<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] Quarterly Report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the Quarterly Period Ended March 31, 1999
OR
[ ] Transition Report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the Transition Period from ______ to ______
COMMISSION FILE NUMBER 001-04021
TRISTAR AEROSPACE CO.
(Exact name of registrant as specified in its charter)
DELAWARE 75-2665751
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2527 Willowbrook Road
Suite 200
Dallas, Texas 75220-4420
(Address of principal executive offices)
214-366-5000
(Registrant's telephone number, including area code)
(Former name, former address and former fiscal year if changed since last
report)
Indicate by check mark whether registrant (1) has filed all reports required by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding
12 months (or for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements for the past
90 days. Yes __X__ No ____
Indicate the number of shares outstanding of each of the issuer's classes of
common stock as of the latest practicable date.
Class Number of shares outstanding at March 31, 1999
Common Stock, $.01 par value 17,227,054
<PAGE>
TRISTAR AEROSPACE CO.
FORM 10-Q
Quarter Ended March 31, 1999
TABLE OF CONTENTS
PART I -- FINANCIAL INFORMATION
Item
1. Financial Statements
2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
3. Quantitative and Qualitative Disclosure about
Market Risks
PART II -- OTHER INFORMATION
1. Legal Proceedings
2. Changes in Securities and Use of Proceeds
6. Exhibits and Reports on Form 8-K
Signatures
<PAGE>
TRISTAR AEROSPACE CO. AND SUBSIDIARIES
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
TRISTAR AEROSPACE CO. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
March 31, September 30,
1999 1998
------------ ------------
<S> <C> <C>
ASSETS
Current assets:
Cash $ 12,081 $ 8,202
Accounts receivable, net 43,101 34,479
Inventories, net 110,839 94,980
Other assets 7,224 4,254
------------ -----------
Total current assets 173,245 141,915
Property & equipment, net 5,240 3,932
Intangibles & other assets, net 30,672 9,911
------------ -----------
Total assets $ 209,157 $ 155,758
------------ -----------
------------ -----------
LIABILITIES & STOCKHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt $ 7,000 $ 500
Accounts payable 24,758 21,272
Accrued liabilities & other 10,926 5,447
------------ -----------
Total current liabilities 42,684 27,219
------------ -----------
Long-term debt 103,000 75,000
------------ -----------
Stockholders' equity
Common stock, $.01 par value, 40,000,000 shares authorized 172 170
Additional paid-in capital 26,510 25,694
Retained earnings 36,791 27,675
------------ -----------
Total stockholders' equity: 63,473 53,539
------------ -----------
------------ -----------
Total liabilities & stockholders' equity $ 209,157 $ 155,758
------------ -----------
------------ -----------
</TABLE>
The accompanying notes are an integral part of these
consolidated financial statements.
<PAGE>
TRISTAR AEROSPACE CO. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Six Months
Ended March 31, Ended March 31,
---------------------------- ---------------------------
1999 1998 1999 1998
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Revenues $ 53,304 $ 45,768 $ 101,628 $ 88,404
Cost of goods sold 36,103 30,998 68,847 60,415
---------- ---------- ---------- ----------
Gross profit 17,201 14,770 32,781 27,989
Selling, general & administrative expenses 7,457 7,107 14,849 13,146
Compensation expense of stock options - - - 354
---------- ---------- ---------- ----------
Operating income 9,744 7,663 17,932 14,489
Interest and other expense
Interest expense 1,625 1,284 3,186 2,489
Other income (48) (32) (119) (83)
---------- ---------- ---------- ----------
Income before taxes 8,167 6,411 14,865 12,083
Provision for income taxes 3,137 2,436 5,750 4,585
---------- ---------- ---------- ----------
Net income $ 5,030 $ 3,975 $ 9,115 $ 7,498
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
Earnings per share:
Basic $ 0.29 $ 0.24 $ 0.53 $ 0.45
Diluted $ 0.28 $ 0.22 $ 0.50 $ 0.41
Weighted average shares outstanding:
Basic 17,125 16,583 17,086 16,583
Diluted 18,185 18,158 18,146 18,158
</TABLE>
The accompanying notes are an integral part of these
consolidated financial statements.
<PAGE>
TRISTAR AEROSPACE CO. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
Six Months
Ended March 31,
-------------------------
1999 1998
---------- ----------
<S> <C> <C>
Cash flows from operating activities
Net income $ 9,115 $ 7,498
Adjustments to reconcile net income to net cash
provided by (used in) operating activities
(net of acquisition):
Depreciation and amortization 991 713
Provision for doubtful accounts 30 30
Provision for excess and obsolete inventories 883 1,169
Compensation expense of stock options - 354
Changes in operating assets and liabilities
(Increase) decrease in accounts receivable (6,431) (5,426)
(Increase) decrease in inventories (5,589) (18,216)
(Increase) decrease in other assets (2,213) (448)
Increase (decrease) in accounts payable & accrued expenses 3,354 1,534
---------- ----------
Net cash provided by (used in) operating activities 140 (12,792)
---------- ----------
Cash flows from investing activities:
Acquisition of business (28,189) -
Capital expenditures (1,852) (814)
---------- ----------
Net cash provided by (used in) investing activities (30,041) (814)
---------- ----------
Cash flows from financing activities:
Issuance of common stock 818 -
Borrowings from revolving facility 5,000 14,000
Payments on revolving facility (31,500) -
Borrowings from issuance of long-term debt 110,000 -
Payments on long-term debt (49,000) -
Capitalization of loan fees (1,538) -
---------- ----------
33,780 14,000
---------- ----------
Net increase (decrease) in cash 3,879 394
Cash, beginning of period 8,202 4,764
---------- ----------
Cash, end of period $ 12,081 $ 5,158
---------- ----------
---------- ----------
Supplemental cash flow information:
Cash paid for interest $ 3,279 $ 2,458
Cash paid for income taxes 2,248 4,747
</TABLE>
The accompanying notes are an integral part of these
consolidated financial statements.
<PAGE>
TRISTAR AEROSPACE CO. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 - BASIS OF FINANCIAL STATEMENTS
Unless the context otherwise requires, reference to the "Company" in this Form
10-Q includes TriStar Aerospace Co. and its subsidiaries. The accompanying
unaudited condensed consolidated financial statements have been prepared in
accordance with the instructions to Form 10-Q under Section 13 of the Securities
Exchange Act of 1934 and are filed pursuant to Rule 13a-13 and do not include
all of the information and footnotes required by generally accepted accounting
principles for complete financial statements. In the opinion of management, the
accompanying condensed consolidated financial statements contain all the
adjustments (consisting of normal recurring accruals) necessary for a fair
statement of the Company's financial position as of March 31, 1999 and September
30, 1998, and the results of operations and cash flows for the three month and
six month periods ended March 31, 1999 and 1998. The results of operations for
the three month and six month periods ended March 31, 1999 and 1998 are not
necessarily indicative of the results to be expected for the full fiscal year.
The condensed consolidated financial statements should be read in conjunction
with the financial statements and accompanying notes contained in the Company's
Form 10-K dated as of September 30, 1998.
NOTE 2 - ACQUISITION OF BUSINESS
On March 24, 1999, the Company acquired the outstanding capital stock of
Standard Parts & Equipment Corp. ("SPEC"), based in Fort Worth, Texas. The
purchase price was approximately $28.2 million which included a cash payment of
$24.7 million and the assumption of $3.5 million in debt. The Company may be
required to make additional payments of up to $7.2 million contingent upon the
results of SPEC's operations during the calendar year ended December 31, 1999.
The acquisition was accounted for under the purchase method. Accordingly, the
purchase price was allocated to the assets acquired and liabilities assumed
based and upon their estimated fair market values. This treatment resulted in
approximately $18.9 million of cost in excess of the net assets acquired
(goodwill). This excess (which will increase for any future contingent cash
consideration) will be amortized on a straight-line basis over 30 years. The
results of operations for SPEC have been included in the results of the Company
since completion of the acquisition on March 24, 1999.
NOTE 3 - LONG TERM DEBT
In conjunction with the acquisition of SPEC, the Company amended and restated
its credit agreement on March 24, 1999 ("Credit Agreement"). This restated
agreement expanded the Company's credit facility from $100 million to $160
million. The $160 million includes a $110 million term note ("Term Note") and
a $50 million revolving credit facility ("Revolver"). The Term Note is
payable over a six year period with quarterly payments starting June 15, 1999
and ending on March 24, 2005. Any borrowings under the Revolver must be
repaid by March 24, 2005. The interest rate on both the Term Note and the
Revolver is set at the Euro dollar rate plus a spread not to exceed 2%. The
interest rate was 7.07% as of March 31, 1999. Proceeds from the $110 million
Term Note were used to pay off the existing term loan ($49.0 million) and
revolver balance ($29.5 million) for a total of $78.5 million, provide
funding of approximately $28.2 million for the purchase of SPEC and provide
funds for general corporate purposes. As of March 31, 1999, the Company had
no borrowings under its Revolver.
Future maturities of long-term debt at March 31, 1999 were as follows (in
thousands):
<TABLE>
<CAPTION>
<S> <C>
1999 $ 3,000
2000 11,000
2001 18,000
2002 20,000
2003 22,000
Thereafter 36,000
--------
$110,000
</TABLE>
<PAGE>
NOTE 4 - COMPENSATION EXPENSE OF STOCK OPTIONS
On December 8, 1997, the Company issued options to purchase 158,000 shares of
the Company's common stock to an executive at a discount from the fair market
value at the date of grant. Of the shares, 31,600 became exercisable
immediately and the Company recorded additional non-cash, non-recurring
compensation expense of $354,000 for the six month period ended March 31,
1998.
NOTE 5 - FOOTNOTES INCORPORATED BY REFERENCE
Certain footnotes are applicable to the condensed consolidated financial
statements but would be substantially unchanged from those presented in the
Company's Form 10-K for the fiscal year ended September 30, 1998 filed with the
Securities and Exchange Commission. Accordingly, reference should be made to
those financial statements for the following:
<TABLE>
<CAPTION>
NOTE DESCRIPTION
----------- ---------------------------------------
<S> <C>
1 Organization and Business
2 Summary of Significant Accounting Policies
4 Income Taxes
5 Commitments and Contingencies
8 Employee Stock Plans
</TABLE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements in this Form 10-Q under "Management's Discussion and Analysis
of Financial Condition and Results of Operations" contain "forward-looking
statements" within the meaning of section 21E of the Securities Exchange Act of
1934, as amended. These forward-looking statements can be identified by the use
of predictive, future-tense or forward-looking terminology, such as "believes,"
"anticipates," "expects," "estimates," "may," "will" or similar terms.
Forward-looking statements also include projections concerning any assumptions
relating to the foregoing. Certain important factors which may cause actual
results to vary materially from these forward-looking statements accompany such
statements and appear under the heading "Risk Factors" in the Company's Form
10-K for the period ended September 30, 1998, filed with the Securities and
Exchange Commission. All subsequent written or oral forward-looking statements
attributable to the Company or persons acting on its behalf are expressly
qualified by these factors.
GENERAL
The Company is both a leading provider of customized inventory management
services to original equipment manufacturers of aircraft and aircraft
components, to commercial airlines and aircraft maintenance, repair and
overhaul facilities and to aircraft facilities as well as a leading
distributor of aerospace fasteners, fastening systems and related hardware.
In fiscal year 1998 approximately 57.3% of the Company's revenues were
derived from conventional sales ("conventional sales") and approximately
42.7% of the Company's revenues were derived from sales resulting from the
Company's long-term inventory management agreements ("JIT services" or "JIT
agreements"). For the six months ended March 31, 1999 conventional sales and
JIT services represented 49.5% and 50.5% of revenues, respectively.
RESULTS OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 1999 AND 1998
REVENUES
Revenues increased $7.5 million, or 16.5%, to $53.3 million for the three month
period ended March 31, 1999 compared to $45.8 million for the same period in
1998. The Company's revenues have increased primarily due to new JIT agreements,
an expansion of service levels under certain existing JIT agreements and the
acquisition of SPEC.
<PAGE>
GROSS PROFIT
Gross profit increased $2.4 million, or 16.5%, to $17.2 million for the three
month period ended March 31, 1999, compared to $14.8 million for the same period
in 1998. The increase in gross profit was primarily due to an increase in
revenues as noted above. Gross margin as a percentage of sales was 32.3% for the
three months ended March 31, 1999 and 1998.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Selling, general and administrative expenses increased $.4 million, or 4.9%, to
$7.5 million for the three months ended March 31, 1999, compared to $7.1 million
for the same period in 1998. The increase was primarily due to an increase in
personnel costs necessary to support the growth of new and expanding JIT
agreements. However, SG&A as a percent of sales decreased to 14% for the three
months ended March 31, 1999 compared to 15.5% for the same period in 1998 due
to an increase in operating leverage.
INTEREST EXPENSE
Interest expense increased $.3 million, or 26.6%, to $1.6 million for the three
months ended March 31, 1999, as compared to $1.3 million for the same period in
1998. The increase was due to higher outstanding borrowings during the three
months ended March 31, 1999 as compared to the same period in 1998.
NET INCOME
Net income increased $1.1 million, or 26.5%, to $5.0 million, or $0.28 per
diluted share, for the three months ended March 31, 1999, compared to $4.0
million, or $0.22 per diluted share, for the same period in 1998. The increase
in net income was primarily due to an increase in revenues and gross margins,
which was somewhat offset by an increase in selling, general and administrative
expenses and interest expense.
SIX MONTHS ENDED MARCH 31, 1999 AND 1998
REVENUES
Revenues increased $13.2 million, or 15.0%, to $101.6 million for the six month
period ended March 31, 1999 compared to $88.4 million for the same period in
1998. The Company's revenues have increased primarily due to new JIT agreements
and an expansion of service levels under certain existing JIT agreements.
GROSS PROFIT
Gross profit increased $4.8 million, or 17.1%, to $32.8 million for the six
month period ended March 31, 1999, compared to $28.0 million for the same period
in 1998. The increase in gross profit was primarily due to an increase in
revenues as noted above. Gross margin as a percentage of sales was 32.3% for the
six months ended March 31, 1999 compared to 31.7% for the same period in 1998.
This increase in gross profit as a percentage of sales was mainly due to
decreased freight costs as a result of cost saving initiatives.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Selling, general and administrative expenses increased $1.7 million, or 13.0%,
to $14.8 million for the six months ended March 31, 1999, compared to $13.1
million for the same period in 1998. The increase was primarily due to increased
personnel costs necessary to support the growth in new and expanding JIT
agreements. However, SG&A as a percent of sales decreased to 14.6% for the
six months ended March 31, 1999 compared to 14.9% for the same period in 1998
due to an increase in operating leverage.
INTEREST EXPENSE
Interest expense increased by $0.7 million, or 28.0% to $3.2 million for the six
months ended March 31, 1999 as compared to $2.5 million for the same period in
1998. The increase in interest expense was due to an increase in outstanding
debt balances during the six months ended March 31, 1999 as compared to the same
period in 1998.
NET INCOME
Net income increased $1.6 million, or 21.6%, to $9.1 million, or $0.50 per
diluted share, for the six months ended March 31, 1999 as compared to $7.5
million, or $0.41 per diluted share, for the same period in 1998. The increase
in net income was primarily due to an increase in revenues offset somewhat by an
increase in selling, general and administrative and interest expense.
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
The Company's liquidity requirements consist primarily of working capital needs,
capital expenditures and scheduled payments of interest and principal due to
borrowings under the Company's Credit Agreement (defined below). The Company
funds its liquidity requirements through cash flows from operations and a
revolving credit facility under the Credit Agreement (defined below).
The Company's working capital (current assets minus current liabilities) has
increased $15.9 million, or 13.8%, to $130.6 million as of March 31, 1999,
compared to $114.7 million as of September 30, 1998. The increase in working
capital was mainly the result of higher accounts receivable ($6.4 million) and
inventory ($5.6 million) levels needed to support the growth in revenues during
the six months ended March 31, 1999. The Company has been increasing inventory
levels to support new inventory management service agreements and expansion of
existing inventory management service agreements. Capital expenditures were $1.9
million for the six months ended March 31, 1999 as compared to $0.8 million for
the same period in 1998. This increase in capital expenditures was due to
expenditures for computer hardware and software to support the installation of
an upgraded distribution system and a new financial system. Interest paid was
$3.3 million for the six months ended March 31, 1999 as compared to $2.5 million
for the same period in 1998. The increase in interest was due to higher balances
of outstanding debt throughout the current period.
In conjunction with the acquisition of SPEC, the Company amended and restated
its credit agreement on March 24, 1999 ("Credit Agreement"). The restated
agreement expanded the Company's credit facility from $100 million to $160
million. The $160 million includes a $110 million term note ("Term Note") and
a $50 million revolving credit facility ("Revolver"). The Term Note is
payable over a six year period with quarterly payments starting June 15, 1999
and ending on March 24, 2005. Any borrowings under the Revolver must be
repaid by March 24, 2005. The interest rate on both the Term Note and the
Revolver is set at the Euro dollar rate plus a spread not to exceed 2%. The
interest rate was 7.07% as of March 31, 1999. Proceeds from the $110 million
Term Note were used to pay off the existing term loan ($49.0 million) and
revolver balance ($29.5 million) for a total of $78.5 million, provide
funding of approximately $28.2 million for the purchase of SPEC and provide
funds for general corporate purposes. As of March 31, 1999, the Company had
no borrowings under its Revolver. Management believes that the Company's
current cash position, cash flows from operations and available borrowing
capacity will be sufficient to fund its planned operations and capital
expenditures for the remainder of fiscal 1999. Actual results may differ from
this forward-looking statement.
OTHER
In its report on Form 10-K for the fiscal year ended September 30, 1998, the
Company anticipated that its implementation of year 2000 compliant information
technology systems would be completed by mid-1999. Although implementation of a
year 2000 compliant financial system will be completed by mid-1999, the Company
anticipates that the upgrade of its distribution system will now be completed in
the early part of the second half of 1999.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISKS
Market risks relating to the Company's operations result primarily from changes
in interest rates on outstanding borrowings under the Company's Credit
Agreement. Foreign currency and commodity risks have each been assessed by the
Company as immaterial. The Company has not engaged in hedging activity to limit
its interest rate exposures. Additionally, the Company does not use financial
instruments for trading purposes and is not a party to any leveraged
derivatives.
Interest Rate Risks
The following table provides information about the Company's
financial instruments that are sensitive to changes in interest rates. The
table below presents the Company's debt obligations, principal cash flows and
related weighted-average interest rates by expected maturity dates. As
interest rates are variable, the stated values of market-sensitive
instruments are equivalent to fair value.
<PAGE>
INTEREST RATE SENSITIVITY
PRINCIPAL AMOUNT BY EXPECTED MATURITY
(DOLLARS IN MILLIONS)
<TABLE>
<CAPTION>
FOR FISCAL YEAR ENDED SEPTEMBER 30,
------------------------------------
1999 2000 2001 2002 2003 THEREAFTER
---- ---- ---- ---- ---- ----------
<S> <C> <C> <C> <C> <C> <C>
Bank Term Note, matures March 24,
2005 payable quarterly at the Euro
dollar rate plus a spread of 2.0%
- scheduled principal payments $3.0 $11.0 $18.0 $20.0 $22.0 $36.0
- variable rate as of March 31, 1999 7.07% 7.07% 7.07% 7.07% 7.07% 7.07%
</TABLE>
<PAGE>
TRISTAR AEROSPACE CO. AND SUBSIDIARIES
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
<S> <C>
10.1 Amended and Restated Credit Agreement, dated
as of March 24, 1999, among the Company and
Bankers Trust Company, as agent.
10.2 Pledge Agreement, dated as of March 24, 1999,
among the Company and Bankers Trust Company,
as agent.
10.3 Security Agreement, dated as of March 24,
1999, among the Company and Bankers Trust
Company, as agent.
10.4 Subsidiaries Guaranty, dated as of March 24,
1999, among the Company and Bankers Trust
Company, as agent.
27.1 Financial Data Schedule
</TABLE>
(b) Reports on Form 8-K.
No reports on Form 8-K were filed during the three months ended March 31,
1999. However, the Company did file a report on Form 8-K on or around April
8, 1999 regarding the acquisition of Standard Parts & Equipment Corp.
TRISTAR AEROSPACE CO. AND SUBSIDIARIES
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused the report to be signed on its behalf by the
undersigned thereunto duly authorized.
TRISTAR AEROSPACE CO.
(Registrant)
Date: May 14, 1999 By: /s/ P. QUENTIN BOURJEAURD
------------------------------------
P. Quentin Bourjeaurd
President & Chief Executive Officer
Date: May 14, 1999 By: /s/ DOUGLAS E. CHILDRESS
------------------------------------
Douglas E. Childress
Executive Vice President and Chief
Financial Officer
<PAGE>
[CONFORMED COPY WITH
EXHIBITS G, H, I AND J
CONFORMED AS EXECUTED]
--------------------------------------------------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
among
TRISTAR AEROSPACE CO.,
AEROSPACE ACQUISITION CORP.,
TRISTAR AEROSPACE, INC.,
TRISTAR AEROSPACE SARL,
VARIOUS LENDING INSTITUTIONS,
and
BANKERS TRUST COMPANY,
As AGENT
--------------------------------
Dated as of September 19, 1996
and
Amended and Restated as of March 24, 1999
--------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 1. Amount and Terms of Credit . . . . . . . . . . . . . . . . . . . . . . .1
1.01 Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.02 Minimum Borrowing Amounts, etc.. . . . . . . . . . . . . . . . . . .3
1.03 Notice of Borrowing. . . . . . . . . . . . . . . . . . . . . . . . .4
1.04 Disbursement of Funds. . . . . . . . . . . . . . . . . . . . . . . .5
1.05 Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
1.06 Conversions. . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
1.07 Pro Rata Borrowings. . . . . . . . . . . . . . . . . . . . . . . . .7
1.08 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
1.09 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . .8
1.10 Increased Costs; Illegality; etc.. . . . . . . . . . . . . . . . . 10
1.11 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.12 Change of Lending Office . . . . . . . . . . . . . . . . . . . . . 12
1.13 Replacement of Banks . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2. Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.01 Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . . . 14
2.02 Letter of Credit Requests. . . . . . . . . . . . . . . . . . . . . 15
2.03 Letter of Credit Participations. . . . . . . . . . . . . . . . . . 15
2.04 Agreement to Repay Letter of Credit Drawings . . . . . . . . . . . 18
2.05 Increased Costs. . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.06 Existing Letters of Credit . . . . . . . . . . . . . . . . . . . . 19
SECTION 3. Fees; Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.01 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.02 Voluntary Termination or Reduction of Total Unutilized Revolving
Loan Commitment. . . . . . . . . . . . . . . . . . . . . . . . . 21
3.03 Mandatory Reduction of Commitments . . . . . . . . . . . . . . . . 21
SECTION 4. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.01 Voluntary Prepayments. . . . . . . . . . . . . . . . . . . . . . . 22
4.02 Mandatory Repayments and Commitment Reductions . . . . . . . . . . 23
4.03 Method and Place of Payment. . . . . . . . . . . . . . . . . . . . 28
4.04 Net Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.01 Execution of Agreement; Notes. . . . . . . . . . . . . . . . . . . 31
5.02 Officer's Certificate. . . . . . . . . . . . . . . . . . . . . . . 31
(i)
<PAGE>
PAGE
----
5.03 Opinions of Counsel. . . . . . . . . . . . . . . . . . . . . . . . 31
5.04 Corporate Documents; Proceedings . . . . . . . . . . . . . . . . . 31
5.05 Adverse Change, etc. . . . . . . . . . . . . . . . . . . . . . . . 32
5.06 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.07 Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.08 Consummation of the Acquisition. . . . . . . . . . . . . . . . . . 32
5.09 Refinancing; Existing Credit Agreement . . . . . . . . . . . . . . 33
5.10 Consummation of the Seller Financing . . . . . . . . . . . . . . . 34
5.12 Subsidiaries Guaranty. . . . . . . . . . . . . . . . . . . . . . . 35
5.13 Mortgages; Title Insurance . . . . . . . . . . . . . . . . . . . . 35
5.14 Employee Benefit Plans; Shareholders' Agreements; Management
Agreements; Employment Agreements; Collective Bargaining
Agreements; Existing Indebtedness Agreements; Material
Contracts; Tax Allocation Agreements; Transaction Documents . . . 36
5.15 Solvency Certificate; Insurance Certificates; Environmental
Assessments; Financial Statements . . . . . . . . . . . . . . . . 37
5.16 Existing Indebtedness. . . . . . . . . . . . . . . . . . . . . . . 38
5.17 Pro Forma Balance Sheet; Income Statement; Projections . . . . . . 38
5.18 Payment of Fees. . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6. Conditions Precedent to All Credit Events. . . . . . . . . . . . . . . 39
6.01 No Default; Representations and Warranties . . . . . . . . . . . . 39
6.02 Adverse Change; etc. . . . . . . . . . . . . . . . . . . . . . . . 39
6.03 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.04 Notice of Borrowing; Letter of Credit Request. . . . . . . . . . . 39
6.05 Special Condition Regarding Revolving Loans and Swingline
Loans to French Borrower. . . . . . . . . . . . . . . . . . . . . 39
SECTION 7. Representations, Warranties and Agreements . . . . . . . . . . . . . . 40
7.01 Corporate Status . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.02 Corporate Power and Authority. . . . . . . . . . . . . . . . . . . 40
7.03 No Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.04 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.05 Use of Proceeds; Margin Regulations. . . . . . . . . . . . . . . . 41
7.06 Governmental Approvals . . . . . . . . . . . . . . . . . . . . . . 41
7.07 Investment Company Act . . . . . . . . . . . . . . . . . . . . . . 42
7.08 Public Utility Holding Company Act . . . . . . . . . . . . . . . . 42
7.09 True and Complete Disclosure . . . . . . . . . . . . . . . . . . . 42
7.10 Financial Condition; Financial Statements. . . . . . . . . . . . . 42
7.11 Security Interests . . . . . . . . . . . . . . . . . . . . . . . . 43
7.12 Transaction. . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
7.13 Compliance with ERISA. . . . . . . . . . . . . . . . . . . . . . . 44
7.14 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.15 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.16 Intellectual Property, etc.. . . . . . . . . . . . . . . . . . . . 46
(ii)
<PAGE>
PAGE
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7.17 Compliance with Statutes, etc. . . . . . . . . . . . . . . . . . . 46
7.18 Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . 46
7.19 Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.20 Labor Relations. . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.21 Tax Returns and Payments . . . . . . . . . . . . . . . . . . . . . 47
7.22 Existing Indebtedness. . . . . . . . . . . . . . . . . . . . . . . 48
7.23 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.24 Representations and Warranties in Other Documents. . . . . . . . . 48
7.25 Special Purpose Corporations . . . . . . . . . . . . . . . . . . . 48
SECTION 8. Affirmative Covenants. . . . . . . . . . . . . . . . . . . . . . . . . 49
8.01 Information Covenants. . . . . . . . . . . . . . . . . . . . . . . 49
8.02 Books, Records and Inspections . . . . . . . . . . . . . . . . . . 52
8.03 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
8.04 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 53
8.05 Corporate Franchises . . . . . . . . . . . . . . . . . . . . . . . 53
8.06 Compliance with Statutes; etc. . . . . . . . . . . . . . . . . . . 53
8.07 Compliance with Environmental Laws . . . . . . . . . . . . . . . . 54
8.08 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
8.09 Good Repair. . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
8.10 End of Fiscal Years; Fiscal Quarters . . . . . . . . . . . . . . . 56
8.11 Additional Security; Further Assurances. . . . . . . . . . . . . . 56
8.12 Foreign Subsidiaries Security. . . . . . . . . . . . . . . . . . . 57
8.13 Ownership of Subsidiaries. . . . . . . . . . . . . . . . . . . . . 58
8.14 Permitted Acquisitions . . . . . . . . . . . . . . . . . . . . . . 58
8.15 Maintenance of Corporate Separateness. . . . . . . . . . . . . . . 59
8.16 Performance of Obligations . . . . . . . . . . . . . . . . . . . . 59
8.17 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . 59
8.18 Interest Rate Protection . . . . . . . . . . . . . . . . . . . . . 60
8.19 Contributions; Payments; etc.. . . . . . . . . . . . . . . . . . . 60
8.20 Corporate Names. . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 9. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 60
9.01 Changes in Business. . . . . . . . . . . . . . . . . . . . . . . . 60
9.02 Consolidation; Merger; Sale or Purchase of Assets; etc . . . . . . 61
9.03 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
9.04 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.05 Advances; Investments; Loans . . . . . . . . . . . . . . . . . . . 65
9.06 Dividends; etc.. . . . . . . . . . . . . . . . . . . . . . . . . . 67
9.07 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . 67
9.08 Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . 68
9.09 Minimum Consolidated EBITDA. . . . . . . . . . . . . . . . . . . . 69
9.10 Consolidated Interest Coverage Ratio . . . . . . . . . . . . . . . 69
9.11 Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . 70
(iii)
<PAGE>
PAGE
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9.12 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation,
By-Laws and Certain Other Agreements; Issuances of Capital
Stock; etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
9.13 Limitation on Issuance of Capital Stock. . . . . . . . . . . . . . 71
9.14 Limitation on Certain Restrictions on Subsidiaries . . . . . . . . 72
9.15 Limitation on the Creation of Subsidiaries and Joint Ventures. . . 72
SECTION 10. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.01 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.02 Representations, etc. . . . . . . . . . . . . . . . . . . . . . . 73
10.03 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.04 Default Under Other Agreements. . . . . . . . . . . . . . . . . . 73
10.05 Bankruptcy, etc.. . . . . . . . . . . . . . . . . . . . . . . . . 73
10.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.07 Security Documents. . . . . . . . . . . . . . . . . . . . . . . . 74
10.08 Guaranties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.09 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.10 Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 12. The Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
12.01 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
12.02 Delegation of Duties. . . . . . . . . . . . . . . . . . . . . . .100
12.03 Exculpatory Provisions. . . . . . . . . . . . . . . . . . . . . .100
12.04 Reliance by Agent . . . . . . . . . . . . . . . . . . . . . . . .100
12.05 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . .101
12.06 Nonreliance on Agent and Other Banks. . . . . . . . . . . . . . .101
12.07 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . .101
12.08 Agent in its Individual Capacity. . . . . . . . . . . . . . . . .102
12.09 Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . .102
12.10 Resignation of the Agent. . . . . . . . . . . . . . . . . . . . .102
SECTION 13. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . .103
13.01 Payment of Expenses, etc. . . . . . . . . . . . . . . . . . . . .103
13.02 Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . . .104
13.03 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . .104
13.04 Benefit of Agreement. . . . . . . . . . . . . . . . . . . . . . .104
13.05 No Waiver; Remedies Cumulative. . . . . . . . . . . . . . . . . .106
13.07 Calculations; Computations. . . . . . . . . . . . . . . . . . . .107
13.08 Governing Law; Submission to Jurisdiction; Venue. . . . . . . . .107
13.09 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . .108
13.10 Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . .108
(iv)
<PAGE>
PAGE
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13.11 Headings Descriptive. . . . . . . . . . . . . . . . . . . . . . .108
13.12 Amendment or Waiver; etc. . . . . . . . . . . . . . . . . . . . .108
13.13 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . .110
13.14 Domicile of Loans and Commitments . . . . . . . . . . . . . . . .110
13.15 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . .110
13.16 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . . . .110
13.17 Register. . . . . . . . . . . . . . . . . . . . . . . . . . . . .111
13.18 Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . .111
SECTION 14. Parent Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . .112
14.01 The Guaranty. . . . . . . . . . . . . . . . . . . . . . . . . . .112
14.02 Bankruptcy. . . . . . . . . . . . . . . . . . . . . . . . . . . .112
14.03 Nature of Liability . . . . . . . . . . . . . . . . . . . . . . .113
14.04 Independent Obligation. . . . . . . . . . . . . . . . . . . . . .113
14.05 Authorization . . . . . . . . . . . . . . . . . . . . . . . . . .113
14.06 Reliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . .114
14.07 Subordination . . . . . . . . . . . . . . . . . . . . . . . . . .114
14.08 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115
14.09 Nature of Liability . . . . . . . . . . . . . . . . . . . . . . .116
</TABLE>
ANNEX I List of Banks and Commitments
ANNEX II Bank Addresses
ANNEX III Real Properties
ANNEX IV Existing Indebtedness
ANNEX V Pension Plans
ANNEX VI Existing Investments
ANNEX VII Subsidiaries
ANNEX VIII Insurance
ANNEX IX Existing Liens
ANNEX X Exceptions to Tax Representations
EXHIBIT A -- Form of Notice of Borrowing
EXHIBIT B-1 -- Form of Term Note
EXHIBIT B-2 -- Form of Revolving Note
EXHIBIT B-3 -- Form of Swingline Note
EXHIBIT C -- Form of Letter of Credit Request
EXHIBIT D -- Form of Section 4.04(b)(ii) Certificate
EXHIBIT E-1 -- Form of Opinion of Crouch & Hallett,
special counsel to the Credit Parties
EXHIBIT E-2 -- Form of Opinion of Shauna Martin, Esq.
EXHIBIT F -- Form of Officers' Certificate
EXHIBIT G -- Form of Pledge Agreement
EXHIBIT H -- Form of Security Agreement
EXHIBIT I -- Form of Subsidiaries Guaranty
(v)
<PAGE>
PAGE
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EXHIBIT J -- Form of Solvency Certificate
EXHIBIT K -- Form of Assignment and Assumption Agreement
EXHIBIT L -- Form of Intercompany Note
(vi)
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of September 19, 1996
and Amended and Restated as of March 24, 1999, among TRISTAR AEROSPACE CO., a
Delaware corporation ("Parent"), AEROSPACE ACQUISITION CORP., a Delaware
corporation ("Holdings"), TRISTAR AEROSPACE, INC., a Florida Corporation (the
"US Borrower"), TRISTAR AEROSPACE SARL, a French corporation (the "French
Borrower" and, together with the US Borrower, the "Borrowers"), the lenders from
time to time party hereto (each, a "Bank" and, collectively, the "Banks"), and
BANKERS TRUST COMPANY, as Agent (in such capacity, the "Agent"). Unless
otherwise defined herein, all capitalized terms used herein and defined in
Section 11 are used herein as so defined.
W I T N E S S E T H:
WHEREAS, Parent, Holdings, the Borrowers, certain of the Banks (the
"Existing Banks") and the Agent are party to a Credit Agreement, dated as of
September 19, 1996 (the "Existing Credit Agreement");
WHEREAS, the parties to the Existing Credit Agreement wish to amend
and restate the Existing Credit Agreement in its entirety as herein provided;
and
WHEREAS, subject to and upon the terms and conditions herein set
forth, the Banks are willing to make available to the US Borrower and the French
Borrower the credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 COMMITMENTS. (a) Subject to and upon the terms and conditions
set forth herein, each Bank with a Term Loan Commitment severally agrees to make
a term loan or term loans (each, a "Term Loan" and, collectively, the "Term
Loans") to the US Borrower, which Term Loans: (i) shall be incurred pursuant to
a single drawing on the Restatement Effective Date; (ii) shall be denominated in
U.S. Dollars; (iii) except as hereafter provided, shall, at the option of the US
Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans
or Eurodollar Loans, PROVIDED, that (x) all Term Loans made as part of the same
Borrowing shall, unless otherwise specifically provided herein, consist of Term
Loans of the same Type and (y) unless the Agent has determined that the
Syndication Date has occurred (at which time this clause (y) shall no longer be
applicable), no Borrowings of Term Loans to be maintained as Eurodollar Loans
may be incurred prior to the 30th day after the Restatement Effective Date; and
(iv) shall not exceed for any Bank at the time of incurrence thereof on the
Restatement Effective Date that aggregate principal amount as is equal to the
Term Loan Commitment of such Bank as in effect on the Restatement Effective Date
(before giving effect to any reductions thereto on such date pursuant to Section
3.03(b)(i) but after giving effect to any reductions thereto prior to such date
pursuant to Section 3.03(b)(ii)). Once repaid, Term Loans incurred hereunder
may not be reborrowed.
<PAGE>
(b) Subject to and upon the terms and conditions herein set forth,
each RL Bank severally agrees, at any time and from time to time on and after
the Restatement Effective Date, and in each case prior to the Revolving Loan
Maturity Date, to make a revolving loan or revolving loans (each, a "Revolving
Loan" and, collectively, the "Revolving Loans") to the US Borrower and/or the
French Borrower, which Revolving Loans (i) shall be made to the US Borrower
and/or the French Borrower on a several basis, (ii) shall be denominated in U.S.
Dollars, (iii) except as hereinafter provided, shall, at the option of the
respective Borrower, be incurred and maintained as and/or converted into Base
Rate Loans or Eurodollar Loans, PROVIDED that (x) all Revolving Loans made as
part of the same Borrowing shall, unless otherwise specifically provided herein,
consist of Revolving Loans of the same Type and (y) unless the Agent has
determined that the Syndication Date has occurred (at which time this clause (y)
shall no longer be applicable), no Borrowings of Revolving Loans to be
maintained as Eurodollar Loans may be incurred prior to the 30th day after the
Restatement Effective Date, (iv) may be repaid and reborrowed in accordance with
the provisions hereof, (v) shall not exceed for any Bank at any time outstanding
that aggregate principal amount which, when combined with such Bank's Percentage
of all Swingline Loans then outstanding and the Letter of Credit Outstandings
(exclusive of Unpaid Drawings relating to Letters of Credit which are repaid
with the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) at such time, equals the Revolving Loan
Commitment of such Bank at such time and (vi) in the case of the French
Borrower, shall not exceed, when added to the then outstanding principal amount
of Revolving Loans and Swingline Loans incurred by the French Borrower,
$5,000,000 in aggregate principal amount outstanding at any time.
(c) Subject to and upon the terms and conditions herein set forth,
BTCo in its individual capacity agrees to make at any time and from time to time
on and after the Restatement Effective Date, and in each case prior to the
Swingline Expiry Date, a loan or loans to the US Borrower and/or the French
Borrower (each, a "Swingline Loan" and, collectively, the "Swingline Loans"),
which Swingline Loans (i) shall be made to the US Borrower and/or the French
Borrower on a several basis, (ii) shall be made and maintained as Base Rate
Loans, (iii) shall be denominated in U.S. Dollars, (iv) may be repaid and
reborrowed in accordance with the provisions hereof, (v) shall not exceed in
aggregate principal amount at any time outstanding, when combined with the
aggregate principal amount of all Revolving Loans then outstanding and the
Letter of Credit Outstandings (exclusive of Unpaid Drawings relating to Letters
of Credit which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) at such time, an
amount equal to the Total Revolving Loan Commitment then in effect, (vi) shall
not exceed in aggregate principal amount at any time outstanding for all
Swingline Loans the Maximum Swingline Amount and (vii) in the case of the French
Borrower, shall not exceed, when added to the then outstanding principal amount
of Revolving Loans and Swingline Loans incurred by the French Borrower,
$5,000,000 in aggregate principal amount outstanding at any time. BTCo shall
not be obligated to make any Swingline Loans at a time when a Bank Default
exists unless BTCo has entered into arrangements satisfactory to it and the
respective Borrower to eliminate BTCo's risk with respect to the Defaulting
Bank's or Banks' participation in such Swingline Loans, including by cash
collateralizing such Defaulting Bank's or Banks' Percentage of the outstanding
Swingline Loans. BTCo will not make a Swingline Loan after it has received
written notice from any Borrower or
-2-
<PAGE>
the Required Banks stating that a Default or an Event of Default exists until
such time as BTCo shall have received a written notice of (i) rescission of such
notice from the party or parties originally delivering the same or (ii) a waiver
of such Default or Event of Default from the Required Banks.
(d) On any Business Day, BTCo may, in its sole discretion, give
notice to the RL Banks that its outstanding Swingline Loans shall be funded with
a Borrowing of Revolving Loans (PROVIDED that each such notice shall be deemed
to have been automatically given upon the occurrence of a Default or an Event of
Default under Section 10.05 or upon the exercise of any of the remedies provided
in the last paragraph of Section 10), in which case a Borrowing of Revolving
Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory
Borrowing") shall be made by either or both of the Borrowers, according to their
respective Swingline Loans outstanding at such time, on the immediately
succeeding Business Day by all RL Banks PRO RATA based on each RL Bank's
Percentage, and the proceeds thereof shall be applied directly to repay BTCo for
such outstanding Swingline Loans of the respective Borrowers. Each RL Bank
hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice
pursuant to each Mandatory Borrowing in the amount and in the manner specified
in the preceding sentence and on the date specified in writing by BTCo
notwithstanding (i) that the amount of the Mandatory Borrowing may not comply
with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any
conditions specified in Section 5 or 6 are then satisfied, (iii) whether a
Default or an Event of Default has occurred and is continuing, (iv) the date of
such Mandatory Borrowing and (v) the amount of the Total Revolving Loan
Commitment at such time. In the event that any Mandatory Borrowing cannot for
any reason be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the Bankruptcy
Code in respect of any Borrower), each RL Bank (other than BTCo) hereby agrees
that it shall forthwith purchase from BTCo (without recourse or warranty) such
assignment of the outstanding Swingline Loans as shall be necessary to cause the
RL Banks to share in such Swingline Loans ratably based upon their respective
Percentages (determined before giving effect to any termination of the Revolving
Loan Commitments pursuant to the last paragraph of Section 10), PROVIDED that
(x) all interest payable on the Swingline Loans shall be for the account of BTCo
until the date the respective assignment is purchased and, to the extent
attributable to the purchased assignment, shall be payable to the RL Bank
purchasing same from and after such date of purchase and (y) at the time any
purchase of assignments pursuant to this sentence is actually made, the
purchasing RL Bank shall be required to pay BTCo interest on the principal
amount of assignment purchased for each day from and including the day upon
which the Mandatory Borrowing would otherwise have occurred to but excluding the
date of payment for such assignment, at the rate otherwise applicable to
Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
1.02 MINIMUM BORROWING AMOUNTS, ETC. The aggregate principal amount
of each Borrowing of Loans shall not be less than the Minimum Borrowing Amount
applicable to such Loans, PROVIDED that Mandatory Borrowings shall be made in
the amounts required by Section 1.01(d). More than one Borrowing may be
incurred on any day, PROVIDED, that at no time shall there be outstanding more
than eight Borrowings of Eurodollar Loans.
-3-
<PAGE>
1.03 NOTICE OF BORROWING. (a) Whenever a Borrower desires to make a
Borrowing hereunder (excluding Borrowings of Swingline Loans and Mandatory
Borrowings), it shall give the Agent at its Notice Office, prior to 11:00 A.M.
(New York time), at least three Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) of each Borrowing of Eurodollar
Loans and at least one Business Day's prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing of Base Rate Loans to be made
hereunder. Each such notice (each, a "Notice of Borrowing") shall, except as
otherwise expressly provided in Section 1.10, be irrevocable, and, in the case
of each written notice and each confirmation of telephonic notice, shall be in
the form of Exhibit A, appropriately completed by the respective Borrower
requesting such proposed Borrowing to specify: (i) the aggregate principal
amount of the Loans to be made pursuant to such Borrowing, (ii) the date of such
Borrowing (which shall be a Business Day), (iii) whether the respective
Borrowing shall consist of Term Loans or Revolving Loans, (iv) whether the
respective Borrowing shall consist of Base Rate Loans or, to the extent
permitted hereunder, Eurodollar Loans and, if Eurodollar Loans, the Interest
Period to be initially applicable thereto and (v) in the case of a Borrowing of
Revolving Loans to be made to the US Borrower, the proceeds of which are to be
utilized to finance, in whole or in part, the purchase price of a Permitted
Acquisition, (x) a reference to the officer's certificate, if any, delivered in
accordance with Section 8.14, (y) the aggregate principal amount of such
Revolving Loans to be utilized in connection with such Permitted Acquisition and
(z) the aggregate principal amount of all Revolving Loans relating to Permitted
Acquisitions then outstanding after giving effect to the incurrence of such
Revolving Loans. The Agent shall promptly give each Bank which is required to
make Loans of the Tranche specified in the respective Notice of Borrowing,
written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing, of such Bank's proportionate share thereof and of the other
matters required by the immediately preceding sentence to be specified in the
Notice of Borrowing.
(b) (i) Whenever a Borrower desires to incur Swingline Loans
hereunder, it shall give BTCo not later than 12:00 Noon (New York time) on the
day such Swingline Loan is to be made, written notice (or telephonic notice
promptly confirmed in writing) of each Swingline Loan to be made hereunder.
Each such notice shall be irrevocable and shall specify in each case (x) the
date of such Borrowing (which shall be a Business Day) and (y) the aggregate
principal amount of the Swingline Loan to be made pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(d), with the respective Borrower irrevocably agreeing, by its
incurrence of any Swingline Loan, to the making of Mandatory Borrowings as set
forth in such Section 1.01(d).
(c) Without in any way limiting the obligation of the respective
Borrower to confirm in writing any telephonic notice permitted to be given
hereunder, the Agent or BTCo (in the case of a Borrowing of Swingline Loans) or
the Letter of Credit Issuer (in the case of the issuance of Letters of Credit),
as the case may be, may prior to receipt of written confirmation act without
liability upon the basis of such telephonic notice, believed by the Agent, BTCo
or the Letter of Credit Issuer, as the case may be, in good faith to be from an
Authorized Officer of the respective Borrower. In each such case, the
respective Borrower hereby waives the right to
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dispute the Agent's, BTCo's or the Letter of Credit Issuer's record of the terms
of such telephonic notice.
1.04 DISBURSEMENT OF FUNDS. (a) Not later than 1:00 P.M. (New York
time) on the date specified in each Notice of Borrowing (or (x) in the case of
Swingline Loans, not later than 2:00 P.M. (New York time) on the date specified
in Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, not later than
12:00 Noon (New York time) on the date specified in Section 1.01(d)), each Bank
with a Commitment of the respective Tranche will make available its PRO RATA
share, if any, of each Borrowing requested to be made on such date (or in the
case of Swingline Loans, BTCo shall make available the full amount thereof) in
the manner provided below. All amounts shall be made available to the Agent in
U.S. Dollars and in immediately available funds at the Payment Office and the
Agent promptly will make available to the respective Borrower by depositing to
its account at the Payment Office the aggregate of the amounts so made available
in the type of funds received. Unless the Agent shall have been notified by any
Bank prior to the date of Borrowing that such Bank does not intend to make
available to the Agent its portion of the Borrowing or Borrowings to be made on
such date, the Agent may assume that such Bank has made such amount available to
the Agent on such date of Borrowing, and the Agent, in reliance upon such
assumption, may (in its sole discretion and without any obligation to do so)
make available to the respective Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Agent by such Bank and
the Agent has made available same to the respective Borrower, the Agent shall be
entitled to recover such corresponding amount on demand from such Bank. If such
Bank does not pay such corresponding amount forthwith upon the Agent's demand
therefor, the Agent shall promptly notify the respective Borrower, and the
respective Borrower shall immediately pay such corresponding amount to the
Agent. The Agent shall also be entitled to recover on demand from such Bank or
the respective Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Agent to the respective Borrower to the date such corresponding
amount is recovered by the Agent, at a rate per annum equal to (x) if paid by
such Bank, the overnight Federal Funds Rate or (y) if paid by the respective
Borrower, the then applicable rate of interest, calculated in accordance with
Section 1.08.
(b) Nothing in this Agreement shall be deemed to relieve any Bank
from its obligation to fulfill its commitments hereunder or to prejudice any
rights which the respective Borrower may have against any Bank as a result of
any default by such Bank hereunder.
1.05. NOTES. (a) the US Borrower's and the French Borrower's
respective obligations to pay the principal of, and interest on, all the Loans
made to it by each Bank shall be evidenced (i) if Term Loans, a promissory note
executed by the US Borrower substantially in the form of Exhibit B-1 with blanks
appropriately completed in conformity herewith (each, a "Term Note" and,
collectively, the "Term Notes"), (ii) if Revolving Loans, by promissory notes
executed by the respective Borrower substantially in the form of Exhibit B-2
with blanks appropriately completed in conformity herewith (each, a "Revolving
Note" and, collectively, the "Revolving Notes") and (iii) if Swingline Loans, by
promissory notes executed by the respective Borrower
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substantially in the form of Exhibit B-3 with blanks appropriately completed in
conformity herewith (each a "Swingline Note" and, collectively, the "Swingline
Notes").
(b) The Term Note issued to each Bank shall (i) be executed by the US
Borrower, (ii) be payable to such Bank or its registered assigns and be dated
the Restatement Effective Date, (iii) be in a stated principal amount equal to
the Term Loans made by such Bank and be payable in the principal amount of Term
Loans evidenced thereby, (iv) mature on the Final Maturity Date, (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of the
Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby,
(vi) be subject to voluntary repayment as provided in Section 4.01 and mandatory
repayment as provided in Section 4.02 and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.
(c)(i) The Revolving Note issued to each RL Bank by the US Borrower
shall (t) be executed by the US Borrower, (u) be payable to such Bank or its
registered assigns and be dated the Restatement Effective Date, (v) be in a
stated principal amount equal to the Revolving Loan Commitment of such Bank and
be payable in the principal amount of the outstanding Revolving Loans made to
the US Borrower evidenced thereby, (w) mature on the Revolving Loan Maturity
Date, (x) bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (y) be subject to voluntary prepayment as provided in Section
4.01 and mandatory repayment as provided in Section 4.02 and (z) be entitled to
the benefits of this Agreement and the other Credit Documents and (ii) the
Revolving Note issued to each RL Bank by the French Borrower on the Restatement
Effective Date shall (t) be executed by the French Borrower, (u) be payable to
such Bank or its registered assigns and be dated the Restatement Effective Date,
(v) be in a stated principal amount equal to such Bank's Percentage of
$5,000,000 and be payable in the principal amount of the outstanding Revolving
Loans made to the French Borrower evidenced thereby, (w) mature on the Revolving
Loan Maturity Date, (x) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (y) be subject to voluntary prepayment as provided in
Section 4.01 and mandatory repayment as provided in Section 4.02 and (z) be
entitled to the benefits of this Agreement and the other Credit Documents.
(d)(i) The Swingline Note issued to BTCo by the US Borrower shall
(t) be executed by the US Borrower, (u) be payable to BTCo or its registered
assigns and be dated the Restatement Effective Date, (v) be in a stated
principal amount equal to the Maximum Swingline Amount and be payable in the
principal amount of the outstanding Swingline Loans made to the US Borrower
evidenced thereby, (w) mature on the Swingline Expiry Date, (x) bear interest as
provided in Section 1.08 in respect of the Base Rate Loans evidenced thereby,
(y) be subject to voluntary prepayment as provided in Section 4.01 and mandatory
repayment as provided in Section 4.02 and (z) be entitled to the benefits of
this Agreement and the other Credit Documents and (ii) the Swingline Note issued
to BTCo by the French Borrower shall (t) be executed by the French Borrower, (u)
be payable to BTCo or its registered assigns and be dated the Restatement
Effective Date, (v) be in a stated principal amount equal to the Maximum
Swingline Amount and be payable in the principal amount of the outstanding
Swingline Loans made to the French Borrower evidenced thereby, (w) mature on the
Swingline Expiry Date, (x) bear interest as
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provided in Section 1.08 in respect of the Base Rate Loans evidenced thereby,
(y) be subject to voluntary prepayment as provided in Section 4.01 and mandatory
repayment as provided in Section 4.02 and (z) be entitled to the benefits of
this Agreement and the other Credit Documents.
(e) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in such notation shall not affect the Borrower's obligations in
respect of such Loans.
1.06 CONVERSIONS. The respective Borrower shall have the option to
convert on any Business Day occurring on or after the Restatement Effective
Date, all or a portion at least equal to the applicable Minimum Borrowing Amount
of the outstanding principal amount of its Loans (other than Swingline Loans
which shall at all times be maintained as Base Rate Loans) made pursuant to one
or more Borrowings of one or more Types of Loans under a single Tranche into a
Borrowing or Borrowings of another Type of Loan under such Tranche; PROVIDED,
that (i) except as otherwise provided in Section 1.10(b), Eurodollar Loans may
be converted into Base Rate Loans only on the last day of an Interest Period
applicable to the Loans being converted and no partial conversion of a Borrowing
of Eurodollar Loans shall reduce the outstanding principal amount of the
Eurodollar Loans made pursuant to such Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (ii) Base Rate Loans may only be converted
into Eurodollar Loans if no Default or Event of Default is in existence on the
date of the conversion, (iii) unless the Agent has determined that the
Syndication Date has occurred (at which time this clause (iii) shall no longer
be applicable), conversions of Base Rate Loans into Eurodollar Loans may not be
made prior to the 30th day after the Restatement Effective Date and (iv)
Borrowings of Eurodollar Loans resulting from this Section 1.06 shall be limited
in number as provided in Section 1.02. Each such conversion shall be effected
by the respective Borrower by giving the Agent at its Notice Office, prior to
11:00 A.M. (New York time), at least three Business Days' (or one Business Day's
in the case of a conversion into Base Rate Loans) prior written notice (or
telephonic notice promptly confirmed in writing) (each, a "Notice of
Conversion") specifying the Loans to be so converted, the Borrowing(s) pursuant
to which the Loans were made and, if to be converted into a Borrowing of
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Agent shall give each Bank prompt notice of any such proposed conversion
affecting any of its Loans. Upon any such conversion, the proceeds thereof will
be deemed to be applied directly on the day of such conversion to prepay the
outstanding principal amount of the Loans being converted.
1.07 PRO RATA BORROWINGS. All Borrowings of Term Loans and Revolving
Loans under this Agreement shall be incurred by the respective Borrower from the
Banks PRO RATA on the basis of their Term Loan Commitments or Revolving Loan
Commitments, as the case may be; PROVIDED that all Borrowings of Revolving Loans
made pursuant to a Mandatory Borrowing shall be incurred from the Banks PRO RATA
on the basis on their Percentages. It is understood that no Bank shall be
responsible for any default by any other Bank of its obligation to make Loans
hereunder and that each Bank shall be obligated to make the Loans to be made by
it hereunder, regardless of the failure of any other Bank to fulfill its
commitments hereunder.
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1.08 INTEREST. (a) The unpaid principal amount of each Base Rate
Loan shall bear interest from the date of the Borrowing thereof until the
earlier of (i) the maturity (whether by acceleration or otherwise) of such Base
Rate Loan and (ii) the conversion of such Base Rate Loan to a Eurodollar Loan
pursuant to Section 1.06, at a rate per annum which shall at all times be the
relevant Applicable Base Rate Margin plus the Base Rate in effect from time to
time.
(b) The unpaid principal amount of each Eurodollar Loan shall bear
interest from the date of the Borrowing thereof until the earlier of (i) the
maturity (whether by acceleration or otherwise) of such Eurodollar Loan and (ii)
the conversion of such Eurodollar Loan to a Base Rate Loan pursuant to Section
1.06, 1.09 or 1.10(b), as applicable, at a rate per annum which shall at all
times be the relevant Applicable Eurodollar Margin plus the Eurodollar Rate for
such Interest Period.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan shall bear interest at a rate per annum equal
to the greater of (x) the rate which is 2% in excess of the rate borne by the
respective such Loans immediately prior to the respective payment default and
(y) the rate which is 2% in excess of the rate otherwise applicable to Base Rate
Loans from time to time. Interest which accrues under this Section 1.08(c)
shall be payable on demand.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on each
Quarterly Payment Date, (ii) in respect of each Eurodollar Loan, on (x) the date
of any prepayment or repayment thereof (on the amount prepaid or repaid), (y)
the date of any conversion into a Base Rate Loan pursuant to Section 1.06, 1.09
or 1.10(b), as applicable (on the amount converted) and (z) the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period and (iii) in respect of each Loan, at
maturity (whether by acceleration or otherwise) and, after such maturity, on
demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 13.07(b).
(f) Upon each Interest Determination Date, the Agent shall determine
the Eurodollar Rate for the respective Interest Period or Interest Periods and
shall promptly notify the respective Borrower and the Banks thereof. Each such
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto.
1.09 INTEREST PERIODS. At the time a Borrower gives a Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 11:00 A.M. (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans (in the case of any subsequent Interest Period),
the respective Borrower shall have the right to elect by giving the Agent
written notice (or telephonic notice promptly confirmed in writing) of the
Interest Period applicable to such Borrowing, which Interest Period shall, at
the option of the respective Borrower (but otherwise subject to clause (y)
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of the proviso to Section 1.01(a)(iii) and to clause (iii) of the proviso to
Section 1.06), be a one, two, three or six month period or, to the extent
approved by all Banks with a Commitment or outstanding Loans, as the case may
be, under the respective Tranche, a nine or twelve month period.
Notwithstanding anything to the contrary contained above:
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Borrowing of Eurodollar
Loans shall commence on the date of such Borrowing (including the date of
any conversion from a Borrowing of Base Rate Loans) and each Interest
Period occurring thereafter in respect of such Borrowing shall commence on
the day on which the next preceding Interest Period applicable thereto
expires;
(iii) if any Interest Period for any Borrowing of Eurodollar Loans
begins on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest Period
shall end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, PROVIDED, that if any Interest Period for any
Borrowing of Eurodollar Loans would otherwise expire on a day which is not
a Business Day but is a day of the month after which no further Business
Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(v) no Interest Period for a Borrowing under a Tranche shall be
elected which would extend beyond the respective Maturity Date for such
Tranche;
(vi) no Interest Period may be elected at any time when a Default,
or any Event of Default, is then in existence;
(vii) no Interest Period in respect of any Borrowing of Term Loans
shall be elected which extends beyond any date upon which a Scheduled
Repayment will be required to be made under Section 4.02(b) if, after
giving effect to the election of such Interest Period, the aggregate
principal amount of such Term Loans which have Interest Periods which will
expire after such date will be in excess of the aggregate principal amount
of such Term Loans then outstanding less the aggregate amount of such
required Scheduled Repayment.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the respective Borrower has failed to elect, or
is not permitted to elect, a new Interest Period to be applicable to the
respective Borrowing of Eurodollar Loans as provided above, the respective
Borrower shall be deemed to have elected to convert such Borrowing into a
Borrowing of Base Rate Loans effective as of the expiration date of such current
Interest Period.
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1.10 INCREASED COSTS; ILLEGALITY; ETC. (a) In the event that (x) in
the case of clause (i) below, the Agent or (y) in the case of clauses (ii) and
(iii) below, any Bank, shall have determined (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any Interest Determination Date, that, by reason of any
changes arising after the date of this Agreement affecting the interbank
Eurodollar market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition of
Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loans because of (x) any change since the date of this
Agreement in any applicable law, governmental rule, regulation, guideline,
order or request (whether or not having the force of law), or in the
interpretation or administration thereof and including the introduction of
any new law or governmental rule, regulation, guideline, order or request
(such as, for example, but not limited to, (A) without duplication of any
amounts payable under Section 4.04(a) hereof, a change in the basis of
taxation or payment to any Bank of the principal of or interest on such
Eurodollar Loans or any other amounts payable hereunder (except for changes
with respect to any tax imposed on, or determined by reference to, the net
income or net profits of such Bank pursuant to the laws of the jurisdiction
in which such Bank is organized, or in which such Bank's principal office
or applicable lending office is located or any subdivision thereof or
therein), or (B) a change in official reserve requirements, but, in all
events, excluding reserves required under Regulation D to the extent
included in the computation of the Eurodollar Rate and/or (y) other
circumstances affecting such Bank, the interbank Eurodollar market or the
position of such Bank in such market; or
(iii) at any time since the date of this Agreement, that the making
or continuance of any Eurodollar Loan has become unlawful by compliance by
such Bank with any law, governmental rule, regulation, guideline or order
(or would conflict with any governmental rule, regulation, guideline,
request or order not having the force of law but with which such Bank
customarily complies even though the failure to comply therewith would not
be unlawful), or has become impracticable as a result of a contingency
occurring after the date of this Agreement which materially and adversely
affects the interbank Eurodollar market;
then, and in any such event, such Bank (or the Agent in the case of clause (i)
above) shall promptly give notice (by telephone confirmed in writing) to each
Borrower and (except in the case of clause (i)) to the Agent of such
determination (which notice the Agent shall promptly transmit to each of the
other Banks). Thereafter, (x) in the case of clause (i) above, Eurodollar Loans
shall no longer be available until such time as the Agent notifies the
respective Borrower and the Banks that the circumstances giving rise to such
notice by the Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion given by the respective Borrower with respect to Eurodollar Loans
which have not yet been incurred (including by way of conversion) shall be
deemed rescinded by the respective Borrower, (y) in the case of clause (ii)
above, the respective
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Borrower agrees to pay to such Bank, upon written demand therefor, such
additional amounts (in the form of an increased rate of, or a different method
of calculating, interest or otherwise as such Bank in its sole discretion shall
determine) as shall be required to compensate such Bank for such increased costs
or reductions in amounts received or receivable hereunder (a written notice as
to the additional amounts owed to such Bank, showing the basis for the
calculation thereof, submitted to the respective Borrower by such Bank shall,
absent manifest error, be final and conclusive and binding upon all parties
hereto, although the failure to give any such notice shall not release or
diminish any of the respective Borrower's obligations to pay additional amounts
pursuant to this Section 1.10(a) upon the subsequent receipt of such notice) and
(z) in the case of clause (iii) above, the respective Borrower shall take one of
the actions specified in Section 1.10(b) as promptly as possible and, in any
event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii) the
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, cancel said Borrowing by giving the Agent telephonic
notice (confirmed promptly in writing) thereof on the same date that the
Borrower was notified by a Bank pursuant to Section 1.10(a)(ii) or (iii)), or
(ii) if the affected Eurodollar Loan is then outstanding, upon at least three
Business Days' notice to the Agent, require the affected Bank to convert each
such Eurodollar Loan into a Base Rate Loan; PROVIDED, that if more than one Bank
is affected at any time, then all affected Banks must be treated the same
pursuant to this Section 1.10(b).
(c) If any Bank shall have determined that after the date hereof, the
adoption or effectiveness of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by such Bank or any corporation controlling such Bank with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Bank's or such other corporation's
capital or assets as a consequence of such Bank's Commitment or Commitments
hereunder or its obligations hereunder to a level below that which such Bank or
such other corporation could have achieved but for such adoption, effectiveness,
change or compliance (taking into consideration such Bank's or such other
corporation's policies with respect to capital adequacy), then from time to
time, upon written demand by such Bank (with a copy to the Agent), accompanied
by the notice referred to in the last sentence of this clause (c), the Borrower
shall pay to such Bank such additional amount or amounts as will compensate such
Bank or such other corporation for such reduction. Each Bank, upon determining
in good faith that any additional amounts will be payable pursuant to this
Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy
of which shall be sent by such Bank to the Agent), which notice shall set forth
the basis of the calculation of such additional amounts, although the failure to
give any such notice shall not release or diminish the Borrower's obligations to
pay additional amounts pursuant to this Section 1.10(c) upon the subsequent
receipt of such notice. A Bank's reasonable good faith determination of
compensation
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owing under this Section 1.10(c) shall, absent manifest error, be final and
conclusive and binding on all the parties hereto.
1.11 COMPENSATION. Each Borrower shall compensate each Bank,
promptly upon its written request (which request shall set forth the basis for
requesting such compensation), for all losses, expenses and liabilities
(including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required by
such Bank to fund its Eurodollar Loans) which such Bank may sustain in respect
of Loans made to such Borrower or Notices of Borrowing or Notices of Conversion
delivered by such Borrower: (i) if for any reason (other than a default by such
Bank or the Agent) a Borrowing of, or conversion from or into, Eurodollar Loans
does not occur on a date specified therefor in a Notice of Borrowing or Notice
of Conversion (whether or not withdrawn by the respective Borrower or deemed
withdrawn pursuant to Section 1.10(a)); (ii) if any repayment (including any
repayment made pursuant to Section 4.01 or 4.02 or as a result of an
acceleration of the Loans pursuant to Section 9 or as a result of the
replacement of a Bank pursuant to Section 1.13 or 13.12(b)) or conversion of any
Eurodollar Loans occurs on a date which is not the last day of an Interest
Period applicable thereto; (iii) if any prepayment of any Eurodollar Loans is
not made on any date specified in a notice of prepayment given by the respective
Borrower; or (iv) as a consequence of (x) any other default by the respective
Borrower to repay its Eurodollar Loans when required by the terms of this
Agreement or (y) an election made pursuant to Section 1.10(b). A Bank's basis
for requesting compensation pursuant to this Section 1.11 and a Bank's
calculation of the amount thereof, shall, absent manifest error, be final and
conclusive and binding on all parties hereto.
1.12 CHANGE OF LENDING OFFICE. Each Bank agrees that, upon the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), 1.10(c), 2.05 or 4.04 with respect to such Bank, it will, if requested by
the US Borrower, use reasonable efforts (subject to overall policy
considerations of such Bank) to designate another lending office for any Loans
or Letters of Credit affected by such event; PROVIDED, that such designation is
made on such terms that, in the sole judgment of such Bank, such Bank and its
lending office suffer no economic, legal or regulatory disadvantage, with the
object of avoiding the consequences of the event giving rise to the operation of
any such Section. Nothing in this Section 1.12 shall affect or postpone any of
the obligations of any Borrower or the right of any Bank provided in Section
1.10, 2.05 or 4.04.
1.13 REPLACEMENT OF BANKS. (x) If any Bank becomes a Defaulting
Bank, (y) upon the occurrence of any event giving rise to the operation of
Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.05 or Section 4.04 with
respect to any Bank which results in such Bank charging to a Borrower increased
costs in a material amount in excess of those being generally charged by the
other Banks or (z) in the case of a refusal by a Bank to consent to a proposed
change, waiver, discharge or termination with respect to this Agreement which
has been approved by the Required Banks as provided in Section 13.12(b), the US
Borrower shall have the right, in accordance with Section 13.04(b), if no
Default or Event of Default then exists or would exist after giving effect to
such replacement, to replace such Bank (the "Replaced Bank") with one or more
other Eligible Transferee or Transferees, none of whom shall constitute a
Defaulting Bank at the time of such replacement (collectively, the "Replacement
Bank") and each of whom shall be reasonably acceptable to the Agent or, at the
option of the US Borrower, to replace only
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(a) the Revolving Loan Commitment (and outstandings pursuant thereto) of the
Replaced Bank with an identical Revolving Loan Commitment provided by the
Replacement Bank or (b) in the case of a replacement as provided in
Section 13.12(b) where the consent of the respective Bank is required with
respect to less than all Tranches of its Loans or Commitments, the Commitments
and/or outstanding Loans of such Bank in respect of each Tranche where the
consent of such Bank would otherwise be individually required, with identical
Commitments and/or Loans of the respective Tranche provided by the Replacement
Bank; PROVIDED that:
(i) at the time of any replacement pursuant to this Section 1.13, the
Replacement Bank shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 13.04(b) (and with all fees payable pursuant to
said Section 13.04(b) to be paid by the Replacement Bank) pursuant to which the
Replacement Bank shall acquire all of the Commitments and outstanding Loans (or,
in the case of the replacement of only (a) the Revolving Loan Commitment, the
Revolving Loan Commitment and outstanding Revolving Loans and participations in
Letter of Credit Outstandings and/or (b) Term Loans, the outstanding Term Loans)
of, and in each case (except for the replacement of only the outstanding Term
Loans of the respective Bank) participations in Letters of Credit by, the
Replaced Bank and, in connection therewith, shall pay to (x) the Replaced Bank
in respect thereof an amount equal to the sum of (A) an amount equal to the
principal of, and all accrued interest on, all outstanding Loans (or, in the
case of the replacement of only (I) the Revolving Loan Commitment, the
outstanding Revolving Loans or (II) the Term Loans, the outstanding Term Loans)
of the Replaced Bank, (B) except in the case of the replacement of only the
outstanding Term Loans of a Replaced Bank, an amount equal to all Unpaid
Drawings that have been funded by (and not reimbursed to) such Replaced Bank,
together with all then unpaid interest with respect thereto at such time and (C)
an amount equal to all accrued, but theretofore unpaid, Fees owing to the
Replaced Bank (but only with respect to the relevant Tranche, in the case of the
replacement of less than all Tranches of Loans then held by the respective
Replaced Bank) pursuant to Section 3.01, (y) except in the case of the
replacement of only the outstanding Term Loans of a Replaced Bank, each Letter
of Credit Issuer an amount equal to such Replaced Bank's Percentage of any
Unpaid Drawing relating to Letters of Credit issued by such Letter of Credit
Issuer (which at such time remains an Unpaid Drawing) tothe extent such amount
was not theretofore funded by such Replaced Bank and (z) in the case of any
replacement of Revolving Loan Commitments, BTCo an amount equal to such Replaced
Bank's Percentage of any Mandatory Borrowing to the extent such amount was not
theretofore funded by such Replaced Bank; and
(ii) all obligations of each Borrower then owing to the Replaced Bank
(other than those (a) specifically described in clause (i) above in respect of
which the assignment purchase price has been, or is concurrently being, paid,
but including all amounts, if any, owing under Section 1.11 or (b) relating to
any Tranche of Loans and/or Commitments of the respective Replaced Bank which
will remain outstanding after giving effect to the respective replacement) shall
be paid in full to such Replaced Bank concurrently with such replacement.
Upon the execution of the respective Assignment and Assumption Agreements, the
payment of amounts referred to in clauses (i) and (ii) above, recordation of the
assignment on the Register by the Agent pursuant to Section 13.17 and, if so
requested by the Replacement Bank, delivery to
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the Replacement Bank of the appropriate Note or Notes executed by the respective
Borrower or Borrowers, (x) the Replacement Bank shall become a Bank hereunder
and, unless the respective Replaced Bank continues to have outstanding Term
Loans or a Revolving Loan Commitment hereunder, the Replaced Bank shall cease to
constitute a Bank hereunder, except with respect to indemnification provisions
under this Agreement (including, without limitation, Sections 1.10, 1.11, 2.05,
4.04, 13.01 and 13.06), which shall survive as to such Replaced Bank and (y) in
the case of the replacement of a Defaulting Bank with a Non-Defaulting Bank, the
Percentages of the Banks shall be automatically adjusted at such time to give
effect to such replacement.
SECTION 2. LETTERS OF CREDIT.
2.01 LETTERS OF CREDIT. (a) Subject to and upon the terms and
conditions herein set forth, the US Borrower may request a Letter of Credit
Issuer at any time and from time to time on or after the Restatement Effective
Date and prior to the tenth Business Day (or the 30th day in the case of trade
Letters of Credit) preceding the Revolving Loan Maturity Date to issue, for the
account of the US Borrower and in support of (x) trade obligations of the US
Borrower or any of its Subsidiaries that arise in the ordinary course of
business and/or (y) on a standby basis, L/C Supportable Indebtedness of the US
Borrower or any of its Subsidiaries to any other Person, irrevocable sight
letters of credit in such form as may be approved by such Letter of Credit
Issuer (each such letter of credit, a "Letter of Credit" and, collectively, the
"Letters of Credit"). Notwithstanding the foregoing, no Letter of Credit Issuer
shall be under any obligation to issue any Letter of Credit if at the time of
such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Letter of
Credit Issuer from issuing such Letter of Credit or any requirement of law
applicable to such Letter of Credit Issuer or any request or directive
(whether or not having the force of law) from any governmental authority
with jurisdiction over such Letter of Credit Issuer shall prohibit, or
request that such Letter of Credit Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon such Letter of Credit Issuer with respect to such Letter of
Credit any restriction or reserve or capital requirement (for which such
Letter of Credit Issuer is not otherwise compensated) not in effect on the
date hereof, or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Letter of Credit Issuer as of the
date hereof and which such Letter of Credit Issuer in good faith deems
material to it; or
(ii) such Letter of Credit Issuer shall have received notice from
the US Borrower or the Required Banks prior to the issuance of such Letter
of Credit of the type described in clause (vi) of Section 2.01(b).
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time, would
exceed either (x) $5,000,000 or (y) when added to the aggregate principal amount
of all Revolving Loans and Swingline Loans then outstanding, the Total Revolving
Loan Commitment at such time; (ii) (x) each standby Letter of Credit shall have
an
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expiry date occurring not later than one year after such Letter of Credit's
date of issuance, PROVIDED, that any such Letter of Credit may be extendable for
successive periods of up to one year, but not beyond the tenth business day
preceding the Revolving Loan Maturity Date, on terms acceptable to the Letter of
Credit Issuer and (y) each trade Letter of Credit shall have an expiry date
occurring not later than 180 days after such Letter of Credit's date of
issuance; (iii) (x) no standby Letter of Credit shall have an expiry date
occurring later than the tenth Business Day preceding the Revolving Loan
Maturity Date and (y) no trade Letter of Credit shall have an expiry date
occurring later than 30 days prior to the Revolving Loan Maturity Date; (iv)
each Letter of Credit shall be denominated in U.S. Dollars; (v) the Stated
Amount of each Letter of Credit shall not be less than $100,000 or such lesser
amount as is acceptable to the respective Letter of Credit Issuer; and (vi) no
Letter of Credit Issuer will issue any Letter of Credit after it has received
written notice from the US Borrower or the Required Banks stating that a Default
or an Event of Default exists until such time as such Letter of Credit Issuer
shall have received a written notice of (x) rescission of such notice from the
party or parties originally delivering the same or (y) a waiver of such Default
or Event of Default by the Required Banks.
(c) Notwithstanding the foregoing, in the event a Bank Default
exists, no Letter of Credit Issuer shall be required to issue any Letter of
Credit unless the respective Letter of Credit Issuer has entered into
arrangements satisfactory to it and the US Borrower to eliminate such Letter of
Credit Issuer's risk with respect to the participation in Letters of Credit of
the Defaulting Bank or Banks, including by cash collateralizing such Defaulting
Bank's or Banks' Percentage of the Letter of Credit Outstandings, as the case
may be.
2.02 LETTER OF CREDIT REQUESTS. (a) Whenever the US Borrower
desires that a Letter of Credit be issued, the US Borrower shall give the Agent
and the respective Letter of Credit Issuer written notice (or telephonic notice
confirmed in writing) thereof prior to 12:00 Noon (New York time) at least five
Business Days (or such shorter period as may be acceptable to the respective
Letter of Credit Issuer) prior to the proposed date of issuance (which shall be
a Business Day) which written notice shall be in the form of Exhibit C (each, a
"Letter of Credit Request"). Each Letter of Credit Request shall include any
other documents as such Letter of Credit Issuer customarily requires in
connection therewith.
(b) The making of each Letter of Credit Request shall be deemed to be
a representation and warranty by the US Borrower that such Letter of Credit may
be issued in accordance with, and it will not violate the requirements of,
Section 2.01(a). Unless the respective Letter of Credit Issuer has received
notice from the Required Banks before it issues a Letter of Credit that one or
more of the applicable conditions specified in Section 5 or 6, as the case may
be, are not then satisfied, or that the issuance of such Letter of Credit would
violate Section 2.01(a), then such Letter of Credit Issuer may issue the
requested Letter of Credit for the account of the US Borrower in accordance with
such Letter of Credit Issuer's usual and customary practice.
2.03 LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the
issuance by a Letter of Credit Issuer of any Letter of Credit, such Letter of
Credit Issuer shall be deemed to have sold and transferred to each other RL
Bank, and each such RL Bank (each, a "Participant")
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shall be deemed irrevocably and unconditionally to have purchased and received
from such Letter of Credit Issuer, without recourse or warranty, an undivided
interest and participation, to the extent of such Participant's Percentage, in
such Letter of Credit, each substitute Letter of Credit, each drawing made
thereunder and the obligations of the US Borrower under this Agreement with
respect thereto (although Letter of Credit Fees shall be payable directly to the
Agent for the account of the RL Banks as provided in Section 3.01(b) and the
Participants shall have no right to receive any portion of any Facing Fees with
respect to such Letters of Credit) and any security therefor or guaranty
pertaining thereto. Upon any change in the Revolving Loan Commitments of the RL
Banks pursuant to Section 1.13 or 13.04(b), it is hereby agreed that, with
respect to all outstanding Letters of Credit and Unpaid Drawings with respect
thereto, there shall be an automatic adjustment to the participations pursuant
to this Section 2.03 to reflect the new Percentages of the assigning and
assignee Bank.
(b) In determining whether to pay under any Letter of Credit, no
Letter of Credit Issuer shall have any obligation relative to the Participants
other than to determine that any documents required to be delivered under such
Letter of Credit have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by any Letter of Credit Issuer under or in
connection with any Letter of Credit issued by it if taken or omitted in the
absence of gross negligence or willful misconduct, shall not create for such
Letter of Credit Issuer any resulting liability.
(c) In the event that any Letter of Credit Issuer makes any payment
under any Letter of Credit issued by it and the US Borrower shall not have
reimbursed such amount in full to the Letter of Credit Issuer pursuant to
Section 2.04(a), such Letter of Credit Issuer shall promptly notify the Agent,
and the Agent shall promptly notify each Participant of such failure, and each
such Participant shall promptly and unconditionally pay to the Agent for the
account of such Letter of Credit Issuer, the amount of such Participant's
Percentage of such payment in U.S. Dollars and in same day funds. If the Agent
so notifies any Participant required to fund a payment under a Letter of Credit
prior to 11:00 A.M. (New York time) on any Business Day, such Participant shall
make available to the Agent at the Payment Office for the account of the
respective Letter of Credit Issuer such Participant's Percentage of the amount
of such payment on such Business Day in same day funds (and, to the extent such
notice is given after 11:00 A.M. (New York time) on any Business Day, such
Participant shall make such payment on the immediately following Business Day).
If and to the extent such Participant shall not have so made its Percentage of
the amount of such payment available to the Agent for the account of the
respective Letter of Credit Issuer, such Participant agrees to pay to the Agent
for the account of such Letter of Credit Issuer, forthwith on demand such
amount, together with interest thereon, for each day from such date until the
date such amount is paid to the Agent for the account of the Letter of Credit
Issuer at the overnight Federal Funds Rate. The failure of any Participant to
make available to the Agent for the account of the respective Letter of Credit
Issuer its Percentage of any payment under any Letter of Credit issued by it
shall not relieve any other Participant of its obligation hereunder to make
available to the Agent for the account of such Letter of Credit Issuer its
applicable Percentage of any payment under any such Letter of Credit on the date
required, as specified above, but no Participant shall be responsible for the
failure of
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any other Participant to make available to the Agent for the account of such
Letter of Credit Issuer such other Participant's Percentage of any such payment.
(d) Whenever any Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Agent has received for the account of
such Letter of Credit Issuer any payments from the Participants pursuant to
clause (c) above, such Letter of Credit Issuer shall pay to the Agent and the
Agent shall promptly pay to each Participant which has paid its Percentage
thereof, in U.S. Dollars and in same day funds, an amount equal to such
Participant's Percentage of the principal amount thereof and interest thereon
accruing after the purchase of the respective participations.
(e) Each Letter of Credit Issuer shall, promptly after each issuance
of, or amendment or modification to, a standby Letter of Credit issued by it,
give the Agent, each Participant and the US Borrower written notice of the
issuance of, or amendment or modification to, such Letter of Credit, which
notice shall be accompanied by a copy of the standby Letter of Credit or standby
Letters of Credit issued by it and each such amendment or modification thereto.
(f) Each Letter of Credit Issuer (other than BTCo) shall deliver to
the Agent, promptly on the first Business Day of each week, by facsimile
transmission, the daily aggregate Stated Amount available to be drawn under the
outstanding trade Letters of Credit issued by such Letter of Credit Issuer for
the previous week. The Agent shall, within 10 days after the last Business Day
of each calendar month, deliver to each Participant a report setting forth for
such preceding calendar month the daily aggregate Stated Amount available to be
drawn under all outstanding trade Letters of Credit during such calendar month.
(g) The obligations of the Participants to make payments to the Agent
for the account of the respective Letter of Credit Issuer with respect to
Letters of Credit issued by it shall be irrevocable and not subject to
counterclaim, set-off or other defense or any other qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances, including, without limitation, any of the
following circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right
which the US Borrower or any of its Subsidiaries may have at any time
against a beneficiary named in a Letter of Credit, any transferee of any
Letter of Credit (or any Person for whom any such transferee may be
acting), the Agent, any Letter of Credit Issuer, any Bank, or other Person,
whether in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions (including
any underlying transaction between the US Borrower or any of its
Subsidiaries and the beneficiary named in any such Letter of Credit);
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(iii) any draft, certificate or other document presented under the
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;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.04 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The US
Borrower hereby agrees to reimburse each Letter of Credit Issuer, by making
payment to the Agent in immediately available funds at the Payment Office, for
any payment or disbursement made by such Letter of Credit Issuer under any
Letter of Credit issued by it (each such amount so paid or disbursed until
reimbursed, an "Unpaid Drawing") no later than one Business Day following the
date of such payment or disbursement, with interest on the amount so paid or
disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to
1:00 P.M. (New York time) on the date of such payment or disbursement, from and
including the date paid or disbursed to but not including the date such Letter
of Credit Issuer is reimbursed therefor at a rate per annum which shall be the
Base Rate plus the Applicable Base Rate Margin for Revolving Loans as in effect
from time to time (plus an additional 2% per annum if not reimbursed by the
third Business Day after the date of such payment or disbursement), such
interest also to be payable on demand; PROVIDED, that it is understood and
agreed, however, that the notices referred to below in this clause (a) shall not
be required to be given if a Default or an Event of Default under Section 10.05
shall have occurred and be continuing (in which case the Unpaid Drawings shall
be due and payable immediately without presentment, demand, protest or notice of
any kind (all of which are hereby waived by each Credit Party) and shall bear
interest at a rate per annum which shall be the Base Rate plus the Applicable
Margin for Revolving Loans plus 2% on and after the third Business Day following
the respective Drawing). Each Letter of Credit Issuer shall provide the US
Borrower prompt notice of any payment or disbursement made by it under any
Letter of Credit issued by it, although the failure of, or delay in, giving any
such notice shall not release or diminish the obligations of the US Borrower
under this Section 2.04(a) or under any other Section of this Agreement.
(b) The US Borrower's obligation under this Section 2.04 to reimburse
the respective Letter of Credit Issuer with respect to Unpaid Drawings
(including, in each case, interest thereon) shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the US Borrower or any of its Subsidiaries may have or
have had against such Letter of Credit Issuer, the Agent or any Bank, including,
without limitation, any defense based upon the failure of any drawing under a
Letter of Credit issued by it to conform to the terms of the Letter of Credit or
any nonapplication or misapplication by the beneficiary of the proceeds of such
drawing; PROVIDED, HOWEVER, that the US Borrower shall not be obligated to
reimburse such Letter of Credit Issuer for any wrongful payment made by such
Letter of Credit Issuer under a Letter of Credit issued by it as a result of
acts or omissions constituting willful misconduct or gross negligence on the
part of such Letter of Credit Issuer as determined by a court of competent
jurisdiction.
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2.05 INCREASED COSTS. If after the date hereof, the adoption or
effectiveness of any applicable law, rule or regulation, order, guideline or
request or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Letter of Credit Issuer or any Participant with any request or directive
(whether or not having the force of law) by any such authority, central bank or
comparable agency shall either (i) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against Letters of
Credit issued by such Letter of Credit Issuer or such Participant's
participation therein, or (ii) impose on any Letter of Credit Issuer or any
Participant any other conditions directly or indirectly affecting this
Agreement, any Letter of Credit or such Participant's participation therein; and
the result of any of the foregoing is to increase the cost to such Letter of
Credit Issuer or such Participant of issuing, maintaining or participating in
any Letter of Credit, or to reduce the amount of any sum received or receivable
by such Letter of Credit Issuer or such Participant hereunder or reduce the rate
of return on its capital with respect to Letters of Credit, then, upon written
demand to the US Borrower by such Letter of Credit Issuer or such Participant (a
copy of which notice shall be sent by such Letter of Credit Issuer or such
Participant to the Agent), accompanied by the certificate described in the last
sentence of this Section 2.05, the US Borrower shall pay to such Letter of
Credit Issuer or such Participant such additional amount or amounts as will
compensate such Letter of Credit Issuer or such Participant for such increased
cost or reduction. A certificate submitted to the US Borrower by such Letter of
Credit Issuer or such Participant, as the case may be (a copy of which
certificate shall be sent by such Letter of Credit Issuer or such Participant to
the Agent), setting forth the basis for the determination of such additional
amount or amounts necessary to compensate such Letter of Credit Issuer or such
Participant as aforesaid shall be final and conclusive and binding on the US
Borrower absent manifest error, although the failure to deliver any such
certificate shall not release or diminish the US Borrower's obligations to pay
additional amounts pursuant to this Section 2.05 upon subsequent receipt of such
certificate.
2.06 EXISTING LETTERS OF CREDIT. Any Letters of Credit outstanding
under the Existing Credit Agreement on the Restatement Effective Date and not
otherwise terminated or expiring on such date (prior to giving effect to this
Agreement), shall be deemed for all purposes to be issued hereunder in
accordance with the terms of such Letter of Credit and this Agreement, with such
issuance to constitute a Credit Event for purposes of Sections 5 and 6 of this
Agreement.
SECTION 3. Fees; Commitments.
3.01 FEES. (a) The US Borrower shall pay to the Agent for
distribution to each Non-Defaulting Bank with a Revolving Loan Commitment a
commitment fee (the "Commitment Fee") for the period from the Restatement
Effective Date to but not including Revolving Loan Maturity Date (or such
earlier date as the Total Revolving Loan Commitment shall have been terminated),
computed at a rate equal to the Applicable Commitment Fee Percentage of the
daily average Unutilized Revolving Loan Commitment of such Non-Defaulting Bank.
Accrued Commitment Fees shall be due and payable quarterly in arrears on each
Quarterly Payment Date
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and on the Revolving Loan Maturity Date (or such earlier date upon which the
Total Revolving Loan Commitment is terminated).
(b) The US Borrower shall pay to the Agent for PRO RATA distribution
to each Non-Defaulting Bank with a Revolving Loan Commitment (based on their
respective Percentages), a fee in respect of each issued Letter of Credit (the
"Letter of Credit Fee") computed at a rate per annum equal to the Applicable
Eurodollar Margin for Revolving Loans then in effect on the daily Stated Amount
of such Letter of Credit. Accrued Letter of Credit Fees shall be due and payable
quarterly in arrears on each Quarterly Payment Date and upon the first day on or
after the termination of the Total Revolving Loan Commitment upon which no
Letters of Credit remain outstanding.
(c) The US Borrower shall pay to each Letter of Credit Issuer a fee
in respect of each Letter of Credit issued by such Letter of Credit Issuer (the
"Facing Fee") computed at the rate of 1/4 of 1% per annum on the daily Stated
Amount of such Letter of Credit; PROVIDED, that in no event shall the annual
Facing Fee with respect to each Letter of Credit be less than $500; it being
agreed that (x) on the date of issuance of any Letter of Credit and on each
anniversary thereof prior to the termination of such Letter of Credit, if $500
will exceed the amount of Facing Fees that will accrue with respect to such
Letter of Credit for the immediately succeeding 12-month period, the full $500
shall be payable on the date of issuance of such Letter of Credit and on each
such anniversary thereof prior to the termination of such Letter of Credit and
(y) if on the date of the termination of any Letter of Credit, $500 actually
exceeds the amount of Facing Fees paid or payable with respect to such Letter of
Credit for the period beginning on the date of the issuance thereof (or if the
respective Letter of Credit has been outstanding for more than one year, the
date of the last anniversary of the issuance thereof occurring prior to the
termination of such Letter of Credit) and ending on the date of the termination
thereof, an amount equal to such excess shall be paid as additional Facing Fees
with respect to such Letter of Credit on the next date upon which Facing Fees
are payable in accordance with the immediately succeeding sentence. Except as
provided in the immediately preceding sentence, accrued Facing Fees shall be due
and payable quarterly in arrears on each Quarterly Payment Date and upon the
first day on or after the termination of the Total Revolving Loan Commitment
upon which no Letters of Credit remain outstanding.
(d) The US Borrower shall pay directly to each Letter of Credit
Issuer upon each issuance of, payment under, and/or amendment of, a Letter of
Credit issued by such Letter of Credit Issuer such amount as shall at the time
of such issuance, payment or amendment be the administrative charge which such
Letter of Credit Issuer is customarily charging for issuances of, payments under
or amendments of, letters of credit issued by it, plus any expenses relating to
such transactions.
(e) The US Borrower shall pay to the Agent, for its own account, such
fees as may be agreed to in writing from time to time between the US Borrower
and the Agent, when and as due.
(f) All computations of Fees shall be made in accordance with Section
13.07(b).
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3.02 VOLUNTARY TERMINATION OR REDUCTION OF TOTAL UNUTILIZED REVOLVING
LOAN COMMITMENT. (a) Upon at least three Business Days' prior notice to the
Agent at its Notice Office (which notice the Agent shall promptly transmit to
each of the Banks), the US Borrower shall have the right, without premium or
penalty, to terminate or partially reduce the Total Unutilized Revolving Loan
Commitment, PROVIDED that (v) any such termination or partial reduction shall
apply to proportionately and permanently reduce the Revolving Loan Commitment of
each of the RL Banks, (w) any reduction to the Total Unutilized Revolving Loan
Commitment prior to the Restatement Effective Date may only be made in
connection with a termination in full of the Total Revolving Loan Commitment,
(x) any partial reduction pursuant to this Section 3.02(a) shall be in integral
multiples of $1,000,000 and (y) the reduction to the Total Unutilized Revolving
Loan Commitment shall in no case be in an amount which would cause the Revolving
Loan Commitment of any RL Bank to be reduced (as required by the preceding
clause (v)) by an amount which exceeds the remainder of (A) the Unutilized
Revolving Loan Commitment of such RL Bank as in effect immediately before giving
effect to such reduction minus (B) such RL Bank's Percentage of the aggregate
principal amount of Swingline Loans then outstanding.
(b) In the event of certain refusals by a Bank to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as provided in Section
13.12(b), the US Borrower shall have the right, subject to obtaining the
consents required by Section 13.12(b), upon five Business Days' prior written
notice to the Agent at its Notice Office (which notice the Agent shall promptly
transmit to each of the Banks), to terminate the entire Revolving Loan
Commitment of such Bank, so long as all Loans, together with accrued and unpaid
interest, Fees and all other amounts, owing to such Bank (including all amounts,
if any, owing pursuant to Section 1.11 but excluding amounts owing in respect of
Term Loans maintained by such Bank, if such Term Loans are not being repaid
pursuant to Section 13.12(b)) are repaid concurrently with the effectiveness of
such termination (at which time Annex I shall be deemed modified to reflect such
changed amounts) and at such time, unless the respective Bank continues to have
outstanding Term Loans hereunder, such Bank shall no longer constitute a "Bank"
for purposes of this Agreement, except with respect to indemnifications under
this Agreement (including, without limitation, Sections 1.10, 1.11, 2.05, 4.04,
13.01 and 13.06), which shall survive as to such repaid Bank.
3.03 MANDATORY REDUCTION OF COMMITMENTS. (a) The Total Commitment
(and the Term Loan Commitment and the Revolving Loan Commitment of each Bank)
shall terminate in its entirety on March 31, 1999 (or such earlier date as the
US Borrower shall have notified the Agent in writing that it has terminated
discussions regarding the Acquisition) unless the Restatement Effective Date has
occurred on or before such date.
(b) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Term Loan Commitment (and the Term Loan
Commitment of each Bank) shall (i) terminate in its entirety on the Restatement
Effective Date (after giving effect to the incurrence of Term Loans on such
date) and (ii) prior to the termination of the Total Term Loan Commitment as
provided in clause (i) above, be reduced from time to time to the extent
required by Section 4.02.
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(c) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment (and the Revolving
Loan Commitment of each RL Bank) shall terminate in its entirety on the
Revolving Loan Maturity Date.
(d) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment shall be reduced from
time to time to the extent required by Section 4.02.
(e) Each reduction to the Total Term Loan Commitment or Total
Revolving Loan Commitment pursuant to this Section 3.03 (or pursuant to Section
4.02) shall be applied proportionately to reduce the Term Loan Commitment or the
Revolving Loan Commitment, as the case may be, of each Bank with such a
Commitment.
SECTION 4. PAYMENTS.
4.01 VOLUNTARY PREPAYMENTS. (a) Each Borrower shall have the right
to prepay the Loans made to it, and the right to allocate such prepayments to
Revolving Loans, Swingline Loans, in the case of the US Borrower, and/or Term
Loans as such Borrower elects, in whole or in part, without premium or penalty
except as otherwise provided in this Agreement, from time to time on the
following terms and conditions:
(i) such Borrower shall give the Agent at its Notice Office written
notice (or telephonic notice promptly confirmed in writing) of its intent
to prepay the Loans, whether such Loans are Term Loans, Revolving Loans or
Swingline Loans, the amount of such prepayment, the Type of Loans to be
repaid and (in the case of Eurodollar Loans) the specific Borrowing(s)
pursuant to which made, which notice shall be given by such Borrower prior
to 12:00 Noon (New York time) (x) at least one Business Day prior to the
date of such prepayment in the case of Base Rate Loans, (y) on the date of
such prepayment in the case of Swingline Loans and (z) at least three
Business Days prior to the date of such prepayment in the case of
Eurodollar Loans, which notice shall, except in the case of Swingline
Loans, promptly be transmitted by the Agent to each of the Banks;
(ii) each prepayment (other than prepayments in full of (x) all
outstanding Base Rate Loans or (y) any outstanding Borrowing of Eurodollar
Loans) shall be in an aggregate principal amount of at least (x) $500,000,
in the case of Revolving Loans and Term Loans and (y) $100,000, in the case
of Swingline Loans and, in each case, if greater, in integral multiples of
$100,000, PROVIDED, that no partial prepayment of Eurodollar Loans made
pursuant to a Borrowing shall reduce the aggregate principal amount of the
Eurodollar Loans outstanding pursuant to such Borrowing to an amount less
than the Minimum Borrowing Amount applicable thereto;
(iii) at the time of any prepayment of Eurodollar Loans pursuant to
this Section 4.01 on any date other than the last day of the Interest
Period applicable thereto, the Borrower shall pay the amounts required
pursuant to Section 1.11;
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<PAGE>
(iv) each prepayment in respect of any Loans made pursuant to a
Borrowing shall be applied PRO RATA among such Loans, PROVIDED, that at
such Borrower's election in connection with any prepayment of Revolving
Loans pursuant to this Section 4.01(a), such prepayment shall not be
applied to any Revolving Loans of a Defaulting Bank; and
(v) each prepayment of principal of Term Loans pursuant to this
Section 4.01(a) shall be applied to reduce the then remaining Scheduled
Repayments on a PRO RATA basis (based upon the then remaining amount of
each such Scheduled Repayment after giving affect to all prior reductions
thereto).
(b) In the event of certain refusals by a Bank to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as provided in Section
13.12(b), the US Borrower and the French Borrower shall together have the right,
upon five Business Days' prior written notice to the Agent at its Notice Office
(which notice the Agent shall promptly transmit to each of the Banks), to repay
all Loans of such Bank (including all amounts, if any, owing pursuant to Section
1.11), together with accrued and unpaid interest, Fees and all other amounts
then owing to such Bank (or owing to such Bank with respect to Tranche which
gave rise to the need to obtain such Bank's individual consent) in accordance
with said Section 13.12(b), so long as (A) in the case of the repayment of
Revolving Loans of any Bank pursuant to this clause (b), the Revolving Loan
Commitment of such Bank is terminated concurrently with such repayment (at which
time Annex I shall be deemed modified to reflect the changed Revolving Loan
Commitments), and (B) the consents required by Section 13.12(b) in connection
with the repayment pursuant to this clause (b) shall have been obtained.
4.02 MANDATORY REPAYMENTS AND COMMITMENT REDUCTIONS. (a) If on any
date the sum of (i) the aggregate outstanding principal amount of Revolving
Loans and Swingline Loans (after giving effect to all other repayments thereof
on such date) and (ii) the Letter of Credit Outstandings on such date exceeds
the Total Revolving Loan Commitment as then in effect, the US Borrower and/or
the French Borrower shall repay on such date the principal of Swingline Loans,
and if no Swingline Loans are or remain outstanding, Revolving Loans in an
aggregate amount equal to such excess. If, after giving effect to the
prepayment of all outstanding Swingline Loans and Revolving Loans, the aggregate
amount of Letter of Credit Outstandings exceeds the Total Revolving Loan
Commitment as then in effect, the US Borrower shall pay to the Agent on such
date an amount in cash and/or Cash Equivalents equal to such excess (up to the
aggregate amount of Letter of Credit Outstandings at such time) and the Agent
shall hold such payment as security for the obligations of the US Borrower
hereunder pursuant to a cash collateral agreement to be entered into in form and
substance satisfactory to the Agent.
(b) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the US
Borrower shall be required to repay that principal amount of Term Loans, to the
extent then outstanding, as is set forth opposite such date (each such
repayment, as the same may be reduced as provided in Sections 4.01 and 4.02(i),
a "Scheduled Repayment"):
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<TABLE>
<CAPTION>
Scheduled Repayment Date Amount
- -------------------------- --------
<S> <C>
June 15, 1999 $1,500,000
September 15, 1999 $1,500,000
December 15, 1999 $2,000,000
March 15, 2000 $2,000,000
June 15, 2000 $3,500,000
September 15, 2000 $3,500,000
December 15, 2000 $4,000,000
March 15, 2001 $4,000,000
June 15, 2001 $5,000,000
September 15, 2001 $5,000,000
December 15, 2001 $5,000,000
March 15, 2002 $5,000,000
June 15, 2002 $5,000,000
September 15, 2002 $5,000,000
December 15, 2002 $5,500,000
March 15, 2003 $5,500,000
June 15, 2003 $5,500,000
September 15, 2003 $5,500,000
December 15, 2003 $6,000,000
March 15, 2004 $6,000,000
June 15, 2004 $6,000,000
September 15, 2004 $6,000,000
December 15, 2004 $6,000,000
Final Maturity Date $6,000,000
</TABLE>
(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the
Restatement Effective Date upon which Parent or any of its Subsidiaries receives
Net Sale Proceeds from any Asset Sale, an amount equal to 100% of the Net Sale
Proceeds from such Asset Sale shall be applied as a mandatory repayment and/or
commitment reduction, as the case may be, of outstanding Term Loans and the
Total Revolving Loan Commitment in accordance with the requirements of Sections
4.02(i) and (j); provided that up to $1,000,000 in aggregate Net Sale Proceeds
received during such fiscal year may be retained by Parent and its Subsidiaries
without giving rise to a mandatory repayment (and/or commitment reduction, as
the case may be) to the extent that no Default or Event of Default exists at the
time such Net Sale Proceeds are received, and provided further that (i)
additional Net Sale Proceeds of up to $250,000 in the aggregate received by
Parent or its Subsidiaries on or after the Restatement Effective Date shall not
give rise to a mandatory repayment (and/or commitment reduction, as the case may
be) on such date to the extent that no Default or Event of Default then exists
and the US Borrower delivers a certificate to the Agent on or prior to such date
stating that such Net Sale Proceeds shall be used to purchase assets used or to
be used in the businesses permitted pursuant to Section 9.01 (including, without
limitation (but only to the extent permitted by Section 9.02), the purchase of
the capital stock of a Person engaged in such businesses) within one year
following the date of receipt of such Net Sale
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<PAGE>
Proceeds from such Asset Sale (which certificate shall set forth the estimates
of the proceeds to be so expended) and (ii) that (x) if all or any portion of
such Net Sale Proceeds are not so used (or contractually committed to be used)
within such one year period, such remaining portion shall be applied on the last
day of such period as a mandatory repayment and/or commitment reduction, as the
case may be, of outstanding Term Loans and the Total Revolving Loan Commitment
as provided above and (y) if all or any portion of such Net Sale Proceeds are
not so used within such one year period referred to in clause (x) above because
such amount is contractually committed to be used and subsequent to such date
such contract is terminated or expires without such portion being so used, such
remaining portion shall be applied on the date of such termination or expiration
as a mandatory repayment and/or commitment reduction, as the case may be, of
outstanding Term Loans and the Total Revolving Loan Commitment as provided
above.
(d) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the
Restatement Effective Date on which Parent or any of its Subsidiaries receives
any cash proceeds from any incurrence of Indebtedness (other than Indebtedness
permitted to be incurred pursuant to Section 9.04 as in effect on the
Restatement Effective Date) by Parent or any of its Subsidiaries, an amount
equal to 100% of the cash proceeds (net of all underwriting discounts, fees and
commissions and other costs and expenses associated therewith) of the respective
incurrence of Indebtedness shall be applied as a mandatory repayment and/or
commitment reduction, as the case may be, of outstanding Term Loans and the
Total Revolving Loan Commitment in accordance with the requirements of Sections
4.02(i) and (j).
(e) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the
Restatement Effective Date on which Parent or any of its Subsidiaries receives
any cash proceeds from any sale or issuance of preferred or common equity of (or
cash capital contributions to) Parent or any of its Subsidiaries (other than
proceeds received from (x) equity contributions to any Subsidiary of Parent made
by Parent or any other Subsidiary of Parent and (y) any employee, officer or
director, or from the exercise of options granted pursuant to the Stock Option
Plan, PROVIDED that this clause (y) shall apply only to the first $2,500,000 in
the aggregate of such proceeds received in any fiscal year of Parent, commencing
with the fiscal year beginning October 1, 1998), an amount equal to 25% of such
cash proceeds (net of all underwriting discounts, fees and commissions and other
costs and expenses associated therewith) of the respective equity issuance or
capital contribution shall be applied as a mandatory repayment and/or commitment
reduction, as the case may be, of outstanding Terms Loan and the Total Revolving
Loan Commitment in accordance with the requirements of Sections 4.02(i) and (j).
(f) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within 10 days following each date on
or after the Restatement Effective Date on which Parent or any of its
Subsidiaries receives any proceeds from any Recovery Event (other than proceeds
from Recovery Events in an amount less than $100,000 per Recovery Event), an
amount equal to 100% of the proceeds of such Recovery Event (net of reasonable
costs including, without limitation, legal costs and expenses, and taxes
incurred in connection with such Recovery Event) shall be applied as a mandatory
repayment and/or
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<PAGE>
commitment reduction, as the case may be, of outstanding Term Loans and the
Total Revolving Loan Commitment in accordance with the requirements of Sections
4.02(i) and (j); PROVIDED that (x) so long as no Default or Event of Default
then exists and such proceeds do not exceed $500,000, such proceeds shall not be
required to be so applied on such date to the extent that an Authorized Officer
of the US Borrower has delivered a certificate to the Agent on or prior to such
date stating that such proceeds shall be used or shall be committed to be used
to replace or restore any properties or assets in respect of which such proceeds
were paid within one year following the date of such Recovery Event (which
certificate shall set forth the estimates of the proceeds to be so expended) and
(y) so long as no Default or Event of Default then exists and if (a) the amount
of such proceeds exceeds $500,000, (b) the amount of such proceeds, together
with other cash available to the US Borrower and its Subsidiaries and permitted
to be spent by them on Capital Expenditures during the relevant period pursuant
to Section 9.08, equals at least 100% of the cost of replacement or restoration
of the properties or assets in respect of which such proceeds were paid as
determined by the US Borrower and as supported by such estimates or bids from
contractors or subcontractors or such other supporting information as the Agent
may reasonably request, (c) an Authorized Officer of the US Borrower has
delivered to the Agent a certificate on or prior to the date the application
would otherwise be required pursuant to this Section 4.02(f) in the form
described in clause (x) above and also certifying its determination as required
by preceding clause (b) and certifying the sufficiency of business interruption
insurance as required by succeeding clause (d), and (d) an Authorized Officer of
the US Borrower has delivered to the Agent such evidence as the Agent may
reasonably request in form and substance reasonably satisfactory to the Agent
establishing that the US Borrower has sufficient business interruption insurance
and that the US Borrower and its subsidiaries will receive payment thereunder in
such amounts and at such times as are necessary to satisfy all obligations and
expenses of each Borrower (including, without limitation, all debt service
requirements, including pursuant to this Agreement), without any delay or
extension thereof, for the period from the date of the respective casualty,
condemnation or other event giving rise to the Recovery Event and continuing
through the completion of the replacement or restoration of respective
properties or assets, then the entire amount of the proceeds of such Recovery
Event and not just the portion in excess of $500,000 shall be deposited with the
Agent pursuant to a cash collateral arrangement reasonably satisfactory to the
Agent whereby such proceeds shall be disbursed to the US Borrower from time to
time as needed to pay actual costs incurred by them in connection with the
replacement or restoration of the respective properties or assets (pursuant to
such certification requirements as may be established by the Agent), PROVIDED
FURTHER that at any time while an Event of Default has occurred and is
continuing, the Required Banks may direct the Agent (in which case the Agent
shall, and is hereby authorized by the US Borrower to, follow said directions)
to apply any or all proceeds then on deposit in such collateral account to the
repayment of Obligations hereunder, and PROVIDED FURTHER, that if all or any
portion of such proceeds not required to be applied as a mandatory repayment
and/or commitment reduction pursuant to the second preceding proviso (whether
pursuant to clause (x) or (y) thereof) are either (A) not so used or committed
to be so used within one year after the date of the respective Recovery Event or
(B) if committed to be used within one year after the date of receipt of such
net proceeds and not so used within 18 months after the date of respective
Recovery Event then, in either such case, such remaining portion not used or
committed to be used in the case of preceding clause (A) and not used in the
case of preceding clause (B) shall be applied on the date
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<PAGE>
which is the first anniversary of the date of the respective Recovery Event in
the case of clause (A) above or the date occurring 18 months after the date of
the respective Recovery Event in the case of clause (B) above as a mandatory
repayment and/or commitment reduction, as the case may be, of outstanding Terms
Loans and the Total Revolving Loan Commitment in accordance with the
requirements of Sections 4.02(i) and (j).
(g) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each Excess Cash Payment Date, an
amount equal to the Applicable Excess Cash Flow Percentage of the Excess Cash
Flow for the relevant Excess Cash Flow Payment Period shall be applied as a
mandatory repayment and/or commitment reduction, as the case may be, of
outstanding Term Loans and the Total Revolving Loan Commitment in accordance
with the requirements of Sections 4.02(i) and (j).
(h) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, at such time as a final determination
is made with respect to the amount of payments owing pursuant to Section 2.5 of
the Acquisition Agreement, the aggregate net amount (if any) of cash proceeds
received by Parent or any of its Subsidiaries pursuant thereto shall be applied
as a mandatory repayment and/or commitment reduction, as the case may be, of
outstanding Term Loans and the Total Revolving Loan Commitment in accordance
with the requirements of Section 4.02(i) and (j); PROVIDED that the receipt of
such proceeds shall not give rise to a mandatory repayment (and/or commitment
reduction, as the case may be) on such date to the extent that (i) no Default or
Event of Default then exists and the US Borrower delivers a certificate to the
Agent on or prior to such date stating that such proceeds shall be used to
purchase assets used or to be used in the businesses permitted pursuant to
Section 9.01 (including, without limitation (but only to the extent permitted by
Section 9.02), the purchase of the capital stock of a Person engaged in such
businesses) within one year following the date of receipt of such proceeds
(which certificate shall set forth the estimates of the proceeds to be so
expended) and (ii) (x) if all or any portion of such proceeds are not so used
(or contractually committed to be used) within such one year period, such
remaining portion shall be applied on the last day of such period as a mandatory
repayment and/or commitment reduction, as the case may be, of outstanding Term
Loans and the Total Revolving Loan Commitment as provided above and (y) if all
or any portion of such proceeds are not so used within such one year period
referred to in clause (x) above because such amount is contractually committed
to be used and subsequent to such date such contract is terminated or expires
without such portion being so used, such remaining portion shall be applied on
the date of such termination or expiration as a mandatory repayment and/or
commitment reduction, as the case may be, of outstanding Term Loans and the
Total Revolving Loan Commitment as provided above.
(i) Each amount required to be applied pursuant to Sections 4.02(c),
(d), (e), (f), (g) and (h) in accordance with this Section 4.02(i) shall be
applied (i) first, to repay the outstanding principal amount of Term Loans (or,
if prior to the Restatement Effective Date, to reduce the Total Term Loan
Commitment) and (ii) second, to the extent in excess of the amounts required to
be applied pursuant to preceding clause (i), to reduce the Total Revolving Loan
Commitment (it being understood and agreed that (i) the amount of any reduction
to the Total Revolving Loan Commitment (or the Total Term Loan Commitment, as
the case may be) as
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<PAGE>
provided above in this Section 4.02(i) shall be deemed to be an application of
proceeds for purposes of this Section 4.02(i) even though cash is not actually
applied and (ii) any cash received by Parent or such Subsidiary will be retained
by such Person except to the extent that such cash is otherwise required to be
applied as provided in Section 4.02(a) as a result of any reduction to the Total
Revolving Loan Commitment). All repayments or commitment reductions, as the case
may be, of outstanding Term Loans (or, if prior to the Restatement Effective
Date, Term Loan Commitments) pursuant to Sections 4.02(c), (d), (e), (f), (g)
and (h) shall be applied to reduce the then remaining Scheduled Repayments PRO
RATA based upon the then remaining Scheduled Repayments, after giving effect to
all prior reductions thereto.
(j) With respect to each repayment of Loans required by this Section
4.02, the Borrowers may designate among themselves which of their respective
Loans are to be repaid (in the case of a repayment of Revolving Loans), the
Types of Loans of such Borrower of the respective Tranche which are to be repaid
and, in the case of Eurodollar Loans, the specific Borrowing or Borrowings of
the respective Tranche pursuant to which made, PROVIDED that: (i) repayments of
Eurodollar Loans pursuant to this Section 4.02 may only be made on the last day
of an Interest Period applicable thereto unless all Eurodollar Loans of the
respective Tranche with Interest Periods ending on such date of required
repayment and all Base Rate Loans of the respective Tranche have been paid in
full; (ii) if any repayment of Eurodollar Loans made pursuant to a single
Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, such Borrowing shall be converted at the end of the then current
Interest Period into a Borrowing of Base Rate Loans; and (iii) each repayment of
any Tranche of Loans made pursuant to a Borrowing shall be applied PRO RATA
among such Tranche of Loans. In the absence of a designation by the respective
Borrower as described in the preceding sentence, the Agent shall, subject to the
above, make such designation in its sole discretion with a view, but no
obligation, to minimize breakage costs owing under Section 1.11.
(k) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, (i) all then outstanding Swingline Loans shall be repaid in full
on the Swingline Expiry Date and (ii) all other then outstanding Loans shall be
repaid in full on the respective Maturity Date for such Loans.
(l) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, on any day that the French Borrower shall cease to be a
Wholly-Owned Subsidiary of Parent, the French Borrower shall be required to
repay in full on such date all then outstanding Revolving Loans and Swingline
Loans made to the French Borrower.
4.03 METHOD AND PLACE OF PAYMENT. Except as otherwise specifically
provided herein, all payments under this Agreement or any Note shall be made to
the Agent for the ratable account of the Bank or Banks entitled thereto not
later than 12:00 Noon (New York time) on the date when due and shall be made in
immediately available funds and in U.S. Dollars at the Payment Office. Any
payments under this Agreement or under any Note which are made later than 12:00
Noon (New York time) shall be deemed to have been made on the next succeeding
Business Day. Whenever any payment to be made hereunder or under any Note shall
be stated to
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be due on a day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day and, with respect to payments of
principal, interest shall be payable during such extension at the applicable
rate in effect immediately prior to such extension.
4.04 NET PAYMENTS. (a) All payments made by each Borrower hereunder
or under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 4.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of whatever nature
now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but
excluding, except as provided in the second succeeding sentence, any tax imposed
on or measured by the net income or net profits of a Bank pursuant to the laws
of the jurisdiction in which it is organized or the jurisdiction in which the
principal office or applicable lending office of such Bank is located or any
subdivision thereof or therein) and all interest, penalties or similar
liabilities with respect to such non excluded taxes, levies, imposts, duties,
fees, assessments or other charges (all such nonexcluded taxes, levies, imposts,
duties, fees, assessments or other charges being referred to collectively as
"Taxes"). Except as provided in Sections 4.04(b) and 13.04(b), if any Taxes are
so levied or imposed, the respective Borrower agrees to pay the full amount of
such Taxes, and such additional amounts as may be necessary so that every
payment of all amounts due under this Agreement or under any Note, after
withholding or deduction for or on account of any Taxes, will not be less than
the amount provided for herein or in such Note. If any amounts are payable in
respect of Taxes pursuant to the preceding sentence, the respective Borrower
agrees to reimburse each Bank, upon the written request of such Bank, for taxes
imposed on or measured by the net income or net profits of such Bank pursuant to
the laws of the jurisdiction in which such Bank is organized or in which the
principal office or applicable lending office of such Bank is located or under
the laws of any political subdivision or taxing authority of any such
jurisdiction in which such Bank is organized or in which the principal office or
applicable lending office of such Bank is located and for any withholding of
taxes as such Bank shall determine are payable by, or withheld from, such Bank
in respect of such amounts so paid to or on behalf of such Bank pursuant to the
preceding sentence and in respect of any amounts paid to or on behalf of such
Bank pursuant to this sentence. The respective Borrower will furnish to the
Agent within 45 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by the
respective Borrower. The respective Borrower agrees to indemnify and hold
harmless each Bank, and reimburse such Bank upon its written request, for the
amount of any Taxes so levied or imposed and paid by such Bank.
(b) Each Bank that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes
agrees to deliver to the US Borrower and the Agent on or prior to the
Restatement Effective Date, or in the case of a Bank that is an assignee or
transferee of an interest under this Agreement pursuant to Section 1.13 or 13.04
(unless the respective Bank was already a Bank hereunder immediately prior to
such assignment or transfer), on the date of such assignment or transfer to such
Bank, (i) two accurate and complete original signed copies of Internal Revenue
Service Form 4224 or 1001 (or successor forms) certifying to such Bank's
entitlement to a complete exemption from United States withholding tax with
respect to payments to be made under this Agreement and under any
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<PAGE>
Note, or (ii) if the Bank is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form
1001 or 4224 pursuant to clause (i) above, (x) a certificate substantially in
the form of Exhibit D (any such certificate, a "Section 4.04(b)(ii)
Certificate") and (y) two accurate and complete original signed copies of
Internal Revenue Service Form W-8 (or successor form) certifying to such Bank's
entitlement to a complete exemption from United States withholding tax with
respect to payments of interest to be made under this Agreement and under any
Note. In addition, each Bank agrees that from time to time after the
Restatement Effective Date, when a lapse in time or change in circumstances
renders the previous certification obsolete or inaccurate in any material
respect, it will deliver to the US Borrower and the Agent two new accurate and
complete original signed copies of Internal Revenue Service Form 4224 or 1001,
or Form W-8 and a Section 4.04(b)(ii) Certificate, as the case may be, and such
other forms as may be required in order to confirm or establish the entitlement
of such Bank to a continued exemption from or reduction in United States
withholding tax with respect to payments under this Agreement and any Note, or
it shall immediately notify the US Borrower and the Agent of its inability to
deliver any such Form or Certificate in which case such Bank shall not be
required to deliver any such Form or Certificate pursuant to this Section
4.04(b). Notwithstanding anything to the contrary contained in Section 4.04(a),
but subject to Section 13.04(b) and the immediately succeeding sentence,
(x) either Borrower shall be entitled, to the extent it is required to do so by
law, to deduct or withhold income or similar taxes imposed by the United States
(or any political subdivision or taxing authority thereof or therein) from
interest, fees or other amounts payable hereunder for the account of any Bank
which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent that
such Bank has not provided to the US Borrower U.S. Internal Revenue Service
Forms that establish a complete exemption from such deduction or withholding and
(y) no Borrower shall not be obligated pursuant to Section 4.04(a) hereof to
gross-up payments to be made to a Bank in respect of income or similar taxes
imposed by the United States (or any political subdivision or taxing authority
thereof or therein) if (I) such Bank has not provided to the US Borrower the
Internal Revenue Service Forms required to be provided to the US Borrower
pursuant to this Section 4.04(b) or (II) in the case of a payment, other than
interest, to a Bank described in clause (ii) above, to the extent that such
Forms do not establish a complete exemption from withholding of such taxes.
Notwithstanding anything to the contrary contained in the preceding sentence or
elsewhere in this Section 4.04 and except as set forth in Section 13.04(b), each
Borrower agrees to pay additional amounts and to indemnify each Bank in the
manner set forth in Section 4.04(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any Taxes
deducted or withheld by it as described in the immediately preceding sentence as
a result of any changes after the Restatement Effective Date in any applicable
law, treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of such Taxes
(or, if later, the date such Bank became party to this Agreement).
SECTION 5. CONDITIONS PRECEDENT. The obligation of each Bank to make
each Loan to any Borrower hereunder, and the obligation of the Letter of Credit
Issuer to issue each
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Letter of Credit hereunder, is subject, at the time of the making of such Loans
or the Issuance of such Letters of Credit to the satisfaction of the following
conditions:
5.01 EXECUTION OF AGREEMENT; NOTES. The Restatement Effective Date
shall have occurred and (ii) there shall have been delivered to the Agent for
the account of each Bank the appropriate Term Note and/or Revolving Note and to
BTCo the Swingline Note, in each case executed by the Borrower and in the
amount, maturity and as otherwise provided herein.
5.02 OFFICER'S CERTIFICATE. On the Restatement Effective Date, the
Agent shall have received a certificate dated such date signed by an appropriate
officer of the Borrower stating that all of the applicable conditions set forth
in Sections 5.04 through 5.10, 5.16, 6.01, 6.02 and 6.03 have been satisfied on
such date.
5.03 OPINIONS OF COUNSEL. On the Restatement Effective Date, the
Agent shall have received opinions, addressed to the Agent, the Collateral Agent
and each of the Banks and dated the Restatement Effective Date, from (i) Crouch
& Hallett, special counsel to the Credit Parties, which opinion shall cover the
matters contained in Exhibit E-1 and such other matters incident to the
transactions contemplated herein as the Agent may reasonably request, (ii)
Shauna Martin, Esq., counsel to the Credit Parties, which opinion shall cover
the matters contained in Exhibit E-2 and (iii) local and other counsel to the
Credit Parties reasonably satisfactory to the Agent, which opinions shall cover
such matters incident to the transactions contemplated herein and in the other
Credit Documents as the Agent may reasonably request and shall be in form and
substance satisfactory to the Agent.
5.04 CORPORATE DOCUMENTS; PROCEEDINGS. (a) On the Restatement
Effective Date, the Agent shall have received from each Credit Party a
certificate, dated the Restatement Effective Date, signed by the chairman, a
vice-chairman, the president or any vice-president of such Credit Party, and
attested to by the secretary or any assistant secretary of such Credit Party, in
the form of Exhibit F with appropriate insertions, together with copies of the
Certificate of Incorporation and By-Laws of such Credit Party and the
resolutions of such Credit Party referred to in such certificate and all of the
foregoing (including each such Certificate of Incorporation and By-Laws) shall
be reasonably satisfactory to the Agent.
(b) On the Restatement Effective Date, all corporate and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Documents shall be
reasonably satisfactory in form and substance to the Agent, and the Agent shall
have received all information and copies of all certificates, documents and
papers, including good standing certificates, bring-down certificates and any
other records of corporate proceedings and governmental approvals, if any, which
the Agent reasonably may have requested in connection therewith, such documents
and papers, where appropriate, to be certified by proper corporate or
governmental authorities.
(c) On the Restatement Effective Date and after giving effect to the
Transaction, the capital structure (including, without limitation, the terms of
any capital stock, options, warrants or other securities issued by Parent or any
of its Subsidiaries) of Parent and each of its
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Subsidiaries shall be in form and substance satisfactory to the Agent, and the
management of Parent and its Subsidiaries shall be satisfactory to the Agent.
5.05 ADVERSE CHANGE, ETC. (a) On or prior to the Restatement
Effective Date, nothing shall have occurred since September 30, 1998 (and
neither the Banks nor the Agent shall have become aware of any facts or
conditions not previously known) which the Required Banks or the Agent shall
determine has, or could reasonably be expected to have (i) a material adverse
effect on the rights or remedies of the Banks or the Agent, or on the ability of
any Credit Party to perform its obligations to them hereunder or under any other
Credit Document, (ii) a material adverse effect on the Transaction, or (iii) a
Material Adverse Effect.
(b) On the Restatement Effective Date, there shall not have occurred
and be continuing a material disruption or a material adverse change in
financial, banking or capital markets that would have a material adverse effect
on the syndication, in each case as determined by the Agent in its sole
discretion.
5.06 LITIGATION. On the Restatement Effective Date, there shall be
no actions, suits, proceedings or investigations pending or threatened (a) with
respect to this Agreement or any other Document or the Transaction or any
documentation executed in connection therewith or the transactions contemplated
thereby or with respect to any Existing Indebtedness or (b) which the Agent or
the Required Banks shall determine could reasonably be expected to (i) have a
Material Adverse Effect or (ii) have a material adverse effect on the
Transaction, the rights or remedies of the Banks or the Agent hereunder or under
any other Credit Document or on the ability of any Credit Party to perform its
respective obligations to the Banks or the Agent hereunder or under any other
Credit Document.
5.07 APPROVALS. On or prior to the Restatement Effective Date, (i)
all necessary governmental (domestic and foreign), regulatory and third party
approvals in connection with the Credit Documents and otherwise referred to
herein or therein shall have been obtained and remain in full force and effect,
(ii) all necessary material governmental (domestic and foreign) and third party
approvals in connection with any Existing Indebtedness, the Transaction, the
transactions contemplated by the Transaction Documents and otherwise referred to
therein shall have been obtained and remain in full force and effect and
evidence thereof shall have been provided to the Agent, and (iii) all applicable
waiting periods shall have expired without any action being taken by any
competent authority which restrains, prevents or imposes materially adverse
conditions upon the consummation of the Transaction, the making of the Loans,
the issuance of Letters of Credit and the transactions contemplated by the
Documents or otherwise referred to herein or therein. Additionally, there shall
not exist any judgment, order, injunction or other restraint issued or filed or
a hearing seeking injunctive relief or other restraint pending or notified
prohibiting or imposing materially adverse conditions upon, or materially
delaying, or making economically unfeasible, the consummation of the Transaction
or the making of the Loans, the issuance of Letters of Credit or the
transactions contemplated by the Documents.
5.08 CONSUMMATION OF THE ACQUISITION. (a) On or prior to the
Restatement Effective Date, (i) all terms and conditions of the Acquisition
Documents shall be in form and substance satisfactory to the Agent and the
Required Banks, (ii) the Acquisition, including all of the terms and
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conditions thereof, shall have been duly approved by the board of directors and
(if required by applicable law) the shareholders of Parent, Holdings, the US
Borrower and SPEC, and all Acquisition Documents shall have been duly executed
and delivered by the parties thereto and shall be in full force and effect,
(iii) the representations and warranties set forth in the Acquisition Documents
shall be true and correct in all material respects as if made on and as of the
Restatement Effective Date, (iv) each of the conditions precedent to the
obligations of the US Borrower to consummate the Acquisition as set forth in the
Acquisition Documents shall have been satisfied to the satisfaction of the Agent
and the Required Banks or waived with the consent of the Agent and the Required
Banks and (v) the Acquisition shall have been consummated in accordance with all
applicable laws and the Acquisition Documents. On the Restatement Effective
Date, the capital stock of SPEC shall be owned by the US Borrower free and clear
of all Liens other than Permitted Liens and the assets comprising the Acquired
Business shall be owned by SPEC free and clear of all Liens other than Permitted
Liens.
(b) The total consideration (not including Indebtedness to be
refinanced pursuant to the Refinancing) for the Acquisition (excluding fees and
expenses) shall not exceed $31,700,000 and no more than $2,900,000 shall be paid
in respect of fees owing in connection with the Transaction. No more than
$28,600,000 shall be paid in cash on the Restatement Effective Date in respect
of the Transaction.
5.09 REFINANCING; EXISTING CREDIT AGREEMENT. (a) (i) On the
Restatement Effective Date and concurrently with the Credit Events then
occurring, (x) all Indebtedness (other than Indebtedness permitted to remain
outstanding pursuant to Section 9.04) of SPEC and its Subsidiaries outstanding
on such date (the "Designated Indebtedness") shall have been repaid in full,
together with all accrued and unpaid interest, fees and other amounts owing
thereon or with respect thereto, (y) no more than $4,100,000 shall have been
paid to effect the Refinancing and (z) the Agent shall have received evidence in
form, scope and substance reasonably satisfactory to it that the matters set
forth in this Section 5.09(a)(i) have been satisfied at such time.
(ii) On the Restatement Effective Date and concurrently with the
Credit Events then occurring, all security interests in respect of, and Liens
securing, Designated Indebtedness shall have been terminated and released, and
the Agent shall have received all such releases as may have been requested by
the Agent, which releases shall be in form and substance reasonably satisfactory
to the Agent. Without limiting the foregoing, there shall have been delivered
(w) proper termination statements (Form UCC-3 or the appropriate equivalent) for
filing under the UCC of each jurisdiction where a financing statement Form UCC-1
or the appropriate equivalent was filed with respect to SPEC and its
Subsidiaries in connection with the security interests created with respect to
the Designated Indebtedness and the documentation related thereto, (x)
termination or reassignment of any security interest in, or Lien on, any
patents, trademarks, copyrights or similar interests of SPEC and its
Subsidiaries on which filings have been made to secure obligations under the
Designated Indebtedness and (y) terminations of all mortgages, leasehold
mortgages and deeds of trusts created with respect to property of SPEC and its
Subsidiaries to secure the obligations under the Designated Indebtedness, all of
which shall be in form and substance satisfactory to the Agent and the Required
Banks.
(iii) All obligations of SPEC and its Subsidiaries with respect to the
Designated Indebtedness being repaid or satisfied in connection with the
Refinancing shall be terminated to
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the satisfaction of the Agent. All terms and conditions of the Refinancing and
the documentation in connection therewith shall be satisfactory to the Agent.
(b) (i) On the Restatement Effective Date and concurrently with the
Credit Events then occurring, (x) all loans under the Existing Credit Agreement
shall have been repaid in full, together with all accrued but unpaid interest
and fees thereon, with the proceeds of Loans hereunder and (y) all letters of
credit issued under the Existing Credit Agreement shall have been assumed
hereunder in accordance with Section 2.06, and the Existing Credit Agreement
shall have been replaced by this Agreement and shall cease to be of any force or
effect, except as restated by this Agreement, including with respect to
continuing indemnification obligations and reimbursement obligations under
letters of credit assumed hereunder and (ii) the US Borrower shall have paid to
the Administrative Agent for the account of each Bank entitled thereto, an
amount necessary to compensate each Bank for any breakage costs arising as a
result of the refinancing described above in this Section 5.09(b).
5.10 CONSUMMATION OF THE SELLER FINANCING. On the Restatement
Effective Date, (i) Parent shall have issued the Seller Note to the Sellers in
an aggregate principal amount of $7,200,000 in connection with the Seller
Financing. All of the terms and conditions of the Seller Financing Documents
shall be reasonably satisfactory to the Agent and the Required Banks, and all
conditions precedent to the consummation of the Seller Financing as set forth in
the Seller Financing Documents shall have been satisfied, and not waived unless
consented to by the Agent and the Required Banks, to the reasonable satisfaction
of the Agent and the Required Banks. The Seller Financing shall have occurred
in accordance with the terms and conditions of the Seller Financing Documents
and all applicable law.
5.11 SECURITY DOCUMENTS; ETC. (a) On the Restatement Effective
Date, each Credit Party shall have duly authorized, executed and delivered a
Pledge Agreement in the form of Exhibit G (as amended, modified or supplemented
from time to time in accordance with the terms thereof and hereof, the "Pledge
Agreement") and shall have delivered to the Collateral Agent, as pledgee
thereunder, all of the Pledged Securities referred to therein, endorsed in blank
in the case of promissory notes or accompanied by executed and undated stock
powers in the case of capital stock, along with evidence that all other actions
necessary or, in the reasonable opinion of the Collateral Agent, desirable, to
perfect the security interests purported to be created by the Pledge Agreement
have been taken and the Pledge Agreement shall be in full force and effect,
including, in the case of the US Borrower, execution and delivery of
documentation necessary to give legal effect to the pledge of the stock of the
French Borrower for purposes of French law (the "French Pledge Agreement"),
which French Pledge Agreement shall be in form and substance satisfactory to the
Collateral Agent.
(b) On the Restatement Effective Date, each Credit Party shall have
duly authorized, executed and delivered a Security Agreement in the form of
Exhibit H (as amended, modified or supplemented from time to time in accordance
with the terms thereof and hereof, the "Security Agreement") covering all of the
Security Agreement Collateral, together with:
(A) executed copies of Financing Statements (Form UCC-1) or
appropriate local equivalent in appropriate form for filing under the UCC
or appropriate local equivalent of
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each jurisdiction as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect the security interests purported to
be created by the Security Agreement;
(B) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, each of a recent date listing all effective
financing statements that name SPEC or any of its respective Subsidiaries
as debtor or otherwise relate to the Acquired Business and that are filed
in the jurisdictions referred to in clause (A) above, together with copies
of such financing statements (none of which shall cover the Collateral
except (x) those with respect to which appropriate termination statements
executed by the secured lender thereunder have been delivered to the Agent
and (y) to the extent evidencing Permitted Liens);
(C) evidence of the completion of all other recordings and filings
of, or with respect to, the Security Agreement as may be necessary or, in
the reasonable opinion of the Collateral Agent, desirable, to perfect the
security interests purported to be created by the Security Agreement; and
(D) evidence that all other actions necessary or, in the reasonable
opinion of the Collateral Agent, desirable, to perfect the security
interests purported to be created by the Security Agreement have been
taken;
and the Security Agreement shall be in full force and effect.
5.12 SUBSIDIARIES GUARANTY. On the Restatement Effective Date, each
Wholly-Owned Domestic Subsidiary of the US Borrower shall have duly authorized,
executed and delivered a counterpart of the Subsidiaries Guaranty in the form of
Exhibit I (as amended, modified or supplemented from time to time in accordance
with the terms thereof and hereof, the "Subsidiaries Guaranty"), and such
Subsidiaries Guaranty shall be in full force and effect.
5.13 MORTGAGES; TITLE INSURANCE. (a) On the Restatement Effective
Date, the Collateral Agent shall have received fully executed counterparts of
deeds of trust, mortgages and similar documents in each case in form and
substance satisfactory to the Collateral Agent (as amended, modified or
supplemented from time to time in accordance with the terms thereof and hereof,
each a "Mortgage" and, collectively, the "Mortgages") with respect to each of
the Mortgaged Properties, if any, and arrangements reasonably satisfactory to
the Collateral Agent shall be in place to provide that counterparts of such
Mortgages shall be recorded on the Restatement Effective Date in all places to
the extent necessary or desirable, in the judgment of the Collateral Agent,
effectively to create a valid and enforceable first priority mortgage Lien,
subject only to Permitted Encumbrances, on each such Mortgaged Property in favor
of the Collateral Agent (or such other trustee as may be required or desired
under local law) for the benefit of the Secured Creditors.
(b) On the Restatement Effective Date, the Collateral Agent shall
have received mortgagee title insurance policies (or binding commitments to
issue such title insurance policies) issued by title insurers reasonably
satisfactory to the Collateral Agent (the "Mortgage Policies") in
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amounts reasonably satisfactory to the Collateral Agent and assuring the
Collateral Agent that the Mortgages are valid and enforceable first priority
mortgage Liens on the respective Mortgaged Properties, free and clear of all
defects and encumbrances except Permitted Encumbrances. Such Mortgage Policies
shall be in form and substance reasonably satisfactory to the Collateral Agent
and (i) shall include (to the extent available in the respective jurisdiction of
each Mortgaged Property) an endorsement for future advances under this
Agreement, the Notes and the Mortgages, and for such other matters that the
Collateral Agent in its discretion may reasonably request, (ii) shall not
include an exception for mechanics' liens, and (iii) shall provide for
affirmative insurance and such reinsurance (including direct access agreements)
as the Collateral Agent in its discretion may reasonably request.
(c) On the Restatement Effective Date, the Collateral Agent shall
have received surveys in form and substance satisfactory to the Collateral Agent
of each Mortgaged Property, if any, designated as "Owned" on Annex III hereto,
dated a recent date acceptable to the Collateral Agent and certified in a manner
satisfactory to the Collateral Agent by a licensed professional surveyor
satisfactory to the Agent.
(d) On the Restatement Effective Date, the Collateral Agent shall
have received such duly authorized and fully executed documents relating to the
Mortgages that the Collateral Agent may request, and such documents shall be in
form and substance reasonably satisfactory to the Collateral Agent.
5.14 EMPLOYEE BENEFIT PLANS; SHAREHOLDERS' AGREEMENTS; MANAGEMENT
AGREEMENTS; EMPLOYMENT AGREEMENTS; COLLECTIVE BARGAINING AGREEMENTS; EXISTING
INDEBTEDNESS AGREEMENTS; MATERIAL CONTRACTS; TAX ALLOCATION AGREEMENTS;
TRANSACTION DOCUMENTS. On or prior to the Restatement Effective Date, there
shall have been delivered to the Agent true and correct copies, certified as
true and complete by an appropriate officer of the Borrower of:
(i) all Plans (and for each Plan that is required to file an annual
report on Internal Revenue Service Form 5500-series, a copy of the most
recent such report (including, to the extent required, the related
financial and actuarial statements and opinions and other supporting
statements, certifications, schedules and information), and for each Plan
that is a "single-employer plan," as defined in Section 4001(a)(15) of
ERISA, the most recently prepared actuarial valuation therefor) and any
other "employee benefit plans," as defined in Section 3(3) of ERISA, and
any other material agreements, plans or arrangements, with or for the
benefit of current or former employees of Parent or any of its Subsidiaries
or any ERISA Affiliate (provided that the foregoing shall apply in the case
of any multiemployer plan, as defined in 4001(a)(3) of ERISA, only to the
extent that any document described therein is in the possession of Parent
or any Subsidiary of Parent or any ERISA Affiliate or reasonably available
thereto from the sponsor or trustee of any such plan) (collectively, the
"Employee Benefit Plans");
(ii) all agreements (including, without limitation, shareholders'
agreements, subscription agreements and registration rights agreements)
entered into by Parent or any of its Subsidiaries governing the terms and
relative rights of its capital stock and any agreements entered into by
shareholders relating to any such entity with respect to its
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capital stock, in each case, that are to remain in effect after giving
effect to the consummation of the Transaction (collectively, the
"Shareholders' Agreements");
(iii) all material agreements with members of, or with respect to,
the management of Parent or any of its Subsidiaries that are to remain in
effect after giving effect to the consummation of the Transaction
(collectively, the "Management Agreements");
(iv) any material employment agreements entered into by Parent or
any of its Subsidiaries (collectively, the "Employment Agreements");
(v) all collective bargaining agreements applying or relating to
any employee of Parent or any of its Subsidiaries that are to remain in
effect after giving effect to the consummation of the Transaction
(collectively, the "Collective Bargaining Agreements");
(vi) all agreements evidencing or relating to Existing Indebtedness
of Parent that are to remain in effect after giving effect to the
consummation of the Transaction (collectively, the "Existing Indebtedness
Agreements");
(vii) all other material contracts and licenses of Parent and any of
its Subsidiaries that are to remain in effect after giving effect to the
consummation of the Transaction (collectively, the "Material Contracts");
(viii) any tax sharing or tax allocation agreements entered into by
Parent or any of its Subsidiaries (collectively, the "Tax Allocation
Agreements"); and
(ix) all Transaction Documents;
all of which Employee Benefit Plans, Shareholders' Agreements, Management
Agreements, Employment Agreements, Collective Bargaining Agreements, Existing
Indebtedness Agreements, Material Contracts, Tax Allocation Agreements and
Transaction Documents shall be in form and substance satisfactory to the Agent
and the Required Banks and shall be in full force and effect on the Restatement
Effective Date.
5.15 SOLVENCY CERTIFICATE; INSURANCE CERTIFICATES; ENVIRONMENTAL
ASSESSMENTS; FINANCIAL STATEMENTS. On or before the Restatement Effective Date,
the Agent shall have received:
(a) a solvency certificate in the form of Exhibit J from the chief
financial officer of Parent and dated the Restatement Effective Date and
supporting the conclusions, that, after giving effect to the Transaction
and the incurrence of all financings contemplated herein, the US Borrower
and each Parent Guarantor is not insolvent (taking into account all of its
assets (including capital stock and promissory notes) and liabilities) and
will not be rendered insolvent by the indebtedness incurred in connection
herewith, will not be left with unreasonably small capital with which to
engage in its respective business and will not have incurred debts beyond
its ability to pay such debts as they mature and become due;
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(b) evidence of insurance complying with the requirements of Section
8.03 for the business and properties of Parent and its Subsidiaries, in
scope, form and substance reasonably satisfactory to the Agent and the
Required Banks and naming the Collateral Agent as an additional insured
and/or loss payee, and stating that such insurance shall not be canceled or
revised without at least 30 days' prior written notice by the insurer to
the Collateral Agent; and
(c) the annual audited consolidated financial statements of SPEC for
the two most recently completed fiscal years, including balance sheets and
income statements and cash flow statements, and all of the foregoing shall
have been audited by independent public accountants of recognized national
standing and prepared in accordance with GAAP (and containing an
unqualified opinion of such accountants) and shall be in form and substance
satisfactory to the Agent and the Required Banks.
5.16 EXISTING INDEBTEDNESS. On the Restatement Effective Date and
after giving effect to the Transaction and the Loans incurred on the Restatement
Effective Date, neither Parent nor any of its Subsidiaries shall have any
preferred stock or Indebtedness outstanding except for (i) the Loans and (ii)
other indebtedness as is listed on Annex IV (with the Indebtedness described in
this clause (ii) being herein called "Existing Indebtedness"). On and as of the
Restatement Effective Date, all of the Existing Indebtedness shall remain
outstanding after giving effect to the Transaction and the other transactions
contemplated hereby without any default or events of default existing thereunder
or arising as a result of the Transaction and the other transactions
contemplated hereby, and there shall not be any amendments or modifications to
the Existing Indebtedness Agreements other than as requested or approved by the
Agent or the Required Banks. On and as of the Restatement Effective Date, the
Agent and the Required Banks shall be satisfied with the amount of and the terms
and conditions of all Existing Indebtedness.
5.17 PRO FORMA BALANCE SHEET; INCOME STATEMENT; PROJECTIONS. (a) On
or prior to the Restatement Effective Date, there shall have been delivered to
the Agent an unaudited PRO FORMA consolidated balance sheet of Parent and its
Subsidiaries as of December 31, 1998, but calculated as though the Transaction
and the incurrence of all Indebtedness (including the Loans) contemplated herein
had occurred on January 1, 1998, together with a related income statement, which
PRO FORMA balance sheet and income statement shall (i) be prepared in accordance
with GAAP, (ii) fairly reflect the financial condition of the Parent and its
Subsidiaries, after giving effect to the Transaction and the incurrence of
Indebtedness (including the Loans) contemplated herein and (iii) be reasonably
satisfactory to the Agent and the Required Banks.
(b) On or prior to the Restatement Effective Date, there shall have
been delivered to the Agent detailed projected consolidated financial statements
of Parent and its Subsidiaries certified by the chief financial officer or
treasurer of Parent for the five fiscal years ended after the Restatement
Effective Date (the "Projections"), which Projections (x) shall reflect the
forecasted consolidated financial conditions and income and expenses of Parent
and its Subsidiaries after giving effect to the Transaction and the related
financing thereof and the other transactions contemplated hereby and (y) shall
be satisfactory in form and substance to the Agent and the Required Banks.
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5.18 PAYMENT OF FEES. On the Restatement Effective Date, all
costs, fees and expenses, and all other compensation due to the Agent or the
Banks (including, without limitation, legal fees and expenses) shall have
been paid to the extent due.
SECTION 6. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS. The
obligation of each Bank to make Loans (including Loans made on the
Restatement Effective Date but excluding Mandatory Borrowings made
thereafter, which shall be made as provided in Section 1.01(d)), and the
obligation of a Letter of Credit Issuer to issue any Letter of Credit, is
subject, at the time of each such Credit Event (except as hereinafter
indicated), to the satisfaction of the following conditions:
6.01 NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of
each such Credit Event and also after giving effect thereto (i) there shall
exist no Default or Event of Default and (ii) all representations and
warranties contained herein or in any other Credit Document shall be true and
correct in all material respects with the same effect as though such
representations and warranties had been made on the date of the making of
such Credit Event (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date shall be required
to be true and correct in all material respects only as of such specified
date).
6.02 ADVERSE CHANGE; ETC. At the time of each such Credit Event
and also after giving effect thereto, nothing shall have occurred (and the
Banks shall have become aware of no facts or conditions not previously known)
which the Agent or the Required Banks shall determine (i) has, or could
reasonably be expected to have, a material adverse effect on the rights or
remedies of the Banks or the Agent, or on the ability of either Borrower or
any other Credit Party to perform its obligations to the Agent or the Banks
under this Agreement or any other Credit Document or (ii) has, or could
reasonably be expected to have, a Material Adverse Effect.
6.03 LITIGATION. At the time of each such Credit Event and also
after giving effect thereto, no litigation or investigation by any entity
(private or governmental) shall be pending or threatened in writing with
respect to this Agreement, any other Document or any documentation executed
in connection herewith or the transactions contemplated hereby or thereby, or
which the Agent or the Required Banks shall determine could reasonably be
expected to have a Material Adverse Effect.
6.04 NOTICE OF BORROWING; LETTER OF CREDIT REQUEST. (a) Prior to
the making of each Loan (excluding Swingline Loans and Mandatory Borrowings),
the Agent shall have received a Notice of Borrowing meeting the requirements
of Section 1.03(a). Prior to the making of any Swingline Loan, BTCo shall
have received the notice required by Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the Agent and
the respective Issuing Bank shall have received a Letter of Credit Request
meeting the requirements of Section 2.02(a).
6.05 SPECIAL CONDITION REGARDING REVOLVING LOANS AND SWINGLINE
LOANS TO FRENCH BORROWER. At the time of the making of each Revolving Loan
(excluding Mandatory
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Borrowings) and each Swingline Loan to the French Borrower, the French
Borrower shall be a Wholly-Owned Subsidiary of Parent.
The occurrence of the Restatement Effective Date and the acceptance
of the benefits or proceeds of each Credit Event shall constitute a
representation and warranty by each of Parent and the US Borrower and, in the
case of a Borrowing of Revolving Loans or Swingline Loans to the French
Borrower, the French Borrower to the Agent and each of the Banks that all the
conditions specified in Section 5 and in this Section 6 and applicable to
such Credit Event exist as of that time. All of the Notes, certificates,
legal opinions and other documents and papers referred to in Section 5 and in
this Section 6, unless otherwise specified, shall be delivered to the Agent
at the Notice Office for the account of each of the Banks and, except for the
Notes, in sufficient counterparts or copies for each of the Banks and shall
be in form and substance satisfactory to the Banks.
SECTION 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In order
to induce the Banks to enter into this Agreement and to make the Loans and
issue and/or participate in the Letters of Credit provided for herein,
Parent, Holdings, the US Borrower and, in the case of a Borrowing of
Revolving Loans or Swingline Loans to the French Borrower, the French
Borrower, makes the following representations, warranties and agreements with
the Banks, in each case after giving effect to the Transaction, all of which
shall survive the execution and delivery of this Agreement, the making of the
Loans and the issuance of the Letters of Credit (with the occurrence of each
Credit Event being deemed to constitute a representation and warranty that
the matters specified in this Section 7 are true and correct in all material
respects on and as of the date of each such Credit Event, unless stated to
relate to a specific earlier date in which case such representations and
warranties shall be true and correct in all material respects as of such
earlier date):
7.01 CORPORATE STATUS. Parent and each of its Subsidiaries (i) is
a duly organized and validly existing corporation in good standing under the
laws of the jurisdiction of its organization, (ii) has the corporate power
and authority to own its property and assets and to transact the business in
which it is engaged and presently proposes to engage and (iii) is duly
qualified and is authorized to do business and is in good standing in all
jurisdictions where it is required to be so qualified and where the failure
to be so qualified would have a Material Adverse Effect.
7.02 CORPORATE POWER AND AUTHORITY. Each Credit Party has the
corporate power and authority to execute, deliver and carry out the terms and
provisions of the Documents to which it is a party and has taken all
necessary corporate action to authorize the execution, delivery and
performance of the Documents to which it is a party. Each Credit Party has
duly executed and delivered each Document to which it is a party and each
such Document constitutes the legal, valid and binding obligation of such
Credit Party enforceable in accordance with its terms, except to the extent
that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law).
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7.03 NO VIOLATION. Neither the execution, delivery or performance
by any Credit Party of the Documents to which it is a party, nor compliance
by any Credit Party with the terms and provisions thereof, nor the
consummation of the transactions contemplated herein or therein, (i) will
contravene any applicable provision of any law, statute, rule or regulation,
or any order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict or be inconsistent with or result in any
breach of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, or (other than pursuant to the Security
Documents) result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the property or assets of Parent or
any of its Subsidiaries pursuant to the terms of any indenture, mortgage,
deed of trust, loan agreement, credit agreement or any other material
agreement or instrument to which Parent or any of its Subsidiaries is a party
or by which it or any of its property or assets are bound or to which it may
be subject (including, without limitation, the Existing Indebtedness) or
(iii) will violate any provision of the Certificate of Incorporation or
By-Laws of Parent or any of its Subsidiaries.
7.04 LITIGATION. There are no actions, suits, proceedings or
investigations pending or threatened, with respect to Parent or any of its
Subsidiaries (i) that are likely to have a Material Adverse Effect or (ii)
that could reasonably be expected to have a material adverse effect on the
rights or remedies of the Agent or the Banks or on the ability of any Credit
Party to perform its respective obligations to the Agent or the Banks
hereunder and under the other Credit Documents to which it is, or will be, a
party. Additionally, there does not exist any judgment, order or injunction
prohibiting or imposing material adverse conditions upon the occurrence of
any Credit Event.
7.05 USE OF PROCEEDS; MARGIN REGULATIONS. (a) The proceeds of
all Term Loans incurred on the Restatement Effective Date shall be utilized
to finance the Transaction and to pay the fees and expenses incurred in
connection therewith.
(b) The proceeds of all Revolving Loans and Swingline Loans shall
be utilized for the general corporate and working capital purposes of the
respective Borrower and its Subsidiaries (including to effect Permitted
Acquisitions and make Capital Expenditures, in each case to the extent
permitted by this Agreement), PROVIDED that (x) not more than $1,000,000 of
Revolving Loans may be used to finance the Transaction and to pay related
fees and expenses incurred in connection therewith and (y) the amount of
outstanding Revolving Loans incurred to effect Permitted Acquisitions shall
not exceed $20,000,000 at any time.
(c) Neither the making of any Loan, nor the use of the proceeds
thereof, nor the occurrence of any other Credit Event, will violate or be
inconsistent with the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System and no part of any Credit Event (or
the proceeds thereof) will be used to purchase or carry any Margin Stock or
to extend credit for the purpose of purchasing or carrying any Margin Stock.
7.06 GOVERNMENTAL APPROVALS. Except as may have been obtained or
made on or prior to the Restatement Effective Date (and which remain in full
force and effect on the Restatement Effective Date), no order, consent,
approval, license, authorization or validation of, or filing, recording or
registration with, or exemption by, any foreign or domestic governmental
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or public body or authority, or any subdivision thereof, is required to
authorize or is required in connection with (i) the execution, delivery and
performance of any Document or (ii) the legality, validity, binding effect or
enforceability of any Document.
7.07 INVESTMENT COMPANY ACT. Neither Parent nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of
1940, as amended.
7.08 PUBLIC UTILITY HOLDING COMPANY ACT. Neither Parent nor any
of its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
7.09 TRUE AND COMPLETE DISCLOSURE. All factual information
(excluding the Projections, which are subject to Section 7.10(e)) (taken as a
whole) heretofore or contemporaneously furnished by or on behalf of Parent or
any of its Subsidiaries in writing to the Agent or any Bank (including,
without limitation, all information contained in the Documents) for purposes
of or in connection with this Agreement or any transaction contemplated
herein or therein is, and all other such factual information (taken as a
whole) hereafter furnished by or on behalf of any such Persons in writing to
the Agent or any Bank will be, true and accurate in all material respects on
the date as of which such information is dated or certified and not
incomplete by omitting to state any material fact necessary to make such
information (taken as a whole) not misleading at such time in light of the
circumstances under which such information was provided.
7.10 FINANCIAL CONDITION; FINANCIAL STATEMENTS. (a) On and as of
the Restatement Effective Date, on a PRO FORMA basis after giving effect to
the Transaction and all other transactions contemplated by the Documents and
to all Indebtedness incurred, and to be incurred, and Liens created, and to
be created, by each Credit Party in connection therewith, with respect to
each of Parent, Holdings, the US Borrower and the French Borrower, (x) the
sum of the assets (including capital stock and promissory notes), at a fair
valuation, of each of Parent, Holdings, the US Borrower and the French
Borrower will exceed its debts, (y) it has not incurred nor intended to, nor
believes that it will, incur debts beyond its ability to pay such debts as
such debts mature and (z) it will have sufficient capital with which to
conduct its business. For purposes of this Section 7.10(a), "debt" means any
liability on a claim, and "claim" means (i) right to payment, whether or not
such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (ii) right to an equitable remedy for breach of
performance if such breach gives rise to a payment, whether or not such right
to an equitable remedy is reduced to judgment, fixed, contingent, matured,
unmatured, disputed, undisputed, secured or unsecured.
(b) The statements of financial condition of SPEC, furnished to
each Bank pursuant to Section 5.15(c), present fairly in all material
respects the consolidated financial condition of SPEC at the dates of said
statements and the results for the periods covered thereby.
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(c) Since December 31, 1998 (but after giving effect to the
Transaction as if same had occurred prior thereto), nothing has occurred that
has had or could reasonably be expected to have a Material Adverse Effect.
(d) Except as fully reflected in the financial statements
described in Section 7.10(b) and the Indebtedness incurred under this
Agreement, (i) there were as of the Restatement Effective Date (and after
giving effect to any Loans made on such date), no liabilities or obligations
(excluding current obligations incurred in the ordinary course of business)
with respect to Parent or any of its Subsidiaries of any nature whatsoever
(whether absolute, accrued, contingent or otherwise and whether or not due)
and (ii) none of Parent, Holdings, the US Borrower or the French Borrower
knows of any basis for the assertion against Parent or any of its
Subsidiaries of any such liability or obligation which as to clauses (i) and
(ii) above, either individually or in the aggregate, are or would be
reasonably likely to have, a Material Adverse Effect.
(e) The Projections have been prepared on a basis consistent with
the financial statements referred to in Section 7.10(b) (except as may
otherwise be indicated in the Projections), and are based on good faith
estimates and assumptions made by the management of Parent. On the
Restatement Effective Date, management believed that the Projections were
reasonable and attainable. There is no fact known to Parent or any of its
Subsidiaries which could have a Material Adverse Effect, which has not been
disclosed herein or in such other documents, certificates and statements
furnished to the Banks for use in connection with the transactions
contemplated hereby.
7.11 SECURITY INTERESTS. On and after the Restatement Effective
Date, each of the Security Documents creates (or after the execution and
delivery thereof will create), as security for the Obligations, a valid and
enforceable perfected security interest in and Lien on all of the Collateral
subject thereto, superior to and prior to the rights of all third Persons,
and subject to no other Liens (except that (i) the Security Agreement
Collateral, the Mortgaged Properties and any additional Mortgaged Properties
may be subject to Permitted Liens relating thereto and (ii) the Pledge
Agreement Collateral may be subject to the Liens described in clauses (a) and
(e) of Section 9.03), in favor of the Collateral Agent. No filings or
recordings are required in order to perfect the security interests created
under any Security Document except for filings or recordings required in
connection with any such Security Document which shall have been made on or
prior to the Restatement Effective Date as contemplated by Section 5.11(b) or
5.13 or on or prior to the execution and delivery thereof as contemplated by
Sections 8.11, 8.12 and 9.15.
7.12 TRANSACTION. At the time of consummation thereof, the
Transaction shall have been consummated in accordance with the terms of the
respective Documents and all applicable laws. At the time of consummation
thereof, all consents and approvals of, and filings and registrations with,
and all other actions in respect of, all governmental agencies, authorities
or instrumentalities required to make or consummate the Transaction have been
obtained, given, filed or taken or waived and are or will be in full force
and effect (or effective judicial relief with respect thereto has been
obtained). All applicable waiting periods with respect thereto have or, prior
to the time when required, will have, expired without, in all such cases, any
action being
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taken by any competent authority which restrains, prevents, or imposes
material adverse conditions upon the Transaction. Additionally, there does
not exist any judgment, order or injunction prohibiting or imposing material
adverse conditions upon the Transaction, or the occurrence of any Credit
Event or the performance by Parent and its Subsidiaries of their obligations
under the Documents and all applicable laws. The Transaction has been
consummated in accordance with the respective Documents and all applicable
laws.
7.13 COMPLIANCE WITH ERISA. (i) Annex V sets forth each Plan;
each Plan (and each related trust, insurance contract or fund) is in
substantial compliance with its terms and with all applicable laws, including
without limitation ERISA and the Code; each Plan (and each related trust, if
any) which is intended to be qualified under Section 401(a) of the Code has
received a determination letter from the Internal Revenue Service to the
effect that it meets the requirements of Sections 401(a) and 501(a) of the
Code; no Reportable Event has occurred; no Plan which is a multiemployer plan
(as defined in Section 4001(a)(3) of ERISA) is insolvent or in
reorganization; no Plan has a material Unfunded Current Liability; no Plan
which is subject to Section 412 of the Code or Section 302 of ERISA has an
accumulated funding deficiency, within the meaning of such sections of the
Code or ERISA, or has applied for or received a waiver of an accumulated
funding deficiency or an extension of any amortization period, within the
meaning of Section 412 of the Code or Section 303 or 304 of ERISA; all
contributions required to be made with respect to a Plan have been timely
made; neither Parent nor any Subsidiary of Parent nor any ERISA Affiliate has
incurred any material liability (including any indirect, contingent or
secondary liability) to or on account of a Plan pursuant to Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971 or 4975 of the Code or expects to incur any such
liability under any of the foregoing sections with respect to any Plan; no
condition exists which presents a material risk to Parent or any Subsidiary
of Parent or any ERISA Affiliate of incurring a material liability to or on
account of a Plan pursuant to the foregoing provisions of ERISA and the Code;
no proceedings have been instituted to terminate or appoint a trustee to
administer any Plan which is subject to Title IV of ERISA; no action, suit,
proceeding, hearing, audit or investigation with respect to the
administration, operation or the investment of assets of any Plan (other than
routine claims for benefits) is pending, expected or threatened; using
actuarial assumptions and computation methods consistent with Part 1 of
subtitle E of Title IV of ERISA, the Parent and its Subsidiaries and its
ERISA Affiliates have no material liabilities to any Plans which are
multiemployer plans (as defined in Section 4001(a)(3) of ERISA) in the event
of a complete withdrawal therefrom, as of the close of the most recent fiscal
year of each such Plan ended prior to the date of the most recent Credit
Event; each group health plan (as defined in Section 607(1) of ERISA or
Section 4980B(g)(2) of the Code) which covers or has covered employees or
former employees of Parent, any Subsidiary of Parent or any ERISA Affiliate
has at all times been operated in substantial compliance with the provisions
of Part 6 of subtitle B of Title I of ERISA and Section 4980B of the Code; no
lien imposed under the Code or ERISA on the assets of Parent or any
Subsidiary of Parent or any ERISA Affiliate exists or is likely to arise on
account of any Plan; and Parent and its Subsidiaries may cease contributions
to or terminate any employee benefit plan maintained by any of them without
incurring any material liability.
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(ii) Each Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities. All
contributions required to be made with respect to a Foreign Pension Plan have
been timely made. Neither Parent nor any of its Subsidiaries has incurred
any obligation in connection with the termination of or withdrawal from any
Foreign Pension Plan. The present value of the accrued benefit liabilities
(whether or not vested) under each Foreign Pension Plan, determined as of the
end of the US Borrower's most recently ended fiscal year on the basis of
actuarial assumptions, each of which is reasonable, did not exceed the
current value of the assets of such Foreign Pension Plan allocable to such
benefit liabilities.
7.14 CAPITALIZATION. (a) On the Restatement Effective Date and
after giving effect to the Transaction and the other transactions
contemplated hereby, the authorized capital stock of Parent shall consist of
40,000,000 shares of common stock, $.01 par value per share (the "Parent
Common Stock"), of which 17,214,414 shares shall be issued and outstanding.
All such outstanding shares have been duly and validly issued and are fully
paid and nonassessable. On the Restatement Effective Date, except as provided
in the Stock Option Plan, Parent does not have outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any
rights to subscribe for or to purchase, or any options for the purchase of,
or any agreement providing for the issuance (contingent or otherwise) of, or
any calls, commitments or claims of any character relating to, its capital
stock.
(b) On the Restatement Effective Date and after giving effect to
the Transaction and the other transactions contemplated hereby, the
authorized capital stock of Holdings shall consist of 1,000 shares of common
stock, $.01 par value per share, all of which shares shall be issued and
outstanding and owned by Parent and pledged by Parent pursuant to the Pledge
Agreement. All such outstanding shares have been duly and validly issued and
are fully paid and nonassessable. Holdings does not have outstanding any
securities convertible into or exchangeable for its capital stock or
outstanding any rights to subscribe for or to purchase, or any options for
the purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating
to, its capital stock.
(c) On the Restatement Effective Date and after giving effect to
the Transaction and the other transactions contemplated hereby, the
authorized capital stock of the US Borrower shall consist of 1,000 shares of
common stock, $.01 par value per share, all of which shares shall be issued
and outstanding and owned by Holdings and pledged by Holdings pursuant to the
Pledge Agreement. All such outstanding shares have been duly and validly
issued and are fully paid and nonassessable. The US Borrower does not have
outstanding any securities convertible into or exchangeable for its capital
stock or outstanding any rights to subscribe for or to purchase, or any
options for the purchase of, or any agreement providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to, its capital stock.
(d) On the Restatement Effective Date and after giving effect to
the Transaction and the other transactions contemplated hereby, the
authorized and outstanding capital stock of the French Borrower shall consist
of 4,450 shares of common stock owned by the US Borrower
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and 65% of such shares shall be pledged by the US Borrower pursuant to the
Pledge Agreement. All such outstanding shares have been duly and validly
issued and are fully paid and nonassessable. The French Borrower does not
have outstanding any securities convertible into or exchangeable for its
capital stock or outstanding any rights to subscribe for or to purchase, or
any options for the purchase of, or any agreement providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to, its capital stock.
7.15 SUBSIDIARIES. On and as of the Restatement Effective Date
and after giving effect to the consummation of the Transaction, Parent has no
Subsidiaries other than Holdings and its Subsidiaries, Holdings has no
Subsidiaries other than those Subsidiaries listed on Annex VII. Annex VII
correctly sets forth, as of the Restatement Effective Date and after giving
effect to the Transaction, the percentage ownership (direct and indirect) of
Holdings in each class of capital stock of each of its Subsidiaries and also
identifies the direct owner thereof. All outstanding shares of capital stock
of each Subsidiary of Holdings have been duly and validly issued, are fully
paid and non-assessable and have been issued free of preemptive rights. No
Subsidiary of Holdings has outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any right to subscribe for
or to purchase, or any options or warrants for the purchase of, or any
agreement providing for the issuance (contingent or otherwise) of or any
calls, commitments or claims of any character relating to, its capital stock
or any stock appreciation or similar rights.
7.16 INTELLECTUAL PROPERTY, ETC. Each of Parent and each of its
Subsidiaries owns all patents, trademarks, permits, service marks, trade
names, technology copyrights, licenses, franchises and formulas, or other
rights with respect to the foregoing, and has obtained assignments of all
leases and other rights of whatever nature, and has in full force and effect
all accreditations and certifications, reasonably necessary for the conduct
of its business, without any known conflict with the rights of others which,
or the failure to obtain which, as the case may be, would result in a
Material Adverse Effect.
7.17 COMPLIANCE WITH STATUTES, ETC. Each of Parent and each of
its Subsidiaries is in compliance with all applicable statutes, regulations,
rules and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except such non-compliance as is
not likely to, individually or in the aggregate, have a Material Adverse
Effect.
7.18 ENVIRONMENTAL MATTERS. (a) Each of Parent and each of its
Subsidiaries has complied with, and on the date of each Credit Event is in
compliance with, all applicable Environmental Laws and the requirements of
any permits issued under such Environmental Laws and neither Parent nor any
of its Subsidiaries is liable for any material penalties, fines or
forfeitures for failure to comply with any of the foregoing. There are no
pending or past or threatened Environmental Claims against Parent or any of
its Subsidiaries or any Real Property owned or operated by Parent or any of
its Subsidiaries. There are no facts, circumstances, conditions or
occurrences on any Real Property owned or operated by Parent or any of its
Subsidiaries or on any property adjoining or in the vicinity of any such Real
Property that would reasonably be expected (i) to form the basis of an
Environmental Claim against Parent or any of its Subsidiaries
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or any such Real Property or (ii) to cause any such Real Property to be subject
to any restrictions on the ownership, occupancy, use or transferability of such
Real Property by Parent or any of its Subsidiaries under any applicable
Environmental Law.
(b) Hazardous Materials have not at any time been generated,
used, treated or stored on, or transported to or from, any Real Property
owned or operated by Parent or any of its Subsidiaries except in compliance
with all applicable Environmental Laws and reasonably required in connection
with the operation, use and maintenance of such Real Property by Parent's or
such Subsidiary's business. Hazardous Materials have not at any time been
Released on or from any Real Property owned or operated by Parent or any of
its Subsidiaries. There are not now any underground storage tanks located on
any Real Property owned or operated by Parent or any of its Subsidiaries.
(c) Notwithstanding anything to the contrary in this Section 7.18,
the representations made in this Section 7.18 shall only be untrue if the
aggregate effect of all conditions, failures, noncompliances, Environmental
Claims, Releases and presence of underground storage tanks, in each case of
the types described above, would reasonably be expected to have a Material
Adverse Effect.
7.19 PROPERTIES. All Real Property owned by Parent or any of its
Subsidiaries and all material Leaseholds leased by Parent or any of its
Subsidiaries, in each case as of the Restatement Effective Date and after
giving effect to the Transaction, and the nature of the interest therein, is
correctly set forth in Annex III. Each of Parent and each of its
Subsidiaries has good and marketable title to, or a validly subsisting
leasehold interest in, all material properties owned or leased by it,
including all Real Property reflected in Annex III or in the financial
statements referred to in Section 7.10(b) or in the pro forma balance sheet
referred to in Section 5.17(a), free and clear of all Liens, other than
Permitted Liens.
7.20 LABOR RELATIONS. Neither Parent nor any of its Subsidiaries
is engaged in any unfair labor practice that could reasonably be expected to
have a Material Adverse Effect. There is (i) no unfair labor practice
complaint pending against Parent or any of its Subsidiaries or threatened
against any of them, before the National Labor Relations Board, and no
grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against Parent or any of its Subsidiaries
or threatened against any of them, (ii) no strike, labor dispute, slowdown or
stoppage pending against Parent or any of its Subsidiaries or threatened
against Parent or any of its Subsidiaries and (iii) no union representation
question existing with respect to the employees of Parent or any of its
Subsidiaries and no union organizing activities are taking place, except
(with respect to any matter specified in clause (i), (ii) or (iii) above,
either individually or in the aggregate) such as is not reasonably likely to
have a Material Adverse Effect.
7.21 TAX RETURNS AND PAYMENTS. Each of Parent and each of its
Subsidiaries has filed all federal income tax returns and all other material
tax returns, domestic and foreign, required to be filed by it and has paid
all material taxes and assessments payable by it which have become due,
except for those contested in good faith and adequately disclosed and fully
provided for on the financial statements of Parent and its Subsidiaries in
accordance with generally accepted accounting principles. Each of Parent and
each of its Subsidiaries has at all times paid, or has
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provided adequate reserves (in the good faith judgment of the management of
Parent) for the payment of, all federal, state and foreign income taxes
applicable for all prior fiscal years and for the current fiscal year to
date. Other than as disclosed on Annex X hereto, there is no material action,
suit, proceeding, investigation, audit, or claim now pending or, to the
knowledge of Parent or any of its Subsidiaries, threatened by any authority
regarding any taxes relating to Parent or any of its Subsidiaries. As of the
Restatement Effective Date, neither Parent nor any of its Subsidiaries has
entered into an agreement or waiver or been requested to enter into an
agreement or waiver extending any statute of limitations relating to the
payment or collection of taxes of Parent or any of its Subsidiaries, or is
aware of any circumstances that would cause the taxable years or other
taxable periods of Parent or any of its Subsidiaries not to be subject to the
normally applicable statute of limitations.
7.22 EXISTING INDEBTEDNESS. Annex IV sets forth a true and
complete list of all Indebtedness of Parent and its Subsidiaries as of the
Restatement Effective Date and which is to remain outstanding after giving
effect to the Transaction and the incurrence of Loans on such date, in each
case showing the aggregate principal amount thereof and the name of the
respective borrower and any other entity which directly or indirectly
guarantees such debt.
7.23 INSURANCE. Set forth on Annex VIII hereto is a true, correct
and complete summary of all insurance carried by each Credit Party on and as
of the Restatement Effective Date, with the amounts insured set forth therein.
7.24 REPRESENTATIONS AND WARRANTIES IN OTHER DOCUMENTS. All
representations and warranties set forth in the other Documents were true and
correct in all material respects at the time as of which such representations
and warranties were made (or deemed made) and shall be true and correct in
all material respects as of the Restatement Effective Date as if such
representations or warranties were made on and as of such date, unless stated
to relate to a specific earlier date, in which case such representations or
warranties shall be true and correct in all material respects as of such
earlier date. All representations and warranties set forth in the Existing
Credit Agreement were true and correct in all material respects as of the
Restatement Effective Date (immediately prior to giving effect to this
Agreement) as if such representations or warranties were made on and as of
such date, unless stated to relate to a specific earlier date, in which case
such representations or warranties shall be true and correct in all material
respects as of such earlier date.
7.25 SPECIAL PURPOSE CORPORATIONS. After the consummation of the
Transaction, (i) Parent has no significant assets (other than its own capital
stock to the extent acquired pursuant to Section 9.02(k), the capital stock
of Holdings and immaterial assets used for the performance of those
activities permitted to be performed by Parent pursuant to Section
9.01(b)(i)) or liabilities (other than under this Agreement and the other
Documents to which it is a party and those liabilities permitted to be
incurred by Parent pursuant to Section 9.01(b)(i)) and (ii) Holdings has no
significant assets (other than the capital stock of the US Borrower and any
other Subsidiaries of which it is the direct owner and which are identified
as such on Annex VII and immaterial assets used for the performance of those
activities permitted to be performed by Holdings pursuant to Section
9.01(b)(i)) or liabilities (other than under this Agreement and the
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other Documents to which it is a party and those liabilities permitted to be
incurred by Holdings pursuant to Section 9.01(b)(i)).
SECTION 8. AFFIRMATIVE COVENANTS. Each of Parent, Holdings, the
US Borrower and the French Borrower hereby covenant and agree that as of the
Restatement Effective Date and thereafter for so long as this Agreement is in
effect and until the Total Commitment has terminated, no Letters of Credit or
Notes are outstanding and the Loans and Unpaid Drawings, together with
interest, Fees and all other Obligations (other than any indemnities
described in Section 13.13 which are not then due and payable) incurred
hereunder, are paid in full:
8.01 INFORMATION COVENANTS. Parent will furnish, or will cause to
be furnished, to each Bank:
(a) MONTHLY REPORTS. Within 30 days after the end of each fiscal
month of Parent, the consolidated balance sheet of Parent and its
Subsidiaries as at the end of such fiscal month and the related
consolidated statements of income and retained earnings of cash flows for
such fiscal month and for the elapsed portion of the fiscal year ended with
the last day of such fiscal month, in each case setting forth comparative
figures for the corresponding fiscal month in the prior fiscal year and
comparable budgeted figures for such fiscal month as set forth in the
respective budget delivered pursuant to Section 8.01(d), all of which shall
be certified by the chief financial officer or other Authorized Officer of
Parent, subject to normal year-end audit adjustments and the absence of
footnotes.
(b) QUARTERLY FINANCIAL STATEMENTS. Within 45 days after the close
of the first three quarterly accounting periods in each fiscal year of
Parent, (i) the consolidated balance sheet of Parent and its Subsidiaries
as at the end of such quarterly accounting period and the related
consolidated statements of income and retained earnings and of cash flows
for such quarterly accounting period and for the elapsed portion of the
fiscal year ended with the last day of such quarterly accounting period and
the budgeted figures for such quarterly period as set forth in the
respective budget delivered pursuant to Section 8.01(d) and (ii)
management's discussion and analysis of the most important operational and
financial developments during such quarterly period, all of which shall be
in reasonable detail and certified by the chief financial officer or other
Authorized Officer of Parent that they fairly present in all material
respects the financial condition of Parent and its Subsidiaries as of the
dates indicated and the results of their operations and changes in their
cash flows for the periods indicated, subject to normal year-end audit
adjustments and the absence of footnotes.
(c) ANNUAL FINANCIAL STATEMENTS. Within 90 days after the close of
each fiscal year of Parent, the consolidated balance sheet of Parent and
its Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income and retained earnings and of cash flows
for such fiscal year and setting forth comparative consolidated figures for
the preceding fiscal year and comparable budgeted figures for such fiscal
year as set forth in the respective budget delivered pursuant to Section
8.01(e) and (except for such comparable budgeted figures) certified by
Arthur Andersen or such other independent
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certified public accountants of recognized national standing as shall be
reasonably acceptable to the Agent, in each case to the effect that such
statements fairly present in all material respects the financial condition
of Parent and its Subsidiaries as of the dates indicated and the results
of their operations and changes in its financial position for the periods
indicated in conformity with GAAP applied on a basis consistent with prior
years, together with a certificate of such accounting firm stating that in
the course of its regular audit of the business of Parent and its
Subsidiaries, which audit was conducted in accordance with generally
accepted auditing standards, no Default or Event of Default which has
occurred and is continuing has come to their attention or, if such a
Default or an Event of Default has come to their attention a statement as
to the nature thereof.
(d) CLOSING BALANCE SHEET. At such time as the Closing Balance
Sheet (as defined in the Acquisition Agreement) has been prepared and
audited, a true and correct copy thereof, as well as copies of all
other post-closing financial statements and notices provided to or by
any of the Credit Parties pursuant to the Acquisition Documents.
(e) BUDGETS, ETC. Not more than 30 days after the commencement of
each fiscal year of Parent, a budget of Parent and its Subsidiaries (x) in
reasonable detail for each of the twelve months of such fiscal year and (y)
in summary form for each of the four fiscal years immediately following
such fiscal year, in each case as customarily prepared by management for
its internal use setting forth, with appropriate discussion, the principal
assumptions upon which such budgets are based. Together with each delivery
of financial statements pursuant to Sections 8.01(a), (b) and (c), a
comparison of the current year to date financial results (other than in
respect of the balance sheets included therein) against the budgets
required to be submitted pursuant to this clause (e) shall be presented.
(f) OFFICER'S CERTIFICATES. At the time of the delivery of the
financial statements provided for in Sections 8.01(a), (b) and (c), a
certificate of the chief financial officer or other Authorized Officer of
Parent to the effect that no Default or Event of Default exists or, if any
Default or Event of Default does exist, specifying the nature and extent
thereof, which certificate shall, if delivered in connection with the
financial statements in respect of a period ending on the last day of a
fiscal quarter or fiscal year of Parent, set forth the calculations
required to establish whether Parent and its Subsidiaries were in
compliance with the provisions of Sections 3.03, 4.02, 8.14, 9.02, 9.04,
9.05 and 9.08 through and including 9.11, as at the end of such fiscal
quarter or year, as the case may be. In addition, at the time of the
delivery of the financial statements provided for in Section 8.01(c), a
certificate of the chief financial officer or other Authorized Officer of
Parent setting forth (in reasonable detail) the amount of, and calculations
required to establish the amount of, Excess Cash Flow for the Excess Cash
Flow Payment Period ending on the last day of the respective fiscal year.
(g) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in any event
within three Business Days after an officer of Parent or any of its
Subsidiaries obtains knowledge thereof, notice of (i) the occurrence of any
event which constitutes a Default or an Event of Default, which notice
shall specify the nature and period of existence thereof and what
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action Parent or the Borrower proposes to take with respect thereto, (ii)
any litigation or proceeding pending or threatened (x) against Parent or
any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect, (y) with respect to any material Indebtedness of
Parent or any of its Subsidiaries or (z) with respect to any Document,
(iii) any material governmental investigation pending or threatened against
Parent or any of its Subsidiaries and (iv) any other event which could
reasonably be expected to have a Material Adverse Effect.
(h) AUDITORS' REPORTS. Promptly upon receipt thereof, a copy of
each report or "management letter" submitted to Parent or any of its
Subsidiaries by its independent accountants in connection with any annual,
interim or special audit made by them of the books of Parent or any of its
Subsidiaries and the management's non-privileged responses thereto.
(i) ENVIRONMENTAL MATTERS. Promptly after obtaining knowledge of
any of the following (but only to the extent that any of the following
could reasonably be expected to (x) have a Material Adverse Effect, either
individually or in the aggregate, or (y) result in a remedial cost to
Parent or any of its Subsidiaries in excess of $200,000), written notice
of:
(i) any pending or threatened Environmental Claim against
Parent or any of its Subsidiaries or any Real Property owned or
operated by Parent or any of its Subsidiaries;
(ii) any condition or occurrence on any Real Property owned
or operated by Parent or any of its Subsidiaries that (x) results in
noncompliance by Parent or any of its Subsidiaries with any applicable
Environmental Law or (y) could reasonably be anticipated to form the
basis of an Environmental Claim against Parent or any of its
Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Real Property owned
or operated by Parent or any of its Subsidiaries that could reasonably
be anticipated to cause such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability by
Parent or its Subsidiary, as the case may be, of its interest in such
Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in
response to the actual or alleged presence of any Hazardous Material
on any Real Property owned or operated by Parent or any of its
Subsidiaries.
All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and Parent
and/or such Subsidiary's response or proposed response thereto. In addition,
Parent agrees to provide the Banks with copies of all material communications by
Parent or any of its Subsidiaries with any Person, government or governmental
agency relating to any of the matters set forth in clauses (i)-(iv) above, and
such detailed reports relating to any of the matters set forth in clauses
(i)-(iv) above as may reasonably be requested by the Agent or the Required
Banks.
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(j) ANNUAL MEETINGS WITH BANKS. At the request of the Agent, Parent
shall within 120 days after the close of each of its fiscal years, hold a
meeting (at a mutually agreeable location and time) with all of the Banks
at which meeting shall be reviewed the financial results of the previous
fiscal year and the financial condition of Parent and its Subsidiaries and
the budgets presented for the current fiscal year of Parent and its
Subsidiaries.
(k) NOTICE OF COMMITMENT REDUCTIONS AND MANDATORY REPAYMENTS. On or
prior to the date of any reduction to the Total Commitment or any mandatory
repayment of outstanding Term Loans pursuant to any of Sections 4.02(c)
through (h), inclusive, the US Borrower shall provide written notice of the
amount of the respective reduction or repayment, as the case may be, to
each of the Total Revolving Loan Commitment or the outstanding Term Loans,
as applicable, and the calculation thereof (in reasonable detail).
(l) OTHER INFORMATION. Promptly upon transmission thereof, copies
of any filings and registrations with, and reports to, the SEC by Parent or
any of its Subsidiaries and copies of all financial statements, proxy
statements, notices and reports as Parent or any of its Subsidiaries shall
send generally to analysts and the holders of their capital stock in their
capacity as such holders (to the extent not theretofore delivered to the
Banks pursuant to this Agreement) and, with reasonable promptness, such
other information or documents (financial or otherwise) as the Agent on its
own behalf or on behalf of the Required Banks may reasonably request from
time to time.
8.02 BOOKS, RECORDS AND INSPECTIONS. Each of Parent, Holdings,
the US Borrower and the French Borrower will, and will cause each of its
Subsidiaries to, keep proper books of record and account in which full, true
and correct entries in conformity with GAAP and all requirements of law shall
be made of all dealings and transactions in relation to its business and
activities. Each of Parent, Holdings, the US Borrower and the French
Borrower will, and will cause each of its Subsidiaries to, permit, upon
notice to the chief financial officer or other Authorized Officer of Parent
or the US Borrower, officers and designated representatives of the Agent or
the Required Banks to visit and inspect any of the properties or assets of
Parent and any of its Subsidiaries, and to examine the books of account of
Parent and any of its Subsidiaries and discuss the affairs, finances and
accounts of Parent and of any of its Subsidiaries with, and be advised as to
the same by, their officers and independent accountants, all at such
reasonable times and intervals and to such reasonable extent as the Agent or
the Required Banks may desire.
8.03 INSURANCE. (a) Each of Parent, Holdings, the US Borrower
and the French Borrower will, and will cause each of its Subsidiaries to (i)
maintain, with financially sound and reputable insurance companies, insurance
on all its property in at least such amounts and against at least such risks
as is consistent and in accordance with industry practice and (ii) furnish to
the Agent and each of the Banks, upon request, full information as to the
insurance carried. In addition to the requirements of the immediately
preceding sentence, each of Parent, Holdings, the US Borrower and the French
Borrower will at all times cause insurance of the types described in Annex
VIII to be maintained (with the same scope of coverage as that described in
Annex VIII) at levels which are at least as great as the respective amount
described opposite the respective type of insurance on Annex VIII. Such
insurance shall include physical damage insurance on all real
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and personal property (whether now owned or hereafter acquired) on an all
risk basis, covering the full repair and replacement costs of all such
property and business interruption insurance for the actual loss sustained.
The provisions of this Section 8.03 shall be deemed supplemental to, but not
duplicative of, the provisions of any Security Documents that require the
maintenance of insurance.
(b) Each of Parent, Holdings, the US Borrower and the French
Borrower will, and will cause each of its Subsidiaries to, at all times keep
the respective property of Parent and its Subsidiaries insured in favor of
the Collateral Agent, and all policies (including Mortgage Policies) or
certificates with respect to such insurance (and any other insurance
maintained by, or on behalf of, Parent or any Subsidiary of Parent) (i) shall
be endorsed to the Collateral Agent's satisfaction for the benefit of the
Collateral Agent (including, without limitation, by naming the Collateral
Agent as certificate holder, mortgagee and loss payee with respect to real
property, certificate holder and loss payee with respect to personal
property, additional insured with respect to general liability and umbrella
liability coverage and certificate holder with respect to workers'
compensation insurance), (ii) shall state that such insurance policies shall
not be cancelled or materially changed without at least 30 days' prior
written notice thereof by the respective insurer to the Collateral Agent and
(iii) shall be deposited with the Collateral Agent.
(c) If Parent or any of its Subsidiaries shall fail to maintain all
insurance in accordance with this Section 8.03, or if Parent or any of its
Subsidiaries shall fail to so name the Collateral Agent as an additional
insured, mortgagee or loss payee, as the case may be, or so deposit all
certificates with respect thereto, the Agent and/or the Collateral Agent shall
have the right (but shall be under no obligation) to procure such insurance, and
the Credit Parties agree to jointly and severally reimburse the Agent or the
Collateral Agent, as the case may be, for all costs and expenses of procuring
such insurance.
8.04 PAYMENT OF TAXES. Each of Parent, Holdings, the US Borrower
and the French Borrower will pay and discharge, and will cause each of its
Subsidiaries to pay and discharge, all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits, or upon any
properties belonging to it, prior to the date on which penalties attach
thereto, and all lawful claims for sums that have become due and payable
which, if unpaid, might become a Lien not other wise permitted under Section
9.03(a); PROVIDED, that neither Parent nor any of its Subsidiaries shall be
required to pay any such tax, assessment, charge, levy or claim which is
being contested in good faith and by proper proceedings if it has maintained
adequate reserves with respect thereto in accordance with GAAP.
8.05 CORPORATE FRANCHISES. Each of Parent, Holdings, the US
Borrower and the French Borrower will do, and will cause each of its
Subsidiaries to do, or cause to be done, all things necessary to preserve and
keep in full force and effect its existence and its material rights,
franchises, authority to do business, licenses, certifications,
accreditations and patents; PROVIDED, HOWEVER, that any transaction permitted
by Section 9.02 will not constitute a breach of this Section 8.05.
8.06 COMPLIANCE WITH STATUTES; ETC. Each of Parent, Holdings, the
US Borrower and the French Borrower will, and will cause each of its
Subsidiaries to, comply with all
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applicable statutes, regulations and orders of, and all applicable
restrictions imposed by, all governmental bodies, domestic or foreign, in
respect of the conduct of its business and the ownership of its property
except for such noncompliance as would not have a Material Adverse Effect or
a material adverse effect on the ability of any Credit Party to perform its
obligations under any Credit Document to which it is a party.
8.07 COMPLIANCE WITH ENVIRONMENTAL LAWS. (a)(i) Each of Parent,
Holdings, the US Borrower and the French Borrower will comply, and will cause
each of its Subsidiaries to comply, in all material respects with all
Environmental Laws applicable to the ownership or use of its Real Property
now or hereafter owned or operated by Parent or any of its Subsidiaries, will
promptly pay or cause to be paid all costs and expenses incurred in
connection with such compliance, and will keep or cause to be kept all such
Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws and (ii) neither Parent nor any of its Subsidiaries will
generate, use, treat, store, Release or dispose of, or permit the generation,
use, treatment, storage, release or disposal of, Hazardous Materials on any
Real Property owned or operated by Parent or any of its Subsidiaries, or
transport or permit the transportation of Hazardous Materials to or from any
such Real Property, unless the failure to comply with the requirements
specified in clause (i) or (ii) above, either individually or in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect. If Parent or any of its Subsidiaries, or any tenant or occupant of
any Real Property owned or operated by Parent or any of its Subsidiaries,
cause or permit any intentional or unintentional act or omission resulting in
the presence or Release of any Hazardous Material (except in compliance with
applicable Environmental Laws), each of Parent, Holdings, the US Borrower and
the French Borrower agrees to undertake, and/or to cause any of its
Subsidiaries, tenants or occupants to undertake, at their sole expense, any
clean up, removal, remedial or other action required pursuant to
Environmental Laws to remove and clean up any Hazardous Materials from any
Real Property except where the failure to do so would not reasonably be
expected to have a Material Adverse Effect; PROVIDED that neither Parent nor
any of its Subsidiaries shall be required to comply with any such order or
directive which is being contested in good faith and by proper proceedings so
long as it has maintained adequate reserves with respect to such compliance
to the extent required in accordance with GAAP.
(b) At the written request of the Agent or the Required Banks,
which request shall specify in reasonable detail the basis therefor, at any
time and from time to time, Parent or the US Borrower will provide, at its
sole cost and expense, an environmental site assessment report concerning any
Real Property now or hereafter owned or operated by Parent or any of its
Subsidiaries, prepared by an environmental consulting firm approved by the
Agent, which approval shall not be unreasonably withheld, addressing the
matters in clause (i), (ii) or (iii) below which gives rise to such request
(or, in the case of a request pursuant to following clause (i), addressing
such matter as may be requested by the Agent or the Required Banks) and
estimating the range of the potential costs of any removal, remedial or other
corrective action in connection with any such matter, provided that in no
event shall such request be made unless (i) an Event of Default has occurred
and is continuing, (ii) the Banks receive notice under Section 8.01(i) for
any event for which notice is required to be delivered for any such Real
Property or (iii) the Agent or the Required Banks reasonably believe that
there was a breach of any representation, warranty or covenant contained in
Section 7.18 or 8.07(a). If Parent and the US Borrower have failed to
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provide the same within 60 days after such request was made, the Agent may
order the same, and Parent shall grant and hereby grants, to the Agent and
the Banks and their agents access to such Real Property and specifically
grants, the Agent and the Banks and their agents an irrevocable non-exclusive
license, subject to the rights of tenants, to undertake such an assessment,
all at the US Borrower's expense.
8.08 ERISA. As soon as possible and, in any event, within fifteen
days after Parent, any Subsidiary of Parent or any ERISA Affiliate knows or
has reason to know of the occurrence of any of the following, Parent will
deliver, or cause to be delivered, to each of the Banks a certificate of the
chief financial officer of Parent setting forth the full details as to such
occurrence and the action, if any, that Parent, such Subsidiary or such ERISA
Affiliate is required or proposes to take, together with any notices required
or proposed to be given to or filed with or by Parent, the Subsidiary, the
ERISA Affiliate, the PBGC, a Plan participant or the Plan administrator with
respect thereto: that a Reportable Event has occurred; that an accumulated
funding deficiency, within the meaning of Section 412 of the Code or Section
302 of ERISA, has been incurred or an application may be or has been made for
a waiver or modification of the minimum funding standard (including any
required installment payments) or an extension of any amortization period
under Section 412 of the Code or Section 303 or 304 of ERISA with respect to
a Plan; that any contribution required to be made with respect to a Plan or
Foreign Pension Plan has not been timely made; that a Plan has been or may be
terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA; that a Plan has a material Unfunded Current Liability; that
proceedings may be or have been instituted to terminate or appoint a trustee
to administer a Plan which is subject to Title IV of ERISA; that a proceeding
has been instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan; that Parent, any Subsidiary of Parent or any ERISA
Affiliate will or may incur any material liability (including any indirect,
contingent, or secondary liability) to or on account of the termination of or
withdrawal from a Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or
4212 of ERISA or with respect to a Plan under Section 401(a)(29), 4971, 4975
or 4980 of the Code or Section 409 or 502(i) or 502(l) of ERISA or with
respect to a group health plan (as defined in Section 607(1) of ERISA or
Section 4980B(g)(2) of the Code) under Section 4980B of the Code; or that
Parent or any Subsidiary of Parent may incur any material liability pursuant
to any employee welfare benefit plan (as defined in Section 3(1) of ERISA)
that provides benefits to retired employees or other former employees (other
than as required by Section 601 of ERISA) or any Plan or any Foreign Pension
Plan. Parent will deliver to each of the Banks a complete copy of the annual
report (on Internal Revenue Service Form 5500-series) of each Plan
(including, to the extent required, the related financial and actuarial
statements and opinions and other supporting statements, certifications,
schedules and information) required to be filed with the Internal Revenue
Service. In addition to any certificates or notices delivered to the Banks
pursuant to the first sentence hereof, copies of annual reports and any
material notices received by Parent, any Subsidiary of Parent or any ERISA
Affiliate with respect to any Plan or Foreign Pension Plan shall be delivered
to the Banks no later than fifteen days after the date such report has been
filed with the Internal Revenue Service or such notice has been received by
Parent, such Subsidiary or such ERISA Affiliate, as applicable.
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8.09 GOOD REPAIR. Each of Parent, Holdings, the US Borrower and
the French Borrower will, and will cause each of its Subsidiaries to, ensure
that its material properties and equipment used in its business are kept in
good repair, working order and condition, and that from time to time there
are made in such properties and equipment all needful and proper repairs,
renewals, replacements, extensions, additions, betterments and improvements
thereto, to the extent and in the manner useful or customary for companies in
similar businesses.
8.10 END OF FISCAL YEARS; FISCAL QUARTERS. Parent will, for
financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries', fiscal years to end on September 30 of each year and (ii) each
of its, and each of its Subsidiaries', fiscal quarters to end on December 31,
March 31, June 30 and September 30 of each year.
8.11 ADDITIONAL SECURITY; FURTHER ASSURANCES. (a) Parent will,
and will cause each of its Domestic Subsidiaries and the French Borrower (and
to the extent Section 8.12 is operative, each of its other Foreign
Subsidiaries) to, grant to the Collateral Agent security interests and
mortgages in such assets and real property (it being understood that Real
Property having a fair market value of less than $500,000 shall not be
subject to this Section 8.11(a)) of Parent and its Subsidiaries as are not
covered by the original Security Documents, and as may be requested from time
to time by the Agent or the Required Banks (collectively, the "Additional
Security Documents"). All such security interests and mortgages shall be
granted (i) in the case of Real Property, pursuant to the documentation and
applicable terms set forth in Section 5.13 and (ii) in the case of other
assets, pursuant to documentation reasonably satisfactory in form and
substance to the Agent; in each case constituting valid and enforceable
perfected security interests and/or mortgages superior to and prior to the
rights of all third Persons and subject to no other Liens except for
Permitted Liens. The Additional Security Documents or instruments related
thereto shall have been duly recorded or filed in such manner and in such
places as are required by law to establish, perfect, preserve and protect the
Liens in favor of the Collateral Agent required to be granted pursuant to the
Additional Security Documents and all taxes, fees and other charges payable
in connection therewith shall have been paid in full.
(b) Parent will, and will cause each of its Subsidiaries to, at
the expense of the US Borrower, make, execute, endorse, acknowledge, file
and/or deliver to the Collateral Agent from time to time such vouchers,
invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real
property surveys, reports and other assurances or instruments and take such
further steps relating to the Collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require. Furthermore,
Parent shall cause to be delivered to the Collateral Agent such opinions of
counsel, title insurance and other related documents as may be reasonably
requested by the Agent to assure themselves that this Section 8.11 has been
complied with.
(c) If the Agent or the Required Banks determine that they are
required by law or regulation to have appraisals prepared in respect of the
Real Property of Parent and its Subsidiaries constituting Collateral, Parent
shall provide to the Agent appraisals which satisfy the applicable
requirements of the Real Estate Appraisal Reform Amendments of the Financial
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Institution Reform, Recovery and Enforcement Act of 1989 and which shall be
in form and substance reasonably satisfactory to the Agent.
(d) Each of the Credit Parties agrees that each action required
above by this Section 8.11 shall be completed as soon as possible, but in no
event later than 90 days after such action is either requested to be taken by
the Agent or the Required Banks or required to be taken by Parent and its
Subsidiaries pursuant to the terms of this Section 8.11.
8.12 FOREIGN SUBSIDIARIES SECURITY. If following a change in the
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for
Parent and/or the US Borrower reasonably acceptable to the Agent does not
within 30 days after a request from the Agent or the Required Banks deliver
evidence, in form and substance mutually satisfactory to the Agent and Parent
or the US Borrower, with respect to any Foreign Subsidiary of Parent which
has not already had all of its stock pledged pursuant to the Pledge Agreement
that (i) a pledge (x) of 66-2/3% or more of the total combined voting power
of all classes of capital stock of such Foreign Subsidiary entitled to vote,
and (y) of any promissory note issued by such Foreign Subsidiary to Parent or
any of its Domestic Subsidiaries, (ii) the entering into by such Foreign
Subsidiary of a security agreement in substantially the form of the Security
Agreement and (iii) the entering into by such Foreign Subsidiary of a
guaranty in substantially the form of the Subsidiaries Guaranty, in any such
case could reasonably be expected to cause (I) any undistributed earnings of
such Foreign Subsidiary as determined for Federal income tax purposes to be
treated as a deemed dividend to such Foreign Subsidiary's United States
parent for Federal income tax purposes or (II) other Federal income tax
consequences to the Credit Parties having a Material Adverse Effect, then in
the case of a failure to deliver the evidence described in clause (i) above,
that portion of such Foreign Subsidiary's outstanding capital stock or any
promissory notes so issued by such Foreign Subsidiary, in each case not
theretofore pledged pursuant to the Pledge Agreement shall be pledged to the
Collateral Agent for the benefit of the Secured Creditors pursuant to the
Pledge Agreement (or another pledge agreement in substantially similar form,
if needed), and in the case of a failure to deliver the evidence described in
clause (ii) above, such Foreign Subsidiary shall execute and deliver the
Security Agreement (or another security agreement in substantially similar
form, if needed), granting the Secured Creditors a security interest in all
of such Foreign Subsidiary's assets and securing the Obligations of the US
Borrower under the Credit Documents and under any Interest Rate Protection
Agreement or Other Hedging Agreement and, in the event the Subsidiaries
Guaranty shall have been executed by such Foreign Subsidiary, the obligations
of such Foreign Subsidiary thereunder, and in the case of a failure to
deliver the evidence described in clause (iii) above, such Foreign Subsidiary
shall execute and deliver the Subsidiaries Guaranty (or another guaranty in
substantially similar form, if needed), guaranteeing the Obligations of the
US Borrower under the Credit Documents and under any Interest Rate Protection
Agreement or Other Hedging Agreement, in each case to the extent that the
entering into such Security Agreement or Subsidiaries Guaranty is permitted
by the laws of the respective foreign jurisdiction and with all documents
delivered pursuant to this Section 8.12 to be in form and substance
reasonably satisfactory to the Agent.
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8.13 OWNERSHIP OF SUBSIDIARIES. Except to the extent otherwise
expressly consented in writing by the Required Banks, the Credit Parties
shall directly or indirectly own 100% of the capital stock or partnership
interests of each of their Subsidiaries.
8.14 PERMITTED ACQUISITIONS. (a) Subject to the provisions of
this Section 8.14 and the requirements contained in the definition of
Permitted Acquisition, the US Borrower may from time to time effect Permitted
Acquisitions, so long as (in each case except to the extent the Required
Banks otherwise specifically agree in writing in the case of a specific
Permitted Acquisition): (i) no Default or Event of Default shall be in
existence at the time of the consummation of the proposed Permitted
Acquisition or immediately after giving effect thereto; (ii) the US Borrower
shall have given the Agent and the Banks at least 10 Business Days' prior
written notice of any Permitted Acquisition; (iii) calculations are made by
the US Borrower of compliance with the covenants contained in Sections 9.09,
9.10 and 9.11 for the Test Period (taken as one accounting period) most
recently ended prior to the date of such Permitted Acquisition (each, a
"Calculation Period"), on a PRO FORMA Basis as if the respective Permitted
Acquisition (as well as all other Permitted Acquisitions theretofore
consummated after the first day of such Calculation Period) had occurred on
the first day of such Calculation Period, and such recalculations shall show
that such financial covenants would have been complied with if the Permitted
Acquisition had occurred on the first day of such Calculation Period; (iv)
based on good faith projections prepared by the US Borrower for the period
from the date of the consummation of the Permitted Acquisition to the date
which is one year thereafter, the level of financial performance measured by
the covenants set forth in Sections 9.09, 9.10 and 9.11 shall be better than
or equal to such level as would be required to provide that no Default or
Event of Default would exist under the financial covenants contained in
Sections 9.09, 9.10 and 9.11 of this Agreement as compliance with such
covenants would be required through the date which is one year from the date
of the consummation of the respective Permitted Acquisition; (v) the US
Borrower shall certify, and the Agent shall have been satisfied in its
reasonable discretion, that the proposed Permitted Acquisition could not
reasonably be expected to result in materially increased tax, ERISA,
environmental or other contingent liabilities with respect to Parent or any
of its Subsidiaries; (vi) all representations and warranties contained herein
and in the other Credit Documents shall be true and correct in all material
respects with the same effect as though such representations and warranties
had been made on and as of the date of such Permitted Acquisition (both
before and after giving effect thereto), unless stated to relate to a
specific earlier date, in which case such representations and warranties
shall be true and correct in all material respects as of such earlier date;
(vii) the US Borrower provides to the Agent and the Banks as soon as
available but not later than 5 Business Days after the execution thereof, a
copy of anyexecuted purchase agreement or similar agreement with respect to
such Permitted Acquisition; (viii) the aggregate consideration (including,
without limitation, (I) the aggregate principal amount of any Indebtedness
assumed or issued in connection therewith, (II) the greater of the aggregate
liquidation preference and the fair market value (as determined in good faith
by the Board of Directors of Parent) of any stock issued (other than common
stock of Parent, provided that no Default or Event of Default under Section
10.10 exists or would result therefrom) as part of the purchase price
therefor and (III) the aggregate amount paid and to be paid pursuant to any
earn-out, non-compete or deferred compensation or purchase price
arrangements, but excluding common stock of the Parent referenced in the
immediately preceding parenthetical, for any one
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such Permitted Acquisition, shall not exceed $10,000,000, and for all such
Permitted Acquisitions taken in the aggregate, shall not exceed $20,000,000;
(ix) after giving effect to each Permitted Acquisition (and all payments to
be made in connection therewith), the Total Unutilized Revolving Loan
Commitment shall equal or exceed $15,000,000; and (x) the US Borrower shall
have delivered to the Agent an officer's certificate executed by an
Authorized Officer of the US Borrower, certifying to the best of his
knowledge, compliance with the requirements of preceding clauses (i) through
(vi), inclusive, (viii) and (ix) and containing the calculations required by
the preceding clauses (iii), (iv), (viii) and (ix).
(b) At the time of each Permitted Acquisition involving the
creation or acquisition of a Subsidiary, or the acquisition of capital stock
or other equity interest of any Person, all capital stock or other equity
interests thereof created or acquired in connection with such Permitted
Acquisition shall be pledged for the benefit of the Secured Creditors
pursuant to the Pledge Agreement.
(c) Parent shall cause each Subsidiary which is formed to effect, or
is acquired pursuant to, a Permitted Acquisition to comply with, and to execute
and deliver, all of the documentation required by, Sections 8.11 and 9.15, to
the satisfaction of the Agent.
(d) The consummation of each Permitted Acquisition shall be
deemed to be a representation and warranty by each of Parent, Holdings, the
US Borrower and the French Borrower that the certifications by the US
Borrower (or by one or more of its Authorized Officers) pursuant to Section
8.14(a) are true and correct and that all conditions thereto have been
satisfied and that same is permitted in accordance with the terms of this
Agreement, which representation and warranty shall be deemed to be a
representation and warranty for all purposes hereunder, including, without
limitation, Sections 6 and 10.
8.15 MAINTENANCE OF CORPORATE SEPARATENESS. Each of Parent,
Holdings, the US Borrower and the French Borrower will, and will cause each
of its Subsidiaries to, satisfy customary corporate formalities, including
the holding of regular board of directors' and shareholders' meetings or
action by directors or shareholders without a meeting and the maintenance of
corporate offices and records. Neither Parent nor any of its Subsidiaries
shall take any action, or conduct its affairs in a manner, which is likely to
result in the corporate existence of Parent or any of its Subsidiaries being
ignored, or in the assets and liabilities of Parent or any of its
Subsidiaries being substantively consolidated with those of any other such
Person in a bankruptcy, reorganization or other insolvency proceeding.
8.16 PERFORMANCE OF OBLIGATIONS. Each of Parent, Holdings, the US
Borrower and the French Borrower will, and will cause each of its
Subsidiaries to, perform all of its obligations under the terms of each
mortgage, deed of trust, indenture, loan agreement or credit agreement and
each other material agreement, contract or instrument by which it is bound,
except such non-performances as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
8.17 USE OF PROCEEDS. All proceeds of the Loans shall be used as
provided in Section 7.05.
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8.18 INTEREST RATE PROTECTION. No later than 90 days following
the Restatement Effective Date, the US Borrower shall enter into Interest
Rate Protection Agreements, satisfactory to the US Borrower and the Agent.
8.19 CONTRIBUTIONS; PAYMENTS; ETC. (a) Parent and Holdings will
contribute, directly in the case of Holdings, or by way of down-stream
contributions in the case of Parent, as an equity contribution to the capital
of the US Borrower upon its receipt thereof, any cash proceeds received by
Parent or Holdings from any asset sale, any incurrence of Indebtedness, any
Recovery Event, any sale or issuance of its preferred or common equity or any
cash capital contributions received by Parent.
(b) The US Borrower will use the proceeds of all equity
contributions received by it from Parent and/or Holdings as provided in
clause (a) above toward the repayment of Term Loans (or the reduction of the
Total Revolving Loan Commitment) to the extent required by Section 4.02.
8.20 CORPORATE NAMES. On the Restatement Effective Date, and
after giving effect to the Acquisition, Parent shall be named "TriStar
Aerospace Co.", Holdings shall be named "Aerospace Acquisition Corp.", The US
Borrower shall be named "TriStar Aerospace, Inc.", the French Borrower shall
be named "TriStar Aerospace SARL" and the Acquired Business shall be named
"Standard Parts and Equipment Corporation".
SECTION 9. NEGATIVE COVENANTS. Each of Parent, Holdings, the US
Borrower and the French Borrower hereby covenant and agree that as of the
Restatement Effective Date and thereafter for so long as this Agreement is in
effect and until the Total Commitment has terminated, no Letters of Credit or
Notes are outstanding and the Loans, together with interest, Fees and all
other Obligations (other than any indemnities described in Section 13.13
which are not then due and payable) incurred hereunder, are paid in full:
9.01 CHANGES IN BUSINESS. (a) Parent and its Subsidiaries will
not engage in any business other than the businesses in which they are
engaged as of the Restatement Effective Date (after giving effect to the
Transaction), activities directly related thereto, and similar or related
businesses.
(b) Notwithstanding the foregoing, neither Parent nor Holdings
will engage in any business other than its ownership of the capital stock of
Holdings or the US Borrower, respectively, and those obligations of officers
and employees of Parent permitted by Section 9.05(h) and having those
liabilities which it is responsible for (or permitted to incur) under this
Agreement and the other Documents to which it is a party; PROVIDED that each
of Parent and Holdings may engage in those activities that are incidental to
(1) the maintenance of its corporate existence in compliance with applicable
law, (2) legal, tax and accounting matters in connection with any of the
foregoing activities and (3) the entering into, and performance of its
obligations under, this Agreement and the other Documents to which it is a
party.
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9.02 CONSOLIDATION; MERGER; SALE OR PURCHASE OF ASSETS; ETC.
Parent will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of all or any part
of its property or assets (other than inventory in the ordinary course of
business), or enter into any partnerships, joint ventures or sale-leaseback
transactions, or purchase or otherwise acquire (in one or a series of related
transactions) any part of the property or assets (other than purchases or
other acquisitions of inventory, materials and equipment in the ordinary
course of business) of any Person or agree to do any of the foregoing at any
future time, except that the following shall be permitted:
(a) the US Borrower and its Subsidiaries may, as lessee, enter into
operating leases in the ordinary course of business with respect to real or
personal property to the extent permitted by Section 9.04;
(b) Capital Expenditures by the US Borrower and its Subsidiaries to
the extent not in violation of Section 9.08;
(c) the advances, investments and loans permitted pursuant to
Section 9.05;
(d) the US Borrower and any of its Subsidiaries may sell or
otherwise dispose of assets (excluding capital stock of Subsidiaries)
which, in the reasonable opinion of such Person, are obsolete, uneconomic
or no longer useful in the conduct of such Person's business, PROVIDED
that (w) each such sale or disposition shall be for an amount at least
equal to the fair market value thereof (as determined in good faith by
senior management of the US Borrower), (x) each such sale results in
consideration at least 80% of which (taking the amount of cash, the
principal amount of any promissory notes and the fair market value, as
determined by the US Borrower in good faith, of any other consideration)
shall be in the form of cash and (y) the aggregate Net Sale Proceeds of
all assets sold or otherwise disposed of pursuant to this clause (d) shall
be applied, to the extent required or permitted under Section 4.02(c), to
repay Term Loans (or reduce the Total Revolving Loan Commitment) or make
reinvestments in assets;
(e) any Subsidiary of the US Borrower may transfer assets (other
than accounts receivable and inventory) to the US Borrower or to any other
Wholly-Owned Subsidiary of the US Borrower which is a Subsidiary Guarantor,
so long as the security interests granted to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the Security Documents in the
assets so transferred shall remain in full force and effect and perfected
(to at least the same extent as in effect immediately prior to such
transfer);
(f) any Subsidiary of the US Borrower may merge with and into, or be
dissolved or liquidated into, the US Borrower, so long as (i) the US
Borrower is the surviving corporation of any such merger, dissolution or
liquidation and (ii) the security interests granted to the Collateral Agent
for the benefit of the Secured Creditors pursuant to the Security Documents
in the assets of such Subsidiary shall remain in full force and effect and
perfected (to at least the same extent as in effect immediately prior to
such merger, dissolution or liquidation);
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(g) any Subsidiary of the US Borrower may merge with and into, or be
dissolved or liquidated into, any Wholly-Owned Domestic Subsidiary of the
US Borrower, so long as (i) such Wholly-Owned Domestic Subsidiary is the
surviving corporation of any such merger, dissolution or liquidation and
(ii) the security interests granted to the Collateral Agent for the benefit
of the Secured Creditors pursuant to the Security Documents in the assets
of such Subsidiary shall remain in full force and effect and perfected (to
at least the same extent as in effect immediately prior to such merger,
dissolution or liquidation);
(h) the US Borrower and its Subsidiaries may sell or exchange
specific items of equipment, so long as the purpose of each such sale or
exchange is to acquire (and results within 90 days of such sale or exchange
in the acquisition of) replacement items of equipment which are the
functional equivalent of the item of equipment so sold or exchanged;
(i) the US Borrower shall be permitted to make Permitted
Acquisitions, so long as such Permitted Acquisitions are effected in
accordance with the requirements of Section 8.14;
(j) the Acquisition shall be permitted in accordance with the
requirements of Section 5.08 and the component definitions contained
therein; and
(k) so long as no Default or Event of Default exists or would result
therefrom (including, without limitation, pursuant to Section 10.10),
Parent may purchase, in the open market or otherwise, up to $20,000,000 in
the aggregate of its common stock.
To the extent the Required Banks waive the provisions of this Section 9.02
with respect to the sale or other disposition of any Collateral, or any
Collateral is sold or otherwise disposed of as permitted by this Section
9.02, such Collateral (unless transferred to Parent or a Subsidiary thereof)
shall be sold or otherwise disposed of free and clear of the Liens created by
the Security Documents and the Agent shall take such actions (including,
without limitation, directing the Collateral Agent to take such actions) as
are appropriate in connection therewith.
9.03 LIENS. Parent will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or
with respect to any property or assets of any kind (real or personal,
tangible or intangible) of Parent or any of its Subsidiaries, whether now
owned or hereafter acquired, or sell any such property or assets subject to
an understanding or agreement, contingent or otherwise, to repurchase such
property or assets (including sales of accounts receivable or notes with
recourse to Parent or any of its Subsidiaries) or assign any right to receive
income, except for the following (collectively, the "Permitted Liens"):
(a) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been established
in accordance with GAAP;
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(b) Liens in respect of property or assets of the US Borrower or any
of its Subsidiaries imposed by law which were incurred in the ordinary
course of business and which have not arisen to secure Indebtedness for
borrowed money, such as carriers', warehousemen's and mechanics' Liens,
statutory landlord's Liens, and other similar Liens arising in the ordinary
course of business, and which either (x) do not in the aggregate materially
detract from the value of such property or assets or materially impair the
use thereof in the operation of the business of the Borrower or any of its
Subsidiaries or (y) are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the forfeiture
or sale of the property or asset subject to such Lien;
(c) Liens created by or pursuant to this Agreement and the Security
Documents;
(d) Liens in existence on the Restatement Effective Date which are
listed, and the property subject thereto described, in Annex IX, without
giving effect to any extensions or renewals thereof;
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 10.09,
PROVIDED that no cash or other property shall be pledged by Parent or any
of its Subsidiaries as security therefor;
(f) Liens (other than any Lien imposed by ERISA) (x) incurred or
deposits made in the ordinary course of business of the US Borrower and its
Subsidiaries in connection with workers' compensation, unemployment
insurance and other types of social security, (y) to secure the performance
by the US Borrower and its Subsidiaries of tenders, statutory obligations
(other than excise taxes), surety, stay, customs and appeal bonds,
statutory bonds, bids, leases, government contracts, trade contracts,
performance and return of money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money) or (z) to
secure the performance by the US Borrower and its Subsidiaries of leases of
Real Property, to the extent incurred or made in the ordinary course of
business consistent with past practices, PROVIDED that the aggregate amount
of deposits at any time pursuant to sub-clause (y) and sub-clause (z) shall
not exceed $250,000 in the aggregate;
(g) licenses, leases or subleases granted to third Persons in the
ordinary course of business not interfering in any material respect with
the business of the US Borrower or any of its Subsidiaries;
(h) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances, in each
case not securing Indebtedness and not interfering in any material respect
with the ordinary conduct of the business of the US Borrower or any of its
Subsidiaries;
(i) Liens arising from precautionary UCC financing statements
regarding operating leases permitted by this Agreement;
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(j) Liens created pursuant to Capital Leases permitted pursuant to
Section 9.04(d), PROVIDED that (x) such Liens only serve to secure the
payment of Indebtedness arising under such Capitalized Lease Obligation and
(y) the Lien encumbering the asset giving rise to the Capitalized Lease
Obligation does not encumber any other asset of the US Borrower or any of
its Subsidiaries;
(k) Permitted Encumbrances;
(l) Liens arising pursuant to purchase money mortgages or security
interests securing Indebtedness representing the purchase price (or
financing of the purchase price within 30 days after the respective
purchase) of assets acquired after the Restatement Effective Date, PROVIDED
that (i) any such Liens attach only to the assets so purchased, (ii) the
Indebtedness secured by any such Lien does not exceed 100%, nor is less
than 80%, of the lesser of the fair market value or the purchase price of
the property being purchased at the time of the incurrence of such
Indebtedness and (iii) the Indebtedness secured thereby is permitted to be
incurred pursuant to Section 9.04(d);
(m) Liens on property or assets acquired pursuant to a Permitted
Acquisition, or on property or assets of a Subsidiary of the US Borrower in
existence at the time such Subsidiary is acquired pursuant to a Permitted
Acquisition, PROVIDED that (i) any Indebtedness that is secured by such
Liens is permitted to exist under Section 9.04(f), and (ii) such Liens are
not incurred in connection with, or in contemplation or anticipation of,
such Permitted Acquisition and do not attach to any other asset of the US
Borrower or any of its Subsidiaries; and
(n) restrictions imposed in the ordinary course of business and
consistent with past practices on the sale or distribution of designated
inventory pursuant to agreements with customers under which such inventory
is consigned by the customer or such inventory is designated for sale to
one or more customers.
9.04 INDEBTEDNESS. Parent will not, and will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(b) Existing Indebtedness outstanding on the Restatement Effective
Date and listed on Annex IV, without giving effect to any subsequent
extension, renewal or refinancing thereof;
(c) Indebtedness under Interest Rate Protection Agreements entered
into to protect the US Borrower against fluctuations in interest rates in
respect of the Obligations otherwise permitted under this Agreement;
(d) Capitalized Lease Obligations and Indebtedness of the US
Borrower and its Subsidiaries representing purchase money Indebtedness
secured by Liens permitted
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pursuant to Section 9.03(l), PROVIDED, that (i) all such Capitalized Lease
Obligations are permitted under Section 9.08, and (ii) the sum of (x) the
aggregate Capitalized Lease Obligations outstanding at any time plus (y) the
aggregate principal amount of such purchase money Indebtedness outstanding at
such time shall not exceed $1,000,000;
(e) Indebtedness constituting Intercompany Loans to the extent
permitted by Section 9.05(f);
(f) Indebtedness of a Subsidiary acquired pursuant to a Permitted
Acquisition (or Indebtedness assumed at the time of a Permitted Acquisition
of an asset securing such Indebtedness) (the "Permitted Acquired Debt");
PROVIDED that such Indebtedness was not incurred in connection with, or in
anticipation or contemplation of, such Permitted Acquisition;
(g) Indebtedness outstanding under the Seller Note not to exceed
$7,200,000 in aggregate principal amount, less any repayments of principal
thereof; and
(h) additional Indebtedness of the US Borrower and its Subsidiaries
not otherwise permitted hereunder not exceeding $250,000 in aggregate
principal amount at any time outstanding.
9.05 ADVANCES; INVESTMENTS; LOANS. Parent will not, and will not
permit any of its Subsidiaries to, lend money or extend credit or make
advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any Person, or purchase or own a futures contract or otherwise become liable
for the purchase or sale of currency or other commodities at a future date in
the nature of a futures contract, or hold any cash or Cash Equivalents,
except:
(a) Parent and its Subsidiaries may hold or invest in cash and Cash
Equivalents, PROVIDED that during any time that Revolving Loans or
Swingline Loans are outstanding the aggregate amount of cash and Cash
Equivalents held by Parent and its Subsidiaries shall not exceed $1,500,000
for any period of three consecutive Business Days;
(b) the US Borrower and its Subsidiaries may acquire and hold
receivables owing to it, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade
terms (including the dating of receivables) of the US Borrower or such
Subsidiary;
(c) the US Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement
of delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(d) Interest Rate Protection Agreements entered into in compliance
with Section 9.04(c);
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(e) advances, loans and investments in existence on the Restatement
Effective Date and listed on Annex VI, without giving effect to any
additions thereto or replacements thereof;
(f)(i) the US Borrower may make intercompany loans and advances to
any Subsidiary Guarantor and (ii) any Subsidiary Guarantor may make
intercompany loans and advances to the US Borrower or any other Subsidiary
Guarantor (loans pursuant to clauses (i) and (ii) of this clause (f) being
collectively referred to as "Intercompany Loans"), PROVIDED, that (x) each
Intercompany Loan shall be evidenced by an Intercompany Note and (y) each
Intercompany Note shall be pledged to the Collateral Agent pursuant to the
Pledge Agreement;
(g) loans and advances by the US Borrower and its Subsidiaries to
employees of Parent and its Subsidiaries for moving and travel expenses and
other similar expenses, in each case incurred in the ordinary course of
business, in an aggregate outstanding principal amount not to exceed
$500,000 at any time (determined without regard to any write-downs or
write-offs of such loans and advances), shall be permitted; PROVIDED that
up to $500,000 at any time of such outstanding principal amount may
constitute loans to employees for purposes of exercising rights to purchase
common stock of Parent and/or to make payments with respect to any tax
liabilities.
(h) The US Borrower may acquire and hold obligations of one or more
officers or other employees of Parent or its Subsidiaries in connection
with such officers' or employees' acquisition of shares of Parent Common
Stock, so long as no cash is actually advanced by Parent or any of its
Subsidiaries to such officers or employees in connection with the
acquisition of any such obligations;
(i) Parent and Holdings may make equity contributions, directly in
the case of Holdings, or by way of downstream contributions in the case of
Parent, to the capital of the US Borrower;
(j) the US Borrower may make Permitted Acquisitions in accordance
with the relevant requirements of Section 8.14 and the component
definitions as used therein;
(k) Parent and its Subsidiaries may own the capital stock of their
respective Subsidiaries created or acquired in accordance with the terms
of this Agreement;
(l) the US Borrower may make investments in Wholly Owned Foreign
Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000
in the aggregate, net of any repayments to the Borrower; and
(m) in addition to investments permitted elsewhere in this Section
9.05, the Borrower and its Subsidiaries may make additional loans, advances
and investments to or in a Person not an Affiliate in an aggregate amount
for all loans, advances and investments made pursuant to this clause (m)
(determined without regard to any write-downs or write-offs thereof), net
of cash repayments of principal in the case of loans and cash equity
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returns (whether as a dividend or redemption) in the case of equity
investments, not to exceed $250,000.
9.06 DIVIDENDS; ETC. Parent will not, and will not permit any of
its Subsidiaries to, declare or pay any dividends (other than dividends
payable solely in common stock of Parent or any such Subsidiary, as the case
may be) or return any capital to, its stockholders or authorize or make any
other distribution, payment or delivery of property or cash to its
stockholders as such, or redeem, retire, purchase or otherwise acquire,
directly or indirectly, for a consideration, any shares of any class of its
capital stock, now or hereafter outstanding (or any warrants for or options
or stock appreciation rights in respect of any of such shares), or set aside
any funds for any of the foregoing purposes, and Parent will not permit any
of its Subsidiaries to purchase or otherwise acquire for consideration any
shares of any class of the capital stock of Parent or any other Subsidiary,
as the case may be, now or hereafter outstanding (or any options or warrants
or stock appreciation rights issued by such Person with respect to its
capital stock) (all of the foregoing "Dividends"), except that:
(a) any Subsidiary of the US Borrower may pay Dividends to the US
Borrower or any Wholly-Owned Subsidiary of the US Borrower;
(b) so long as no Default or Event of Default then exists or would
result therefrom, the US Borrower may pay cash Dividends to Holdings,
which in turn shall pay such amounts to Parent, so long as the cash
proceeds thereof are promptly used by Parent for the purposes described
in clause (d) of this Section 9.06;
(c) cash Dividends may be paid to Holdings and/or Parent so long as
the proceeds thereof are promptly used by the ultimate recipient thereof
to pay operating expenses in the ordinary course of business (including,
without limitation, professional fees and expenses) and other similar
corporate overhead costs and expenses, PROVIDED, that the aggregate amount
of cash Dividends paid pursuant to this clause (c) (calculated without
duplication in the case of amounts not Dividended to Holdings or the
Parent) shall at no time during any fiscal year of the US Borrower exceed
$200,000;
(d) cash Dividends may be paid to Parent and Holdings in the
amounts and at the times of any payment by the ultimate recipient in
respect of its taxes (or taxes of the consolidated group of which it is
parent), PROVIDED, that (x) the amount of cash Dividends paid pursuant to
this clause (v) to enable Parent or Holdings to pay taxes at any time shall
not exceed the amount of such taxes owing by the ultimate recipient at such
time for the respective period and (y) any refunds received by Parent or
Holdings shall promptly be returned by such Person to the US Borrower; and
(e) so long as no Default or Event of Default exists or would result
therefrom, Parent may purchase shares of common stock of Parent to the
extent permitted by Section 9.02(k).
9.07 TRANSACTIONS WITH AFFILIATES. Parent will not, and will not
permit any of its Subsidiaries to, enter into any transaction or series of
transactions with any Affiliate other than on
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terms and conditions substantially as favorable to Parent or such Subsidiary
as would be reasonably expected to be obtainable by Parent or such Subsidiary
at the time in a comparable arm's-length transaction with a Person other than
an Affiliate; PROVIDED, that the following shall in any event be permitted:
(i) the Transaction; (ii) intercompany transactions among Parent and its
Subsidiaries to the extent expressly permitted by Sections 8.19, 9.02, 9.04,
9.05 and 9.06; (iii) the Employment Agreements (iv) the payment of Director's
fees in the ordinary course of business, (v) the Ratliff Employment
Agreements and (vi) the purchase by Parent of its common stock to the extent
permitted by Section 9.02(k). In no event shall any management, consulting
or similar fee be paid or payable by Parent or any of its Subsidiaries to any
Affiliate (other than the US Borrower) other than fees paid to committees of
the Board of Directors for services rendered on an arm's-length basis and
management fees payable to Foreign Subsidiaries of the US Borrower equal to a
maximum of 150% of such Foreign Subsidiary's operating expenses; PROVIDED
that the amount of such fees paid hereunder (less amounts dividended back to
the US Borrower) shall constitute investments for purposes of Section 9.05(l).
9.08 CAPITAL EXPENDITURES. (a)(i) Parent will not, and will not
permit any of its Subsidiaries to, make any Capital Expenditures, except that
during any fiscal year of the US Borrower beginning on or after October 1,
1998 (taken as one accounting period), the US Borrower and its Subsidiaries
may make Capital Expenditures so long as the aggregate amount of such Capital
Expenditures made during such fiscal year does not exceed (x) in the case of
the US Borrower's fiscal year beginning October 1, 1998, $6,000,000, (y) in
the case of any subsequent fiscal year of the U.S. Borrower ending on or
before September 30, 2004, $3,000,000 and (z) in the case of the US
Borrower's fiscal year beginning October 1, 2004, $1,500,000 and (ii) in
addition to Capital Expenditures made pursuant to clause (i) above, during
the period commencing on the Restatement Effective Date through and including
the Final Maturity Date, the US Borrower and its Subsidiaries may make
additional Capital Expenditures not to exceed, in the aggregate, $1,000,000.
(b) Notwithstanding the foregoing, the US Borrower and its
Subsidiaries may make additional Capital Expenditures (which Capital
Expenditures will not be included in any determination under Section 9.08(a))
with the Net Sale Proceeds of Asset Sales to the extent such proceeds are not
required to be applied to repay Term Loans (or reduce the Total Revolving Loan
Commitment) pursuant to the second proviso to Section 4.02(c) and such proceeds
are reinvested as required by Section 4.02(c).
(c) Notwithstanding the foregoing, the US Borrower and its
Subsidiaries may make additional Capital Expenditures (which Capital
Expenditures will not be included in any determination under Section 9.08(a))
with the insurance proceeds received by the US Borrower or any of its
Subsidiaries from any Recovery Event so long as such Capital Expenditures are to
replace or restore any properties or assets in respect of which such proceeds
were paid within one year following the date of the receipt of such insurance
proceeds to the extent such insurance proceeds are not required to be applied to
repay Term Loans (or reduce the Total Revolving Loan Commitment) pursuant to
Section 4.02(f).
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(d) Notwithstanding the foregoing, the US Borrower may make
additional Capital Expenditures (which Capital Expenditures will not be included
in any determination under Section 9.08(a)) constituting Permitted Acquisitions
effected in accordance with the requirements of Section 8.14.
9.09 MINIMUM CONSOLIDATED EBITDA. Parent will not permit
Consolidated EBITDA for any Test Period ended on the last day of a fiscal
quarter described below to be less than the respective amount set forth
opposite such period below:
<TABLE>
<CAPTION>
Fiscal
Quarter Ended
Closest to Amount
--------------- --------
<S> <C>
June 30, 1999 $32,000,000
September 30, 1999 $35,500,000
December 31, 1999 $37,000,000
March 31, 2000 $38,000,000
June 30, 2000 $39,000,000
September 30, 2000 $41,000,000
December 31, 2000 $42,000,000
March 31, 2001 $43,000,000
June 30, 2001 $43,500,000
September 30, 2001 $44,000,000
December 31, 2001 $44,500,000
March 31, 2002 $45,000,000
June 30, 2002 $45,500,000
September 30, 2002 $46,000,000
December 31, 2002 $46,500,000
March 31, 2003 $47,000,000
June 30, 2003 $47,500,000
September 30, 2003 $48,000,000
December 31, 2003 $48,500,000
March 31, 2004 $49,000,000
June 30, 2004 $49,500,000
September 30, 2004 $50,000,000
December 31, 2004 $50,500,000
March 31, 2005 $51,000,000
</TABLE>
9.10 CONSOLIDATED INTEREST COVERAGE RATIO. Parent will not permit
the Consolidated Interest Coverage Ratio for any Test Period ending on the last
day of a fiscal quarter described below to be less than the ratio set forth
opposite such period below:
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<TABLE>
<CAPTION>
Fiscal Period
Ended Closest to Ratio
------------------ -----
<S> <C>
June 30, 1999 3.60:1.00
September 30, 1999 3.70:1.00
December 31, 1999 3.80:1.00
March 31, 2000 3.90:1.00
June 30, 2000 4.00:1.00
September 30, 2000 4.00:1.00
December 31, 2000 4.00:1.00
March 31, 2001 4.00:1.00
June 30, 2001 4.00:1.00
September 30, 2001 4.00:1.00
December 31, 2001 4.00:1.00
March 31, 2002 4.00:1.00
June 30, 2002 4.00:1.00
September 30, 2002 4.00:1.00
December 31, 2002 4.00:1.00
March 31, 2003 4.00:1.00
June 30, 2003 4.00:1.00
September 30, 2003 4.00:1.00
December 31, 2003 4.00:1.00
March 31, 2004 4.00:1.00
June 30, 2004 4.00:1.00
September 30, 2004 4.00:1.00
December 31, 2004 4.00:1.00
March 31, 2005 4.00:1.00
</TABLE>
9.11 LEVERAGE RATIO. Parent will not permit the Leverage Ratio at
any date specified below to exceed the respective ratio set forth opposite
such date below:
<TABLE>
<CAPTION>
Date Ratio
-------- --------
<S> <C>
June 30, 1999 3.60:1.00
September 30, 1999 3.50:1.00
December 31, 1999 3.25:1.00
March 31, 2000 3.00:1.00
June 30, 2000 2.75:1.00
September 30, 2000 2.75:1.00
December 31, 2000 2.50:1.00
March 31, 2001 2.50:1.00
June 30, 2001 2.50:1.00
September 30, 2001 2.50:1.00
December 31, 2001 2.50:1.00
March 31, 2002 2.50:1.00
June 30, 2002 2.50:1.00
September 30, 2002 2.50:1.00
December 31, 2002 2.50:1.00
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<PAGE>
March 31, 2003 2.50:1.00
June 30, 2003 2.50:1.00
September 30, 2003 2.50:1.00
December 31, 2003 2.50:1.00
March 31, 2004 2.50:1.00
June 30, 2004 2.50:1.00
September 30, 2004 2.50:1.00
December 31, 2004 2.50:1.00
March 31, 2005 2.50:1.00
</TABLE>
9.12 LIMITATION ON VOLUNTARY PAYMENTS AND MODIFICATIONS OF
INDEBTEDNESS; MODIFICATIONS OF CERTIFICATE OF INCORPORATION, BY-LAWS AND CERTAIN
OTHER AGREEMENTS; ISSUANCES OF CAPITAL STOCK; ETC. Parent will not, and will
not permit any of its Subsidiaries to:
(i) amend or modify, or permit the amendment or modification of,
any provision of the Existing Indebtedness or the Seller Note (other than
Intercompany Loans, it being understood that no changes may be made to the
terms and conditions of any Intercompany Note without the consent of the
Required Banks) or of any agreement (including, without limitation, any
purchase agreement, indenture, loan agreement, or security agreement)
relating thereto;
(ii) make (or give any notice in respect of) any voluntary or
optional payment or prepayment on or redemption, repurchase or acquisition
for value of any of the Existing Indebtedness (other than Intercompany
Loans) or the Seller Note; or
(iii) amend, modify or change in any way adverse to the interests of
the Bank any Tax Allocation Agreement, any Management Agreement, any Equity
Financing Document, any Acquisition Document, its Certificate of
Incorporation (including, without limitation, by the filing or modification
of any certificate of designation), By-Laws, or any agreement entered into
by it, with respect to its capital stock (including any Shareholders'
Agreement), or enter into any new Tax Allocation Agreement, Management
Agreement or agreement with respect to its capital stock which could in any
way be adverse to the interests of the Banks.
9.13 LIMITATION ON ISSUANCE OF CAPITAL STOCK. (a) Parent will
not, and will not permit any of its Subsidiaries to, issue (i) any preferred
stock (or any options, warrants or rights to purchase preferred stock) or
(ii) any redeemable common stock unless, in either case, the issuance thereof
is, and all terms thereof are, satisfactory to the Required Banks in their
sole discretion.
(b) Parent shall not permit any of its Subsidiaries to issue any
capital stock (including by way of sales of treasury stock) or any options or
warrants to purchase, or securities convertible into, capital stock, except
(i) for transfers and replacements of then outstanding shares of capital
stock, (ii) for stock splits, stock dividends and additional issuances which
do not decrease the percentage ownership of Parent or any of its Subsidiaries
in any class of the capital
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<PAGE>
stock of such Subsidiaries, (iii) to qualify directors to the extent required
by applicable law and (iv) Subsidiaries formed after the Restatement
Effective Date pursuant to Section 9.15 may issue capital stock in accordance
with the requirements of Section 9.15. All capital stock issued in accordance
with this Section 9.13(b) shall, to the extent required by the Pledge
Agreement, be delivered to the Collateral Agent for pledge pursuant to the
Pledge Agreement.
9.14 LIMITATION ON CERTAIN RESTRICTIONS ON SUBSIDIARIES. Parent
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective,
any encumbrance or restriction on the ability of any such Subsidiary to (x)
pay dividends or make any other distributions on its capital stock or any
other interest or participation in its profits owned by Parent or any
Subsidiary of Parent, or pay any Indebtedness owed to Parent or a Subsidiary
of Parent, (y) make loans or advances to Parent or any Subsidiary of Parent
or (z) transfer any of its properties or assets to Parent or any of its
Subsidiaries, except for such encumbrances or restrictions existing under or
by reason of (i) applicable law, (ii) this Agreement and the other Credit
Documents, (iii) the provisions contained in the Existing Indebtedness, (iv)
customary provisions restricting subletting or assignment of any lease
governing a leasehold interest of the US Borrower or a Subsidiary of the US
Borrower and (v) customary provisions restricting assignment of any licensing
agreement entered into by the US Borrower or any Subsidiary of the US
Borrower in the ordinary course of business.
9.15 LIMITATION ON THE CREATION OF SUBSIDIARIES AND JOINT
VENTURES. (a) Notwithstanding anything to the contrary contained in this
Agreement, Parent will not, and will not permit any of its Subsidiaries to,
establish, create or acquire after the Restatement Effective Date any
Subsidiary; PROVIDED that, (A) the US Borrower and its Wholly-Owned
Subsidiaries shall be permitted to establish or create Wholly-Owned
Subsidiaries so long as, in each case, (i) at least 15 days' prior written
notice thereof is given to the Agent (or such shorter period of time as is
acceptable to the Agent), (ii) the capital stock of such new Subsidiary is
promptly pledged pursuant to, and to the extent required by, this Agreement
and the Pledge Agreement and the certificates, if any, representing such
stock, together with stock powers duly executed in blank, are delivered to
the Collateral Agent, (iii) such new Subsidiary (other than a Foreign
Subsidiary except to the extent otherwise required pursuant to Section 8.12)
promptly executes a counterpart of the Subsidiaries Guaranty, the Pledge
Agreement and the Security Agreement, and (iv) to the extent requested by the
Agent or the Required Banks, takes all actions required pursuant to Section
8.11 and (B) Subsidiaries may be acquired pursuant to Permitted Acquisitions
so long as, in each such case (i) with respect to each Wholly-Owned
Subsidiary acquired pursuant to a Permitted Acquisition, the actions
specified in preceding clause (A) shall be taken and (ii) with respect to
each Subsidiary which is not a Wholly-Owned Subsidiary and is acquired
pursuant to a Permitted Acquisition, all capital stock thereof owned by any
Credit Party shall be pledged pursuant to the Pledge Agreement. In addition,
each new Subsidiary that is required to execute any Credit Document shall
execute and deliver, or cause to be executed and delivered, all other
relevant documentation of the type described in Section 5 as such new
Subsidiary would have had to deliver if such new Subsidiary were a Credit
Party on the Restatement Effective Date.
(a) Parent will not, and will not permit any of its Subsidiaries
to, enter into any partnerships or joint ventures.
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<PAGE>
SECTION 10. EVENTS OF DEFAULT. Upon the occurrence of any of the
following specified events (each, an "Event of Default"):
10.01 PAYMENTS. Either Borrower shall (i) default in the payment
when due of any principal of the Loans or (ii) default, and such default
shall continue for three or more days, in the payment when due of any Unpaid
Drawing, any interest on the Loans or any Fees or any other amounts owing
hereunder or under any other Credit Document; or
10.02 REPRESENTATIONS, ETC. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or in
any statement or certificate delivered pursuant hereto or thereto shall prove to
be untrue in any material respect on the date as of which made or deemed made;
or
10.03 COVENANTS. Any Credit Party shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained
in Sections 8.01(g)(i), 8.10, 8.13, 8.14 or 9, or (b) default in the due
performance or observance by it of any term, covenant or agreement (other
than those referred to in Section 10.01, 10.02 or clause (a) of this Section
10.03) contained in this Agreement and such default shall continue unremedied
for a period of at least 30 days after notice to the defaulting party by the
Agent or the Required Banks; or
10.04 DEFAULT UNDER OTHER AGREEMENTS. (a) Parent or any of its
Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) beyond the period of grace, if any,
provided in the instrument or agreement under which Indebtedness was created
or (ii) default in the observance or performance of any agreement or
condition relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause (determined without regard to whether any notice is required), any such
Indebtedness to become due prior to its stated maturity; or (b) any
Indebtedness (other than the Obligations) of Parent or any of its
Subsidiaries shall be declared to be due and payable, or shall be required to
be prepaid other than by a regularly scheduled required prepayment or as a
mandatory prepayment (unless such required prepayment or mandatory prepayment
results from a default thereunder or an event of the type that constitutes an
Event of Default), prior to the stated maturity thereof; PROVIDED, that it
shall not constitute an Event of Default pursuant to clause (a) or (b) of
this Section 10.04 unless the principal amount of any one issue of such
Indebtedness, or the aggregate amount of all such Indebtedness referred to in
clauses (a) and (b) above, exceeds $1,000,000 at any one time; or
10.05 BANKRUPTCY, ETC. Parent or any of its Subsidiaries shall
commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto (the "Bankruptcy Code"); or an involuntary case is
commenced against Parent or any of its Subsidiaries and the petition is not
controverted within 10 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy Code)
is appointed for, or takes charge of, all or substantially all of the
property of Parent or any of its Subsidiaries; or Parent or any of its
Subsidiaries commences any other proceeding under any reorganization,
arrangement, adjustment
-73-
<PAGE>
of debt, relief of debtors, dissolution, insolvency or liquidation or similar
law of any jurisdiction whether now or hereafter in effect relating to Parent
or any of its Subsidiaries; or there is commenced against Parent or any of
its Subsidiaries any such proceeding which remains undismissed for a period
of 60 days; or Parent or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or Parent or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of
its property to continue undischarged or unstayed for a period of 60 days; or
Parent or any of its Subsidiaries makes a general assignment for the benefit
of creditors; or any corporate action is taken by Parent or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or
10.06 ERISA. (a)(i) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section 412
of the Code or Section 302 of ERISA or a waiver of such standard or extension
of any amortization period is sought or granted under Section 412 of the Code
or Section 303 or 304 of ERISA, a Reportable Event shall have occurred, (ii)
any Plan which is subject to Title IV of ERISA shall have had or is likely to
have a trustee appointed to administer such Plan, any Plan which is subject
to Title IV of ERISA is, shall have been or is likely to be terminated or to
be the subject of termination proceedings under ERISA, (iii) any Plan shall
have an Unfunded Current Liability, (iv) a contribution required to be made
with respect to a Plan or a Foreign Pension Plan has not been timely made,
(v) Parent or any Subsidiary of Parent or any ERISA Affiliate has incurred or
is likely to incur any liability to or on account of a Plan under Section
409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA
or Section 401(a)(29), 4971 or 4975 of the Code or on account of a group
health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of
the Code) under Section 4980B of the Code, or (vi) Parent or any Subsidiary
of Parent has incurred or is likely to incur liabilities pursuant to one or
more employee welfare benefit plans (as defined in Section 3(1) of ERISA)
that provide benefits to retired employees or other former employees (other
than as required by Section 601 of ERISA) or Plans or Foreign Pension Plans;
(b) there shall result from any such event or events as described in
subsection (a) of this section the imposition of a lien, the granting of a
security interest, or a liability or a material risk of incurring a
liability; and (c) such lien, security interest or liability, individually,
and/or in the aggregate, in the opinion of the Required Banks, has had, or
could reasonably be expected to have, a Material Adverse Effect; or
10.07 SECURITY DOCUMENTS. (a) Except in each case to the extent
resulting from the failure of the Collateral Agent to retain possession of
the applicable Pledged Securities, any Security Document shall cease to be in
full force and effect, or shall cease to give the Collateral Agent the Liens,
rights, powers and privileges purported to be created thereby in favor of the
Collateral Agent, superior to and prior to the rights of all third Persons
(except as permitted by Section 9.03), and subject to no other Liens (except
as permitted by Section 9.03), or (b) any Credit Party shall default in the
due performance or observance of any term, covenant or agreement on its part
to be performed or observed pursuant to any such Security Document and such
default shall continue beyond any cure or grace period specifically
applicable thereto pursuant to the terms of any such Security Document; or
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<PAGE>
10.08 GUARANTIES. The Guaranties or any provision thereof shall
cease to be in full force and effect, or any Guarantor or any Person acting
by or on behalf of such Guarantor shall deny or disaffirm such Guarantor's
obligations under any Guaranty or any Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part to
be performed or observed pursuant to any Guaranty; or
10.09 JUDGMENTS. One or more judgments or decrees shall be
entered against Parent or any of its Subsidiaries involving a liability (to
the extent not paid or not fully covered by insurance) in excess of $500,000
for all such judgments and decrees and all such judgments or decrees shall
not have been vacated, discharged or stayed or bonded pending appeal within
30 days from the entry thereof; or
10.10 OWNERSHIP. A Change of Control Event shall have occurred;
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Agent shall, upon the written request
of the Required Banks, by written notice to the US Borrower, take any or all
of the following actions, without prejudice to the rights of the Agent or any
Bank to enforce its claims against any Guarantor or either Borrower, except
as otherwise specifically provided for in this Agreement (PROVIDED, that if
an Event of Default specified in Section 10.05 shall occur with respect to
either Borrower, the result which would occur upon the giving of written
notice by the Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon the Commitment of each Bank shall forthwith
terminate immediately and any Commitment Fees shall forthwith become due and
payable without any other notice of any kind; (ii) declare the principal of
and any accrued interest in respect of all Loans and all Obligations owing
hereunder (including Unpaid Drawings) to be, whereupon the same shall become,
forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by each Borrower; (iii)
enforce, as Collateral Agent (or direct the Collateral Agent to enforce), any
or all of the Liens and security interests created pursuant to the Security
Documents; (iv) terminate any Letter of Credit which may be terminated in
accordance with its terms; (v) direct the US Borrower to pay (and the US
Borrower hereby agrees upon receipt of such notice, or upon the occurrence of
any Event of Default specified in Section 10.05, to pay) to the Collateral
Agent at the Payment Office such additional amounts of cash, to be held as
security for the US Borrower's reimbursement obligations in respect of
Letters of Credit then outstanding, equal to the aggregate Stated Amount of
all Letters of Credit then outstanding; and (vi) apply any cash collateral as
provided in Section 4.02.
SECTION 11. DEFINITIONS. As used herein, the following terms
shall have the meanings herein specified unless the context otherwise
requires. Defined terms in this Agreement shall include in the singular
number the plural and in the plural the singular:
"Acquired Business" shall mean all of the businesses of SPEC
acquired by the US Borrower from the Sellers pursuant to the Acquisition
Documents.
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<PAGE>
"Acquisition" shall mean the acquisition by the US Borrower of 100%
of the equity interests in SPEC consummated pursuant to the Acquisition
Agreement and the other Acquisition Documents.
"Acquisition Agreement" shall mean the Stock Purchase Agreement
dated as of February 8, 1999, by and among the Borrower, SPEC and the
Sellers, as the same may be amended, modified or supplemented from time to
time in accordance with the terms hereof and thereof.
"Acquisition Documents" shall mean the Acquisition Agreement and
all other agreements and documents relating to the Acquisition.
"Additional Security Documents" shall have the meaning provided in
Section 8.11.
"Adjusted Certificate of Deposit Rate" shall mean, on any day, the
sum (rounded to the nearest 1/100 of 1%) of (1) the rate obtained by dividing
(x) the most recent weekly average dealer offering rate for negotiable
certificates of deposit with a three-month maturity in the secondary market
as published in the most recent Federal Reserve System publication entitled
"Select Interest Rates," published weekly on Form H.15 as of the date hereof,
or if such publication or a substitute containing the foregoing rate
information shall not be published by the Federal Reserve System for any
week, the weekly average offering rate determined by the Agent on the basis
of quotations for such certificates received by it from three certificate of
deposit dealers in New York of recognized standing or, if such quotations are
unavailable, then on the basis of other sources reasonably selected by the
Agent, by (y) a percentage equal to 100% minus the stated maximum rate of all
reserve requirements as specified in Regulation D applicable on such day to a
three-month certificate of deposit of a member bank of the Federal Reserve
System in excess of $100,000 (including, without limitation, any marginal,
emergency, supplemental, special or other reserves), plus (2) the then daily
net annual assessment rate as estimated by the Agent for determining the
current annual assessment payable by BTCo to the Federal Deposit Insurance
Corporation for insuring three month certificates of deposit.
"Adjusted Consolidated Working Capital" at any time shall mean
Consolidated Current Assets less Consolidated Current Liabilities.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling (including but not limited to all
directors and officers of such Person), controlled by, or under direct or
indirect common control with such Person; PROVIDED, HOWEVER, that for
purposes of Section 9.07, an Affiliate of the US Borrower shall include any
Person that directly or indirectly owns more than 5% of any class of the
capital stock of the US Borrower and any officer or director of the US
Borrower or any such Person.
"Agent" shall have the meaning provided in the first paragraph of
this Agreement and shall include any successor to the Agent appointed
pursuant to Section 12.10.
"Agreement" shall mean this Amended and Restated Credit Agreement,
as the same may be from time to time modified, amended and/or supplemented.
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"Applicable Base Rate Margin" (i) for any calculation of interest
in respect of the period prior to the first Start Date (as defined below) to
occur after the Restatement Effective Date, shall have the meaning provided
in the Existing Credit Agreement for "Applicable Base Rate Margin" prior to
giving effect to this Agreement, (ii) from and after the first day of any
Applicable Pricing Period (the "Start Date") (commencing with the first Start
Date to occur after the Restatement Effective Date) to and including the last
day of such Applicable Pricing Period (the "End Date"), shall mean the
applicable percentage per annum set forth in clause (A), (B), (C) or (D)
below if, but only if, as of the last day of the most recent fiscal quarter
of the Borrower ended immediately prior to such Start Date (the "Test Date")
the condition in clause (A), (B), (C) or (D) below is met:
(A) 1.00%, if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date shall be
greater than or equal to 3.00:1.00; or
(B) 0.75%, if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date shall be
less than 3.00:1.00 but equal to or greater than 2.50:1.00; or
(C) 0.50%, if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date shall be
less than 2.50:1.00 but equal to or greater than 2.00:1.00; or
(D) 0.25%, if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date shall be
less than 2.00:1.00.
Notwithstanding anything to the contrary contained above in this
definition, the Applicable Base Rate Margin shall be 1.00% per annum at all
times when (i) a payment Default under Section 10.01 shall exist or any Event
of Default shall exist and/or (ii) financial statements have not been
delivered when required pursuant to Section 8.01(b) or (c), as the case may
be.
"Applicable Commitment Fee Percentage" (i) for any calculation of
the Commitment Fees payable in respect of the period prior to the first Start
Date to occur after the Restatement Effective Date, shall mean 1/2 of 1% per
annum, and (ii) after any Start Date (commencing with the first Start Date to
occur after the Restatement Effective Date) to and including the
corresponding End Date, shall mean the respective percentage per annum set
forth in clause (A), (B) or (C) below if, but only if, as of the Test Date
for such Start Date the condition set forth in clause (A), (B) or (C) below
is met:
(A) 1/2 of 1% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date shall be
equal to or greater than 2.50:1.00; or
(B) 2/5 of 1% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date shall be
less than 2.50:1.00 but equal to or greater than 2.00:1.00; or
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(C) 3/10 of 1% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date shall be
less than 2.00:1.00.
Notwithstanding anything to the contrary contained above in this
definition, the Applicable Commitment Fee Percentage shall be 1/2 of 1% per
annum at all times when (i) a payment Default under Section 10.01 shall exist
or any Event of Default shall exist and/or (ii) financial statements have not
been delivered when required pursuant to Section 8.01(b) or (c), as the case
may be.
"Applicable Eurodollar Margin" (i) for any calculation of interest
in respect of the period prior to the first Start Date (as defined below) to
occur after the Restatement Effective Date, shall have the meaning provided
in the Existing Credit Agreement for "Applicable Eurodollar Margin" prior to
giving effect to this Agreement and (ii) from and after the first Start Date
to occur after the Restatement Effective Date to and including the End Date,
shall mean the respective percentage per annum set forth in clause (A), (B),
(C) or (D) below if, but only if, as of the most recent Test Date, the
condition in clause (A), (B), (C) or (D) below is met:
(A) 2.00%, if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date shall be
greater than or equal to 3.00:1.00; or
(B) 1.75%, if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date shall be
less than 3.00:1.00 but equal to or greater than 2.50:1.00; or
(C) 1.50%, if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date shall be
less than 2.50:1.00 but equal to or greater than 2.00:1.00; or
(D) 1.25%, if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date shall be
less than 2.00:1.00.
Notwithstanding anything to the contrary contained above in this
definition, the Applicable Base Rate Margin shall be 2.00% per annum at all
times when (i) a payment Default under Section 10.01 shall exist or any Event
of Default shall exist and/or (ii) financial statements have not been
delivered when required pursuant to Section 8.01(b) or (c), as the case may
be.
"Applicable Excess Cash Flow Percentage" shall mean, with respect
to any Excess Cash Flow Payment Date, the percentage set forth below opposite
the Leverage Ratio as determined on the last day of the respective Excess
Cash Flow Payment Period:
<TABLE>
<CAPTION>
Applicable Excess Cash
Leverage Ratio Flow Percentage
-------------- ---------------
<S> <C>
Greater than or equal to 3.0:1.0 50%
Less than 3.0:1.0 25%
</TABLE>
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; provided, that the Leverage Ratio shall be determined for the relevant
Excess Cash Flow Payment Period by delivery of an officer's certificate of
the US Borrower to the Banks, which certificate shall be signed by an
Authorized Officer of the US Borrower and set forth the calculations required
to establish the Leverage Ratio. Notwithstanding anything to the contrary
contained above, the Applicable Excess Cash Flow Percentage shall be 50% (i)
if no officer's certificate has been delivered to the Banks on or prior to
the respective Excess Cash Flow Payment Date as required by this definition
and (ii) at all times when there shall exist a Default under Section 10.01 or
10.05 or any Event of Default.
"Applicable Pricing Period" shall mean each period which shall
commence on a date on which the financial statements are delivered pursuant
to Section 8.01(b) or (c) and which shall end on the earlier of (i) the date
of actual delivery of the next financial statements pursuant to Section 8.01
(b) or (c) and (ii) the latest date on which the next financial statements
are required to be delivered pursuant to Section 8.01(b) or (c).
"Asset Sale" shall mean any sale, transfer or other disposition by
Parent or any of its Subsidiaries to any Person other than Parent or any
Wholly-Owned Subsidiary of Parent of any asset (including, without
limitation, any capital stock or other securities of another Person, but
excluding the sale by such Person of its own capital stock) of Parent or such
Subsidiary other than (i) sales, transfers or other dispositions of inventory
made in the ordinary course of business and (ii) sales of assets pursuant to
Section 9.02(h).
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit K (appropriately
completed).
"Authorized Officer" shall mean, with respect to (i) delivering
Notices of Borrowing, Notices of Conversion and similar notices, any
treasurer or other financial officer of the respective Borrower delivering
such notice, (ii) delivering Letter of Credit Requests, financial information
and officer's certificates pursuant to this Agreement, any treasurer or other
financial officer of the US Borrower and (iii) any other matter in connection
with this Agreement or any other Credit Document, any officer (or a person or
persons so designated by any two officers) of Parent or the US Borrower, in
each case to the extent reasonably acceptable to the Agent.
"Bank" shall have the meaning provided in the first paragraph of
this Agreement.
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any Borrowing
(including any Mandatory Borrowing) or to fund its portion of any
unreimbursed payment under Section 2.03 or (ii) a Bank having notified the
Agent and/or either Borrower that it does not intend to comply with the
obligations under Section 1.01(b), 1.01(d) or 2.03, in the case of either
clause (i) or (ii) above as a result of the appointment of a receiver or
conservator with respect to such Bank at the direction or request of any
regulatory agency or authority.
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
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"Base Rate" at any time shall mean the highest of (x) the rate
which is 1/2 of 1% in excess of the Adjusted Certificate of Deposit Rate, (y)
the rate which is 1/2 of 1% in excess of the Federal Funds Rate and (z) the
Prime Lending Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the rates
provided in Section 1.08(a).
"Borrowers" shall have the meaning provided in the first paragraph
of this Agreement.
"Borrowing" shall mean and include (i) the borrowing of Swingline
Loans by a single Borrower from BTCo on a given date and (ii) the borrowing
of one Type of Loan pursuant to a single Tranche by a single Borrower from
all of the Banks having Commitments with respect to such Tranche on a PRO
RATA basis on a given date (or resulting from conversions on a given date),
having in the case of Eurodollar Loans the same Interest Period; PROVIDED,
that Base Rate Loans incurred pursuant to Section 1.10(b) shall be considered
part of any related Borrowing of Eurodollar Loans.
"Bourjeaurd" shall mean Mr. Quentin Bourjeaurd, the President of
Parent.
"BTCo" shall mean Bankers Trust Company, in its individual
capacity, and any successor corporation thereto by merger, consolidation or
otherwise.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday and any day
which shall be in the City of New York a legal holiday or a day on which
banking institutions are authorized by law or other governmental actions to
close and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, any day
which is a Business Day described in clause (i) and which is also a day for
trading by and between banks in U.S. dollar deposits in the interbank
Eurodollar market.
"Calculation Period" shall have the meaning provided in Section
8.14.
"Capital Expenditures" shall mean, with respect to any Person, all
expenditures by such Person which should be capitalized in accordance with
GAAP, including all such expenditures with respect to fixed or capital assets
(including, without limitation, expenditures for maintenance and repairs
which should be capitalized in accordance with GAAP) and the amount of all
Capitalized Lease Obligations incurred by such Person.
"Capital Lease," as applied to any Person, shall mean any lease of
any property (whether real, personal or mixed) by that Person as lessee
which, in conformity with GAAP, is accounted for as a capital lease on the
balance sheet of that Person.
"Capitalized Lease Obligations" shall mean, with respect to any
Person, all obligations under Capital Leases of such Person and or any of its
Subsidiaries in each case taken at the amount thereof accounted for as
liabilities in accordance with GAAP.
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"Cash Equivalents" shall mean, as to any Person, (i) securities
issued or directly and fully guaranteed or insured by the United States or
any agency or instrumentality thereof (PROVIDED that the full faith and
credit of the United States is pledged in support thereof) having maturities
of not more than six months from the date of acquisition, (ii) time deposits,
certificates of deposit and bankers' acceptances of any Bank or any
commercial bank having, or which is the principal banking subsidiary of a
bank holding company organized under the laws of the United States, any State
thereof, the District of Columbia or any foreign jurisdiction having capital,
surplus and undivided profits aggregating in excess of $500,000,000 and
having a long-term unsecured debt rating of at least "A" or the equivalent
thereof from S&P's or "A2" or the equivalent thereof from Moody's, with
maturities of not more than six months from the date of acquisition by such
Person, (iii) repurchase agreements with a term of not more than 30 days,
involving securities of the types described in preceding clause (i), and
entered into with commercial banks meeting the requirements of preceding
clause (ii), (iv) commercial paper issued by any Person incorporated in the
United States rated at least A-1 or the equivalent thereof by S&P's or at
least P-1 or the equivalent thereof by Moody's and in each case maturing not
more than six months after the date of acquisition by such Person, (v)
investments in money market funds substantially all of whose assets are
comprised of securities of the types described in clauses (i) through (iv)
above and (vi) demand deposit accounts maintained in the ordinary course of
business.
"Change of Control Event" shall mean at any time and for any reason
whatsoever, (a) Parent shall cease to own directly 100% on a fully diluted
basis of the economic and voting interest in Holdings' capital stock or (b)
Holdings shall cease to own directly 100% on a fully diluted basis of the
economic and voting interest in the US Borrower's capital stock or (c) any
Person or "group" (within the meaning of Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, as in effect on the Restatement Effective
Date), other than the Management Participants, shall (A) have acquired
beneficial ownership exceeding 20% on a fully diluted basis of the voting
and/or economic interest in Parent's capital stock or (B) obtained the power
(whether or not exercised) to elect a majority of Parent's directors or (d)
the Board of Directors of Parent shall cease to consist of a majority of
Continuing Directors or (e) a "change of control" or similar event shall
occur as provided in any Existing Indebtedness Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in effect at
the date of this Agreement and any subsequent provisions of the Code,
amendatory thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all of the Collateral as defined in each of
the Security Documents.
"Collateral Agent" shall mean the Agent acting as collateral agent
for the Secured Creditors.
"Collective Bargaining Agreements" shall have the meaning provided
in Section 5.14.
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"Commitment Fee" shall have the meaning provided in Section 3.01(a).
"Consolidated Current Assets" shall mean, at any time, the current
assets (other than cash, Cash Equivalents and deferred income taxes to the
extent included in current assets) of Parent and its Subsidiaries at such
time determined on a consolidated basis.
"Consolidated Current Liabilities" shall mean, at any time, the
current liabilities of Parent and its Subsidiaries determined on a
consolidated basis, but excluding deferred income taxes, restructuring costs
or reserves, litigation costs or reserves and the current portion of and
accrued but unpaid interest on any Indebtedness under this Agreement and any
other long-term Indebtedness which would otherwise be included therein.
"Consolidated Debt" shall mean, at any time, the sum of (without
duplication) (i) all Indebtedness of Parent and its Subsidiaries as would be
required to be reflected on the liability side of a balance sheet of such
Person in accordance with GAAP as determined on a consolidated basis, (ii)
all Indebtedness of Parent and its Subsidiaries of the type described in
clause (iii) of the definition of Indebtedness and (iii) all Contingent
Obligations of Parent and its Subsidiaries in respect of Indebtedness of
other Persons of the type referred to in preceding clauses (i) and (ii) of
this definition; PROVIDED, that for purposes of this definition, (i) the
amount of Indebtedness in respect of Interest Rate Protection Agreements
shall be at any time the unrealized net loss position, if any, of Parent
and/or its Subsidiaries thereunder on a marked-to-market basis determined no
more than one month prior to such time and (ii) any preferred stock of Parent
or any of its Subsidiaries shall be treated as Indebtedness, with an amount
equal to the greater of the liquidation preference or the maximum fixed
repurchase price of any such outstanding preferred stock deemed to be a
component of Consolidated Debt.
"Consolidated EBIT" shall mean, for any period, the Consolidated
Net Income of Parent and its Subsidiaries, determined on a consolidated
basis, before Consolidated Interest Expense (to the extent deducted in
arriving at Consolidated Net Income) and provision for taxes based on income
or gains or losses from sales of assets other than inventory sold in the
ordinary course of business, in each case that were included in arriving at
Consolidated Net Income.
"Consolidated EBITDA" shall mean, for any period, Consolidated
EBIT, adjusted by (i) adding thereto the amount of all amortization and
depreciation, in each case that were deducted in arriving at Consolidated
EBIT for such period.
"Consolidated Interest Coverage Ratio" for any period shall mean
the ratio of Consolidated EBITDA to Consolidated Interest Expense for such
period.
"Consolidated Interest Expense" shall mean, for any period, the
total consolidated interest expense of Parent and its Subsidiaries for such
period (calculated without regard to any limitations on the payment thereof)
plus, without duplication, that portion of Capitalized Lease Obligations of
Parent and its Subsidiaries representing the interest factor for such period,
and capitalized interest expense, plus the amount of all cash Dividend
requirements (whether or not declared or paid) on preferred stock paid or
accrued or scheduled to be paid or accrued during
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such period, but excluding the amortization of any deferred financing costs
or of any costs in respect of any Interest Rate Protection Agreement.
"Consolidated Net Income" shall mean, for any period, the net after
tax income of Parent and its Subsidiaries determined on a consolidated basis,
without giving effect to any extraordinary non-cash gains or non-cash losses,
any other non-cash expenses incurred or payments made in connection with the
Transaction, and without giving effect to net gains and losses from the sale
or disposition of assets (other than sales or dispositions of inventory,
equipment, raw materials and supplies) by the US Borrower and its
Subsidiaries.
"Contingent Obligations" shall mean as to any Person any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness,
leases, dividends or other obligations ("primary obligations") of any other
Person (the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether or not
contingent, (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or supply
funds (x) for the purchase or payment of any such primary obligation or (y)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (c)
to purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (d) otherwise
to assure or hold harmless the owner of such primary obligation against loss
in respect thereof; PROVIDED, HOWEVER, that the term Contingent Obligation
shall not include endorsements of instruments for deposit or collection or
standard contractual indemnities entered into, in each case in the ordinary
course of business. The amount of any Contingent Obligation shall be deemed
to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.
"Continuing Directors" shall mean the directors of Parent on the
Restatement Effective Date and each other director if such director's
nomination for the election to the Board of Directors of Parent is
recommended by a majority of the then Continuing Directors.
"Credit Documents" shall mean this Agreement, the Notes, the
Guaranties and each Security Document.
"Credit Event" shall mean the making of a Loan (other than a
Revolving Loan made pursuant to a Mandatory Borrowing) or the issuance of a
Letter of Credit.
"Credit Party" shall mean Parent, Holdings, the US Borrower, the
French Borrower and each Subsidiary Guarantor.
"Default" shall mean any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
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"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"Designated Indebtedness" shall have the meaning provided in
Section 5.09.
"Dividend" shall have the meaning provided in Section 9.06.
"Documents" shall mean the Credit Documents, the Acquisition
Documents, the Refinancing Documents and the Seller Financing Documents.
"Domestic Subsidiary" shall mean each Subsidiary of Parent
incorporated or organized in the United States or any State or territory
thereof.
"Eligible Transferee" shall mean and include a commercial bank,
financial institution or other "accredited investor" (as defined in
Regulation D of the Securities Act).
"Employee Benefit Plans" shall have the meaning set forth in
Section 5.14.
"Employment Agreements" shall have the meaning set forth in Section
5.14.
"End Date" shall have the meaning provided in the definition of
Applicable Base Rate Margin.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of non-compliance or violation, investigations or proceedings
relating in any way to any violation (or alleged violation) by Parent or any
of its Subsidiaries under any Environmental Law (hereafter "Claims") or any
permit issued to Parent or any of its Subsidiaries under any such law,
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages pursuant to any applicable Environmental Law, and
(b) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting
from Hazardous Materials or arising from alleged injury or threat of injury
to health, safety or the environment.
"Environmental Law" shall mean any applicable federal, state or
local statute, law, rule, regulation, ordinance, code or rule of common law
now or hereafter in effect and in each case as amended, and any legally
binding judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment (for purposes
of this definition (collectively, "Laws")), relating to the environment, or
Hazardous Materials or health and safety to the extent such health and safety
issues relate to the occupational exposure to Hazardous Materials, or any
such similar Laws.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
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"ERISA Affiliate" shall mean each person (as defined in Section
3(9) of ERISA) which together with Parent or a Subsidiary of the Parent would
be deemed to be a "single employer" (i) within the meaning of Section 414(b),
(c), (m) or (o) of the Code or (ii) as a result of Parent or a Subsidiary of
Parent being or having been a general partner of such person.
"Eurodollar Loans" shall mean each Loan bearing interest at the
rates provided in Section 1.08(b).
"Eurodollar Rate" shall mean with respect to each Interest Period
for a Eurodollar Loan, (i) the arithmetic average (rounded to the nearest
1/100 of 1%) of the offered quotation to first-class banks in the interbank
Eurodollar market by BTCo for U.S. dollar deposits of amounts in same day
funds comparable to the outstanding principal amount of the Eurodollar Loan
of BTCo for which an interest rate is then being determined with maturities
comparable to the Interest Period to be applicable to such Eurodollar Loan,
determined as of 10:00 A.M. (New York time) on the date which is two Business
Days prior to the commencement of such Interest Period divided (and rounded
upward to the next whole multiple of 1/16 of 1%) by (ii) a percentage equal
to 100% minus the then stated maximum rate of all reserve requirements
(including, without limitation, any marginal, emergency, supplemental,
special or other reserves) applicable to any member bank of the Federal
Reserve System in respect of Eurocurrency liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section 10.
"Excess Cash Flow" shall mean, for any period, the remainder of (a)
the sum of (i) Consolidated Net Income for such period, (ii) the amount of
any depreciation and amortization subtracted in calculating Consolidated Net
Income and (iii) the decrease, if any, in Adjusted Consolidated Working
Capital from the first day to the last day of such period, minus (b) the sum
of (i) the amount of Capital Expenditures made by the US Borrower and its
Subsidiaries on a consolidated basis during such period pursuant to and in
accordance with Sections 9.08(a) and (d), except to the extent financed with
the proceeds of Indebtedness or pursuant to Capitalized Lease Obligations,
(ii) the aggregate amount of permanent principal payments of Indebtedness for
borrowed money of the US Borrower and its Subsidiaries and the permanent
repayment of the principal component of Capitalized Lease Obligations of the
US Borrower and its Subsidiaries (excluding (1) payments with proceeds of
asset sales, (2) payments with the proceeds of Indebtedness or equity and (3)
payments of Loans or other Obligations, PROVIDED that repayments of Loans
shall be deducted in determining Excess Cash Flow if such repayments were (x)
required as a result of a Scheduled Repayment under Section 4.02 or (y) made
as a voluntary prepayment pursuant to Section 4.01 with internally generated
funds (but in the case of a voluntary prepayment of Revolving Loans, only to
the extent accompanied by a voluntary reduction to the Total Revolving Loan
Commitment)) during such period and (iii) the increase, if any, in Adjusted
Consolidated Working Capital from the first day to the last day of such
period.
"Excess Cash Flow Payment Date" shall mean the date occurring 120
days after the last day of a fiscal year of Parent (in either case beginning
with the fiscal year ending on September 30, 1998).
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"Excess Cash Flow Payment Period" shall mean, with respect to each
Excess Cash Payment Date, the immediately preceding fiscal year of Parent.
"Existing Banks" shall have the meaning provided in the recitals to
this Agreement.
"Existing Credit Agreement" shall have the meaning provided in the
recitals to this Agreement.
"Existing Indebtedness" shall have the meaning provided in Section
5.16.
"Existing Indebtedness Agreements" shall have the meaning provided
in Section 5.14.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average
of the rates on overnight Federal Funds transactions with members of the
Federal Reserve System arranged by Federal Funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
Federal Funds brokers of recognized standing selected by the Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to
in, Section 3.01.
"Final Maturity Date" shall mean the sixth anniversary of the
Restatement Effective Date.
"Foreign Pension Plan" shall mean any plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States of America by Parent or
any one or more of its Subsidiaries primarily for the benefit of employees of
Parent or such Subsidiaries residing outside the United States of America,
which plan, fund or other similar program provides, or results in, retirement
income, a deferral of income in contemplation of retirement or payments to be
made upon termination of employment, and which plan is not subject to ERISA
or the Code.
"Foreign Subsidiary" shall mean each Subsidiary of Parent other
than a Domestic Subsidiary.
"French Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"French Pledge Agreement" shall have the meaning provided in
Section 5.11.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time; it being understood
and agreed that determinations in
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accordance with GAAP for purposes of Section 9, including defined terms as
used therein, are subject (to the extent provided therein) to Section
13.07(a).
"Guaranteed Creditors" shall mean and include each of the Agent,
the Collateral Agent, the Banks and each party (other than any Credit Party)
party to an Interest Rate Protection Agreement or Other Hedging Agreement to
the extent that such party constitutes a Secured Creditor under the Security
Documents.
"Guaranteed Obligations" shall mean (i) the principal and interest
on each Note issued by each Borrower to each Bank, and Loans made, under this
Agreement and all reimbursement obligations and Unpaid Drawings with respect
to Letters of Credit, together with all the other obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities (including, without
limitation, indemnities, fees and interest thereon) of each Borrower to such
Bank, the Agent and the Collateral Agent now existing or hereafter incurred
under, arising out of or in connection with this Agreement or any other
Credit Document and the due performance and compliance with all the terms,
conditions and agreements contained in the Credit Documents by each Borrower
and (ii) all obligations (including obligations which, but for the automatic
stay under Section 362(a) of the Bankruptcy Code, would become due) and
liabilities of each Borrower or any of its Subsidiaries owing under any
Interest Rate Protection Agreement or Other Hedging Agreement entered into by
such Borrower or any of its Subsidiaries with any Bank or any affiliate
thereof (even if such Bank subsequently ceases to be a Bank under this
Agreement for any reason) so long as such Bank or affiliate participate in
such Interest Rate Protection Agreement or Other Hedging Agreement, and their
subsequent assigns, if any, whether now in existence or hereafter arising,
and the due performance and compliance with all terms, conditions and
agreements contained therein.
"Guarantor" shall mean each Parent Guarantor and each Subsidiary
Guarantor.
"Guaranty" shall mean and include each of the Parent Guaranty and
the Subsidiary Guaranty.
"Hazardous Materials" shall mean (a) any petrochemical or petroleum
products, radioactive materials friable asbestos, urea formaldehyde foam
insulation, transformers or other equipment that contain dielectric fluid
containing levels of polychlorinated biphenyls, and radon gas; and (b) any
chemicals, materials or substances defined as or included in the definition
of "hazardous substances," "hazardous wastes," "hazardous materials,"
"restricted hazardous materials," "extremely hazardous wastes," "restrictive
hazardous wastes," "toxic substances," "toxic pollutants," "contaminants" or
"pollutants," or words of similar meaning and regulatory effect where the
relevant Governmental authority has jurisdiction over the operations of
Parent or any of its Subsidiaries.
"Holdings" shall have the meaning provided in the first paragraph
of this Agreement.
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"Indebtedness" of any Person shall mean, without duplication, (i)
all indebtedness of such Person for borrowed money, (ii) the deferred
purchase price of assets or services payable to the sellers thereof or any of
such seller's assignees which in accordance with GAAP would be shown on the
liability side of the balance sheet of such Person but excluding deferred
rent as determined in accordance with GAAP, (iii) the face amount of all
letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder, (iv) all Indebtedness of a second
Person secured by any Lien on any property owned by such first Person,
whether or not such Indebtedness has been assumed, (v) all Capitalized Lease
Obligations of such Person, (vi) all obligations of such Person to pay a
specified purchase price for goods or services whether or not delivered or
accepted, I.E., take-or-pay and similar obligations, (vii) all obligations
under Interest Rate Protection Agreements and Other Hedging Agreements and
(viii) all Contingent Obligations of such Person, PROVIDED, that Indebtedness
shall not include trade payables and accrued expenses, in each case arising
in the ordinary course of business.
"Intercompany Loan" shall have the meaning provided in Section
9.05(f).
"Intercompany Notes" shall mean promissory notes, in the form of
Exhibit L, evidencing Intercompany Loans.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period," with respect to any Eurodollar Loan, shall mean
the interest period applicable thereto, as determined pursuant to Section
1.09.
"Interest Rate Protection Agreement" shall mean any interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement,
interest rate hedging agreement or other similar agreement or arrangement.
"L/C Supportable Indebtedness" shall mean (i) obligations of the US
Borrower or its Wholly-Owned Subsidiaries incurred in the ordinary course of
business with respect to insurance obligations and workers' compensation,
surety bonds and other similar statutory obligations and (ii) such other
obligations of the US Borrower or any of its Wholly-Owned Subsidiaries as are
reasonably acceptable to the Agent and the Letter of Credit Issuer and
otherwise permitted to exist pursuant to the terms of this Agreement.
"Leasehold" of any Person shall mean all of the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fees" shall have the meaning provided in Section
3.01(b).
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"Letter of Credit Issuer" shall mean BTCo and any other Bank which, at
the request of the Borrower and with the consent of the Agent, agrees in such
Bank's sole discretion to become a Letter of Credit Issuer for purposes of
issuing Letters of Credit pursuant to Section 2. The sole Letter of Credit
Issuer on the Restatement Effective Date is BTCo.
"Letter of Credit Outstandings" shall mean, at any time, the sum of,
without duplication, (i) the aggregate Stated Amount of all outstanding Letters
of Credit and (ii) the aggregate amount of all Unpaid Drawings in respect of all
Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in Section
2.02(a).
"Leverage Ratio" shall mean on any date the ratio of (i) Consolidated
Debt on such date to (ii) Consolidated EBITDA for the Test Period most recently
ended on or prior to such date, in each case taken as one accounting period.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any similar
recording or notice statute, and any lease having substantially the same effect
as the foregoing).
"Loan" shall mean each Term Loan, each Revolving Loan and each
Swingline Loan.
"Management Agreements" shall have the meaning provided in Section
5.14.
"Management Participants" shall mean Quentin Bourjeaurd and Charles
Balchunas so long as such individuals are employed by Parent or any of its
Subsidiaries.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(d).
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean a material adverse effect on the
business, properties, assets, liabilities, condition (financial or otherwise) or
prospects of Parent, Holdings, the US Borrower, the US Borrower and its
Subsidiaries taken as a whole, Holdings and its Subsidiaries taken as a whole or
Parent and its Subsidiaries taken as a whole; PROVIDED that for purposes of
satisfying the conditions precedent to the extensions of credit on Restatement
Effective Date and the representations and warranties made pursuant to the
Credit Documents on the Restatement Effective Date, it shall also constitute a
Material Adverse Effect if there has been a material adverse effect on the
business, properties, assets, liabilities, condition (financial or otherwise) or
prospects of SPEC.
"Material Contracts" shall have the meaning provided in Section 5.14.
"Maturity Date", with respect to any Tranche of Loans, shall mean the
Final Maturity Date or the Revolving Loan Maturity Date, as the case may be.
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"Maximum Swingline Amount" shall mean $3,000,000.
"Minimum Borrowing Amount" shall mean (i) for Revolving Loans,
$1,000,000, (ii) for Term Loans, $5,000,000, and (iii) for Swingline Loans,
$100,000.
"Moody's" shall mean Moody's Investors Service, Inc.
"Mortgage" shall have the meaning provided in Section 5.13(a).
"Mortgage Policies" shall have the meaning provided in Section
5.13(b).
"Mortgaged Properties" shall mean and include the Real Properties
owned or leased by the US Borrower and its Domestic Subsidiaries to the extent
designated as such on Annex III.
"Net Cash Proceeds" shall mean for any event requiring a reduction of
the Total Revolving Loan Commitment and/or repayment of Term Loans pursuant to
Section 3.03 or 4.02, as the case may be, the gross cash proceeds (including any
cash received by way of deferred payment pursuant to a promissory note,
receivable or otherwise, but only as and when received) received from such
event, net of reasonable transaction costs (including, as applicable, any
underwriting, brokerage or other customary commissions and reasonable legal,
advisory and other fees and expenses associated therewith) received from any
such event.
"Net Sale Proceeds" shall mean for any sale of assets, the gross cash
proceeds (including any cash received by way of deferred payment pursuant to a
promissory note, receivable or otherwise, but only as and when received)
received from any sale of assets, net of reasonable transaction costs
(including, without limitation, any underwriting, brokerage or other customary
selling commissions and reasonable legal, advisory and other fees and expenses,
including title and recording expenses, associated therewith) and payments of
unassumed liabilities relating to the assets sold at the time of, or within 30
days after, the date of such sale, the amount of such gross cash proceeds
required to be used to repay any Indebtedness (other than Indebtedness of the
Banks pursuant to this Agreement) which is secured by the respective assets
which were sold, and the estimated marginal increase in income and sales taxes
which will be payable by Parent's consolidated group with respect to the fiscal
year in which the sale occurs as a result of such sale; but excluding any
portion of any such gross cash proceeds which the Borrower determines in good
faith should be reserved for post-closing adjustments (to the extent the
Borrower delivers to the Banks a certificate signed by its chief financial
officer or treasurer, controller or chief accounting officer as to such
determination), it being understood and agreed that on the day that all such
post-closing adjustments have been determined (which shall not be later than six
months following the date of the respective asset sale), the amount (if any) by
which the reserved amount in respect of such sale or disposition exceeds the
actual post-closing adjustments payable by Parent or any of its Subsidiaries
shall constitute Net Sale Proceeds on such date received by Parent and/or any of
its Subsidiaries from such sale, lease, transfer or other disposition.
"Non-Defaulting Bank" shall mean each Bank other than a Defaulting
Bank.
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"Note" shall mean each Term Note, each Revolving Note and the
Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Agent located at One
Bankers Trust Plaza, New York, New York 10006 or such other office as the Agent
may designate to the US Borrower and the Banks from time to time.
"Obligations" shall mean all amounts, direct or indirect, contingent
or absolute, of every type or description, and at any time existing, owing to
the Agent, the Collateral Agent or any Bank pursuant to the terms of this
Agreement or any other Credit Document.
"Other Hedging Agreements" shall mean any foreign exchange contracts,
currency swap agreements or other similar agreements or arrangements designed to
protect against fluctuations in currency values.
"Parent" shall have the meaning provided in the first paragraph of
this Agreement.
"Parent Common Stock" shall have the meaning provided in Section
7.14(a).
"Parent Guarantors" shall have the meaning provided in Section 14.01.
"Parent Guaranty" shall mean the guaranty of Parent pursuant to
Section 14.
"Participant" shall have the meaning provided in Section 2.03(a).
"Payment Office" shall mean the office of the Agent located at One
Bankers Trust Plaza, New York, New York 10006 or such other office as the Agent
may designate to the US Borrower and the Banks from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Percentage" shall mean, at any time for each Bank, the percentage
obtained by dividing such Bank's Revolving Loan Commitment at such time by the
Total Revolving Loan Commitment then in effect, PROVIDED, that if the Total
Revolving Loan Commitment has been terminated, the Percentage of each Bank shall
be determined by dividing such Bank's Revolving Loan Commitment as in effect
immediately prior to such termination by the Total Revolving Loan Commitment as
in effect immediately prior to such termination.
"Permitted Acquired Debt" shall have the meaning set forth in Section
9.04(f).
"Permitted Acquisition" shall mean the acquisition by the US Borrower
after the Restatement Effective Date of assets constituting a business, division
or product line of any Person not already a Subsidiary of the US Borrower or of
100% of the capital stock of any such
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Person, which Person shall, as a result of such acquisition, become a
Domestic Subsidiary of the US Borrower, PROVIDED that (A) the consideration
paid by the US Borrower consists solely of cash (including proceeds of
Revolving Loans), the issuance of Indebtedness otherwise permitted in Section
9.04, the issuance of Common Stock of Parent to the extent no Default or
Event of Default exists pursuant to Section 10.10 or would result therefrom
and the assumption/acquisition of any Permitted Acquired Debt (calculated at
face value) relating to such business, division, product line or Person which
is permitted to remain outstanding in accordance with the requirements of
Section 9.04, (B) in the case of the acquisition of 100% of the capital stock
of any Person, such Person shall own no capital stock of any other Person
unless either (x) such Person owns 100% of the capital stock of such other
Person or (y) (1) such Person and/or its Wholly-Owned Subsidiaries own at
least 80% of the consolidated assets of such Person and its Subsidiaries and
(2) any non-Wholly Owned Subsidiary of such Person was non-Wholly Owned prior
to the date of such Permitted Acquisition of such Person, (C) substantially
all of the business, division or product line acquired pursuant to the
respective Permitted Acquisition, or the business of the Person acquired
pursuant to the respective Permitted Acquisition and its Subsidiaries taken
as a whole, is in the United States and (D) all applicable requirements of
Sections 8.14 and 9.02 applicable to Permitted Acquisitions are satisfied.
Notwithstanding anything to the contrary contained in the immediately
preceding sentence, an acquisition which does not otherwise meet the
requirements set forth above in the definition of "Permitted Acquisition"
shall constitute a Permitted Acquisition if, and to the extent, the Required
Banks agree in writing that such acquisition shall constitute a Permitted
Acquisition for purposes of this Agreement.
"Permitted Encumbrances" shall mean (i) those liens, encumbrances and
other matters affecting title to any Mortgaged Property listed in the Mortgage
Policies in respect thereof and found reasonably acceptable by the Agent, (ii)
as to any particular Mortgaged Property at any time, such easements,
encroachments, covenants, rights of way, minor defects, irregularities or
encumbrances on title which do not, in the reasonable opinion of the Agent,
materially impair such Mortgaged Property for the purpose for which it is held
by the mortgagor thereof, or the lien held by the Collateral Agent, (iii) zoning
and other municipal ordinances which are not violated in any material respect by
the existing improvements and the present use made by the mortgagor thereof of
the Premises (as defined in the respective Mortgage), (iv) general real estate
taxes and assessments not yet delinquent, and (v) such other similar items as
the Agent may consent to (such consent not to be unreasonably withheld).
"Permitted Liens" shall have the meaning provided in Section 9.03.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) Parent or a Subsidiary of Parent or an ERISA
Affiliate, and each such plan for the five year period
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immediately following the latest date on which Parent, or a Subsidiary of
Parent or an ERISA Affiliate maintained, contributed to or had an obligation
to contribute to such plan.
"Pledge Agreement" shall have the meaning provided in Section 5.11.
"Pledge Agreements" shall mean the Pledge Agreement and the French
Pledge Agreement.
"Pledge Agreement Collateral" shall mean all "Collateral" as defined
in the Pledge Agreement.
"Pledged Securities" shall mean all the Pledged Securities as defined
in the Pledge Agreement.
"Prime Lending Rate" shall mean the rate which BTCo announces from
time to time as its prime lending rate, the Prime Lending Rate to change when
and as such prime lending rate changes. The Prime Lending Rate is a reference
rate and does not necessarily represent the lowest or best rate actually charged
to any customer. BTCo may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate.
"PRO FORMA Basis" shall mean, in connection with any calculation of
compliance with any financial covenant or financial term, the calculation
thereof after giving effect on a PRO FORMA basis to (x) the incurrence of any
Indebtedness (other than revolving Indebtedness, except to the extent same is
incurred to finance the Transaction, to refinance other outstanding Indebtedness
or to finance Permitted Acquisitions) after the first day of the relevant
Calculation Period as if such Indebtedness had been incurred (and the proceeds
thereof applied) on the first day of the relevant Calculation Period, (y) the
permanent repayment of any Indebtedness (other than revolving Indebtedness)
after the first day of the relevant Calculation Period as if such Indebtedness
had been retired or redeemed on the first day of the relevant Calculation Period
and (z) the Permitted Acquisition, if any, then being consummated as well as any
other Permitted Acquisition consummated after the first day of the relevant
Calculation Period and on or prior to the date of the respective Permitted
Acquisition then being effected, with the following rules to apply in connection
therewith:
(i) all Indebtedness (x) (other than revolving Indebtedness, except
to the extent same is incurred to finance the Transaction, to refinance
other outstanding Indebtedness, or to finance Permitted Acquisitions)
incurred or issued after the first day of the relevant Calculation Period
(whether incurred to finance a Permitted Acquisition, to refinance
Indebtedness or otherwise) shall be deemed to have been incurred or issued
(and the proceeds thereof applied) on the first day of the respective
Calculation Period and remain outstanding through the date of determination
(and thereafter in the case of projections pursuant to Section 8.14(a)(iv))
and (y) (other than revolving Indebtedness) permanently retired or redeemed
after the first day of the relevant Calculation Period shall be deemed to
have been retired or redeemed on the first day of the respective
Calculation Period and remain retired through the date of determination
(and thereafter in the case of projections pursuant to Section
8.14(a)(iv));
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(ii) all Indebtedness assumed to be outstanding pursuant to
preceding clause (i) shall be deemed to have borne interest at (x) the rate
applicable thereto, in the case of fixed rate indebtedness or (y) the rates
which would have been applicable thereto during the respective period when
same was deemed outstanding, in the case of floating rate Indebtedness
(although interest expense with respect to any Indebtedness for periods
while same was actually outstanding during the respective period shall be
calculated using the actual rates applicable thereto while same was
actually outstanding); provided that for purposes of calculations pursuant
to Section 8.14(a)(iv), all Indebtedness (whether actually outstanding or
deemed outstanding) bearing interest at a floating rate of interest shall
be tested on the basis of the rates applicable at the time the
determination is made pursuant to said provisions; and
(iii) in making any determination of Consolidated EBITDA, PRO FORMA
effect shall be given to the Transaction and any Permitted Acquisition for
the periods described above, taking into account, in the case of any
Permitted Acquisition, cost savings and expenses which would otherwise be
accounted for as an adjustment pursuant to Article 11 of Regulation S-X
under the Securities Act, as if such cost savings or expenses were realized
on the first day of the respective period.
"Projections" shall have the meaning provided in Section 5.17.
"Quarterly Payment Date" shall mean the last Business Day of each
March, June, September and December.
"Ratliff Employment Agreements" shall mean the Employment,
Confidentiality and Non-Competition Agreements, each dated as of March 23, 1999,
between (i) the Borrower and John W. Ratliff and (ii) the Borrower and Lisa K.
Ratliff, in each case as in effect on the Restatement Effective Date.
"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by Parent or any of its
Subsidiaries of any insurance or condemnation proceeds payable (i) by reason of
theft, physical destruction or damage or any other similar event with respect to
any properties or assets of Parent or any of its Subsidiaries, (ii) by reason of
any condemnation, taking, seizing or similar event with respect to any
properties or assets of Parent or any of its Subsidiaries and (iii) under any
policy of insurance required to be maintained under Section 8.03.
"Refinancing" shall mean the refinancing of the Designated
Indebtedness in connection with the Acquisition in accordance with the
requirements of Section 5.09.
"Refinancing Documents" shall mean each of the agreements, documents
and instruments entered into in connection with the Refinancing.
"Register" shall have the meaning provided in Section 13.17.
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"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from to time in effect and any successor to all or
any portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or any portion thereof.
"Release" means disposing, discharging, injecting, spilling, pumping,
leaking, leaching, dumping, emitting, escaping, emptying, seeping, placing,
pouring and the like, into or upon any land or water or air, or otherwise
entering into the environment.
"Replaced Bank" shall have the meaning provided in Section 1.13.
"Replacement Bank" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
.13, .14, .16, .18, .19 or .20 of PBGC Regulation Section 2615.
"Required Banks" shall mean collectively (and not individually)
Non-Defaulting Banks the sum of whose outstanding Term Loans and Revolving Loan
Commitments (or, if after the Total Revolving Loan Commitment has been
terminated, outstanding Revolving Loans and Percentages of outstanding Swingline
Loans and Letter of Credit Outstandings) constitute greater than 50% of the sum
of (i) the total outstanding Term Loans of Non-Defaulting Banks and (ii) the
Total Revolving Loan Commitment less the aggregate Revolving Loan Commitments of
Defaulting Banks (or, if after the Total Revolving Loan Commitment has been
terminated, the total outstanding Revolving Loans of Non-Defaulting Banks and
the aggregate Percentages of all Non-Defaulting Banks of the total outstanding
Swingline Loans and Letter of Credit Outstandings at such time).
"Restatement Effective Date" shall have the meaning provided in
Section 13.10.
"Returns" shall have the meaning provided in Section 7.21.
"Revolving Loan" shall have the meaning provided in Section 1.01(b).
"Revolving Loan Commitment" shall mean, with respect to each RL Bank,
the amount set forth opposite such Bank's name in Annex I directly below the
column entitled "Revolving Loan Commitment," as the same may be reduced from
time to time pursuant to Sections 3.02, 3.03, 4.02 and/or Section 10.
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"Revolving Loan Maturity Date" shall mean the fifth anniversary of the
Restatement Effective Date.
"Revolving Note" shall have the meaning provided in Section 1.05(a).
"RL Bank" shall mean at any time each Bank with a Revolving Loan
Commitment or with outstanding Revolving Loans.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
McGraw Hill, Inc.
"Scheduled Repayment" shall have the meaning provided in Section
4.02(b).
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning provided in the Security
Documents.
"Security Agreement" shall have the meaning provided in Section 5.11.
"Security Agreement Collateral" shall mean all "Collateral" as
defined in the Security Agreement.
"Security Documents" shall mean the Pledge Agreements, the Security
Agreement, each Mortgage and each Additional Security Document.
"Seller Financing" shall mean the issuance by Parent of the Seller
Note to the Sellers on the Restatement Effective Date.
"Seller Financing Documents" shall mean all of the agreements
governing, or relating to, the Seller Financing.
"Seller Note" shall mean the Subordinated Promissory Note issued to
the Sellers by the US Borrower pursuant to the Seller Financing in an initial
principal amount of $7,200,000, as the same may be amended from time to time in
accordance with the provisions hereof and thereof.
"Sellers" shall mean the shareholders of SPEC immediately prior to
giving effect to the Acquisition who are parties to the Acquisition Agreement.
"Shareholders' Agreements" shall have the meaning provided in Section
5.14.
"SPEC" shall mean Standard Parts and Equipment Corporation, a Texas
corporation.
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"Start Date" shall have the meaning provided in the definition of
Applicable Base Rate Margin.
"Stated Amount" of each Letter of Credit shall mean the maximum amount
available to be drawn thereunder (regardless of whether any conditions for
drawing could then be met).
"Stock Option Plan" shall mean the Maple Leaf Aerospace, Inc. 1996
Stock Option Plan and the TriStar Aerospace Co. 1998 Stock Option Plan, as such
plans are in effect on the Restatement Effective Date.
"Subsidiaries Guaranty" shall have the meaning provided in Section
5.12.
"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity (other than a corporation) in which such Person directly
or indirectly through Subsidiaries, has more than a 50% equity interest at the
time.
"Subsidiary Guarantor" shall mean each Subsidiary of the US Borrower
that is or becomes a party to the Subsidiaries Guaranty.
"Swingline Expiry Date" shall mean the date which is five Business
Days prior to the Revolving Loan Maturity Date.
"Swingline Loan" shall have the meaning provided in Section 1.01(c).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Syndication Date" shall mean that date upon which the Agent
determines (and notifies the Borrower and the Banks) that the primary
syndication (and resultant addition of Persons as Banks pursuant to Section
13.04(b)) has been completed.
"Tax Allocation Agreements" shall have the meaning provided in Section
5.14.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Term Loan" shall have the meaning provided in Section 1.01(a).
"Term Loan Commitment" shall mean, with respect to each Bank, the
amount set forth opposite such Bank's name in Annex I directly below the column
entitled "Term Loan Commitment," as the same may be terminated pursuant to
Sections 3.03, 4.02 and/or Section 9.
"Term Note" shall have the meaning provided in Section 1.05(a).
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"Test Date" shall have the meaning provided in the definition of
Applicable Base Rate Margin.
"Test Period" shall mean each period of four consecutive fiscal
quarters then last ended, in each case taken as one accounting period, with the
first Test Period to end on the last day of the fiscal quarter ending June 30,
1999.
"Total Commitment" shall mean the sum of the Total Term Loan
Commitment and the Total Revolving Loan Commitment.
"Total Revolving Loan Commitment" shall mean the sum of the Revolving
Loan Commitments of each of the Banks.
"Total Term Loan Commitment" shall mean the sum of the Term Loan
Commitments of each of the Banks.
"Total Unutilized Revolving Loan Commitment" shall mean, at any time,
(i) the Total Revolving Loan Commitment at such time less (ii) the sum of the
aggregate principal amount of all Revolving Loans and Swingline Loans
outstanding at such time plus the Letter of Credit Outstandings at such time.
"Tranche" shall mean the respective facility and commitments utilized
in making Loans hereunder, with there being two separate Tranches, I.E., Term
Loans and Revolving Loans.
"Transaction" shall mean, collectively, (i) the consummation of the
Acquisition, (ii) the consummation of the Seller Financing, (iii) the repayment
of all amounts owing under the Existing Credit Agreement (including accrued but
unpaid interest and fees) and the consummation of the Refinancing, (iv) the
entering into of the Credit Documents and the incurrence of all Loans and
issuance of all Letters of Credit on the Restatement Effective Date and (v) the
payment of fees and expenses in connection with the foregoing.
"Transaction Documents" shall mean the Acquisition Documents, the
Seller Financing Documents, the Refinancing Documents and all other documents,
agreements and instruments (other than the Credit Documents) executed in
connection with the Transaction.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, I.E., a Base Rate Loan or a Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
the Plan as of the close of its most recent plan year exceeds the fair market
value of the assets allocable thereto, each determined in accordance with
Statement of Financial Accounting Standards No. 87, based upon the actuarial
assumptions used by the Plan's actuary in the most recent annual valuation of
the Plan.
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"Unpaid Drawing" shall have the meaning provided in Section 2.04(a).
"Unutilized Revolving Loan Commitment" with respect to any RL Bank at
any time shall mean such RL Bank's Revolving Loan Commitment at such time less
the sum of (i) the aggregate outstanding principal amount of all Revolving Loans
made by such RL Bank and (ii) such RL Bank's Percentage of the Letter of Credit
Outstandings at such time.
"US Borrower" shall have the meaning provided in the first paragraph
of this Agreement.
"U.S. Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States of America.
"Wholly-Owned Domestic Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person which is a Domestic Subsidiary.
"Wholly-Owned Foreign Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person which is a Foreign Subsidiary.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying shares
and/or other nominal amounts of shares required to be held other than by such
Person under applicable law) is at the time owned by such Person and/or one or
more Wholly-Owned Subsidiaries of such Person and (ii) any partnership,
association, joint venture or other entity in which such Person and/or one or
more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such
time.
"Written" (whether lower or upper case) or "in writing" shall mean any
form of written communication or a communication by means of telex, facsimile
device, telegraph or cable.
SECTION 12. THE AGENT.
12.01 APPOINTMENT. Each Bank hereby irrevocably designates and
appoints BTCo as Agent of such Bank (such term to include for purposes of this
Section 12, BTCo acting as Collateral Agent) to act as specified herein and in
the other Credit Documents, and each such Bank hereby irrevocably authorizes
BTCo as the Agent to take such action on its behalf under the provisions of this
Agreement and the other Credit Documents and to exercise such powers and perform
such duties as are expressly delegated to the Agent by the terms of this
Agreement and the other Credit Documents, together with such other powers as are
reasonably incidental thereto. The Agent agrees to act as such upon the express
conditions contained in this Section 12. Notwithstanding any provision to the
contrary elsewhere in this Agreement or in any other Credit Document, the Agent
shall not have any duties or responsibilities, except those expressly set forth
herein or in the other Credit Documents, or any fiduciary relationship with any
Bank, and no implied covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into this Agreement or otherwise exist against the
Agent. The provisions of this Section 12 are solely for
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the benefit of the Agent and the Banks, and neither Parent nor any of its
Subsidiaries shall have any rights as a third party beneficiary of any of the
provisions hereof. In performing its functions and duties under this
Agreement, the Agent shall act solely as agent of the Banks and the Agent
does not assume and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for Parent or any of its Subsidiaries.
12.02 DELEGATION OF DUTIES. The Agent may execute any of its duties
under this Agreement or any other Credit Document by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
12.03 EXCULPATORY PROVISIONS. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person in its capacity as Agent under or in connection with this Agreement or
the other Credit Documents (except for its or such Person's own gross negligence
or willful misconduct) or (ii) responsible in any manner to any of the Banks for
any recitals, statements, representations or warranties made by Parent, any of
its Subsidiaries or any of their respective officers contained in this Agreement
or the other Credit Documents, any other Document or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Document or for
any failure of Parent or any of its Subsidiaries or any of their respective
officers to perform its obligations hereunder or thereunder. The Agent shall
not be under any obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or the other Documents, or to inspect the properties, books
or records of Parent or any of its Subsidiaries. The Agent shall not be
responsible to any Bank for the effectiveness, genuineness, validity,
enforceability, collectability or sufficiency of this Agreement or any other
Document or for any representations, warranties, recitals or statements made
herein or therein or made in any written or oral statement or in any financial
or other statements, instruments, reports, certificates or any other documents
in connection herewith or therewith furnished or made by the Agent to the Banks
or by or on behalf of Parent or any of its Subsidiaries to the Agent or any Bank
or be required to ascertain or inquire as to the performance or observance of
any of the terms, conditions, provisions, covenants or agreements contained
herein or therein or as to the use of the proceeds of the Loans or of the
existence or possible existence of any Default or Event of Default.
12.04 RELIANCE BY AGENT. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, facsimile, telex
or teletype message, statement, order or other document or conversation
reasonably believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to Parent or any of its
Subsidiaries), independent accountants and other experts selected by the Agent.
The Agent shall be fully justified in failing or refusing to take any action
under this Agreement or any other Credit Document unless it shall first receive
such advice or concurrence of the Required Banks as it deems appropriate or it
shall
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first be indemnified to its satisfaction by the Banks 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 Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Credit Documents in accordance with a request of the Required Banks, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Banks.
12.05 NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default unless
the Agent has actually received notice from a Bank, Parent or the US Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default." In the event that the Agent
receives such a notice, the Agent shall give prompt notice thereof to the Banks.
The Agent shall take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Required Banks; PROVIDED, that,
unless and until the Agent shall have received such directions, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Banks.
12.06 NONRELIANCE ON AGENT AND OTHER BANKS. Each Bank expressly
acknowledges that neither the Agent nor any of its respective officers,
directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by the Agent hereinafter
taken, including any review of the affairs of Parent or any of its Subsidiaries,
shall be deemed to constitute any representation or warranty by the Agent to any
Bank. Each Bank represents to the Agent that it has, independently and without
reliance upon the Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, assets, operations, property, financial and
other condition, prospects and creditworthiness of the Acquired Business,
Parent, either Borrower or their respective Subsidiaries and made its own
decision to make its Loans hereunder and enter into this Agreement. Each Bank
also represents that it will, independently and without reliance upon the Agent
or any other Bank, 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 to make
such investigation as it deems necessary to inform itself as to the business,
assets, operations, property, financial and other condition, prospects and
creditworthiness of the Acquired Business, Parent, either Borrower or their
respective Subsidiaries. The Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the business,
operations, assets, property, financial and other condition, prospects or
creditworthiness of the Acquired Business, Parent, either Borrower or their
respective Subsidiaries which may come into the possession of the Agent or any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates.
12.07 INDEMNIFICATION. The Banks agree to indemnify the Agent in its
capacity as such ratably according to their respective "percentages" as used in
determining the Required Banks at such time or, if the Commitments have
terminated and all Loans have been repaid in full, as determined immediately
prior to such termination and repayment (with such "percentages" to be
determined as if there are no Defaulting Banks), from and against any and all
liabilities,
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obligations, losses, damages, penalties, actions, judgments, suits,
costs, reasonable expenses or disbursements of any kind whatsoever which may at
any time (including, without limitation, at any time following the payment of
the Obligations) be imposed on, incurred by or asserted against the Agent in its
capacity as such in any way relating to or arising out of this Agreement or any
other Credit Document, or any documents contemplated by or referred to herein or
the transactions contemplated hereby or any action taken or omitted to be taken
by the Agent under or in connection with any of the foregoing, but only to the
extent that any of the foregoing is not paid by Parent or any of its
Subsidiaries; PROVIDED, that no Bank shall be liable to the Agent for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
solely from the gross negligence or willful misconduct of the Agent. If any
indemnity furnished to the Agent for any purpose shall, in the opinion of the
Agent be insufficient or become impaired, the Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished. The agreements in this Section 12.07
shall survive the payment of all Obligations.
12.08 AGENT IN ITS INDIVIDUAL CAPACITY. The Agent and its affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with Parent and its Subsidiaries as though the Agent were not the Agent
hereunder. With respect to the Loans made by it and all Obligations owing to
it, the Agent shall have the same rights and powers under this Agreement as any
Bank and may exercise the same as though it were not the Agent and the terms
"Bank" and "Banks" shall include the Agent in its individual capacity.
12.09 HOLDERS. The Agent may deem and treat the payee of any Note as
the owner thereof for all purposes hereof unless and until a written notice of
the assignment, transfer or endorsement thereof, as the case may be, shall have
been filed with the Agent. Any request, authority or consent of any Person or
entity who, at the time of making such request or giving such authority or
consent, is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee, assignee or indorsee, as the case may be, of such
Note or of any Note or Notes issued in exchange therefor.
12.10 RESIGNATION OF THE AGENT. (a) The Agent may resign from the
performance of all its functions and duties hereunder and/or under the other
Credit Documents at any time by giving 30 Business Days' prior written notice to
the US Borrower and the Banks. Such resignation shall take effect upon the
appointment of a successor Agent pursuant to clauses (b) and (c) below or as
otherwise provided below.
(b) Upon any such notice of resignation, the Required Banks shall
appoint a successor Agent hereunder or thereunder who shall be a commercial bank
or trust company reasonably acceptable to the Borrower.
(c) If a successor Agent shall not have been so appointed within such
30 Business Day period, the Agent, with the consent of the Borrower (which
consent shall not be unreasonably withheld or delayed), shall then appoint a
successor Agent who shall serve as Agent hereunder or thereunder until such
time, if any, as the Required Banks appoint a successor Agent as provided above.
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(d) If no successor Agent has been appointed pursuant to clause (b)
or (c) above by the 30th Business Day after the date such notice of resignation
was given by the Agent, the Agent's resignation shall become effective and the
Required Banks shall thereafter perform all the duties of the Agent hereunder
and/or under any other Credit Document until such time, if any, as the Banks
appoint a successor Agent as provided above.
SECTION 13. MISCELLANEOUS.
13.01 PAYMENT OF EXPENSES, ETC. The US Borrower agrees to: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Agent (including, without
limitation, the reasonable fees and disbursements of White & Case and local
counsel) in connection with the negotiation, preparation, execution and delivery
of the Credit Documents and the documents and instruments referred to therein
and any amendment, waiver or consent relating thereto and in connection with the
Agent's syndication efforts with respect to this Agreement; (ii) pay all
reasonable out-of-pocket costs and expenses of the Agent, each Letter of Credit
Issuer and each of the Banks in connection with the enforcement of the Credit
Documents and the documents and instruments referred to therein and, after an
Event of Default shall have occurred and be continuing, the protection of the
rights of the Agent, each Letter of Credit Issuer and each of the Banks
thereunder (including, without limitation, the reasonable fees and disbursements
of counsel (including in-house counsel) for the Agent, for each Letter of Credit
Issuer and for each of the Banks); (iii) pay and hold each of the Banks harmless
from and against any and all present and future stamp and other similar taxes
with respect to the foregoing matters and save each of the Banks harmless from
and against any and all liabilities with respect to or resulting from any delay
or omission (other than to the extent attributable to such Bank) to pay such
taxes; and (iv) indemnify the Agent, the Collateral Agent, each Letter of Credit
Issuer and each Bank, their respective officers, directors, employees,
representatives and agents from and hold each of them harmless against any and
all losses, liabilities, claims, damages or expenses incurred by any of them
(but excluding any such losses, liabilities, claims, damages or expenses to the
extent incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified), as a result of, or arising out of, or in any way
related to, or by reason of, (a) any investigation, litigation or other
proceeding (whether or not the Agent, the Collateral Agent, any Letter of Credit
Issuer or any Bank is a party thereto and whether or not any such investigation,
litigation or other proceeding is between or among the Agent, the Collateral
Agent, any Letter of Credit Issuer, any Bank, any Credit Party or any third
Person or otherwise) related to the entering into and/or performance of this
Agreement or any other Document or the use of the proceeds of any Loans
hereunder or the Transaction or the consummation of any other transactions
contemplated in any Document or (b) the actual or alleged presence of Hazardous
Materials in the air, surface water or groundwater or on the surface or
subsurface of any Real Property or any Environmental Claim, in each case,
including, without limitation, the reasonable fees and disbursements of counsel
and independent consultants incurred in connection with any such investigation,
litigation or other proceeding. Notwithstanding the foregoing, neither Parent
nor any of its Subsidiaries shall be liable to any Indemnified Party hereunder
with respect to any Hazardous Materials that are first manufactured, emitted,
generated, treated, released, stored or disposed of on the Real Property, and
any violation of Environmental Laws that first occurs on or
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with respect to the Real Property, after the Real Property is transferred to
Lender or its successor by foreclosure sale, deed in lieu of foreclosure, or
similar transfer, except to the extent such manufacture, emission, release,
generation, treatment, storage or disposal or violation is actually caused by
Parent or any Subsidiary.
13.02 RIGHT OF SETOFF. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, the Agent, each Letter
of Credit Issuer and each Bank is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to Parent
or any of its Subsidiaries or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and apply any and all deposits
(general or special) and any other Indebtedness at any time held or owing by the
Agent, such Letter of Credit Issuer or such Bank (including, without limitation,
by branches and agencies of the Agent, such Letter of Credit Issuer and such
Bank wherever located) to or for the credit or the account of Parent or any of
its Subsidiaries against and on account of the Obligations of either Borrower or
any of its Subsidiaries to the Agent, such Letter of Credit Issuer or such Bank
under this Agreement or under any of the other Credit Documents, including,
without limitation, all interests in Obligations of either Borrower or any of
its Subsidiaries purchased by such Bank pursuant to Section 13.06(b), and all
other claims of any nature or description arising out of or connected with this
Agreement or any other Credit Document, irrespective of whether or not the
Agent, such Letter of Credit Issuer or such Bank shall have made any demand
hereunder and although said Obligations shall be contingent or unmatured.
Notwithstanding anything to the contrary contained in this Section 13.02, no
Bank shall exercise any such right of set-off without the prior consent of the
Agent or the Required Banks if, and so long as, the Obligations shall be secured
by any Real Property located in the State of California, it being understood and
agreed, however, that this sentence is for the sole benefit of the Letter of
Credit Issuers and the Banks and may be amended, modified or waived in any
respect by the Required Banks without the requirement of prior notice to or
consent by any Credit Party and does not constitute a waiver of any rights
against any Credit Party or against any Collateral.
13.03 NOTICES. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered, if to any Credit Party,
at the address specified opposite its signature below or in the other relevant
Credit Documents, as the case may be; if to any Bank, at its address specified
for such Bank on Annex II; or, at such other address as shall be designated by
any party in a written notice to the other parties hereto. All such notices and
communications shall be mailed, telegraphed, telexed, telecopied or cabled or
sent by overnight courier, and shall be effective when received.
13.04 BENEFIT OF AGREEMENT. (a) This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; PROVIDED, HOWEVER, neither Borrower may
assign or transfer any of its rights, obligations or interest hereunder or under
any other Credit Document without the prior written consent of the Banks and,
PROVIDED FURTHER, that, although any Bank may transfer, assign or grant
participations
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in its rights hereunder, such Bank shall remain a "Bank" for all purposes
hereunder (and may not transfer or assign all or any portion of its
Commitments hereunder except as provided in Section 13.04(b)) and the
transferee, assignee or participant, as the case may be, shall not constitute
a "Bank" hereunder and, PROVIDED FURTHER, that no Bank shall transfer or
grant any participation under which the participant shall have rights to
approve any amendment to or waiver of this Agreement or any other Credit
Document except to the extent such amendment or waiver would (i) extend the
final scheduled maturity of any Loan, Note or Letter of Credit (unless such
Letter of Credit is not extended beyond the relevant Maturity Date) in which
such participant is participating, or reduce the rate or extend the time of
payment of interest or Fees thereon (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the participant's
participation over the amount thereof then in effect (it being understood
that a waiver of any Default or Event of Default or of a mandatory reduction
in the Total Commitment shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan shall be
permitted without the consent of any participant if the participant's
participation is not increased as a result thereof), (ii) consent to the
assignment or transfer by either Borrower of any of its rights and
obligations under this Agreement or (iii) release all or substantially all of
the Collateral under all of the Security Documents (except as expressly
provided in the Credit Documents) supporting the Loans hereunder in which
such participant is participating. In the case of any such participation,
the participant shall not have any rights under this Agreement or any of the
other Credit Documents (the participant's rights against such Bank in respect
of such participation to be those set forth in the agreement executed by such
Bank in favor of the participant relating thereto) and all amounts payable by
each Borrower hereunder shall be determined as if such Bank had not sold such
participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank together
with one or more other Banks) may (x) assign all or a portion of its Revolving
Loan Commitment (and related outstanding Obligations hereunder) and/or its
outstanding Term Loans (or, if prior to the Restatement Effective Date, Term
Loan Commitments) to its parent company and/or any affiliate of such Bank which
is at least 50% owned by such Bank or its parent company or to one or more Banks
or (y) assign all, or if less than all, a portion equal to at least $5,000,000
in the aggregate for the assigning Bank or assigning Banks, of such Revolving
Loan Commitments (and related outstanding Obligations hereunder) and/or
outstanding principal amount of Term Loans (or, if prior to the Restatement
Effective Date, Term Loan Commitments) to one or more Eligible Transferees, each
of which assignees shall become a party to this Agreement as a Bank by execution
of an Assignment and Assumption Agreement, PROVIDED that (i) at such time Annex
I shall be deemed modified to reflect the Commitments (and/or outstanding Term
Loans, as the case may be) of such new Bank and of the existing Banks, (ii) upon
surrender of the old Notes (or the furnishing of a standard indemnity letter
from the respective assigning Bank in respect of any lost Notes), new Notes will
be issued, at the US Borrower's expense, to such new Bank and to the assigning
Bank, such new Notes to be in conformity with the requirements of Section 1.05
(with appropriate modifications) to the extent needed to reflect the revised
Commitments (and/or outstanding Term Loans, as the case may be), (iii) the
consent of the Agent shall be required in connection with any such assignment
pursuant to clause (y) of this Section 13.04(b) (which consent shall not be
unreasonably withheld), (iv) the consent of the Borrower, BTCo and the each
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Letter of Credit Issuer shall be required in connection with any assignment of
Revolving Loan Commitments pursuant to this Section 13.04(b) (which consent
shall not be unreasonably withheld or delayed) and (v) the Agent shall receive
at the time of each assignment, from the assigning or assignee Bank, the payment
of a non-refundable assignment fee of $3,500 and, PROVIDED FURTHER, that such
transfer or assignment will not be effective until recorded by the Agent on the
Register pursuant to Section 13.17. To the extent of any assignment pursuant to
this Section 13.04(b), the assigning Bank shall be relieved of its obligations
hereunder with respect to its assigned Commitments. At the time of each
assignment pursuant to this Section 13.04(b) to a Person which is not already a
Bank hereunder and which is not a United States person (as such term is defined
in Section 7701(a)(30) of the Code) for Federal income tax purposes, the
respective assignee Bank shall provide to the Borrower and the Agent the
appropriate Internal Revenue Service Forms (and, if applicable a Section
4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent that an
assignment of all or any portion of a Bank's Commitment and related outstanding
Obligations pursuant to Section 1.13 or this Section 13.04(b) would, at the time
of such assignment, result in increased costs under Section 1.10, 1.11, 2.05 or
4.04 from those being charged by the respective assigning Bank prior to such
assignment, then the Borrower shall not be obligated to pay such increased costs
(although the Borrower shall be obligated to pay any other increased costs of
the type described above resulting from changes after the date of the respective
assignment). Notwithstanding anything to the contrary contained above, at any
time after the termination of the Total Revolving Loan Commitment, if any
Revolving Loans or Letters of Credit remain outstanding, assignments may be made
as provided above, except that the respective assignment shall be of a portion
of the outstanding Revolving Loans of the respective RL Bank and its
participation in Letters of Credit and its obligation to make Mandatory
Borrowings, although any such assignment effected after the termination of the
Total Revolving Loan Commitment shall not release the assigning RL Bank from its
obligations as a Participant with respect to outstanding Letters of Credit or to
fund its share f any Mandatory Borrowing (although the respective assignee may
agree, as between itself and the respective assigning RL Bank, that it shall be
responsible for such amounts).
(c) Nothing in this Agreement shall prevent or prohibit any Bank from
pledging its Loans and Notes hereunder to a Federal Reserve Bank in support of
borrowings made by such Bank from such Federal Reserve Bank.
13.05 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of the Agent or any Bank in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
any Credit Party and the Agent or any Bank shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, power or privilege
hereunder or under any other Credit Document preclude any other or further
exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the Agent or any
Bank would otherwise have. No notice to or demand on any Credit Party in any
case shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the Agent
or the Banks to any other or further action in any circumstances without notice
or demand.
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13.06 PAYMENTS PRO RATA. (a) The Agent agrees that promptly after
its receipt of each payment from or on behalf of any Credit Party in respect of
any Obligations of such Credit Party, it shall, except as otherwise provided in
this Agreement, distribute such payment to the Banks (other than any Bank that
has consented in writing to waive its PRO RATA share of such payment) PRO RATA
based upon their respective shares, if any, of the Obligations with respect to
which such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings or Fees, of a sum which with respect to the
related sum or sums received by other Banks is in a greater proportion than the
total of such Obligation then owed and due to such Bank bears to the total of
such Obligation then owed and due to all of the Banks immediately prior to such
receipt, then such Bank receiving such excess payment shall purchase for cash
without recourse or warranty from the other Banks an interest in the Obligations
of the respective Credit Party to such Banks in such amount as shall result in a
proportional participation by all of the Banks in such amount; PROVIDED, that if
all or any portion of such excess amount is thereafter recovered from such Bank,
such purchase shall be rescinded and the purchase price restored to the extent
of such recovery, but without interest.
13.07 CALCULATIONS; COMPUTATIONS. (a) The financial statements to
be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by Parent or the US Borrower to the Banks); PROVIDED, that all computations
determining compliance with Sections 4.02, 8.14 and 9, including definitions
used therein shall, in each case, utilize accounting principles and policies in
effect at the time of the preparation of, and in conformity with those used to
prepare, the December 31, 1995 financial statements of Tri-Star Aerospace
delivered to the Banks pursuant to Section 7.10(b); PROVIDED FURTHER, that to
the extent expressly required pursuant to the provisions of this Agreement,
certain calculations shall be made on a PRO FORMA Basis.
(b) All computations of interest and Fees hereunder shall be made on
the actual number of days elapsed over a year of 360 days.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE. (a) THIS
AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK. Any legal action or proceeding
with respect to this Agreement or any other Credit 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
Credit Party hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each Credit Party hereby further irrevocably waives any claim that any
such courts lack jurisdiction over such Credit Party, and
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agrees not to plead or claim, in any legal action or proceeding with respect
to this Agreement or any other Credit Document brought in any of the
aforesaid courts, that any such court lacks jurisdiction over such Credit
Party. Each Credit Party further irrevocably consents to the service of
process in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to such Credit Party, at its
address for notices pursuant to Section 13.03, such service to become
effective 30 days after such mailing. Each Credit Party hereby irrevocably
waives any objection to such service of process and further irrevocably
waives and agrees not to plead or claim in any action or proceeding commenced
hereunder or under any other Credit Document that service of process was in
any way invalid or ineffective. Nothing herein shall affect the right of the
Agent, any Bank 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 Credit Party in any other jurisdiction.
(b) Each Credit Party hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this Agreement or
any other Credit Document brought in the courts referred to in clause (a) above
and hereby further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
13.09 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts executed by all the parties hereto shall be lodged with Parent, the
US Borrower and the Agent.
13.10 EFFECTIVENESS. This Agreement shall become effective on the
date (the "Restatement Effective Date") on which (i) Parent, Holdings the
Borrowers, the Agent and each of the Banks shall have signed a counterpart
hereof (whether the same or different counterparts) and shall have delivered the
same to the Agent at the Notice Office or, in the case of the Banks, shall have
given to the Agent telephonic (confirmed in writing), written, telex or
facsimile notice (actually received) at such office that the same has been
signed and mailed to it and (ii) each of the conditions set forth in Sections 5
and 6 of this Agreement have been met to the satisfaction of the Agent. The
Agent will give Parent, Holdings the Borrowers and each Bank prompt written
notice of the occurrence of the Restatement Effective Date.
13.11 HEADINGS DESCRIPTIVE. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
13.12 AMENDMENT OR WAIVER; ETC. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Banks, PROVIDED that no such change, waiver, discharge or termination
shall, without the consent of each Bank (other than a Defaulting Bank) (with
Obligations being directly affected thereby in the case of the following clause
(i)), (i)
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extend the time or amount of any Scheduled Repayment or the final scheduled
maturity of any Loan or Note or extend the stated maturity of any Letter of
Credit beyond the Revolving Loan Maturity Date, or reduce the rate or extend
the time of payment of interest or Fees thereon, or reduce the principal
amount thereof (it being understood that any amendment or modification to the
financial definitions in this Agreement shall not constitute a reduction in
any rate of interest or fees for purposes of this clause (i)), (ii) release
any Guarantor from the obligations of its respective Guaranty or release all
or substantially all of the Collateral (except as expressly provided in the
Security Documents) under all the Security Documents, (iii) amend, modify or
waive any provision of this Section 13.12, (iv) reduce the percentage
specified in the definition of Required Banks (it being understood that, with
the consent of the Required Banks, additional extensions of credit pursuant
to this Agreement may be included in the determination of the Required Banks
on substantially the same basis as the extensions of Term Loans and Revolving
Loan Commitments are included on the Restatement Effective Date) or (v)
consent to the assignment or transfer by the Borrower of any of its rights
and obligations under this Agreement; PROVIDED FURTHER, that no such change,
waiver, discharge or termination shall (w) increase the Commitments of any
Bank over the amount thereof then in effect without the consent of such Bank
(it being understood that waivers or modifications of conditions precedent,
covenants, Defaults or Events of Default or of a mandatory reduction in the
Total Commitment shall not constitute an increase of the Commitment of any
Bank, and that an increase in the available portion of any Commitment of any
Bank shall not constitute an increase in the Commitment of such Bank), (x)
without the consent of each Letter of Credit Issuer or BTCo as the case may
be, amend, modify or waive any provision of Section 2 or alter its rights or
obligations with respect to Letters of Credit or Swingline Loans, (y) without
the consent of the Agent, amend, modify or waive any provision of Section 12
as same applies to the Agent or any other provision as same relates to the
rights or obligations of the Agent and (z) without the consent of the
Collateral Agent, amend, modify or waive any provision relating to the rights
or obligations of the Collateral Agent.
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Banks is obtained but the consent of one or more of
such other Banks whose consent is required is not obtained, then the Borrower
shall have the right, so long as all non-consenting Banks whose individual
consent is required are treated as described in either clause (A) or (B) below,
to either (A) replace each such non-consenting Bank or Banks (or, at the option
of the Borrower if the respective Bank's consent is required with respect to
less than all Tranches of Loans (or related Commitments), to replace only the
respective Tranche of Commitments and/or Loans of the respective non-consenting
Bank which gave rise to the need to obtain such Bank's individual consent) with
one or more Replacement Banks pursuant to Section 1.13 so long as at the time of
such replacement, each such Replacement Bank consents to the proposed change,
waiver, discharge or termination or (B) terminate such non-consenting Bank's
Revolving Loan Commitment (if such Bank's consent is required as a result of its
Revolving Loan Commitment) and/or repay each Tranche of outstanding Loans of
such Bank which gave rise to the need to obtain such Bank's consent and/or cash
collateralize its applicable Percentage of the Letter of Credit of Outstandings,
in accordance with Sections 3.02(b) and/or 4.01(b), PROVIDED that, unless the
Commitments which are terminated and
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Loans which are repaid pursuant to preceding clause (B) are immediately
replaced in full at such time through the addition of new Banks or the
increase of the Commitments and/or outstanding Loans of existing Banks (who
in each case must specifically consent thereto), then in the case of any
action pursuant to preceding clause (B) the Required Banks (determined after
giving effect to the proposed action) shall specifically consent thereto,
PROVIDED FURTHER, that the Borrower shall not have the right to replace a
Bank, terminate its Commitments or repay its Loans solely as a result of the
exercise of such Bank's rights (and the withholding of any required consent
by such Bank) pursuant to the second proviso to Section 13.12(a).
13.13 SURVIVAL. All indemnities set forth herein including, without
limitation, in Section 1.10, 1.11, 2.05, 4.04, 12.07 or 13.01, shall survive the
execution and delivery of this Agreement and the making and repayment of the
Loans.
13.14 DOMICILE OF LOANS AND COMMITMENTS. Each Bank may transfer and
carry its Loans and/or Commitments at, to or for the account of any branch
office, subsidiary or affiliate of such Bank; PROVIDED, that the US Borrower
shall not be responsible for costs arising under Section 1.10, 1.11, 2.05 or
4.04 resulting from any such transfer (other than a transfer pursuant to Section
1.12) to the extent such costs would not otherwise be applicable to such Bank in
the absence of such transfer.
13.15 CONFIDENTIALITY. (a) Each of the Banks agrees that it will
use its reasonable efforts not to disclose without the prior consent of the US
Borrower (other than to its directors, employees, auditors, counsel or other
professional advisors, to affiliates or to another Bank if the Bank or such
Bank's holding or parent company in its sole discretion determines that any such
party should have access to such information) any information with respect to
Parent or any of its Subsidiaries which is furnished pursuant to this Agreement;
PROVIDED, that any Bank may disclose any such information (a) as has become
generally available to the public, (b) as may be required or appropriate (x) in
any report, statement or testimony submitted to any municipal, state or Federal
regulatory body having or claiming to have jurisdiction over such Bank or to the
Federal Reserve Board or the Federal Deposit Insurance Corporation or similar
organizations (whether in the United States or elsewhere) or their successors or
(y) in connection with any request or requirement of any such regulatory body,
(c) as may be required or appropriate in response to any summons or subpoena or
in connection with any litigation, (d) to comply with any law, order, regulation
or ruling applicable to such Bank, and (e) to any prospective transferee in
connection with any contemplated transfer of any of the Notes or any interest
therein by such Bank; PROVIDED, that such prospective transferee agrees to be
bound by this Section 13.15 to the same extent as such Bank.
(b) Each of Parent and the other Credit Parties party hereto hereby
acknowledge and agree that each Bank may share with any of its affiliates any
information related to Parent or any of its Subsidiaries (including, without
limitation, any nonpublic customer information regarding the creditworthiness of
Parent and its Subsidiaries), PROVIDED that such Persons shall be subject to the
provisions of this Section 13.15 to the same extent as such Bank.
13.16 WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY
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ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY.
13.17 REGISTER. Each Borrower hereby designates the Agent to serve
as such Borrower's agent, solely for purposes of this Section 13.17, to maintain
a register (the "Register") on which it will record the Commitments from time to
time of each of the Banks, the Loans made by each of the Banks and each
repayment in respect of the principal amount of the Loans of each Bank. Failure
to make any such recordation, or any error in such recordation shall not affect
the respective Borrower's obligations in respect of such Loans. With respect to
any Bank, the transfer of the Commitments of such Bank and the rights to the
principal of, and interest on, any Loan made pursuant to such Commitments shall
not be effective until such transfer is recorded on the Register maintained by
the Agent with respect to ownership of such Commitment and Loans and prior to
such recordation all amounts owing to the transferor with respect to such
Commitment and Loans shall remain owing to the transferor. The registration of
assignment or transfer of all or part of any Commitment and Loans shall be
recorded by the Agent on the Register only upon the acceptance by the Agent of a
properly executed and delivered Assignment and Assumption Agreement pursuant to
Section 13.04(b). Coincident with the delivery of such an Assignment and
Assumption Agreement to the Agent for acceptance and registration of assignment
or transfer of all or part of a Loan, or as soon thereafter as practicable, the
assigning or transferor Bank shall surrender the Note evidencing such Loan, and
thereupon one or more new Notes in the same aggregate principal amount shall be
issued to the assigning or transferor Bank and/or the new Bank. The US Borrower
agrees to indemnify the Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Agent in performing its duties under this Section
13.17.
13.18 JUDGMENT CURRENCY. (a) The Credit Parties' obligations
hereunder and under the other Credit Documents to make payments in U.S. Dollars
shall not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or converted into any currency other than U.S. Dollars,
except to the extent that such tender or recovery results in the effective
receipt by the Agent, the Collateral Agent or the respective Bank of the full
amount of U.S. Dollars expressed to be payable to the Agent, the Collateral
Agent or such Bank under this Agreement or the other Credit Documents. If, for
the purpose of obtaining or enforcing judgment against any Credit Party in any
court or in any jurisdiction, it becomes necessary to convert from any currency
other than U.S. Dollars (such other currency being hereinafter referred to as
the "Judgment Currency") an amount due in U.S. Dollars, the conversion shall be
made at the rate of exchange (as quoted by the Agent or if the Agent does not
quote a rate of exchange on such currency, by a known dealer in such currency
designated by the Agent and reasonably acceptable to the relevant Borrower) plus
any premium and costs payable in connection with the purchase of U.S. Dollars,
in each case determined as of the Business Day immediately preceding the day on
which the judgment is given (such Business Day being hereinafter referred to as
the "Judgment Currency Conversion Date").
(b) If there is a change in the prevailing rate of exchange between
the Judgment Currency Conversion Date and the date of actual payment of the
amount due, the
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Borrowers covenant and agree to pay, or cause to be paid, such additional
amounts, if any (but in any event not a lesser amount) as may be necessary to
ensure that the amount paid in the Judgment Currency, when converted at the
rate of exchange prevailing on the date of payment, will produce the amount
of U.S. Dollars which could have been purchased with the amount of Judgment
Currency stipulated in the judgment or judicial award at the rate of exchange
determined on the Judgment Currency Conversion Date
SECTION 14. PARENT GUARANTY.
14.01 THE GUARANTY. In order to induce the Banks to enter into this
Agreement and to extend credit hereunder and in recognition of the direct
benefits to be received by Parent, Holdings and (with respect to the Guaranteed
Obligations of the French Borrower only) the US Borrower (each a "Parent
Guarantor" and collectively, the "Parent Guarantors") from the proceeds of the
Loans and the issuance of the Letters of Credit, each Parent Guarantor hereby
agrees with the Banks as follows: each Parent Guarantor hereby jointly and
severally unconditionally and irrevocably guarantees, as primary obligor and not
merely as surety the full and prompt payment when due, whether upon maturity,
acceleration or otherwise, of any and all of the Guaranteed Obligations of the
Borrowers (or in the case of the US Borrower, the French Borrower) to the
Guaranteed Creditors. If any or all of the Guaranteed Obligations of the
Borrowers (or in the case of the US Borrower, the French Borrower) to the
Guaranteed Creditors becomes due and payable hereunder, each Parent Guarantor
unconditionally promises to pay such indebtedness to the Guaranteed Creditors,
or order, on demand, together with any and all expenses which may be incurred by
the Guaranteed Creditors in collecting any of the Guaranteed Obligations. If
claim is ever made upon any Guaranteed Creditor for repayment or recovery of any
amount or amounts received in payment or on account of any of the Guaranteed
Obligations and any of the aforesaid payees repays all or part of said amount by
reason of (i) any judgment, decree or order of any court or administrative body
having jurisdiction over such payee or any of its property or (ii) any
settlement or compromise of any such claim effected by such payee with any such
claimant (including the Borrowers (or in the case of the US Borrower, the French
Borrower)), then and in such event each Parent Guarantor agrees that any such
judgment, decree, order, settlement or compromise shall be binding upon each
Parent Guarantor, notwithstanding any revocation of this Guaranty or any other
instrument evidencing any liability of the Borrowers (or in the case of the US
Borrower, the French Borrower), and each Parent Guarantor shall be and remain
liable to the aforesaid payees hereunder for the amount so repaid or recovered
to the same extent as if such amount had never originally been received by any
such payee.
14.02 BANKRUPTCY. Additionally, each Parent Guarantor
unconditionally and irrevocably guarantees the payment of any and all of the
Guaranteed Obligations of the Borrowers (or in the case of the US Borrower, the
French Borrower) to the Guaranteed Creditors whether or not due or payable by
the Borrowers (or in the case of the US Borrower, the French Borrower) upon the
occurrence of any of the events specified in Section 10.05, and unconditionally
promises to pay such indebtedness to the Guaranteed Creditors, or order, on
demand, in lawful money of the United States.
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14.03 NATURE OF LIABILITY. The liability of each Parent Guarantor
hereunder is exclusive and independent of any security for or other guaranty of
the Guaranteed Obligations of the Borrowers (or in the case of the US Borrower,
the French Borrower) whether executed by such Parent Guarantor, any other
guarantor or by any other party, and the liability of each Parent Guarantor
hereunder is not affected or impaired by (a) any direction as to application of
payment by the Borrowers (or in the case of the US Borrower, the French
Borrower) or by any other party, or (b) any other continuing or other guaranty,
undertaking or maximum liability of a guarantor or of any other party as to the
Guaranteed Obligations of the Borrowers (or in the case of the US Borrower, the
French Borrower), or (c) any payment on or in reduction of any such other
guaranty or undertaking, or (d) any dissolution, termination or increase,
decrease or change in personnel by the Borrowers (or in the case of the US
Borrower, the French Borrower), or (e) any payment made to the Guaranteed
Creditors on the Guaranteed Obligations which any such Guaranteed Creditor
repays to the Borrowers (or in the case of the US Borrower, the French Borrower)
pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and each Parent Guarantor waives
any right to the deferral or modification of its obligations hereunder by reason
of any such proceeding.
14.04 INDEPENDENT OBLIGATION. The obligations of each Parent
Guarantor hereunder are independent of the obligations of any other guarantor,
any other party or the Borrowers (or in the case of the US Borrower, the French
Borrower), and a separate action or actions may be brought and prosecuted
against each Parent Guarantor whether or not action is brought against any other
guarantor, any other party or the Borrowers (or in the case of the US Borrower,
the French Borrower) and whether or not any other guarantor, any other party or
the Borrowers (or in the case of the US Borrower, the French Borrower) be joined
in any such action or actions. Each Parent Guarantor waives, to the full extent
permitted by law, the benefit of any statute of limitations affecting its
liability hereunder or the enforcement thereof. Any payment by the Borrowers
(or in the case of the US Borrower, the French Borrower) or other circumstance
which operates to toll any statute of limitations as to the Borrowers (or in the
case of the US Borrower, the French Borrower) shall operate to toll the statute
of limitations as to each Parent Guarantor.
14.05 AUTHORIZATION. Each Parent Guarantor authorizes the
Guaranteed Creditors without notice or demand (except as shall be required by
applicable statute and cannot be waived), and without affecting or impairing its
liability hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew, increase, accelerate or alter, any of
the Guaranteed Obligations (including any increase or decrease in the rate
of interest thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and the Guaranty herein made
shall apply to the Guaranteed Obligations as so changed, extended, renewed
or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or
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howsoever securing, the Guaranteed Obligations or any liabilities
(including any of those hereunder) incurred directly or indirectly in
respect thereof or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against the
Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, guarantors, the
Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower to its creditors other than
the Guaranteed Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Guaranteed Creditors
regardless of what liability or liabilities of the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, this Agreement, any other Credit Document or any of the
instruments or agreements referred to herein or therein, or otherwise
amend, modify or supplement this Agreement, any other Credit Document or
any of such other instruments or agreements; and/or
(h) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of
any Parent Guarantor from its liabilities under this Guaranty.
14.06 RELIANCE. It is not necessary for the Guaranteed Creditors to
inquire into the capacity or powers of the Borrower or the officers, directors,
partners or agents acting or purporting to act on their behalf, and any
Guaranteed Obligations made or created in reliance upon the professed exercise
of such powers shall be guaranteed hereunder.
14.07 SUBORDINATION. Any of the indebtedness of the Borrower now or
hereafter owing to any Parent Guarantor is hereby subordinated to the Guaranteed
Obligations of the Borrower owing to the Guaranteed Creditors; and if the Agent
so requests at a time when an Event of Default exists, all such indebtedness of
the Borrower to any Parent Guarantor shall be collected, enforced and received
by such Parent Guarantor for the benefit of the Guaranteed Creditors and be paid
over to the Agent on behalf of the Guaranteed Creditors on account of the
Guaranteed Obligations of the Borrower to the Guaranteed Creditors, but without
affecting or impairing in any manner the liability of such Parent Guarantor
under the other provisions of this Guaranty. Prior to the transfer by any
Parent Guarantor of any note or negotiable instrument evidencing any of the
indebtedness of the Borrower to such Parent Guarantor, such Parent Guarantor
shall mark such note or negotiable instrument with a legend that the same is
subject to this subordination. Without limiting the generality of the
foregoing, each Parent Guarantor
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hereby agrees with the Guaranteed Creditors that it will not exercise any
right of subrogation which it may at any time otherwise have as a result of
this Guaranty (whether contractual, under Section 509 of the Bankruptcy Code
or otherwise) until all Guaranteed Obligations have been irrevocably paid in
full in cash.
14.08 WAIVER. (a) Each Parent Guarantor waives any right (except as
shall be required by applicable statute and cannot be waived) to require any
Guaranteed Creditor to (i) proceed against the Borrower, any other guarantor or
any other party, (ii) proceed against or exhaust any security held from the
Borrower, any other guarantor or any other party or (iii) pursue any other
remedy in any Guaranteed Creditor's power whatsoever. Each Parent Guarantor
waives any defense based on or arising out of any defense of the Borrower, any
other guarantor or any other party, other than payment in full of the Guaranteed
Obligations, based on or arising out of the disability of the Borrower, any
other guarantor or any other party, or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrower other than payment in full of the Guaranteed
Obligations. The Guaranteed Creditors may, at their election, foreclose on any
security held by the Agent, the Collateral Agent or any other Guaranteed
Creditor by one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right or remedy the
Guaranteed Creditors may have against the Borrower or any other party, or any
security, without affecting or impairing in any way the liability of any Parent
Guarantor hereunder except to the extent the Guaranteed Obligations have been
paid. Each Parent Guarantor waives any defense arising out of any such election
by the Guaranteed Creditors, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or other right or remedy of
such Parent Guarantor against the Borrower or any other party or any security.
(b) Each Parent Guarantor waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of new or
additional Guaranteed Obligations. Each Parent Guarantor assumes all
responsibility for being and keeping itself informed of the Borrower's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and extent of the
risks which such Parent Guarantor assumes and incurs hereunder, and agrees that
the Guaranteed Creditors shall have no duty to advise any Parent Guarantor of
information known to them regarding such circumstances or risks.
(c) Each Parent Guarantor understands, is aware and hereby
acknowledges that if at any time the Guaranteed Obligations are secured by real
property located in the State of California, such Parent Guarantor shall be
liable for the full amount of its liability hereunder notwithstanding
foreclosure on such real property by trustee sale or any other reason impairing
such Parent Guarantor's or any Guaranteed Creditor's right to proceed against
any Credit Party. Each Parent Guarantor hereby waives, to the fullest extent
permitted by law, all rights and benefits under Section 2809 of the California
Civil Code purporting to reduce a guarantor's obligation in proportion to the
principal obligation. Each Parent Guarantor hereby waives all rights and
benefits under Section 580a of the California Code of Civil Procedure purporting
to
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limit the amount of any deficiency judgment which might be recoverable
following the occurrence of a trustee's sale under a deed of trust and all
rights and benefits under Section 580b of the California Code of Civil
Procedure stating that no deficiency may be recovered on a real property
purchase money obligation. Each Parent Guarantor further understands, is
aware and hereby acknowledges that if the Guaranteed Creditors elect to
nonjudicially foreclose on any real property security located in the State of
California any right of subrogation of such Parent Guarantor against the
Guaranteed Creditors may be impaired or extinguished and that as a result of
such impairment or extinguishment of subrogation rights, such Parent
Guarantor may have a defense to a deficiency judgment arising out of the
operation of (i) Section 580d of the California Code of Civil Procedure which
states that no deficiency may be recovered on a note secured by a deed of
trust on real property in case such real property is sold under the power of
sale contained in such deed of trust, and (ii) related principles of
estoppel. To the fullest extent permitted by law, each Parent Guarantor
waives all rights and benefits and any defense arising out of the operation
of Section 580d of the California Code of Civil Procedure and related principles
of estoppel, even though such election operates to impair or extinguish any
right of reimbursement or subrogation or other right or remedy of such Parent
Guarantor against any Credit Party or any other party or any security. In
addition, each Parent Guarantor hereby waives, to the fullest extent permitted
by applicable law, without limiting the generality of the foregoing or any
other provision hereof, all rights and benefits which might otherwise be
available to such Parent Guarantor under Section 726 of the California Code
of Civil Procedure and all rights and benefits which might otherwise be
available to such Parent Guarantor under California Civil Code Sections 2809,
2810, 2815, 2819, 2821, 2839, 2845, 2848, 2849, 2850, 2899 and 3433.
(d) Each Parent Guarantor hereby further waives (to the fullest
extent permitted by applicable law): (1) all rights and defenses arising out of
an election of remedies by the Guaranteed Creditors, even though that election
of remedies, such as a nonjudicial foreclosure with respect to security for a
Guaranteed Obligation, has destroyed such Parent Guarantor's rights of
subrogation and reimbursement against the principal by the operation of Section
580d of the California Code of Civil Procedure or otherwise; (2) such Parent
Guarantor's rights of subrogation and reimbursement and any other rights and
defenses available to such Parent Guarantor by reason of the California Civil
Code Sections 2787 to 2855, inclusive, including, without limitation, (i) any
defenses such Parent Guarantor may have to the Guaranteed Obligations by reason
of an election of remedies by the Guaranteed Creditors and (ii) any rights or
defenses such Parent Guarantor may have by reason of protection afforded to the
principal borrower with respect to the obligation so guaranteed pursuant to the
antideficiency or other laws of the State of California limiting or discharging
the borrower's indebtedness, including, without limitation, California Code of
Civil Procedure Sections 580a, 580b, 580d or 726.
14.09 NATURE OF LIABILITY. It is the desire and intent of each
Parent Guarantor and the Guaranteed Creditors that this Guaranty shall be
enforced against each Parent Guarantor to the fullest extent permissible under
the laws and public policies applied in each jurisdiction in which enforcement
is sought. If, however, and to the extent that, the obligations of any Parent
Guarantor under this Guaranty shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent conveyances or
transfers), then the amount of the Guaranteed Obligations of such Parent
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Guarantor shall be deemed to be reduced and such Parent Guarantor shall pay the
maximum amount of the Guaranteed Obligations which would be permissible under
applicable law.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
ADDRESS:
TRISTAR AEROSPACE CO.
2527 Willowbrook Road
Dallas, Texas 75220-44420
Telephone No.: (214) 366-5000
Facsimile No.: (214) 366-5030 By /s/ DOUGLAS CHILDRESS
Attention: Doug Childress -------------------------------------
Title: Executive Vice President
& Chief Financial Officer
AEROSPACE ACQUISITION CORP.
By /s/ DOUGLAS CHILDRESS
-------------------------------------
Title: Executive Vice President
& Chief Financial Officer
TRISTAR AEROSPACE, INC.
By /s/ DOUGLAS CHILDRESS
-------------------------------------
Title: Executive Vice President
& Chief Financial Officer
TRISTAR AEROSPACE SARL
By /s/ QUENTIN BOURJEAURD
-------------------------------------
Title: Manager
BANKERS TRUST COMPANY,
Individually and as Agent
By /s/ GREGORY P. SHEFRIN
-------------------------------------
Title: Principal
<PAGE>
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H ASHBY
-------------------------------------
Title: Senior Manager
Loan Operations
BANK ONE, TEXAS, N.A.
By: /s/ WILLIAM B. WINTERS
-------------------------------------
Title: Vice President
COMERICA BANK
By: /s/ MARK B. GROVER
-------------------------------------
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ CHRIS R. HETTERLY
-------------------------------------
Title: Director
GUARANTY FEDERAL BANK, F.S.B.
By: /s/ ROBERT S. HAYS
-------------------------------------
Title: Vice President
<PAGE>
KEYBANK NATIONAL ASSOCIATION
By: /s/ SHARON F. WEINSTEIN
-------------------------------------
Title: Vice President
LASALLE NATIONAL BANK
By: /s/ STEVEN M. COHEN
-------------------------------------
Title: Senior Vice President
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ PERRY VAVOULES
-------------------------------------
Title: Senior Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ DAVID KINKELA
-------------------------------------
Title: Vice President
WELLS FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By: /s/ DREW KEITH
-------------------------------------
Title: Vice President
<PAGE>
Exhibit G
[CONFORMED
AS EXECUTED]
PLEDGE AGREEMENT
PLEDGE AGREEMENT (as amended, modified or supplemented from time to
time, this "Agreement"), dated as of March 24, 1999, made by each of the
undersigned pledgors (each a "Pledgor" and, together with any other entity that
becomes a pledgor hereunder pursuant to Section 25 hereof, the "Pledgors") to
BANKERS TRUST COMPANY, as Collateral Agent (the "Pledgee"), for the benefit of
the Secured Creditors (as defined below). Except as otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement (as defined
below) shall be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, TriStar Aerospace Co. ("Parent"), Aerospace Acquisition Corp.
("Holdings"), TriStar Aerospace Inc. (the "US Borrower"), TriStar Aerospace SARL
(the "French Borrower" and, together with the US Borrower, the "Borrowers"), the
banks from time to time party thereto (the "Banks"), and Bankers Trust Company,
as Agent (together with any successor Agent, the "Agent"), have entered into an
Amended and Restated Credit Agreement, dated as of March 24, 1999 (as amended,
modified or supplemented from time to time, the "Credit Agreement"), providing
for the making of Loans to the Borrowers, and the issuance of Letters of Credit
for the account of the US Borrower as contemplated therein (the Banks, the
Administrative Agent, each Letter of Credit Issuer and the Pledgee are herein
called the "Bank Creditors");
WHEREAS, the Borrowers may at any time and from time to time enter
into one or more Interest Rate Protection Agreements or Other Hedging Agreements
with one or more Banks or any affiliate thereof (each such Bank or affiliate,
even if the respective Bank subsequently ceases to be a Bank under the Credit
Agreement for any reason, together with such Bank's or affiliate's successors
and assigns, if any, collectively, the "Other Creditors," and together with the
Bank Creditors, the "Secured Creditors");
WHEREAS, pursuant to the Parents Guaranty, Parent, Holdings and (with
respect to the Obligations of the French Borrower only) the US Borrower have
unconditionally guaranteed to the Secured Creditors the payment when due of all
Guaranteed Obligations as described therein;
WHEREAS, pursuant to the Subsidiaries Guaranty, each Subsidiary
Guarantor has jointly and severally guaranteed to the Secured Creditors the
payment when due of all Guaranteed Obligations as described therein;
WHEREAS, it is a condition to the making of Loans to the Borrowers,
and the issuance of Letters of Credit for the account of the US Borrower under
the Credit Agreement that each Pledgor shall have executed and delivered to the
Pledgee this Agreement; and
<PAGE>
Exhibit G
Page 2
WHEREAS, each Pledgor desires to enter into this Agreement in order to
satisfy the condition described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Pledgor, the receipt and sufficiency of which are hereby
acknowledged, each Pledgor hereby makes the following representations and
warranties to the Pledgee for the benefit of the Secured Creditors and hereby
covenants and agrees with the Pledgee for the benefit of the Secured Creditors
as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each Pledgor
for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and indebtedness
(including, without limitation, indemnities, Fees and interest thereon) of
such Pledgor to the Bank Creditors, whether now existing or hereafter
incurred under, arising out of, or in connection with the Credit Agreement
and the other Credit Documents to which such Pledgor is a party (including
all such obligations and indebtedness of such Pledgor under any Guaranty to
which it is a party) and the due performance and compliance by such Pledgor
with all of the terms, conditions and agreements contained in the Credit
Agreement and in such other Credit Documents (all such obligations and
liabilities under this clause (i), except to the extent consisting of
obligations or indebtedness with respect to Interest Rate Protection
Agreements or Other Hedging Agreements, being herein collectively called
the "Credit Document Obligations");
(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and liabilities
owing by such Pledgor to the Other Creditors under, or with respect to
(including by reason of the any Guaranty to which it is a party), any
Interest Rate Protection Agreement or Other Hedging Agreement, whether such
Interest Rate Protection Agreement or Other Hedging Agreement is now in
existence or hereafter arising, and the due performance and compliance by
such Pledgor with all of the terms, conditions and agreements contained
therein (all such obligations and liabilities described in this clause (ii)
being herein collectively called the "Other Obligations");
(iii) any and all sums advanced by the Pledgee in order to preserve the
Collateral (as hereinafter defined) or preserve its security interest in
the Collateral;
(iv) in the event of any proceeding for the collection or enforcement
of any indebtedness, obligations or liabilities of such Pledgor referred to
in clauses (i), (ii) and (iii) above, after an Event of Default (which term
to mean and include any Event of Default under, and as defined in, the
Credit Agreement or any payment default by the Borrower under any Interest
Rate Protection Agreement or Other Hedging Agreement and shall, in any
event, include, without limitation, any payment default on any of the
Obligations (as hereinafter defined) shall have occurred and be continuing,
the reasonable expenses of retaking, holding, preparing for sale or lease,
selling or otherwise disposing of or realizing on the Collateral, or of any
exercise by the Pledgee of its rights hereunder, together with reasonable
attorneys' fees and court costs; and
<PAGE>
Exhibit G
Page 3
(v) all amounts paid by any Secured Creditor as to which such
Secured Creditor has the right to reimbursement under Section 11 of this
Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses (i)
through (v) of this Section 1 being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
2. DEFINITIONS. (a) Unless otherwise defined herein, all
capitalized terms used herein and defined in the Credit Agreement shall be used
herein as therein defined. Reference to singular terms shall include the plural
and vice versa.
(b) The following capitalized terms used herein shall have the
definitions specified below:
"ADMINISTRATIVE AGENT" has the meaning set forth in the Recitals
hereto.
"ADVERSE CLAIM" has the meaning given such term in Section 8-102(a)(1)
of the UCC.
"AGREEMENT" has the meaning set forth in the first paragraph hereof.
"BANK CREDITORS" has the meaning set forth in the Recitals hereto.
"BANKS" has the meaning set forth in the Recitals hereto.
"CERTIFICATED SECURITY" has the meaning given such term in Section
8-102(a)(4) of the UCC.
"CLEARING CORPORATION" has the meaning given such term in Section
8-102(a)(5) of the UCC.
"COLLATERAL" has the meaning set forth in Section 3.1 hereof.
"COLLATERAL ACCOUNTS" means any and all accounts established and
maintained by the Pledgee in the name of any Pledgor to which Collateral may be
credited.
"CREDIT AGREEMENT" has the meaning set forth in the Recitals hereto.
"CREDIT DOCUMENT OBLIGATIONS" has the meaning set forth in Section 1
hereof.
"DOMESTIC CORPORATION" has the meaning set forth in the definition of
"Stock."
"EVENT OF DEFAULT" has the meaning set forth in Section 1 hereof.
"FINANCIAL ASSET" has the meaning given such term in Section
8-102(a)(9) of the UCC.
<PAGE>
Exhibit G
Page 4
"FOREIGN CORPORATION" has the meaning set forth in the definition of
"Stock."
"INDEMNITEES" has the meaning set forth in Section 11 hereof.
"INSTRUMENT" has the meaning given such term in Section 9-105(1)(i) of
the UCC.
"INVESTMENT PROPERTY" has the meaning given such term in Section
9-115(f) of the UCC.
"LIMITED LIABILITY COMPANY ASSETS" means all assets, whether tangible
or intangible and whether real, personal or mixed (including, without
limitation, all limited liability company capital and interest in other limited
liability companies), at any time owned or represented by any Limited Liability
Company Interest.
"LIMITED LIABILITY COMPANY INTERESTS" means the entire limited
liability company membership interest at any time owned by any Pledgor in any
limited liability company.
"NON-VOTING STOCK" means all capital stock which is not Voting Stock.
"NOTES" means (x) all Intercompany Notes at any time issued to each
Pledgor and (y) all other promissory notes from time to time issued to, or held
by, each Pledgor.
"OBLIGATIONS" has the meaning set forth in Section 1 hereof.
"OTHER CREDITORS" has the meaning set forth in the Recitals hereto.
"OTHER OBLIGATIONS" has the meaning set forth in Section 1 hereof.
"PARTNERSHIP ASSETS" means all assets, whether tangible or intangible
and whether real, personal or mixed (including, without limitation, all
partnership capital and interest in other partnerships), at any time owned or
represented by any Partnership Interest.
"PARTNERSHIP INTEREST" means the entire general partnership interest
or limited partnership interest at any time owned by any Pledgor in any general
partnership or limited partnership.
"PLEDGED NOTES" has the meaning set forth in Section 3.5 hereof.
"PLEDGEE" has the meaning set forth in the first paragraph hereof.
"PLEDGOR" has the meaning set forth in the first paragraph hereof.
"PROCEEDS" has the meaning given such term in Section 9-306(l) of the
UCC.
"REQUIRED BANKS" has the meaning given such term in the Credit
Agreement.
"SECURED CREDITORS" has the meaning set forth in the Recitals hereto.
<PAGE>
Exhibit G
Page 5
"SECURED DEBT AGREEMENTS" has the meaning set forth in Section 5
hereof.
"SECURITIES ACCOUNT" has the meaning given such term in Section
8-501(a) of the UCC.
"SECURITIES ACT" means the Securities Act of 1933, as amended, as in
effect from time to time.
"SECURITY" and "SECURITIES" has the meaning given such term in Section
8-102(a)(15) of the UCC and shall in any event include all Stock and Notes (to
the extent same constitute "Securities" under Section 8-102(a)(15)).
"SECURITY ENTITLEMENT" has the meaning given such term in Section
8-102(a)(17) of the UCC.
"STOCK" means (x) with respect to corporations incorporated under the
laws of the United States or any State or territory thereof (each a "Domestic
Corporation"), all of the issued and outstanding shares of capital stock of any
corporation at any time owned by any Pledgor of any Domestic Corporation and (y)
with respect to corporations not Domestic Corporations (each a "Foreign
Corporation"), all of the issued and outstanding shares of capital stock at any
time owned by any Pledgor of any Foreign Corporation.
"TERMINATION DATE" has the meaning set forth in Section 20 hereof.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York from time to time; PROVIDED that all references herein to specific
sections or subsections of the UCC are references to such sections or
subsections, as the case may be, of the Uniform Commercial Code as in effect in
the State of New York on the date hereof.
"UNCERTIFICATED SECURITY" has the meaning given such term in Section
8-102(a)(18) of the UCC.
"VOTING STOCK" means all classes of capital stock of any Foreign
Corporation entitled to vote.
3. PLEDGE OF SECURITIES, ETC.
3.1 PLEDGE. To secure the Obligations now or hereafter owed or to be
performed by such Pledgor, each Pledgor does hereby grant, pledge and assign to
the Pledgee for the benefit of the Secured Creditors, and does hereby create a
continuing security interest in favor of the Pledgee for the benefit of the
Secured Creditors in, all of the right, title and interest in and to the
following, whether now existing or hereafter from time to time acquired
(collectively, the "Collateral"):
(a) each of the Collateral Accounts, including any and all assets of
whatever type or kind deposited by such Pledgor in such Collateral Account,
whether now owned or hereafter acquired, existing or arising, including,
without limitation, all Financial Assets,
<PAGE>
Exhibit G
Page 6
Investment Property, moneys, checks, drafts, Instruments, Securities or
interests therein of any type or nature deposited or required by the
Credit Agreement or any other Secured Debt Agreement to be deposited in
such Collateral Account, and all investments and all certificates and
other Instruments (including depository receipts, if any) from time to
time representing or evidencing the same, and all dividends, interest,
distributions, cash and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any
or all of the foregoing;
(b) all Securities of such Pledgor from time to time;
(c) all Limited Liability Company Interests of such Pledgor from
time to time and all of its right, title and interest in each limited
liability company to which each such interest relates, whether now existing
or hereafter acquired, including, without limitation:
(A) all the capital thereof and its interest in all profits,
losses, Limited Liability Company Assets and other distributions to
which such Pledgor shall at any time be entitled in respect of such
Limited Liability Company Interests;
(B) all other payments due or to become due to such Pledgor in
respect of Limited Liability Company Interests, whether under any
limited liability company agreement or otherwise, whether as
contractual obligations, damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under any
limited liability company agreement or operating agreement, or at law
or otherwise in respect of such Limited Liability Company Interests;
(D) all present and future claims, if any, of such Pledgor
against any such limited liability company for moneys loaned or
advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any limited liability
company agreement or operating agreement or at law to exercise and
enforce every right, power, remedy, authority, option and privilege of
such Pledgor relating to such Limited Liability Company Interests,
including any power to terminate, cancel or modify any limited
liability company agreement or operating agreement, to execute any
instruments and to take any and all other action on behalf of and in
the name of any of such Pledgor in respect of such Limited Liability
Company Interests and any such limited liability company, to make
determinations, to exercise any election (including, but not limited
to, election of remedies) or option or to give or receive any notice,
consent, amendment, waiver or approval, together with full power and
authority to demand, receive, enforce, collect or receipt for any of
the foregoing or for any Limited Liability Company Asset, to enforce
or execute any checks, or other instruments or orders, to file any
claims and to take any action in connection with any of the foregoing;
and
<PAGE>
Exhibit G
Page 7
(F) all other property hereafter delivered in substitution for
or in addition to any of the foregoing, all certificates and
instruments representing or evidencing such other property and all
cash, securities, interest, dividends, rights and other property at
any time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all thereof;
(d) all Partnership Interests of such Pledgor from time to time and
all of its right, title and interest in each partnership to which each such
interest relates, whether now existing or hereafter acquired, including,
without limitation:
(A) all the capital thereof and its interest in all profits,
losses, Partnership Assets and other distributions to which such
Pledgor shall at any time be entitled in respect of such Partnership
Interests;
(B) all other payments due or to become due to such Pledgor in
respect of Partnership Interests, whether under any partnership
agreement or otherwise, whether as contractual obligations, damages,
insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under any
partnership agreement or operating agreement, or at law or otherwise
in respect of such Partnership Interests;
(D) all present and future claims, if any, of such Pledgor
against any such partnership for moneys loaned or advanced, for
services rendered or otherwise;
(E) all of such Pledgor's rights under any partnership agreement
or operating agreement or at law to exercise and enforce every right,
power, remedy, authority, option and privilege of such Pledgor
relating to such Partnership Interests, including any power to
terminate, cancel or modify any partnership agreement or operating
agreement, to execute any instruments and to take any and all other
action on behalf of and in the name of any of such Pledgor in respect
of such Partnership Interests and any such partnership, to make
determinations, to exercise any election (including, but not limited
to, election of remedies) or option or to give or receive any notice,
consent, amendment, waiver or approval, together with full power and
authority to demand, receive, enforce, collect or receipt for any of
the foregoing or for any Partnership Asset, to enforce or execute any
checks, or other instruments or orders, to file any claims and to take
any action in connection with any of the foregoing (with all of the
foregoing rights only to be exercisable upon the occurrence and during
the continuation of an Event of Default); and
(F) all other property hereafter delivered in substitution for
or in addition to any of the foregoing, all certificates and
instruments representing or evidencing such other property and all
cash, securities, interest, dividends, rights
<PAGE>
Exhibit G
Page 8
and other property at any time and from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all thereof;
(e) all Security Entitlements of such Pledgor from time to time in
any and all of the foregoing;
(f) all Financial Assets and Investment Property of such Pledgor
from time to time; and
(g) all Proceeds of any and all of the foregoing.
Notwithstanding anything to the contrary contained in this Section
3.1, (x) except as otherwise provided in Section 8.12 of the Credit Agreement,
no Pledgor (to the extent that it is the Borrower or a Domestic Subsidiary of
the Borrower) shall be required at any time to pledge hereunder more than 65% of
the Voting Stock of any Foreign Corporation and (y) each Pledgor shall be
required to pledge hereunder 100% of any Non-Voting Stock at any time and from
time to time acquired by such Pledgor of any Foreign Corporation.
3.2 PROCEDURES. (a) To the extent that any Pledgor at any time or
from time to time owns, acquires or obtains any right, title or interest in any
Collateral, such Collateral shall automatically (and without the taking of any
action by the respective Pledgor) be pledged pursuant to Section 3.1 of this
Agreement and, in addition thereto, such Pledgor shall (to the extent provided
below) take the following actions as set forth below (as promptly as practicable
and, in any event, within 10 days after it obtains such Collateral) for the
benefit of the Pledgee and the Secured Creditors:
(i) with respect to a Certificated Security (other than a
Certificated Security credited on the books of a Clearing Corporation), the
respective Pledgor shall physically deliver such Certificated Security to
the Pledgee, indorsed to the Pledgee or indorsed in blank;
(ii) with respect to an Uncertificated Security (other than an
Uncertificated Security credited on the books of a Clearing Corporation),
the respective Pledgor shall cause the issuer of such Uncertificated
Security to duly authorize and execute, and deliver to the Pledgee, an
agreement for the benefit of the Pledgee and the Secured Creditors
substantially in the form of Annex G hereto (appropriately completed to the
satisfaction of the Pledgee and with such modifications, if any, as shall
be satisfactory to the Pledgee) pursuant to which such issuer agrees to
comply with any and all instructions originated by the Pledgee without
further consent by the registered owner and not to comply with instructions
regarding such Uncertificated Security (and any Partnership Interests and
Limited Liability Company Interests issued by such issuer) originated by
any other Person other than a court of competent jurisdiction;
(iii) with respect to a Certificated Security, Uncertificated
Security, Partnership Interest or Limited Liability Company Interest
credited on the books of a Clearing Corporation (including a Federal
Reserve Bank, Participants Trust Company or The
<PAGE>
Exhibit G
Page 9
Depository Trust Company), the respective Pledgor shall promptly notify
the Pledgee thereof and shall promptly take all actions required (i) to
comply with the applicable rules of such Clearing Corporation and (ii)
to perfect the security interest of the Pledgee under applicable law
(including, in any event, under Sections 9-115 (4)(a) and (b), 9-115
(1)(e) and 8-106 (d) of the UCC). The Pledgor further agrees to take
such actions as the Pledgee deems necessary or desirable to effect the
foregoing;
(iv) with respect to a Partnership Interest or a Limited Liability
Company Interest (other than a Partnership Interest or Limited Liability
Interest credited on the books of a Clearing Corporation), (1) if such
Partnership Interest or Limited Liability Company Interest is represented
by a certificate, the procedure set forth in Section 3.2(a)(i) hereof, and
(2) if such Partnership Interest or Limited Liability Company Interest is
not represented by a certificate, the procedure set forth in Section
3.2(a)(ii) hereof;
(v) with respect to any Note, physical delivery of such Note to the
Pledgee, indorsed to the Pledgee or indorsed in blank; and
(vi) with respect to cash, (i) establishment by the Pledgee of a cash
account in the name of such Pledgor over which the Pledgee shall have
exclusive and absolute control and dominion (and no withdrawals or
transfers may be made therefrom by any Person except with the prior written
consent of the Pledgee) and (ii) deposit of such cash in such cash account.
(b) In addition to the actions required to be taken pursuant to
proceeding Section 3.2(a) hereof, each Pledgor shall take the following
additional actions with respect to the Securities and Collateral (as defined
below):
(i) with respect to all Collateral of such Pledgor of which the
Pledgee may obtain "control" within the meaning of Section 8-106 of the UCC
(or under any provision of the UCC as same may be amended or supplemented
from time to time, or under the laws of any relevant State other than the
State of New York), the respective Pledgor shall take all actions as may be
requested from time to time by the Pledgee so that "control" of such
Collateral is obtained and at all times held by the Pledgee; and
(ii) each Pledgor shall from time to time cause appropriate financing
statements (on Form UCC-1 or other appropriate form) under the Uniform
Commercial Code as in effect in the various relevant States, in form
satisfactory to the Pledgee and covering all Collateral hereunder, to be
filed in the relevant filing offices so that at all times the Pledgee has a
security interest in all Investment Property and other Collateral which is
perfected by the filing of such financing statements (in each case to the
maximum extent perfection by filing may be obtained under the laws of the
relevant States, including, without limitation, Section 9-115(4)(b) of the
UCC).
3.3 SUBSEQUENTLY ACQUIRED COLLATERAL. If any Pledgor shall acquire
(by purchase, stock dividend or otherwise) any additional Collateral at any time
or from time to time after the date hereof, such Collateral shall automatically
(and without any further action being required to
<PAGE>
Exhibit G
Page 10
be taken) be subject to the pledge and security interests created pursuant to
Section 3.1 hereof and, furthermore, the Pledgor will promptly thereafter
take (or cause to be taken) all action with respect to such Collateral in
accordance with the procedures set forth in Section 3.2 hereof, and will
promptly thereafter deliver to the Pledgee (i) a certificate executed by a
principal executive officer of such Pledgor describing such Collateral and
certifying that the same has been duly pledged in favor of the Pledgee (for
the benefit of the Secured Creditors) hereunder and (ii) supplements to
Annexes A through F hereto as are necessary to cause such annexes to be
complete and accurate at such time. Without limiting the foregoing, each
Pledgor shall be required to pledge hereunder any shares of stock at any time
and from time to time after the date hereof acquired by such Pledgor of any
Foreign Corporation, provided that (x) except as provided in Section 8.12 of
the Credit Agreement, no Pledgor (to the extent that it is the Borrower or a
Domestic Subsidiary of the Borrower) shall be required at any time to pledge
hereunder more than 65% of the Voting Stock of any Foreign Corporation and
(y) each Pledgor shall be required to pledge hereunder 100% of any Non-Voting
Stock at any time and from time to time acquired by such Pledgor of any
Foreign Corporation.
3.4 TRANSFER TAXES. Each pledge of Collateral under Section 3.1 or
Section 3.3 hereof shall be accompanied by any transfer tax stamps required in
connection with the pledge of such Collateral.
3.5 DEFINITION OF PLEDGED NOTES. All Notes at any time pledged or
required to be pledged hereunder are hereinafter called the "Pledged Notes".
3.6 CERTAIN REPRESENTATIONS AND WARRANTIES REGARDING THE COLLATERAL.
Each Pledgor represents and warrants that on the date hereof (i) each Subsidiary
of such Pledgor, and the direct ownership thereof, is listed in Annex A hereto;
(ii) the Stock held by such Pledgor consists of the number and type of shares of
the stock of the corporations as described in Annex B hereto; (iii) such Stock
constitutes that percentage of the issued and outstanding capital stock of the
issuing corporation as is set forth in Annex B hereto; (iv) the Notes held by
such Pledgor consist of the promissory notes described in Annex C hereto where
such Pledgor is listed as the lender; (v) the Limited Liability Company
Interests held by such Pledgor consist of the number and type of interests of
the Persons described in Annex D hereto; (vi) each such Limited Liability
Company Interest constitutes that percentage of the issued and outstanding
equity interest of the issuing Person as set forth in Annex D hereto; (vii) the
Partnership Interests held by such Pledgor consist of the number and type of
interests of the Persons described in Annex E hereto; (viii) each such
Partnership Interest constitutes that percentage or portion of the entire
partnership interest of the Partnership as set forth in Annex E hereto; (ix) the
Pledgor has complied with the respective procedure set forth in Section 3.2(a)
hereof with respect to each item of Collateral described in Annexes A through E
hereto; and (x) on the date hereof, such Pledgor owns no other Securities,
Limited Liability Company Interests or Partnership Interests.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. If and to the
extent necessary to enable the Pledgee to perfect its security interest in any
of the Collateral or to exercise any of its remedies hereunder, the Pledgee
shall have the right to appoint one or more sub-agents for the purpose of
retaining physical possession of the Collateral, which may be held (in the
discretion of the Pledgee) in the name of the relevant Pledgor, endorsed or
assigned in
<PAGE>
Exhibit G
Page 11
blank or in favor of the Pledgee or any nominee or nominees of the Pledgee or
a sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until there
shall have occurred and be continuing an Event of Default, each Pledgor shall be
entitled to exercise any and all voting and other consensual rights pertaining
to the Collateral owned by it, and to give consents, waivers or ratifications in
respect thereof; PROVIDED, that, in each case, no vote shall be cast or any
consent, waiver or ratification given or any action taken or omitted to be taken
which would violate or be inconsistent with any of the terms of this Agreement,
the Credit Agreement, any other Credit Document or any Interest Rate Protection
Agreement or Other Hedging Agreement (collectively, the "Secured Debt
Agreements"), or which would have the effect of impairing the value of the
Collateral or any part thereof or the position or interests of the Pledgee or
any other Secured Creditor in the Collateral. All such rights of each Pledgor
to vote and to give consents, waivers and ratifications shall cease in case an
Event of Default has occurred and is continuing, and Section 7 hereof shall
become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there shall
have occurred and be continuing an Event of Default, (i) all cash dividends,
cash distributions, cash Proceeds and other cash amounts payable in respect of
the Collateral shall be paid to the respective Pledgor. The Pledgee shall be
entitled to receive directly, and to retain as part of the Collateral:
(i) all other or additional stock, notes, limited liability company
interests, partnership interests, instruments or other securities or
property (including, but not limited to, cash dividends other than as set
forth above) paid or distributed by way of dividend or otherwise in respect
of the Collateral;
(ii) all other or additional stock, notes, limited liability company
interests, partnership interests, instruments or other securities or
property (including, but not limited to, cash) paid or distributed in
respect of the Collateral by way of stock-split, spin-off, split-up,
reclassification, combination of shares or similar rearrangement; and
(iii) all other or additional stock, notes, limited liability company
interests, partnership interests, instruments or other securities or
property (including, but not limited to, cash) which may be paid in respect
of the Collateral by reason of any consolidation, merger, exchange of
stock, conveyance of assets, liquidation or similar corporate
reorganization.
Nothing contained in this Section 6 shall limit or restrict in any way the
Pledgee's right to receive proceeds of the Collateral in any form in accordance
with Section 3 of this Agreement. All dividends, distributions or other
payments which are received by any Pledgor contrary to the provisions of this
Section 6 and Section 7 hereof shall be received in trust for the benefit of the
Pledgee, shall be segregated from other property or funds of such Pledgor and
shall be forthwith paid over to the Pledgee as Collateral in the same form as so
received (with any necessary endorsement).
7. REMEDIES IN CASE OF DEFAULT OR EVENT OF DEFAULT. If there shall
have occurred and be continuing an Event of Default, then and in every such
case, the
<PAGE>
Exhibit G
Page 12
Pledgee shall be entitled to exercise all of the rights, powers and remedies
(whether vested in it by this Agreement, any other Secured Debt Agreement or
by law) for the protection and enforcement of its rights in respect of the
Collateral, and the Pledgee shall be entitled to exercise all the rights and
remedies of a secured party under the Uniform Commercial Code as in effect in
any relevant jurisdiction and also shall be entitled, without limitation, to
exercise the following rights, which each Pledgor hereby agrees to be
commercially reasonable:
(i) to receive all amounts payable in respect of the Collateral
otherwise payable under Section 6 hereof to the respective Pledgor;
(ii) to transfer all or any part of the Collateral into the Pledgee's
name or the name of its nominee or nominees;
(iii) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to collect upon
any Pledged Note (including, without limitation, to make any demand for
payment thereon);
(iv) to vote all or any part of the Collateral (whether or not
transferred into the name of the Pledgee) and give all consents, waivers
and ratifications in respect of the Collateral and otherwise act with
respect thereto as though it were the outright owner thereof (each Pledgor
hereby irrevocably constituting and appointing the Pledgee the proxy and
attorney-in-fact of such Pledgor, with full power of substitution to do
so);
(v) at any time and from time to time to sell, assign and deliver, or
grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell or of the time or
place of sale or adjournment thereof or to redeem or otherwise (all of
which are hereby waived by each Pledgor), for cash, on credit or for other
property, for immediate or future delivery without any assumption of credit
risk, and for such price or prices and on such terms as the Pledgee in its
absolute discretion may determine, PROVIDED that at least 10 days' written
notice of the time and place of any such sale shall be given to the
respective Pledgor. The Pledgee shall not be obligated to make any such
sale of Collateral regardless of whether any such notice of sale has
theretofore been given. Each Pledgor hereby waives and releases to the
fullest extent permitted by law any right or equity of redemption with
respect to the Collateral, whether before or after sale hereunder, and all
rights, if any, of marshalling the Collateral and any other security for
the Obligations or otherwise. At any such sale, unless prohibited by
applicable law, the Pledgee on behalf of the Secured Creditors may bid for
and purchase all or any part of the Collateral so sold free from any such
right or equity of redemption. Neither the Pledgee nor any other Secured
Creditor shall be liable for failure to collect or realize upon any or all
of the Collateral or for any delay in so doing nor shall any of them be
under any obligation to take any action whatsoever with regard thereto; and
(vi) to set-off any and all Collateral against any and all
Obligations, and to withdraw any and all cash or other Collateral from any
and all Collateral Accounts and to apply such cash and other Collateral to
the payment of any and all Obligations.
<PAGE>
Exhibit G
Page 13
8. REMEDIES, ETC., CUMULATIVE. Each and every right, power and
remedy of the Pledgee provided for in this Agreement or in any other Secured
Debt Agreement, or now or hereafter existing at law or in equity or by statute
shall be cumulative and concurrent and shall be in addition to every other such
right, power or remedy. The exercise or beginning of the exercise by the Pledgee
or any other Secured Creditor of any one or more of the rights, powers or
remedies provided for in this Agreement or any other Secured Debt Agreement or
now or hereafter existing at law or in equity or by statute or otherwise shall
not preclude the simultaneous or later exercise by the Pledgee or any other
Secured Creditor of all such other rights, powers or remedies, and no failure or
delay on the part of the Pledgee or any other Secured Creditor to exercise any
such right, power or remedy shall operate as a waiver thereof. No notice to or
demand on any Pledgor in any case shall entitle it to any other or further
notice or demand in similar or other circumstances or constitute a waiver of any
of the rights of the Pledgee or any other Secured Creditor to any other or
further action in any circumstances without notice or demand. The Secured
Creditors agree that this Agreement may be enforced only by the action of the
Administrative Agent or the Pledgee, in each case acting upon the instructions
of the Required Banks (or, after the date on which all Credit Document
Obligations have been paid in full, the holders of at least the majority of the
outstanding Other Obligations) and that no other Secured Creditor shall have any
right individually to seek to enforce or to enforce this Agreement or to realize
upon the security to be granted hereby, it being understood and agreed that such
rights and remedies may be exercised by the Administrative Agent or the Pledgee
or the holders of at least a majority of the outstanding Other Obligations, as
the case may be, for the benefit of the Secured Creditors upon the terms of this
Agreement.
9. APPLICATION OF PROCEEDS. (a) All monies collected by the Pledgee
upon any sale or other disposition of the Collateral pursuant to the terms of
this Agreement, together with all other monies received by the Pledgee
hereunder, shall be applied in the manner provided in the Security Agreement.
(b) It is understood and agreed that the Pledgors shall remain
jointly and severally liable to the extent of any deficiency between the amount
of the proceeds of the Collateral hereunder and the aggregate amount of the
Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the
Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
11. INDEMNITY. Each Pledgor jointly and severally agrees (i) to
indemnify and hold harmless the Pledgee in such capacity and each other Secured
Creditor and their respective successors, assigns, employees, agents and
servants (individually an "Indemnitee," and collectively the "Indemnitees") from
and against any and all claims, demands, losses, judgments and liabilities
(including liabilities for penalties) of whatsoever kind or nature, and (ii) to
reimburse each Indemnitee for all costs and expenses, including reasonable
attorneys' fees, in each case growing
<PAGE>
Exhibit G
Page 14
out of or resulting from this Agreement or the exercise by any Indemnitee of
any right or remedy granted to it hereunder or under any other Secured Debt
Agreement (but excluding any claims, demands, losses, judgments and
liabilities or expenses to the extent incurred by reason of gross negligence
or willful misconduct of such Indemnitee). In no event shall the Pledgee be
liable, in the absence of gross negligence or willful misconduct on its part,
for any matter or thing in connection with this Agreement other than to
account for monies actually received by it in accordance with the terms
hereof. If and to the extent that the obligations of any Pledgor under this
Section 11 are unenforceable for any reason, such Pledgor hereby agrees to
make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER.
(a) Nothing herein shall be construed to make the Pledgee or any other Secured
Creditor liable as a member of any limited liability company or as a partner of
any partnership and neither the Pledgee nor any other Secured Creditor by virtue
of this Agreement or otherwise (except as referred to in the following sentence)
shall have any of the duties, obligations or liabilities of a member of any
limited liability company or partnership. The parties hereto expressly agree
that, unless the Pledgee shall become the absolute owner of Collateral
consisting of a Limited Liability Company Interest or Partnership Interest
pursuant hereto, this Agreement shall not be construed as creating a partnership
or joint venture among the Pledgee, any other Secured Creditor and/or any
Pledgor.
(b) Except as provided in the last sentence of paragraph (a) of this
Section 12, the Pledgee, by accepting this Agreement, did not intend to become a
member of any limited liability company or a partner of any partnership or
otherwise be deemed to be a co-venturer with respect to any Pledgor or any
limited liability company or partnership either before or after an Event of
Default shall have occurred. The Pledgee shall have only those powers set forth
herein and the Secured Creditors shall assume none of the duties, obligations or
liabilities of a member of any limited liability company or as a partner of any
partnership or any Pledgor except as provided in the last sentence of paragraph
(a) of this Section 12.
(c) The Pledgee and the other Secured Creditors shall not be
obligated to perform or discharge any obligation of any Pledgor as a result of
the pledge hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with all the
rights, powers, privileges and authority so created, shall not at any time or in
any event obligate the Pledgee or any other Secured Creditor to appear in or
defend any action or proceeding relating to the Collateral to which it is not a
party, or to take any action hereunder or thereunder, or to expend any money or
incur any expenses or perform or discharge any obligation, duty or liability
under the Collateral.
13. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Each Pledgor agrees
that it will join with the Pledgee in executing and, at such Pledgor's own
expense, file and refile under the Uniform Commercial Code or other applicable
law such financing statements, continuation statements and other documents in
such offices as the Pledgee may deem necessary and wherever required by law in
order to perfect and preserve the Pledgee's security interest in the
<PAGE>
Exhibit G
Page 15
Collateral and hereby authorizes the Pledgee to file financing statements and
amendments thereto relative to all or any part of the Collateral without the
signature of such Pledgor where permitted by law, and agrees to do such
further acts and things and to execute and deliver to the Pledgee such
additional conveyances, assignments, agreements and instruments as the
Pledgee may reasonably require or deem necessary to carry into effect the
purposes of this Agreement or to further assure and confirm unto the Pledgee
its rights, powers and remedies hereunder.
(b) Each Pledgor hereby appoints the Pledgee such Pledgor's
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor or otherwise, to act from time to time solely after
the occurrence and during the continuance of an Event of Default in the
Pledgee's reasonable discretion to take any action and to execute any instrument
which the Pledgee may deem necessary or advisable to accomplish the purposes of
this Agreement.
14. THE PLEDGEE AS AGENT. The Pledgee will hold in accordance with
this Agreement all items of the Collateral at any time received under this
Agreement. It is expressly understood and agreed by each Secured Creditor that
by accepting the benefits of this Agreement each such Secured Creditor
acknowledges and agrees that the obligations of the Pledgee as holder of the
Collateral and interests therein and with respect to the disposition thereof,
and otherwise under this Agreement, are only those expressly set forth in this
Agreement. The Pledgee shall act hereunder on the terms and conditions set
forth herein and in Section 12 of the Credit Agreement.
15. TRANSFER BY THE PLEDGORS. No Pledgor will sell or otherwise
dispose of, grant any option with respect to, or mortgage, pledge or otherwise
encumber any of the Collateral or any interest therein (except as may be
permitted in accordance with the terms of the Credit Agreement).
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS.
(a) Each Pledgor represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of, and has good
and marketable title to, all Collateral consisting of one or more
Securities and that it has sufficient interest in all Collateral in which a
security interest is purported to be created hereunder for such security
interest to attach (subject, in each case, to no pledge, lien, mortgage,
hypothecation, security interest, charge, option, Adverse Claim or other
encumbrance whatsoever, except the liens and security interests created by
this Agreement);
(ii) it has full power, authority and legal right to pledge all the
Collateral pledged by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and delivered
by such Pledgor and constitutes a legal, valid and binding obligation of
such Pledgor enforceable against such Pledgor in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at
law);
<PAGE>
Exhibit G
Page 16
(iv) except to the extent already obtained or made, no consent of
any other party (including, without limitation, any stockholder or creditor
of such Pledgor or any of its Subsidiaries) and no consent, license,
permit, approval or authorization of, exemption by, notice or report to, or
registration, filing or declaration with, any governmental authority is
required to be obtained by such Pledgor in connection with (a) the
execution, delivery or performance of this Agreement, (b) the validity or
enforceability of this Agreement (except as set forth in clause (iii)
above), (c) the perfection or enforceability of the Pledgee's security
interest in the Collateral or (d) except for compliance with or as may be
required by applicable securities laws, the exercise by the Pledgee of any
of its rights or remedies provided herein;
(v) the execution, delivery and performance of this Agreement will
not violate any provision of any applicable law or regulation or of any
order, judgment, writ, award or decree of any court, arbitrator or
governmental authority, domestic or foreign, applicable to such Pledgor,
or of the certificate of incorporation, operating agreement, limited
liability company agreement, partnership agreement or by-laws of such
Pledgor or of any securities issued by such Pledgor or any of its
Subsidiaries, or of any mortgage, deed of trust, indenture, lease, loan
agreement, credit agreement or other material contract, agreement or
instrument or undertaking to which such Pledgor or any of its
Subsidiaries is a party or which purports to be binding upon such
Pledgor or any of its Subsidiaries or upon any of their respective
assets and will not result in the creation or imposition of (or the
obligation to create or impose) any lien or encumbrance on any of the
assets of such Pledgor or any of its Subsidiaries except as contemplated
by this Agreement;
(vi) all of the Collateral (consisting of Securities, Limited
Liability Company Interests or Partnership Interests) has been duly and
validly issued and acquired, is fully paid and non-assessable and is
subject to no options to purchase or similar rights;
(vii) each of the Pledged Notes constitutes, or when executed by the
obligor thereof will constitute, the legal, valid and binding obligation of
such obligor, enforceable in accordance with its terms, except to the
extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law); and
(viii) the pledge, collateral assignment and delivery to the Pledgee
of the Collateral consisting of Certificated Securities pursuant to this
Agreement creates a valid and perfected first priority security interest in
such Certificated Securities, and the proceeds thereof, subject to no prior
Lien or encumbrance or to any agreement purporting to grant to any third
party a Lien or encumbrance on the property or assets of such Pledgor which
would include the Securities and the Pledgee is entitled to all the rights,
priorities and benefits afforded by the UCC or other relevant law as
enacted in any relevant jurisdiction to perfect security interests in
respect of such Collateral; and
(ix) "control" (as defined in Section 8-106 of the UCC) has been
obtained by the Pledgee over all Collateral consisting of Securities
(including Notes which are Securities)
<PAGE>
Exhibit G
Page 17
with respect to which such "control" may be obtained pursuant to Section
8-106 of the UCC.
(b) Each Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the Securities and the
proceeds thereof against the claims and demands of all persons whomsoever; and
each Pledgor covenants and agrees that it will have like title to and right to
pledge any other property at any time hereafter pledged to the Pledgee as
Collateral hereunder and will likewise defend the right thereto and security
interest therein of the Pledgee and the other Secured Creditors.
(c) Each Pledgor covenants and agrees that it will take no action
which would violate any of the terms of any Secured Debt Agreement.
17. CHIEF EXECUTIVE OFFICE; RECORDS. The chief executive office of
each Pledgor is located at the address specified in Annex F hereto. Each
Pledgor will not move its chief executive office except to such new location as
such Pledgor may establish in accordance with the last sentence of this Section
17. The originals of all documents in the possession of such Pledgor evidencing
all Collateral, including but not limited to all Limited Liability Company
Interests and Partnership Interests, and the only original books of account and
records of such Pledgor relating thereto are, and will continue to be, kept at
such chief executive office as specified in Annex F hereto, or at such new
locations as such Pledgor may establish in accordance with the last sentence of
this Section 17. All Limited Liability Company Interests and Partnership
Interests are, and will continue to be, maintained at, and controlled and
directed (including, without limitation, for general accounting purposes) from,
such chief executive office as specified in Annex F hereto, or such new
locations as such Pledgor may establish in accordance with the last sentence of
this Section 17. No Pledgor shall establish a new location for such offices
until (i) it shall have given to the Pledgee not less than 30 days' prior
written notice of its intention so to do, clearly describing such new location
and providing such other information in connection therewith as the Pledgee may
reasonably request and (ii) with respect to such new location, it shall have
taken all action, satisfactory to the Pledgee, to maintain the security interest
of the Collateral Agent in the Collateral intended to be granted hereby at all
times fully perfected and in full force and effect. Promptly after establishing
a new location for such offices in accordance with the immediately preceding
sentence, the respective Pledgor shall deliver to the Pledgee a supplement to
Annex F hereto so as to cause such Annex F hereto to be complete and accurate.
18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of each
Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (i) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from any Secured Debt Agreement or any other instrument or agreement referred to
therein, or any assignment or transfer of any thereof; (ii) any waiver,
consent, extension, indulgence or other action or inaction under or in respect
of any such agreement or instrument including, without limitation, this
Agreement; (iii) any furnishing of any additional security to the Pledgee or
its assignee or any acceptance thereof or any release of any security by the
Pledgee or its assignee; (iv) any limitation on any party's liability or
obligations under any such instrument or agreement or
<PAGE>
Exhibit G
Page 18
any invalidity or unenforceability, in whole or in part, of any such
instrument or agreement or any term thereof; or (v) any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution, liquidation
or other like proceeding relating to any Pledgor or any Subsidiary of any
Pledgor, or any action taken with respect to this Agreement by any trustee or
receiver, or by any court, in any such proceeding, whether or not such
Pledgor shall have notice or knowledge of any of the foregoing.
19. REGISTRATION, ETC. (a) If there shall have occurred and be
continuing an Event of Default then, and in every such case, upon receipt by any
Pledgor from the Pledgee of a written request or requests that such Pledgor
cause any registration, qualification or compliance under any Federal or state
securities law or laws to be effected with respect to all or any part of the
Collateral consisting of Securities, Limited Liability Company Interests or
Partnership Interests, such Pledgor as soon as practicable and at its expense
will cause such registration to be effected (and be kept effective) and will
cause such qualification and compliance to be declared effected (and be kept
effective) as may be so requested and as would permit or facilitate the sale and
distribution of such Collateral, including, without limitation, registration
under the Securities Act, as then in effect (or any similar statute then in
effect), appropriate qualifications under applicable blue sky or other state
securities laws and appropriate compliance with any other government
requirements, PROVIDED, that the Pledgee shall furnish to such Pledgor such
information regarding the Pledgee as such Pledgor may reasonably request in
writing and as shall be required in connection with any such registration,
qualification or compliance. Such Pledgor will cause the Pledgee to be kept
advised in writing as to the progress of each such registration, qualification
or compliance and as to the completion thereof, will furnish to the Pledgee such
number of prospectuses, offering circulars or other documents incident thereto
as the Pledgee from time to time may reasonably request, and will indemnify the
Pledgee, each other Secured Creditor and all others participating in the
distribution of such Collateral against all claims, losses, damages and
liabilities caused by any untrue statement (or alleged untrue statement) of a
material fact contained therein (or in any related registration statement,
notification or the like) or by any omission (or alleged omission) to state
therein (or in any related registration statement, notification or the like) a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same may have been caused by an
untrue statement or omission based upon information furnished in writing to such
Pledgor by the Pledgee or such other Secured Creditor expressly for use therein.
(b) If at any time when the Pledgee shall determine to exercise its
right to sell all or any part of the Collateral consisting of Securities,
Limited Liability Company Interests or Partnership Interests pursuant to Section
7 hereof, and the Collateral or the part thereof to be sold shall not, for any
reason whatsoever, be effectively registered under the Securities Act, as then
in effect, the Pledgee may, in its sole and absolute discretion, sell such
Collateral, as the case may be, or part thereof by private sale in such manner
and under such circumstances as the Pledgee may deem necessary or advisable in
order that such sale may legally be effected without such registration. Without
limiting the generality of the foregoing, in any such event the Pledgee, in its
sole and absolute discretion (i) may proceed to make such private sale
notwithstanding that a registration statement for the purpose of registering
such Collateral or part thereof shall have been filed under such Securities Act,
(ii) may approach and negotiate with a single possible purchaser to effect such
sale, and (iii) may restrict such sale to a purchaser who will represent and
agree that
<PAGE>
Exhibit G
Page 19
such purchaser is purchasing for its own account, for investment, and not
with a view to the distribution or sale of such Collateral or part thereof.
In the event of any such sale, the Pledgee shall incur no responsibility or
liability for selling all or any part of the Collateral at a price which the
Pledgee, in its sole and absolute discretion, in good faith deems reasonable
under the circumstances, notwithstanding the possibility that a substantially
higher price might be realized if the sale were deferred until after
registration as aforesaid.
20. TERMINATION; RELEASE. (a) After the Termination Date, this
Agreement and the security interest created hereby shall terminate (provided
that all indemnities set forth herein including, without limitation, in Section
11 hereof shall survive any such termination), and the Pledgee, at the request
and expense of any Pledgor, will execute and deliver to such Pledgor a proper
instrument or instruments acknowledging the satisfaction and termination of this
Agreement, and will duly assign, transfer and deliver to such Pledgor (without
recourse and without any representation or warranty) such of the Collateral as
has not theretofore been sold or otherwise applied or released pursuant to this
Agreement, together with any monies at the time held by the Pledgee or any of
its sub-agents hereunder. As used in this Agreement, "Termination Date" shall
mean the date upon which the Total Commitment and all Interest Rate Protection
Agreements and Other Hedging Agreements have been terminated, no Note under the
Credit Agreement is outstanding (and all Loans have been repaid in full), all
Letters of Credit have been terminated and all Obligations then due and payable
have been paid in full.
(b) In the event that any part of the Collateral is sold in
connection with a sale permitted by Section 9.02 of the Credit Agreement (other
than a sale to any Pledgor or any Subsidiary thereof) or is otherwise released
at the direction of the Required Banks (or all Banks if required by Section
13.12 of the Credit Agreement) and the proceeds of such sale or sales or from
such release are applied in accordance with the provisions of the Credit
Agreement, to the extent required to be so applied, the Pledgee, at the request
and expense of any Pledgor, will duly assign, transfer and deliver to such
Pledgor (without recourse and without any representation or warranty) such of
the Collateral (and releases therefor) as is then being (or has been) so sold or
released and has not theretofore been released pursuant to this Agreement.
(c) At any time that a Pledgor desires that the Pledgee assign,
transfer and deliver Collateral (and releases therefor) as provided in Section
20(a) or (b) hereof, it shall deliver to the Pledgee a certificate signed by a
principal executive officer of such Pledgor stating that the release of the
respective Collateral is permitted pursuant to such Section 20(a) or (b).
(d) The Pledgee shall have no liability whatsoever to any other
Secured Creditor as the result of any release of Collateral by it in accordance
with this Section 20.
21. NOTICES, ETC. All such notices and communications hereunder
shall be sent or delivered by mail, telegraph, telex, telecopy, cable or
overnight courier service and all such notices and communications shall, when
mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight
courier, be effective when delivered to the telegraph company, cable company or
overnight courier, as the case may be, or sent by telex or telecopier and when
mailed shall be effective three Business Days following deposit in the mail with
proper postage, except that
<PAGE>
Exhibit G
Page 20
notices and communications to the Pledgee shall not be effective until
received by the Pledgee. All notices and other communications shall be in
writing and addressed as follows:
(a) if to any Pledgor, at the address set forth opposite such
Pledgor's signature below;
(b) if to the Pledgee, at:
Bankers Trust Company
One Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
Attention: Greg Shefrin
Telephone No.: (212) 250-1724
Telecopier No.: (212) 250-7218;
(c) if to any Bank Creditor, either (x) to the Administrative Agent,
at the address of the Administrative Agent specified in the Credit Agreement or
(y) at such address as such Bank Creditor shall have specified in the Credit
Agreement;
(d) if to any Other Creditor at such address as such Other Creditor
shall have specified in writing to the Pledgors and the Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
22. WAIVER; AMENDMENT. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by each Pledgor directly affected thereby and the
Pledgee (with the written consent of either (x) the Required Banks (or all of
the Banks to the extent required by Section 13.12 of the Credit Agreement) at
all times prior to the time on which all Credit Document Obligations have been
paid in full or (y) the holders of at least a majority of the outstanding Other
Obligations at all times after the time on which all Credit Document Obligations
have been paid in full); PROVIDED, that any change, waiver, modification or
variance affecting the rights and benefits of a single Class (as defined below)
of Secured Creditors (and not all Secured Creditors in a like or similar manner)
shall also require the written consent of the Requisite Creditors (as defined
below) of such affected Class. For the purpose of this Agreement, the term
"Class" shall mean each class of Secured Creditors, I.E., whether (i) the Bank
Creditors as holders of the Credit Document Obligations or (ii) the Other
Creditors as the holders of the Other Obligations. For the purpose of this
Agreement, the term "Requisite Creditors" of any Class shall mean each of (i)
with respect to the Credit Document Obligations, the Required Banks and (ii)
with respect to the Other Obligations, the holders of at least a majority of all
obligations outstanding from time to time under the Interest Rate Protection
Agreements and Other Hedging Agreements.
23. MISCELLANEOUS. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of and be
<PAGE>
Exhibit G
Page 21
enforceable by each of the parties hereto and its successors and assigns,
provided that no Pledgor may assign any of its rights or obligations under
this Agreement without the prior consent of the Collateral Agent. THIS
AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK. EACH PLEDGOR IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
The headings in this Agreement are for purposes of reference only and shall
not limit or define the meaning hereof. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of
which shall constitute one instrument. In the event that any provision of
this Agreement shall prove to be invalid or unenforceable, such provision
shall be deemed to be severable from the other provisions of this Agreement
which shall remain binding on all parties hereto.
24. RECOURSE. This Agreement is made with full recourse to the
Pledgors and pursuant to and upon all the representations, warranties, covenants
and agreements on the part of the Pledgors contained herein and in the other
Secured Debt Agreements and otherwise in writing in connection herewith or
therewith.
25. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of Holdings that is required to execute a counterpart of this
Agreement after the date hereof pursuant to the Credit Agreement shall become a
Pledgor hereunder by executing a counterpart hereof and delivering the same to
the Pledgee.
* * * *
<PAGE>
Exhibit G
Page 22
IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
ADDRESS:
- --------
2527 Willowbrook TRISTAR AEROSPACE CO.,
Dallas, TX 75220 as a Pledgor
Attention: Douglas Childress
Telephone: (214) 956-3520
Telecopier: (214) 366-5340 By /s/ DOUGLAS CHILDRESS
-------------------------------------
Title: Vice President and
Chief Financial Officer
2527 Willowbrook AEROSPACE ACQUISITION CORP.,
Dallas, TX 75220 as a Pledgor
Attention: Douglas Childress
Telephone: (214) 956-3520
Telecopier: (214) 366-5340 By /s/ Douglas Childress
-------------------------------------
Title: Vice President and
Chief Financial Officer
2527 Willowbrook TRISTAR AEROSPACE, INC.,
Dallas, TX 75220 as a Pledgor
Attention Douglas Childress
Telephone: (214) 956-3520
Telecopier: (214) 366-5340 By /s/ Douglas Childress
-------------------------------------
Title: Vice President and
Chief Financial Officer
2527 Willowbrook STANDARD PARTS AND EQUIPMENT
Dallas, TX 75220 CORPORATION,
Attention: Douglas Childress as a Pledgor
Telephone: (214) 956-3520
Telecopier: (214) 366-5340 By /s/ Douglas Childress
-------------------------------------
Title: Vice President and
Chief Financial Officer
<PAGE>
Exhibit G
Page 23
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Pledgee, Collateral Agent
By /s/ Gregory P. Shefrin
-----------------------------
Title: Principal
<PAGE>
EXHIBIT H
[CONFORMED
AS EXECUTED]
===============================================================================
SECURITY AGREEMENT
among
TRISTAR AEROSPACE CO.,
AEROSPACE ACQUISITION CORP.,
TRISTAR AEROSPACE, INC.,
STANDARD PARTS AND EQUIPMENT CORPORATION,
VARIOUS LENDING INSTITUTIONS,
and
BANKERS TRUST COMPANY,
AS AGENT
--------------------------------
Dated as of March 24, 1999
--------------------------------
===============================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I
SECURITY INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.1. Grant of Security Interests. . . . . . . . . . . . . . . . . . . . .2
1.2. Power of Attorney. . . . . . . . . . . . . . . . . . . . . . . . . .3
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. . . . . . . . . . . . . . . . . .3
2.1. Necessary Filings. . . . . . . . . . . . . . . . . . . . . . . . . .3
2.2. No Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
2.3. Other Financing Statements . . . . . . . . . . . . . . . . . . . . .4
2.4. Chief Executive Office; Records. . . . . . . . . . . . . . . . . . .4
2.5. Location of Inventory and Equipment. . . . . . . . . . . . . . . . .5
2.6. Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
2.7. Trade Names; Change of Name. . . . . . . . . . . . . . . . . . . . .5
ARTICLE III
SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS. . . . . . . . . . . . . . . . . . . . . .6
3.1. Additional Representations and Warranties. . . . . . . . . . . . . .6
3.2. Maintenance of Records . . . . . . . . . . . . . . . . . . . . . . .6
3.3. Direction to Account Debtors; Contracting Parties; etc.. . . . . . .7
3.4. Modification of Terms; etc.. . . . . . . . . . . . . . . . . . . . .7
3.5. Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
3.6. Instruments. . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
3.7. Further Actions. . . . . . . . . . . . . . . . . . . . . . . . . . .7
ARTICLE IV
SPECIAL PROVISIONS CONCERNING TRADEMARKS . . . . . . . . . . . . . . . . . . . . . .8
4.1. Additional Representations and Warranties. . . . . . . . . . . . . .8
4.2. Licenses and Assignments . . . . . . . . . . . . . . . . . . . . . .8
(i)
<PAGE>
PAGE
----
4.3. Infringements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
4.4. Preservation of Marks. . . . . . . . . . . . . . . . . . . . . . . .9
4.5. Maintenance of Registration. . . . . . . . . . . . . . . . . . . . . . . . . .9
4.6. Future Registered Marks. . . . . . . . . . . . . . . . . . . . . . .9
4.7. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS. . . . . . . . . . . . . . . . . . 10
5.1. Additional Representations and Warranties. . . . . . . . . . . . . 10
5.2. Licenses and Assignments . . . . . . . . . . . . . . . . . . . . . 11
5.3. Infringements. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.4. Maintenance of Patents and Copyrights. . . . . . . . . . . . . . . 11
5.5. Prosecution of Patent or Copyright Application . . . . . . . . . . 11
5.6. Other Patents and Copyrights . . . . . . . . . . . . . . . . . . . 11
5.7. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL . . . . . . . . . . . . . . . . . . . . . . . 12
6.1. Protection of Collateral Agent's Security. . . . . . . . . . . . . 12
6.2. Warehouse Receipts Non-negotiable. . . . . . . . . . . . . . . . . 12
6.3. Further Actions. . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.4. Financing Statements . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT . . . . . . . . . . . . . . . . . . . 13
7.1. Remedies; Obtaining the Collateral Upon Default. . . . . . . . . . 13
7.2. Remedies; Disposition of the Collateral. . . . . . . . . . . . . . 14
7.3. Waiver of Claims . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.4. Application of Proceeds. . . . . . . . . . . . . . . . . . . . . . 15
7.5. Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . . 18
7.6. Discontinuance of Proceedings. . . . . . . . . . . . . . . . . . . 18
ARTICLE VIII
INDEMNITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(ii)
<PAGE>
PAGE
----
8.1. Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.2. Indemnity Obligations Secured by Collateral; Survival. . . . . . . 19
ARTICLE IX
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE X
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
10.1. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
10.2. Waiver; Amendment . . . . . . . . . . . . . . . . . . . . . . . . 25
10.3. Obligations Absolute. . . . . . . . . . . . . . . . . . . . . . . 25
10.4. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.5. Headings Descriptive. . . . . . . . . . . . . . . . . . . . . . . 26
10.6. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.7. Assignor's Duties . . . . . . . . . . . . . . . . . . . . . . . . 26
10.8. Termination; Release. . . . . . . . . . . . . . . . . . . . . . . 26
10.9. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.10. The Collateral Agent . . . . . . . . . . . . . . . . . . . . . . 27
10.11. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.12. Limited Obligations. . . . . . . . . . . . . . . . . . . . . . . 27
10.13. Additional Assignors . . . . . . . . . . . . . . . . . . . . . . 28
ANNEX A Schedule of Chief Executive Offices/Record Locations
ANNEX B Schedule of Inventory and Equipment Locations
ANNEX C Schedule of Trade, Fictitious and Other Names
ANNEX D Schedule of Marks
ANNEX E Schedule of Patents and Applications
ANNEX F Schedule of Copyrights and Applications
ANNEX G Assignment of Security Interest in Patents and Trademarks
ANNEX H Assignment of Security Interest in Copyrights
</TABLE>
(iii)
<PAGE>
EXHIBIT H
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of March 24, 1999 (as amended, modified
or supplemented from time to time, this "Agreement"), among each of the
undersigned assignors (each, an "Assignor" and, together with each other entity
that is required to execute a counterpart hereof pursuant to Section 10.13
hereof, the "Assignors") and BANKERS TRUST COMPANY, as Collateral Agent (the
"Collateral Agent"), for the benefit of the Secured Creditors (as defined
below). Except as otherwise defined herein, terms used herein and defined in
the Agreement (as defined below) shall be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, TriStar Aerospace, Co. ("Parent"), Aerospace Acquisition
Corp. ("Holdings"), TriStar Aerospace Inc. (the "US Borrower"), TriStar
Aerospace SARL (the "French Borrower"and together with the US Borrower, the
"Borrowers), various financial institutions from time to time party thereto (the
"Banks") and Bankers Trust Company, as Agent (the "Agent", and together with the
Banks and the Collateral Agent, the "Bank Creditors"), have entered into an
Amended and Restated Credit Agreement, dated as of March 24, 1999, providing for
the making of Loans to the Borrowers and the issuance of, and participation in,
Letters of Credit for the account of the US Borrower as contemplated therein (as
used herein, the term "Credit Agreement" means the Amended and Restated Credit
Agreement described above in this paragraph as amended, modified, extended,
renewed, replaced, restated, supplemented, restructured or refinanced from time
to time, and including any agreement extending the maturity of, refinancing or
restructuring (including, but not limited to, the inclusion of additional
borrowers thereunder or any increase in the amount borrowed) all, or any portion
of, the Indebtedness under such agreement or any successor agreements);
WHEREAS, any Assignor may from time to time enter into, or guaranty
the obligations of any other Assignor under, one or more (i) interest rate
protection agreements (including, without limitation, interest rate swaps, caps,
floors, collars and similar agreements), (ii) foreign exchange contracts,
currency swap agreements or other similar agreements or arrangements designed to
protect against the fluctuations in currency values and/or (iii) other types of
hedging agreements from time to time (each such agreement or arrangement with an
Other Creditor (as hereinafter defined), an "Interest Rate Protection Agreement
or Other Hedging Agreement"), with any Bank, any affiliate thereof or a
syndicate of financial institutions organized by any such Bank or affiliate (any
such Bank or affiliate (even if any such Bank ceases to be a Bank under the
Credit Agreement for any reason) and any such other institution that
participates in such Interest Rate Protection Agreements or Other Hedging
Agreements and their subsequent successors and assigns collectively, the "Other
Creditors", and together with the Bank Creditors, the "Secured Creditors");
WHEREAS, pursuant to Section 14 of the Credit Agreement, Parent,
Holdings and (with respect to the Obligations of the French Borrower only) the
US Borrower have provided a joint and several guaranty of the payment when due
of all obligations and liabilities of
<PAGE>
EXHIBIT H
PAGE 2
the Borrowers under and in connection with the Credit Documents and each
Interest Rate Protection Agreement or Other Hedging Agreement entered into
with one or more Other Creditors;
WHEREAS, pursuant to the Subsidiaries Guaranty, the Subsidiary
Guarantors have jointly and severally guaranteed the payment when due of all
obligations and liabilities of the Borrowers under or with respect to the Credit
Documents and each Interest Rate Protection Agreement or Other Hedging Agreement
entered into with one or more Other Creditors;
WHEREAS, it is a condition precedent to the making of Loans to the
Borrowers and the issuance of, and participation in, Letters of Credit for the
account of the US Borrower under the Amended and Restated Credit Agreement and
to the Other Creditors entering into Interest Rate Protection Agreements or
Other Hedging Agreements that each Assignor shall have executed and delivered to
the Collateral Agent this Agreement; and
WHEREAS, each Assignor desires to execute this Agreement to satisfy
the condition described in the preceding paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to each
Assignor, the receipt and sufficiency of which are hereby acknowledged, each
Assignor hereby makes the following representations and warranties to the
Collateral Agent and hereby covenants and agrees with the Collateral Agent as
follows:
ARTICLE I
SECURITY INTERESTS
1.1. GRANT OF SECURITY INTERESTS. (a) As security for the prompt
and complete payment and performance when due of all Obligations of such
Assignor, each Assignor does hereby assign and transfer unto the Collateral
Agent, and does hereby pledge and grant to the Collateral Agent for the benefit
of the Secured Creditors, a continuing security interest of first priority in,
all of the right, title and interest of such Assignor in, to and under all of
the following, whether now existing or hereafter from time to time acquired:
(i) each and every Receivable;
(ii) all Contracts, together with all Contract Rights arising
thereunder;
(iii) all Inventory;
(iv) the Cash Collateral Account and any other cash collateral
account established for any Assignor and all moneys, securities and
instruments deposited or required to be deposited in such Cash Collateral
Account;
(v) all Equipment;
<PAGE>
EXHIBIT H
PAGE 3
(vi) all Marks, together with the registrations and right to all
renewals thereof, and the goodwill of the business of such Assignor
symbolized by the Marks;
(vii) all Patents and Copyrights and all reissues, renewals and
extensions thereof;
(viii) all computer programs of such Assignor and all intellectual
property rights therein and all other proprietary information of such
Assignor, including, but not limited to, trade secrets and Trade Secret
Rights;
(ix) all insurance policies;
(x) all other Goods, General Intangibles, Chattel Paper, Documents
and Instruments and other assets of such Assignor (other than the Pledged
Securities); and
(x) all Proceeds and products of any and all of the foregoing (all
of the above, collectively, the "Collateral").
(b) The security interest of the Collateral Agent under this
Agreement extends to all Collateral of the kind which is the subject of this
Agreement which any Assignor may acquire at any time during the continuation of
this Agreement.
1.2. POWER OF ATTORNEY. Each Assignor hereby constitutes and
appoints the Collateral Agent its true and lawful attorney, irrevocably, with
full power after the occurrence of and during the continuance of an Event of
Default (in the name of such Assignor or otherwise) to act, require, demand,
receive, compound and give acquittance for any and all monies and claims for
monies due or to become due to such Assignor under or arising out of the
Collateral, to endorse any checks or other instruments or orders in connection
therewith and to file any claims or take any action or institute any proceedings
which the Collateral Agent may deem to be necessary or advisable to accomplish
the purposes of this Agreement, which appointment as attorney is coupled with an
interest.
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which
representations, warranties and covenants shall survive execution and delivery
of this Agreement, as follows:
2.1. NECESSARY FILINGS. All filings, registrations and recordings
necessary or appropriate to create, preserve, protect and perfect the security
interest granted by such Assignor to the Collateral Agent hereby in respect of
the Collateral have been accomplished and the security interest granted to the
Collateral Agent pursuant to this Agreement in and to the Collateral constitutes
a perfected security interest therein prior to the rights of all other Persons
therein and subject to no other Liens (other than Permitted Liens) and is
entitled to all the rights, priorities and benefits afforded by the
<PAGE>
EXHIBIT H
PAGE 4
Uniform Commercial Code or other relevant law as enacted in any relevant
jurisdiction to perfected security interests.
2.2. NO LIENS. Such Assignor is, and as to Collateral acquired by it
from time to time after the date hereof such Assignor will be, the owner of all
Collateral free from any Lien, security interest, encumbrance or other right,
title or interest of any Person (other than Permitted Liens and Liens created
under this Agreement) and such Assignor shall defend the Collateral against all
claims and demands of all Persons at any time claiming the same or any interest
therein adverse to the Collateral Agent.
2.3. OTHER FINANCING STATEMENTS. As of the date hereof, there is no
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) covering or purporting to cover any interest of any
kind in the Collateral (other than (x) those created under this Agreement and
(y) as may be filed in connection with Liens permitted pursuant to Section
9.01(iii) of the Credit Agreement), and so long as the Total Commitment has not
been terminated or any Note or Letter of Credit remains outstanding or any of
the Obligations remain unpaid or any Interest Rate Protection Agreement or Other
Hedging Agreement remains in effect or any Obligations are owed with respect
thereto, such Assignor will not execute or authorize to be filed in any public
office any financing statement (or similar statement or instrument of
registration under the law of any jurisdiction) or statements relating to the
Collateral, except financing statements filed or to be filed in respect of and
covering the security interests granted hereby by such Assignor or as permitted
by the Credit Agreement.
2.4. CHIEF EXECUTIVE OFFICE; RECORDS. The chief executive office of
such Assignor is located at the address or addresses indicated on Annex A
hereto. Such Assignor will not move its chief executive office except to such
new location as such Assignor may establish in accordance with the last sentence
of this Section 2.4. The originals of all documents evidencing all Receivables
and Contract Rights and Trade Secret Rights of such Assignor and the only
original books of account and records of such Assignor relating thereto are, and
will continue to be, kept at such chief executive office or at such new
locations as such Assignor may establish in accordance with the last sentence of
this Section 2.4. All Receivables and Contract Rights and Trade Secret Rights
of such Assignor are, and will continue to be, maintained at, and controlled and
directed (including, without limitation, for general accounting purposes) from,
the office locations described above or such new location established in
accordance with the last sentence of this Section 2.4. No Assignor shall
establish new locations for such offices until (i) it shall have given to the
Collateral Agent not less than 30 days' prior written notice of its intention to
do so, clearly describing such new location and providing such other information
in connection therewith as the Collateral Agent may reasonably request,
(ii) with respect to such new location, it shall have taken all action,
satisfactory to the Collateral Agent, to maintain the security interest of the
Collateral Agent in the Collateral intended to be granted hereby at all times
fully perfected and in full force and effect, (iii) at the request of the
Collateral Agent, it shall have furnished an opinion of counsel acceptable to
the Collateral Agent to the effect that all financing or continuation statements
and amendments or supplements thereto have been filed in the appropriate filing
office or offices, and (iv) the Collateral Agent shall have received evidence
that all other actions (including, without limitation, the payment of all filing
fees and taxes, if any, payable in
<PAGE>
EXHIBIT H
PAGE 5
connection with such filings) have been taken, in order to perfect (and
maintain the perfection and priority of) the security interest granted hereby.
2.5. LOCATION OF INVENTORY AND EQUIPMENT. All Inventory and
Equipment held on the date hereof by each Assignor is located at one of the
locations shown on Annex B hereto. Each Assignor agrees that all Inventory and
Equipment now held or subsequently acquired by it shall be kept at (or shall be
in transport to) any one of the locations shown on Annex B hereto, or such new
location as such Assignor may establish in accordance with the last sentence of
this Section 2.5, except as permitted to be sold in accordance with the terms
hereof and in the Credit Agreement. Any Assignor may establish a new location
for Inventory and Equipment only if (i) it shall have given to the Collateral
Agent not less than 30 days prior written notice of its intention so to do,
clearly describing such new location and providing such other information in
connection therewith as the Collateral Agent may reasonably request, (ii) with
respect to such new location, it shall have taken all action satisfactory to the
Collateral Agent to maintain the security interest of the Collateral Agent in
the Collateral intended to be granted hereby at all times fully perfected and in
full force and effect, (iii) at the request of the Collateral Agent, it shall
have furnished an opinion of counsel acceptable to the Collateral Agent to the
effect that all financing or continuation statements and amendments or
supplements thereto have been filed in the appropriate filing office or offices,
and (iv) the Collateral Agent shall have received evidence that all other
actions (including, without limitation, the payment of all filing fees and
taxes, if any, payable in connection with such filings) have been taken, in
order to perfect (and maintain the perfection and priority of) the security
interest granted hereby.
2.6. RECOURSE. This Agreement is made with full recourse to each
Assignor and pursuant to and upon all the warranties, representations, covenants
and agreements on the part of such Assignor contained herein, in the other
Credit Documents, in the Interest Rate Protection Agreements or Other Hedging
Agreements and otherwise in writing in connection herewith or therewith.
2.7. TRADE NAMES; CHANGE OF NAME. No Assignor has or operates in any
jurisdiction under, or previously has had or has operated in any jurisdiction
within the five year period preceding the date of this Agreement under, any
trade names, fictitious names or other names except its legal name and such
other trade or fictitious names as are listed on Annex C hereto. No Assignor
shall change its legal name or assume or operate in any jurisdiction under any
trade, fictitious or other name except those names listed on Annex C hereto in
the jurisdictions listed with respect to such names and new names (including,
without limitation, any names of divisions or operations) and/or jurisdictions
established in accordance with the last sentence of this Section 2.7. No
Assignor shall assume or operate in any jurisdiction under any new trade,
fictitious or other name or operate under any existing name in any additional
jurisdiction until (i) it shall have given to the Collateral Agent not less than
30 days' prior written notice of its intention so to do, clearly describing such
new name and/or jurisdiction and, in the case of a new name, the jurisdictions
in which such new name shall be used and providing such other information in
connection therewith as the Collateral Agent may reasonably request, (ii) with
respect to such new name and/or jurisdiction, it shall have taken all action to
maintain the security interest of the Collateral Agent in the Collateral
intended to be granted hereby at all times fully perfected and in full force and
effect, (iii) at the request of the Collateral Agent, it shall have
<PAGE>
EXHIBIT H
PAGE 6
furnished an opinion of counsel acceptable to the Collateral Agent to the
effect that all financing or continuation statements and amendments or
supplements thereto have been filed in the appropriate filing office or
offices, and (iv) the Collateral Agent shall have received evidence that all
other actions (including, without limitation, the payment of all filing fees
and taxes, if any, payable in connection with such filings) have been taken,
in order to perfect (and maintain the perfection and priority of) the
security interest granted hereby.
ARTICLE III
SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS
3.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES. As of the time when
each of its Receivables arises, each Assignor shall be deemed to have
represented and warranted that such Receivable, and all records, papers and
documents relating thereto (if any) are genuine and in all respects what they
purport to be, and that all papers and documents (if any) relating thereto
(i) will represent the genuine legal, valid and binding obligation of the
account debtor evidencing indebtedness unpaid and owed by the respective account
debtor arising out of the performance of labor or services or the sale or lease
and delivery of the inventory, materials, equipment or merchandise listed
therein, or both, (ii) will be the only original writings evidencing and
embodying such obligation of the account debtor named therein (other than copies
created for general accounting purposes), (iii) will evidence true and valid
obligations, enforceable in accordance with their respective terms except to the
extent provided in Section 3.5 and (iv) will be in compliance and will conform
in all material respects with all applicable federal, state and local laws and
applicable laws of any relevant foreign jurisdiction.
3.2. MAINTENANCE OF RECORDS. Each Assignor will keep and maintain at
its own cost and expense satisfactory and complete records of its Receivables
and Contracts, including, but not limited to, originals or copies of all
documentation (including each Contract) with respect thereto, records of all
payments received, all credits granted thereon, all merchandise returned and all
other dealings therewith, and such Assignor will make the same available on such
Assignor's premises to the Collateral Agent for inspection, at such Assignor's
own cost and expense, at any and all reasonable times and intervals as the
Collateral Agent may request. Upon the occurrence and during the continuance of
an Event of Default and at the request of the Collateral Agent, such Assignor
shall, at its own cost and expense, deliver all tangible evidence of its
Receivables and Contract Rights (including, without limitation, all documents
evidencing the Receivables and all Contracts) and such books and records to the
Collateral Agent or to its representatives (copies of which evidence and books
and records may be retained by such Assignor). If the Collateral Agent so
directs, such Assignor shall legend, in form and manner satisfactory to the
Collateral Agent, the Receivables and the Contracts, as well as books, records
and documents of such Assignor evidencing or pertaining to such Receivables and
Contracts with an appropriate reference to the fact that such Receivables and
Contracts have been assigned to the Collateral Agent and that the Collateral
Agent has a security interest therein.
<PAGE>
EXHIBIT H
PAGE 7
3.3. DIRECTION TO ACCOUNT DEBTORS; CONTRACTING PARTIES; ETC. Upon
the occurrence and during the continuance of an Event of Default, and if the
Collateral Agent so directs any Assignor, such Assignor agrees (x) to cause all
payments on account of the Receivables and Contracts to be made directly to the
Cash Collateral Account, (y) that the Collateral Agent may, at its option,
directly notify the obligors with respect to any Receivables and/or under any
Contracts to make payments with respect thereto as provided in preceding clause
(x), and (z) that the Collateral Agent may enforce collection of any such
Receivables and Contracts and may adjust, settle or compromise the amount of
payment thereof, in the same manner and to the same extent as such Assignor.
Without notice to or assent by any Assignor, the Collateral Agent may apply any
or all amounts then in, or thereafter deposited in, the Cash Collateral Account
which application shall be effected in the manner provided in Section 7.4 of
this Agreement. The costs and expenses (including attorneys' fees) of
collection, whether incurred by the Assignor or the Collateral Agent, shall be
borne by the relevant Assignor.
3.4. MODIFICATION OF TERMS; ETC. No Assignor shall rescind or cancel
any indebtedness evidenced by any Receivable or under any Contract, or modify
any term thereof or make any adjustment with respect thereto, or extend or renew
the same, or compromise or settle any material dispute, claim, suit or legal
proceeding relating thereto, or sell any Receivable or Contract, or interest
therein, without the prior written consent of the Collateral Agent, except as
permitted by Section 3.5. Each Assignor will duly fulfill all obligations on
its part to be fulfilled under or in connection with the Receivables and
Contracts and will do nothing to impair the rights of the Collateral Agent in
the Receivables or Contracts.
3.5. COLLECTION. Each Assignor shall endeavor to cause to be
collected from the account debtor named in each of its Receivables or obligor
under any Contract, as and when due (including, without limitation, amounts,
services or products which are delinquent, such amounts, services or products to
be collected in accordance with generally accepted lawful collection procedures)
any and all amounts, services or products owing under or on account of such
Receivable or Contract, and apply forthwith upon receipt thereof all such
amounts, services or products as are so collected to the outstanding balance of
such Receivable or under such Contract, except that, prior to the occurrence of
an Event of Default, any Assignor may allow in the ordinary course of business
as adjustments to amounts, services or products owing under its Receivables and
Contracts (i) an extension or renewal of the time or times of payment or
exchange, or settlement for less than the total unpaid balance, which such
Assignor finds appropriate in accordance with reasonable business judgment and
(ii) a refund or credit due as a result of returned or damaged merchandise or
improperly performed services. The costs and expenses (including, without
limitation, attorneys' fees) of collection, whether incurred by an Assignor or
the Collateral Agent, shall be borne by the relevant Assignor.
3.6. INSTRUMENTS. If any Assignor owns or acquires any Instrument
constituting Collateral, such Assignor will within 10 days notify the Collateral
Agent thereof, and upon request by the Collateral Agent will promptly deliver
such Instrument to the Collateral Agent appropriately endorsed to the order of
the Collateral Agent as further security hereunder.
3.7. FURTHER ACTIONS. Each Assignor will, at its own expense, make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such
<PAGE>
EXHIBIT H
PAGE 8
vouchers, invoices, schedules, confirmatory assignments, conveyances,
financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such
further steps relating to its Receivables, Contracts, Instruments and other
property or rights covered by the security interest hereby granted, as the
Collateral Agent may require.
ARTICLE IV
SPECIAL PROVISIONS CONCERNING TRADEMARKS
4.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES. Each Assignor
represents and warrants that it is the true, lawful, sole and exclusive owner of
the Marks listed in Annex D hereto and that said listed Marks constitute all the
Marks that such Assignor presently owns or uses in connection with its business
and include all the United States federal registrations or applications
registered in the United States Patent and Trademark Office. Each Assignor
represents and warrants that it owns all Marks that it uses. Each Assignor
further warrants that it has no knowledge as of the date hereof, of any third
party claim that any aspect of such Assignor's present or contemplated business
operations infringes or will infringe any rights in any trademark, service mark
or trade name. Each Assignor represents and warrants that it is the beneficial
and record owner of all trademark registrations and applications listed in Annex
D hereto and that said registrations are valid, subsisting and have not been
cancelled and that such Assignor is not aware of any third-party claim that any
of said registrations is invalid or unenforceable, or that there is any reason
that any of said applications will not pass to registration. Each Assignor
represents and warrants that upon the recordation of an Assignment of Security
Interest in United States Trademarks and Patents in the form of Annex G hereto
in the United States Patent and Trademark Office, together with filings on Form
UCC-1 pursuant to this Agreement, all filings, registrations and recordings
necessary or appropriate to perfect the security interest granted to the
Collateral Agent in the United States Marks covered by this Agreement under
federal law will have been accomplished. Each Assignor agrees to execute such
an Assignment of Security Interest in United States Trademark and Patents
covering all right, title and interest in each United States Mark, and the
associated goodwill, of such Assignor, and to record the same. Each Assignor
hereby grants to the Collateral Agent an absolute power of attorney to sign,
upon the occurrence and during the continuance of an Event of Default, any
document which may be required by the U.S. Patent and Trademark Office or
secretary of state or equivalent governmental agency of any State of the United
States or any foreign jurisdiction in order to effect an absolute assignment of
all right, title and interest in each Mark, and record the same.
4.2. LICENSES AND ASSIGNMENTS. Each Assignor hereby agrees not to
divest itself of any right under any Mark which, in the good faith judgment of
management, is useful or valuable to its business, absent prior written approval
of the Collateral Agent, except as otherwise permitted by this Agreement or the
Credit Agreement.
4.3. INFRINGEMENTS. Each Assignor agrees, promptly upon learning
thereof, to notify the Collateral Agent in writing of the name and address of,
and to furnish such pertinent information that may be available with respect to,
(i) any party who such Assignor believes is
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EXHIBIT H
PAGE 9
infringing or diluting or otherwise violating in any respect any of such
Assignor's rights in and to any Mark, or (ii) with respect to any party
claiming that such Assignor's use of any Mark violates in any material
respect any property right of that party. Each Assignor further agrees,
unless otherwise agreed by the Collateral Agent, diligently to prosecute any
Person infringing any Mark.
4.4. PRESERVATION OF MARKS. Each Assignor agrees to use all its
Marks which, in the good faith judgment of management, is useful or valuable to
its business, in interstate or foreign commerce, as the case may be, during the
time in which this Agreement is in effect, sufficiently to preserve such Marks
as valid and subsisting trademarks or service marks under the laws of the United
States or the relevant foreign jurisdiction.
4.5. MAINTENANCE OF REGISTRATION. Each Assignor shall, at its own
expense, diligently process all documents required by the Trademark Act of 1946,
as amended, 15 U.S.C. Sections 1051 ET SEQ. to maintain trademark
registrations, including but not limited to affidavits of continued use and
applications for renewals of registration in the United States Patent and
Trademark Office for all of its registered Marks pursuant to 15 U.S.C. Sections
1058, 1059 and 1065 and any foreign equivalent thereof, and shall pay all fees
and disbursements in connection therewith and shall not abandon any such filing
of affidavit of use or any such application of renewal prior to the exhaustion
of all administrative and judicial remedies without prior written consent of the
Collateral Agent. Each Assignor agrees to notify the Collateral Agent at least
two (2) months prior to the dates on which the affidavits of use or the
applications for renewal registration are due with respect to any registered
Mark that the affidavits of use or the renewal is being processed.
4.6. FUTURE REGISTERED MARKS. If any registration for any Mark
issues hereafter to any Assignor as a result of any application now or hereafter
pending before the United States Patent and Trademark Office, within 30 days of
receipt of such certificate, such Assignor shall deliver to the Collateral Agent
a copy of such certificate, and an assignment for security in such Mark, to the
Collateral Agent and at the expense of such Assignor, confirming the assignment
for security in such Mark to the Collateral Agent hereunder, the form of such
security to be substantially the same as the form hereof or in such other form
as may be satisfactory to the Collateral Agent.
4.7. REMEDIES. If an Event of Default shall occur and be continuing,
the Collateral Agent may, by written notice to the relevant Assignor, take any
or all of the following actions: (i) declare the entire right, title and
interest of such Assignor in and to each of the Marks, together with all
trademark rights and rights of protection to the same and the goodwill of such
Assignor's business symbolized by said Marks and the right to recover for post
infringements thereof, vested in the Collateral Agent for the benefit of the
Secured Creditors, in which event such rights, title and interest shall
immediately vest, in the Collateral Agent for the benefit of the Secured
Creditors, and the Collateral Agent shall be entitled to exercise the power of
attorney referred to in Section 4.1 hereof to execute, cause to be acknowledged
and notarized and to record said absolute assignment with the applicable agency;
(ii) take and use or sell the Marks and the goodwill of such Assignor's business
symbolized by the Marks and the right to carry on the business and use the
assets of such Assignor in connection with which the Marks have been used; and
(iii) direct such Assignor to refrain, in which event such Assignor shall
refrain, from using the
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EXHIBIT H
PAGE 10
Marks in any manner whatsoever, directly or indirectly, and, if requested by
the Collateral Agent, change such Assignor's corporate name to eliminate
therefrom any use of any Mark and execute such other and further documents
that the Collateral Agent may request to further confirm this and to transfer
ownership of the Marks and registrations and any pending trademark
applications therefor in the United States Patent and Trademark Office or any
equivalent government agency or office in any foreign jurisdiction to the
Collateral Agent.
ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS
5.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES. Each Assignor
represents and warrants that it is the true and lawful exclusive owner of all
rights in (i) all trade secrets and proprietary information necessary to operate
the business of such Assignor (the "Trade Secret Rights"), (ii) the Patents
listed in Annex E hereto and (iii) the Copyrights listed in Annex F hereto, that
said Patents constitute all the patents and applications for patents that such
Assignor now owns and that are necessary in the conduct of the business of such
Assignor and that said Copyrights constitute all registrations of copyrights and
applications for copyright registrations that the Assignor now owns and that are
necessary in the conduct of the business of such Assignor. Each Assignor
further represents and warrants that it has the exclusive right to use and
practice under all Patents and Copyrights that it owns, uses or practices under
and has the exclusive right to exclude others from using or practicing under any
Patents its owns, uses or practices under. Each Assignor further warrants that,
as of the date hereof, it has no knowledge of any third party claim that any
aspect of such Assignor's present or contemplated business operations infringes
or will infringe any rights in any patent or copyright or such Assignor has
misappropriated any trade secret or proprietary information. Each Assignor
represents and warrants that upon the recordation of an Assignment of Security
Interest in United States Trademarks and Patents in the form of Annex G hereto
in the United States Patent and Trademark Office and the recordation of an
Assignment of Security Interest in United States Copyrights in the form of Annex
H hereto in the United States Copyright Office, together with filings on
Form UCC-1 pursuant to this Agreement, all filings, registrations and recordings
necessary or appropriate to perfect the security interest granted to the
Collateral Agent in the United States Patents and United States Copyrights
covered by this Agreement under federal law will have been accomplished. Each
Assignor agrees to execute such an Assignment of Security Interest in United
States Trademarks and Patents covering all right, title and interest in each
United States Patent of such Assignor and to record the same, and to execute
such an Assignment of Security Interest in United States Copyrights covering all
right, title and interest in each United States Copyright of such Assignor and
to record the same. Each Assignor hereby grants to the Collateral Agent an
absolute power of attorney to sign, upon the occurrence and during the
continuance of any Event of Default, any document which may be required by the
U.S. Patent and Trademark Office or equivalent governmental agency in any
foreign jurisdiction or the U.S. Copyright Office or equivalent governmental
agency in any foreign jurisdiction in order to effect an absolute assignment of
all right, title and interest in each Patent and Copyright, and to record the
same.
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EXHIBIT H
PAGE 11
5.2. LICENSES AND ASSIGNMENTS. Each Assignor hereby agrees not to
divest itself of any right under any Patent or Copyright which, in the good
faith judgment of management, is useful or valuable to its business absent prior
written approval of the Collateral Agent, except as otherwise permitted by this
Agreement or the Credit Agreement.
5.3. INFRINGEMENTS. Each Assignor agrees, promptly upon learning
thereof, to furnish the Collateral Agent in writing with all pertinent
information available to such Assignor with respect to infringement,
contributing infringement or active inducement to infringe in any Patent or
Copyright or to any claim that the practice of any Patent or the use of any
Copyright violates any property right of a third party, or with respect to any
misappropriation of any Trade Secret Right or any claim that practice of any
Trade Secret Right violates any property right of a third party. Each Assignor
further agrees, absent direction of the Collateral Agent to the contrary,
diligently to prosecute any Person infringing any Patent or Copyright or any
Person misappropriating any Trade Secret Right.
5.4. MAINTENANCE OF PATENTS AND COPYRIGHTS. At its own expense, each
Assignor shall make timely payment of all post-issuance fees required pursuant
to 35 U.S.C. Section 41 and any foreign equivalent thereof to maintain in force
rights under each Patent, and to apply as permitted pursuant to applicable law
for any renewal of each Copyright absent prior written consent of the Collateral
Agent.
5.5. PROSECUTION OF PATENT OR COPYRIGHT APPLICATION. At its own
expense, each Assignor shall diligently prosecute all applications for Patents
listed in Annex E hereto and for Copyrights listed in Annex F hereto and shall
not abandon any such application prior to exhaustion of all administrative and
judicial remedies, absent written consent of the Collateral Agent.
5.6. OTHER PATENTS AND COPYRIGHTS. Within 30 days of the acquisition
or issuance of a Patent or of a Copyright registration, or of filing of an
application for a Patent or Copyright registration, the relevant Assignor shall
deliver to the Collateral Agent a copy of said Copyright registration or Patent
or certificate or registration of, or application therefor, as the case may be,
with an assignment for security as to such Patent or Copyright, as the case may
be, to the Collateral Agent and at the expense of such Assignor, confirming the
assignment for security, the form of such assignment for security to be
substantially the same as the form hereof or in such other form as may be
satisfactory to the Collateral Agent.
5.7. REMEDIES. If an Event of Default shall occur and be continuing,
the Collateral Agent may by written notice to the relevant Assignor, take any or
all of the following actions: (i) declare the entire right, title, and interest
of such Assignor in each of the Patents and Copyrights vested in the Collateral
Agent for the benefit of the Secured Creditors, in which event such right,
title, and interest shall immediately vest in the Collateral Agent for the
benefit of the Secured Creditors, in which case the Collateral Agent shall be
entitled to exercise the power of attorney referred to in Section 5.1 hereof to
execute, cause to be acknowledged and notarized and to record said absolute
assignment with the applicable agency; (ii) take and practice or sell the
Patents, Copyrights and Trade Secret Rights; and (iii) direct such Assignor to
refrain, in which event such Assignor shall refrain, from practicing the Patents
and using the Copyrights and/or
<PAGE>
EXHIBIT H
PAGE 12
Trade Secret Rights directly or indirectly, and such Assignor shall execute
such other and further documents as the Collateral Agent may request further
to confirm this and to transfer ownership of the Patents, Copyrights and
Trade Secret Rights to the Collateral Agent for the benefit of the Secured
Creditors.
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL
6.1. PROTECTION OF COLLATERAL AGENT'S SECURITY. Each Assignor will
do nothing to impair the rights of the Collateral Agent in the Collateral. Each
Assignor will at all times keep its Inventory and Equipment insured in favor of
the Collateral Agent, at such Assignor's own expense to the extent and in the
manner provided in the Credit Agreement; all policies or certificates with
respect to such insurance (and any other insurance maintained by such Assignor);
(i) shall be endorsed to the Collateral Agent's satisfaction for the benefit of
the Collateral Agent (including, without limitation, by naming the Collateral
Agent as loss payee and naming the Collateral Agent as an additional insured);
(ii) shall state that such insurance policies shall not be cancelled or
materially revised without 30 days' prior written notice thereof by the insurer
to the Collateral Agent; and (iii) certified copies of such policies or
certificates shall be deposited with the Collateral Agent. If any Assignor
shall fail to insure its Inventory and Equipment in accordance with the
preceding sentence, or if any Assignor shall fail to so endorse and deposit all
policies or certificates with respect thereto, the Collateral Agent shall have
the right (but shall be under no obligation) to procure such insurance and such
Assignor agrees to promptly reimburse the Collateral Agent for all costs and
expenses of procuring such insurance. The Collateral Agent shall, at the time
such proceeds of such insurance are distributed to the Secured Creditors, apply
such proceeds in accordance with Section 7.4 hereof. Each Assignor assumes all
liability and responsibility in connection with the Collateral acquired by it
and the liability of such Assignor to pay the Obligations shall in no way be
affected or diminished by reason of the fact that such Collateral may be lost,
destroyed, stolen, damaged or for any reason whatsoever unavailable to such
Assignor.
6.2. WAREHOUSE RECEIPTS NON-NEGOTIABLE. Each Assignor agrees that if
any warehouse receipt or receipt in the nature of a warehouse receipt is issued
with respect to any of its Inventory, such warehouse receipt or receipt in the
nature thereof shall not be "negotiable" (as such term is used in Section 7-104
of the Uniform Commercial Code as in effect in any relevant jurisdiction or
under other relevant law).
6.3. FURTHER ACTIONS. Each Assignor will, at its own expense, make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such lists, descriptions and designations of its Collateral,
warehouse receipts, receipts in the nature of warehouse receipts, bills of
lading, documents of title, vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, reports and other assurances or instruments and take
such further steps relating to the Collateral and other property or rights
covered by the security interest hereby granted, which the Collateral Agent
deems reasonably appropriate or advisable to perfect, preserve or protect its
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EXHIBIT H
PAGE 13
security interest in the Collateral, including, without limitation, any
Collateral which previously constituted Excluded Collateral.
6.4. FINANCING STATEMENTS. Each Assignor agrees to execute and
deliver to the Collateral Agent such financing statements, in form acceptable to
the Collateral Agent, as the Collateral Agent may from time to time request or
as are necessary or desirable in the opinion of the Collateral Agent to
establish and maintain a valid, enforceable, first priority perfected security
interest in the Collateral as provided herein and the other rights and security
contemplated hereby all in accordance with the Uniform Commercial Code as
enacted in any and all relevant jurisdictions or any other relevant law. Each
Assignor will pay any applicable filing fees, recordation taxes and related
expenses relating to its Collateral. Each Assignor hereby authorizes the
Collateral Agent to file any such financing statements without the signature of
such Assignor where permitted by law.
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
7.1. REMEDIES; OBTAINING THE COLLATERAL UPON DEFAULT. Each Assignor
agrees that, if any Event of Default shall have occurred and be continuing, then
and in every such case, the Collateral Agent, in addition to any rights now or
hereafter existing under applicable law, shall have all rights as a secured
creditor under the Uniform Commercial Code in all relevant jurisdictions and may
also:
(i) personally, or by agents or attorneys, immediately take
possession of the Collateral or any part thereof, from such Assignor or any
other Person who then has possession of any part thereof with or without
notice or process of law, and for that purpose may enter upon such
Assignor's premises where any of the Collateral is located and remove the
same and use in connection with such removal any and all services,
supplies, aids and other facilities of such Assignor;
(ii) instruct the obligor or obligors on any agreement, instrument
or other obligation (including, without limitation, the Receivables and the
Contracts) constituting the Collateral to make any payment required by the
terms of such agreement, instrument or other obligation directly to the
Collateral Agent;
(iii) withdraw all monies, securities and instruments in the Cash
Collateral Account for application to the Obligations in accordance with
Section 7.4 hereof;
(iv) sell, assign or otherwise liquidate any or all of the
Collateral or any part thereof in accordance with Section 7.2 hereof, or
direct the relevant Assignor to sell, assign or otherwise liquidate any or
all of the Collateral or any part thereof, and, in each case, take
possession of the proceeds of any such sale or liquidation;
(v) take possession of the Collateral or any part thereof, by
directing the relevant Assignor in writing to deliver the same to the
Collateral Agent at any place or
<PAGE>
EXHIBIT H
PAGE 14
places designated by the Collateral Agent, in which event such Assignor
shall at its own expense:
(x) forthwith cause the same to be moved to the place or
places so designated by the Collateral Agent and there delivered to
the Collateral Agent;
(y) store and keep any Collateral so delivered to the
Collateral Agent at such place or places pending further action by the
Collateral Agent as provided in Section 7.2 hereof; and
(z) while the Collateral shall be so stored and kept, provide
such guards and maintenance services as shall be necessary to protect
the same and to preserve and maintain them in good condition; and
(vi) license or sublicense, whether on an exclusive or nonexclusive
basis, any Marks, Patents or Copyrights included in the Collateral for such
term and on such conditions and in such manner as the Collateral Agent
shall in its sole judgment determine;
it being understood that each Assignor's obligation so to deliver the Collateral
is of the essence of this Agreement and that, accordingly, upon application to a
court of equity having jurisdiction, the Collateral Agent shall be entitled to a
decree requiring specific performance by such Assignor of said obligation.
7.2. REMEDIES; DISPOSITION OF THE COLLATERAL. Any Collateral
repossessed by the Collateral Agent under or pursuant to Section 7.1 hereof and
any other Collateral whether or not so repossessed by the Collateral Agent, may
be sold, assigned, leased or otherwise disposed of under one or more contracts
or as an entirety, and without the necessity of gathering at the place of sale
the property to be sold, and in general in such manner, at such time or times,
at such place or places and on such terms as the Collateral Agent may, in
compliance with any mandatory requirements of applicable law, determine to be
commercially reasonable. Any of the Collateral may be sold, leased or otherwise
disposed of, in the condition in which the same existed when taken by the
Collateral Agent or after any overhaul or repair at the expense of the relevant
Assignor which the Collateral Agent shall determine to be commercially
reasonable. Any such disposition which shall be a private sale or other private
proceedings permitted by such requirements shall be made upon not less than 10
days' written notice to the relevant Assignor specifying the time at which such
disposition is to be made and the intended sale price or other consideration
therefor, and shall be subject, for the 10 days after the giving of such notice,
to the right of the relevant Assignor or any nominee of such Assignor to acquire
the Collateral involved at a price or for such other consideration at least
equal to the intended sale price or other consideration so specified. Any such
disposition which shall be a public sale permitted by such requirements shall be
made upon not less than 10 days' written notice to the relevant Assignor
specifying the time and place of such sale and, in the absence of applicable
requirements of law, shall be by public auction (which may, at the Collateral
Agent's option, be subject to reserve), after publication of notice of such
auction not less than 10 days prior thereto in two newspapers in general
circulation to be selected by the Collateral Agent. To the extent permitted by
any such requirement of law, the Collateral Agent may bid for and become the
purchaser of the Collateral
<PAGE>
EXHIBIT H
PAGE 15
or any item thereof, offered for sale in accordance with this Section without
accountability to the relevant Assignor. If, under mandatory requirements of
applicable law, the Collateral Agent shall be required to make disposition of
the Collateral within a period of time which does not permit the giving of
notice to the relevant Assignor as hereinabove specified, the Collateral
Agent need give such Assignor only such notice of disposition as shall be
reasonably practicable in view of such mandatory requirements of applicable
law. Each Assignor agrees to do or cause to be done all such other acts and
things as may be reasonably necessary to make such sale or sales of all or
any portion of the Collateral of such Assignor valid and binding and in
compliance with any and all applicable laws, regulations, orders, writs,
injunctions, decrees or awards of any and all courts, arbitrations or
governmental instrumentalities, domestic or foreign, having jurisdiction over
any such sale or sales, all at such Assignor's expense.
7.3. WAIVER OF CLAIMS. Except as otherwise provided in this
Agreement, EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT'S
TAKING POSSESSION OR THE COLLATERAL AGENT'S DISPOSITION OF ANY OF THE
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING
FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH SUCH ASSIGNOR
WOULD OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES
OR OF ANY STATE, and such Assignor hereby further waives, to the extent
permitted by law:
(i) all damages occasioned by such taking of possession except any
damages which are the direct result of the Collateral Agent's gross
negligence or willful misconduct;
(ii) all other requirements as to the time, place and terms of sale
or other requirements with respect to the enforcement of the Collateral
Agent's rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable law
in order to prevent or delay the enforcement of this Agreement or the
absolute sale of the Collateral or any portion thereof, and each Assignor,
for itself and all who may claim under it, insofar as it or they now or
hereafter lawfully may, hereby waives the benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other realization upon,
any Collateral shall operate to divest all right, title, interest, claim and
demand, either at law or in equity, of the relevant Assignor therein and
thereto, and shall be a perpetual bar both at law and in equity against such
Assignor and against any and all Persons claiming or attempting to claim the
Collateral so sold, optioned or realized upon, or any part thereof, from,
through and under such Assignor.
7.4. APPLICATION OF PROCEEDS. (a) All moneys collected by the
Collateral Agent upon any sale or other disposition of the Collateral (or, to
the extent the Pledge Agreement or Mortgages require proceeds of collateral
thereunder to be applied in accordance with the provisions of this Agreement,
the Pledgee or Mortgagee under such other Security Documents),
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EXHIBIT H
PAGE 16
together with all other moneys received by the Collateral Agent hereunder,
shall be applied as follows:
(i) first, to the payment of all Obligations owing the Collateral
Agent of the type described in clauses (iii) and (iv) of the definition of
"Obligations";
(ii) second, to the extent proceeds remain after the application
pursuant to the preceding clause (i), an amount equal to the outstanding
Primary Obligations shall be paid to the Secured Creditors as provided in
Section 7.4(e) hereof, with each Secured Creditor receiving an amount equal
to its outstanding Primary Obligations or, if the proceeds are insufficient
to pay in full all such Primary Obligations, its Pro Rata Share of the
amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) and (ii), an amount equal to the
outstanding Secondary Obligations shall be paid to the Secured Creditors as
provided in Section 7.4(e) hereof, with each Secured Creditor receiving an
amount equal to its outstanding Secondary Obligations or, if the proceeds
are insufficient to pay in full all such Secondary Obligations, its Pro
Rata Share of the amount remaining to be distributed; and
(iv) fourth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iii), inclusive, and
following the termination of this Agreement pursuant to Section 10.8(a)
hereof, to the relevant Assignor or to whomever may be lawfully entitled to
receive such surplus.
(b) For purposes of this Agreement (x) "Pro Rata Share" shall mean,
when calculating a Secured Creditor's portion of any distribution or amount,
that amount (expressed as a percentage) equal to a fraction the numerator of
which is the then unpaid amount of such Secured Creditor's Primary Obligations
or Secondary Obligations, as the case may be, and the denominator of which is
the then outstanding amount of all Primary Obligations or Secondary Obligations,
as the case may be, (y) "Primary Obligations" shall mean (i) in the case of the
Credit Document Obligations, all principal of, and interest on, all Loans under
the Credit Agreement, all Unpaid Drawings theretofore made (together with all
interest accrued thereon), the aggregate Stated Amounts of all Letters of Credit
issued (or deemed issued) under the Credit Agreement, and all Fees and (ii) in
the case of the Other Obligations, all amounts due under the Interest Rate
Protection Agreements or Other Hedging Agreements (other than indemnities, fees
(including, without limitation, attorneys' fees) and similar obligations and
liabilities) and (z) "Secondary Obligations" shall mean all Obligations other
than Primary Obligations.
(c) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 7.4 only) (i) first, to their Primary Obligations and (ii) second, to
their Secondary Obligations. If any payment to any Secured Creditor of its Pro
Rata Share of any distribution would result in overpayment to such Secured
Creditor, such excess amount shall instead be distributed in respect of the
unpaid Primary Obligations or Secondary Obligations, as the case may be, of the
other Secured Creditors, with each Secured Creditor
<PAGE>
EXHIBIT H
PAGE 17
whose Primary Obligations or Secondary Obligations, as the case may be, have
not been paid in full to receive an amount equal to such excess amount
multiplied by a fraction the numerator of which is the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of such Secured
Creditor and the denominator of which is the unpaid Primary Obligations or
Secondary Obligations, as the case may be, of all Secured Creditors entitled
to such distribution.
(d) Each of the Secured Creditors agrees and acknowledges that if the
Bank Creditors are to receive a distribution on account of undrawn amounts with
respect to Letters of Credit issued (or deemed issued) under the Credit
Agreement (which shall only occur after all outstanding Loans and Unpaid
Drawings with respect to such Letters of Credit have been paid in full), such
amounts shall be paid to the Agent under the Credit Agreement and held by it,
for the equal and ratable benefit of the Bank Creditors, as cash security for
the repayment of Obligations owing to the Bank Creditors as such. If any
amounts are held as cash security pursuant to the immediately preceding
sentence, then upon the termination of all outstanding Letters of Credit, and
after the application of all such cash security to the repayment of all
Obligations owing to the Bank Creditors after giving effect to the termination
of all such Letters of Credit, if there remains any excess cash, such excess
cash shall be returned by the Agent to the Collateral Agent for distribution in
accordance with Section 7.4(a) hereof.
(e) Except as set forth in Section 7.4(d) hereof, all payments
required to be made hereunder shall be made (x) if to the Bank Creditors, to the
Agent under the Credit Agreement for the account of the Bank Creditors, and (y)
if to the Other Creditors, to the trustee, paying agent or other similar
representative (each, a "Representative") for the Other Creditors or, in the
absence of such a Representative, directly to the Other Creditors.
(f) For purposes of applying payments received in accordance with
this Section 7.4, the Collateral Agent shall be entitled to rely upon (i) the
Agent under the Credit Agreement and (ii) the Representative for the Other
Creditors or, in the absence of such a Representative, upon the Other Creditors
for a determination (which the Agent, each Representative for any Other
Creditors and the Secured Creditors agree (or shall agree) to provide upon
request of the Collateral Agent) of the outstanding Primary Obligations and
Secondary Obligations owed to the Bank Creditors or the Other Creditors, as the
case may be. Unless it has actual knowledge (including by way of written notice
from a Bank Creditor or an Other Creditor) to the contrary, the Agent and each
Representative, in furnishing information pursuant to the preceding sentence,
and the Collateral Agent, in acting hereunder, shall be entitled to assume that
no Secondary Obligations are outstanding. Unless it has actual knowledge
(including by way of written notice from an Other Creditor) to the contrary, the
Collateral Agent, in acting hereunder, shall be entitled to assume that no
Interest Rate Protection Agreements or Other Hedging Agreements are in
existence.
(g) It is understood and agreed that each of the Assignors shall
remain jointly and severally liable to the extent of any deficiency between the
amount of the proceeds of the Collateral hereunder and the aggregate amount of
the sums referred to in clause (a) of this Section with respect to the relevant
Assignor.
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EXHIBIT H
PAGE 18
7.5. REMEDIES CUMULATIVE. Each and every right, power and remedy
hereby specifically given to the Collateral Agent shall be in addition to every
other right, power and remedy specifically given under this Agreement, the
Interest Rate Protection Agreements or Other Hedging Agreements or the other
Credit Documents now or hereafter existing at law, in equity or by statute and
each and every right, power and remedy whether specifically herein given or
otherwise existing may be exercised from time to time or simultaneously and as
often and in such order as may be deemed expedient by the Collateral Agent. All
such rights, powers and remedies shall be cumulative and the exercise or the
beginning of the exercise of one shall not be deemed a waiver of the right to
exercise any other or others. No delay or omission of the Collateral Agent in
the exercise of any such right, power or remedy and no renewal or extension of
any of the Obligations shall impair any such right, power or remedy or shall be
construed to be a waiver of any Default or Event of Default or an acquiescence
therein. No notice to or demand on any Assignor in any case shall entitle it to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of any of the rights of the Collateral Agent to any other or
further action in any circumstances without notice or demand. In the event that
the Collateral Agent shall bring any suit to enforce any of its rights hereunder
and shall be entitled to judgment, then in such suit the Collateral Agent may
recover expenses, including attorneys' fees, and the amounts thereof shall be
included in such judgment.
7.6. DISCONTINUANCE OF PROCEEDINGS. In case the Collateral Agent
shall have instituted any proceeding to enforce any right, power or remedy under
this Agreement by foreclosure, sale, entry or otherwise, and such proceeding
shall have been discontinued or abandoned for any reason or shall have been
determined adversely to the Collateral Agent, then and in every such case the
relevant Assignor, the Collateral Agent and each holder of any of the
Obligations shall be restored to their former positions and rights hereunder
with respect to the Collateral subject to the security interest created under
this Agreement, and all rights, remedies and powers of the Collateral Agent
shall continue as if no such proceeding had been instituted.
ARTICLE VIII
INDEMNITY
8.1. INDEMNITY. (a) Each Assignor jointly and severally agrees to
indemnify, reimburse and hold the Collateral Agent, each other Secured Creditor
and their respective successors, permitted assigns, employees, agents and
servants (hereinafter in this Section 8.1 referred to individually as an
"Indemnitee," and, collectively, as "Indemnities") harmless from any and all
liabilities, obligations, damages, injuries, penalties, claims, demands,
actions, suits, judgments and any and all costs, expenses or disbursements
(including attorneys' fees and expenses) (for the purposes of this Section 8.1
the foregoing are collectively called "expenses") of whatsoever kind and nature
imposed on, asserted against or incurred by any of the Indemnities in any way
relating to or arising out of this Agreement, any Interest Rate Protection
Agreement or Other Hedging Agreement, any other Credit Document or any other
document executed in connection herewith or therewith or in any other way
connected with the administration of the transactions contemplated hereby or
thereby or the enforcement of any of the terms of, or the preservation of any
rights under any thereof, or in any way relating to or arising out of the
<PAGE>
EXHIBIT H
PAGE 19
manufacture, ownership, ordering, purchase, delivery, control, acceptance,
lease, financing, possession, operation, condition, sale, return or other
disposition, or use of the Collateral (including, without limitation, latent or
other defects, whether or not discoverable), the violation of the laws of any
country, state or other governmental body or unit, any tort (including, without
limitation, claims arising or imposed under the doctrine of strict liability, or
for or on account of injury to or the death of any Person (including any
Indemnitee), or property damage), or contract claim; provided that no Indemnitee
shall be indemnified pursuant to this Section 8.1(a) for losses, damages or
liabilities to the extent caused by the gross negligence or willful misconduct
of such Indemnitee. Each Assignor agrees that upon written notice by any
Indemnitee of the assertion of such a liability, obligation, damage, injury,
penalty, claim, demand, action, suit or judgment, the relevant Assignor shall
assume full responsibility for the defense thereof. Each Indemnitee agrees to
use its best efforts to promptly notify the relevant Assignor of any such
assertion of which such Indemnitee has knowledge.
(b) Without limiting the application of Section 8.1(a) hereof, each
Assignor agrees, jointly and severally, to pay, or reimburse the Collateral
Agent for any and all fees, costs and expenses of whatever kind or nature
incurred in connection with the creation, preservation or protection of the
Collateral Agent's Liens on, and security interest in, the Collateral,
including, without limitation, all fees and taxes in connection with the
recording or filing of instruments and documents in public offices, payment or
discharge of any taxes or Liens upon or in respect of the Collateral, premiums
for insurance with respect to the Collateral and all other fees, costs and
expenses in connection with protecting, maintaining or preserving the Collateral
and the Collateral Agent's interest therein, whether through judicial
proceedings or otherwise, or in defending or prosecuting any actions, suits or
proceedings arising out of or relating to the Collateral.
(c) Without limiting the application of Section 8.1(a) or (b) hereof,
each Assignor agrees, jointly and severally, to pay, indemnify and hold each
Indemnitee harmless from and against any loss, costs, damages and expenses which
such Indemnitee may suffer, expend or incur in consequence of or growing out of
any misrepresentation by any Assignor in this Agreement, any Interest Rate
Protection Agreement or Other Hedging Agreement, any other Credit Document or in
any writing contemplated by or made or delivered pursuant to or in connection
with this Agreement, any Interest Rate Protection Agreement or Other Hedging
Agreement or any other Credit Document.
(d) If and to the extent that the obligations of any Assignor under
this Section 8.1 are unenforceable for any reason, such Assignor hereby agrees
to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
8.2. INDEMNITY OBLIGATIONS SECURED BY COLLATERAL; SURVIVAL. Any
amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Obligations secured by the Collateral. The
indemnity obligations of each Assignor contained in this Article VIII shall
continue in full force and effect notwithstanding the full payment of all the
Notes issued under the Credit Agreement, the termination of all Interest Rate
Protection Agreements or Other Hedging Agreements and Letters of Credit, and the
payment of all other Obligations and notwithstanding the discharge thereof.
<PAGE>
EXHIBIT H
PAGE 20
ARTICLE IX
DEFINITIONS
The following terms shall have the meanings herein specified. Such
definitions shall be equally applicable to the singular and plural forms of the
terms defined.
"Agent" shall have the meaning provided in the recitals to this
Agreement.
"Agreement" shall have the meaning provided in the preamble to this
Agreement.
"Assignor" shall have the meaning provided in the preamble to this
Agreement.
"Bank Creditors" shall have the meaning provided in the recitals to
this Agreement.
"Banks" shall have the meaning provided in the recitals to this
Agreement.
"Borrowers" shall have the meaning provided in the recitals of this
Agreement.
"Cash Collateral Account" shall mean a non-interest bearing cash
collateral account maintained with, and in the sole dominion and control of, the
Collateral Agent for the benefit of the Secured Creditors.
"Chattel Paper" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Class" shall have the meaning provided in Section 10.2 of this
Agreement.
"Collateral" shall have the meaning provided in Section 1.1(a) of this
Agreement.
"Collateral Agent" shall have the meaning provided in the preamble to
this Agreement.
"Contract Rights" shall mean all rights of any Assignor (including
without limitation all rights to payment) under each Contract.
"Contracts" shall mean all contracts between any Assignor and one or
more additional parties (including, without limitation, any Interest Rate
Protection Agreements or Other Hedging Agreements), but excluding those
Contracts to the extent that the terms thereof expressly prohibit the assignment
of, or granting of a security interest in, such Assignor's rights and
obligations thereunder (it being understood and agreed, however, that
notwithstanding the foregoing, all rights to payment for money due or to become
due pursuant to any excluded contract shall be subject to the security interests
created pursuant to this Agreement).
"Copyrights" shall mean any U.S. or foreign copyright owned by any
Assignor, including any registrations of any Copyrights, in the U.S. Copyright
Office or the equivalent thereof in any foreign country, as well as any
application for a U.S. or foreign copyright
<PAGE>
EXHIBIT H
PAGE 21
registration now or hereafter made with the U.S. Copyright Office or the
equivalent thereof in any foreign jurisdiction by any Assignor.
"Credit Agreement" shall have the meaning provided in the recitals to
this Agreement.
"Credit Document Obligations" shall have the meaning provided in the
definition of "Obligations" in this Article IX.
"Default" shall mean any event which, with notice or lapse of time, or
both, would constitute an Event of Default.
"Documents" shall have the meaning provided in the Uniform Commercial
Code as in effect on the date hereof in the State of New York.
"Equipment" shall mean any "equipment," as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by any Assignor and, in any event, shall include,
but shall not be limited to, all machinery, equipment, furnishings, movable
trade fixtures and vehicles now or hereafter owned by any Assignor and any and
all additions, substitutions and replacements of any of the foregoing, wherever
located, together with all attachments, components, parts, equipment and
accessories installed thereon or affixed thereto.
"Event of Default" shall mean any Event of Default under, and as
defined in, the Credit Agreement or any payment default under any Interest Rate
Protection Agreement or Other Hedging Agreement and shall in any event, without
limitation, include any payment default on any of the Obligations after the
expiration of any applicable grace period.
"French Borrower" shall have the meaning provided in the recitals of
this Agreement.
"General Intangibles" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Goods" shall have the meaning provided in the Uniform Commercial Code
as in effect on the date hereof in the State of New York.
"Holdings" shall have the meaning provided in the recitals to this
Agreement.
"Indemnitee" shall have the meaning provided in Section 8.1 of this
Agreement.
"Instrument" shall have the meaning provided in the Uniform Commercial
Code as in effect on the date hereof in the State of New York.
"Interest Rate Protection Agreement or Other Hedging Agreement" shall
have the meaning provided in the recitals to this Agreement.
"Inventory" shall mean merchandise, inventory and goods, and all
additions, substitutions and replacements thereof, wherever located, together
with all goods, supplies,
<PAGE>
EXHIBIT H
PAGE 22
incidentals, packaging materials, labels, materials and any other items used
or usable in manufacturing, processing, packaging or shipping same; in all
stages of production -- from raw materials through work-in-process to
finished goods -- and all products and proceeds of whatever sort and wherever
located and any portion thereof which may be returned, rejected, reclaimed or
repossessed by the Collateral Agent from any Assignor's customers, and shall
specifically include all "inventory" as such term is defined in the Uniform
Commercial Code as in effect on the date hereof in the State of New York, now
or hereafter owned by any Assignor.
"Liens" shall mean any security interest, mortgage, pledge, lien,
claim, charge, encumbrance, title retention agreement, lessor's interest in a
financing lease or analogous instrument, in, of, or on any Assignor's property.
"Marks" shall mean all right, title and interest in and to any U.S. or
foreign trademarks, service marks and trade names now held or hereafter acquired
by any Assignor, including any registration or application for registration of
any trademarks and service marks in the United States Patent and Trademark
Office, or the equivalent thereof in any State of the United States or in any
foreign country, and any trade dress including logos, designs, trade names,
company names, business names, fictitious business names and other business
identifiers in connection with which any of these registered or unregistered
marks are used.
"Obligations" shall mean (i) the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of all
obligations and liabilities (including, without limitation, indemnities, fees
and interest thereon) of each Assignor owing to the Bank Creditors, now existing
or hereafter incurred under, arising out of or in connection with any Credit
Document to which such Assignor is a party (including all such obligations and
liability under any Guaranty to which such Assignor is a party) and the due
performance and compliance by each Assignor with the terms, conditions and
agreements of each such Credit Document (all such obligations and liabilities
under this clause (i), except to the extent consisting of obligations or
liabilities with respect to Interest Rate Protection Agreements or Other Hedging
Agreements, being herein collectively called the "Credit Document Obligations");
(ii) the full and prompt payment when due (whether at the stated maturity, by
acceleration or otherwise) of all obligations and liabilities (including,
without limitation, indemnities, fees and interest thereon) of each Assignor
owing to the Other Creditors, now existing or hereafter incurred under, arising
out of or in connection with any Interest Rate Protection Agreement or Other
Hedging Agreement, whether such Interest Rate Protection Agreement or Other
Hedging Agreement is now in existence or hereafter arising), including, all such
obligations under the Parent Guaranty and (y) each Subsidiary Guarantor, all
obligations and liabilities under any Guaranty to which such Assignor is a
party, in each case in respect of Interest Rate Protection Agreements or Other
Hedging Agreements), and the due performance and compliance by such Assignor
with all of the terms, conditions and agreements contained in any such Interest
Rate Protection Agreement or Other Hedging Agreement (all such obligations and
liabilities under this clause (ii) being herein collectively called the "Other
Obligations"); (iii) any and all sums advanced by the Collateral Agent in order
to preserve the Collateral or preserve its security interest in the Collateral;
(iv) in the event of any proceeding for the collection or enforcement of any
indebtedness, obligations, or liabilities of each Assignor referred to in
clauses (i), (ii) and (iii) after an Event of Default shall have occurred and be
continuing, the reasonable expenses of re-taking, holding, preparing for sale
<PAGE>
EXHIBIT H
PAGE 23
or lease, selling or otherwise disposing of or realizing on the Collateral,
or of any exercise by the Collateral Agent of its rights hereunder, together
with reasonable attorneys' fees and court costs; and (v) all amounts paid by
any Indemnitee as to which such Indemnitee has the right to reimbursement
under Section 8.1 of this Agreement. It is acknowledged and agreed that the
"Obligations" shall include extensions of credit of the types described
above, whether outstanding on the date of this Agreement or extended from
time to time after the date of this Agreement.
"Other Creditors" shall have the meaning provided in the recitals to
this Agreement.
"Other Obligations" shall have the meaning provided in the definition
of "Obligations" in this Article IX.
"Parent" shall have the meaning provided in the recitals to this
Agreement.
"Patents" shall mean any U.S. or foreign patent to which any Assignor
now or hereafter has title and any divisions or continuations thereof, as well
as any application for a U.S. or foreign patent now or hereafter made by any
Assignor.
"Pledged Securities" shall have the meaning provided in the Pledge
Agreement.
"Primary Obligations" shall have the meaning provided in Section
7.4(b) of this Agreement.
"Proceeds" shall have the meaning provided in the Uniform Commercial
Code as in effect in the State of New York on the date hereof or under other
relevant law and, in any event, shall include, but not be limited to, (i) any
and all proceeds of any insurance, indemnity, warranty or guaranty payable to
the Collateral Agent or any Assignor from time to time with respect to any of
the Collateral, (ii) any and all payments (in any form whatsoever) made or due
and payable to any Assignor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any governmental authority (or any person acting under
color of governmental authority) and (iii) any and all other amounts from time
to time paid or payable under or in connection with any of the Collateral.
"Pro Rata Share" shall have the meaning provided in Section 7.4(b) of
this Agreement.
"Receivables" shall mean any "account" as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by any Assignor and, in any event, shall include,
but shall not be limited to, all of such Assignor's rights to payment for, or
exchange of, goods sold or leased or services performed or product exchanged by
such Assignor, whether now in existence or arising from time to time hereafter,
including, without limitation, rights evidenced by an account, note, contract,
barter arrangement, security agreement, chattel paper, or other evidence of
indebtedness or security, together with (a) all security pledged, assigned,
hypothecated or granted to or held by such Assignor to secure the foregoing, (b)
all of any Assignor's right, title and interest in and to any goods or services,
the sale or exchange of which gave rise thereto, (c) all guarantees,
<PAGE>
EXHIBIT H
PAGE 24
endorsements and indemnifications on, or of, any of the foregoing, (d) all
powers of attorney for the execution of any evidence of indebtedness or security
or other writing in connection therewith, (e) all books, records, ledger cards,
and invoices relating thereto, (f) all evidences of the filing of financing
statements and other statements and the registration of other instruments in
connection therewith and amendments thereto, notices to other creditors or
secured parties, and certificates from filing or other registration officers,
(g) all credit information, reports and memoranda relating thereto and (h) all
other writings related in any way to the foregoing.
"Representative" shall have the meaning provided in Section 7.4(e) of
this Agreement.
"Requisite Creditors" shall have the meaning provided in Section 10.2
of this Agreement.
"Secondary Obligations" shall have the meaning provided in Section
7.4(b) of this Agreement.
"Secured Creditors" shall have the meaning provided in the recitals to
this Agreement.
"Termination Date" shall have the meaning provided in Section 10.8 of
this Agreement.
"Trade Secret Rights" shall have the meaning provided in Section 5.1
of this Agreement.
"US Borrower" shall have the meaning provided in the recitals to this
Agreement.
ARTICLE X
MISCELLANEOUS
10.1. NOTICES. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be deemed to have been duly given or made when delivered to the
party to which such notice, request, demand or other communication is required
or permitted to be given or made under this Agreement, addressed:
(a) if to any Assignor, at it address set forth opposite its
signature below;
(b) if to the Collateral Agent:
Bankers Trust Company
One Bankers Trust Plaza
New York, New York 10006
Attention: Gregory Shefrin
<PAGE>
EXHIBIT H
PAGE 25
Telephone No.: (212) 250-1724
Facsimile No.: (212) 250-7218
(c) if to any Bank Creditor (other than the Collateral Agent), at
such address as such Bank Creditor shall have specified in the Credit
Agreement; and
(d) if to any Other Creditor, at such address as such Other Creditor
shall have specified in writing to each Assignor and the Collateral Agent;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
10.2. WAIVER; AMENDMENT. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by each Assignor directly and adversely affected
thereby and the Collateral Agent (with the consent of (x) the Required Banks (or
all the Banks if required by Section 13.12 of the Credit Agreement) at all times
prior to the time at which all Credit Document Obligations have been paid in
full and all Commitments under the Credit Agreement have been terminated or (y)
the holders of at least a majority of the outstanding Other Obligations at all
times after the time on which all Credit Document Obligations have been paid in
full and all Commitments under the Credit Agreement have been terminated;
PROVIDED, that any change, waiver, modification or variance affecting the rights
and benefits of a single Class of Secured Creditors (and not all Secured
Creditors in a like or similar manner) shall require the written consent of the
Requisite Creditors of such Class of Secured Creditors. For the purpose of this
Agreement the term "Class" shall mean each class of Secured Creditors, I.E.,
whether (x) the Bank Creditors as holders of the Credit Document Obligations or
(y) the Other Creditors as the holders of the Other Obligations. For the purpose
of this Agreement, the term "Requisite Creditors" of any Class shall mean each
of (x) with respect to the Credit Document Obligations, the Required Banks and
(y) with respect to the Other Obligations, the holders of at least a majority of
all obligations outstanding from time to time under the Interest Rate Protection
Agreements or Other Hedging Agreements.
10.3. OBLIGATIONS ABSOLUTE. The obligations of each Assignor
hereunder shall remain in full force and effect without regard to, and shall not
be impaired by, (a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of such Assignor; (b) any
exercise or non-exercise, or any waiver of, any right, remedy, power or
privilege under or in respect of this Agreement, any other Credit Document or
any Interest Rate Protection Agreement or Other Hedging Agreement; or (c) any
renewal, extension, amendment or modification of or addition or supplement to or
deletion from any Credit Document or any Interest Rate Protection Agreement or
Other Hedging Agreement or any security for any of the Obligations; (d) any
waiver, consent, extension, indulgence or other action or inaction under or in
respect of any such agreement or instrument including, without limitation, this
Agreement; (e) any furnishing of any additional security to the Collateral
Agent or its assignee or any acceptance thereof or any release of any security
by the Collateral Agent or its assignee; or (f) any limitation on any party's
liability or obligations under any such instrument or agreement or any
invalidity or unenforceability, in whole or in part, of any such instrument or
agreement or any term thereof; whether or not any Assignor shall have notice or
knowledge of any of the foregoing. The rights
<PAGE>
EXHIBIT H
PAGE 26
and remedies of the Collateral Agent herein provided are cumulative and not
exclusive of any rights or remedies which the Collateral Agent would
otherwise have.
10.4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
each Assignor and its successors and assigns and shall inure to the benefit of
the Collateral Agent and its successors and assigns; PROVIDED, that no Assignor
may transfer or assign any or all of its rights or obligations hereunder without
the prior written consent of the Collateral Agent. All agreements, statements,
representations and warranties made by each Assignor herein or in any
certificate or other instrument delivered by such Assignor or on its behalf
under this Agreement shall be considered to have been relied upon by the Secured
Creditors and shall survive the execution and delivery of this Agreement, the
other Credit Documents and the Interest Rate Protection Agreements or Other
Hedging Agreements regardless of any investigation made by the Secured Creditors
or on their behalf.
10.5. HEADINGS DESCRIPTIVE. The headings of the several sections of
this Agreement are inserted for convenience only and shall not in any way affect
the meaning or construction of any provision of this Agreement.
10.6. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED
BY THE LAW OF THE STATE OF NEW YORK.
10.7. ASSIGNOR'S DUTIES. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that each Assignor shall remain
liable to perform all of the obligations, if any, assumed by it with respect to
the Collateral and the Collateral Agent shall not have any obligations or
liabilities with respect to any Collateral by reason of or arising out of this
Agreement, nor shall the Collateral Agent be required or obligated in any manner
to perform or fulfill any of the obligations of each Assignor under or with
respect to any Collateral.
10.8. TERMINATION; RELEASE. (a) After the Termination Date this
Agreement shall terminate (provided that all indemnities set forth herein
including, without limitation, in Section 8.1 hereof shall survive such
termination) and the Collateral Agent, at the request and expense of the
respective Assignor, will promptly execute and deliver to such Assignor a proper
instrument or instruments (including Uniform Commercial Code termination
statements on form UCC-3) acknowledging the satisfaction and termination of this
Agreement, and will duly assign, transfer and deliver to such Assignor (without
recourse and without any representation or warranty) such of the Collateral as
may be in the possession of the Collateral Agent and as has not theretofore been
sold or otherwise applied or released pursuant to this Agreement. As used in
this Agreement, "Termination Date" shall mean the date upon which the Total
Commitment and all Interest Rate Protection Agreements or Other Hedging
Agreements have been terminated, no Note is outstanding (and all Loans have been
paid in full), all Letters of Credit have been terminated and all other
Obligations then owing have been paid in full.
(b) In the event that any part of the Collateral is sold (x) at any
time prior to the time at which all Credit Document Obligations have been paid
in full and all Commitments under
<PAGE>
EXHIBIT H
PAGE 27
the Credit Agreement have been terminated, in connection with a sale
permitted by Section 9.02 of the Credit Agreement or is otherwise released at
the direction of the Required Banks (or all the Banks if required by Section
13.12 of the Amended and Restated Credit Agreement) or (y) at any time
thereafter, to the extent permitted by the Interest Rate Protection
Agreements or Other Hedging Agreements, and in the case of clause (x) and
(y), the proceeds of such sale or sales or from such release are applied in
accordance with the terms of the Credit Agreement or such Interest Rate
Protection Agreements or Other Hedging Agreements, as the case may be, to the
extent required to be so applied, the Collateral Agent, at the request and
expense of such Assignor, will duly assign, transfer and deliver to such
Assignor (without recourse and without any representation or warranty) such
of the Collateral as is then being (or has been) so sold or released and as
may be in the possession of the Collateral Agent and has not theretofore been
released pursuant to this Agreement.
(c) At any time that the respective Assignor desires that Collateral
be released as provided in the foregoing Section 10.8(a) or (b), it shall
deliver to the Collateral Agent a certificate signed by its chief financial
officer or another senior officer of such Assignor stating that the release of
the respective Collateral is permitted pursuant to such Section 10.8(a) or (b).
If requested by the Collateral Agent (although the Collateral Agent shall have
no obligation to make any such request), the relevant Assignor shall furnish
appropriate legal opinions (from counsel, which may be in-house counsel,
reasonably acceptable to the Collateral Agent) to the effect set forth in the
immediately preceding sentence. The Collateral Agent shall have no liability
whatsoever to any Secured Creditor as the result of any release of Collateral by
it as permitted by this Section 10.8.
10.9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Collateral Agent.
10.10. THE COLLATERAL AGENT. The Collateral Agent will hold in
accordance with this Agreement all items of the Collateral at any time received
under this Agreement. It is expressly understood and agreed that the obligations
of the Collateral Agent as holder of the Collateral and interests therein and
with respect to the disposition thereof, and otherwise under this Agreement, are
only those expressly set forth in this Agreement. The Collateral Agent shall
act hereunder on the terms and conditions set forth in Section 12 of the Credit
Agreement.
10.11. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.12. LIMITED OBLIGATIONS. It is the desire and intent of each
Assignor and the other Secured Creditors that this Agreement shall be enforced
against each Assignor to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement is sought.
<PAGE>
EXHIBIT H
PAGE 28
10.13. ADDITIONAL ASSIGNORS. It is understood and agreed that any
Subsidiary of Parent that is required to execute a counterpart of this Agreement
after the date hereof pursuant to the Credit Agreement shall automatically
become an Assignor hereunder by executing a counterpart hereof and delivering
the same to the Collateral Agent.
* * *
<PAGE>
EXHIBIT H
PAGE 29
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date first
above written.
Address:
2527 Willowbrook Drive TRISTAR AEROSPACE, CO., as an
Dallas, TX 75220 Assignor
Attention: Douglas Childress
Telephone: (214) 956-3520
Facsimile: (214) 366-5340 By /s/ Douglas Childress
-------------------------------
Title: Vice President and
Chief Financial Officer
with copies to:
2527 Willowbrook Drive AEROSPACE ACQUISITION CORP.,
Dallas, TX 75220 as an Assignor
Attention: Douglas Childress
Telephone: (214) 956-3520
Facsimile: (214) 366-5340 By /s/ Douglas Childress
-------------------------------
Title: Vice President and
Chief Financial Officer
2527 Willowbrook Drive TRISTAR AEROSPACE, INC.,
Dallas, TX 75220 as an Assignor
Attention: Douglas Childress
Telephone: (214) 956-3520
Facsimile: (214) 366-5340 By /s/ Douglas Childress
-------------------------------
Title: Vice President and
Chief Financial Officer
with copies to:
STANDARD PARTS AND EQUIPMENT
2527 Willowbrook Drive CORPORATION,
Dallas, TX 75220 as an Assignor
Attention: Douglas Childress
Telephone: (214) 956-3520
Facsimile: (214) 366-5340 By /s/ Douglas Childress
-------------------------------
Title: Vice President and
Chief Financial Officer
<PAGE>
EXHIBIT H
PAGE 30
BANKERS TRUST COMPANY,
as Collateral Agent
By /s/ Gregory P. Shefrin
-------------------------------
Title: Principal
<PAGE>
EXHIBIT I
[CONFORMED
AS EXECUTED]
SUBSIDIARIES GUARANTY
GUARANTY, dated as of March 24, 1999 (as amended, modified or
supplemented from time to time, this "Guaranty"), made by each of the
undersigned (each a "Guarantor" and, together with each other entity that is
required to execute a counterpart hereof pursuant to Section 24 hereof, the
"Guarantors"). Except as otherwise defined herein, terms used herein and
defined in the Credit Agreement (as defined below) shall be used herein as
therein defined.
W I T N E S S E T H :
WHEREAS, TriStar Aerospace Co. ("Parent"), Aerospace Acquisition Corp.
("Holdings"), TriStar Aerospace, Inc. (the "US Borrower"), TriStar Aerospace
SARL (the "French Borrower" and, together with the US Borrower, each a
"Borrower" and, collectively, the "Borrowers"), various financial institutions
from time to time party thereto (the "Banks") and Bankers Trust Company, as
Agent (the "Agent"), have entered into an Amended and Restated Credit Agreement,
dated as of March 24, 1999 (as amended, modified or supplemented from time to
time, the "Credit Agreement"), providing for the making of Loans to the
Borrowers and the issuance of, and participation in, Letters of Credit for the
account of the US Borrower, all as contemplated therein (the Banks, the Agent
and the Collateral Agent herein called the "Bank Creditors");
WHEREAS, the US Borrower may from time to time enter into one or more
(i) interest rate protection agreements (including, without limitation, interest
rate swaps, caps, floors, collars and similar agreements), (ii) foreign exchange
contracts, currency swap agreements or other similar agreements or arrangements
designed to protect against the fluctuations in currency values and/or (iii)
other types of hedging agreements from time to time (each such agreement or
arrangement with an Other Creditor (as hereinafter defined), an "Interest Rate
Protection Agreement or Other Hedging Agreement"), with any Bank, any affiliate
thereof or a syndicate of financial institutions organized by any such Bank or
affiliate of any such Bank or affiliate (even if any such Bank ceases to be a
Bank under the Credit Agreement for any reason) and any such other institution
that participates in such Interest Rate Protection Agreements or Other Hedging
Agreements and their subsequent successors and assigns collectively, the "Other
Creditors", and together with the Bank Creditors, the "Creditors");
WHEREAS, the Borrowers are indirect Wholly-Owned Subsidiaries of
Parent;
WHEREAS, each Guarantor is also a direct or indirect Wholly-Owned
Subsidiary of Parent;
WHEREAS, it is a requirement under the Credit Agreement that each
Guarantor shall have executed and delivered this Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the incurrence of
Loans by the Borrowers and the issuance of, and participation in, Letters of
Credit for the account of the US Borrower under the Credit Agreement and the
entering into by the US Borrower of Interest Rate
<PAGE>
EXHIBIT I
PAGE 2
Protection Agreements or Other Hedging Agreements and, accordingly, desires
to execute this Guaranty in order to satisfy the conditions described in the
preceding paragraph and to induce the Banks to maintain and make Loans to the
Borrowers and issue Letters of Credit for the account of the US Borrower and
the Other Creditors to maintain and enter into Interest Rate Protection
Agreements or Other Hedging Agreements with the US Borrower;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Guarantor, the receipt and sufficiency of which are hereby
acknowledged, each Guarantor hereby makes the following representations and
warranties to the Creditors and hereby covenants and agrees with each Creditor
as follows:
1. Each Guarantor, jointly and severally, irrevocably and
unconditionally guarantees: (i) to the Bank Creditors the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of (x) the principal of and interest on the Notes issued by, and the Loans made
to, the Borrowers under the Credit Agreement and all reimbursement obligations
and Unpaid Drawings with respect to Letters of Credit issued for the account of
the US Borrower and (y) all other obligations (including obligations which, but
for any automatic stay under Section 362(a) of the Bankruptcy Code, would become
due) and liabilities owing by the Borrowers to the Bank Creditors (including,
without limitation, indemnities, Fees and interest thereon) now existing or
hereafter incurred under, arising out of or in connection with the Credit
Agreement or any other Credit Document and the due performance and compliance
with the terms, conditions and agreements contained in the Credit Documents by
the Borrowers (all such principal, interest, liabilities and obligations being
herein collectively called the "Credit Agreement Obligations"); and (ii) to each
Other Creditor the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations (including
obligations which, but for any automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities owing by the US Borrower to
the Other Creditors (including, without limitation, indemnities, fees and
interest thereon) under any Interest Rate Protection Agreements or Other Hedging
Agreements, whether now in existence or hereafter arising, and the due
performance and compliance by the US Borrower with all terms, conditions and
agreements contained therein (all such obligations and liabilities under this
clause (ii) being herein collectively called the "Other Obligations", and
together with the Credit Agreement Obligations are herein collectively called
the "Guaranteed Obligations"). Each Guarantor understands, agrees and confirms
that the Creditors may enforce this Guaranty up to the full amount of the
Guaranteed Obligations against each Guarantor without proceeding against any
other Guarantor, either Borrower, any security for the Guaranteed Obligations,
or any other guarantor under any other guaranty covering all or a portion of the
Guaranteed Obligations. This Guaranty shall constitute a guaranty of payment
and not of collection. All payments by each Guarantor under this Guaranty shall
be made on the same basis as payments by the respective Borrowers are made under
Sections 4.03 and 4.04 of the Amended and Restated Credit Agreement.
2. Additionally, each Guarantor, jointly and severally,
unconditionally and irrevocably, guarantees the payment of any and all
Guaranteed Obligations of the Borrowers to the Creditors whether or not due or
payable by the respective Borrower upon the occurrence in respect of either
Borrower of any of the events specified in Section 10.05 of the Credit
<PAGE>
EXHIBIT I
PAGE 3
Agreement, and unconditionally and irrevocably, jointly and severally, promises
to pay such Guaranteed Obligations to the Creditors, or order, on demand, in
lawful money of the United States.
3. The liability of each Guarantor hereunder is exclusive and
independent of any security for or other guaranty of the indebtedness of the
respective Borrowers whether executed by such Guarantor, any other Guarantor,
any other guarantor or by any other party, and the liability of each Guarantor
hereunder shall not be affected or impaired by (i) any direction as to
application of payment by either Borrower or by any other party, (ii) any other
continuing or other guaranty, undertaking or maximum liability of a guarantor or
of any other party as to the indebtedness of either Borrower, (iii) any payment
on or in reduction of any such other guaranty or undertaking, (iv) any
dissolution, termination or increase, decrease or change in personnel by either
Borrower, (v) any payment made to any Creditor on the indebtedness which any
Creditor repays either Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
each Guarantor waives any right to the deferral or modification of its
obligations hereunder by reason of any such proceeding, (vi) any action or
inaction by the Creditors as contemplated in Section 6 hereof or (vii) any
invalidity, irregularity or unenforceability of all or part of the Guaranteed
Obligations or of any security therefor.
4. The obligations of each Guarantor hereunder are independent of the
obligations of any other Guarantor, any other guarantor of either Borrower or
the Borrowers, and a separate action or actions may be brought and prosecuted
against each Guarantor whether or not action is brought against any other
Guarantor, any other guarantor of either Borrower or the Borrowers and whether
or not any other Guarantor, any other guarantor of either Borrower or the
Borrowers be joined in any such action or actions. Each Guarantor waives, to
the fullest extent permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement thereof. Any payment by
either Borrower or other circumstance which operates to toll any statute of
limitations as to such Borrower shall operate to toll the statute of limitations
as to each Guarantor.
5. Each Guarantor hereby waives notice of acceptance of this Guaranty
and notice of any liability to which it may apply, and waives promptness,
diligence, presentment, demand of payment, protest, notice of dishonor or
nonpayment of any such liabilities, suit or taking of other action by the Agent
or any other Creditor against, and any other notice to, any party liable thereon
(including such Guarantor or any other guarantor of either Borrower or the
Borrowers).
6. Any Creditor may at any time and from time to time without the
consent of, or notice to, any Guarantor, without incurring responsibility to
such Guarantor, without impairing or releasing the obligations of such Guarantor
hereunder, upon or without any terms or conditions and in whole or in part:
(i) change the manner, place or terms of payment of, and/or change
or extend the time of payment of, renew or alter, any of the Guaranteed
Obligations, (including any increase or decrease in the rate of interest
thereon), any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the guaranty herein made shall apply to the
Guaranteed Obligations as so changed, extended, renewed or altered;
<PAGE>
EXHIBIT I
PAGE 4
(ii) take and hold security for the payment of the Guaranteed
Obligations and/or sell, exchange, release, surrender, realize upon or otherwise
deal with in any manner and in any order any property by whomsoever at any time
pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset
thereagainst;
(iii) exercise or refrain from exercising any rights against either
Borrower, any Guarantor, any other guarantor of either Borrower or the Borrowers
or others or otherwise act or refrain from acting;
(iv) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and may subordinate the
payment of all or any part thereof to the payment of any liability (whether due
or not) of either Borrower to creditors of such Borrower;
(v) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the respective Borrowers to the Creditors regardless
of what liabilities of the Borrowers remain unpaid;
(vi) release or substitute any one or more endorsers, guarantors,
Guarantors, Borrower or other obligors;
(vii) consent to or waive any breach of, or any act, omission or
default under, the Interest Rate Protection Agreements or Other Hedging
Agreements, the Credit Documents or any of the instruments or agreements
referred to therein, or otherwise amend, modify or supplement any of the
Interest Rate Protection Agreements or Other Hedging Agreements, the Credit
Documents or any of such other instruments or agreements; and/or
(viii) act or fail to act in any manner referred to in this Guaranty
which may deprive such Guarantor of its right to subrogation against the
respective Borrowers to recover full indemnity for any payments made pursuant to
this Guaranty.
7. No invalidity, irregularity or unenforceability of all or any part
of the Guaranteed Obligations or of any security therefor shall affect, impair
or be a defense to this Guaranty, and this Guaranty shall be primary, absolute
and unconditional notwithstanding the occurrence of any event or the existence
of any other circumstances which might constitute a legal or equitable discharge
of a surety or guarantor except payment in full of the Guaranteed Obligations.
8. This Guaranty is a continuing one and all liabilities to which it
applies or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. No failure or delay on the part of any
Creditor in exercising any right, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
expressly specified are cumulative and not exclusive of any rights or remedies
which any Creditor would otherwise have. No notice to or demand on any
Guarantor in any case shall entitle such Guarantor to any other further notice
<PAGE>
EXHIBIT I
PAGE 5
or demand in similar or other circumstances or constitute a waiver of the rights
of any Creditor to any other or further action in any circumstances without
notice or demand. It is not necessary for any Creditor to inquire into the
capacity or powers of either Borrower or any of their respective Subsidiaries or
the officers, directors, partners or agents acting or purporting to act on its
behalf, and any indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed hereunder.
9. Any indebtedness of either Borrower now or hereafter held by any
Guarantor is hereby subordinated to the indebtedness of such Borrower to the
Creditors; and such indebtedness of such Borrower to any Guarantor, if the
Agent, after an Event of Default has occurred, so requests, shall be collected,
enforced and received by such Guarantor as trustee for the Creditors and be paid
over to the Creditors on account of the indebtedness of such Borrower to the
Creditors, but without affecting or impairing in any manner the liability of
such Guarantor under the other provisions of this Guaranty. Prior to the
transfer by any Guarantor of any note or negotiable instrument evidencing any
indebtedness of either Borrower to such Guarantor, such Guarantor shall mark
such note or negotiable instrument with a legend that the same is subject to
this subordination. Without limiting the generality of the foregoing, each
Guarantor hereby agrees with the Creditors that it will not exercise any right
of subrogation which it may at any time otherwise have as a result of this
Guaranty (whether contractual, under Section 509 of the Bankruptcy Code or
otherwise) until all Guaranteed Obligations have been irrevocably paid in full
in cash.
10. (a) Each Guarantor waives any right (except as shall be required
by applicable statute and cannot be waived) to require the Creditors to: (i)
proceed against either Borrower, any other Guarantor, any other guarantor of
either Borrower or any other party; (ii) proceed against or exhaust any security
held from either Borrower, any other Guarantor, any other guarantor of either
Borrower or any other party; or (iii) pursue any other remedy in the Creditors'
power whatsoever. Each Guarantor waives any defense based on or arising out of
any defense of either Borrower, any other Guarantor, any other guarantor of
either Borrower or any other party other than payment in full of the Guaranteed
Obligations, including, without limitation, any defense based on or arising out
of the disability of either Borrower, any other Guarantor, any other guarantor
of either Borrower or any other party, or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of either Borrower other than payment in full of the Guaranteed
Obligations. The Creditors may, at their election, foreclose on any security
held by the Agent, the Collateral Agent or the other Creditors by one or more
judicial or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Creditors may have against
either Borrower or any other party, or any security, without affecting or
impairing in any way the liability of any Guarantor hereunder except to the
extent the Guaranteed Obligations have been paid in full. Each Guarantor waives
any defense arising out of any such election by the Creditors, even though such
election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of such Guarantor against either Borrower
or any other party or any security.
(b) Each Guarantor waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance,
notices of protest, notices
<PAGE>
EXHIBIT I
PAGE 6
of dishonor, notices of acceptance of this Guaranty, and notices of the
existence, creation or incurring of new or additional indebtedness. Each
Guarantor assumes all responsibility for being and keeping itself informed of
the Borrowers' financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations and the
nature, scope and extent of the risks which such Guarantor assumes and incurs
hereunder, and agrees that the Creditors shall have no duty to advise any
Guarantor of information known to them regarding such circumstances or risks.
11. In order to induce the Banks to make Loans and issue Letters of
Credit pursuant to the Credit Agreement, and in order to induce the Other
Creditors to execute, deliver and perform the Interest Rate Protection
Agreements or Other Hedging Agreements, each Guarantor represents, warrants and
covenants that:
(a) Such Guarantor (i) is a duly organized and validly existing
corporation and is in good standing under the laws of the jurisdiction of its
organization, and has the corporate power and authority to own its property and
assets and to transact the business in which it is engaged and presently
proposes to engage and (ii) is duly qualified and is authorized to do business
and is in good standing in all jurisdictions where it is required to be so
qualified except where the failure to be so qualified could reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, nature of assets, liabilities, condition (financial or
otherwise) or prospects of such Guarantor or of such Guarantor and its
Subsidiaries taken as a whole.
(b) Such Guarantor has the corporate power and authority to execute,
deliver and carry out the terms and provisions of this Guaranty and each other
Document to which it is a party and has taken all necessary corporate action to
authorize the execution, delivery and performance by it of this Guaranty and
each such other Document. Such Guarantor has duly executed and delivered this
Guaranty and each other Document to which it is a party, and this Guaranty and
each such other Document constitutes the legal, valid and binding obligation of
such Guarantor enforceable in accordance with its terms.
(c) Neither the execution, delivery or performance by such Guarantor
of this Guaranty or any other Document to which it is a party, nor compliance by
it with the terms and provisions hereof and thereof: (i) will contravene any
applicable provision of any law, statute, rule or regulation, or any order,
writ, injunction or decree of any court or governmental instrumentality, (ii)
will conflict or be inconsistent with or result in any breach of, any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
(other than pursuant to the Security Documents) result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of such Guarantor or any of its Subsidiaries pursuant to the
terms of any indenture, mortgage, deed of trust, credit agreement, loan
agreement or any other agreement or other instrument to which such Guarantor or
any of its Subsidiaries is a party or by which it or any of its property or
assets is bound or to which it may be subject or (iii) will violate any
provision of the certificate of incorporation or by-laws (or equivalent
organizational documents) of such Guarantor or any of its Subsidiaries.
<PAGE>
EXHIBIT I
PAGE 7
(d) No order, consent, approval, license, authorization or validation
of, or filing, recording or registration with, or exemption by, any foreign or
domestic governmental or public body or authority, or any subdivision thereof,
is required to authorize, or is required in connection with, (i) the execution,
delivery and performance of this Guaranty or any other Document to which such
Guarantor is a party, or (ii) the legality, validity, binding effect or
enforceability of this Guaranty or any other Document to which such Guarantor is
a party.
(e) There are no actions, suits or proceedings pending or, tot he
knowledge of such Guarantor threatened (i) with respect to this Guaranty or any
other Document to which such Guarantor is a party, (ii) with respect to any
Indebtedness of such Guarantor or any of its Subsidiaries, (iii) that could
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, nature of assets, liabilities, condition
(financial or otherwise) or prospects of such Guarantor or of such Guarantor and
its Subsidiaries taken as a whole or (iv) that could reasonably be expected to
have a material adverse effect on the rights or remedies of the Creditors or on
the ability of such Guarantor to perform its respective obligations to the
Creditors hereunder and under the other Credit Documents to which it is a party.
12. Each Guarantor covenants and agrees that on and after the date
hereof and until the termination of the Total Commitment and all Interest Rate
Protection Agreements or Other Hedging Agreements and when no Note or Letter of
Credit remains outstanding and all other Guaranteed Obligations have been paid
in full, such Guarantor shall take, or will refrain from taking, as the case may
be, all actions that are necessary to be taken or not taken so that no violation
of any provision, covenant or agreement contained in Section 8 or 9 of the
Credit Agreement, and so that no Default or Event of Default, is caused by the
actions of such Guarantor or any of its Subsidiaries.
13. The Guarantors hereby jointly and severally agree to pay all
out-of-pocket costs and expenses of each Creditor in connection with the
enforcement of this Guaranty and the protection of such Creditor's rights
hereunder, and in connection with any amendment, waiver or consent relating
hereto (including, without limitation, the fees and disbursements of counsel
employed by the Agent or any of the Creditors).
14. This Guaranty shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the Creditors and their
successors and assigns.
15. Neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated in any manner whatsoever unless in writing duly
signed by the Agent (with the consent of (x) the Required Banks or, to the
extent required by Section 13.12 of the Credit Agreement, all of the Banks, at
all times prior to the time at which all Credit Agreement Obligations have been
paid in full, or (y) the holders of at least a majority of the outstanding Other
Obligations at all times after the time at which all Credit Agreement
Obligations have been paid in full) and each Guarantor directly affected thereby
(it being understood that the addition or release of any Guarantor hereunder
shall not constitute a change, waiver, discharge or termination affecting any
Guarantor other than the Guarantor so added or released); PROVIDED, that any
change, waiver, modification or variance affecting the rights and benefits of a
single class (as defined below) of Creditors (and not all Creditors in a like or
similar manner) shall require the
<PAGE>
EXHIBIT I
PAGE 8
written consent of the Requisite Creditors (as defined below) of such Class.
For the purpose of this Guaranty, the term "Class" shall mean each class of
Creditors, I.E., whether (i) the Bank Creditors as holders of the Credit
Agreement Obligations or (ii) the Other Creditors as holders of the Other
Obligations. For the purpose of this Guaranty, the term "Requisite
Creditors" of any Class shall mean each of (i) with respect to the Credit
Agreement Obligations, the Required Banks and (ii) with respect to the Other
Obligations, the holders of at least a majority of all obligations
outstanding from time to time under the Interest Rate Protection Agreements
or Other Hedging Agreements.
16. Each Guarantor acknowledges that an executed (or conformed) copy
of each of the Credit Documents and the Interest Rate Protection Agreements or
Other Hedging Agreements has been made available to its principal executive
officers and such officers are familiar with the contents thereof.
17. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Creditor Law) and not by way of limitation of any such rights, upon
the occurrence and during the continuance of an Event of Default (such term to
mean and include any "Event of Default" as defined in the Credit Agreement or
any payment default under any Interest Rate Protection Agreement or Other
Hedging Agreement and shall in any event, include, without limitation, any
payment default on any of the Guaranteed Obligations continuing after any
applicable grace period), each Creditor is hereby authorized at any time or from
time to time, without notice to any Guarantor or to any other Person, any such
notice being expressly waived, to set off and to appropriate and apply any and
all deposits (general or special) and any other indebtedness at any time held or
owing by such Creditor to or for the credit or the account of such Guarantor,
against and on account of the obligations and liabilities of such Guarantor to
such Creditor under this Guaranty, irrespective of whether or not such Creditor
shall have made any demand hereunder and although said obligations, liabilities,
deposits or claims, or any of them, shall be contingent or unmatured. Each
Creditor acknowledges and agrees that the provisions of this Section 17 are
subject to the sharing provisions set forth in Section 13.06(b) of the Credit
Agreement.
18. All notices, requests, demands or other communications pursuant
hereto shall be deemed to have been duly given or made when delivered to the
Person to which such notice, request, demand or other communication is required
or permitted to be given or made under this Guaranty, addressed to such party at
(i) in the case of any Bank Creditor, as provided in the Amended and Restated
Credit Agreement, (ii) in the case of any Guarantor, at its address set forth
opposite its signature below and (iii) in the case of any Other Creditor, at
such address as such Other Creditor shall have specified in writing to the
Guarantor; or in any case at such other address as any of the Persons listed
above may hereafter notify the others in writing.
19. If claim is ever made upon any Creditor for repayment or recovery
of any amount or amounts received in payment or on account of any of the
Guaranteed Obligations and any of the aforesaid payees repays all or part of
said amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property
or (ii) any settlement or compromise of any such claim effected by such payee
with any such claimant (including the Borrowers), then and in such event each
Guarantor agrees that any
<PAGE>
EXHIBIT I
PAGE 9
such judgment, decree, order, settlement or compromise shall be binding upon
such Guarantor, notwithstanding any revocation hereof or the cancellation of
any Note or any Interest Rate Protection Agreement or Other Hedging Agreement
or other instrument evidencing any liability of either Borrower, and such
Guarantor shall be and remain liable to the aforesaid payees hereunder for
the amount so repaid or recovered to the same extent as if such amount had
never originally been received by any such payee.
20. (A) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE
CREDITORS AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(B) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR
ANY OTHER CREDIT DOCUMENT TO WHICH ANY GUARANTOR IS A PARTY MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS GUARANTY,
EACH GUARANTOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. EACH GUARANTOR 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
EACH GUARANTOR AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH
SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH GUARANTOR HEREBY
IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING
COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT TO WHICH SUCH GUARANTOR
IS A PARTY THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY OF THE CREDITORS TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST EACH GUARANTOR IN ANY OTHER JURISDICTION.
(C) EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS
OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (B) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
<PAGE>
EXHIBIT I
PAGE 10
(D) EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS GUARANTY, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
21. In the event that all of the capital stock of one or more
Guarantors is sold or otherwise disposed of or liquidated in compliance with the
requirements of Section 9.02 of the Credit Agreement (or such sale or other
disposition has been approved in writing by the Required Banks (or all Banks if
required by Section 13.12 of the Credit Agreement)) and the proceeds of such
sale, disposition or liquidation are applied in accordance with the provisions
of the Credit Agreement, to the extent applicable, such Guarantor shall be
released from this Guaranty and this Guaranty shall, as to each such Guarantor
or Guarantors, terminate, and have no further force or effect (it being
understood and agreed that the sale of one or more Persons that own, directly or
indirectly, all of the capital stock of any Guarantor shall be deemed to be a
sale of such Guarantor for the purposes of this Section 21).
22. All payments made by any Guarantor hereunder will be made without
setoff, counterclaim or other defense.
23. This Guaranty may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set of counterparts executed by all
the parties hereto shall be lodged with the US Borrower and the Agent.
24. It is understood and agreed that any Subsidiary of Parent that is
required to execute a counterpart of this Guaranty pursuant to the Credit
Agreement after the date hereof shall automatically become a Guarantor hereunder
by executing a counterpart hereof and delivering the same to the Agent.
25. It is the desire and intent of each Guarantor and the Creditors
that this Guaranty shall be enforced against each Guarantor to the fullest
extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. If, however, and to the extent
that, the obligations of each Guarantor under this Guaranty shall be adjudicated
to be invalid or unenforceable for any reason (including, without limitation,
because of any applicable state or federal law relating to fraudulent
conveyances or transfers), then the amount of the Guaranteed Obligations of such
Guarantor shall be deemed to be reduced and such Guarantor shall pay the maximum
amount of the Guaranteed Obligations which would be permissible under applicable
law.
* * *
<PAGE>
EXHIBIT I
PAGE 11
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
Address: STANDARD PARTS AND EQUIPMENT CORPORATION,
904 North Main Street
Fort Worth, TX 76106
By /s/ Douglas Childress
---------------------------------------
Title: Chief Financial Officer,
Treasurer & Secretary
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Agent for the Banks
By /s/ Gregory P. Shefrin
----------------------------
Title: Principal
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM TRISTAR
AEROSPACE CO. AND SUBSIDIARIES FORM 10-Q AS OF MARCH 31, 1999 AND FOR THE THREE
MONTHS AND SIX MONTHS ENDED MARCH 31, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> SEP-30-1999
<PERIOD-START> OCT-01-1998
<PERIOD-END> MAR-31-1999
<CASH> 12,081
<SECURITIES> 0
<RECEIVABLES> 44,029
<ALLOWANCES> (928)
<INVENTORY> 110,839
<CURRENT-ASSETS> 173,245
<PP&E> 7,347
<DEPRECIATION> (2,107)
<TOTAL-ASSETS> 209,157
<CURRENT-LIABILITIES> 42,684
<BONDS> 110,000
0
0
<COMMON> 172
<OTHER-SE> 63,301
<TOTAL-LIABILITY-AND-EQUITY> 209,157
<SALES> 101,628
<TOTAL-REVENUES> 101,628
<CGS> 68,847
<TOTAL-COSTS> 68,847
<OTHER-EXPENSES> 14,849
<LOSS-PROVISION> 30
<INTEREST-EXPENSE> 3,186
<INCOME-PRETAX> 14,865
<INCOME-TAX> 5,750
<INCOME-CONTINUING> 9,115
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 9,115
<EPS-PRIMARY> 0.53
<EPS-DILUTED> 0.50
</TABLE>
