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EXHIBIT 10.1
L-3 COMMUNICATIONS CORPORATION,
a Delaware corporation
_________________________
CREDIT AGREEMENT
dated as of April 30, 1997
_________________________
$275,000,000
Credit Facility
________________________
XXXXXX COMMERCIAL PAPER INC.,
as Arranger, Syndication Agent and Documentation Agent,
and
BANK OF AMERICA NT & SA
as Administrative Agent
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . .
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . .
1.2 Other Definitional Provisions . . . . . . . . . . . . . . .
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS AND LOANS . . . . . . . . . .
2.1 Commitments . . . . . . . . . . . . . . . . . . . . . . . .
2.2 Procedure for Borrowing . . . . . . . . . . . . . . . . . .
2.3 Commitment Fee . . . . . . . . . . . . . . . . . . . . . .
2.4 Termination or Reduction of Revolving Credit
Commitments . . . . . . . . . . . . . . . . . . . . . .
2.5 Repayment of Loans; Evidence of Debt . . . . . . . . . . .
2.6 Optional Prepayments; Mandatory Prepayments and
Reduction of Commitments . . . . . . . . . . . . . . .
2.7 Conversion and Continuation Options . . . . . . . . . . . .
2.8 Minimum Amounts and Maximum Number of Tranches . . . . . .
2.9 Interest Rates and Payment Dates . . . . . . . . . . . . .
2.10 Computation of Interest and Fees . . . . . . . . . . . . .
2.11 Inability to Determine Interest Rate . . . . . . . . . . .
2.12 Pro Rata Treatment and Payments . . . . . . . . . . . . .
2.13 Illegality . . . . . . . . . . . . . . . . . . . . . . . .
2.14 Requirements of Law . . . . . . . . . . . . . . . . . . .
2.15 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . .
2.16 Indemnity . . . . . . . . . . . . . . . . . . . . . . . .
2.17 Replacement of Lenders . . . . . . . . . . . . . . . . . .
2.18 Certain Fees . . . . . . . . . . . . . . . . . . . . . . .
2.19 Certain Rules Relating to the Payment of Additional
Amounts . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 3. LETTERS OF CREDIT . . . . . . . . . . . . . . . . . . . . . .
3.1 L/C Commitment . . . . . . . . . . . . . . . . . . . . . .
3.2 Procedure for Issuance of Letters of Credit . . . . . . . .
3.3 Fees, Commissions and Other Charges . . . . . . . . . . . .
3.4 L/C Participation . . . . . . . . . . . . . . . . . . . . .
3.5 Reimbursement Obligation of the Borrower . . . . . . . . .
3.6 Obligations Absolute . . . . . . . . . . . . . . . . . . .
3.7 Letter of Credit Payments . . . . . . . . . . . . . . . . .
3.8 Application . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 4. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . .
4.1 Financial Condition . . . . . . . . . . . . . . . . . . . .
4.2 No Change . . . . . . . . . . . . . . . . . . . . . . . . .
4.3 Corporate Existence; Compliance with Law . . . . . . . . .
4.4 Corporate Power; Authorization; Enforceable Obligations . .
4.5 No Legal Bar . . . . . . . . . . . . . . . . . . . . . . .
4.6 No Material Litigation . . . . . . . . . . . . . . . . . .
4.7 No Default . . . . . . . . . . . . . . . . . . . . . . . .
4.8 Ownership of Property; Liens . . . . . . . . . . . . . . .
4.9 Intellectual Property . . . . . . . . . . . . . . . . . . .
4.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . .
4.11 Federal Regulations . . . . . . . . . . . . . . . . . . .
4.12 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . .
4.13 Investment Company Act; Other Regulations . . . . . . . .
4.14 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . .
4.15 Purpose of Loans . . . . . . . . . . . . . . . . . . . . .
4.16 Environmental Matters . . . . . . . . . . . . . . . . . .
4.17 Collateral Documents . . . . . . . . . . . . . . . . . . .
4.18 Accuracy and Completeness of Information . . . . . . . . .
4.19 Solvency. . . . . . . . . . . . . . . . . . . . . . . . .
4.20 Labor Matters . . . . . . . . . . . . . . . . . . . . . .
4.21 Transaction Documents . . . . . . . . . . . . . . . . . .
SECTION 5. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . .
5.1 Conditions to Initial Loans . . . . . . . . . . . . . . . .
5.2 Conditions to Each Extension of Credit . . . . . . . . . .
SECTION 6. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . .
6.1 Financial Statements . . . . . . . . . . . . . . . . . . .
6.2 Certificates; Other Information . . . . . . . . . . . . . .
6.3 Payment of Obligations . . . . . . . . . . . . . . . . . .
6.4 Conduct of Business and Maintenance of Existence . . . . .
6.5 Maintenance of Property; Insurance . . . . . . . . . . . .
6.6 Inspection of Property; Books and Records; Discussions . .
6.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . .
6.8 Environmental Laws . . . . . . . . . . . . . . . . . . . .
6.9 Further Assurances . . . . . . . . . . . . . . . . . . . .
6.10 Additional Collateral . . . . . . . . . . . . . . . . . .
6.11 Interest Rate Protection . . . . . . . . . . . . . . . . .
6.12 Foreign Jurisdictions . . . . . . . . . . . . . . . . . .
6.13 Novation; Federal Assignment of Claims . . . . . . . . . .
6.14 Maintenance of Collateral; Alterations . . . . . . . . . .
6.15 Arrangements with the Seller . . . . . . . . . . . . . . .
SECTION 7. NEGATIVE COVENANTS
7.1 Financial Condition Covenants . . . . . . . . . . . . . . .
7.2 Limitation on Indebtedness . . . . . . . . . . . . . . . .
7.3 Limitation on Liens . . . . . . . . . . . . . . . . . . . .
7.4 Limitation on Guarantee Obligations . . . . . . . . . . . .
7.5 Limitation on Fundamental Changes . . . . . . . . . . . . .
7.6 Limitation on Sale of Assets . . . . . . . . . . . . . . .
7.7 Limitation on Dividends . . . . . . . . . . . . . . . . . .
7.8 Limitation on Capital Expenditures . . . . . . . . . . . .
7.9 Limitation on Investments, Loans and Advances . . . . . . .
7.10 Limitation on Optional Payments and Modifications of
Instruments and Agreements . . . . . . . . . . . . . .
7.11 Limitation on Transactions with Affiliates . . . . . . . .
7.12 Limitation on Sales and Leasebacks . . . . . . . . . . . .
7.13 Limitation on Changes in Fiscal Year . . . . . . . . . . .
7.14 Limitation on Negative Pledge Clauses . . . . . . . . . .
7.15 Limitation on Lines of Business . . . . . . . . . . . . .
7.16 Designated Senior Debt . . . . . . . . . . . . . . . . . .
SECTION 8. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . .
SECTION 9. THE AGENTS; THE ARRANGER . . . . . . . . . . . . . . . . . .
9.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . .
9.2 Delegation of Duties . . . . . . . . . . . . . . . . . . .
9.3 Exculpatory Provisions . . . . . . . . . . . . . . . . . .
9.4 Reliance by Agents . . . . . . . . . . . . . . . . . . . .
9.5 Notice of Default . . . . . . . . . . . . . . . . . . . . .
9.6 Non-Reliance on Agents and Other Lenders . . . . . . . . .
9.7 Indemnification . . . . . . . . . . . . . . . . . . . . . .
9.8 Agents, in Their Individual Capacities . . . . . . . . . .
9.9 Successor Administrative Agent . . . . . . . . . . . . . .
9.10 The Arranger . . . . . . . . . . . . . . . . . . . . . . .
SECTION 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . .
10.1 Amendments and Waivers . . . . . . . . . . . . . . . . . .
10.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . .
10.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . . .
10.4 Survival of Representations and Warranties . . . . . . . .
10.5 Payment of Expenses and Taxes . . . . . . . . . . . . . .
10.6 Successors and Assigns; Participation and Assignments . .
10.7 Adjustments; Set-off . . . . . . . . . . . . . . . . . . .
10.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . .
10.9 Severability . . . . . . . . . . . . . . . . . . . . . . .
10.10 Integration . . . . . . . . . . . . . . . . . . . . . . .
10.11 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . .
10.12 SUBMISSION TO JURISDICTION; WAIVERS . . . . . . . . . . .
10.13 Acknowledgements . . . . . . . . . . . . . . . . . . . .
10.14 WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . . . . .
10.15 Confidentiality . . . . . . . . . . . . . . . . . . . . .
EXHIBITS
Exhibit A-1 Form of Tranche A Term Note
Exhibit A-2 Form of Tranche B Term Note
Exhibit A-3 Form of Tranche C Term Note
Exhibit A-4 Form of Revolving Credit Note
Exhibit A-5 Form of Swing Line Note
Exhibit B-1 Form of Parent Guarantee
Exhibit B-2 Form of Subsidiary Guarantees
Exhibit B-3 Form of Parent Pledge and Security Agreement
Exhibit B-4 Form of Borrower Pledge and Security Agreement
Exhibit B-5 Form of Subsidiary Pledge and Security Agreement
Exhibit C-1 Form of Mortgage
Exhibit C-2 Form of Deed of Trust
Exhibit D-1 Form of Legal Opinion of Xxxxxxx Xxxxxxx and
Xxxxxxxx
Exhibit D-2 Form of Legal Opinion of Fried, Frank, Harris,
Xxxxxxx & Xxxxxxxx
Exhibit E Form of Borrowing Certificate
Exhibit F Form of Certificate of Non-U.S. Lender
Exhibit G Form of Assignment and Acceptance
SCHEDULES
Schedule I Lenders and Commitments
Schedule II Pricing Grid
Schedule III Real Property to be Mortgaged
Schedule IV Transaction Documents
Schedule 4.4 Required Consents
Schedule 4.5 No Legal Bar
Schedule 4.6 Material Litigation
Schedule 4.8 Real Property
Schedule 4.9 Intellectual Property Claims
Schedule 4.10 Taxes
Schedule 4.14 Subsidiaries
Schedule 4.17 Filing Jurisdictions
Schedule 6.5 Insurance
Schedule 6.10 Certain Real Property
Schedule 7.2(f) Existing Indebtedness
Schedule 7.3(f) Existing Liens
Schedule 7.4 Existing Guarantee Obligations
Schedule 7.9(c) Officers
Schedule 7.9(g) Existing Investments
CREDIT AGREEMENT, dated as of April 30, 1997, among L-3
Communications Corporation, a Delaware corporation (the "Borrower") which is
wholly owned by L-3 Communications Holdings, Inc., a Delaware corporation
("Holdings"), the several lenders from time to time parties hereto (the
"Lenders"), Xxxxxx Commercial Paper Inc. ("LCPI") as arranger (in such
capacity, the "Arranger"), LCPI, as syndication agent (in such capacity, the
"Syndication Agent"), LCPI, as documentation agent (in such capacity, the
"Documentation Agent") and Bank of America NT & SA ("BOA"), as administrative
agent for the Lenders (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower is a party to the Transaction Agreement,
dated as of March 28, 1997 (as amended through the date hereof the
"Transaction Agreement"), by and among Lockheed Xxxxxx Corporation, a
Maryland corporation (the "Seller"), the Borrower, Xxxxxx Brothers Capital
Partners III, L.P. ("Capital Partners") and its Affiliates, Xxxxx X. Xxxxx
and Xxxxxx X. XxXxxxx;
WHEREAS, pursuant to the Transaction Agreement, on the Closing
Date: (i) the Seller, on behalf of itself and its various transferor
subsidiaries, will transfer (the "Asset Contribution") to the Borrower, on
behalf of and at the direction of Holdings, the Transferred Assets (as
defined in the Transaction Agreement); (ii) Holdings will issue to the Seller
6,980,000 shares of its Class A Common Stock par value $.01 per share; (iii)
Holdings will pay the Seller $479,835,000 in cash (subject to adjustment as
provided in the Transaction Agreement) (the "Cash Consideration"); and (iv)
the Borrower, on behalf of and at the direction of Holdings, will assume the
Assumed Liabilities (as defined in the Transaction Agreement);
WHEREAS, Holdings' obligation to pay the Cash Consideration will be
financed with (i) an investment of not less than $79,835,000 in Holdings
Class A Common Stock (the "Equity Investment"), of which (x) $64,835,000 will
be provided by Capital Partners and (y) $7,500,000 will be provided by each
of Xxxxx X. Xxxxx and Xxxxxx X. XxXxxxx, (ii) the issuance and sale by the
Borrower of senior subordinated debt securities for cash proceeds of at least
$225.0 million (the "Securities Offering") and (iii) senior debt financing;
WHEREAS, the Borrower has requested the Lenders to extend credit to
it (i) to finance a portion of the Cash Consideration to be paid by Holdings
in connection with the Asset Contribution and (ii) for working capital and
general corporate purposes of the Borrower and its Subsidiaries after the
Closing Date; and
WHEREAS, the Lenders are willing to extend such credit to the
Borrower upon and subject to the terms and conditions hereafter set forth;
NOW, THEREFORE, parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"Adjustment Date": the fifth day following the receipt by the
Administrative Agent of the financial statements for the most recently
completed fiscal period furnished pursuant to subsection 6.1(a) or (b),
as the case may be, and the compliance certificate with respect to such
financial statements furnished pursuant to subsection 6.2(c). For
purposes of determining the Applicable Margin and the Commitment Fee
Rate, the first "Adjustment Date" shall mean the date on which the
financial statements for the fiscal quarter ended September 30, 1997
furnished pursuant to subsection 6.1(b) and the related compliance
certificate furnished pursuant to subsection 6.2(c) are delivered to the
Administrative Agent pursuant to subsection 6.1(b) and 6.2(c),
respectively.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control"
of a Person means the power, directly or indirectly, either to (a) vote
10% or more of the securities having ordinary voting power for the
election of directors of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by
contract or otherwise.
"Agents": the collective reference to the Syndication Agent, the
Documentation Agent and the Administrative Agent.
"Aggregate Outstanding Extensions of Credit": as to any Lender
with respect to any Type of Loan at any time, an amount equal to the sum
of (a) the aggregate principal amount of all Loans of such Type made by
such Lender then outstanding and (b) in the case of Revolving Credit
Loans, such Lender's Commitment Percentage of the L/C Obligations then
outstanding.
"Agreement": this Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
"Applicable Margin": at any time, the percentages set forth on
Schedule II under the relevant column heading opposite the level of the
Debt Ratio most recently determined; provided that (a) the Applicable
Margins commencing on the Closing Date shall be those set forth in
Schedule II opposite a Debt Ratio captioned "greater than or equal to
4.75" until the first Adjustment Date, (b) the Applicable Margins
determined for any Adjustment Date (including the first Adjustment Date)
shall remain in effect until a subsequent Adjustment Date for which the
Debt Ratio falls within a different level and (c) if the financial
statements and related compliance certificate for any fiscal period are
not delivered by the date due pursuant to subsections 6.1 and 6.2, the
Applicable Margins shall be (i) for the first 35 days subsequent to such
due date, the Applicable Margin in effect prior to such due date and
(ii) thereafter, those set forth opposite a Debt Ratio captioned
"greater than or equal to 4.75," in either case, until the date of
delivery of such financial statements and compliance certificate.
"Application": an application, in such form as the Issuing Lender
may specify from time to time, requesting the Issuing Lender to issue a
Letter of Credit.
"Asset Contribution": as defined in the recitals to this
Agreement.
"Asset Sale": any sale, sale-leaseback, or other disposition by
any Person or any Subsidiary thereof of any of its property or assets,
including the stock of any Subsidiary of such Person, except sales and
dispositions permitted by subsection 7.6 other than subsection 7.6(b) or
(e).
"Assignee": as defined in subsection 10.6(c).
"Attributable Debt": in respect of a sale and leaseback transaction
means, at the time of determination, the present value (discounted at
the rate of interest implicit in such transaction, determined in
accordance with GAAP) of the obligation of the lessee for net rental
payments during the remaining term of the lease included in such sale
and leaseback transaction (including any period for which such lease has
been extended or may, at the option of the lessor, be extended).
"Available Commitment": as to any Lender and any Type of Loan, at
any time, an amount equal to the excess, if any, of (a) such Lender's
Commitment with respect to such Type of Loan over (b) such Lender's
Aggregate Outstanding Extensions of Credit with respect to such Type of
Loan.
"Base Rate": means, for any day, the higher of: (a) 0.50% per
annum above the latest Federal Funds Rate; and (b) the rate of interest
in effect for such day as publicly announced from time to time by BOA in
San Francisco, California, as its "reference rate." (The "reference
rate" is a rate set by BOA based upon various factors including BOA's
costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate.)
"Base Rate Loans": Loans the rate of interest applicable to which
is based upon the Base Rate.
"BOA": as defined in the recitals to this Agreement.
"Borrower Pledge and Security Agreement": the Borrower Pledge and
Security Agreement substantially in the form of Exhibit B-4, to be
executed and delivered by the Borrower, as the same may be amended,
supplemented or otherwise modified.
"Borrowing Date": any Business Day specified in a notice pursuant
to subsection 2.2 as a date on which the Borrower requests the Lenders
to make Loans hereunder.
"Business": as defined in subsection 4.16.
"Business Day": a day other than a Saturday, Sunday or other day
on which commercial banks in New York City or San Francisco, California
are authorized or required by law to close and, if the applicable
Business Day relates to Eurodollar Loans, any day on which dealings are
carried on in the applicable London interbank market.
"Capital Expenditures" shall mean, for any fiscal period, the
aggregate of all expenditures that, in conformity with GAAP (but
excluding capitalized interest), are or are required to be included as
additions during such period to property, plant or equipment reflected
on the consolidated balance sheet of the Borrower and its Subsidiaries,
excluding the expenditures relating to the Transaction.
"Capital Lease Obligations": of any Person as of the date of
determination, the aggregate liability of such Person under Financing
Leases reflected on a balance sheet of such Person under GAAP.
"Capital Partners": as defined in the recitals to this Agreement.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"Cash Consideration": as defined in the recitals to this
Agreement.
"Cash Equivalents": (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured
by the United States Government or any agency thereof, (b) certificates
of deposit and time deposits with maturities of one year or less from
the date of acquisition and overnight bank deposits of any Lender or of
any commercial bank having capital and surplus in excess of
$500,000,000, (c) repurchase obligations of any Lender or of any
commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 90 days with respect to
securities issued or fully guaranteed or insured by the United States
Government, (d) commercial paper of a domestic issuer rated at least A-2
by Standard and Poor's Rating Group ("S&P") or P-2 by Xxxxx'x Investors
Service, Inc. ("Moody's"), or carrying an equivalent rating by a
nationally recognized rating agency if both of S&P and Moody's cease
publishing ratings of investments, (e) securities with maturities of one
year or less from the date of acquisition issued or fully guaranteed by
any state, commonwealth or territory of the United States, by any
political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities
of which state, commonwealth, territory, political subdivision, taxing
authority or foreign government (as the case may be) are rated at least
A by S&P or A by Moody's, (f) securities with maturities of one year or
less from the date of acquisition backed by standby letters of credit
issued by any Lender or any commercial bank satisfying the requirements
of clause (b) of this definition or (g) shares of money market mutual or
similar funds which invest exclusively in assets satisfying the
requirements of clauses (a) through (f) of this definition.
"Change of Control": the occurrence of any of the following
events:
(i) the Principals and their Related Parties, as a whole,
shall at any time cease to own, directly or indirectly, 60% of the
Capital Stock of Holdings, determined on a fully diluted basis; or
(ii) the Principals or their Related Parties, as a whole,
shall at any time cease to own, determined on a fully diluted
basis, sufficient shares of the Capital Stock of Holdings,
determined on a fully diluted basis, to elect a majority of the
Board of Directors of Holdings and the Borrower or otherwise cease
to have the right or ability, by voting power, contract or
otherwise, to elect or designate for election a majority of the
Board of Directors of Holdings and the Borrower; or
(iii) Holdings shall, at any time, cease to own 100% of the
Capital Stock of the Borrower; or
(iv) a "Change of Control" shall have occurred under the
Indenture.
"Class": (i) Lenders having Tranche A Term Loan Exposure and/or
Revolving Loan Exposure (taken together as a single class), (ii) Lenders
having Tranche B Term Loan Exposure and (iii) Lenders having Tranche C
Term Loan Exposure.
"Closing Date": the date on which the conditions precedent set
forth in subsection 5.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all assets of the Credit Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by
any Security Document.
"Commitment": as to any Lender, such Lender's Tranche A Term Loan
Commitment, Tranche B Term Loan Commitment, Tranche C Term Loan
Commitment and Revolving Credit Commitment.
"Commitment Letter": the Commitment Letter, dated as of April 2,
1997, among Holdings, the Borrower and LCPI, as the same may be amended,
supplemented or otherwise modified from time to time.
"Commitment Fee Rate": at any time, the rates per annum set forth
on Schedule II under the relevant column heading opposite the level of
the Debt Ratio most recently determined; provided that (a) the
Commitment Fee Rate commencing on the Closing Date shall be that set
forth in Schedule II opposite a Debt Ratio captioned "greater than or
equal to 4.75" until the first Adjustment Date, (b) the Commitment Fee
Rate determined for any Adjustment Date (including the first Adjustment
Date) shall remain in effect until a subsequent Adjustment Date for
which the Debt Ratio falls within a different level and (c) if the
financial statements and related compliance certificate for any fiscal
period are not delivered by the date due pursuant to subsections 6.1 and
6.2, the Commitment Fee Rate shall be (i) for the first 35 days
subsequent to such due date, the Commitment Fee Rate in effect prior to
such due date and (ii) thereafter, that set forth opposite a Debt Ratio
captioned "greater than or equal to 4.75," in either case, until the
date of delivery of such financial statements and compliance
certificate.
"Commitment Percentage": as to the Commitment of any Lender with
respect to any Type of Loan at any time, the percentage which the
Commitment of such Lender with respect to such Type of Loan then
constitutes of the aggregate Commitments with respect to such Type of
Loan (or, at any time after such Commitments shall have expired or
terminated, the percentage which the aggregate amount of the Aggregate
Outstanding Extensions of Credit of such Lender with respect to such
Type of Loan constitutes of the aggregate amount of the Aggregate
Outstanding Extensions of Credit of all Lenders with respect to such
Type of Loan).
"Commitment Period": the period from and including the date hereof
to but not including the Revolving Loan Termination Date or such earlier
date on which the Revolving Credit Commitments shall terminate as
provided herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes
the Borrower and which is treated as a single employer under Section 414
(b) or (c) of the Code.
"Consolidated EBITDA": as of the last day of any fiscal quarter,
Consolidated Net Income (excluding without duplication, (x)
extraordinary gains and losses in accordance with GAAP, (y) gains and
losses in connection with asset dispositions whether or not constituting
extraordinary gains and losses and (z) gains or losses on discontinued
operations) for such period, plus (i) Consolidated Cash Interest Expense
for such period, plus (ii) to the extent deducted in computing such
Consolidated Net Income, the sum of income taxes, depreciation and
amortization for the four fiscal quarters ended on such date; provided
that for any calculation of Consolidated EBITDA for any fiscal period
ending during the first three full fiscal quarters following March 31,
1997, Consolidated EBITDA shall be deemed to be Consolidated EBITDA from
March 31, 1997 to the last day of such period multiplied by a fraction
the numerator of which is 365 and the denominator of which is the number
of days from March 31, 1997 to the last day of such period.
"Consolidated Cash Interest Expense": as of the last day of any
fiscal quarter, the amount of interest expense, payable in cash, of the
Borrower and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP for the four fiscal quarters
ended on such date; provided that for any calculation of Consolidated
Cash Interest Expense for any fiscal period ending during the first
three full fiscal quarters following March 31, 1997, Consolidated Cash
Interest Expense shall be deemed to be Consolidated Cash Interest
Expense from March 31, 1997 to the last day of such period multiplied by
a fraction the numerator of which is 365 and the denominator of which is
the number of days from March 31, 1997 to the last day of such period.
"Consolidated Net Income": for any fiscal period, net income of
the Borrower and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Total Debt": at any date, all Indebtedness of the
Borrower and its Subsidiaries outstanding on such date for borrowed
money or the deferred purchase price of property, including, without
limitation, in respect of Financing Leases but excluding Indebtedness
permitted pursuant to subsection 7.2(h).
"Consolidated Working Capital": at any date, the excess of (a) the
sum of all amounts (other than cash and Cash Equivalents) that would, in
accordance with GAAP, be set forth opposite the caption "total current
assets" (or any like caption) on a consolidated balance sheet of the
Borrower and its Subsidiaries at such date over (b) the sum of all
amounts that would, in accordance with GAAP, be set forth opposite the
caption "total current liabilities" (or any like caption) on a
consolidated balance sheet of the Borrower and its Subsidiaries on such
date (excluding, to the extent it would otherwise be included under
current liabilities, any short-term Consolidated Total Debt and the
current portion of any long-term Consolidated Total Debt).
"Constitutional Documents": as to any Person, the articles or
certificate of incorporation and by-laws, partnership agreement or other
organizational documents of such Person.
"Contingent Purchase Price Receipts": at any date, the aggregate
cash received by Holdings, the Borrower or any of their Subsidiaries in
respect of any purchase price adjustment made pursuant to, or in
connection with, the Transaction Agreement subsequent to the date
hereof.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Documents": this Agreement, the Notes, the Applications,
the Guarantees and the Security Documents.
"Credit Parties": the Borrower, Holdings, and each Subsidiary of
the Borrower which is a party to a Credit Document.
"Debt Ratio": as at the last day of any fiscal quarter, the ratio
of (a) Consolidated Total Debt on such date to (b) Consolidated EBITDA.
"Default": any of the events specified in Section 8, whether or
not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Environmental Laws": any and all laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, or other legally
enforceable requirement (including, without limitation, common law) of
any foreign government, the United States, or any state, local,
municipal or other governmental authority, regulating, relating to or
imposing liability or standards of conduct concerning protection of the
environment or of human health as affected by the environment as has
been, is now, or may at any time hereafter be, in effect, including, but
not limited to, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C. Sections 9601 et
seq.; the Toxic Substance Control Act, 15 U.S.C. Sections 9601
et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. Section
1802 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C.
Sections 6901 et seq.; the Clean Water Act; 33 U.S.C. Sections 1251
et seq.; the Clean Air Act, 42 U.S.C. Sections 7401 et seq.; or other
similar federal and/or state environmental laws.
"Environmental Permits": any and all permits, licenses,
registrations, notifications, exemptions and any other authorization
required under any applicable Environmental Law.
"Equity Documents": the Stockholder Agreement, the Subscription
Agreements and the Option Agreements.
"Equity Investment": as defined in the recitals to this Agreement.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": means for any day for any
Interest Period the maximum reserve percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1%) in effect on such day (whether
or not applicable to any Lender) under regulations issued from time to
time by the FRB for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred to
as "Eurocurrency liabilities").
"Eurodollar Loans": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
"Eurodollar Rate": means, for any Interest Period, with respect to
Eurodollar Loans comprising part of the same borrowing, the rate of
interest per annum (rounded upward to the next 1/16th of 1%) determined
by the Administrative Agent as follows:
Eurodollar Rate = LIBOR
1.00 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage": for any day for any Interest
Period the maximum reserve percentage (expressed as a decimal, rounded
upward to the next 1/100th of 1%) in effect on such day (whether or not
applicable to any Lender) under regulations issued from time to time by
the FRB for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities").
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the
excess of (a) the sum, without duplication, of (i) Consolidated Net
Income for such fiscal year, (ii) the net decrease, if any, in
Consolidated Working Capital during such fiscal year, (iii) to the
extent deducted in computing such Consolidated Net Income, non-cash
interest expense, depreciation and amortization for such fiscal year,
(iv) extraordinary non-cash losses during such fiscal year subtracted in
the determination of Consolidated Net Income for such fiscal year,
(v) change in deferred tax liability of the Borrower for such fiscal
year, (vi) non-cash losses in connection with asset dispositions whether
or not constituting extraordinary losses, (vii) non-cash ordinary losses
and (viii) Contingent Purchase Price Receipts in excess of $10,000,000
over (b) the sum, without duplication, of (i) the aggregate amount of
permitted cash Capital Expenditures made by the Borrower and its
Subsidiaries during such fiscal year, (ii) the net increase, if any, in
Consolidated Working Capital during such fiscal year, (iii) the
aggregate amount of payments of principal in respect of any Indebtedness
not prohibited hereunder during such fiscal year (other than prepayments
of Revolving Credit Loans not accompanied by reductions of the
Commitments), (iv) deferred income tax credit of the Borrower for such
fiscal year, (v) extraordinary non-cash gains during such fiscal year
added in the determination of Consolidated Net Income for such fiscal
year, (vi) non-cash gains in connection with asset dispositions whether
or not constituting extraordinary gains and (vii) non-cash ordinary
gains.
"Excess Cash Flow Payment Date": in respect of any fiscal year,
the date on which the Borrower is required to deliver audited financial
statements for such fiscal year to each Lender pursuant to subsection
6.1(a).
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Final Maturity Date": March 31, 2006.
"Foreign Subsidiary": any Subsidiary which is organized under the
laws of any jurisdiction outside the United States or under the laws of
the U.S. Virgin Islands.
"FRB": means the Board of Governors of the Federal Reserve System,
and any governmental authority succeeding to any of its principal
functions.
"GAAP": generally accepted accounting principles in the United
States of America in effect from on the Closing Date.
"GC Notice Recipient": with respect to any Government Contract,
the true and correct (x) contracting officer, or the head of the
respective U.S. government department or agency, (y) surety or sureties
upon the bond or bonds, if any, in connection with such Government
Contract, and (z) disbursing officer, if any designated in such
Government Contract to make payment.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, reimbursement
obligations under letters of credit and any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may
be liable are not stated or determinable, in which case the amount of
such Guarantee Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Guarantees": the Parent Guarantee and the Subsidiary Guarantees.
"Indebtedness": of any Person at any date, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities incurred in
the ordinary course of business and payable in accordance with customary
practices and accrued expenses incurred in the ordinary course of
business), (b) any other indebtedness of such Person which is evidenced
by a note, bond, debenture or similar instrument, (c) all obligations of
such Person under Financing Leases, (d) all obligations of such Person
in respect of acceptances issued or created for the account of such
Person, (e) all liabilities secured by any Lien on any property owned by
such Person even though such Person has not assumed or otherwise become
liable for the payment thereof and (f) all Attributable Debt of such
Person with respect to sale and leaseback transactions of such Person.
"Indenture": the Indenture between the Borrower and The Bank of
New York, as trustee, pursuant to which the Subordinated Notes are
issued.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245
of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any Base Rate Loan, the last
Business Day of each March, June, September and December, (b) as to any
Eurodollar Loan having an Interest Period of three months or less, the
last Business Day of such Interest Period, and (c) as to any Eurodollar
Loan having an interest period longer than three months, (i) each
Business Day which is three months or a whole multiple thereof after the
first day of such Interest Period and (ii) the last Business Day of such
Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of borrowing
or notice of conversion, as the case may be, given with respect
thereto; and
(b) thereafter, each period commencing on the last day of the
preceding Interest Period applicable to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the
Borrower by irrevocable notice to the Administrative Agent not less
than three Business Days prior to the last day of the then current
Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Loan
would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business
Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding Business
Day;
(ii) any Interest Period for any Loan that would otherwise
extend beyond the Termination Date of such Loan shall end on the
Termination Date of such Loan;
(iii) any Interest Period pertaining to a Eurodollar Loan
that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the
calendar month in which such Interest Period would otherwise be
scheduled to end) shall end on the last Business Day of the
appropriate calendar month; and
(iv) no Interest Period with respect to any portion of any
Type of Term Loan shall extend beyond a date on which the Borrower
is required to make a scheduled payment of principal of Term Loans
of such Type unless the sum of (a) the aggregate principal amount
of Term Loans of such Type that are Base Rate Loans plus (b) the
aggregate principal amount of Term Loans of such Type that are
Eurodollar Rate Loans with Interest Periods expiring on or before
such date equals or exceeds the principal amount required to be
paid on Term Loans of such Type on such date.
"Interest Rate Agreement": any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other
similar agreement or arrangement.
"Interest Rate Agreement Obligations": the obligations of the
Borrower or any of its Subsidiaries to make payments to counterparties
under Interest Rate Agreements in the event of the occurrence of a
termination event thereunder.
"Issuing Lender": BOA, in its capacity as issuer of any Letter of
Credit or, at the election of BOA, such other Lender or Lenders that
agree to act as Issuing Lender at the request of the Company.
"LCPI": as defined in the recitals to this Agreement.
"L/C Commitment": $15,000,000.
"L/C Fee Payment Date": the last Business Day of each March, June,
September and December.
"L/C Obligations": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters
of Credit which have not then been reimbursed pursuant to subsection
3.5.
"L/C Participants": the collective reference to all the Revolving
Credit Lenders other than the Issuing Lender.
"Lender" and "Lenders": the persons identified as Lenders and
listed on the signature pages of this Agreement (including the Issuing
Bank and the Swing Line Lender), together with their successors and
permitted assigns pursuant to subsection 10.6; provided that the term
"Lenders", when used in the context of a particular Commitment, shall
mean Lenders having that Commitment.
"Letters of Credit": as defined in subsection 3.1.
"LIBOR": the rate of interest per annum determined by the
Administrative Agent to be the arithmetic mean (rounded upward to the
next 1/16th of 1%) of the rates of interest per annum notified to the
Administrative Agent by each Reference Bank as the rate of interest at
which dollar deposits in the approximate amount of the amount of the
Loan to be made or continued as, or converted into, a Eurodollar Rate
Loan by such Reference Bank and having a maturity comparable to such
Interest Period would be offered to major banks in the London interbank
market at their request at approximately 11:00 a.m. (London time) two
Business Days prior to the commencement of such Interest Period.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Lockheed Xxxxxx Predecessor Businesses": the businesses to be
transferred by the Seller and its Subsidiaries to the Borrower
pursuant to the Transaction Agreement.
"Loral Acquired Businesses": that portion of the Lockheed Xxxxxx
Predecessor Businesses consisting of the Seller's Wide Band Systems
Division and Products Group, comprised of ten autonomous
operations, acquired by the Seller effective April 1, 1996, as part
of the acquisition by the Seller of the defense electronics
business of Loral Corporation.
"Material Adverse Effect": a material adverse effect on (a) the
business, assets, operations, property or condition (financial or
otherwise) of Holdings and its Subsidiaries taken as a whole, (b) the
validity or enforceability of this or any of the other Credit Documents
or the rights or remedies of the Agents or the Lenders hereunder or
thereunder or (c) the Transaction.
"Materials of Environmental Concern": any hazardous or toxic
substances, materials or wastes, defined or regulated as such in or
under, or that could give rise to liability under, any applicable
Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls, urea-formaldehyde insulation, gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products.
"Mortgages": the collective reference to the mortgages and deeds
of trust to be executed and delivered by the Borrower or the appropriate
Subsidiary, substantially in the forms of Exhibit C-1 and C-2 (with such
changes therein as may be required to reflect different laws and
practices in the various jurisdictions in which the Mortgages are to be
recorded), covering the parcels of real property identified in Schedule
III, as the same may be amended, supplemented or otherwise modified from
time to time.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Proceeds": the aggregate cash proceeds (including Cash
Equivalents) received by Holdings or any of its Subsidiaries in respect
of:
(a) any issuance by the Borrower or any of its Subsidiaries
of Indebtedness after the Closing Date;
(b) any Asset Sale; and
(c) any cash payments received in respect of promissory notes
or other evidences of indebtedness delivered to Holdings or such
Subsidiary in respect of an Asset Sale;
in each case net of (without duplication) (i), (A) in the case of an
Asset Sale, the amount required to repay any Indebtedness (other than
the Loans) secured by a Lien on any assets of Holdings or a Subsidiary
of Holdings that are sold or otherwise disposed of in connection with
such Asset Sale and (B) reasonable and appropriate amounts established
by Holdings or such Subsidiary, as the case may be, as a reserve against
liabilities associated with such Asset Sale and retained by Holdings or
such Subsidiary, (ii) the reasonable expenses (including legal fees and
brokers' and underwriters' commissions, lenders fees, credit enhancement
fees, accountants' fees, investment banking fees, survey costs, title
insurance premiums and other customary fees, in any case, paid to third
parties or, to the extent permitted hereby, Affiliates) incurred in
effecting such issuance or sale and (iii) any taxes reasonably
attributable to such sale and reasonably estimated by Holdings or such
Subsidiary to be actually payable.
"Non-Excluded Taxes": as defined in subsection 2.15.
"Non-U.S. Lender": as defined in subsection 2.15(b).
"Notes": The Tranche A Term Notes, the Tranche B Term Notes, the
Tranche C Term Notes, the Revolving Credit Notes and the Swing Line Note
(or any of them).
"Novation Agreement": as defined in the Transaction Agreement.
"Obligations": as defined in the Guarantees and the Security
Documents.
"Option Agreements": the Option Agreements between Holdings and
each of Xxxxx X. Xxxxx and Xxxxxx X. XxXxxxx, each dated as of the
Closing Date.
"Parent Distributions": as defined in the Parent Guarantee.
"Parent Guarantee": the Parent Guarantee substantially in the form
of Exhibit B-1, to be executed and delivered by Holdings, as the same
may be amended, supplemented or otherwise modified.
"Parent Pledge and Security Agreement": the Parent Pledge and
Security Agreement substantially in the form of Exhibit B-3, to be
executed and delivered by Holdings, as the same may be amended,
supplemented or otherwise modified.
"Participant": as defined in subsection 10.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any successor thereto.
"Permitted Liens": Liens permitted to exist under subsection 7.3.
"Permitted Stock Payments": (A) dividends by the Borrower to
Holdings in amounts equal to the amounts required for Holdings to pay
franchise taxes and other fees required to maintain its legal existence
and provide for other operating costs of up to $1,000,000 per fiscal
year, (B) dividends by the Borrower to Holdings in amounts equal to
amounts required for Holdings to pay federal, state and local income
taxes to the extent such income taxes are actually due and owing;
provided that the aggregate amount paid under this clause (B) does not
exceed the amount that the Borrower would be required to pay in respect
of the income of the Borrower and its Subsidiaries if the Borrower were
a stand alone entity that was not owned by Holdings, and (C) from and
after May 1, 1999, dividends by the Borrower to Holdings payable solely
out of Excess Cash Flow which is not required to be applied to the
prepayment of Loans and the permanent reduction of Commitments pursuant
to subsection 2.6(a)(iii), provided that (i) as of the last day of the
most recently completed fiscal quarter the Debt Ratio is less than or
equal to 3.5 to 1, (ii) the aggregate amount of dividends paid by the
Borrower to Holdings under this clause (C) since the date of this
Agreement does not exceed $5,000,000 and (iii) Holdings promptly uses
the proceeds of such dividends to repurchase Capital Stock of Holdings.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan covered by
ERISA and in respect of which the Borrower or any Commonly Controlled
Entity maintains, administers, contributes to or is required to
contribute to, or under which the Borrower or any Commonly Controlled
Entity may incur any liability.
"Principals": each of Xxxxxx Brothers Holdings, Inc., Capital
Partners, the Seller, Xxxxx X. Xxxxx and Xxxxxx X. XxXxxxx.
"Pro Forma Financial Statements": as defined in subsection 4.1(c).
"Properties": as defined in subsection 4.17.
"Purchase Agreement": the Purchase Agreement, dated as of April
25, 1997, among the Borrower and each of Xxxxxx Brothers, Inc. and
BancAmerica Securities, Inc.
"Receivables": as defined in the Security Documents.
"Reference Bank": the Bank of America NT & SA.
"Register": as defined in subsection 10.6(d).
"Registration Rights Agreement": the Registration Rights
Agreement, dated as of April 30, 1997, among the Borrower and each of
Xxxxxx Brothers, Inc. and BancAmerica Securities, Inc.
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to subsection 3.5 for amounts
drawn under Letters of Credit.
"Refunded Swing Line Loan": as defined in subsection 2.1(b)(iii).
"Related Party": with respect to the Principals, (a) any
controlling stockholder, 51% (or more) owned Subsidiary, or spouse or
immediate family member (in the case of an individual) of such Principal
or (b) a trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially
holding an 51% or more controlling interest of which consist of the
Principals and/or such other Persons referred to in the immediately
preceding clause (a).
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty-day notice
period is waived under the regulations of the PBGC.
"Required Lenders": at any time, Lenders the Commitment
Percentages for all Types of Loans of which aggregate more than 50%.
"Requirement of Law": as to any Person, the Constitutional
Documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any
of its property or to which such Person or any of its property is
subject.
"Requisite Class Lenders": at any time, (a) for the Class Lenders
having Tranche A Term Loan Exposure, Lenders having or holding 66 2/3%
of the aggregate Tranche A Term Loan Exposure of all Lenders, (b) for
the Class Lenders having Revolving Credit Loan Exposure, Lenders having
or holding 66 2/3% of the aggregate Revolving Credit Loan Exposure of
all Lenders, (c) for the Class Lenders having Tranche B Term Loan
Exposure, Lenders having or holding 66 2/3% of the aggregate Tranche B
Term Loan Exposure of all Lenders and (d) for the Class Lenders having
Tranche C Term Loan Exposure, Lenders having or holding 66 2/3% of the
aggregate Tranche C Term Loan Exposure of all Lenders.
"Responsible Officer": the chief executive officer, the president
or vice president of the Borrower or, with respect to financial matters,
the chief financial officer, vice president--finance or treasurer of the
Borrower.
"Restricted Government Contracts": as defined in the Security
Documents.
"Revolving Credit Commitment": the commitment of a Lender, as set
forth on Schedule I hereto, to make Revolving Credit Loans to the
Borrower pursuant to Subsection 2.1(a)(iv) and, to issue and/or purchase
participations in Letters of Credit pursuant to Section 3; and
"Revolving Credit Commitments" means such commitments of all Lenders in
the aggregate, which shall initially be $100,000,000.
"Revolving Credit Lender": any Lender or Lenders having a Revolving
Credit Commitment or a Revolving Credit Loan outstanding.
"Revolving Credit Loans": the Loans made by Revolving Credit
Lenders to the Borrower pursuant to Subsection 2.1(a)(iv).
"Revolving Credit Loan Exposure": with respect to any Lender as of
date of determination, (i) if there are no outstanding Letters of Credit
or Revolving Credit Loans, that Lender's Revolving Credit Commitment,
and (ii) otherwise, the sum of (a) the aggregate outstanding principal
amount of the Revolving Credit Loans of that Lender plus (b) in the
event that Lender is an Issuing Lender, the aggregate Letter of Credit
Usage in respect of all Letters of Credit issued by that Lender (in each
case net of any participations purchased by other Lenders in such
Letters of Credit or any unreimbursed drawings thereunder) plus (c) in
the event that such Lender is the Swing Line Lender, the aggregate
principal amount of Swing Line Loans made by such Lender then
outstanding (net of any participations purchased by other Lenders in
such Swing Line Loans) plus (d) the aggregate amount of all
participations purchased by that Lender in any outstanding Swing Line
Loans or Letters of Credit or any unreimbursed drawings under any
Letters of Credit.
"Revolving Credit Notes": (i) the promissory notes of the Borrower
issued pursuant to subsection 2.5(i)(iv) on the Closing Date to evidence
the Revolving Credit Loans of any Lender and (ii) any promissory notes
issued by the Borrower pursuant to Section 10.6(d) in connection with
assignments of the Revolving Credit Commitments and Revolving Credit
Loans of any Lenders, in each case substantially in the form of Exhibit
A-4 annexed hereto, as they may be amended, supplemented or otherwise
modified from time to time.
"Revolving Loan Termination Date": March 31, 2003.
"Security Documents": the collective reference to the Parent
Pledge and Security Agreement, the Borrower Pledge and Security
Agreement and the Subsidiary Pledge and Security Agreement, the
Mortgages and all other security documents hereafter delivered to the
Administrative Agent granting a Lien on any asset or assets of any
Person to secure the obligations and liabilities of the Borrower
hereunder and under any of the other Credit Documents or to secure any
guarantee of any such obligations and liabilities.
"Securities Offering": as defined in the recitals to this
Agreement.
"Seller": as defined in the recitals to this Agreement.
"Similar Business": a business, at least a majority of whose
revenues in the most recently ended calendar year were derived from (i)
the sale of defense products, electronics, communications systems,
aerospace products, avionics products and/or communications products,
(ii) any services related thereto, (iii) any business or activity that
is reasonably similar thereto or a reasonable extension, development or
expansion thereof or ancillary thereto, and (iv) any combination of any
of the foregoing.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Stockholders Agreement": the Stockholders Agreement, dated as of
April 30, 1997, by and among the Borrower, Holdings, the Seller, the
Principals and any other party that may from time to time become a party
thereto as provided therein, as the same may be amended, supplemented or
otherwise modified from time to time.
"Subordinated Debt": indebtedness outstanding under the
Subordinated Notes.
"Subordinated Debt Documents": the Indenture, the Registration
Rights Agreement, the Purchase Agreement and the Subordinated Notes.
"Subordinated Notes": the Borrower's 10 3/8% Senior Subordinated
Notes, due 2007 (the "Initial Subordinated Notes"), issued on the
Closing Date, and the subordinated notes of the Borrower, having the
same terms as the Initial Subordinated Notes, issued in exchange for the
Initial Subordinated Notes as contemplated by the Subordinated Debt
Documents.
"Subscription Agreements": the Common Stock Subscription
Agreements between Holdings and each of Xxxxx X. Xxxxx, Xxxxxx X.
XxXxxxx, Capital Partners and the Seller, each dated as of the Closing
Date.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, directly or indirectly, by such Person. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Subsidiary Guarantees": the Subsidiary Guarantees substantially
in the form of Exhibit B-2, to be executed and delivered by the
Borrower's Subsidiaries, as the same may be amended, supplemented or
otherwise modified.
"Subsidiary Pledge and Security Agreement": the Subsidiary Pledge
and Security Agreement substantially in the form of Exhibit B-5, to be
executed and delivered by the Borrower's Subsidiaries, as the same may
be amended, supplemented or otherwise modified.
"Swing Line Lender": means Bank of America NT & SA.
"Swing Line Loans": as defined in Section 2.1(b).
"Term Loan Commitment or Term Loan Commitments": the commitments
of a Lender to make any Term Loans pursuant to subsection 2.1(a); and
Term Loan Commitments means such commitments of all Lenders in the
aggregate, which shall initially be $175,000,000.
"Term Loan Exposure": with respect to a Lender of a Type of Term
Loan as of any date of determination, (i) prior to the termination of
all of a Lender's Commitment with respect to the Term Loans of such
Type, that Lender's Commitment with respect to Term Loans of such Type
(or any portion thereof that has not been terminated) plus the
outstanding principal amount of the Term Loan of such Type of that
Lender, and (ii) after the termination of all of a Lender's Commitment
with respect to the Term Loans of such Type, the outstanding principal
amount of the Term Loan of such Type of that Lender.
"Term Loans": one or more of the Tranche A Term Loans, the Tranche
B Term Loans or the Tranche C Term Loans.
"Termination Date": (i) with respect to Tranche A Term Loans,
March 31, 2003; (ii) with respect to Tranche B Term Loans, March 31,
2005; (iii) with respect to Tranche C Term Loans, March 31, 2006; and
(iv) with respect to Revolving Credit Loans and Swing Line Loans, the
Revolving Credit Termination Date.
"Tranche": the collective reference to Eurodollar Loans the then
current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall
originally have been made on the same day); Tranches may be identified
as "Eurodollar Tranches".
"Tranche A Term Lender": any Lender having a Tranche A Term Loan
Commitment or a Tranche A Term Loan outstanding.
"Tranche A Term Loans": the Loans made by Tranche A Term Lenders
to the Borrower pursuant to subsection 2.1(a)(i).
"Tranche A Term Loan Commitment": the commitment of a Tranche A
Term Lender, as set forth on Schedule I hereto, to make a Tranche A Term
Loan to the Borrower pursuant to subsection 2.1(a)(i); and "Tranche A
Term Loan Commitments" means such commitments of all Tranche A Term
Lenders in the aggregate, which shall initially be $100,000,000.
"Tranche A Term Notes": (i) the promissory notes of the Borrower
issued pursuant to subsection 2.5(i)(i) on the Closing Date to evidence
the Tranche A Term Loans of any Lender and (ii) any promissory notes
issued by the Borrower pursuant to subsection 10.6(d) in connection with
assignments of the Tranche A Term Loan Commitments and Tranche A Term
Loans of any Lender, in each case substantially in the form of Exhibit
A-1 annexed hereto, as they may be amended, supplemented or otherwise
modified from time to time.
"Tranche B Term Lenders": any Lender having a Tranche B Term Loan
Commitment or a Tranche B Term Loan outstanding.
"Tranche B Term Loans": the Loans made by Tranche B Term Lenders
to the Borrower pursuant to subsection 2.1(a)(ii).
"Tranche B Term Loan Commitment": the commitment of a Tranche B
Term Lender to make a Tranche B Term Loan to the Borrower pursuant to
subsection 2.1(a)(ii); and "Tranche B Term Loan Commitments" means such
commitments of all Tranche B Term Lenders in the aggregate, which shall
initially be $45,000,000.
"Tranche B Term Notes": (i) the promissory notes of the Borrower
issued pursuant to subsection 2.5(i)(ii) on the Closing Date to evidence
the Tranche B Term Loans of any Lender and (ii) any promissory notes
issued by the Borrower pursuant to subsection 10.6(d) in connection with
assignments of the Tranche B Term Loan Commitments and Tranche B Term
Loans of any Lender, in each case substantially in the form of
Exhibit A-2 annexed hereto, as they may be amended, supplemented or
otherwise modified from time to time.
"Tranche C Term Lender": any Lender having a Tranche C Term Loan
Commitment or a Tranche C Term Loan outstanding.
"Tranche C Term Loan Commitment": the commitment of a Tranche C
Term Lender, as set forth on Schedule I hereto, to make a Tranche C Term
Loan to the Borrower pursuant to subsection 2.1(a)(iii); and "Tranche C
Term Loan Commitments" means such commitments of all Tranche C Term
Lenders in the aggregate, which shall initially be $30,000,000.
"Tranche C Term Loans": the Loans made by Tranche C Term Lenders to
the Borrower pursuant to subsection 2.1(a)(iii).
"Tranche C Term Notes": (i) the promissory notes of the Borrower
issued pursuant to subsection 2.5(i)(iii) on the Closing Date to
evidence the Tranche C Term Loans of any Lender and (ii) any promissory
notes issued by the Borrower pursuant to subsection 10.6(d) in
connection with assignments of the Tranche C Term Loan Commitments and
Tranche C Term Loans of any Lender, in each case substantially in the
form of Exhibit A-3 annexed hereto, as they may be amended, supplemented
or otherwise modified from time to time.
"Transaction": the transactions contemplated by the Transaction
Documents.
"Transaction Agreement": as defined in the recitals to this
Agreement.
"Transaction Documents": (i) the Transaction Agreement, the
Schedules thereto and the documents set forth on Schedule IV hereto,
(ii) the Equity Documents and (iii) the Subordinated Debt Documents.
"Transferee": as defined in subsection 10.6(f).
"Type": a Revolving Loan, a Tranche A Term Loan, a Tranche B Term
Loan, a Tranche C Term Loan or a Swing Line Loan.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
"U.S. Taxes": any tax, assessment, or other charge or levy and any
liabilities with respect thereto, including any penalties, additions to
tax, fines or interest thereon, imposed by or on behalf of the United
States or any taxing authority thereof.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any Credit Document or any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in any Credit Document, and any certificate
or other document made or delivered pursuant hereto, accounting terms
relating to the Borrower and its Subsidiaries not defined in subsection 1.1
and accounting terms partly defined in subsection 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments. (a) Subject to the terms and conditions hereof,
each Lender severally agrees to make the loans described in this Section
2.1(a) as applicable to the Borrower.
(i) Tranche A Term Loans. Each Tranche A Term Lender
severally agrees to make a term loan to the Borrower on the Closing
Date in an aggregate principal amount which does not exceed the
amount of such Lender's Tranche A Term Loan Commitment. Amounts
borrowed under this subsection 2.1(a)(i) and subsequently repaid
may not be reborrowed.
(ii) Tranche B Term Loans. Each Tranche B Term Lender
severally agrees to make a term loan to the Borrower on the Closing
Date in an aggregate principal amount which does not exceed the
amount of such Lender's Tranche B Term Loan Commitment. Amounts
borrowed under this subsection 2.1(a)(ii) and subsequently repaid
may not be reborrowed.
(iii) Tranche C Term Loans. Each Tranche C Term Lender
severally agrees to make a term loan to the Borrower on the Closing
Date in an aggregate principal amount which does not exceed the
amount of such Lender's Tranche C Term Loan Commitment. Amounts
borrowed under this subsection 2.1(a)(iii) and subsequently repaid
may not be reborrowed.
(iv) Revolving Credit Loans. Each Revolving Credit Lender
severally agrees to make revolving credit loans to the Borrower,
from time to time during the Commitment Period, in an aggregate
principal amount at any one time outstanding which, when added to
the aggregate principal amount of outstanding Swing Line Loans made
by such Lender (or in which such Lender has purchased a
participation) and such Lender's Revolving Credit Commitment
Percentage of the then outstanding L/C Obligations, does not exceed
the amount of such Lender's Revolving Credit Commitment. During
the Commitment Period, the Borrower may use the Revolving Credit
Commitments by borrowing, prepaying the Revolving Credit Loans, in
whole or in part, and reborrowing, all in accordance with the terms
and conditions hereof.
(b) (i) Subject to the terms and conditions hereof, the Swing
Line Lender agrees to make swing line loans (individually, a "Swing Line
Loan"; collectively, the "Swing Line Loans") to the Borrower from time to
time during the Commitment Period in an aggregate principal amount at any one
time outstanding not to exceed $10,000,000; provided, that no Swing Line Loan
shall be made if, after giving effect thereto and to the simultaneous use of
the proceeds thereof, the aggregate principal amount of Revolving Credit
Loans then outstanding plus the aggregate principal amount of Swing Line
Loans then outstanding, plus the aggregate amount of L/C Obligations then
outstanding would exceed the Revolving Credit Commitments of the Revolving
Credit Lenders. Amounts borrowed by the Borrower under this subsection
2.1(b) may be repaid and, through but excluding the Termination Date,
reborrowed. All Swing Line Loans shall be made as Base Rate Loans and may
not be converted into Eurodollar Loans. In order to borrow a Swing Line
Loan, the Borrower shall give the Swing Line Lender, with a copy to the
Administrative Agent, irrevocable notice (which notice must be received by
the Swing Line Lender prior to 12:00 Noon, New York City time) on the
requested Borrowing Date specifying the amount of the requested Swing Line
Loan which shall be in a minimum amount of $500,000 or whole multiples of
$100,000 in excess thereof. The proceeds of the Swing Line Loan will be made
available by the Swing Line Lender to the Borrower at the office of the Swing
Line Lender by crediting the account of the Borrower at such office with such
proceeds.
(ii) The Swing Line Loans shall be evidenced by a promissory
note of the Borrower, substantially in the form of Exhibit A-5 (the "Swing
Line Note"), with appropriate insertions, payable to the order of the Swing
Line Lender and representing the obligation of the Borrower to pay the unpaid
principal amount of the Swing Line Loans, with interest thereon as prescribed
in subsection 2.9. The Swing Line Note shall (i) be dated the Closing Date,
(ii) be stated to mature on the Termination Date and (iii) bear interest,
payable on the dates specified in 2.9, for the period from the date thereof
to the Termination Date on the unpaid principal amount thereof from time to
time outstanding at the applicable interest rate per annum specified in
subsection 2.9.
(iii) The Swing Line Lender, at any time in its sole and
absolute discretion, may on behalf of the Borrower (which hereby irrevocably
directs the Swing Line Lender to act on its behalf) request each Lender,
including the Swing Line Lender, to make a Revolving Credit Loan (which shall
be a Base Rate Loan) in an amount equal to such Lender's Commitment
Percentage with respect to Revolving Credit Loans of such Revolving Credit
Loan (the "Refunded Swing Line Loans") outstanding on the date such notice is
given. Unless any of the events described in subsection 8(f) shall have
occurred (in which event the procedures of subsection 2.1(b)(iv) shall apply)
each Lender shall, not later than 12:00 P.M., New York City time, on the
Business Day next succeeding the date on which such notice is given, make
available to the Swing Line Lender in immediately available funds the amount
equal to the Revolving Credit Loan to be made by such Lender. The proceeds
of such Revolving Credit Loans shall be immediately applied to repay the
Refunded Swing Line Loans. Upon any request by the Swing Line Lender to the
Lender pursuant to this subsection 2.1(b)(iii), the Administrative Agent
shall promptly give notice to the Borrower of such request.
(iv) If prior to the making of a Revolving Credit Loan
pursuant to subsection 2.1(b)(iii) one of the events described in subsection
8(f) shall have occurred, each Lender will, on the date such Loan was to have
been made, purchase an undivided participating interest in the Swing Line
Loans in an amount equal to its Commitment Percentage with respect to
Revolving Credit Loans. Each Lender will immediately transfer to the Swing
Line Lender, in immediately available funds, the amount of its participation.
(v) Whenever, at any time after the Swing Line Lender has
received from any Lender such Lender's participating interest in a Swing Line
Loan, the Swing Line Lender receives any payment on account thereof, the
Swing Line Lender will distribute to such Lender its participating interest
in such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's participating interest
was outstanding and funded); provided, however, that in the event that such
payment received by the Swing Line Lender is required to be returned, such
Lender will return to the Swing Line Lender any portion thereof previously
distributed by the Swing Line Lender to it.
(vi) Each Lender's obligation to purchase participating
interests pursuant to subsection 2.1(b)(iv) shall be absolute and
unconditional and shall not be affected by any circumstance, including,
without limitation, (a) any set-off, counterclaim, recoupment, defense or
other right which such Lender or the Borrower may have against the Swing Line
Lender, any other Lender or anyone else for any reason whatsoever, (b) the
occurrence or continuance of any Default or Event of Default; (c) any adverse
change in the condition (financial or otherwise) of the Borrower; (d) any
breach of this Agreement by the Borrower or any other Lender; or (e) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.
(c) Except for Swing Line Loans, which shall be Base Rate Loans,
the Loans may from time to time be (i) Eurodollar Loans, (ii) Base Rate Loans
or (iii) a combination thereof, as determined by the Borrower and notified to
the Administrative Agent in accordance with subsections 2.2 and 2.7, provided
that no Revolving Credit Loan shall be made as a Eurodollar Loan after the
day that is one month prior to the Termination Date with respect to such
Loan.
2.2 Procedure for Borrowing. The Borrower may borrow under the
Commitments during the Commitment Period on any Business Day, provided that
the Borrower shall give the Administrative Agent irrevocable notice (which
notice must be received by the Administrative Agent prior to (a) 11:00 A.M.,
New York City time, three Business Days prior to the requested Borrowing
Date, if all or any part of the requested Loans are to be initially
Eurodollar Loans, (b) 11:00 A.M., New York City time, on the requested
Borrowing Date in the case of a Swing Line Loan or a Base Rate Loan),
specifying (i) the amount to be borrowed of each Type of Loan, (ii) the
requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, Base Rate Loans or a combination thereof and (iv) if the borrowing is
to be entirely or partly of Eurodollar Loans, the respective lengths of the
initial Interest Periods therefor. Each borrowing under the Commitments
shall be in an amount equal to (x) in the case of Base Rate Loans (other than
Swing Line Loans), $2,000,000 or a whole multiple of $500,000 in excess
thereof (or, if the then Available Commitments are less than $2,000,000, such
lesser amount), (y) in the case of Swing Line Loans, as provided in
subsection 2.1(b)(i) and (z) in the case of Eurodollar Loans, $5,000,000 or a
whole multiple of $1,000,000 in excess thereof. Upon receipt of any such
notice from the Borrower, the Administrative Agent shall promptly notify each
Lender thereof. Each Lender will make the amount of its pro rata share of
each borrowing available to the Administrative Agent for the account of the
Borrower at the office of the Administrative Agent specified in subsection
10.2 prior to 11:00 A.M., New York City time (in the case of Eurodollar
Loans) or 2:30 P.M., New York City time (in the case of Base Rate Loans), on
the Borrowing Date requested by the Borrower in funds immediately available
to the Administrative Agent. Such borrowing will then be made available to
the Borrower by the Administrative Agent crediting the account of the
Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent. All notices given by the Borrower
under this subsection 2.2 may be made by telephonic notice promptly confirmed
in writing.
2.3 Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the first day of the
Commitment Period to and including the Revolving Loan Termination Date,
computed at the Commitment Fee Rate on the average daily amount of the
Available Commitment of such Revolving Credit Lender during the period for
which payment is made, payable quarterly in arrears on the last Business Day
of each March, June, September and December and on the Revolving Loan
Termination Date, commencing on the first of such dates to occur after the
date hereof.
2.4 Termination or Reduction of Revolving Credit Commitments. The
Borrower shall have the right, upon not less than three Business Days'
written notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time, to reduce the amount of the Revolving
Credit Commitments ratably among the Revolving Credit Lenders; provided that
no such termination or reduction shall be permitted if, after giving effect
thereto and to any prepayments of the Revolving Credit Loans made on the
effective date thereof, the aggregate principal amount of the Revolving
Credit Loans then outstanding, when added to the then outstanding L/C
Obligations and the outstanding Swing Line Loans, would exceed the Revolving
Credit Commitments then in effect. Any such reduction shall be in an amount
equal to $2,000,000 or a whole multiple of $500,000 in excess thereof and
shall reduce permanently the Revolving Credit Commitments then in effect.
2.5 Repayment of Loans; Evidence of Debt.
(a) Scheduled Payments of Tranche A Term Loans. The
Borrower shall make principal payments on the Tranche A Term Loans on March
31, June 30, September 30 and December 31 of each year, commencing on June
30, 1997, in the amounts set forth opposite the corresponding Payment Period
as follows:
Scheduled Repayment
Payment Period of Tranche A Term Loans
-------------- -----------------------
Closing Date - 6/30/97 $ 800,000
7/1/97 - 9/30/97 800,000
10/1/97 - 12/31/97 800,000
1/1/98 - 3/31/98 800,000
4/1/98 - 6/30/98 800,000
7/1/98 - 9/30/98 1,250,000
10/1/98 - 12/31/98 1,250,000
1/1/99 - 3/31/99 1,250,000
4/1/99 - 6/30/99 1,250,000
7/1/99 - 9/30/99 3,750,000
10/1/99 - 12/31/99 3,750,000
1/1/00 - 3/31/00 3,750,000
4/1/00 - 6/30/00 3,750,000
7/1/00 - 9/30/00 5,250,000
10/1/00 - 12/31/00 5,250,000
1/1/01 - 3/31/01 5,250,000
4/1/01 - 6/30/01 5,250,000
7/1/01 - 9/30/01 6,750,000
10/1/01 - 12/31/01 6,750,000
1/1/02 - 3/31/02 6,750,000
4/1/02 - 6/30/02 6,750,000
7/1/02 - 9/30/02 9,333,333.33
10/1/02 - 12/31/02 9,333,333.33
1/1/03 - 3/31/03 9,333,333.34
$ 100,000,000;
provided that the scheduled installments of principal of the Tranche A Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Term Loans in accordance with subsection 2.6 (as
provided in such subsection); and provided further that the Tranche A Term
Loans and all other amounts owed hereunder with respect to the Tranche A Term
Loans shall be paid in full no later than March 31, 2003, and the final
installment payable by the Borrower in respect of the Tranche A Term Loans on
such date shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by the Borrower under
this Agreement with respect to the Tranche A Term Loans.
(b) Scheduled Payments of Tranche B Term Loans. The
Borrower shall make principal payments on the Tranche B Term Loans on March
31, June 30, September 30 and December 31 of each year, commencing on June
30, 1997, in the amounts set forth opposite the corresponding Payment Period
as follows:
Scheduled Repayment
Payment Period of Tranche B Term Loans
-------------- -----------------------
Closing Date - 6/30/97 $ 100,000
7/1/97 - 9/30/97 100,000
10/1/97 - 12/31/97 100,000
1/1/98 - 3/31/98 100,000
4/1/98 - 6/30/98 100,000
7/1/98 - 9/30/98 125,000
10/1/98 - 12/31/98 125,000
1/1/99 - 3/31/99 125,000
4/1/99 - 6/30/99 125,000
7/1/99 - 9/30/99 125,000
10/1/99 - 12/31/99 125,000
1/1/00 - 3/31/00 125,000
4/1/00 - 6/30/00 125,000
7/1/00 - 9/30/00 125,000
10/1/00 - 12/31/00 125,000
1/1/01 - 3/31/01 125,000
4/1/01 - 6/30/01 125,000
7/1/01 - 9/30/01 125,000
10/1/01 - 12/31/01 125,000
1/1/02 - 3/31/02 125,000
4/1/02 - 6/30/02 125,000
7/1/02 - 9/30/02 125,000
10/1/02 - 12/31/02 125,000
1/1/03 - 3/31/03 125,000
4/1/03 - 6/30/03 125,000
7/1/03 - 9/30/03 5,000,000
10/1/03 - 12/31/03 5,000,000
1/1/04 - 3/31/04 5,000,000
4/1/04 - 6/30/04 5,000,000
7/1/04 - 9/30/04 7,333,333.33
10/1/04 - 12/31/04 7,333,333.33
1/1/05 - 3/31/05 7,333,333.33
$ 45,000,000;
provided that the scheduled installments of principal of the Tranche B Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Term Loans in accordance with subsection 2.6 (as
provided in such subsection); and provided further that the Tranche B Term
Loans and all other amounts owed hereunder with respect to the Tranche B Term
Loans shall be paid in full no later than March 31, 2005, and the final
installment payable by the Borrower in respect of the Tranche B Term Loans on
such date shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by the Borrower under
this Agreement with respect to the Tranche B Term Loans.
(c) Scheduled Payments of Tranche C Term Loans. The
Borrower shall make principal payments on the Tranche C Term Loans on March
31, June 30, September 30 and December 31 of each year, commencing on June
30, 1997, in the amounts set forth opposite the corresponding Payment Period
as follows:
Scheduled Repayment
Payment Period of Tranche C Term Loans
-------------- -----------------------
Closing Date - 6/30/97 $ 100,000
7/1/97 - 9/30/97 100,000
10/1/97 - 12/31/97 100,000
1/1/98 - 3/31/98 100,000
4/1/98 - 6/30/98 100,000
7/1/98 - 9/30/98 125,000
10/1/98 - 12/31/98 125,000
1/1/99 - 3/31/99 125,000
4/1/99 - 6/30/99 125,000
7/1/99 - 9/30/99 125,000
10/1/99 - 12/31/99 125,000
1/1/00 - 3/31/00 125,000
4/1/00 - 6/30/00 125,000
7/1/00 - 9/30/00 125,000
10/1/00 - 12/31/00 125,000
1/1/01 - 3/31/01 125,000
4/1/01 - 6/30/01 125,000
7/1/01 - 9/30/01 125,000
10/1/01 - 12/31/01 125,000
1/1/02 - 3/31/02 125,000
4/1/02 - 6/30/02 125,000
7/1/02 - 9/30/02 125,000
10/1/02 - 12/31/02 125,000
1/1/03 - 3/31/03 125,000
4/1/03 - 6/30/03 125,000
7/1/03 - 9/30/03 125,000
10/1/03 - 12/31/03 125,000
1/1/04 - 3/31/04 125,000
4/1/04 - 6/30/04 125,000
7/1/04 - 9/30/04 125,000
10/1/04 - 12/31/04 125,000
1/1/05 - 3/31/05 125,000
4/1/05 - 6/30/05 125,000
7/1/05 - 9/30/05 8,666,666.66
10/1/05 - 12/31/05 8,666,666.67
1/1/06 - 3/31/06 8,666,666.67
$ 30,000,000;
provided that the scheduled installments of principal of the Tranche C Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Term Loans in accordance with subsection 2.6 (as
provided in such subsection); and provided further that the Tranche C Term
Loans and all other amounts owed hereunder with respect to the Tranche C Term
Loans shall be paid in full no later than March 31, 2006, and the final
installment payable by the Borrower in respect of the Tranche C Term Loans on
such date shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by the Borrower under
this Agreement with respect to the Tranche C Term Loans.
(d) Payments on Revolving Credit and Swing Line Loans. The
Borrower hereby unconditionally promises to pay to the Administrative Agent
on the Revolving Credit Termination Date (or such earlier date on which the
Loans become due and payable pursuant to Section 8) (i) for the account of
each Revolving Credit Lender the then unpaid principal amount of each
Revolving Credit Loan of such Lender and (ii) for the account of the Swing
Line Lender (and each other Revolving Credit Lender that has purchased a
participation in then outstanding Swing Line Loans) the then unpaid principal
amount of Swing Line Loans.
(e) Interest. The Borrower hereby further agrees to pay
interest on the unpaid principal amount of the Loans from time to time
outstanding from the date such Loans are made until payment in full thereof
at the rates per annum, and on the dates, set forth in subsection 2.9.
(f) Recording. Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing indebtedness of the
Borrower to such Lender resulting from each Loan of such Lender from time to
time, including the amounts of principal and interest payable and paid to
such Lender from time to time under this Agreement.
(g) Register. The Administrative Agent shall maintain the
Register pursuant to subsection 10.6(d), and a subaccount therein for each
Lender, in which shall be recorded (i) the amount of each Loan and each
Obligation evidenced by a Note made hereunder, the Type thereof, whether each
such Loan is a Base Rate Loan or a Eurodollar Loan and each Interest Period
applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) both the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share thereof.
(h) Prima Facie Evidence. The entries made in the Register
and the accounts of each Lender maintained pursuant to subsection 2.5(g)
shall, to the extent permitted by applicable law, be prima facie evidence of
the existence and amounts of the obligations of the Borrower therein
recorded; provided, however, that the failure of any Lender or the
Administrative Agent to maintain the Register or any such account, or any
error therein, shall not in any manner affect the obligation of the Borrower
to repay (with applicable interest) the Loans made to the Borrower by such
Lender in accordance with the terms of this Agreement.
(i) Notes. The Borrower agrees that the Borrower will
execute and deliver to each Lender a promissory note of the Borrower
evidencing (i) the Tranche A Term Loans of such Lender, substantially in the
form of Exhibit A-1 with appropriate insertions as to date and principal
amount (a "Tranche A Term Note"), (ii) the Tranche B Term Loans of such
Lender, substantially in the form of Exhibit A-2 with appropriate insertions
as to date and principal amount (a "Tranche B Term Note"), (iii) the Tranche
C Term Loans of such Lender substantially in the form of Exhibit A-3 with
appropriate insertions as to date and principal amount (a "Tranche C Term
Note") and (iv) the Revolving Credit Loans of such Lender, substantially in
the form of Exhibit A-4 with appropriate insertions as to date and principal
amount ("Revolving Credit Note"). A Note and the Obligation evidenced
thereby may be assigned or otherwise transferred in whole or in part only by
registration of such assignment or transfer of such Note and the Obligation
evidenced thereby in the Register (and each Note shall expressly so provide).
Any assignment or transfer of all or part of an Obligation evidenced by a
Note shall be registered in the Register only upon surrender for registration
of assignment or transfer of the Note evidencing such Obligation, duly
endorsed by (or accompanied by a written instrument of assignment or transfer
duly executed by) the holder thereof, and thereupon one or more new Notes
shall be issued to the designated Assignee and the old Note shall be returned
by the Administrative Agent to the Borrower marked "cancelled." No
assignment of a Note and the Obligation evidenced thereby shall be effective
unless it shall have been recorded in the Register by the Administrative
Agent as provided in this subsection 2.5(i).
2.6 Optional Prepayments; Mandatory Prepayments and
Reduction of Commitments. (a) Subject to subsection 2.16, the Borrower may
at any time and from time to time prepay any Loans, in whole or in part,
without premium or penalty, upon irrevocable notice to the Administrative
Agent prior to 11:00 A.M., New York City time, three Business Days prior to
the date of prepayment, specifying the date and amount of prepayment, the
Type of Loan to be prepaid (which loans shall be prepaid on a pro rata basis
among the applicable Lenders) and whether the prepayment is of Eurodollar
Loans, Base Rate Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each. Upon receipt of any such notice the
Administrative Agent shall promptly notify each applicable Lender thereof.
If any such notice is given, the amount specified in such notice shall be due
and payable on the date specified therein, together with any amounts payable
pursuant to subsection 2.16. Partial prepayments shall be in an aggregate
principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess
thereof.
(b) (i) If, subsequent to the Closing Date, Holdings or any
of its Subsidiaries shall incur or permit the incurrence of any Indebtedness
(other than Indebtedness permitted pursuant to subsection 7.2) 100% of the
Net Proceeds thereof shall be promptly applied toward the prepayment of the
Loans and permanent reduction of the Commitments as set forth in clause (iv)
of this subsection 2.6(b). Nothing in this paragraph (b) shall be deemed to
permit any Indebtedness not permitted by subsection 7.2.
(ii) If, subsequent to the Closing Date, Holdings or any
of its Subsidiaries shall receive Net Proceeds from any Asset Sale, such Net
Proceeds shall be promptly applied toward the prepayment of the Loans and
permanent reduction of the Commitments as set forth in clause (iv) of this
subsection 2.6(b); provided that Net Proceeds from any Asset Sales shall not
be required to be so applied to the extent that such Net Proceeds are used by
the Borrower or such Subsidiary to acquire assets to be employed in the
business of the Borrower or its Subsidiaries within 365 days of receipt
thereof, but if such Net Proceeds are not so used, 100% of such Net Proceeds
shall be applied toward the prepayment of the Loans and the permanent
reduction of the Commitments as set forth in clause (iv) of this subsection
2.6(b) on the earlier of (x) the 366th day after receipt of such Net Proceeds
and (y) the date on which the Borrower has determined that such Net Proceeds
shall not be so used.
(iii) If there is Excess Cash Flow for any fiscal year and
the Debt Ratio as of the last day of such fiscal year is greater than 3.5 to
1.0, 75% of such Excess Cash Flow shall be applied toward the prepayment of
the Loans and the permanent reduction of the Commitments as set forth in
clause (iv) of this subsection 2.6(b) on the Excess Cash Flow Payment Date
for such fiscal year. If there is Excess Cash Flow for any fiscal year and
the Debt Ratio as of the last day of such fiscal year is less than or equal
to 3.5 to 1.0, 50% of such Excess Cash Flow shall be applied toward the
prepayment of the Loans and the permanent reduction of the Commitments as set
forth in clause (iv) of this subsection 2.6(b) on the Excess Cash Flow
Payment Date for such fiscal year.
(iv) Any mandatory prepayments of the Loans pursuant to
subsection 2.6 shall be applied (x) to the Tranche A Term Loans, the Tranche
B Term Loans and the Tranche C Term Loans on a pro rata basis to reduce the
unpaid scheduled installments of principal of each such Tranche of Term Loans
on a pro rata basis, and (y) thereafter to the permanent reduction of the
Revolving Credit Commitment; provided that, in the case of Tranche B Term
Loans and Tranche C Term Loans, so long as any Tranche A Term Loans are
outstanding, each of the Tranche B Term Lenders and the Tranche C Term
Lenders shall have the right to waive such Lender's right to receive any
portion of such prepayment. The Administrative Agent shall notify the
Tranche B Term Lenders and the Tranche C Term Lenders of such receipt and the
amount of the prepayment to be applied to each such Lender's Term Loans;
provided, that the Borrower shall use its reasonable efforts to notify the
Tranche B Term Lenders and the Tranche C Term Lenders of such waivable
mandatory prepayment three (3) Business Days prior to the payment to the
Administrative Agent of such waivable mandatory prepayment (it being
understood that the Borrower shall have no liabilities for failing to so
notify such Lenders). In the event any such Tranche B Term Lender or Tranche
C Term Lender desires to waive such Lender's right to receive any such
waivable mandatory prepayment, such Lender shall so advise the Administrative
Agent no later than the close of business on the Business Day immediately
following the date of such notice from the Administrative Agent. In the
event that any such Lender waives such Lender's right to any such waivable
mandatory prepayment, the Administrative Agent shall apply 50% of the amount
so waived by such Lender to prepay the Tranche A Term Loans to reduce unpaid
scheduled installments of principal of the Tranche A Term Loans on a pro rata
basis. The Administrative Agent shall return the remainder of the amount so
waived by such Lender to the Borrower. Revolving Credit Commitment
reductions made pursuant to subsections 2.6(b)(i), (ii) and (iii) shall be
applied to each Lender's Revolving Credit Commitment on a pro rata basis and
shall reduce permanently such Commitments.
(v) If after giving effect to any reduction of the
Revolving Credit Commitments under subsection 2.4, 2.5 or 2.6 the aggregate
outstanding principal amount of Swing Line Loans plus the aggregate
outstanding principal amount of Revolving Credit Loans plus the aggregate
outstanding amount of L/C Obligations shall exceed the aggregate amount of
the Revolving Credit Commitments, such reduction shall be accompanied by
prepayment in the amount of such excess to be applied (x) first, to the
outstanding Swing Line Loans and (y) second, to outstanding Revolving Credit
Loans (in each case, together with any amounts payable under subsection
2.16)); provided that if the aggregate principal amount of Swing Line Loans
and Revolving Credit Loans then outstanding is less than the amount of such
excess (because Letters of Credit constitute a portion of such excess), the
Borrower shall immediately, without notice or demand, to the extent of the
balance of such excess, replace outstanding Letters of Credit and/or deposit
an amount (but in no event greater than such balance) in a cash collateral
account satisfactory to the Administrative Agent established for the benefit
of the Revolving Credit Lenders.
2.7 Conversion and Continuation Options. (a) The Borrower
may elect from time to time to convert Eurodollar Loans to Base Rate Loans,
by giving the Administrative Agent prior irrevocable notice of such election
on or before 11:00 A.M. New York City time, on the Business Day immediately
preceding the date of the proposed conversion and of the amount and Type of
Loan to be converted, provided that any such conversion of Eurodollar Loans
may only be made on the last day of an Interest Period with respect thereto.
The Borrower may elect from time to time to convert Base Rate Loans (other
than Swing Line Loans) to Eurodollar Loans by giving the Administrative Agent
prior irrevocable notice of such election on or before 11:00 A.M., New York
City time, on the third Business Day immediately preceding the date of the
proposed conversion and of the amount and Type of Loan to be converted. Any
such notice of conversion to Eurodollar Loans shall specify the length of the
initial Interest Period or Interest Periods therefor. Upon receipt of any
such notice the Administrative Agent shall promptly notify each applicable
Lender thereof. All or any part of outstanding Eurodollar Loans and Base
Rate Loans may be converted as provided herein, provided that (i) no Loan may
be converted into a Eurodollar Loan when any Event of Default has occurred
and is then continuing and (ii) no Loan may be converted into a Eurodollar
Loan after the date that is one month prior to the Termination Date with
respect to such Loan.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection
1.1, of the length of the next Interest Period to be applicable to such Loans
and of the amount and Type of Loan to be converted, provided that no
Eurodollar Loan may be continued as such (i) when any Event of Default has
occurred and is then continuing or (ii) after the date that is one month
prior to the Termination Date with respect to such Loan and provided,
further, that if the Borrower shall fail to give such notice or if such
continuation is not permitted such Loans shall be automatically converted to
Base Rate Loans on the last day of such then expiring Interest Period.
(c) All notices given by Borrower under this subsection 2.7
may be made by telephonic notice promptly confirmed in writing.
2.8 Minimum Amounts and Maximum Number of Tranches. All
borrowings, conversions and continuations of Loans hereunder and all
selections of Interest Periods hereunder shall be in such amounts and be made
pursuant to such elections so that, after giving effect thereto, the
aggregate principal amount of the Loans comprising each Eurodollar Tranche
shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. In no event shall there be more than 10 Eurodollar Tranches
outstanding at any time.
2.9 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with
respect thereto at a rate per annum equal to the Eurodollar Rate determined
for such day plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any Loan,
(ii) any interest payable thereon, (iii) any commitment fee or (iv) any other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), the principal of the Loans and any
such overdue interest, commitment fee or other amount shall bear interest at
a rate per annum which is (x) in the case of principal, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
subsection plus 2% or (y) in the case of any such overdue interest,
commitment fee or other amount, the rate described in paragraph (b) of this
subsection plus 2%, in each case from the date of such non-payment until such
overdue principal, interest, commitment fee or other amount is paid in full
(as well after as before judgment).
(d) Interest shall be payable with respect to each Loan in
arrears on each Interest Payment Date and on the Termination Date with
respect to such Loan, provided that interest accruing pursuant to paragraph
(c) of this subsection shall be payable from time to time on demand.
2.10 Computation of Interest and Fees. (a) Interest on
Base Rate Loans and fees shall be calculated on the basis of a 365- (or 366-,
as the case may be) day year for the actual days elapsed; all other interest
shall be calculated on the basis of a 360-day year for the actual days
elapsed. The Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of each determination of a Eurodollar Rate. Any
change in the interest rate on a Loan resulting from a change in the Base
Rate or the Eurocurrency Reserve Requirements shall become effective as of
the opening of business on the day on which such change becomes effective.
The Administrative Agent shall as soon as practicable notify the Borrower and
the Lenders of the effective date and the amount of each such change in
interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the
Borrower, deliver to the Borrower a statement showing the quotations used by
the Administrative Agent in determining any interest rate pursuant to
subsection 2.9(a) or (c).
2.11 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower)
that, by reason of circumstances affecting the eurodollar market,
adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice
from the Required Lenders that the Eurodollar Rate determined or to
be determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such
Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to
the Borrower and the Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans requested to be made on the first
day of such Interest Period shall be made as Base Rate Loans, (y) any Loans
that were to have been converted on the first day of such Interest Period to
Eurodollar Loans shall be converted to or continued as Base Rate Loans and
(z) any outstanding Eurodollar Loans shall be converted, on the first day of
such Interest Period, to Base Rate Loans. Until such notice has been
withdrawn in writing by the Administrative Agent (which the Administrative
Agent agrees to do when the Administrative Agent has determined, or has been
instructed by the Required Lenders that, the circumstances that prompted the
delivery of such notice no longer exist), no further Eurodollar Loans shall
be made or continued as such, nor shall the Borrower have the right to
convert Loans to Eurodollar Loans.
2.12 Pro Rata Treatment and Payments. (a) Each borrowing
by the Borrower from the Revolving Credit Lenders hereunder, each payment by
the Borrower on account of any commitment fee hereunder and any reduction of
the Revolving Credit Commitments of Revolving Credit Lenders shall be made
pro rata according to the respective Commitment Percentages of the Revolving
Credit Lenders. Each payment (including each prepayment) by the Borrower on
account of principal of and interest on any Term Loans or the Revolving
Credit Loans shall be made pro rata according to the respective outstanding
principal amounts of such Loans then held by the Lenders. All payments
(including prepayments) to be made by the Borrower hereunder in respect of
any Loan, whether on account of principal, interest, Reimbursement
Obligations, fees or otherwise, shall be made without set off or counterclaim
and shall be made prior to 11:00 A.M., New York City time, on the due date
thereof to the Administrative Agent, for the account of the Lenders with
respect to such Loans, at the Administrative Agent's office specified in
subsection 10.2, in Dollars and in immediately available funds. The
Administrative Agent shall distribute such payments to the applicable Lenders
promptly upon receipt in like funds as received. If any payment hereunder
becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day, and, with respect to
payments of principal, interest thereon shall be payable at the then
applicable rate during such extension.
(b) Unless the Administrative Agent shall have been
notified in writing by any Lender prior to a borrowing that such Lender will
not make the amount that would constitute its Commitment Percentage of such
borrowing available to the Administrative Agent, the Administrative Agent may
assume that such Lender is making such amount available to the Administrative
Agent on such Borrowing Date, and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower a corresponding amount.
If such amount is not made available to the Administrative Agent by the
required time on the Borrowing Date therefor, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon at a rate
equal to the daily average Federal Funds Effective Rate for the period until
such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender
with respect to any amounts owing under this subsection shall be conclusive
in the absence of manifest error. If such Lender's Commitment Percentage of
such borrowing is not made available to the Administrative Agent by such
Lender within three Business Days of such Borrowing Date, the Administrative
Agent shall also be entitled to recover such amount with interest thereon at
the rate per annum applicable to Base Rate Loans hereunder, on demand, from
the Borrower. The failure of any Lender to make any Loan to be made by it
shall not relieve any other Lender of its obligation hereunder to make its
Loan on such Borrowing Date.
2.13 Illegality. Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender
to make or maintain Eurodollar Loans as contemplated by this Agreement, (a)
the commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Base Rate Loans to Eurodollar Loans
shall forthwith be cancelled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
on the respective last days of the then current Interest Periods with respect
to such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of
the then current Interest Period with respect thereto, the Borrower shall pay
to such Lender such amounts, if any, as may be required pursuant to
subsection 2.16. If circumstances subsequently change so that any affected
Lender shall determine that it is no longer so affected, such Lender will
promptly notify the Borrower and the Administrative Agent, and upon receipt
of such notice, the obligations of such Lender to make or continue Eurodollar
Loans or to convert Base Rate Loans into Eurodollar Loans shall be
reinstated.
2.14 Requirements of Law. (a) If the adoption of or any
change in any Requirement of Law or in the interpretation or application
thereof or compliance by any Lender with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note, any Letter of
Credit, any Application or any Eurodollar Loan made by it, or change
the basis of taxation of payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by subsection 2.15 and changes
in the rate of net income taxes (including branch profits taxes and
minimum taxes) or franchise taxes (imposed in lieu of net income
taxes) of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such
Lender, by an amount which such Lender deems to be material, of making,
converting into, continuing or maintaining Eurodollar Loans or issuing or
participating in Letters of Credit or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender upon written demand such additional amount or
amounts as will compensate such Lender for such increased cost or reduced
amount receivable; provided that before making any such demand, each Lender
agrees to use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions and so long as such efforts would not be
disadvantageous to it, in its reasonable discretion, in any legal, economic
or regulatory manner) to designate a different Eurodollar lending office if
the making of such designation would allow the Lender or its Eurodollar
lending office to continue to perform its obligations to make Eurodollar
Loans or to continue to fund or maintain Eurodollar Loans and avoid the need
for, or reduce the amount of, such increased cost. If any Lender becomes
entitled to claim any additional amounts pursuant to this subsection, it
shall promptly notify the Borrower, through the Administrative Agent, of the
event by reason of which it has become so entitled. If the Borrower so
notifies the Administrative Agent within five Business Days after any Lender
notifies the Borrower of any increased cost pursuant to the foregoing
provisions of this Section, the Borrower may convert all Eurodollar Loans of
such Lender then outstanding into Base Rate Loans in accordance with the
terms hereof. Each Lender shall notify the Borrower within 120 days after it
becomes aware of the imposition of such costs; provided that if such Lender
fails to so notify the Borrower within such 120-day period, such Lender shall
not be entitled to claim any additional amounts pursuant to this subsection
for any period ending on a date which is prior to 120 days before such
notification.
(b) If any Lender shall have determined that the adoption
of or any change in any Requirement of Law regarding capital adequacy or in
the interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof shall have the
effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder or under any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into
consideration such Lender's or such corporation's policies with respect to
capital adequacy) by an amount deemed by such Lender to be material, then
from time to time, after submission by such Lender to the Borrower (with a
copy to the Administrative Agent) of a prompt written request therefor, the
Borrower shall promptly pay to such Lender such additional amount or amounts
as will compensate such Lender for such reduction. Each Lender shall notify
the Borrower within 120 days after it becomes aware of the imposition of such
additional amount or amounts; provided that if such Lender fails to so notify
the Borrower within such 120-day period, such Lender shall not be entitled to
claim any additional amount or amounts pursuant to this subsection for any
period ending on a date which is prior to 120 days before such notification.
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the Borrower
(with a copy to the Administrative Agent) of the event by reason of which it
has become so entitled. A certificate as to any additional amounts payable
pursuant to this subsection, showing the calculation thereof in reasonable
detail, submitted by such Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error.
The agreements in this subsection shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.15 Taxes. (a) Except as provided in this subsection
2.15, all payments made by the Borrower under this Agreement and any Notes
shall be made free and clear of, and without deduction or withholding for or
on account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental
Authority ("Taxes"), excluding Taxes on net income (including, without
limitation, branch profits taxes and minimum taxes) and franchise taxes
(imposed in lieu of net income taxes) imposed on any Agent or any Lender as a
result of a present or former connection between any Agent or such Lender and
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from such Agent or such Lender having
executed, delivered or performed its obligations or received a payment under,
or enforced, this Agreement or any Note). If any such non-excluded taxes,
levies, imposts, duties, charges, fees deductions or withholdings
("Non-Excluded Taxes") are required to be withheld from any amounts payable
to any Agent or any Lender hereunder or under any Note, the amounts so
payable to such Agent or such Lender shall be increased to the extent
necessary to yield to such Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Agreement, provided, however,
that the Borrower shall not be required to increase any such amounts payable
to any Lender that is not organized under the laws of the United States of
America or a state thereof with respect to any Taxes that are imposed on
amounts payable to such Lender at the time such Lender becomes a party to
this Agreement or that are attributable to such Lender's failure to comply
with the requirements of paragraph (b) of this subsection. Whenever any Non-
Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter, the Borrower shall send to the relevant Agent for its own account
or for the account of such Lender, as the case may be, a certified copy of an
original official receipt, if any, received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the relevant Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Agents and the Lenders for any incremental taxes, interest or
penalties that may become payable by any Agent or any Lender as a result of
any such failure. The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
(b) Each Lender, Assignee and Participant that is not a
citizen or resident of the United States of America, a corporation,
partnership created or organized in or under the laws of the United States of
America, any estate that is subject to U.S. federal income taxation
regardless of the source of its income or any trust which is subject to the
supervision of a court within the United States and the control of a United
States fiduciary as described in Section 7701(a)(30) of the Code (a "Non-U.S.
Lender") shall deliver to the Borrower and the Administrative Agent, and if
applicable, the assigning Lender (or, in the case of a Participant, to the
Lender from which the related participation shall have been purchased) on or
before the date on which it becomes a party to this Agreement (or, in the
case of a Participant, on or before the date on which such Participant
purchases the related participation) either:
(A) two duly completed and signed copies of either Internal
Revenue Service Form 1001 (relating to such Non-U.S. Lender and
entitling it to a complete exemption from withholding of U.S. Taxes
on all amounts to be received by such Non-U.S. Lender pursuant to
this Agreement and the other Credit Documents) or Form 4224 (relating
to all amounts to be received by such Non-U.S. Lender pursuant to
this Agreement and the other Credit Documents), or successor and
related applicable forms, as the case may be; or
(B) in the case of a Non-U.S. Lender that is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Code and that does
not comply with the requirements of clause (A) hereof, (x) a
statement in the form of Exhibit F (or such other form of statement
as shall be reasonably requested by the Borrower from time to time)
to the effect that such Non-U.S. Lender is eligible for a complete
exemption from withholding of U.S. Taxes under Code Section 871(h) or
881(c), and (y) two duly completed and signed copies of Internal
Revenue Service Form W-8 or successor and related applicable form (it
being understood and agreed that no Participant and, without the
prior written consent of the Borrower described in clause (B) of the
proviso to the first sentence of subsection 10.6(c), no Assignee
shall be entitled to deliver any forms or statements pursuant to this
clause (B), but rather shall be required to deliver forms pursuant to
clause (A) of this subsection 2.15(b)).
Further, each Non-U.S. Lender agrees (i) to deliver to the Borrower and the
Administrative Agent, and if applicable, the assigning Lender (or, in the
case of a Participant, to the Lender from which the related participation
shall have been purchased) two further duly completed and signed copies of
such Forms 1001 or 4224, as the case may be, or successor and related
applicable forms, on or before the date that any such form expires or becomes
obsolete and promptly after the occurrence of any event requiring a change
from the most recent form(s) previously delivered by it to the Borrower (or,
in the case of a Participant, to the Lender from which the related
participation shall have been purchased) in accordance with applicable U.S.
laws and regulations and (ii) in the case of a Non-U.S. Lender that delivers
a statement in the form of Exhibit F (or such other form of statement as
shall have been requested by the Borrower), to deliver to the Borrower and
the Administrative Agent, and if applicable, the assigning Lender, such
statement on an annual basis on the anniversary of the date on which such
Non-U.S. Lender became a party to this Agreement and to deliver promptly to
the Borrower and the Administrative Agent, and if applicable, the assigning
Lender, such additional statements and forms as shall be reasonably requested
by the Borrower from time to time unless, in any such case, any change in law
or regulation has occurred subsequent to the date such Lender became a party
to this Agreement (or in the case of a Participant, the date on which such
Participant purchased the related participation) which renders all such forms
inapplicable or which would prevent such Lender (or Participant) from
properly completing and executing any such form with respect to it and such
Lender promptly notifies the Borrower and the Administrative Agent (or, in
the case of a Participant, the Lender from which the related participation
shall have been purchased) if it is no longer able to deliver, or if it is
required to withdraw or cancel, any form or statement previously delivered by
it pursuant to this subsection 2.15(b). Each Non-U.S. Lender agrees to
indemnify and hold harmless the Borrower from and against any taxes,
penalties, interest or other costs or losses (including, without limitation,
reasonable attorneys' fees and expenses) incurred or payable by the Borrower
as a result of the failure of the Borrower to comply with its obligations to
deduct or withhold any U.S. Taxes from any payments made pursuant to this
Agreement to such Non-U.S. Lender or the Administrative Agent which failure
resulted from the Borrower's reliance on any form, statement, certificate or
other information provided to it by such Non-U.S. Lender pursuant to clause
(B) or clause (ii) of this subsection 2.15(b). The Borrower hereby agrees
that for so long as a Non-U.S. Lender complies with this subsection 2.15(b),
the Borrower shall not withhold any amounts from any payments made pursuant
to this Agreement to such Non-U.S. Lender, unless the Borrower reasonably
determines that it is required by law to withhold or deduct any amounts from
any payments made to such Non-U.S. Lender pursuant to this Agreement. A
Non-U.S. Lender shall not be required to deliver any form or statement
pursuant to the immediately preceding sentences in this subsection 2.15(b)
that such Non-U.S. Lender is not legally able to deliver (it being understood
and agreed that the Borrower shall withhold or deduct such amounts from any
payments made to such Non-U.S. Lender that the Borrower reasonably determines
are required by law and that payments resulting from a failure to comply with
this paragraph (b) shall not be subject to payment or indemnity by the
Borrower pursuant to subsection 2.15(a)). If any Credit Party other than the
Borrower makes any payment to any Non-U.S. Lender under any Credit Document,
the foregoing provisions of this subsection 2.15 shall apply to such Non-U.S.
Lender and such Credit Party as if such Credit Party were the Borrower (but a
Non-U.S. Lender shall not be required to provide any form or make any
statement to any such Credit Party unless such Non-U.S. Lender has received a
request to do so from such Credit Party and has a reasonable time to comply
with such request).
(c) If a Lender shall become aware that it is entitled to
receive a refund (whether by way of a direct payment or by offset) in respect
of a Non-Excluded Tax paid by the Borrower, which refund, in the good faith
judgment of such Lender, is allocable to such payment made pursuant to this
Section, it shall promptly notify the Borrower of the availability of such
refund and shall, within 30 days after the receipt of a request from the
Borrower, apply for such refund at the Borrower's sole expense. If any
Lender receives such refund (as described in the preceding sentence), it
shall repay the amount of such refund (together with any interest received
thereon) to the Borrower if all the payments due under this Section has been
paid in full.
2.16 Indemnity. The Borrower agrees to indemnify each
Lender and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur as a consequence of (a) default by the Borrower
in making a borrowing of, conversion into or continuation of Eurodollar Loans
after the Borrower has given a notice requesting the same in accordance with
the provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with
the provisions of this Agreement or (c) the making of a prepayment of
Eurodollar Loans on a day which is not the last day of an Interest Period
with respect thereto (but excluding loss of margin). Such indemnification
under this subsection 2.16 may include an amount equal to the excess, if any,
of (i) the amount of interest which would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to
the last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the
date of such failure) in each case at the applicable rate of interest for
such Loans provided for herein (but excluding loss of margin) over (ii) the
amount of interest (as reasonably determined by such Lender) which would have
accrued to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank eurodollar market.
Each Lender claiming any payment pursuant to this subsection 2.16 shall do so
by giving notice thereof to the Borrower and the Administrative Agent
(showing calculation of the amount claimed in reasonable detail) within 60
Business Days after a failure to borrow, convert or continue Eurodollar
Loans, or to prepay, after notice or after a prepayment of Eurodollar Loans
on a day which is not the last day of an Interest Period therefor. This
covenant shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
2.17 Replacement of Lenders. If at any time (a) the
Borrower becomes obligated to pay additional amounts described in subsections
2.13, 2.14 or 2.15 as a result of any condition described in such
subsections, or any Lender ceases to make Eurodollar Loans pursuant to
subsection 2.13, (b) any Lender becomes insolvent and its assets become
subject to a receiver, liquidator, trustee, custodian or other Person having
similar powers or (c) any Lender becomes a "Nonconsenting Lender"
(hereinafter defined), then the Borrower may, on ten Business Days' prior
written notice to the Administrative Agent and such Lender, replace such
Lender by causing such Lender to (and such Lender shall) assign pursuant to
subsection 10.6 all of its rights and obligations under this Agreement to a
Lender or other entity selected by the Borrower and acceptable to the
Administrative Agent for a purchase price equal to the outstanding principal
amount of such Lender's Loans and all accrued interest and fees and other
amounts payable hereunder (including amounts payable under subsection 2.16 as
though such Loans were being paid instead of being purchased); provided that
(i) the Borrower shall have no right to replace the Administrative Agent,
(ii) neither the Administrative Agent nor any Lender shall have any
obligation to the Borrower to find a replacement Lender or other such entity,
(iii) in the event of a replacement of a Nonconsenting Lender or a Lender to
which the Borrower becomes obligated to pay additional amounts pursuant to
this subsection 2.17, in order for the Borrower to be entitled to replace
such a Lender, such replacement must take place no later than 180 days after
(A) the date the Nonconsenting Lender shall have notified the Borrower and
the Administrative Agent of its failure to agree to any requested consent,
waiver or amendment or (B) the Lender shall have demanded payment of
additional amounts under one of the subsections described in this subsection
2.17, as the case may be, and (iv) in no event shall the Lender hereby
replaced be required to pay or surrender to such replacement Lender or other
entity any of the fees received by such Lender hereby replaced pursuant to
this Agreement. In the case of a replacement of a Lender to which the
Borrower becomes obligated to pay additional amounts pursuant to this
subsection 2.17, the Borrower shall pay such additional amounts to such
Lender prior to such Lender being replaced and the payment of such additional
amounts shall be a condition to the replacement of such Lender. In the event
that (x) the Borrower or the Administrative Agent has requested the Lenders
to consent to a departure or waiver of any provisions of the Credit Documents
or to agree to any amendment thereto, (y) the consent, waiver or amendment in
question requires the agreement of all Lenders in accordance with the terms
of subsection 10.1 and (z) the Required Lenders have agreed to such consent,
waiver or amendment, then any Lender who does not agree to such consent,
waiver or amendment shall be deemed a "Nonconsenting Lender."
2.18 Certain Fees. The Company agrees to pay to the
Administrative Agent, for its own account, a non-refundable administration
fee in an amount previously agreed to with the Administrative Agent, payable
in advance on the Closing Date and annually in advance on each anniversary
thereof prior to the earlier of (x) the Final Maturity Date and (y) the
payment in full of all Loans and all other amounts owing under this
Agreement.
2.19 Certain Rules Relating to the Payment of Additional
Amounts. (a) Upon the request, and at the expense, of the Borrower, each
Lender to which the Borrower is required to pay any additional amount
pursuant to Section 2.14 or 2.15 shall reasonably afford the Borrower the
opportunity to contest, and reasonably cooperate with the Borrower in
contesting, the imposition of any Non-Excluded taxes giving rise to such
payment; provided that (i) such Lender shall not be required to afford the
Borrower the opportunity to so contest unless the Borrower shall have
confirmed in writing to such Lender its obligation to pay such amounts
pursuant to this Agreement and (ii) the Borrower shall reimburse such Lender
for its reasonable attorneys' and accountants' fees and disbursements
incurred in so cooperating with the Borrower in contesting the imposition of
such Non-Excluded Taxes.
(b) Each Lender agrees that if it makes any demand for
payment under subsection 2.14 or 2.15(a), or if any adoption or change of the
type described in subsection 2.13 shall occur with respect to it, it will use
reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions and so long as such efforts would not be
disadvantageous to it, as determined in its reasonable discretion) to
designate a different lending office if the making of such a designation
would allow the Lender to continue to make and maintain Eurodollar Loans and
would reduce or obviate the need for the Borrower to make payments under
subsection 2.14 or 2.15(a), or would eliminate or reduce the effect of any
adoption or change described in subsection 2.13.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and
conditions hereof, the Issuing Lender, in reliance on the agreements of the
Revolving Credit Lenders set forth in subsection 3.4(a), agrees to issue
letters of credit ("Letters of Credit") for the account of the Borrower on
any Business Day during the Commitment Period in such form as may be approved
from time to time by the Issuing Lender; provided that the Issuing Lender
shall have no obligation to issue any Letter of Credit if, after giving
effect to such issuance, (i) the L/C Obligations would exceed the L/C
Commitment or (ii) the Available Commitment with respect to Revolving Credit
Loans of all Revolving Credit Lenders less the aggregate principal amount of
the Swing Line Loans then outstanding would be less than zero.
(b) Each Letter of Credit shall (i) be denominated in
Dollars, (ii) be a standby letter of credit issued to support obligations of
the Borrower or any of its Subsidiaries, contingent or otherwise and (iii)
expire no later than the earlier of (x) the date that is 12 months after the
date of its issuance and (y) the fifth Business Day prior to the Revolving
Loan Termination Date; provided that any Letter of Credit with an expiration
date occurring up to twelve months after such Letter of Credit's date of
issuance may be automatically renewable for subsequent 12-month periods (but
in no event later than the fifth Business Day prior to the Revolving Loan
Termination Date).
(c) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State
of New York.
(d) The Issuing Lender shall not at any time be obligated
to issue any Letter of Credit hereunder if such issuance would conflict with,
or cause the Issuing Lender or any L/C Participant to exceed any limits
imposed by, any applicable Requirement of Law or any policies of the Issuing
Lender.
3.2 Procedure for Issuance of Letters of Credit. The
Borrower may from time to time request that the Issuing Lender issue a Letter
of Credit at any time prior to the fifth Business Day prior to the Revolving
Loan Termination Date by delivering to the Issuing Lender with a copy to the
Administrative Agent at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Lender,
and such other certificates, documents and other papers and information as
the Issuing Lender may reasonably request. Upon receipt of any Application,
the Issuing Lender will process such Application and the certificates,
documents and other papers and information delivered to it in connection
therewith in accordance with its customary procedures and shall promptly
issue the Letter of Credit requested thereby (but in no event shall the
Issuing Lender be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such
other certificates, documents and other papers and information relating
thereto) by issuing the original of such Letter of Credit to the beneficiary
thereof or as otherwise may be agreed by the Issuing Lender and the Borrower.
The Issuing Lender shall furnish a copy of such Letter of Credit to the
Borrower and the Administrative Agent (with copies for each Lender) promptly
following the issuance thereof.
3.3 Fees, Commissions and Other Charges. (a) The Borrower
shall pay to the Administrative Agent, for the account of the Issuing Lender
and the L/C Participants, a letter of credit fee with respect to each Letter
of Credit, computed for the period from and including the date of issuance of
such Letter of Credit to the expiration date of such Letter of Credit at a
rate per annum equal to the Applicable Margin then in effect for Eurodollar
Loans, of the aggregate face amount of Letters of Credit outstanding, payable
in arrears on each L/C Fee Payment Date and on the Revolving Loan Termination
Date. Such fee shall be payable to the Administrative Agent to be shared
ratably among the Revolving Credit Lenders in accordance with their
respective Commitment Percentages with respect to Revolving Credit Loans. In
addition, the Borrower shall pay to the Administrative Agent, for the sole
account of the Issuing Lender, a fee equal to 0.1250% per annum of the
aggregate face amount of outstanding Letters of Credit payable quarterly in
arrears on each L/C Fee Payment Date and on the Revolving Loan Termination
Date.
(b) In addition to the foregoing fees and commissions, the
Borrower shall pay or reimburse the Issuing Lender for such normal and
customary costs and expenses as are incurred or charged by the Issuing Lender
in issuing, effecting payment under, amending or otherwise administering any
Letter of Credit.
(c) The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Lender and the L/C Participants
all fees and commissions received by the Administrative Agent for their
respective accounts pursuant to this subsection.
3.4 L/C Participation. (a) The Issuing Lender irrevocably
agrees to sell and hereby sells to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases
from the Issuing Lender, on the terms and conditions hereinafter stated, for
such L/C Participant's own account and risk an undivided interest equal to
such L/C Participant's Commitment Percentage with respect to Revolving Credit
Loans from time to time in effect in the Issuing Lender's obligations and
rights under each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a
draft is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon demand
at the Issuing Lender's address for notices specified herein an amount equal
to such L/C Participant's then Commitment Percentage with respect to
Revolving Credit Loans of the amount of such draft, or any part thereof,
which is not so reimbursed; provided that, if such demand is made prior to
11:00 A.M., New York City time, on a Business Day, such L/C Participant shall
make such payment to the Issuing Lender prior to the end of such Business Day
and otherwise such L/C Participant shall make such payment on the next
succeeding Business Day.
(b) If any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to subsection 3.4(a) in respect of
any unreimbursed portion of any payment made by the Issuing Lender under any
Letter of Credit is paid to the Issuing Lender within three Business Days
after the date such payment is due, such L/C Participant shall pay to the
Issuing Lender on demand an amount equal to the product of (i) such amount,
times (ii) the daily average Federal funds rate, as quoted by the Issuing
Lender, during the period from and including the date such payment is
required to the date on which such payment is immediately available to the
Issuing Lender, times (iii) a fraction the numerator of which is the number
of days that elapse during such period and the denominator of which is 360.
If any such amount required to be paid by any L/C Participant pursuant to
subsection 3.4(a) is not in fact made available to the Issuing Lender by such
L/C Participant within three Business Days after the date such payment is
due, the Issuing Lender shall be entitled to recover from such L/C Par-
ticipant, on demand, such amount with interest thereon calculated from such
due date at the rate per annum applicable to Base Rate Loans hereunder. A
certificate of the Issuing Lender submitted to any L/C Participant with
respect to any amounts owing under this subsection shall be conclusive in the
absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant
its pro rata share of such payment in accordance with subsection 3.4(a), the
Issuing Lender receives any payment related to such Letter of Credit (whether
directly from the Borrower or otherwise, including proceeds of collateral
applied thereto by the Issuing Lender), or any payment of interest on account
thereof, the Issuing Lender will, if such payment is received prior to 11:00
A.M., New York City time, on a Business Day, distribute to such L/C
Participant its pro rata share thereof prior to the end of such Business Day
and otherwise the Issuing Lender will distribute such payment on the next
succeeding Business Day; provided, however, that in the event that any such
payment received by the Issuing Lender and distributed to the L/C
Participants shall be required to be returned by the Issuing Lender, each
such L/C Participant shall return to the Issuing Lender the portion thereof
previously distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. (a) The
Borrower agrees to reimburse the Issuing Lender on the same Business Day on
which the Issuing Lender notifies the Borrower of the date and amount of a
draft presented under any Letter of Credit and paid by the Issuing Lender
provided such notice is received by 1:00 P.M., New York City time, on such
Business Day, and the next Business Day if such notice is received after such
time. The Issuing Lender shall provide notice to the Borrower on each
Business Day on which a draft is presented and paid by the Issuing Lender
indicating the amount of (i) such draft so paid and (ii) any taxes, fees,
charges or other costs or expenses incurred by the Issuing Lender in
connection with such payment. Each such payment shall be made to the Issuing
Lender at its address for notices specified herein in lawful money of the
United States of America and in immediately available funds.
(b) Interest shall be payable on any and all amounts
remaining unpaid by the Borrower under this subsection from the date a draft
presented under any Letter of Credit is paid by the Issuing Lender until
payment in full (i) at the rate which would be payable on any Loans that are
Base Rate Loans at such time until such payment is required to be made
pursuant to subsection 3.5(a), and (ii) thereafter, at the rate which would
be payable on any Loans that are Base Rate Loans at such time which were then
overdue.
3.6 Obligations Absolute. (a) The Borrower's obligations
under subsection 3.5(a) shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Borrower may have or have had against the Issuing Lender,
any L/C Participant or any beneficiary of a Letter of Credit.
(b) The Borrower also agrees with the Issuing Lender that
the Issuing Lender shall not be responsible for, and the Borrower's
Reimbursement Obligations under subsection 3.5(a) shall not be affected by,
among other things, (i) the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged (unless the Issuing Lender has knowledge of
such invalidity, fraud or forgery), or (ii) any dispute between or among the
Borrower and any beneficiary of any Letter of Credit or any other party to
which such Letter of Credit may be transferred or (iii) any claims whatsoever
of the Borrower against any beneficiary of such Letter of Credit or any such
transferee.
(c) Neither the Issuing Lender nor any L/C Participant
shall be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions caused by the Issuing Lender's gross negligence or willful
misconduct.
(d) The Borrower agrees that any action taken or omitted by
the Issuing Lender under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards of care specified in
the Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of the Issuing Lender or any
L/C Participant to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be
presented for payment under any Letter of Credit, the Issuing Lender shall
promptly notify the Borrower and the Administrative Agent of the date and
amount thereof. If any draft shall be presented for payment under any Letter
of Credit, the responsibility of the Issuing Lender to the Borrower in
connection with such draft shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining
that the documents (including each draft) delivered under such Letter of
Credit in connection with such presentment appear on their face to be in
conformity with such Letter of Credit.
3.8 Application. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the
provisions of this Section 3, the provisions of this Section 3 shall govern
and control.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents, the Issuing Lender, the Swing Line
Lender and the Lenders to enter into this Agreement and to make the Loans and
issue or participate in the Letters of Credit, the Borrower hereby represents
and warrants to the Agents, the Issuing Lender, the Swing Line Lender and
each Lender that:
4.1 Financial Condition. (a) The combined balance sheets
of the Lockheed Xxxxxx Predecessor Businesses as at December 31, 1996 and
December 31, 1995 and the related combined statements of operations and
changes in invested equity and cash flows for each of the three years in the
period ended December 31, 1996, audited by Coopers & Xxxxxxx L.L.P., copies
of which have heretofore been furnished to each Lender, present fairly, in
all material respects, in accordance with GAAP the combined financial
condition of the Lockheed Xxxxxx Predecessor Businesses as of such dates, and
the combined results of their operations and changes in invested equity and
cash flows for each of the years in the period ended December 31, 1996. All
such financial statements have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by such
auditors and as disclosed therein). To the best of the Borrower's knowledge,
none of the Lockheed Xxxxxx Predecessor Businesses had, at the date of each
balance sheet referred to above, any material Guarantee Obligation,
contingent liability or liability for taxes, or any long-term lease or
unusual forward or long-term commitment, including, without limitation, any
material interest rate or foreign currency swap or exchange transaction,
which is not reflected in the foregoing statements or in the notes thereto or
expressly permitted to be incurred hereunder. To the best of the Borrower's
knowledge, during the period from December 31, 1996 to and including the date
hereof there has been no sale, transfer or other disposition by the Lockheed
Xxxxxx Predecessor Businesses of any material part of its business or
property (except as disclosed in the Transaction Documents) other than
pursuant to the Asset Contribution and no purchase or other acquisition of
any business or property (including any capital stock of any other Person)
material in relation to the consolidated financial condition of the Lockheed
Xxxxxx Predecessor Businesses at December 31, 1996.
(b) The combined statements of operations and cash flows
for the three months ended March 31, 1996 and the years ended December 31,
1995 and 1994 of the Loral Acquired Businesses, audited by Coopers & Xxxxxxx
L.L.P., copies of which have heretofore been furnished to each Lender,
present fairly, in all material respects, in accordance with GAAP the
combined results of operations and cash flows of the Loral Acquired
Businesses for the three months ended March 31, 1996, and the years ended
December 31, 1995 and 1994. All such financial statements have been prepared
in accordance with GAAP applied consistently throughout the periods involved
(except as approved by such accountants and as disclosed therein). To the
best of the Borrower's knowledge, during the period from December 31, 1996 to
and including the date hereof, there has been no sale, transfer or other
disposition by any of the Loral Acquired Businesses of any material part of
its business or property (except as disclosed in the Transaction Documents)
other than pursuant to the Asset Contribution and no purchase or other
acquisition of any business or property (including any capital stock of any
other Person) material in relation to the consolidated financial condition of
Loral Acquired Businesses at December 31, 1996.
(c) The unaudited pro forma condensed consolidated
financial statements of the Borrower, as of December 31, 1996 and for the
year then ended, certified by a Responsible Officer (the "Pro Forma Financial
Statements"), copies of which have been furnished to each Lender, comprise
the unaudited combined financial statements of (x) the Lockheed Xxxxxx
Predecessor Businesses as of December 31, 1996 and for the year then ended
and (y) the Loral Acquired Businesses for the three months ended March 31,
1996, adjusted to give effect (as if such events had occurred on such dates)
to the Asset Contribution and each of the other transactions contemplated by
the Transaction Documents. The Pro Forma Financial Statements have been
prepared based on good faith assumptions in accordance with Regulation S-X
under the Securities Exchange Act of 1934, as amended, and based on the best
information available to the Borrower, as of the date of delivery thereof,
and reflect on a pro forma basis the financial position and results of
operations of the Borrower and its Subsidiaries, as of December 31, 1996, and
for the year then ended.
4.2 No Change. Since December 31, 1996 there has been no
development, event or circumstance which has had or could reasonably be
expected to have a Material Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of
Holdings, the Borrower and its Subsidiaries (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate power and authority, and the legal right,
to own and operate its property, to lease the property it operates as lessee
and to conduct the business in which it is currently engaged, (c) is, or will
be on or before the date set forth in subsection 6.12, duly qualified as a
foreign corporation and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification, except to the extent that the failure
to so qualify could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect and (d) is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable
Obligations. Each of Holdings, the Borrower and its Subsidiaries has the
corporate power and authority, and the legal right, to make, deliver and
perform the Credit Documents to which it is a party and, in the case of the
Borrower, to borrow hereunder and has taken all necessary corporate action to
authorize the borrowings on the terms and conditions of this Agreement and to
authorize the execution, delivery and performance of such Credit Documents
and Transaction Documents. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the borrowings hereunder or with
the execution, delivery, performance, validity or enforceability of the
Credit Documents and Transaction Documents to which the Borrower and each
other Credit Party is a party, except those referred to in subsections 4.17
and 6.13 and those set forth on Schedule 4.4. This Agreement has been, and
each other Credit Document and Transaction Document will be, duly executed
and delivered on behalf of the Borrower and each other Credit Party. This
Agreement constitutes, and each other Credit Document and Transaction
Document to which it is a party when executed and delivered will constitute,
a legal, valid and binding obligation of each Credit Party thereto
enforceable against each such Credit Party, as the case may be, in accordance
with its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing.
4.5 No Legal Bar. Except as set forth on Schedule 4.5 or
as could not reasonably be expected to, individually or in the aggregate,
have a Material Adverse Effect, the execution, delivery and performance of
each Credit Document, the borrowing and use of the proceeds of the Loans and
the consummation of the transactions contemplated by the Credit Documents and
the Transaction Documents: (a) will not violate any Requirement of Law or
any Contractual Obligation applicable to or binding upon Holdings, the
Borrower or any Subsidiary of the Borrower or any of their respective
properties or assets and (b) will not result in the creation or imposition of
any Lien on any of its properties or assets pursuant to any Requirement of
Law applicable to it or any of its Contractual Obligations, except for the
Liens arising under the Security Documents.
4.6 No Material Litigation. Except as set forth on
Schedule 4.6, no litigation by, investigation by, or proceeding of or before
any arbitrator or any Governmental Authority is pending or, to the knowledge
of the Borrower, overtly threatened by or against the Borrower or any of its
Subsidiaries or against any of its or their respective properties or revenues
(including after giving effect to the Asset Contribution and the other
transactions contemplated by the Transaction Documents) with respect to any
Credit Document or any of the transactions contemplated hereby or thereby or
which could reasonably be expected to have a Material Adverse Effect.
4.7 No Default. Neither Holdings, the Borrower nor any of
its Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect which could reasonably be expected to
have a Material Adverse Effect. No Default or Event of Default has occurred
and is continuing.
4.8 Ownership of Property; Liens. Each of Holdings, the
Borrower and its Subsidiaries (i) has good record and insurable title in fee
simple to all the real property listed on Schedule 4.8, (ii) has good record
and insurable title in fee simple to, or a valid leasehold interest in, all
its other material real property, (iii) has good title to, or a valid
leasehold interest in, all its other material property and (iv) none of such
property in clauses (i) through (iii) is or shall be subject to any Lien
except as permitted by subsection 7.3.
4.9 Intellectual Property. Holdings, the Borrower and each
of its Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of
its business as currently conducted except for those the failure to own or
license which could not reasonably be expected to have a Material Adverse
Effect (the "Intellectual Property"). To the best of the Borrower's
knowledge, and except as set forth on Schedule 4.9, no claim has been
asserted and is pending by any Person challenging or questioning the use of
any such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does the Borrower know of any valid basis for any
such claim which could reasonably be expected to have a Material Adverse
Effect. The use of such Intellectual Property by Holdings, the Borrower and
its Subsidiaries does not infringe on the rights of any Person, except for
such claims and infringements that, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
4.10 Taxes. Except as set forth on Schedule 4.10, each of
Holdings, the Borrower and its Subsidiaries has filed or caused to be filed
all material tax returns which, to the knowledge of the Borrower, are
required to be filed and has paid all taxes shown to be due and payable on
said returns or on any assessments made against it or any of its property and
all other material taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any the amount or validity
of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have
been provided on the books of Holdings, the Borrower or its Subsidiaries, as
the case may be); no tax Lien has been filed, and, to the knowledge of the
Borrower, no claim is being asserted, with respect to any such tax, fee or
other charge.
4.11 Federal Regulations. No part of the proceeds of any
Loans will be used for "purchasing" or "carrying" any "margin stock" within
the respective meanings of each of the quoted terms under Regulation G or
Regulation U of the Board of Governors of the Federal Reserve System as now
and from time to time hereafter in effect.
4.12 ERISA. The Borrower has provided to the Agents a true
and correct copy of all Agreements, arrangements and understandings relating
to the transfer of Plans from the Seller to the Borrower (the "Transfer
Agreements"). The Transfer Agreements are in full force and effect and have
not been waived or modified without the consent of the Agents (which shall
not be unreasonably withheld) except to the extent any such waiver or
modification, singly or in the aggregate, could not be reasonably expected to
have a Material Adverse Effect. Except as could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, no
Reportable Event has occurred with respect to any Single Employer Plan, all
contributions required to be made with respect to a Plan have been timely
made; none of the Borrower or any of its Subsidiaries nor any Commonly
Controlled Entity has incurred any material liability to or on account of a
Plan pursuant to Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or 4980 of the
Code or expects to incur any liability (including any indirect, contingent or
secondary liability) under any of the foregoing Sections with respect to any
Plan; no termination or, or institution of proceedings to terminate or
appoint a trustee to administer, a Single Employer Plan has occurred; and
each Plan has complied in all material respects with the applicable
provisions of ERISA and the Code (except that with respect to any
Multiemployer Plan, such representation is deemed made only to the knowledge
of the Borrower). No "accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA), extension of any
amortization period (within the meaning of Section 412 of the Code) or Lien
in favor of the PBGC or a Plan has arisen or has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Single Employer Plan. As of the last annual
valuation date prior to the date on which this representation is made or
deemed made, the fair market value of the assets available for benefits under
each Single Employer Plan did not exceed the actuarial present value of all
accumulated benefit obligations under such Plan by more than $20,000,000, all
as determined in accordance with Statement of Financial Accounting Standards
No. 87. Neither the Borrower nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan for which there is
any outstanding liability, and neither the Borrower nor any Commonly
Controlled Entity would become subject to any liability under ERISA if the
Borrower or any such Commonly Controlled Entity were to withdraw completely
from all Multiemployer Plans as of the valuation date most closely preceding
the date on which this representation is made or deemed made in an amount
which would be reasonably likely to have a Material Adverse Effect. To the
best knowledge of the Borrower, no such Multiemployer Plan is in
Reorganization or Insolvent.
4.13 Investment Company Act; Other Regulations. None of
the Borrower or any of its Subsidiaries is an "investment company," or a
company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended. None of the Borrower or any of
its subsidiaries is not subject to regulation under any Federal or State
statute or regulation (other than Regulation X of the Board of Governors of
the Federal Reserve System) which limits its ability to incur Indebtedness.
4.14 Subsidiaries. After giving effect to the consummation
of the Transaction, the Subsidiaries of the Borrower and their respective
jurisdictions of incorporation shall be as set forth on Schedule 4.14.
4.15 Purpose of Loans. The proceeds of the Loans shall be
used by the Borrower (i) to finance a portion of the Transaction and related
fees and expenses in an aggregate amount not to exceed $185,000,000 and (ii)
for working capital purposes in the ordinary course of business of the
Borrower and its Subsidiaries.
4.16 Environmental Matters.
Except insofar as any exception to any of the following, or
any aggregation of such exceptions, is not reasonably likely to result in a
Material Adverse Effect:
(a) The facilities and properties owned, leased or operated
Holdings, by the Borrower or any of its Subsidiaries (the
"Properties") do not contain, and have not previously contained, any
Materials of Environmental Concern in amounts or concentrations which
(i) constitute or constituted a violation of, or (ii) could
reasonably be expected to give rise to liability under, any
applicable Environmental Law.
(b) None of Holdings, the Borrower nor any of its
Subsidiaries has received any written notice of violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with
regard to any of the Properties or the Business, nor does the
Borrower have knowledge or reason to believe that any such notice
will be received or is being threatened.
(c) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in
a manner or to a location which could reasonably be expected to give
rise to liability under, any applicable Environmental Law, nor have
any Materials of Environmental Concern been generated, treated,
stored or disposed of at, on or under any of the Properties in
violation of, or in a manner that could reasonably be expected to
give rise to liability under, any applicable Environmental Law.
(d) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of the
Borrower, threatened, under any Environmental Law to which Holdings,
the Borrower or any Subsidiary is or, to the knowledge of the
Borrower, will be named as a party or with respect to the Properties
or the Business, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business.
(e) There has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or
arising from or related to the operations of Holdings, the Borrower
or any Subsidiary in connection with the Properties or otherwise in
connection with the Business, in violation of or in amounts or in a
manner that could reasonably give rise to liability under any
applicable Environmental Laws.
(f) The Properties and all operations at the Properties are
in compliance, and have in the last 3 years been in compliance, in
all material respects with all applicable Environmental Laws, and
there is no contamination at, under or about the Properties or
violation of any applicable Environmental Law with respect to the
Properties or the business operated by Holdings, the Borrower or any
of its Subsidiaries (the "Business") which could materially interfere
with the continued operation of the Properties or materially impair
the fair saleable value thereof.
(g) Holdings, the Borrower and its Subsidiaries hold and
are in compliance with all Environmental Permits necessary for their
operations.
4.17 Collateral Documents. (a) Upon execution and
delivery thereof by the parties thereto, each of the Borrower Pledge and
Security Agreement, the Subsidiary Pledge and Security Agreement and the
Parent Pledge and Security Agreement will be effective to create in favor of
the Administrative Agent, for the ratable benefit of the Lenders, a legal,
valid and enforceable security interest in the pledged stock described
therein and, when stock certificates representing or constituting the pledged
stock described therein are delivered to the Administrative Agent, such
security interest shall, subject to the existence of Permitted Liens,
constitute a perfected first lien on, and security interest in, all right,
title and interest of the pledgor party thereto in the pledged stock
described therein.
(b) Upon execution and delivery thereof by the parties
thereto, each of the Borrower Pledge and Security Agreement, the Subsidiary
Pledge and Security Agreement and the Parent Pledge and Security Agreement
will be effective to create in favor of the Administrative Agent, for the
ratable benefit of the Lenders, a legal, valid and enforceable security
interest in the collateral described therein. Uniform Commercial Code
financing statements have been filed in each of the jurisdictions listed on
Schedule 4.17, each such Agreement has been filed in each of the government
offices listed on Schedule 4.17 or arrangements have been made for such
filing in such jurisdictions, and upon such filings, and upon the taking of
possession by the Administrative Agent of any such collateral the security
interests in which may be perfected only by possession, such security
interests will, subject to the existence of liens as permitted by the
definition of Permitted Liens, constitute perfected first priority liens on,
and security interests in, all right, title and interest of the debtor party
thereto in the collateral described therein, except, in the case of each of
the Borrower Pledge and Security Agreement, the Subsidiary Pledge and
Security Agreement and the Parent Pledge and Security Agreement, to the
extent that a security interest cannot be perfected therein by the filing of
a financing statement or the taking of possession under the Uniform
Commercial Code of the relevant jurisdiction.
(c) Upon (a) execution and delivery of the Mortgages by the
parties thereto, (b) the recording of such Mortgages in the jurisdiction
listed on Schedule 4.17 and (c) the payment of any required mortgage
recording taxes, each of the Mortgages will be effective to create in favor
of the Administrative Agent, for the ratable benefit of the Lenders, a legal,
valid and enforceable lien on the real property described therein and such
liens will, as of the Closing Date, subject to the existence of liens as
permitted by clauses (a), (e), (f) and (g) of the definition of Permitted
Liens, constitute first priority liens on the real property described
therein.
4.18 Accuracy and Completeness of Information. No fact is
known to Holdings, the Borrower or any of its Subsidiaries which has had or
could reasonably be expected to have a Material Adverse Effect, which has not
been disclosed to the Lenders by Holdings, the Borrower or its Subsidiaries
in writing prior to the date hereof. No document furnished or statement made
in writing to the Lenders by Holdings, the Borrower, any Subsidiary or any
party to any of the Transaction Documents in connection with the negotiation,
preparation or execution of this Agreement or any of the other Credit
Documents, taken as a whole, (including the Confidential Offering Memorandum
dated April 1997 relating to this facility but excluding all projections
(including industry forecasts and statistical data) and pro forma financial
statements (whether or not contained therein) which shall have been prepared
in good faith and based upon reasonable assumptions) contains any untrue
statement of a material fact or omits to state any such material fact
necessary in order to make the statements contained therein not misleading in
the context in which such statements are made. The Equity Documents
constitute all of the agreements relating to the Equity Investment and the
Subordinated Debt Documents constitute all of the agreements relating to the
Subordinated Debt.
4.19 Solvency. On the Closing Date and after giving effect
to the Asset Contribution and the other transactions contemplated by the
Transaction Documents including borrowings hereunder on such date and the
incurrence of all other Indebtedness and Guarantee Obligations being incurred
on such date, the Borrower is "Solvent," in that (a) the property, at a fair
valuation, of Holdings and its Subsidiaries, individually and taken together
as a single entity, will exceed their debts, (b) the present fair salable
value of the assets of Holdings and its Subsidiaries, individually and taken
together as a single entity, is not less than the amount that will be
required to pay their probable liabilities as such debts become absolute and
matured, and (c) the Borrower does not intend to, and does not believe that
Holdings and its Subsidiaries, individually and taken together as a single
entity, will, incur debts or liabilities beyond the their ability to pay as
such debts and liabilities mature. For purposes of this subsection, "debt"
means "liability on a claim" and "claim" means any (i) right to payment,
whether or not such a right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured, or unsecured or (ii) right to an equitable remedy for
breach of performance if such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured, unmatured, disputed, undisputed, secured, or
unsecured.
4.20 Labor Matters. There are no strikes pending or, to
the Borrower's knowledge, overtly threatened against Holdings, the Borrower
or any of its Subsidiaries which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect. The hours worked
and payments made to employees of Holdings, the Borrower and each of its
Subsidiaries (and their predecessors) have not been in violation of the Fair
Labor Standards Act or any other applicable Requirement of Law, except to the
extent such violations could not, or in the aggregate, be reasonably expected
to have a Material Adverse Effect.
4.21 Transaction Documents. To the best of the Borrower's
knowledge, the representations and warranties contained in the Transaction
Documents, taken as a whole, are true and correct in all material respects as
of the Closing Date. On the Closing Date, the Asset Contribution will have
been consummated in accordance with the Transaction Documents.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Loans. The agreement of each
Lender to make the initial extension of credit requested to be made by it is
subject to the satisfaction, immediately prior to or concurrently with the
making of such extension of credit (including the making of any Loan or the
issuance of any Letter of Credit) on the Closing Date, of the following
conditions precedent:
(a) Credit Documents. The Administrative Agent shall have
received (i) this Agreement, (ii) the Guarantees, (iii) the Mortgages
and (iv) the Security Documents, in each case executed, duly
acknowledged and delivered by duly authorized officers of each party
thereto, with a counterpart or a conformed copy for each Lender.
Notwithstanding the foregoing, no Foreign Subsidiary of Holdings or
the Borrower shall be required to execute a Subsidiary Guarantee or
Subsidiary Pledge and Security Agreement, and no more than 65% of the
capital stock of or equity interests in any Foreign Subsidiary of the
Borrower, Holdings or any of their Subsidiaries, or any other of
their Subsidiaries if more than 65% of the assets of such Subsidiary
are securities of foreign companies (such determination to be made on
the basis of fair market value), shall be required to be pledged
hereunder.
(b) Related Agreements. The Administrative Agent shall
have received, with a copy for each Lender, true and correct copies,
certified as to authenticity by the Borrower, of each of the
Transaction Documents and such other documents or instruments as may
be reasonably requested by the Administrative Agent, including,
without limitation, a copy of any debt instrument, security agreement
or other material contract to which the Borrower or any of its
Subsidiaries may be a party (after giving effect to the Asset
Contribution).
(c) Asset Contribution. The Asset Contribution shall have
been consummated pursuant to the Transaction Agreement, and no
material provision of the Transaction Agreement shall have been
amended, supplemented, waived or otherwise modified without the prior
written consent of the Agents. The Agents shall be reasonably
satisfied with the aggregate amount of fees and expenses payable by
the Borrower and its Subsidiaries in connection with the transactions
contemplated hereby and by the Transaction Documents.
(d) Capitalization; Capital Structure (i) After giving
effect to the Asset Contribution and the other transactions
contemplated by the Transaction Documents, the Borrower shall have
the capital structure set forth in the Pro Forma Financial
Statements.
(ii) The Subordinated Debt Documents shall have been
executed and delivered by the parties thereto (and shall be in form
and substance reasonably satisfactory to the Agents), shall be in
full force and effect and none of the provisions thereof shall have
been amended, waived, supplemented or otherwise modified without the
prior written consent of the Agents; and the Borrower shall have
issued the Subordinated Debt in a principal amount, and received
gross proceeds in the amount of $225,000,000.
(iii) The Equity Documents shall have been executed and
delivered by the parties thereto (and shall be in form and substance
reasonably satisfactory to the Agents), shall be in full force and
effect and none of the provisions thereof shall have been amended,
waived, supplemented or otherwise modified without the prior written
consent of the Agents; and the Borrower shall have received at least
$79,850,000 in net cash proceeds in accordance with the terms of the
Equity Documents.
(e) Fees. The Agents, the Arranger and the Lenders shall
have received all fees, expenses and other consideration required to
be paid on or before the Closing Date.
(f) Lien Searches. The Administrative Agent shall have
received the results of a search of Uniform Commercial Code, tax and
judgment filings made with respect to each of the Borrower and its
Subsidiaries (after giving effect to the Asset Contribution) and,
without duplication, the Lockheed Xxxxxx Predecessor Businesses and
the Loral Acquired Businesses in the jurisdictions set forth on
Schedule 4.17 together with copies of financing statements disclosed
by such searches, and such searches shall disclose no Liens on any
assets encumbered by any Security Document, except for Liens
permitted hereunder or, if unpermitted Liens are disclosed, the
Administrative Agent shall have received satisfactory evidence of the
release of such Liens.
(g) Consents, Authorizations and Filings, etc. Except for
the financing statements contemplated by the Security Documents and
the filing of the Security Documents and the Assignment Consent, all
consents, authorizations and filings, if any, required in connection
with the execution, delivery and performance by the Credit Parties,
and the validity and enforceability against the Credit Parties, of
the Credit Documents to which any of them is a party, shall have been
obtained or made, and such consents, authorizations and filings shall
be in full force and effect, except such consents, authorizations and
filings, the failure to obtain which would not have a Material
Adverse Effect.
(h) Insurance. The Lenders shall have received (i) a
reasonably satisfactory schedule describing all insurance maintained
by the Borrower and its Subsidiaries (after giving effect to the
Asset Contribution) pursuant to subsection 6.5, and (ii) binders (or
other customary evidence as to the obtaining and maintenance by the
Borrower and its Subsidiaries of such insurance) for each policy set
forth on such schedule insuring against casualty and other usual and
customary risks.
(i) Litigation. On the Closing Date, there shall be no
actions, suits or proceedings pending or threatened against any
Credit Party (a) with respect to this Agreement or any other Credit
Document or any Transaction Document or the transactions contemplated
hereby or thereby (including the Asset Contribution) or (b) which the
Agents or the Required Lenders shall determine could reasonably be
expected to have a Material Adverse Effect.
(j) Borrowing Certificate. The Administrative Agent shall
have received, with a counterpart for each Lender, a certificate of
the Borrower, dated the Closing Date, substantially in the form of
Exhibit E, with appropriate insertions and attachments, reasonably
satisfactory in form and substance to the Administrative Agent,
executed by the President or any Vice President and the Secretary or
any Assistant Secretary of the Borrower.
(k) Corporate Proceedings of the Borrower. The
Administrative Agent shall have received, with a counterpart for each
Lender, a copy of the resolutions, in form and substance reasonably
satisfactory to the Administrative Agent, of the Board of Directors
of the Borrower authorizing (i) the execution, delivery and
performance of the Credit Documents to which it is a party, (ii) the
borrowings contemplated hereunder, (iii) the granting by it of the
Liens created pursuant to the Security Documents to which it is a
party and (iv) the execution, delivery and performance of the
Transaction Documents to which it is a party, certified by the
Secretary or an Assistant Secretary of the Borrower as of the Closing
Date, which certificate shall be in form and substance reasonably
satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified,
revoked or rescinded.
(l) Borrower Incumbency Certificate. The Administrative
Agent shall have received, with a counterpart for each Lender, a
Certificate of the Borrower, dated the Closing Date, as to the
incumbency and signature of the officers of the Borrower executing
any Credit Document reasonably satisfactory in form and substance to
the Administrative Agent, executed by the President or any Vice
President and the Secretary or any Assistant Secretary of the
Borrower.
(m) Corporate Proceedings of Other Credit Parties. The
Administrative Agent shall have received, with a counterpart for each
Lender, a copy of the resolutions, in form and substance satisfactory
to the Administrative Agent, of the Board of Directors of each Credit
Party (other than the Borrower) authorizing (i) the execution,
delivery and performance of the Credit Documents to which it is a
party, (ii) the granting by it of the Liens created pursuant to the
Security Documents to which it is a party and (iii) the execution,
delivery and performance of the Transaction Documents to which it is
a party, certified by the Secretary or an Assistant Secretary of each
such Credit Party as of the Closing Date, which certificate shall be
in form and substance reasonably satisfactory to the Administrative
Agent and shall state that the resolutions thereby certified have not
been amended, modified, revoked or rescinded.
(n) Credit Party Incumbency Certificates. The
Administrative Agent shall have received, with a counterpart for each
Lender, a certificate of each Credit Party (other than the Borrower),
dated the Closing Date, as to the incumbency and signature of the
officers of such Credit Party executing any Credit Document,
reasonably satisfactory in form and substance to the Administrative
Agent, executed by the President or any Vice President and the
Secretary or any Assistant Secretary of each such Credit Party.
(o) Corporate Documents. The Administrative Agent shall
have received, with a counterpart for each Lender, true and complete
copies of the certificate of incorporation and by-laws of each Credit
Party, certified as of the Closing Date as complete and correct
copies thereof by the Secretary or an Assistant Secretary of the such
Credit Party.
(p) Legal Opinions. The Administrative Agent shall have
received, with a counterpart for each Lender, the following executed
legal opinions:
(i) the executed legal opinion of each of
Xxxxxxx Xxxxxxx and Xxxxxxxx and Fried, Harris, Xxxxxxx &
Xxxxxxxx, counsel to the Borrower and the other Credit
Parties, substantially in the form of Exhibits D-1 and D-2,
respectively; and
(ii) the executed legal opinions of each of
Xxxxxxx Xxxxxxx and Xxxxxxxx and Miles & StockBridge,
counsel to the Seller delivered pursuant to the Transaction
Agreement, each accompanied by a reliance letter in favor of
the Lenders.
Each such legal opinion shall cover such other matters incident to
the transactions contemplated by this Agreement as the Agents may
reasonably require.
(q) Pledged Stock; Stock Powers. The Administrative Agent
shall have received the certificates representing the shares pledged
pursuant to each of the Security Documents together with an undated
stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof.
(r) Actions to Perfect Liens. (i) The Administrative Agent
shall have received evidence in form and substance reasonably
satisfactory to it that all filings, recordings, registrations and
other actions, including, without limitation, the filing of duly
executed financing statements on form UCC-1, necessary or, in the
opinion of the Administrative Agent, desirable to perfect the Liens
created by the Security Documents shall have been completed. The
Borrower shall have delivered to the Administrative Agent (A) each
Mortgage, each executed and delivered by a duly authorized officer of
the mortgagor party thereto, with a counterpart or a conformed copy
for each Lender and (B) legal opinions from local counsel in the
jurisdictions of such Mortgage relating to such Mortgage and the
perfection of Liens created by the Security Documents on personal
property located in such jurisdiction, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(ii) The Borrower shall have delivered to the
Administrative Agent and the title insurance company issuing
the policy referred to below (the "Title Insurance Company")
maps or plats of an as-built survey of the sites of the
property covered by each Mortgage (other than as set forth
on Schedule 6.10) certified to the Administrative Agent and
the Title Insurance Company in a manner satisfactory to
them, dated a date reasonably satisfactory to the
Administrative Agent and the Title Insurance Company by an
independent professional licensed land surveyor reasonably
satisfactory to the Administrative Agent and the Title
Insurance Company, which maps or plats and the surveys on
which they are based shall be made in accordance with the
Minimum Standard Detail Requirements for Land Title Surveys
jointly established and adopted by the American Land Title
Association and the American Congress on Surveying and
Mapping in 1992, and, without limiting the generality of the
foregoing, there shall be surveyed and shown on such maps,
plats or surveys the following: (A) the locations on such
sites of all the buildings, structures and other
improvements and the established building setback lines; (B)
the lines of streets abutting the sites and width thereof;
(C) all access and other easements appurtenant to the sites
or necessary or desirable to use the sites; (D) all
roadways, paths, driveways, easements, encroachments and
overhanging projections and similar encumbrances affecting
the site, whether recorded, apparent from a physical
inspection of the sites or otherwise known to the surveyor;
(E) any encroachments on any adjoining property by the
building structures and improvements on the sites; and (F)
if the site is described as being on a filed map, a legend
relating the survey to said map.
(iii) The Borrower shall deliver to the
Administrative Agent in respect of each parcel covered by
each Mortgage (other than as set forth on Schedule 6.10) a
mortgagee's title policy (or policies) or marked up
unconditional binder for such insurance dated a date
reasonably satisfactory to the Agents. Each such policy
shall (A) be in an amount reasonably satisfactory to the
Agents; (B) be issued at ordinary rates; (C) insure that the
Mortgage insured thereby creates a valid first Lien on such
parcel free and clear of all defects and encumbrances,
except for liens permitted by clauses (a), (e), (f) and (g)
of the definition of Permitted Liens and such other liens
and defects as may be approved by the Agents; (D) name the
Administrative Agent for the benefit of the Lenders as the
insured thereunder; (E) be in the form of ALTA Loan Policy -
1992; (F) contain such endorsements and affirmative coverage
as the Agents may reasonably request and (G) be issued by
title companies satisfactory to the Agents (including any
such title companies acting as co-insurers or reinsures, at
the option of the Agents). The Administrative Agent shall
have received evidence reasonably satisfactory to it that
all premiums in respect of each such policy, and all charges
for mortgage recording tax, if any, have been paid.
(iv) If required pursuant to Regulation H of
the Board of Governors of the Federal Reserve System
("Regulation H") the Borrower shall deliver to the
Administrative Agent (A) a policy of flood insurance which
(1) covers any parcel of improved real property which is
encumbered by any Mortgage, (2) is written in an amount not
less than the outstanding principal amount of the
indebtedness secured by such Mortgage which is reasonably
allocable to such real property or the maximum limit of
coverage made available with respect to the particular type
of property under the National Flood Insurance Act of 1968,
whichever is less, and (3) has a term ending not earlier
than the maturity of the indebtedness secured by such
Mortgage and (B) confirmation that the Borrower has received
the notice required pursuant to Section 208(e)(3) of
Regulation H.
(v) The Borrower shall deliver to the
Administrative Agent a copy of all recorded documents
referred to, or listed as exceptions to title in, the title
policy or policies referred to in this subsection 3.1(r) and
a copy, certified by such parties as the Agents may
reasonably deem appropriate, of all other documents
affecting the property covered by each Mortgage (other than
as set forth on Schedule 6.10).
(vi) With respect to any parcel of real
property owned in fee by the Borrower or any Subsidiary on
which fixtures having an aggregate book value exceeding
$250,000 are located, take all actions that the Agents may
reasonably require, including (if such property is not
covered by a recorded Mortgage) the filing of UCC fixture
filing financing statements, to cause the security interest
created by the Security Documents in such fixtures to be
perfected and with respect to any parcel of real property
leased by the Borrower or any Subsidiary on which fixtures
having an aggregate book value exceeding $250,000 are
located, use commercially reasonable efforts to obtain the
consent of the landlord of such property to the filing of
UCC fixture filing financing statements and make such
filings if such consent is obtained.
(s) Solvency Opinion. The Administrative Agent shall have
received, with a counterpart for each Lender, a solvency opinion
reasonably satisfactory to the Agents from an independent valuation
firm reasonably satisfactory to the Agents which shall document the
solvency of Holdings and its Subsidiaries (including the Borrower)
individually and taken together as a single entity, after giving
effect to the Asset Contribution, the making of the Loans, the
issuance of the Subordinated Debt and the other transactions
contemplated hereby and by the Transaction Documents.
(t) Environmental Report. The Administrative Agent shall
have received an environmental report prepared by H2M Associates,
Inc., dated April 1997, regarding Holdings and its Subsidiaries, and
a letter that entitles the Administrative Agent, the other Agents and
the Lenders to rely on such report as if prepared for and addressed
to each of them.
(u) Business Plan. The Lenders shall have received a
reasonably satisfactory business plan for Holdings and its
Subsidiaries for the period beginning January 1, 1997 and ending
December 31, 2006, which plan shall include a written analysis of the
business and prospects of Holdings and its Subsidiaries.
5.2 Conditions to Each Extension of Credit. The agreement
of each Lender to make any extension of credit requested to be made by it on
any date (including, without limitation, its initial Loan but excluding
Revolving Credit Loans made to repay Refunded Swing Line Loans) is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower and each Credit
Party in or pursuant to the Credit Documents shall be true and
correct in all material respects on and as of such date as if made on
and as of such date, except for any representation and warranty which
is expressly made as of an earlier date, which representation and
warranty shall have been true and correct in all material respects as
of such earlier date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or will occur or exist after
giving effect to the extensions of credit requested to be made on
such date.
(c) Additional Matters. All corporate and other
proceedings, and all documents, instruments and other legal matters
in connection with the transactions contemplated by this Agreement
and the other Credit Documents shall be satisfactory in form and
substance to the Agents, and the Administrative Agent shall have
received such other documents and legal opinions in respect of any
aspect or consequence of the transactions contemplated hereby or
thereby as it shall reasonably request.
Each borrowing by, and each Letter of Credit issued on behalf of, the
Borrower hereunder shall constitute a representation and warranty by the
Borrower as of the date thereof that the conditions contained in this
subsection have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect or any amount is owing to any Lender or any Agent hereunder
or under any other Credit Document, the Borrower shall and (except in the
case of delivery of financial information, reports and notices) shall cause
each of its Subsidiaries to:
6.1 Financial Statements. Furnish to the Administrative
Agent with copies for each Lender:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, (i) a copy of the
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related consolidated
statements of income and retained earnings and of cash flows for such
year, setting forth in each case in comparative form the figures for
the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope
of the audit, by independent certified public accountants of
nationally recognized standing and (ii) an unaudited unconsolidated
balance sheet of Holdings prepared on an equity basis (without
footnote disclosure) certified by a Responsible Officer of Holdings
as being fairly stated in all material respects;
(b) as soon as available, but in any event not later than
45 days after the end of each of the first three quarterly periods of
each fiscal year of the Borrower, the unaudited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end
of such quarter and the related unaudited consolidated statements of
income and retained earnings and of cash flows of the Borrower and
its consolidated Subsidiaries for such quarter and the portion of the
fiscal year through the end of such quarter, setting forth in each
case in comparative form the figures for the previous year, certified
by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with
GAAP applied consistently throughout the periods reflected therein and with
prior periods (except as approved by such accountants or officer, as the case
may be, and disclosed therein).
6.2 Certificates; Other Information. Furnish to the
Administrative Agent with copies for each Lender:
(a) concurrently with the delivery of the financial
statements referred to in subsection 6.1(a), a certificate of the
independent certified public accountants reporting on such financial
statements stating that, in performing their audit, nothing came to
their attention that caused them to believe that the Borrower failed
to comply with the provisions of subsection 7.1, except as specified
in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsections 6.1(a) and (b), a certificate
of a Responsible Officer stating that, to the best of such Officer's
knowledge, during such period (i) no Subsidiary has been formed or
acquired (or, if any such Subsidiary has been formed or acquired, the
Borrower has complied with the requirements of subsection 6.10 with
respect thereto), (ii) none of Holdings, the Borrower nor any of its
Subsidiaries has changed its name, its principal place of business,
its chief executive office or the location of any material item of
tangible Collateral without complying with the requirements of this
Agreement and the Security Documents with respect thereto and (iii)
such Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate;
(c) concurrently with the delivery of financial statements
pursuant to subsection 6.1(a) or (b), a certificate of the chief
financial officer of the Borrower setting forth, in reasonable
detail, the computations, as applicable, of (i) the Debt Ratio, (ii)
Excess Cash Flow and (iii) the financial covenants set forth in
subsection 7.1, as of such last day or for the fiscal period then
ended, as the case may be;
(d) not later than 60 days after the end of each fiscal
year of the Borrower, a copy of the projections by the Borrower of
the operating budget and cash flow budget of the Borrower and its
Subsidiaries for the succeeding fiscal year, such projections to be
accompanied by a certificate of a Responsible Officer to the effect
that such projections have been prepared on the basis of sound
financial planning practice and that such Officer has no reason to
believe they are incorrect or misleading in any material respect;
(e) within five days after the same are sent, copies of all
financial statements and reports which the Borrower or Holdings sends
to its stockholders, and within five days after the same are filed,
copies of all financial statements and other reports which the
Borrower or Holdings may make to, or file with, the Securities and
Exchange Commission or any successor or analogous Governmental
Authority; and
(f) promptly, such additional financial and other
information as any Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case
may be, all its material obligations of whatever nature, except where the
amount or validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with respect
thereto have been provided on the books of the Borrower or its Subsidiaries,
as the case may be; provided that, notwithstanding the foregoing, the
Borrower and each of its Subsidiaries shall have the right not to pay any
such obligation and in good faith contest, by proper legal actions or
proceedings, the invalidity or amount of such claims.
6.4 Conduct of Business and Maintenance of Existence.
Except as permitted by subsection 7.5 and subsection 7.6, continue to engage
in business of the same general type as now conducted by it (after giving
effect to the Transaction); preserve, renew and keep in full force and effect
its corporate existence and take all reasonable action to maintain all
rights, privileges and franchises necessary or desirable in the normal
conduct of its business; and keep all property useful and necessary in its
business in good working order and condition except if (i) in the reasonable
business judgment of the Borrower or such Subsidiary, as the case may be, it
is in its best economic interest not to preserve and maintain such rights,
privileges or franchises, and (ii) such failure to preserve and maintain such
privileges, rights or franchises would not materially adversely affect the
rights of the Lenders hereunder or the value of the Collateral, and except as
otherwise permitted pursuant to subsection 7.5; comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to
comply therewith could not, in the aggregate, be reasonably expected to have
a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. (a) Maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks (but
including in any event public liability, cargo loss and business
interruption) as are usually insured against in the same general area by
companies engaged in the same or a similar business; and furnish to the
Administrative Agent with copies for each Lender, upon written request, full
information as to the insurance carried except to the extent that the failure
to do any of the foregoing with respect to any such property could not
reasonably be expected to materially adversely affect the value or usefulness
of such property; provided that in any event the Borrower will maintain, and
will cause each of its Subsidiaries to maintain, to the extent obtainable on
commercially reasonable terms, (i) property and casualty insurance on all
real and personal property on an all risks basis (including the perils of
flood and quake), covering the repair or replacement cost of all such
property and consequential loss coverage for business interruption and extra
expense (which shall be limited to fixed construction expenses and such other
business interruption expenses as are otherwise generally available to
similar businesses), covering such risks, for such amounts not less than
those, and with deductible and self-insurance amounts not greater than those,
set forth in Schedule 6.5, (ii) public liability insurance (including
products liability coverage) covering such risks, for such amounts no less
than those, and with deductible amounts not greater than those, set forth in
Schedule 6.5 and (iii) such other insurance coverage in such amounts and with
respect to such risks as the Required Lenders may reasonably request. All
such insurance shall be provided by insurers or reinsurers which (x) in the
case of the United States insurers and reinsurers have an A.M. Best
policyholders rating of not less than A- with respect to primary insurance
and B+ with respect to excess insurance and (y) in the case of non-United
States insurers or reinsurers, the providers of at least 80% of such
insurance have either an ISI policyholders rating of not less than A, an A.M.
Best policyholders rating of not less than A- or a surplus of not less than
$500,000,000 with respect to primary insurance, and an ISI policyholders
rating of not less than BBB with respect to excess insurance, or, if the
relevant insurance is not available from such insurers, such other insurers
as the Administrative Agent may approve in writing. Such insurers may
include a Subsidiary of the Borrower; provided that such Subsidiary need not
satisfy the foregoing requirements if all but $15,000,000 of the insurance
provided by such Subsidiary is reinsured by one or more reinsurers which
satisfy such requirements.
(b) The Borrower will deliver to the Administrative Agent
on behalf of the Lenders, (i) on the Closing Date, a certificate dated such
date showing the amount of coverage as of such date, (ii) upon request of any
Lender through the Administrative Agent from time to time full information as
to the insurance carried, (iii) promptly following receipt of notice from any
insurer, a copy of any notice of cancellation or material change in coverage
from that existing on the Closing Date, (iv) forthwith, notice of any
cancellation or nonrenewal of coverage by the Borrower or any Subsidiary, and
(v) promptly after such information is available to the Borrower, full
information as to any claim for an amount in excess of $2,500,000 which
respect to any property and casualty insurance policy maintained by the
Borrower or any Subsidiary. The Administrative Agent shall be named as
additional insured on all property and casualty insurance policies and a loss
payee on all property insurance policies. Any proceeds from any such
insurance policy in respect of any claim, or any condemnation award or other
compensation in respect of a condemnation (or any transfer or disposition of
property in lieu of condemnation) for which the Borrower or any of its
Subsidiaries receives a condemnation award or other compensation shall be
paid to the Borrower or the Subsidiary; provided that: (A) the Borrower or
the Subsidiary will use such proceeds, condemnation award or other
compensation to repair, restore or replace the assets which were the subject
of such claim within 6 months (or in the case of real property, 12 months)
after receipt thereof (and a Responsible Officer shall deliver a certificate
specifying in reasonable detail such usage not later than the last day of
such relevant period), and (B) if, at the time of the receipt of such
proceeds, condemnation award or other compensation, an Event of Default has
occurred and is continuing, the aggregate amount of all such proceeds,
condemnation award or other compensation shall be paid to the Administrative
Agent and held as collateral for application in accordance with the Security
Documents; and provided further that, to the extent that any amount of such
proceeds, condemnation award or other compensation are not used or committed
during the time periods specified in proviso (A) above, then, if requested by
notice from the Required Lenders to the Borrower, all such remaining
uncommitted proceeds, condemnation award or other compensation shall be paid
to the Administrative Agent and held as Collateral for application in
accordance with the Security Documents.
6.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of
all dealings and transactions in relation to its business and activities; and
permit representatives of any Lender to visit and inspect any of its
properties and examine and make abstracts from any of its books and records
(except to the extent any such access is restricted by a Requirement of Law)
at any reasonable time on a Business Day and as often as may reasonably be
desired and to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries with officers and
employees of the Borrower and its Subsidiaries and with its independent
certified public accountants; provided that the Administrative Agent or such
Lender shall notify the Borrower prior to any contact with such accountants
and give the Borrower the opportunity to participate in such discussions;
provided, further, that the Borrower shall notify the Administrative Agent of
any such visits, inspections or discussions prior to each occurrence thereof.
6.7 Notices. Promptly give notice to the Administrative
Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any
Contractual Obligation of the Borrower or any of its Subsidiaries,
(ii) litigation, investigation or proceeding which may exist at any
time between the Borrower or any of its Subsidiaries and any
Governmental Authority, which in either case, if not cured or if
adversely determined, as the case may be, could reasonably be
expected to have a Material Adverse Effect or (iii) any material
asset sale (describing in reasonable detail the assets sold, the
consideration received therefor and the proposed use of the proceeds
thereof);
(c) any other litigation or proceeding affecting the
Borrower or any of its Subsidiaries in which the amount involved is
$7,500,000 or more and not covered by insurance or in which
injunctive or similar relief is sought; and
(d) the following events, as soon as possible and in any
event within 45 days after the Borrower knows or has reason to know
thereof: (i) the incurrence of an accumulated funding deficiency or
the filing of an application to the Secretary of the Treasury for a
waiver or modification of the minimum funding standard (including any
required installment payments) or an extension of any amortization
period under Section 412 of the Code with respect to a Plan, the
creation of any Lien in favor of the PBGC or a Plan, the occurrence
of any "Trigger Event" (as defined in the Transfer Agreements) and
the reassumption by the Seller of sponsorship of any Single Employer
Plan, (ii) except where such event or liability could not reasonably
be expected to have a Material Adverse Effect, the occurrence or
expected occurrence of any Reportable Event with respect to any Plan
(other than a Multiple Employer Plan), or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan,
or a failure to make any required contribution to a Plan, (iii) the
institution of proceedings by the PBGC with respect to the withdrawal
from, or the terminating, Reorganization or Insolvency of, any Single
Employer Plan or Multiemployer Plan or (iv) except as could not
reasonably be expected to have a Material Adverse Effect, the
institution of proceedings or the taking of any other action with
respect to the withdrawal from or termination of any Single Employer
Plan;
Each notice pursuant to this subsection shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto.
6.8 Environmental Laws. (a)(i) Comply in all material
respects with all Environmental Laws applicable to it, and obtain, comply in
all material respects with and maintain any and all material Environmental
Permits necessary for its operations as conducted and as planned; and (ii)
take all reasonable efforts to ensure that all of its tenants, subtenants,
contractors, subcontractors, and invitees comply in all material respects
with all applicable Environmental Laws, and obtain, comply in all material
respects with and maintain any and all material Environmental Permits,
applicable to any of them. Notwithstanding the foregoing, upon learning of
any actual or suspected noncompliance, the Borrower or one or more of its
Subsidiaries, as appropriate, shall promptly undertake all reasonable efforts
to achieve material compliance.
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions in each
case required under applicable Environmental Laws and promptly comply in all
material respects with all lawful orders and directives of all Governmental
Authorities regarding applicable Environmental Laws except to the extent that
the same are being contested in good faith by appropriate proceedings and the
pendency of such proceedings could not be reasonably expected to have a
Material Adverse Effect.
6.9 Further Assurances. Upon the reasonable request of the
Administrative Agent, promptly perform or cause to be performed any and all
acts and execute or cause to be executed any and all documents (including,
without limitation, financing statements and continuation statements) for
filing under the provisions of the Uniform Commercial Code or any other
Requirement of Law which are necessary or advisable to maintain in favor of
the Administrative Agent, for the benefit of the Lenders, Liens on the
Collateral that are duly perfected in accordance with all applicable
Requirements of Law.
6.10 Additional Collateral. (a) With respect to any
assets acquired after the Closing Date by the Borrower or any of its
Subsidiaries (including the Stock of newly created or acquired Subsidiaries)
that are intended to be subject to the Lien created by any of the Security
Documents but which are not so subject (other than (x) any assets described
in paragraph (b) of this Section and (y) immaterial assets a Lien on which
cannot be perfected by filing UCC-1 financing statements), promptly (and in
any event within 30 days after the acquisition thereof): (i) execute and
deliver to the Administrative Agent such amendments to the relevant Security
Documents or such other documents as the Administrative Agent shall deem
necessary or advisable to grant to the Administrative Agent, for the benefit
of the Lenders, a Lien on such assets, (ii) take all actions necessary or
advisable to cause such Lien to be duly perfected in accordance with all
applicable Requirements of Law, including, without limitation, the filing of
financing statements in such jurisdictions as may be requested by the
Administrative Agent, and (iii) if requested by the Administrative Agent,
deliver to the Administrative Agent legal opinions relating to the matters
described in clauses (i) and (ii) immediately preceding, which opinions shall
be in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(b) With respect to any Person that, subsequent to the
Closing Date, becomes a direct or indirect Subsidiary, promptly: (i) execute
and deliver to the Administrative Agent, for the benefit of the Lenders, such
amendments to the Subsidiary Pledge and Security Agreement as the
Administrative Agent shall deem necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a Lien on the Capital
Stock of such Subsidiary which is owned by the Borrower or any of its
Subsidiaries, (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers executed
and delivered in blank by a duly authorized officer of the Borrower or such
Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become
a party to the Subsidiary Pledge and Security Agreement, the Subsidiary
Guarantee and the Mortgages delivered pursuant to clause (B) below, in each
case pursuant to documentation which is in form and substance reasonably
satisfactory to the Administrative Agent, (B) to deliver to the Documentation
Agent Mortgages in form and substance reasonably satisfactory to the
Documentation Agent with respect to all real property of such Subsidiary, and
(C) to take all actions necessary or advisable to cause each Lien created by
the Subsidiary Pledge and Security Agreement and the Mortgages delivered
pursuant to clause (B) above to be duly perfected in accordance with all
applicable Requirements of Law, including, without limitation, the filing of
financing statements in such jurisdictions as may be requested by the
Administrative Agent and (iv) if requested by the Administrative Agent,
deliver to the Administrative Agent legal opinions relating to the matters
described in clauses (i), (ii) and (iii) immediately preceding, which
opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent. Notwithstanding the foregoing, no
Foreign Subsidiary of Holdings or the Borrower shall be required to execute a
Subsidiary Guarantee or Subsidiary Pledge and Security Agreement, and no more
than 65% of the capital stock of or equity interests in any Foreign
Subsidiary of the Borrower, Holdings or any of their Subsidiaries, or any
other of their Subsidiaries if more than 65% of the assets of such Subsidiary
are securities of foreign companies (such determination to be made on the
basis of fair market value), shall be required to be pledged hereunder.
(c) As promptly as practicable, but in any event within 120
days following the Closing Date, the Borrower shall have delivered to the
Administrative Agent (A) a Mortgage with respect the real property described
in Part I of Schedule 6.10, executed and delivered by a duly authorized
officer of the mortgagor party thereto, with a counterpart or a conformed
copy for each Lender and (B) legal opinions from local counsel in the
jurisdiction of such Mortgage relating to such Mortgage and the perfection of
Liens created by the Security Documents on personal property located in such
jurisdiction, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
(d) As promptly as practical, but in any event within 120
days following the Closing Date, the Borrower shall have delivered to the
Administrative Agent and the Title Insurance Company maps or plats of an
as-built survey of the sites of the property covered by each Mortgage set
forth on Part II of Schedule 6.10 certified to the Administrative Agent and
the Title Insurance Company in a manner satisfactory to them, dated a date
reasonably satisfactory to the Administrative Agent and the Title Insurance
Company by an independent professional licensed land surveyor reasonably
satisfactory to the Administrative Agent and the Title Insurance Company,
which maps or plats and the surveys on which they are based shall be made in
accordance with the Minimum Standard Detail Requirements for Land Title
Surveys jointly established and adopted by the American Land Title
Association and the American Congress on Surveying and Mapping in 1992, and,
without limiting the generality of the foregoing, there shall be surveyed and
shown on such maps, plats or surveys the following: (A) the locations on such
sites of all the buildings, structures and other improvements and the
established building setback lines; (B) the lines of streets abutting the
sites and width thereof; (C) all access and other easements appurtenant to
the sites or necessary or desirable to use the sites; (D) all roadways,
paths, driveways, easements, encroachments and overhanging projections and
similar encumbrances affecting the site, whether recorded, apparent from a
physical inspection of the sites or otherwise known to the surveyor; (E) any
encroachments on any adjoining property by the building structures and
improvements on the sites; and (F) if the site is described as being on a
filed map, a legend relating the survey to said map.
(e) As promptly as practical, but in any event within 120
days following the Closing Date, the Borrower shall deliver to the
Administrative Agent in respect of each parcel covered by each Mortgage set
forth on Part II Schedule 6.10 a mortgagee's title policy (or policies) or
marked up unconditional binder for such insurance dated a date reasonably
satisfactory to the Agents. Each such policy shall (A) be in an amount
reasonably satisfactory to the Agents; (B) be issued at ordinary rates; (C)
insure that the Mortgage insured thereby creates a valid first Lien on such
parcel free and clear of all defects and encumbrances, except for liens
permitted by clauses (a), (e), (f) and (g) of the definition of Permitted
Liens and such other liens and defects as may be approved by the Agents; (D)
name the Administrative Agent for the benefit of the Lenders as the insured
thereunder; (E) be in the form of ALTA Loan Policy - 1992; (F) contain such
endorsements and affirmative coverage as the Agents may reasonably request
and (G) be issued by title companies satisfactory to the Agents (including
any such title companies acting as co-insurers or reinsures, at the option of
the Agents). The Administrative Agent shall have received evidence
reasonably satisfactory to it that all premiums in respect of each such
policy, and all charges for mortgage recording tax, if any, have been paid.
(f) As promptly as possible, but in any event within 120
days following the Closing Date, the Borrower shall deliver to the
Administrative Agent a copy of all recorded documents referred to, or listed
as exceptions to title in, the title policy or policies referred to in
subsection 6.10(d) and a copy, certified by such parties as the Agents may
reasonably deem appropriate, of all other documents affecting the property
covered by each Mortgage set forth on Schedule 6.10.
(g) As promptly as possible, but in any event within 120
days following the Closing Date, if required pursuant to Regulation H of the
Board of Governors of the Federal Reserve System ("Regulation H") the
Borrower shall deliver to the Administrative Agent (A) a policy of flood
insurance which (1) covers the parcel of improved real property which is
encumbered by the Mortgage with respect to the real property set forth on
Part I of Schedule 6.10, (2) is written in an amount not less than the
outstanding principal amount of the indebtedness secured by such Mortgage
which is reasonably allocable to such real property or the maximum limit of
coverage made available with respect to the particular type of property under
the National Flood Insurance Act of 1968, whichever is less, and (3) has a
term ending not earlier than the maturity of the Indebtedness secured by such
Mortgage and (B) confirmation that the Borrower has received the notice
required pursuant to Section 208(e)(3) of Regulation H.
(h) As promptly as possible, but in any event within 120
days following the Closing Date, with respect to the parcel of real property
described in Part I of Schedule 6.10, the Borrower shall take all actions
that the Agents may reasonably require, including (if such property is not
covered by a recorded Mortgage) the filing of UCC fixture filing financing
statements, to cause the security interest created by the Security Documents
in such fixtures to be perfected and with respect to any parcel of real
property leased by the Borrower or any Subsidiary on which fixtures having an
aggregate book value exceeding $250,000 are located, use commercially
reasonable efforts to obtain the consent of the landlord of such property to
the filing of Ucc fixture filing financing statements and make such filings
if such consent is obtained.
(i) Use reasonable efforts to take any action reasonably
requested by the Agents with respect to any ground lease still in effect on
the real property described in Part III of Schedule 6.10.
6.11 Interest Rate Protection. Within 180 days after the
Closing Date, obtain interest rate protection for a period through June 30,
1999 for a notional amount of at least $59,000,000 on terms and conditions
reasonably satisfactory to the Agents.
6.12 Foreign Jurisdictions. Within 60 days following the
Closing Date, (i) be duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, except to the extent that the failure to so qualify could not,
in the aggregate, reasonably be expected to have a Material Adverse Effect,
and (ii) deliver to the Administrative Agent certificates of good standing
issued by the Secretary of State (or other relevant officers) of each
jurisdiction referred to in clause (i) of this subsection 6.12.
6.13 Novation; Federal Assignment of Claims. (a) (i) Use
commercially reasonable efforts to cause the Seller to perform its
obligations under subsection 7.08 of the Transaction Agreement, (ii) use best
efforts to perform its obligations under subsection 8.07 of the Transaction
Agreement and (iii) use its best efforts to obtain as soon as practicable
after the Closing Date the completion and effectiveness of the novation of
each Government Contract (as defined in the Transaction Agreement) and the
consent under the Assignment of Claims Act to the security interest of the
Agents and the Lenders in all of the right, title and interest of the
Borrower and its Subsidiaries in the Government Contracts (other than the
Restricted Government Contracts) sold, assigned, transferred and conveyed by
the Seller under the Transaction Agreement.
(b) Within ninety (90) days of the creation of a Government
Contract or, upon the occurrence and during the continuance of a Default or
an Event of Default, the Borrower and its Subsidiaries shall notify the
Administrative Agent thereof, which notice shall set forth (i) each GC Notice
Recipient with respect to such Government Contract and (ii) the anticipated
annual gross revenue under such Government Contract and shall execute and
deliver to the Administrative Agent all documents, in form and substance
reasonably satisfactory to the Administrative Agent, and take all such other
action (other than the transmittal of the notice of assignment to the U.S.
Government) reasonably required by the Administrative Agent to assign the
Receivables arising under such Government Contract (other than any Restricted
Government Contract), to the Administrative Agent pursuant to the Assignment
of Claims Act. The Borrower agrees that promptly upon obtaining knowledge
that any of the information provided pursuant to the first sentence of
subsection 6.13(b) has changed, it shall give written notice of such change
to the Administrative Agent. Upon the occurrence and during the continuance
of an Event of Default, the Administrative Agent may, and shall at the
direction of the Required Lenders, transmit any such notice of assignment
received by it from the Borrower and its Subsidiaries to the U.S. Government.
(c) The Borrower and its Subsidiaries shall apply for and
maintain all material facility security clearances and personnel security
clearances required of the Borrower under all Requirements of Law to perform
and deliver under any and all Government Contracts and as otherwise may be
necessary to continue to perform the business of the Borrower and its
Subsidiaries.
6.14 Maintenance of Collateral; Alterations. Refrain from
committing any waste on any Collateral, except in the ordinary course of its
business, or make any material change in the use of any Collateral, provided
that any Credit Party may sell or lease to any other Person all or any
portion of any item of Collateral that the Borrower has determined in good
faith is not used or useful in such Credit Party's operating business. Each
Credit Party granting a security interest in Collateral constituting real
property represents and warrants that, to the best of its knowledge: (a) such
Collateral is served by all utilities required or necessary for the current
use thereof; (b) all streets (or public rights-of-way) necessary to serve
such Collateral are completed and serviceable and have been dedicated and
accepted as such by the appropriate governmental entities or such Collateral
is served by insurable easements (or rights-of-way) for ingress and egress to
and from such streets (or rights-of-way); and (c) such Credit Party has
access to such Collateral from public roads (or rights-of-way), either
directly or by insurable easements (or rights-of-way), sufficient to allow
such Credit Parties to conduct its business at such Collateral in accordance
with sound commercial and industrial practices. The Credit Parties shall, at
all times, maintain all non-possessory collateral and all real estate
collateral that is materially useful or necessary in their respective
businesses, in good operating order, condition and repair, ordinary wear and
tear and damage by fire and/or other casualty or taking by condemnation
excepted, and in accordance with all applicable laws, rules and regulations,
(including, without limitation, Environmental Laws) the failure to comply
with which would have a material adverse effect on the value or usefulness of
such Collateral, except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings. Each Credit Party shall
do what is deemed commercially reasonable to maintain and preserve the value
of the Collateral.
6.15 Arrangements with the Seller.
(a) As promptly as practicable, but in any event within 90
days following the Closing Date, the Borrower shall have delivered to
the Administrative Agent the Supply Agreement, the License Agreement
and the Interim Services Agreement (each as defined in the
Transaction Agreement) executed and delivered by the Seller and the
Borrower which shall be reasonably satisfactory in form and substance
to the Agents; and
(b) As promptly as practicable, but in any event within 120
days following the Closing Date, the Borrower shall have delivered to
the Administrative Agent the executed consents of the lessors of the
real property leased by the Seller (which leaseholds constitute
Transferred Assets (as defined in the Transaction Agreement)) to the
transfer of such leaseholds to the Borrower, which consents shall be
reasonably satisfactory in form and substance to the Agents.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as any portion of
the Commitments remain in effect or any amount is owing to any Lender or any
of the Agents hereunder or under any other Credit Document, the Borrower
shall not, and (except with respect to subsection 7.1), shall not permit any
of its Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) Debt Ratio. Permit the Debt Ratio at the last day of
any fiscal quarter to be greater than the ratio set forth below
opposite the fiscal quarter during which such fiscal quarter occurs:
Fiscal Quarter Ending Ratio
--------------------- -----
September 30, 1997 5.75
December 31, 1997 5.50
March 31, 1998 5.50
June 30, 1998 5.50
September 30, 1998 5.25
December 31, 1998 5.25
March 31, 1999 5.25
June 30, 1999 5.25
September 30, 1999 4.75
December 31, 1999 4.75
March 31, 2000 4.75
June 30, 2000 4.75
September 30, 2000 4.25
December 31, 2000 4.25
March 31, 2001 4.25
June 30, 2001 4.25
September 30, 2001 3.60
December 31, 2001 3.60
March 31, 2002 3.60
June 30, 2002 3.60
September 30, 2002 3.10
December 31, 2002 3.10
March 31, 2003 3.10
June 30, 2003 3.10
September 30, 2003 3.10
December 31, 2003 3.10
March 31, 2004 3.10
June 30, 2004 3.10
September 30, 2004 3.10
December 31, 2004 3.10
March 31, 2005 3.10
June 30, 2005 3.10
September 30, 2005 3.10
December 31, 2005 3.10
and thereafter
(b) Interest Coverage. Permit the ratio of (i)
Consolidated EBITDA to (ii) Consolidated Cash Interest Expense during
any Test Period to be less than the ratio set forth opposite such
period below (such ratio, the "Interest Coverage Ratio"):
Test Period Interest Coverage Ratio
----------- -----------------------
7/1/97 - 9/30/97 1.50
10/1/97 - 12/31/97 1.85
1/1/98 - 3/31/98 1.85
4/1/98 - 6/30/98 1.85
7/1/98 - 9/30/98 1.90
10/1/98 - 12/31/98 1.90
1/1/99 - 3/31/99 1.90
4/1/99 - 6/30/99 1.90
7/1/99 - 9/30/99 2.15
10/1/99 - 12/31/99 2.15
1/1/00 - 3/31/00 2.15
4/1/00 - 6/30/00 2.15
7/1/00 - 9/30/00 2.35
10/1/00 - 12/31/00 2.35
1/1/01 - 3/31/01 2.35
4/1/01 - 6/30/01 2.35
7/1/01 - 9/30/01 2.75
10/1/01 - 12/31/01 2.75
1/1/02 - 3/31/02 2.75
4/1/02 - 6/30/02 2.75
7/1/02 - 9/30/02 3.10
10/1/02 - and thereafter 3.10
7.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness (including in respect of Interest
Rate Agreements, except:
(a) Indebtedness of the Borrower under this Agreement;
(b) Indebtedness of the Borrower incurred to finance the
acquisition of fixed or capital assets (whether pursuant to a loan, a
Financing Lease or otherwise) in an aggregate principal amount not
exceeding $15,000,000 at any time outstanding;
(c) Indebtedness of a corporation which becomes a
Subsidiary after the date hereof, provided that (i) such indebtedness
existed at the time such corporation became a Subsidiary and was not
created in anticipation thereof and (ii) immediately after giving
effect to the acquisition of such corporation by the Borrower no
Default or Event of Default shall have occurred and be continuing;
(d) additional Indebtedness of the Borrower not exceeding
$15,000,000 in aggregate principal amount at any one time
outstanding;
(e) Indebtedness of the Borrower in respect of not more
than $225,000,000 principal amount of Subordinated Debt issued on the
Closing Date;
(f) the Indebtedness of the Borrower and its Subsidiaries
outstanding on the Closing Date and reflected on Schedule 7.2(f), and
refundings or refinancings thereof, provided that no such refunding
or refinancing shall shorten the maturity or increase the principal
amount of the original Indebtedness;
(g) Indebtedness in respect of the Interest Rate Agreements
required by subsection 6.11;
(h) Guarantee Obligations permitted by subsection 7.4;
(i) the incurrence by any Credit Party of intercompany
Indebtedness between or among the Credit Parties; provided, however,
that if the Borrower is the obligor on such Indebtedness, such
Indebtedness is expressly subordinated to the prior payment in full
in cash of all Obligations;
(j) Indebtedness secured by Permitted Liens;
(k) Up to $25,000,000 of purchase money Indebtedness the
proceeds of which are utilized to acquire the real property
(including improvements thereon) and related assets currently
utilized by the Wide Band Systems division in Salt Lake City, Utah,
on terms reasonably satisfactory to the Lenders.
7.3 Limitation on Liens. Create, incur, assume or suffer
to exist any Lien upon any of its property, assets or revenues, whether now
owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings, provided that
adequate reserves with respect thereto are maintained on the books of
the Borrower or its Subsidiaries, as the case may be, in conformity
with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, zoning restrictions, other
restrictions and other similar encumbrances previously or hereafter
incurred in the ordinary course of business which, in the aggregate,
are not substantial in amount and which do not in any case materially
detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the Borrower
or such Subsidiary, or which are set forth in title insurance
policies or commitments delivered to Administrative Agent pursuant to
the terms of this Agreement;
(f) Liens in existence on the date hereof listed on
Schedule 7.3(f), securing Indebtedness permitted by subsection
7.2(f), provided that no such Lien is expanded to cover any
additional property (other than after-acquired title in or on such
property and proceeds of the existing collateral in accordance with
the instrument creating such Lien) after the Closing Date and that
the amount of Indebtedness secured thereby is not increased and
extensions, renewals or replacements thereof provided that no such
extension, renewal or replacement shall shorten the fixed maturity or
increase the principal amount of the original Indebtedness; and
provided, further, that the assets of the Borrower and its
Subsidiaries encumbered by such Liens are existing equipment and
other existing tangible assets;
(g) Liens securing Indebtedness of the Borrower and its
Subsidiaries permitted by subsection 7.2(b) and subsection 7.2(k)
incurred to finance the acquisition of fixed or capital assets,
provided that (i) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets,
(ii) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness (other than after acquired
title in or on such property and proceeds of the existing collateral
in accordance with the instrument creating such Lien) and (iii) the
principal amount of Indebtedness secured by any such Lien shall at no
time exceed 100% of the original purchase price of such property of
such property at the time it was acquired;
(h) Liens on the property or assets of a corporation which
becomes a Subsidiary after the date hereof securing Indebtedness
permitted by subsection 7.2(c), provided that (i) such Liens existed
at the time such corporation became a Subsidiary and were not created
in anticipation thereof, (ii) any such Lien is not expanded to cover
any property or assets of such corporation after the time such
corporation becomes a Subsidiary (other than after acquired title in
or on such property and proceeds of the existing collateral in
accordance with the instrument creating such Lien), and (iii) the
amount of Indebtedness secured thereby is not increased;
(i) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Borrower and all Subsidiaries)
$2,500,000 in aggregate amount at any time outstanding;
(j) Liens created pursuant to the Security Documents;
(k) Liens on the property of the Borrower or any of its
Subsidiaries in favor of landlords securing licenses, subleases or
leases entered into in the ordinary course of business;
(l) licenses, leases or subleases permitted hereunder
granted to other Persons not interfering in any material respect in
the business of the Borrower or any of its Subsidiaries;
(m) so long as no Default or Event of Default shall have
occurred and be continuing under subsection 8(h), attachment or
judgment Liens in an aggregate amount outstanding at any one time not
in excess of $7,500,000;
(n) Liens arising from precautionary Uniform Commercial
Code financing statement filings with respect to operating leases or
consignment arrangements entered into by the Borrower, or any of its
subsidiaries in the ordinary course of business; and
(o) Liens in favor of a banking institution arising by
operation of law encumbering deposits (including the right of
set-off) held by such banking institutions incurred in the ordinary
course of business and which are within the general parameters
customary in the banking industry.
7.4 Limitation on Guarantee Obligations. Create, incur,
assume or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date hereof
and listed on Schedule 7.4 and extensions, renewals and replacements
thereof, provided, however, that no such extension, renewal or
replacement shall shorten the fixed maturity or increase the
principal amount of the Indebtedness guaranteed by the original
guarantee;
(b) Guarantee Obligations incurred after the date hereof in
an aggregate amount not to exceed $15,000,000 at any one time
outstanding for the Borrower and its Subsidiaries;
(c) guarantees made by the Subsidiaries of the Borrower
pursuant to the Subordinated Debt Documents;
(d) Guarantee Obligations under the Credit Documents;
(e) the L/C Obligations;
(f) Guarantee Obligations of the Borrower or any Subsidiary
in respect of obligations of a Subsidiary permitted to be incurred by
such Subsidiary by this Agreement;
(g) Guarantee Obligations in respect of surety bonds which
shall not exceed $10,000,000 at any time;
(h) indemnities in favor of the companies issuing title
insurance policies insuring the Mortgages to induce such issuance;
and
(i) indemnities made in the Commitment Letter, the Credit
Documents and the Transaction Documents and in the Constitutional
Documents of the Borrower and its Subsidiaries.
7.5 Limitation on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or convey, sell, lease,
assign, transfer or otherwise dispose of, all or substantially all of its
property, business or assets, or make any material change in its present
method of conducting business, except:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower
shall be the continuing or surviving corporation) or with or into any
one or more wholly owned Subsidiaries of the Borrower (provided that
the wholly owned Subsidiary or Subsidiaries shall be the continuing
or surviving corporations);
(b) any wholly owned Subsidiary may sell, lease, transfer
or otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any other wholly owned
Subsidiary of the Borrower that is a Credit Party; and
(c) the Asset Contribution.
7.6 Limitation on Sale of Assets. Convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or
assets (including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary's Capital Stock to any Person
other than the Borrower or any wholly owned Subsidiary, except:
(a) the sale or other disposition of obsolete or worn out
property in the ordinary course of business;
(b) the sale of any property or assets not otherwise
permitted by this Section 7.6; provided that the Net Proceeds thereof
shall be applied pursuant to subsection 2.6(b)(ii); provided,
further, that (i) the aggregate amount of proceeds of all such Asset
Sales does not exceed (x) $20,000,000 in fiscal year 1997 or (y)
$30,000,000 since the date of this Agreement and (ii) the aggregate
amount of non-cash consideration received from such Asset Sales under
shall not exceed $5,000,000 since the date of this Agreement;
(c) as permitted pursuant to subsection 7.5(b);
(d) the sale, lease, transfer or exchange of inventory in
the ordinary course of business;
(e) subject to subsection 6.5, transfers resulting from any
casualty or condemnation of property or assets;
(f) intercompany sales or transfers of assets made in the
ordinary course of business;
(g) licenses, leases or subleases of tangible property in
the ordinary course of business;
(h) any consignment arrangements or similar arrangements
for the sale of assets in the ordinary course of business;
(i) the sale or discount of overdue accounts receivable
arising in the ordinary course of business, but only in connection
with the compromise or collection thereof; and
(j) (i) the sale of the real property used by the
Borrower's Aviation Recorder Division on the date hereof (including
all improvements thereto) in Sarasota, Florida, solely for cash
proceeds of at least $7,500,000 and (ii) the sale of all or
substantially all of the assets of the Borrower's Hycor Division (as
constituted on the date hereof) solely for cash proceeds of at least
$5,000,000, provided that (x) the first $20,000,000 of the proceeds
of such sales are applied pursuant to subsection 2.6(b)(ii) and (y)
to the extent the aggregate proceeds of asset sales permitted by this
clause (j) exceed $20,000,000, the Borrower shall utilize such excess
proceeds for the prepayment of Loans and the reduction of Commitments
pursuant to subsection 2.6(b)(ii) (without giving effect to the
proviso thereto).
7.7 Limitation on Dividends. Declare or pay any dividend
(other than dividends payable solely in common stock of the Borrower) on, or
make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of Capital Stock of the Borrower or
any warrants or options to purchase any such Capital Stock, whether now or
hereafter outstanding, or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in obligations
of the Borrower or any Subsidiary other than Permitted Stock Payments.
7.8 Limitation on Capital Expenditures. Make or commit to
make (by way of the acquisition of securities of a Person or otherwise) any
expenditure in respect of the purchase or other acquisition of fixed or
capital assets (excluding any such asset acquired in connection with normal
replacement and maintenance programs properly charged to current operations)
except for capital expenditures in the ordinary course of business not
exceeding, in the aggregate for the Borrower and its Subsidiaries during any
of the fiscal years of the Borrower set forth below, the amount set forth
opposite such fiscal year below:
Fiscal Year Amount
----------- ------
1997 $18,500,000
1998 27,500,000
1999 27,500,000
2000 30,000,000
2001 32,500,000
2002 32,500,000
2003 35,000,000
2004 37,500,000
2005 and thereafter 40,000,000;
provided, that up to 25% of any such amount not so expended in the fiscal
year for which it is permitted above may be carried over for expenditure in
the next following fiscal year.
7.9 Limitation on Investments, Loans and Advances. Make
any advance, loan, extension of credit or capital contribution to, or
purchase any stock, bonds, notes, debentures or other securities of or any
assets constituting a business unit of, or make any other investment in, any
Person ("Investments"), except :
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) loans to officers of the Borrower listed on Schedule
7.9(c) in aggregate principal amounts outstanding not to exceed the
respective amounts set forth for such officers on said Schedule;
(d) loans and advances to employees of the Borrower or its
Subsidiaries for travel, entertainment and relocation expenses in the
ordinary course of business in an aggregate amount for the Borrower
and its Subsidiaries not to exceed $1,000,000 at any one time
outstanding;
(e) investments by the Borrower in its Subsidiaries that
are Credit Parties and investments by such Subsidiaries in the
Borrower and in other Subsidiaries that are Credit Parties;
(f) so long as no Event of Default has occurred and is
continuing, loans by the Borrower to its employees (other than any
Principals or their Related Parties) in connection with (i)
management incentive plans and (ii) management stock purchase plans,
in an aggregate amount not to exceed $3,000,000;
(g) Investments in existence on the Closing Date set forth
on Schedule 7.9(g) and extensions, renewals, modifications or
restatements or replacements thereof; provided that no such
extension, renewal, modification or restatement shall increase the
amount of the original loan, advance or investment;
(h) promissory notes and other similar non-cash
consideration received by the Borrower and its Subsidiaries in
connection with the dispositions permitted by subsection 7.6(b);
(i) Investments required by subsection 6.11 and Investments
permitted by subsection 7.6(b) and subsection 7.6(j);
(j) Investments (including debt obligations and Capital
Stock) received in connection with the bankruptcy or reorganization
of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business; and
(k) so long as no Event of Default has occurred and is
continuing, in addition to the foregoing, Investments in an aggregate
amount not exceeding $15,000,000 (at cost, without regard to any
write down or write up thereof) at any one time outstanding.
7.10 Limitation on Optional Payments and Modifications of
Instruments and Agreements. (a) Make any optional payment or prepayment on
or redemption or purchase of, or deliver any funds to any trustee for the
prepayment, redemption or defeasance of, any Subordinated Debt or (b) amend,
modify or change, or consent or agree to any amendment, modification or
change to any of the material terms of any such Subordinated Debt Documents
(other than any such amendment, modification or change which would extend the
maturity or reduce the amount of any payment of principal thereof or which
would reduce the rate or extend the date for payment of interest thereon).
(b) Amend its Constitutional Documents in any manner which
could adversely affect the rights of the Lenders under the Credit Documents
or their ability to enforce the same.
(c) Modify or amend, or waive any provision or condition
contained in, any of the Transaction Documents in any manner that could
reasonably be expected to be adverse to the Lenders.
7.11 Limitation on Transactions with Affiliates. (a) Enter
into any transaction, including, without limitation, any purchase, sale,
lease or exchange of property or the rendering of any service, with any
Affiliate unless such transaction is (i) otherwise permitted under this
Agreement, (ii) in the ordinary course of the Borrower's or such Subsidiary's
business and (iii) upon fair and reasonable terms no less favorable to the
Borrower or such Subsidiary, as the case may be, than it would obtain in a
comparable arm's length transaction with a Person which is not an Affiliate.
(b) In addition, notwithstanding the foregoing, the
Borrower and its Subsidiaries shall be entitled to make the following
payments and/or to enter into the following transactions:
(i) the payment of reasonable and customary fees and
reimbursement of expenses payable to directors of the Borrower;
(ii) the employment arrangements with respect to the
procurement of services of directors, officers and employees in the
ordinary course of business and the payment of reasonable fees in
connection therewith;
(iii) payments to directors and officers of the Borrower
and its Subsidiaries in respect of the indemnification of such
Persons in such respective capacities from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements, as the case may
be, pursuant to the Constitutional Documents or other corporate
action of the Borrower or its Subsidiaries, respectively, or pursuant
to applicable law; and
(iv) transactions described in the Transaction
Documents.
7.12 Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by the Borrower or any
Subsidiary of real or personal property which has been or is to be sold or
transferred by the Borrower or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Borrower or such
Subsidiary; provided that the Borrower may enter into a sale and leaseback
transaction if the Borrower could have (a) incurred Indebtedness in an amount
equal to the Attributable Debt relating to such sale and leaseback
transaction and (b) incurred a Lien to secure such Indebtedness, in each case
in accordance with the restrictions contained in this Agreement and the other
Credit Documents.
7.13 Limitation on Changes in Fiscal Year. Permit the
fiscal year of the Borrower to end on a day other than December 31.
7.14 Limitation on Negative Pledge Clauses. Enter into
with any Person any agreement, other than (a) this Agreement, (b) the
Subordinated Debt Documents and (c) any industrial revenue bonds, purchase
money mortgages or Financing Leases permitted by this Agreement (in which
cases, any prohibition or limitation shall only be effective against the
assets financed thereby other than after acquired title in or on such
property and proceeds of the existing collateral in accordance with the
instrument creating such Lien), which prohibits or limits the ability of the
Borrower or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now
owned or hereafter acquired.
7.15 Limitation on Lines of Business. Enter into any
business, either directly or through any Subsidiary, except for Similar
Businesses.
7.16 Designated Senior Debt. Designate any Indebtedness or
other obligation, other than Indebtedness under the Credit Documents, as
"Designated Senior Debt," as such term is defined in the Indenture as in
effect on the Closing Date, or any comparable designation that confers upon
the holders of such Indebtedness or other obligation (or any Person acting on
their behalf) the right to initiate blockage periods under the Indenture or
any other Indebtedness or other obligation of the Borrower and its
Subsidiaries(other than as a result of a payment default).
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be
continuing:
(a) The Borrower shall fail to pay any principal of any
Loan or any Reimbursement Obligation when due in accordance with the
terms thereof or hereof; or the Borrower shall fail to pay any
interest on any Loan, or any other amount payable hereunder, within
five days after any such interest or other amount becomes due in
accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by
the Borrower or any other Credit Party herein or in any other Credit
Document or which is contained in any certificate, document or
financial or other statement furnished by it at any time under or in
connection with this Agreement or any such other Credit Document
shall prove to have been incorrect in any material respect on or as
of the date made or deemed made; or
(c) The Borrower or any other Credit Party shall default in
the observance or performance of any agreement contained in Section 7
or subsection 6.5(a) of this Agreement, Section 4 of the Parent
Guarantee, Section 4 of the Subsidiary Guarantee, Section 4 of the
Parent Pledge and Security Agreement, Section 4 of the Borrower
Pledge and Security Agreement, or Section 4 of the Subsidiary Pledge
and Security Agreement; or
(d) The Borrower or any other Credit Party shall default in
the observance or performance of any other agreement contained in
this Agreement or any other Credit Document (other than as provided
in paragraphs (a) through (c) of this Section), and such default
shall continue unremedied for a period of 30 days; or
(e) The Borrower or any of its Subsidiaries shall
(i) default (x) in any payment of principal of or interest of any
Indebtedness (other than the Loans, the L/C Obligations and any
intercompany debt) or Interest Rate Agreement Obligations or (y) in
the payment of any Guarantee Obligation (excluding any guaranties of
the Obligations), beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness, Interest Rate
Agreement Obligation or Guarantee Obligation was created; or (ii)
default in the observance or performance of any other agreement or
condition relating to any such Indebtedness, Interest Rate Agreement
Obligation or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or
holders of such Indebtedness or beneficiary or beneficiaries of such
Guarantee Obligation (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause, with the giving
of notice if required, such Indebtedness to become due prior to its
stated maturity or such Guarantee Obligation to become payable;
provided, however, that no Default or Event of Default shall exist
under this paragraph unless (i) the aggregate amount of Indebtedness,
Interest Rate Agreement Obligations and/or Guarantee Obligations in
respect of which any default or other event or condition referred to
in this paragraph shall have occurred shall be equal to at least
$7,500,000 and (ii) such default continues for a period in excess of
10 days; or
(f) (i) Holdings, the Borrower or any of its Subsidiaries
shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any
substantial part of its assets, or Holdings, the Borrower or any of
its Subsidiaries shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against Holdings, the
Borrower or any of its Subsidiaries any case, proceeding or other
action of a nature referred to in clause (i) above which (A) results
in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for
a period of 60 days; or (iii) there shall be commenced against the
Holdings, Borrower or any of its Subsidiaries any case, proceeding or
other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of
its assets which results in the entry of an order for any such relief
which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv)
Holdings, the Borrower or any of its Subsidiaries shall take any
action in furtherance of, or indicating its consent to, approval of,
or acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) Holdings, the Borrower or any of its Subsidiaries
shall generally not, or shall be unable to, or shall admit in writing
its inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan or any Lien in favor of
the PBGC or a Plan shall arise on the assets of the Borrower or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Required Lenders, reasonably likely to
result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, (v) the Borrower or any Commonly Controlled Entity
shall, or in the reasonable opinion of the Required Lenders is likely
to, incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer Plan or (vi) any
other similar event or condition shall occur or exist with respect to
a Plan that is not in the ordinary course; and in each case in
clauses (i) through (vi) above, such event or condition, together
with all other such events or conditions, if any, could reasonably be
expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered
against Holdings, the Borrower or any of its Subsidiaries involving
in the aggregate a liability (not paid or fully covered by insurance
(which coverage has been acknowledged by the appropriate insurers))
of $7,500,000 or more, and all such judgments or decrees shall not
have been vacated, discharged, stayed or bonded pending appeal within
60 days from the entry thereof; or
(i) (i) Any of the Security Documents shall cease, for any
reason, to be in full force and effect (unless released by the
Administrative Agent at the direction of the requisite Lenders or as
otherwise permitted under this Agreement or the other Credit
Documents), or the Borrower or any other Credit Party which is a
party to any of the Security Documents shall so assert or (ii) the
Lien created by any of the Security Documents shall cease to be
enforceable and of the same effect and priority purported to be
created thereby (and, if such invalidity is such so as to be amenable
to cure without materially disadvantaging the position of the
Administrative Agent and the Lenders, as the case may be, as secured
parties thereunder, the Credit Party shall have failed to cure such
invalidity within 30 days after notice from the Administrative
Agent); or
(j) the Guarantee Obligation of any Credit Party under the
Credit Documents shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full
force and effect or any Credit Party or any Person acting on behalf
of any Credit Party, shall deny or disaffirm its obligations under
such Guarantee Obligation;
(k) There shall have occurred a Change in Control; or
(l) either (i) the novation of any Government Contract
existing on the date of this Agreement shall not be complete and
effective prior to October 31, 1998 if such failures, individually or
in the aggregate, could reasonably be expected to have a Material
Adverse Effect, (ii) the consent to assignment of claims under any
Government Contract (other than any Restricted Government Contract)
existing on the date of this Agreement to the Administrative Agent on
behalf of the Lenders shall not have been obtained prior to October
31, 1998 if such failures, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, or (iii)
the Governmental Authority authorized to approve any such novation or
consent to any such assignment requires a condition to the
effectiveness to any such novation or consent which, if agreed to by
the Company, could reasonably be expected to have a Material Adverse
Effect;
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) of this Section above with
respect to the Borrower, automatically the Commitments shall immediately
terminate and the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) and the Notes shall immediately become due and payable, and (B)
if such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Commitments
to be terminated forthwith, whereupon the Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice of default to the Borrower, declare the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder) and the
Notes to be due and payable forthwith, whereupon the same shall immediately
become due and payable.
With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Borrower shall at such time deposit
in a cash collateral account opened by the Administrative Agent an amount
equal to the aggregate then undrawn and unexpired amount of such Letters of
Credit. The Borrower hereby grants to the Administrative Agent, for the
benefit of the Issuing Lender and the L/C Participants, a security interest
in such cash collateral to secure all obligations of the Borrower under this
Agreement and the other Credit Documents. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the
payment of drafts drawn under such Letters of Credit, and the unused portion
thereof after all such Letters of Credit shall have expired or been fully
drawn upon, if any, shall be applied to repay other obligations of the
Borrower hereunder and under the Notes. After all such Letters of Credit
shall have expired or been fully drawn upon, all Reimbursement Obligations
shall have been satisfied and all other obligations of the Borrower hereunder
and under the Notes shall have been paid in full, the balance, if any, in
such cash collateral account shall be returned to the Borrower. The Borrower
shall execute and deliver to the Administrative Agent, for the account of the
Issuing Lender and the L/C Participants, such further documents and
instruments as the Administrative Agent may request to evidence the creation
and perfection of the within security interest in such cash collateral
account.
EXCEPT AS EXPRESSLY PROVIDED ABOVE IN THIS SECTION, PRESENTMENT,
DEMAND, PROTEST AND ALL OTHER NOTICES OF ANY KIND ARE HEREBY EXPRESSLY
WAIVED.
SECTION 9. THE AGENTS; THE ARRANGER
9.1 Appointment. Each Lender hereby irrevocably designates
and appoints each of the Agents as the agent of such Lender under this
Agreement and the other Credit Documents, and each such Lender irrevocably
authorizes each of the Agents, in such capacity, to take such action on its
behalf under the provisions of this Agreement and the other Credit Documents
and to exercise such powers and perform such duties as are expressly
delegated to such Agent by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, none of the Agents shall have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with
any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other
Credit Document or otherwise exist against any of the Agents.
9.2 Delegation of Duties. The Agents may execute any of
their duties under this Agreement and the other Credit Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. None of the Agents
shall be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither any of the Agents nor
any of their officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Credit Document (except for its or such Person's own gross negligence
or willful misconduct) or (ii) responsible in any manner to any of the
Lenders for any recitals, statements, representations or warranties made by
the Borrower or any officer thereof contained in this Agreement or any other
Credit Document or in any certificate, report, statement or other document
referred to or provided for in, or received by such Agent under or in
connection with, this Agreement or any other Credit Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Credit Document or for any failure of the
Borrower to perform its obligations hereunder or thereunder. None of the
Agents shall be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Credit Document, or to inspect the
properties, books or records of the Borrower.
9.4 Reliance by Agents. The Agents shall be entitled to
rely, and shall be fully protected in relying, upon any Note, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex
or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons and upon advice and statements of legal
counsel (including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by such Agent. The Agents may deem
and treat the payee of any Note as the owner thereof for all purposes unless
a written notice of assignment, negotiation or transfer thereof shall have
been filed with such Agent. Except as expressly provided in this Agreement,
the Agents shall be fully justified in failing or refusing to take any action
under this Agreement or any other Credit Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. The Agents shall
in all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the other Credit Documents in accordance with a
request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
9.5 Notice of Default. No Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Agent has received notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that any
Agent receives such a notice, such Agent shall give notice thereof to the
Lenders. Each Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders;
provided that unless and until such Agent shall have received such
directions, such Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither any of the Agents nor any of their
officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by any of the
Agents hereafter taken, including any review of the affairs of the Borrower,
shall be deemed to constitute any representation or warranty by any of the
Agents to any Lender. Each Lender represents to each of the Agents that it
has, independently and without reliance upon any of the Agents or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and credit worthiness of
the Borrower and made its own decision to make its Loans hereunder and enter
into this Agreement. Each Lender also represents that it will, independently
and without reliance upon any of the Agents or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking
or not taking action under this Agreement and the other Credit Documents, and
to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and credit
worthiness of the Borrower. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by any of the Agents
hereunder (or copies of which have been provided to the Administrative Agent
pursuant to this Agreement), none of the Agents shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or credit worthiness of the Borrower which may come
into the possession of such Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
9.7 Indemnification. The Lenders agree to indemnify each
of the Agents in their respective capacities as such (to the extent not
reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their respective Commitment
Percentages with respect to all Types of Loans in effect on the date on which
indemnification is sought, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the
Loans) be imposed on, incurred by or asserted against any of the Agents in
any way relating to or arising out of, the Commitments, this Agreement, any
of the other Credit Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by any of the Agents under or in connection with any
of the foregoing provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting solely
from such Agent's gross negligence or willful misconduct. The agreements in
this subsection shall survive the payment of the Loans and all other amounts
payable hereunder.
9.8 Agents, in Their Individual Capacities. The Agents and
their respective Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower as though the
Agents were not acting in such capacities hereunder and under the other
Credit Documents. With respect to the Loans made or renewed by it and any
Note issued to it and with respect to any Letter of Credit issued or
participated in by it, each Agent shall have the same rights and powers under
this Agreement and the other Credit Documents as any Lender and may exercise
the same as though it were not an Agent, and the terms "Lender" and "Lenders"
shall include the Agents in their individual capacities.
9.9 Successor Administrative Agent, Syndication Agents and
Documentation Agent. The Administrative Agent, the Syndication Agent or the
Documentation Agent may resign as Administrative Agent, Syndication Agent or
Documentation Agent, as the case may be, upon 30 days' notice to the Lenders.
If the Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Credit Documents or if Syndication Agent or the
Documentation Agent shall resign as Syndication Agent or Documentation Agent
under this Agreement and the other Credit Documents, then the Required
Lenders shall appoint from among the Lenders a successor agent for the
Lenders, which successor agent (provided that it shall have been approved by
the Borrower, which approval shall not be unreasonably withheld), shall
succeed to the rights, powers and duties of the Administrative Agent or a
Syndication Agent or the Documentation Agent, as the case may be, hereunder.
Effective upon such appointment and approval, the term "Administrative Agent"
or a "Syndication Agent" or "Documentation Agent," as the case may be, shall
mean or include such successor agent, and the former Administrative Agent's
or Syndication Agent's or Documentation Agent's, as the case may be, rights,
powers and duties as Administrative Agent or Syndication Agent or
Documentation Agent, as the case may be, shall be terminated, without any
other or further act or deed on the part of such former Administrative Agent
or Syndication Agent or Documentation Agent, as the case may be, or any of
the parties to this Agreement or any holders of the Loans. After any
retiring Administrative Agent's or Syndication Agent's or Documentation
Agent's resignation as Administrative Agent or Syndication Agent or
Documentation Agent, as the case may be, the provisions of this Section 9
shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent or Syndication Agent or Documentation
Agent, as the case may be, under this Agreement and the other Credit
Documents.
9.10 The Arranger. Except as expressly set forth herein,
the Arranger, in its capacity as such, shall have no duties or
responsibilities, and shall incur no liabilities, under this Agreement or the
other Credit Documents.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement nor
any other Credit Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. The Required Lenders may, or, with the written consent of the
Required Lenders, the Administrative Agent may, from time to time, (a) enter
into with the Borrower written amendments, supplements or modifications
hereto and to the other Credit Documents for the purpose of adding any
provisions to this Agreement or the other Credit Documents or changing in any
manner the rights of the Lenders or of the Borrower hereunder or thereunder
or (b) waive, on such terms and conditions as the Required Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any
of the requirements of this Agreement or the other Credit Documents or any
Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall (i)
reduce the amount or extend any scheduled date of maturity of any Loan,
extend the expiration of any Letter of Credit beyond the Revolving Credit
Termination Date, or reduce the stated rate of any interest or fee payable
hereunder or extend the scheduled date of any payment thereof, in each case
without the consent of each Lender affected thereby, or increase the
commitment of any Lender or extend the expiry of the commitment of any Lender
without the consent of such Lender, or (ii) amend, modify or waive any
provision of this subsection or reduce the percentage specified in the
definition of Required Lenders or Requisite Class Lenders, or consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Credit Documents, in each case without the
written consent of all the Lenders, or (iii) release all or substantially all
of the Collateral or release all or substantially all of the Credit Parties
from their Guarantee Obligations under the Credit Document without the
consent of all Lenders, or (iv) amend, modify or waive any provision of
Section 9 without the written consent of the then Agents, (v) amend, modify
or waive any provision of subsection 2.1(b), any other provision of this
Agreement relating to the Swing Line Loans or the Swing Line Note without the
written consent of the Swing Line Lender, or (vi) amend, modify or waive any
provision of this Agreement or any other Credit Document which would directly
and adversely affect the Arrangers or the Agents or the Issuing Lender or the
Swing Line Lender without the written consent of the Arranger, the Agents or
the Issuing Lender or the Swing Line Lender, as the case may be. In addition
to the foregoing, no amendment, modification, termination or waiver of any
provision of subsection 2.5 or subsection 2.6 which has the effect of
changing any interim scheduled payments, voluntary or mandatory prepayments
(or the applications thereof) or Commitment reductions applicable to any
Class (an "Affected Class") in a manner that disproportionately disadvantages
such Class relative to the other Class shall be effective without the written
concurrence of the Requisite Class Lenders of the Affected Class (it being
understood and agreed that any amendment, modification, termination or waiver
of any provision which only postpones or reduces any interim scheduled
payment, voluntary or mandatory prepayment or Commitment reduction from those
set forth in subsection 2.6 with respect to only one Class shall be deemed to
not disproportionately disadvantage the other Class and, therefore, shall not
require the consent of Requisite Class Lenders of such other Class). Any
such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Borrower, the
Lenders, the Agents and the Issuing Lender and all future holders of the
Loans. Any extension of a Letter of Credit by the Issuing Lender shall be
treated hereunder as issuance of a new Letter of Credit. In the case of any
waiver, the Borrower, the Lenders and the Agents and the Issuing Lender shall
be restored to their former positions and rights hereunder and under the
other Credit Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right
consequent thereon.
10.2 Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including
by facsimile transmission) and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made (a) in the case of delivery
by hand, when delivered, (b) in the case of delivery by mail, three days
after being deposited in the mails, postage prepaid, or (c) in the case of
delivery by facsimile transmission, when sent and receipt has been confirmed,
addressed as follows in the case of the Borrower, the Administrative Agent,
the Syndication Agent and the Documentation Agent, and as set forth in
Schedule I in the case of the other parties hereto, or to such other address
as may be hereafter notified by the respective parties hereto:
The Borrower or
any of its
Subsidiaries: L-3 Communications Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx XxXxxxx
Fax: (000) 000-0000
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
The Administrative
Agent: Bank of America NT & SA
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
The Documentation
Agent: Xxxxxx Commercial Paper Inc.
3 World Financial Center, 9th Floor
New York, New York 10285
Attention: Xxxxxxxx Xxxxxxx
Fax: (000) 000-0000
The Syndication
Agent: Xxxxxx Commercial Paper Inc.
3 World Financial Center, 9th Floor
New York, New York 10285
Attention: Xxxxxxxx Xxxxxxx
Fax: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative
Agent or the Lenders pursuant to subsection 2.2, 2.4, 2.6, 2.7, 2.12 or 3.2
shall not be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of any Agent or any Lender,
any right, remedy, power or privilege hereunder or under the other Credit
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Credit Documents
and in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this
Agreement and the making of the Loans hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees
(a) to pay or reimburse each of the Agents for all its reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification
to, this Agreement and the other Credit Documents and any other documents
prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby,
including, without limitation, the reasonable fees, charges and disbursements
of a single counsel for the Lenders (in addition to any local counsel), (b)
to pay or reimburse each Lender and each Agent for all its costs and expenses
incurred in connection with the enforcement or preservation of any rights
under this Agreement, the other Credit Documents and any such other
documents, including, without limitation, the fees and disbursements of
counsel to each Lender and of counsel to any Agent, (c) to pay, indemnify,
and hold each Lender and each Agent and each Issuing Lender harmless from,
any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect
of, this Agreement, the other Credit Documents and any such other documents,
and (d) to pay, indemnify, and hold each Lender and each Arranger, each Agent
and each Issuing Lender harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and
administration of this Agreement or the other Credit Documents or the use of
the proceeds of the Loans in connection with the Transaction, including,
without limitation, any of the foregoing relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to
the operations of the Borrower, any of its Subsidiaries or any of the
Properties (all the foregoing in this clause (d), collectively, the
"indemnified liabilities"), it being understood that the Borrower shall have
an obligation hereunder to the Lender or any Agent with respect to any
indemnified liabilities incurred by any Agents, Arranger or the Issuing
Lender or any Lender as a result of any Materials of Environmental Concern
that are first manufactured, emitted, generated, treated, released, spilled,
stored or disposed of on, at or from any Property or any violation of any
Environmental Law, which in any case first occurs on or with respect to such
Property (i) after the Property is transferred to any Agent, Arranger,
Issuing Lender or any Lender or their successors or assigns by foreclosure
sale, deed in lieu of foreclosure, or similar transfer or, following such
transfer, (ii) in connection with, but prior to, the sale, leasing or other
transfer of such Property by such Agent, Arranger, Issuing Lender, or any
Lender or their successors or assigns to one or more third parties; provided,
however, that the Borrower shall have no obligation hereunder to any Agent or
the Issuing Lender or any Lender with respect to otherwise indemnified
liabilities arising from the gross negligence or willful misconduct of such
Agent or the Issuing Lender or any such Lender, or with respect to otherwise
indemnified liabilities following the sale, leasing or other transfer of such
Property to one or more third parties. The agreements in this subsection
shall survive repayment of the Loans and all other amounts payable hereunder.
10.6 Successors and Assigns; Participation and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Agents and their respective successors and
assigns, except that the Borrower may not assign or transfer any of its
rights or obligations under this Agreement without the prior written consent
of each Lender.
(b) Any Lender may, in the ordinary course of its business
and in accordance with applicable law, at any time sell to one or more banks
or other entities ("Participants") participating interests in any Loan owing
to such Lender or any other interest of such Lender hereunder and under the
other Credit Documents. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such
Lender shall remain the holder of any such Loan for all purposes under this
Agreement and the other Credit Documents, and the Borrower and the Agents
shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and the other
Credit Documents. No Lender shall be entitled to create in favor of any
Participant, in the participation agreement pursuant to which such
Participant's participating interest shall be created or otherwise, any right
to vote on, consent to or approve any matter relating to this Agreement or
any other Credit Document except for those specified in clauses (i) and (ii)
of the proviso to subsection 10.1. The Borrower agrees that if amounts
outstanding under this Agreement are due or unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an Event
of Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same
extent as if the amount of its participating interest were owing directly to
it as a Lender under this Agreement; provided that, in purchasing such
participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in subsection 10.7(a)
as fully as if it were a Lender hereunder. The Borrower also agrees that
each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and
2.16 with respect to its participation in the Letters of Credit, the
Commitments and the Loans outstanding from time to time as if it was a
Lender; provided that in the case of subsection 2.15, such Participant shall
have complied with the requirements of said Section; provided, further, that
no Participant shall be entitled to receive any greater amount pursuant to
any such subsection than the transferor Lender would have been entitled to
receive in respect of the amount of the participation transferred by such
transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its business
and in accordance with applicable law, at any time and from time to time
assign to any Lender, any affiliate thereof or, in the case of Lender that is
an investment fund which is regularly engaged in making, purchasing or
investing in loans or securities, any other such fund which is under common
management with such Lender, or, with the consent of the Borrower and the
Agents (which in each case shall not be unreasonably withheld), to an
additional bank, fund which is regularly engaged in making, purchasing or
investing in loans or securities, or financial institution (an "Assignee")
all or any part of its rights and obligations under this Agreement and the
other Credit Documents pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit G, executed by such Assignee, such
assigning Lender (and, in the case of an Assignee that is not then a Lender
or an affiliate thereof, by the Borrower and the Agents) and delivered to the
Administrative Agent for its acceptance and recording in the Register with a
copy to the Syndication Agent, provided that, in the case of any such
assignment to an additional bank or financial institution, (A) either (x)
such assignment is of all the rights and obligations of the assigning Lender
or (y) the sum of the aggregate principal amount of the Loans, the aggregate
amount of the L/C Obligations and the aggregate amount of the unused
Commitments being assigned and, if such assignment is of less than all of the
rights and obligations of the assigning Lender, the sum of the aggregate
principal amount of the Loans, the aggregate amount of the L/C Obligations
and the aggregate amount of the unused Commitments remaining with the
assigning Lender are each not less than $5,000,000 (or such lesser amount as
may be agreed to by the Borrower and the Agents) and (B) each Assignee which
is a Non-U.S. Lender shall comply with the provisions of clause (A) of
subsection 2.15(b) hereof, or, with the prior written consent of the
Borrower, which shall not be unreasonably withheld, the provisions of clause
(B) of subsection 2.15(b) hereof (and, in either case, with all of the other
provisions of subsection 2.15(b) hereof). Upon such execution, delivery,
acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall
be a party hereto and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder with a
Commitment as set forth therein and (y) the assigning Lender thereunder
shall, to the extent provided in such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment
and Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such assigning Lender shall
cease to be a party hereto). Notwithstanding any provision of this paragraph
(c) and paragraph (f) of this subsection, the consent of the Borrower shall
not be required for any assignment which occurs at any time when any of the
events described in Section 8(f) shall have occurred and be continuing.
(d) The Administrative Agent, on behalf of the Borrower,
shall maintain at the address of the Administrative Agent referred to in
subsection 10.2 a copy of each Assignment and Acceptance delivered to it and
a register (the "Register") for the recordation of the names and addresses of
the Lenders and Commitments of and principal amounts of the Loans of each
Type owing to, each Lender from time to time and the registered owners of the
Obligations evidenced by the Notes. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register as the owner of a Loan, a Note or other Obligation
hereunder as the owner thereof for all purposes of this Agreement and the
other Credit Documents, notwithstanding any notice to the contrary. Any
assignment of any Loan or other obligation evidenced by a Note shall be
effective only upon appropriate entries with respect thereto being made in
the Register. Any assignment or transfer of all or part of an Obligation
evidenced by a Note shall be registered in the Register only upon surrender
for registration of assignment or transfer of the Note evidencing such
Obligation, duly endorsed by (or accompanied by a written instrument of
assignment or transfer duly executed by) the holder thereof, and thereupon
one or more new Notes shall be issued to the designated Assignee and the old
Note shall be returned by the Administrative Agent to the Borrower marked
"cancelled."
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an Assignee (and, in the case of an
Assignee that is not then a Lender or an affiliate thereof, by the Borrower
and the Agents) together with payment to the Administrative Agent of a
registration and processing fee of $3,000 (provided that no such payment
shall be required whenever LCPI or BOA is the assigning Lender), the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such
acceptance and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective
Transferee, subject to the provisions of subsection 10.15, any and all
financial information in such Lender's possession concerning the Borrower and
its Affiliates which has been delivered to such Lender by or on behalf of the
Borrower pursuant to this Agreement or which has been delivered to such
Lender by or on behalf of the Borrower in connection with such Lender's
credit evaluation of the Borrower and its Affiliates prior to becoming a
party to this Agreement.
(g) If, pursuant to this subsection 10.6, any interest in
this Agreement or any Loan is transferred to any Transferee which would be a
Non-U.S. Lender upon the effectiveness of such transfer, the assigning Lender
shall cause such Transferee, concurrently with the effectiveness of such
transfer, (i) to represent to the assigning Lender (for the benefit of the
assigning Lender, the Administrative Agent and the Borrower) that under
applicable law and treaties no U.S. Taxes will be required to be withheld by
the Administrative Agent, the Borrower or the assigning Lender with respect
to any payments to be made to such Transferee in respect of the Loans, (ii)
to furnish to the assigning Lender (and, in the case of any Assignee
registered in the Register, the Administrative Agent and the Borrower such
Internal Revenue Service Forms required to be furnished pursuant to
subsection 2.15(b) and (iii) to agree (for the benefit of the assigning
Lender, the Administrative Agent and the Borrower) to be bound by the
provisions of subsection 2.15(b).
(h) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions
do not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
10.7 Adjustments; Set-off. (a) If any Lender (a
"benefitted Lender") shall at any time receive any payment of all or part of
its Loans or the Reimbursement Obligations owing to it, or interest thereon,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 8(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in
respect of such other Lender's Loans or the Reimbursement Obligations owing
to it, or interest thereon, such benefitted Lender shall purchase for cash
from the other Lenders a participating interest in such portion of each such
other Lender's Loans or the Reimbursement Obligations owing to it, or shall
provide such other Lenders with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such benefitted Lender to
share the excess payment or benefits of such collateral or proceeds ratably
with each of the Lenders; provided, however, that if all or any portion of
such excess payment or benefits is thereafter recovered from such benefitted
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to
the Borrower, any such notice being expressly waived by the Borrower to the
extent permitted by applicable law, upon any amount becoming due and payable
by the Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and
all deposits (general or special, time or demand, provisional or final), in
any currency, and any other credits, indebtedness or claims, in any currency,
in each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such set-off and application made by such Lender, provided that the failure
to give such notice shall not affect the validity of such set-off and
application.
10.8 Counterparts. This Agreement may be executed by one
or more of the parties to this Agreement on any number of separate
counterparts (including by facsimile transmission), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Borrower and the Administrative Agent.
10.9 Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Credit
Documents represent the agreement of the Borrower, the Agents and the Lenders
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by any Agent or any Lender
relative to subject matter hereof not expressly set forth or referred to
herein or in the other Credit Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 SUBMISSION TO JURISDICTION; WAIVERS. THE BORROWER
HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER CREDIT
DOCUMENTS TO WHICH IT IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT
OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE COURTS OF
THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE
BROUGHT IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO THE BORROWER AT ITS ADDRESS SET FORTH IN SUBSECTION 10.2
OR AT SUCH OTHER ADDRESS OF WHICH THE ADMINISTRATIVE AGENT SHALL HAVE
BEEN NOTIFIED PURSUANT THERETO;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER JURISDICTION; AND
(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW,
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR
PROCEEDING REFERRED TO IN THIS SUBSECTION ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES.
10.13 Acknowledgements. The Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Credit
Documents;
(b) none of the Arrangers, the Agents nor any Lender has
any fiduciary relationship with or duty to the Borrower arising out
of or in connection with this Agreement or any of the other Credit
Documents, and the relationship between any of the Agents and the
Lenders, on one hand, and the Borrower, on the other hand, in
connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other
Credit Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
10.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS, THE
ARRANGERS, THE LENDERS AND THE OTHER PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
10.15 Confidentiality. Each Lender agrees to keep
confidential all non-public information provided to it by the Borrower
pursuant to this Agreement that is designated by the Borrower in writing as
confidential; provided that nothing herein shall prevent any Lender from
disclosing any such information (i) to any Agent or any other Lender or any
of its Affiliates, (ii) to any Transferee or prospective Transferee or to any
direct or indirect contractual counterparties in swap agreements or such
contractual counterparties' professional advisors which receives such
information and agrees to be bound by the confidentiality provisions hereof,
(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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
L-3 Communications Corporation
By:__________________________________
Title:
Xxxxxx Commercial Paper Inc.,
as Documentation Agent, Syndication Agent,
Arranger and as a Lender
By:__________________________________
Title:
Bank of America NT & SA
as Administrative Agent
and as a Lender
By:__________________________________
Title:
CITIBANK, N.A.
as a Lender
By:__________________________________
Title:
CREDIT LYONNAIS, NEW YORK BRANCH
as Co-Agent and as a Lender
By:__________________________________
Title:
FLEET NATIONAL BANK,
as Co-Agent and Lender
By:__________________________________
Name:
Title:
MARINE MIDLAND BANK
as Co-Agent and as a Lender
By:__________________________________
Title:
BANK OF NOVA SCOTIA
as Co-Agent and as a Lender
By:__________________________________
Name:
Title:
BANKBOSTON, N.A.
By:__________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON
as Co-Agent and as a Lender
By:__________________________________
Title:
THE FIRST NATIONAL BANK OF CHICAGO
as Co-Agent and as a Lender
By:__________________________________
Title:
THE FUJI BANK, LIMITED NEW YORK BRANCH
as Co-Agent and as a Lender
By:__________________________________
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By:__________________________________
Name:
Title:
CITIBANK, N.A.
as Co-Agent and as a Lender
By:__________________________________
Title:
THE ING CAPITAL SENIOR SECURED
HIGH INCOME FUND, L.P.
as a Lender
By:__________________________________
Title:
KZH HOLDING CORPORATION II
By:__________________________________
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC., as a Lender
By:__________________________________
Title:
KZH HOLDING CORPORATION
By:__________________________________
Name:
Title:
METROPOLITAN LIFE INSURANCE COMPANY
By:__________________________________
Name:
Title:
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.
its General Partner
By: Oak Hill Securities MGP, Inc.,
its General Partner
By:__________________________________
Name:
Title:
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (a unit of the Chase
Manhattan Bank)
By:__________________________________
Name:
Title:
PARIBAS CAPITAL FUNDING LLC
as a Lender
By:__________________________________
Title:
PILGRIM AMERICA PRIME RATE TRUST
as a Lender
By:__________________________________
Title:
PRIME INCOME TRUST
as a Lender
By:__________________________________
Title:
ROYALTON COMPANY
as a Lender
By:__________________________________
Title:
CRESCENT/MACHI PARTNERS L.P.
By TCW Asset Management Company
its Investment Manager,
as a Lender
By:__________________________________
Name:
Title:
TCW Asset Management Company
as Attorney-in Fact for United
Companies Life Insurance Company,
as a Lender
By:__________________________________
Name:
Title:
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By:__________________________________
Name:
Title:
BANK OF MONTREAL
as a Lender
By:__________________________________
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
as a Lender
By:__________________________________
Title:
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
BHF BANK AKTIENGESELLSCHAFT
GRAND CAYMAN BRANCH
By:__________________________________
Name:
Title:
CORESTATES BANK, N.A.
as a Lender
By:__________________________________
Title:
XXXXXXX SACHS CREDIT PARTNERS, L.P.
as a Lender
By:__________________________________
Title:
PNC BANK, NATIONAL ASSOCIATION
as a Lender
By:__________________________________
Name:
Title:
SKANDINAVISKA ENSKILDA BANKEN
CORPORATION
as a Lender
By:__________________________________
Title:
SOCIETE GENERALE, NEW YORK BRANCH
By:__________________________________
Name:
Title:
THE SUMITOMO BANK, LIMITED
as a Lender
By:__________________________________
Title:
THE BANK OF NEW YORK
as a Lender
By:__________________________________
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION
as a Lender
By:__________________________________
Title:
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By:__________________________________
Name:
Title:
U.S. BANK
as a Lender
By:__________________________________
Title:
