AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
Dated as of October 25, 1998
AND AS AMENDED AND RESTATED AS OF
DECEMBER 15, 1998
among
MacDERMID, INCORPORATED,
NATIONSBANK, N.A.,
as Administrative Agent
Letter of Credit Issuing Bank
and
Swing Line Lender,
BANKBOSTON, N.A.,
AS DOCUMENTATION AGENT,
FLEET NATIONAL BANK,
AS SYNDICATION AGENT
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Arranged By
NATIONSBANC MONTGOMERY SECURITIES LLC
TABLE OF CONTENTS
Section Page
ARTICLE I<2>
DEFINITIONS 2
1.01 Certain Defined Terms <3>2
1.02 Other Interpretive Provisions 29
1.03 Accounting Principles 30
ARTICLE <4> II
THE CREDITS 31
2.01 Amounts and Terms of Commitment <6>31
(a) Term Loan <7>31
(b) Sterling Acquisition Loan 31
(c) The Revolving Credit 31
(d) Swing Line Loans 33
2.02 Loan Accounts 35
2.03 Procedure for Borrowing 36
2.04 Conversion and Continuation Elections
for Revolving Loans 37
2.05 Voluntary Termination or Reduction of
Commitments 39
2.06 Optional Prepayments of Loans 40
2.07 Termination of Commitments; Mandatory
Prepayments of Loans;
Mandatory Commitment Reductions 40
2.08 Repayment of Loans <8>43
2.09 Interest 43
2.10 Fees 44
(a) Agency Fees 44
(b) Revolving Loan Commitment Fee 44
(c) Term Loan Commitment Fee <9>45
(d) Sterling Acquisition Loan Commitment Fee 45
2.11 Computation of Fees and Interest <10>46
2.12 Payments by a Borrower 46
2.13 Payments by the Lenders to the Administrative
Agent 47
2.14 Sharing of Payments, Etc. <11>48
2.15 Utilization of Commitments in Offshore
Currencies 48
ARTICLE III
THE LETTERS OF CREDIT FACILITY 50
3.01 The Letter of Credit Facility 50
3.02 Issuance, Amendment and Renewal of Letters
of Credit 51
3.03 Risk Participations, Drawings, Revolving
Loans and Reimbursements 53
3.04 Repayment of Participations 54
3.05 Role of the Issuing Bank 55
3.06 Obligations Absolute <12>56
3.07 Cash Collateral Pledge <13>57
3.08 Letter of Credit Fees 57
3.09 Existing Letters of Credit 57
3.10 Uniform Customs and Practice <14>58
ARTICLE IV <15>
TAXES, YIELD PROTECTION AND ILLEGALITY <16>58
4.01 Taxes <17>58
4.02 Illegality 59
4.03 Increased Costs and Reduction of Return <18>60
4.04 Funding Losses <19>61
4.05 Inability to Determine Rates <20>62
4.06 Reserves on Offshore Rate Loans 62
4.07 Certificates of Lenders <21>63
4.08 Substitution of Lenders <22>63
4.09 Survival <23>63
ARTICLE V
CONDITIONS PRECEDENT 63
5.01 Conditions to Announcement Date 63
(a) Credit Agreement 63
(b) Resolutions; Incumbency 63
(c) Organization Documents; Good Standing <25>64
(d) Legal Opinions <26>64
(e) Payment of Fees 64
(f) Certificate 64
(g) Press Release <27>65
(h) Consent to Existing Credit Agreement <28>65
(i) Currency Fluctuations Protection 65
(j) Environment Review 65
(k) Pro Forma Balance Sheet; Projections;
and Financials 65
(l) Solvency Certificates <29>66
(m) Collateral Documents 66
(n) Other Documents 66
5.02 Conditions of Initial Funding Date <30>67
(a) Notes <31>67
(b) Bring Down Certificate <32>67
(c) Lender Payoff Letter <33>67
(d) Solvency Certificates 67
(e) Resolutions; Incumbency <34>68
(f) Organization Documents; Good Standing <35>68
(g) Collateral Documents 68
(h) Completion of Offer <36>69
(i) Legal Opinion <37>69
(j) Applicable Margin Certificate 69
(k) Application of Swap Contract Proceeds <38>70
(l) Payment of Fees <39>70
(m) Other Documents <40>70
5.03 Conditions to All Credit Extensions 70
(a) Notice, Application 70
(b) Continuation of Representations and
Warranties <41>71
(c) No Existing Default <42>71
5.04 First Borrowing by Each Eligible Borrower 71
ARTICLE VI <43>
REPRESENTATIONS AND WARRANTIES <44>73
6.01 Incorporation, Good Standing and Due
Qualification <45>73
6.02 Corporate Power and Authority; No Conflicts <46>73
6.03 Legally Enforceable Agreements 73
6.04 Litigation 73
6.05 Financial Statements; SEC Filings <47>74
6.06 Taxes 74
6.07 ERISA <48>75
6.08 Subsidiaries and Ownership of Stock <49>75
6.09 Credit Arrangements <50>75
6.10 No Default on Outstanding Judgments or Orders<51>75
6.11 Governmental Regulation <52>75
6.12 Environmental Matters 75
6.13 Margin Stock <53>76
6.14 Full Disclosure <54>76
6.15 Collateral Documents. <55>76
6.16 Solvency 76
6.17 Labor Relations <56>77
6.18 Copyrights, Patents, Trademarks and
Licenses, etc. <57>77
6.19 Broker's; Transaction Fees <58>77
6.20 Insurance 77
6.21 Swap Obligations 77
6.22 Transaction Agreements <59>78
6.23 Governmental Authorization <60>78
6.24 Year 2000 Compliance 78
6.25 Representations of Eligible Borrowers <61>79
ARTICLE VII <62>
AFFIRMATIVE COVENANTS 79
7.01 Reporting Requirements <63>80
7.02 Payment of Obligations <64>82
7.03 Maintenance of Property; Insurance <65>82
7.04 Conduct of Business and Maintenance of
Existence 82
7.05 Compliance with Laws <66>83
7.06 Inspection of Property, Books and Records <67>83
7.07 Maintenance of Ownership of Subsidiaries 83
7.08 Use of Proceeds 83
7.09 Solvency <68>84
7.10 Further Assurances <69>84
7.11 Foreign Subsidiaries Security <70>85
7.12 The Offer <71>86
7.13 Bidco Capitalization <72>87
ARTICLE VIII
NEGATIVE COVENANTS 87
8.01 Debt <73>88
8.02 Restricted Payments <74>88
8.03 Investments <75>89
8.04 Negative Pledge <76>90
8.05 Consolidations, Mergers and Sales of Assets <77>90
8.06 Transactions with Affiliates <78>91
8.07 Change in Business <79>92
8.08 Accounting Changes <80>92
8.09 Target Operations 92
ARTICLE IX <81>
FINANCIAL COVENANTS <82>92
9.01 EBIT to Interest Expense Ratio <83>93
9.02 Minimum Consolidated Net Worth <84>93
9.03 Maximum Total Debt to Consolidated EBITDA <85>93
ARTICLE X <86>
EVENTS OF DEFAULT <87>94
10.01 Event of Default <88>94
10.02 Relevant Events of Default with respect to
Offer <89>96
10.03 Remedies <90>97
10.04 Rights Not Exclusive <91>99
10.05 Permitted Swap Contract Remedies <92>99
ARTICLE XI <93>
THE ADMINISTRATIVE AGENT <94>99
11.01 Appointment and Authorization;
"Administrative Agent" <95>99
11.02 Delegation of Duties <96>100
11.03 Liability of Administrative Agent <97>100
11.04 Reliance by Administrative Agent <98>100
11.05 Notice of Default <99>101
11.06 Credit Decision <100>101
11.07 Indemnification of Administrative Agent <101>102
11.08 Administrative Agent in Individual Capacity<102>102
11.09 Successor Administrative Agent <103>102
11.10 Withholding Tax <104>103
11.11 Collateral Matters <105>104
11.12 Administrative Agent as English Trustee <106>105
ARTICLE XII <107>
MISCELLANEOUS 106
12.01 Amendments and Waivers <108>106
12.02 Notices <109>107
12.03 No Waiver; Cumulative Remedies <110>107
12.04 Costs and Expenses <111>108
12.05 Company Indemnification <112>108
12.06 Payments Set Aside <113>109
12.07 Successors and Assigns <114>109
12.08 Assignments, Participations, etc. <115>110
12.09 Confidentiality <116>112
12.10 Set-off <117>112
12.11 Notification of Addresses, Lending
Offices, etc. <118>113
12.12 Counterparts <119>113
12.13 Severability <120>113
12.14 No Third Parties Benefited <121>113
12.15 Governing Law and Jurisdiction <122>113
12.16 Waiver of Jury Trial <123>114
12.17 Entire Agreement <124>115
12.18 Judgment Currency <125>115
SCHEDULES
Schedule 1(a) Reserve Asset Costs
Schedule 2.01 Commitments
Schedule 2.08(d) Term Loan and Sterling Acquisition Loan Amortization
Schedule 3.09 Existing Letters of Credit
Schedule 5.02 Specified Foreign Subsidiaries
Schedule 6.04 Litigation
Schedule 6.05(a) Company Financial Statements
Schedule 6.05(b) Target Financial Statements
Schedule 6.08 Subsidiaries
Schedule 6.09 Existing Debt
Schedule 6.12 Environmental Matters
Schedule 6.18 Exceptions to Title for Intellectual Property
Schedule 6.19 Brokers' and Transaction Fees
Schedule 6.21 Existing Swap Contracts
Schedule 8.03(a) Existing Investments
Schedule 8.03(b) Existing ViaTek Investments
Schedule 8.04 Existing Liens
Schedule 12.02 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A-1 Form of Notice of Borrowing (Certain Funds Period)
Exhibit A-2 Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D-1 Form of Legal Opinion of Nutter, McClennen & Fish LLP
Exhibit D-2 Form of Legal Opinion of Simmons & Simmons
Exhibit D-3 Form of Legal Opinion of Allen & Overy
Exhibit E Form of Assignment and Acceptance
Exhibit F-1 Form of Revolving Loan Note
Exhibit F-2 Form of Term Loan Note
Exhibit F-3 Form of Sterling Acquisition Loan Note
Exhibit F-4 Form of Swing Line Loan Note
Exhibit G Form of Election to Participate
Exhibit H Form of Election to Terminate
Exhibit I-1 Form of Company Pledge Agreement
Exhibit I-2 Form of US Holdco Pledge Agreement
Exhibit I-3 Form of Subsidiary Guarantor Pledge Agreement
Exhibit J-1 Form of Company Guaranty
Exhibit J-2 Form of Subsidiary Guaranty
Exhibit K-1 Form of Solvency Certificate - Company, US Holdco #1 and
US Holdco #2
Exhibit K-2 Form of Solvency Certificate - Bidco
Exhibit L Form of Solvency Certificate - Target
Exhibit M Form of Announcement Date Notice
Exhibit N Form of Authorization Letter
Exhibit O Press Release
AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
This AMENDED AND RESTATED MULTICURRENCY CREDIT AGREEMENT is entered into as
of October 25, 1998 and as amended and restated as of December 15, 1998 among
MacDERMID, INCORPORATED, a Connecticut corporation (the "Company"), the
several financial institutions from time to time party to this Agreement
(collectively, the "Lenders"; individually, a "Lender"), and NationsBank,
N.A., as letter of credit issuing bank, swing line lender and <126>
administrative agent for the Lenders.
RECITALS
WHEREAS, the Company (such term and each other capitalized term used but not
defined in these recitals having the meaning assigned to such terms in
Article I), through MacDermid (UK) Limited, a private limited liability
company incorporated under the laws of England and Wales and an indirect
Wholly-Owned Subsidiary of the Company ("Bidco"), intends to acquire W.
Canning plc, a public limited liability company incorporated under the laws
of England and Wales ("Target"), pursuant to a recommended cash offer by
Bidco for all the outstanding shares of Target's capital stock, followed by a
compulsory squeeze out of the remaining shareholders of Target pursuant to
Section 428-430F of the Companies Act (the "Squeeze-Out") pursuant to which
(i) Target will become a Wholly-Owned Subsidiary of Bidco and (ii) all
holders of shares of capital stock of Target (other than those acquired
pursuant to the Offer) will be entitled to receive cash consideration for
their shares; <124>
WHEREAS, in conection therwith, the Company desires to amend and restatte
the terms and provisions of the Multicurrency Credit agreement, dated as of
October 25, 1998 (the "Prior Loan Document"), among the Company, the
existing lenders thereunder and the Agent, in the form hereof in order,
among other things, to facilitate the funding and consummation of the Offer
and the Transaction and to provide for the Loans permitted hereby; and
WHEREAS, in connection with the transactions referenced above, the Lenders
have agreed to make available to the Company and, in certain circumstances,
Eligible Borrowers, a multicurrency revolving credit facility, with a letter
of credit subfacility and, with respect to the Company, a swing line
subfacility, a term loan facility and an acquisition loan facility upon the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms
The following terms have the following meanings:
"Acquisition" means any transaction or series of related transactions (other
than the Transaction) for the purpose of or resulting, directly or
indirectly, in (a) the acquisition of all or substantially all of the assets
of a Person, or of any business or division of a Person, (b) the acquisition
of in excess of 50% of the capital stock, partnership interests, membership
interests or other equity interests of any Person, or otherwise causing any
Person to become a Subsidiary, or (c) a merger or consolidation or any other
combination with another Person (other than a Person that is a Subsidiary)
provided that the Company or a Subsidiary is the surviving entity.
<128>
"Administrative Agent" means NationsBank in its capacity as agent for the
Lenders hereunder, or any successor agent arising under Section 11.09.
"Administrative Agent-Related Persons" means NationsBank (solely in its
capacities as administrative agent, letter of credit issuing bank or
swing line lender hereunder) and any successor administrative agent arising
under Section 11.09 or any successor letter of credit issuing bank or swing
line lender hereunder, together with their respective Affiliates, and the
officers, directors, employees, agents and attorneys-in- fact of such Persons
and its Affiliates.
"Administrative Agent's Payment Office" means the address for payments set
forth on Schedule 12.02 or such other address as the Administrative Agent may
from time to time specify.
"Affiliate" means, 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. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person,
whether through the ownership of voting securities, membership interests,
partnership interests or other equity interests, by contract or otherwise,
but shall with respect to the Company or any of its Subsidiaries specifically
exclude NationsBank.
"Agreed Alternative Currency" has the meaning specified in Section 2.15(e).
<129>
"Aggregate Commitment" means the sum of (a) the Aggregate Revolving Loan
Commitment, (b) the Aggregate Term Loan Commitment and (c) the Aggregate
Sterling Acquisition Loan Commitment.
"Aggregate Revolving Loan Commitment" means the aggregate Revolving Loan
Commitments of the Lenders equal to Seventy-Five Million Dollars
($75,000,000), as such amount is increased pursuant to Section 2.01(c)(ii)or
decreased pursuant to Section 2.05<130>.
"Aggregate <131> Sterling Acquisition Loan Commitment" means the aggregate <132>
Sterling Acquisition Loan Commitments of the Lenders equal to <133>
Forty-Five Million Sterling (Pounds 45,000,000).
"Aggregate Term Loan Commitment" means the aggregate Term Loan Commitments
of the Lenders equal to Two Hundred Million Three Hundred Thousand Dollars
($200,300,000).
"Agreement" means this Multicurrency Credit Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Agreement Currency" has the meaning specified in Section 12.18.
"Announcement Date" means the date on which all of the conditions precedent
set forth in Section 5.01 are satisfied or waived by the Administrative Agent
as evidenced by its delivery of a <134> notice in the form of Exhibit M
hereto.
"Applicable Currency" means, as to any particular payment, with respect to
any Loan or Letter of Credit, Dollars or, with respect to Revolving Loans and
Letters of Credit, the Offshore Currency in which it is denominated or is
payable.
"Applicable Margin" <135> means on any date the applicable percentage per
annum set forth below based upon the Level as shown in the Compliance
Certificate then most recently delivered to the Lenders:
Level Base Rate Loans Offshore Rate Loans Commitment Fee
I 0.75% 1.75% 0.375%
II 0.50% 1.50% 0.375%
III 0.25% 1.25% 0.275%
IV 0.00% 1.00% 0.250%
V 0.00% 0.75% 0.250%
;provided, however, that for the period from (i) the Announcement Date until
the Initial Funding Date, the Applicable Margin shall be deemed to be Level
II, (ii) the Initial Funding Date until the date which is the 180th day
following the Initial Funding Date, the Applicable Margin shall be deemed to
be the Level which is the higher of (x) Level II and (y) the Applicable
Margin as determined pursuant to the most recent Compliance Certificate
delivered to the Lenders pursuant to Section 7.01(c) and (iii) thereafter,
the Applicable Margin as determined pursuant to the most recent Compliance
Certificate; and provided further that, if the Company shall have failed to
deliver the Applicable Margin certificate referred to in Section 5.02(j) or
any Compliance Certificate pursuant to Section 7.01(c), in each case by the
date required, or if any other Event of Default shall have occurred and be
continuing, then from the date such Applicabel Margin certificate or
Compliance Certificate was required to be delivered until the date of such
delivery or the cure or waiver in writing of such other Event of Default, as
the case may be, the Applicable Margin shall be deemed to be Level I. Each
change in the Applicable Margin shall take effect with respect to all
outstanding Loans and fees on the first Business Day immediately succeeding
the day on which such Compliance Certificate is received by the
Administrative Agent. Notwithstanding the foregoing, no reduction in the
Applicable Margin shall be effected if an Event of Default shall have
occurred and be continuing on the date when such change would otherwise
occur, it being understood that on the first Business Day immediately
succeeding the day on which such Event of Default is either waived or cured
(assuming no other Event of Default shall be then pending), the Applicable
Margin shall be reduced (on a prospective basis) in accordance with the then
most recently delivered Compliance Certificate.
"Asset Disposition" means the direct or indirect sale, assignment,
conveyance, transfer or other disposition (whether in one or a series of
transactions) of any property or assets (including accounts and notes
receivable, with or without recourse), or the entering into an agreement to
do any of the foregoing; provided, however, that the Company and Qualified
Subsidiaries shall at all times be permitted to effect such sales,
assignments, conveyances, transfers and other dispositions among such
Persons, and such permitted dispositions shall be specifically excluded from
the definition of Asset <136> Disposition.
"Assignee" has the meaning specified in Section 12.08(a).
"Attorney Costs" means and includes all reasonable and customary fees and
disbursements of any law firm or other external counsel and, without
duplication, the reasonable allocated cost of internal legal services and all
reasonable disbursements of internal counsel.
"Authorization Letter" <137> means the letter agreement executed by an
Eligible Borrower in the form of Exhibit N.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C.
S101, et seq.).
"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 NationsBank in Charlotte,
North Carolina as its "reference rate." The "reference rate" is a rate set
by NationsBank based upon various factors including NationsBank'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. Any change in the reference rate announced by
NationsBank shall take effect at the opening of business on the day specified
in the public announcement of such change.
"Base Rate Loan" means a Loan or an L/C Advance that bears interest based on
the Base Rate.
"Benefit Arrangement" means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is not a Plan or Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the
ERISA Group.
"Bidco" has the meaning set forth in the recitals.
"Borrower" means the Company <138> or any Eligible Borrower, as the
context may require, and their respective successors and assigns, and
"Borrowers" means all of the foregoing.
"Borrowing" means a borrowing hereunder consisting of Loans of the same Type
and in the same Applicable Currency made to a Borrower on the same day by the
Lenders under Article II, and, in the case of Offshore Rate Loans, having the
same Interest Period.
"Borrowing Date" means any date on which a Borrowing occurs under Section
2.03.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks in New York or Charlotte, North Carolina are
authorized or required by law to close and (i) with respect to disbursements
and payments in Dollars with respect to any Loan bearing interest based upon
the Offshore Rate, a day on which dealings are carried on in the applicable
offshore Dollar interbank market, and (ii) with respect to any disbursements
and payments in and calculations pertaining to any Offshore Currency Loan, a
day on which commercial banks are open for foreign exchange business in
London, England, and on which dealings in the relevant Offshore Currency are
carried on in the applicable offshore foreign exchange interbank market in
which disbursements or payment in such Offshore Currency will be made or
received hereunder.
"Capital Adequacy Regulation" means any guideline, request or directive of
any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative Agent, the
Issuing Bank and the Lenders, as additional collateral for the Obligations,
cash or deposit account balances pursuant to documentation in form and
substance satisfactory to the Administrative Agent <139>. Derivatives of
such term shall have corresponding meaning.
"Cash Equivalents" means:
(a) securities issued or fully guaranteed or insured by the United States
Government or any agency thereof and backed by the full faith and credit of
the United States having maturities of not more than one year from the date
of acquisition;
(b) certificates of deposit, time deposits, Eurocurrency time deposits,
repurchase agreements, reverse repurchase agreements, or bankers'
acceptances, having in each case a tenor of not more than one year, issued by
any Lender, or by any commercial bank having combined capital and surplus of
not less than $100,000,000 and either located in the U.S. or with respect to
Foreign Subsidiaries organized under the laws of an Approved Country (as
defined in clause (d) below) whose short term securities are rated at least
A-1 by <140> S&P and P-1 by Moody's <141> or with respect to banks located in
an Approved Country the equivalent thereof;
(c) commercial paper of an issuer rated at least A-1 by <142> S&P or P-1
by Moody's <143> and in either case having a tenor of not more than six
months; and
(d) with respect to Foreign Subsidiaries organized under the laws of an
Approved Country, government obligations of <144> the United Kingdom and of
any other country approved by the Administrative Agent or whose debt
securities are rated by S&P and Moody's A-1 or P-1, respectively, or the
equivalent thereof (if a short-term debt rating is provided by either) or at
least AA or AA2, respectively, or the equivalent thereof (if a long-term
unsecured debt rating is provided by either (each such country, an "Approved
Country"), in each case with maturities of less than 12 months.
"Certain Funds Period" means the period commencing on the first day after the
Announcement Date and ending on whichever is the earlier of (a) the date on
which the Aggregate Commitment is terminated pursuant to Section 2.07(a)
<145>, (b) the Business Day following the Squeeze-Out Date and (c) the date
which is six (6) calendar months after the Announcement Date; provided,
however, that the date set forth in clause (c) above shall be extended by an
additional one (1) month and two weeks if Bidco has initiated the Squeeze-Out
during the initial six months after the Announcement Date.
"Change in Control" means (a) the acquisition by any person (other than <146>
a Plan, the MacDermid, Incorporated Employee Pension Plan, the MacDermid,
Incorporated Employee Profit Sharing Plan, the MacDermid, Incorporated
Employee Stock Ownership Plan or other qualified ERISA plan (other than a
Multiemployer Plan)) <147>, or two or more Persons acting in concert, of
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934 <148> as
amended) of 30% or more of the outstanding shares of voting stock of the
Company, or (b) during any period of twelve consecutive calendar months,
individuals who at the beginning of such period constituted the Company's
board of directors (together with any new directors whose election by the
Company's board of directors or whose nomination for election by the
Company's stockholders was approved by a vote of at least a majority of the
directors then still in office who either were directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reasons other than death or disability to constitute
a majority of the directors then in office.
"Chase" means The Chase Manhattan Bank, in its individual capacity
"City Code" means The City Code on Take-overs and Mergers as issued by the
Panel on Take-overs and Mergers in the United Kingdom.
"Code" means the Internal Revenue Code of 1986, and regulations promulgated
thereunder.
"Collateral" means all property and interests in property and proceeds
thereof now owned or hereafter acquired by a Borrower or any Subsidiary
Guarantor in or upon which a Lien now or hereafter exists in favor of the
Lenders, or the Administrative Agent on behalf of itself, the Issuing Bank
and the Lenders, whether under this Agreement or under any other document
executed by any such Persons and delivered to the Administrative Agent.
"Collateral Documents" means, collectively <148> (if and when each such document
is required to be executed and delivered hereunder), (a) each Credit
Agreement Guaranty, the Pledge Agreements and all other pledge agreements,
guarantees and other similar agreements between a Borrower or its
Subsidiaries and the Lenders or the Administrative Agent, for the benefit of
itself, the Issuing Bank and the Lenders, now or hereafter delivered to the
Lenders or the Administrative Agent pursuant to or in connection with the
transactions contemplated hereby, and all financing statements (or comparable
documents now or hereafter filed in accordance with the Uniform Commercial
Code or comparable law) against a Borrower or any of its Subsidiaries as
debtor in favor of the Lenders or the Administrative Agent, for the benefit
of itself, the Issuing Bank and the Lenders, as secured party, and (b) any
amendments, supplements, modifications, renewals, replacements,
consolidations, substitutions and extensions of any of the foregoing.
"Commencement Date" means the first day of the third stage of EMU.
"Commitments" means, collectively, the Revolving Loan Commitment (including
the L/C Commitment and Swing Line Loan Commitment thereunder), the Term Loan
Commitment and the Sterling Acquisition Loan Commitment.
"Commitment <150> Fee"means, collectively, the Revolving Loan Commitment Fee,
the Term Loan Commitment Fee and the Sterling Acquisition Loan Commitment
Fee.
"Companies Act" means the Companies Act of 1985 of the United Kingdom.
"Company" means MacDermid, Incorporated, a Connecticut corporation.
"Company Guaranty" means the Guaranty to be executed and delivered
by the Company in the form attached to this Agreement as Exhibit J-1.
"Company Pledge Agreement" means the Pledge Agreement to be executed and
delivered by the Company in the form attached to this Agreement as Exhibit I-
1.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit C.
"Computation Date" has the meaning specified in Section 2.15(a).
"Consolidated EBIT" means, for any period the sum of (a) Consolidated Net
Income of the Company and its Consolidated Subsidiaries for such period, plus
(b) to the extent deducted in determining Consolidated Net Income, the sum of
(i) Consolidated Interest Expense and (ii) consolidated taxes of the Company
and its Consolidated Subsidiaries for such period; provided, however, that
for all purposes for any businesses acquired (whether by purchase accounting
or pooling accounting) during the period of determination (including Target
and its Subsidiaries), Consolidated EBIT for such period shall be determined
on a pro forma basis as if such acquisition had occurred as of the beginning
of such period (including synergies agreed to by the Administrative Agent in
its reasonable discretion); provided, further, that without the consent of
the Administrative Agent and the Majority Banks, the Consolidated EBIT being
added as a result of any such acquisition shall not exceed (i) in the case
that only unaudited financial statements are available with respect to the
assets, Person or division being acquired (whether by merger, stock or asset
purchase, or otherwise), the amount of Consolidated EBIT of the acquiree on a
stand alone basis being added from such acquisition shall not exceed 15% of
the otherwise applicable amount of Consolidated EBIT of the Company and its
Subsidiaries (other than the acquiree) taken as a whole, or (ii) the instance
that unqualified audited financial statements in accordance with GAAP are
available for <151> the acquiree, then 100% of the Consolidated EBIT of
<152> the acquiree.
"Consolidated EBITDA" means, for any period, the sum of (a) Consolidated Net
Income of the Company and its Consolidated Subsidiaries for such period, plus
(b) to the extent deducted in determining such Consolidated Net Income, the
sum of (i) Consolidated Interest Expense, (ii) consolidated depreciation and
amortization expense and (iii) consolidated taxes of the Company and its
Consolidated Subsidiaries for such period; provided, however, that for all
purposes for any businesses acquired (whether by purchase accounting or
pooling accounting) during the period of determination (including Target and
its Subsidiaries), Consolidated EBITDA for such period shall be determined on
a pro forma basis as if such acquisition had occurred as of the beginning of
such period (including synergies agreed to by the Administrative Agent in its
reasonable discretion); provided, further, that without the consent of the
Administrative Agent and the Majority Banks, the Consolidated EBITDA being
added as a result of any such acquisition shall not exceed (i) in the case
that only unaudited financial statements are available with respect to the
assets, Person or division being acquired (whether by merger, stock or asset
purchase, or otherwise), the amount of Consolidated EBITDA of the acquiree on
a stand alone basis being added from such acquisition shall not exceed 15% of
the otherwise applicable amount of Consolidated EBITDA of the Company and its
Subsidiaries (other than the acquiree) taken as a whole, or (ii) <153> the
instance that unqualified audited financial statements in accordance with
GAAP are available for <154> the acquiree, then 100% of the Consolidated
EBITDA of <155> the acquiree.
"Consolidated Interest Expense" means, for any period, the interest expense
of the Company and its Consolidated Subsidiaries determined on a consolidated
basis for such period.
"Consolidated Net Income" means, for any period, the net income of the
Company and its Consolidated Subsidiaries for such period as adjusted to
exclude the following:
(a) the effect of each change in accounting principles;
(b) any gain, together with any related provisions for taxes on such
gain, realized upon the sale or other disposition of any asset of the Company
or any Consolidated Subsidiary (including pursuant to any sale/leaseback
transaction) which is not sold or otherwise disposed of in the ordinary
course of business;
(c) any gain or loss, together with any related provision for taxes on
such gain, realized in connection with the extinguishment of any Debt of the
Company or any of its Consolidated Subsidiaries;
(d) all extraordinary gains and losses determined in accordance with
generally accepted accounting principles;
(e) subject to the proviso below, the net income (to the extent not
distributed to the Company in cash) or loss of any Person that is not a
Consolidated Subsidiary of the Company or that the Company accounts for by
the equity method of accounting; and
(f) the net income or loss of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition;
provided, however, that to the extent deducted in determining net income at
any time during the nine month period following the Initial Funding Date, and
without duplication, Consolidated Net Income shall be adjusted to include the
following:
(i) non-cash charges relating to the Transaction;
(ii) cash charges relating to the Transaction in an
aggregate amount not to exceed $5,000,000; and
(iii) cash charges (other than as provided in clause (ii))
relating to the Transaction and reasonably
acceptable to the Administrative Agent.
"Consolidated Net Worth" means at any date the consolidated stockholders'
equity of the Company and its Consolidated Subsidiaries as <156> at such
date.
"Consolidated Subsidiary" means any Subsidiary whose accounts are, or are
required to be, consolidated with the accounts of the Company.
"Consolidated Total Debt" means with respect to the Company and its
Subsidiaries (on a consolidated basis) at any date the sum of (i) total Debt
of the type described in <157> clauses (a), (b) and (d) contained in the
definition of Debt, (ii) all standby letters of credit, other than <158> at
any time that Galvanevet s.r.l. is not a Consolidated Subsidiary, Existing
Letters of Credit related to or given in connection with the Galvanevet
acquisition, and (y) standby letters of credit backing trade obligations
incurred in the ordinary course of business in an aggregate Stated Amount up
to $5,000,000, and (iii) Guarantees of Debt of any Person other than the
Company or any of its Consolidated Subsidiaries.
"Conversion/Continuation Date" means any date on which, under Section 2.04,
the Company (a) converts Loans (other than Swing Line Loans) of one Type to
another Type, or (b) continues as Loans (other than Swing Line Loans) of the
same Type, but with a new Interest Period, Loans having Interest Periods
expiring on such date.
<159> "Credit Agreement Guaranty<160>" means, collectively, if and when each
such document is executed and delivered (a) the Company Guaranty, (b) the
Subsidiary Guaranty and (c) each guaranty required to be delivered by a
Foreign Subsidiary pursuant to Section 7.11, in each case in favor of the
Administrative Agent, on behalf of itself, the Issuing Bank and the Lenders,
as each of the same may be amended, supplemented or otherwise modified from
time to time.
"Credit Extension" means and includes (a) the making of any Loans hereunder,
and (b) the Issuance of any Letters of Credit hereunder.
"Debt" means, with respect to any Person at any date, without duplication:
(a) all obligations of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or other similar
instruments, (c) all obligations of such Person to pay the deferred purchase
price of property or services, except trade accounts payable arising in the
ordinary course of business, (d) all obligations of such Person as lessee
which are capitalized in accordance with generally accepted accounting
principles, (e) all obligations of such Person to reimburse or prepay any
bank or other Person in respect of amounts paid under a letter of credit,
banker's acceptance or similar instrument, whether drawn or undrawn
(provided, however, if the Company provides standby letters of credit or bank
guarantees in support of obligations of a Subsidiary, only the underlying
obligation and not the contingent liability created by the letter of credit
or bank guaranty shall be treated as Debt of the Company and such
Subsidiary), (f) all Debt of other Persons secured by a Lien on any asset of
such Person, whether or not such Debt is assumed by such Person, (g) all
obligations of such Person under a synthetic lease transaction and (h) all
Guarantees.
"Default" means any event or circumstance which, with the giving of notice,
the lapse of time, or both, would (if not cured or otherwise remedied during
such time) constitute an Event of Default.
"Deutschemarks" and the sign "DM" <161> each mean the lawful currency of
Germany.
"Dollars", "dollars" and the symbol "$" each mean the lawful currency of the
United States.
"Dollar Equivalent" means, at any time, (a) as to any amount denominated in
Dollars, the amount thereof at such time and (b) as to any amount denominated
in an Offshore Currency, the equivalent amount in Dollars as determined by
the Administrative Agent at such time on the basis of the Spot Rate for the
purchase of Dollars with such Offshore Currency on the most recent
Computation Date.
"Domestic Subsidiary" means each Subsidiary <162> that is organized
under the laws of the United States or any state thereof.
"Effective Amount" means:
(a) with respect to any Revolving Loans on any date, the Dollar
Equivalent of the aggregate outstanding principal amount thereof after giving
effect to any Borrowing and prepayments or repayments of Revolving Loans
occurring on such date;
(b) with respect to any outstanding L/C Obligations on any date, the
Dollar Equivalent of the aggregate amount of such L/C Obligations on such
date after giving effect to the Issuance of any Letter of Credit occurring on
such date and any other changes in the amount of the L/C Obligations as of
such date, including as a result of any reimbursements of outstanding unpaid
drawings under Letters of Credit or any reductions in the maximum amount
available for drawing under the Letters of Credit taking effect on such date;
(c) with respect to any Swing Line Loan on any date, the aggregate
outstanding principal amount thereof after giving effect to any Borrowing and
prepayments or repayments of Swing Line Loans occurring on such date;
(d) with respect to any Term Loan on any date, the aggregate
outstanding principal amount thereof after giving effect to any Borrowing and
prepayments or repayments of Term Loans occurring on such <163>date; and
(e) with respect to any Sterling Acquisition Loan on any date, the
aggregate outstanding principal amount thereof after giving effect to any
Borrowing and prepayments or repayments of Sterling Acquisition Loans occurring
on such date.
For purposes of Section 2.07, the Effective Amount shall be determined
without giving effect to any mandatory prepayments to be made under said
Section.
"Election to Participate" means an Election to Participate executed by an
Eligible Borrower and substantially in the form of Exhibit G.
"Election to Terminate" means an Election to Terminate executed by an
Eligible Borrower and substantially in the form of Exhibit H.
"Eligible Assignee" means (a) a commercial bank organized under the laws of
the United States, or any state thereof, and having a combined capital and
surplus of at least $100,000,000; (b) a commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any
such country, and having a combined capital and surplus of at least
$100,000,000, provided that such bank is acting through a branch or agency
located in the United States; (c) a Person that is primarily engaged in the
business of commercial banking and that is (i) a Subsidiary of a Lender, (ii)
a Subsidiary of a Person of which a Lender is a Subsidiary, or (iii) a Person
of which a Lender is a Subsidiary; (d) a commercial finance company or
finance subsidiary of a corporation organized under the laws of the United
States of America, or any State thereof, and having total assets in excess of
$100,000,000; (e) a savings bank or savings and loan association organized
under the laws of the United States of America, or any State thereof, and
having total assets in excess of $100,000,000; (f) as to the Term Loans, an
"accredited investor" as such term is defined in Rule 501(a) of Regulation D
under the <164> Securities Act of 1933, as amended (other than the Company or
an Affiliate of the Company); and (g) any other entity approved by the
Company and the Administrative Agent.
"Eligible Borrower" means any (a) Wholly-Owned Consolidated Subsidiary that
is a Domestic Subsidiary <165> the capital stock of which has been
delivered to the Administrative Agent pursuant to a Pledge Agreement and
<166> (b) Wholly-Owned Consolidated Subsidiary <167> that is a
Foreign Subsidiary whose ultimate non-U.S. parent's capital stock has been
delivered to the Administrative Agent pursuant to a Pledge Agreement, and in
each case as to which an Election to Participate shall have been delivered to
the Administrative Agent and as to which an Election to Terminate shall not
have been delivered to the Administrative Agent. Each such Election to
Participate and Election to Terminate shall be duly executed on behalf of
such Wholly-Owned Consolidated Subsidiary and the Company in such number of
copies as the Administrative Agent may request. The delivery of an Election
to Terminate shall not affect any obligation of an Eligible Borrower
theretofore incurred. The Administrative Agent shall promptly give notice to
the Lenders of the receipt of any Election to Participate or Election to
Terminate.
"EMU" means European Economic and Monetary Union as contemplated by the
Treaty establishing the European Community.
"EMU Legislation" means legislative measures of the European Council in
relation to EMU.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, injunctions, permits, conversions, grants,
franchises, licenses, agreements and other governmental restrictions relating
to the environment, to the effect of the environment on human health or to
emissions, discharges or releases of pollutants, contaminants, Hazardous
Substances or wastes into the environment, including ambient air, surface
water, ground water or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time, or any successor statute including any rules and
regulations promulgated thereunder.
"ERISA Group" means the Company, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company or any
Subsidiary, are treated as a single employer under Section 414(c) of the
Code.
"euro" means the single currency of the Participating Member States to be
introduced on the Commencement Date.
"euro unit" means a currency unit of the euro as defined in EMU Legislation.
"Eurocurrency Reserve Percentage" has the meaning specified in the
definition of "Offshore Rate".
"Event of Default" means any of the events or circumstances specified in
Section 10.01.
"Existing Credit Agreement" means the Amended and Restated Credit Agreement,
dated as of August 23, 1996, as amended by the First Amendment, dated as of
March 30, 1998, the Second Amendment, dated as of April 24, 1998, the Third
Amendment, dated as of June 26, 1998 and the Fourth Amendment, dated as of
August 5, 1998, among the Company, the financial institutions from time to
time party thereto and The Chase Manhattan Bank, as agent.
"Existing Letters of Credit" shall mean each letter of credit listed on
Schedule <168> 3.09.
"FDIC" means the Federal Deposit Insurance Corporation, and any Governmental
Authority succeeding to any of its principal functions.
"Federal Funds Rate" means, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Bank of New York (including any such
successor, "H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day will be
the arithmetic mean as determined by the Administrative Agent of the rates
for the last transaction in overnight Federal funds arranged prior to 9:00
a.m. (New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the Administrative
Agent.
"Fee Letter" has the meaning specified in Section 2.10(a).
"Foreign Subsidiary" means each Subsidiary <169> that is not a
Domestic Subsidiary.
"Francs" and the symbol "FF" <170> each mean the lawful currency of France.
"FRB" means the Board of Governors of the Federal Reserve System, and any
Governmental Authority succeeding to any of its principal functions.
"Further Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges (including, without limitation, net income taxes and franchise
taxes), and all liabilities with respect thereto, imposed by any jurisdiction
on account of amounts payable or paid pursuant to Section 4.01.
"FX Trading Office" means the Foreign Exchange Trading Center Charlotte,
North Carolina of NationsBank, or such other foreign exchange trading center
of NationsBank as it may designate from time to time.
"GAAP" means U.S. generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority within
the U.S. accounting profession), which are applicable to the circumstances as
of the date of determination; provided, however, that for purposes of all
computations required to be made with respect to compliance by the Company
with Sections 9.01, 9.02<171> and 9.03, such term shall mean generally
accepted accounting principles as in effect on the date of this Agreement,
applied in a manner consistent with those used in preparing the financial
statements referred to in Section 6.05(a).
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Debt or other obligation of any
Person and, without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such Person (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such Debt
or other obligation (whether arising by virtue of partnership arrangements,
by agreement to keep-well, to purchase assets, goods, securities or services,
to take-or-pay, or to maintain financial statement conditions or otherwise)
or (b) entered into for the purpose of assuring in any other manner the
obligee of such Debt or other obligation of the payment thereof or to protect
such obligee against loss in respect thereof (in whole or in part); provided
that the term Guarantee shall not include endorsements for collection or
deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Guilders" means the lawful currency of the Netherlands.
"Hazardous Substances" means any toxic, radioactive, caustic or otherwise
hazardous substance, including petroleum, its derivatives, by-products and
other hydro-carbons, or any substance having any constituent elements
displaying any of the foregoing characteristics and any other element,
compound, mixture, solution or substance which poses a present or potential
hazard to human health or the environment.
"Honor Date" shall mean the date that any amount is paid by the Issuing Bank
under any Letter of Credit.
<172>"Indemnified Liabilities<173>" has the meaning specified in Section
12.05.
"Indemnified Party" has the meaning specified in Section 12.05.
"Initial Funding Date" means the date on which all of the conditions
precedent set forth in Section 5.02 are satisfied in all material respects or
waived by the <174> Majority Lenders and the initial Loans are made by the
Lenders hereunder to the Company to facilitate the purchase by Bidco of the
Target Shares
pursuant to the Offer .
"Insolvency Proceeding" means, with respect to any Person, (a) any case,
action or proceeding with respect to such Person before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors, or
(b) any general assignment for the benefit of creditors, composition,
marshaling of assets for creditors, or other, similar arrangement in respect
of its creditors generally or any substantial portion of its creditors;
undertaken under U.S. Federal, state or foreign law, including the Bankruptcy
Code or any foreign equivalent.
"Intercompany Debt" means Debt representing loans from the Company or any
Qualified Subsidiary to a Non- Qualified Subsidiary.
"Interest Payment Date" means, as to any (i) Offshore Rate Loan, the last day
of each Interest Period applicable to such Offshore Rate Loan, (ii) Base Rate
Loan, the last Business Day of each March, June, September and December and
(iii) any Swing Line Loan <175> bearing interest at the Quoted Rate, the date
such Swing Line Loan is to be repaid; provided, however, that if any Interest
Period exceeds three months, the date that falls three months after the
beginning of such Interest Period and after each Interest Payment Date
thereafter is also an Interest Payment Date.
"Interest Period" means, as to any Offshore Rate Loan, the period commencing
on the Borrowing Date of such Offshore Rate Loan or on the
Conversion/Continuation Date on which the relevant <176> Loan is
converted into or continued as an Offshore Rate Loan, and ending (x) with
respect to any Offshore Rate Loan made on the Initial Funding Date or on the
Business Day following the Initial Funding Date, on March 31, 1999 and (y)
with respect to all other Offshore Rate Loans, on the date one, two,
three or six months thereafter as selected by the Company in its
Notice of Borrowing or Notice of Conversion/Continuation;
provided that:
(a) if any Interest Period would otherwise end on a day that is not
a Business Day, <177> such Interest Period shall be extended to the following
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 preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period;
(c) no Interest Period for any Term Loan or Sterling Acquisition
Loan shall extend beyond the Maturity Date and no Interest Period for any
Revolving Loan shall extend beyond the Revolving Loan Termination Date; and
(d) no Interest Period applicable to a Term Loan or Sterling
Acquisition Loan or portion thereof shall extend beyond any Principal Payment
Date unless the aggregate principal amount of such Term Loans and Sterling
Acquisition Loans represented by Base Rate Loans or Offshore Rate Loans
having Interest Periods that will expire on or before such date, equals or
exceeds the amount of the principal payment due on such Principal Payment
Date.
"Investment" means any investment in any Person, whether by means of share
purchase, capital contribution, loan, time deposit or otherwise.
"IRS" means the Internal Revenue Service, and any Governmental Authority
succeeding to any of its principal functions under the Code.
"Issuance Date" means the date upon which the Issuing Bank Issues a Letter of
Credit.
"Issue" means, with respect to any Letter of Credit, to issue or to extend
the expiry of, or to renew or increase the amount of, such Letter of Credit;
and the terms "Issued," "Issuing" and "Issuance" have corresponding meanings.
"Issuing Bank" means (x) NationsBank in its capacity as issuer of the Letters of
Credit (other than Existing Letters of Credit) hereunder, together with
any replacement letter of credit issuer arising under Section 11.01(b) or
Section 11.09 and (y) Chase in its capacity as issuer of the Existing
Letters of Credit hereunder.
"Joint Venture" means a single-purpose corporation, partnership, limited
liability company, joint venture or other similar legal arrangement (whether
created by contract or conducted through a separate legal entity) now or
hereafter formed by the Company or any of its Subsidiaries with another
Person in order to conduct a common venture or enterprise with such Person.
"Judgment Currency" has the meaning specified in Section 12.18.
"L/C Advance" means each Revolving Lender's participation in any L/C
Borrowing in accordance with its Pro Rata Revolving Share.
"L/C Amendment Application" means an application form for amendment of
outstanding Letters of Credit as shall at any time be in use at the Issuing
Bank, as the Issuing Bank shall request.
"L/C Application" means an application form for issuances of Letters of
Credit as shall at any time be in use at the Issuing Bank, as the Issuing
Bank shall request.
"L/C Borrowing" means an extension of credit resulting from a drawing under
any Letter of Credit which shall not have been reimbursed on the date when
made <178> or converted into a Borrowing of Revolving Loans under Section
3.03(b).
"L/C Commitment" means the commitment of the Issuing Bank to Issue, and the
commitment of the Revolving Lenders severally to participate in, Letters of
Credit from time to time Issued or outstanding under Article III, in an
aggregate amount not to exceed on any date the Effective Amount of
$38,000,000 (of which amount (x) no more than the Effective Amount of
$15,000,000 shall be attributable to Letters of Credit issued on and after
the Initial Funding Date not relating to <179>Existing Letters of Credit
<180> and (y) no more than the Effective Amount of $23,000,000 shall be
attributable to Existing Letters of Credit), as the same shall be reduced as
a result of a reduction in the L/C Commitment pursuant to Section 2.05;
provided that the L/C Commitment is a part of the combined Revolving Loan
Commitments, rather than a separate, independent commitment.
"L/C-Related Documents" means the Letters of Credit, the L/C Applications,
the L/C Amendment Applications and any other document relating to any Letter
of Credit, including any of the Issuing Bank's standard form documents for
letter of credit issuances.
"L/C Obligations" means the sum of (i) the aggregate undrawn amount of all
Letters of Credit then outstanding, plus (ii) the amount of all unreimbursed
drawings under all Letters of Credit, including all outstanding L/C
Borrowings.
"Lender" has the meaning specified in the introductory clause hereto.
References to the "Lenders" shall include NationsBank, including in its
capacity as Issuing Bank and Swing Line Lender and any other Lender assuming
such capacity in the future, and for purposes of clarification only, to the
extent that NationsBank may have any rights or obligations in addition to
those of the Lenders due to its status as Issuing Bank or Swing Line Lender,
its status as such will be specifically referenced.
"Lending Office" means, as to any Lender, the office or offices of such
Lender specified as its "Lending Office" or "Domestic Lending Office" or
"Offshore Lending Office", as the case may be, on Schedule 12.02, or such
other office or offices as such Lender may from time to time notify the
Company and the Administrative Agent.
"Letters of Credit" means any letter of credit issued by Issuing Bank
hereunder, and any amendments thereto or replacements thereof, pursuant to
Article III, and each Existing Letter of Credit.
"Level" means, and includes, Level I, Level II, Level III, Level IV or Level
V, whichever is in effect at the relevant time.
"Level I" shall exist at any time the Leverage Ratio is greater than
3.50:1.0.
"Level II" shall exist at any time the Leverage Ratio is equal to or less
than 3.50:1.0 but greater than 3.00:1.0.
"Level III" shall exist at any time the Leverage Ratio is equal to or less
than 3.00:1.0 but greater than 2.50:1.0.
"Level IV" shall exist at any time the Leverage Ratio is equal to or less
than 2.50:1.0 but greater than 2.00:1.0.
"Level V" shall exist at any time the Leverage Ratio is equal to or less
than 2.00:1.0.
"Leverage Ratio" means, with respect to any period, the ratio of Consolidated
Total Debt to Consolidated EBITDA tested as of the end of each fiscal quarter
for the preceding four fiscal quarters.
"LIBOR" has the meaning specified in the definition "Offshore Rate".
"Lien" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance, lien
(statutory or other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created by, arising
under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a capital lease, any financing
lease having substantially the same economic effect as any of the foregoing,
or the filing of any financing statement naming the owner of the asset to
which such lien relates as debtor, under the Uniform Commercial Code or any
comparable law) and any contingent or other agreement to provide any of the
foregoing, but not including the interest of a lessor under an operating
lease.
"Lira" means the lawful currency of Italy.
"Loan" means an extension of credit by a Lender to a Borrower under Article
II or Article III in the form of a Revolving Loan, a Term Loan, <181> a
Sterling Acquisition Loan, a Swing Line Loan or a L/C Borrowing.
"Loan Documents" means this Agreement, any Notes, the Fee Letter, the L/C-
Related Documents, the Collateral Documents, each Election to Participate,
each Authorization Letter and all other documents delivered to the
Administrative Agent or any Lender in connection herewith.
"Majority Lenders" means (a) prior to the termination of the Commitments,
Lenders holding at least 51% of the then aggregate unpaid principal amount of
Term Loans and Sterling Acquisition Loans plus the Revolving Loan Commitments
and <182> or (b) if the Commitments have been terminated, Lenders holding at
least 51% of the then unpaid principal amount of Loans <183> and L/C
Obligations.
"Mandatory Cost" means the cost imputed to the Lender(s) of compliance with:
(a) the Mandatory Liquid Assets requirements of the Bank of England
and/or the banking supervision or other costs of the Financial Services
Authority as determined in accordance with Schedule 1(a); and
(b) any other applicable regulatory or central bank requirement
relating to any Loan made through a branch in the jurisdiction of the
currency of that Loan.
"Margin Stock" means "margin stock" as such term is defined in Regulation
<184> T, U or X of the FRB.
"Material Debt" means Debt (other than the Notes) of the Company and/or one
or more of its Subsidiaries, in an aggregate principal amount, individually
or in the aggregate, exceeding $5,000,000.
"Material Plan" means at any time a Plan or Plans having an aggregate amount
of Unfunded Liabilities in excess of $1,000,000.
"Material Subsidiary" means US Holdco #1, US Holdco #2, Bidco, Target, each
Eligible Borrower and any other Subsidiary of the Company whose assets
constitute 5% or more of the total assets of the Company and its Subsidiaries
taken as a whole.
"Moody's" means Moody's Investors Service, Inc., and any successor thereto.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five (5) plan years made contributions, including
for these purposes any Person which ceased to be a member of the ERISA Group
during such five year <185> period.
"national currency unit" means the currency unit (other than a euro unit) of
a Participating Member State.
"NationsBank" means NationsBank, N.A., a national banking association,
individually.
"Net Proceeds" means proceeds in cash, checks or other cash equivalent
financial instruments (including Cash Equivalents) as and when received by
the Person making an Asset Disposition, net of: (a) the direct costs relating
to such Asset Disposition (excluding amounts payable to the Company or any
Affiliate of the Company), (b) all taxes paid or payable as a result thereof
and (c) amounts required to be applied to repay principal, interest and
prepayment premiums and penalties on Debt secured by a Lien on the asset
which is the subject of such Asset Disposition.
"Non-Qualified Subsidiary" means any Subsidiary that is not a Qualified
Subsidiary.
"Note" means a promissory note executed by a Borrower in favor of a Lender
pursuant to Section 2.02(b), in substantially the form of Exhibit F-1, with
respect to Revolving Loans, Exhibit F-2, with respect to Term Loans, Exhibit
F-3, with respect to Sterling Acquisition Loans and Exhibit F-4, with respect
to <186> Swing Line <187> Loans.
"Notice of Borrowing" means a notice in substantially the form of (a) Exhibit
A-1 with respect to a Borrowing of Sterling Acquisition Loans or Term Loans
on a Business Day during the Certain Funds Period and (b) Exhibit A-2 with
respect to any other Borrowing.
"Notice of Conversion/Continuation" means a notice in substantially the form
of Exhibit B.
"Obligations" means all advances, debts, liabilities, obligations, covenants
and duties arising under any Loan Document owing by the Company to any
Lender, the Administrative Agent or any Indemnified Party, whether direct or
indirect (including those acquired by assignment), absolute or contingent,
due or to become due, now existing or hereafter arising.
"Offer" means the cash offer, recommended by the Directors of the Target, for
the Target Shares made or to be made by Bidco on the terms and conditions
contained in the Press Release, as such offer may be amended, varied or
waived in compliance with Section 7.12.
"Offer Document" means the document to be issued to the shareholders of
Target containing the Offer outlined in the Press Release.
"Offshore Currency" means, at any time, Sterling, Deutschemarks, Guilders,
Pesetas, Yen, Francs, Lira, Swiss Francs, euros and/or euro units or such
other currency as is acceptable to the Administrative Agent and the Lenders
in accordance with Section 2.15(e); provided, that on the Commencement Date,
each obligation under this Agreement denominated in a national currency unit
will, forthwith (but otherwise in accordance with EMU Legislation), be
redenominated into the euro. Following redenomination described in the
preceding sentence, (i) all Loans requested in the currency of a
Participating Member State shall, subject to the terms of this Agreement, be
made in euro units; and (ii) payments by <188> a Borrower to the
Lenders in the currency of a Participating Member State shall be made in euro
units.
"Offshore Currency Loan" means any Revolving Loan that is an Offshore Rate
Loan denominated in an Offshore Currency and any Sterling Acquisition Loan.
"Offshore Rate" means, for any Interest Period, with respect to Offshore Rate
Loans comprising part of the same Borrowing, the rate of interest per annum
(rounded upward to the next 1/100th of 1%) determined by the Administrative
Agent as follows:
Offshore Rate = LIBOR
1.00 - Eurocurrency Reserve Percentage
Where,
"Eurocurrency Reserve Percentage" 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
bank or 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");
and
"LIBOR" means the rate of interest per annum determined by the Administrative
Agent to be the rate of interest per annum at which deposits, in the
Applicable Currency in the approximate amount of the Loan to be made or
continued as, or converted into, an Offshore Rate Loan by the entity that is the
Administrative Agent and having a maturity comparable to such Interest
Period, would be offered to major banks in the <189> 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 rounded upwards to the next
1/100th of 1%.
The Offshore Rate shall be adjusted automatically as to all Offshore Rate
Loans then outstanding as of the effective date of any change in the
Eurocurrency Reserve Percentage. In the case of Offshore Currency Loans, the
cost to the Lenders of complying with any Mandatory Costs will be added to
the interest rate computed in the manner set forth in Schedule 1(a).
"Offshore Rate Loan" means a Loan (other than Swing Line Loans) that bears
interest based on the Offshore Rate.
"Organization Documents" means, for any corporation, partnership, limited
libility company or other similar organization or business entry, the
certificate or articles of incorporation, partnership agreement, limited
liability company agreement, memorandum or articles of association, the
bylaws, any certificate of determination or instrument relating to the rights
of preferred shareholders of such corporation or other entity, any
shareholder rights agreement, and all applicable resolutions of the board of
directors (or any committee thereof) of such corporation or other entity.
"Other Taxes" means any present or future stamp, court or documentary taxes
or any other excise or property taxes, charges or similar levies which arise
from any payment made hereunder or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, this Agreement
or any other Loan Documents.
"Overnight Rate" means, for any day, the rate of interest per annum at which
overnight deposits in the Applicable Currency, in an amount approximately
equal to the amount with respect to which such rate is being determined,
would be offered for such day by NationsBank's London Branch to major banks
in the London or other applicable offshore interbank market.
"Participant" has the meaning specified in Section 12.08(d).
"Participating Member State" means a member state of the European Union that
adopts a single currency in accordance with the Treaty establishing the
European Community.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Permitted Liens" means:
(a) in the case of real properties, easements, restrictions,
exceptions, reservations or defects which, in the aggregate, do not interfere
materially with the continued use of such properties for the purposes for
which they are used and do not affect materially the value thereof;
(b) liens, if contested in good faith by appropriate proceedings and
appropriate reserves are maintained , in accordance with generally accepted
accounting principles, with respect thereto;
(c) pledges or deposits to secure obligations under workmen's
compensation laws or similar legislation or to secure performance in
connection with bids, tenders and contracts (other than contracts for the
payment of borrowed money) to which the Company or any of its Subsidiaries is
a party;
(d) deposits to secure public or statutory obligations of the
Company or any of its Subsidiaries;
(e) materialmen's, mechanics', carriers', workmen's or other like
liens arising in the ordinary course of business, or deposits of cash or
United States obligations to obtain the release of such liens;
(f) deposits to secure surety or appeal bonds in proceedings to
which the Company or any of its Subsidiaries is a party;
(g) existing leases by the Company or its Subsidiaries of real and
personal property;
(h) liens for taxes not yet due and payable; and
(i) liens on the assets of Target and its Subsidiaries to the extent
such liens were in effect prior to the Announcement Date and are otherwise
acceptable to the Administrative Agent in the Administrative Agent's
reasonable discretion.
"Permitted Swap Obligations" means all obligations (contingent or otherwise)
of the Company or any Subsidiary existing or arising under Swap Contracts,
provided that each of the following criteria is satisfied: (I)(a) such
obligations are (or were) entered into by such Person in the ordinary course
of business for the purpose of directly mitigating risks associated with
liabilities, commitments or assets held or reasonably anticipated by such
Person, or changes in the value of securities issued by such Person in
conjunction with a securities repurchase program not otherwise prohibited
hereunder, and not for purposes of speculation or taking a "market view" and
(b) such Swap Contracts do not contain (i) any provision ("walk-away"
provision) exonerating the non-defaulting party from its obligation to make
payments on outstanding transactions to the defaulting party, or (ii) any
provision creating or permitting the declaration of an event of default,
termination event or similar event upon the occurrence of an Event of Default
<190> (other than an Event of Default under Section 10.01(a))<191> or (II)
such Swap Contract was entered into prior to the Announcement Date and is
listed on Schedule 6.21.
"Person" means an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
"Pesetas" means the lawful currency of Spain.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards set forth in Section 412 of the Code and either (a)
is maintained, or contributed to, by any member of the ERISA Group for
employees of any member of the ERISA Group or (b) has at any time within the
preceding five (5) years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for employees of any
Person which was at such time a member of the ERISA Group.
"Pledge Agreements" means, collectively, if and when each such document is
executed and delivered, (a) the Company Pledge Agreement, (b) each US Holdco
Pledge Agreement, (c) the Subsidiary Guarantor Pledge Agreement and (d) each
pledge agreement required to be delivered by a Foreign Subsidiary pursuant to
Section 7.11, in each case pledging the stock of their respective
Subsidiaries and (other than with respect to Foreign Subsidiaries)
intercompany notes to the Administrative Agent, for the benefit of itself,
the Issuing Bank and the Lenders, as each of the same may be amended,
supplemented or otherwise modified from time to time.
"Pledged Collateral" has the meaning specified in the relevant Pledge
Agreement.
"Principal Payment Date" has the meaning specified in Section 2.08(d).
"Prior Loan Document" has the meaning specified in the Recitals.
"Prior Loan Document Lender" has the meaning specified in Section 12.19.
"Prohibited Transaction" means any transaction set forth in Section 406 of
ERISA or Section 4975 of the Code.
"Press Release" means the form of press release agreed between the Company
and the Administrative Agent, which has been initialed by or on behalf of the
Company and the Administrative Agent for the purpose of identification, a
true and correct copy of which is attached as Exhibit O hereto.
"Projections" means the Company's forecasted consolidated: (a) balance
sheets; (b) income statements; and (c) cash flow statements, all prepared on
a basis consistent with the Company's historical financial statements.
"Property" means any interest in any kind of property or asset, whether real,
personal or mixed, and whether tangible or intangible.
"Pro Rata Revolving Share" means, as to any Revolving Lender, (a) at any time
at which the Aggregate Revolving Loan Commitment remains outstanding, the
percentage equivalent (expressed as a decimal rounded to the ninth decimal
place) at such time of such Lender's Revolving Loan Commitment divided by the
Aggregate Revolving Loan Commitment, and (b) after the termination of the
Aggregate Revolving Loan Commitment, the percentage equivalent (expressed as
a decimal, rounded to the ninth decimal place) at such time of the principal
amount of such Lender's outstanding Revolving Loans (other than Swing Line
Loans) divided by the aggregate principal amount of the outstanding Revolving
Loans (other than Swing Line Loans) of all the Lenders.
"Pro Rata Share" means, as to any Lender, (a) in respect of a particular Loan
and/or Commitment, (i) at any time at which the Commitments in respect of
such Loan remain outstanding, the percentage equivalent (expressed as a
decimal, rounded to the ninth decimal place) at such time of such Lender's
Commitment in respect of such Loan divided by the combined Commitments in
respect of such Loan, and (ii) after the termination of the Commitments in
respect of such Loan, the percentage equivalent (expressed as a decimal,
rounded to the ninth decimal place) at such time of the principal amount
outstanding of such Loans held by such Lender divided by the aggregate
principal amount outstanding of such Loans held by all Lenders, and (b) in
respect of all Loans and/or Commitments, (i) at any time at which the
Aggregate Commitment (or any portion thereof) remains outstanding, the
percentage equivalent (expressed as a decimal, rounded to the ninth decimal
place) at such time of such Lender's Commitments in respect of all Loans
divided by the Aggregate Commitment, and (b) after the termination of the
Aggregate Commitment, the percentage equivalent (expressed as a decimal,
rounded to the ninth decimal place) at such time of the principal amount of
such Lender's outstanding Loans (including such Lender's ratable share of
outstanding Swing Line Loans and L/C Obligations) divided by the aggregate
principal amount of the outstanding Loans and L/C Obligations of all of the
Lenders.
"Qualified Subsidiary" means any Subsidiary Guarantor and any Eligible
Borrower.
"Quoted Rate" means the rate of interest per annum with respect to a Swing
Line Loan as agreed to between the Company and the Swing Line Lender at the
time such Swing Line Loan is made to the Company.
"Relevant Event of Default" has the meaning specified in Section 10.02.
"Relevant Representations and Warranties" means each of the matters
represented in Section 6.01(a) (with respect to the Company, US Holdco #1, US
Holdco #2 and Bidco)<192> and Sections 6.02(b), 6.03, 6.15(a) and 6.16.
"Relevant Undertakings" means each of the undertakings and covenants of the
Company contained in Sections 7.04(a), 7.08(d), 7.09, 7.12(a), (c), (f)<193>
and (j) and 8.02.
"Requirement of Law" means, as to any Person, any law (statutory or common),
treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon
<194> such Person or any of its property or to which <195> such Person
or any of its property is subject.
"Responsible Officer" means the chief executive officer or the president of
the Company, or any other officer having substantially the same authority and
responsibility; or, with respect to compliance with financial covenants, the
chief financial officer or the treasurer of the Company, or any other officer
having substantially the same authority and responsibility.
"Restricted Payment" means (a) any dividend or other distribution on any
shares of the Company's or any of its Subsidiaries' capital stock (except
dividends payable solely in shares of such Person's capital stock) or (b) any
payment on account of the purchase, redemption, retirement or acquisition of
(i) any shares of the Company's or any of its Subsidiaries' capital stock or
(ii) any option, warrant or other right to acquire shares of the Company's or
any of its Subsidiaries' capital stock; provided, that any Subsidiary of the
Company shall at all times be permitted to make payments, distributions or
dividends of the type referenced in clauses (a) and (b) above to the Company
or any Wholly-Owned Consolidated Subsidiary of the Company and such payments,
distributions or dividends shall be excluded under the definition of
Restricted Payments.
"Revolving Lender" means a Lender having a Revolving Loan Commitment.
"Revolving Loan" has the meaning specified in Section 2.01(c).
"Revolving Loan Commitment" has the meaning specified in Section 2.01(c).
"Revolving Loan Commitment Fee" has the meaning specified in Section 2.10(b).
"Revolving Loan Termination Date" means the earlier to occur of:
(a) the date which is the fifth anniversary of the Announcement
Date; and
(b) the date on which the Revolving Loan Commitments terminate and
are reduced to zero in accordance with Section 2.05(a), 2.07(a)
or 10.03.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw-Hill
Companies, and any successor thereto.
"Same Day Funds" means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements
and payments in an Offshore Currency, same day or other funds as may be
reasonably determined by the Administrative Agent to be customary in the
place of disbursement or payment for the settlement of international banking
transactions in the relevant Offshore Currency.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
<196>
"Solvent" means, when used with respect to (A) a Person (other than subject
to clause (B)), that (a) the fair saleable value of the assets of such Person
(including goodwill) is in excess of the total amount of the present value of
its liabilities (including for purposes of this definition all liabilities
(including loss reserves as determined by such Person), whether or not
reflected on a balance sheet prepared in accordance with GAAP), (b) such
Person is able to pay its debts or obligations in the ordinary course as they
mature and (c) such Person does not have unreasonably small capital to carry
out its business as conducted and as proposed to be conducted and (B) for any
Person incorporated in England and Wales, on a particular date, on that date
such Person has the ability to pay its debts as and when they fall due and
could not be deemed to be insolvent for the purposes of the Insolvency Act
1986 of the United Kingdom. "Solvency" shall have a correlative meaning.
"Specified Foreigh Subsidiary" has the meaning specified in Section 5.02(g).
"Spot Rate" for a currency means the rate generally quoted by NationsBank as
the spot rate for the purchase by NationsBank of such currency with another
currency through its FX Trading Office on the date two Business Days prior to
the date as of which the foreign exchange computation is made.
"Squeeze-Out" has the meaning specified in the second paragraph of this
Agreement.
"Squeeze-Out Date" <197> means the Business Day after the Business Day
following the last date upon which Bidco becomes obliged to pay any
consideration for the purchase of the Target Shares.
"Squeeze-Out Period" <198> means the period from the Initial Funding Date to
and including the last day of the Certain Funds Period.
"Stated Amount" means the stated or face amount of a Letter of Credit to the
extent available at the time for drawing (subject to presentment of all
requested documents), as the same may be increased or decreased from time to
time in accordance with the terms of such Letter of Credit
"Sterling" and the symbol "L" <199> each mean the lawful currency of the
United Kingdom.
"Sterling Acquisition Loan" has the meaning specified in Section 2.01(b).
"Sterling Acquisition Loan Commitment" means, as to each Lender, such
Lender's Sterling Acquisition Loan Commitment, as specified on Schedule
2.01.
"Sterling Acquisition Loan Commitment Fee" has the meaning specified in
Section 2.10(d).
"Subsidiary" of a Person means any corporation, association, partnership,
limited liability company, joint venture or other business entity (A) of
which more than 50% of the voting stock, membership interests or other equity
interests (in the case of Persons other than corporations), is owned or
controlled directly or indirectly by the such Person, or one or more of the
Subsidiaries of <200> such Person, or a combination thereof and (B) with
respect to any Person incorporated in England and Wales, a subsidiary within
the meaning of Section 736 of the Companies Act or, unless the context
otherwise requires, a subsidiary undertaking within the meaning of Section
258 of the Companies Act. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of the Company;
provided, that for purposes of this Agreement, neither Target nor any Target
Subsidiary shall be a Subsidiary until the occurrence of the Initial Funding
Date after giving effect to the Transaction completed on such date.
"Subsidiary Guarantor" means, collectively, (a) US Holdco #1, US Holdco #2,
each Domestic Subsidiary <201> identified as a Subsidiary Guarantor
on the Announcement Date on Schedule 6.08 and each other Domestic Subsidiary
<202> created or acquired after the Announcement Date and (b) to the
extent required pursuant to Section 7.11, each Foreign Subsidiary <203>.
"Subsidiary Guaranty" means the Guaranty to be executed and delivered by the
Subsidiary Guarantors in the form attached to this Agreement as Exhibit J-2.
"Subsidiary Guarantor Pledge Agreement" means the Pledge Agreement to be
executed and delivered by the Subsidiary Guarantors (other than US Holdco #1
and US Holdco #2) in the form attached to this Agreement as Exhibit I-3.
"Surety Instruments" means all letters of credit (including standby and
documentary), banker's acceptances, bank guaranties, shipside bonds, surety
bonds and similar instruments.
"Swap Contract" means any agreement, whether or not in writing, relating to
any transaction that is a rate swap, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap or option,
bond, note or bill option, interest rate option, forward foreign exchange
transaction, cap, collar or floor transaction, currency swap, cross-currency
rate swap, swaption, currency option or any other, similar transaction
(including any option to enter into any of the foregoing) or any combination
of the foregoing, and, unless the context otherwise clearly requires, any
master agreement relating to or governing any or all of the foregoing.
"Swap Termination Value" means, in respect of any one or more Swap Contracts,
after taking into account the effect of any legally enforceable netting
agreement relating to such Swap Contracts, (a) for any date on or after the
date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for
any date prior to the date referenced in clause (a)<204> the amount(s)
determined as the mark-to-market value(s) for such Swap Contracts, as
determined by the Company based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts
(which may include any Lender).
"Swing Line Loan Commitment" has the meaning specified in Section 2.01(d).
"Swing Line Lender" means NationsBank, in its capacity as provider of the
Swing Line Loans. With respect to Swing Line Loans, NationsBank may cause a
local affiliate to make such Swing Line Loans and such local affiliate shall
be deemed to be the Swing Line Lender for the purposes of this Agreement.
"Swing Line Loan" means a Loan made by the Swing Line Lender, denominated in
Dollars, pursuant to Section 2.01(d).
"Swing Line Termination Date" means the earlier to occur of:
(a) the date which is the fifth Business Day prior to the fifth
anniversary of the Announcement Date; and
(b) the date on which the Revolving Loan Commitment terminates in
accordance with the provisions of this Agreement.
"Swiss Francs" means the lawful currency of Switzerland.
"Target" has the meaning ascribed thereto in the recitals.
"Target Shares" means the issued shares of each class <205> of the
capital of the Target (including any shares of the Target issued while the
Offer remains open for acceptance).
"Target Subsidiaries" means each Subsidiary of the Target.
"Taxes" means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of each Lender and
the Administrative Agent, respectively, taxes imposed on or measured by its
net income by the jurisdiction (or any political subdivision thereof) under
the laws of which such Lender or the Administrative Agent, as the case may
be, is organized or maintains a lending office.
"Term Loan " has the meaning specified in Section 2.01(a).
"Term Loan Commitment" means, as to each Lender, such Lender's Term Loan
Commitment, as specified on Schedule 2.01.
"Term Loan Commitment Fee" has the meaning specified in Section 2.10(c).
"Transaction" shall include (a) the Offer, (b) the purchase of Target Shares
by Bidco (c) the Credit Extensions made on the Initial Funding Date and (d)
the refinancing of certain Debt of the Company and its Subsidiaries
(including Target and certain Target Subsidiaries) on the Initial Funding
Date.
"Transaction Agreements" has the meaning specified in Section 6.22.
"Type" means, with respect to any Borrowing of Loans (other than Swing Line
Loans), its nature as a Base Rate Loan or an Offshore Rate Loan.
"Unconditional Date" means the date upon which the Offer becomes or is
declared unconditional in all respects.
"Unfunded Liabilities" means with respect to any Plan at any time, the amount
(if any) by which (a) the value of all benefit liabilities under such Plan,
determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the fair market
value of all Plan assets allocable to such liabilities under Title IV of
ERISA (excluding any accrued but unpaid contributions), but only to the
extent that such excess represents a potential liability of any member of the
ERISA Group to the PBGC or any other Person under Title IV of ERISA.
"United States" and "U.S." each means the United States of America.
"US Holdco #1" means MacDermid Tower, Inc., a Delaware corporation, a Wholly-
Owned Consolidated Subsidiary of the Company and 50% shareholder of Bidco.
"US Holdco #2" means MacDermid Tartan, Inc., a Delaware corporation, a
Wholly-Owned Consolidated Subsidiary of the Company and 50% shareholder of
Bidco.
"US Holdco Pledge Agreement" means the Pledge Agreement to be executed and
delivered by each of US Holdco #1 and US Holdco #2 in the form attached as
Exhibit I-2 hereto.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated Subsidiary all
of the shares of capital stock or other ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly owned by
the Company.
"Yen" means the lawful currency of Japan.
1.02 Other Interpretive Provisions
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words
refer to this Agreement as a whole and not to any particular
provision of this Agreement; and Section, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices
and other writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) In the computation of periods of time from a specified
date to a later specified date, the word "from" means
"from and including"; the words "to" and "until" each
mean "to but excluding", and the word "through" means
"to and including."
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual
instruments shall be deemed to include all subsequent amendments
and other modifications thereto, but only to the extent such
amendments and other modifications are not prohibited by the
terms of any Loan Document, and (ii) references to any statute
or regulation are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing,
supplementing or interpreting <206> such statute or regulation.
(e) The captions and headings of this Agreement are for convenience
of reference only and shall not affect the interpretation of
this Agreement.
(f) This Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the
same or similar matters. All such limitations, tests and
measurements are cumulative and shall each be performed in
accordance with their terms. Unless otherwise expressly
provided, any reference to any action of the Administrative
Agent or the Lenders by way of consent, approval or waiver shall
be deemed modified by the phrase "in its/their sole discretion."
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the
Administrative Agent, the Company and the other parties, and are
the products of all parties. Accordingly, they shall not be
construed against the Lenders or the Administrative Agent merely
because of the Administrative Agent's or Lenders' involvement in
their preparation.
(h) Any test, threshold, item, limit or other measurement expressed
in Dollars herein shall also mean and include the Dollar
Equivalent of such amount from time to time should the test,
threshold, item, limit or other measurement be used in respect
of any item expressed in a currency other than Dollars.
<207>(i) Any provision of this Agreement stated to have effect on, after,
or as from, the Commencement Date will, to the extent that the
provision relates to any currency of a state which is not a
Participating Member State on the Commencement Date, have effect
in relation to that currency on the date on which it becomes a
Participating Member State.
1.03 Accounting Principles
(a) Unless the context otherwise clearly requires, all accounting
terms not expressly defined herein shall be construed, and all financial
computations required under this Agreement shall be made, in accordance with
GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Company.
ARTICLE <208> II
THE CREDITS
2.01 Amounts and Terms of Commitment
(a) Term Loan
Each Lender with a Term Loan Commitment severally agrees, on
the terms and conditions set forth herein, <209> to
make loans to the Company (each such loan, a "Term Loan") on the Initial
Funding Date, in an amount not to exceed such Lender's Term Loan Commitment
as set forth on Schedule 2.01. Amounts borrowed as a Term Loan which are
repaid or prepaid by the Company may not be reborrowed.
(b) Sterling Acquisition Loan
Each Lender with <210> a Sterling Acquisition Loan Commitment severally
agrees, on the terms and conditions set forth herein, to make loans to the
Company <211> (each such loan, <212> a "Sterling Acquisition Loan") <213> on
the Business Day <214> following the Initial Funding Date,, in an amount not
to exceed such Lender's Sterling Acquisition Loan Commitment as set forth on
Schedule 2.01 <215>. Amounts borrowed as <216> a Sterling Acquisition Loan
which are repaid or prepaid by the Company may not be reborrowed.
(c) The Revolving Credit
(i) Subject to Section 2.01(d), each Revolving Lender
severally agrees, on the terms and conditions set forth herein, to make loans
to a Borrower (each such loan, a "Revolving Loan") from time to time on any
Business Day during the period from the Initial Funding Date to the Revolving
Loan Termination Date, in an aggregate amount not to exceed at any time
outstanding the amount set forth on Schedule 2.01 (such amount, as the same
may be increased pursuant to Section 2.01(c)(ii), reduced under Section 2.05
or 2.07 or reduced or increased as a result of one or more assignments under
Section 12.08, <217> such Revolving Lender's "Revolving Loan Commitment");
provided, however, that, after giving effect to any Borrowing of Revolving
Loans, the Effective Amount of Revolving Loans, Swing Line Loans and L/C
Obligations at such time shall not at any time exceed the Aggregate Revolving
Loan Commitment; and provided further, that the Effective Amount of Revolving
Loans of any Revolving Lender plus the participation of such Revolving Lender
in the Effective Amount of all L/C Obligations and such Revolving Lender's
Pro Rata Revolving Share of the Effective Amount of Swing Line Loans shall
not at any time exceed such Revolving Lender's Revolving Loan Commitment.
Within the limits of each Revolving Lender's Commitment, and subject to the
other terms and conditions hereof, a Borrower may borrow under this Section
2.01(c), prepay under Section 2.06 and reborrow under this Section 2.01(c).
(ii) On and after the date upon which the Administrative Agent
and any co-arrangers have notified the Company that they are satisfied with
the initial syndication of the Commitments and Loans, the Company may, at its
option at any time on a single occasion, seek to increase the Revolving
Loan Commitment by up to <218> $50,000,000 (after giving effect to which the
Aggregate Revolving Loan Commitment shall not exceed an amount equal to
$125,000,000 less the aggregate amount of reductions to the Revolving Loan
Commitment effected on or prior to the date of such increase) upon at least
30 days (but not more than 45 days) written notice to the Administrative
Agent (which notice the Administrative Agent shall promptly deliver to the
Lenders), which notice shall specify the date upon which such increase is to
occur and shall be delivered at a time when no Default or Event of Default
has occurred and is continuing. The Company shall, after giving such notice,
offer the increase in the Revolving Loan Commitment (A) (i) first on a pro-
rata basis to the Lenders, which Lenders may in their individual sole
discretion decline such offer, and (ii) then on a non pro-rata basis to
Lenders and/or (B) to other lenders or entities constituting Eligible
Assignees and otherwise reasonably acceptable to the Administrative Agent and
the Company, provided that the minimum final allocated <219> Revolving Loan
Commitment of each such lender or other entity is equal to or in excess of
$10,000,000 in the case of any new lender and $5,000,000 in the case of an
existing Lender. No increase in the Revolving Loan <220> Commitments shall
become effective until the existing or new Lenders extending such incremental
commitment amount shall have delivered to the Administrative Agent a writing
in form reasonably satisfactory to the Administrative Agent pursuant to which
such existing Lenders state the amount of <221> their Revolving Loan
Commitment increase and any such new Lenders state <222> their Revolving Loan
Commitment amount and agree to assume and accept the <223> obligations and
rights of a Lender hereunder and any such new and increasing Lenders agree to
make a Revolving Loan such that the outstandings of such new Lender or
increaseing Lender constitute a proportionate amount of the aggregate
outstanding Revolving Loans based on the Revolving Loan Commitment of such
new Lender. Any Borrowing as a result of an increase to the Revolving Loan
Commitment pursuant to this Section 2.01(c)(ii) shall be subject to the terms
and conditions contained in this Agreement.
(iii) (A) On and after the third anniversary of the
Announcement Date, the Company may make a written request to the
Administrative Agent, who shall forward a copy of each such request to each
of the Lenders, that the Revolving Loan Termination Date then in effect be
extended to the date which is one year after such existing Revolving Loan
Termination Date; provided, however, that the Borrower shall not be permitted
to obtain more than one extension pursuant to this clause (iii). Such
request shall be accompanied by a certificate of a Responsible Officer of the
Company stating that no Default or Event of Default has occurred and is
continuing. If, by the date (a "Response Date") which is 60 days after the
date of such request, Lenders holding at least 85% of the Revolving Loan
Commitments then outstanding agree thereto in writing (each such Lender, a
"Continuing Lender"), the Revolving Loan Termination Date of each Continuing
Lender shall be automatically extended to the first anniversary of the then
existing Revolving Loan Termination Date, and the Revolving Loan Termination
Date with respect to any non-Continuing Lender (a <224> "Non-Continuing <225>
Lender") shall, subject to the following clause (B), remain the then existing
Revolving Loan Termination Date. In the event that the Company has not
obtained agreement to the requested extension from the requisite percentage
of Lenders to permit an extension by the Response Date, the Revolving Loan
Termination Date shall not be extended. If the Borrower obtains agreement
from the requisite percentage of the Lenders during such 60 day period, the
Revolving Loan Termination Date shall be extended as provided in the second
preceding sentence. The Administrative Agent shall notify the Company and
each Lender of the effectiveness of any such extension. No Lender shall be
obligated to agree to any extension pursuant to this clause (iii), and the
extension of the Revolving Loan Termination Date as to any Lender shall be in
its sole discretion.
(B) In the case of a Non-Continuing Lender, the
Company, after giving notice to the Administrative Agent and such Non-
Continuing Lender, may request such Non-Continuing Lender to assign its
entire Revolving Loan Commitment (and upon receipt of such notice such Non-
Continuing Lender hereby agrees to take such action as reasonably requested
by the Company to effect such assignment pursuant to Section 12.08) (i) to
the Continuing Lenders, (x) first on a pro-rata basis, which the Continuing
Lenders may in their individual sole discretion decline to accept such offer,
and (y) then on a non pro-rata basis to Continuing Lenders and/or <226> (ii)
to other lenders or entities constituting Eligible Assignees and otherwise
reasonably acceptable to the Administrative Agent and the Company, provided
that any such new lender shall agree that its Revolving Loan Commitment will
terminate on the date applicable to the Revolving Loan Commitment of the
Continuing Lenders, and all then outstanding Obligations owing to such Non-
Continuing Lender shall be repaid in full on the date of any such assignment.
(d) Swing Line Loans
(i) Subject to the terms and conditions hereof, the Swing Line Lender
agrees to make Swing Line Loans to the Company from time to time prior to the
Swing Line Termination Date in an aggregate principal amount at any one time
outstanding not to exceed $15,000,000 (the "Swing Line Loan Commitment");
provided, that after giving effect to any such Swing Line Loan, the Effective
Amount of Revolving Loans, Swing Line Loans and L/C Obligations at such time
would not exceed the Aggregate Revolving Loan Commitment at such time. Prior
to the Swing Line Termination Date, <227> the Company may use the Swing Line
Commitment by borrowing, prepaying the Swing Line Loans in whole or in part,
and reborrowing, all in accordance with the terms and conditions hereof.
(ii) The Company may borrow under the Swing Line Commitment on any
Business Day after the Initial Funding Date but on or prior to the Swing Line
Termination Date; provided, that the Company shall deliver to the Swing Line
Lender a Notice of Borrowing signed by a Responsible Officer (which notice
must be received by the Swing Line Lender prior to 1:00 p.m. (New York time))
with a copy to the Administrative Agent specifying the amount of the
requested Swing Line Loan, which shall be in a minimum amount of $500,000 or
a whole multiple of $100,000 in excess thereof. The proceeds of the Swing
Line Loan will be made available by the Swing Line Lender to the Company in
immediately available funds at the office of the Swing Line Lender by 2:00
p.m. (New York time) on the date of such notice. The Company may at any time
and from time to time, prepay the Swing Line Loans, in whole or in part,
without premium or penalty, by notifying the Swing Line Lender prior to 1:00
p.m. (New York time) on any Business Day of the date and amount of prepayment
with a copy to the Administrative Agent. If any such notice is given, the
amount specified in such notice shall be due and payable on the date
specified therein. Partial prepayments shall be in an aggregate principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof.
(iii) The Swing Line Lender, at any time in its sole and absolute
discretion, may on behalf of the Company (which hereby irrevocably directs
the Swing Line Lender to so act on its behalf) notify the Administrative
Agent to notify each Revolving Lender (including the Swing Line Lender) to
make a Revolving Loan to the Company in a principal amount equal to such
Lender's Pro Rata Revolving Share of the amount of such Swing Line Loan, and
such Revolving Lender shall be obligated, pursuant to Section 2.01(c), to
make Same Day Funds available to the Administrative Agent on the date such
notice is given in an aggregate amount equal to or in excess of such Swing
Line Loan, in which case such funds shall be applied by the Administrative
Agent first to repay such Swing Line Loan and any remaining funds shall be
made available to the Company in accordance with Section 2.01(c); provided,
however, that such notice shall be deemed to have automatically been given
upon the occurrence of an Event of Default under Section 10.01(g) or (h).
Upon notice from the Administrative Agent, each Revolving Lender (other than
the Swing Line Lender) will immediately transfer to the Administrative Agent,
for transfer to the Swing Line Lender, in immediately available funds, an
amount equal to such Revolving Lender's Pro Rata Revolving Share of the
amount of such Swing Line Loan so repaid. <228> So long as no notice has
been delivered to the Swing Line Lender pursuant to Section 2.01(d)(iv)(ii)
prior to the making of each relevant Swing Line Loan, each Revolving Lender's
obligation to transfer the amount of such Revolving Loan to the
Administrative Agent shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (i) any set-
off, counterclaim, recoupment, defense or other right which such Revolving
Lender or any other Person may have against the Swing Line Lender, (ii) the
occurrence or continuance of a Default or an Event of Default or the
termination of the Revolving Loan Commitments, (iii) any adverse change in
the condition (financial or otherwise) of the Company or any other Person,
(iv) any breach of this Agreement by the Company or any other Person or (v)
any other circumstance, happening or event whatsoever, whether or not similar
to any of the foregoing.
(iv) Notwithstanding anything herein to the contrary, the Swing Line
Lender (i) shall not be obligated to make any Swing Line Loan if the
conditions set forth in Article V have not been satisfied and (ii) shall not
make any requested Swing Line Loan if, prior to 11:00 a.m. (New York time) on
the date two (2) days preceding the date of such requested Swing Line Loan,
it has received a written notice from the Administrative Agent or any
Revolving Lender directing it not to make further Swing Line Loans because
one or more of the conditions specified in Article V are not then satisfied.
(v) If prior to the making of a Revolving Loan required to be made by
Section 2.01(d)(iii) an Event of Default described in Section 10.01(g) or (h)
shall have occurred, each Revolving Lender will, on the date such Revolving
Loan was to have been made pursuant to the notice described in Section
2.01(d)(iii), purchase an undivided participating interest in the Effective
Amount of Swing Line Loans in an amount equal to its Pro Rata Revolving Share
of the Effective Amount of Swing Line Loans then outstanding. Each Revolving
Lender will immediately transfer to the Administrative Agent for the benefit
of the Swing Line Lender, in immediately available funds, the amount of its
participation.
(vi) Whenever, at any time after a Revolving Lender has purchased a
participating interest in a Swing Line Loan, the Swing Line Lender receives
any payment on account thereof, the Swing Line Lender will distribute to the
Administrative Agent for delivery to <229> such Revolving Lender the amount
of its participating interest in such amount (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such
Revolving 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 Revolving Lender will return to
the Administrative Agent for delivery to the Swing Line Lender any portion
thereof previously distributed by the Swing Line Lender to it.
(vii) <230> So long as no notice has been delivered to the Swing Line
Lender pursuant to Section 2.01 (d)(iv)(ii) prior to the making of each
relevant Swing Line Loan, each Revolving Lender's obligation to make the
Revolving Loans referred to in Section 2.01(d)(iii) and to purchase
participating interests pursuant to Section 2.01(d)(v) shall be absolute and
unconditional and shall not be affected by any circumstance, including,
without limitation, <231> (I) any set-off, counterclaim, recoupment, defense
or other right which such Revolving Lender or a Borrower may have against
the Swing Line Lender, a Borrower or any other Person for any reason
whatsoever, (II) the occurrence or continuance of a Default or an Event of
Default, (III) any adverse change in the condition (financial or otherwise)
of the Company or any Subsidiary Guarantor, (IV) any breach of this
Agreement or any other Loan Document by the Company or any of its
Subsidiaries or any other Lender or (V) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
2.02 Loan Accounts
(a) The Loans made by each Lender and the Letters of Credit Issued by the
Issuing Bank shall be evidenced by one or more accounts or records maintained
by such Lender or Issuing Bank, as the case may be, in the ordinary course of
business. The accounts or records maintained by the Administrative Agent,
the Issuing Bank and each Lender shall be prima facie evidence of the amount
of the Loans made by the Lenders to a Borrower and the Letters of Credit
Issued by the Issuing Bank for the account of the Company, and the interest
and payments thereon. Any failure so to record or any error in doing so
shall not, however, limit or otherwise affect the obligation of a Borrower
hereunder to pay any amount owing with respect to the Loans or any Letter of
Credit.
(b) Upon the request of any Lender made through the Administrative Agent,
the Loans made by such Lender may be evidenced by one or more Notes, instead
of or in addition to loan accounts. Each such Lender <232> may record on the
schedules annexed to its Note(s) the date, amount and maturity of each Loan
made by it and the amount of each payment of principal made by the applicable
Borrower with respect thereto. Each such Lender is irrevocably authorized by
each Borrower to make such recordations on its Note(s) and each Lender's
record shall be deemed prima facie correct; provided, however, that the
failure of a Lender to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the obligations any
Borrower hereunder or under any such Note to such Lender.
2.03 Procedure for Borrowing
(a) Each Borrowing (other than a Borrowing of Swing Line Loans or a L/C
Borrowing) shall be made upon a Borrower's irrevocable written notice
delivered to the Administrative Agent in the form of a Notice of Borrowing
(which notice must be received by the Administrative Agent prior to (i) 11:30
a.m. (New York time) three Business Days prior to the requested Borrowing
Date, in the case of Offshore Rate Loans denominated in Dollars, (ii) 1:00
p.m. (New York time) four Business Days prior to the requested Borrowing
Date, in the case of Offshore Rate Loans in an Offshore Currency and (iii)
11:30 a.m. (New York time) on the date of the requested Borrowing, in the
case of Base Rate Loans, specifying:
(i) the amount of the Borrowing, which shall be in an aggregate minimum
amount of $1,000,000, or any multiple of $100,000 in excess thereof, in the
case of Base Rate Loans, and $2,000,000, or any multiple of $100,000 in
excess thereof, in the case of Offshore Rate Loans;
(ii) the requested Borrowing Date, which shall be a Business Day;
(iii) whether such Loan shall be a Revolving Loan, a Term Loan or
<233> a Sterling Acquisition Loan;
(iv) the Type of Loans comprising the Borrowing;
(v) if a Revolving Loan comprised of Offshore Currency Loans, the
Applicable Currency;
(vi) if the Loan then requested is to be an Offshore Rate Loan, the
duration of the Interest Period applicable to such Loans included in such
notice, provided, however, that in the event the Notice of Borrowing fails to
specify the duration of the Interest Period for any Borrowing comprised of
Offshore Rate Loans, such Interest Period shall be three months; and
(vii) if a Revolving Loan, the identity of the Borrower.
(b) Upon receipt of the Notice of Borrowing, the Administrative
Agent will promptly notify each Lender thereof and of the amount of such
Lender's Pro Rata Share of the related Borrowing. In the case of a Borrowing
of Revolving Loans comprised of Offshore Currency Loans, such notice will
provide the amount of each Lender's Pro Rata Revolving Share of <234> such
Borrowing, and the Administrative Agent will, upon the determination of the
Dollar Equivalent amount of the <235> such Borrowing as specified in the
Notice of Borrowing, promptly notify each Lender of the exact Dollar
Equivalent amount of such Lender's Pro Rata Revolving Share of <236> such
Borrowing. The Dollar Equivalent amount of any Borrowing in an Offshore
Currency will be determined by the Administrative Agent for such Borrowing
on the Computation Date therefor in accordance with Section 2.15(a).
(c) Each Lender will make the amount of its Pro Rata Share of
each Borrowing available to the Administrative Agent for the account of the
requesting Borrower at the Administrative Agent's Payment Office on the
Borrowing Date requested in Same Day Funds and in the requested currency (i)
in the case of a Borrowing comprised of Loans in Dollars, by 2:00 p.m. (New
York time) and (ii) in the case of a Borrowing comprised of Offshore Currency
Loans, by such time as the Administrative Agent may specify. The proceeds of
all such Loans will then be made available to the requesting Borrower by the
Administrative Agent at such office by crediting the account of the
requesting Borrower on the books of NationsBank 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.
(d) After giving effect to any Borrowing, unless the
Administrative Agent shall otherwise consent, there may not be more than six
(6) different Interest Periods in effect with respect to Offshore Rate Loans.
(e) After the occurrence of an Event of Default (other than a
Relevant Event of Default) during the Certain Funds Period, the Company
hereby requests that any Sterling Acquisition Loans being made to facilitate
the purchase of Target Shares be funded (on behalf of the Company) as a loan
to the Company directly to the receiving agent for the Offer pursuant to wire
transfer information as provided by the Company and subject to (i) compliance
with all laws and (ii) the satisfaction of any other borrowing conditions by
the Company hereunder.
2.04 Conversion and Continuation Elections for Revolving Loans
(a) A Borrower may, upon irrevocable written notice to the Administrative
Agent in accordance with Section 2.04(b):
(i) elect, as of any Business Day, in the case of Base Rate Loans, or as
of the last day of the applicable Interest Period, in the case of Offshore
Rate Loans (other than Sterling Acquisition Loans), to convert any such Loans
(or any part thereof in an aggregate minimum amount of $1,000,000, or any
multiple of $100,000 in excess thereof, in the case of Base Rate Loans, and
$2,000,000, or any multiple of $100,000 in excess thereof, in the case of
Offshore Rate Loans) into Loans of any other Type; or
(ii) elect as of the last day of the applicable Interest Period with
respect of any Offshore Rate Loan, to continue any Loans having Interest
Periods expiring on such day (or any part thereof in an amount not less than
the Dollar Equivalent of $2,000,000, or that is in an integral multiple
of the Dollar Equivalent of $100,000 in excess thereof) as Loans of the
same Type;
provided, that if at any time the aggregate amount of Offshore Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $2,000,000, such Offshore Rate Loans shall
automatically convert into Base Rate Loans as of the last day of the Interest
Period applicable thereto, and on and after such date the right of the
Company to continue such Revolving Loans as, and convert such Revolving Loans
into, Offshore Rate Loans shall terminate.
(b) A Borrower shall deliver a Notice of Conversion/Continuation to be
received by the Administrative Agent not later than 11:00 a.m. (New York
time) at least (i) three Business Days in advance of the
Conversion/Continuation Date, if the Loans (x) are to be converted into or
continued as Offshore Rate Loans denominated in Dollars, or (y) are Sterling
Acquisition Loans, (ii) four Business Days in advance of the
Conversion/Continuation Date, if the Loans are to be converted into or
continued as Offshore Rate Loans in an Offshore Currency and (iii) on the
<237> Conversion/Continuation Date, if the Loans are to be converted into
Base Rate Loans, specifying:
(i) the proposed Conversion/Continuation Date;
(ii) the aggregate amount of Loans to be converted or continued;
(iii) the Type of Loans resulting from the proposed conversion or
continuation;
(iv) the Applicable Currency;
(v) other than in the case of conversions into Base Rate Loans, the
duration of the requested Interest Period; and
(vi) the identity of the Borrower.
(c) If upon the expiration of any Interest Period applicable to Offshore
Rate Loans (other than Offshore Currency Loans), the relevant Borrower has
failed to select a new Interest Period to be applicable to such Offshore
Rate Loans by the time specified in Section 2.04(b), or if any Default or
Event of Default then exists, such Borrower shall be deemed to have elected
to convert such Offshore Rate Loans into Base Rate Loans effective as of the
expiration date of such Interest Period. If the <238> Company has failed to
select a new Interest Period to be applicable to Sterling Acquisition Loans
by the time specified in Section 2.04(b), or if any Default or Event of
Default then exists, the Company shall be deemed to have elected to continue
such Sterling acquisition Loan on the basis of a one month Interest Period.
If the relevant Borrower has failed to select a new Interest Period to be
applicable to Offshore Currency Loans (other than sterling Acquisition Loans)
prior to the fourth Business Day in advance of the expiration date of the
current Interest Period applicable thereto as provided in Section 2.04(b),
or if any Default or Event of Default shall then exist, such Borrower shall
be deemed to have elected to continue such Offshore Currency Loans on the
basis of a one month Interest Period.
(d) The Administrative Agent will promptly notify each Lender of its
receipt of a Notice of Conversion/Continuation, or, if no timely notice is
provided by the relevant Borrower, the Administrative Agent will promptly
notify each Lender of the details of any automatic conversion. All
conversions and continuations shall be made ratably according to the
respective outstanding principal amounts of the Loans, with respect to which
the notice was given, held by each Lender.
(e) Unless the Majority Lenders otherwise consent, during the existence
of a Default or Event of Default, a Borrower may not elect to have (i) a Loan
converted into or continued as an Offshore Rate Loan or (ii) an Offshore
Currency Loan continued on the basis of an Interest Period exceeding one
month.
(f) After giving effect to any conversion or continuation of Loans,
unless the Administrative Agent shall otherwise consent, there may not be
more than six (6) different Interest Periods in effect with respect to
Offshore Rate Loans.
(g) Notwithstanding anything else to the contrary in this Agreement,
Swing Line Loans may only bear interest at the Base Rate or the Quoted Rate.
(h) Upon the delivery of an Election to Participate, each
Eligible Borrower hereby appoints the Company as its agent and authorizes the
Company to deliver any Notice of Borrowing or Notice of
Conversion/Continuation to the Administrative Agent on behalf of such
Eligible Borrower.
2.05 Voluntary Termination or Reduction of Commitments
(a) The Company may, upon not less than three Business Days' prior notice
to the Administrative Agent (which notice the Administrative Agent shall
promptly deliver to Lenders), terminate the Commitments of all Lenders
ratably, or permanently reduce the Commitments of all Lenders ratably by an
aggregate minimum amount of the Dollar Equivalent of $5,000,000 or any
multiple of the Dollar Equivalent $1,000,000 in excess thereof; unless,
after giving effect thereto and to any prepayments of Loans plus Swing Line
Loans plus L/C Obligations made on the effective date thereof, (a) the
Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations
would exceed the amount of the combined Revolving Loan Commitments of all
Revolving Lenders then in effect, (b) the Effective Amount of all L/C
Obligations would exceed the amount of the L/C Commitment then in effect or
(c) the Effective Amount of all Swing Line Loans would exceed the Swing Line
Loan Commitment then in effect. Once reduced in accordance with this
Section, the Commitments may not be increased. Any reduction of the
Commitments shall be applied to each Lender according to its Pro Rata Share.
All accrued commitment and letter of credit fees and interest, if
applicable, to, but not including, the effective date of any reduction or
termination of the Commitments shall be paid on the effective date of such
reduction or termination.
(b) At no time shall the Swing Line Commitment exceed the Aggregate
Revolving Loan Commitment, and any reduction of the Aggregate Revolving Loan
Commitment which reduces the Aggregate Revolving Loan Commitment below the
then-current amount of the Swing Line Commitment shall result in an automatic
corresponding reduction of the Swing Line Commitment to the amount of the
Aggregate Revolving Loan Commitment, as so reduced, without any action on the
part of the Swing Line Lender. Any reduction of the Aggregate Revolving Loan
Commitment below the then-current amount of the Swing Line Commitment shall
result in an automatic corresponding reduction of the Swing Line Commitment
to the amount of the Aggregate Revolving Loan Commitment as so reduced,
without any action on the part of the Swing Line Lender.
2.06 Optional Prepayments of Loans
Subject to Section 4.04, any Borrower, may, at any time or from time to time,
upon irrevocable notice to the Administrative Agent, prepay (but not
permanently reduce the Revolving Loan Commitments to the extent of
prepayments on the Revolving Loans unless otherwise expressly requested in
writing by the Company) the Loans in whole or in part, in minimum amounts of
$1,000,000, or any multiple of $100,000 in excess thereof, in the case of
Base Rate Loans, and the Dollar Equivalent of $2,000,000, or any multiple of
the Dollar Equivalent of $100,000 in excess thereof (or such other amount
necessary to repay any Offshore Currency Loan in full), in the case of
Offshore Rate Loans. The relevant Borrower may designate whether such
prepayments shall be applied to prepay Revolving Loans, Term Loans or
Sterling Acquisition Loans provided that such prepayments shall be applied
ratably among the Lenders holding such Loans. A Borrower shall deliver a
notice of prepayment in accordance with Section 12.02 to be received by the
Administrative Agent not later than 11:00 a.m. (New York time) (a) at least
three Business Days in advance of the prepayment date if the Loans to be
prepaid are Offshore Currency Loans, (b) at least two Business Days in
advance of the prepayment date if the Loans to be prepaid are Offshore Rate
Loans in Dollars, and (iii) on the date of the prepayment date if the Loans
to be prepaid are Base Rate Loans. Such notice of prepayment shall specify
the date and amount of such prepayment, the Loans being prepaid and whether
such prepayment is of Base Rate Loans or Offshore Rate Loans, or any
combination thereof, the Applicable Currency and the identity of the
Borrower. The Administrative Agent will promptly notify each Lender of its
receipt of any such notice, and of such Lender's Pro Rata Share of such
prepayment. If such notice is given by a Borrower, such Borrower shall make
such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein, together with accrued interest to
each such date on the amount prepaid and any amounts required pursuant to
Section 4.04.
2.07 Termination of Commitments; Mandatory Prepayments of Loans;
Mandatory Commitment Reductions
(a) The Aggregate Commitment shall be terminated and reduced to zero
in the event that:
(i) the Offer is not posted on or prior to the thirtieth (30th) day
following the Announcement Date;
(ii) the Company and/or Bidco withdraws the Offer or the Offer lapses;
(iii) the Offer has not gone wholly unconditional within six (6) calendar
months after the Announcement Date; or
(iv) the Initial Funding Date has not occurred within sixteen (16) days
after the Offer has gone wholly unconditional; or
(v) the consent relating to the Existing Credit Agreement delivered
pursuant to Section 5.01(h) fails for any reason to remain in full force and
effect, or is not extended before December 31, 1998 to April 30, 1999 or a
date thereafter.
(b) Subject to Section 4.04, if on any date the Effective
Amount of Revolving Loans, Swing Line Loans and L/C Obligations exceeds the
Aggregate Revolving Loan Commitment, the Company shall immediately, and
without notice or demand, prepay the outstanding principal amount of the
Swing Line Loans, Revolving Loans and L/C Advances by an amount equal to the
applicable excess and the Lenders shall apply such amounts first to repay
Base Rate Loans and thereafter to repay Offshore Rate Loans.
(c) If on any date the Effective Amount of L/C Obligations
exceeds the L/C Commitment, the Company shall Cash Collateralize on such date
the outstanding Letters of Credit in an amount equal to the excess of the
maximum amount then available to be drawn under <239> all outstanding Letters
of Credit over the L/C Commitment. Subject to Section 4.04, if on any date
after giving effect to any Cash Collateralization made on such date pursuant
to the preceding sentence, the Effective Amount of Revolving Loans, Swing
Line Loans and L/C Obligations exceeds the Aggregate Revolving Loan
Commitment, the Company shall immediately, and without notice or demand,
prepay the outstanding principal amount of the Swing Line Loans, Revolving
Loans and L/C Advances by an amount equal to the applicable excess. Each
Borrower, effective as of the Initial Funding Date, hereby grants to the
Administrative Agent, for the benefit of the Administrative Agent, the
Issuing Bank and the Lenders, a security interest in all cash and deposit
account balances subject to Cash Collateralization. Cash collateral subject
to Cash Collateralization shall be maintained in blocked deposit accounts at
NationsBank. NationsBank shall invest any and all available funds deposited
in such deposit account, promptly upon the relevant funds becoming available,
in securities issued or fully guaranteed or insured by the United States
Government or any agency thereof backed by the full faith and credit of the
United States having maturities of no greater than three months from the date
of acquisition thereof (collectively, "Government Obligations"). Each
Borrower hereby acknowledges and agrees that NationsBank shall not have any
liability with respect to, and each Borrower hereby indemnifies NationsBank
against, any loss resulting from the acquisition of the Government
Obligations and NationsBank shall not have any obligation to monitor the
trading activity of any such Governmental Obligations on and after the
acquisition thereof for the purpose of obtaining the highest possible return
with respect thereto, NationsBank's responsibility being limited to acquiring
such Governmental Obligations.
(d) If on any Computation Date the Administrative Agent shall
have determined that the aggregate Dollar Equivalent principal amount of all
Revolving Loans and Swing Line Loans then outstanding and the aggregate
amount of outstanding L/C Obligations exceeds the Aggregate Revolving Loan
Commitment, due to a change in applicable rates of exchange between Dollars
and Offshore Currencies, then the Administrative Agent shall give notice to
the Company that a prepayment is required under Section 2.07(b), and the
Company agrees thereupon to make prepayments of Revolving Loans, subject to
Section 4.04, such that, after giving effect to such prepayment, the
aggregate Dollar Equivalent amount of all Revolving Loans, Swing Line Loans
and aggregate outstanding L/C Obligations does not exceed the Aggregate
Revolving Loan Commitment.
(e) The Company shall prepay Loans in an amount equal to 100%
of the insurance proceeds received by the Company or any Subsidiary following
a casualty involving such Person's Property, to the extent not applied (or
intended to be applied) within 90 days after the consummation or receipt
thereof, as applicable, to the purchase of replacement assets or repair of
damaged assets. Such prepayment shall be made on the 90th day after receipt
of such insurance proceeds and the amount of such prepayment shall be
applied (i) first, to prepay Term <240> Loans and Sterling Acquisition Loans
on a ratable basis among the then outstanding Term Loans and Sterling
Acquisition Loans, (based on the Dollar Equivalent thereof on the date of
such prepaymetn), applied on a ratable basis among all remaining payments in
respect of each such <241> Loan, (ii) second, to prepay the then outstanding
Swing Line Loans (without a corresponding reduction in the Swing Line Loan
Commitment, and (iii) third, to prepay the then outstanding Revolving Loans
(without a corresponding reduction in the Aggregate Revolving Loan
Commitment). Such proceeds shall be applied first, to the extent possible,
to prepay Base Rate Loans and then to prepay Offshore Rate Loans. The
Company shall use its commercially reasonable efforts to notify the
Administrative Agent of the amount of any required prepayment at least three
(3) Business Days before it is made.
(f) The Company shall prepay Loans in an amount equal to 100%
of the sum of the Net Proceeds realized upon all Asset Dispositions (other
than an Asset Disosition pursuant to Section 8.05 (ii)(y)) made by the
Company or any Subsidiary, aggregating in excess of $3,000,000 during any
calendar year, within one <242> hundred <243> eighty (180) Business Days
after the date of such Asset Disposition or, if later, the date of the
receipt of the proceeds therefrom to the extent not applied (or committed to
be applied) within such period to the purchase of other assets that are not
classified as current assets under GAAP and are used or useful in the
business of the Company and its Subsidiaries. The amount of such prepayment
shall be applied (i) first, to prepay Term Loans and Sterling Acquisition
Loans on a ratable basis among the then outstanding Term Loans and Sterling
Acquisition Loans (based on the Dollar Equivalent thereof on the date of such
prepayment), applied on a ratable basis among all remaining payments in
respect of each such <244> Loan and Acquisition Loan, (ii) second, to prepay
the then outstanding Swing Line Loans (without a corresponding reduction in
the Swing Line Loan Commitment, and (iii) third, to prepay the then
outstanding Revolving Loans (without a corresponding reduction in the
Aggregate Revolving Loan Commitment). Such proceeds shall be applied first,
to the extent possible, to prepay Base Rate Loans and then to prepay Offshore
Rate Loans. The Company shall use its commercially reasonable efforts to
notify the Administrative Agent of the amount of any required prepayment at
least three (3) Business Days before it is made.
(g) <245> The relevant Borrower shall pay, together with each
prepayment under this Section 2.07, accrued interest on the amount prepaid
through the date of such prepayment.
(h) <246> The Aggregate Term Loan Commitment and the Aggregate
Sterling Acquisition Loan Commitment, and the Term Loan Commitment and
Sterling Acquisition Loan Commitment of each Lender, shall be reduced on the
Initial Funding Date or the Business Dy occurring after the Initial Funding
Date (after giving effect to any Term Loan and/or Sterling Acquisition Loan,
as the case may be, made on the Initial Funding Date) in an amount equal to
the unutilized Aggregate Term Loan Commitment and the unutilized Aggregate
Sterling Acquisition Loan Commitment, and the unutilized Term Loan Commitment
and unutilized Sterling Acquisition Loan Commitment of each Lender, as of
such date.
2.08 Repayment of Loans
(a) Each Borrower shall repay to the Revolving Lenders <247> on
the Revolving Loan Termination Date the aggregate principal amount of
Revolving Loans of such Borrower outstanding on such date.
(b) The Company shall repay Swing Line Loans (other than with
proceeds of a Swing Line Loan) in full on the thirtieth (30th) day following
the incurrence of any such Swing Line Loan.
(c) The Company shall repay to the Swing Line Lender on the
Swing Line Termination Date the aggregate principal amount of Swing Line
Loans outstanding on such date.
(d) The Company shall repay the Term Loans and Sterling
Acquisition Loans on each date and in the amount set forth on Schedule
2.08(d) (each a "Principal Payment Date")<248>.
2.09 Interest
(a) Each (i) Loan (other than a Sterling Acquisition Loan or a Swing Line
Loan) shall bear interest on the outstanding principal amount thereof from
the applicable Borrowing Date at a rate per annum equal to the Offshore Rate
or the Base Rate, as the case may be (and subject to the Company's right to
convert to other Types of Loans under Section 2.04), plus the Applicable
Margin and (ii) Sterling Acquisition Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to the Offshore Rate, plus the Applicable Margin and
<279>(iii) Swing Line <250> Loan share bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate pre
annum equal to the Base Rate, plus the Applicable Margin for Revolving Loans
maintained as Base Rate Loans or the Quoted Rate.
(b) Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest shall also be paid on the date of the conversion of
an Offshore Rate Loan into a Base Rate Loan, on the date of any prepayment of
any <251> Loans under Section 2.06 or 2.07 for the portion of the
Loans so prepaid and upon payment (including prepayment) in full thereof and,
during the existence of any Event of Default, interest shall be paid on
demand of the Administrative Agent at the request or with the consent of the
Majority Lenders.
(c) Notwithstanding Section 2.09(a), while any Event of Default exists or
after acceleration, each Borrower shall pay interest or additional fees
(after as well as before entry of judgment thereon to the extent permitted by
law) on the principal amount of all outstanding Obligations, at a rate per
annum which is determined by adding 2% per annum to the Applicable Margin or
rate then in effect for such Obligations; provided, however, that, on and
after the expiration of any Interest Period applicable to any Offshore Rate
Loan outstanding on the date of occurrence of such Event of Default or
acceleration, the principal amount of such Offshore Rate Loan shall, during
the continuation of such Event of Default or after acceleration, bear
interest at a rate per annum equal to the Base Rate plus the Applicable
Margin plus 2%.
(d) Anything herein to the contrary notwithstanding, the obligations of
each Borrower to any Lender hereunder shall be subject to the limitation that
payments of interest shall not be required for any period for which interest
is computed hereunder, to the extent (but only to the extent) that
contracting for or receiving such payment by such Lender would be contrary to
the provisions of any law applicable to such Lender limiting the highest rate
of interest that may be lawfully contracted for, charged or received by such
Lender, and in such event each Borrower shall pay such Lender interest at the
highest rate permitted by applicable law.
2.10 Fees
In addition to certain fees described in Section 3.08:
(a) Agency Fees
The Company shall pay the fees to the Administrative Agent for the
Administrative Agent's own account, as required by the letter agreement (as
amended from time to time, the "Fee Letter") between the Company and the
Administrative Agent, dated as of October 16, 1998.
(b) Revolving Loan Commitment Fee
The Company shall pay to the Administrative Agent for the account of each
<252> Revolving <253> Lender a commitment fee ("Revolving Loan
Commitment Fee") on the actual daily unused portion of such Revolving
Lender's Revolving Loan Commitment <254> computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter based upon the
daily utilization for that quarter as calculated by the Administrative Agent,
equal to (x) for the period from and including the Announcement Date and to
but excluding the sixtieth (60th) day following the Announcement Date, 0.20%
per annum and (y) thereafter, the Applicable Margin per annum applicable to
the Commitment Fee. For purposes of calculating utilization under this
clause (b), the Revolving Loan Commitments shall be deemed used to the extent
of the Effective Amount of Revolving Loans then outstanding and the
Effective Amount all L/C Obligations then outstanding. Such commitment fee
shall accrue from the Announcement Date to the Revolving Loan Termination
Date and shall be due and payable quarterly in arrears on the last Business
Day of each March, June, September and December through the Revolving Loan
Termination Date, with the final payment to be made on the Revolving Loan
Termination Date. The commitment fees provided in this clause (b) shall
accrue at all times after the Announcement Date, including at any time during
which one or more conditions in Article V are not met.
(c) Term Loan Commitment Fee
The Company shall pay to the Administrative Agent for the account of each
Lender with a Term Loan Commitment a commitment fee ("Term Loan Commitment
Fee") on the actual daily unused portion of such Lender's Term Loan
Commitment computed on a quarterly basis in arrears on the last Business Day
of each calendar quarter based upon the daily utilization for that quarter as
calculated by the Administrative Agent, equal to (x) for the period from and
including the Announcement Date and to but excluding the sixtieth (60th) day
following the Announcement Date, 0.20% per annum and (y) thereafter, the
Applicable Margin per annum applicable to the Commitment Fee. For purposes
of calculating utilization under this clause (c), the Term Loan Commitments
shall be deemed used to the extent of the Effective Amount of Term Loans
then outstanding. Such Term Loan Commitment Fee shall accrue from the
Announcement Date to the Initial Funding Date and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September
and December through the Initial Funding Date, with the final payment to be
made on the Initial Funding Date; provided, that in connection with any
reduction or termination of Term Loan Commitments, as the case may be, under
Section 2.05 or 2.07(a), the accrued Term Loan Commitment Fee calculated for
the period ending on such date shall also be paid on the date of such
reduction or termination, with the following quarterly payment being
calculated on the basis of the period from such reduction or termination date
to such quarterly payment date. The Term Loan Commitment Fee shall accrue at
all times after the above-mentioned commencement date until the Initial
Funding Date.
(d) Sterling Acquisition Loan Commitment Fee
The Company shall pay to the Administrative Agent for the account of each
Lender with <255> a Sterling Acquisition Loan Commitment a commitment fee
<256> ("Sterling Acquisition Loan Commitment Fee") on the actual daily unused
portion of such Lender's Sterling Acquisition Loan Commitment computed on a
quarterly basis in arrears on the last Business Day of each calendar quarter
based upon the daily utilization for that quarter as calculated by the
Administrative Agent, equal to (x) for the period from and including the
Announcement Date and to but excluding the sixtieth (60th) day following the
Announcement Date, 0.20% per annum and (y) thereafter, the Applicable Margin
per annum applicable to the Commitment Fee. For purposes of calculating
utilization under this clause (d), the Sterling Acquisition Loan Commitments
shall be deemed used to the extent of the Effective Amount of Sterling
Acquisition Loans then outstanding. Such Sterling Acquisition Loan
Commitment Fee shall be paid in Dollars and shall accrue from the
Announcement Date to the <257> Business Day following the Initial Funding
Date and shall be due and payable quarterly in arrears on the last Business
Day of each March, June, September and December through the <258> Business
Day following the Initial Funding Date with the final payment to be made on
the Squeeze <259> Out Date; provided, that in connection with any reduction
or termination of Sterling Acquisition Loan Commitments, as the case may be,
under Section 2.05 or 2.07(a), the accrued Sterling Acquisition Loan
Commitment Fee calculated for the period ending on such date shall also be
paid on the date of such reduction or termination, with the following
quarterly payment being calculated on the basis of the period from such
reduction or termination date to such quarterly payment date. The Sterling
Acquisition Loan Commitment Fee shall accrue at all times after the above-
mentioned commencement date until the <260> Business Day following the
Initial Funding Date.
2.11 Computation of Fees and Interest
(a) All computations of interest for Base Rate Loans when the
Base Rate is determined by NationsBank's "reference rate" shall be made on
the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be made on the
basis of a 360-day year and actual days elapsed (which results in more
interest being paid than if computed on the basis of a 365-day year).
Interest and fees shall accrue during each period during which interest or
such fees are computed from the first day thereof to the last day thereof.
(b) Each determination of an interest rate or a Dollar
Equivalent amount by the Administrative Agent shall be conclusive and binding
on each Borrower and the Lenders in the absence of manifest error. The
Administrative Agent will, at the request of a Borrower or any Lender,
deliver to such Borrower or such Lender, as the case may be, a statement
showing the quotations used by the Administrative Agent in determining any
interest rate and the resulting interest rate or any Dollar Equivalent
Amount.
(c) Without prejudice and in addition to any method of
conversion or rounding prescribed by any EMU Legislation, any amount
translated from a national currency unit to a euro unit under this Agreement
(or under any EMU Legislation) may be rounded up or down by the
Administrative Agent acting reasonably.
2.12 Payments by a Borrower
(a) All payments to be made by a Borrower shall be made without set-off,
recoupment or counterclaim. Except as otherwise expressly provided herein,
all payments by a Borrower shall be made to the Administrative Agent for the
account of the Lenders at the Administrative Agent's Payment Office, and,
with respect to principal of, interest on, and any other amounts relating to,
any Offshore Currency Loan, shall be made in the Offshore Currency in which
such Loan is denominated or payable, and, with respect to all other amounts
payable hereunder, shall be made in Dollars. Such payments shall be made in
Same Day Funds, and (i) in the case of Offshore Currency payments, no later
than such time on the dates specified herein as may be reasonably determined
by the Administrative Agent to be necessary for such payment to be credited
on such date in accordance with normal lending procedures in the place of
payment, and (ii) in the case of any Dollar payments, no later than 12:00
noon (New York time) on the date specified herein. The Administrative Agent
will promptly distribute to each Lender its Pro Rata Share (or other
applicable share as expressly provided herein) of such principal, interest,
fees or other amounts, in like funds as received. Any payment which is
received by the Administrative Agent later than 12:00 noon (New York time) in
the case of Dollar payments, or later than the time specified by the
Administrative Agent as provided in clause (i) above (in the case of Offshore
Currency payments), shall be deemed to have been received on the following
Business Day and any applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of "Interest
Period" herein, whenever any payment is due on a day other than a Business
Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of
interest or fees, as the case may be.
(c) Unless the Administrative Agent receives notice from the Company
prior to the date on which any payment is due to the Lenders that a Borrower
will not make such payment in full as and when required, the Administrative
Agent may assume that such Borrower has made such payment in full to the
Administrative Agent on such date in Same Day Funds and the Administrative
Agent may (but shall not be so required), in reliance upon such assumption,
distribute to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent such Borrower has not made such
payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent on demand such amount distributed to such Lender,
together with interest thereon at the Federal Funds Rate or, in the case of a
payment in an Offshore Currency, the Overnight Rate, for each day from the
date such amount is distributed to such Lender until the date repaid.
2.13 Payments by the Lenders to the Administrative Agent
(a) Unless the Administrative Agent receives notice from a Lender at
least one Business Day prior to the date of <261> any Borrowing, that such
Lender will not make available as and when required hereunder to the
Administrative Agent for the account of the relevant Borrower the amount of
that Lender's Pro Rata Share of <262> such Borrowing, the Administrative
Agent may assume that each Lender has made such amount available to the
Administrative Agent in Same Day Funds on the relevant Borrowing Date and the
Administrative Agent may (but shall not be so required), in reliance upon
such assumption, make available to the relevant Borrower on such date a
corresponding amount. If and to the extent any Lender shall not have made
its full amount available to the Administrative Agent in Same Day Funds and
the Administrative Agent in such circumstances has made available to the
Company such amount, that Lender shall on the Business Day following such
Borrowing Date make such amount available to the Administrative Agent,
together with interest at the Federal Funds Rate or, in the case of any
Borrowing consisting of Offshore Currency Loans, the Overnight Rate, for each
day during such period. A notice of the Administrative Agent submitted to
any Lender with respect to amounts owing under this Section 2.13(a) shall be
conclusive, absent manifest error. If such amount is so made available, such
payment to the Administrative Agent shall constitute such Lender's Loan on
the date of Borrowing for all purposes of this Agreement. If such amount is
not made available to the Administrative Agent on the Business Day following
the relevant Borrowing Date, the Administrative Agent will notify <263> the
relevant Borrower of such failure to fund and, upon demand by the
Administrative Agent, the relevant Borrower shall pay such amount to the
Administrative Agent for the Administrative Agent's account, together with
interest thereon for each day elapsed since the date of such Borrowing, at a
rate per annum equal to the interest rate applicable at the time to the Loans
comprising such Borrowing.
(b) The failure of any Lender to make any Loan on any Borrowing Date
shall not relieve any other Lender of any obligation hereunder to make a Loan
on such Borrowing Date, but no Lender shall be responsible for the failure of
any other Lender to make the Loan to be made by such other Lender on any
Borrowing Date.
2.14 Sharing of Payments, Etc.
If, other than as expressly provided elsewhere herein, any Lender shall
obtain on account of the Loans made by it any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its ratable share (or other share contemplated hereunder), such
Lender shall immediately (a) notify the Administrative Agent of such fact,
and (b) purchase from the other Lenders such participation in the Loans made
by them as shall be necessary to cause such purchasing Lender to share the
excess payment pro rata with each of them; provided, however, that if all or
any portion of such excess payment is thereafter recovered from the
purchasing Lender, such purchase shall to that extent be rescinded and each
other Lender shall repay to the purchasing Lender the purchase price paid
therefor, together with an amount equal to such paying Lender's ratable share
(according to the proportion of (i) the amount of such paying Lender's
required repayment to (ii) the total amount so recovered from the purchasing
Lender) of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered. Each Borrower agrees
that any Lender so purchasing a participation from another Lender may, to the
fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 11.10) with respect
to such participation as fully as if such Lender were the direct creditor of
the relevant Borrower in the amount of such participation. The
Administrative Agent will keep records (which shall be conclusive and binding
in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such purchases
or repayments.
2.15 Utilization of Commitments in Offshore Currencies
(a) The Administrative Agent will determine the Dollar Equivalent amount
with respect to any (i) Borrowing comprised of Offshore Currency Loans (other
than Sterling Acquisition Loans) as of the requested Borrowing Date, (ii)
outstanding Offshore Currency Loans denominated in a currency other than
Dollars as of the last Business Day of each month, (iii) outstanding Offshore
Currency Loans denominated in a currency other than Dollars as of any
redenomination date pursuant to this Section 2.15 or Section 4.05, (iv) L/C
Obligations denominated in a currency other than Dollars, on the date of
Issuance and thereafter as of the last Business Day of each month and (v)
Offshore Currency Loans or L/C Obligations, as of any date specified for
determining the Dollar Equivalent of any amount (each such date under clauses
(i) through (iv) a "Computation Date").
(b) In the case of a proposed Borrowing comprised of Offshore Currency
Loans (other than Sterling Acquisition Loans), the Lenders shall be under no
obligation to make Offshore Currency Loans in the requested Offshore Currency
as part of such Borrowing if the Administrative Agent has received notice
from any of the Lenders by 5:00 p.m. (New York time) four Business Days prior
to the day of such Borrowing that such Lender cannot provide Loans in the
requested Offshore Currency, in which event the Administrative Agent will
give notice to the Company no later than 12:00 noon (New York time) on the
third Business Day prior to the requested date of such Borrowing that the
Borrowing in the requested Offshore Currency (other than Sterling Acquisition
Loans) is not then available, and notice thereof also will be given promptly
by the Administrative Agent to the Lenders. If the Administrative Agent
shall have so notified the Company that any such Borrowing in a requested
Offshore Currency is not then available, the Company may, by notice to the
Administrative Agent not later than 5:00 p.m. (New York time) two Business
Days prior to the requested date of such Borrowing, withdraw the Notice of
Borrowing relating to such requested Borrowing. If the Company does so
withdraw such Notice of Borrowing, the Borrowing requested therein shall not
occur and the Administrative Agent will promptly so notify each Lender. If
the Company does not so withdraw such Notice of Borrowing, the Administrative
Agent will promptly so notify each Lender and such Notice of Borrowing shall
be deemed to be a Notice of Borrowing that requests a Borrowing comprised of
Offshore Rate Loans (other than Sterling Acquisition Loans) for the same
Interest Period previously applicable in an aggregate amount equal to the
amount of the originally requested Borrowing as expressed in Dollars in the
Notice of Borrowing; and in such notice by the Administrative Agent to each
Lender the Administrative Agent will state such aggregate amount of such
Borrowing in Dollars and such Lender's Pro Rata Share thereof.
(c) In the case of a proposed continuation of Offshore Currency Loans
(other than Sterling Acquisition Loans) for an additional Interest Period
pursuant to Section 2.04, the Lenders shall be under no obligation to
continue such Offshore Currency Loans if the Administrative Agent has
received notice from any of the Lenders by 5:00 p.m. (New York time) four
Business Days prior to the day of such continuation that such Lender cannot
continue to provide Loans in the relevant Offshore Currency, in which event
the Administrative Agent will give notice to the Company not later than 12:00
noon (New York time) on the third Business Day prior to the requested date of
such continuation that the continuation of such Offshore Currency Loans in
the relevant Offshore Currency is not then available, and notice thereof also
will be given promptly by the Administrative Agent to the Lenders. If the
Administrative Agent shall have so notified the Company that any such
continuation of Offshore Currency Loans (other than Sterling Acquisition
Loans) is not then available, any Notice of Continuation/Conversion with
respect thereto shall be deemed withdrawn and such Offshore Currency Loans
shall be redenominated into Offshore Rate Loans in Dollars for the same
Interest Period previously applicable with effect from the last day of the
Interest Period with respect to any such Offshore Currency Loans. The
Administrative Agent will promptly notify the Company and the Lenders of any
such redenomination and in such notice by the Administrative Agent to each
Lender the Administrative Agent will state the aggregate Dollar Equivalent
amount of the redenominated Offshore Currency Loans (other than Sterling
Acquisition Loans) as of the Computation Date with respect thereto and such
Lender's Pro Rata Share thereof.
(d) Notwithstanding anything herein to the contrary, during the
existence of a payment default or an Event of Default, upon the request of
the Majority Lenders, all or any part of any outstanding Offshore Currency
Loans Loans (other than Sterling Acquisition Loans) shall be redenominated
and converted into Base Rate Loans in Dollars
with effect from the last day of the Interest Period with respect to any such
Offshore Currency Loans. The Administrative Agent will promptly notify the
Company and the Lenders of any such redenomination and conversion request.
(e) The Company shall be entitled to request that Revolving Loans and
Swing Line Loans hereunder also be permitted to be made in any other lawful
currency (other than Dollars), in addition to the currencies specified in the
definition of "Offshore Currency" herein, that in the opinion of the
Administrative Agent, the Swing Line Lender and the <264> Lenders is at
such time freely traded in the offshore interbank foreign exchange markets
and is freely transferable and freely convertible into Dollars (an "Agreed
Alternative Currency"). The Company shall deliver to the Administrative
Agent any request for designation of an Agreed Alternative Currency in
accordance with Section 12.02, to be received by the Administrative Agent not
later than 12:00 noon (New York time) at least 10 Business Days in advance of
the date of any Borrowing hereunder proposed to be made in such Agreed
Alternative Currency. Upon receipt of any such request the Administrative
Agent will promptly notify the Lenders thereof, and each Lender will use its
commercially reasonable efforts to respond to such request within five (5)
Business Days of receipt thereof. Each Lender may grant or accept such
request in its sole discretion. The Administrative Agent will promptly
notify the Company of the acceptance or rejection of any such request.
ARTICLE III THE LETTERS OF CREDIT FACILITY
3.01 The Letter of Credit Facility
(a) On the terms and conditions set forth herein (i) the Issuing Bank
agrees, (A) from time to time on any Business Day during the period from the
Initial Funding Date to the day which is thirty (30) days prior to the
Revolving Loan Termination Date, to issue standby or trade Letters of Credit
for the account of <265> a Borrower and to amend or renew Letters of Credit
previously issued by it under this clause (a) in accordance with Section
3.02(b), and (B) to honor drafts under the Letters of Credit issued under
this clause (a); and (ii) the Revolving Lenders severally agree to
participate in Letters of Credit issued for the account of the <266> relevant
Borrower under this clause (a); provided, that the Issuer shall not be
obligated to Issue any Letter of Credit under this clause (a), if as of the
Issuance Date of such Letter of Credit (1) the Effective Amount of all L/C
Obligations <267> exceeds the combined L/C Commitments of all Revolving
Lenders or (2) the participation of any Revolving Lender in the Effective
Amount of all L/C Obligations and participation in Swing Line Loans of such
Revolving Lender exceeds such Lender's Revolving Loan Commitment less the
Effective Amount of Revolving Loans of such Revolving Lender. Within the
foregoing limits, and subject to the other terms and conditions hereof, the
<268> relevant Borrower's ability to obtain standby and trade Letters of
Credit under this clause (a) shall be fully revolving, and, accordingly, the
<269> relevant Borrower may, during the forgoing period, obtain under this
clause (a) new Letters of Credit, or replacement Letters of Credit for
Letters of Credit which have expired or which have been drawn upon and
reimbursed, provided all such Letters of Credit are issued in compliance with
this Agreement.
(b) The Issuing Bank is under no obligation to Issue, amend or renew any
Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank
from Issuing such Letter of Credit, or any Requirement of Law applicable to
the Issuing Bank or any request or directive (whether or not having the force
of law) from any Governmental Authority with jurisdiction over the Issuing
Bank shall prohibit, or request that the Issuing Bank refrain from, the
Issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon the Issuing Bank with respect to such Letter
of Credit any restriction, reserve or capital requirement (for which the
Issuing Bank is not otherwise compensated hereunder) not in effect on the
Initial Funding Date, or shall impose upon the Issuing Bank any unreimbursed
loss, cost or expense which was not applicable on the Initial Funding Date
and which the Issuing Bank in good faith deems material to it;
(ii) the Issuing Bank has received written notice from any Revolving
Lender, the Administrative Agent or any Borrower, on or prior to the Business
Day prior to the requested Issuance Date of such Letter of Credit, that one
or more of the applicable conditions contained in Article V is not then
satisfied;
(iii) the expiry date of any requested Letter of Credit is after the
Revolving Loan Termination Date;
(iv) any requested Letter of Credit does not provide for drafts, or is
not otherwise in form and substance acceptable to the Issuing Bank, or the
Issuance of a Letter of Credit shall violate any applicable policies of the
Issuing Bank; or
(v) such Letter of Credit (x) is in a face amount less than $250,000,
unless such lesser amount is approved by the Administrative Agent and the
Issuing Bank, and (y) is to be denominated in a currency other than Dollars
or an Offshore Currency.
3.02 Issuance, Amendment and Renewal of Letters of Credit
(a) Each Letter of Credit shall be issued upon the irrevocable written
request of the relevant Borrower received by the Issuing Bank (with a copy
sent by the relevant <270> Borrower to the Administrative Agent) at least
five (5) days (or such shorter time as the Issuing Bank may agree in a
particular instance in its sole discretion) prior to the proposed Issuance
Date. Each such request for issuance of a Letter of Credit shall be in
writing or by facsimile, confirmed immediately in an original writing, in the
form of an L/C Application, and shall specify in form and detail satisfactory
to the Issuing Bank: (i) the proposed Issuance Date of <271> such Letter of
Credit (which shall be a Business Day); (ii) the face amount of <272> such
Letter of Credit; (iii) the expiry date of <273> such Letter of Credit; (iv)
the name and address of the beneficiary thereof; (v) the documents to be
presented by the beneficiary of <274> such Letter of Credit in case of any
drawing thereunder; (vi) the full text of any certificate to be presented by
the beneficiary in case of any drawing thereunder; (vii) the denomination of
the Stated Amount in Dollars or an Offshore Currency, and (viii) such other
matters as the Issuing Bank may require.
(b) Prior to the Issuance of any Letter of Credit, the Issuing Bank will
confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of the L/C Application or L/C
Amendment Application from the relevant Borrower and, if not, the Issuing
Bank will provide the Administrative Agent with a copy thereof. Unless the
Issuing Bank has received notice on or before the Business Day the Issuing
Bank is to issue a requested Letter of Credit (A) from the Administrative
Agent <275> directing the Issuing Bank not to issue such Letter of Credit
because such issuance is not then permitted under Section 3.01(a) as a result
of the limitations set forth in clauses (1) or (2) thereof, or (B) that one
or more terms or conditions specified in Section 3.01(b) or in Article V are
not then satisfied; then, subject to the terms and conditions hereof, the
Issuing Bank shall, with the approval of the Administrative Agent, on the
requested date, issue a Letter of Credit for the account of the relevant
Borrower in accordance with the Issuing Bank's usual and customary business
practices.
(c) From time to time while a Letter of Credit is outstanding and prior
to the Termination Date, the Issuing Bank will, upon the written request of
the relevant Borrower received by the Issuing Bank (with a copy sent by the
relevant Borrower to the Administrative Agent) at least five (5) days (or
such shorter time as the Issuing Bank may agree in a particular instance in
its sole discretion) prior to the proposed date of amendment, amend any
Letter of Credit issued by it. Each such request for amendment of a Letter
of Credit shall be made in writing or by facsimile, confirmed immediately in
an original writing, made in the form of an L/C Amendment Application and
shall specify in form and detail satisfactory to the Issuing Bank: (i) the
Letter of Credit to be amended; (ii) <276> such proposed date of amendment of
the Letter of Credit (which shall be a Business Day); (iii) the nature of the
proposed amendment; and (iv) such other matters as the Issuing Bank may
require. The Issuing Bank shall be under no obligation to amend any Letter
of Credit if: (A) the Issuing Bank would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms of this
Agreement; or (B) the beneficiary of any such Letter of Credit does not
accept the proposed amendment to the Letter of Credit. The Administrative
Agent will promptly notify the Lenders of the receipt by it of any L/C
Application or L/C Amendment Application.
(d) The Issuing Bank and the Lenders agree that, while a Letter of Credit
is outstanding and prior to the Revolving Loan Termination Date, at the
option of the relevant Borrower and upon the written request of the relevant
Borrower received by the Issuing Bank (with a copy sent by the relevant
Borrower to the Administrative Agent) at least five (5) days (or such shorter
time as the Issuing Bank may agree in a particular instance in its sole
discretion) prior to the proposed date of notification of renewal, the
Issuing Bank shall be entitled to authorize the automatic renewal of any
Letter of Credit issued by it. Each such request for renewal of a Letter of
Credit shall be made in writing or by facsimile, confirmed immediately in an
original writing, in the form of an L/C Amendment Application, and shall
specify in form and detail satisfactory to the Issuing Bank: (i) the Letter
of Credit to be renewed; (ii) the proposed date of notification of renewal of
<277> such Letter of Credit (which shall be a Business Day); (iii) the
revised expiry date of <278> such Letter of Credit; and (iv) such other
matters as the Issuing Bank may require. The Issuing Bank shall be under no
obligation so to renew any Letter of Credit if: (A) the Issuing Bank would
have no obligation at such time to issue or amend such Letter of Credit in
its renewed form under the terms of this Agreement; or (B) the beneficiary of
any such Letter of Credit does not accept the proposed renewal of <279> such
Letter of Credit. If any outstanding Letter of Credit shall provide that it
shall be automatically renewed unless the beneficiary thereof receives notice
from the Issuing Bank that such Letter of Credit shall not be renewed, and if
at the time of renewal the Issuing Bank would be entitled to authorize the
automatic renewal of such Letter of Credit in accordance with this clause (d)
upon the request of the relevant Borrower but the Issuing Bank shall not have
received any L/C Amendment Application from the relevant Borrower with
respect to such renewal or other written direction by the relevant Borrower
with respect thereto, the Issuing Bank shall nonetheless be permitted to
allow such Letter of Credit to renew, and the relevant Borrower and the
Revolving Lenders hereby authorize such renewal, and, accordingly, the
Issuing Bank shall be deemed to have received an L/C Amendment Application
from the Borrower requesting such renewal.
(e) The Issuing Bank may, at its election (or as required by the
Administrative Agent at the direction of the Majority Lenders), deliver any
notices of termination or other communications to any Letter of Credit
beneficiary or transferee, and take any other action as necessary or
appropriate, at any time and from time to time, in order to cause the expiry
date of such Letter of Credit to be a date not later than the Revolving Loan
Termination Date.
(f) This Agreement shall control in the event of any conflict with any
L/C-Related Document (other than any Letter of Credit).
(g) The Issuing Bank will also deliver to the Administrative Agent,
concurrently or promptly following its delivery of a Letter of Credit, or
amendment to or renewal of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of each such Letter of Credit or
amendment to or renewal of a Letter of Credit.
3.03 Risk Participations, Drawings, Revolving Loans and Reimbursements.
(a) Immediately upon the Issuance of each Letter of Credit, each
Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Bank a participation in
such Letter of Credit and each drawing thereunder in an amount equal to the
product of (i) the Pro Rata Revolving Share of such Revolving Lender, times
(ii) the maximum amount available to be drawn under such Letter of Credit and
the amount of such drawing, respectively.
(b) (i) In the event of any request for a drawing under a Letter
of Credit by the beneficiary or transferee thereof, the Issuing Bank will
promptly notify <280> relevant Borrower. The Company shall reimburse the
Issuing Bank (by an L/C Borrowing or otherwise) prior to 12:00 Noon (New York
time), on the Honor Date, in an amount equal to the amount so paid by the
Issuing Bank. In the event the <281> relevant Borrower fails to reimburse
the Issuing Bank for the full amount of any drawing under any Letter of
Credit by 12:00 Noon (New York time) on the Honor Date, the Issuing Bank will
promptly notify the Administrative Agent and the Administrative Agent will
promptly notify each Revolving Lender thereof, and the <282> relevant
Borrower shall be deemed to have requested that Base Rate Loans in an
aggregate amount equal to the unreimbursed drawing be made by the Revolving
Lenders to be disbursed on the Honor Date under such Letter of Credit,
subject to the amount of the unutilized portion of the Revolving Loan
Commitment and subject to the conditions set forth in Section 5.03. Any
notice given by the Issuing Bank or the Administrative Agent pursuant to this
clause (d)(i) may be oral if immediately confirmed in writing (including by
facsimile); provided, that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.
(ii) Each Revolving Lender shall upon any notice pursuant to Section
3.03(b)(i) make available to the Administrative Agent for the account of the
relevant Issuing Bank an amount in Same Day Funds equal to its Pro Rata
Revolving Share of the amount of the drawing, whereupon the participating
Revolving Lenders shall (subject to Section 3.03(b)(iii)) each be deemed to
have made a Revolving Loan consisting of a Base Rate Loan to the <283>
relevant Borrower in that amount. If any Revolving Lender so notified fails
to make available to the Administrative Agent for the account of the Issuing
Bank the amount of such Revolving Lender's Pro Rata Revolving Share of the
amount of the drawing by no later than 2:00 p.m. (New York time) on the
Honor Date, then interest shall accrue on such Revolving Lender's obligation
to make such payment, from the Honor Date to the date such Revolving Lender
makes such payment, at a rate per annum equal to the Federal Funds Rate in
effect from time to time during such period. The Administrative Agent will
promptly give notice of the occurrence of the Honor Date, but failure of the
Administrative Agent to give any such notice on the Honor Date or in
sufficient time to enable any Lender to effect such payment on such date
shall not relieve such Lender from its obligations under this Section
3.03(b).
(iii) With respect to any unreimbursed drawing that is not converted
into Revolving Loans consisting of Base Rate Loans to the <284> relevant
Borrower in whole or in part, because of the <285> relevant Borrower's
failure to satisfy the conditions set forth in Section 5.03 or for any other
reason, the <286> relevant Borrower shall be deemed to have incurred from the
Issuing Bank an L/C Borrowing in the amount of such drawing which L/C
Borrowing shall be due and payable on demand (together with interest) and
shall bear interest at a rate per annum equal to the Base Rate plus the
Applicable Margin for Revolving Loans maintained as Base Rate Loans plus 2%
per annum, and each Revolving Lender's payment to the Issuing Bank pursuant
to Section 3.03(b)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance from
such Revolving Lender in satisfaction of its participation obligation under
this Section 3.03(b).
(c) Each Lender's obligation in accordance with this Agreement
to make an L/C Advance or Revolving Loans as contemplated by this Section
3.03 as a result of a drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to the Issuing Bank and shall not be
affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender or any Borrower may have
against the Issuing Bank, a Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default, an Event of
Default, a Material Adverse Effect or any failure to satisfy the conditions
under Article V; or (iii) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
3.04 Repayment of Participations
(a) Upon (and only upon) receipt by the Administrative Agent for the
account of the Issuing Bank of immediately available funds from the relevant
Borrower (i) in reimbursement of any payment made by the Issuing Bank under
<287> any Letter of Credit with respect to which any Lender has paid the
Administrative Agent for the account of the Issuing Bank for such Lender's
participation in <288> such Letter of Credit pursuant to Section 3.03 or (ii)
in payment of interest thereon, the Administrative Agent will pay to each
Revolving Lender, in the same funds as those received by the Administrative
Agent for the account of the Issuing Bank, the amount of such Revolving
Lender's Pro Rata Revolving Share of such funds, and the Issuing Bank shall
receive the amount of the Pro Rata Revolving Share of such funds of any
Revolving Lender that did not so pay the Administrative Agent for the account
of the Issuing Bank.
(b) If the Administrative Agent or the Issuing Bank is required at any
time to return to a Borrower, or to a trustee, receiver, liquidator,
custodian, or any official in any Insolvency Proceeding, any portion of the
payments made by such Borrower to the Administrative Agent for the account of
the Issuing Bank pursuant to Section 3.04(a) in reimbursement of a payment
made under <289> a Letter of Credit or interest or fee thereon, each
Revolving Lender shall, on demand of the Administrative Agent, forthwith
return to the Administrative Agent or the Issuing Bank the amount of its Pro
Rata Revolving Share of any amounts so returned by the Administrative Agent
or the Issuing Bank plus interest thereon from the date such demand is made
to the date such amounts are returned by such Revolving Lender to the
Administrative Agent or the Issuing Bank, at a rate per annum equal to the
Federal Funds Rate in effect from time to time.
3.05 Role of the Issuing Bank
(a) Each Lender and each Borrower agree that, in paying any drawing under
a Letter of Credit, the Issuing Bank shall not have any responsibility to
obtain any document (other than any sight draft and certificates or documents
expressly required by the Letter of Credit) or to ascertain or inquire as to
the validity or accuracy of any such document or the authority of the Person
executing or delivering any such document.
(b) No Administrative Agent-Related Person nor any of the respective
correspondents, participants or assignees of the Issuing Bank shall be liable
to any Lender for: (i) any action taken or omitted in connection herewith at
the request or with the approval of the Revolving Lenders (including the
Majority Lenders, as applicable); (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any L/C-Related
Document.
(c) Each Borrower hereby assumes all risks of the acts or omissions of
any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and shall
not, preclude a Borrower's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement.
No Administrative Agent-Related Person, nor any of the respective
correspondents, participants (including the Revolving Lenders) or assignees
of the Issuing Bank, shall be liable or responsible for any of the matters
described in clauses (i) through (vii) of Section 3.06; provided, however,
anything in such clauses to the contrary notwithstanding, that a Borrower may
have a claim against the Issuing Bank, and the Issuing Bank may be liable to
such Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by such Borrower
which such Borrower proves were caused by the Issuing Bank's willful
misconduct or gross negligence or the Issuing Bank's willful failure to pay
under any Letter of Credit after the presentation to it by the beneficiary of
a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of
the foregoing: (i) the Issuing Bank may accept documents that appear on their
face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary; and (ii) the Issuing
Bank shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any
reason.
3.06 Obligations Absolute
The obligations of each Borrower under this Agreement and any L/C-Related
Document to reimburse the Issuing Bank for a drawing under a Letter of
Credit, and to repay any L/C Borrowing and any drawing under a Letter of
Credit converted into Revolving Loans, shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and each such other L/C-Related Document under all circumstances
(unless due to the gross negligence or wilful misconduct of the Issuing
Bank), including the following:
(i) any lack of validity or enforceability of this Agreement or any L/C-
Related Document;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of a Borrower in respect of any
Letter of Credit or any other amendment or waiver of or any consent to
departure from all or any of the L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or other right that a
Borrower may have at any time against any beneficiary or any transferee of
any Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the Issuing Bank or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or by
the L/C-Related Documents or any unrelated transaction;
(iv) any draft, demand, certificate or other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect; or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit;
(v) any payment by the Issuing Bank under any Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the
terms of any Letter of Credit; or any payment made by the Issuing Bank under
any Letter of Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of any Letter of Credit, including any arising in connection with
any Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from any other
guarantee, for all or any of the obligations of a Borrower in respect of any
Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, a Borrower or
a guarantor.
3.07 Cash Collateral Pledge
If, as of the Revolving Loan Termination Date, any Letters of Credit may for
any reason remain outstanding and partially or wholly undrawn, or upon the
occurrence and continuation of the circumstances described in Section 2.07(c)
requiring the relevant Borrower to Cash Collateralize Letters of Credit,
then, the relevant Borrower shall immediately Cash Collateralize the L/C
Obligations in an amount equal to such L/C Obligations or any excess amount.
3.08 Letter of Credit Fees.
(a) The Company shall pay to the Administrative Agent for the account of
each of the Revolving Lenders a letter of credit fee with respect to the
Letters of Credit equal to the Applicable Margin per annum specified for
Revolving Loans maintained as Offshore Rate Loans on the Stated Amount
available to be drawn on the outstanding Letters of Credit, computed on a
quarterly basis in arrears on the last Business Day of each March, June,
September and December based upon Letters of Credit outstanding for that
quarter as calculated by the Administrative Agent. Such letter of credit
fees shall be due and payable quarterly in arrears on the last Business Day
of each calendar quarter during which Letters of Credit are outstanding,
commencing on the first such quarterly date to occur after the Initial
Funding Date, through the Revolving Loan Termination Date (or such later date
upon which the outstanding Letters of Credit shall expire), with the final
payment to be made on the Revolving Loan Termination Date (or such later
expiration date).
(b) The Company shall pay to the relevant Issuing Bank, individually, a
fronting fee for each Letter of Credit Issued by <290> such Issuing Bank
equal to .125% per annum of the Stated Amount of such Letter of Credit. Such
fronting fee shall be due and payable quarterly in arrears on the last
Business Day of each calendar quarter during which such Letter of Credit is
outstanding, commencing on the first such quarterly date to occur after such
Letter of Credit is issued, through the Revolving Loan Termination Date, with
the final payment to be made on the Revolving Loan Termination Date.
(c) The Company shall pay to the relevant Issuing Bank from time to time
on demand the normal issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the Issuing Bank relating to
letters of credit as from time to time in effect.
3.09 Existing Letters of Credit. Schedule 3.09 hereto contains a
description of all Existing Letters of Credit issued by Chase pursuant to the
Existing Credit Agreement outstanding on the Initial Funding Date. Each such
Existing Letter of Credit, including any extension therof issued by Chase in
its sole discretion (provided, however, that the Existing Letters of Credit
described on items 1 and 2 of Schedule 3.09 may not be extended beyond their
current termination date) shall constitute "Letters of Credit" for all
purposes of this Agreement, Issued, for purposes of Section 3.01(a), on the
Initial Funding Date. The Company, the Administrative Agent and each Lender
hereby agree that, from and after the Initial Funding Date, the terms of this
Agreement shall apply to the Existing Letters of Credit and that the terms of
this Agreement shall supersede the Existing Credit Agreement with respect to
the Existing Letters of Credit.
3.10 Uniform Customs and Practice
The Uniform Customs and Practice for Documentary Credits as published by the
International Chamber of Commerce most recently at the time of issuance of
any Letter of Credit shall (unless otherwise expressly provided in the
Letters of Credit) apply to the Letters of Credit.
ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes
(a) Any and all payments by a Borrower to each Lender or the
Administrative Agent under this Agreement and any other Loan Document shall
be made free and clear of, and without deduction or withholding for, any
Taxes. In addition, the relevant Borrower shall pay all Other Taxes.
(b) If a Borrower shall be required by law to deduct or withhold any
Taxes, Other Taxes or Further Taxes from or in respect of any sum payable
hereunder to any Lender or the Administrative Agent, then:
(i) the sum payable shall be increased as necessary so that, after making
all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this Section), such
Lender or the Administrative Agent, as the case may be, receives and retains
an amount equal to the sum it would have received and retained had no such
deductions or withholdings been made;
(ii) such Borrower shall make such deductions and withholdings;
(iii) such Borrower shall pay the full amount deducted or withheld to the
relevant taxing authority or other authority in accordance with applicable
law; and
(iv) such Borrower shall also pay to each Lender or the Administrative
Agent for the account of such Lender, at the time interest is paid, Further
Taxes in the amount that the respective Lender specifies as necessary to
preserve the after-tax yield the Lender would have received if such Taxes,
Other Taxes or Further Taxes had not been imposed.
(c) Each Borrower agrees to indemnify and hold harmless each Lender and
the Administrative Agent for the full amount of i) Taxes, ii) Other Taxes,
and iii) Further Taxes in the amount necessary to preserve the after-tax
yield <292> such Lender would have received if such Taxes, Other Taxes or
Further Taxes had not been imposed, and any liability (including penalties,
interest, additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Taxes, Other Taxes or Further Taxes were
correctly or legally asserted. Payment under this indemnification shall be
made within 30 days after the date the relevant Lender or the Administrative
Agent makes written demand therefor.
(d) Within 30 days after the date of any payment pursuant to this Section
by a Borrower of Taxes, Other Taxes or Further Taxes, such Borrower shall
furnish to each Lender or the Administrative Agent the original or a
certified copy of a receipt evidencing payment thereof, or other evidence of
payment satisfactory to such Lender or the Administrative Agent.
(e) If a Borrower is required to pay any amount to any Lender or the
Administrative Agent pursuant to clauses (b) or (c) of this Section, then
such Lender shall use reasonable efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its Lending Office so
as to eliminate any such additional payment by such Borrower which may
thereafter accrue, if such change in the sole judgment of such Lender is not
otherwise disadvantageous to such Lender; provided, however, that the Swing
Line Lender may in any event continue to make Swing Line Loans out of its
Lending Office in London.
4.02 Illegality.
(a) If any Lender reasonably determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central <293> bank or other Governmental Authority has
asserted that it is unlawful, for any Lender or its applicable Lending Office
to make Offshore Rate Loans (including Offshore Rate Loans in any Applicable
Currency), then, on notice thereof by <294> that Lender to the Company
through the Administrative Agent, any obligation of that Lender to make
Offshore Rate Loans shall be suspended until <295> that Lender notifies the
Administrative Agent and the Company that the circumstances giving rise to
such determination no longer exist.
(b) If a Lender reasonably determines that it is unlawful to maintain any
Offshore Rate Loan, the Company shall, upon its receipt of notice of such
fact and demand from such Lender (with a copy to the Administrative Agent),
prepay in full such Offshore Rate Loans of that Lender then outstanding,
together with interest accrued thereon and amounts required under Section
4.04, either on the last day of the Interest Period thereof, if <296> such
Lender may lawfully continue to maintain such Offshore Rate Loans to such
day, or immediately, if <297> such Lender may not lawfully continue to
maintain such Offshore Rate Loan. If the Company is required to so prepay
any Offshore Rate Loan, then concurrently with such prepayment, the Company
may borrow from the affected Lender, in the amount of such repayment, a Base
Rate Loan.
(c) If the obligation of any Lender to make or maintain Offshore Rate
Loans has been so terminated or suspended, the Company may elect, by giving
notice to <298> such Lender through the Administrative Agent that all Loans
which would otherwise be made by <299> such Lender as Offshore Rate Loans
shall be instead Base Rate Loans.
(d) Before giving any notice to the Administrative Agent under this
Section, the affected Lender shall designate a different Lending Office with
respect to its Offshore Rate Loans if such designation will avoid the need
for giving such notice or making such demand and will not, in the judgment of
<300> such Lender, be illegal or otherwise disadvantageous to the Lender.
4.03 Increased Costs and Reduction of Return.
(a) If any Lender reasonably determines that, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance by that Lender with any guideline or
request from any central bank or other Governmental Authority (whether or not
having the force of law), there shall be any increase in the cost to such
Lender of agreeing to make or making, funding or maintaining any Offshore
Rate Loans or participating in Letters of Credit, or, in the case of the
Issuing Bank, any increase in the cost to the Issuing Bank of agreeing to
issue, issuing or maintaining any Letter of Credit or of agreeing to make or
making, funding or maintaining any unpaid drawing under any Letter of Credit,
then the relevant Borrower shall be liable for, and shall from time to time,
upon demand (with a copy of such demand to be sent to the Administrative
Agent), pay to the Administrative Agent for the account of such Lender,
additional amounts as are sufficient to compensate such Lender for such
increased costs.
(b) If any Lender shall have reasonably determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any
Capital Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or
other Governmental Authority charged with the interpretation or
administration thereof, or (iv) compliance by <301> such Lender (or its
Lending Office) or any corporation controlling <302> such Lender with any
Capital Adequacy Regulation, affects or would affect the amount of capital
required or expected to be maintained by <303> such Lender or any corporation
controlling <304> such Lender and (taking into consideration such Lender's or
such corporation's policies with respect to capital adequacy and such
Lender's customary return on capital) determines that the amount of such
capital is increased as a consequence of its Commitment, loans, credits or
obligations under this Agreement, then, upon demand of such Lender to the
Company through the Administrative Agent, the relevant Borrower shall pay to
<305> such Lender, from time to time as specified by <306> such Lender,
additional amounts sufficient to compensate <307> such Lender or such
corporation for such increase.
(c) Any provision of this Agreement stated to have effect on, after, or
as from, the Commencement Date will, to the extent that the provision relates
to any currency of a state which is not a Participating Member State on the
Commencement Date, have effect in relation to that currency on the date on
which <308> it becomes a Participating Member State.
4.04 Funding Losses
(a) Each Borrower shall reimburse each Lender and hold each Lender
harmless from any loss or expense which <309> such Lender may sustain or
incur (other than as a result of Section 4.05) as a consequence of:
(i) the failure of <310> such Borrower to make on a timely basis any payment
of principal of any Offshore Rate Loan;
(ii) the failure of such Borrower to borrow, continue or convert a Loan
after the Company has given (or is deemed to have given) a Notice of
Borrowing or a Notice of Conversion/ Continuation;
(iii) the failure of such Borrower to make any prepayment in accordance
with any notice delivered under Section 2.06;
(iv) the prepayment or other payment (including after acceleration
thereof) of an Offshore Rate Loan on a day that is not the last day of the
relevant Interest Period;
(v) the automatic conversion under Section 2.04 of any Offshore Rate Loan
to a Base Rate Loan on a day that is not the last day of the relevant
Interest Period; or
(vi) in the event that during the 180 day period following the Initial
Funding Date, the Borrowers maintain (x) more than one Offshore Rate Loan
with different Interest Periods or (y) any Offshore Rate Loan with an
Interest Period in excess of one month, any breakage costs, charges or fees
incurred by NationsBank or any co-arranger in connection with the assignment
of an Offshore Rate Loan;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Offshore Rate Loans or
from fees payable to terminate the deposits from which such funds were
obtained or from changes relating to any Offshore Currency Loans. For
purposes of calculating amounts payable by <311> a Borrower to the Lenders
under this Section and under Section 4.03(a), each Offshore Rate Loan made by
a Lender (and each related reserve, special deposit or similar requirement)
shall be conclusively deemed to have been funded at the LIBOR used in
determining the Offshore Rate for such Offshore Rate Loan by a matching
deposit or other borrowing in the interbank eurodollar market for a
comparable amount and for a comparable period, whether or not such Offshore
Rate Loan is in fact so funded.
(b) Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognized by the central bank of any
country as the lawful currency of that country, then:
(i) any reference in the Loan Documents to, and any obligations arising
under the Loan Documents in, the currency of that country shall be translated
into, or paid in, the currency or currency unit of that country designated by
the Administrative Agent; and
(ii) any translation from one currency or currency unit to another shall
be at the official rate of exchange recognized by the central bank for the
conversion of that currency or currency unit into the other, rounded up or
down by the Administrative Agent acting reasonably.
(c) If a change in any currency of a country occurs, this Agreement will
be amended to the extent the Administrative Agent specifies to be necessary
to reflect the change in currency and to put the Administrative Agent, the
Issuing Bank and each Lender in the same position, so far as possible, that
it would have been in if no change in currency had occurred.
4.05 Inability to Determine Rates
If the Administrative Agent determines that for any reason adequate and
reasonable means do not exist for determining the Offshore Rate for any
requested Interest Period with respect to a proposed Offshore Rate Loan, the
Administrative Agent will promptly so notify the Company and each Lender.
Thereafter, the obligation of the Lenders to make or maintain Offshore Rate
Loans hereunder shall be suspended until the Administrative Agent revokes
such notice in writing. Upon receipt of such notice, the Company may revoke
any Notice of Borrowing or Notice of Conversion/Continuation then submitted
by it. If the Company does not revoke such <312> notice, the Lenders shall
make, convert or continue the Loans, as proposed by the Company, in the amount
specified in the applicable notice submitted by the Company, but such Loans
shall be made, converted or continued as Base Rate Loans instead of Offshore
Rate Loans. In the case of any Offshore Currency Loans (other than Sterling
Acquisition Loans), the Borrowing or continuation shall be in an aggregate
amount equal to the Dollar Equivalent amount of the originally requested
Borrowing or continuation in the Offshore Currency, and to that end any
outstanding Offshore Currency Loans (other than Sterling Acquisition
Loans)which are the subject of any continuation shall be redenominated and
converted into Base Rate Loans in Dollars with effect from the last day of
the Interest Period with respect to any such Offshore Currency Loans.
4.06 Reserves on Offshore Rate Loans
The Company shall pay to each Lender, in respect of any Offshore Currency
Loans, additional costs arising under any applicable regulations of the
central bank or other relevant Governmental Authority in the country in which
the Offshore Currency of such Offshore Rate Loan circulates on the unpaid
principal amount of each Offshore Rate Loan equal to the actual costs of such
reserves allocated to such Loan by <313> such Lender (as determined by <314>
such Lender in good faith, which determination shall be conclusive), payable
on each date on which interest is payable on such Loan; provided the Company
shall have received at least 15 days' prior written notice (with a copy to
the Administrative Agent) of such additional interest from such Lender. If
such Lender fails to give notice 15 days prior to the relevant Interest
Payment Date, such additional interest shall be payable 15 days from receipt
of such notice.
4.07 Certificates of Lenders
Any Lender claiming reimbursement or compensation under this Article IV shall
deliver to the Company (with a copy to the Administrative Agent) a
certificate setting forth in reasonable detail the amount payable to <315>
such Lender hereunder and such certificate shall be conclusive and binding on
the Company in the absence of manifest error.
4.08 Substitution of Lenders
Upon the receipt by a Borrower from any Lender (an "Affected Lender") of a
claim for compensation under this Article IV, such Borrower may: (i) request
the Affected Lender to use commercially reasonable efforts to obtain a
replacement Lender or financial institution satisfactory to such Borrower to
acquire and assume all or a ratable part of all of such Affected Lender's
Loans, Commitments and participation in Letters of Credit (a "Replacement
Lender"); (ii) request one more of the other Lenders to acquire and assume
all or part of such Affected Lender's Loans, Commitment and participation in
Letters of Credit; or (iii) designate a Replacement Lender. Any such
designation of a Replacement Lender under clause (i) or (iii) above shall be
subject to the prior written consent of the Administrative Agent (which
consent shall not be unreasonably withheld), and any such substitution shall
in any event be effective upon satisfaction of the conditions set forth in
Section 12.08 and all then outstanding Obligations owing to such Affected Lender
shall be repaid in full on the date of any such assignment.
4.09 Survival
The agreements and obligations of the Company in this Article IV shall
survive the payment of all other Obligations.
ARTICLE <316> V
CONDITIONS PRECEDENT
5.01 Conditions to Announcement Date
The obligation of each Lender to enter into <317> the Prior Loan Document was
subject to the condition that the Administrative Agent <318> received on
or prior to the date of the Press Release each of the following, in form and
substance satisfactory to the Administrative Agent, and in sufficient copies
for each Lender:
(a) Credit Agreement
This Agreement shall be executed by each party thereto.
(b) Resolutions; Incumbency
With respect to each the Company, US Holdco #1, US Holdco #2 and Bidco:
(i) copies of the resolutions of the board of directors of such Person
authorizing the Transactions and the transactions contemplated thereby,
certified by the Secretary or an Assistant Secretary of such Person; and
(ii) a certificate of the Secretary or Assistant Secretary of such
Person, dated as of the Announcement Date, and certifying the names and true
signatures of the officers of such Person authorized to execute, deliver and
perform, as applicable, this Agreement, and all other Loan Documents to be
delivered by it hereunder.
(c) Organization Documents; Good Standing
Each of the following documents with respect to each of the Company, US
Holdco #1, US Holdco #2 and Bidco:
(i) the articles or certificate of incorporation, memorandum of
association, bylaws and board of directors resolutions of such Person as then
in effect, certified by the Secretary or Assistant Secretary of such Person;
and
(ii) a good standing certificate for such Person from the Secretary of
State (or similar, applicable Governmental Authority) of its state of
incorporation and each state where such Person is qualified to do business as
a foreign corporation as of a recent date, together with a bring-down
certificate by facsimile.
(d) Legal Opinions
An opinion addressed to the Administrative Agent and the Lenders, dated as of
the Announcement Date, (i) of Nutter, McClennen & Fish LLP, counsel to the
Company and US Holdco, substantially in the form of Exhibit D-1, (ii) of
Simmons & Simmons, special English counsel to the Company, substantially in
the form of Exhibit D-2; and (iii) of Allen & Overy, special English counsel
to the Administrative Agent, substantially in the form of Exhibit D-3.
(e) Payment of Fees
Evidence of payment by the Company of all accrued and unpaid fees, costs and
expenses to the extent then due and payable, together with Attorney Costs of
NationsBank to the extent invoiced prior to or on the Announcement Date,
including any such costs, fees and expenses arising under or referenced in
Sections 2.10 and 12.04.
(f) Certificate
A certificate signed by a Responsible Officer of the Company, dated as of the
Announcement Date:
(i) stating that the representations and warranties contained in Article
VI are true and correct on and as of such date, as though made on and as of
such date;
(ii) stating that no Default or Event of Default exists both before and
after giving effect to the Transaction; and
(iii) stating that there has occurred (x) since March 31, 1998, with
respect to the Company and its Subsidiaries and (y) to the best knowledge of
the Company since December 31, 1997 with respect to Target and its
Subsidiaries, no event or circumstance that has resulted or could reasonably
be expected to result in a material adverse change in the business, assets,
liabilities (actual or contingent), operations, condition (financial or
otherwise) or prospects of such Person.
(g) Press Release
A true and complete copy of the Press Release, certified as true and correct
by a Responsible Officer, which Press Release (including, without limitation,
any conditions to the Offer contained therein) shall (i) be in form and
substance reasonably satisfactory to the Administrative Agent, and (ii)
indicate that the Offer is recommended by the Directors of the Target, and
that such Directors are giving personal undertakings, in form and substance
acceptable to the Administrative Agent, in favor of Bidco with respect to the
Offer, and the Administrative Agent shall have received evidence satisfactory
to it that the Press Release has been released for publication at the opening
of business in London on October 26, 1998.
(h) Consent to Existing Credit Agreement
The Administrative Agent shall have received a fully executed consent
executed by the requisite lenders party to the Existing Credit Agreement with
respect to the Transaction, such consent to be in form and substance
satisfactory to the Administrative Agent, and such consent shall be in full
force and effect.
(i) Currency Fluctuations Protection
On or prior to the Announcement Date, the Company shall enter into Swap
Contracts providing protection against fluctuations in the rate of exchange
between Sterling and Dollars with one or more financial institutions each
having a combined capital and surplus of at least $100,000,000, which shall
hedge against any fluctuations in the exchange rate of Dollars against
Sterling the effect of which $160,000,000 will purchase Pounds 86,614,000,
and such Swap Contract shall <319> contain such other terms as are customary
and satisfactory to the Administrative Agent.
(j) Environment Review
Such environmental site assessments with respect to the real property of
the Company and its Subsidiaries and the Target and the Target Subsidiaries
as shall be requested by the Administrative Agent.
(k) Pro Forma Balance Sheet; Projections; and Financials
(i) A pro forma consolidated and consolidating balance sheet of the
Company and its Subsidiaries, after giving effect to the Transaction and the
related financing thereof (based on the interim financial statements of the
Company as of September 30, 1998 and of the Target as of June 30, 1998)
together with a Compliance Certificate executed by a Responsible Officer,
demonstrating compliance by the Company with Sections 9.1, 9.2 and 9.3 as of
September 30, 1998 (after giving effect to the Transaction and the related
financing thereof), which pro forma balance sheet and Compliance Certificate
shall be in form and substance acceptable to the Administrative Agent; and
(ii) Projections for the period commencing in 1998 and concluding on the
date approximately five years thereafter in form and substance acceptable to
the Administrative Agent.
(l) Solvency Certificates
Each of the Company, US Holdco #1 and US Holdco #2 shall have delivered
a Solvency Certificate substantially in the form of Exhibit K-1 hereto.
(m) Collateral Documents
The Subsidiary Guaranty executed by US Holdco #1 and US Holdco #2 and
the Company Pledge Agreement and the US Holdco Pledge Agreements, together
with:
(i) evidence satisfactory to the Administrative Agent that
there has been or will be filed, registered or recorded all filings,
registrations and recordings necessary and advisable to perfect the Liens of
the Administrative Agent for the benefit of the Lenders in accordance with
applicable law;
(ii) written advice relating to such Lien and judgment
researches as the Administrative Agent shall have requested of the Company,
and such termination statements or other documents as may be necessary to
confirm that the Collateral is subject to no other Liens in favor of any
Persons (other than Permitted Liens);
(iii) all certificates and instruments representing the Pledged
Collateral under the Company Pledge Agreement and the US Holdco Pledge
Agreements, together with stock transfer powers and other evidence or
transferability executed in blank as the Administrative Agent may specify;
and
(iv) evidence that all other actions necessary or, in the
reasonable opinion of the Administrative Agent, customary to perfect and
protect the first priority Lien created by the Collateral Documents <320>.
(n) Other Documents
Such other customary approvals, opinions, documents or materials as the
Administrative Agent may reasonably request.
5.02 Conditions of Initial Funding Date
The obligation of each Lender to make its initial Credit Extension
hereunder is subject to the condition that the Administrative Agent shall
have received executed originals of each of the following on or before such
funding date:
(a) Notes
The Notes executed by the Company.
(b) Bring Down Certificate
A certificate signed by a Responsible Officer dated as of the Initial Funding
Date, proposing any necessary changes to the Disclosure Schedules to this
Agreement occurring after the Announcement Date (provided, however, that the
Administrative Agent, in its reasonable discretion, may accept or reject such
proposed changes, but any rejection of the changes will not mean that this
condition has not been satisfied).
(c) Lender Payoff Letter
A fully executed, valid and binding bank payoff letter, or other customary
evidence of satisfaction reasonably acceptable to the Administrative Agent
fully executed and delivered by each lender to the Company and each of its
Subsidiaries (which must include the lenders under Existing Credit
Agreement) <321> being repaid on the Initial Funding Date and of the Target
and each of its Subsidiaries being repaid on the Business Day following the
Initial Funding Date, in each case stating the total amount due under any
credit and loan documents or agreements with such lenders, as the case may
be, howsoever due and owing (whether as principal, interest or premium) shall
be satisfied (and such agreements terminated) upon payment of an amount
certain, together with such lien releases and other customary payoff
documents as the Administrative Agent shall reasonably require; provided,
however, that (x) the aggregate amount of such Debt of the Company and its
Subsidiaries (including Target and its Subsidiaries) covered by such payoff
letters shall not exceed <322> $205,000,000, and (y) any Debt of the Company
or its Subsidiaries or the Target and its Subsidiaries not being repaid must
be permitted Debt under Section 8.01.
(d) Solvency Certificates
A written solvency certificate from a Responsible Officer of the Company in
the form of Exhibit K-1, with respect to Bidco in the form of Exhibit K-2,
and with respect to Target in the form of Exhibit L, each dated as of the
Initial Funding Date, with respect to the Solvency of each such Person on a
consolidated basis after giving effect to the Transaction (except that the
certification with respect to Target and its Subsidiaries will be as of the
Unconditional Date).
(e) Resolutions; Incumbency
With respect to each Subsidiary Guarantor (other than US Holdco #1
and US Holdco #2):
(i) copies of the resolutions of the board of directors of such Person
authorizing the Transactions and the transactions contemplated thereby,
certified by the Secretary or an Assistant Secretary of such Person; and
(ii) a certificate of the Secretary or Assistant Secretary of such
Person, dated as of the Initial Funding Date, and certifying the names and
true signatures of the officers of such Person authorized to execute, deliver
and perform, as applicable, this Agreement, and all other Loan Documents to
be delivered by it hereunder.
(f) Organization Documents; Good Standing
Each of the following documents with respect to each Subsidiary Guarantor
(other than US Holdco #1 and US Holdco #2):
(i) the articles or certificate of incorporation, memorandum of
association, bylaws and board of directors resolutions of such Person as then
in effect, certified by the Secretary or Assistant Secretary of such Person;
and
(ii) a good standing certificate for such Person from the Secretary of
State (or similar, applicable Governmental Authority) of its state of
incorporation and each state where such Person is qualified to do business as
a foreign corporation as of a recent date, together with a bring-down
certificate by facsimile.
(g) Collateral Documents
The Company Guaranty, Subsidiary Guaranty and Subsidiary Guarantor Pledge
Agreement, in each case executed by each Subsidiary Guarantor <323>,
together with:
(i) evidence reasonably satisfactory to the Administrative Agent that
there has been or will be filed, registered or recorded all filings,
registrations and recordings necessary and advisable to perfect the Liens of
the Administrative Agent for the benefit of the Lenders in accordance with
applicable law;
(ii) written advice relating to such Lien and judgment searches as the
Administrative Agent shall have reasonably requested of the Company, and such
termination statements or other documents as may be necessary to confirm that
the Collateral is subject to no other Liens in favor of any Persons (other
than Permitted Liens);
(iii) all certificates and instruments representing Pledged Collateral
under the Pledge Agreements <324> (other than with respect to the Foreigh
Subsidiaries listed on Schedule 5.02. each a "Specified Foreigh Subsidiary"),
together with undated stock transfer powers and other evidence <325> of
transferability executed in blank as the Administrative Agent may
reasonably specify; and
(iv) evidence that all other actions necessary or, in the reasonable
opinion of the Administrative Agent, customary to perfect and protect the
first priority Lien created by the Collateral Documents has been taken;
provided, however, that the Lenders hereby acknowledge and agree that their
obligations to make <326> any Loan to enable the Company
to facilitate the purchase of Target Shares and pay off the Existing Credit
Agreement during the Certain Funds Period will not be dependent upon the
satisfaction of this clause (iv).
(h) Completion of Offer
The Administrative Agent shall have received evidence that each of the
following has occurred on the Initial Funding Date or will occur on the
Business Day following the Initial Funding Date, certified by a Responsible
Officer of the Company:
(i) evidence that the Offer shall have been declared and/or become
unconditional in all respects and that valid acceptances relating to the
number of Target Shares to which the Offer relates referred to in Section
7.12(f) have been received and have not (where permitted) been withdrawn; and
(ii) a certificate in form and substance acceptable to the Administrative
Agent from the Company, <327> certifying as to compliance with, and the
receipt of any consents or waivers required by the terms and conditions of
Sections 7.12 (a), (c) and (j) and 8.02.
(i) Legal Opinion
An opinion addressed to the Administrative Agent and the Lenders,
dated as of the Initial Funding Date, of Nutter, McClennen & Fish LLP,
updating their opinion delivered pursuant to Section 5.01(d)(i) to bring down
the opinions therein, expand the coverage of the opinion to include all
guarantors and each Collateral Document being executed at such time and cover
such other customary matters as the Administrative Agent shall reasonably
request, such opinion to be in form and substance satisfactory to the
Administrative Agent; provided, however, that the Lenders hereby acknowledge
and agree that their obligation to make <328> any Loan to
enable the Company to facilitate the purchase of Target Shares and pay off
the Existing Credit Agreement during the Certain Funds Period will not be
dependent upon the satisfaction of this clause (i).
(j) Applicable Margin Certificate
A certificate delivered to the Administrative Agent on the Initial
Funding Date, executed by a Responsible Officer, delineating the Applicable
Margin after giving pro forma effect to the Loans to be incurred on the
Initial Funding Date and the consummation of the Transaction, the form and
substance of such certificate to be satisfactory to the Administrative Agent;
provided, however, that the Lenders hereby acknowledge and agree that their
obligation to make <329> any Loan to enable the Company to
facilitate the purchase of Target Shares and pay off the Existing Credit
Agreement during the Certain Funds Period will not be dependent upon the
satisfaction of this clause (j).
(k) Application of Swap Contract Proceeds
Prior to the incurrence of any Loan to purchsae Target Shares,
the Company shall liquidate the Swap Contract referred to in Section 5.01(i)
and utilize 100% of the proceeds thereof, if any, together with any proceeds
of any other forward or exhchange contracts (as reasonably determined by the
Administrative Agent) to effect the Transaction.
(l) Payment of Fees
Evidence of payment by each Borrower of all accrued and unpaid
fees, costs and expenses to the extent then due and payable on the Initial
Funding Date, together with Attorney Costs of NationsBank to the extent
invoiced prior to or on the Initial Funding Date; including any such costs,
fees and expenses arising under or referenced in Sections 2.10 and 12.04;
provided, however, that the Lenders hereby acknowledge and agree that their
obligation to make <330> any Loan to the Company to
facilitate the purchase of Target Shares and the payoff of the Existing
Credit Agreement during the Certain Funds Period will not be dependent upon
the satisfaction of this clause (l).
(m) Other Documents
Such other customary approvals, opinions, documents or materials as
in the Administrative Agent may reasonably request; provided, however, that
the Lenders hereby acknowledge and agree that their obligation to make
<331> any Loan to the Company to facilitate the purchase of
Target Shares and the payoff of the Existing Credit Agreement during the
Certain Funds Period will not be dependent upon the satisfaction of this
clause (m).
5.03 Conditions to All Credit Extensions
The obligation of each Lender to make any Loan to be made by it (including
its initial Loan) or to continue or convert any Loan under Section 2.04 and
the obligation of the Issuing Bank to Issue <332> any Letter of
Credit (including the initial Letters of Credit) is subject to the
satisfaction of the following conditions precedent on the relevant Borrowing
Date or Issuance Date:
(a) Notice, Application
The Administrative Agent shall have received (with, in the case of the
initial Loans only, a copy for each Lender) a Notice of Borrowing in the form
of Exhibit A-1 or, in the case of any Issuance of any Letter of Credit, the
Issuing Bank and the Administrative Agent shall have received an L/C
Application or L/C Amendment Application, as required under Section 3.02.
(b) Continuation of Representations and Warranties
The representations and warranties in Article VI shall be true and correct in
all material respects on and as of such Borrowing Date or Issuance Date with
the same effect as if made on and as of such Borrowing Date, or Issuance Date
(except to the extent such representations and warranties expressly refer to
an earlier date, in which case they shall be true and correct as of such
earlier date); provided, however, that notwithstanding the provisions of this
clause (b) (but subject to compliance with Sections 5.01 and 5.02), at any
time during the Certain Funds Period the obligations of the Lenders to make
any <333> Loan to enable the Company to fund the
purchase by Bidco of Target Shares and the repayment of loans under the
Existing Credit Agreement are only subject to the condition that, at the time
of the making of such Loan, the Relevant Representations and Warranties are
true and correct in all material respects; and
(c) No Existing Default
No Default or Event of Default shall exist or shall result after giving
effect to such Borrowing (or continuation or conversion) or Issuance (or
amendment or renewal); provided, however, that notwithstanding the provisions
of this clause (c) (but subject to compliance with Sections 5.01 and 5.02),
at any time during the Certain Funds Period, the obligations of the Lenders
to make any <334> Loans to enable the Company to fund
the purchase by Bidco of Target Shares and the repayment of loans under the
Existing Credit Agreement, are only subject to the condition that, at the
time of the making of such Loan, no Relevant Event of Default has occurred
and is continuing or would result after giving effect to such Loan.
Each Notice of Borrowing, Notice of Continuation/Conversion, L/C Application
or L/C Amendment Application submitted by a Borrower hereunder shall
constitute a representation and warranty by such Borrower hereunder, as of
the date of each such notice or application and as of each Borrowing Date or
Issuance Date, as applicable, that the conditions in this Section 5.03 are
satisfied and the statements in clause (b) above are deemed remade as of such
date. For purposes of the immediately preceding sentence and Section 10.02,
each of the representations and warranties contained in Article VI and any
obligation to make delivery of documents hereunder shall be deemed to have
been made notwithstanding the fact the Lenders may be required to make Loans
during the Certain Funds Period, and any Default or Event of Default that may
exist under Section 10.01(b) on the date such Loan is made shall not be
deemed to have been waived as a result of such Loan.
5.04 First Borrowing by Each Eligible Borrower
The obligation of each Lender to make a Loan or issue a Letter of Credit on
the occasion of the first Borrowing request or first request for issuance of
a Letter of Credit by each Eligible Borrower is subject to the satisfaction
of the following further conditions:
(a) receipt by the Administrative Agent for the account of each Lender of
a duly executed Note in the form of Exhibit F-1 and Exhibit F-4 of such
Eligible Borrower dated on or before the date of such Borrowing;
(b) receipt by the Administrative Agent of an Authorization Letter duly
executed by such Eligible Borrower;
(c) receipt by the Administrative Agent of an Election to Participate
duly executed by such Eligible Borrower;
(d) receipt by the Administrative Agent of <335> a Subsidiary Guaranty
duly executed by such Eligible Borrower that is a Domestic Subsidiary;
(e) receipt by the Administrative Agent of such certificates, together
with executed and undated stock powers, of such Eligible Borrower or where
such Eligible Borrower is a Foreign Subsidiary, of the first-tier Foreign
Subsidiary parent entity of such Eligible Borrower and, in the case of an
Eligible Borrower that is a Domestic Subsidiary, intercompany notes endorsed
in blank;
(f) receipt by the Administrative Agent of an opinion of counsel for such
Eligible Borrower acceptable to the Administrative Agent and covering such
matters relating to the transactions contemplated hereby as the
Administrative Agent may reasonably request; provided, however, that in the
event that such opinion is not delivered on the date of such first Borrowing,
then such opinion shall be delivered no later than the 30th day following
such date and the aggregate Effective Amount of Revolving Loans and L/C
Obligations of all such Eligible Borrowers for which opinions have not been
delivered shall not at any time exceed $10,000,000 prior to the date such
opinion is delivered in compliance with this clause (e);
(g) receipt by the Administrative Agent of all documents which it may
reasonably request relating to the existence of such Eligible Borrower, the
corporate authority for and the validity of this Agreement, the Authorization
Letter, the Election to Participate and the Notes of such Eligible Borrower,
and any other matters relevant thereto, all in form and substance
satisfactory to the Administrative Agent;
(h) receipt by the Administrative Agent of a letter from US Corporation
System in New York, New York<336> (or such other agent to receive service of
process in New York, New York reasonably acceptable to the Administrative
Agent), indicating its consent to its appointment by such Eligible Borrower
as its agent to receive service of process; and
(i) the representations and warranties contained in Section 6.25 shall be
true and correct on and as of the date of such Borrowing as though made on
and as of such date, and no Default or Event of Default shall have occurred
and be continuing, or would result from such Loans.
Except as otherwise provided in Section 5.04(f), the opinion referred to in
Section 5.04(f) above shall be dated no more than five Business Days before
the date of the first Borrowing by such Eligible Borrower hereunder.
ARTICLE VI REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative Agent and
each Lender that:
6.01 Incorporation, Good Standing and Due Qualification. Each of
the Company and its Subsidiaries (other than Elnic, Inc. which is a dormant
corporation (a) is duly incorporated, validly existing
and in good standing under the laws of the jurisdiction of its incorporation,
has the corporate power and authority to own its assets and to transact the
business in which it is now engaged, and (b) is duly qualified as a foreign
corporation and in good standing under the laws of each other jurisdiction in
which such qualification is required except where failure to be so qualified
would not have a material adverse effect on the Company's business as a whole
or its properties, condition (financial or otherwise) or operation.
6.02 Corporate Power and Authority; No Conflicts. The execution,
delivery and performance by <337> the Company and each <338> Subsidiary
<339> of the Offer Documents and the Loan Documents to which it is a
party are within its corporate power, have been duly authorized by all
necessary corporate action and do not and will not: (a) require any consent
or approval of its stockholders; (b) contravene its charter or by-laws; (c)
violate any provision of, or require any filing (except for the filing of
this Agreement with the Securities and Exchange Commission and the New York
Stock Exchange), registration, consent or approval under, any law, rule,
regulation (including Regulation U <340> of the FRB), order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to the Company or any of its Subsidiaries or affiliates; (d)
result in a breach of, or constitute a default or require any consent (except
for those consents which have been obtained) under, any indenture or loan or
credit agreement or any other agreement, lease or instrument to which <341>
the Company or any of its Subsidiaries is a party or by which it or its
properties may be bound; (e) result in, or require, the creation or
imposition of any Lien upon or with respect to any of the properties now
owned or hereafter acquired by the Company or any of its Subsidiaries; or (f)
cause the Company (or any Subsidiary or affiliate, as the case may be) to be
in default under any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or any such indenture, agreement,
lease or instrument.
6.03 Legally Enforceable Agreements. Each Loan Document to which
the Company or any <342> of its Subsidiaries is a party is, or when delivered
under this Agreement will be, a legal, valid and binding obligation of the
Company or such <343> Subsidiary, as applicable, enforceable against the
Company or such <344> Subsidiary, as applicable, in accordance with its
terms, except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability and the time barring of claims under any applicable
limitations act.
6.04 Litigation. Except as disclosed on Schedule 6.04, there are no
actions, suits or proceedings pending or, to the knowledge of the Company,
threatened <345> against or affecting the Company or any of its Subsidiaries
before any court, governmental agency or arbitrator, which, in any one case
or in the aggregate, would have a reasonable likelihood of having a material
adverse effect on the financial condition, operations, properties or business
of the Company and its Subsidiaries as taken as a whole or the ability of the
Company or any <346> of its Subsidiaries to perform its obligation under the
Loan Documents to which it is a party.
6.05 Financial Statements; SEC Filings.
(a) Attached hereto as Schedule 6.05(a) is a true and correct
copy of the audited consolidated balance sheet of the Company and its
Consolidated Subsidiaries as at March 31, 1998, and the related consolidated
statements of income and statements of cash flows and changes in
stockholders' equity of the Company and its Consolidated Subsidiaries for the
fiscal year then ended, and the accompanying footnotes, together with the
opinion thereon, of KPMG Peat Marwick LLP, independent certified public
accountants, a copy of which is contained in Schedule 6.05(a), and such
financial statements present fairly in all material respects the financial
condition of the Company and its Consolidated Subsidiaries as at such date
and the results of the operations of the Company and its Consolidated
Subsidiaries for the periods covered by such statements, all in accordance
with generally accepted accounting principles. Since March 31, 1998, there
has been no material adverse change in the business, financial position or
results of operations of the Company and its Subsidiaries. The Company has
timely made all filings required of it with the Securities and Exchange
Commission and is in material compliance with all securities laws applicable
to it.
(b) (i) Attached hereto as Schedule 6.05 is a true and correct
copy of the audited financial statements of the Target for the fiscal years
ended December 31, 1995, December 31, 1996 and December 31, 1997, together
with the opinion thereon<347> of Price Waterhouse, independent certified
public accountants, a copy of which is contained in Schedule 6.05(b), and to
the knowledge of the Company, such financial statements give a true and fair
view of the state of affairs of Target and its Subsidiaries as at such dates
and of the profit and cash flows of Target and its Subsidiaries for the years
then ended and have been properly prepared in accordance with the Companies
Act of 1985.
(ii) Since December 31, 1997, there has been no material
adverse change in the business, financial position or results of operations
of Target and its Subsidiaries; provided, however, that up to and including
the Initial Funding Date this representation and warranty contained in this
clause (ii) shall be deemed to have been made only to the best knowledge of
the Company.
6.06 Taxes. Each of the Company and its Subsidiaries has filed all
United States Federal income tax returns and all other material tax returns
required to be filed and has paid all taxes, assessments and governmental
charges and levies shown thereon to be due, including interest and penalties,
except for those which are being contested in good faith and by appropriate
proceedings diligently conducted. The federal income tax liability of the
Company and its Subsidiaries has been audited by the Internal Revenue Service
and has been finally determined and satisfied for all taxable years up to and
including the taxable year ended March 31, 1994 (other than with respect to
any research and development credit attributable to any taxable year prior to
March 31, 1994). The charges, accruals and reserves on the books of the
Company and its Subsidiaries with respect to taxes or other governmental
charges are adequate in the opinion of the Company.
6.07 ERISA. Each member of the ERISA Group has fulfilled its
obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code with respect to each
Plan. No member of the ERISA Group has (a) sought a waiver of the minimum
funding standard under Section 412 of the Code in respect of any Plan, (b)
failed to make any contribution or payment to any Plan or Multiemployer Plan
or in respect of any Benefit Arrangement, or made any amendment to any Plan
or Benefit Arrangement, which has resulted or could result in the imposition
of a Lien or the posting of a bond or other security under ERISA or the Code
or (c) incurred any liability under Title IV of ERISA other than a liability
to the PBGC for premiums under Section 4007 of ERISA.
6.08 Subsidiaries and Ownership of Stock. Schedule 6.08 is a
complete and accurate list of Subsidiaries of the Company as of the date
hereof, showing the jurisdiction of incorporation or organization of each
Subsidiary and showing the percentage of the Company's ownership of the
outstanding capital stock or other ownership interest of each such
Subsidiary. Except as set forth on Schedule 6.08, all of the outstanding
capital stock or other ownership interest of each such Subsidiary has been
validly issued, is fully paid and nonassessable and if owned by the Company
is free and clear of all Liens.
6.09 Credit Arrangements. As of <348> September 30, 1998, Schedule
6.09 (as such Schedule is updated on the Initial Funding Date with the
consent of the Administrative Agent) is a
complete and correct list of all Debt of the Company and its Subsidiaries
outstanding pursuant to which in each case the Company or its Subsidiaries
are or may be, in any manner, directly or contingently, obligated in an
amount equal to or greater than $1,000,000 and all Liens existing securing
Debt outstanding.
6.10 No Default on Outstanding Judgments or Orders. Each of the
Company and its Subsidiaries has satisfied all material judgments, and
neither the Company nor any of its Subsidiaries is in default with respect to
any material judgment, writ, injunction, decree, rule or regulation of any
court, arbitrator or federal, state, municipal or other governmental
authority, commission, board, bureau, agency or instrumentality, domestic or
foreign.
6.11 Governmental Regulation. Neither the Company nor any of its
Subsidiaries is a "holding company" or a "public utility" within the meaning
of the Public Utility Holding Company Act of 1935, or an "investment company"
or a company "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended, or an "investment advisor"
within the meaning of the Investment Advisors Act of 1940, as amended.
6.12 Environmental Matters. Except as disclosed in Schedule 6.12,
each of the Company and its Subsidiaries is in compliance with all applicable
Environmental Laws, and neither the Company nor any of its Subsidiaries has
any fixed or contingent liability under any Environmental Law applicable to
the business, operations or properties of the Company or any of its
Subsidiaries (for purposes of this Section 6.12, "liabilities" shall include
liabilities for any capital or operating expenditures required for clean-up
or closure of properties presently or previously owned, any capital or
operating expenditures required to achieve or maintain compliance with
environmental protection standards imposed by law or as a condition of any
license, permit or contract, any related constraints on operating activities,
including any losses or expenses relating to periodic or permanent shutdown
of any facility or reduction in the level of or change in the nature of
operations conducted thereat, any costs or liabilities in connection with
off-site disposal of wastes or Hazardous Substances, and any actual or
potential liabilities to third parties, including employees, and any related
costs and expenses), except in each case where the amount of the liabilities
associated with such noncompliance and the amount of such fixed or contingent
liabilities does not exceed in the aggregate $5,000,000. For purposes of
determining the liability of the Company and its Subsidiaries with respect to
any remedial obligation imposed pursuant to the Comprehensive Environmental
Response Compensation and Liability Act, as amended, or other similar laws,
whether state or federal, the Company and the Lenders shall take account of
the contribution obligations of other potentially responsible parties
associated with such remedial obligation.
6.13 Margin Stock. As of the Announcement Date, the fair market
value of all margin stock (as defined in Regulation U of the FRB, 12 CFR
Section 221.2(h)) owned by the Company and its Subsidiaries does not exceed
$150,000 (not including any shares of the Company's Common Stock held in the
MacDermid, Incorporated Employee Pension Plan, the MacDermid, Incorporated
Employees Profit Sharing Plan and the MacDermid, Incorporated Employee Stock
Ownership Plan and 14,256,410 shares of Common Stock held in the Company's
treasury as of the Announcement Date).
6.14 Full Disclosure. All information heretofore furnished by the
Company or any of its Subsidiaries to the Administrative Agent or any Lender
for purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all such information hereafter furnished by the
Company to the Administrative Agent or any Lender will be, true and accurate
in all material respects on the date as of which such information is stated
or certified. The Company has disclosed to the Lenders any and all facts,
other than general economic conditions, which materially and adversely affect
or may affect (to the extent the Company can now reasonably foresee) the
business, operations or financial condition of the Company and its
Subsidiaries, taken as a whole, or the ability of the Company or any of its
Subsidiaries to perform their respective obligations under any Loan Document.
6.15 Collateral Documents.
(a) The provisions of each Pledge Agreement are effective to
create, in favor of the Administrative Agent for the benefit of the Lenders,
a legal, valid and enforceable security interest in all of the collateral
described therein; and the Pledged Collateral was delivered to the
Administrative Agent or its nominee in accordance with the terms thereof.
The Lien of each Pledge Agreement constitutes a perfected, first priority
security interest in all right, title and interest of a Borrower or its
Subsidiary, as the case may be, in the Collateral described therein, prior
and superior to all other Liens and interests.
(b) All representations and warranties of a Borrower and any of
its Subsidiaries party thereto contained in the Collateral Documents are true
and correct in all material respects.
6.16 Solvency
The Company and its Subsidiaries, on a consolidated basis, are Solvent, and,
on and after the Initial Funding Date, US Holdco #1, US Holdco #2 and Bidco,
each on a stand alone basis, and the Target and its Subsidiaries, on a
consolidated basis are, Solvent.
6.17 Labor Relations
There are no strikes, lockouts or other material labor disputes against the
Company or any of its Subsidiaries, or, to the best of the Company's
knowledge, threatened against or materially affecting the Company or any of
its Subsidiaries, and no significant unfair labor practice complaint is
pending against the Company or any of its Subsidiaries or, to the best
knowledge of the Company, threatened against or materially affecting any of
them before any Governmental Authority.
6.18 Copyrights, Patents, Trademarks and Licenses, etc.
Except as set forth on Schedule 6.18 <349> hereto, the Company or a
Subsidiary owned or <350> is licensed or otherwise <351> has the right to use
all of the patents, trademarks, service marks, trade names, copyrights,
contractual franchises, authorizations and other rights that are material to
the operation of their respective businesses, without conflict by, or with
the rights of any other Person. To the best knowledge of the Company, no
slogan or other advertising device, product, process, method, substance, part
or other material employed by the Company or any of its Subsidiaries
infringes upon any rights held by any other Person. Except as set forth on
Schedule 6.18 <352> hereto, no claim or litigation regarding any of the
foregoing is pending or to the knowledge of the Company threatened, and no
patent, invention, device, application, principle or any statute, law, rule,
regulation, standard or code is pending or, to the knowledge of the Company,
proposed, which, in either case, could reasonably be expected to have a
material adverse change in the business, financial position or results of
operations of the Company and its Subsidiaries.
6.19 Broker's; Transaction Fees
Neither the Company nor any of its Subsidiaries has any obligation to any
Person in respect of any finder's, broker's or investment banker's fee in
connection with the Transaction except as disclosed on Schedule 6.19.
6.20 Insurance
The properties of each of the Company and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the
Company, in such amounts, with such deductibles and covering such risks as
are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Company or such Subsidiary
operates.
6.21 Swap Obligations
Neither the Company nor any of its Subsidiaries has incurred any outstanding
obligations under any Swap Contracts, other than Permitted Swap Obligations.
The Company has undertaken its own independent assessment of its consolidated
assets, liabilities and commitments and has considered appropriate means of
mitigating and managing risks associated with such matters and has not relied
on any swap counterparty or any Affiliate of any swap counterparty in
determining whether to enter into any Swap Contract. All of the Swap
Contracts of the Company and its Subsidiaries in effect as of the date of
this Agreement are set forth on Schedule 6.21.
6.22 Transaction Agreements
The agreements in connection with the Transaction (including, without
limitation, the Press Release, the Offer Documents and the
agreements relating to the refinancing of certain Debt of the Target and
certain Target Subsidiaries) ("Transaction Agreements") are, or when
executed (or released in the case of the Press Release) will be, in full
force and effect, and if previously executed, have not been terminated,
rescinded or withdrawn, and no material portion thereof has been amended or
waived by any party except as permitted pursuant to the terms and conditions
contained in Section 7.12. As of the Initial Funding Date, all requisite
approvals by governmental authorities and regulatory bodies having
jurisdiction over the Company and other Persons referenced therein, with
respect to the transactions contemplated by the Transaction Agreements, have
been obtained, and no such approvals impose any conditions to the
consummation of the transactions contemplated by the Transaction Agreements
or to the conduct in any material respect by the Company and its Subsidiaries
of its business thereafter. To the best of the Company's knowledge, none of
any Person's representations or warranties in the Transaction Agreements
contain any untrue statement of a material fact or omit any fact necessary to
make the facts necessary to make the statements contained therein not
misleading in light of the circumstances in which made.
6.23 Governmental Authorization
In connection with the Transaction and the Offer, no approval, consent,
exemption, authorization, or other action by, or notice to, or filing (other
than pursuant to the Collateral Documents) with, any Governmental Authority
is materially necessary or required in connection with the execution,
delivery or performance by, or enforcement against, a Borrower or any of its
Subsidiaries of the Agreement, any other Loan Document or any other
Transaction Agreement other than (a) those approvals, consents, exemptions
and authorizations which have already been obtained, (b) any consent or
dispensations in connection with Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, and appropriate clearances from the Office of Fair
Trading, each of which will be obtained on or prior to the Initial Funding
Date and (c) the registration of certain of the Collateral Documents as
required by Section 395 of the Companies Act.
6.24 Year 2000 Compliance
On the basis of an investigation made by Company and each of its
Subsidiaries, the Company to the best of its knowledge reasonably believes
that the "Year 2000 problem" (that is, the risk that computer applications
used by the Company and its Subsidiaries may be unable to recognize and
perform properly date-sensitive functions involving certain dates prior to
and any date after December 31, 1999) will not result in a material adverse
change in the business, financial position or results of operations of the
Company and its Subsidiaries.
6.25 Representations of Eligible Borrowers.
Each Eligible Borrower shall be deemed by the execution and delivery of its
Election to Participate to have represented and warranted as of the date
thereof that:
(a) It is a corporation duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation and is a
Wholly-Owned Consolidated Subsidiary of the Company;
(b) The execution and delivery by it of its Authorization Letter,
its Election to Participate, the Subsidiary Guaranty (in the case of a
Domestic Subsidiary only), the Subsidiary Pledge Agreement (in the case of a
Domestic Subsidiary only) and its Notes, and the performance by it of this
Agreement and the other Loan Documents to which it is a party are within its
corporate powers; have been duly authorized by all necessary corporate
action; require no action by or in respect of, or filing with, any
governmental body, agency or official; do not contravene, or constitute a
default under, any provision of any applicable law or regulation or of its
certificate of incorporation or by-laws or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Company or
such Eligible Borrower; and will not result in the creation or imposition of
any Lien on any asset of the Company or any of its Subsidiaries other than
Permitted Liens;
(c) This Agreement and each other Loan Document to which it is a
party constitutes a legal, valid and binding obligation of such Eligible
Borrower, enforceable against such Eligible Borrower in accordance with its
terms, except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability and the time barring of claims under any applicable
limitations act;
(d) Except as disclosed in such Election to Participate, there is
no income, stamp or other tax of any country, or any taxing authority thereof
or therein, in the nature of withholding or otherwise, which is imposed on
any payment to be made by such Eligible Borrower pursuant hereto or on any of
its Notes, or is imposed on or by virtue of the execution, delivery,
performance or enforcement of its Election to Participate or any of its
Notes.
ARTICLE VII AFFIRMATIVE COVENANTS
On and after the Announcement Date, so long as any Lender shall have any
Commitment hereunder, or any Loan or other Obligation shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, unless the
Majority Lenders waive compliance in writing:
7.01 Reporting Requirements. The Company shall furnish directly to the
Administrative Agent (and the Administrative Agent shall promptly furnish a
copy to the Lenders):
(a) as soon as available and in any event within 90 days after the
end of each fiscal year of the Company, a consolidated and consolidating
balance sheet of the Company and its Consolidated Subsidiaries as of the end
of such fiscal year and the related consolidated and consolidating statements
of income and consolidated statements of cash flows and changes in
stockholders' equity of the Company and its Consolidated Subsidiaries for
such fiscal year, all in reasonable detail and stating in comparative form
the respective consolidated and consolidating figures for the corresponding
date and period in the prior fiscal year and (i) in the case of the
consolidated statements, all reported on in a manner acceptable to the
Securities and Exchange Commission by KPMG Peat Marwick LLP or other
independent public accountants of nationally recognized standing, and (ii) in
the case of consolidating statements, all certified as to fairness of
presentation, compliance with generally accepted accounting principles and
consistency by a Responsible Officer of the Company;
(b) as soon as available and in any event within 60 days after the
end of each of the first three quarters of each fiscal year of the Company, a
consolidated and consolidating balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such quarter and the related
consolidated and consolidating statements of income and consolidated
statements of cash flows and changes in stockholders' equity of the Company
and its Consolidated Subsidiaries for such quarter and for the period
commencing at the end of the previous fiscal year and ending with the end of
such quarter, all in reasonable detail and stating in comparative form the
respective consolidated figures as of the end of and for the corresponding
quarter and the corresponding year-to-date period in the previous fiscal
year, and certified by a Responsible Officer of the Company (subject to year
end adjustments and the omission of notes permitted by the applicable
regulations of the Securities and Exchange Commission to be excluded from
quarterly reports filed on Form 10-Q) as to fairness of presentation,
compliance with generally accepted accounting principles and consistency;
(c) simultaneously with the delivery of each set of financial
statements referred to in Sections 7.01(a) and 7.01(b) <353>, a certificate
of a Responsible Officer of the Company in the form of Exhibit C hereto (a
"Compliance Certificate") (i) setting forth in reasonable detail the
calculations required to establish whether the Company was in compliance with
the requirements of Sections 8.01 through 8.04, inclusive, and Sections 8.06,
9.01, 9.02 and 9.03 on the date of such financial statements, (ii) certifying
as to the ratio for the twelve-month period then ending of the Debt of the
Company and its Consolidated Subsidiaries on a consolidated basis to its
Consolidated EBITDA for such period, and (iii) stating whether any Default or
Event of Default exists on the date of such certificate and, if any Default
or Event of Default then exists, setting forth the details thereof and the
action which the Company is taking or proposes to take with respect thereto;
(d) within ten days after any officer of the Company obtains
knowledge of any Default or Event of Default, if such Default or Event of
Default is then continuing, a certificate of a Responsible Officer of the
Company setting forth the details thereof and the action which the Company is
taking or proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or
their equivalents) which the Company shall file with the Securities and
Exchange Commission;
(g) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows that
the Plan administrator of any Plan has given or is required to give notice of
any such reportable event to the PBGC, a copy of such notice; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA or
notice that any Multiemployer Plan is in reorganization, is insolvent or has
been terminated, a copy of such notice; (iii) receives notice from the PBGC
under Title IV of ERISA of an intent to terminate, impose liability (other
than for premiums under Section 4007 of ERISA) in respect of, or appoint a
trustee to administer any Plan, a copy of such notice; (iv) applies for a
waiver of the minimum funding standard under Section 412 of the Code, a copy
of such application; (v) gives notice of intent to terminate any Plan under
Section 4041(c) of ERISA, a copy of such notice and other information filed
with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any
payment or contribution to any Plan or Multiemployer Plan or in respect of
any Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security, a certificate of a Responsible
Officer of the Company setting forth details as to such occurrence and
action, if any, which any member of the ERISA Group is required or proposes
to take;
(h) promptly after the commencement thereof, notice of all actions,
suits and proceedings before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
affecting the Company or any of its Subsidiaries which have a reasonable
likelihood of a material adverse effect on the financial condition,
properties, or operations of the Company and its Subsidiaries taken as a
whole;
(i) if, at any time, the Company shall become aware or have
reasonable cause to believe (i) that Hazardous Substances or solid wastes
have been released, or have otherwise come to be located, on or in or have
begun to affect any real property owned or leased by the Company or any
Subsidiary or that any liability arising out of the violation of any
Environmental Laws has arisen, including liability for off-site environmental
conditions, or (ii) that a notice has been received from any governmental
body or other party seeking any information or alleging any violation of any
Environmental Laws or alleging any liability with regard to any real property
owned or leased by the Company or any Subsidiary or off-site environmental
conditions, in either case which shall have a reasonable likelihood of
materially impairing the Borrowers' ability to meet their obligations under
the Loan Documents, <354> notice of that event <355>;
(j) such other information respecting the condition or operations,
financial or otherwise, of the Company or any of its Subsidiaries as the
Administrative Agent or any Lender may from time to time reasonably request;
and
(k) if, at any time, the Company shall wish to add any information
or material to the Schedules to this Agreement, it shall propose such
additions to the Agent and the Lenders, provided that such Schedules shall
only be amended with the consent of the Majority Lenders, which they may
withhold in their sole discretion (which consent will not be unreasonably
withheld).
7.02 Payment of Obligations. The Company will pay and discharge, and
will cause each Subsidiary to pay and discharge, at or before maturity or in
accordance with the Company's customary trade practices, all their respective
material obligations and liabilities, including tax liabilities, except where
the same may be contested in good faith by appropriate proceedings, and will
maintain, and will cause each Subsidiary to maintain, in accordance with
generally accepted accounting principles, appropriate reserves for the
accrual of any of the same.
7.03 Maintenance of Property; Insurance.
(a) The Company will maintain, and will cause each Subsidiary to
maintain, all property useful and necessary in its business in good working
order and condition, ordinary wear and tear excepted.
(b) To the extent that insurance is reasonably available to the
Company and its Subsidiaries at a price comparable to the price paid by other
Persons in the same or similar types of business conducted by the Company
<356> or the relevant Subsidiary, the Company will, and will cause each of
its Subsidiaries to, maintain (either in the name of the Company or in such
Subsidiary's own name) with financially sound and responsible insurance
companies, insurance on all their respective properties in at least such
amounts and against at least such risks (and with such risk retention) as are
(i) insured against under the policies of insurance of the Company and its
Subsidiaries set forth on the schedule previously provided by the Company to
the Lenders or (ii) usually insured against in the same general area by
companies of established repute engaged in the same or a similar business;
and will furnish to the Lenders, upon request from the Administrative Agent,
information presented in reasonable detail as to the insurance so carried.
To the extent such insurance is not obtained, the Company will adopt, in lieu
of or supplemental to such insurance, such other plan or method of
protection, whether by the establishment of an insurance fund or a reserve to
be held and applied to casualty losses, or otherwise, satisfactory to the
Lenders and conforming to the practices of similar <357> corporations' self-
insurance.
7.04 Conduct of Business and Maintenance of Existence. The Company will
continue, and will cause each Subsidiary to continue, to engage in business
of the same general type as now conducted by the Company and its Subsidiaries
(i.e., the business of specialty chemicals and related equipment), and will
preserve, renew and keep in full force and effect as necessary, and will
cause each Subsidiary to preserve, renew and keep in full force and effect as
necessary (a) their respective corporate existence and (b) their respective
permits, licenses, certifications, approvals, rights, privileges and
franchises necessary or desirable in the normal conduct of business; provided
that nothing in this Section 7.04 shall prohibit (i) the merger or
consolidation of a Subsidiary with or into another Person if the corporation
surviving such consolidation or merger is a Wholly-Owned Subsidiary or the
merger of a Subsidiary into the Company if, in each case, after giving effect
thereto, no Default or Event of Default shall have occurred and be
continuing, or (ii) the termination of the corporate existence of any
Subsidiary if (A) such termination is not materially disadvantageous to the
Lenders and the Company in good faith determines that such termination is in
the best interest of the Company or (B) such termination is in compliance
with Section 8.05 <358>(ii).
<359>7.05 Compliance with Laws.
The Company will comply, and will cause each Subsidiary to comply, in all
material respects with all applicable laws, ordinances, rules, regulations
and requirements of governmental authorities
(including Environmental Laws and ERISA and the rules and regulations
thereunder), whether foreign or domestic, except (a) where the necessity of
compliance therewith is contested in good faith by appropriate proceedings
and appropriate reserves are maintained in accordance with generally
accepted accounting principles and (b) where failure to comply with
such law, ordinance, <360>rule, regulation or requirement would not have a
material adverse effect on the financial condition of the Company and its
<361> Subsidiaries taken as a whole.
7.06 Inspection of Property, Books and Records. The Company will keep,
and will cause each Subsidiary to keep, proper books of record and account in
which materially full, true and correct entries shall be made of all dealings
and transactions in relation to its business and activities; and will permit,
and will cause each Subsidiary to permit, representatives of any Lender to
visit and inspect any of their respective properties, to examine and make
abstracts from any of their respective books and records and to discuss their
respective affairs, finances and accounts with their respective officers,
employees and independent public accountants, provided the Company shall have
the right to be present at any meeting with its independent public
accountants, all at such reasonable times, upon reasonable notice and as
often as may reasonably be desired.
7.07 Maintenance of Ownership of Subsidiaries. The Company will at all
times maintain direct or indirect legal and beneficial ownership of the
percentage of outstanding shares of each class of capital stock substantially
as set forth on Schedule 6.08 of each of its Subsidiaries, except as modified
by a consolidation<362> merger or sale permitted pursuant to the proviso to
Section 8.05.
7.08 Use of Proceeds
(a) The <363> Borrowers shall use the proceeds of the Revolving
Loans and Swing Line Loans for working capital and other general corporate
purposes (other than for the purpose of financing a hostile Acquisition), the
refinancing of certain Debt of the Company and its Subsidiaries under the
Existing Credit Agreement <364>, to the payment of fees and expenses relating
to the Transaction. In addition, the Company shall use proceeds of Revolving
Loans and Swing Loans for the acquisition of Target Shares during the Certain
Funds Period.
(b) The Company shall apply the proceeds of the Term Loan to the
refinancing or prepayment of all outstanding Debt of the Company and its
Subsidiaries under the Existing Credit Agreement, for the purchase of Target
Shares ( in accordance with the funding procedures clause (c) below), and for
other general corporate purposes.
(c) The Company shall <365> apply the proceeds of all Sterling
Acquisition Loans first to make equity contributions and/or intercompany
loans to US Holdco #1 and US Holdco #2, each of which shall <366> use 100% of
such proceeds to make equity contributions and/or intercompany loans to Bidco
to enable Bidco to facilitate the refinancing of certain Debt of the Target
and certain Target Subsidiaries as provided in Section 5.02(c), towards
financing the cash consideration to be paid by Bidco for the Target Shares
pursuant to acceptances of the Offer, <367> and second towards the payment of
fees and expenses relating to the Transaction and for other general corporate
purposes.
(d) The Company hereby acknowledges and agrees that the aggregate
Dollar Equivalent of Loans incurred during the Certain Funds Period in
connection with the purchase of Target Shares, any refinancing of Debt of
Target and its Subsidiaries in connection with the acquisition of Target
pursuant to the Offer, any refinancing of Debt of the Company and its
Subsidiaries on the Initial Funding Date and the payment of fees in
connection with the Transaction shall not exceed the Dollar Equivalent of
$320,000,000.
7.09 Solvency
The Company and its Subsidiaries, on a consolidated basis, shall at all times
be Solvent, and on and after the Initial Funding Date, US Holdco #1, US
Holdco #2 and Bidco, each on a stand-alone basis, and the Target and its
Subsidiaries, on a consolidated basis, shall at all times be Solvent.
7.10 Further Assurances.
(a) Each Borrower shall ensure that all written information, exhibits and
reports furnished to the Administrative Agent or the Lenders do not and will
not contain any untrue statement of a material fact and do not and will not
omit to state any material fact or any fact necessary to make the statements
contained therein not misleading in light of the circumstances in which made,
and will promptly disclose to the Administrative Agent and the Lenders and
correct any defect or error that may be discovered therein or in any Loan
Document or in the execution, acknowledgment or recordation thereof.
(b) Promptly upon the written request of the Administrative Agent or the
Majority Lenders, each Borrower shall (and shall cause any of its
Subsidiaries to) do, execute, acknowledge, deliver, record, re-record, file,
re-file, register and re-register<368> any and all such further acts,
security agreements, mortgages, assignments, financing statements and
continuations thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments the Administrative
Agent or such Lenders, as the case may be, may reasonably require from time
to time in order (i) to carry out more effectively the purposes of this
Agreement or any other Loan Document, (ii) to subject any of the properties,
rights or interests covered by any of the Collateral Documents to the Liens
created by any of the Collateral Documents, (iii) to perfect and maintain the
validity, effectiveness and priority of any of the Collateral Documents and
the Liens intended to be created thereby, and (iv) to better assure, convey,
grant, assign, transfer, preserve, protect and confirm to the Administrative
Agent and the Lenders the rights granted or now or hereafter intended to be
granted to the Administrative Agent and the Lenders under any Loan Document
or under any other document executed in connection therewith.
7.11 Foreign Subsidiaries Security
(a) The Company will, and will cause its relevant Subsidiaries to, deliver
to the Administrative Agent on or prior to the 45th day following the Initial
Funding Date (or such later date as is acceptable to the Administrative Agent
to accommodate processing or local law requirements) the Pledged Collateral
relating to each Specified Foreign Subsidiary, together with such instruments
of transfer as are reasonably acceptable to the Administrative Agent.
(b) If the Administrative Agent reasonably believes that appropriate changes
have been made to the relevant sections of the Code as in effect on the
Announcement Date, the regulations and rules promulgated thereunder and any
rulings issued thereunder the Administrative Agent may (or upon the
reasonable request of the Majority Lenders, shall) request that counsel for
the Company acceptable to the Administrative Agent within 30 days after such
request deliver evidence satisfactory to the Administrative Agent, with
respect to any Foreign Subsidiary which is a first-tier Wholly-Owned
Consolidated Subsidiary of the Company, that (i) a pledge of <369> 65% or
more of the total combined voting power of all classes of capital stock of
such Foreign Subsidiary entitled to vote, (ii) the entering into by such
Foreign Subsidiary of a guaranty in substantially the form of the Subsidiary
Guaranty or (iii) the entering into by such Foreign Subsidiary of a pledge
agreement in substantially the form of the Subsidiary Guarantor Pledge
Agreement, in either case would cause the earnings of such Foreign Subsidiary
to be treated as a deemed dividend to such Foreign Subsidiary's United States
parent or would otherwise violate a material applicable law or governmental
or regulatory restriction or rule (including laws, rules, or restrictions of,
or issued by, a government or regulatory authorities of a foreign
jurisdiction or would otherwise cause a material adverse monetary tax
consequence to the Company), and in the case of a failure to deliver the
evidence described in clause (i) above, (A) that portion of such Foreign
Subsidiary's outstanding capital stock and intercompany notes not theretofore
pledged pursuant to a Pledge Agreement shall be pledged to the Administrative
Agent, for the benefit of itself, the Issuing Bank and the Lenders pursuant
to a Pledge Agreement (or another pledge agreement in substantially similar
form, if needed), (B) such Foreign Subsidiary shall execute and deliver a
guaranty of the Obligations of the Company under the Loan Documents and (C)
such Foreign Subsidiary shall execute and deliver a pledge agreement granting
the Administrative Agent for the benefit of the Lenders a security interest
in all of <370> the capital stock of each Subsidiary of such Foreign
Subsidiary and intercompany notes payable to such Foreign Subsidiary, in each
case with all documents delivered pursuant to this Section 7.11 to be in form
and substance satisfactory to the Administrative Agent.
7.12 The Offer
(a) The Company will procure that the Offer is made on the terms and
conditions set out in the Press Release.
(b) The Company will keep the Administrative Agent informed as to
the status of, and progress with respect to, the Offer and updated financial
information on Target and each Target Subsidiary (as available) and, in
particular, will promptly give to the Administrative Agent such information
(including details as to the current level of acceptances) concerning the
Offer or otherwise relevant to the Offer as the Administrative Agent may
reasonably request and shall promptly upon receipt deliver to the
Administrative Agent a copy of every certificate delivered to Bidco in
connection with the Offer by the receiving agent pursuant to the City Code.
(c) Without the prior approval of the Administrative Agent (the
Administrative Agent's response not to be unreasonably delayed), the Company
will not, and will procure that Bidco will not:
(i) waive, in whole or in part, either of the conditions specified
in 1(B) and (C) of Appendix 1 to the Press Release relating to the UK Fair
Trading Act 1973 and the US Hart-Scott-Rodino Anti-Trust Improvements Act of
1976; or
(ii) make any increase in the per share offer purchase price or any
change in the form of consideration of the offer purchase price (each as
delineated in the Press Release) or take or permit to be taken any step as a
result of which such an increase or change is or may be required; and
(iii) take or permit to be taken any step which would require the
Company or any of its Subsidiaries (including Bidco) to make a mandatory
offer for Target within Rule 9 of the City Code.
(d) The Company will notify the Administrative Agent immediately
upon becoming aware of any circumstance or event which is or could reasonably
be construed as being covered by a condition of the Offer which, if not
waived, would entitle it, with the consent of the <371> Panel on
Take-overs and Mergers in the United Kingdom if needed,
to lapse the Offer and will consult with the Administrative Agent in relation
to such event or circumstances and its intended actions.
(e) The Company will consult with the Administrative Agent before
declaring the Offer unconditional as to acceptances in circumstances where it
has not acquired or agreed to acquire pursuant to the Offer at least 90% in
nominal value of the Target Shares to which the Offer relates (within the
meaning of Section 428-430F of the Companies Act).
(f) The Company will not, and will not permit Bidco to, exercise its
rights to declare the Offer unconditional as to acceptances unless it has
acquired or agreed to acquire pursuant to the Offer not less than 75% of the
Target Shares on a fully diluted basis.
(g) The Company shall, and shall cause US Holdco #1, US Holdco #2
and Bidco to, comply in all material respects with the provisions of the City
Code, the Financial Services Act 1985 and the Companies Act and all other
applicable statutes, laws and regulations relevant in the context of the
Offer.
(h) The Company shall cause Bidco to give notice under Section 429
of the Companies Act to relevant Target shareholders promptly upon becoming
entitled to do so under the Companies Act.
(i) The Company shall ensure that on the Initial Funding Date the
Administrative Agent is provided with copies of such constitutional documents
of the Target and each Target Subsidiary as it deems to be material.
(j) The Company will (and will cause Bidco to) consult with the
Administrative Agent with respect to any condition which is attached to:
(i) any indication by the Office of Fair Trading that it is not the
intention of the Secretary of State for Trade and Industry to refer the
proposed acquisition of Target by Bidco to the Monopolies and Mergers
Commission; or
(ii) the expiry, lapsing or termination of any appropriate waiting
period (including any extension thereof) under the United States Hart-Scott-
Rodino Antitrust Improvements Act of 1976 and the regulations thereunder;
and will not in any event treat or deem the conditions to the Offer specified
in Sections 1(b) or (c) (as the case may be) of Appendix 1 to the Press
Release as satisfied or waived if it would, in the reasonable opinion of the
Administrative Agent, have a material adverse effect on the business, assets,
financial conditions or prospects of the Company, Bidco or the Target.
7.13 Bidco Capitalization. On or prior to the Initial Funding Date,
the Company shall take any and all actions necessary to ensure that the
shares of Bidco are fully paid, and shall have delivered evidence
satisfactory to the Administrative Agent that such actions have been taken.
ARTICLE VIII
NEGATIVE COVENANTS
On and after the Announcement Date, so long as any Lender shall have any
Commitment hereunder, or any Loan or other Obligation shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, unless the
Majority Lenders waive compliance in writing the Company shall not, and shall
not permit any of its Subsidiaries to:
8.01 Debt. Incur or at any time be liable with respect to any Debt
except:
(a) Debt outstanding under this Agreement and the other Loan
Documents;
(b) Debt not evidenced by this Agreement or the other Loan
Documents and in an amount outstanding as of September 30, 1998 and
identified on Schedule 6.09 (as such Schedule is updated on the Initial
Funding Date with the consent of the Administrative Agent) and other Debt in
an amount outstanding as of the Announcement Date (which shall be identified
on Schedule 6.09 if in each case it is in excess of $1,000,000) and any
extensions, renewals and refinancings of any such Debt to the extent that (x)
the aggregate principal amount of the Debt permitted pursuant to this clause
(b) is not increased as of such date as a result thereof, and (y) the
respective issue of refinancing Debt shall have no restrictions which would
violate any terms of this Agreement or any other Loan Document or of any
other Debt of the Company and its Subsidiaries which is to remain in effect;
provided, however, that no Debt under the Existing Credit Agreement (or any
refinancing thereof other than with the proceeds of the Loans) will be
permitted on or after the Initial Funding Date.
(c) Debt (in addition to the allowances in clauses (a), (b),
(d), (e),and (f) <372> of this Section 8.01) in an aggregate principal amount
not to exceed $30,000,000 at any time outstanding;
(d) Debt subordinated to the Debt hereunder, in amounts and on
terms and conditions satisfactory to the Majority Lenders;
(e) Debt constituting a guaranty issued by the Company with
respect to (x) Debt of any Subsidiary <373> to the extent such
Subsidiary's Debt is permitted to be incurred pursuant to a clause (other
than this clause (e)) of this Section 8.01 and (y) Debt of any Person not a
Subsidiary <374>, provided that the aggregate principal amount of
such Debt shall not at any time exceed $15,000,000 (without giving effect to
any write-offs or write-downs of such Debt); and
(f) intercompany loans to the extent permitted pursuant to
Section 8.06.
8.02 Restricted Payments. Declare or make any Restricted Payments
except Restricted Payments made when no Default or Event of Default has
occurred and is continuing (or would result after giving effect to such
Restricted Payment) and where immediately after giving effect thereto, the
aggregate of all Restricted Payments declared or made subsequent to the
Announcement Date does not exceed (a) $22,500,000 plus (b) 50% of
Consolidated Net Income (less consolidated net loss, if any) of the Company
and its Consolidated Subsidiaries for the period from the Announcement Date
through the end of the Company's then most recent fiscal quarter (treated for
this purpose as a single accounting period).
Nothing in this Section 8.02 shall prohibit the payment of any
dividend or distribution within 60 days after the declaration thereof if such
declaration was not prohibited by this Section 8.02.
8.03 Investments. Make or acquire any Investment in any Person
other than:
(a) Investments (other than pursuant to Section 8.03(f)) in an
aggregate amount not to exceed $33,000,000 outstanding as of the Announcement
Date (such Investments in excess of $1,000,000 are set forth on Schedule
8.03(a) (as such Schedule is updated on the Initial Funding Date with the
consent of the Administrative Agent) and any replacements of such Investments
of equal amount thereto;
(b) Investments in joint ventures of the Company or its
Subsidiaries, if after giving effect thereto the aggregate amount of all such
Investments does not exceed $10,000,000 outstanding at any one time,
excluding any Investments described in Sections 8.03(a) and (f);
(c) deposits with, or time deposits with, including certificates of
deposits issued by, (i) any office located in the United States of any bank
or trust company which is organized under the laws of the United States or
any state thereof and has capital surplus and undivided profits aggregating
at least $100,000,000 (ii) any Lender or (iii) any foreign bank for which S &
P or Moody's issues a rating of "A" or higher and which has capital surplus
and undivided profits aggregating at least $100,000,000;
(d) Investments in investment grade securities;
(e) Investments made in another Person pursuant to a merger or asset
acquisition made in compliance with clause (i) of the proviso in Section
8.05;
(f) Investments relating to the ViaTek program existing or planned
as of the Announcement Date and listed on Schedule 8.03(b), and additional
Investments relating to the ViaTek program in an aggregate amount not to
exceed $12,000,000 at any time;
(g) Investments to the extent permitted pursuant to Section 8.06;
and
(h) other Investments (other than pursuant to Section 8.03 <375>
(f)) up to (x) at any time prior to the Initial Funding Date, $45,000,000 in
the aggregate and (y) on and after the Initial Funding Date, $20,000,000 in
the aggregate.
The amount of any Investment shall be the original cost of such
Investment plus the cost of all additions thereto, without adjustments for
increases or decreases in value, write-ups, write-downs or write-offs with
respect to such Investment.
8.04 Negative Pledge.
Create, assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by it, except:
(a) Liens existing as of the Announcement Date securing Debt
outstanding on such date and identified on Schedule 8.04 (as such Schedule is
updated on the Initial Funding Date with the consent of the Administrative
Agent), provided, that the Lien indentified in Item 5(b) on Schedule 8.04 shall
not be permitted to exist at any time on and after February 28, 1999;
(b) Permitted Liens;
(c) any Lien existing on any non-current asset securing Debt in an
aggregate principal amount up to $15,000,000 at any time; <376>
(d) any Lien securing factoring programs of Foreign Subsidiaries
<377> in an aggregate amount of up to $5,000,000 at any time; and
(e) any Lien relating to a transaction permitted by Section
8.05(ii)(v). <378>
8.05 Consolidations, Mergers and Sales of Assets. Suffer, permit
or enter into any agreement to (a) consolidate or merge with or into any
other Person or (b) make an Asset Disposition; provided that:
(i) the Company or any Subsidiary may merge with or acquire another
Person, through a stock, asset or any other similar transaction, which is in
the business of specialty chemicals and related equipment if (A) the Company
or <379> such Subsidiary is the surviving entity, (B) such acquisition is
friendly and is done with the recommendation of the acquiree's board of
directors or similar governing body and (C) the Company has delivered to the
Administrative Agent a certificate executed by a Responsible Officer (x)
certifying that no Default or Event of Default has occurred and is continuing
both before and after giving effect to such transaction and (y) demonstrating
pro forma compliance with Sections 9.01, 9.02 and 9.03 after giving effect to
such transaction;
(ii) the Company or any Subsidiary may make Asset Dispositions the
aggregate net proceeds of which received by the Company after the
Announcement Date shall not exceed <380> (x) $25,000,000 (other than an Asset
Disposition subject to the following clause (y)) (and, subject to compliance
with Section 2.07(f), the Lenders hereby agree not to unreasonably withhold
their consent for Asset Dispositions in excess of such aggregate amount<381>
) and (y) $10,000,000 with respect to Asset Dispositions of equipment in
connection with a sale-leaseback transaction pursuant to which the Company or
a Subsidiary will be the lessee;
(iii) a Subsidiary of <382> a Borrower may merge with <383> a Borrower
or a Wholly-Owned Subsidiary of <384> a Borrower if (A) <385> such Borrower
or such Wholly-Owned Subsidiary, as the case may be, is the corporation
surviving such merger and (B) immediately after giving effect to such merger,
no Default or Event of Default shall have occurred and be continuing; and
(iv) the Transaction shall be permitted.
8.06 Transactions with Affiliates. Directly or indirectly, pay any
funds to or for the account of, make any Investment in (whether by
acquisition of stock or Debt, by loan, advance, transfer of property,
guarantee or other agreement to pay, purchase or service, directly or
indirectly, any Debt, or otherwise), lease, sell, transfer or otherwise
dispose of any assets, tangible or intangible, to, or participate in, or
effect any transaction in connection with any joint enterprise or other joint
arrangement with, any Affiliate; provided, however, that the foregoing
provisions of this Section 8.06 shall not prohibit:
(a) the Company from declaring or paying any lawful dividend
permitted pursuant to Section 8.02;
(b) the Company or any Subsidiary from making sales to or purchases
from any Affiliate and, in connection therewith, extending credit or making
payments, or from making payments for extending credit or making payments, or
from making payments for services rendered by any Affiliate, if such sales or
purchases are made or such services are rendered in the ordinary course of
business and on terms and conditions at least as favorable to the Company or
such Subsidiary as the terms and conditions which would apply in a similar
transaction with a Person not an Affiliate;
(c) the Company or any Subsidiary from participating in, or
effecting any transaction in connection with, any joint enterprise or other
joint arrangement with any Affiliate if the Company or such Subsidiary
participates in the ordinary course of its business and on a basis no less
advantageous than the basis on which such Affiliate participates;
(d) any transactions between the Company and any Eligible Borrower
which has executed and delivered an Election to Participate which is still in
effect or any Subsidiary that has executed a Subsidiary Guaranty
hereunder<386>;
(e) any payment from any Subsidiary to the Company;
(f) intercompany loans (i) involving only the Company and a
Qualified Subsidiary, (ii) between Qualified Subsidiaries, (iii) between Non-
Qualified Subsidiaries and (iv) from a Non-Qualified Subsidiary to the
Company or a Qualified Subsidiary, in each case so long as the payee with
respect to such intercompany loan is Solvent both before and after giving
effect to such intercompany loan;
(g) as a further limitation on clause (f), during the Squeeze-Out
Period the Company may purchase shares of US Holdco #1 and US Holdco #2, and
US Holdco #1 and US Holdco #2 may (x) make intercompany loans to Bidco and
(y) purchase shares of Bidco, in each case so long as (i) 100% of the
proceeds of all such Investments shall be utilized by Bidco to purchase
Target Shares pursuant to the Offer and related fees and costs for the Offer
and (ii) the ratio of (x) to (y) above shall be at least 1.0 to 1.0; and
(h) Intercompany Debt which does not exceed $15,000,000 in the
aggregate.
8.07 Change in Business
(a) Engage in any material line of business substantially different
from those lines of business carried on by the Company and its Subsidiaries
on the Announcement Date (or, in the case of Target and each Target
Subsidiary, on the Unconditional Date) and lines of business reasonably
ancillary or complementary to such current lines of business.
(b) The Company will not permit (x) US Holdco #1 and US Holdco #2 to
engage in any business activities other than in connection with its ownership
interest in Bidco and the execution, delivery and performance of the
Collateral Documents to which it is a party <387> or (y) Bidco to engage in
any business activities other than those necessary (i) to effect the Offer
and (ii) with respect to its ownership interest in Target.
8.08 Accounting Changes
Make any significant change in accounting treatment or reporting practices,
except as required by GAAP.
8.09 Target Operations
For a period of sixty (60) days (the "Cure Period") after the
Unconditional Date, the representations and warranties set out in Section
6.04, 6.06, 6.07, 6.10, 6.17, 6.18, 6.20, 6.21 and (to the extent any
disclosure covered under Section 6.14 relates to or provides information
covered solely and specifically to one of the representations previously
listed) Section 6.14 and the negative covenants set out in Sections 8.01,
8.03, 8.04, 8.05 and 8.06 shall not apply in respect of events or
circumstances not known to the Company and existing on the Initial Funding
Date (a "Cure Period Event") with respect to Target and each Target
Subsidiary and capable of remedy within such sixty (60) day Cure Period;
provided, that:
<388>(a) the Company agrees to notify the Administrative Agent promptly
upon learning of any such Cure Period Event that would, but for this
covenant, constitute a Default or Event of Default <389>;
<390>(b) such Cure Period Event is not reasonably likely to cause a
material adverse effect on the business, financial position or results of
operations of the Company and its Subsidiaries or the Target and its
Subsidiaries;
<391>(c) the aggregate amount that will be required to cure such Cure
Period Event is not in excess of $7,500,000; and
<392>(d) if at the end of such Cure Period the Cure Period Event still
exists, it shall be an immediate Event of Default.
ARTICLE IX
FINANCIAL COVENANTS
So long as any of the Notes shall remain unpaid, any amounts shall be owing
hereunder by any Borrower, or any Lender shall have any Commitment under this
Agreement, the Company covenants that:
9.01 EBIT to Interest Expense Ratio. The <393> ratio of Consolidated
EBIT for the preceding four fiscal quarters to Consolidated Interest Expense
for the preceding four fiscal quarters shall not be less than 2.50 to 1.00,
tested at end of each fiscal quarter.
9.02 Minimum Consolidated Net Worth. The Company shall maintain at all
times Consolidated Net Worth (without giving effect to any adjustments made
in accordance with GAAP with respect to currency translations) at the end of
each fiscal quarter of not less than $98,279,000, plus an amount equal to the
sum of (a) 50% of positive Consolidated Net Income for each full fiscal
quarter since September 30, 1998 to the measurement date plus
(b) an amount equal to the net proceeds received by the Company from the
issuance of its capital stock during such period.
9.03 Maximum Total Debt to Consolidated EBITDA. The <394> ratio of
Consolidated Total Debt to Consolidated EBITDA tested at the end of each
fiscal quarter for the preceding four fiscal quarters shall not during the
periods set forth below exceed the following:
Period Ratio
Announcement Date to March 31, 2000 4.00 to 1.00
April 1, 2000 to March 31, 2001 3.50 to 1.00
April 1, 2001 to March 31, 2002 3.25 to 1.00
April 1, 2002 and thereafter 3.00 to 1.00
ARTICLE X
EVENTS OF DEFAULT
10.01 Event of Default
Any of the following shall constitute an "Event of Default":
(a) any Borrower shall: (i) fail to pay the principal of any Note
as and when due and payable; (ii) fail to pay interest on any Note or any fee
or other amount due hereunder as and when due and payable and such failure
shall continue for five (5) Business Days; or
(b) any representation or warranty made or deemed made by any
Borrower in this Agreement or in any other Loan Document or which is
contained in any certificate, document, opinion, financial or other written
statement furnished at any time under or in connection with any Loan Document
shall prove to have been incorrect in any material respect on or as of the
date made or deemed made or furnished; or <395>
(c) any Borrower shall fail to perform or observe any term, covenant
or agreement contained in Section 5.04(e), Article VII, Article VIII or
Article IX; or
(d) any Borrower shall fail to perform or observe any term, covenant
or agreement on its part to be performed or observed (other than the
obligations specifically referred to elsewhere in this Section 10.01 in any
Loan Document and such failure shall continue for thirty (30) consecutive
calendar days after written notice thereof has been given to the Company by
the Administrative Agent at the request of the Majority Lenders; or
(e) (i) the Company or any Subsidiary shall fail to make any
payment in respect of any Material Debt when due or within any applicable
grace period or (ii) there occurs under any Swap Contract an early
termination date or similar termination or payment event resulting from (1)
any breach, violation or event of default under Swap Contract as to which the
Company or any of its Subsidiaries is the defaulting or breaching party or
(2) any termination or similar event as to which the Company or any of its
Subsidiaries is an affected party, and, in either event, the Swap Termination
Value owed and not immediately paid by the Company or such Subsidiary as a
result thereof is greater than $5,000,000; or
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables (or, with the
giving of notice or lapse of time or both, would enable) the holder of such
Debt or any Person acting on such holder's behalf to accelerate the maturity
thereof; or
(g) the Company or any Material Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or
shall make a general assignment for the benefit of creditors, or shall fail
generally or admit in writing its inability to pay its debts as they become due,
or shall take any corporate action to authorize any of the foregoing; or
(h) an involuntary case or other proceeding shall be commenced
against the Company or any Material Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of sixty (60) days; or an order for relief shall be
entered against the Company or any Material Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $1,000,000 which such member shall
have become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or to cause a trustee to be appointed to administer any
Material Plan; or a condition shall exist by reason of which the PBGC would
be entitled to obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal from, or a
default, within the meaning of Section 4219(c)(5) of ERISA, with respect to,
one or more Multiemployer Plans which could cause one or more members of the
ERISA Group to incur a current payment obligation in excess of $1,000,000; or
(j) a final, non-appealable judgment or order for the payment of
money in excess of $5,000,000 shall be rendered against the Company or any
Subsidiary and such judgment or order shall continue unsatisfied and unstayed
for a period of (i) in the case of a judgment or order rendered by a court,
arbitrator or governmental authority located in the United States, ten (10)
days or (ii) in the case of a judgment or order rendered by a court,
arbitrator or governmental authority located outside the United States,
thirty (30) days; or <396>
(k) (i) any provision of any Collateral Document (other than a
Credit Agreement Guaranty) shall for any reason cease to be valid and binding
on or enforceable against the Company or any of its Subsidiaries party
thereto and, with respect to Pledged Collateral to be perfected in a
jurisdiction other than the United States, shall remain so for thirty (30)
consecutive days, or any such Person shall so state in writing or bring an
action to limit its obligations or liabilities thereunder; or
(ii) any Collateral Document (other than a Credit Agreement
Guaranty) shall for any reason (other than pursuant to the terms thereof)
cease to create a valid security interest in the Collateral purported to be
covered thereby or such security interest shall for any reason cease to be a
perfected and first priority security interest and, with respect to Pledged
Collateral to be perfected in a jurisdiction other than the United States,
shall remain so for thirty (30) consecutive days; or
(l) there occurs any Change of Control; or
(m) any Person party thereto fails in any material respect to
perform or observe any term, covenant or agreement in any Credit Agreement
Guaranty or any Credit Agreement Guaranty is for any reason partially
(including with respect to future advances) or wholly revoked or invalidated,
or otherwise ceases to be in full force and effect, or any Person party
thereto or any other Person contests in any manner the validity or
enforceability thereof or denies that it has any further liability or
obligation thereunder; or any event described at clauses (g) or (h) of this
Section occurs with respect to such Person party to a Credit Agreement
Guaranty; or
(n) a Relevant Event of Default occurs and is continuing at any time; or
(o) Bidco shall have failed for any reason to have caused Target to
become a Wholly-Owned Consolidated Subsidiary of the Company by acquiring
100% in nominal value of the Target Shares (and cancelling all options)
within six (6) months after the Announcement Date; provided, however, that
the time period set forth in this clause (o) <397> shall be extended by an
additional one month and two weeks if Bidco has initiated the Squeeze-Out
during the initial six months after the Announcement Date.
10.02 Relevant Events of Default with respect to Offer
Notwithstanding the provisions of Section 10.01, until the expiration of the
Certain Funds Period the events set out below shall be the only Events of
Default upon the occurrence of which Administrative Agent and/or the Lenders
shall be entitled to exercise their powers under Section 10.03 with respect
to making aggregate Loans <398> sufficient to permit the
Company to repay its existing indebtedness under the Existing Credit
Agreement and contribute or loan funds to Bidco to permit Bidco to purchase
the Target Shares (a "Relevant Event of Default") whether or not caused by
any reason outside the control of the Company:
(a) the Company fails to comply with Sections 7.04(a), 7.08(d),
7.09, 7.12(a), (c), (f) or (j) or Section 8.02 and, if such event is, in the
opinion of the Administrative Agent, capable of remedy, within 15 days after
the earlier of the Administrative Agent becoming aware of such default or
written notice from the Administrative Agent to the Company requiring the
failure to be remedied, the Company shall have failed to cure such default
provided no funding need occur during such cure period; or
(b) any of the representations and warranties with respect to the
Company, US Holdco #1, US Holdco #2 and Bidco contained in <399> Section
6.01(a), and in respect of the Company and its Subsidiaries contained in
Sections 6.02(b), 6.03, 6.15 or 6.16 made or deemed to be repeated during the
Certain Funds Period is incorrect in any respect when made or deemed to be
repeated, in each case by reference to the facts and circumstances then
subsisting; or
(c) any Default or Event of Default with respect to the Company, US
Holdco #1 or US Holdco #2 pursuant to Section 10.01(g) or (h); or
(d) an order is made for the winding up of Bidco or Target; or
(e) an administration order is made in relation to or an
administrative or other receiver or manager is appointed of Bidco or the
Target or any such Person is not Solvent; or
(f) a resolution is passed for the winding up of Bidco or the
Target;
provided, however, that in the event that a Default or Event of Default shall
have occurred during the Certain Funds Period that would not constitute a
Relevant Event of Default, the Company hereby acknowledges and agrees that
the Administrative Agent and the Lenders shall not be deemed to have waived
such Default or Event of Default by the making of any Sterling Acquisition
Loan to the Company during the Certain Funds Period and that such Default or
Event of Default shall be continuing and otherwise actionable in accordance
with the terms of this Agreement.
10.03 Remedies
(a) If any Event of Default or Relevant Event of Default occurs,
the Administrative Agent shall, at the request of, or may, with the consent
of, the Majority Lenders:
(i) declare the commitment and obligation of each Lender to make
Loans and any obligation of the Issuing Bank to Issue Letters of Credit to be
terminated, whereupon such commitments and obligation shall be terminated
<400>;
(ii) declare an amount equal to the maximum aggregate amount that is
or at any time thereafter may become available for drawing under any
outstanding Letters of Credit (whether or not any beneficiary shall have
presented, or shall be entitled at such time to present, the drafts or other
documents required to draw under such Letters of Credit) to be immediately
due and payable (including, without limitation, satisfying the obligations
under paragraph (c) below), and declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon, and all other
amounts owing or payable hereunder or under any other Loan Document to be
immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Company;
and/or
(iii) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or
applicable law <401>.
(b) If an Event of Default exists: (i) the Administrative Agent
shall have for the benefit of the Lenders, in addition to all other rights of
the Administrative Agent and the Lenders, the rights and remedies of a
secured party under the UCC; and (ii) the Administrative Agent may sell and
deliver any Collateral at public or private sales, for cash, upon credit or
otherwise, at such prices and upon such terms as the Administrative Agent
deems advisable, in its sole discretion, and may, if the Administrative Agent
deems it reasonable, postpone or adjourn any sale of the Collateral by an
announcement at the time and place of sale or of such postponed or adjourned
sale without giving a new notice of sale. Without in any way requiring
notice to be given in the following manner, each Borrower agrees that any
notice by the Administrative Agent of sale, disposition or other intended
action hereunder or in connection herewith, whether required by the UCC or
otherwise, shall constitute reasonable notice to a Borrower if such notice is
mailed by registered or certified mail, return receipt requested, postage
prepaid, or is delivered personally against receipt, at least ten (10)
Business Days prior to such action. The proceeds of sale shall be applied in
accordance with this Agreement and the Borrower shall remain liable for any
deficiency.
(c) If any Letter of Credit is outstanding upon the termination of
this Agreement or the Commitments or if an Event of Default has occurred and
is continuing, then upon such termination or during the continuation of such
Event of Default the relevant Borrower shall with respect to each Letter of
Credit then outstanding, as the Majority Lenders, in their sole discretion
shall specify, either (A) deposit with Administrative Agent a standby letter
of credit (a "Supporting Letter of Credit") in form and substance
satisfactory to the Administrative Agent, issued by an issuer satisfactory to
the Administrative Agent and in an amount equal to the greatest amount for
which such Letter of Credit may be drawn, under which Supporting Letter of
Credit the Administrative Agent is entitled to draw amounts necessary to
reimburse the Administrative Agent and the Revolving Lenders for payments
made by the Administrative Agent and the Revolving Lenders under such Letter
of Credit or under any credit support or enhancement provided through the
Administrative Agent with respect thereto, or (B) deposit with NationsBank
cash in amounts necessary to reimburse the Administrative Agent and the
Revolving Lenders for payments made or to be made (including, without
limitation, the amount that the Administrative Agent estimates will be
necessary to cover its expenses and legal fees in connection therewith) by
the Administrative Agent or the Revolving Lenders under such Letter of Credit
or under any credit support or enhancement provided through the
Administrative Agent with respect thereto, and grant the Administrative Agent
(on behalf of the Lenders) a security interest in such deposited funds. Such
Supporting Letter of Credit shall be held by Administrative Agent and any
deposit of cash shall be held by NationsBank, pursuant to Section 2.07(c),
for the ratable benefit of the Administrative Agent and the Revolving Lenders
as security for, and to provide for the payment of, the aggregate undrawn
amount of such Letters of Credit remaining outstanding.
(d) Notwithstanding the foregoing, upon the occurrence of any event
specified in Sections 10.01(g) or (h) (in the case of clause (h), upon the
expiration of the 60-day period mentioned therein), the commitment and
obligation of each Revolving Lender and the Swing Line Lender to make Loans
and any obligation of the Issuing Bank to Issue Letters of Credit shall
automatically terminate and the unpaid principal amount of all outstanding
Loans and all interest and other amounts and obligations as aforesaid
(including, without limitation, under clause (c) above) shall automatically
become due and payable without further act of the Administrative Agent, the
Issuing Bank or any Lender and without presentment, demand, protest or notice
of any kind in connection therewith.
10.04 Rights Not Exclusive
The rights provided for in this Agreement and the other Loan Documents are
cumulative and are not exclusive of any other rights, powers, privileges or
remedies provided by law or in equity, or under any other instrument,
document or agreement now existing or hereafter arising.
10.05 Permitted Swap Contract Remedies
Notwithstanding any other provision of this Article X, each swap provider
shall have the right, with prior notice to the Administrative Agent, but
without the approval or consent of the Administrative Agent or the Lenders,
with respect to any Permitted Swap Obligations of such swap provider, (a) to
declare an event of default, termination event or other similar event
thereunder, (b) to determine net termination amounts in accordance with the
terms of such Permitted Swap Obligation, and (c) to prosecute any legal
action against any Borrower to enforce net amounts owing to such swap
provider.
ARTICLE XI THE ADMINISTRATIVE AGENT
11.01 Appointment and Authorization; "Administrative Agent"
(a) Each Lender hereby irrevocably (subject to Section 11.09) appoints,
designates and authorizes the Administrative Agent to take such action on its
behalf under the provisions of this Agreement and each other Loan Document
and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein,
nor shall the Administrative Agent have or be deemed to have any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" in this Agreement with reference to the
Administrative Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(b) The Issuing Bank shall act on behalf of the Lenders with respect to
any Letters of Credit Issued by it and the documents associated therewith
until such time and except for so long as the Administrative Agent may agree
at the request of the Majority Lenders to act for such Issuing Bank with
respect thereto; provided, however, that the Issuing Bank shall have all of
the benefits and immunities (i) provided to the Administrative Agent in this
Article XI with respect to any acts taken or omissions suffered by the
Issuing Bank in connection with Letters of Credit Issued by it or proposed to
be Issued by it and the application and agreements for letters of credit
pertaining to the Letters of Credit as fully as if the term "Administrative
Agent", as used in this Article XI, included the Issuing Bank with respect to
such acts or omissions, and (ii) as additionally provided in this Agreement
with respect to the Issuing Bank.
11.02 Delegation of Duties
The Administrative Agent may execute any of its duties under this Agreement
or any other Loan Document by or through agents, employees or attorneys-in-
fact and shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The Administrative Agent shall not be responsible
for the negligence or misconduct of any agent or attorney-in-fact that it
selects with reasonable care.
11.03 Liability of Administrative Agent
None of the Administrative Agent-Related Persons shall (i) be liable for any
action taken or omitted to be taken by any of them under or in connection
with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any of the Lenders for
any recital, statement, representation or warranty made by any Borrower or
any Subsidiary or Affiliate of any Borrower, or any officer thereof,
contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
Loan Document, or for any failure of any Borrower or any other party to any
Loan Document to perform its obligations hereunder or thereunder. No
Administrative Agent-Related Person shall be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any
of the agreements contained in, or conditions of, this Agreement or any other
Loan Document, or to inspect the properties, books or records of any Borrower
or any of Subsidiary or Affiliate of any Borrower.
11.04 Reliance by Administrative Agent
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement 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
counsel to the Borrowers), independent accountants and other experts selected
by the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or
any other Loan Document unless it shall first receive such advice or
concurrence of the Majority Lenders (or, to the extent required by Section
12.01, all of the Lenders) as it deems appropriate and, if it so
requests, 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 Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance with a
request or consent of the Majority Lenders (or, to the extent required by
Section 12.01, all of the Lenders) and such request and any action
taken or failure to act pursuant thereto shall be binding upon all of the
Lenders.
(b) For purposes of determining compliance with the conditions specified
in Sections 5.01, 5.02 or 5.03, each Lender that has executed this Agreement
shall be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter <402> sent by the Administrative Agent
to such Lender for consent, approval, acceptance or satisfaction <403>.
11.05 Notice of Default
The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default or Event of Default, except with respect to
defaults in the payment of principal, interest and fees required to be paid
to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or
<404> a Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". The
Administrative Agent will promptly notify the Lenders of its receipt of any
such notice. <405> Subject to Section 12.01, the Administrative Agent shall
take such action with respect to such
Default or Event of Default as may be requested by the Majority Lenders in
accordance with Article X; provided, however, that unless and until the
Administrative Agent has received any such request, the Administrative 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 <406> and in the best interest of the Lenders.
11.06 Credit Decision
Each Lender acknowledges that none of the Administrative Agent-Related
Persons nor any Prior Loan Document Lender has made any representation or
warranty to it, and that no act by the Administrative Agent <407> hereafter
taken, including any review of the affairs of each Borrower and each of its
Subsidiaries, shall be deemed to constitute any representation or warranty by
any Administrative Agent-Related Person or any Prior Loan Document Lender to
any Lender. Each Lender represents to the Administrative Agent and each
Prior Loan Document Lender that it has, independently and without reliance
upon any Administrative Agent- Related Person or any Prior Loan Document
Lender and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
prospects, operations, property, financial and other condition and
creditworthiness of each Borrower and each of its Subsidiaries, and all
applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to each Borrower and each of its Subsidiaries hereunder. Each Lender
also represents that it will, independently and without reliance upon any
Administrative Agent-Related Person or any Prior Loan Document Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan
Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and
other condition and creditworthiness of each Borrower. Except for notices,
reports and other documents expressly herein required to be furnished to the
Lenders by the Administrative Agent, the Administrative Agent shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of any Borrower which may
come into the possession of any of the Administrative Agent-Related Persons.
11.07 Indemnification of Administrative Agent
Whether or not the transactions contemplated hereby are consummated, the
Lenders shall indemnify upon demand the Administrative Agent-Related Persons
(to the extent not reimbursed by or on behalf of a Borrower and without
limiting the obligation of such Borrower to do so), pro rata, from and
against any and all Indemnified Liabilities; provided, however, that no
Lender shall be liable for the payment to the Administrative Agent-Related
Persons of any portion of such <408> indemnified liabilities resulting solely
from any such Person's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its ratable share of any costs or out-of-pocket
expenses (including Attorney Costs) incurred by the Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any
document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of
a Borrower. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of the
Administrative Agent.
11.08 Administrative Agent in Individual Capacity
NationsBank and its Affiliates may make loans to, issue letters of credit for
the account of, accept deposits from, enter into Swap Contracts with, acquire
equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with a Borrower and its
Subsidiaries and Affiliates as though NationsBank were not the Administrative
Agent or the Issuing Bank hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities,
NationsBank or its Affiliates may receive information regarding a Borrower or
its Affiliates (including information that may be subject to confidentiality
obligations in favor of such Borrower or such Affiliate) and acknowledge
that the Administrative Agent shall be under no obligation to provide such
information to them. With respect to its Loans<409> and L/C
Obligations <410>, NationsBank shall have the same rights
and powers under this Agreement as any other Lender and may exercise the same
as though it were not the Administrative Agent or the Issuing Bank.
11.09 Successor Administrative Agent
The Administrative Agent may, and at the request of the Majority Lenders
shall, resign as Administrative Agent upon 30 days' notice to the Lenders.
If the Administrative Agent resigns under this Agreement, the Majority
Lenders shall appoint from among the Lenders a successor agent for the
Lenders which successor agent shall be approved by the Company. If no
successor agent is appointed prior to the effective date of the resignation
of the Administrative Agent, the Administrative Agent may appoint, after
consulting with the Lenders and the Company, a successor agent from among the
Lenders. Upon the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative
Agent" shall mean such successor agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder
as Administrative Agent, the provisions of this Article XI and Sections 12.04
and 12.05 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement. If no
successor agent has accepted appointment as Administrative Agent by the date
which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of
the duties of the Administrative Agent hereunder until such time, if any, as
the Majority Lenders appoint a successor agent as provided for above.
Notwithstanding the foregoing, however, NationsBank may not be removed as the
Administrative Agent at the request of the Majority Lenders unless
NationsBank shall also simultaneously be replaced as "Issuing Bank" and
"Swing Line Lender" hereunder pursuant to documentation in form and substance
reasonably satisfactory to NationsBank.
11.10 Withholding Tax
(a) If any Lender is a "foreign corporation, partnership or trust" within
the meaning of the Code and such Lender claims exemption from, or a reduction
of, U.S. withholding tax under <411>Section 1441 or 1442 of the Code, such
Lender agrees with and in favor of the Administrative Agent <412> to deliver
to the Administrative Agent:
(i) if such Lender claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, two properly completed and
executed copies of IRS Form 1001 before the payment of any interest in the
first calendar year and before the payment of any interest in each third
succeeding calendar year during which interest may be paid under this
Agreement;
(ii) if such Lender claims that interest paid under this Agreement is
exempt from United States withholding tax because it is effectively connected
with a United States trade or business of such Lender, two properly completed
and executed copies of IRS Form 4224 before the payment of any interest is
due in the first taxable year of such Lender and in each succeeding taxable
year of such Lender during which interest may be paid under this Agreement;
and
(iii) such other form or forms as may be required under the Code or other
laws of the United States as a condition to exemption from, or reduction of,
United States withholding tax.
Such Lender agrees to promptly notify the Administrative Agent of any change
in circumstances which would modify or render invalid any claimed exemption
or reduction.
(b) If any Lender claims exemption from, or reduction of, withholding tax
under a United States tax treaty by providing IRS Form 1001 and such Lender
sells, assigns, grants a participation in, or otherwise transfers all or part
of the Obligations of a Borrower to such Lender, such Lender agrees to notify
the Administrative Agent of the percentage amount in which it is no longer
the beneficial owner of Obligations of a Borrower to such Lender. To the
extent of such percentage amount, the Administrative Agent will treat such
Lender's IRS Form 1001 as no longer valid.
(c) If any Lender claiming exemption from United States withholding tax
by filing IRS Form 4224 with the Administrative Agent sells, assigns, grants
a participation in, or otherwise transfers all or part of the Obligations of
a Borrower to such Lender, such Lender agrees to undertake sole
responsibility for complying with the withholding tax requirements imposed by
Sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest
payment to such Lender an amount equivalent to the applicable withholding tax
after taking into account such reduction. However, if the forms or other
documentation required by clause (a) of this Section are not delivered to the
Administrative Agent, then the Administrative Agent may withhold from any
interest payment to such Lender not providing such forms or other
documentation an amount equivalent to the applicable withholding tax imposed
by Sections 1441 and 1442 of the Code, without reduction.
(e) If the IRS or any other Governmental Authority of the United States
or other jurisdiction asserts a claim that the Administrative Agent did not
properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered or was not properly executed,
or because such Lender failed to notify the Administrative Agent of a change
in circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Lender shall
indemnify the Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax or otherwise, including
penalties and interest, and including any taxes imposed by any jurisdiction
on the amounts payable to the Administrative Agent under this Section,
together with all costs and expenses (including Attorney Costs). The
obligation of the Lenders under this Section shall survive the payment of all
Obligations and the resignation or replacement of the Administrative Agent.
11.11 Collateral Matters
(a) The Administrative Agent is authorized on behalf of all the Lenders,
without the necessity of any notice to or further consent from the Lenders,
from time to time to take any action with respect to any Collateral or the
Collateral Documents which may be necessary to perfect and maintain perfected
the security interest in and Liens upon the Collateral granted pursuant to
the Collateral Documents.
(b) The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion, to release any Lien granted to or held by the
Administrative Agent upon any Collateral (i) upon termination of the
Commitments and payment in full of all Loans and all other Obligations known
to the Administrative Agent and payable under this Agreement or any other
Loan Document; (ii) constituting property sold or to be sold or disposed of
as part of or in connection with any disposition permitted hereunder; (iii)
constituting property in which the Company or any Subsidiary owned no
interest at the time the Lien was granted or at any time thereafter; (iv)
constituting property leased to the Company or any Subsidiary under a lease
which has expired or been terminated in a transaction not prohibited under
this Agreement or is about to expire and which has not been, and is not
intended by the Company or such Subsidiary to be, renewed or extended; (v)
consisting of an instrument evidencing Debt or other debt instrument, if the
Debt evidenced thereby has been paid in full; or (vi) if approved, authorized
or ratified in writing by the Majority Lenders or all the Lenders, as the
case may be, as provided in Section 12.01(f). Upon request by the
Administrative Agent at any time, the Lenders will confirm in writing the
Administrative Agent's authority to release particular types or items of
Collateral pursuant to this Section 11.11(b), provided that the absence of
any such confirmation for whatever reason shall not affect the Administrative
Agent's rights under this Section 11.11.
<413>
11.12 Administrative Agent as English Trustee
(a) The Administrative Agent in its capacity as trustee or otherwise
under the Loan Documents governed by English law:
(i) is not liable for any failure, omission, or defect in perfecting or
registering the security constituted or created by any Loan Document;
(ii) may accept without inquiry such title as any Borrower or any of its
Subsidiaries may have to any asset secured by any Loan Document; and
(iii) is not under any obligation to hold any Loan Document or any other
document in connection with the Loan Documents or the assets secured by any
Loan Document (including title deeds) in its own possession or take any steps
to protect or preserve the same. The Administrative Agent may permit any
Borrower or any of its Subsidiaries to retain any Loan Document or other
document in its possession.
(b) Except as otherwise provided in the Loan Documents governed by
English law, all moneys which under the trusts contained in the Loan
Documents are received by the Administrative Agent in its capacity as trustee
or otherwise may be invested in the name of or under the control of the
Administrative Agent in any investment authorized by English law for the
investment by a trustee of trust money or in any other investments which may
be selected by the Administrative Agent. Additionally, the same may be
placed on deposit in the name or under the control of the Administrative
Agent with such Lender or institution (including the Administrative Agent
itself) and upon such terms as the Administrative Agent may think fit.
ARTICLE XII MISCELLANEOUS
12.01 Amendments and Waivers
No amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent with respect to any departure by the applicable
Borrower or any applicable Subsidiary therefrom, shall be effective unless
the same shall be in writing and signed by the Majority Lenders (or by the
Administrative Agent at the written request of the Majority Lenders) and the
applicable Borrower and acknowledged by the Administrative Agent, and then
any such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no such
waiver, amendment, or consent shall, unless in writing and signed by all the
Lenders and the Company and acknowledged by the Administrative Agent, do any
of the following:
(a) increase or extend the Commitment of any Lender (or reinstate
any Commitment terminated pursuant to Section 2.05 or Section 10.03);
(b) postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees or other amounts
due to the Lenders (or any of them) hereunder or under any other Loan
Document ;
(c) reduce the principal of, or the rate of interest specified
herein on any Loan, or (subject to clause (iv) below) any fees or other
amounts payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the Lenders or any
of them to take any action hereunder;
(e) amend this Section, Section 2.14, the definition of "Majority
Lenders" or any provision herein providing for consent or other action by all
Lenders; or
(f) release all or substantially all of the Collateral or all of the
Credit Agreement Guaranties, except in connection with a repayment in full of
all Obligations and Loans and a termination of the Commitments or as
otherwise permitted under this Agreement;
and, provided further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the affected Issuing Bank in addition to the
Majority Lenders or all the Lenders, as the case may
be, affect the rights or duties of such
Issuing Bank under this Agreement or any L/C-Related Document relating to any
Letter of Credit Issued or to be Issued by it, (ii) no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Majority Lenders or all the Lenders, as the case may be,
affect the rights or duties of the Administrative Agent under this Agreement
or any other Loan Document, (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Swing Line Lender in addition to the
Majority Lenders or all Lenders, as the case may be, affect the rights or
duties of the Swing Line Lender under this Agreement, (iv) the Fee Letter may
be amended, or rights or privileges thereunder waived, in a writing executed
by the parties thereto and (v) any references in this Agreement to a Business
Day, day-count, fraction or other convention (whether for the calculation of
interest, determination of payment dates or otherwise) will, with the effect
from and after the Commencement Date, to the extent that the Administrative
Agent specifies to be necessary, be amended to comply with any generally
accepted conventions and market practice applicable to euro-denominated
obligations in the London interbank market.
12.02 Notices
(a) All notices, requests, consents, approvals, waivers and other
communications shall be in writing (including, unless the context expressly
otherwise provides, by facsimile transmission, provided that any matter
transmitted by facsimile (i) shall be immediately confirmed by a telephone
call to the recipient at the number specified on Schedule 12.02, and (ii)
shall be followed promptly by delivery of a hard copy original thereof) and
mailed, faxed or delivered, to the address or facsimile number specified for
notices on Schedule 12.02; or, as directed to a Borrower or the
Administrative Agent and/or the Swing Line Lender, as the case may be, to
such other address as shall be designated by such party in a written notice
to the other parties, and as directed to any other party, at such other
address as shall be designated by such party in a written notice to the
Company and the Administrative Agent.
(b) All such notices, requests and communications shall, when transmitted
by overnight delivery, or faxed, be effective when delivered for overnight
(next-day) delivery, or transmitted in legible form by facsimile machine,
respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery; except that
notices pursuant to Article II, III or XI to the Administrative Agent and/or
the Swing Line Lender, as the case may be, shall not be effective until
actually received by the Administrative Agent and/or the Swing Line Lender,
as the case may be, and notices pursuant to Article III to the Issuing Bank
shall not be effective until actually received by the Issuing Bank at the
address specified for the "Issuing Bank" on the applicable signature page
hereof.
(c) Any agreement of the Administrative Agent and the Lenders herein to
receive certain notices by telephone or facsimile is solely for the
convenience and at the request of a Borrower. The Administrative Agent and
the Lenders shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by the relevant Borrower to give such
notice and the Administrative Agent and the Lenders shall not have any
liability to such Borrower or other Person on account of any action taken or
not taken by the Administrative Agent or the Lenders in reliance upon such
telephonic or facsimile notice. The obligation of each Borrower to repay the
Loans and L/C Obligations shall not be affected in any way or to any extent
by any failure by the Administrative Agent and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt by the
Administrative Agent and the Lenders of a confirmation which is at variance
with the terms understood by the Administrative Agent and the Lenders to be
contained in the telephonic or facsimile notice.
12.03 No Waiver; Cumulative Remedies
No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege.
12.04 Costs and Expenses
Each Borrower shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse NationsBank (including in its capacity as
Administrative Agent and Issuing Bank) within five Business Days after demand
(subject to Section 5.01(e)) for all reasonable out-of-pocket costs and
expenses incurred by NationsBank (including in its capacity as Administrative
Agent and Issuing Bank) in connection with the development, preparation,
delivery, administration and execution of, and any amendment, supplement,
waiver or modification to (in each case, whether or not consummated), this
Agreement, any other Loan Document and any other documents prepared in
connection herewith or therewith, and the consummation of the transactions
contemplated hereby and thereby, including, without limitation, reasonable
Attorney Costs incurred by NationsBank (including in its capacity as
Administrative Agent and Issuing Bank) with respect thereto and all fees and
expenses for title and lien searches, appraisals, surveys, title commitment
and insurance costs and corporate search fees; and
(b) pay or reimburse the Administrative Agent and each Lender within
15 Business Days after demand (subject to Section 5.01(e)) for all reasonable
out-of-pocket costs and expenses (including Attorney Costs) incurred by them
in connection with the enforcement, attempted enforcement, or preservation of
any rights or remedies under this Agreement or any other Loan Document during
the existence of a Default or an Event of Default or after acceleration of
the Loans (including in connection with any "workout" or restructuring
regarding the Loans, and including in any Insolvency Proceeding or appellate
proceeding).
The undertaking in this Section shall survive the payment of all Obligations
hereunder.
12.05 Company Indemnification
Whether or not the transactions contemplated hereby are consummated, the
Company hereby agrees to indemnify and hold harmless the Administrative
Agent-Related Persons and each Lender and each of their affiliates and their
respective directors, officers, employees, advisors and agents (each, an
"Indemnified Party") from and against (and will reimburse each Indemnified
Party as the same are incurred) any and all losses, claims, damages,
liabilities, and expenses (including, without limitation, the reasonable fees
and expenses of counsel (including, without duplication, the allocated cost
of internal counsel)) that may be incurred by or asserted or awarded against
any Indemnified Party, in each case arising out of or in connection with or
by reason of (including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a defense in
connection therewith) (a) the Transaction or any similar transaction and any
of the other transactions contemplated thereby, or (b) this Agreement, the
other Loan Documents, any Loan or any Letter of Credit, or any use made or
proposed to be made with the proceeds thereof (including any arising out of
the negligence of such Indemnified Party)(collectively, "Indemnified
Liabilities"), unless and except to the extent
that, as to such Indemnified Party, it shall be determined in a final,
nonappealable judgment by a court of competent jurisdiction that such losses,
claims, damages, liabilities or expenses resulted from the gross negligence
or willful misconduct of such Indemnified Party or the intentional breach by
such Indemnified Party of its agreement to make Loans or issue Letters of
Credit in accordance with the terms of this Agreement and the other Loan
Documents. In the case of any investigation, litigation or proceeding to
which the indemnity in this Section 12.05 applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is
brought by the Company, the Company's shareholders or creditors or such
Indemnified Party and whether or not the Transaction is consummated, unless
and except to the extent that, as to such
Indemnified Party, it shall be determined in a final, nonappealable judgment
by a court of competent jurisdiction that such losses, claims, damages,
liabilities or expenses resulted from the gross negligence or wilful
misconduct of such Indemnified Party or the intentional breach by such
Indemnified Party or its agreement to make Loans or
issue Letters of Credit in accordance with the terms of this Agreement and
the other Loan Documents. The Company hereby agrees that no Indemnified
Party shall have any liability to the Company or any of its Subsidiaries or
Affiliates or to the Company's or their respective security holders or
creditors for any indirect, consequential or punitive damages arising out of,
related to or in connection with the Transaction or the Loan Documents. The
agreements in this Section shall survive payment of all other Obligations.
12.06 Payments Set Aside
To the extent that a Borrower makes a payment to the Administrative Agent or
the Lenders, or the Administrative Agent or the Lenders exercise their right
of set-off, and such payment or the proceeds of such set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent or such Lender in its discretion) to
be repaid to a trustee, receiver or any other party, in connection with any
Insolvency Proceeding or otherwise, then (a) to the extent of such recovery
the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not
been made or such set-off had not occurred, and (b) each Lender severally
agrees to pay to the Administrative Agent upon demand its pro rata share of
any amount so recovered from or repaid by the Administrative Agent.
12.07 Successors and Assigns
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that no Borrower may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of the
Administrative Agent and each Lender.
12.08 Assignments, Participations, etc.
(a) Any Lender may, with the written consent of the Administrative Agent,
the Issuing Bank, Swing Line Lender and, so long as no Default or Event of
Default has occurred and is continuing, the Company, which consents shall not
be unreasonably withheld, at any time assign and delegate to one or more
Eligible Assignees (provided that no written consent of the Administrative
Agent, the Issuing Bank, the Swing Line Lender or the Company shall be
required in connection with any assignment and delegation by a Lender to an
Eligible Assignee that is an Affiliate of such Lender) (each an "Assignee")
all of, or any part of, the Loans, the Commitments, the L/C Obligations and
the other rights and obligations of such Lender hereunder, in a minimum
aggregate Dollar Equivalent of $5,000,000 (or, if less, the entire amount of
such Lender's Loans and Commitments, and such Loans and Commitments may
consist of the Revolving Loan Commitments, the Term Loan Commitments and the
Sterling Acquisition Loan Commitments as determined by the assigning Lender)
calculated by aggregating the Commitments, Loans and L/C Obligations held by
an Eligible Assignee which are Affiliates; provided, however, that each
Borrower and the Administrative Agent may continue to deal solely and
directly with such Lender in connection with the interest so assigned to an
Assignee until (i) written notice of such assignment, together with payment
instructions, addresses and related information with respect to the Assignee,
shall have been given to each Borrower and the Administrative Agent by such
Lender and the Assignee; (ii) such Lender and its Assignee shall have
delivered to each Borrower and the Administrative Agent an Assignment and
Acceptance in the form of Exhibit E attached hereto ("Assignment and
Acceptance") together with any Note or Notes subject to such assignment and
(iii) the assignor Lender or Assignee has paid to the Administrative Agent a
processing fee in the amount of $3,500.
(b) From and after the date that the Administrative Agent notifies the
assignor Lender that it has received (and provided its consent with respect
to) an executed Assignment and Acceptance and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, shall have the rights and
obligations of a Lender under the Loan Documents, and (ii) the assignor
Lender shall, to the extent that rights and obligations hereunder and under
the other Loan Documents have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights and be released from its obligations
under the Loan Documents (other than with respect to any indemnification
pursuant to Article IV or Section 12.05).
(c) Within five Business Days after its receipt of notice by the
Administrative Agent that it has received an executed Assignment and
Acceptance and payment of the processing fee (and provided that it consents
to such assignment in accordance with Section 12.08(a)), the relevant
Borrower shall execute and deliver to the Administrative Agent, new Notes
evidencing such Assignee's assigned Loans and Commitments and, if the
assignor Lender has retained a portion of its Loans and its Commitments,
replacement Notes in the principal amount of the Loans retained by the
assignor Lender (such Notes to be in exchange for, but not in payment of, the
Notes held by such Lender). Immediately upon receipt by the Administrative
Agent of the processing fee payment under the Assignment and Acceptance, this
Agreement shall be deemed to be amended to the extent, but only to the
extent, necessary to reflect the addition of the Assignee and the resulting
adjustment of the Commitments arising therefrom. The Commitments allocated to
each Assignee shall reduce such Commitments of the assigning Lender pro
tanto.
(d) Any Lender may at any time sell to one or more commercial banks or
other Persons not Affiliates of a Borrower (a "Participant") participating
interests in any Loans, the Commitments of that Lender and the other
interests of that Lender (the "originating Lender") hereunder and under the
other Loan Documents; provided, however, that (i) the originating Lender's
obligations under this Agreement shall remain unchanged, (ii) the originating
Lender shall remain solely responsible for the performance of such
obligations, (iii) each Borrower, the Issuing Bank, the Swing Line Lender and
the Administrative Agent shall continue to deal solely and directly with the
originating Lender in connection with the originating Lender's rights and
obligations under this Agreement and the other Loan Documents, and (iv) no
Lender shall transfer or grant any participating interest under which the
Participant has rights to approve any amendment to, or any consent or waiver
with respect to, this Agreement or any other Loan Document, except to the
extent such amendment, consent or waiver would require unanimous consent of
the Lenders as required pursuant to the first proviso to Section 12.01. In
the case of any such participation, the Participant shall not have any rights
under this Agreement, or any of the other Loan Documents, and all amounts
payable by a Borrower hereunder shall be determined as if such Lender had not
sold such participation; except that, if amounts outstanding under this
Agreement are due and unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of set-off 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.
(e) Notwithstanding any other provision in this Agreement, any Lender may
at any time create a security interest in, or pledge, all or any portion of
its rights under and interest in this Agreement and the Notes held by it in
favor of any Federal Reserve Bank in accordance with Regulation A of the FRB
or U.S. Treasury Regulation 31 CFR S203.14, and such Federal Reserve Bank may
enforce such pledge or security interest in any manner permitted under
applicable law.
(f) No assignee, participant or other transferee of any Lender's rights
shall be entitled to receive any greater payment under Article IV than such
Lender would have been entitled to receive with respect to the rights
transferred or by reason of the provisions of Article IV requiring such
Lender to designate a different Applicable Lending office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
(g) In connection with any assignment by NationsBank including in
connection with the execution of this Agreement, NationsBank may,
with the consent of the Administrative Agent, designate any such assignee
with the title "documentation agent,""syndication agent,""co-manager, "co-
agent", "co-arranger" or other similar title
in addition to such assignee being a "Lender" under this Agreement; provided,
that any such assignee shall not receive any fee from the Company or have
any additional duties or responsibilities by virtue of such title.
12.09 Confidentiality
Each Lender agrees to take and to cause its Affiliates to take normal and
reasonable precautions and exercise due care to maintain the confidentiality
of all information identified as "confidential" or "secret" by a Borrower and
provided to it by a Borrower or any Subsidiary of a Borrower, or by the
Administrative Agent on such Person's behalf, under this Agreement or any
other Loan Document, and neither it nor any of its Affiliates shall use any
such information other than in connection with or in enforcement of this
Agreement and the other Loan Documents or in connection with other business
now or hereafter existing or contemplated with any Borrower or any of its
Subsidiaries; except to the extent such information (i) was or becomes
generally available to the public other than as a result of disclosure by
such Lender, or (ii) was or becomes available on a non-confidential basis
from a source other than a Borrower, provided that such source is
not bound by a confidentiality agreement with a Borrower known
to such Lender; provided, however, that any Lender may disclose
such information (A) at the request or pursuant to any requirement
of any Governmental Authority to which such Lender
is subject or in connection with an examination of such Lender by any such
authority; (B) pursuant to subpoena or other court process; (C) when required
to do so in accordance with the provisions of any applicable Requirement of
Law; (D) to the extent reasonably required in connection with any litigation
or proceeding to which the Administrative Agent, any Lender or their
respective Affiliates may be party; (E) to the extent reasonably required in
connection with the exercise of any remedy hereunder or under any other Loan
Document; (F) to such Lender's independent auditors and other professional
advisors; (G) to any Participant or Assignee, actual or potential, provided
that such Person agrees in writing to keep such information confidential to
the same extent required of the Lenders hereunder; (H) as to any Lender or
its Affiliate, as expressly permitted under the terms of any other document
or agreement regarding confidentiality to which a Borrower or any Subsidiary
of a Borrower is party or is deemed party with such Lender or such Affiliate;
and (I) to its Affiliates.
12.10 Set-off
In addition to any rights and remedies of the Lenders provided by law, if an
Event of Default exists or the Loans have been accelerated, each Lender is
authorized at any time and from time to time, without prior notice to a
Borrower, any such notice being waived by each Borrower to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by, and other
Debt at any time owing by, such Lender to or for the credit or the account of
the relevant Borrower or any Subsidiary Guarantor against any and all
Obligations owing to such Lender, now or hereafter existing, irrespective of
whether or not the Administrative Agent or such Lender shall have made demand
under this Agreement or any other Loan Document and although such Obligations
may be contingent or unmatured. Each Lender agrees promptly to notify the
relevant Borrower or any Subsidiary Guarantor and the Administrative Agent
after any such set-off and application made by such Lender; provided,
however, that the failure to give such notice shall not affect the validity
of such set-off and application.
12.11 Notification of Addresses, Lending Offices, etc.
Each Lender shall notify the Administrative Agent in writing of any changes
in the address to which notices to the Lender should be directed, of
addresses of any Lending Office, of payment instructions in respect of all
payments to be made to it hereunder and of such other administrative
information as the Administrative Agent shall reasonably request.
12.12 Counterparts
This Agreement may be executed in any number of separate counterparts, each
of which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the
same instrument.
12.13 Severability
The illegality or unenforceability of any provision of this Agreement or any
instrument or agreement required hereunder shall not in any way affect or
impair the legality or enforceability of the remaining provisions of this
Agreement or any instrument or agreement required hereunder.
12.14 No Third Parties Benefited
This Agreement is made and entered into for the sole protection and legal
benefit of each Borrower, the Lenders, the Administrative Agent and the
Administrative Agent-Related Persons, and their permitted successors and
assigns, and no other Person shall be a direct or indirect legal beneficiary
of, or have any direct or indirect cause of action or claim in connection
with, this Agreement or any of the other Loan Documents.
12.15 Governing Law and Jurisdiction
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF NEW YORK; PROVIDED THAT THE
PARTIES SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR
OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWER, THE ADMINISTRATIVE
AGENT, THE ISSUING BANK AND THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH
BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH Borrower, THE ADMINISTRATIVE
AGENT AND THE LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT
OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK
LAW.
(c) THE COMPANY HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS US
CORPORATION SYSTEMS WITH OFFICES ON THE DATE HEREOF IN NEW YORK, NEW YORK (OR
SUCH OTHER AGENT TO RECEIVE SERVICE OF PROCESS IN NEW YORK, NEW YORK AS IS
REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT) AS ITS DESIGNEE, APPOINTEE
AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN
RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS,
NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING.
IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE
AVAILABLE TO ACT AS SUCH, THE COMPANY AGREES TO DESIGNATE A NEW DESIGNEE,
APPOINTEE AND AGENT IN NEW YORK ON THE TERMS AND FOR THE PURPOSES OF THIS
PROVISION SATISFACTORY TO THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT. THE
COMPANY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE
COMPANY AT ITS ADDRESS SET FORTH ON SCHEDULE 12.02, SUCH SERVICE TO BECOME
EFFECTIVE 10 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT
OF THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT, ANY LENDER OR THE HOLDER OF
ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY BORROWER IN ANY OTHER
JURISDICTION.
12.16 Waiver of Jury Trial
THE COMPANY, THE LENDERS AND THE ADMINISTRATIVE AGENT EACH WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY OR ANY ADMINISTRATIVE AGENT-RELATED PERSON,
PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE COMPANY, THE LENDERS AND THE ADMINISTRATIVE AGENT
EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT
TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER
AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION
OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH
SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR
THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
12.17 Entire Agreement
This Agreement, together with the other Loan Documents, embodies the entire
agreement and understanding among each Borrower, the Lenders and the
Administrative Agent, and supersedes all prior or contemporaneous agreements
and understandings of such Persons, verbal or written, relating to the
subject matter hereof and thereof including, without limitation, the
commitment letter among NationsBank, NationsBanc Montgomery Securities, LLC
and the Company, dated October 16, 1998 (except the provisions of such
commitment letter which expressly survive the execution of this Agreement,
and the Administrative Agent hereby confirms that during the Certain Funds
Period none of such provisions include additional conditions to any Borrowing
pursuant to Section 5.02 of this Agreement).
12.18 Judgment Currency
If, for the purposes of obtaining judgment in any court, it is necessary to
convert a sum due hereunder or under any other Loan Document in one currency
into another currency, the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of any
Borrower in respect of any such sum due from it to the Administrative Agent
or any Lender hereunder or under the other Loan Documents shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other
than that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the "Agreement Currency"), be discharged only
to the extent that on the Business Day following receipt by the
Administrative Agent or such Lender of any sum adjudged to be so due in the
Judgment Currency, the Administrative Agent or such Lender may in accordance
with normal banking procedures purchase the Agreement Currency with the
Judgment Currency. If the amount of the Agreement Currency so purchased is
less than the sum originally due to the Administrative Agent or such Lender
in the Agreement Currency, the Company agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or
such Lender or the Person to whom such obligation was owing against such
loss. If the amount of the Agreement Currency so purchased is greater than
the sum originally due to the Administrative Agent or such Lender in such
currency, the Administrative Agent or such Lender agrees to return the amount
of any excess to the Company (or to any other Person who may be entitled
thereto under applicable law).
12.19 Amendment and Restatement
(a) On and after the Initial Funding Date, this Agreement will automatically
and without further action of any kind amend and restate in its
entirety the Prior Loan Document and, upon the Initial Funding
Date the terms and provisions of the Prior Loan Document shall,
subject to this Section 12.19, be superseded hereby and thereby;
provided, however, that notwithstanding the amendment and
restatement of the Prior Loan Document by this agreement, the
Company shall continue to be liable to NationsBank, the
Administrative Agent-related Persons (as defined in the Prior
Loan Document) and the Lenders under, and as defined in,
the Prior Loan Document (the "Prior Loan Document Lenders") with respect to
agreements on the part of the Company or any of its Subsidiaries under the
Prior Loan Document to indemnify and hold NationsBank (individually and as
Administrative Agent), the Administrative Agent-Related Persons and the Prior
Loan Document Lenders harmless from and against all claims, demands,
liabilities, damages, losses, costs, charges and expenses to which
NationsBank (individually and as Administrative Agent), the administrative
agent-Related Persons and the Prior Loan document may be subject arising in
connection with any action taken, failure to take action or transaction
contemplated in or under the Prior Loan Document during the period that such
agreement was in effect. Without limiting the generality of the foregoing,
the obligations of the Company pursuant to Sections 4.01, 4.03, 4.04, 4.09
and 12.05 of the Prior Loan Document and the Fee Letter, as such term is
defined in the Prior Loan Document, shall not be superseded, modified or
otherwise affected by this Agreement.
(b) Simultaneously with the occurrence of the Initial Funding Date, each
Prior Loan Document Lender shall be deemed to have assigned (subject to
Section 11.06 of this Agreement) a portion of its Commitments under, and as
defined in, the Prior Loan Document to the Lenders under this Agreement in
such amount so that the allocation of the Commitments as of the Initial
Funding Date shall be in the amounts specified on Schedule 2.01 hereto, and
each Lender hereby accepts such assignment and assume its portion of the
Commitments in accordance with the terms and conditions thereunder (and the
Prior Loan Lenders shall have no further obligations with respect to such
Commitments).
(c) In furtherance of and without limiting the foregoing, all amounts owing
with respect to accrued fees with respect to the Commitments under, and as
defined in, the Prior Loan Documents shall have been paid to the Prior Loan
Documents Lenders currently on and as of the Initial Funding Date in their
entirety.
[Signature pages to follow]
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.
MacDERMID, INCORPORATED
By: ______________________________________________
Name: ____________________________________________
Title: _____________________________________________
NATIONSBANK, N.A., as Administrative Agent
By: ______________________________________________
Name: ____________________________________________
Title: _____________________________________________
NATIONSBANK, N.A.,
Individually as a Lender, Swing Line Lender and as the Issuing Bank
By: ______________________________________________
Title: _____________________________________________
SCHEDULE 1(a)
CALCULATION OF THE MANDATORY COST
(a) The Mandatory Cost for a Lender I relation to a Loan for each of its
Interest Periods is the rate determined by that Lender to be equal to the
following formulae:
in relation to a Loan denominated in Sterling:
BY + S(Y-Z) + F x 0.01 % per annum = Mandatory Cost
100-(B + S)
in relation to any other Loan:
F x 0.01 % per annum = Mandatory Cost
300
where on the day of application of the formula:
B is the percentage of the relevant Lender's eligible liabilities
(in excess of any stated minimum) which the Bank of England requires that
Lender to hold on a non-interest-bearing deposit account in
accordance with its cash ratio requirements;
Y is the rate at which Sterling deposits are offered by the
relevant Lender to leading banks in the London interbank market at or
about 11.00 a.m. on that day for the relevant period;
S is the percentage of the relevant Lender's eligible liabilities
which the Bank of England requires the relevant Lender to place as a
special deposit;
Z is the interest rate per annum allowed by the Bank of England on
special deposits; and
F is the charge payable by the relevant Lender to the Financial
Services Authority under paragraph 2.02 or 2.03 (as appropriate) of the Fees
Regulations but where for this purpose, the figure in paragraph 2.02b and
2.03b will be deemed to be zero expressed in pounds per 1 million of the fee
base of the relevant Lender.
(b) For the purposes of this Schedule 3:
(i) "eligible liabilities" and "special deposits" have the meanings given
to them at the time of application of the formula by the Bank of England; and
(ii) "fee base" has the meaning given to it in the Fees Regulations;
(iii) "Fees Regulations" means:
(1) prior to 31st March, 1999, the Banking Supervision (Fees) Regulations
1998; and
(2) on and after 31st March, 1999, any regulations governing the payment
of fees for banking supervision.
(ii) "relevant period" in relation to each Interest Period, means:
(A) if it is three months or less, that Interest Period; or
(B) if it is more than three months, each successive period of three
months and any necessary shorter period comprised in that Interest Period.
(c) In the application of the formula, B, Y, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y = 15%, BY
is calculated as 0.5 x 15.
(d) If the relevant Lender can not determine a rate, the applicable
Mandatory Cost will be determined on the basis of the rate(s) supplied by
reference banks selected by the relevant Lender.
(e) (i) The formula is applied on the first day of each relevant
period comprised in the relevant Interest Period.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
(f) If the relevant Lender determines that a change in circumstances
has rendered, or will render, the formula inappropriate, the relevant
Lender(after consultation with other Lenders) shall notify the Company of the
manner in which the Mandatory Cost will subsequently be calculated. The
manner of calculation so notified by the relevant Lender shall, in the
absence of manifest error, be binding on all the Parties.
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
Lender Revolving Pro Term Pro Acquisition Pro
Loan Rata Loan Rata Loan Rata
Commitment Share Commitment Share Commitmetn Share
NationsBank,
N.A.
Bank Boston
Fleet Natinal
Bank $ % $ % $ %
Total $75,000,000 100% $105,000,000 100% $170,000,000 100%
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