISDICTION; AND
(v) 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.
(f) Acknowledgements. The Borrower hereby acknowledges that:
(i) it has been advised by counsel in the
negotiation, execution and delivery of this Agreement;
(ii) none of the Arranger, the Agents nor any Lender
has any fiduciary relationship with or duty to the Borrower arising
out of or in connection with this Agreement, and the relationship
between any of the Agents and the Lenders, on one hand, and the
Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(iii) no joint venture is created hereby or
otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
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(g) WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS, THE ARRANGER, THE
LENDERS AND THE OTHER PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEG AL ACTION OR PROCEEDING RELATING TO THIS
AMENDMENT OR ANY OTH ER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
(h) Confidentiality. Each Lender agrees to keep confidential all
non-public information provided to it by the Borrower pursuant to this
Agreement that is designated by the Borrower in writing as confidential
(excluding any such information already in the possession of such Lender or
provided to such Lender by a third party not in violation of this Agreement
which, in either case, is not, to the knowledge of such Lender, subject to a
confidentiality agreement); provided that nothing herein shall prevent any
Lender from disclosing any such information (i) to any Agent or any other
Lender or any of its Affiliates, (ii) to any Transferee or prospective
Transferee or to any direct or indirect contractual counterparties in swap
agreements or such contractual counterparties' professional advisors which
receives such information and agrees to be bound by the confidentiality
provisions hereof, (iii) to its employees, directors, agents, attorneys,
accountants and other professional advisors, (iv) upon the request or demand of
any Governmental Authority having jurisdiction over such Lender, (v) in
response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (vi) which has been
publicly disclosed other than in breach of this Agreement, or (vii) in
connection with the exercise of any remedy hereunder.
(i) Counterparts; Effectiveness. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original (whether by facsimile or otherwise), but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Amendment shall become effective upon the execution of a
counterpart hereof by the Borrower, the Required Lenders, the Syndication
Agent, the Documentation Agent, the Administrative Agent, the Arranger and the
Issuing Lender and receipt by the Borrower and the Administrative Agent of
written or telephonic notification of such execution and authorization of
delivery thereof.
[Signature Pages Follow]
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