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NEW 364 DAY CREDIT AGREEMENT
among
L-3 COMMUNICATIONS CORPORATION,
a Delaware corporation,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
The certain Financial Institutions named as Managing Agents herein,
BANC OF AMERICA SECURITIES LLC
and
▇▇▇▇▇▇ BROTHERS, INC.,
as Arrangers,
BANK OF AMERICA, N.A. ,
as Administrative Agent
and
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
as Documentation Agent and Syndication Agent
Dated as of April 24, 2000
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS......................................................1
1.1 Defined Terms.........................................................1
1.2 Other Definitional Provisions........................................23
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS AND LOANS.......................23
2.1 Commitments..........................................................23
2.2 Procedure for Borrowing..............................................24
2.3 Commitment Fee.......................................................24
2.4 Termination or Reduction of Commitments..............................25
2.5 Extension of Termination Date; Repayment of Loans; Evidence of Debt..25
2.6 Optional Prepayments; Mandatory Prepayments and Reduction of
Commitments..........................................................27
2.7 Conversion and Continuation Options..................................29
2.8 Minimum Amounts and Maximum Number of Tranches.......................30
2.9 Interest Rates and Payment Dates.....................................30
2.10 Computation of Interest and Fees.....................................31
2.11 Inability to Determine Interest Rate.................................31
2.12 Pro Rata Treatment and Payments......................................32
2.13 Illegality...........................................................33
2.14 Requirements of Law..................................................34
2.15 Taxes................................................................35
2.16 Indemnity............................................................38
2.17 Replacement of Lenders...............................................39
2.18 Certain Fees.........................................................40
2.19 Certain Rules Relating to the Payment of Additional Amounts..........40
SECTION 3. [INTENTIONALLY OMITTED].........................................40
SECTION 4. REPRESENTATIONS AND WARRANTIES..................................40
4.1 Financial Condition..................................................41
4.2 No Change............................................................41
4.3 Corporate Existence; Compliance with Law.............................41
4.4 Corporate Power; Authorization; Enforceable Obligations..............42
4.5 No Legal Bar.........................................................42
4.6 No Material Litigation...............................................42
4.7 No Default...........................................................42
4.8 Ownership of Property; Liens.........................................42
4.9 Intellectual Property................................................43
4.10 Taxes................................................................43
4.11 Federal Regulations..................................................43
4.12 ERISA................................................................43
4.13 Investment Company Act; Other Regulations............................44
4.14 Subsidiaries.........................................................44
4.15 Purpose of Loans.....................................................44
4.16 Environmental Matters................................................44
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4.17 Collateral Documents.................................................46
4.18 Accuracy and Completeness of Information.............................46
4.19 Labor Matters........................................................46
4.20 Acquisition..........................................................46
4.21 Solvency.............................................................47
SECTION 5. CONDITIONS PRECEDENT............................................47
5.1 Conditions to Initial Loans..........................................47
5.2 Conditions to Each Extension of Credit...............................51
SECTION 6. AFFIRMATIVE COVENANTS...........................................52
6.1 SEC Filings..........................................................52
6.2 Certificates; Other Information......................................52
6.3 Payment of Obligations...............................................53
6.4 Conduct of Business; Maintenance of Existence and Property;
Compliance with Law..................................................53
6.5 Insurance............................................................54
6.6 Inspection of Property; Books and Records; Discussions...............54
6.7 Notices..............................................................54
6.8 Environmental Laws...................................................55
6.9 Further Assurances...................................................55
6.10 Additional Collateral................................................56
6.11 [Intentionally Omitted.].............................................56
6.12 Foreign Jurisdictions................................................57
6.13 Government Contracts.................................................57
6.14 Lien Searches........................................................57
SECTION 7. NEGATIVE COVENANTS..............................................57
7.1 Financial Condition Covenants........................................57
7.2 Limitation on Indebtedness...........................................58
7.3 Limitation on Liens..................................................59
7.4 Limitation on Guarantee Obligations..................................61
7.5 Limitation on Fundamental Changes....................................62
7.6 Limitation on Sale of Assets.........................................62
7.7 Limitation on Dividends..............................................63
7.8 Limitation on Capital Expenditures...................................63
7.9 Limitation on Investments, Loans and Advances........................64
7.10 Limitation on Optional Payments and Modifications of
Instruments and Agreements...........................................65
7.11 Limitation on Transactions with Affiliates...........................66
7.12 Limitation on Sales and Leasebacks...................................66
7.13 Limitation on Changes in Fiscal Year.................................66
7.14 Limitation on Negative Pledge Clauses................................67
7.15 Limitation on Lines of Business......................................67
7.16 Designated Senior Debt...............................................67
SECTION 8. EVENTS OF DEFAULT...............................................67
SECTION 9. THE AGENTS; THE ARRANGERS.......................................70
9.1 Appointment..........................................................70
9.2 Delegation of Duties.................................................71
9.3 Exculpatory Provisions...............................................71
9.4 Reliance by Agents...................................................71
9.5 Notice of Default....................................................71
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9.6 Non-Reliance on Agents and Other Lenders.............................72
9.7 Indemnification......................................................72
9.8 Agents, in Their Individual Capacities...............................73
9.9 Successor Administrative Agent, Syndication Agent and
Documentation Agent..................................................73
9.10 The Arrangers and the Managing Agents................................73
SECTION 10. MISCELLANEOUS...................................................74
10.1 Amendments and Waivers..............................................74
10.2 Notices.............................................................75
10.3 No Waiver; Cumulative Remedies......................................77
10.4 Survival of Representations and Warranties..........................77
10.5 Payment of Expenses and Taxes.......................................77
10.6 Successors and Assigns; Participation and Assignments...............78
10.7 Adjustments; Set-off................................................82
10.8 Counterparts........................................................83
10.9 Severability........................................................83
10.10 Integration.........................................................83
10.11 GOVERNING LAW.......................................................83
10.12 SUBMISSION TO JURISDICTION; WAIVERS.................................84
10.13 Acknowledgments.....................................................84
10.14 WAIVERS OF JURY TRIAL...............................................85
10.15 Confidentiality.....................................................85
10.16 Conversion of Currencies............................................85
10.17 Year 2000...........................................................86
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EXHIBITS
Exhibit A-1 Form of Note
Exhibit B-1 Form of Parent Guarantee
Exhibit B-2 Form of Subsidiary Guarantee
Exhibit B-3 Form of Parent Pledge Agreement
Exhibit B-4A Form of Borrower Pledge Agreement
Exhibit B-4B Form of Charge Over Shares
Exhibit B-5 Form of Subsidiary Pledge Agreement
Exhibit C-1 Form of Legal Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
Exhibit C-2 Form of Internal Counsel Opinion
Exhibit D Form of Borrowing Certificate
Exhibit E Form of Certificate of Non U.S. Lender
Exhibit F Form of Assignment and Acceptance
SCHEDULES
Schedule I Lenders and Commitments
Schedule II Pricing Grid
Schedule 4.4 Required Consents
Schedule 4.5 No Legal Bar
Schedule 4.6 Material Litigation
Schedule 4.9 Intellectual Property Claims
Schedule 4.10 Taxes
Schedule 4.14 Subsidiaries
Schedule 4.20 Acquisition Documents
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
Schedule 7.9(k) Approved Investments
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THIS NEW 364 DAY CREDIT AGREEMENT, dated as of April 24, 2000, is
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 banks and other financial institutions or
entities from time to time parties hereto (the "Lenders"), Banc of America
Securities LLC and ▇▇▇▇▇▇ Brothers, Inc. ("LBI") as arrangers (each, in such
capacity, an "Arranger" and together, the "Arrangers"), Bank of America, N.A.
("BOA"), as administrative agent for the Agents (as defined below) and the
Lenders (in such capacity, the "Administrative Agent"), ▇▇▇▇▇▇ Commercial Paper,
Inc. ("LCPI"), as syndication agent and documentation agent (in such capacity,
the "Syndication Agent" and the "Documentation Agent"), and certain financial
institutions named as Managing Agents (as amended, supplemented, restated or
otherwise modified from time to time, is hereinafter referred to as this
"Agreement" or the "Credit Agreement").
WHEREAS, the Borrower has requested that the Lenders extend credit
to it for working capital and general corporate purposes (including
acquisitions, as permitted herein) of the Borrower and its Subsidiaries upon the
terms and subject to conditions set forth herein; and
WHEREAS, the Lenders are willing to extend such credit to the
Borrower upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined TermsAs used in this Agreement, the following terms
shall have the following meanings:
"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.
"Acquired Company": Honeywell Inc.'s Traffic Alert and Collision
Avoidance System product line.
"Acquisition": the purchase of the Acquired Company by Borrower
pursuant to the terms of the Acquisition Documents.
"Acquisition Documents": the Asset Purchase Agreement among
Honeywell Inc. (as seller), Borrower (as buyer), and Honeywell
International Inc. (as guarantor), dated as of February 10, 2000, and all
material agreements, instruments and other documents executed or delivered
pursuant thereto or in connection with all exhibits, schedules and
attachments thereto.
"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 and the compliance certificate with respect to
such financial statements furnished pursuant to subsection 6.2(c).
"Administrative Agent": BOA, or following the resignation of BOA as
Administrative Agent, any other Lender which may be appointed as
Administrative Agent pursuant to subsection 9.9.
"Affected Class": as defined in subsection 10.1.
"Affected Lender": as defined in subsection 10.7.
"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, an
amount equal to the sum of the aggregate principal amount of all Loans
made by such Lender then outstanding.
"Agreement": this Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
"Agreement Currency": as defined in subsection 10.16(b).
"Applicable Creditor": as defined in subsection 10.16(b).
"Applicable Holdback": as defined in subsection 2.6(b)(ii).
"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) except as expressly
set forth in Schedule II, the Applicable Margins determined for any
Adjustment Date shall remain in effect until a subsequent Adjustment Date
for which the Debt Ratio falls within a different level and (b) 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.
"Arranger": as defined in the recitals to this Agreement.
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"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, at any time, an amount
equal to the excess, if any, of (a) such Lender's Commitment over (b) such
Lender's Aggregate Outstanding Extensions of Credit.
"Base Rate": 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 Agreement": the Second Amended and Restated
Borrower Pledge Agreement substantially in the form of Exhibit B-4A, 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.
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"Capital Expenditures" 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": ▇▇▇▇▇▇ Brothers Capital Partners III, L.P.
"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 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 Ratings Group
("S&P") or P-2 by ▇▇▇▇▇'▇ 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, 51% of the Voting
Stock of Holdings (measured by voting power rather than number of shares),
determined on a fully diluted basis, and any "person" (as such term is
defined in Section 13(d)(3) of the Exchange Act) other than
4
the Principals and their Related Parties shall become the "beneficial
owner" (as such term is defined in Rule 13d-3 and Rule 13d-5 under the
Exchange Act), directly or indirectly, of more than 25% of the Voting
Stock of Holdings (measured by voting power rather than number of shares);
(ii) a majority of the members of the Board of Directors of
Holdings fail to be (a) members of the Board of Directors incumbent as of
the Closing Date, or (b) members nominated by the members of the Board of
Directors incumbent on the Closing Date, or (c) members appointed by
members of the Board nominated under clause (a) or (b);
(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, the New Subordinated Debt Indenture or the December 1998
Subordinated Debt Indenture.
"Charge Over Shares": the Amended and Restated Charge Over Shares
substantially in the form of Exhibit B-4B, to be executed and delivered by
the Borrower, as the same may be amended, supplemented or otherwise
modified.
"Class": (i) Lenders having Loan Exposure (taken together as a
single class), (ii) Facility A Lenders having Facility A Loan Exposure
(taken together as a single class) and (iii) Facility B Lenders having
Facility B Loan Exposure (taken together as a single class).
"Closing Date": the date on which the conditions precedent set forth
in subsection 5.1 are 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
Pledge Agreement.
"Commitment" and "Commitments": the commitment of a Lender, as set
forth on Schedule I hereto as amended from time to time pursuant to this
Agreement, to make Loans to the Borrower pursuant to Subsection 2.1(a)(i);
and "Commitments" means such commitments of all Lenders in an aggregate
amount not to exceed $300,000,000.
"Commitment Fee Rate": at any time, the applicable rates per annum
on Schedule II under the relevant column heading for the Revolving 364-Day
Facility set forth opposite the level of the Debt Ratio most recently
determined; provided that (a) except as expressly set forth in Schedule
II, the Commitment Fee Rate determined for any Adjustment Date shall
remain in effect until a subsequent Adjustment Date for which the Debt
Ratio falls within a different level and (b) if the financial statements
and related compliance certificate for any fiscal period are not delivered
by the date due pursuant to
5
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.
"Commitment Percentage": as to the Commitment of any Lender, the
percentage which the Commitment of such Lender constitutes of the
aggregate Commitments (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 constitutes of
the aggregate amount of the Aggregate Outstanding Extensions of Credit of
all Lenders).
"Commitment Period": the period from and including the Closing Date
to but not including the Termination Date or such earlier date on which
the 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 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 the four fiscal quarters ended on such date, 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
such period.
"Consolidated Cash Interest Expense": as of the last day of any
fiscal quarter, the amount of interest expense, paid in cash, of the
Borrower and its Subsidiaries for the four fiscal quarters ended on such
date, determined on a consolidated basis in accordance with GAAP for such
period.
"Consolidated Interest Expense": for any Person, as of the last day
of any fiscal quarter, the amount of interest expense of such Person for
the four fiscal quarters ended on such date, determined on a consolidated
basis in accordance with GAAP for such period.
"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.
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"Consolidated Total Assets": at any date, all assets of the Borrower
and its Subsidiaries as determined according to the consolidated balance
sheet contained in the SEC filing most recently delivered pursuant to
subsection 6.1 or, if no such SEC filing has yet been delivered, the
balance sheet referred to in subsection 4.1(a)(ii).
"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 limitation,
in respect of Financing Leases but excluding Indebtedness permitted
pursuant to subsection 7.2(g).
"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.
"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 Pledge Agreements.
"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 minus Designated Cash Balances on such date to
(b) Consolidated EBITDA.
"December 1998 Subordinated Debt Documents": the December 1998
Subordinated Notes, the December 1998 Subordinated Notes Indenture, the
Underwriting Agreement related thereto among Borrower, its domestic
Subsidiaries, ▇▇▇▇▇▇ Brothers Inc., BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (n/k/a
Banc of America Securities LLC) and any other documents or agreements
executed in connection therewith.
"December 1998 Subordinated Debt Indenture": the Indenture between
the Borrower and the Bank of New York, as trustee, pursuant to which the
December 1998 Subordinated Notes were issued.
7
"December 1998 Subordinated Notes": the Borrower's Senior
Subordinated Notes, due December 1, 2008 ("Initial December 1998
Subordinated Notes") issued on or about the December 8, 1998 and any
notes, having the same terms as the Initial December 1998 Subordinated
Notes, issued in exchange for the Initial December 1998 Subordinated Notes
as contemplated by the documents governing the issuance of the Initial
December 1998 Subordinated Notes.
"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.
"Designated Cash Balances": at any time, the lesser of (a) actual
unrestricted cash balances on hand of Borrower and its Subsidiaries which
are not subject to any Liens in favor of any Person (other than those
described in subsection 7.3(o) hereof) and (b) $50,000,000.
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Dow ▇▇▇▇▇ Page 3750": the display designated as page "3750" on the
Dow ▇▇▇▇▇ Market Service (formerly known as the Telerate Service) or such
other page as may replace the "3750" page on that service or such other
service or services as may be nominated by the British Bankers'
Association for the purpose of displaying London interbank offered rates
for Dollar deposits.
"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'SS''SS' 9601 et seq.; the Toxic Substance
Control Act, 15 U.S.C.'SS''SS' 9601 et seq.; the Hazardous Materials
Transportation Act, 49 U.S.C'SS''SS'1802 et seq.; the Resource
Conservation and Recovery Act, 42 U.S.C'SS''SS'6901 et seq.; the Clean
Water Act; 33 U.S.C'SS''SS'1251 et seq.; the Clean Air Act,
42 U.S.C'SS''SS'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 Stockholders Agreement, the Subscription
Agreements and the Option Agreements.
8
"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 Business Day": means any Business Day on which
commercial banks are open in London for the transaction of international
business, including dealings in Dollar deposits in the international
interbank markets.
"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 1/100th 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
the Borrower and its Subsidiaries 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 for
the Borrower and its Subsidiaries, non-cash 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 the Borrower and its Subsidiaries 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 and (vii) non-cash ordinary
9
losses less (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
(x) Loans not accompanied by reductions of the Commitments hereunder, (y)
Facility A Loans not accompanied by reductions of Facility A Commitments
and/or (z) Facility B Loans not accompanied by reductions of Facility B
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 the Borrower and
its Subsidiaries 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.
"Exchange Act": the Securities Exchange Act of 1934, as amended.
"Extending Lender": any Lender consenting to the Extension Option.
"Extension Option": as defined in subsection 2.5(a).
"Facility A Administrative Agent": the "Administrative Agent" as
defined in the Facility A Credit Agreement.
"Facility A Agents": the "Agents" as defined in the Facility A
Credit Agreement.
"Facility A Commitments": the "Commitments" as defined in the
Facility A Credit Agreement.
"Facility A Credit Agreement": that certain Second Amended and
Restated Credit Agreement of even date herewith among the Borrower, the
Facility A Lenders, BOA as administrative agent, LCPI as syndication agent
and documentation agent, LCPI and Banc of America Securities LLC as
arrangers and certain financial institutions named as co-agents, as the
same may be amended, supplemented, restated or otherwise modified from
time to time.
"Facility A Credit Documents": the "Credit Documents" as defined in
the Facility A Credit Agreement.
"Facility A Eurodollar Tranche": "Eurodollar Tranche" as defined in
the Facility A Credit Agreement.
"Facility A L/C Obligations": the "L/C Obligations" as defined in
the Facility A Credit Agreement.
"Facility A Lenders": the "Lenders" as defined in the Facility A
Credit Agreement.
10
"Facility A Loan Exposure": the "Loan Exposure" as defined in the
Facility A Credit Agreement.
"Facility A Loans": the "Loans" as defined in the Facility A Credit
Agreement.
"Facility A Notes": the "Notes" as defined in the Facility A Credit
Agreement.
"Facility A Reimbursement Obligations": the "Reimbursement
Obligations" as defined in the Facility A Credit Agreement.
"Facility B Administrative Agent": the "Administrative Agent" as
defined in the Facility B Credit Agreement.
"Facility B Agents": the "Agents" as defined in the Facility B
Credit Agreement.
"Facility B Commitments": the "Commitments" as defined in the
Facility B Credit Agreement.
"Facility B Credit Agreement": that certain Amended and Restated 364
Day Credit Agreement of even date herewith among the Borrower, the
Facility B Lenders, BOA as administrative agent, LCPI as syndication agent
and documentation agent, LCPI and Banc of America Securities, LLC as
arrangers and certain financial institutions named as co-agents, as the
same may be amended, supplemented, restated or otherwise modified from
time to time.
"Facility B Credit Documents": the "Credit Documents" as defined in
the Facility B Credit Agreement.
"Facility B Eurodollar Tranche": "Eurodollar Tranche" as defined in
the Facility B Credit Agreement.
"Facility ▇ ▇/C Obligations": the "L/C Obligations" as defined in
the Facility B Credit Agreement.
"Facility B Lenders": the "Lenders" as defined in the Facility B
Credit Agreement.
"Facility B Loan Exposure": the "Loan Exposure" as defined in the
Facility B Credit Agreement.
"Facility B Loans": the "Loans" as defined in the Facility B Credit
Agreement.
"Facility B Notes": the "Notes" as defined in the Facility B Credit
Agreement.
"Facility B Reimbursement Obligations": the "Reimbursement
Obligations" as defined in the Facility B Credit Agreement.
11
"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.
"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.
"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 on the Closing Date.
"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
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued
a reimbursement 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
12
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 Guarantee.
"Immaterial Subsidiary": any Subsidiary of the Borrower having
assets not exceeding five percent (5%) of the Consolidated Total Assets.
"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
and all reimbursement and other obligations with respect to any letters of
credit and surety bonds, whether or not matured or drawn, (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.
"Initial 1997 Credit Agreement": the Credit Agreement, dated as of
April 30, 1997 among the Borrower, the lenders party thereto from time to
time, ▇▇▇▇▇▇ Brothers Inc. as arranger, LCPI as syndication agent and
documentation agent and BOA as administrative agent.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"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.
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"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;
(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;
(c) solely for the purpose of permitting the Borrower to repay
the Loans owing to Nonconsenting Lenders on the Termination Date in
connection with the exercise of an Extension Option, a period commencing
on the last day of the preceding Interest Period, with respect to such
Eurodollar Loan and ending on a Business Day which is seven (7) days
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; and
(d) solely for the purpose of permitting the Borrower and the
Arrangers to complete syndication of the Commitments, a period commencing
on the borrowing date, conversion date, or last day of the preceding
Interest Period, as the case may be, with respect to such Eurodollar Loan
and ending on a Business Day which is seven (7) days 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 borrowing date, conversion date or Interest Period with respect
thereto; provided, that such Interest Period option shall terminate and
cease to be available to Borrower on the Syndication Completion Date;
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 applicable Termination Date shall end on the applicable
Termination Date; and
(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
14
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.
"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.
"Judgment Currency": as defined in subsection 10.16 (b).
"LBI": as defined in the recitals to this Agreement.
"LCPI": as defined in the recitals to this Agreement.
"Lender" and "Lenders": the persons identified as Lenders and listed
on the signature pages of this Agreement, together with their successors
and permitted assigns pursuant to subsection 10.6; provided that the term
"Lenders", when used in the context of a particular Commitment, shall mean
Lenders having that Commitment.
"LIBOR": as to any Interest Period, the rate per annum determined on
the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period quoted
on the second Eurodollar Business Day prior to the first day of such
Interest Period, as such rate appears on the Dow ▇▇▇▇▇ Page 3750 as of
11:00 A.M. (London time) on such date, as determined by the Administrative
Agent and notified to the Lenders and the Borrower on such second prior
Eurodollar Business Day. If LIBOR cannot be determined based on the Dow
▇▇▇▇▇ Page 3750, LIBOR means the rate per annum, as supplied to the
Administrative Agent, quoted by BOA's London Branch to prime banks in the
London interbank market for deposits in Dollars at approximately 11:00
A.M. (London time) two Eurodollar Business Days prior to the first day of
such Interest Period in an amount approximately equal to the principal
amount of the Loans to which such Interest Period is to apply and for a
period of time comparable to 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 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.
"Loan Account": as defined in subsection 2.5(g).
15
"Loan Exposure": with respect to any Lender as of any date of
determination, (i) if there are no outstanding Loans, that Lender's
Commitment, and (ii) otherwise, the sum of the aggregate outstanding
principal amount of the Loans of that Lender.
"Managing Agents": those Lenders which, from time to time, are
designated in writing by the Administrative Agent and the Syndication
Agent as "Managing Agents" under this Agreement.
"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) solely for purposes of the representations and
warranties of Borrower made on the Closing Date, the Acquisition.
"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.
"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 Holdings or any of its Subsidiaries of
Indebtedness after the Closing Date;
(b) any issuance by Holdings or any of its Subsidiaries of any
Capital Stock after the Closing Date;
(c) any Asset Sale; and
(d) 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;
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
16
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.
"New Investment Sublimit" shall mean, as of any date of
determination thereof, an amount equal to (a) $650,000,000 plus (b) (i)
Net Proceeds derived from Asset Sales during the immediately preceding
twelve (12) month period and (ii) Net Proceeds from any Asset Sale that
were reinvested within the twelve (12) month period following such Asset
Sale for the purposes permitted in subsection 7.9(k) to the extent not
included in subclause (i) of this clause (b) plus (c) net cash proceeds
derived from the issuance of any equity securities of Holdings which are
contributed to the Borrower as additional equity capital minus the amount
of any Capital Expenditures funded in any fiscal year of the Borrower and
its Subsidiaries which exceeds the amounts permitted during such fiscal
year pursuant to subsection 7.8 hereof (without giving effect to the
second proviso thereto referring to subsection 7.9(k)).
"New Lender": as defined in subsection 2.1(a)(i).
"New Subordinated Debt Documents": the New Subordinated Notes, the
New Subordinated Notes Indenture, the Underwriting Agreement dated as of
May 18, 1998 among Borrower, its domestic Subsidiaries, ▇▇▇▇▇▇ Brothers
Inc., and BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (n/k/a Banc of America Securities
LLC) and any other documents or agreements executed in connection
therewith.
"New Subordinated Debt Indenture": the Indenture between the
Borrower and the Bank of New York, as trustee, pursuant to which the New
Subordinated Notes were issued.
"New Subordinated Notes": the Borrower's 8 1/2% Senior Subordinated
Notes, due 2008 ("Initial New Subordinated Notes") issued on or about May
22, 1998 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.
"Non-Excluded Taxes": as defined in subsection 2.15.
"Non-U.S. Lender": as defined in subsection 2.15(b).
"Nonconsenting Lenders": as defined in subsection 2.17.
"Notes": (i) the promissory notes of the Borrower issued pursuant to
subsection 2.5(i) of this Agreement on or after the Closing Date to
evidence the Loans of any Lender and (ii) any promissory notes issued by
the Borrower pursuant to subsection 10.6(d) in
17
connection with assignments of the Commitments and Loans of any Lenders,
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.
"Obligations": as defined in the Guarantees and the Pledge
Agreements.
"Option Agreements": the Option Agreements between Holdings and each
of ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, each dated as of April 30, 1997.
"Original Agents": the "Agents" under and as defined in the Original
Credit Agreement.
"Original Closing Date": August 13, 1998.
"Original Credit Agreement": as defined in the preamble to the
Facility B Credit Agreement.
"Original Lenders": as defined in the preamble to this Agreement.
"Parent Distributions": as defined in the Parent Guarantee.
"Parent Guarantee": the Second Amended and Restated 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 Agreement": the Second Amended and Restated Parent
Pledge 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 (i) pay
franchise taxes and other fees required to maintain its legal existence
and (ii) 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 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, provided that, with respect to this clause (C), (i) as of the last
day of the most
18
recently completed fiscal quarter the Debt Ratio is less than or equal to
3.5 to 1, and (ii) the aggregate amount of dividends paid by the Borrower
to Holdings under this clause (C) since the Original Closing Date does not
exceed $5,000,000.
"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.
"Pledge Agreements": the collective reference to the Parent Pledge
Agreement, the Borrower Pledge Agreement, the Charge Over Shares, the
Subsidiary Pledge Agreement, and any 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.
"Principals": each of ▇▇▇▇▇▇ Brothers Holdings, Inc., Capital
Partners, the Seller, ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
"Properties": as defined in subsection 4.16.
"Purchase Agreement": the Purchase Agreement, dated as of April 25,
1997, among the Borrower and each of ▇▇▇▇▇▇ Brothers, Inc. and BancAmerica
Securities, Inc.
"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 ▇▇▇▇▇▇
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.
"Related Party": with respect to the Principals, (a) any controlling
stockholder, 51% (or more) owned Subsidiary, or spouse or 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.
19
"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 Loan Exposure for all
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 of Lenders
having Loan Exposure, Lenders having or holding 66 2/3% of the aggregate
Loan Exposure of all Lenders, (b) for the Class of Facility A Lenders
having Facility A Loan Exposure, Facility A Lenders having or holding 66
2/3% of the aggregate Facility A Loan Exposure of all Facility A Lenders
and (c) for the Class of Facility B Lenders having Facility B Loan
Exposure, Facility B Lenders having or holding 66 2/3% of the aggregate
Facility B Loan Exposure of all Facility B 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 Pledge
Agreements.
"SPD Technologies": SPD Technologies Inc., a Delaware corporation.
"SPD Technologies Acquisition Agreement": the Agreement and Plan of
Merger, dated as of July 2, 1998, among L-3 Communications Corporation,
SPD Merger Co., SPD Technologies, Inc. and Midmark Capital L.P.
"SEC": the Securities and Exchange Commission.
"Securities Act": Securities Act of 1933, as amended.
"Seller": Lockheed ▇▇▇▇▇▇ Corporation, a Maryland corporation.
"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 or any business of the Borrower
and/or its Subsidiaries existing as of the Closing Date, and (iv) any
combination of any of the foregoing.
20
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, as of any date of
determination, (a) the amount of the "present fair saleable value" of the
assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as
such quoted terms are determined in accordance with applicable federal and
state laws governing determinations of the insolvency of debtors, (b) the
present fair saleable value of the assets of such Person will, as of such
date, be greater than the amount that will be required to pay the
liability of such Person on its debts as such debts become absolute and
matured, (c) such Person will not have, as of such date, an unreasonably
small amount of capital with which to conduct its business, (d) such
Person will be able to pay its debts as they mature, and (e) such Person
is not insolvent within the meaning of any applicable Requirements of Law.
For purposes of this definition, (i) "debt" means liability on a "claim",
and (ii) "claim" means any (x) 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 (y) 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 or
unmatured, disputed, undisputed, secured or unsecured.
"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
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, the New Subordinated Notes and/or the December 1998 Subordinated
Notes.
"Subordinated Debt Documents": the Indenture, the Registration
Rights Agreement, the Purchase Agreement and the Subordinated Notes.
"Subordinated Notes": the Borrower's 103/8 % Senior Subordinated
Notes, due 2007 (the "Initial Subordinated Notes"), issued on April 30,
1997, and any 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 ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Capital
Partners and the Seller, each dated as of April 30, 1997.
"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
21
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 Guarantee": the Second Amended and Restated Subsidiary
Guarantee substantially in the form of Exhibit B-2, to be executed and
delivered by the Borrower's Subsidiaries (other than any Immaterial
Subsidiary or Foreign Subsidiary of the Borrower), as the same may be
amended, supplemented or otherwise modified.
"Subsidiary Pledge Agreement": the Second Amended and Restated
Subsidiary Pledge Agreement substantially in the form of Exhibit B-5, to
be executed and delivered by the Borrower's Subsidiaries (other than any
Immaterial Subsidiary or Foreign Subsidiary of the Borrower), as the same
may be amended, supplemented or otherwise modified.
"Swing Line Lender": as defined in the Facility A Credit Agreement.
"Syndication Completion Date": shall mean the earlier to occur of
(i) the date on which syndication of the Commitments has occurred to the
mutual satisfaction of the Arrangers and the Borrower and (ii) 180 days
from the Closing Date.
"Termination Date": April 27, 2001, as the same may be extended in
accordance with subsection 2.5(a) hereof.
"Tranche": the collective reference to Eurodollar Loans with
then-current Interest Periods which all begin on the same date and end on
the same date (whether or not such Loans shall originally have been made
on the same day); Tranches may be identified as "Eurodollar Tranches".
"Transaction": the transactions contemplated by the Transaction
Documents.
"Transaction Agreement": that certain Transaction Agreement, dated
as of March 28, 1997 by and among Lockheed ▇▇▇▇▇▇ Corporation, a Maryland
corporation, Holdings, Capital Partners and its Affiliates, ▇▇▇▇▇ ▇. ▇▇▇▇▇
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
"Transaction Documents": (i) the Transaction Agreement, the
Schedules thereto and related documentation, (ii) the Equity Documents,
(iii) the Subordinated Debt Documents and (iv) the New Subordinated Debt
Documents.
"Transferee": as defined in subsection 10.6(f).
22
"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.
"Voting Stock": of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"Year 2000 Problem": any significant risk that computer hardware,
software or equipment containing embedded microchips essential to the
business or operations of the Borrower or any of its Subsidiaries will
not, in the case of dates or time periods occurring after December 31,
1999, function at least as effectively and reliably as in the case of
dates or time periods occurring before January 1, 2000, including the
making of accurate leap year calculations.
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 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 subsection
2.1(a) as applicable to the Borrower.
(i) Loans. Each Lender severally agrees to make revolving credit
loans to the Borrower, from time to time during the Commitment Period, in
an aggregate principal
23
amount at any one time outstanding which does not exceed the amount of
such Lender's Commitment. During the Commitment Period, the Borrower may
use the Commitments by borrowing, prepaying the Loans, in whole or in
part, and reborrowing, all in accordance with the terms and conditions
hereof.
(b) 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, except as
contemplated in clause (c) of the definition of Interest Period, no
Loan shall be made as a Eurodollar Loan after the day that is one
month prior to the applicable Termination Date.
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 Base
Rate Loan), specifying (i) the amount to be borrowed, (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, $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), and (y) in the case of Eurodollar Loans,
$5,000,000 or a whole multiple of $100,000 in excess thereof; provided that the
Borrower may nevertheless borrow amounts below such minimum amounts in clauses
(x) or (y) above solely for the purpose of (i) repaying Loans owing to any
Nonconsenting Lenders on the Termination Date and (ii) permitting the addition
of any New Lender or increasing the Commitment of any existing Lender pursuant
to subsection 2.1(a)(i). 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 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 in accordance
with the Borrower's payment instructions 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 Lender a commitment fee for the period from and
including the first day of the Commitment Period to and including the
Termination Date, computed at the
24
Commitment Fee Rate on the daily amount of the Available Commitment of such
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
Termination Date, commencing on the first of such dates to occur after the date
hereof.
2.4 Termination or Reduction of Commitments. The Borrower shall have
the right, upon not less than three Business Days' written notice to the
Administrative Agent, to terminate the Commitments or, from time to time, to
reduce the amount of the Commitments ratably among the Lenders; provided that no
such termination or reduction shall be permitted if, after giving effect thereto
and to any prepayments of the Loans made on the effective date thereof, the
aggregate principal amount of the Loans then outstanding, would exceed the
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 Commitments then in effect.
2.5 Extension of Termination Date; Repayment of Loans; Evidence of
Debt.
(a) Extension of Termination Date. The Borrower may elect to
forward to the Administrative Agent (for distribution to each
Lender) no earlier than sixty (60) but no later than fifty-five (55)
days prior to the initially scheduled Termination Date a written
request asking each Lender to consent to the extension of the
Termination Date for one (1) additional 364 day period. Not later
than 30 days after receipt of such written request, each Lender
shall advise the Administrative Agent and the Borrower in writing
whether such Lender consents to the proposed extension if all the
conditions, including those set forth in subsection 5.2 of this
Agreement, thereto have been satisfied. If all of the Lenders have
consented in writing to such extension and all conditions set forth
in subsection 5.2 shall have been satisfied, then effective on the
initially scheduled Termination Date, the Termination Date shall be
deemed automatically extended by an additional 364 day period
(herein, the "Extension Option"). If less than all of the Lenders
consent to the exercise of the proposed Extension Option (the
"Extending Lenders"), the Borrower may replace all, some or none of
such Nonconsenting Lenders on or before the initially scheduled
Termination Date pursuant to subsection 2.17 and repay all
outstanding Loans owing to each Nonconsenting Lender that is not
being replaced, if any, on the initially scheduled Termination Date
(without giving effect to the Extension Option); provided that if
the Extending Lenders do not hold more than 50% of the outstanding
Commitments, the Borrower will not be entitled to exercise the
Extension Option with respect to any Extending Lenders nor shall any
Lender failing to consent to the Extension Option be deemed a
Nonconsenting Lender and be subject to replacement under subsection
2.17 as a result thereof. Subject to the foregoing proviso, if the
Borrower desires to exercise the Extension Option with the Extending
Lenders, Borrower shall provide the Administrative Agent (for
distribution to each Lender) with not less than five (5) days prior
written notice thereof in addition to satisfying all conditions
precedent set forth above (other
25
than the requirement that all Lenders have timely consented to the
Extension Option). On the date the Extension Option becomes
effective, Schedule I hereto shall be deemed amended to accurately
reflect the Commitments of the Lenders then in existence and the
Administrative Agent shall promptly deliver a copy of such amended
Schedule I to each Lender and the Borrower.
(b) [Intentionally Omitted].
(c) Replacement of Nonconsenting Lenders. If any Lender
declines to consent or fails to timely indicate its consent to the
exercise by Borrower of the Extension Option and the Extending
Lenders hold more than 50% of the Commitments, such Lender shall be
deemed a Nonconsenting Lender and be subject to replacement in
accordance with the terms of subsection 2.17 hereof.
(d) Payments on Loans. The Borrower hereby unconditionally
promises to pay to the Administrative Agent on the Termination Date
(or such earlier date on which the Loans become due and payable
pursuant to Section 8) for the account of each Lender the then
unpaid principal amount of each Loan of such Lender.
(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) Loan Accounts and Register; Notes.
(i) The Loans made by, and the Commitments of, each Lender shall be
evidenced by one or more loan accounts ("Loan Accounts") maintained by
such Lender and by the Register maintained by the Administrative Agent in
the ordinary course of business. The Register maintained by the
Administrative Agent shall, in the event of a discrepancy between the
entries in the Administrative Agent's books and any Lender's books
relating to such matters, be controlling and, absent manifest error, shall
be conclusive as to the amount of the Loans made by the Lender to the
Borrower, the interest and payments thereon and any other amounts owing in
respect of this Agreement. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for purposes
of this subsection 2.5(g) and subsection 10.6, to maintain the Register on
which it will record the Commitments from time to time of each of the
Lenders, the Loans made by each of the Lenders and each repayment in
respect of the principal amount of the Loans of each Lender. The Borrower
agrees to indemnify the
26
Administrative Agent from and against any and all losses, claims, damages
and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Administrative Agent in performing its duties
under this subsection 2.5(g) and subsection 10.6 (other than any losses,
claims, damages and liabilities to the extent incurred by reason of the
gross negligence or willful misconduct of the Administrative Agent).
(ii) If requested by any Lender, the Borrower shall execute and
deliver to such Lender (and deliver a copy thereof to the Administrative
Agent) one or more promissory notes evidencing the Loans owing to such
Lender pursuant to this Agreement in accordance with subsection 2.5(i).
(h) Prima Facie Evidence. The entries made in the Register and
the Loan 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 Loan 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. For the avoidance of
doubt, the existence or non-existence of any Note representing any
Obligations owing to any Lender hereunder shall not affect the
existence, amount, validity or enforceability of such Obligations,
which in all events shall be absolute and unconditional.
(i) Notes. The Borrower agrees that the Borrower will execute
and deliver to each Lender that requests any such Note pursuant to
subsection 2.5(g)(ii), a promissory note of the Borrower evidencing
the Loans of such Lender, substantially in the form of Exhibit A-1
with appropriate insertions as to date and principal amount (a
"Note").
2.6 Optional Prepayments; Mandatory Prepayments and Reduction of
Commitments.
(a) Subject to subsections 2.12 and 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 in the case of
Eurodollar Loans or on any Business Day in the case of Base Rate
Loans, specifying the date and amount of prepayment of the Loans
(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,
27
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 $100,000 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 ratably applied toward the
prepayment of the Loans, the Facility A Loans and the Facility B Loans and
permanent reduction of the Commitments, the Facility A Commitments and the
Facility B 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 Original Closing Date, Holdings or any of
its Subsidiaries shall receive Net Proceeds from any Asset Sale, such Net
Proceeds, subject to the Applicable Holdback (defined below) shall be
promptly and ratably applied toward the prepayment of the Loans, the
Facility A Loans and the Facility B Loans and permanent reduction of the
Commitments, the Facility A Commitments and the Facility B 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, subject to the Applicable Holdback (as defined below),
are not so used, 100% of the amount of such Net Proceeds not so used 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. As used herein, "Applicable Holdback" shall mean an
amount of Net Proceeds not in excess of $20,000,000 derived from any Asset
Sales occurring since the Original Closing Date that has not been applied
toward the prepayment of Loans and the permanent reduction of the
Commitments as set forth in clause (iv) of subsection 2.6(b) which
Borrower and/or its applicable Subsidiary may retain and not apply as a
mandatory prepayment without the requirement of utilizing the same to
acquire assets to be employed in the business of the Borrower or such
applicable Subsidiary; provided, that if any Event of Default shall have
occurred and be continuing, the Applicable Holdback amount shall be
automatically reduced to zero unless and until such Event of Default is
acknowledged in writing by the Required Lenders (or all the Lenders in
cases where the unanimous consent of the Lenders is required) as cured or
waived.
(iii) If, subsequent to the Closing Date, any Capital Stock shall be
issued by Holdings, the Borrower or any of its Subsidiaries, an amount
equal to 50% of the Net Proceeds thereof shall be promptly ratably applied
on the date of such issuance toward the prepayment of the Loans, and
permanent reduction of the Commitments, as set forth
28
in clause (iv) of this subsection 2.6(b). Nothing in this paragraph (b)
shall be deemed to permit any issuance of Capital Stock not permitted by
subsection 7.6.
(iv) Except during any period in which an Event of Default has
occurred and is continuing, any mandatory prepayments required by
subsection 2.6(b)(i) and (ii) shall be applied ratably to the outstanding
principal amount of Facility A Loans, Facility B Loans and Loans, with a
corresponding ratable permanent reduction of the Facility A Commitments,
the Facility B Commitments and the Commitments. Commitment, Facility A
Commitment and Facility B Commitment reductions made pursuant to
subsections 2.6(b)(i) and (ii) (and the corresponding subsections of the
Facility A Credit Agreement and the Facility B Credit Agreement) hereof
shall be applied to each Lender's respective Commitment, each Facility A
Lender's Facility A Commitment and/or each Facility B Lender's Facility B
Commitment, as applicable, on a pro rata basis and shall reduce
permanently such Commitments, Facility A Commitments and Facility B
Commitments. In addition, except during any period in which an Event of
Default has occurred and is continuing, any mandatory prepayments required
by subsection 2.6(b)(iii) shall be applied ratably to the outstanding
principal amount of Loans, with a corresponding permanent reduction of the
Commitments. The Commitment reductions made pursuant to subsection
2.6(b)(iii) hereof shall be applied to each Lender's respective Commitment
and shall reduce permanently such Commitments. At any time that an Event
of Default has occurred and is continuing, all mandatory prepayments shall
be applied in accordance with the terms of subsection 2.12 hereof (and the
corresponding subsection of the Facility A Credit Agreement and the
Facility B Credit Agreement). Mandatory prepayments shall not be subject
to any minimum amount requirement.
(v) If after giving effect to any reduction of the Commitments under
subsection 2.4, 2.5 or 2.6, the aggregate outstanding principal amount of
Loans shall exceed the aggregate amount of the Commitments, such reduction
or recalculation shall be accompanied by prepayment in the amount of such
excess to be applied to the Loans.
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 at 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 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. The Borrower may elect from time to time to convert Base
Rate Loans to Eurodollar Loans by giving the Administrative Agent
prior irrevocable notice of such election at 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 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
29
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 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 $100,000 in excess thereof; provided that the Borrower may
nevertheless borrow amounts in any Eurodollar Tranche below such minimum amounts
solely for the purpose of (i) repaying Loans owing to any Nonconsenting Lenders
on the Termination Date or (ii) permitting the addition of any New Lender or any
increasing the Commitment of any existing Lender pursuant to subsection
2.1(a)(i). 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 subsection 2.2 above. In no event shall the
number of outstanding Eurodollar Tranches under this Agreement plus the number
of outstanding Facility A Eurodollar Tranches and Facility B Eurodollar Tranches
exceed 20 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.
30
(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
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
31
(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 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 Lenders hereunder,
each payment by the Borrower on account of any commitment fee
hereunder and any reduction of the Commitments of Lenders shall be
made pro rata according to the respective Commitment Percentages of
the Lenders. Except during any period in which an Event of Default
has occurred and is continuing, each payment (including each
prepayment) by the Borrower on account of principal of and interest
on the Loans, and any application by the Administrative Agent of the
proceeds of any Collateral, 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, fees, expenses 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. At
any time that an Event of Default has occurred and is continuing,
all payments (including prepayments) made by Borrower hereunder and
any application by the Administrative Agent of the proceeds of any
Collateral and/or payment under any Guarantee shall be applied in
the following order: (1) to the ratable payment of all amounts due
and owing by the Borrower pursuant to subsection 10.5 of this
Agreement, subsection 10.5 of the Facility A Credit Agreement or
subsection 10.5 or the Facility B Credit Agreement to the Agents,
the Facility A Agents and/or the Facility B Agents and, after
payment in full thereof, to any other Lender, Facility A Lender or
Facility B Lender; (2) to the ratable payment of all interest, fees
and commissions due and owing under this Agreement, the Facility A
Credit Agreement or the Facility B Credit Agreement
32
or to the Agents, the Facility B Agents, the Facility A Agents, the
Swing Line Lender, any Lender, any Facility A Lender or any Facility
B Lender; (3) to the ratable payment (or cash collateralization) of
the aggregate outstanding principal amount of Loans, Facility A
Loans and Facility B Loans and the aggregate Facility A L/C
Obligations and Facility ▇ ▇/C Obligations; and (4) to the ratable
payment of all other obligations of the Borrower to the Agents, the
Facility A Agents, the Facility B Agents, the Swing Line Lender, any
Lender, any Facility A Lender or any Facility B Lender under any
Credit Document, Facility A Credit Document or Facility B Credit
Document. The Administrative Agent, the Facility A Administrative
Agent and the Facility B Administrative Agent shall ratably
distribute such payments to the applicable Lenders, the Facility A
Lenders and the Facility B 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 canceled and (b)
such Lender's Loans then outstanding as Eurodollar Loans, if any, shall be
33
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 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 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
34
become so entitled. If the Borrower so 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 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
35
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 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
36
(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 W-8 ECI (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 W-8 BEN (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 E (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 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 W-8
ECI or W-8 BEN, 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 E
(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
37
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 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
38
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 subsections, (b) any Lender
ceases to make Eurodollar Loans pursuant to subsection 2.13, (c) any Lender
becomes insolvent and its assets become subject to a receiver, liquidator,
trustee, custodian or other Person having similar powers or (d) any Lender
becomes a "Nonconsenting Lender" (hereinafter defined), then the Borrower may,
on five (5) 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, (iii) in the
event of a replacement of a Nonconsenting Lender or a Lender to which the
Borrower becomes obligated to pay additional amounts under one of the
subsections described in clause (a) above, in order for the Borrower to be
entitled to replace such a Lender, such replacement must take place no later
than 180 days after (A) the date the Nonconsenting Lender shall have notified
the Borrower and the Administrative Agent of its failure to agree to any
requested consent, waiver or amendment or (B) the Lender shall have demanded
payment of additional amounts under one of the subsections described in clause
(a) above, as the case may be, and (iv) in no event shall the Lender hereby
replaced be required to pay or surrender to its 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
39
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 or consent to the Extension Option, (y) the consent, waiver or
amendment in question requires the agreement of all Lenders in accordance with
the terms of subsection 10.1 or relates to a request to exercise the Extension
Option under subsection 2.5(a) 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 Borrower agrees to pay to the Administrative
Agent, for its own account, the non-refundable fees at the times and in the
amounts as set forth in that certain fee letter between the Administrative Agent
and the Borrower dated on or about March 1, 2000
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 subsection 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 or other amounts 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
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. [INTENTIONALLY OMITTED]
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement
and to make the Loans, the Borrower hereby represents and warrants to the Agents
and each Lender that:
40
4.1 Financial Condition.
(a) The following financial statements concerning Borrower and
its Subsidiaries have been delivered to the Agents and the Lenders
and have been prepared in accordance with GAAP consistently applied
throughout the periods covered (except as disclosed therein and
except, with respect to unaudited financial statements, for the
absence of footnotes and normal year-end audit adjustments) and
present fairly in all material respects the financial position of
the Persons covered thereby as at the dates thereof and the results
of their operations and cash flows for the periods then ended:
(i) The audited consolidated balance sheets at December 31, 1998 and
the related statements of income and cash flows of Borrower and its
Subsidiaries for the fiscal year then ended, certified by
PricewaterhouseCoopers L.L.P.
(ii) The unaudited condensed consolidated balance sheet(s) at
September 30, 1999 and the related statement(s) of income and cash flows
of Borrower and its Subsidiaries for the fiscal quarter then ended.
(b) The unaudited pro forma consolidated balance sheet of the
Borrower and its consolidated Subsidiaries which has been delivered
pursuant to subsection 5.1(o) has been prepared based on the best
information available to the Borrower as of the date of delivery
thereof and presents fairly on a pro forma basis the estimated
financial position of the Borrower and its consolidated
Subsidiaries, as at December 31, 1999, adjusted to give effect to
the acquisition by Borrower of (i) the Training Devices and Training
Systems ("TDTS") assets of Raytheon, Inc. and (ii) the assets of
Honeywell Inc.'s Traffic Alert and Collision Avoidance System
product line.
4.2 No Change. Since September 30, 1999 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.
41
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. 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 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 will be, duly executed and delivered on behalf of the Borrower
and each other Credit Party. This Agreement constitutes, and each other Credit
Document to which it is a party when executed and delivered will constitute, 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: (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 Pledge Agreements.
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 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, or a
valid leasehold interest in, all its material real property, (ii) has good title
to, or a valid leasehold interest in, all its other
42
material property and (iii) none of such property in clauses (i) and (ii) 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 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 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
43
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 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. 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 pay the cash portion of the purchase price for the Acquired
Company pursuant to the Acquisition Documents, (ii) to pay fees and expenses
related to the preparation and negotiation of the Acquisition Documents, this
Agreement and the other Credit Documents and (iii) for general corporate and
working capital purposes in the ordinary course of business of the Borrower and
its Subsidiaries, including, without limitation, the making of Investments
permitted under subsection 7.9.
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:
44
(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,
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
45
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. Upon execution and delivery thereof by
the parties thereto, each Pledge 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, together with
undated stock powers executed in blank therefor, 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.
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. Neither Holdings, the Borrower nor any
Subsidiary of the Borrower is aware of any material liability of the Borrower or
any of its Subsidiaries which is not fully disclosed in the most recent
financial statements delivered to the Agents and Lenders pursuant to subsections
4.1 and 6.1 hereto.
4.19 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.
4.20 Acquisition. The Acquisition Documents listed on Schedule 4.20
attached hereto constitute all of the material agreements, instruments and
undertakings to which Holdings, the Borrower or any of its Subsidiaries is bound
or by which such Person or any of its property or assets is bound or affected
relating to, or arising out of, the Acquisition (including, without limitation,
any agreements, instruments or undertakings assumed pursuant to the Acquisition
Documents). None of such material agreements, instruments or undertakings have
been amended, supplemented or otherwise modified, and all such material
agreements, instruments and undertakings are in full force and effect. As of the
Closing Date, the Borrower is not in default under any of the Acquisition
Documents and, to the best of Borrower's knowledge, no other party to any
Acquisition Document is in default thereunder. Upon the funding of the initial
Loan under this Agreement on the Closing Date, the Acquisition shall have been
consummated in accordance with the material terms of the Acquisition Documents.
As of the Closing Date, the representations and warranties of the Borrower
contained in the Acquisition Documents are true and correct in all material
respects.
46
4.21 Solvency.
Each Credit Party is, and after giving effect to the Acquisition and
the incurrence of all Indebtedness and obligations being incurred in connection
with the Credit Documents and the Acquisition will be and will continue to be,
Solvent.
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) on the Closing Date, of
the following conditions precedent:
(a) Credit Documents. The Administrative Agent shall have
received (i) this Agreement, (ii) the Guarantees and (iii) the
Pledge Agreements, 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 Immaterial Subsidiary or Foreign Subsidiary of the
Borrower shall be required to execute a Subsidiary Guarantee or
Subsidiary Pledge Agreement, and no more than 65% of the capital
stock of or equity interests in any Foreign Subsidiary of the
Borrower or any of its 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) Fees and Expenses. The Agents, the Arrangers and the
Lenders shall have received all fees, expenses and other
consideration required to be paid on or before the Closing Date and
all attorneys fees and disbursements incurred by the Agents in
connection with this Agreement shall have been paid on or before the
Closing Date.
(c) Good Standing Certificates. The Administrative Agent shall
have received certificates of good standing for each Credit Party
issued by the Secretary of State (or other relevant governmental
officers) of the jurisdiction of incorporation of each Credit Party.
(d) Consents, Authorizations and Filings, Etc. 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. In addition, all governmental,
shareholder and third party consents, authorizations,
47
approvals and filings, if any, necessary or, in the reasonable
discretion of the Agents, advisable in connection with the
Acquisition, the continuing operations of Holdings, the Borrower and
its Subsidiaries and the transactions contemplated hereby and by the
Acquisition Documents shall have been obtained and be in full force
and effect, and all applicable waiting periods (including any under
the ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as
amended), if any, shall have expired without any action being taken
or threatened by any competent authority which would restrain,
prevent or otherwise impose materially adverse conditions on the
Acquisition or the financing contemplated hereby.
(e) Insurance. The Lenders shall have received (i) a
reasonably satisfactory schedule describing all insurance maintained
by the Borrower and its Subsidiaries 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.
(f) Litigation. On the Closing Date, there shall not exist
actions, suits or proceedings pending or threatened against any
Credit Party or any order, decree, judgment, ruling or injunction
(a) with respect to this Agreement or any other Credit Document or
any Acquisition Document or the transactions contemplated hereby or
thereby, (b) which the Agents or the Required Lenders shall
determine could reasonably be expected to have a Material Adverse
Effect or (c) which restrains the consummation of the Acquisition in
the manner contemplated by the Acquisition Documents.
(g) 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 D, 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.
(h) 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 and Acquisition Documents to
which it is a party, (ii) the borrowings contemplated hereunder, and
(iii) the stock pledges pursuant to the Borrower Pledge Agreement,
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.
48
(i) 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 or Acquisition 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 the Borrower.
(j) 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, and (ii) the granting by it of the Liens created
pursuant to the Pledge Agreements 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.
(k) 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.
(l) 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.
(m) Legal Opinions. The Administrative Agent shall have
received, with a counterpart for each Lender the executed legal
opinion of each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇, special counsel to
the Credit Parties, and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President -
General Counsel and Secretary of the Borrower and counsel to the
other Credit Parties, substantially in the form of Exhibits C-1 and
C-2, respectively. Each such legal opinion shall cover such other
matters incident to the transactions contemplated by this Agreement
as the Agents may reasonably require.
(n) Pledged Stock; Stock Powers. The Administrative Agent
shall have received the certificates representing the shares pledged
pursuant to each of
49
the Pledge Agreements together with an undated stock power for each
such certificate executed in blank by a duly authorized officer of
the pledgor thereof. The Administrative Agent shall have also
received any other documents reasonably requested by and in form and
substance satisfactory to the Administrative Agent evidencing that
the Administrative Agent (on behalf of the Lenders) holds, on a
ratable basis with the Facility A Administrative Agent and the
Facility B Administrative Agent, a perfected, first priority Lien in
all of the Collateral, subject only to Permitted Liens.
(o) Pro Forma Financials. The Lenders shall have received a
reasonably satisfactory unaudited pro forma consolidated balance
sheet of the Borrower and its Subsidiaries as of December 31, 1999
which shall present fairly, in all material respects, on a pro forma
basis, the estimated financial condition of the Borrower and its
Subsidiaries as of such date, as adjusted to give effect to the
acquisition by Borrower of (i) the Training Devices and Training
Systems ("TDTS") assets of Raytheon, Inc. and (ii) the assets of
Honeywell Inc.'s Traffic Alert and Collision Avoidance System
product line.
(p) Projections. Each Lender shall have received financial
projections of the Borrower in form and substance reasonably
satisfactory to the Agents prepared by the Borrower.
(q) No Default. No Default or Event of Default shall have
occurred and be continuing.
(r) Facility A Credit Agreement. All conditions set forth in
clauses (a) through (q) of subsection 5.1 of the Facility A Credit
Agreement shall have been satisfied or waived in writing by the
Facility A Lenders required to affect a waiver of such condition.
(s) Facility B Credit Agreement. All conditions set forth in
clauses (a) through (q) of subsection 5.1 of the Facility B Credit
Agreement shall have been satisfied or waived in writing by the
Facility B Lenders required to affect a waiver of such condition.
(t) Acquisition; Closing Certificate. Each of the Acquisition
Documents shall have been executed and delivered by each of the
parties thereto and shall be in form and substance reasonably
satisfactory to the Agents, and concurrent with the funding of the
initial Loans under this Agreement, the Acquisition shall be
consummated in accordance with the material terms and conditions of
the Acquisition Documents. The Agents shall have received a
certificate of a Responsible Officer, in form and substance
acceptable to the Agents confirming that (i) other than the payment
of the purchase price with the proceeds of Loans, all conditions
precedent to the consummation of the Acquisition in accordance with
the material terms of the Acquisition Documents have been met, (ii)
except as expressly disclosed in the Acquisition Documents,
50
no liabilities (actual or contingent) shall be assumed or incurred
by Holdings, Borrower or its Subsidiaries which are reasonably
likely to result in a Material Adverse Effect and (iii) all
conditions precedent set forth in this Section 5.1 have been met.
(u) Financial and Other Information. The Agents shall have
received and reviewed, with results satisfactory to the Agents, all
diligence information requested with respect to the Acquired Company
and its subsidiaries, if any, with respect to any actual or
contingent liabilities to be assumed by Borrower in connection with
the Acquisition. The Agents shall have also received and found to be
reasonably satisfactory (i) the Confidential Offering Memorandum
(including the related financial summary) concerning the Acquired
Company which was prepared by Honeywell Inc. and (ii) any financial
information concerning the Acquired Company received by Borrower
prior to the Closing Date from Honeywell Inc. and/or its affiliates
or agents.
(v) Solvency Certificate. The Agents shall have received a
solvency certificate in form and substance reasonably satisfactory
to the Agents as to the financial condition and solvency of Holdings
and its Subsidiaries (on a consolidated basis) after giving effect
to the Acquisition and the incurrence of Indebtedness related to
such Acquisition.
(w) No Change. On the Closing Date, there shall not have
occurred any material adverse change since September 30, 1999 in the
business, assets, liabilities operations, property or condition
(financial or otherwise) of Holdings and its Subsidiaries taken as a
whole and/or the Acquired Company and its subsidiaries taken as a
whole.
5.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any extension of credit requested to be provided by it on any
date (including, without limitation, its initial Loan) is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by any 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. Borrower shall not be in violation of Section 4.09
{Incurrence of Indebtedness and Issuance of Preferred Stock} of any
of the Indenture, the New Subordinated Debt Indenture or the
December 1998 Subordinated Debt Indenture on such date nor will such
a
51
violation 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.
Each borrowing by 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 SEC Filings. The Borrower will file on a timely basis with the
SEC, to the extent such filings are accepted by the SEC and whether or not the
Borrower has a class of securities registered under the Exchange Act, the annual
reports, quarterly reports (including with respect to the fourth quarter of each
fiscal year) and other documents that the Borrower would be required to file if
the Borrower were subject to section 13(a) or 15(d) of the Exchange Act. The
Borrower will also be required (i) to deliver to the Administrative Agent and
each Lender, copies of such reports and documents within five days after the
date on which the Borrower files such reports and documents with the SEC or the
date on which the Borrower would be required to file such reports and documents
if the Borrower were so required and (ii) if filing such reports and documents
with the SEC is not accepted by the SEC or is prohibited under the Exchange Act,
to promptly notify the Administrative Agent in writing of the occurrence of any
such event and to supply at the Borrower's cost copies of such reports and
documents to the Administrative Agent and any Lender upon request.
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 certificate of the independent certified
public accountants reporting
52
on such financial statements stating that, in performing their audit,
nothing came to their attention that caused them to believe that the
Borrower failed 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 subsection 6.1, 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) and (ii) 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 certificate of a Responsible Officer of the Borrower
setting forth, in reasonable detail, the computations, as applicable, of
(i) the Debt Ratio and (ii) 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
(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.
6.4 Conduct of Business; Maintenance of Existence and Property;
Compliance with Law. Except as permitted by subsection 7.5 and subsection 7.6,
(a) continue to engage in business of the same general type as now conducted by
it; (b) 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; (c)
keep all property useful and necessary in its business in good working order and
condition (ordinary wear and tear and damage by fire and/or other casualty or
taking by condemnation excepted) except if (i) in the reasonable business
judgment of the Borrower or such Subsidiary, as the case may be, it
53
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; and (d) 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 Insurance. The Borrower will, and will cause each of its
Subsidiaries to maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks as are customarily
maintained by companies of similar stature engaged in the same or similar
businesses operating in the same or similar locations.
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.
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
54
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 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 and delivered any and all documents which
are necessary or advisable to maintain in
55
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 Capital Stock of any newly created or
acquired Subsidiary or any newly issued Capital Stock of any
existing Subsidiary acquired after the Original Closing Date by the
Borrower or any of its Subsidiaries that is intended to be subject
to the Lien created by any of the Pledge Agreements but which is not
so subject, 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 Pledge Agreements 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 Capital Stock, (ii) take all actions
necessary or advisable to cause such Lien to be duly perfected in
accordance with all applicable Requirements of Law, including
delivering all such original certificates evidencing such Capital
Stock to the Administrative Agent together with undated stock powers
executed in blank therefor, and (iii) if requested by the
Administrative Agent or the Required Lenders, 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. Notwithstanding
the foregoing, the Borrower shall not be required to grant to the
Administrative Agent a Lien upon the Capital Stock of any Immaterial
Subsidiary.
(b) With respect to any Person that, subsequent to the
Original Closing Date, becomes a direct or indirect Subsidiary of
the Borrower, promptly (and in any event within 30 days after such
Person becomes a Subsidiary): (i) cause such new Subsidiary to
become a party to the Subsidiary Pledge Agreement and the Subsidiary
Guarantee and (ii) if requested by the Administrative Agent or the
Required Lenders, deliver to the Administrative Agent legal opinions
relating to the matters described in clause (i) immediately
preceding, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign
Subsidiary of the Borrower shall be required to execute a Subsidiary
Guarantee or Subsidiary Pledge Agreement, and no more than 65% of
the Capital Stock of or equity interests in any Foreign Subsidiary
of the Borrower or any of its 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.
6.11 [Intentionally Omitted.]
56
6.12 Foreign Jurisdictions. Maintain due qualification 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.
6.13 Government Contracts. The Borrower and its Subsidiaries shall
apply for and maintain all material facility security clearances and personnel
security 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 Lien Searches. Not later than 45 days following the Closing
Date, the Borrower shall deliver to the Administrative Agent the results of a
search of Uniform Commercial Code, tax and judgment filings made with respect to
each of the Borrower and its Subsidiaries (other than any Immaterial
Subsidiaries) in each jurisdiction in which the Borrower or such applicable
Subsidiary maintains its principal place of business or any material assets and
a certificate of a Responsible Officer certifying that such lien search results
do not disclose any Liens, except for Liens permitted hereunder.
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
--------------------- -----
December 31, 1999 4.75
March 31, 2000 4.75
June 30, 2000 4.75
September 30, 2000 4.50
December 31, 2000 4.50
March 31, 2001 4.50
June 30, 2001 4.50
September 30, 2001 3.75
December 31, 2001 3.75
57
March 31, 2002 3.75
June 30, 2002 3.75
September 30, 2002 3.25
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
----------- -----------------------
10/1/99 - 12/31/99 2.25
1/1/00 - 3/31/00 2.25
4/1/00 - 6/30/00 2.25
7/1/00 - 9/30/00 2.50
10/1/00 - 12/31/00 2.50
1/1/01 - 3/31/01 2.50
4/1/01 - 6/30/01 2.50
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 3.00
10/1/02 - and thereafter 3.00
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, the Facility
A Credit Agreement and the Facility B Credit 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 $25,000,000
at any time outstanding;
(c) Indebtedness assumed in connection with any Investment permitted
pursuant to subsection 7.9(k) hereof.
(d) additional Indebtedness of the Borrower not exceeding
$50,000,000 in aggregate principal amount at any one time outstanding (of
which up to $35,000,000 may be secured by Liens permitted pursuant to
subsection 7.3(i) hereof);
58
(e) Indebtedness of the Borrower in respect of not more than (i)
$225,000,000 principal amount of Subordinated Notes issued on the April
30, 1997 (ii) $180,000,000 principal amount of New Subordinated Notes
issued on May 22, 1998 and (iii) $200,000,000 principal amount of December
1998 Subordinated Notes issued on or about December 8, 1998;
(f) the Indebtedness of the Borrower and its Subsidiaries
outstanding on the Original 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) Guarantee Obligations permitted by subsection 7.4;
(h) 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;
(i) Indebtedness secured by Permitted Liens;
(j) Indebtedness of the Borrower or any of its Subsidiaries (other
than as described under subsection 7.2(a) above) incurred in connection
with the issuance of any surety bonds, performance letters of credit or
other similar performance bonds required pursuant to any Contractual
Obligation or Requirement of Law to which Borrower or any of its
Subsidiaries are subject in an aggregate principal amount not exceeding
$100,000,000 at any time outstanding, less, without duplication, the
aggregate amount of then existing Guarantee Obligations permitted under
7.4(g); and
(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 Borrower's
communications systems west division in Salt Lake City, Utah, on terms
reasonably satisfactory to the Agents.
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;
59
(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;
(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;
(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 subsections 7.2(b) and 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;
60
(i) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Borrower and all Subsidiaries)
$35,000,000 in aggregate amount at any time outstanding;
(j) Liens created pursuant to the Pledge Agreements;
(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 clause (f) of Section 8, 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 $30,000,000 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, the New Subordinated Debt Documents and
the December 1998 Subordinated Debt Documents;
(d) Guarantee Obligations under the Credit Documents and the
Facility A Credit Documents and the Facility B Credit Documents;
61
(e) Facility A L/C Obligations and the Facility ▇ ▇/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; and
(g) Guarantee Obligations in respect of surety bonds and/or
performance letters of credit which shall not exceed $100,000,000 at any
time less, without duplication, the amount of outstanding Indebtedness
permitted under subsection 7.2(j).
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); and
(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.
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 subsection 7.6; provided that the Net Proceeds thereof shall be
applied pursuant to subsection 2.6(b)(ii);
(c) as permitted pursuant to subsection 7.5(b);
(d) the sale, lease, transfer or exchange of inventory in the
ordinary course of business;
62
(e) transfers resulting from any casualty or condemnation of
property or assets;
(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) the conveyance, sale, assignment or contribution to any new
Subsidiary of the Borrower or any existing Subsidiary of the Borrower
assets of the Borrower or any Subsidiary of the Borrower not exceeding
five percent (5%) of the Consolidated Total Assets.
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 $45,000,000 in the
aggregate for the Borrower and its Subsidiaries during any fiscal year of the
Borrower; provided, that up to 50% 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 (except in the case of the fiscal year ended
December 31, 1999, in which case Borrower shall be permitted to carry forward
for expenditure in the fiscal year ending December 31, 2000 unexpended amounts
for Capital Expenditures permitted to be carried forward for such fiscal year
under the Facility A Credit Agreement and the Facility B Credit Agreement);
provided, further, that Borrower and/or its Subsidiaries may exceed the annual
limit on capital expenditures set forth above by utilizing any amounts available
for Investments permitted under subsection 7.9(k) hereto to fund such additional
Capital Expenditures.
63
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, (ii)
management stock purchase plans, and (iii) obligations of employee
option-holders of Storm Control Systems, Inc. to fund the exercise of such
options, which loans in (i), (ii) and (iii) in the aggregate do not exceed
$5,000,000;
(g) Investments in existence on the Original 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 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;
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(k) Investments made at any time from and after the Original Closing
Date to acquire (i) all or any portion of the Capital Stock, or all or any
portion 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, (a) if such Investment is an acquisition of a
majority of the Voting Stock of any Person, such Person's board of
directors or similar governing body shall have approved such acquisition
and (b) at the time of each such Investment described above in clauses (i)
and (ii) (both before and after giving effect to such Investment), there
shall exist no Default or Event of Default and the aggregate consideration
paid (regardless of form, including in the case of an acquisition of
assets, any assumed obligations) in connection with all Investments made
pursuant to this subsection 7.9(k) shall not exceed the New Investment
Sublimit (without deducting therefrom (w) the portion of any purchase
price for any Investment funded with Capital Stock of Holdings, (x)
consideration paid by the Borrower in connection with the acquisition of
SPD Technologies pursuant to the SPD Technologies Acquisition Agreement,
(y) consideration not exceeding $92 million paid by Borrower in connection
with the acquisition of Microdyne Corporation and (z) any consideration
paid prior to December 8, 1998 by the Borrower in connection with any
Investment which is listed on Schedule 7.9(k) hereto); provided, further,
that in connection with each individual, or series of related, Investments
made pursuant to this subsection 7.9(k), the Borrower shall deliver to the
Administrative Agent, on or prior to the date which is one Business Day
prior to the consummation of such Investment or Investments, a certificate
of a Responsible Officer that certifies that no Default or Event of
Default has occurred and is continuing or will be caused as a result of
consummating such proposed Investment.
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
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, New Subordinated Debt Documents or
December 1998 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.
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(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 and Holdings;
(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.
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.
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7.14 Limitation on Negative Pledge Clauses. Enter into with any
Person any agreement, other than (a) this Agreement, the Facility A Credit
Agreement and the Facility B Credit Agreement, (b) the Subordinated Debt
Documents, the New Subordinated Debt Documents or the December 1998 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 (other than an Immaterial 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 April 30,
1997, the New Subordinated Debt Indenture as in effect on May 22, 1998 or the
December 1998 Subordinated Debt Indenture as in effect on December 8, 1998, 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, the New Subordinated Debt Indenture or the
December 1998 Subordinated Debt 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
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;
(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
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;
(c) The Borrower or any other Credit Party shall default in
the observance or performance of any agreement contained in Section
7 or subsection 6.7(a) of this Agreement, Section 4 of the Parent
Guarantee, Section 4 of the
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Subsidiary Guarantee, Section 4 of the Parent Pledge Agreement,
Section 4 of the Borrower Pledge Agreement, or Section 4 of the
Subsidiary Pledge Agreement;
(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;
(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 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;
(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
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
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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;
(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;
(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;
(i) (i) Any of the Pledge Agreements 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
party to any of the Pledge Agreements shall so assert or (ii) the
Lien created by any of the Pledge Agreements shall cease to be
enforceable and of the same
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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);
(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) An "Event of Default" as defined in the Facility A Credit
Agreement and/or the Facility B Credit Agreement shall have occurred
and be continuing;
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 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 and the Notes
to be due and payable forthwith, whereupon the same shall immediately become due
and payable.
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 ARRANGERS
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
70
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 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
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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 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 creditworthiness 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 creditworthiness of any Credit Party 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
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,
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expenses or disbursements resulting 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 or Loan
Account maintained 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 Agent and
Documentation Agent. The Administrative Agent may resign as Administrative Agent
upon 30 days' notice to the Lenders. If the Administrative Agent resigns under
this Agreement, the Required Lenders shall appoint from among the Lenders a
successor administrative agent for the Lenders, which successor administrative
agent shall, unless a Default or Event of Default shall have occurred and be
continuing, be approved by the Borrower. If no successor administrative agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Lenders
and the Borrower, a successor administrative agent from among the Lenders. Upon
the acceptance of its appointment as successor administrative agent hereunder,
such successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor administrative agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor administrative agent
has accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
administrative agent as provided for above. Similarly, the Syndication Agent
and/or the Documentation Agent may resign as Syndication Agent and/or
Documentation Agent, as the case may be, upon 30 days' notice to the Lenders.
The procedure for replacement and effective date of resignation for the
Syndication Agent and the Documentation Agent shall be identical to that
provided above for the Administrative Agent.
9.10 The Arrangers and the Managing Agents. Except as expressly set
forth herein, each of the Arrangers and the Managing Agents, in their respective
capacities as such, shall have no duties or responsibilities, and shall incur no
liabilities, under this Agreement or the other Credit Documents.
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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,
waived 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 or reduce the stated rate or amount 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, (ii) amend, modify or waive the definition
of Required Lenders, or consent to the assignment or transfer by the Borrower of
any of its rights and obligations under this Agreement and the other Credit
Documents, in each case without the written consent of all the Lenders, (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 Documents without the consent of all Lenders, (iv) amend, modify or
waive any provision of Section 9 without the written consent of the then Agents,
or (v) 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 without the written consent of the Arrangers or the Agents, as the case
may be. In addition to the foregoing, (A) no amendment, modification,
termination or waiver of any provision of subsection 2.5, subsection 2.6 or
subsection 2.12 which has the effect of changing any interim scheduled payments,
voluntary or mandatory prepayments, the application of any scheduled payment or
voluntary or mandatory prepayment, the application of proceeds of any Collateral
or any 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), (B) no amendment, modification, termination or
waiver of any provision of any Guarantee or Pledge Agreement shall be effective
without the written concurrence of the Requisite Class Lenders for each Class
and (C) no amendment, modification or waiver with respect to any provision of
this subsection 10.1 or to the definition of "Requisite Class Lenders" shall be
effective without the written concurrence of all Lenders, all Facility A Lenders
and all Facility B Lenders. 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 all future holders
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of the Loans. In the case of any waiver, the Borrower, the Lenders and the
Agents 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:
Holdings, the Borrower
or any of its
Subsidiaries: L-3 Communications Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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The Administrative
Agent: Addresses for notices of borrowing,
prepayments and other administrative
matters:
Bank of America, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Agency Administrative
Services #5596
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Addresses for all other notices
(including with respect to amendments
and waivers):
Bank of America, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Agency Management #10831
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice
President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
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The Documentation
Agent: ▇▇▇▇▇▇ Commercial Paper Inc.
3 World Financial Center, 9th Floor
New York, New York 10285
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Syndication
Agent: ▇▇▇▇▇▇ Commercial Paper Inc.
3 World Financial Center, 9th Floor
New York, New York 10285
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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 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 Arranger and the Agents for all of their respective
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 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
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
77
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, Arranger and Agent
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
Acquisition, 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 any Lender, Arranger or Agent with respect to any
indemnified liabilities incurred by any Agent, Arranger or 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 or 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 or 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, Arranger or Lender with respect
to otherwise indemnified liabilities arising from the gross negligence or
willful misconduct of such Agent, Arranger or 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.
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
78
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), (ii) and (iii) 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 subsections 2.14, 2.15 and 2.16 with respect to its
participation in 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 subsection; 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 (an
"Investment Fund"), any other such Investment Fund which is under
common management with such Lender, or, with the consent of the
Borrower, the Administrative Agent and the Syndication Agent (which
in each case shall not be unreasonably withheld), to an additional
bank, Investment Fund 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 F, executed by such Assignee,
such assigning Lender (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Borrower, the
Administrative Agent and the Syndication Agent) 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 and the aggregate amount of the unused
Commitments being assigned and, if such
79
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 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
Administrative Agent) 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 clause (f) of Section 8 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 owing to each Lender from time to time and the
registered owners of the Obligations evidenced by the Notes and the
Loan Accounts. 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, Commitment or other obligation
evidenced by a Note or a Loan Account shall be effective only upon
appropriate entries with respect thereto being made in the Register,
and prior to such recordation, all amounts owing to the assignor
with respect thereto shall remain owing to the assignor. 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, if requested, and the
80
old Note shall be returned by the Administrative Agent to the
Borrower marked "canceled."
(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 the Administrative Agent and the Syndication Agent )
together with payment to the Administrative Agent of a registration
and processing fee of $3,500 (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. Following the effective date of any such Assignment
and Acceptance, the Administrative Agent shall be entitled to update
Schedule I hereto to reflect the then outstanding Commitments of
each Lender whereupon such amended Schedule I shall be substituted
for the pre-existing Schedule I and be deemed a part of this
Agreement without any further action or consent of any party and the
Administrative Agent shall promptly deliver a copy of such amended
Schedule I to each Lender 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).
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(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.
(i) Notwithstanding any other provision contained in this
Agreement or any other Credit Document to the contrary, (x) any
Lender may assign all or any portion of the Loans held by it to any
Federal Reserve Bank or the United States Treasury as collateral
security pursuant to Regulation A of the Federal Reserve Board and
any Operating Circular issued by such Federal Reserve Bank, provided
that any payment in respect of such assigned Loans made by the
Borrower to or for the account of the assigning or pledging Lender
in accordance with the terms of this Agreement shall satisfy the
Borrower's obligations hereunder in respect to such assigned Loans
to the extent of such payments and (y) with the consent of the
Administrative Agent (not to be unreasonably withheld), any Lender
which is an Investment Fund may pledge all or any portion of its
Loans to its trustee in support of its obligations to its trustee.
No such assignment shall release the assigning Lender from its
obligations hereunder.
10.7 Adjustments; Set-off.
(a) At any time that an Event of Default has occurred and is
continuing, if any Lender (a "benefited Lender") shall at any time
receive any payment of all or part of its Loans 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 clause (f) of
Section 8, or otherwise), in a greater proportion than any such
payment to or collateral received by any other Lender, Facility A
Lender or Facility B Lender (any such affected Lender, Facility A
Lender or Facility B Lender, hereinafter, an "Affected Lender"), if
any, in respect of the Borrower's obligations owing to such other
Affected Lender, whether under this Agreement, the Facility A Credit
Agreement or Facility B Credit Agreement, including any interest
thereon, such benefited Lender shall purchase for cash from each
other Affected Lender a participating interest in such portion of
each such other Affected Lender's Loans owing to it, Facility A
Loans or Facility A Reimbursement Obligations and/or Facility B
Loans or Facility B Reimbursement Obligations owing to it, or shall
provide such other Affected Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause
such benefited Lender to share the excess payment or benefits of
such collateral or proceeds ratably with each of the Affected
Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such
benefited Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but
without interest unless the benefited Lender is
82
required by court order to pay interest thereon, in which case each
Lender returning funds to such benefited Lender shall pay its pro
rata share of such 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. Each Lender and Borrower also agree that all proceeds
of any such set-off shall be subject to the ratable sharing
provisions of subsections 2.12 and 10.7(a) hereof to the same extent
as if an Event of Default had occurred and was then continuing.
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.
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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;
(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 ▇▇▇ 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 Acknowledgments. 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
84
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 (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.
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
85
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.
10.17 Year 2000. The Borrower has reviewed, or will expeditiously
review, its operations and those of its Subsidiaries with a view to assessing
whether its businesses, or the businesses of any of its Subsidiaries, are
experiencing any Year 2000 Problem. The Borrower shall take all actions
necessary and commit adequate resources to assure that its computer-based and
other systems (and those of all of its Subsidiaries) are able to effectively
process data, including dates after January 1, 2000, without experiencing any
Year 2000 Problem that could reasonably be expected to cause a Material Adverse
Effect. At the request of the Required Lenders, the Borrower will provide the
Administrative Agent with assurances and substantiations (including, but not
limited to, the results of internal or external audit reports prepared in the
ordinary course of business) reasonably acceptable to the Administrative Agent
as to the capability of the Borrower and its Subsidiaries to conduct its and
their businesses and operations after January 1, 2000 without experiencing a
Year 2000 Problem causing a Material Adverse Effect. The Borrower represents and
warrants that it has a reasonable basis to believe that no Year 2000 Problem
will cause a Material Adverse Effect.
[Signature Pages Follow]
86
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: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Vice President and Treasurer
BANK OF AMERICA, N.A.,
as Administrative
Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
as Documentation Agent, Syndication Agent
and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
BANK OF AMERICA, N.A.,
as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Signature pages to New 364 Day Credit Agreement
THE BANK OF NEW YORK
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Signature pages to New 364 Day Credit Agreement
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇ Hoymans
Title: Managing Director
Signature pages to New 364 Day Credit Agreement
BANK ONE, NA
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Signature pages to New 364 Day Credit Agreement
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Signature pages to New 364 Day Credit Agreement
FIRST UNION COMMERCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Signature pages to New 364 Day Credit Agreement
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President Vice President
Signature pages to New 364 Day Credit Agreement
THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Manager Senior Manager
Signature pages to New 364 Day Credit Agreement
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Signature pages to New 364 Day Credit Agreement
COMERICA BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: First Vice President
Signature pages to New 364 Day Credit Agreement
CREDIT INDUSTRIEL ET COMMERCIAL
By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President Vice President
Signature pages to New 364 Day Credit Agreement
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Signature pages to New 364 Day Credit Agreement
DG BANK
DEUTSCHE GENOSSENSCHAFTSBANK AG
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President Vice President
Signature pages to New 364 Day Credit Agreement
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/ B. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President Vice President
Signature pages to New 364 Day Credit Agreement
ERSTE BANK, NEW YORK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President First Vice President
Signature pages to New 364 Day Credit Agreement
GE CAPITAL COMMERCIAL FINANCE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
Signature pages to New 364 Day Credit Agreement
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Signature pages to New 364 Day Credit Agreement
MEES PIERSON CAPITAL CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President Vice President
Signature pages to New 364 Day Credit Agreement
MITSUBISHI TRUST AND BANKING CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Signature pages to New 364 Day Credit Agreement
NATIONAL CITY BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
Signature pages to New 364 Day Credit Agreement
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Signature pages to New 364 Day Credit Agreement
SOCIETE GENERALE
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
Signature pages to New 364 Day Credit Agreement
SUMMIT BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Signature pages to New 364 Day Credit Agreement
▇▇▇▇▇▇▇ BANK
By: /s/ ▇▇▇▇ Gilfenan
Title: Vice President
Signature pages to New 364 Day Credit Agreement
DEN DANSKE BANK AKTIESELSKAB
CAYMAN ISLANDS BRANCH
By: /s/ ▇▇▇▇ ▇'▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. Hargaves
Title: Vice President Vice President
Signature pages to New 364 Day Credit Agreement
▇▇▇▇▇▇ BANK PLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Signature pages to New 364 Day Credit Agreement
SUNTRUST BANK
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Signature pages to New 364 Day Credit Agreement
BANQUE WORMS CAPITAL CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Credit Analyst Vice President
General Counsel
Signature pages to New 364 Day Credit Agreement
Exhibit A-1
to Credit Agreement
FORM OF NOTE
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE
MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT
TO THE TERMS OF SUCH CREDIT AGREEMENT.
$__________________ New York, New York
_____________, ____
FOR VALUE RECEIVED, the undersigned, L-3 Communications Corporation,
a Delaware corporation (the "Borrower"), hereby unconditionally promises to pay
to the order of ________________ (the "Lender") at the office of Bank of
America, N.A., as administrative agent (in such capacity, the "Administrative
Agent"), located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, in
lawful money of the United States of America and in immediately available funds,
on the Termination Date, the principal amount of (a) ______________ Dollars
($____________), or, if less, (b) the aggregate unpaid principal amount of all
Loans made by the Lender to the Borrower pursuant to subsection 2.1 of the
Credit Agreement, as hereinafter defined. The Borrower further agrees to pay
interest in like money at such office on the unpaid principal amount hereof from
time to time outstanding at the rates and on the dates specified in subsection
2.9 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date and amount of each Loan made
pursuant to the Credit Agreement and the date and amount of each payment or
prepayment of principal thereof, each continuation thereof, each conversion of
all or a portion thereof to a Eurodollar Loan or a Base Rate Loan (as
applicable) and, in the case of Eurodollar Loans, the length of each Interest
Period with respect thereto. Each such endorsement shall constitute prima facie
evidence of the accuracy of the information endorsed. The failure to make any
such endorsement shall not affect the obligations of the Borrower in respect of
such Loan.
This Note (a) is one of the Notes referred to in the New 364 Day
Credit Agreement, dated as of April 24, 2000 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the Lender, the other banks and financial institutions or entities
from time to time parties thereto, Banc of America Securities LLC and ▇▇▇▇▇▇
Brothers, Inc. as the Arrangers, Bank of America, N.A. as the Administrative
Agent, ▇▇▇▇▇▇ Commercial Paper, Inc. as the Syndication Agent and the
Documentation Agent, and the financial institutions named therein as Managing
Agents, (b) is subject to the provisions of the Credit Agreement and (c) is
subject to optional and mandatory prepayment, in whole or in part, as provided
in the Credit Agreement. This Note is secured and guaranteed as provided in
the Credit Documents. Reference is hereby made to the Credit Documents for a
description of the assets in which a security interest has been granted, the
nature and extent of the security and the guarantees, the terms and conditions
upon which the security interests and each guarantee were granted and the rights
of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
L-3 COMMUNICATIONS CORPORATION
By: ______________________________
Name:
Title:
2
Schedule A
to Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
-------------------------------------------------------------------------------------------------------------------
Amount of Amount of Base
Amount Principal of Rate Loans Unpaid Principal
Amount of Base Converted to Base Rate Loans Converted to Balance of Base Notation
Date Rate Loans Base Rate Loans Repaid Eurodollar Loans Rate Loans Made By
-------------------------------------------------------------------------------------------------------------------
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===================================================================================================================
3
Schedule B
to Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
-------------------------------------------------------------------------------------------------------------------
Interest Amount of Unpaid
Amount Period and Amount of Eurodollar Principal
Amount of Converted to Eurodollar Principal of Loans Balance of
Eurodollar Eurodollar Rate with Eurodollar Converted to Eurodollar Notation
Date Loans Loans Respect Thereto Loans Repaid Base Rate Loans Loans Made By
-------------------------------------------------------------------------------------------------------------------
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4
EXHIBIT B-1
TO CREDIT AGREEMENT
================================================================================
SECOND AMENDED AND RESTATED PARENT GUARANTEE AGREEMENT
made by
L-3 COMMUNICATIONS HOLDINGS, INC.
in favor of
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
Dated as of April 24, 2000
================================================================================
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINED TERMS....................................................2
1.1. Definitions.............................................................2
1.2. Other Definitional Provisions...........................................4
1.3. Effect of Restatement...................................................4
SECTION 2. GUARANTEE.........................................................4
2.1. Guarantee...............................................................4
2.2. No Subrogation..........................................................5
2.3. Amendments, etc. with respect to the Guaranteed Obligations.............6
2.4. Guarantee Absolute and Unconditional....................................6
2.5. Reinstatement...........................................................7
2.6. Payments................................................................7
SECTION 3. REPRESENTATIONS AND WARRANTIES....................................7
3.1. Representations in Credit Agreements....................................7
SECTION 4. COVENANTS.........................................................8
4.1. Covenants in Credit Agreements..........................................8
4.2. Issuance of Indebtedness................................................8
4.3. Investments.............................................................8
4.4. Activity................................................................8
4.5. Distributions...........................................................8
4.6. Notices.................................................................8
4.7. Foreign Jurisdictions...................................................8
SECTION 4A. CERTAIN AFFIRMATIVE COVENANTS....................................8
4A.1 Reports.................................................................8
4A.2 Certificates; Other Information.........................................9
4A.3 Inspection of Property, Books and Records; Discussions..................9
4A.4 Notices.................................................................9
4A.5 Further Assurance......................................................10
4A.6 Additional Collateral..................................................10
4A.7 Payment of Obligations.................................................10
SECTION 5. MISCELLANEOUS....................................................11
5.1. Amendments in Writing..................................................11
5.2. Notices................................................................11
5.3. No Waiver by Course of Conduct; Cumulative Remedies....................11
5.4. Enforcement Expenses; Indemnification..................................11
5.5. Successors and Assigns.................................................12
5.6. Counterparts...........................................................12
i
5.7. Severability...........................................................12
5.8. Section Headings.......................................................12
5.9. Integration............................................................12
5.10. GOVERNING LAW.........................................................12
5.11. SUBMISSION TO JURISDICTION; WAIVERS...................................12
5.12. Acknowledgments.......................................................13
5.13. WAIVER OF JURY TRIAL..................................................13
5.14. Releases..............................................................14
ii
SECOND AMENDED AND RESTATED PARENT GUARANTEE AGREEMENT
This SECOND AMENDED AND RESTATED PARENT GUARANTEE AGREEMENT, dated
as of April 24, 2000, is made by L-3 Communications Holdings, Inc., a Delaware
corporation ("Holdings"), in favor of Bank of America, N.A. (f/k/a Bank of
America NT & SA) as Administrative Agent (in such capacity, the "Administrative
Agent") for (a) the banks and other financial institutions or entities
(collectively, the "Facility A Lenders") from time to time parties to the Second
Amended and Restated Credit Agreement, dated as of April 24, 2000 (as amended,
restated, supplemented or otherwise modified from time to time, the "Facility A
Credit Agreement"), among L-3 Communications Corporation, a Delaware corporation
(the "Borrower"), the Facility A Lenders, ▇▇▇▇▇▇ Commercial Paper Inc. ("LCPI"),
as documentation agent (in such capacity, the "Facility A Documentation Agent"),
LCPI as syndication agent (in such capacity, the "Facility A Syndication Agent";
and together with the Facility A Documentation Agent and the Administrative
Agent, the "Facility A Agents"), LCPI and Banc of America Securities LLC (f/k/a
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) as arrangers (in such capacity, the "Facility A
Arrangers"), the Administrative Agent and certain other entities named therein
as Co-Agents, which amended and restated in its entirety that certain Amended
and Restated Credit Agreement dated as of August 13, 1998 (as amended, restated,
supplemented or otherwise modified prior to the date hereof, the "Original
Facility A Credit Agreement") among the Borrower, the Agents party thereto (the
"Original Facility A Agents", including the Administrative Agent party thereto,
the "Original Facility A Administrative Agent"), the lenders party thereto (the
"Original Facility A Lenders") and LCPI and BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(n/k/a Banc of America Securities LLC ) as arrangers, and (b) the banks and
other financial institutions or entities (the "Facility B Lenders"; and together
with the Facility A Lenders, the "Lenders"), from time to time parties to the
Amended and Restated 364 Day Credit Agreement, dated as of April 24, 2000 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Facility B Credit Agreement"), among the Borrower, the Administrative Agent,
LCPI as documentation agent (in such capacity, the "Facility B Documentation
Agent"), LCPI as syndication agent (in such capacity, the "Facility B
Syndication Agent"; and together with the Facility B Documentation Agent and the
Administrative Agent, the "Facility B Agents"), LCPI and Banc of America
Securities LLC (f/k/a BankAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) as arrangers (in such
capacity, the "Facility B Arrangers"), the Administrative Agent and certain
other entities named therein as Co-Agents, which amended and restated in its
entirety that certain 364 Day Credit Agreement dated as of August 13, 1998 (as
amended, restated, supplemented or otherwise modified prior to the date hereof,
the "Original Facility B Credit Agreement"; and together with the Original
Facility A Credit Agreement, the "Original Credit Agreements") among the
Borrower, the Administrative Agent, the "Original Facility B Administrative
Agent"; and together with the Original Facility A Administrative Agent, the
"Original Administrative Agents"), the other Agents party thereto (together with
the Original Facility B Administrative Agent, the "Original Facility B Agents";
and together with the Original Facility A Agents, the Original Agents"), the
lenders party thereto (the "Original Facility B Lenders"; and together with the
Original Facility A Lenders, the "Original Lenders") and LCPI and BancAmerica
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (n/k/a Banc of America
Securities LLC ) as arrangers, and (c) the banks and other financial
institutions or entities (the "Facility C Lenders"; and together with the
Facility A Lenders and the Facility B Lenders, the "Lenders"), from time to time
parties to the New 364 Day Credit Agreement, dated as of April 24, 2000 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Facility C Credit Agreement"; and together with the Facility A Credit Agreement
and the Facility B Credit Agreement, each a "Credit Agreement", and
collectively, the "Credit Agreements"), among the Borrower, the Administrative
Agent, LCPI as documentation agent (in such capacity, the "Facility C
Documentation Agent"), LCPI as syndication agent (in such capacity, the
"Facility C Syndication Agent"; and together with the Facility C Documentation
Agent and the Administrative Agent, the "Facility C Agents"; and together with
the Facility A Agents and the Facility B Agents, the "Agents"), ▇▇▇▇▇▇ Brothers,
Inc. ("LBI") and Banc of America Securities LLC as arrangers (in such capacity,
the "Facility C Arrangers"; and together with the Facility A Arrangers and the
Facility B Arrangers, the "Arrangers"), the Administrative Agent and certain
other entities named therein as Managing Agents.
W I T N E S S E T H:
WHEREAS, Holdings has executed and delivered to the Original
Administrative Agents for the ratable benefit of the Original Lenders and the
Original Agents, the Amended and Parent Guarantee Agreement (the "Prior
Guarantee"), dated as of August 13, 1998 in respect of the obligations of the
Borrower to the Administrative Agent for the ratable benefit of the Original
Lenders and the Original Agents including its obligations under the Original
Credit Agreement;
WHEREAS, Holdings, the Agents, the Arrangers and the Lenders wish to
amend and restate the Prior Guarantee to, inter alia, reflect the amending and
restating of the Original Credit Agreements and the entering into of the
Facility C Credit Agreement; and
WHEREAS, it is a condition precedent to the several obligations of
the Lenders to make their respective extensions of credit to or for the benefit
of the Borrower under the Credit Agreements that Holdings shall have executed
and delivered this Agreement to the Administrative Agent for the ratable benefit
of the Lenders and the Agents.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to induce the Agents and the Lenders to enter into
the Credit Agreements, and to induce the Lenders to make their respective
extensions of credit to or for the benefit of the Borrower thereunder, Holdings
hereby agrees with the Administrative Agent, for the ratable benefit of the
Lenders and the Agents, to amend and restate the Prior Guarantee in its entirety
to read as provided herein:
SECTION 1. DEFINED TERMS
1.1 Definitions.
2
(a) Unless otherwise defined herein, terms defined in the Credit
Agreements and used herein shall have the collective meanings given to them in
each of the Credit Agreements.
(b) The following terms shall have the following meanings:
"Agreement": this Second Amended and Restated Parent Guarantee
Agreement, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
"Guaranteed Obligations": has the meaning set forth in Section
2.1(a) hereof.
"Obligations": the collective reference to the unpaid
principal of and interest on the Loans and Reimbursement Obligations under
each of the Credit Agreements and all other obligations and liabilities of
the Borrower and any other Credit Party (including, without limitation),
(i) interest accruing at the then applicable rate provided in each of the
Credit Agreements after the maturity of the Loans and Reimbursement
Obligations and interest accruing at the then applicable rate provided in
each of the Credit Agreements after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding and
(ii) any exposure of any Lender under any lockbox arrangement, controlled
disbursement arrangement, checking accounts or other similar arrangements
(collectively, "Cash Management Agreements") with or on behalf of the
Borrower and/or its Subsidiaries to any Agent or any Lender (or, in the
case of any Interest Rate Agreement referred to below, any Affiliate of
any Lender), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, any of the Credit Agreements, this
Agreement, the other Credit Documents, any Letter of Credit or any
Interest Rate Agreement entered into by the Borrower with any Lender (or
any Affiliate of any Lender) or any Cash Management Agreement entered into
by the Borrower or any Subsidiary of the Borrower or any other Credit
Party with any Lender or any other document made, delivered or given in
connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and disbursements of
counsel to the Agents and the Lenders that are required to be paid by the
Borrower or any other Credit Party pursuant to the terms of any of the
foregoing agreements).
"Parent Distributions": the collective reference to any of the
following, whether direct or indirect: (i) the declaration or payment of
any dividend or other distribution on or in respect of any shares of any
class of any Capital Stock of Holdings, now or hereafter outstanding, (ii)
any redemption, retirement, sinking fund or similar payment, purchase or
other retirement for value of any such shares of Capital Stock of
Holdings, now or hereafter outstanding, (iii) any other payment by
Holdings to the holder
3
of any shares of any class of the Capital Stock of Holdings in their
capacity as such and (iv) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of Capital Stock of Holdings now or hereafter
outstanding; provided, however, that the term "Parent Distribution" shall
not include payments of salaries or bonuses to employees of Holdings in
their capacities as such.
"Permitted Parent Distributions": (a) the issuance by Holdings
of options or other equity securities of Holdings to outside directors,
members of management or employees of Holdings in the ordinary course of
business, (b) cash payments made in lieu of issuing fractional shares of
Holdings' common stock or preferred stock, (c) cash payments to repurchase
Capital Stock of Holdings solely with the proceeds of dividends received
from the Borrower pursuant to clause (C) of the definition of Permitted
Stock Payments in the Credit Agreements; provided, however, that such
payments do not exceed $5,000,000, and (d) the application of up to
$2,000,000 of the proceeds of the sale of common stock of Holdings to the
repurchase of common stock of Holdings from management of Holdings or the
Borrower.
"Subscription Agreements": (a) that certain common stock
agreement dated April 30, 1997, by and between ▇▇▇▇▇ ▇. ▇▇▇▇▇ and Holdings
and (b) that certain common stock agreement dated April 30, 1997, by and
between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and Holdings, in each case, as in effect on the
date hereof.
1.2 Other Definitional Provisions.
(a) The words "hereof," "herein", "hereto" 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 and
Schedule references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
1.3 Effect of Restatement. This Agreement amends, restates and
supersedes the Prior Guarantee; provided, that (i) each party hereto
acknowledges and agrees that there is no defense, setoff or counterclaim of any
kind, nature or description to Guaranteed Obligations with respect to any
Obligations arising prior to the Closing Date and (ii) all references in the
other Credit Documents to the Prior Guarantee shall be deemed to refer without
further amendment to this Agreement.
SECTION 2. GUARANTEE
2.1 Guarantee.
(a) Holdings hereby unconditionally and irrevocably guarantees to
the Administrative Agent, for the ratable benefit of the Lenders and the Agents
and their respective
4
successors, endorsees, transferees and assigns, the prompt and complete payment
and performance by the Borrower and each of the other Credit Parties when due
(whether at the stated maturity, by acceleration or otherwise) of the Borrower's
and such other Credit Party's Obligations (collectively, the "Guaranteed
Obligations"). The liability of Holdings hereunder shall be joint and several
with the Obligations of the other Guarantors.
(b) Anything herein or in any other Credit Document to the contrary
notwithstanding, the maximum liability of Holdings hereunder and under the other
Credit Documents shall in no event exceed the maximum amount which can be
guaranteed by Holdings under applicable federal and state laws relating to the
insolvency of debtors without rending the guarantee of Holdings hereunder
unenforceable.
(c) Holdings agrees that the Guaranteed Obligations may at any time
and from time to time exceed the amount of the liability of Holdings hereunder
without impairing the guarantee contained in this Section 2 or affecting the
rights and remedies of the Administrative Agent, on behalf of the other Agents
and the Lenders, hereunder.
(d) The guarantee contained in this Section 2 shall remain in full
force and effect until all the Guaranteed Obligations and the obligations of
Holdings under this Agreement shall have been satisfied by payment in full, no
Letter of Credit shall be outstanding and the Commitments shall be terminated
(notwithstanding that from time to time during the term of each of the Credit
Agreements, no Loans or Letters of Credit may be outstanding).
(e) No indefeasible payment made by any Credit Party or any other
Person or received or collected by any of the Agents or the Lenders by virtue of
any action or proceeding or any set-off or appropriation or application at any
time or from time to time in reduction of or in payment of the Guaranteed
Obligations shall be deemed to release the liability of Holdings hereunder, and
Holdings shall, notwithstanding any such payment (other than any payment made by
Holdings in respect of the Guaranteed Obligations or any payment received or
collected from Holdings in respect of the Guaranteed Obligations), remain liable
for the Guaranteed Obligations up to the maximum liability of Holdings hereunder
until the Guaranteed Obligations are paid in full, no Loan or Letter of Credit
shall be outstanding and the Commitments are terminated.
2.2 No Subrogation. Notwithstanding any payment made by Holdings
hereunder or any set-off or application of funds of Holdings by any of the
Agents or Lenders, Holdings shall not be entitled to be subrogated to any of the
rights of any of the Agents or Lenders against the other Credit Parties or any
collateral security or guarantee or right of offset held by any of the Agents or
Lenders for the payment of all or any portion of the Guaranteed Obligations, nor
shall Holdings seek or be entitled to seek any contribution or reimbursement
from any of the other Credit Parties in respect of payments made by Holdings
hereunder, until all amounts owing to the Agents and the Lenders by the other
Credit Parties on account of the Guaranteed Obligations are paid in full, no
Letter of Credit shall be outstanding and the Commitments are terminated. If any
amount shall be paid to Holdings on account of such subrogation rights at any
time when all of the Guaranteed Obligations shall not have been paid in full,
such amount shall be held by Holdings in trust for the Agents and the Lenders,
segregated
5
from other funds of Holdings, and shall, forthwith upon receipt by Holdings, be
turned over to the Administrative Agent in the exact form received by Holdings
(duly indorsed by Holdings to the Administrative Agent, if required), to be
applied against the Guaranteed Obligations, whether matured or unmatured, in
such order as the Required Lenders may determine.
2.3 Amendments, etc. with respect to the Guaranteed Obligations.
Holdings shall remain obligated hereunder notwithstanding that, without any
reservation of rights against Holdings and without notice to or further assent
by Holdings, any demand for payment of any of the Guaranteed Obligations made by
any of the Agents or Lenders may be rescinded by such Agent or Lender and any of
the Guaranteed Obligations continued, and the Guaranteed Obligations, or the
liability of any other Person upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by any of the Agents
or Lenders, and the Credit Agreements, the other Credit Documents and any other
documents executed and delivered in connection therewith may be amended,
restated, modified, supplemented or terminated, in whole or in part, as the
Administrative Agent (or the Required Lenders or all Lenders, as the case may
be) may deem advisable from time to time, and any collateral security, guarantee
or right of offset at any time held by any of the Agents or Lenders for the
payment of the Guaranteed Obligations may be sold, exchanged, waived,
surrendered or released. None of the Agents or Lenders shall have any obligation
to protect, secure, perfect or insure any Lien at any time held by it as
security for the Guaranteed Obligations or for the guarantee contained in this
Section 2 or any property subject thereto.
2.4 Guarantee Absolute and Unconditional. Holdings waives any and
all notice of the creation, renewal, extension or accrual of any of the
Guaranteed Obligations and notice of or proof of reliance by any of the Agents
or Lenders upon the guarantee contained in this Section 2 or acceptance of the
guarantee contained in this Section 2; the Guaranteed Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon the guarantee
contained in this Section 2; and all dealings between the Credit Parties, on the
one hand, and the Agents and the Lenders, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 2. Holdings waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon any
of the Credit Parties with respect to the Guaranteed Obligations. Holdings
understands and agrees that the guarantee contained in this Section 2 shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity or enforceability of the Credit Agreements,
this Agreement or any other Credit Document, any of the Guaranteed Obligations
or any other collateral security therefor or guarantee or right of offset with
respect thereto at any time or from time to time held by any of the Agents or
Lenders, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
any of the other Credit Parties or any other Person against any of the Agents or
the Lenders, or (c) any other circumstance whatsoever (with or without notice to
or knowledge of any of the Credit Parties) which constitutes, or might be
construed to constitute, an equitable or legal discharge of any of the other
Credit Parties for the
6
Guaranteed Obligations, or of Holdings under the guarantee contained in this
Section 2, in bankruptcy or in any other instance. When making any demand
hereunder or otherwise pursuing its rights and remedies hereunder against
Holdings, any of the Agents or Lenders may, but shall be under no obligation to,
make a similar demand on or otherwise pursue such rights and remedies as it may
have against any of the other Credit Parties or any other Person or against any
collateral security or guarantee for the Guaranteed Obligations or any right of
offset with respect thereto, and any failure by any of the Agents or Lenders to
make any such demand, to pursue such other rights or remedies or to collect any
payments from any of the other Credit Parties or any other Person or to realize
upon any such collateral security or guarantee or to exercise any such right of
offset, or any release of any of the other Credit Parties or any other Person or
any such collateral security, guarantee or right of offset, shall not relieve
Holdings of any obligation or liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of any of the Agents or Lenders against Holdings. For the
purposes hereof "demand" shall include the commencement and continuance of any
legal proceedings.
2.5 Reinstatement. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Guaranteed Obligations is rescinded
or must otherwise be restored or returned by the any of the Agents or Lenders
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
any of the Credit Parties, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, any
of the Credit Parties or any substantial part of its property, or otherwise, all
as though such payments had not been made.
2.6 Payments. Holdings hereby guarantees that payments hereunder
will be paid to the Administrative Agent without set-off or counterclaim in
Dollars at the office of the Administrative Agent located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; Attention: Agency Administrative Services #5596,
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; Fax: (▇▇▇) ▇▇▇-▇▇▇▇.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective extensions of
credit to or for the benefit of the Borrower thereunder, Holdings hereby
represents and warrants to each of the Agents and the Lenders that:
3.1 Representations in Credit Agreements. The representations and
warranties set forth in Section 4 of the Credit Agreements, each of which is
hereby incorporated herein by reference, are true and correct, and each Agent
and Lender shall be entitled to rely on each of them as if they were fully set
forth herein, provided that each reference in each such representation and
warranty to the Borrower's knowledge shall, for the purposes of this Section
3.1, be deemed to be a reference to Holdings' knowledge.
7
SECTION 4. COVENANTS
Holdings covenants and agrees with the Agents and the Lenders that,
from and after the date of this Agreement until the Guaranteed Obligations shall
have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
4.1 Covenants in Credit Agreements. Holdings shall take, or shall
refrain from taking, as the case may be, each action that is necessary to be
taken or not taken, as the case may be, so that no Default or Event of Default
is caused by the failure to take such action or to refrain from taking such
action by Holdings or any of its Subsidiaries.
4.2 Issuance of Indebtedness. Holdings shall not issue, incur or
assume any Indebtedness or any Guarantee Obligations other than Indebtedness and
Guarantee Obligations under the Credit Documents to which it is a party.
4.3 Investments. Holdings shall not have outstanding or acquire any
Investment in any Person other than Investments in Capital Stock of the Borrower
and Cash Equivalents.
4.4 Activity. Holdings shall not engage in any business activity
other than its ownership and voting of the Capital Stock of the Borrower and the
performance of its obligations under the Credit Documents to which it is a party
and the Transaction Documents to which it is a party.
4.5 Distributions. Holdings shall not make any Parent Distributions
other than Parent Distributions payable solely in common stock of Holdings and
Permitted Parent Distributions.
4.6 Notices. Holdings shall promptly give notice to the
Administrative Agent of the occurrence of any Default or Event of Default.
4.7 Foreign Jurisdictions. No later than the Closing Date, Holdings
shall 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.
SECTION 4A. CERTAIN AFFIRMATIVE COVENANTS
Holdings covenants and agrees with the Agents and the Lenders that,
from and after the date of this Agreement until the Guaranteed Obligations shall
have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
4A.1 Reports. Holdings will deliver to the Administrative Agent
promptly upon their becoming available, copies of all consolidated or
consolidating financial statements, reports, notices and proxy statements sent
or made available generally by Holdings to its security holders,
8
of all regular and periodic reports and all registrations statements and
prospectuses, if any, filed by Holdings with any securities exchange or with the
Securities and Exchange Commission and of all press releases and other
statements made available generally by Holdings to the public concerning
Holdings.
4A.2 Certificates; Other Information. Holdings shall furnish to the
Administrative Agent with copies for each Lender:
(a) concurrently with the delivery by the Borrower of the financial
statements referred to in subsection 6.1 of each of the Credit Agreements, a
certificate of a Responsible Officer of Holdings stating that, to the best of
such Officer's knowledge, during such period (i) no Subsidiary has been formed
or acquired and (ii) such Officer has obtained no knowledge of any Default or
Event of Default except as specified in such certificate; and
(b) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
4A.3 Inspection of Property, Books and Records; Discussions.
Holdings shall 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
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 Holdings and its Subsidiaries with officers and employees of
Holdings and its Subsidiaries and with its independent certified public
accountants; provided that the Administrative Agent or such Lender shall notify
Holdings prior to any contact with such accountants and give Holdings the
opportunity to participate in such discussion; provided, further, that Holdings
shall notify the Administrative Agent of any such visits, inspections or
discussions prior to each occurrence thereof.
4A.4 Notices. Holdings shall promptly give written notice to the
Administrative Agent of:
(a) any (i) default or event of default under any Contractual
Obligation of Holdings or (ii) litigation, investigation or proceeding
which may exist at any time between Holdings 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;
(b) any litigation or proceeding affecting Holdings 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;
(c) the following events, as soon as possible and in any event
within 45 days after Holdings knows or has reason to know thereof: (i) the
occurrence or
9
expected occurrence of any Reportable Event with respect to any plan
(other than a Multiple Employer Plan), a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a
Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the PBGC or Holdings or
any Commonly Controlled Entity or any Multiemployer Plan with respect to
the withdrawal from, or the terminating, Reorganization or Insolvency of,
any Single Employer Plan or Multiemployer Plan; and
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action Holdings proposes to take with respect thereto.
4A.5 Further Assurance. Upon the request of the Administrative
Agent, Holdings shall 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 Agents and the Lenders, Liens on the Collateral
that are duly perfected in accordance with all applicable Requirements of Law.
4A.6 Additional Collateral. With respect to any Capital Stock
acquired after the Closing Date by Holdings that is intended to be subject to
the Lien created by any of the Pledge Agreements but which is not so subject
promptly (and in any event within 30 days after the acquisition thereof):
Holdings shall (i) execute and deliver to the Administrative Agent such
amendments to the Parent Pledge Agreement 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, 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.
4A.7 Payment of Obligations. Holdings shall 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 Holdings or its Subsidiaries, as the
case may be; provided that, notwithstanding the foregoing, Holdings and each of
its Subsidiaries shall have the right to pay any such obligation and in good
faith contest, by proper legal actions or proceedings, the invalidity or amount
of such claims.
10
SECTION 5. MISCELLANEOUS
5.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, restated, supplemented or otherwise modified
except in accordance with subsection 10.1 of each of the Credit Agreements.
5.2 Notices. All notices, requests and demands to or upon the Agents
or Holdings hereunder shall be effected in the manner provided for in subsection
10.2 of each of the Credit Agreements; provided that any such notice, request or
demand to or upon Holdings shall be addressed to Holdings at its notice address
set forth below its signature hereto.
5.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent nor any other Agent or any Lender shall by any act (except
by a written instrument pursuant to Section 5.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of any of the Agents or Lenders, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by any of the Agents or Lenders of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Administrative Agent, on behalf of the other Agents and the
Lenders, would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
5.4 Enforcement Expenses; Indemnification.
(a) Holdings agrees to pay or reimburse each of the Lenders and
Agents for all its costs and expenses incurred in collecting against Holdings
under the guarantee contained in Section 2 or otherwise enforcing or preserving
any rights under this Agreement and the other Credit Documents to which Holdings
is a party, including, without limitation, the fees and disbursements of counsel
to the Administrative Agent and of counsel to each of the other Agents and
Lenders.
(b) Holdings agrees to pay, and to save the Agents and the Lenders
harmless from, any and all liabilities with respect to, or resulting from any
delay in paying, any and all stamp, excise, sales or other taxes which may be
payable or determined to be payable in connection with any of the transactions
contemplated by this Agreement.
(c) Holdings agrees to pay, and to save the Agents and the Lenders
harmless from, any and all 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 to the extent the Borrower
would be required to do so pursuant to subsection 10.5 of the applicable Credit
Agreement.
11
(d) The agreements in this Section 5.4 shall survive repayment of
the Guaranteed Obligations and all other amounts payable under the Credit
Agreements, this Agreement and the other Credit Documents.
5.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of Holdings and shall inure to the benefit of the Agents
and the Lenders and their successors and assigns; provided that Holdings may not
assign, transfer or delegate any of its rights or obligations under this
Agreement without the prior written consent of the Required Lenders.
5.6 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.
5.7 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.
5.8 Section Headings. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
5.9 Integration. This Agreement and the other Credit Documents
represent the agreement of Holdings, the Agents and the Lenders with respect to
the subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the any of the Agents or Lenders relative to
the subject matter hereof and thereof not expressly set forth or referred to
herein, the Credit Agreements or in the other Credit Documents.
5.10 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.
5.11 SUBMISSION TO JURISDICTION; WAIVERS. HOLDINGS HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER 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
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM
THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO HOLDINGS AT ITS
ADDRESS REFERRED TO IN SECTION 5.2 OR AT SUCH OTHER ADDRESS OF WHICH THE
ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO ▇▇▇ IN ANY OTHER JURISDICTION; AND
(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT
IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN
THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
5.12 Acknowledgments. Holdings hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents to which it is a
party;
(b) none of the Agents nor the Lenders has any fiduciary
relationship with or duty to Holdings arising out of or in connection with this
Agreement or any of the other Credit Documents, and the relationship between
Holdings, on the one hand, and the Agents and Lenders, 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 Agents, among the Agents and/or the Lenders or among Holdings and the
Agents and/or the Lenders.
5.13 WAIVER OF JURY TRIAL. HOLDINGS AND, BY ACCEPTANCE OF THE
BENEFITS HEREOF, EACH OF THE LENDERS AND THE AGENTS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
13
5.14 Releases. At such time as the Loans, the Reimbursement
Obligations and the other Guaranteed Obligations shall have been paid in full,
the Commitments have been terminated and no Letters of Credit shall be
outstanding, this Agreement and all obligations (other than those expressly
stated to survive such termination) of the Administrative Agent and Holdings
hereunder shall terminate, all without delivery of any instrument or performance
of any act by any party, and all rights shall revert to Holdings, and the
Administrative Agent shall execute and deliver to Holdings such documents as
Holdings shall reasonably request to evidence such termination.
[Signature page follows]
14
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed and delivered as of the date first above written.
L-3 COMMUNICATIONS HOLDINGS, INC.
By: ____________________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President-General Counsel and Secretary
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Accepted on behalf of the Agents and
the Lenders as of the date first above
written:
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
By: ____________________________________
Name: ______________________________
Title: _____________________________
S-1
EXHIBIT B-2
TO CREDIT AGREEMENT
================================================================================
SECOND AMENDED AND RESTATED SUBSIDIARY GUARANTEE AGREEMENT
made by
HYGIENETICS ENVIRONMENTAL SERVICES, INC.,
L-3 COMMUNICATIONS ILEX SYSTEMS, INC.,
L-3 COMMUNICATIONS SPD TECHNOLOGIES INC.
L-3 COMMUNICATIONS AYDIN CORPORATION
and
MICRODYNE CORPORATION
in favor of
BANK OF AMERICA, N.A.,
as Administrative Agent
Dated as of April 24, 2000
================================================================================
TABLE OF CONTENTS
Page
SECTION 1. DEFINED TERMS.....................................................3
1.1. Definitions.............................................................3
1.2. Other Definitional Provisions...........................................4
1.3. Effect of Restatement...................................................4
SECTION 2. GUARANTEE.........................................................4
2.1. Guarantee...............................................................4
2.2. Right of Contribution...................................................5
2.3. No Subrogation..........................................................5
2.4. Amendments, etc. with respect to the Guaranteed Obligations.............5
2.5. Guarantee Absolute and Unconditional....................................6
2.6. Reinstatement...........................................................7
2.7. Payments................................................................7
SECTION 3. REPRESENTATIONS AND WARRANTIES....................................7
3.1. Representations in Credit Agreements....................................7
SECTION 4. COVENANTS.........................................................7
4.1. Covenants in Credit Agreements..........................................7
SECTION 5. MISCELLANEOUS.....................................................8
5.1. Amendments in Writing...................................................8
5.2. Notices.................................................................8
5.3. No Waiver by Course of Conduct; Cumulative Remedies.....................8
5.4. Enforcement Expenses; Indemnification...................................9
5.5. Successors and Assigns..................................................9
5.6. Counterparts............................................................9
5.7. Severability............................................................9
5.8. Section Headings........................................................9
5.9. Integration.............................................................9
5.10. GOVERNING LAW..........................................................9
5.11. SUBMISSION TO JURISDICTION; WAIVERS....................................9
5.12. Acknowledgments.......................................................10
5.13. WAIVER OF JURY TRIAL..................................................10
5.14. Additional Guarantors.................................................11
5.15. Releases..............................................................11
i
SECOND AMENDED AND RESTATED SUBSIDIARY GUARANTEE AGREEMENT
This SECOND AMENDED AND RESTATED SUBSIDIARY GUARANTEE AGREEMENT,
dated as of April 24, 2000, is made by each of the signatories hereto (together
with any other entity that may become a party hereto as provided herein, the
"Guarantors"), in favor of Bank of America, N.A., as Administrative Agent (in
such capacity, the "Administrative Agent") for (a) the banks and other financial
institutions or entities (collectively, the "Facility A Lenders") from time to
time parties to the Second Amended and Restated Credit Agreement, dated as of
April 24, 2000 (as amended, restated, supplemented or otherwise modified from
time to time, the "Facility A Credit Agreement"), among L-3 Communications
Corporation, a Delaware corporation (the "Borrower"), the Facility A Lenders,
▇▇▇▇▇▇ Commercial Paper Inc. ("LCPI"), as documentation agent (in such capacity,
the "Facility A Documentation Agent"), LCPI as syndication agent (in such
capacity, the "Facility A Syndication Agent"; and together with the Facility A
Documentation Agent and the Administrative Agent, the "Facility A Agents"), LCPI
and Banc of America Securities LLC (f/k/a BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) as
arrangers (in such capacity, the "Facility A Arrangers"), the Administrative
Agent and certain other entities named therein as Co-Agents, which amended and
restated in its entirety that certain Amended and Restated Credit Agreement
dated as of August 13, 1998 (as amended, restated, supplemented or otherwise
modified prior to the date hereof, the "Original Facility A Credit Agreement")
among the Borrower, the Agents party thereto (the "Original Facility A Agents",
including the Administrative Agent party thereto, the "Original Facility A
Administrative Agent"), the lenders party thereto (the "Original Facility A
Lenders") and LCPI and BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (n/k/a Banc of America
Securities LLC ) as arrangers, and (b) the banks and other financial
institutions or entities (the "Facility B Lenders"; and together with the
Facility A Lenders, the "Lenders"), from time to time parties to the Amended and
Restated 364 Day Credit Agreement, dated as of April 24, 2000 (as amended,
restated, supplemented or otherwise modified from time to time, the "Facility B
Credit Agreement"), among the Borrower, the Administrative Agent, LCPI as
documentation agent (in such capacity, the "Facility B Documentation Agent"),
LCPI as syndication agent (in such capacity, the "Facility B Syndication Agent";
and together with the Facility B Documentation Agent and the Administrative
Agent, the "Facility B Agents"), LCPI and Banc of America Securities LLC (f/k/a
BankAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) as arrangers (in such capacity, the "Facility B
Arrangers"), the Administrative Agent and certain other entities named therein
as Co-Agents, which amended and restated in its entirety that certain 364 Day
Credit Agreement dated as of August 13, 1998 (as amended, restated, supplemented
or otherwise modified prior to the date hereof, the "Original Facility B Credit
Agreement"; and together with the Original Facility A Credit Agreement, the
"Original Credit Agreements") among the Borrower, the Administrative Agent (the
"Original Facility B Administrative Agent"; and together with the Original
Facility A Administrative Agent, the "Original Administrative Agents"), the
other Agents party thereto (together with the Original Facility B Administrative
Agent, the "Original Facility B Agents"; and together with the Original Facility
A Agents, the Original Agents"), the lenders party thereto (the "Original
Facility B Lenders"; and together with the Original Facility A Lenders, the
"Original Lenders") and LCPI and BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (n/k/a Banc of
America Securities LLC ) as arrangers, and (c) the banks and other financial
institutions or entities (the
"Facility C Lenders"; and together with the Facility A Lenders and the Facility
B Lenders, the "Lenders"), from time to time parties to the New 364 Day Credit
Agreement, dated as of April 24, 2000 (as amended, restated, supplemented or
otherwise modified from time to time, the "Facility C Credit Agreement"; and
together with the Facility A Credit Agreement and the Facility B Credit
Agreement, each a "Credit Agreement", and collectively, the "Credit
Agreements"), among the Borrower, the Administrative Agent, LCPI as
documentation agent (in such capacity, the "Facility C Documentation Agent"),
LCPI as syndication agent (in such capacity, the "Facility C Syndication Agent";
and together with the Facility C Documentation Agent and the Administrative
Agent, the "Facility C Agents"; and together with the Facility A Agents and the
Facility B Agents, the "Agents"), ▇▇▇▇▇▇ Brothers, Inc. ("LBI") and Banc of
America Securities LLC as arrangers (in such capacity, the "Facility C
Arrangers"; and together with the Facility A Arrangers and the Facility B
Arrangers, the "Arrangers"), the Administrative Agent and certain other entities
named therein as Managing Agents.
W I T N E S S E T H:
WHEREAS, the Guarantors are parties to an Amended and Restated
Subsidiary Guarantee Agreement dated as of August 13, 1998 (the "Prior
Guarantee"), in respect of the obligations of the Borrower to the Original
Administrative Agents for the ratable benefit of the Original Lenders and the
Original Agents including its obligations under the Original Credit Agreements;
WHEREAS, the Guarantors, Agents, Arrangers and Lenders wish to amend
and restate the Prior Guarantee to, inter alia, reflect the amending and
restating of the Original Credit Agreements and the entering into of the
Facility C Credit Agreement;
WHEREAS, the Borrower is a member of an affiliated group of
companies that includes each other Guarantor;
WHEREAS, the proceeds of the extensions of credit under the Credit
Agreements will be used in part to enable the Borrower to make valuable
transfers to one or more of the other Guarantors in connection with the
operation of their respective businesses;
WHEREAS, the Borrower and the other Guarantors are engaged in
related businesses, and each Guarantor will derive substantial direct and
indirect benefit from the making of the extensions of credit under the Credit
Agreements; and
WHEREAS, it is a condition precedent to the several obligations of
the Lenders to make their respective extensions of credit to or for the benefit
of the Borrower under the Credit Agreements that the Guarantors shall have
executed and delivered this Agreement to the Administrative Agent for the
ratable benefit of the Lenders and the Agents.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to induce the Agents and the Lenders to enter into
the Credit Agreements, and to induce the Lenders to make their respective
extensions of credit to or for the benefit of the Borrower
2
thereunder, each Guarantor hereby agrees with the Administrative Agent, for the
ratable benefit of the Lenders and the Agents, to amend and restate the Prior
Guarantee in its entirety to read as provided herein:
SECTION 1. DEFINED TERMS
1.1 Definitions.
(a) Unless otherwise defined herein, terms defined in the Credit
Agreements and used herein shall have the collective meanings given to them in
each of the Credit Agreements.
(b) The following terms shall have the following meanings:
"Agreement": this Second Amended and Restated Subsidiary
Guarantee Agreement, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"Guarantors": the collective reference to each Guarantor.
"Guaranteed Obligations": has the meaning set forth in Section
2.1(a) hereof.
"Obligations": the collective reference to the unpaid
principal of and interest on the Loans and Reimbursement Obligations under
each of the Credit Agreements and all other obligations and liabilities of
the Borrower and any other Credit Party (including, without limitation),
(i) interest accruing at the then applicable rate provided in each of the
Credit Agreements after the maturity of the Loans and Reimbursement
Obligations and interest accruing at the then applicable rate provided in
each of the Credit Agreements after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding and
(ii) any exposure of any Lender under any lockbox arrangement, controlled
disbursement arrangement, checking accounts or other similar arrangements
(collectively, "Cash Management Agreements") with or on behalf of the
Borrower and/or its Subsidiaries) to any Agent or any Lender (or, in the
case of any Interest Rate Agreement referred to below, any Affiliate of
any Lender), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, any of the Credit Agreements, this
Agreement, the other Credit Documents, any Letter of Credit or any
Interest Rate Agreement entered into by the Borrower or any other Credit
Party with any Lender (or any Affiliate of any Lender) or any Cash
Management Agreement entered into by the Borrower or any Subsidiary of the
Borrower with any Lender or any other document made, delivered or given in
connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and disbursements of
counsel to the
3
Agents and the Lenders that are required to be paid by the Borrower or any
other Credit Party pursuant to the terms of any of the foregoing
agreements).
1.2 Other Definitional Provisions.
(a) The words "hereof," "herein", "hereto" 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 and
Schedule references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
1.3 Effect of Restatement. This Agreement amends, restates and
supersedes the Prior Guarantee; provided, that (i) each party hereto
acknowledges and agrees that there is no defense, setoff or counterclaim of any
kind, nature or description to Guaranteed Obligations with respect to any
Obligations arising prior to the Closing Date and (ii) all references in the
other Credit Documents to the Prior Guarantee shall be deemed to refer without
further amendment to this Agreement.
SECTION 2. GUARANTEE
2.1 Guarantee.
(a) Each of the Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantees to the Administrative Agent, for the
ratable benefit of the Lenders and the Agents and their respective successors,
endorsees, transferees and assigns, the prompt and complete payment and
performance by the Borrower and each of the other Credit Parties when due
(whether at the stated maturity, by acceleration or otherwise) of the Borrower's
and such other Credit Party's Obligations (collectively, the "Guaranteed
Obligations"). The liability of each of the Guarantors hereunder shall be joint
and several with the Obligations of all other Guarantors.
(b) Anything herein or in any other Credit Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Credit Documents shall in no event exceed the maximum amount which can be
guaranteed by such Guarantor under applicable federal and state laws relating to
the insolvency of debtors without rendering the guarantee of such Guarantor
hereunder unenforceable.
(c) Each Guarantor agrees that the Guaranteed Obligations may at any
time and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Section 2 or
affecting the rights and remedies of the Administrative Agent, on behalf of the
other Agents and the Lenders hereunder.
(d) The guarantee contained in this Section 2 shall remain in full
force and effect until all the Guaranteed Obligations and the obligations of
each Guarantor under this
4
Agreement shall have been satisfied by payment in full, no Letter of Credit
shall be outstanding and the Commitments shall be terminated, notwithstanding
that from time to time during the term of each of the Credit Agreements, no
Loans or Letters of Credit may be outstanding.
(e) No indefeasible payment made by any Credit Party or any other
Person or received or collected by any of the Agents or the Lenders by virtue of
any action or proceeding or any set-off or appropriation or application at any
time or from time to time in reduction of or in payment of the Guaranteed
Obligations shall be deemed to release the liability of any Guarantor hereunder,
and each Guarantor shall, notwithstanding any such payment (other than any
payment made by such Guarantor in respect of the Guaranteed Obligations or any
payment received or collected from such Guarantor in respect of the Guaranteed
Obligations), remain liable for the Guaranteed Obligations up to the maximum
liability of such Guarantor hereunder until the Guaranteed Obligations are paid
in full, no Loan or Letter of Credit shall be outstanding and the Commitments
are terminated.
2.2 Right of Contribution. Each Guarantor hereby agrees that to the
extent that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder which has not paid
its proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 2.3. The provisions of
this Section 2.2 shall in no respect limit the obligations and liabilities of
any Guarantor to the Agents and the Lenders, and each Guarantor shall remain
jointly and severally liable to the Agents and the Lenders for the full amount
guaranteed by such Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any
Guarantor hereunder or any set-off or application of funds of any Guarantor by
any of the Agents or Lenders, no Guarantor shall be entitled to be subrogated to
any of the rights of any of the Agents or Lenders against the other Credit
Parties or any collateral security or guarantee or right of offset held by any
of the Agents or Lenders for the payment of all or any portion of the Guaranteed
Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from any of the other Credit Parties in respect of
payments made by such Guarantor hereunder, until all amounts owing to the Agents
and the Lenders by the other Credit Parties on account of any of the Obligations
are paid in full, no Letter of Credit shall be outstanding and the Commitments
are terminated. If any amount shall be paid to any Guarantor on account of such
subrogation rights at any time when all of the Guaranteed Obligations shall not
have been paid in full, such amount shall be held by such Guarantor in trust for
the Agents and the Lenders, segregated from other funds of such Guarantor, and
shall, forthwith upon receipt by such Guarantor, be turned over to the
Administrative Agent in the exact form received by such Guarantor (duly indorsed
by such Guarantor to the Administrative Agent, if required), to be applied
against the Guaranteed Obligations, whether matured or unmatured, in such order
as the Required Lenders may determine.
2.4 Amendments, etc. with respect to the Guaranteed Obligations.
Each Guarantor shall remain obligated hereunder notwithstanding that, without
any reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any
5
demand for payment of any of the Guaranteed Obligations made by any of the
Agents or Lenders may be rescinded by such party and any of the Guaranteed
Obligations continued, and the Guaranteed Obligations, or the liability of any
other Person upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by any of the Agents or Lenders,
and the Credit Agreements, the other Credit Documents and any other documents
executed and delivered in connection therewith may be amended, restated,
modified, supplemented or terminated, in whole or in part, as the Administrative
Agent (or the Required Lenders or all Lenders, as the case may be) may deem
advisable from time to time, and any collateral security guarantee or right of
offset at any time held by any of the Agents or Lenders for the payment of the
Guaranteed Obligations may be sold, exchanged, waived, surrendered or released.
None of the Agents or Lenders shall have any obligation to protect, secure,
perfect or insure any Lien at any time held by it as security for the Guaranteed
Obligations or for the guarantee contained in this Section 2 or any property
subject thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Guaranteed Obligations and notice of or proof of reliance by any of the Agents
or Lenders upon the guarantee contained in this Section 2 or acceptance of the
guarantee contained in this Section 2; the Guaranteed Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon the guarantee
contained in this Section 2; and all dealings between the Borrower and any of
the Guarantors, on the one hand, and the Agents and the Lenders, on the other
hand, likewise shall be conclusively presumed to have been had or consummated in
reliance upon the guarantee contained in this Section 2. Each Guarantor waives
diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon any of the Credit Parties with respect to the Guaranteed
Obligations. Each Guarantor understands and agrees that the guarantee contained
in this Section 2 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or enforceability of the
Credit Agreements, this Agreement or any other Credit Document, any of the
Guaranteed Obligations or any other collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to time held by
any of the Agents or Lenders, (b) any defense, set-off or counterclaim (other
than a defense of payment or performance) which may at any time be available to
or be asserted by any of the other Credit Parties or any other Person against
any of the Agents or Lenders, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of any of the Credit Parties) which constitutes,
or might be construed to constitute, an equitable or legal discharge of any of
the Credit Parties for the Guaranteed Obligations, or of such Guarantor under
the guarantee contained in this Section 2, in bankruptcy or in any other
instance. When making any demand hereunder or otherwise pursuing its rights and
remedies hereunder against any Guarantor, any of the Agents or Lenders may, but
shall be under no obligation to, make a similar demand on or otherwise pursue
such rights and remedies as it may have against any of the other Credit Parties
or any other Person or against any collateral security or guarantee for the
Guaranteed Obligations or any right of offset with respect thereto, and any
failure by any of the Agents or Lenders to make any such demand, to pursue such
other rights or remedies or to
6
collect any payments from any of the other Credit Parties or any other Person or
to realize upon any such collateral security or guarantee or to exercise any
such right of offset, or any release of any of the other Credit Parties or any
other Person or any such collateral security, guarantee or right of offset,
shall not relieve any Guarantor of any obligation or liability hereunder, and
shall not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of any of the Agents or Lenders against any
Guarantor. For the purposes hereof "demand" shall include the commencement and
continuance of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Guaranteed Obligations is rescinded
or must otherwise be restored or returned by and of the Agents or Lenders upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of any of
the Credit Parties, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, any of the
Credit Parties or any substantial part of its property, or otherwise, all as
though such payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without set-off or
counterclaim in Dollars at the office of the Administrative Agent located at
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; Attention: Agency
Administrative Services #5596, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; Fax: (▇▇▇) ▇▇▇-▇▇▇▇.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit
Agreements and to induce the Lenders to make their respective extensions of
credit to or for the benefit of the Borrower thereunder, each Guarantor hereby
represents and warrants to each of the Agents and the Lenders that:
3.1 Representations in Credit Agreements. In the case of each
Guarantor, the representations and warranties set forth in Section 4 of the
Credit Agreements as they relate to such Guarantor or to the Credit Document to
which such Guarantor is a party, each of which is hereby incorporated herein by
reference, are true and correct, and each Agent and Lender shall be entitled to
rely on each of them as if they were fully set forth herein, provided that each
reference in each such representation and warranty to the Borrower's knowledge
shall, for the purposes of this Section 3.1, be deemed to be a reference to such
Guarantor's knowledge.
SECTION 4. COVENANTS
Each Guarantor covenants and agrees with the Agents and the Lenders
that, from and after the date of this Agreement until the Guaranteed Obligations
shall have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
4.1 Covenants in Credit Agreements. In the case of each Guarantor,
such Guarantor shall take, or shall refrain from taking, as the case may be,
each action that is necessary to be taken or not taken, as the case may be, so
that no Default or Event of Default is
7
caused by the failure to take such action or to refrain from taking such action
by any of the Credit Parties.
SECTION 5. MISCELLANEOUS
5.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, restated, supplemented or otherwise modified
except in accordance with subsection 10.1 of each of the Credit Agreements.
5.2 Notices. All notices, requests and demands to or upon the
Agents, the Lenders or any Guarantor hereunder shall be effected in the manner
provided for in subsection 10.2 of each of the Credit Agreements; provided that
any such notice, request or demand to or upon any Guarantor shall be addressed
to such Guarantor at its notice address set forth below its respective signature
hereto.
5.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent nor any other Agent or any Lender shall by any act (except
by a written instrument pursuant to Section 5.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of any of the Agents or Lenders, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by any of the Agents or Lenders of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Administrative Agent, on behalf of the other Agents and the
Lenders, would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
5.4 Enforcement Expenses; Indemnification.
(a) Each Guarantor agrees to pay or reimburse each of the Lenders
and Agents for all its costs and expenses incurred in collecting against such
Guarantor under the guarantee contained in Section 2 or otherwise enforcing or
preserving any rights under this Agreement and the other Credit Documents to
which such Guarantor is a party, including, without limitation, the fees and
disbursements of counsel to the Administrative Agent and of counsel to each of
the other Agents and Lenders.
(b) Each Guarantor agrees to pay, and to save the Agents and the
Lenders harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other taxes which
may be payable or determined to be payable in connection with any of the
transactions contemplated by this Agreement.
(c) Each Guarantor agrees to pay, and to save the Agents and the
Lenders harmless from, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the
8
execution, delivery, enforcement, performance and administration of this
Agreement to the extent the Borrower would be required to do so pursuant to
subsection 10.5 of the applicable Credit Agreement.
(d) The agreements in this Section 5.4 shall survive repayment of
the Guaranteed Obligations and all other amounts payable under each of the
Credit Agreements, this Agreement and the other Credit Documents.
5.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Guarantor and shall inure to the benefit of the
Agents and the Lenders and their successors and assigns; provided that no
Guarantor may assign, transfer or delegate any of its rights or obligations
under this Agreement without the prior written consent of the Required Lenders.
5.6 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.
5.7 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.
5.8 Section Headings. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
5.9 Integration. This Agreement and the other Credit Documents
represent the agreement of the Guarantors, the Agents and the Lenders with
respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by any of the Agents or Lenders
relative to the subject matter hereof and thereof not expressly set forth or
referred to herein, the Credit Agreements or in the other Credit Documents.
5.10 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.
5.11 SUBMISSION TO JURISDICTION; WAIVERS. EACH GUARANTOR 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
9
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 SUCH GUARANTOR AT
ITS ADDRESS REFERRED TO IN SUBSECTION 5.2 OR AT SUCH OTHER ADDRESS OF WHICH THE
ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO ▇▇▇ IN ANY OTHER JURISDICTION; AND
(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT
IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN
THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
5.12 Acknowledgments. Each Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents to which it is a
party;
(b) none of the Agents nor the Lenders has any fiduciary
relationship with or duty to any Guarantor arising out of or in connection with
this Agreement or any of the other Credit Documents, and the relationship
between the Guarantors, on the one hand, and the Agents and Lenders, 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 Agents, among the Agents and/or the Lenders, or among the Guarantors and
the Agents and/or the Lenders.
5.13 WAIVER OF JURY TRIAL. EACH GUARANTOR AND, BY ACCEPTANCE OF THE
BENEFITS HEREOF, EACH OF THE LENDERS AND THE AGENTS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY
10
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
5.14 Additional Guarantors. Each Subsidiary of the Borrower that is
required to become a party to this Agreement pursuant to subsection 6.10 of each
of the Credit Agreements shall become a Guarantor for all purposes of this
Agreement upon execution and delivery by such Subsidiary of an Assumption
Agreement in the form of Annex 1 hereto.
5.15 Releases.
(a) At such time as the Loans, the Reimbursement Obligations and the
other Guaranteed Obligations shall have been paid in full, the Commitments have
been terminated and no Letters of Credit shall be outstanding, this Agreement
and all obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and each Guarantor hereunder shall
terminate, all without delivery of any instrument or performance of any act by
any party, and all rights shall revert to the Guarantors, and the Administrative
Agent shall execute and deliver to such Guarantor such documents as such
Guarantor shall reasonably request to evidence such termination.
(b) At the request and sole expense of the Borrower, a Guarantor
shall be released from its obligations hereunder in the event that all the
Capital Stock of such Guarantor shall be sold, transferred or otherwise disposed
of in a transaction permitted by the Credit Agreements.
[Signature page follows]
11
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed and delivered as of the date first above written.
HYGIENETICS ENVIRONMENTAL SERVICES, INC.
By: ____________________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President-General Counsel and Secretary
L-3 COMMUNICATIONS ILEX SYSTEMS, INC.
By: ____________________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President-General Counsel and Secretary
L-3 COMMUNICATIONS SPD TECHNOLOGIES INC.
By: ____________________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President-General Counsel and Secretary
L-3 COMMUNICATIONS AYDIN CORPORATION
By: ____________________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President-General Counsel and Secretary
MICRODYNE CORPORATION
By: ____________________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President-General Counsel and Secretary
S-1
Address for Notice to any Guarantor:
▇/▇ ▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Accepted on behalf of the Agents and
the Lenders as of the date first above
written:
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
By: _________________________________
Name: ___________________________
Title: __________________________
S-2
Annex 1 to
Second Amended and Restated Subsidiary Guarantee Agreement
ASSUMPTION AGREEMENT, dated as of ______________, _____, made by
______________________________, a ______________ corporation (the "Additional
Guarantor"), in favor of Bank of America, N.A., as administrative agent (in such
capacity, the "Administrative Agent") for the banks and other financial
institutions (the "Lenders") parties to the Credit Agreements referred to below.
All capitalized terms not defined herein shall have the collective meanings
ascribed to them in each of such Credit Agreements.
W I T N E S S E T H:
WHEREAS, (a) L-3 Communications Corporation, a Delaware corporation
(the "Borrower"), the banks, financial institutions or other entities party
thereto as Lenders (the "Facility A Lenders"), ▇▇▇▇▇▇ Commercial Paper Inc.
("LCPI"), as Documentation Agent, LCPI as Syndication Agent, LCPI and Banc of
America Securities LLC as Arrangers, the Administrative Agent and certain other
entities named therein as Co-Agents have entered into a Second Amended and
Restated Credit Agreement, dated as of _________ __, 2000 (as amended, restated,
supplemented or otherwise modified from time to time, the "Facility A Credit
Agreement"), (b) the Borrower, the banks, financial institutions or other
entities party thereto as Lenders (the "Facility B Lenders"), LCPI as
Documentation Agent, LCPI as Syndication Agent, LCPI and Banc of America
Securities LLC as Arrangers, the Administrative Agent and certain other entities
named therein as Co-Agents have entered into an Amended and Restated 364 Day
Credit Agreement, dated as of _________ __, 2000 (as amended, restated,
supplemented or otherwise modified from time to time, the "Facility B Credit
Agreement") and (c) the Borrower, the banks, financial institutions or other
entities party thereto as Lenders (the "Facility C Lenders"; and together with
the Facility A Lenders and the Facility B Lenders, the "Lenders"), LCPI as
Documentation Agent, LCPI as Syndication Agent, LCPI and Banc of America
Securities LLC as Arrangers, the Administrative Agent and certain other entities
named therein as Co-Agents have entered into a new 364 Day Credit Agreement,
dated as of _________ __, 2000 (as amended, restated, supplemented or otherwise
modified from time to time, the "Facility C Credit Agreement, and, together with
the Facility A Credit Agreement and the Facility B Credit Agreement, the "Credit
Agreements");
WHEREAS, in connection with the Credit Agreements, certain
Subsidiaries of the Borrower (other than the Additional Guarantor) have entered
into a Subsidiary Guarantee Agreement and a Subsidiary Pledge Agreement, each
amended and restated as of _________ __, 2000 (as amended, supplemented or
otherwise modified from time to time, respectively, the "Subsidiary Guarantee
Agreement" and the "Subsidiary Pledge Agreement") in favor of the Administrative
Agent for the benefit of the Lenders;
WHEREAS, the Credit Agreements require the Additional Guarantor to
become a party to the Subsidiary Guarantee Agreement and the Subsidiary Pledge
Agreement; and
Annex 1 - 1
WHEREAS, the Additional Guarantor has agreed to execute and deliver
this Assumption Agreement in order to become a party to the Subsidiary Guarantee
Agreement and the Subsidiary Pledge Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Subsidiary Guarantee Agreement. By executing and delivering this
Assumption Agreement, the Additional Subsidiary Guarantor, as provided in
Subsection 5.14 of the Subsidiary Guarantee Agreement, hereby becomes a party to
the Subsidiary Guarantee Agreement as a Guarantor thereunder with the same force
and effect as if originally named therein as a Guarantor and, without limiting
the generality of the foregoing, hereby expressly assumes all obligations and
liabilities of a Guarantor thereunder. The information set forth in Annex 1-A
hereto is hereby added to the information set forth in Schedule 1 to the
Subsidiary Guarantee Agreement. The Additional Guarantor hereby represents and
warrants that each of the representations and warranties contained in Section 3
of the Subsidiary Guarantee Agreement is true and correct on and as the date
hereof (after giving effect to this Assumption Agreement) as if made on and as
of such date.
2. Subsidiary Pledge Agreement. By executing and delivering this
Assumption Agreement, the Additional Subsidiary Guarantor, as provided in
Subsection 7.15 of the Subsidiary Pledge Agreement, hereby becomes a party to
the Subsidiary Pledge Agreement as a Grantor thereunder with the same force and
effect as if originally named therein as a Grantor and, without limiting the
generality of the foregoing, hereby expressly assumes all obligations and
liabilities of a Grantor thereunder. The information set forth in Annex 1-B
hereto is hereby added to the information set forth in Schedule 1 to the
Subsidiary Pledge Agreement. The Additional Guarantor hereby represents and
warrants that each of the representations and warranties contained in the
Subsidiary Pledge Agreement is true and correct on and as the date hereof (after
giving effect to this Assumption Agreement) as if made on and as of such date.
3. Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GUARANTOR]
By: _______________________________________
Name:
Title:
Address for Notices:
______________________________
Annex 1 - 2
______________________________
______________________________
Attention:
Phone: ( ) ___________
Fax: ( ) ___________
Accepted on behalf of the Agents and
the Lenders as of the date first
above written:
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT
By: _______________________________________
Name:
Title:
▇▇▇▇▇ ▇ - ▇
▇▇▇▇▇▇▇ ▇-▇
TO CREDIT AGREEMENT
================================================================================
SECOND AMENDED AND RESTATED PARENT PLEDGE AGREEMENT
made by
L-3 COMMUNICATIONS HOLDINGS, INC.
in favor of
BANK OF AMERICA, N.A.,
as Administrative Agent
Dated as of April 24, 2000
================================================================================
TABLE OF CONTENTS
Page
SECTION 1. DEFINED TERMS.....................................................2
1.1. Definitions..........................................................2
1.2. Other Definitional Provisions........................................4
1.3. Effect of Restatement................................................4
SECTION 2. PLEDGE............................................................4
SECTION 3. REPRESENTATIONS AND WARRANTIES....................................4
3.1. Representations in Credit Agreement..................................4
3.2. Title; No Other Liens................................................5
3.3. Perfected First Priority Liens.......................................5
3.4. Chief Executive Office...............................................5
3.5. Pledged Stock........................................................5
SECTION 4. COVENANTS.........................................................5
4.1. Maintenance of Perfected Security Interest...........................6
4.2. Pledged Stock........................................................6
SECTION 4A. CERTAIN AFFIRMATIVE COVENANTS....................................7
4A.1 Further Documentation................................................7
4A.3 Notices..............................................................7
SECTION 5. REMEDIAL PROVISIONS...............................................8
5.1. Pledged Stock........................................................8
5.2. Proceeds to be Turned Over To Administrative Agent...................9
5.3. Application of Proceeds..............................................9
5.4. Code and Other Remedies..............................................9
5.5. Registration Rights.................................................10
5.6. Waiver; Deficiency.................................................11
SECTION 6. THE ADMINISTRATIVE AGENT.........................................11
6.1. Administrative Agent's Appointment as Attorney-in-Fact, etc.........11
6.2. Duty of Administrative Agent........................................12
6.3. Authority of Administrative Agent...................................12
SECTION 7. MISCELLANEOUS....................................................13
7.1. Amendments in Writing...............................................13
7.2. Notices.............................................................13
7.3. No Waiver by Course of Conduct; Cumulative Remedies.................13
7.4. Enforcement Expenses; Indemnification...............................13
7.5. Successors and Assigns..............................................14
7.6. Set-Off.............................................................14
i
7.7. Counterparts........................................................14
7.8. Severability........................................................14
7.9. Section Headings....................................................15
7.10. Integration........................................................15
7.11. GOVERNING LAW......................................................15
7.12. SUBMISSION TO JURISDICTION; WAIVERS................................15
7.13. Acknowledgments....................................................16
7.14. WAIVER OF JURY TRIAL...............................................16
7.15. Releases...........................................................16
ii
SECOND AMENDED AND RESTATED PARENT PLEDGE AGREEMENT
This SECOND AMENDED AND RESTATED PARENT PLEDGE AGREEMENT, dated as
of April 24, 2000, is made by L-3 Communications Holdings, Inc., a Delaware
corporation ("Holdings"), in favor of Bank of America, N.A. as Administrative
Agent (in such capacity, the "Administrative Agent") for (a) the banks and other
financial institutions or entities (collectively, the "Facility A Lenders") from
time to time parties to the Second Amended and Restated Credit Agreement, dated
as of April 24, 2000 (as amended, restated, supplemented or otherwise modified
from time to time, the "Facility A Credit Agreement"), among L-3 Communications
Corporation, a Delaware corporation (the "Borrower"), the Facility A Lenders,
▇▇▇▇▇▇ Commercial Paper Inc. ("LCPI"), as documentation agent (in such capacity,
the "Facility A Documentation Agent"), LCPI as syndication agent (in such
capacity, the "Facility A Syndication Agent"; and together with the Facility A
Documentation Agent and the Administrative Agent, the "Facility A Agents"), LCPI
and Banc of America Securities LLC (f/k/a BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) as
arrangers (in such capacity, the "Facility A Arrangers"), the Administrative
Agent and certain other entities named therein as Co-Agents, which amended and
restated in its entirety that certain Amended and Restated Credit Agreement
dated as of August 13, 1998 (as amended, restated, supplemented or otherwise
modified prior to the date hereof, the "Original Facility A Credit Agreement")
among the Borrower, the Agents party thereto (the "Original Facility A Agents",
including the Administrative Agent party thereto, the "Original Facility A
Administrative Agent"), the lenders party thereto (the "Original Facility A
Lenders") and LCPI and BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (n/k/a Banc of America
Securities LLC ) as arrangers, and (b) the banks and other financial
institutions or entities (the "Facility B Lenders"; and together with the
Facility A Lenders, the "Lenders"), from time to time parties to the Amended and
Restated 364 Day Credit Agreement, dated as of April 24, 2000 (as amended,
restated, supplemented or otherwise modified from time to time, the "Facility B
Credit Agreement"), among the Borrower, the Administrative Agent, LCPI as
documentation agent (in such capacity, the "Facility B Documentation Agent"),
LCPI as syndication agent (in such capacity, the "Facility B Syndication Agent";
and together with the Facility B Documentation Agent and the Administrative
Agent, the "Facility B Agents"), LCPI and Banc of America Securities LLC (f/k/a
BankAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) as arrangers (in such capacity, the "Facility B
Arrangers"), the Administrative Agent and certain other entities named therein
as Co-Agents, which amended and restated in its entirety that certain 364 Day
Credit Agreement dated as of August 13, 1998 (as amended, restated, supplemented
or otherwise modified prior to the date hereof, the "Original Facility B Credit
Agreement"; and together with the Original Facility A Credit Agreement, the
"Original Credit Agreements") among the Borrower, the Administrative Agent (the
"Original Facility B Administrative Agent"; and together with the Original
Facility A Administrative Agent, the "Original Administrative Agents"), the
other Agents party thereto (together with the Original Facility B Administrative
Agent, the "Original Facility B Agents"; and together with the Original Facility
A Agents, the Original Agents"), the lenders party thereto (the "Original
Facility B Lenders"; and together with the Original Facility A Lenders, the
"Original Lenders") and LCPI and BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (n/k/a Banc of
America
Securities LLC ) as arrangers, and (c) the banks and other financial
institutions or entities (the "Facility C Lenders"; and together with the
Facility A Lenders and the Facility B Lenders, the "Lenders"), from time to time
parties to the New 364 Day Credit Agreement, dated as of April 24, 2000 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Facility C Credit Agreement"; and together with the Facility A Credit Agreement
and the Facility B Credit Agreement, each a "Credit Agreement", and
collectively, the "Credit Agreements"), among the Borrower, the Administrative
Agent, LCPI as documentation agent (in such capacity, the "Facility C
Documentation Agent"), LCPI as syndication agent (in such capacity, the
"Facility C Syndication Agent"; and together with the Facility C Documentation
Agent and the Administrative Agent, the "Facility C Agents"; and together with
the Facility A Agents and the Facility B Agents, the "Agents"), ▇▇▇▇▇▇ Brothers,
Inc. ("LBI") and Banc of America Securities LLC as arrangers (in such capacity,
the "Facility C Arrangers"; and together with the Facility A Arrangers and the
Facility B Arrangers, the "Arrangers"), the Administrative Agent and certain
other entities named therein as Managing Agents.
W I T N E S S E T H:
WHEREAS, Holdings executed and delivered to the Original
Administrative Agents a certain Amended and Restated Parent Pledge and Security
Agreement dated as August 13, 1998 (as amended, restated, supplemented or
otherwise modified from time to time prior to the date hereof, the "Existing
Pledge Agreement") in favor of the Original Administrative Agents for the
ratable benefit of the Original Lenders and the Original Agents to secure the
Obligations (as defined in the Existing Pledge Agreement);
WHEREAS, Holdings and the Administrative Agent wish to amend and
restate the Existing Pledge Agreement (as so amended and restated herein, this
"Agreement") to, inter alia, reflect the amending and restating of the Original
Credit Agreements and the entering into of the Facility C Credit Agreement; and
WHEREAS, the Lenders have required, as a condition to the extension
of credit under the Credit Agreements, that Holdings execute and deliver this
Agreement.
NOW, THEREFORE, in consideration of the premises and to induce the
Agents and the Lenders to enter into the Credit Agreements, and to induce the
Lenders to make their respective extensions of credit to or for the benefit of
the Borrower thereunder, Holdings hereby agrees with the Administrative Agent,
for the ratable benefit of the Lenders and the Agents, to amend and restate the
Existing Pledge Agreement in its entirety to read as provided herein:
SECTION 1. DEFINED TERMS
1.1 Definitions.
(a) Unless otherwise defined herein, terms defined in the Credit
Agreements and used herein shall have the collective meanings given to them in
each of the Credit Agreements.
2
(b) The following terms shall have the following meanings:
"Agreement": this Second Amended and Restated Parent Pledge
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time.
"Collateral": as defined in Section 2.
"Issuers": the collective reference to each issuer of any Pledged
Stock.
"New York UCC": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Obligations": the collective reference to the unpaid principal of
and interest on the Loans and Reimbursement Obligations under each of the Credit
Agreements and all other obligations and liabilities of the Borrower and any
other Credit Party (including, without limitation), (i) interest accruing at the
then applicable rate provided in each of the Credit Agreements after the
maturity of the Loans and Reimbursement Obligations and interest accruing at the
then applicable rate provided in each of the Credit Agreements after the filing
of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to Holdings, whether or not a claim
for post-filing or post-petition interest is allowed in such proceeding and (ii)
any exposure of any Lender under any lockbox arrangement, controlled
disbursement arrangement, checking accounts or other similar arrangements
(collectively, "Cash Management Agreements") with or on behalf of Holdings
and/or its Subsidiaries) to any Agent or any Lender (or, in the case of any
Interest Rate Agreement referred to below, any Affiliate of any Lender), whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, either of the Credit Agreements, this Agreement, the Parent Guarantee, the
other Credit Documents, any Letter of Credit or any Interest Rate Agreement
entered into by Holdings with any Lender (or any Affiliate of any Lender) or any
Cash Management Agreement entered into by Holdings or any Subsidiary of Holdings
with any Lender or any other document made, delivered or given in connection
therewith, in each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Agents and Lenders that
are required to be paid by Holdings pursuant to the terms of any of the
foregoing agreements).
"Pledged Stock": the shares of Capital Stock listed on Schedule 1,
together with any other shares, stock certificates, options or rights of any
nature whatsoever in respect of the Capital Stock of any Person that may be
issued or granted to, or held by, Holdings while this Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of New York on
the date hereof and, in any event, shall include, without limitation, all
dividends or other income from the Pledged Stock, collections thereon or
distributions or payments with respect thereto.
"Securities Act": the Securities Act of 1933, as amended.
3
1.2 Other Definitional Provisions.
(a) The words "hereof," "herein", "hereto" 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 and
Schedule references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or
any part thereof shall refer to Holdings' Collateral or the relevant part
thereof.
1.3 Effect of Restatement. This Agreement amends, restates and
supersedes the Existing Pledge Agreement; provided, that (i) the Liens in favor
of Administrative Agent for the benefit of Lenders securing payment of the
Obligations are in all respects continuing and in full force and effect with
respect to all Obligations and (ii) all references in the other Credit Documents
to the Existing Pledge Agreement shall be deemed to refer without further
amendment to this Agreement.
SECTION 2. PLEDGE
Holdings hereby pledges to the Administrative Agent, and hereby
grants to the Administrative Agent, for the ratable benefit of the Agents and
the Lenders, a first priority security interest in all of the following property
now owned or at any time hereafter acquired by Holdings or in which Holdings now
has or at any time in the future may acquire any right, title or interest
(collectively, the "Collateral"), as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations:
(a) all Pledged Stock; and
(b) to the extent not otherwise included, all Proceeds of any and
all of the foregoing and all collateral security and guarantees given by any
Person with respect to any of the foregoing.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit
Agreements and to induce the Agents and the Lenders to make their respective
extensions of credit to or for the benefit of the Borrower thereunder, Holdings
hereby represents and warrants to each of the Agents and the Lenders that:
3.1 Representations in Credit Agreements. The representations and
warranties set forth in Section 4 of the Credit Agreements, each of which is
hereby incorporated herein by reference, are true and correct, and the Agents
and the Lenders shall be entitled to rely on each of
4
them as if they were fully set forth herein, provided that each reference in
each such representation and warranty to the Borrower's knowledge shall, for the
purposes of this Section 3.1, be deemed to be a reference to Holdings'
knowledge.
3.2 Title; No Other Liens. Except for the security interest granted
to the Administrative Agent for the ratable benefit of the Agents and the
Lenders pursuant to this Agreement and the other Liens permitted to exist on the
Collateral by the Credit Agreements, Holdings owns each item of the Collateral
free and clear of any and all Liens or claims of others.
3.3 Perfected First Priority Liens. The security interests granted
pursuant to this Agreement:
(a) upon delivery by Holdings to the Administrative Agent of the
original certificates evidencing such Pledged Stock together with undated stock
powers therefor duly executed in blank, will constitute valid perfected security
interests in all of the Collateral in favor of the Administrative Agent, for the
ratable benefit of the Agents and the Lenders, as collateral security for the
Obligations, enforceable in accordance with the terms hereof against all
creditors of Holdings and any Persons purporting to purchase any Collateral from
Holdings, 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; and
(b) are prior to all other Liens on the Collateral in existence on
the date hereof except for Liens permitted by the Credit Agreements which have
priority over the Liens on the Collateral by operation of law.
3.4 Chief Executive Office. On the date hereof, Holdings'
jurisdiction of organization and the location of Holdings' chief executive
office is specified on Schedule 2.
3.5 Pledged Stock.
(a) The shares of Pledged Stock pledged by Holdings hereunder
constitute all the issued and outstanding shares of all classes of the Capital
Stock of each Issuer owned by Holdings.
(b) All the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable.
(c) Holdings is the record and beneficial owner of, and has good and
marketable title to, the Pledged Stock pledged by it hereunder, free of any and
all Liens or options in favor of, or claims of, any other Person, except the
security interest created by this Agreement and other Liens permitted by the
Credit Agreements which have priority by operation of law.
SECTION 4. COVENANTS
5
Holdings covenants and agrees with the Agents and the Lenders that,
from and after the date of this Agreement until the Obligations shall have been
paid in full, no Letter of Credit shall be outstanding and the Commitments shall
have terminated:
4.1 Maintenance of Perfected Security Interest
. Holdings shall maintain the security interest created by this
Agreement as a perfected security interest having at least the priority
described in subsection 3.3 and shall defend such security interest against the
claims and demands of all Persons whomsoever.
4.2 Pledged Stock.
(a) If Holdings shall become entitled to receive or shall receive
any instruments, stock certificates (including, without limitation, any
certificate representing a stock dividend or a distribution in connection with
any reclassification, increase or reduction of capital or any certificate issued
in connection with any reorganization), options or rights in respect of the
Capital Stock of any Issuer, whether in addition to, in substitution of, as a
conversion of, or in exchange for, any shares of the Pledged Stock, or as a
dividend or distribution thereunder, or otherwise in respect thereof, Holdings
shall accept the same as the agent of the Agents and the Lenders, hold the same
in trust for the Agents and the Lenders and promptly (and in any event within 60
days) deliver the same forthwith to the Administrative Agent in the exact form
received, duly endorsed by Holdings to the Administrative Agent, if required,
together with an undated stock power or endorsement covering such certificate or
instrument, as applicable, duly executed in blank by Holdings and with, if the
Administrative Agent so requests, signature guaranteed, to be held by the
Administrative Agent, subject to the terms hereof, as additional collateral
security for the Obligations. Any sums paid upon or in respect of the Pledged
Stock upon the liquidation or dissolution of any Issuer shall be promptly (and
in any event within 60 days) paid over to the Administrative Agent to be held by
it hereunder as additional collateral security for the Obligations, and in case
any distribution of capital shall be made on or in respect of the Pledged Stock
or any property shall be distributed upon or with respect to the Pledged Stock
pursuant to the recapitalization or reclassification of the capital of any
Issuer or pursuant to the reorganization thereof, the property so distributed
shall, unless otherwise subject to a perfected security interest in favor of the
Administrative Agent, be promptly (and in any event within 60 days) delivered to
the Administrative Agent to be held by it hereunder as additional collateral
security (or except as provided in the Credit Agreements) for the Obligations.
Except as provided in the Credit Agreements, if any sums of money or property so
paid or distributed in respect of the Pledged Stock under circumstances
described in this Section 4.2(a) shall be received by Holdings, Holdings shall,
until such money or property is paid or delivered to the Administrative Agent,
hold such money or property in trust for the Lenders, segregated from other
funds of Holdings, as additional collateral security for the Obligations.
(b) Except as provided in the Credit Agreements, without the prior
written consent of the Administrative Agent, Holdings will not (i) vote to
enable, or take any other action to permit, any Issuer to issue any stock
6
or other equity securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any stock or
other equity securities of any nature of any Issuer, (ii) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with respect
to, the Pledged Stock or Proceeds thereof (except pursuant to a transaction
expressly permitted by the Credit Agreements), (iii) create, incur or permit to
exist any Lien or option in favor of, or any claim of any Person with respect
to, any of the Pledged Stock or Proceeds thereof, or any interest therein,
except for the security interests created by this Agreement or (iv) enter into
any agreement or undertaking restricting the right or ability of Holdings or the
Administrative Agent to sell, assign or transfer any of the Pledged Stock or
Proceeds thereof.
SECTION 4a. CERTAIN AFFIRMATIVE COVENANTS
Holdings covenants and agrees with the Agents and the Lenders that,
from and after the date of this Agreement until the Obligations shall have been
paid in full, no Letter of Credit shall be outstanding and the Commitments shall
have terminated:
4A.1 Further Documentation.
(a) Holdings will furnish to the Agents and the Lenders from time to
time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Administrative Agent may reasonably request, all in reasonable detail.
(b) At any time and from time to time, upon the written request of
the Administrative Agent, and at the sole expense of Holdings, Holdings
will promptly and duly execute and deliver, such further instruments and
documents and take such further actions as the Administrative Agent may
reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted.
4A.2 Payment of Obligations.
Holdings will pay and discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all material
taxes, assessments and governmental charges or levies imposed upon the
Collateral or in respect of income or profits therefrom, as well as all material
claims of any kind (including, without limitation, claims for labor, materials
and supplies) against or with respect to the Collateral, except that no such
charge need be paid if the amount or validity thereof is currently being
contested in good faith by appropriate proceedings, reserves in conformity with
GAAP with respect thereto have been provided on the books of Holdings and such
proceedings could not reasonably be expected to result in the sale, forfeiture
or loss of any material portion of the Collateral or any interest therein.
4A.3 Notices. Holdings will advise the Agents and the Lenders
promptly, in reasonable detail, of:
7
(a) any Lien (other than security interests created hereby or Liens
permitted under the Credit Agreements) on any of the Collateral which
would adversely affect the ability of the Administrative Agent to exercise
any of its remedies hereunder; and
(b) the occurrence of any other event of which it is aware which
could reasonably be expected to have a material adverse effect on the
enforceability, or perfection or priority of, the security interests
purported to be created hereby.
SECTION 5. REMEDIAL PROVISIONS
5.1 Pledged Stock.
(a) Unless an Event of Default shall have occurred and be continuing
and the Administrative Agent shall have given notice to Holdings of the
Administrative Agent's intent to exercise its corresponding rights pursuant to
subsection 5.1(b), Holdings shall be permitted to receive all cash dividends
paid in respect of the Pledged Stock paid in the normal course of business of
the relevant Issuer and consistent with past practice, to the extent permitted
in the Credit Agreements, and to exercise all voting and corporate rights with
respect to the Pledged Stock; provided, however, that no vote shall be cast or
corporate right exercised or other action taken which, in the Administrative
Agent's reasonable judgment, would materially impair the Collateral or which
would result in any violation of any provision of the Credit Agreements, this
Agreement or any other Credit Document.
(b) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give notice of its intent to exercise such rights to
Holdings, (i) the Administrative Agent shall have the right to receive any and
all cash dividends, payments or other Proceeds paid in respect of the Pledged
Stock and make application thereof to Obligations in such order as the
Administrative Agent may determine, and (ii) any or all of the Pledged Stock
shall be registered in the name of the Administrative Agent or its nominee, and
the Administrative Agent or its nominee may thereafter exercise (x) all voting,
corporate and other rights pertaining to such Pledged Stock at any meeting of
shareholders of the relevant Issuer or Issuers or otherwise (including giving or
withholding written consents of shareholders and calling special meetings of
shareholders) and (y) any and all rights of conversion, exchange and
subscription and any other rights, privileges or options pertaining to such
Pledged Stock as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the Pledged
Stock upon the merger, consolidation, reorganization, recapitalization or other
fundamental change in the corporate structure of any Issuer, or upon the
exercise by Holdings or the Administrative Agent of any right, privilege or
option pertaining to such Pledged Stock, and in connection therewith, the right
to deposit and deliver any and all of the Pledged Stock with any committee,
depositary, transfer agent, registrar or other designated agency upon such terms
and conditions as the Administrative Agent may determine), all without liability
except to account for property actually received by it, but the Administrative
Agent shall have no duty to Holdings to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or delay in so
doing.
8
(c) Holdings hereby authorizes and instructs each Issuer of any
Pledged Stock pledged by Holdings hereunder to (i) comply with any instruction
received by it from the Administrative Agent in writing that (x) states that an
Event of Default has occurred and is continuing and (y) is otherwise in
accordance with the terms of this Agreement, without any other or further
instructions from Holdings, and Holdings agrees that each Issuer shall be fully
protected in so complying, and (ii) unless otherwise expressly permitted hereby,
pay any dividends or other payments with respect to the Pledged Stock directly
to the Administrative Agent.
5.2 Proceeds to be Turned Over To Administrative Agent. If an Event
of Default shall occur and be continuing, all Proceeds received by Holdings
consisting of cash, checks and other near-cash items shall be held by Holdings
in trust for the Agents and the Lenders, segregated from other funds of
Holdings, and shall, forthwith upon receipt by Holdings, be turned over to the
Administrative Agent in the exact form received by Holdings (duly endorsed by
Holdings to the Administrative Agent, if required). All Proceeds received by the
Administrative Agent hereunder shall be held by the Administrative Agent in a
deposit account (a "Collateral Account") maintained under its sole dominion and
control. All Proceeds while held by the Administrative Agent in a Collateral
Account (or by Holdings in trust for the Administrative Agent and the Lenders)
shall continue to be held as collateral security for all the Obligations and
shall not constitute payment thereof until applied as provided in subsection
5.3.
5.3 Application of Proceeds. At such intervals as may be agreed upon
by Holdings and the Administrative Agent, or, if an Event of Default shall have
occurred and be continuing, at any time at the Administrative Agent's election,
the Administrative Agent may apply all or any part of Proceeds held in any
Collateral Account in payment of the Obligations in such order as required by
the Credit Agreements, and any part of such funds which are not required as
collateral security for the Obligations shall be paid over from time to time by
the Administrative Agent to Holdings or to whomsoever may be lawfully entitled
to receive the same. Any balance of such Proceeds remaining after the
Obligations shall have been paid in full, no Letters of Credit shall be
outstanding and the Commitments shall have terminated shall be paid over to
Holdings or to whomsoever may be lawfully entitled to receive the same.
5.4 Code and Other Remedies. If an Event of Default shall occur and
be continuing, the Administrative Agent, on behalf of the Agents and the
Lenders, may exercise, in addition to all other rights and remedies granted to
them in this Agreement and in any other instrument or agreement securing,
evidencing or relating to the Obligations, all rights and remedies of a secured
party under the New York UCC or any other applicable law. Without limiting the
generality of the foregoing, the Administrative Agent, without demand of
performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice required by law referred to below) to or upon
Holdings or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, lease, assign, give option or options
to purchase, or otherwise dispose of and deliver the Collateral or any part
thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, at any exchange, broker's board or office
9
of any of the Agents or Lenders or elsewhere upon such terms and conditions as
it may deem advisable and at such prices as it may deem best, for cash or on
credit or for future delivery without assumption of any credit risk. Any Agents
or Lenders shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption in Holdings, which right or equity is hereby waived and released. The
Administrative Agent shall apply the net proceeds of any action taken by it
pursuant to this subsection 5.4, after deducting all reasonable costs and
expenses of every kind incurred in connection therewith or incidental to the
care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Agents and the Lenders hereunder, including,
without limitation, reasonable attorneys' fees and disbursements, to the payment
in whole or in part of the Obligations, in such order as the Administrative
Agent may elect, and only after such application and after the payment by the
Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the New York UCC, need the
Administrative Agent account for the surplus, if any, to Holdings. To the extent
permitted by applicable law, Holdings waives all claims, damages and demands it
may acquire against any Agents or Lenders arising out of the exercise by them of
any rights hereunder. If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be deemed reasonable and
proper if given at least 15 days before such sale or other disposition.
5.5 Registration Rights.
(a) If the Administrative Agent shall determine to exercise its
right to sell any or all of the Pledged Stock pursuant to subsection 5.4, and if
in the opinion of the Administrative Agent it is necessary or advisable to have
the Pledged Stock, or that portion thereof to be sold, registered under the
provisions of the Securities Act, Holdings will cause the Issuer thereof to (i)
execute and deliver, and cause the directors and officers of such Issuer to
execute and deliver, all such instruments and documents, and do or cause to be
done all such other acts as may be, in the opinion of the Administrative Agent,
necessary or advisable to register the Pledged Stock, or that portion thereof to
be sold, under the provisions of the Securities Act, (ii) use its commercially
reasonable efforts to cause the registration statement relating thereto to
become effective and to remain effective for a period of one year from the date
of the first public offering of the Pledged Stock, or that portion thereof to be
sold, and (iii) make all amendments thereto and/or to the related prospectus
which, in the opinion of the Administrative Agent, are necessary or advisable,
all in conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto.
Holdings agrees to cause such Issuer to comply with the provisions of the
securities or "Blue Sky" laws of any and all jurisdictions which the
Administrative Agent shall designate and to make available to its security
holders, as soon as practicable, an earnings statement (which need not be
audited) which will satisfy the provisions of Section 11(a) of the Securities
Act.
(b) Holdings recognizes that the Administrative Agent may be unable
to effect a public sale of any or all the Pledged Stock, by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise, and may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers which will be obliged to
10
agree, among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. Holdings
acknowledges and agrees that any such private sale may result in prices and
other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(c) Holdings agrees to use its commercially reasonable efforts to do
or cause to be done all such other acts as may be necessary to make such sale or
sales of all or any portion of the Pledged Stock pursuant to this subsection 5.5
valid and binding and in compliance with any and all other applicable
Requirements of Law. Holdings further agrees that a breach of any of the
covenants contained in this subsection 5.5 will cause irreparable injury to the
Agents and the Lenders, that the Agents and the Lenders have no adequate remedy
at law in respect of such breach and, as a consequence, that each and every
covenant contained in this subsection 5.5 shall be specifically enforceable
against Holdings, and Holdings hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants except for
a defense that no Event of Default has occurred under the Credit Agreements.
5.6 Waiver; Deficiency. Holdings waives and agrees not to assert any
rights or privileges which it may acquire under Section 9-112 of the New York
UCC. Holdings shall remain liable for any deficiency if the proceeds of any sale
or other disposition of the Collateral are insufficient to pay its Obligations
and the fees and disbursements of any attorneys employed by the Administrative
Agent or any Lender to collect such deficiency.
SECTION 6. THE ADMINISTRATIVE AGENT
6.1 Administrative Agent's Appointment as Attorney-in-Fact, etc.
(a) Holdings hereby irrevocably constitutes and appoints the
Administrative Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of Holdings and in the name of
Holdings or in its own name, for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of this Agreement, and, without limiting the generality of the
foregoing, Holdings hereby gives the Administrative Agent the power and right,
on behalf of Holdings, without notice to or assent by Holdings, to do any or all
of the following:
(i) in the name of Holdings or its own name, or otherwise,
take possession of and endorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under or
with respect to any Collateral and file any claim or take any other action
or proceeding in any court of law or equity or otherwise deemed
appropriate by the Administrative Agent for the purpose of collecting any
and all such moneys due under or with respect to any Collateral whenever
payable;
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(ii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral; and
(iii) execute, in connection with any sale provided for in
subsections 5.4 or 5.5, any endorsements, assignments or other instruments
of conveyance or transfer with respect to the Collateral.
Anything in this subsection 6.1(a) to the contrary notwithstanding,
the Administrative Agent agrees that it will not exercise any rights under the
power of attorney provided for in this subsection 6.1(a) unless an Event of
Default shall have occurred and be continuing.
(b) If Holdings fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the Administrative Agent incurred in connection
with actions undertaken as provided in this subsection 6.1, together with
interest thereon at a rate per annum equal to the rate per annum at which
interest would then be payable on past due Base Rate Loans under the Credit
Agreements, from the date of payment by the Administrative Agent to the date
reimbursed by Holdings, shall be payable by Holdings to the Administrative Agent
on demand.
(d) Holdings hereby ratifies all that said attorneys shall lawfully
do or cause to be done by virtue hereof. All powers, authorizations and agencies
contained in this Agreement are coupled with an interest and are irrevocable
until this Agreement is terminated and the security interests created hereby are
released.
6.2 Duty of Administrative Agent. The Administrative Agent's sole
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Administrative
Agent deals with similar property for its own account. Neither the
Administrative Agent, any other Agent, any Lender nor any of their respective
officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of Holdings or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Agents and the Lenders hereunder are solely to protect the
Agents' and the Lenders' interests in the Collateral and shall not impose any
duty upon any Agents or Lenders to exercise any such powers. The Agents and the
Lenders shall be accountable only for amounts that they actually receive as a
result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to Holdings for
any act or failure to act hereunder, except for their own gross negligence or
willful misconduct.
6.3 Authority of Administrative Agent. Holdings acknowledges that
the rights and responsibilities of the Administrative Agent under this Agreement
with respect to any action
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taken by the Administrative Agent or the exercise or non-exercise by the
Administrative Agent of any option, voting right, request, judgment or other
right or remedy provided for herein or resulting or arising out of this
Agreement shall, as among the Agents and the Lenders, be governed by the Credit
Agreements and by such other agreements with respect thereto as may exist from
time to time among them, but, as among the Agents and Holdings, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Lenders with full and valid authority so to act or refrain from acting, and
Holdings shall not be under any obligation, or entitlement, to make any inquiry
respecting such authority.
SECTION 7. MISCELLANEOUS
7.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, restated, supplemented or otherwise modified
except in accordance with subsection 10.1 of each of the Credit Agreements.
7.2 Notices. All notices, requests and demands to or upon the
Agents, the Lenders or Holdings hereunder shall be effected in the manner
provided for in subsection 10.2 of each of the Credit Agreements.
7.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent, any other Agent, nor any Lender shall by any act (except
by a written instrument pursuant to Section 7.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of any of the Agents or Lenders, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by any of the Agents or Lenders of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Administrative Agent, on behalf of the other Agents and the
Lenders, would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
7.4 Enforcement Expenses; Indemnification.
(a) Holdings agrees to pay or reimburse each of the Lenders and the
Agents for all its reasonable costs and expenses incurred in collecting against
Holdings or otherwise enforcing or preserving any rights under this Agreement
and the other Credit Documents to which Holdings is a party, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent and of counsel to each of the other Agents and Lenders.
(b) Holdings agrees to pay, and to save the Agents and the Lenders
harmless from, any and all liabilities with respect to, or resulting from any
delay in paying, any and all stamp, excise, sales or other taxes which may be
payable or determined to be payable with respect to any of the Collateral or in
connection with any of the transactions contemplated by this Agreement.
13
(c) Holdings agrees to pay, and to save the Agents and the Lenders
harmless from, any and all 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 to the extent Holdings would be
required to do so pursuant to subsection 10.5 of the applicable Credit
Agreement.
(d) The agreements in this subsection 7.4 shall survive repayment of
the Obligations and all other amounts payable under each of the Credit
Agreements and the other Credit Documents.
7.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of Holdings and shall inure to the benefit of the Agents
and the Lenders and their successors and assigns; provided that Holdings may not
assign, transfer or delegate any of its rights or obligations under this
Agreement without the prior written consent of the Administrative Agent.
7.6 Set-Off. Holdings hereby irrevocably authorizes each of the
Agents and Lenders at any time and from time to time pursuant to subsection
10.7(b) of the applicable Credit Agreement whenever an Event of Default shall
have occurred and be continuing, without notice to Holdings, any such notice
being expressly waived by Holdings, to set-off and appropriate and apply 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 Agent or Lender to or for the
credit or the account of Holdings, or any part thereof in such amounts as such
Agent or Lender may elect, against and on account of the obligations and
liabilities of Holdings to such Agent or Lender hereunder and claims of every
nature and description of such Agent or Lender against Holdings, in any
currency, whether arising hereunder, under the Credit Agreements, any other
Credit Document or otherwise, as such Agent or Lender may elect, whether or not
any Agent or Lender has made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured. Each of the
Agents and Lenders shall notify Holdings promptly of any such set-off and the
application made by such Agent or Lender of the proceeds thereof, provided that
the failure to give such notice shall not affect the validity of such set-off
and application. The rights of the Agent and Lender under this subsection 7.6
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) which such Agent or Lender may have.
7.7 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.
7.8 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
14
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
7.9 Section Headings. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
7.10 Integration. This Agreement and the other Credit Documents
represent the agreement of Holdings, the Agents and the Lenders with respect to
the subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by any of the Agents or Lenders relative to the
subject matter hereof and thereof not expressly set forth or referred to herein
or in the other Credit Documents.
7.11 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.
7.12 SUBMISSION TO JURISDICTION; WAIVERS. HOLDINGS HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, AND THE OTHER 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 HOLDINGS AT ITS
ADDRESS REFERRED TO IN SUBSECTION 7.2 OR AT SUCH OTHER ADDRESS OF WHICH THE
ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO ▇▇▇ IN ANY OTHER JURISDICTION; AND
15
(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 SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
7.13 Acknowledgments. Holdings hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents to which it is a
party;
(b) none of the Agents nor Lenders has any fiduciary relationship
with or duty to Holdings arising out of or in connection with this Agreement or
any of the other Credit Documents, and the relationship between Holdings, on the
one hand, and the Agents and Lenders, 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 Agents, among the Agents and/or the Lenders or among Holdings and the
Agents and/or the Lenders.
7.14 WAIVER OF JURY TRIAL. HOLDINGS AND, BY ACCEPTANCE OF THE
BENEFITS HEREOF, EACH OF THE LENDERS AND THE AGENTS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
7.15 Releases.
(a) At such time as the Loans, the Reimbursement Obligations and the
other Obligations shall have been paid in full, the Commitments have been
terminated and no Letters of Credit shall be outstanding, the Collateral shall
be released from the Liens created hereby, and this Agreement and all
obligations (other than those expressly stated to survive such termination) of
the Administrative Agent and Holdings hereunder shall terminate, all without
delivery of any instrument or performance of any act by any party, and all
rights to the Collateral shall revert to Holdings and the Administrative Agent
shall deliver to Holdings any Collateral held by the Administrative Agent
hereunder, and execute and deliver to Holdings such documents as Holdings shall
reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by Holdings in a transaction permitted by the Credit Agreements,
then the Administrative Agent, at the request and sole expense of Holdings,
shall execute and deliver to Holdings all releases or other documents reasonably
necessary or desirable for the release of the Liens created hereby on such
Collateral.
[Signature page follows]
16
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed and delivered as of the date first above written.
L-3 COMMUNICATIONS HOLDINGS, INC.
By: ____________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President-General Counsel and Secretary
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Accepted on behalf of the Agents and
the Lenders as of the date first
above written:
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
By: _______________________________
Name: _________________________
Title: ________________________
S-1
Schedule 1
DESCRIPTION OF PLEDGED STOCK
Pledged Stock:
Issuer Class of Stock Stock Certificate No. No. of Shares
------------------ ------------------ --------------------- -------------
L-3 Communications Common 1 100
Corporation
Sch. 1
Schedule 2
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
Jurisdiction of Organization Location of Chief Executive Office
---------------------------- ----------------------------------
Delaware ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Sch. 2
ACKNOWLEDGMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Second
Amended and Restated Parent Pledge Agreement dated as of _______ __, 2000 (the
"Agreement"), made by the parties thereto for the benefit of Bank of America,
N.A., as Administrative Agent. The undersigned agrees for the benefit of the
Administrative Agent, the other Agents and the Lenders as follows:
1. The undersigned will be bound by the terms of the Agreement and
will comply with such terms insofar as such terms are applicable to the
undersigned.
2. The undersigned will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in Section 4.2(a) of
the Agreement.
3. The terms of Sections 5.1(a) and 5.5 of the Agreement shall apply
to it, mutatis mutandis, with respect to all actions that may be required of it
pursuant to Section 5.1(a) or 5.5 of the Agreement.
L-3 Communications Corporation
By: ____________________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President-General Counsel and Secretary
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT B-4A
TO CREDIT AGREEMENT
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SECOND AMENDED AND RESTATED BORROWER PLEDGE AGREEMENT
made by
L-3 COMMUNICATIONS CORPORATION
in favor of
BANK OF AMERICA, N.A.,
as Administrative Agent
Dated as of April 24, 2000
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TABLE OF CONTENTS
Page
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Section 1. DEFINED TERMS....................................................3
1.1 Definitions......................................................3
1.2 Other Definitional Provisions....................................4
1.3 Effect of Restatement............................................4
Section 2. PLEDGE...........................................................4
Section 3. REPRESENTATIONS AND WARRANTIES...................................5
3.1 Title; No Other Liens............................................5
3.2 Perfected First Priority Liens...................................5
3.3 Chief Executive Office...........................................5
3.4 Pledged Stock....................................................5
Section 4. COVENANTS........................................................6
4.1 Maintenance of Perfected Security Interest.......................6
4.2 Pledged Stock....................................................6
Section 4A. CERTAIN AFFIRMATIVE COVENANTS....................................6
4A.1 Further Documentation............................................6
4A.2 Payment of Obligations...........................................6
4A.3 Notices..........................................................6
Section 5. REMEDIAL PROVISIONS..............................................8
5.1 Pledged Stock....................................................8
5.2 Proceeds to be Turned Over To Administrative Agent...............9
5.3 Application of Proceeds..........................................9
5.4 Code and Other Remedies..........................................9
5.5 Registration Rights.............................................10
5.6 Waiver; Deficiency..............................................11
Section 6. THE ADMINISTRATIVE AGENT........................................11
6.1 Administrative Agent's Appointment as Attorney-in-Fact, etc.....11
6.2 Duty of Administrative Agent....................................12
6.3 Authority of Administrative Agent...............................13
i
Section 7. MISCELLANEOUS...................................................13
7.1 Amendments in Writing...........................................13
7.2 Notices.........................................................13
7.3 No Waiver by Course of Conduct; Cumulative Remedies.............13
7.4 Enforcement Expenses; Indemnification...........................13
7.5 Successors and Assigns..........................................14
7.6 Set-Off.........................................................14
7.7 Counterparts....................................................14
7.8 Severability....................................................15
7.9 Section Headings................................................15
7.10 Integration.....................................................15
7.11 GOVERNING LAW...................................................15
7.12 SUBMISSION TO JURISDICTION; WAIVERS.............................15
7.13 Acknowledgments.................................................16
7.14 WAIVER OF JURY TRIAL............................................16
7.15 Releases........................................................16
7.16 Conflict........................................................17
ii
SECOND AMENDED AND RESTATED BORROWER PLEDGE AGREEMENT
This SECOND AMENDED AND RESTATED BORROWER PLEDGE AGREEMENT, dated as
of April 24, 2000, is made by L-3 Communications Corporation, a Delaware
corporation (the "Borrower"), in favor of Bank of America, N.A. as
Administrative Agent (in such capacity, the "Administrative Agent") for (a) the
banks and other financial institutions or entities (collectively, the "Facility
A Lenders") from time to time parties to the Second Amended and Restated Credit
Agreement, dated as of April 24, 2000 (as amended, restated, supplemented or
otherwise modified from time to time, the "Facility A Credit Agreement"), among
L-3 Communications Corporation, a Delaware corporation (the "Borrower"), the
Facility A Lenders, ▇▇▇▇▇▇ Commercial Paper Inc. ("LCPI"), as documentation
agent (in such capacity, the "Facility A Documentation Agent"), LCPI as
syndication agent (in such capacity, the "Facility A Syndication Agent"; and
together with the Facility A Documentation Agent and the Administrative Agent,
the "Facility A Agents"), LCPI and Banc of America Securities LLC (f/k/a
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) as arrangers (in such capacity, the "Facility A
Arrangers"), the Administrative Agent and certain other entities named therein
as Co-Agents, which amended and restated in its entirety that certain Amended
and Restated Credit Agreement dated as of August 13, 1998 (as amended, restated,
supplemented or otherwise modified prior to the date hereof, the "Original
Facility A Credit Agreement") among the Borrower, the Agents party thereto (the
"Original Facility A Agents", including the Administrative Agent party thereto,
the "Original Facility A Administrative Agent"), the lenders party thereto (the
"Original Facility A Lenders") and LCPI and BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(n/k/a Banc of America Securities LLC ) as arrangers, and (b) the banks and
other financial institutions or entities (the "Facility B Lenders"; and together
with the Facility A Lenders, the "Lenders"), from time to time parties to the
Amended and Restated 364 Day Credit Agreement, dated as of April 24, 2000 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Facility B Credit Agreement"), among the Borrower, the Administrative Agent,
LCPI as documentation agent (in such capacity, the "Facility B Documentation
Agent"), LCPI as syndication agent (in such capacity, the "Facility B
Syndication Agent"; and together with the Facility B Documentation Agent and the
Administrative Agent, the "Facility B Agents"), LCPI and Banc of America
Securities LLC (f/k/a BankAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) as arrangers (in such
capacity, the "Facility B Arrangers"), the Administrative Agent and certain
other entities named therein as Co-Agents, which amended and restated in its
entirety that certain 364 Day Credit Agreement dated as of August 13, 1998 (as
amended, restated, supplemented or otherwise modified prior to the date hereof,
the "Original Facility B Credit Agreement"; and together with the Original
Facility A Credit Agreement, the "Original Credit Agreements") among the
Borrower, the Administrative Agent (the "Original Facility B Administrative
Agent"; and together with the Original Facility A Administrative Agent, the
"Original Administrative Agents"), the other Agents party thereto (together with
the Original Facility B Administrative Agent, the "Original Facility B Agents";
and together with the Original Facility A Agents, the Original Agents"), the
lenders party thereto (the "Original Facility B Lenders"; and together with the
Original Facility A Lenders, the "Original Lenders") and LCPI and BancAmerica
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (n/k/a Banc of America Securities LLC ) as arrangers, and (c)
the banks and other financial institutions or entities (the "Facility C
Lenders"; and together with the Facility A Lenders and the Facility B Lenders,
the
"Lenders"), from time to time parties to the New 364 Day Credit Agreement, dated
as of April 24, 2000 (as amended, restated, supplemented or otherwise modified
from time to time, the "Facility C Credit Agreement"; and together with the
Facility A Credit Agreement and the Facility B Credit Agreement, each a "Credit
Agreement", and collectively, the "Credit Agreements"), among the Borrower, the
Administrative Agent, LCPI as documentation agent (in such capacity, the
"Facility C Documentation Agent"), LCPI as syndication agent (in such capacity,
the "Facility C Syndication Agent"; and together with the Facility C
Documentation Agent and the Administrative Agent, the "Facility C Agents"; and
together with the Facility A Agents and the Facility B Agents, the "Agents"),
▇▇▇▇▇▇ Brothers, Inc. ("LBI") and Banc of America Securities LLC as arrangers
(in such capacity, the "Facility C Arrangers"; and together with the Facility A
Arrangers and the Facility B Arrangers, the "Arrangers"), the Administrative
Agent and certain other entities named therein as Managing Agents.
W I T N E S S E T H:
WHEREAS, the Borrower executed and delivered to the Original
Administrative Agents a certain Amended and Restated Borrower Pledge and
Security Agreement (as amended, restated, supplemented or otherwise modified
from time to time prior to the date hereof, the "Existing Pledge Agreement") in
favor of the Original Administrative Agents for the ratable benefit of the
Original Lenders and the Original Agents to secure the Obligations (as defined
in the Existing Pledge Agreement);
WHEREAS, the Borrower and the Administrative Agent wish to amend and
restate the Existing Pledge Agreement (as so amended and restated herein, this
"Agreement") to, inter alia, reflect the amending and restating of the Original
Credit Agreements and the entering into of the Facility C Credit Agreement;
WHEREAS, concurrently herewith, the Borrower has entered into an
Amended and Restated Charge Over Shares governed by the laws of England and
Wales, under which certain shares of capital stock of ▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇.▇.
Ltd. owned by the Borrower have been pledged to the Administrative Agent (the
"Charge Over Shares"); and
WHEREAS, the Lenders have required, as a condition to the extension
of credit under the Credit Agreements that the Borrower execute and deliver this
Agreement.
NOW, THEREFORE, in consideration of the premises and to induce the
Agents and the Lenders to enter into the Credit Agreements, and to induce the
Lenders to make their respective extensions of credit to or for the benefit of
the Borrower thereunder, Borrower hereby agrees with the Administrative Agent,
for the ratable benefit of the Lenders and the Agents, to amend and restate the
Existing Pledge Agreement in its entirety to read as provided herein:
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SECTION 1. DEFINED TERMS
1.1 Definitions.
(a) Unless otherwise defined herein, terms defined in the Credit
Agreements and used herein shall have the collective meanings given to them in
each of the Credit Agreements.
(b) The following terms shall have the following meanings:
"Agreement": this Second Amended and Restated Borrower Pledge
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time.
"Collateral": as defined in Section 2.
"Issuers": the collective reference to each issuer of any Pledged
Stock.
"New York UCC": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Obligations": the collective reference to the unpaid principal of
and interest on the Loans and Reimbursement Obligations under each of the Credit
Agreements and all other obligations and liabilities of the Borrower (including,
without limitation), (i) interest accruing at the then applicable rate provided
in each of the Credit Agreements after the maturity of the Loans and
Reimbursement Obligations and interest accruing at the then applicable rate
provided in each of the Credit Agreements after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding and (ii) any exposure of
any Lender under any lockbox arrangement, controlled disbursement arrangement,
checking accounts or other similar arrangements (collectively, "Cash Management
Agreements") with or on behalf of the Borrower and/or its Subsidiaries) to any
Agent or any Lender (or, in the case of any Interest Rate Agreement referred to
below, any Affiliate of any Lender), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, either of the Credit Agreements,
this Agreement, the other Credit Documents, any Letter of Credit or any Interest
Rate Agreement entered into by the Borrower with any Lender (or any Affiliate of
any Lender) or any Cash Management Agreement entered into by the Borrower or any
Subsidiary of the Borrower with any Lender or any other document made, delivered
or given in connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and disbursements of counsel
to the Agents and the Lenders that are required to be paid by the Borrower
pursuant to the terms of any of the foregoing agreements).
"Pledged Stock": the shares of Capital Stock listed on Schedule 1,
together with any other shares, stock certificates, options or rights of any
nature whatsoever in respect of the Capital Stock of any Person that may be
issued or granted to, or held by, the Borrower while this Agreement is in
effect; provided that, in no event shall the Pledged Stock include more than
65.0
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percent of the issued and outstanding stock of ▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇.▇. Ltd. (the
"U.K. Issuer Pledge Limitation").
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of New York on
the date hereof and, in any event, shall include, without limitation, all
dividends or other income from the Pledged Stock, collections thereon or
distributions or payments with respect thereto.
"Securities Act": the Securities Act of 1933, as amended.
1.2 Other Definitional Provisions.
(a) The words "hereof," "herein", "hereto" 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 and
Schedule references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or
any part thereof shall refer to the Borrower's Collateral or the relevant part
thereof.
1.3 Effect of Restatement. This Agreement amends, restates and
supersedes the Existing Pledge Agreement; provided, that (i) the Liens in favor
of Administrative Agent for the benefit of Lenders securing payment of the
Obligations are in all respects continuing and in full force and effect with
respect to all Obligations and (ii) all references in the other Credit Documents
to the Existing Pledge Agreement shall be deemed to refer without further
amendment to this Agreement.
SECTION 2. PLEDGE
Borrower hereby pledges to the Administrative Agent, and hereby
grants to the Administrative Agent, for the ratable benefit of the Agents and
the Lenders, a first priority security interest in, all of the following
property now owned or at any time hereafter acquired by the Borrower or in which
the Borrower now has or at any time in the future may acquire any right, title
or interest (collectively, the "Collateral"), as collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations:
(a) all Pledged Stock; and
(b) to the extent not otherwise included, all Proceeds of any and
all of the foregoing and all collateral security and guarantees given by any
Person with respect to any of the foregoing.
4
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit
Agreements and to induce the Agents and the Lenders to make their respective
extensions of credit to or for the benefit of the Borrower thereunder, Borrower
hereby represents and warrants to each of the Agents and the Lenders that:
3.1 Title; No Other Liens. Except for the security interest granted
to the Administrative Agent for the ratable benefit of the Agents and the
Lenders pursuant to this Agreement and the other Liens permitted to exist on the
Collateral by the Credit Agreements, the Borrower owns each item of the
Collateral free and clear of any and all Liens or claims of others.
3.2 Perfected First Priority Liens. The security interests granted
pursuant to this Agreement:
(a) upon delivery by the Borrower to the Administrative Agent of the
original certificates evidencing such Pledged Stock together with undated stock
powers therefor, duly executed in blank will constitute valid perfected security
interests in all of the Collateral in favor of the Administrative Agent, for the
ratable benefit of the Agents and the Lenders, as collateral security for the
Obligations, enforceable in accordance with the terms hereof against all
creditors of the Borrower and any Persons purporting to purchase any Collateral
from the Borrower, 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; and
(b) are prior to all other Liens on the Collateral in existence on
the date hereof except for Liens permitted by the Credit Agreements which have
priority over the Liens on the Collateral by operation of law.
3.3 Chief Executive Office. On the date hereof, the Borrower's
jurisdiction of organization and the location of the Borrower's chief executive
office is specified on Schedule 2.
3.4 Pledged Stock.
(a) Except for the U.K. Issuer Pledge Limitation, the shares of
Pledged Stock pledged by the Borrower hereunder constitute all the issued and
outstanding shares of all classes of the Capital Stock of each Issuer owned by
the Borrower.
(b) All the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable.
(c) The Borrower is the record and beneficial owner of, and has good
and marketable title to, the Pledged Stock pledged by it hereunder, free of any
and all Liens or options in favor of, or claims of, any other Person, except the
security interest created by this Agreement and other Liens permitted by the
Credit Agreements which have priority by operation of law.
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SECTION 4. COVENANTS
Borrower covenants and agrees with the Agents and the Lenders that,
from and after the date of this Agreement until the Obligations shall have been
paid in full, no Letter of Credit shall be outstanding and the Commitments shall
have terminated:
4.1 Maintenance of Perfected Security Interest. The Borrower shall
maintain the security interest created by this Agreement as a perfected security
interest having at least the priority described in subsection 3.2 and shall
defend such security interest against the claims and demands of all Persons
whomsoever.
4.2 Pledged Stock.
(a) If the Borrower shall become entitled to receive or shall
receive any instruments, stock certificates (including, without limitation, any
certificate representing a stock dividend or a distribution in connection with
any reclassification, increase or reduction of capital or any certificate issued
in connection with any reorganization), options or rights in respect of the
Capital Stock of any Issuer, whether in addition to, in substitution of, as a
conversion of, or in exchange for, any shares of the Pledged Stock, or as a
dividend or distribution thereunder, or otherwise in respect thereof, and
subject to the U.K. Issuer Pledge Limitation, the Borrower shall accept the same
as the agent of the Agents and the Lenders, hold the same in trust for the
Agents and the Lenders and promptly (and in any event within 60 days) deliver
the same forthwith to the Administrative Agent in the exact form received, duly
endorsed by the Borrower to the Administrative Agent, if required, together with
an undated stock power or endorsement covering such certificate or instrument,
as applicable, duly executed in blank by the Borrower and with, if the
Administrative Agent so requests, signature guaranteed, to be held by the
Administrative Agent, subject to the terms hereof, as additional collateral
security for the Obligations. Any sums paid upon or in respect of the Pledged
Stock upon the liquidation or dissolution of any Issuer shall be promptly (and
in any event within 60 days) paid over to the Administrative Agent to be held by
it hereunder as additional collateral security for the Obligations, and in case
any distribution of capital shall be made on or in respect of the Pledged Stock
or any property shall be distributed upon or with respect to the Pledged Stock
pursuant to the recapitalization or reclassification of the capital of any
Issuer or pursuant to the reorganization thereof, the property so distributed
shall, unless otherwise subject to a perfected security interest in favor of the
Administrative Agent, be promptly (and in any event within 60 days) delivered to
the Administrative Agent to be held by it hereunder as additional collateral
security (or except as provided in the Credit Agreements) for the Obligations.
Except as provided in the Credit Agreements, if any sums of money or property so
paid or distributed in respect of the Pledged Stock under circumstances
described in this Section 4.2 shall be received by the Borrower, the Borrower
shall, until such money or property is paid or delivered to the Administrative
Agent, hold such money or property in trust for the Lenders, segregated from
other funds of the Borrower, as additional collateral security for the
Obligations.
(b) Except as provided in the Credit Agreements, without the prior
written consent of the Administrative Agent, the Borrower will not (i) vote to
enable, or take any other action to permit, any Issuer to issue any stock or
other equity securities of any nature or to issue
6
any other securities convertible into or granting the right to purchase or
exchange for any stock or other equity securities of any nature of any Issuer,
(ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant any
option with respect to, the Pledged Stock or Proceeds thereof (except pursuant
to a transaction expressly permitted by the Credit Agreements), (iii) create,
incur or permit to exist any Lien or option in favor of, or any claim of any
Person with respect to, any of the Pledged Stock or Proceeds thereof, or any
interest therein, except for the security interests created by this Agreement or
(iv) enter into any agreement or undertaking restricting the right or ability of
the Borrower or the Administrative Agent to sell, assign or transfer any of the
Pledged Stock or Proceeds thereof.
SECTION 4A. CERTAIN AFFIRMATIVE COVENANTS
Borrower covenants and agrees with the Agents and the Lenders that,
from and after the date of this Agreement until the Obligations shall have been
paid in full, no Letter of Credit shall be outstanding and the Commitments shall
have terminated:
4A.1 Further Documentation.
(a) The Borrower will furnish to the Agents and the Lenders from
time to time statements and schedules further identifying and describing
the Collateral and such other reports in connection with the Collateral as
the Administrative Agent may reasonably request, all in reasonable detail.
(b) At any time and from time to time, upon the written request of
the Administrative Agent, and at the sole expense of the Borrower, the
Borrower will promptly and duly execute and deliver such further
instruments and documents and take such further actions as the
Administrative Agent may reasonably request for the purpose of obtaining
or preserving the full benefits of this Agreement and of the rights and
powers herein granted.
4A.2 Payment of Obligations. The Borrower will pay and discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all material taxes, assessments and governmental charges or levies
imposed upon the Collateral or in respect of income or profits therefrom, as
well as all material claims of any kind (including, without limitation, claims
for labor, materials and supplies) against or with respect to the Collateral,
except that no such charge need be paid if the amount or validity thereof is
currently being contested in good faith by appropriate proceedings, reserves in
conformity with GAAP with respect thereto have been provided on the books of the
Borrower and such proceedings could not reasonably be expected to result in the
sale, forfeiture or loss of any material portion of the Collateral or any
interest therein.
4A.3 Notices. The Borrower will advise the Agents and the Lenders
promptly, in reasonable detail, of:
7
(a) any Lien (other than security interests created hereby or Liens
permitted under the Credit Agreements) on any of the Collateral which
would adversely affect the ability of the Administrative Agent to exercise
any of its remedies hereunder; and
(b) the occurrence of any other event of which it is aware which
could reasonably be expected to have a material adverse effect on the
enforceability, or perfection or priority of, the security interests
purported to be created hereby.
SECTION 5. REMEDIAL PROVISIONS
5.1 Pledged Stock.
(a) Unless an Event of Default shall have occurred and be continuing
and the Administrative Agent shall have given notice to the Borrower of the
Administrative Agent's intent to exercise its corresponding rights pursuant to
subsection 5.1(b), the Borrower shall be permitted to receive all cash dividends
paid in respect of the Pledged Stock paid in the normal course of business of
the relevant Issuer and consistent with past practice, to the extent permitted
in the Credit Agreements, and to exercise all voting and corporate rights with
respect to the Pledged Stock; provided, however, that no vote shall be cast or
corporate right exercised or other action taken which, in the Administrative
Agent's reasonable judgment, would materially impair the Collateral or which
would result in any violation of any provision of the Credit Agreements, this
Agreement or any other Credit Document.
(b) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give notice of its intent to exercise such rights to
the Borrower, (i) the Administrative Agent shall have the right to receive any
and all cash dividends, payments or other Proceeds paid in respect of the
Pledged Stock and make application thereof to the Borrower Obligations in such
order as the Administrative Agent may determine, and (ii) any or all of the
Pledged Stock shall be registered in the name of the Administrative Agent or its
nominee, and the Administrative Agent or its nominee may thereafter exercise (x)
all voting, corporate and other rights pertaining to such Pledged Stock at any
meeting of shareholders of the relevant Issuer or Issuers or otherwise
(including giving or withholding written consents of shareholders and calling
special meetings of shareholders) and (y) any and all rights of conversion,
exchange and subscription and any other rights, privileges or options pertaining
to such Pledged Stock as if it were the absolute owner thereof (including,
without limitation, the right to exchange at its discretion any and all of the
Pledged Stock upon the merger, consolidation, reorganization, recapitalization
or other fundamental change in the corporate structure of any Issuer, or upon
the exercise by the Borrower or the Administrative Agent of any right, privilege
or option pertaining to such Pledged Stock, and in connection therewith, the
right to deposit and deliver any and all of the Pledged Stock with any
committee, depositary, transfer agent, registrar or other designated agency upon
such terms and conditions as the Administrative Agent may determine), all
without liability except to account for property actually received by it, but
the Administrative Agent shall have no duty to the Borrower to exercise any such
right, privilege or option and shall not be responsible for any failure to do so
or delay in so doing.
8
(c) The Borrower hereby authorizes and instructs each Issuer of any
Pledged Stock pledged by the Borrower hereunder to (i) comply with any
instruction received by it from the Administrative Agent in writing that (x)
states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from the Borrower, and the Borrower agrees that each Issuer
shall be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Pledged Stock directly to the Administrative Agent.
5.2 Proceeds to be Turned Over To Administrative Agent. If an Event
of Default shall occur and be continuing, all Proceeds received by the Borrower
consisting of cash, checks and other near-cash items shall be held by the
Borrower in trust for the Agents and the Lenders, segregated from other funds of
the Borrower, and shall, forthwith upon receipt by the Borrower, be turned over
to the Administrative Agent in the exact form received by the Borrower (duly
endorsed by the Borrower to the Administrative Agent, if required). All Proceeds
received by the Administrative Agent hereunder shall be held by the
Administrative Agent in a deposit account (a "Collateral Account") maintained
under its sole dominion and control. All Proceeds while held by the
Administrative Agent in a Collateral Account (or by the Borrower in trust for
the Administrative Agent and the Lenders) shall continue to be held as
collateral security for all the Obligations and shall not constitute payment
thereof until applied as provided in subsection 5.3.
5.3 Application of Proceeds. At such intervals as may be agreed upon
by the Borrower and the Administrative Agent, or, if an Event of Default shall
have occurred and be continuing, at any time at the Administrative Agent's
election, the Administrative Agent may apply all or any part of Proceeds held in
any Collateral Account in payment of the Obligations in such order as required
by the Credit Agreements, and any part of such funds which are not required as
collateral security for the Obligations shall be paid over from time to time by
the Administrative Agent to the Borrower or to whomsoever may be lawfully
entitled to receive the same. Any balance of such Proceeds remaining after the
Obligations shall have been paid in full, no Letters of Credit shall be
outstanding and the Commitments shall have terminated shall be paid over to the
Borrower or to whomsoever may be lawfully entitled to receive the same.
5.4 Code and Other Remedies. If an Event of Default shall occur and
be continuing, the Administrative Agent, on behalf of the Agents and the
Lenders, may exercise, in addition to all other rights and remedies granted to
them in this Agreement and in any other instrument or agreement securing,
evidencing or relating to the Obligations, all rights and remedies of a secured
party under the New York UCC or any other applicable law. Without limiting the
generality of the foregoing, the Administrative Agent, without demand of
performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice required by law referred to below) to or upon the
Borrower or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, lease, assign, give option or options
to purchase, or otherwise dispose of and deliver the Collateral or any part
thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, at any exchange, broker's board or office of
any of the
9
Agents or Lenders or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or for
future delivery without assumption of any credit risk. Any Agents or Lenders
shall have the right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to purchase the whole or
any part of the Collateral so sold, free of any right or equity of redemption in
the Borrower, which right or equity is hereby waived and released. The
Administrative Agent shall apply the net proceeds of any action taken by it
pursuant to this subsection 5.4, after deducting all reasonable costs and
expenses of every kind incurred in connection therewith or incidental to the
care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Agents and the Lenders hereunder, including,
without limitation, reasonable attorneys' fees and disbursements, to the payment
in whole or in part of the Obligations, in such order as the Administrative
Agent may elect, and only after such application and after the payment by the
Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the New York UCC, need the
Administrative Agent account for the surplus, if any, to the Borrower. To the
extent permitted by applicable law, the Borrower waives all claims, damages and
demands it may acquire against any Agents or Lenders arising out of the exercise
by them of any rights hereunder. If any notice of a proposed sale or other
disposition of Collateral shall be required by law, such notice shall be deemed
reasonable and proper if given at least 15 days before such sale or other
disposition.
5.5 Registration Rights.
(a) If the Administrative Agent shall determine to exercise its
right to sell any or all of the Pledged Stock pursuant to subsection 5.4, and if
in the opinion of the Administrative Agent it is necessary or advisable to have
the Pledged Stock, or that portion thereof to be sold, registered under the
provisions of the Securities Act, the Borrower will cause the Issuer thereof to
(i) execute and deliver, and cause the directors and officers of such Issuer to
execute and deliver, all such instruments and documents, and do or cause to be
done all such other acts as may be, in the opinion of the Administrative Agent,
necessary or advisable to register the Pledged Stock, or that portion thereof to
be sold, under the provisions of the Securities Act, (ii) use its commercially
reasonable efforts to cause the registration statement relating thereto to
become effective and to remain effective for a period of one year from the date
of the first public offering of the Pledged Stock, or that portion thereof to be
sold, and (iii) make all amendments thereto and/or to the related prospectus
which, in the opinion of the Administrative Agent, are necessary or advisable,
all in conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto. The
Borrower agrees to cause such Issuer to comply with the provisions of the
securities or "Blue Sky" laws of any and all jurisdictions which the
Administrative Agent shall designate and to make available to its security
holders, as soon as practicable, an earnings statement (which need not be
audited) which will satisfy the provisions of Section 11(a) of the Securities
Act.
(b) The Borrower recognizes that the Administrative Agent may be
unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for
10
investment and not with a view to the distribution or resale thereof. The
Borrower acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(c) The Borrower agrees to use its commercially reasonable efforts
to do or cause to be done all such other acts as may be necessary to make such
sale or sales of all or any portion of the Pledged Stock pursuant to this
subsection 5.5 valid and binding and in compliance with any and all other
applicable Requirements of Law. The Borrower further agrees that a breach of any
of the covenants contained in this subsection 5.5 will cause irreparable injury
to the Agents and the Lenders, that the Agents and the Lenders have no adequate
remedy at law in respect of such breach and, as a consequence, that each and
every covenant contained in this subsection 5.5 shall be specifically
enforceable against the Borrower, and the Borrower hereby waives and agrees not
to assert any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred under the
Credit Agreements.
5.6 Waiver; Deficiency. The Borrower waives and agrees not to assert
any rights or privileges which it may acquire under Section 9-112 of the New
York UCC. The Borrower shall remain liable for any deficiency if the proceeds of
any sale or other disposition of the Collateral are insufficient to pay its
Obligations and the fees and disbursements of any attorneys employed by the
Administrative Agent or any Lender to collect such deficiency.
SECTION 6. THE ADMINISTRATIVE AGENT
6.1 Administrative Agent's Appointment as Attorney-in-Fact, etc.
(a) The Borrower hereby irrevocably constitutes and appoints the
Administrative Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Borrower and in the name of
the Borrower or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, and, without limiting the generality of the
foregoing, the Borrower hereby gives the Administrative Agent the power and
right, on behalf of the Borrower, without notice to or assent by the Borrower,
to do any or all of the following:
(i) in the name of the Borrower or its own name, or otherwise,
take possession of and endorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under or
with respect to any Collateral and file any claim or take any other action
or proceeding in any court of law or equity or
11
otherwise deemed appropriate by the Administrative Agent for the purpose
of collecting any and all such moneys due under or with respect to any
Collateral whenever payable;
(ii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral; and
(iii) execute, in connection with any sale provided for in
subsections 5.4 or 5.5, any endorsements, assignments or other instruments
of conveyance or transfer with respect to the Collateral.
Anything in this subsection 6.1(a) to the contrary notwithstanding,
the Administrative Agent agrees that it will not exercise any rights under the
power of attorney provided for in this subsection 6.1(a) unless an Event of
Default shall have occurred and be continuing.
(b) If the Borrower fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the Administrative Agent incurred in connection
with actions undertaken as provided in this subsection 6.1, together with
interest thereon at a rate per annum equal to the rate per annum at which
interest would then be payable on past due Base Rate Loans under the Credit
Agreements, from the date of payment by the Administrative Agent to the date
reimbursed by the Borrower, shall be payable by the Borrower to the
Administrative Agent on demand.
(d) The Borrower hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
6.2 Duty of Administrative Agent. The Administrative Agent's sole
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Administrative
Agent deals with similar property for its own account. Neither the
Administrative Agent, and other Agent, any Lender nor any of their respective
officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of the Borrower or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Agents and the Lenders hereunder are solely to protect the
Agents' and the Lenders' interests in the Collateral and shall not impose any
duty upon any Agents or Lenders to exercise any such powers. The Agents and the
Lenders shall be accountable only for amounts that they actually receive as a
result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to the Borrower
for any act or failure to act hereunder, except for their own gross negligence
or willful misconduct.
12
6.3 Authority of Administrative Agent. The Borrower acknowledges
that the rights and responsibilities of the Administrative Agent under this
Agreement with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as among the Agents and the
Lenders, be governed by the Credit Agreements and by such other agreements with
respect thereto as may exist from time to time among them, but, as among the
Agents and the Borrower, the Administrative Agent shall be conclusively presumed
to be acting as agent for the Lenders with full and valid authority so to act or
refrain from acting, and the Borrower shall not be under any obligation, or
entitlement, to make any inquiry respecting such authority.
SECTION 7. MISCELLANEOUS
7.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, restated, supplemented or otherwise modified
except in accordance with subsection 10.1 of each of the Credit Agreements.
7.2 Notices. All notices, requests and demands to or upon the
Agents, the Lenders or the Borrower hereunder shall be effected in the manner
provided for in subsection 10.2 of each of the Credit Agreements.
7.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent, any other Agent nor any Lender shall by any act (except by
a written instrument pursuant to Section 7.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of any of the Agents or Lenders, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by any of the Agents or Lenders of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Administrative Agent, on behalf of the other Agents and the
Lenders, would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
7.4 Enforcement Expenses; Indemnification.
(a) The Borrower agrees to pay or reimburse each of the Lenders and
the Agents for all its reasonable costs and expenses incurred in collecting
against the Borrower or otherwise enforcing or preserving any rights under this
Agreement and the other Credit Documents to which the Borrower is a party,
including, without limitation, the reasonable fees and disbursements of counsel
to the Administrative Agent and of counsel to each of the other Agents and
Lenders.
(b) The Borrower agrees to pay, and to save the Agents and the
Lenders harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any
13
and all stamp, excise, sales or other taxes which may be payable or determined
to be payable with respect to any of the Collateral or in connection with any of
the transactions contemplated by this Agreement.
(c) The Borrower agrees to pay, and to save the Agents and the
Lenders harmless from, any and all 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 to the extent the Borrower
would be required to do so pursuant to subsection 10.5 of the applicable Credit
Agreement.
(d) The agreements in this subsection 7.4 shall survive repayment of
the Obligations and all other amounts payable under each of the Credit
Agreements and the other Credit Documents.
7.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of the Borrower and shall inure to the benefit of the
Agents and the Lenders and their successors and assigns; provided that the
Borrower may not assign, transfer or delegate any of its rights or obligations
under this Agreement without the prior written consent of the Administrative
Agent.
7.6 Set-Off. The Borrower hereby irrevocably authorizes each of the
Agents and Lenders at any time and from time to time pursuant to subsection
10.7(b) of the applicable Credit Agreement whenever an Event of Default shall
have occurred and be continuing, without notice to the Borrower, any such notice
being expressly waived by the Borrower, to set-off and appropriate and apply 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 Agent or Lender to or for the
credit or the account of the Borrower, or any part thereof in such amounts as
such Agent or Lender may elect, against and on account of the obligations and
liabilities of the Borrower to such Agent or Lender hereunder and claims of
every nature and description of such Agent or Lender against the Borrower, in
any currency, whether arising hereunder, under the Credit Agreements, any other
Credit Document or otherwise, as such Agent or Lender may elect, whether or not
any Agent or Lender has made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured. Each of the
Agents and Lenders shall notify the Borrower promptly of any such set-off and
the application made by such Agent or Lender of the proceeds thereof, provided
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Agent and Lender under this
subsection 7.6 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Agent or Lender may have.
7.7 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.
14
7.8 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.
7.9 Section Headings. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
7.10 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 thereof, and there are no promises,
undertakings, representations or warranties by any of the Agents or Lenders
relative to the subject matter hereof and thereof not expressly set forth or
referred to herein, the Credit Agreements or in the other Credit Documents.
7.11 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.
7.12 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, THE CREDIT AGREEMENTS 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 REFERRED TO IN SUBSECTION 7.2 OR AT SUCH OTHER ADDRESS OF WHICH THE
ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO;
15
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO ▇▇▇ IN ANY OTHER JURISDICTION; AND
(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT
IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN
THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
7.13 Acknowledgments. 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 to which it is a
party;
(b) none of the Agents nor Lenders 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 the Borrower,
on the one hand, and the Agents and Lenders, 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 Agents, among the Agents and/or the Lenders or among the Borrower and the
Agents and/or the Lenders.
7.14 WAIVER OF JURY TRIAL. THE BORROWER AND, BY ACCEPTANCE OF THE
BENEFITS HEREOF, EACH OF THE LENDERS AND THE AGENTS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
7.15 Releases.
(a) At such time as the Loans, the Reimbursement Obligations and the
other Obligations shall have been paid in full, the Commitments have been
terminated and no Letters of Credit shall be outstanding, the Collateral shall
be released from the Liens created hereby, and this Agreement and all
obligations (other than those expressly stated to survive such termination) of
the Administrative Agent and the Borrower hereunder shall terminate, all without
delivery of any instrument or performance of any act by any party, and all
rights to the Collateral shall revert to the Borrower and the Administrative
Agent shall deliver to the Borrower any Collateral held by the Administrative
Agent hereunder, and execute and deliver to the Borrower such documents as the
Borrower shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by the Borrower in a transaction permitted by the Credit Agreements,
then the Administrative Agent, at the request and sole expense of the Borrower,
shall execute and deliver to the Borrower all releases or other documents
reasonably necessary or desirable for the release of the Liens created hereby on
such Collateral.
16
7.16 Conflict. In the event there is a conflict between the terms of
this Agreement and the Credit Agreements, the Credit Agreements shall control.
In the event that there is a dispute as to the charge or pledge of the Charged
Shares or the Pledged Stock of L-3 U.K. and a court of competent jurisdiction
determines that the laws of the United Kingdom shall govern such dispute, then
the Charge Over Shares shall control such dispute as to the Charged Shares and
Pledged Stock of L-3 U.K.; provided that, if such a court determines that the
laws of the State of New York shall govern such dispute, then this Borrower
Pledge Agreement shall control such dispute as to the Charged Shares and Pledged
Stock of L-3 U.K.
[Signature page follows]
17
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed and delivered as of the date first above written.
L-3 COMMUNICATIONS CORPORATION
By: ______________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President - General Counsel
and Secretary
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Accepted on behalf of the Agents and
the Lenders as of the date first
above written:
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT
By: ____________________________________
Name:
Title:
S-1
Schedule 1
DESCRIPTION OF PLEDGED STOCK
Pledged Stock:
Stock Certificate No. of
Issuer Class of Stock No. Shares
------ -------------- ----------------- ------
L-3 Communications Ilex Common 1 100
Systems, Inc.
Hygienetics Environmental Common 2 100
Services, Inc.
▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇.▇. Ltd. Ordinary 3 65
Shares
L-3 Communications SPD Common 1 100
Technologies Inc.
L-3 Communications Aydin Common 1 1000
Corporation
Microdyne Corporation* Common 1 1000
* Represented by the stock certificate of ▇-▇ Acquisition Corporation
("▇-▇") which was converted to the stock of the surviving company in the
merger of ▇-▇ and Microdyne Corporation.
Schedule 2
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
Jurisdiction of Organization Location of Chief Executive Office
Delaware ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ACKNOWLEDGMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Second
Amended and Restated Borrower Pledge Agreement dated as of _______ __, 2000 (the
"Agreement"), made by the parties thereto for the benefit of Bank of America,
N.A, as Administrative Agent. The undersigned agrees for the benefit of the
Administrative Agent and the Lenders as follows:
1. The undersigned will be bound by the terms of the Agreement and
will comply with such terms insofar as such terms are applicable to the
undersigned.
2. The undersigned will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in Section 4.2(a) of
the Agreement.
3. The terms of Sections 5.1(a) and 5.5 of the Agreement shall apply
to it, mutatis mutandis, with respect to all actions that may be required of it
pursuant to Section 5.1(a) or 5.5 of the Agreement.
HYGIENETICS ENVIRONMENTAL SERVICES, INC.
______________________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President - General Counsel and Secretary
L-3 COMMUNICATIONS ILEX SYSTEMS, INC.
______________________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President - General Counsel and Secretary
L-3 COMMUNICATIONS SPD TECHNOLOGIES INC.
______________________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President - General Counsel and Secretary
L-3 COMMUNICATIONS AYDIN CORPORATION
______________________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President - General Counsel and Secretary
MICRODYNE CORPORATION
______________________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President - General Counsel and Secretary
▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇.▇. LTD.
______________________________________________
Name: ________________________________________
Title: _______________________________________
Address for Notices to all Signatories:
▇/▇ ▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT B-4B
TO CREDIT AGREEMENT
================================================================================
AMENDED AND RESTATED CHARGE OVER SHARES
made by
L-3 COMMUNICATIONS CORPORATION
in favor of
BANK OF AMERICA, N.A.,
as Administrative Agent
Dated April 24, 2000
================================================================================
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINED TERMS.......................................................3
1.1. Definitions.........................................................3
1.2. Other Definitional Provisions.......................................4
1.3. Effect of Restatement...............................................4
SECTION 2. CHARGE..............................................................4
SECTION 3. REPRESENTATIONS AND WARRANTIES......................................5
3.1. Title; No Other Liens...............................................5
3.2. Perfected First Fixed Charge Over Shares............................5
3.3. Chief Executive Office..............................................5
3.4. Charged Shares......................................................5
SECTION 4. COVENANTS...........................................................6
4.1. Undertaking to Pay..................................................6
4.2. Charged Shares......................................................6
SECTION 4A. CERTAIN AFFIRMATIVE COVENANTS......................................7
4A.1 Maintenance of Perfected Security Interest; Further Assurances......7
4A.2 Payment of Obligations..............................................8
4A.3 Notices.............................................................9
SECTION 5. REMEDIAL PROVISIONS.................................................9
5.1. Charged Shares......................................................9
5.2. Payments to be Turned Over To Administrative Agent.................10
5.3. Application of Dividends and Other Payments........................10
5.4. Right to Enforce Security..........................................10
5.5. Right to Take Possession, Exercise Rights, etc.....................11
5.6. Law of Property ▇▇▇ ▇▇▇▇ Not Applicable............................11
5.7. No Liability of Administrative Agent..............................11
SECTION 6. THE ADMINISTRATIVE AGENT...........................................11
6.1. Administrative Agent's Appointment as Attorney-in-Fact, etc........11
6.2. Duty of Administrative Agent.......................................12
6.3. Authority of Administrative Agent..................................13
i
SECTION 7. MISCELLANEOUS......................................................13
7.1. Amendments in Writing..............................................13
7.2. Notices............................................................13
7.3. No Waiver by Course of Conduct; Cumulative Remedies................13
7.4. Enforcement Expenses; Indemnification..............................13
7.5. Successors and Assigns.............................................14
7.6. Set-Off............................................................14
7.7. Counterparts.......................................................15
7.8. Severability.......................................................15
7.9. Section Headings...................................................15
7.10. Integration.......................................................15
7.11. GOVERNING LAW.....................................................15
7.12. SUBMISSION TO JURISDICTION; WAIVERS...............................15
7.13. Acknowledgments...................................................16
7.14. WAIVER OF JURY TRIAL..............................................16
7.15. Releases..........................................................17
7.16. Conflict; New York Law Pledge Agreement...........................17
ii
AMENDED AND RESTATED CHARGE OVER SHARES
This AMENDED AND RESTATED CHARGE OVER SHARES, dated April 24, 2000,
is made between (i) L-3 Communications Corporation, a Delaware corporation (the
"Borrower"), and (ii) Bank of America, N.A., as Administrative Agent (in such
capacity, the "Administrative Agent") for (a) the banks and other financial
institutions or entities (collectively, the "Facility A Lenders") from time to
time parties to the Second Amended and Restated Credit Agreement, dated as of
April 24, 2000 (as amended, restated, supplemented or otherwise modified from
time to time, the "Facility A Credit Agreement"), among L-3 Communications
Corporation, a Delaware corporation (the "Borrower"), the Facility A Lenders,
▇▇▇▇▇▇ Commercial Paper Inc. ("LCPI"), as documentation agent (in such capacity,
the "Facility A Documentation Agent"), LCPI as syndication agent (in such
capacity, the "Facility A Syndication Agent"; and together with the Facility A
Documentation Agent and the Administrative Agent, the "Facility A Agents"),
▇▇▇▇▇▇ Brothers, Inc. ("LBI") and Banc of America Securities LLC (f/k/a
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) as arrangers (in such capacity, the "Facility A
Arrangers"), the Administrative Agent and certain other entities named therein
as Co-Agents, which amended and restated in its entirety that certain Amended
and Restated Credit Agreement dated as of August 13, 1998 (as amended, restated,
supplemented or otherwise modified prior to the date hereof, the "Original
Facility A Credit Agreement") among the Borrower, the Agents party thereto (the
"Original Facility A Agents", including the Administrative Agent party thereto,
the "Original Facility A Administrative Agent"), the lenders party thereto (the
"Original Facility A Lenders") and LCPI and BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(n/k/a Banc of America Securities LLC ) as arrangers, and (b) the banks and
other financial institutions or entities (the "Facility B Lenders"; and together
with the Facility A Lenders, the "Lenders"), from time to time parties to the
Amended and Restated 364 Day Credit Agreement, dated as of April 24, 2000 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Facility B Credit Agreement"), among the Borrower, the Administrative Agent,
LCPI as documentation agent (in such capacity, the "Facility B Documentation
Agent"), LCPI as syndication agent (in such capacity, the "Facility B
Syndication Agent"; and together with the Facility B Documentation Agent and the
Administrative Agent, the "Facility B Agents"), LCPI and Banc of America
Securities LLC (f/k/a BankAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) as arrangers (in such
capacity, the "Facility B Arrangers"), the Administrative Agent and certain
other entities named therein as Co-Agents, which amended and restated in its
entirety that certain 364 Day Credit Agreement dated as of August 13, 1998 (as
amended, restated, supplemented or otherwise modified prior to the date hereof,
the "Original Facility B Credit Agreement"; and together with the Original
Facility A Credit Agreement, the "Original Credit Agreements") among the
Borrower, the Administrative Agent (the "Original Facility B Administrative
Agent"; and together with the Original Facility A Administrative Agent, the
"Original Administrative Agents"), the other Agents party thereto (together with
the Original Facility B Administrative Agent, the "Original Facility B Agents";
and together with the Original Facility A Agents, the Original Agents"), the
lenders party thereto (the "Original Facility B Lenders"; and together with the
Original Facility A Lenders, the "Original Lenders") and LCPI and BancAmerica
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (n/k/a Banc of America Securities LLC ) as arrangers, and (c)
the banks and other financial institutions or entities (the "Facility C
Lenders"; and together with the Facility A Lenders and the Facility B Lenders,
the
"Lenders"), from time to time parties to the New 364 Day Credit Agreement, dated
as of April 24, 2000 (as amended, restated, supplemented or otherwise modified
from time to time, the "Facility C Credit Agreement"; and together with the
Facility A Credit Agreement and the Facility B Credit Agreement, each a "Credit
Agreement", and collectively, the "Credit Agreements"), among the Borrower, the
Administrative Agent, LCPI as documentation agent (in such capacity, the
"Facility C Documentation Agent"), LCPI as syndication agent (in such capacity,
the "Facility C Syndication Agent"; and together with the Facility C
Documentation Agent and the Administrative Agent, the "Facility C Agents"; and
together with the Facility A Agents and the Facility B Agents, the "Agents"),
▇▇▇▇▇▇ Brothers, Inc. ("LBI") and Banc of America Securities LLC as arrangers
(in such capacity, the "Facility C Arrangers"; and together with the Facility A
Arrangers and the Facility B Arrangers, the "Arrangers"), the Administrative
Agent and certain other entities named therein as Managing Agents.
W I T N E S S E T H:
WHEREAS, the Borrower executed and delivered to the Original
Administrative Agents a certain Charge Over Shares (as amended, restated,
supplemented or otherwise modified from time to time prior to the date hereof,
the "Existing Charge Over Shares") in favour of the Original Administrative
Agents for the ratable benefit of the Original Lenders and the Original Agents
to secure the Obligations (as defined in the Existing Charge Over Shares);
WHEREAS, the Borrower and the Administrative Agent wish to amend and
restate the Existing Charge Over Shares (as so amended and restated herein, this
"Charge Over Shares") to, inter alia, reflect the amending and restating of the
Original Credit Agreements and the entering into of the Facility C Credit
Agreement;
WHEREAS, concurrently herewith, the Borrower has entered into a
Second Amended and Restated Borrower Pledge Agreement governed by the laws of
the State of New York, pursuant to which the Borrower has, inter alia, pledged
to the Administrative Agent certain shares of capital stock of L-3
Communications U.K. Ltd. (as amended, restated, supplemented or otherwise
modified from time to time, the "New York Law Pledge Agreement"); and
WHEREAS, the Lenders have required, as a condition to the extension
of credit under the Credit Agreements that the Borrower execute and deliver this
Charge Over Shares.
NOW, THEREFORE, in consideration of the premises and to induce the
Agents and the Lenders to enter into the Credit Agreements, and to induce the
Lenders to make their respective extensions of credit to or for the benefit of
the Borrower thereunder, the Borrower hereby agrees with the Administrative
Agent, for the ratable benefit of the Lenders and the Agents, to amend and
restate the Existing Charge Over Shares in its entirety to read as provided
herein:
2
SECTION 1. DEFINED TERMS
1.1 Definitions. -----------
(a) Unless otherwise defined herein, terms defined in the Credit
Agreements and used herein shall have the collective meanings given to them in
each of the Credit Agreements.
(b) The following terms shall have the following meanings:
"Charged Shares": the shares listed on Schedule 1, together with any
other shares, stock certificates, securities convertible into and warrants,
options, and other rights to purchase or otherwise acquire, or rights of any
nature whatsoever in respect of the share capital of any Person that may be
issued or granted to, or held by, the Borrower while this Charge Over Shares is
in effect; provided that, in no event shall the Charged Shares include more than
65.0 percent of the issued and outstanding capital shares of L-3 Communications
U.K. Ltd. ("L-3 U.K.") (the "U.K. Issuer Share Charge Limitation").
"Charge Over Shares": this Amended and Restated Charge Over Shares,
as the same may be amended, supplemented or otherwise modified from time to
time.
"Collateral": as defined in Section 2.
"Issuers": the collective reference to each issuer of any Charged
Shares.
"Obligations": the collective reference to the unpaid principal of
and interest on the Loans and Reimbursement Obligations under each of the Credit
Agreements and all other obligations and liabilities of the Borrower (including,
without limitation, (i) interest accruing at the then applicable rate provided
in each of the Credit Agreements after the maturity of the Loans and
Reimbursement Obligations and interest accruing at the then applicable rate
provided in each of the Credit Agreements after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding and (ii) any exposure of
any Lender under any lockbox arrangement, controlled disbursement arrangement,
checking accounts or other similar arrangements (collectively, "Cash Management
Agreements") with or on behalf of the Borrower and/or its Subsidiaries) to any
Agent or any Lender (or, in the case of any Interest Rate Agreement referred to
below, any Affiliate of any Lender), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, either of the Credit Agreements,
this Charge Over Shares, the other Credit Documents, any Letter of Credit or any
Interest Rate Agreement entered into by the Borrower with any Lender (or any
Affiliate of any Lender) or any Cash Management Agreement entered into by the
Borrower or any Subsidiary of the Borrower with any Lender or any other document
made, delivered or given in connection therewith, in each case whether on
account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel
3
to the Agents and the Lenders that are required to be paid by the Borrower
pursuant to the terms of any of the foregoing agreements).
1.2 Other Definitional Provisions.
(a) The words "hereof," "herein", "hereto" and "hereunder" and words
of similar import when used in this Charge Over Shares shall refer to this
Charge Over Shares as a whole and not to any particular provision of this Charge
Over Shares, and Section and Schedule references are to this Charge Over Shares
unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or
any part thereof shall refer to the Borrower's Collateral or the relevant part
thereof.
(d) References to the Borrower, any Agent or the Lender include
references to any person for the time being deriving title under each of them
respectively.
1.3 Effect of Restatement. This Charge Over Shares amends, restates and
supersedes the Existing Charge Over Shares; provided, that (i) the Liens in
favor of Administrative Agent for the benefit of Lenders securing payment of the
Obligations are in all respects continuing and in full force and effect with
respect to all Obligations and (ii) all references in the other Credit Documents
to the Existing Change Over Shares shall be deemed to refer without further
amendment to this Charge Over Shares.
SECTION 2. CHARGE
The Borrower, as beneficial owner and as security for the payment
and discharge of all the Obligations, hereby charges in favor of the
Administrative Agent by way of a first fixed charge all of the following
property now owned or at any time hereafter acquired by the Borrower or in which
the Borrower now has or at any time in the future may acquire any right, title
or interest (collectively, the "Collateral"), as security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations:
(a) all Charged Shares;
(b) any other securities which the Borrower may, with the prior
consent of the Administrative Agent, from time to time substitute for all or any
of the Charged Shares; and
(c) all other securities and all rights, moneys (including, without
limitation, dividends) and property whatsoever which may from time to time at
any time be derived from, accrue on or be offered in respect of the Charged
Shares whether by way of redemption, exchange, conversion, rights, bonus,
capital reorganization or otherwise howsoever.
4
As security for its obligations under this Charge Over Shares, the
Borrower has delivered, or procured there to be delivered to the Administrative
Agent:
(i) all share certificates representing the Charged Shares;
and
(ii) blank, undated stock transfer forms in respect of the
Charged Shares executed by the Borrower.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit
Agreements and to induce the Agents and the Lenders to make their respective
extensions of credit to or for the benefit of the Borrower thereunder, the
Borrower hereby represents and warrants as to itself and the Collateral charged
by it hereunder to each of the Agents and the Lenders that:
3.1 Title; No Other Liens. Except for the security interest and charge
granted to the Administrative Agent for the ratable benefit of the Agents and
the Lenders pursuant to this Charge Over Shares and the other Liens permitted to
exist on the Collateral by the Credit Agreements, the Borrower owns each item of
the Collateral free and clear of any and all Liens or claims of others.
3.2 Perfected First Fixed Charge Over Shares. The charge granted pursuant
to this Charge Over Shares:
(a) constitutes a valid perfected charge over all of the Collateral
in favor of the Administrative Agent, for the ratable benefit of the Agents and
the Lenders, as security for the Obligations, enforceable in accordance with the
terms hereof against all creditors of the Borrower and any Persons purporting to
purchase any Collateral from the Borrower, 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; and
(b) are prior to all other charges and Liens on the Collateral in
existence on the date hereof except for Liens permitted by the Credit Agreements
which have priority over the Liens on the Collateral by operation of law.
3.3 Chief Executive Office. On the date hereof, the Borrower's
jurisdiction of organization and the location of the Borrower's chief executive
office is specified on Schedule 2.
3.4 Charged Shares.
(a) The Charged Shares charged by the Borrower hereunder constitute
(i) 65 percent of the issued and outstanding shares of all classes of the
Capital Stock of L-3 U.K. and (ii) all outstanding warrants, options or other
rights to purchase, or other agreements outstanding with respect to, or property
that is now or hereafter convertible into, or that requires the issuance
5
or sale of, any Charged Shares and such Charged Shares have been validly charged
to the Administrative Agent pursuant hereto.
(b) All the Charged Shares have been duly and validly issued and are
fully paid and nonassessable.
(c) The Borrower is the record and beneficial owner of, and has good
and marketable title to, the Charged Shares charged by it hereunder, free of any
and all Liens or options in favor of, or claims of, any other Person, except the
security interest created by this Charge Over Shares and other Liens permitted
by the Credit Agreements which have priority by operation of law.
SECTION 4. COVENANTS
The Borrower covenants and agrees with the Agents and the Lenders
that, from and after the date of this Charge Over Shares until the Obligations
shall have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
4.1 Undertaking to Pay. The Borrower shall discharge each Obligation when
due in accordance with its terms or, in the case of an Obligation the terms of
which do not provide a time for payment, immediately on demand by the
Administrative Agent.
4.2 Charged Shares.
(a) If the Borrower shall become entitled to receive or shall
receive any instruments, stock certificates (including, without limitation, any
certificate representing a stock dividend or a distribution in connection with
any reclassification, increase or reduction of capital or any certificate issued
in connection with any reorganization), options or rights in respect of the
Capital Stock of any Issuer, whether in addition to, in substitution of, as a
conversion of, or in exchange for, any of the Charged Shares, or as a dividend
or distribution thereunder, or otherwise in respect thereof, and subject to the
U.K. Issuer Share Charge Limitation, the Borrower shall accept the same as the
agent of the Agents and the Lenders, hold the same in trust for the Agents and
the Lenders and promptly (and in any event within 60 days) deliver the same
forthwith to the Administrative Agent in the exact form received, duly endorsed
by the Borrower to the Administrative Agent, if required, together with an
undated stock transfer form or endorsement covering such certificate or
instrument, as applicable, duly executed in blank by the Borrower and with, if
the Administrative Agent so requests, signature guaranteed, to be held by the
Administrative Agent, subject to the terms hereof, as additional security for
the Obligations. Any sums paid upon or in respect of the Charged Shares upon the
liquidation or dissolution of any Issuer shall be promptly (and in any event
within 60 days) paid over to the Administrative Agent to be held by it hereunder
as additional security for the Obligations, and in case any distribution of
capital shall be made on or in respect of the Charged Shares or any property
shall be distributed upon or with respect to the Charged Shares pursuant to the
recapitalization or reclassification of the capital of any Issuer or pursuant to
the reorganization thereof, the property so distributed shall, unless otherwise
subject to a perfected security interest in favor of the Administrative Agent,
be promptly (and in any event within 60 days) delivered to the
6
Administrative Agent to be held by it hereunder as additional security (or
except as provided in the Credit Agreements) for the Obligations. Except as
provided in the Credit Agreements, if any sums of money or property so paid or
distributed in respect of the Charged Shares under circumstances described in
this Section 4.2(a) shall be received by the Borrower, the Borrower shall, until
such money or property is paid or delivered to the Administrative Agent, hold
such money or property in trust for the Lenders, segregated from other funds of
the Borrower, as additional security for the Obligations.
(b) Except as provided in the Credit Agreements, without the prior
written consent of the Administrative Agent, the Borrower will not (i) vote to
enable, or take any other action to permit, any Issuer to issue any shares or
other equity securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any shares or
other equity securities of any nature of any Issuer, (ii) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with respect
to, any of the Collateral (except pursuant to a transaction expressly permitted
by the Credit Agreements), (iii) create, incur or permit to exist any Lien or
option in favor of, or any claim of any Person with respect to, any of the
Collateral, or any interest therein, except for the security interests created
by this Charge Over Shares or (iv) enter into any agreement or undertaking
restricting the right or ability of the Borrower or the Administrative Agent to
sell, assign or transfer any of the Collateral.
SECTION 4A. CERTAIN AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with the Agents and the Lenders
that, from and after the date of this Charge Over Shares until the Obligations
shall have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
4A.1 Maintenance of Perfected Security Interest; Further Assurances.
(a) The Borrower shall:
(i) execute and deliver to the Administrative Agent (or as it
may direct) any assignment, mortgage, power of attorney, proxy or other
document, governed by the laws of England and Wales or such other country
as the Administrative Agent may, in any particular case, reasonably
specify;
(ii) effect any registration or notarization, give any notice
or take any other step, which the Administrative Agent may, by notice to
the Borrower and with the consent of the Required Lenders, reasonably
specify for any of the purposes described in Section 4A.1(b) or for any
similar or related purpose.
(b) Those purposes (which in each case the Administrative Agent
shall have determined are necessary or desirable to give effect to the terms of
this Charge Over Shares) are
(i) validly and effectively to create any Lien or right of any
kind which the Administrative Agent intended should be created by or
pursuant to this Charge Over Shares or the Credit Agreements;
7
(ii) to create a specific mortgage or assignment of any
particular part of the Collateral or otherwise to vest in the
Administrative Agent the title to any particular part of the Collateral;
(iii) to protect the priority, or increase the effectiveness,
in any jurisdiction of any Lien which is created, or which the
Administrative Agent intended should be created, by or pursuant to this
Charge Over Shares or the Credit Agreements;
(iv) to enable or assist the Administrative Agent to sell or
otherwise deal with any part of the Collateral to transfer title to, or
grant any interest or right relating to, any part of the Collateral or to
exercise any power which is referred to in Section 5 or which is conferred
by the Credit Agreements;
(v) to enable or assist the Administrative Agent to enter into
any transaction to commence, defend or conduct any proceedings and/or to
take any other action relating to the Collateral in any country or under
the law of any country.
(c) The Administrative Agent may specify the terms of any document
to be executed by the Borrower under Section 4A.1(a), and those terms may
include any covenants, powers and provisions which the Administrative Agent
reasonably considers appropriate to protect its own or any other Lender's or
Agent's interests.
(d) The Borrower shall comply with a notice under Section 4A.1(a) by
the date specified in the notice.
(e) At the same time as the Borrower delivers to the Administrative
Agent any document executed under 4.3(a)(i), the Borrower shall also deliver to
the Administrative Agent a certificate signed by two (2) of the Borrower's
directors which shall:
(i) set out the text of a resolution of the Borrower's
directors specifically authorizing the execution of the document specified
by the Administrative Agent; and
(ii) state either that the resolution was duly passed at a
meeting of the directors validly convened and held throughout which a
quorum of directors entitled to vote on the resolution was present or that
the resolution has been signed by all the directors and is valid under the
Borrower's by-laws or other constitutional documents.
4A.2 Payment of Obligations. The Borrower will pay and discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all material taxes, assessments and governmental charges or levies
imposed upon the Collateral or in respect of income or profits therefrom, as
well as all material claims of any kind (including, without limitation, claims
for labor, materials and supplies) against or with respect to the Collateral,
except that no such charge need be paid if the amount or validity thereof is
currently being contested in good faith by appropriate proceedings, reserves in
conformity with GAAP with respect thereto have been provided on the books of the
Borrower and such proceedings
8
could not reasonably be expected to result in the sale, forfeiture or loss of
any material portion of the Collateral or any interest therein.
4A.3 Notices. The Borrower will advise the Agents and the Lenders
promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or
Liens permitted under the Credit Agreements) on any of the Collateral
which would adversely affect the ability of the Administrative Agent to
exercise any of its remedies hereunder; and
(b) the occurrence of any other event of which it is aware
which could reasonably be expected to have a material adverse effect on
the enforceability, or perfection or priority of, the security interests
purported to be created hereby.
SECTION 5. REMEDIAL PROVISIONS
5.1 Charged Shares.
(a) Unless an Event of Default shall have occurred and be continuing
and the Administrative Agent shall have given notice to the Borrower of the
Administrative Agent's intent to exercise its corresponding rights pursuant to
subsections 5.4 and/or 5.5, the Borrower shall be permitted to receive all cash
dividends, principal and interest paid in respect of the Charged Shares paid in
the normal course of business of the relevant Issuer and consistent with past
practice, to the extent permitted in the Credit Agreements, and to exercise all
voting and corporate rights with respect to the Charged Shares; provided,
however, that no vote shall be cast or corporate right exercised or other action
taken which, in the Administrative Agent's reasonable judgment, would materially
impair the Collateral or which would result in any violation of any provision of
the Credit Agreements, this Charge Over Shares or any other Credit Document.
(b) THE BORROWER HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS THE
ADMINISTRATIVE AGENT AS THE PROXY AND ATTORNEY-IN-FACT OF THE BORROWER WITH
RESPECT TO THE COLLATERAL, INCLUDING THE RIGHT TO VOTE THE CHARGED SHARES, WITH
FULL POWER OF SUBSTITUTION TO DO SO UPON THE OCCURRENCE OF AN EVENT OF DEFAULT.
THE APPOINTMENT OF THE ADMINISTRATIVE AGENT AS PROXY AND ATTORNEY-IN-FACT IS
COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE UNTIL THE OCCURRENCE OF THE
LAST TERMINATION DATE. IN ADDITION TO THE RIGHT TO VOTE THE CHARGED SHARES, THE
APPOINTMENT OF THE ADMINISTRATIVE AGENT AS PROXY AND ATTORNEY-IN-FACT SHALL
INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS, PRIVILEGES AND REMEDIES
TO WHICH A HOLDER OF THE CHARGED SHARES WOULD BE ENTITLED (INCLUDING GIVING OR
WITHHOLDING WRITTEN CONSENTS OF SHAREHOLDERS, CALLING SPECIAL MEETINGS OF
SHAREHOLDERS AND VOTING AT SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE,
AUTOMATICALLY AND
9
WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY CHARGED
SHARES ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON (INCLUDING THE
ISSUER OF THE CHARGED SHARES OR ANY OFFICER OR AGENT THEREOF), UPON THE
OCCURRENCE OF AN EVENT OF DEFAULT. NOTWITHSTANDING THE FOREGOING, THE
ADMINISTRATIVE AGENT SHALL NOT HAVE ANY DUTY TO EXERCISE ANY SUCH RIGHT OR TO
PRESERVE THE SAME AND SHALL NOT BE RESPONSIBLE FOR ANY FAILURE TO DO SO OR FOR
ANY DELAY IN DOING SO.
Immediately following the occurrence of an Event of Default, the
Borrower shall give notice to the Secretary of L-3 U.K. of the appointment of
the Administrative Agent as the Borrower's proxy and the Borrower's attorney in
accordance with this Section 5.1 and Section 6 in relation to the Charged
Shares.
5.2 Payments to be Turned Over To Administrative Agent. If an Event of
Default shall occur and be continuing, all payments or other funds received in
respect of any of the Collateral (including all dividends, distributions or
other income in respect of the Collateral) by the Borrower consisting of cash,
checks and other near-cash items shall be held by the Borrower in trust for the
Agents and the Lenders, segregated from other funds of the Borrower, and shall,
forthwith upon receipt by the Borrower, be turned over to the Administrative
Agent in the exact form received by the Borrower (duly endorsed by the Borrower
to the Administrative Agent, if required). All such payments or other funds
received by the Administrative Agent hereunder shall be held by the
Administrative Agent in a deposit account (a "Collateral Account") maintained
under its sole dominion and control. All such payments or other funds while held
by the Administrative Agent in a Collateral Account (or by the Borrower in trust
for the Administrative Agent and the Lenders) shall continue to be held as
security for all the Obligations and shall not constitute payment thereof until
applied as provided in subsection 5.3.
5.3 Application of Dividends and Other Payments. At such intervals as may
be agreed upon by the Borrower and the Administrative Agent, or, if an Event of
Default shall have occurred and be continuing, at any time at the Administrative
Agent's election, the Administrative Agent may apply all or any part of amounts
held in any Collateral Account in payment of the Obligations in such order as
required by the Credit Agreements, and any part of such funds which are not
required as security for the Obligations shall be paid over from time to time by
the Administrative Agent to the Borrower or to whomsoever may be lawfully
entitled to receive the same. Any balance of such amounts held in any Collateral
Account remaining after the Obligations shall have been paid in full, no Letters
of Credit shall be outstanding and the Commitments shall have terminated shall
be paid over to the Borrower or to whomsoever may be lawfully entitled to
receive the same.
5.4 Right to Enforce Security. On the occurrence of an Event of Default
but without the necessity for any court order in any jurisdiction to the effect
that an Event of Default has occurred or that the security constituted by this
Charge Over Shares has become enforceable:
10
(a) the security constituted by this Charge Over Shares shall
immediately become enforceable;
(b) the Administrative Agent shall be entitled at any time or times
to exercise the powers set out in Section 5.5 and in the Credit Agreements; and
(c) the Administrative Agent shall be entitled at any time or times
to exercise all the powers possessed by it as chargee of the Collateral
conferred by the law of any country or territory the courts of which have or
claim any jurisdiction in respect of the Collateral concerned.
5.5 Right to Take Possession, Exercise Rights, etc. On the occurrence of
an Event of Default, the Administrative Agent shall be entitled then or at any
later time or times:
(a) to exercise the power of sale and other powers conferred by
Section 101 of the Law of Property Act, 1925 as varied or amended by this Charge
Over Shares;
(b) solely and exclusively to exercise all voting and/or consensual
powers pertaining to the Charged Shares or any thereof and may exercise such
powers in such manner as the Administrative Agent may think fit;
(c) in connection with, or in order to facilitate, a sale of the
Charged Shares, to remove the then existing Directors and Officers (with or
without cause); and/or
(d) to sell the Charged Shares or any part thereof at such place and
in such manner and at such price or prices as the Administrative Agent may
reasonably deem fit, and upon any such sale the Administrative Agent shall have
the right to deliver, assign and transfer to each purchaser thereof the Charged
Shares so sold.
5.6 Law of Property ▇▇▇ ▇▇▇▇ Not Applicable. The Borrower hereby waives
the entitlement conferred by section 93 of the Law of Property ▇▇▇ ▇▇▇▇ and
agrees that section 103 of that Act shall not apply to the security created by
this Charge Over Shares.
5.7 No Liability of Administrative Agent. The Administrative Agent shall
not be obliged to check the nature or sufficiency of any payment received by it
under this Charge Over Shares or to preserve, exercise or enforce any right
forming part of, or relating to, any Collateral.
SECTION 6. THE ADMINISTRATIVE AGENT
6.1 Administrative Agent's Appointment as Attorney-in-Fact, etc.
(a) The Borrower hereby irrevocably constitutes and appoints the
Administrative Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Borrower and in the name of
the Borrower or in its own name, for the purpose of carrying out the terms of
this Charge Over Shares, to take any and all appropriate action and to execute
any and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Charge Over Shares, and, without limiting the
generality of the foregoing, the Borrower
11
hereby gives the Administrative Agent the power and right, on behalf of the
Borrower, without notice to or assent by the Borrower, to do any or all of the
following:
(i) in the name of the Borrower or its own name, or otherwise,
take possession of and endorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under or
with respect to any Collateral and file any claim or take any other action
or proceeding in any court of law or equity or otherwise deemed
appropriate by the Administrative Agent for the purpose of collecting any
and all such moneys due under or with respect to any Collateral whenever
payable;
(ii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral; and
(iii) execute, in connection with any sale provided for in
subsections 5.4 or 5.5, any endorsements, assignments or other instruments
of conveyance or transfer with respect to the Collateral.
Anything in this subsection 6.1(a) to the contrary notwithstanding,
the Administrative Agent agrees that it will not exercise any rights under the
power of attorney provided for in this subsection 6.1(a) unless an Event of
Default shall have occurred and be continuing.
(b) If the Borrower fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the Administrative Agent incurred in connection
with actions undertaken as provided in this subsection 6.1, together with
interest thereon at a rate per annum equal to the rate per annum at which
interest would then be payable on past due Base Rate Loans under the Credit
Agreements, from the date of payment by the Administrative Agent to the date
reimbursed by the Borrower, shall be payable by the Borrower to the
Administrative Agent on demand.
(d) The Borrower hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Charge Over Shares are coupled with an interest and
are irrevocable until this Charge Over Shares is terminated and the security
interests created hereby are released.
6.2 Duty of Administrative Agent. The Administrative Agent's sole duty
with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession shall be to deal with it in the same manner as the
Administrative Agent deals with similar property for its own account. Neither
the Administrative Agent, any other Agent, any Lender nor any of their
respective officers, directors, employees or agents shall be liable for failure
to demand, collect or realize upon any of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of the Borrower or any other Person or to take any
other action whatsoever with regard to the Collateral or any part thereof. The
12
powers conferred on the Agents and the Lenders hereunder are solely to protect
the Agents' and the Lenders' interests in the Collateral and shall not impose
any duty upon any Agents or Lenders to exercise any such powers. The Agents and
the Lenders shall be accountable only for amounts that they actually receive as
a result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to the Borrower
for any act or failure to act hereunder, except for their own gross negligence
or willful misconduct.
6.3 Authority of Administrative Agent. The Borrower acknowledges that the
rights and responsibilities of the Administrative Agent under this Charge Over
Shares with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Charge Over Shares shall, as among the Agents
and the Lenders, be governed by the Credit Agreements and by such other
agreements with respect thereto as may exist from time to time among them, but,
as among the Agents and the Borrower, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Lenders with full and valid
authority so to act or refrain from acting, and the Borrower shall not be under
any obligation, or entitlement, to make any inquiry respecting such authority.
SECTION 7. MISCELLANEOUS
7.1 Amendments in Writing. None of the terms or provisions of this Charge
Over Shares may be waived, amended, restated, supplemented or otherwise modified
except in accordance with subsection 10.1 of each of the Credit Agreements.
7.2 Notices. All notices, requests and demands to or upon the Agents or
the Borrower hereunder shall be effected in the manner provided for in
subsection 10.2 of each of the Credit Agreements.
7.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent, any other Agent nor any Lender shall by any act (except by
a written instrument pursuant to Section 7.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of any of the Agents or Lenders, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by any of the Agents or Lenders of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Administrative Agent, on behalf of the other Agents and the
Lenders, would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
7.4 Enforcement Expenses; Indemnification.
(a) The Borrower agrees to pay or reimburse each of the Lenders and
the Agents for all its reasonable costs and expenses incurred in collecting
against the Borrower or
13
otherwise enforcing or preserving any rights under this Charge Over Shares and
the other Credit Documents to which the Borrower is a party, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent and of counsel to each of the other Agents and Lenders.
(b) The Borrower agrees to pay, and to save the Agents and the
Lenders harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other taxes which
may be payable or determined to be payable with respect to any of the Collateral
or in connection with any of the transactions contemplated by this Charge Over
Shares.
(c) The Borrower agrees to pay, and to save the Agents and the
Lenders harmless from, any and all 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 Charge Over Shares to the extent the
Borrower would be required to do so pursuant to subsection 10.5 of the
applicable Credit Agreement.
(d) The agreements in this subsection 7.4 shall survive repayment of
the Obligations and all other amounts payable under each of the Credit
Agreements and the other Credit Documents.
7.5 Successors and Assigns. This Charge Over Shares shall be binding upon
the successors and assigns of the Borrower and shall inure to the benefit of the
Agents and the Lenders and their successors and assigns; provided that the
Borrower may not assign, transfer or delegate any of its rights or obligations
under this Charge Over Shares without the prior written consent of the
Administrative Agent.
7.6 Set-Off. The Borrower hereby irrevocably authorizes each of the Agents
and Lenders at any time and from time to time pursuant to subsection 10.7(b) of
the applicable Credit Agreement whenever an Event of Default shall have occurred
and be continuing, without notice to the Borrower, any such notice being
expressly waived by the Borrower, to set-off and appropriate and apply 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 Agent or Lender to or for the
credit or the account of the Borrower, or any part thereof in such amounts as
such Agent or Lender may elect, against and on account of the obligations and
liabilities of the Borrower to such Agent or Lender hereunder and claims of
every nature and description of such Agent or Lender against the Borrower, in
any currency, whether arising hereunder, under the Credit Agreements, any other
Credit Document or otherwise, as such Agent or Lender may elect, whether or not
any Agent or Lender has made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured. Each of the
Agents and Lenders shall notify the Borrower promptly of any such set-off and
the application made by such Agent or Lender of the proceeds thereof, provided
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights
14
of the Agents and Lenders under this subsection 7.6 are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
which such Agents or Lenders may have.
7.7 Counterparts. This Charge Over Shares may be executed by one or more
of the parties to this Charge Over Shares 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. This Charge
Over Shares shall be effective when a counterpart which bears the signature of
the Borrower and a counterpart of the attached Acknowledgment and Consent which
bears the signature of L-3 U.K. shall have been delivered to the Administrative
Agent and the Administrative Agent shall have executed this Charge Over Shares.
7.8 Severability. Any provision of this Charge Over Shares 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.
7.9 Section Headings. The Section headings used in this Charge Over Shares
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
7.10 Integration. This Charge Over Shares and the other Credit Documents
represent the agreement of the Borrower, the Agents and the Lenders with respect
to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by any of the Agents or Lenders
relative to the subject matter hereof and thereof not expressly set forth or
referred to herein, the Credit Agreements or in the other Credit Documents.
7.11 GOVERNING LAW. THIS CHARGE OVER SHARES AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF ENGLAND AND WALES.
7.12 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 CHARGE OVER SHARES OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF ANY OF ENGLAND, 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
15
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 AND THAT A JUDGMENT IN ANY PROCEEDINGS
BROUGHT IN ANY COMPETENT COURT SHALL BE CONCLUSIVE AND BINDING UPON THE BORROWER
AND MAY BE ENFORCED IN THE COURTS OF ANY OTHER JURISDICTION;
(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 REFERRED TO IN SUBSECTION 7.2 OR AT SUCH OTHER ADDRESS OF WHICH THE
ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO AND WITH RESPECT
TO ANY ACTION BROUGHT IN ENGLAND BY DELIVERING A COPY THEREOF OF TO L-3 U.K.
WHICH THE BORROWER HEREBY APPOINTS AS ITS AGENT FOR SERVICE OF PROCESS IN
ENGLAND WITH RESPECT TO ANY ACTION BROUGHT AGAINST THE BORROWER UNDER OR
RELATING TO THIS CHARGE OVER SHARES OR ANY OF THE COLLATERAL;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO ▇▇▇ IN ANY OTHER JURISDICTION; AND
(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT
IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN
THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
7.13 Acknowledgments. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Charge Over Shares and the other Credit Documents to which it
is a party;
(b) none of the Agents nor Lenders has any fiduciary relationship
with or duty to the Borrower arising out of or in connection with this Charge
Over Shares or any of the other Credit Documents, and the relationship between
the Borrower, on the one hand, and the Agents and Lenders, 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 Agents, among the Agents and/or the Lenders or among the Borrower and the
Agents and/or the Lenders.
7.14 WAIVER OF JURY TRIAL. THE BORROWER AND, BY ACCEPTANCE OF THE BENEFITS
HEREOF, EACH OF THE LENDERS AND THE AGENTS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN
16
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS CHARGE OVER SHARES OR ANY OTHER
CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
7.15 Releases.
(a) At such time as the Loans, the Reimbursement Obligations and the
other Obligations shall have been paid in full, the Commitments have been
terminated and no Letters of Credit shall be outstanding, the Collateral shall
be released from the Liens created hereby, and this Charge Over Shares and all
obligations (other than those expressly stated to survive such termination) of
the Administrative Agent and the Borrower hereunder shall terminate, all without
delivery of any instrument or performance of any act by any party, and all
rights to the Collateral shall revert to the Borrower and the Administrative
Agent shall deliver to the Borrower any Collateral held by the Administrative
Agent hereunder, and execute and deliver to the Borrower such documents as the
Borrower shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by the Borrower in a transaction permitted by the Credit Agreements,
then the Administrative Agent, at the request and sole expense of the Borrower,
shall execute and deliver to the Borrower all releases or other documents
reasonably necessary or desirable for the release of the Liens created hereby on
such Collateral.
7.16 Conflict; New York Law Pledge Agreement. In the event there is a
conflict between the terms of this Charge Over Shares and the Credit Agreements,
the Credit Agreements shall control. In the event that there is a dispute as to
the charge or pledge of the Charged Shares, and a court of competent
jurisdiction determines that the laws of the State of New York shall govern such
dispute, then the New York Law Pledge Agreement shall control such dispute as to
the Charged Shares; provided that, if such a court determines that the laws of
England and Wales shall govern such dispute, then this Charge Over Shares shall
control such dispute as to the Charged Shares.
[Signature page follows]
17
IN WITNESS whereof the parties hereto have caused this Charge Over
Shares to be duly executed as a Deed the day and year first before written.
Executed as a deed )
by L-3 COMMUNICATIONS CORPORATION ) SEAL
----
acting by )
---------------------------------
Signature of Secretary )
--------------------
Signature of witness )
----------------------
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
Phone: ▇▇ ▇▇▇ ▇▇▇-▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇-▇▇▇▇
Executed as a deed )
by BANK OF AMERICA, N.A., )
AS ADMINISTRATIVE AGENT )
acting by )
---------------------------------
Signature of Assistant Secretary )
----------
Signature of witness )
----------------------
S-1
ACKNOWLEDGMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Charge
Over Shares dated _______ __, 2000 (the "Charge Over Shares"), made by the
parties thereto for the benefit of Bank of America, N.A., as Administrative
Agent. The undersigned agrees for the benefit of the Administrative Agent and
the Lenders as follows:
1. The undersigned will be bound by the terms of the Charge Over
Shares and will comply with such terms insofar as such terms are applicable to
the undersigned.
2. The undersigned will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in Section 4.2(a) of
the Charge Over Shares.
3. The terms of Sections 5.1(a) and 5.5 of the Charge Over Shares
shall apply to it, mutatis mutandis, with respect to all actions that may be
required of it pursuant to Section 5.1(a) or 5.5 of the Charge Over Shares.
4. The undersigned accepts the appointment by the Borrower pursuant
to subsection 7.12(c) of the undersigned as agent for the Borrower for service
of process in England for any action brought against the Borrower under or
relating to the Charge Over Shares or any of the Collateral (as defined
therein).
▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇.▇. LTD.
----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address for Notices:
▇/▇ ▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Schedule 1
DESCRIPTION OF CHARGED SHARES
Charged Shares:
Issuer Class of Shares Share Certificate No. No. of Shares
------ --------------- --------------------- -------------
▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇.▇. Ltd. Ordinary 3 65
Schedule 2
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
Jurisdiction of Organization Location of Chief Executive Office
---------------------------- ----------------------------------
Delaware ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
EXHIBIT B-5
TO CREDIT AGREEMENT
================================================================================
SECOND AMENDED AND RESTATED SUBSIDIARY PLEDGE AGREEMENT
made by
HYGIENETICS ENVIRONMENTAL SERVICES, INC.,
L-3 COMMUNICATIONS ILEX SYSTEMS, INC.,
L-3 COMMUNICATIONS SPD TECHNOLOGIES INC
L-3 COMMUNICATIONS AYDIN CORPORATION
and
MICRODYNE CORPORATION
in favor of
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
Dated as of April 24, 2000
================================================================================
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINED TERMS......................................................3
1.1 Definitions..............................................................3
1.2 Other Definitional Provisions............................................4
1.3 Effect of Restatement....................................................4
SECTION 2. PLEDGE.............................................................4
SECTION 3. REPRESENTATIONS AND WARRANTIES.....................................5
3.1 Representations in Credit Agreements.....................................5
3.2 Title; No Other Liens....................................................5
3.3 Perfected First Priority Liens...........................................5
3.4 Chief Executive Office...................................................6
3.5 Pledged Stock............................................................6
SECTION 4. COVENANTS..........................................................6
4.1 Maintenance of Perfected Security Interest...............................6
4.2 Pledged Stock............................................................6
SECTION 4a. CERTAIN AFFIRMATIVE COVENANTS......................................7
4A.1 Further Documentation....................................................8
4A.2 Payment of Obligations...................................................8
4A.3 Notices..................................................................8
SECTION 5. REMEDIAL PROVISIONS................................................8
5.1 Pledged Stock............................................................8
5.2 Proceeds to be Turned Over To Administrative Agent.......................9
5.3 Application of Proceeds.................................................10
5.4 Code and Other Remedies.................................................10
5.5 Registration Rights.....................................................11
5.6 Waiver; Deficiency......................................................12
SECTION 6. THE ADMINISTRATIVE AGENT..........................................12
6.1 Administrative Agent's Appointment as Attorney-in-Fact, etc.............12
6.2 Duty of Administrative Agent............................................13
6.3 Authority of Administrative Agent.......................................13
SECTION 7. MISCELLANEOUS.....................................................14
7.1 Amendments in Writing...................................................14
7.2 Notices.................................................................14
7.3 No Waiver by Course of Conduct; Cumulative Remedies.....................14
7.4 Enforcement Expenses; Indemnification...................................14
7.5 Successors and Assigns..................................................15
7.6 Set-Off.................................................................15
7.7 Counterparts............................................................15
7.8 Severability............................................................15
7.9 Section Headings........................................................16
7.10 Integration.............................................................16
7.11 GOVERNING LAW...........................................................16
7.12 SUBMISSION TO JURISDICTION; WAIVERS.....................................16
i
7.13 Acknowledgments.........................................................17
7.14 WAIVER OF JURY TRIAL....................................................17
7.15 Additional Grantors.....................................................17
7.16 Releases................................................................17
ii
SECOND AMENDED AND RESTATED SUBSIDIARY PLEDGE AGREEMENT
This SECOND AMENDED AND RESTATED SUBSIDIARY PLEDGE AGREEMENT, dated
as of April 24, 2000, is made by each of the signatories hereto (together with
any other entity that may become a party hereto as provided herein, the
"Grantors"), in favor of Bank of America, N.A., as Administrative Agent (in such
capacity, the "Administrative Agent") for (a) the banks and other financial
institutions or entities (collectively, the "Facility A Lenders") from time to
time parties to the Second Amended and Restated Credit Agreement, dated as of
April 24, 2000 (as amended, restated, supplemented or otherwise modified from
time to time, the "Facility A Credit Agreement"), among L-3 Communications
Corporation, a Delaware corporation (the "Borrower"), the Facility A Lenders,
▇▇▇▇▇▇ Commercial Paper Inc. ("LCPI"), as documentation agent (in such capacity,
the "Facility A Documentation Agent"), LCPI as syndication agent (in such
capacity, the "Facility A Syndication Agent"; and together with the Facility A
Documentation Agent and the Administrative Agent, the "Facility A Agents"), LCPI
and Banc of America Securities LLC (f/k/a BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) as
arrangers (in such capacity, the "Facility A Arrangers"), the Administrative
Agent and certain other entities named therein as Co-Agents, which amended and
restated in its entirety that certain Amended and Restated Credit Agreement
dated as of August 13, 1998 (as amended, restated, supplemented or otherwise
modified prior to the date hereof, the "Original Facility A Credit Agreement")
among the Borrower, the Agents party thereto (the "Original Facility A Agents",
including the Administrative Agent party thereto, the "Original Facility A
Administrative Agent"), the lenders party thereto (the "Original Facility A
Lenders") and LCPI and BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (n/k/a Banc of America
Securities LLC ) as arrangers, and (b) the banks and other financial
institutions or entities (the "Facility B Lenders"; and together with the
Facility A Lenders, the "Lenders"), from time to time parties to the Amended and
Restated 364 Day Credit Agreement, dated as of April 24, 2000 (as amended,
restated, supplemented or otherwise modified from time to time, the "Facility B
Credit Agreement"), among the Borrower, the Administrative Agent, LCPI as
documentation agent (in such capacity, the "Facility B Documentation Agent"),
LCPI as syndication agent (in such capacity, the "Facility B Syndication Agent";
and together with the Facility B Documentation Agent and the Administrative
Agent, the "Facility B Agents"), LCPI and Banc of America Securities LLC (f/k/a
BankAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) as arrangers (in such capacity, the "Facility B
Arrangers"), the Administrative Agent and certain other entities named therein
as Co-Agents, which amended and restated in its entirety that certain 364 Day
Credit Agreement dated as of August 13, 1998 (as amended, restated, supplemented
or otherwise modified prior to the date hereof, the "Original Facility B Credit
Agreement"; and together with the Original Facility A Credit Agreement, the
"Original Credit Agreements") among the Borrower, the Administrative Agent (the
"Original Facility B Administrative Agent"; and together with the Original
Facility A Administrative Agent, the "Original Administrative Agents"), the
other Agents party thereto (together with the Original Facility B Administrative
Agent, the "Original Facility B Agents"; and together with the Original Facility
A Agents, the Original Agents"), the lenders party thereto (the "Original
Facility B Lenders"; and together with the Original Facility A Lenders, the
"Original Lenders") and LCPI and BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (n/k/a Banc of
America Securities LLC ) as arrangers, and (c) the banks and other financial
institutions or entities (the
"Facility C Lenders"; and together with the Facility A Lenders and the Facility
B Lenders, the "Lenders"), from time to time parties to the New 364 Day Credit
Agreement, dated as of April 24, 2000 (as amended, restated, supplemented or
otherwise modified from time to time, the "Facility C Credit Agreement"; and
together with the Facility A Credit Agreement and the Facility B Credit
Agreement, each a "Credit Agreement", and collectively, the "Credit
Agreements"), among the Borrower, the Administrative Agent, LCPI as
documentation agent (in such capacity, the "Facility C Documentation Agent"),
LCPI as syndication agent (in such capacity, the "Facility C Syndication Agent";
and together with the Facility C Documentation Agent and the Administrative
Agent, the "Facility C Agents"; and together with the Facility A Agents and the
Facility B Agents, the "Agents"), ▇▇▇▇▇▇ Brothers, Inc. ("LBI") and Banc of
America Securities LLC as arrangers (in such capacity, the "Facility C
Arrangers"; and together with the Facility A Arrangers and the Facility B
Arrangers, the "Arrangers"), the Administrative Agent and certain other entities
named therein as Managing Agents.
W I T N E S S E T H:
WHEREAS, each Grantor executed and delivered to the Original
Administrative Agents a certain Amended and Restated Subsidiary Pledge and
Security Agreement (as amended, restated, supplemented or otherwise modified
from time to time prior to the date hereof, the "Existing Pledge Agreement") in
favor of the Original Administrative Agents for the ratable benefit of the
Original Lenders and the Original Agents to secure the Obligations (as defined
in the Existing Pledge Agreement);
WHEREAS, each Grantor and the Administrative Agent wish to amend and
restate the Existing Pledge Agreement (as so amended and restated herein, this
"Agreement") to, inter alia, reflect the amending and restating of the Original
Credit Agreements and the entering into of the Facility C Credit Agreement;
WHEREAS, the Borrower is a member of an affiliated group of
companies that includes each Grantor;
WHEREAS, the proceeds of the extensions of credit under the Credit
Agreements will be used in part to enable the Borrower to make valuable
transfers to one or more of the other Grantors in connection with the operation
of their respective businesses;
WHEREAS, the Borrower and the other Grantors are engaged in related
businesses, and each Grantor will derive substantial direct and indirect benefit
from the making of the extensions of credit under the Credit Agreements; and
WHEREAS, the Lenders have required, as a condition to the extension
of credit under the Credit Agreements, that each Grantor execute and deliver
this Agreement
NOW, THEREFORE, in consideration of the premises and to induce the
Agents and the Lenders to enter into the Credit Agreements, and to induce the
Lenders to make their respective extensions of credit to or for the benefit of
the Borrower thereunder, each Grantor hereby agrees with the Administrative
Agent, for the ratable benefit of the Lenders and the
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Agents, to amend and restate the Existing Pledge Agreement in its entirety to
read as provided herein:
SECTION 1. DEFINED TERMS
1.1 Definitions.
(a) Unless otherwise defined herein, terms defined in the Credit
Agreements and used herein shall have the collective meanings given to them in
each of the Credit Agreements.
(b) The following terms shall have the following meanings:
"Agreement": this Second Amended and Restated Subsidiary
Pledge Agreement, as the same may be amended, supplemented or otherwise
modified from time to time.
"Collateral": as defined in Section 2.
"Issuers": the collective reference to each issuer of any
Pledged Stock.
"New York UCC": the Uniform Commercial Code as from time to
time in effect in the State of New York.
"Obligations": the collective reference to the unpaid
principal of and interest on the Loans and Reimbursement Obligations under
each of the Credit Agreements and all other obligations and liabilities of
the Borrower and any other Credit Party (including, without limitation),
(i) interest accruing at the then applicable rate provided in each of the
Credit Agreements after the maturity of the Loans and Reimbursement
Obligations and interest accruing at the then applicable rate provided in
each of the Credit Agreements after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding and
(ii) any exposure of any Lender under any lockbox arrangement, controlled
disbursement arrangement, checking accounts or other similar arrangements
(collectively, "Cash Management Agreements") with or on behalf of the
Borrower and/or its Subsidiaries) to any Agent or any Lender (or, in the
case of any Interest Rate Agreement referred to below, any Affiliate of
any Lender), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, either of the Credit Agreements, this
Agreement, the Subsidiary Guarantees, the other Credit Documents, any
Letter of Credit or any Interest Rate Agreement entered into by the
Borrower or any other Credit Party with any Lender (or any Affiliate of
any Lender) or any Cash Management Agreement entered into by the Borrower
or any Subsidiary of the Borrower with any Lender or any other document
made, delivered or given in connection therewith, in each case whether on
account of principal, interest, reimbursement obligations, fees,
3
indemnities, costs, expenses or otherwise (including, without limitation,
all fees and disbursements of counsel to the Agents and the Lenders that
are required to be paid by the Borrower pursuant to the terms of any of
the foregoing agreements).
"Pledged Stock": the shares of Capital Stock listed on
Schedule 1, together with any other shares, stock certificates, options or
rights of any nature whatsoever in respect of the Capital Stock of any
Person that may be issued or granted to, or held by, any Grantor while
this Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of New York
on the date hereof and, in any event, shall include, without limitation,
all dividends or other income from the Pledged Stock, collections thereon
or distributions or payments with respect thereto.
"Securities Act": the Securities Act of 1933, as amended.
1.2 Other Definitional Provisions.
(a) The words "hereof," "herein", "hereto" 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 and
Schedule references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or
any part thereof, when used in relation to a Grantor, shall refer to such
Grantor's Collateral or the relevant part thereof.
1.3 Effect of Restatement. This Agreement amends, restates and
supersedes the Existing Pledge Agreement; provided, that (i) the Liens in favor
of Administrative Agent for the benefit of Lenders securing payment of the
Obligations are in all respects continuing and in full force and effect with
respect to all Obligations and (ii) all references in the other Credit Documents
to the Existing Pledge Agreement shall be deemed to refer without further
amendment to this Agreement.
SECTION 2. PLEDGE
Each Grantor hereby pledges to the Administrative Agent, and hereby
grants to the Administrative Agent, for the ratable benefit of the Agents and
the Lenders, a first priority security interest in all of the following property
now owned or at any time hereafter acquired by such Grantor or in which such
Grantor now has or at any time in the future may acquire any right, title or
interest (collectively, the "Collateral"), as collateral security for the prompt
and
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complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations:
(a) all Pledged Stock; and
(b) to the extent not otherwise included, all Proceeds of any and
all of the foregoing and all collateral security and guarantees given by any
Person with respect to any of the foregoing.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit
Agreements and to induce the Agents and the Lenders to make their respective
extensions of credit to or for the benefit of the Borrower thereunder, each
Grantor hereby represents and warrants to each of the Agents and the Lenders
that:
3.1 Representations in Credit Agreements. In the case of each
Grantor, the representations and warranties set forth in Section 4 of the Credit
Agreements as they relate to such Grantor, each of which is hereby incorporated
herein by reference, are true and correct, and each of the Agents and Lenders
shall be entitled to rely on each of them as if they were fully set forth
herein, provided that each reference in each such representation and warranty to
the Borrower's knowledge shall, for the purposes of this Section 3.1, be deemed
to be a reference to such Grantor's knowledge.
3.2 Title; No Other Liens. Except for the security interest granted
to the Administrative Agent for the ratable benefit of the Agents and the
Lenders pursuant to this Agreement and the other Liens permitted to exist on the
Collateral by the Credit Agreements, such Grantor owns each item of the
Collateral free and clear of any and all Liens or claims of others.
3.3 Perfected First Priority Liens. The security interests granted
pursuant to this Agreement:
(a) upon delivery by each of the Grantors to the Administrative
Agent of the original certificates evidencing such Pledged Stock together with
undated stock powers therefor duly executed in blank, will constitute valid
perfected security interests in all of the Collateral in favor of the
Administrative Agent, for the ratable benefit of the Agents and the Lenders, as
collateral security for the Obligations, enforceable in accordance with the
terms hereof against all creditors of such Grantor and any Persons purporting to
purchase any Collateral from such Grantor, 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; and
5
(b) are prior to all other Liens on the Collateral in existence on
the date hereof except for Liens permitted by the Credit Agreements which have
priority over the Liens on the Collateral by operation of law.
3.4 Chief Executive Office. On the date hereof, such Grantor's
jurisdiction of organization and the location of such Grantor's chief executive
office is specified on Schedule 2.
3.5 Pledged Stock.
(a) The shares of Pledged Stock pledged by such Grantor hereunder
constitute all the issued and outstanding shares of all classes of the Capital
Stock of each Issuer owned by such Grantor.
(b) All the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable.
(c) Such Grantor is the record and beneficial owner of, and has good
and marketable title to, the Pledged Stock pledged by it hereunder, free of any
and all Liens or options in favor of, or claims of, any other Person, except the
security interest created by this Agreement and other Liens permitted by the
Credit Agreements which have priority by operation of law.
SECTION 4. COVENANTS
Each Grantor covenants and agrees with the Agents and the Lenders
that, from and after the date of this Agreement until the Obligations shall have
been paid in full, no Letter of Credit shall be outstanding and the Commitments
shall have terminated:
4.1 Maintenance of Perfected Security Interest. Such Grantor shall
maintain the security interest created by this Agreement as a perfected security
interest having at least the priority described in subsection 3.3 and shall
defend such security interest against the claims and demands of all Persons
whomsoever.
4.2 Pledged Stock.
(a) If such Grantor shall become entitled to receive or shall
receive any instruments, stock certificates (including, without limitation, any
certificate representing a stock dividend or a distribution in connection with
any reclassification, increase or reduction of capital or any certificate issued
in connection with any reorganization), options or rights in respect of the
Capital Stock of any Issuer, whether in addition to, in substitution of, as a
conversion of, or in exchange for, any shares of the Pledged Stock, or as a
dividend or distribution thereunder, or otherwise in respect thereof, such
Grantor shall accept the same as the agent of the Agents and the Lenders, hold
the same in trust for the Agents and the Lenders and promptly (and in any event
within 60 days) deliver the same forthwith to the Administrative Agent in the
exact form received, duly endorsed by such Grantor to the Administrative Agent,
if required, together with an undated stock power or endorsement covering such
certificate or instrument, as applicable,
6
duly executed in blank by such Grantor and with, if the Administrative Agent so
requests, signature guaranteed, to be held by the Administrative Agent, subject
to the terms hereof, as additional collateral security for the Obligations. Any
sums paid upon or in respect of the Pledged Stock upon the liquidation or
dissolution of any Issuer shall be promptly (and in any event within 60 days)
paid over to the Administrative Agent to be held by it hereunder as additional
collateral security for the Obligations, and in case any distribution of capital
shall be made on or in respect of the Pledged Stock or any property shall be
distributed upon or with respect to the Pledged Stock pursuant to the
recapitalization or reclassification of the capital of any Issuer or pursuant to
the reorganization thereof, the property so distributed shall, unless otherwise
subject to a perfected security interest in favor of the Administrative Agent,
be promptly (and in any event within 60 days) delivered to the Administrative
Agent to be held by it hereunder as additional collateral security (or except as
provided in the Credit Agreements) for the Obligations. Except as provided in
the Credit Agreements, if any sums of money or property so paid or distributed
in respect of the Pledged Stock under circumstances described in this Section
4.2(a) shall be received by such Grantor, such Grantor shall, until such money
or property is paid or delivered to the Administrative Agent, hold such money or
property in trust for the Lenders, segregated from other funds of such Grantor,
as additional collateral security for the Obligations.
(b) Except as provided in the Credit Agreements, without the prior
written consent of the Administrative Agent, such Grantor will not (i) vote to
enable, or take any other action to permit, any Issuer to issue any stock or
other equity securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any stock or
other equity securities of any nature of any Issuer, (ii) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with respect
to, the Pledged Stock or Proceeds thereof (except pursuant to a transaction
expressly permitted by the Credit Agreements), (iii) create, incur or permit to
exist any Lien or option in favor of, or any claim of any Person with respect
to, any of the Pledged Stock or Proceeds thereof, or any interest therein,
except for the security interests created by this Agreement or (iv) enter into
any agreement or undertaking restricting the right or ability of such Grantor or
the Administrative Agent to sell, assign or transfer any of the Pledged Stock or
Proceeds thereof.
(c) In the case of each Grantor which is an Issuer, such Issuer
agrees that (i) it will be bound by the terms of this Agreement relating to the
Pledged Stock issued by it and will comply with such terms insofar as such terms
are applicable to it, (ii) it will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in subsection 4.2(a)
with respect to the Pledged Stock issued by it and (iii) the terms of
subsections 5.1(c) and 5.5 shall apply to it, mutatis mutandis, with respect to
all actions that may be required of it pursuant to subsections 5.1(c) or 5.5
with respect to the Pledged Stock issued by it.
SECTION 4A. CERTAIN AFFIRMATIVE COVENANTS
Each Grantor covenants and agrees with the Agents and the Lenders
that, from and after the date of this Agreement until the Obligations shall have
been paid in full, no Letter of Credit shall be outstanding and the Commitments
shall have terminated:
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4A.1 Further Documentation.
(a) Such Grantor will furnish to the Agents and the Lenders
from time to time statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as the Administrative Agent may reasonably request, all in
reasonable detail.
(b) At any time and from time to time, upon the written
request of the Administrative Agent, and at the sole expense of such
Grantor, such Grantor will promptly and duly execute and deliver, such
further instruments and documents and take such further actions as the
Administrative Agent may reasonably request for the purpose of obtaining
or preserving the full benefits of this Agreement and of the rights and
powers herein granted.
4A.2 Payment of Obligations.
Such Grantor will pay and discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all
material taxes, assessments and governmental charges or levies imposed upon the
Collateral or in respect of income or profits therefrom, as well as all material
claims of any kind (including, without limitation, claims for labor, materials
and supplies) against or with respect to the Collateral, except that no such
charge need be paid if the amount or validity thereof is currently being
contested in good faith by appropriate proceedings, reserves in conformity with
GAAP with respect thereto have been provided on the books of such Grantor and
such proceedings could not reasonably be expected to result in the sale,
forfeiture or loss of any material portion of the Collateral or any interest
therein.
4A.3 Notices. Such Grantor will advise the Agents and the Lenders
promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or
Liens permitted under the Credit Agreements) on any of the Collateral
which would adversely affect the ability of the Administrative Agent to
exercise any of its remedies hereunder; and
(b) the occurrence of any other event of which it is aware
which could reasonably be expected to have a material adverse effect on
the enforceability, or perfection or priority of, the security interests
purported to be created hereby.
SECTION 5. REMEDIAL PROVISIONS
5.1 Pledged Stock.
(a) Unless an Event of Default shall have occurred and be continuing
and the Administrative Agent shall have given notice to the relevant Grantor of
the Administrative Agent's intent to exercise its corresponding rights pursuant
to subsection 5.1(b), each Grantor
8
shall be permitted to receive all cash dividends paid in respect of the Pledged
Stock paid in the normal course of business of the relevant Issuer and
consistent with past practice, to the extent permitted in the Credit Agreements,
and to exercise all voting and corporate rights with respect to the Pledged
Stock; provided, however, that no vote shall be cast or corporate right
exercised or other action taken which, in the Administrative Agent's reasonable
judgment, would materially impair the Collateral or which would result in any
violation of any provision of the Credit Agreements, this Agreement or any other
Credit Document.
(b) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give notice of its intent to exercise such rights to
the relevant Grantor or Grantors, (i) the Administrative Agent shall have the
right to receive any and all cash dividends, payments or other Proceeds paid in
respect of the Pledged Stock and make application thereof to the Obligations in
such order as the Administrative Agent may determine, and (ii) any or all of the
Pledged Stock shall be registered in the name of the Administrative Agent or its
nominee, and the Administrative Agent or its nominee may thereafter exercise (x)
all voting, corporate and other rights pertaining to such Pledged Stock at any
meeting of shareholders of the relevant Issuer or Issuers or otherwise
(including giving or withholding written consents of shareholders and calling
special meetings of shareholders) and (y) any and all rights of conversion,
exchange and subscription and any other rights, privileges or options pertaining
to such Pledged Stock as if it were the absolute owner thereof (including,
without limitation, the right to exchange at its discretion any and all of the
Pledged Stock upon the merger, consolidation, reorganization, recapitalization
or other fundamental change in the corporate structure of any Issuer, or upon
the exercise by any Grantor or the Administrative Agent of any right, privilege
or option pertaining to such Pledged Stock, and in connection therewith, the
right to deposit and deliver any and all of the Pledged Stock with any
committee, depositary, transfer agent, registrar or other designated agency upon
such terms and conditions as the Administrative Agent may determine), all
without liability except to account for property actually received by it, but
the Administrative Agent shall have no duty to any Grantor to exercise any such
right, privilege or option and shall not be responsible for any failure to do so
or delay in so doing.
(c) Each Grantor hereby authorizes and instructs each Issuer of any
Pledged Stock pledged by such Grantor hereunder to (i) comply with any
instruction received by it from the Administrative Agent in writing that (x)
states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees that each Issuer
shall be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Pledged Stock directly to the Administrative Agent.
5.2 Proceeds to be Turned Over To Administrative Agent. If an Event
of Default shall occur and be continuing, all Proceeds received by any Grantor
consisting of cash, checks and other near-cash items shall be held by such
Grantor in trust for the Agents and the Lenders, segregated from other funds of
such Grantor, and shall, forthwith upon receipt by such Grantor, be turned over
to the Administrative Agent in the exact form received by such Grantor (duly
endorsed by such Grantor to the Administrative Agent, if required). All Proceeds
received
9
by the Administrative Agent hereunder shall be held by the Administrative Agent
in a deposit account (a "Collateral Account") maintained under its sole dominion
and control. All Proceeds while held by the Administrative Agent in a Collateral
Account (or by such Grantor in trust for the Administrative Agent and the
Lenders) shall continue to be held as collateral security for all the
Obligations and shall not constitute payment thereof until applied as provided
in subsection 5.3.
5.3 Application of Proceeds. At such intervals as may be agreed upon
by the Borrower and the Administrative Agent, or, if an Event of Default shall
have occurred and be continuing, at any time at the Administrative Agent's
election, the Administrative Agent may apply all or any part of Proceeds held in
any Collateral Account in payment of the Obligations in such order as required
by the Credit Agreements, and any part of such funds which are not required as
collateral security for the Obligations shall be paid over from time to time by
the Administrative Agent to the Borrower or to whomsoever may be lawfully
entitled to receive the same. Any balance of such Proceeds remaining after the
Obligations shall have been paid in full, no Letters of Credit shall be
outstanding and the Commitments shall have terminated shall be paid over to the
Borrower or to whomsoever may be lawfully entitled to receive the same.
5.4 Code and Other Remedies. If an Event of Default shall occur and
be continuing, the Administrative Agent, on behalf of the Agents and the
Lenders, may exercise, in addition to all other rights and remedies granted to
them in this Agreement and in any other instrument or agreement securing,
evidencing or relating to the Obligations, all rights and remedies of a secured
party under the New York UCC or any other applicable law. Without limiting the
generality of the foregoing, the Administrative Agent, without demand of
performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice required by law referred to below) to or upon any
Grantor or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, lease, assign, give option or options
to purchase, or otherwise dispose of and deliver the Collateral or any part
thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, at any exchange, broker's board or office of
any of the Agents or Lenders or elsewhere upon such terms and conditions as it
may deem advisable and at such prices as it may deem best, for cash or on credit
or for future delivery without assumption of any credit risk. Any Agents or
Lenders shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption in any Grantor, which right or equity is hereby waived and released.
The Administrative Agent shall apply the net proceeds of any action taken by it
pursuant to this subsection 5.4, after deducting all reasonable costs and
expenses of every kind incurred in connection therewith or incidental to the
care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Agents and the Lenders hereunder, including,
without limitation, reasonable attorneys' fees and disbursements, to the payment
in whole or in part of the Obligations, in such order as the Administrative
Agent may elect, and only after such application and after the payment by the
Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the New York UCC, need
10
the Administrative Agent account for the surplus, if any, to any Grantor. To the
extent permitted by applicable law, each Grantor waives all claims, damages and
demands it may acquire against any Agents or Lenders arising out of the exercise
by them of any rights hereunder. If any notice of a proposed sale or other
disposition of Collateral shall be required by law, such notice shall be deemed
reasonable and proper if given at least 15 days before such sale or other
disposition.
5.5 Registration Rights.
(a) If the Administrative Agent shall determine to exercise its
right to sell any or all of the Pledged Stock pursuant to subsection 5.4, and if
in the opinion of the Administrative Agent it is necessary or advisable to have
the Pledged Stock, or that portion thereof to be sold, registered under the
provisions of the Securities Act, the relevant Grantor will cause the Issuer
thereof to (i) execute and deliver, and cause the directors and officers of such
Issuer to execute and deliver, all such instruments and documents, and do or
cause to be done all such other acts as may be, in the opinion of the
Administrative Agent, necessary or advisable to register the Pledged Stock, or
that portion thereof to be sold, under the provisions of the Securities Act,
(ii) use its commercially reasonable efforts to cause the registration statement
relating thereto to become effective and to remain effective for a period of one
year from the date of the first public offering of the Pledged Stock, or that
portion thereof to be sold, and (iii) make all amendments thereto and/or to the
related prospectus which, in the opinion of the Administrative Agent, are
necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto. Each Grantor agrees to cause such Issuer to
comply with the provisions of the securities or "Blue Sky" laws of any and all
jurisdictions which the Administrative Agent shall designate and to make
available to its security holders, as soon as practicable, an earnings statement
(which need not be audited) which will satisfy the provisions of Section 11(a)
of the Securities Act.
(b) Each Grantor recognizes that the Administrative Agent may be
unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(c) Each Grantor agrees to use its commercially reasonable efforts
to do or cause to be done all such other acts as may be necessary to make such
sale or sales of all or any portion of the Pledged Stock pursuant to this
subsection 5.5 valid and binding and in compliance with any and all other
applicable Requirements of Law. Each Grantor further agrees that a
11
breach of any of the covenants contained in this subsection 5.5 will cause
irreparable injury to the Agents and the Lenders, that the Agents and the
Lenders have no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this subsection 5.5 shall
be specifically enforceable against such Grantor, and such Grantor hereby waives
and agrees not to assert any defenses against an action for specific performance
of such covenants except for a defense that no Event of Default has occurred
under the Credit Agreements.
5.6 Waiver; Deficiency. Each Grantor waives and agrees not to assert
any rights or privileges which it may acquire under Section 9-112 of the New
York UCC. Each Grantor shall remain liable for any deficiency if the proceeds of
any sale or other disposition of the Collateral are insufficient to pay its
Obligations and the fees and disbursements of any attorneys employed by the
Administrative Agent or any Lender to collect such deficiency.
SECTION 6. THE ADMINISTRATIVE AGENT
6.1 Administrative Agent's Appointment as Attorney-in-Fact, etc.
(a) Each Grantor hereby irrevocably constitutes and appoints the
Administrative Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Grantor and in the name of
such Grantor or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, and, without limiting the generality of the
foregoing, each Grantor hereby gives the Administrative Agent the power and
right, on behalf of such Grantor, without notice to or assent by such Grantor,
to do any or all of the following:
(i) in the name of such Grantor or its own name, or otherwise,
take possession of and endorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under or
with respect to any Collateral and file any claim or take any other action
or proceeding in any court of law or equity or otherwise deemed
appropriate by the Administrative Agent for the purpose of collecting any
and all such moneys due under or with respect to any Collateral whenever
payable;
(ii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral; and
(iii) execute, in connection with any sale provided for in
subsections 5.4 or 5.5, any endorsements, assignments or other instruments
of conveyance or transfer with respect to the Collateral.
Anything in this subsection 6.1(a) to the contrary notwithstanding,
the Administrative Agent agrees that it will not exercise any rights under the
power of attorney provided for in this subsection 6.1(a) unless an Event of
Default shall have occurred and be continuing.
12
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the Administrative Agent incurred in connection
with actions undertaken as provided in this subsection 6.1, together with
interest thereon at a rate per annum equal to the rate per annum at which
interest would then be payable on past due Base Rate Loans under the Credit
Agreements, from the date of payment by the Administrative Agent to the date
reimbursed by the relevant Grantor, shall be payable by such Grantor to the
Administrative Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
6.2 Duty of Administrative Agent. The Administrative Agent's sole
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Administrative
Agent deals with similar property for its own account. Neither the
Administrative Agent, any other Agent, any Lender nor any of their respective
officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of any Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Agents and the Lenders hereunder are solely to protect the
Agents' and the Lenders' interests in the Collateral and shall not impose any
duty upon any Agents or Lender to exercise any such powers. The Agents and the
Lenders shall be accountable only for amounts that they actually receive as a
result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to any Grantor for
any act or failure to act hereunder, except for their own gross negligence or
willful misconduct.
6.3 Authority of Administrative Agent. Each Grantor acknowledges
that the rights and responsibilities of the Administrative Agent under this
Agreement with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as among the Agents and the
Lenders, be governed by the Credit Agreements and by such other agreements with
respect thereto as may exist from time to time among them, but, as among the
Agents and the Grantors, the Administrative Agent shall be conclusively presumed
to be acting as agent for the Lenders with full and valid authority so to act or
refrain from acting, and no Grantor shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.
13
SECTION 7. MISCELLANEOUS
7.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, restated, supplemented or otherwise modified
except in accordance with subsection 10.1 of each of the Credit Agreements.
7.2 Notices. All notices, requests and demands to or upon the
Agents, the Lenders or any Grantor hereunder shall be effected in the manner
provided for in subsection 10.2 of each of the Credit Agreements; provided, that
any such notice, request, or demand to or upon any Grantor shall be addressed to
such Grantor at its address set forth below its respective signature hereto.
7.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent, any other Agent nor any Lender shall by any act (except by
a written instrument pursuant to Section 7.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of any of the Agents or Lenders, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by any of the Agents or Lenders of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Administrative Agent, on behalf of other Agents and the
Lenders, would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
7.4 Enforcement Expenses; Indemnification.
(a) Each Grantor agrees to pay or reimburse each of the Lenders and
the Agents for all its reasonable costs and expenses incurred in collecting
against such Grantor or otherwise enforcing or preserving any rights under this
Agreement and the other Credit Documents to which such Grantor is a party,
including, without limitation, the reasonable fees and disbursements of counsel
to the Administrative Agent and of counsel to each of the other Agents and
Lenders.
(b) Each Grantor agrees to pay, and to save the Agents and the
Lenders harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other taxes which
may be payable or determined to be payable with respect to any of the Collateral
or in connection with any of the transactions contemplated by this Agreement.
(c) Each Grantor agrees to pay, and to save the Agents and the
Lenders harmless from, any and all 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 to the
14
extent the Borrower would be required to do so pursuant to subsection 10.5 of
the applicable Credit Agreement.
(d) The agreements in this subsection 7.4 shall survive repayment of
the Obligations and all other amounts payable under each of the Credit
Agreements and the other Credit Documents.
7.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of the
Agents and the Lenders and their successors and assigns; provided that no
Grantor may assign, transfer or delegate any of its rights or obligations under
this Agreement without the prior written consent of the Administrative Agent.
7.6 Set-Off. Each Grantor hereby irrevocably authorizes each of the
Agents and Lenders at any time and from time to time pursuant to subsection
10.7(b) of the applicable Credit Agreement whenever an Event of Default shall
have occurred and be continuing, without notice to such Grantor or any other
Grantor, any such notice being expressly waived by each Grantor, to set-off and
appropriate and apply 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 Agent or Lender
to or for the credit or the account of such Grantor, or any part thereof in such
amounts as such Agent or Lender may elect, against and on account of the
obligations and liabilities of such Grantor to such Agent or Lender hereunder
and claims of every nature and description of such Agent or Lender against such
Grantor, in any currency, whether arising hereunder, under the Credit
Agreements, any other Credit Document or otherwise, as such Agent or Lender may
elect, whether or not any Agent or Lender has made any demand for payment and
although such obligations, liabilities and claims may be contingent or
unmatured. Each of the Agents and Lenders shall notify such Grantor promptly of
any such set-off and the application made by such Agent or Lender of the
proceeds thereof, provided that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each Agent and
Lender under this subsection 7.6 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Agent or
Lender may have.
7.7 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.
7.8 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
15
7.9 Section Headings. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
7.10 Integration. This Agreement and the other Credit Documents
represent the agreement of the Grantors, the Agents and the Lenders with respect
to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by any of the Agents or Lenders
relative to the subject matter hereof and thereof not expressly set forth or
referred to herein or in the other Credit Documents.
7.11 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.
7.12 SUBMISSION TO JURISDICTION; WAIVERS. EACH GRANTOR 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 SUCH GRANTOR AT ITS
ADDRESS REFERRED TO IN SUBSECTION 7.2 OR AT SUCH OTHER ADDRESS OF WHICH THE
ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO ▇▇▇ IN ANY OTHER JURISDICTION; AND
(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT
IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION
16
OR PROCEEDING REFERRED TO IN THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
7.13 Acknowledgments. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents to which it is a
party;
(b) none of the Agents nor Lenders has any fiduciary relationship
with or duty to any Grantor arising out of or in connection with this Agreement
or any of the other Credit Documents, and the relationship between the Grantors,
on the one hand, and the Agents and Lenders, 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 Agents, among the Agents and/or the Lenders or among the Grantors and
the Agents and/or the Lenders.
7.14 WAIVER OF JURY TRIAL. EACH GRANTOR AND, BY ACCEPTANCE OF THE
BENEFITS HEREOF, EACH OF THE LENDERS AND THE AGENTS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
7.15 Additional Grantors. Each Subsidiary of the Borrower that is
required to become a party to this Agreement pursuant to subsection 6.10 of the
Credit Agreement shall become a Grantor for all purposes of this Agreement upon
execution and delivery by such Subsidiary of an Assumption Agreement in the form
of Annex 1 attached to the Amended and Restated Subsidiary Guarantee Agreement
executed concurrently herewith.
7.16 Releases.
(a) At such time as the Loans, the Reimbursement Obligations and the
other Obligations shall have been paid in full, the Commitments have been
terminated and no Letters of Credit shall be outstanding, the Collateral shall
be released from the Liens created hereby, and this Agreement and all
obligations (other than those expressly stated to survive such termination) of
the Administrative Agent and each Grantor hereunder shall terminate, all without
delivery of any instrument or performance of any act by any party, and all
rights to the Collateral shall revert to the Grantors; provided, however, that
the Administrative Agent shall deliver to such Grantor any Collateral held by
the Administrative Agent hereunder, and execute and deliver to such Grantor such
documents as such Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by any Grantor in a transaction permitted by the Credit Agreements,
then the Administrative Agent, at the request and sole expense of such Grantor,
shall execute and deliver to such Grantor
17
all releases or other documents reasonably necessary or desirable for the
release of the Liens created hereby on such Collateral. At the request and sole
expense of the Borrower, a Grantor shall be released from its obligations
hereunder in the event that all the Capital Stock of such Grantor shall be sold,
transferred or otherwise disposed of in a transaction permitted by the Credit
Agreement.
[Signature page follows]
18
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed and delivered as of the date first above written.
HYGIENETICS ENVIRONMENTAL SERVICES, INC.
By:
--------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President-General Counsel and Secretary
L-3 COMMUNICATIONS ILEX SYSTEMS, INC.
By:
--------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President-General Counsel and Secretary
L-3 COMMUNICATIONS SPD TECHNOLOGIES INC.
By:
--------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President-General Counsel and Secretary
L-3 COMMUNICATIONS AYDIN CORPORATION
By:
--------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President-General Counsel and Secretary
MICRODYDE CORPORATION
By:
--------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President-General Counsel and Secretary
S-1
Address for Notices for each Grantor:
c/o L-3 Communications Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Accepted on behalf of the Agents and
the Lenders as of the date first above
written:
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
By:
-----------------------------------
Name:
-----------------------------
Title:
----------------------------
S-2
Schedule 1
DESCRIPTION OF PLEDGED STOCK
Pledged Stock:
Issuer Owner (Guarantor) Class of Stock Stock Certificate No. No. of Shares
------ ----------------- -------------- --------------------- -------------
Schedule 1
Schedule 2
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE(1)
Grantor Jurisdiction of Location
------- --------------- --------
Organization
------------
Hygienetics Environmental Delaware ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Services, Inc. ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
L-3 Communications Ilex Delaware ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Systems, Inc. ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
L-3 Communications Aydin Delaware ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
L-3 Communications SPD Delaware 13500 Roosevelt Blvd.
Technologies Inc. ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Microdyne Corporation Maryland ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
----------
(1) Borrower to advise of Chief Executive Office for each Sub.
Schedule 2
ACKNOWLEDGMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Second
Amended and Restated Subsidiary Pledge Agreement dated as of _________ ____,
2000 (the "Agreement"), made by the Grantors party thereto for the benefit of
Bank of America, N.A., as Administrative Agent. The undersigned agrees for the
benefit of the Administrative Agent, the other Agents and the Lenders as
follows:
1. The undersigned will be bound by the terms of the Agreement and
will comply with such terms insofar as such terms are applicable to the
undersigned.
2. The undersigned will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in Section 4.2(a) of
the Agreement.
3. The terms of Sections 5.1(a) and 5.5 of the Agreement shall apply
to it, mutatis mutandis, with respect to all actions that may be required of it
pursuant to Section 5.1(a) or 5.5 of the Agreement.
[NAME OF ISSUER]
--------------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
Address for Notices:
--------------------------------------------------
--------------------------------------------------
Fax:
---------------------------------------------
EXHIBIT C-I
to the Credit Agreement
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
-----
FASCIMILE: (▇▇▇) ▇▇▇-▇▇▇▇
DIRECT DIAL NUMBER E-MAIL ADDRESS
April 28, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇.▇., as Administrative Agent
▇▇▇▇▇▇ Commercial Paper Inc., as Syndication Agent
and Documentation Agent
▇▇▇▇▇▇ Brothers, Inc.
as Arranger
Banc of America Securities LLC
as Arranger
and
The Lenders listed on Schedule I hereto
which are parties to the Credit
Agreement on the date hereof
Re: Second Amended and Restated Credit Agreement dated as of April
24, 2000, Amended and Restated 364 Day Credit Agreement dated
as of April 24, 2000 and New 364 Day Credit Agreement dated as
of April 24, 2000
Ladies and Gentlemen:
We have acted as counsel to L-3 Communications Corporation, a Delaware
corporation (the "Borrower"), L-3 Communications Holdings, Inc., a Delaware
corporation (the "Parent Guarantor"), the subsidiaries of the Borrower named on
Schedule II attached hereto (each, a "Subsidiary Guarantor" and, collectively,
the "Subsidiary Guarantors"; (the Borrower, the Parent Guarantor and the
Subsidiary Guarantors being referred to herein collectively as the "Credit
Parties") in connection with the preparation, execution and delivery of the
following documents:
(a) the Second Amended and Restated Credit Agreement, dated as of April
24, 2000 among the Borrower, the Lenders parties thereto, ▇▇▇▇▇▇
Commercial Paper Inc., as Syndication Agent, Documentation Agent and
an Arranger, Banc of America Securities LLC (f/k/a BancAmerica
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇), as an Arranger, and Bank of
COLUMBUS LOS ANGELES PALO ALTO
LONDON HONG KONG TOKYO SINGAPORE
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
America, N.A. (f/k/a Bank of America, National Trust and Savings
Association), as Administrative Agent (the "Facility A Credit
Agreement");
(b) the Amended and Restated 364 Day Credit Agreement, dated as of April
24, 2000 among the Borrower, the Lenders parties thereto, ▇▇▇▇▇▇
Commercial Paper Inc., as Syndication Agent, Documentation Agent and
an Arranger, Banc of America Securities LLC (f/k/a BancAmerica
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇), as an Arranger and Bank of America, N.A. (f/k/a
Bank of America, National Trust and Savings Association), as
Administrative Agent (the "Facility B Credit Agreement")
(c) the New 364 Day Credit Agreement, dated as of April 24, 2000 among
the Borrower, the Lenders parties thereto, ▇▇▇▇▇▇ Commercial Paper
Inc., as Syndication Agent and Documentation Agent, Banc of America
Securities LLC and ▇▇▇▇▇▇ Brothers, Inc., as the Arrangers, Bank of
America, N.A., as Administrative Agent and the financial
institutions named therein as Managing Agents (the "Facility C
Credit Agreement"; collectively with the Facility A Credit Agreement
and the Facility B Credit Agreement, the "Credit Agreements");
(d) the Notes;
(e) the Parent Guarantee;
(f) the Subsidiary Guarantee;
(g) the Parent Pledge Agreement;
(h) the Borrower Pledge Agreement;
(i) the Subsidiary Pledge Agreement; and
(j) the Charge Over Shares.
The documents described in the foregoing clauses (a) through (j) are
collectively referred to herein as the "Credit Documents"; the documents
described in the foregoing clauses (g) through (j) are collectively referred to
herein as the "Security Documents". Unless otherwise indicated, capitalized
terms used but not defined herein shall have the respective meanings set forth
in the Credit Agreements. This opinion is furnished to you pursuant to Section
5.1(m) of the Credit Agreements.
In connection with this opinion, we have examined:
2
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
(A) the Credit Agreements, signed by each Credit Party party thereto,
the Administrative Agent, Syndication Agent, Documentation Agent,
Arranger and certain of the Lenders;
(B) each other Credit Document, signed by each Credit Party party
thereto; and
(C) forms of the Notes to be delivered after the date hereof,
We also have examined the originals, or duplicates or certified or conformed
copies, of such records, agreements, instruments and other documents and have
made such other investigations as we have deemed relevant and necessary in
connection with the opinions expressed herein. As to questions of fact material
to this opinion, we have relied upon certificates of public officials and of
officers and representatives of the Credit Parties. In addition, we have
examined, and have relied as to matters of fact upon, the representations made
in the Credit Documents.
In rendering the opinions set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as duplicates or certified
or conformed copies, and the authenticity of the originals of such latter
documents.
In addition, we have assumed that (1) the Credit Parties have rights
in the Collateral existing on the date hereof and will have rights in property
which becomes Collateral after the date hereof and (2) "value" (as defined in
Section 1-201(44) of the Uniform Commercial Code as in effect in the State of
New York (the "New York UCC")) has been given by the Lenders to the Borrower for
the security interests and other fights in the Collateral.
In rendering the opinion set forth in paragraph 6 below with respect
to the Notes, we have assumed that at the time of any execution and delivery of
Notes after the date hereof, the Board of Directors of the Borrower (or any
committee thereof acting pursuant to authority properly delegated to such
committee by the Board of Directors) has not taken any action to rescind or
otherwise reduce its prior authorization of the issuance of such Notes.
Based upon and subject to the foregoing, and subject to the
qualifications and limitations set forth herein, we are of the opinion that:
1. Each of the Borrower and the Parent Guarantor (a) has been duly
incorporated and is validly existing and in good standing as a corporation under
the laws of the State of Delaware, (b) has the corporate power and authority to
execute and deliver each of the Credit Documents to which it is a party, to
perform its obligations thereunder and to grant the security interests to be
granted by it pursuant to the Security Documents and (c) has duly authorized,
executed and delivered each Credit Document to which it is a party.
3
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
2. Each of the Subsidiary Guarantors (other than Microdyne Corporation
("Microdyne"), as to which we express no opinion) has duly authorized, executed
and delivered each Credit Document to which it is a party.
3. The execution and delivery by each of the Borrower and the Parent
Guarantor of the Credit Documents to which it is a party, the borrowings by the
Borrower in accordance with the terms of the Credit Documents and the granting
of the security interests to be granted by the Borrower and the Parent Guarantor
pursuant to the Security Documents will not result in any violation of (1) the
Certificate of Incorporation or By-Laws of either the Borrower or the Parent
Guarantor, (2) assuming that proceeds of the borrowings will be used in
accordance with the terms of the Credit Agreement, any federal or New York
statute or the Delaware General Corporation Law or any rule or regulation issued
pursuant to any New York or Federal statute or the Delaware General Corporation
Law, but excluding any government procurement statute or regulations issued
pursuant thereto.
4. The execution and delivery by each Subsidiary Guarantor of the Credit
Documents to which it is a party and the granting of the security interests to
be granted by it pursuant to the Security Documents will not result in any
violation of, assuming that proceeds of the borrowings will be used in
accordance with the terms of the Credit Agreement, any federal or New York
statute or the Delaware General Corporation Law or any rule or regulation issued
pursuant to any New York or Federal statute or the Delaware General Corporation
Law, but excluding any government procurement statute or regulations issued
pursuant thereto.
5. No consent, approval, authorization, order, filing, registration or
qualification of or with any Federal or New York governmental agency or body or
any Delaware governmental agency or body acting pursuant to the Delaware General
Corporation Law is required for the execution and delivery by any Credit Party
of the Credit Documents to which it is a party, the borrowings by any Credit
Party in accordance with the terms of the Credit Documents or the granting of
any security interests under the Security Documents, except filings required for
the perfection of security interests granted pursuant to the Security Documents
and consents, waivers, approvals, filings and registrations described on
Schedule 4.4 to the Credit Agreement.
6. Assuming that each of the Credit Documents is a valid and legally
binding obligation of each of the Lenders parties thereto and assuming that (a)
Microdyne is validly existing and in good standing under the laws of the State
of Maryland and has duly authorized, executed and delivered the Credit Documents
to which it is a party in accordance with its Articles of Incorporation and
By-Laws, (b) execution, delivery and performance by any Credit Party of the
Credit Documents to which it is a party do not violate any applicable laws
(excepting the laws of the State of New York, the General Corporation Law of
the State of Delaware and the Federal laws of the United States, other than any
government procurement statute or regulations issued pursuant thereto) and (c)
execution, delivery and performance by each Credit Party of the Credit
4
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Documents to which it is a party do not constitute a breach or violation of any
agreement or instrument which is binding upon such Credit Party, each Credit
Document (other than the Charge Over Shares) constitutes and each Note delivered
to a Lender after the date hereof, assuming the due execution and delivery by
the Borrower, will constitute the valid and legally binding obligation of each
Credit Party which is a party thereto, enforceable against such Credit Party in
accordance with its terms.
7. No Credit Party is an "investment company" within the meaning of and
subject to regulation under the Investment Company Act of 1940, as amended.
8. Assuming that the Borrower will comply with the provisions of the
Credit Agreements relating to the use of proceeds, the execution and delivery of
the Credit Agreements by the Borrower and the making of the Loans under the
Credit Agreements will not violate Regulation, T, U or X of the Board of
Governors of the Federal Reserve System.
9. The Parent Pledge Agreement and Borrower Pledge Agreement create in
favor of the Administrative Agent for the benefit of the Lenders a security
interest under the New York UCC in the Pledged Stock (as defined in the Pledge
Agreements) described on Schedule I to each of the Parent Pledge Agreement and
the Borrower Pledge Agreement (the "Pledged Securities").
10. The Administrative Agent will have a perfected security interest in
the Pledged Securities for the benefit of the Lenders under the New York UCC
upon delivery to the Administrative Agent for the benefit of the Lenders in the
State of New York of the certificates representing the Pledged Securities in
registered form, endorsed in blank by an effective endorsement or accompanied by
undated stock power with respect thereto duly endorsed in blank by an effective
endorsement.
11. The choice of New York Law to govern each Credit Document in which
such choice is stipulated is a valid and effective choice of law under the laws
of the State of New York.
Our opinions in paragraphs 6 and 9 above are subject to (i) the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, (ii) general equitable principles (whether considered in a proceeding
in equity or at law) and (iii) an implied covenant of good faith and fair
dealing. Our opinion in paragraph 6 above also is subject to the qualification
that certain provisions of the Security Documents (other than the Charge Over
Shares) (the "U.S. Security Documents") in whole or in part, may not be
enforceable, although the inclusion of such provisions does not render the U.S.
Security Documents invalid, and the U.S. Security Documents and the laws of the
State of New York contain adequate remedial provisions for the practical
realization of the rights and benefits afforded thereby.
5
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Our opinions in paragraphs 9 and 10 above are limited to Articles 8 and 9
of the New York UCC, and therefore those opinion paragraphs do not address (i)
collateral of a type not subject to Article 9 or 8, as the case may be, of the
New York UCC, and (ii) under New York UCC ss. 9-103 what law governs perfection
of the security interests granted in the collateral covered by this opinion
letter.
We express no opinion with respect to:
(A) perfection of any security interest (1) in any Security Agreement
Article 9 Collateral of a type represented by a certificate of title, (2) in any
proceeds and (3) in any collateral consisting of money;
(B) the effect of ss. 9-306(2) of the New York UCC with respect to any
proceeds of Collateral that are not identifiable;
(C) perfection of any security interest whose priority is subject to
Section 9-313 of the New York UCC;
(D) the priority of any security interest;
(E) the effect of Section 552 of the Bankruptcy Code (11 U.S.C. 552)
(relating to property acquired by a pledgor after the commencement of a case
under the United States Bankruptcy Code with respect to such pledgor) and
Section 506(c) of the Bankruptcy Code (11 U.S.C. 506(c) (relating to certain
costs and expenses of a trustee in preserving or disposing of collateral;
(F) the effect of any provision of the Credit Documents which is intended
to establish any standard other than a standard set forth in the New York UCC as
the measure of the performance by any party thereto of such party's obligations
of good faith, diligence, reasonableness or care or of the fulfillment of the
duties imposed on any secured party with respect to the maintenance, disposition
or redemption of collateral, accounting for surplus proceeds of collateral or
accepting collateral in discharge of liabilities;
(G) the effect of any provision of the Credit Documents which is intended
to permit modification thereof only by means of an agreement signed in writing
by the parties thereto;
(H) the effect of any provision of the Credit Documents insofar as it
provides that any Person purchasing a participation from a Lender or other
Person may exercise set-off or similar rights with respect to such participation
or that any Lender or other Person may exercise set-off or similar rights other
than in accordance with applicable law;
6
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
(I) the effect of any provision of the Credit Documents imposing penalties
or forfeitures;
(J) the enforceability of any provision of any of the Credit Documents to
the extent that such provision constitutes a waiver of illegality as a defense
to performance of contract obligations; or
(K) the effect of any provision of the Credit Documents relating to
indemnification or exculpation in connection with violations of any securities
laws or relating to indemnification, contribution or exculpation in connection
with willful, reckless or criminal acts or gross negligence of the indemnified
or exculpated Person or the Person receiving contribution.
In connection with the provisions of the Credit Documents whereby
Credit Parties submit to the jurisdiction of the courts of the United States of
America for the Southern District of New York, we note the limitations of 28
U.S.C. ss. ss. 1331 and 1332 on subject matter jurisdiction of the Federal
Court. In connection with the provisions of the Credit Documents which relate to
forum selection of the courts of the United States for the Southern District of
New York, (including, without limitation, any waiver of any objection to venue
or any objection that a court is an inconvenient forum), we also note that such
court's discretion to transfer an action from one Federal court to another under
28 U.S.C. ss. 1404(a).
We are members of the Bar of the State of New York, and we do not
express any opinion herein concerning any law other than the law of the State of
New York, the Federal law of the United States and the Delaware General
Corporation Law.
This opinion letter is rendered to you in connection with the above
described transactions. This opinion letter may not be relied upon by you for
any other purpose, or relied upon by, or furnished to, any other person, firm or
corporation without our prior written consent.
Very truly yours,
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
7
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SCHEDULE I
LENDERS
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
BANK OF AMERICA, N.A.
THE BANK OF NEW YORK
THE BANK OF NOVA SCOTIA
CREDIT LYONNAIS
BANK ONE, N.A.
FIRST UNION COMMERCIAL CORPORATION
FLEET NATIONAL BANK
THE FUJI BANK, LIMITED
HSBC BANK USA
SOCIETE GENERALE
BANKBOSTON, N.A.
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE INC.
BANK OF IRELAND
BANQUE WORMS CAPITAL CORPORATlON
CREDIT INDUSTRIEL ET COMMERCIAL
COMERICA BANK
THE DAI-ICHI KANGYO BANK, LTD.
DEN DANSKE BANK AKTIESELSKAB
DEUTSCHE GENOSSENSCHAFTSBANK ▇▇
▇▇▇▇▇▇▇▇ BANK AG
ERSTE BANK DER OLSTERREICHISCHEN
GE CAPITAL COMMERCIAL FINANCE, INC.
THE INDUSTRIAL BANK OF JAPAN, LIMITED
MEES PIERSON CAPITAL CORP.
▇▇▇▇▇▇ BANK PLC
THE MITSUBISHI TRUST AND BANKING CORPORATION
NATIONAL CITY BANK
THE ROYAL BANK OF SCOTLAND PLC
SUMMIT BANK
SUNTRUST BANK
▇▇▇▇▇▇▇ BANK
8
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SCHEDULE II
BORROWER SUBSIDIARIES
HYGIENETICS ENVIRONMENTAL SERVICES, INC., a Delaware Corporation.
L-3 COMMUNICATIONS ILEX SYSTEMS, INC., a Delaware Corporation.
L-3 COMMUNICATIONS SPD TECHNOLOGIES INC., a Delaware Corporation.
L-3 COMMUNICATIONS AYDIN CORPORATION, a Delaware Corporation.
MICRODYNE CORPORATION, a Maryland Corporation.
9
[Note: to be replaced with final draft of general counsel's opinion.]
Exhibit C-2
to Credit Agreement
L-3 COMMUNICATIONS CORPORATION
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
April __, 2000
Bank of America, N.A.,
as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Commercial Paper Inc.,
as Arranger, Syndication Agent and Documentation Agent
3 World Financial Center, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Banc of America Securities LLC,
as Arranger
▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers, Inc.,
as Arranger
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
The Lenders Listed on Schedule 1 hereto
Ladies and Gentlemen:
I have acted as counsel to L-3 Communications Holdings, Inc., a
Delaware corporation ("Holdings"), L-3 Communications Corporation, a Delaware
corporation (the "Borrower"), L-3 Communications Ilex Systems, Inc., a Delaware
corporation ("Ilex"), Hygienetics Environmental Systems, Inc., a Delaware
corporation ("HES"), L-3 Communications SPD Technologies Inc., a Delaware
corporation ("SPD"), L-3 Communications Aydin Corporation, a Delaware
corporation ("Aydin") and Microdyne Corporation, a Maryland corporation
("Microdyne" and collectively with Ilex, HES, SPD and Aydin, the "Subsidiaries",
and together with Holdings and the Borrower, the "Loan Parties"), in connection
with (a) the
Second Amended and Restated Credit Agreement dated as of April 24, 2000 (the
"Facility A Credit Agreement") among the Borrower, the Lenders parties thereto,
▇▇▇▇▇▇ Commercial Paper Inc. ("LCPI"), as Syndication Agent, Documentation Agent
and an Arranger, Banc of America Securities LLC (f/k/a BancAmerica ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇), as an Arranger, and Bank of America, N.A. (f/k/a Bank of America
National Trust & Savings Association), as Administrative Agent ("BOA"), (b) the
Amended and Restated 364 Day Credit Agreement dated as of April 24, 2000 (the
"Facility B Credit Agreement") among the Borrower, the Lenders parties thereto,
LCPI, as Syndication Agent, Documentation Agent and an Arranger, Banc of America
Securities LLC (f/k/a BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇), as an Arranger, and BOA,
as Administrative Agent and (c) the New 364 Day Credit Agreement dated as of
April 24, 2000 (the "Facility C Credit Agreement" and together with the Facility
A Credit Agreement and the Facility B Credit Agreement, the "Credit Agreements")
among the Borrower, the Lenders parties thereto, Banc of America Securities LLC
and ▇▇▇▇▇▇ Brothers, Inc. as the Arrangers, Bank of America, N.A. as the
Administrative Agent, ▇▇▇▇▇▇ Commercial Paper, Inc. as the Syndication Agent and
the Documentation Agent, and the financial institutions named therein as
Managing Agents. In that connection, you have requested this opinion in
connection with the following documents: (i) the Credit Agreements, (ii) the
Notes, (iii) the Parent Pledge Agreement, (iv) the Borrower Pledge Agreement,
(v) the Subsidiary Pledge Agreement, (vi) the Parent Guarantee, (vii) the
Subsidiary Guarantee and (viii) the Charge Over Shares (the documents referred
to in clauses (i) through (viii) are referred to herein collectively as the
"Loan Documents"). Terms defined in the Loan Documents are used herein as
therein collectively defined.
In connection with this opinion, I have examined originals or
copies, certified or otherwise identified to my satisfaction, of each of the
Loan Documents. In addition, I have examined originals or copies, certified or
otherwise identified to my satisfaction, of such records, agreements,
instruments and other documents as I have deemed relevant and necessary as a
basis for the opinions hereinafter set forth.
For the purposes hereof, I have assumed, with your permission, the
genuineness of all signatures, the legal capacity of natural persons and the
authenticity and regularity of all documents examined by me. As to questions of
fact relevant to this opinion, I have relied upon, and assume the accuracy of,
the representations and warranties of the Loan Parties in the Loan Documents and
have relied upon certificates and oral or written statements and other
information of public officials, officers and representatives of the Loan
Parties and others and assume compliance on the part of all parties to the Loan
Documents with their covenants and agreements contained therein.
In rendering the opinions expressed below, I have assumed, with your
permission and without any independent investigation or verification of any
kind, that (a) the Loan Documents constitute the valid and legally binding
obligations of each party to the Loan Documents other than the Loan Parties,
enforceable against such parties in accordance with their respective terms, and
(b) the execution, delivery and performance by each Loan Party of each Loan
Document to which it is a party do not contravene, or require any order,
consent, approval, license, authorization, validation, filing, recording,
registration or exemption not obtained or
2
made under, any applicable provision of any law, statute, rule or regulation
(other than any law, statute, rule or regulation of the United States of America
or the State of New York).
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, I am of the opinion that:
1. Ilex has been duly incorporated and is validly existing and in
good standing under the laws of the State of Delaware with corporate power and
authority to conduct its business as now conducted and to own, or hold under
lease, its assets and to enter into the Subsidiary Guarantee and the Subsidiary
Pledge Agreement (collectively, the "Subsidiary Documents") and perform its
obligations thereunder.
2. HES has been duly incorporated and is validly existing and in
good standing under the laws of the State of Delaware with corporate power and
authority to conduct its business as now conducted and to own, or hold under
lease, its assets and to enter into the Subsidiary Documents and perform its
obligations thereunder.
3. SPD has been duly incorporated and is validly existing and in
good standing under the laws of the State of Delaware with corporate power and
authority to conduct its business as now conducted and to own, or hold under
lease, its assets and to enter into the Subsidiary Documents and perform its
obligations thereunder.
4. Aydin has been duly incorporated and is validly existing and in
good standing under the laws of the State of Delaware with corporate power and
authority to conduct its business as now conducted and to own, or hold under
lease, its assets and to enter into the Subsidiary Documents and perform its
obligations thereunder.
5. Microdyne has been duly incorporated and is validly existing and
in good standing under the laws of the State of Maryland with corporate power
and authority to conduct its business as now conducted and to own, or hold under
lease, its assets and to enter into the Subsidiary Documents and perform its
obligations thereunder.
6. Microdyne, has duly authorized, executed and delivered each
Credit Document to which it is a party.
7. To my knowledge, there are no legal or governmental proceedings
pending or threatened against any of the Loan Parties or to which any of their
respective properties is subject which reasonably could be expected to have a
Material Adverse Effect other than as disclosed in Schedule 4.6 to the Credit
Agreements.
8. To my knowledge, except as could not reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect, the execution
and delivery of the Credit Agreements, the Notes, the Charge Over Shares and the
Borrower Pledge Agreement (collectively, the "Borrower Credit Documents") by the
Borrower, the borrowing and granting of security interests by the Borrower under
the Borrower Credit Documents and the consummation of the transactions
contemplated therein do not: (a) violate any order, writ, injunction or decree
of any court or other governmental authority binding upon the Borrower or, (b)
other than as disclosed in the Schedules to the Credit Agreements, result in (i)
the breach of or a default under
3
any material Contractual Obligation applicable to or binding upon the Borrower
or any of its properties or assets or (ii) the creation of any lien on any of
its properties or assets pursuant to any such material Contractual Obligation,
except for liens arising under the any of the Pledge Agreements and/or the
Guarantees (collectively, the "Security Documents").
9. To my knowledge, except as could not reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect, the execution
and delivery of the Subsidiary Documents by each of the Subsidiaries party
thereto, the making of the guarantee and granting of security interests by each
of the Subsidiaries under the Subsidiary Documents and the consummation of the
transactions contemplated therein do not: (a) violate any order, writ,
injunction or decree of any court of other governmental authority binding upon
any Subsidiary, (b) violate the provisions of any such Subsidiaries'
Constitutional Documents or, (c) other than as disclosed in the Schedules to the
Credit Agreements result in (i) the breach of or a default under any material
Contractual Obligation applicable to or binding upon any Subsidiary or any of
their respective properties or assets or (ii) the creation of any lien on any of
their respective properties or assets pursuant to any such material Contractual
Obligation, except for liens arising under the Security Documents.
10. To my knowledge, except as could not reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect, the execution
and delivery of the Parent Guarantee and the Parent Pledge Agreement
(collectively, the "Parent Documents") by Holdings, the making of the guarantee
and granting of security interests by Holdings under the Parent Documents and
the consummation of the transactions contemplated therein do not: (a) violate
any order, writ, injunction or decree of any court of other governmental
authority binding upon Holdings or, (b) other than as disclosed in the Schedules
to the Credit Agreements, result in (i) the breach of or a default under any
material Contractual Obligation applicable to or binding upon Holdings or any of
its properties or assets or (ii) the creation of any lien on any of its
properties or assets pursuant to any such material Contractual Obligation,
except for liens arising under the Security Documents.
11. Based solely on certificates from public officials, I confirm
that the Borrower is qualified to do business in each State where such
qualification is required, except where the failure to be so qualified could not
reasonably be expected to have a Material Adverse Effect. Based solely on
certificates from public officials, I confirm that Holdings is qualified to do
business in New York. Based solely on certificates from public officials, I
confirm that Ilex is qualified to do business in each State where such
qualification is required, except where the failure to be so qualified could not
reasonably be expected to have a Material Adverse Effect. Based solely on
certificates from public officials, I confirm that HES is qualified to do
business in each State where such qualification is required, except where the
failure to be so qualified could not reasonably be expected to have a Material
Adverse Effect. Based solely on certificates from public officials, I confirm
that SPD is qualified to do business in each State where such qualification is
required, except where the failure to be so qualified could not reasonably be
expected to have a Material Adverse Effect. Based solely on certificates from
public officials, I confirm that Aydin is qualified to do business in each State
where such qualification is required, except where the failure to be so
qualified could not reasonably be expected to have a Material Adverse Effect.
Based solely on certificates from public officials, I confirm that Microdyne is
4
qualified to do business in each State where such qualification is required,
except where the failure to be so qualified could not reasonably be expected to
have a Material Adverse Effect.
12. The Borrower's authorized capital stock consists of 100 shares
of common stock, all of which have been duly authorized and validly issued, are
fully paid and nonassessable, are free of preemptive rights and, based solely on
my review of the Borrower's stock records, are owned of record by Holdings free
and clear of all liens, claims, charges, or encumbrances other than Liens
created or permitted by the Security Documents. Holdings has no direct
Subsidiaries other than the Borrower.
13. Ilex's authorized capital stock consists of 100 shares of common
stock, all of which have been duly authorized and validly issued, are fully paid
and nonassessable, are free of preemptive rights and, based solely on my review
of Ilex's stock records, are owned of record by the Borrower free and clear of
all liens, claims, charges, or encumbrances other than Liens created or
permitted by the Security Documents.
14. HES' authorized capital stock consists of 100 shares of common
stock, all of which have been duly authorized and validly issued, are fully paid
and nonassessable, are free of preemptive rights and, based solely on my review
of HES' stock records, are owned of record by the Borrower free and clear of all
liens, claims, charges, or encumbrances other than Liens created or permitted by
the Security Documents.
15. SPD's authorized capital stock consists of [100] shares of
common stock, all of which have been duly authorized and validly issued, are
fully paid and nonassessable, are free of preemptive rights and, based solely on
my review of SPD's stock records, are owned of record by the Borrower free and
clear of all liens, claims, charges, or encumbrances other than Liens created or
permitted by the Security Documents.
16. Aydin's authorized capital stock consists of [100] shares of
common stock, all of which have been duly authorized and validly issued, are
fully paid and nonassessable, are free of preemptive rights and, based solely on
my review of Aydin's stock records, are owned of record by the Borrower free and
clear of all liens, claims, charges, or encumbrances other than Liens created or
permitted by the Security Documents.
17. Microdyne's authorized capital stock consists of [100] shares of
common stock, all of which have been duly authorized and validly issued, are
fully paid and nonassessable, are free of preemptive rights and, based solely on
my review of Microdyne's stock records, are owned of record by the Borrower free
and clear of all liens, claims, charges, or encumbrances other than Liens
created or permitted by the Security Documents.
I am a member of the Bar of the State of New York and I express no
opinion as to the laws of any jurisdiction other than the federal laws of the
United States of America, the laws of the State of New York, the Delaware
General Corporation Law and the [Maryland General Corporation Law].
This opinion is rendered to you in connection with the
above-described transactions in my capacity as counsel to the Loan Parties. This
opinion may not be relied upon
5
by you for any other purpose, or relied upon by any other person, firm or
corporation without my prior written approval.
Very truly yours,
6
Schedule I
LENDERS
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
BANK OF AMERICA, N.A.
THE BANK OF NEW YORK
THE BANK OF NOVA SCOTIA
CREDIT LYONNAIS
BANK ONE, N.A.
FIRST UNION COMMERCIAL CORPORATION
FLEET NATIONAL BANK
THE FUJI BANK, LIMITED
HSBC BANK USA
SOCIETE GENERALE
BANKBOSTON, N.A.
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE INC.
BANK OF IRELAND
BANQUE WORMS CAPITAL CORPORATION
CREDIT INDUSTRIEL ET COMMERCIAL
COMERICA BANK
THE DAI-ICHI KANGYO BANK, LTD.
DEN DANSKE BANK AKTIESELSKAB
DEUTSCHE GENOSSENSCHAFTSBANK ▇▇
▇▇▇▇▇▇▇▇ BANK AG
ERSTE BANK DER OESTERREICHISCHEN
GE CAPITAL COMMERCIAL FINANCE, INC.
THE INDUSTRIAL BANK OF JAPAN, LIMITED
MEES PIERSON CAPITAL CORP.
▇▇▇▇▇▇ BANK PLC
THE MITSUBISHI TRUST AND BANKING CORPORATION
NATIONAL CITY BANK
THE ROYAL BANK OF SCOTLAND PLC
SUMMIT BANK
SUNTRUST BANK
▇▇▇▇▇▇▇ BANK
Exhibit D
to Credit Agreement
FORM OF BORROWING CERTIFICATE
FOR
NEW 364 DAY CREDIT AGREEMENT
Pursuant to subsection 5.1(g) of the New 364 Day Credit Agreement,
dated as of April 24, 2000 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement") among L-3 Communications Corporation, a
Delaware corporation (the "Borrower"), the several banks and other financial
institutions from time to time parties thereto (the "Lenders"), Banc of America
Securities LLC and ▇▇▇▇▇▇ Brothers, Inc. as the Arrangers, Bank of America, N.A.
as the Administrative Agent for the Lenders (in such capacity, the
"Administrative Agent"), ▇▇▇▇▇▇ Commercial Paper, Inc. as the Syndication Agent
and the Documentation Agent, and the financial institutions named therein as
Managing Agents, the undersigned hereby delivers this Certificate.
The Borrower hereby requests that a [Eurodollar/Base Rate] Loan be
made in the aggregate principal amount of __________ on __________, _____ [with
an Interest Period of ___ months].
The undersigned hereby certifies as follows:
(a) The representations and warranties made by the Borrower and each
of its Subsidiaries and each of the other Credit Parties in the Credit
Documents are true and correct in all material respects on and as of the
date hereof with the same effect as if made on the date hereof (except to
the extent they relate to a particular date, in which case they shall
remain true and correct as of such date); and
(b) No Default or Event of Default has occurred and is continuing on
the date hereof or after giving effect to the Loans and other extensions
of credit requested to be made on such date.
Capitalized terms used herein and not otherwise defined shall have
the meanings given to them in the Credit Agreement.
The Borrower agrees that if prior to the time of the borrowing
requested hereby any matter certified to herein by it will not be true and
correct in all material respects at such time as if then made, it will
immediately so notify the Administrative Agent. Except to the extent, if any,
that prior to the time of the borrowing requested hereby the Administrative
Agent shall receive written notice to the contrary from the Borrower, each
matter certified to herein shall be deemed once again to be certified as true
and correct in all material respects at the date of such borrowing as if then
made.
Please wire transfer the proceeds of the borrowing to the account of
the Borrower at _____________________________ Routing No.: ________________
(Account No._____), or as otherwise directed by the Borrower on the attached
Schedule 1.
The Borrower has caused this Borrowing Certificate to be executed
and delivered, and the certification and warranties contained herein to be made,
by its Responsible Officer this _____ day of __________, _____.
L-3 COMMUNICATION CORPORATION
By:
--------------------------------------
Name:
Title:
2
Exhibit E to
Credit Agreement
FORM OF EXEMPTION CERTIFICATE OF NON-U.S. LENDER
FOR
NEW 364 DAY CREDIT AGREEMENT
Reference is made to the New 364 Day Credit Agreement, dated as of
April 24, 2000 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement") among L-3 Communications Corporation, a Delaware
Corporation (the "Borrower"), the several banks and other financial institutions
from time to time parties thereto (the "Lenders"), Banc of America Securities
LLC and ▇▇▇▇▇▇ Brothers, Inc. as the Arrangers, Bank of America, N.A. as the
Administrative Agent for the Lenders (in such capacity, the "Administrative
Agent"), ▇▇▇▇▇▇ Commercial Paper, Inc. as the Syndication Agent and the
Documentation Agent, and the financial institutions named therein as Managing
Agents. Capitalized terms used herein that are not defined herein shall have the
meanings ascribed to them in the Credit Agreement. _______________ (the
"Non-U.S. Lender") is providing this certificate pursuant to subsection 2.15(b)
of the Credit Agreement. Under penalties of perjury, the Non-U.S. Lender hereby
represents and warrants that:
1. The Non-U.S. Lender is the sole record and beneficial owner of
the Note(s) in respect of which it is providing this certificate and it shall
remain the sole beneficial owner of such Note(s) at all times during which it is
the record holder of such Note(s).
2. The Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "Code"). In
this regard, the Non-U.S. Lender further represents and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or
other legal requirements as a bank in any jurisdiction;
(b) the Non-U.S. Lender has not been treated as a bank for
purposes of any tax, securities law or other filing or
submission made to any Governmental Authority, any
application made to a rating agency or qualification for
any exemption from tax, securities law or other legal
requirements;
(c) the Non-U.S. Lender is not a 10-percent shareholder
within the meaning of Section 881(c)(3)(B) of the Code;
(d) the Non-U.S. Lender is not a controlled foreign
corporation receiving interest from a related person
within the meaning of Section 881(c)(3)(C) of the Code;
3. The Non-U.S. Lender meets all of the requirements under Code
Section 871(h) or 881(c) to be eligible for a complete exemption from
withholding of U.S. Taxes on interest payments made to it under the Credit
Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate.
[NAME OF NON-U.S. LENDER]
By:
-------------------------------------
Name:
Title:
Date: ________________
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Exhibit F
to Credit Agreement
FORM OF
ASSIGNMENT AND ACCEPTANCE
FOR
NEW 364 DAY CREDIT AGREEMENT
Reference is made to the New 364 Day Credit Agreement, dated as of
April 24, 2000 (as amended, supplemented or otherwise modified prior to the
Effective Date (as defined below), the "Credit Agreement"), among L-3
Communication Corporation, a Delaware corporation, (the "Borrower"), the
Lenders, Banc of America Securities LLC and ▇▇▇▇▇▇ Brothers, Inc. as the
Arrangers, Bank of America, N.A. as the Administrative Agent for the Lenders (in
such capacity, the "Administrative Agent"), ▇▇▇▇▇▇ Commercial Paper, Inc. as the
Syndication Agent and the Documentation Agent, and the financial institutions
named therein as Managing Agents. Unless otherwise defined herein, terms defined
in the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
The Assignor identified on Schedule 1 hereto (the "Assignor") and
the Assignee identified on Schedule 1 hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), the interest described in Schedule 1 hereto
(the "Assigned Interest") in and to the Assignor's rights and obligations under
the Credit Agreement and other Credit Documents with respect to those credit
facilities contained in the Credit Agreement as set forth on Schedule 1 hereto
(individually, an "Assigned Facility"; collectively, the "Assigned Facilities"),
in a principal amount for each Assigned Facility as set forth on Schedule 1
hereto.
2. The Assignor (a) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Credit Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder, that
such interest is free and clear of any such adverse claim and that Assignor is
legally authorized to enter into this Assignment and Acceptance; (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, any of its Subsidiaries or any other
obligor or the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other Credit Document or any other instrument or
document furnished pursuant hereto or thereto; and (c) attaches any Notes held
by it evidencing the Assigned Facilities and (i) requests that the
Administrative Agent, upon request by the Assignee, exchange the attached Notes
for a new
Note or Notes payable to the Assignee and (ii) if the Assignor has retained any
interest in any Assigned Facility, requests that the Administrative Agent
exchange the attached Notes for a new Note or Notes payable to the Assignor, in
each case in amounts which reflect the assignment being made hereby (and after
giving effect to any other assignments which have become effective on the
Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to subsection 4.1 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (c) agrees
that it will, independently and without reliance upon the Assignor, the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement, the
other Credit Documents or any other instrument or document furnished pursuant
hereto or thereto; (d) appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Credit Agreement, the other Credit Documents or any other instrument
or document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to clause (b) of
subsection 2.15 of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be the
Effective Date of Assignment described in Schedule 1 hereto (the "Effective
Date"). Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance by it and recording by the
Administrative Agent pursuant to the Credit Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Administrative Agent for periods
prior to the Effective Date or with respect to the making of this assignment
directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Credit Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment
2
and Acceptance, relinquish its rights and be released from its obligations under
the Credit Agreement.
7. THIS ASSIGNMENT AND ACCEPTANCE AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed as of the date first above written by their
respective duly authorized officers on Schedule 1 hereto.
3
Schedule 1
to Assignment and Acceptance
Name of Assignor: ________________________________
Name of Assignee: ________________________________
Effective Date of Assignment: ____________________
Credit Facility Assigned Principal Amount Assigned Commitment Percentage Assigned(1)
------------------------ ------------------------- ---------------------------------
$__________________ _____._____%
[Name of Assignee] [Name of Assignor]
By:______________________ By:_________________________
Title: Title:
Accepted: Consented To:
BANK OF AMERICA, N. A., L-3 COMMUNICATION CORPORATION(2)
as Administrative Agent
By:_________________________
By:______________________ Title:
Title:
Accepted:
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
as Syndication Agent
By:______________________
Title:
----------
(1) Calculate the Commitment Percentage that is assigned to at least 9 decimal
places and show as a percentage of the aggregate commitments of all
Lenders.
(2) The Credit Agreement provides that the consent of the Borrower is required
unless the assignee (a) already is a Lender under the Credit Agreement,
(b) is an affiliate of a Lender, or (c) in the case of a Lender that is an
Investment Fund, any other such Investment Fund which is under common
management with such Lender.
