<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
-
AMPHENOL CORPORATION
--------------------------------------------------------
(Name of Issuer)
CLASS A COMMON STOCK, PAR VALUE $.001 PER SHARE
--------------------------------------------------------
(Title of Class of Securities)
032095 10 1
--------------------------------------------------------
(CUSIP Number)
NXS I, L.L.C., KKR 1996 FUND, L.P., KKR ASSOCIATES (1996) L.P., KKR 1996 GP
LLC, KKR PARTNERS II, L.P., KKR ASSOCIATES L.P., NXS ASSOCIATES L.P., KKR
ASSOCIATES (NXS) L.P., KKR-NXS L.L.C.
C/O KOHLBERG KRAVIS ROBERTS & CO., L.P.
9 WEST 57TH STREET, NEW YORK, NEW YORK, N.Y. 10019 (212) 750-8300
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
MAY 19, 1997
--------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
IF THE FILING PERSON HAS PREVIOUSLY FILED A STATEMENT ON SCHEDULE 13G TO
REPORT THE ACQUISITION WHICH IS THE SUBJECT OF THIS SCHEDULE 13D, AND IS
FILING THIS SCHEDULE BECAUSE OF RULE 13D-1(B)(3) OR (4), CHECK THE FOLLOWING
BOX / /.
NOTE: SIX COPIES OF THIS STATEMENT, INCLUDING ALL EXHIBITS, SHOULD BE FILED
WITH THE COMMISSION. SEE RULE 13D-1(A) FOR OTHER PARTIES TO WHOM COPIES ARE TO
BE SENT.
*THE REMAINDER OF THIS COVER PAGE SHALL BE FILLED OUT FOR A REPORTING
PERSON'S INITIAL FILING ON THIS FORM WITH RESPECT TO THE SUBJECT CLASS OF
SECURITIES, AND FOR ANY SUBSEQUENT AMENDMENT CONTAINING INFORMATION WHICH
WOULD ALTER DISCLOSURES PROVIDED IN A PRIOR COVER PAGE.
THE INFORMATION REQUIRED ON THE REMAINDER OF THIS COVER PAGE SHALL NOT BE
DEEMED TO BE "FILED" FOR THE PURPOSE OF SECTION 18 OF THE SECURITIES EXCHANGE
ACT OF 1934 ("ACT") OR OTHERWISE SUBJECT TO THE LIABILITIES OF THAT SECTION OF
THE ACT BUT SHALL BE SUBJECT TO ALL OTHER PROVISIONS OF THE ACT (HOWEVER, SEE
THE NOTES).
<PAGE>
SCHEDULE 13D
CUSIP No. 032095 10 1
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
NXS I, L.L.C.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
AF, OO (see item 3)
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Delaware
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 48,790 (see Item 5)
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 0
--------------------------------------------------
(9) Sole Dispositive
Power 48,790 (see Item 5)
--------------------------------------------------
(10) Shared Dispositive
Power 0
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
48,790 (See Item 5)
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
0.3% (See Item 5)
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
OO
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDING BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
2
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SCHEDULE 13D
CUSIP No. 032095 10 1
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
KKR 1996 FUND L.P.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
OO (see item 3)
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Delaware
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 10,291,194 (See Item 5)
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 0
--------------------------------------------------
(9) Sole Dispositive
Power 10,291,194 (See Item 5)
--------------------------------------------------
(10) Shared Dispositive
Power 0
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
10,291,194 (See Item 5)
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
58.7% (See Item 5)
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
PN
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDING BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
3
<PAGE>
SCHEDULE 13D
CUSIP No. 032095 10 1
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
KKR ASSOCIATES 1996 L.P.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
OO (see item 3)
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Delaware
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 10,291,194 (See Item 5)
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 0
--------------------------------------------------
(9) Sole Dispositive
Power 10,291,194 (See Item 5)
--------------------------------------------------
(10) Shared Dispositive
Power 0
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
10,291,194 (See Item 5)
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
58.7% (See Item 5)
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
PN
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDING BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
4
<PAGE>
SCHEDULE 13D
CUSIP No. 032095 10 1
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
KKR 1996 GP LLC
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
OO (see item 3)
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Delaware
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 10,291,194 (See Item 5)
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 0
--------------------------------------------------
(9) Sole Dispositive
Power 10,291,194 (See Item 5)
--------------------------------------------------
(10) Shared Dispositive
Power 0
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
10,291,194 (See Item 5)
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
58.7% (See Item 5)
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
00
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDING BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
5
<PAGE>
SCHEDULE 13D
CUSIP No. 032095 10 1
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
KKR PARTNERS II, L.P.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
OO (see item 3)
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Delaware
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 90,144 (See Item 5)
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 0
--------------------------------------------------
(9) Sole Dispositive
Power 90,144 (See Item 5)
--------------------------------------------------
(10) Shared Dispositive
Power 0
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
90,144 (See Item 5)
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
0.5% (See Item 5)
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
PN
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDING BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
6
<PAGE>
SCHEDULE 13D
CUSIP No. 032095 10 1
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
KKR ASSOCIATES L.P.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
OO (see item 3)
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
New York
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 90,144 (See Item 5)
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 0
--------------------------------------------------
(9) Sole Dispositive
Power 90,144 (See Item 5)
--------------------------------------------------
(10) Shared Dispositive
Power 0
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
90,144 (See Item 5)
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
0.5% (See Item 5)
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
PN
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDING BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
7
<PAGE>
SCHEDULE 13D
CUSIP No. 032095 10 1
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
NXS ASSOCIATES L.P.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
OO (see item 3)
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Delaware
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 2,784,407 (See Item 5)
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 0
--------------------------------------------------
(9) Sole Dispositive
Power 2,784,407 (See Item 5)
--------------------------------------------------
(10) Shared Dispositive
Power 0
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
2,784,407 (See Item 5)
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
15.9% (See Item 5)
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
PN
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDING BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
8
<PAGE>
SCHEDULE 13D
CUSIP No. 032095 10 1
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
KKR ASSOCIATES (NXS) L.P.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
OO (see item 3)
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Delaware
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 2,784,407 (See Item 5)
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 0
--------------------------------------------------
(9) Sole Dispositive
Power 2,784,407 (See Item 5)
--------------------------------------------------
(10) Shared Dispositive
Power 0
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
2,784,407 (See Item 5)
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
15.9% (See Item 5)
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
PN
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDING BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
9
<PAGE>
SCHEDULE 13D
CUSIP No. 032095 10 1
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
KKR-NXS L.L.C.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
OO (see item 3)
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Delaware
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 2,784,407 (See Item 5)
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 0
--------------------------------------------------
(9) Sole Dispositive
Power 2,784,407 (See Item 5)
--------------------------------------------------
(10) Shared Dispositive
Power 0
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
2,784,407 (See Item 5)
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
15.9% (See Item 5)
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
OO
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDING BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
10
<PAGE>
AMENDMENT NO. 1 TO SCHEDULE 13D
The Statement on Schedule 13D (the "Schedule 13D"), relating to the common
stock, par value $.001 per share (the "Issuer Common Stock"), of Amphenol
Corporation, a Delaware corporation (the "Issuer"), as previously filed by the
Reporting Persons, consisting of NXS I, L.L.C. ("NXS"), KKR 1996 Fund, L.P.
("KKR 1996 Fund"), KKR Associates (1996) L.P. ("KKR Associates 1996") and KKR
1996 GP L.L.C. ("KKR 1996 LLC"), is hereby amended and supplemented with respect
to the items set forth below, including the addition of KKR Partners II, L.P.
("KKR Partners II"), a Delaware limited partnership of which KKR Associates
L.P., a New York limited partnership ("KKR Associates"), is the general partner,
KKR Associates, NXS Associates L.P. ("NXS Associates," and together with KKR
Partners II and KKR 1996 Fund, the "Partnerships"), a Delaware limited
partnership of which KKR Associates (NXS) L.P. ("KKR Associates (NXS)"), a
Delaware limited partnership of which KKR-NXS L.L.C. ("KKR-NXS L.L.C."), a
Delaware limited liability company, is the general partner, KKR Associates (NXS)
and KKR-NXS L.L.C. as Reporting Persons for which this joint filing is made.
Capitalized terms used without definition have the meanings ascribed to such
terms in the Schedule 13D.
Item 2. IDENTITY AND BACKGROUND.
This statement is being filed jointly by NXS, KKR Associates 1996, KKR 1996
LLC, KKR Associates, KKR Associates (NXS), KKR-NXS L.L.C., the Partnerships and
NXS. The agreement among the Reporting Persons relating to the joint filing of
this statement is attached as Exhibit 1 hereto.
11
<PAGE>
The address of the principal business and office of each of the
Partnerships is 9 West 57th Street, New York, New York 10019.
Each of NXS, KKR Associates (NXS) and KKR-NXS L.L.C. is principally engaged
in the business of investing through partnerships in the Issuer and potentially
other companies. Each of KKR Associates, KKR Associates 1996 and KKR 1996 LLC
is principally engaged in the business of investing through partnerships in the
Issuer and other companies. The address of the principal business and office of
each of NXS, KKR Associates (NXS), KKR Associates, KKR-NXS LLC, KKR Associates
1996 and KKR 1996 LLC is 9 West 57th Street, New York, New York 10019.
KKR 1996 Fund is the managing member of NXS. Messrs. Henry R. Kravis and
George R. Roberts are the managing members of KKR-NXS LLC and KKR 1996 LLC and
general partners of KKR Associates. Messrs. Kravis and Roberts are each United
States citizens, and the present principal occupation or employment of each is
as a managing member of KKR & Co. L.L.C., which is the general partner of
Kohlberg Kravis Roberts & Co., L.P. ("KKR"), a private investment firm, the
addresses of which are 9 West 57th Street, New York, New York 10019 and 2800
Sand Hill Road, Suite 200, Menlo Park, California 94025. The other members of
KKR-NXS LLC and KKR 1996 LLC and other general partners of KKR Associates are
Messrs. Robert I. MacDonnell, Paul E. Raether, Michael W. Michelson, James H.
Greene, Jr., Michael T. Tokarz, Perry Golkin, Clifton S. Robbins, Scott M.
Stuart and Edward A. Gilhuly. The business address of each of Messrs. Kravis,
Raether, Golkin, Tokarz, Robbins and Stuart is 9 West 57th Street, New York, New
York 10019; the business address of each of Messrs. Roberts, MacDonnell,
12
<PAGE>
Michelson, Greene and Gilhuly is 2800 Sand Hill Road, Suite 200, Menlo Park,
California 94025.
During the last five years, neither the Reporting Persons nor, to the best
knowledge of the Reporting Persons, any of the other persons named in this Item
2: (i) has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors); or (ii) was a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATIONS
The amount and sources of funds used in connection with the Merger (as
defined in Item 4) and related transactions (including the purchase by NXS of
48,790 shares of Issuer Common Stock from one member and the spouse of another
member of the Issuer's management) consisted of (i) borrowings of $750.0 million
under a Senior Secured Credit Facility, with the institutions and on the terms
set forth in Exhibit 4 attached hereto, (ii) the issuance of $240,000,000
aggregate principal amount of 9 7/8% Senior Subordinated Notes due 2007, on the
terms set forth in Exhibits 2 and 3 attached hereto and (iii) the contribution
of $342.31 million in equity by the Partnerships. These amounts include funds
for certain Merger-related expenses that are expected to be paid in the future.
13
<PAGE>
Item 4. PURPOSE OF TRANSACTION
As previously reported in the Reporting Persons' Schedule 13D, on
January 23, 1997 NXS Acquisition Corp. ("Newco") and the Issuer entered into an
Agreement and Plan of Merger, which was thereafter amended as of April 9, 1997
(the "Merger Agreement"), providing for the merger (the "Merger") of Newco with
and into the Issuer, whereupon the separate existence of Newco would cease and
the Issuer would continue as the surviving corporation.
The Merger and the transactions contemplated thereby were consummated on
May 19, 1997, at which time (A) Newco merged with and into the Issuer and
(B) KKR 1996 Fund, NXS Associates and KKR Partners II acquired 10,242,404,
2,784,407 and 90,144 shares (collectively, the "NXS Merger Shares"),
respectively, of Issuer Common Stock. Immediately following the Merger, NXS
purchased 48,790 shares of Issuer Common Stock from one member and the spouse of
another member of the Issuer's management (the "NXS Management Shares" and
together with the NXS Merger Shares, the "NXS Shares").
After giving effect to the Merger and the appointment following the Merger
of Martin H. Loeffler as Chief Executive Officer of the Issuer, the members of
the board of directors of the Issuer included Mr. Loeffler, Henry R. Kravis,
George R. Roberts, Michael W. Michelson, Marc S. Lipschultz and Andrew M.
Clarkson. The composition of the Board of Directors of the Issuer is subject to
change from time to time, but affiliates or employees of the Reporting Persons
are expected to constitute at all times a majority of such board.
As previously reported, in connection with the Merger Agreement, NXS and
certain previously reported stockholders of the Issuer were
14
<PAGE>
parties to a Stockholders Agreement dated as of January 23, 1997 (the
"Stockholders Agreement"). The Stockholders Agreement contained provisions
pursuant to which the Issuer Common Stock held by the stockholder parties
thereto could, in certain circumstances, be sold at the option of such
stockholders, to, or purchased at NXS's option by, NXS. Such provisions
became irrelevant because all of the shares of Issuer Common Stock subject
thereto were converted into the right to receive cash upon the consummation
of the Merger on May 19, 1997. Immediately following the Merger, NXS
purchased the NXS Management Shares.
Concurrent with the Merger, (i) the certificate of incorporation of the
Issuer, as in effect immediately prior to the Merger, was amended so that, among
other things, the authorized capital stock of the Issuer was reduced from
96,250,000 shares of Issuer Common Stock to 40 million shares of Issuer Common
Stock and (ii) the bylaws of Newco as in effect at the Effective Time became the
bylaws of the Issuer.
Following the Merger, the Issuer Common Stock will continue to be listed on
The New York Stock Exchange.
The preceding summary of certain provisions of the Merger Agreement and the
Stockholders Agreement is not intended to be complete and is qualified in its
entirety by reference to the full text of such agreements, copies of which have
previously been filed as exhibits to the Schedule 13D, and incorporated therein
by reference.
The Reporting Persons intend to review on a continuing basis their
investment in the Issuer, and the Reporting Persons may decide to increase or
decrease their investment in the Issuer depending upon the price and
availability of the Issuer's securities, subsequent
15
<PAGE>
developments affecting the Issuer, the Issuer's business and prospects, other
investment and business opportunities available to the Reporting Persons,
general stock market and economic conditions, tax considerations and other
factors.
Other than as described above, none of the Reporting Persons has any plans
or proposals that relate to or would result in any of the actions described in
subparagraphs (a) through (j) of Item 4 of Schedule 13D.
Item 5. INTEREST IN SECURITIES OF THE ISSUER
(a)and (b) Pursuant to the Merger, KKR 1996 Fund, NXS Associates and KKR
Partners II acquired 10,242,404, 2,784,407 and 90,144 shares, respectively, of
Issuer Common Stock. Immediately following the Merger, NXS purchased 48,790
shares of Issuer Common Stock from one member and the spouse of another member
of the Issuer's management.
Under the definition of "beneficial ownership" as set forth in Rule 13d-3
under the Securities Act of 1933, as amended (the "Act"), NXS, the Partnerships,
KKR Associates 1996, KKR 1996 LLC, KKR Associates, KKR Associates (NXS), KKR-NXS
L.L.C. may be deemed to beneficially own, as a group, the NXS Shares,
constituting in the aggregate approximately 75.2% of the outstanding shares of
Issuer Common Stock. The Reporting Persons do not affirm the existence of any
such group. Individually, KKR 1996 Fund, NXS Associates, KKR Partners II and
NXS own 10,242,404, 2,784,407, 90,144 and 48,790 shares, respectively, of Issuer
Common Stock. The 13,165,745 shares of Issuer Common Stock presently owned by
the Partnerships and NXS
16
<PAGE>
constitute 75.2% of the Issuer Common Stock outstanding following the Merger.
(b) NXS, acting through its managing member, KKR 1996 Fund, has the sole
power to vote or direct the voting of, and to dispose or direct the disposition
of, the shares of Issuer Common Stock which it owns directly. As a result, KKR
1996 Fund may be deemed to beneficially own any shares of Issuer Common Stock
that NXS may beneficially own or be deemed to beneficially own. KKR 1996 Fund,
acting through its sole general partner, KKR Associates 1996, has the sole power
to vote or direct the voting of, and to dispose or direct the disposition of,
the shares of Issuer Common Stock which it owns directly. As a result, KKR
Associates 1996 may be deemed to beneficially own any shares of Issuer Common
Stock that KKR 1996 Fund may beneficially own or be deemed to beneficially own.
KKR 1996 LLC, as sole general partner of KKR Associates 1996, may be deemed to
beneficially own any shares of Issuer Common Stock that KKR Associates 1996 may
be deemed to beneficially own. NXS Associates, acting through its sole general
partner, KKR Associates (NXS), has the sole power to vote or direct the voting
of, and to dispose or direct the disposition of, the shares of Issuer Common
Stock which it owns directly. As a result, KKR Associates (NXS) may be deemed
to beneficially own any shares of Issuer Common Stock that NXS Associates may
beneficially own or be deemed to beneficially own. KKR-NXS L.L.C., as sole
general partner of KKR Associates (NXS), may be deemed to beneficially own any
shares of Issuer Common Stock that KKR Associates (NXS) may be deemed to
beneficially own. KKR Partners II, acting through its sole general partner, KKR
Associates, has the sole power to vote or direct the
17
<PAGE>
voting of, and to dispose or direct the disposition of, the shares of Issuer
Common Stock which it owns directly. As a result, KKR Associates may be deemed
to beneficially own any shares of Issuer Common Stock that KKR Partners II may
beneficially own or be deemed to beneficially own. Each of Messrs. Kravis and
Roberts, as managing members of KKR 1996 LLC and KKR-NXS L.L.C. and general
partners of KKR Associates, and each of Messrs. Robert I. MacDonnell, Paul E.
Raether, Michael W. Michelson, James H. Greene, Jr., Michael T. Tokarz, Perry
Golkin, Clifton S. Robbins, Scott M. Stuart and Edward A. Gilhuly, as the other
members of KKR 1996 LLC, KKR-NXS L.L.C. and general partners of KKR Associates,
may be deemed to beneficially own any shares of Issuer Common Stock that KKR
1996 LLC, KKR-NXS LLC and KKR Associates, respectively, may be deemed to
beneficially own. Neither the filing of this Amendment No. 1 to the Reporting
Persons' Schedule 13D nor any of its contents shall be deemed to constitute an
admission that any Reporting Person is the beneficial owner of Issuer Common
Stock referred to in this paragraph for purposes of Section 13(d) of the
Exchange Act or for any other purpose, and such beneficial ownership is
expressly disclaimed.
(c) Except as set forth in this Item 5, to the best knowledge of each of
the Reporting Persons, none of the Reporting Persons and no other person
described in Item 2 hereof has beneficial ownership of, or has engaged in any
transaction during the past 60 days in, any shares of Issuer Common Stock.
(d) No person other than the Partnerships and NXS has the right to receive
dividends from, or the proceeds from the sale of, the NXS Shares referred to in
this Item 5.
18
<PAGE>
(e) Pursuant to the Merger and the terms of the Stockholders Agreement, NXS
ceased to have any option to purchase shares of Issuer Common Stock and ceased
to be the beneficial owner of more than five percent of Issuer Common Stock.
Item 6. CONTRACTS, ARRANGEMENTS OR UNDERSTANDINGS WITH RESPECT TO SECURITIES
OF THE ISSUER.
Except as set forth in this Statement, to the best knowledge of the
Reporting Persons, there are no other contracts, arrangements, understandings or
relationships (legal or otherwise) among the persons named in Item 2 and between
such persons and any person with respect to any securities of the Issuer,
including but not limited to, transfer or voting of any of the securities of the
Issuer, joint ventures, loan or option arrangements, puts or calls, guarantees
of profits, division of profits or loss, or the giving or withholding of
proxies, or a pledge or contingency the occurrence of which would give another
person voting power over the securities of the Issuer. The Issuer has granted
certain rights to the Reporting Persons with respect to the registration under
the Act of Issuer Common Stock held by the Reporting Persons or their
transferees. The Registration Rights Agreement relating to such rights is
attached hereto as Exhibit 5.
Item 7. MATERIAL TO BE FILED AS EXHIBITS
Please see attached Exhibit Index.
19
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
NXS I, L.L.C.
By KKR 1996 Fund L.P.,
as Member
By KKR ASSOCIATES 1996 L.P.,
as General Partner
By KKR 1996 GP LLC,
as General Partner
By: /s/ Salvatore J. Badalamenti
-----------------------------
Attorney in fact for
Michael W. Michelson, Member
KKR 1996 Fund L.P.
By KKR ASSOCIATES 1996 L.P.,
as General Partner
By KKR 1996 GP LLC,
as General Partner
By: /s/ Salvatore J. Badalamenti
-----------------------------
Attorney in fact for
Michael W. Michelson, Member
KKR 1996 GP LLC
By: /s/ Salvatore J. Badalamenti
-----------------------------
Attorney in fact for
Michael W. Michelson, Member
KKR PARTNERS II, L.P.
By KKR ASSOCIATES L.P.,
as General Partner
By: /s/ Salvatore J. Badalamenti
-----------------------------
Attorney in fact for
Michael W. Michelson,
General Partner
20
<PAGE>
KKR ASSOCIATES L.P.
By: /s/ Salvatore J. Badalamenti
-----------------------------
Attorney in fact for
Michael W. Michelson,
General Partner
NXS ASSOCIATES, L.P.
By KKR ASSOCIATES (NXS) L.P.,
as General Partner
By KKR-NXS L.L.C.,
as General Partner
By: /s/ Salvatore J. Badalamenti
-----------------------------
Attorney in fact for
Michael W. Michelson, Member
KKR ASSOCIATES (NXS) L.P.
By KKR-NXS L.L.C.,
as General Partner
By: /s/ Salvatore J. Badalamenti
-----------------------------
Attorney in fact for
Michael W. Michelson, Member
DATED: May 27, 1997
21
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
1. Joint Filing Agreement, dated as of February 13, 1997, among NXS, KKR
1996 Fund, KKR Associates 1996, KKR 1996 LLC, KKR Partners II, KKR
Associates, NXS Associates, KKR Associates (NXS) and KKR-NXS L.L.C.
relating to the filing of a joint statement on Schedule 13D
2. Underwriting Agreement, dated as of May 13, 1997, among the Issuer and
Donaldson, Lufkin & Jenrette Securities Corporation, Lehman Brothers
Inc., BT Securities Corporation and Chase Securities Inc.
3. Indenture, dated as of May 19, 1997, between the Issuer and IBJ
Schroder Bank & Trust Company, as Trustee
4. Credit Agreement, dated as of May 19, 1997, among the Issuer, the
several lenders from time to time parties thereto and Bankers Trust
Company as Administrative Agent
5. Registration Rights Agreement, dated as of May 19, 1997, among NXS
Acquisition Corp., KKR 1996 Fund L.P., NXS Associates, L.P., KKR
Partners II, L.P. and NXS I, L.L.C.
<PAGE>
EXHIBIT 99.1
JOINT FILING AGREEMENT
We, the signatories of the statement on Schedule 13D to which this
Agreement is attached, hereby agree that such statement is, and any amendments
thereto filed by any of us will be, filed on behalf of each of us.
NXS I, L.L.C.
By KKR 1996 Fund L.P.
as Member
By KKR ASSOCIATES 1996 L.P.,
as General Partner
By KKR 1996 GP LLC,
as General Partner
By: /s/ Salvatore J. Badalamenti
-----------------------------
Attorney in fact for
Michael W. Michelson, Member
KKR 1996 Fund L.P.
By KKR ASSOCIATES 1996 L.P.,
as General Partner
By KKR 1996 GP LLC,
as General Partner
By: /s/ Salvatore J. Badalamenti
-----------------------------
Attorney in fact for
Michael W. Michelson, Member
KKR 1996 GP LLC
By: /s/ Salvatore J. Badalamenti
-----------------------------
Attorney in fact for
Michael W. Michelson, Member
KKR PARTNERS II, L.P.
By KKR ASSOCIATES L.P.,
as General Partner
By: /s/ Salvatore J. Badalamenti
-----------------------------
Attorney in fact for
Michael W. Michelson,
General Partner
<PAGE>
KKR ASSOCIATES L.P.
By: /s/ Salvatore J. Badalamenti
-----------------------------
Attorney in fact for
Michael W. Michelson,
General Partner
NXS ASSOCIATES, L.P.
By KKR ASSOCIATES (NXS) L.P.,
as General Partner
By KKR-NXS L.L.C.,
as General Partner
By: /s/ Salvatore J. Badalamenti
-----------------------------
Attorney in fact for
Michael W. Michelson, Member
KKR ASSOCIATES (NXS) L.P.
By KKR-NXS L.L.C.,
as General Partner
By: /s/ Salvatore J. Badalamenti
-----------------------------
Attorney in fact for
Michael W. Michelson, Member
DATED: May 27, 1997
<PAGE>
Exhibit 99.2
EXECUTION COPY
$240,000,000
AMPHENOL CORPORATION
97/8% SENIOR SUBORDINATED NOTES DUE 2007
UNDERWRITING AGREEMENT
May 13, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
LEHMAN BROTHERS INC.
BT SECURITIES CORPORATION
CHASE SECURITIES INC.
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
2121 Avenue of the Stars
Los Angeles, California 90067
Ladies and Gentlemen:
Amphenol Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell $240,000,000 in principal amount of its 97/8% Senior
Subordinated Notes due 2007 (the "Securities") to Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJ"), Lehman Brothers Inc. ("Lehman"), BT Securities
Corporation ("BT") and Chase Securities Inc. ("CSI" and, together with DLJ,
Lehman and BT, the "Underwriters"). The Securities are to be issued pursuant to
the provisions of an Indenture to be dated as of May 19, 1997, (the "Indenture")
between the Company and IBJ Schroder Bank & Trust Company, as Trustee (the
"Trustee").
It is understood by the parties hereto that (i) the Company has
entered into the Agreement and Plan of Merger, dated as of January 23, 1997 (as
amended as of April 9, 1997, the "Merger Agreement"), between the Company and
NXS Acquisition Corp., (ii) on the Closing Date (as defined), the Company will
purchase for cash, upon the terms of and subject to the Offer to Purchase and
Consent Solicitation Statement, dated April 15, 1997 (as supplemented from time
to time, the "Statement"), and in the accompanying Consent and Letter of
Transmittal (the "Letter of Transmittal" and, together with the Statement, the
"Offer to Purchase") all of its outstanding 12 3/4% Senior Subordinated Notes
due 2002 (the "12 3/4% Notes") tendered by the holders thereof pursuant to the
Offer to Purchase, (iii) the Company has entered into the Dealer Manager and
Solicitation Agent Agreement, dated April 15, 1997, among
<PAGE>
the Company, DLJ and Lehman relating to the Offer to Purchase (the "Dealer
Manager Agreement"), (iv) on April 29, 1997, the Company entered into a
Supplemental Indenture with respect to the 12 3/4% Notes, (v) the Company has
entered into a Waiver Agreement with holders of a majority of its outstanding
10.45% Senior Notes due 2001 (the "Senior Note Consent") and (vi) on or prior to
the Closing Date the Company and the other parties thereto will enter into the
Credit Facilities (as defined in the Prospectus (as defined)). This Agreement,
the Merger Agreement, the Senior Note Consent, the Credit Facilities and the
Supplemental Indenture, in each case including all the transactions contemplated
hereby and thereby, are referred to as the "Transaction Documents."
1. Registration Statement and Prospectus. The Company has prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively called the
"Act"), a registration statement on Form S-3 (No. 333-22521), including a
prospectus relating to the Securities, which may be amended. The registration
statement as amended at the time when it becomes effective, including all
financial schedules and exhibits thereto and documents incorporated therein by
reference and including a registration statement (if any) filed pursuant to Rule
462(b) under the Act increasing the size of the offering registered under the
Act and information (if any) deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430A or Rule 434 under the Act, is
hereinafter referred to as the "Registration Statement"; and the prospectus
(including any prospectus subject to completion taken together with any term
sheet meeting the requirements of Rule 434(b) or Rule 434(a) under the Act) in
the form first used to confirm sales of Securities is hereinafter referred to as
the "Prospectus," except that if any revised prospectus shall be provided to you
by the Company for use in connection with the offering of the Securities as
contemplated by Section 5 hereof which differs from the form of prospectus first
used to confirm sales of Securities, the term "Prospectus" shall refer to such
revised prospectus from and after the time it is first provided to you for such
use. Any reference herein to any preliminary prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such
preliminary prospectus or prospectus, as the case may be, and any reference to
any amendment or supplement to any preliminary prospectus or Prospectus shall be
deemed to refer to and include any documents filed after the date of such
preliminary prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively called the "Exchange Act"), and incorporated
by reference in such preliminary prospectus or Prospectus, as the case may be;
and any reference to any amendment to the Registration Statement shall be deemed
to refer to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration
Statement.
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, (i) the Company agrees to issue and sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, the principal amount of Securities set forth opposite the
2
<PAGE>
name of such Underwriter in Annex I hereto, at a purchase price of 97.406% of
the principal amount thereof (the "Purchase Price"), plus accrued interest
thereon, if any, from May 19, 1997 to the date of payment and delivery.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose (i) to make a public offering of their respective portions
of the Securities as soon after the effective date of the Registration Statement
as in your judgment is advisable and (ii) initially to offer the Securities upon
the terms set forth in the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of and payment
for the Securities shall be made at 10:00 A.M., New York City time, on May 19,
1997, (unless postponed in accordance with the provisions of Section 9)
following the date of the public offering (the "Closing Date") at the offices of
Simpson Thacher & Bartlett, 425 Lexington Avenue, New York, New York 10017 or at
such place as you and the Company may agree in writing. The Closing Date and the
location of delivery of and the form of payment for the Securities may be varied
by agreement between you and the Company.
Certificates for the Securities shall be registered in such names
and issued in such denominations as you shall request in writing not later than
two full business days prior to the Closing Date. Such certificates shall be
made available to you for inspection not later than 9:30 A.M., New York City
time, on the business day next preceding the Closing Date. Certificates in
definitive form evidencing the Securities shall be delivered to you on the
Closing Date, with any transfer taxes thereon duly paid by the Company, for the
respective accounts of the several Underwriters, against payment of the Purchase
Price therefor by wire transfer payable in same day funds to the order of the
Company or as the Company may direct.
5. Agreements of the Company. The Company agrees with you:
(a) If necessary, to (i) file (A) an amendment to the Registration
Statement, (B) a post-effective amendment to the Registration Statement
pursuant to Rule 430A under the Act or (C) a new or additional
registration statement pursuant to Rule 462(b) or (c) under the Act, in
each case, as soon as practicable after the execution and delivery of this
Agreement; (ii) provide evidence satisfactory to the Underwriters of such
timely filing; and (iii) use its best efforts to cause the Registration
Statement or such post-effective amendment to become effective at the
earliest possible time.
(b) To comply fully and in a timely manner with the applicable
provisions of Rule 424, Rule 430A and Rule 462 under the Act.
(c) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment to it becomes effective,
(ii) of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the
suspension or qualification of the Securities for offering or sale in any
jurisdiction, or the initiation
3
<PAGE>
of any proceeding for such purposes, and (iv) of the happening of any
event during the period referred to in paragraph (f) below which makes any
statement of a material fact made in the Registration Statement or the
Prospectus untrue or which requires the making of any additions to or
changes in the Registration Statement or the Prospectus in order to make
the statements therein not misleading, or of the necessity to amend or
supplement the Registration Statement or Prospectus (as then amended or
supplemented) to comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal or lifting of such order at the earliest possible
time.
(d) To furnish to you, without charge, a signed copy of the
Registration Statement as first filed with the Commission and each
amendment to it, including all exhibits and documents incorporated therein
by reference, and to furnish to you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits, as you may reasonably request.
(e) Not to file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, to
make any amendment or supplement to the Prospectus or to make any filing
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act of which you shall not previously have been advised or to
which you shall reasonably object.
(f) Promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period as a prospectus is required
by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish to each Underwriter as many copies of the Prospectus
(and of any amendment or supplement to the Prospectus) as such Underwriter
may reasonably request.
(g) If, during the period specified in paragraph (f), any event
shall occur as a result of which it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with the Act or the Exchange Act, forthwith to
(i)(A) prepare and file, subject to the provisions of paragraph (e) above,
with the Commission an appropriate amendment or supplement to the
Prospectus or (B) file under the Exchange Act a document to be
incorporated by reference in the Prospectus, so that in either case, the
statements in the Prospectus, as so amended or supplemented, will not in
the light of the circumstances when it is so delivered, be misleading, or
so that the Prospectus will comply with the Act and the Exchange Act, and
(ii) to furnish to each of you, such number of copies of such documents as
such Underwriter may reasonably request.
(h) Prior to any public offering of the Securities, (i) to cooperate
with you and counsel for the Underwriters in connection with the
registration or qualification of the Securities for offer and sale by the
several Underwriters and by dealers under the state securities or Blue Sky
laws of such jurisdictions of the United States as you may request,
4
<PAGE>
(ii) to continue such qualification in effect so long as required for
distribution of the Securities and (iii) to file such consents to service
of process or other documents as may be necessary in order to effect such
registration or qualification; provided, however, that the Company shall
not be required to register or qualify as a foreign corporation where it
is not now so qualified or to take any action that would subject it to the
service of process in suits or taxation, other than as to matters and
transactions relating to the offer and sale of the Securities, in any
jurisdiction where it is not now so subject.
(i) To mail and make generally available to its security holders as
soon as reasonably practicable an earning statement covering a period of
at least twelve months after the effective date (as defined in Rule 158 of
the Act) of the Registration Statement (but in no event commencing later
than 90 days after such date) which shall satisfy the provisions of
Section 11(a) of the Act.
(j) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement becomes effective or is terminated, to
pay all costs, expenses, fees and taxes incident to (i) the preparation,
printing, filing and distribution to the Underwriters of the Registration
Statement (including financial statements and exhibits), each preliminary
prospectus and all amendments and supplements to any of them prior to or
during the period specified in paragraph (f), (ii) the printing and
delivery to the Underwriters of the Prospectus and all amendments or
supplements to it during the period specified in paragraph (f), (iii) the
printing and delivery of this Agreement and the preliminary and final Blue
Sky Memoranda (including in each case any disbursements of counsel for the
Underwriters relating to such printing and delivery), (iv) the
registration with the Commission of the Securities, (v) the registration
or qualification of the Securities for offer and sale under the securities
or Blue Sky laws of the several states and any foreign jurisdiction
(including in each case fees and disbursements of counsel for the
Underwriters relating to such registration or qualification and memoranda
relating thereto), (vi) filing fees incident to securing any required
review by the National Association of Securities Dealers, Inc. ("NASD") in
connection with the offering of the Securities, (vii) furnishing such
copies of the Registration Statement, the preliminary prospectus, the
Prospectus and all amendments and supplements thereto as may be requested
for use in connection with the offering or sale of the Securities by the
Underwriters, (viii) fees, disbursements and expenses of the Company's
counsel and accountants, and (ix) all other reasonable costs and expenses
incident to the performance by the Company of its other obligations under
this Agreement (other than each parties' respective share of the costs and
expenses incurred in connection with the roadshow; provided that the
Company and the Underwriters shall split equally the costs of private air
travel).
6. Representations and Warranties. The Company represents and
warrants to each Underwriter that:
(a) The Company either (i) has filed with the Commission prior to
the effectiveness of the Registration Statement, a further amendment
thereto, including therein a final prospectus, or (ii) will file with the
Commission after the effectiveness of
5
<PAGE>
such Registration Statement, a final prospectus in accordance with Rules
430A and 424(b) under the Act and (iii) may file with the Commission after
the effectiveness of such Registration Statement, a post-effective
amendment thereto or a new or additional registration statement in
accordance with Rule 462 under the Act; any required filing of the
Prospectus, or any supplement thereto, pursuant to Rule 424(b) under the
Act has been or will be made in the manner and within the time period
required thereunder; any required filing of a post-effective amendment
under Rule 430A of the Act or any new or additional registration statement
pursuant to Rule 462 under the Act has been or will be made in the manner
and within the time period required thereunder; no stop order suspending
or preventing the use of the Registration Statement or the Prospectus, or
any amendment or supplement thereto, has been issued and no proceedings
for such purpose are, to the knowledge of the Company, pending before or
threatened by the Commission.
(b) (i) The documents incorporated by reference in the Registration
Statement, when they became effective or were filed with the Commission,
as the case may be, did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) the
documents incorporated by reference in the Registration Statement, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Exchange
Act; (iii) any further documents so filed and incorporated by reference in
the Registration Statement or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Exchange Act; and (iv) any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with
the Commission, as the case may be, will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
that the representations and warranties set forth in this paragraph (b) do
not apply to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to any Underwriter furnished
through you expressly for use therein, or to the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively called
the "Trust Indenture Act"), of the Trustee filed as an exhibit to the
Registration Statement.
(c) (i) The Registration Statement, in the form in which it became
or becomes effective, did not or will not contain and the Registration
Statement, as amended or supplemented, if applicable, will not contain, an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Act and (iii) the Prospectus does not contain
and, as amended or supplemented, if applicable, will not contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the
6
<PAGE>
representations and warranties set forth in this paragraph (c) do not
apply to statements or omissions in the Registration Statement or the
Prospectus, or any amendment or supplement thereto, based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein or to the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee filed
as an exhibit to the Registration Statement.
(d) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Act, and each Registration Statement
filed pursuant to Rule 462(b) under the Act, if any, complied when so
filed in all material respects with the Act; and did not contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph (d) do not
apply to statements or omissions in any preliminary prospectus, or any
amendment or supplement thereto, based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein or to the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of the Trustee filed as an
exhibit to the Registration Statement.
(e) Each of the Company and its Subsidiaries (as defined) organized
under the laws of the United States, any state thereof or the District of
Columbia (the "Domestic Subsidiaries") has been duly incorporated, is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority to
carry on its business as it is currently being conducted and to own, lease
and operate its properties, except where the failure to be duly
incorporated or validly existing or to have such power and authority would
not have a Material Adverse Effect (as defined below). The Company is duly
qualified and is in good standing as a foreign corporation authorized to
do business in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such qualification, except
where to failure to be so qualified would not have a material adverse
effect on the business, condition (financial or otherwise), results of
operations or properties of the Company and its Subsidiaries, taken as a
whole (each, a "Material Adverse Effect").
(f) Each Subsidiary of the Company that is not a Domestic Subsidiary
and would constitute a "significant subsidiary" (as defined in Section
1-02 of Regulation S-X of the Commission) has been duly incorporated (or
the equivalent thereof), is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation and has the
corporate power and required authority to carry on its business as it is
currently being conducted and to own, lease and operate its properties.
The term "Subsidiary" means each person with at least nominal assets of
which a majority of the voting equity securities or other interests is
owned, directly or indirectly, by the Company as of the Closing Date, such
persons being referred to collectively as the "Subsidiaries."
7
<PAGE>
(g) Each of the Domestic Subsidiaries is duly qualified and is in
good standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified would not have a Material Adverse Effect.
(h) Each Subsidiary of the Company that is not a Domestic Subsidiary
and would constitute a "significant subsidiary" (as defined in Section
1-02 of Regulation S-X of the Commission) is duly qualified and is in good
standing (or the equivalent thereof) as a foreign corporation authorized
to do business in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such qualification, except
where the failure to be so qualified would not have a Material Adverse
Effect.
(i) All of the outstanding shares of capital stock of, or other
ownership interests in, each of the Company's Subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable and
are owned by the Company or a Subsidiary of the Company, free and clear of
any security interest, claim, lien, encumbrance or adverse interest of any
nature, except for nominal shares held pursuant to the requirements of
local law, and except as described in the Prospectus; there are no
outstanding rights, warrants or options to acquire, or securities
convertible into or exchangeable for, any shares of capital stock or other
equity interest in any of the Company's Subsidiaries.
(j) The Company has the authorized, issued and outstanding
capitalization set forth in the Prospectus under the heading
"Capitalization" (except for subsequent issuances, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus).
(k) All of the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights.
(l) The Securities have been duly authorized by the Company and,
when the Securities are executed by the Company and authenticated by the
Trustee in accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters in accordance with the terms of this
Agreement, the Securities will be entitled to the benefits of the
Indenture and will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to the effects
of (i) bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to or
affecting creditors' rights generally, and (ii) general principles of
equity and the discretion of the court before which any proceeding
therefor may be brought.
(m) The Securities, the Indenture and each of the Merger Agreement
and the Credit Facilities conform in all material respects as to legal
matters to the description thereof contained in the Prospectus.
8
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(n) The Indenture has been or will, at the Closing Date, be duly
qualified under the Trust Indenture Act and has been duly and validly
authorized by the Company and, when the Securities are delivered and paid
for pursuant to this Agreement on the Closing Date, the Indenture will
have been duly executed and delivered by the Company and will constitute a
valid and legally binding agreement of the Company, enforceable in
accordance with its terms except as (i) as such enforcement may be limited
by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws now or hereafter in effect relating to or
affecting creditors' rights generally; (ii) that the remedies of specific
performance and injunctive and other forms of relief are subject to
general equitable principles, whether enforcement is sought at law or in
equity, and that such enforcement may be subject to the discretion of the
court before which any proceedings therefor may be brought; and (iii) as
rights to indemnity and contribution may be limited by state or federal
laws relating to securities or by the policies underlying such laws.
(o) This Agreement has been duly authorized, executed and delivered
by the Company.
(p) Neither the Company nor any of its Subsidiaries is (i) in
violation of its respective charter or by-laws, (ii) in default in any
material respect in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any other agreement, indenture or instrument material
to the conduct of the business of the Company and its Subsidiaries, taken
as a whole, to which the Company or any of its Subsidiaries is a party or
by which it or any of its Subsidiaries or their respective property is
bound or (iii) except for violations that, individually or in the
aggregate, would not have a Material Adverse Effect or a material adverse
effect on the ability of the Company and the Underwriters to consummate
the Offering (as defined in the Prospectus), in violation of any law,
statute, rule, regulation, judgment or court decree applicable to the
Company or any of its Subsidiaries.
(q) The execution, delivery and performance of the Transaction
Documents by the Company, compliance by the Company with all the
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not conflict with, constitute a
default under or violate (i) any of the terms, conditions or provisions of
the certificate of incorporation or by-laws of the Company or any of its
Subsidiaries, (ii) any of the terms, conditions or provisions of any
document, agreement, indenture or other instrument to which the Company or
any of its Subsidiaries is a party or by which the Company, any of its
Subsidiaries or their respective properties are bound, other than the
separate Note and Guarantee Agreements governing the 10.45% Senior Notes
due 2001, or (iii) any judgment, writ, injunction, decree, order or ruling
of any court or governmental authority binding on the Company, any of its
Subsidiaries or their respective properties except, in the case of (ii)
and (iii), for such conflicts, defaults or violations that would not have
a Material Adverse Effect. No consent, approval, waiver, license or
authorization or other action by or filing with any governmental authority
is required in connection with the execution, delivery and performance by
the Company of the Transaction Documents or the consummation by the
9
<PAGE>
Company of the transactions contemplated hereby and thereby, except under
the Act and the state or foreign securities or blue sky laws or except as
shall have been obtained or made on or prior to the Closing Date.
(r) The Merger Agreement has been duly authorized, executed and
delivered by the Company.
(s) The statistical and market-related data included in the
Prospectus or incorporated therein by reference are based on or derived
from sources which the Company believes to be reliable and accurate in all
material respects.
(t) Except as otherwise set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of
its Subsidiaries is a party or of which any of their respective property
is the subject which are required to be described in the Registration
Statement or Prospectus, and to the best of the Company's knowledge, no
such proceedings are threatened. No contract or other document of a
character required to be filed as an exhibit to the Registration Statement
is not so filed as required.
(u) (i) The Company and each of its Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including, without limitation, under any
applicable foreign, federal, state or local law or regulation relating to
the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants, as are necessary
to own, lease and operate its respective properties and to conduct its
business in the manner described in the Prospectus; (ii) neither the
Company nor any of its Subsidiaries has received notice of any proceedings
relating to the revocation or termination of any such permits; except, in
the case of clauses (i) and (ii), where failure to have such permits, or
the revocation or termination of any such permits would not, individually
or in the aggregate, result in a Material Adverse Effect.
(v) The Company and each of its Subsidiaries has good and marketable
title, free and clear of all liens, claims, encumbrances and restrictions
to all property and assets described in the Registration Statement as
being owned by it except for any such liens (i) set forth in Annex II
hereto, (ii) for taxes not yet due and payable or for taxes being
contested in good faith and for which adequate reserves, in accordance
with generally accepted accounting principles, have been taken or (iii) as
would not, individually or in the aggregate, have a Material Adverse
Effect.
(w) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(x) Except as (i) set forth in the Prospectus or (ii) pursuant to
the Stockholders' Agreement dated as of December 22, 1992 by and among the
Company and the persons signatory thereto, no holder of any security of
the Company has any
10
<PAGE>
right to require registration of shares of Class A Common Stock or any
other security of the Company.
(y) The Company and/or its Subsidiaries owns all rights to or has
the right to use the designs embodying all of the patents, trademarks,
service marks, trade names, copyrights, licenses and rights presently used
by them in the conduct of the Company's business and neither the Company
nor any of its Subsidiaries has received notice or is otherwise aware of
any conflict with the rights of others, the result of which conflict is
reasonably likely to result in a Material Adverse Effect, and to the best
of the Company's knowledge, there is no infringement on such patents,
trademarks, servicemarks, trade names, copyrights, licenses and right by
others the result of which infringement is reasonably likely to result in
a Material Adverse Effect.
(z) Price Waterhouse LLP are independent public accountants with
respect to the Company as required by the Act.
(aa) The financial statements, together with related schedules and
notes forming part of the Registration Statement and the Prospectus (and
any amendment or supplement thereto), present fairly the consolidated
financial position, results of operations and changes in financial
position of the Company and its Subsidiaries on the basis stated in the
Registration Statement at the respective dates or for the respective
periods to which they apply; such statements and related schedules and
notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical information and
data set forth in the Registration Statement and the Prospectus (and any
amendment or supplement thereto) is, in all material respects, accurately
presented and prepared on a basis consistent with such financial
statements and the books and records of the Company and its Subsidiaries.
(ab) The pro forma financial information and the related notes
thereto included in the Registration Statement (and any amendment or
supplement thereto) have been prepared in accordance with the applicable
requirements of the Act, include all adjustments necessary to present
fairly in all material respects the pro forma financial condition and
results of operations at the respective dates and for the respective
periods indicated.
(ac) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(ad) Except as set forth in or contemplated by the Registration
Statement and the Prospectus, subsequent to the respective dates as of
which information is given therein and up to and including the Closing
Date, (i) none of the Company or any of its Subsidiaries has entered into
any transactions that are material to the Company and its Subsidiaries,
taken as a whole, outside of the ordinary course of business, (ii) there
has not been any material adverse change in the business, condition
(financial or otherwise), results of operations or properties of the
Company and its Subsidiaries, taken as a whole
11
<PAGE>
(each, a "Material Adverse Change") and (iii) there has not been any
issuance of options or warrants to purchase capital stock of the Company
or any of its Subsidiaries, or any payment of or declaration to pay any
dividends or other distribution with respect to the capital stock of the
Company.
(ae) Except as disclosed in the Prospectus (including with respect
to this Agreement), neither the Company nor any Subsidiary is a party to
any contract, agreement or understanding with any person that would give
rise to a valid claim against the Company or any Subsidiary or the
Underwriters for a brokerage commission, finder's fee or like payment in
connection with the offering of the Securities.
7. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented), any preliminary prospectus,
or caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished in writing to the Company or on
behalf of any Underwriter through you expressly for use therein; provided,
however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages and
liabilities and judgments purchased Securities, or any person controlling
such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or delivered by or on behalf of such
Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Securities to
such person, and if the Prospectus (as amended and supplemented) would
have cured the defect giving rise to such loss, claim, damage, liability
or judgment. In addition, the Company agrees to indemnify and hold
harmless any Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, from and against all costs of such Underwriter or
controlling person (including reasonable fees and expenses of counsel)
incurred in connection with the enforcement by the Underwriter or such
controlling person of the indemnification provisions of Section 7(a) of
this Agreement against the Company.
(b) In case any action shall be brought against any Underwriter or
any person controlling such Underwriter, based upon any preliminary
prospectus, the Registration Statement or the Prospectus, any amendment or
supplement thereto or any document incorporated therein by reference and
with respect to which indemnity may be sought against the Company, such
Underwriter shall promptly notify the Company in writing and the Company
shall assume the defense thereof, including the employment of counsel
12
<PAGE>
reasonably satisfactory to such indemnified party and payment of all
reasonable fees and expenses; provided that the Company shall not be
liable to such indemnified party for any legal expenses of other counsel
or any other expenses, in each case, subsequently incurred by such
indemnified party, in connection with the defense thereof, other than the
reasonable cost of the investigation. Any Underwriter or any such
controlling person shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or
such controlling person unless (i) the employment of such counsel has been
specifically authorized in writing by the Company, (ii) the Company shall
have failed to assume the defense and employ counsel or (iii) the named
parties to any such action (including any impleaded parties) include both
such Underwriter or such controlling person and the Company and such
Underwriter or such controlling person shall have been advised by such
counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to the Company, in
which case the Company shall not have the right to assume the defense of
such action on behalf of such Underwriter or such controlling person and
the Company shall be liable for the reasonable legal expenses of counsel
to such Underwriter or such controlling person in connection with the
defense of such action, provided that such counsel to such Underwriter or
such controlling person shall use reasonable efforts to coordinate with
counsel to the Company on overlapping issues, it being understood,
however, that the Company shall not, in connection with any one such
action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys (in addition to one separate firm of local
counsel in each such jurisdiction) at any time, for all such Underwriters
and controlling persons, which firm shall be designated in writing by DLJ
and that all such fees and expenses shall be reimbursed promptly upon
request. The Company shall not be liable for any settlement of any action
subject to indemnification hereunder effected without the written consent
of the Company, which consent shall not be unreasonably withheld, but if
settled with the written consent of the Company the Company agrees to
indemnify and hold harmless any Underwriter and any such controlling
person from and against any loss or liability by reason of such
settlement. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are
the subject matter of such proceeding.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each
Underwriter but only with reference to information relating to such
Underwriter furnished in writing by or on behalf of such Underwriter
through you expressly for use in the Registration Statement or the
Prospectus (as amended or supplemented) or any preliminary prospectus. In
case any action shall be brought against
13
<PAGE>
the Company, any of its directors, any such officer or any person
controlling the Company based on the Registration Statement or the
Prospectus (as amended or supplemented) or any preliminary prospectus and
in respect of which indemnity may be sought against any Underwriter, the
Underwriter shall have the rights and duties given to the Company (except
that if the Company shall have assumed the defense thereof, such
Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Underwriter), and
the Company, its directors, any such officers and any person controlling
the Company shall have the rights and duties given to the Underwriter, by
Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and judgments (i) in
such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other
hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
and the Underwriters in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or judgments, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Underwriters shall be deemed to be in the
same proportion as the total proceeds from the offering (before deducting
expenses but after deducting underwriting discounts and commissions)
received by the Company and the total underwriting discounts and
commissions received by the Underwriters, bear to the total price to the
public of the Securities, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company and the
Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities or judgments referred
to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the
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<PAGE>
Securities underwritten by it and distributed to the public exceeds the
amount of any damages which such Underwriter has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute pursuant to this Section 7(b)
are several in proportion to the respective number of Securities purchased
by each of the Underwriters hereunder and not joint.
8. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters to purchase the Securities on the Closing Date are subject
to the satisfaction of each of the following conditions:
(a) All of the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing Date,
with the same force and effect as if made on and as of the Closing Date.
The Company shall have performed or complied in all material respects with
all of the agreements herein contained and required to be performed or
complied with by the Company at or prior to the Closing Date.
(b)(i) The Registration Statement shall have become effective (or if
(i) a post-effective amendment thereto (including any such amendment
required to be filed pursuant to Rule 430A under the Act) or (ii) a new or
additional registration statement pursuant to Rule 462 under the Act has
been filed, such post-effective amendment or new or additional
registration statement (as applicable) shall become effective) not later
than the opening of business on the first full business day next following
the date of this Agreement or at such later date and time as you may
approve in writing, (ii) at the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission and every comment by or request
for additional information on the part of the Commission or any securities
commission or regulatory authority of the several states or any foreign
jurisdiction shall have been responded to or complied with in all material
respects and (iii) no stop order suspending the sale of the Securities in
California, Colorado, Connecticut, Illinois, Maryland, Massachusetts,
Minnesota, New Jersey, New York, Pennsylvania and Texas shall have been
issued and no proceeding for that purpose shall have been commenced and be
pending before any securities regulators, and the Company shall not have
received notice of the contemplation of any such issuance by any such
securities regulator.
(c) Subsequent to the effective date of this Agreement, except as
set forth in or contemplated by the Registration Statement and the
Prospectus, (i) there shall not have been any Material Adverse Change, or
any development involving a prospective Material Adverse Change, whether
or not arising in the ordinary course of business of the Company, (ii)
there shall not have been any change, or any development involving a
prospective material adverse change, in the capital stock or in the
long-term debt of the Company or any of its Subsidiaries (other than (A)
as a result of borrowings (revolving or other) for working capital
incurred in the ordinary course of business and (B) the
15
<PAGE>
Merger and the Financing, each as described in the Prospectus), (iii) the
Company and its Subsidiaries shall not have incurred any liability or
obligation, direct or contingent, which is material to the Company and its
Subsidiaries, taken as a whole and which have materially changed the
financial position of the Company and its Subsidiaries, taken as a whole
(other than as a result of the Merger and the Financing, each as described
in the Prospectus) and (iv) on the Closing Date, you shall have received a
certificate dated the Closing Date signed by Mr. Martin H. Loeffler and
Mr. Edward G. Jepsen, in their capacities as (A) the President and Chief
Executive Officer and (B) Executive Vice President and Chief Financial
Officer of the Company, respectively, confirming the matters set forth in
paragraphs (a), (b), and (c)(i) of this Section 8.
(d) You shall have received on the Closing Date an opinion (in the
form attached hereto as Annex II), dated the Closing Date of Winthrop,
Stimson, Putnam & Roberts, special counsel for the Company, with respect
to the Company and its Subsidiaries. The opinion of Winthrop, Stimson,
Putnam & Roberts shall be rendered to you at the request of the Company
and shall so state therein.
(e) You shall have received on the Closing Date an opinion (in the
form attached hereto as Annex III), dated the Closing Date of Simpson
Thacher & Bartlett, special counsel for the Company, with respect to the
Company and its Subsidiaries. The opinion of Simpson Thacher & Bartlett
shall be rendered to you at the request of the Company and so state
therein.
(f) You shall have received on the Closing Date an opinion (in the
form attached hereto as Annex IV), dated the Closing Date of Edward C.
Wetmore, counsel for the Company, with respect to the Company and its
Subsidiaries. The opinion of Edward C. Wetmore shall be rendered to you at
the request of the Company and shall so state therein.
(g) You shall have received on the Closing Date an opinion, dated
the Closing Date of Latham & Watkins, counsel for the Underwriters, in
form and substance reasonably satisfactory to the Underwriters.
(h) You shall have received a letter concurrently with the execution
of this Agreement and on and as of the Closing Date in form and substance
reasonably satisfactory to you, from Price Waterhouse LLP, independent
public accountants, with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus and/or incorporated therein by reference.
(i) Latham & Watkins shall have been furnished with such documents
as they may reasonably require for the purpose of enabling them to review
or pass upon the matters referred to in this Section 8.
(j) The Company and the Trustee shall have entered into the
Indenture and the Underwriters shall have received counterparts, conformed
as executed, thereof.
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<PAGE>
(k) The Merger Agreement shall have been executed and delivered by
the parties thereto and shall be in force and effect.
(l) The Underwriters shall be satisfied that the Merger and the
Credit Facilities shall have been consummated or will be consummated on
the Closing Date on the terms described in the Registration Statement.
All opinions, certificates, letters and other documents required by
this Section 8 to be delivered by the Company will be in compliance with the
provisions hereof if and only if they are reasonably satisfactory in form and
substance to the Underwriters. The Company will furnish the Underwriters with
such conformed copies of such opinions, certificates, letters and other
documents as the Underwriters or their counsel shall reasonably request.
9. Effective Date of Agreement and Termination. This Agreement shall
become effective upon the later of (i) execution of this Agreement, (ii) when
notification of the effectiveness of the Registration Statement has been
released by the Commission and (iii) if a post-effective amendment to the
Registration Statement has been filed (including any post-effective amendment
required to be filed pursuant to Rule 430A) or a new or additional registration
statement has been filed (including any new or additional registration statement
required to be filed pursuant to Rule 462 under the Act), the effectiveness of
such post-effective amendment or new or additional registration statement. Until
this Agreement becomes effective as aforesaid, it may be terminated by the
Company by notifying the Underwriters or by the Underwriters by notifying the
Company.
This Agreement may be terminated at any time after it becomes
effective and prior to the Closing Date by you by written notice to the Company
if any of the following has occurred: (i) any outbreak or escalation of
hostilities or other national or international calamity or crisis or change in
economic conditions or in the financial markets of the United States or
elsewhere that, in your judgment, is material and adverse and would, in your
judgment, make it impracticable to market the Securities on the terms and in the
manner contemplated in the Prospectus, or (ii) the suspension or material
limitation of trading in securities on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market or limitation on prices for
securities on any such exchange or the Nasdaq National Market or (iii) the
declaration of a banking moratorium by either federal or New York State
authorities.
If on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase the Securities which it or they have agreed to
purchase hereunder on such date and the aggregate number of Securities, which
such defaulting Underwriter or Underwriters, as the case may be, agreed but
failed or refused to purchase is not more than one-tenth of the total number of
Securities to be purchased on such date by all Underwriters, each non-defaulting
Underwriter shall be obligated severally, in the proportion which the number of
Securities set forth opposite its name in Annex I bears to the total number of
Securities which all the non-defaulting Underwriters, as the case may be, have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Securities which such defaulting Underwriter or Underwriters, as the case
may be, agreed but failed or refused to purchase on such date; provided that in
no event shall the number of Securities which any Underwriter has agreed to
17
<PAGE>
purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by
an amount in excess of one-ninth of such number of Securities without the
written consent of such Underwriter. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
number of Securities with respect to which such default occurs is more than
one-tenth of the aggregate number of Securities to be purchased on such date by
all Underwriters and arrangements satisfactory to you and the Company for
purchase of such Securities are not made within 48 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case which does not
result in termination of this Agreement, either you or the Company shall have
the right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and the Prospectus or any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of any such Underwriter under this
Agreement.
10. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to Amphenol
Corporation, 358 Hall Avenue, Wallingford, Connecticut, 06492-7530, Attention:
President, and (b) if to any Underwriter or to you, to Donaldson, Lufkin &
Jenrette Securities Corporation, 2121 Avenue of the Americas, Los Angeles,
California, 90067, Attention: Syndicate Department, or in any case to such other
address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company and the several
Underwriters set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Securities, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter or by or on behalf of
the Company, the officers or directors of the Company or any controlling person
of the Company, (ii) acceptance of the Securities and payment for them hereunder
and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company to comply with the terms
hereof or to fulfill any of the conditions set forth in Section 8 of this
Agreement, other than by reason of a default under this Agreement by an
Underwriter, the Company agrees to reimburse the several Underwriters upon
demand accompanied by reasonable supporting documentation for all out-of-pocket
expenses (including the reasonable fees and disbursements of counsel) reasonably
incurred by them in connection with the matters contemplated by this Agreement.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Securities from any of the several Underwriters merely because of
such purchase.
18
<PAGE>
This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
[Signature page follows]
19
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Underwriters.
Very truly yours,
AMPHENOL CORPORATION
By: /s/ Edward G. Jepsen
----------------------------------
Name: Edward G. Jepsen
Title: Executive Vice President
and Chief Financial Officer
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
LEHMAN BROTHERS INC.
BT SECURITIES CORPORATION
CHASE SECURITIES INC.
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ David Posnick
----------------------------
Name: David Posnick
Title: Vice President
20
<PAGE>
ANNEX I
Underwriter Principal Amount of
Securities to be
Purchased
-------------------
Donaldson, Lufkin & Jenrette
Securities Corporation ................................ $ 84,000,000
Lehman Brothers Inc. .................................... 84,000,000
BT Securities Corporation ............................... 36,000,000
Chase Securities Inc. ................................... 36,000,000
============
Total ................................................... $240,000,000
I-1
<PAGE>
ANNEX II
Form of Opinion of Winthrop, Stimson, Putnam & Roberts
[WSP&R Letterhead]
May 19, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
LEHMAN BROTHERS INC.
BT SECURITIES CORPORATION
CHASE SECURITIES INC.
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
2121 Avenue of the Stars
Los Angeles, California 90067
Ladies and Gentlemen:
We have acted as special counsel to Amphenol Corporation, a Delaware
corporation (the "Company"), in connection with the issuance and sale by the
Company of $240,000,000 aggregate principal amount of the Company's 97/8% Senior
Subordinated Notes due 2007 (the "Notes"), pursuant to the Underwriting
Agreement dated May 13, 1997 between the Company and each of you (the
"Underwriting Agreement").
This opinion is being furnished to you pursuant to Section 8(d) of
the Underwriting Agreement. Capitalized terms used but not defined herein have
the respective meanings ascribed to them in the Underwriting Agreement.
II-1
<PAGE>
In such capacity, we have reviewed copies of the Company's
Registration Statement on Form S-3 (File No. 333-22521) relating to the Notes,
as amended by each amendment thereto (the "Registration Statement"), filed by
the Company with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act"), and the
Prospectus dated May 13, 1997 in the form filed with the Commission pursuant to
Rule 424(b) under the Securities Act. We have also reviewed such other documents
and satisfied ourselves as to such other matters as we have deemed necessary in
order to enable us to express this opinion. In our review, we have assumed the
genuineness of all signatures, the authenticity of all documents and other
materials submitted to us as originals and the conformity to authentic originals
of all documents and other materials submitted to us as certified or photostatic
copies. As to various questions of fact material to this opinion, we have
reviewed and relied upon, to the extent we have deemed such reliance proper,
corporate records, agreements, documents and other instruments, and certificates
or comparable documents of public officials and of officers and representatives
of the Company.
We are members of the Bar of the State of New York and do not
express any opinion herein concerning the law of any jurisdiction other than the
law of the State of New York, the General Corporation Law of the State of
Delaware and the federal law of the United States.
Subject to the foregoing and to the further exceptions and
qualifications set forth herein, we are of the opinion that:
1. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the law of the State of Delaware and has the
corporate power and authority to carry on its business as described in the
Registration Statement and to own, lease and operate its properties.
2. The execution, delivery and performance of the Transaction
Documents by the Company, compliance by the Company with all the provisions
thereof and the consummation of the transactions contemplated thereby will not
conflict with, constitute a default under or violate (i) any of the terms,
conditions or provisions of the Restated Certificate of Incorporation or the
By-laws of the Company, (ii) any of the terms, conditions or provisions of any
document, agreement, indenture or other instrument known to us to which the
Company is a party or by which the Company or any of its properties are bound or
(iii) to the best of our knowledge (without independent inquiry) any judgment,
writ, injunction, decree, order or ruling issued pursuant to any Federal or New
York statute or the Delaware General Corporation Law by any court or
governmental authority binding on the Company or any of its properties, except,
in the case of clauses (ii) and (iii), (A) where such conflict, default or
violation would not reasonably be expected to have a Material Adverse Effect,
(B) that we express no opinion as to any conflict, violation or default with or
relating to (1) the indenture relating to the Company's 12 3/4% Senior
Subordinated Notes due 2002, (2) the Credit Facilities, (3) the Receivables
Purchase Agreement, dated as of December 3, 1993, among Amphenol Funding Corp.,
the Company, Pooled Accounts Receivable Capital Corporation and Nesbitt Burns
Securities, Inc., as successor to the Bank of Montreal, as agent, as amended to
the date hereof, (4) the Purchase
II-2
<PAGE>
and Sale Agreement, dated as of December 3, 1993, among the originators named
therein, Amphenol Funding Corp. and the Company, as amended to the date hereof,
(5) the Amended and Restated Receivables Purchase Agreement, dated as of the
date hereof, among Amphenol Funding Corp., the Company, Pooled Accounts
Receivable Capital Corporation and Nesbitt Burns Securities, Inc., as agent and
(6) the Amended and Restated Purchase and Sale Agreement, dated as of the date
hereof, among the originators named therein, Amphenol Funding Corp. and the
Company and (C) that for purposes of this opinion we have assumed that (1) the
Company's Senior Notes due 2001 have been retired and (2) the Credit Agreement,
dated as of November 30, 1995, among the Company, the several banks and other
financial institutions named therein and Chemical Bank, as administrative agent,
has been terminated.
3. To our knowledge, no contract or other document of a character
required to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement is not so described or
filed as required.
4. The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
This opinion is rendered solely for your use in connection with the
transactions contemplated by the Underwriting Agreement, and may not be relied
upon in any manner by any other person or for any other purpose without our
prior written consent.
Very truly yours,
II-3
<PAGE>
ANNEX III
Form of Opinion of Simpson Thacher & Bartlett
May 19, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
LEHMAN BROTHERS INC.
BT SECURITIES CORPORATION
CHASE SECURITIES INC.
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
2121 Avenue of the Stars
Los Angeles, California 90067
Ladies and Gentlemen:
We have acted as counsel to Amphenol Corporation, a Delaware
corporation (the "Company"), in connection with the purchase by you of
$240,000,000 aggregate principal amount of 97/8% Senior Subordinated Notes due
2007 (the "Notes") of the Company, pursuant to the Underwriting Agreement
between you and the Company dated May 13, 1997 (the "Underwriting Agreement").
We have examined the Registration Statement on Form S-3 (File No.
333-22521) filed by the Company under the Securities Act of 1933, as amended
(the "Act"), as it became effective under the Act (the "Registration
Statement"); the Company's prospectus dated May 13, 1997 (the "Prospectus"),
filed by the Company pursuant to Rule 424(b) of the rules and regulations of the
Securities and Exchange Commission (the "Commission") under the Act,
III-1
<PAGE>
which pursuant to Form S-3 incorporates by reference the Annual Report on Form
10-K of the Company for the fiscal year ended December 31, 1996, as amended by
Amendment No. 1 thereto on Form 10-K/A, the Quarterly Report on Form 10-Q of the
Company for the fiscal quarter ended March 31, 1997, the Current Report on Form
8-K of the Company dated January 23, 1997 and the Current Report on Form 8-K of
the Company dated May 9, 1997 (the "Exchange Act Documents"), each as filed
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"); and
the Indenture dated as of May 15, 1997 (the "Indenture") between the Company and
IBJ Schroder Bank & Trust Company, as Trustee (the "Trustee") relating to the
Notes. In addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the Notes, of which
we have examined specimens) and upon originals or copies, certified or otherwise
identified to our satisfaction, of such corporate records, agreements, documents
and other instruments and such certificates or comparable documents or oral
statements of public officials and of officers and representatives of the
Company, and have made such other and further investigations, as we have deemed
relevant and necessary as a basis for the opinions hereinafter set forth. Our
opinions that the Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and that the Registration
Statement has become effective under the Act, are based on oral advice from the
staff of the Commission to the effect that the Registration Statement has been
declared effective.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
III-2
<PAGE>
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that:
1. The Indenture has been duly authorized, executed and delivered by
the Company and duly qualified under the Trust Indenture Act and, assuming
due authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms.
2. The Notes have been duly authorized, executed and issued by the
Company and, assuming due authentication thereof by the Trustee and upon
payment and delivery in accordance with the Underwriting Agreement, will
constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture.
3. The statements made in the Prospectus under the caption
"Description of the Notes," insofar as they purport to constitute
summaries of certain terms of documents referred to therein, constitute
accurate summaries of the terms of such documents in all material
respects.
4. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
5. The issue and sale of the Notes by the Company and the compliance
by the Company with all of the provisions of the Underwriting Agreement
will not breach or result in a default under the Indenture dated December
15, 1992 between the Company and The Bank of New York, the Credit
Agreement, as described in the Prospectus, or the amended accounts
receivable facility, nor will such action violate any Federal or New York
statute or the Delaware General Corporation Law or any rule or regulation
that has been issued pursuant to any Federal or New York statute or the
Delaware General Corporation Law or any order known to us issued pursuant
to any Federal or New York statute or the Delaware General Corporation Law
by any court or governmental agency or body or court having jurisdiction
over the Company or any of its subsidiaries or any of their properties.
6. No consent, approval, authorization, order, registration or
qualification of or with any Federal or New York governmental agency or
body or any Delaware governmental agency or body acting pursuant to the
Delaware General Corporation Law or, to our knowledge, any Federal or New
York court or any Delaware court acting pursuant to the Delaware General
Corporation Law is required for the issue and sale of the Notes by the
Company and the compliance by the Company with all of the provisions of
the Underwriting Agreement, except for the registration under the Act of
the Notes, and such consents, approvals, authorizations, registrations or
qualifications as may be
III-3
<PAGE>
required under state securities or Blue Sky Laws in connection with the
purchase and distribution of the Notes by the Underwriters.
7. The Registration Statement has become effective under the Act and
the Prospectus was filed on May __,1997 pursuant to Rule 424(b) ____ of
the rules and regulations of the Commission under the Act and, to our
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued or proceeding for that purpose has been
instituted or threatened by the Commission.
8. The Company is not an "investment company" within the meaning of
and subject to regulation under the Investment Company Act of 1940, as
amended.
Our opinions set forth in paragraphs 1 and 2 above are subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Prospectus or the Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraph 3 above. In the course of the
preparation by the Company of the Registration Statement and the Prospectus, we
participated in conferences with certain officers and employees of the Company,
with representatives of Price Waterhouse LLP and with counsel to the Company. We
did not prepare the Exchange Act Documents; however, we discussed the Exchange
Act Documents with the Company and with counsel to the Company prior to their
filing with the Commission. Based upon our examination of the Registration
Statement, the Prospectus and the Exchange Act Documents, our investigations
made in connection with the preparation of the Registration Statement, and the
Prospectus (excluding the Exchange Act Documents) and our participation in the
conferences referred to above, (i) we are of the opinion that the Registration
Statement,
III-4
<PAGE>
as of its effective date, and the Prospectus, as of May 13, 1997, complied as to
form in all material respects with the requirements of the Act, the Trust
Indenture Act and the applicable rules and regulations of the Commission
thereunder and that the Exchange Act Documents complied as to form when filed in
all material respects with the requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion with respect to the financial statements or
other financial or statistical data contained or incorporated by reference in
the Registration Statement, the Prospectus or the Exchange Act Documents, and
(ii) we have no reason to believe that the Registration Statement, as of its
effective date (including the Exchange Act Documents on file with the Commission
on such effective date), contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading or that the Prospectus
(including the Exchange Act Documents) contains any untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that in each case we express no belief with respect
to the financial statements or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the Prospectus or the
Exchange Act Documents.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York, the federal law of the United States and the Delaware General
Corporation Law.
This opinion letter is rendered to you in connection with the above
described transactions. This opinion letter may not be relied upon by you for
any other purpose, or relied
III-5
<PAGE>
upon by, or furnished to, any other person, firm or corporation without our
prior written consent.
Very truly yours,
SIMPSON THACHER & BARTLETT
III-6
<PAGE>
ANNEX IV
Form of Opinion of Edward C. Wetmore
[Wetmore Letterhead]
May 19, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
LEHMAN BROTHERS INC.
BT SECURITIES CORPORATION
CHASE SECURITIES INC.
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
2121 Avenue of the Stars
Los Angeles, California 90067
Ladies and Gentlemen:
I am General Counsel of Amphenol Corporation, a Delaware corporation
(the "Company"), and have advised the Company in connection with the issuance
and sale by the Company of $240,000,000 aggregate principal amount of the
Company's 97/8% Senior Subordinated Notes due 2007 (the "Notes"), pursuant to
the Underwriting Agreement dated May 13, 1997 between the Company and each of
you (the "Underwriting Agreement").
This opinion is being furnished to you pursuant to Section 8(f) of
the Underwriting Agreement. Capitalized terms used but not defined herein have
the respective meanings ascribed to them in the Underwriting Agreement.
I have reviewed signed copies of the Company's Registration
Statement on Form S-3 (File No. 333-22521) relating to the Notes, as amended by
each amendment thereto (the "Registration Statement"), filed by the Company with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act"), and
IV-1
<PAGE>
the Prospectus dated May 13, 1997, in the form filed with the Commission
pursuant to Rule 424(b) under the Securities Act (the "Prospectus"). I have also
reviewed such documents and satisfied myself as to such other matters as I have
deemed necessary in order to enable me to express this opinion. In my review, I
have assumed the genuineness of all signatures, the authenticity of all
documents and other materials submitted to me as originals and the conformity to
authentic originals of all documents and other materials submitted to me as
certified or photostatic copies. As to various questions of fact material to
this opinion, I have reviewed and relied upon, to the extent I have deemed such
reliance proper, corporate records, agreements, documents and other instruments,
and certificates or comparable documents of public officials and of officers and
representatives of the Company.
I am a member of the Bar of the State of Connecticut and do not
express any opinion herein concerning the laws of any jurisdiction other than
the laws of the State of Connecticut, the General Corporation Law of the State
of Delaware and the federal laws of the United States.
Subject to the foregoing and to the further exceptions and
qualifications set forth herein, I am of the opinion that:
1. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware and has the
corporate power and authority to carry on its business as described in the
Registration Statement and to own, lease and operate its properties.
2. The Company is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
Material Adverse Effect.
3. Each Subsidiary has been duly incorporated, is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to carry on its business
as described in the Registration Statement and to own, lease and operate its
properties and, to the best of my knowledge, is duly qualified and is in good
standing as a foreign corporation authorized to do business in each jurisdiction
in which the nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so qualified would
not have a Material Adverse Effect.
4. The execution, delivery and performance of the Transaction
Documents by the Company, compliance by the Company with all the provisions
thereof and the consummation of the transactions contemplated thereby will not
conflict with, constitute a default under or violate (i) any of the terms,
conditions or provisions of the certificate of incorporation or the by-laws of
the Company or any of its Subsidiaries, (ii) any of the terms, conditions or
provisions of any document, agreement, indenture or other instrument known to me
to which the Company or any of its Subsidiaries is a party or by which the
Company, any of its
IV-2
<PAGE>
Subsidiaries or their respective properties are bound or (iii) to the best of my
knowledge, any judgment, writ, injunction, decree, order or ruling of any court
or governmental authority binding on the Company, any of its Subsidiaries or
their respective properties, except, in the case of clauses (ii) and (iii), (A)
where such conflict, default or violation would not have a Material Adverse
Effect and (B) that I express no opinion as to any conflict, violation or
default with or relating to the Indenture relating to the Company's 12 3/4%
Senior Subordinated Notes due 2002.
5. The Company has all requisite corporate power and authority to
enter into the Merger Agreement and to consummate the transactions contemplated
thereby.
6. The Merger Agreement has been duly authorized, executed and
delivered by the Company.
7. To the best of my knowledge, except as otherwise disclosed in the
Prospectus, there is no legal or governmental proceeding pending to which the
Company or any of its Subsidiaries is a party or of which any of their
respective properties is the subject which is required to be described in the
Registration Statement or the Prospectus, and to the best of my knowledge, no
such proceeding is threatened.
8. To my knowledge, no contract or other document of a character
required to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement is not so described or
filed as required.
In connection with the preparation of the Registration Statement and
the Prospectus, I have participated in conferences with officers and other
representatives of and counsel to the Company, representatives of the
independent certified public accountants of the Company and representatives of
the Underwriters and counsel to the Underwriters at which the contents of the
Registration Statement and the Prospectus and related matters were discussed.
Although I have not undertaken to investigate or verify independently, and do
not assume any responsibility for, the accuracy, completeness or fairness of the
statements contained or incorporated by reference in the Registration Statement
or the Prospectus, on the basis of the foregoing, no facts have come to my
attention that give me reason to believe that the Registration Statement, at the
time it became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus, at the time
it was filed with the Commission pursuant to Rule 424(b) and at the date hereof,
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that I express no opinion as to (i) financial statements and
related notes, the financial statement schedules and other financial and
statistical data included or incorporated by reference therein, (ii) that part
of the Registration Statement which constitutes the Trustee's Statement of
Eligibility under the Trust Indenture Act on Form T-1 or (iii) the statements
therein concerning The Depository Trust Company ("DTC") and DTC's book-entry
system.
IV-3
<PAGE>
This opinion is rendered solely for your use in connection with the
transactions contemplated by the Underwriting Agreement and may not be relied
upon in any manner by any other person or for any other purpose without my prior
written consent.
Very truly yours,
IV-4
<PAGE>
Exhibit 99.3
INDENTURE, dated as of May 15, 1997, between AMPHENOL CORPORATION, a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), having its principal office at 358 Hall Avenue, Wallingford,
Connecticut 06492, and IBJ Schroder Bank & Trust Company, a New York banking
corporation, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of and issuance of its 9 7/8
Senior Subordinated Notes due May 2007 (the "Notes") of substantially the tenor
and amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
This Indenture is subject to, and shall be governed by, the provisions of
the Trust Indenture Act of 1939, as amended, that are required or deemed to be
part of and to govern indentures qualified thereunder.
All things necessary have been done to make the Notes, when executed and
duly issued by the Company and authenticated and delivered hereunder by the
Trustee or the Authenticating Agent, the valid obligations of the Company and to
make this Indenture a valid agreement of the Company in accordance with their
and its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by
the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article, and words in the singular include the plural as well as the
singular, and words in the plural include the singular as well as the plural;
(b) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, or defined by Commission rule
and not otherwise defined herein have the meanings assigned to them therein,
and the terms "cash
<PAGE>
2
transaction" and "self-liquidating paper", as used in TIA Section 311, shall
have the meanings assigned to them in the rules of the Commission adopted
under the Trust Indenture Act;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with Generally Accepted Accounting Principles;
(d) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(e) the word "or" is not exclusive; and
(f) provisions of this Indenture apply to successive events and
transactions.
Certain terms, used principally in Articles Two, Ten, Twelve and Thirteen,
are defined in those Articles.
"Acquired Indebtedness" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Restricted Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by
a Lien encumbering any asset acquired by such specified Person.
"Act," when used with respect to any Holder, has the meaning set forth in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided, however,
that beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control.
"Agent" means any Paying Agent, Authenticating Agent and Note Registrar
under this Indenture.
"Asset Sale" means (i) the sale, conveyance, transfer or other disposition
(whether in a single transaction or a series of related transactions) of
property or assets (including by way of a sale and leaseback) of the Company or
any Restricted Subsidiary (each referred to in this definition as a
"disposition") or (ii) the issuance or sale of Equity Interests of any
Restricted Subsidiary (whether in a single transaction or a series of related
transactions), in each case, other than: (a) a disposition of Cash Equivalents
or Investment Grade Securities or obsolete equipment in the ordinary course of
business; (b) the disposition of all or substantially all of the assets of the
Company in a manner permitted pursuant to the provisions of Section 801 hereof
or any disposition that constitutes a Change of Control pursuant to this
Indenture; (c) any Restricted Payment that is permitted to be made, and is made,
under the first paragraph of Section 1009 hereof; (d) any disposition of assets
with an aggregate fair market value of less than $1.0 million;
<PAGE>
3
(e) any disposition of property or assets by a Restricted Subsidiary to the
Company or by the Company or a Restricted Subsidiary to a Wholly Owned
Restricted Subsidiary; (f) any exchange of like property pursuant to Section
1031 of the Internal Revenue Code of 1986, as amended, for use in a Similar
Business; (g) any financing transaction with respect to property built or
acquired by the Company or any Restricted Subsidiary after the Issuance Date
including, without limitation, sale-leasebacks and asset securitizations; (h)
foreclosures on assets; (i) sales of accounts receivable, or participations
therein, in connection with any Receivables Facility; and (j) any sale of Equity
Interests in, or Indebtedness or other securities of, an Unrestricted
Subsidiary.
"Authenticating Agent" means the Person appointed, if any, by the Trustee
as an authenticating agent pursuant to the last paragraph of Section 303.
"Bank Agent" means Bankers Trust Company, in its capacity as administrative
agent under the Senior Credit Facility, and any successor administrative agent
thereunder.
"Bankruptcy Law" means Title 11, United States Bankruptcy Code of 1978, as
amended, or any similar United States federal or state or foreign law relating
to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization
or relief of debtors or any amendment to, succession to or change in any such
law.
"Board of Directors" means, with respect to any Person, either the board of
directors of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited) and
(iv) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.
"Capitalized Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized and reflected as a liability on
a balance sheet (excluding the footnotes thereto) in accordance with GAAP.
"Cash Equivalents" means (i) U.S. dollars, (ii) securities issued or
directly and fully guaranteed or insured by the U.S. Government or any agency or
instrumentality thereof, (iii)
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4
certificates of deposit, time deposits and eurodollar time deposits with
maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year and overnight bank deposits,
in each case with any commercial bank having capital and surplus in excess of
$500.0 million, (iv) repurchase obligations for underlying securities of the
types described in clauses (ii) and (iii) entered into with any financial
institution meeting the qualifications specified in clause (iii) above, (v)
commercial paper rated A-1 or the equivalent thereof by Moody's or S&P and in
each case maturing within one year after the date of acquisition, (vi)
investment funds investing 95% of their assets in securities of the types
described in clauses (i)-(v) above, (vii) readily marketable direct obligations
issued by any state of the United States of America or any political subdivision
thereof having one of the two highest rating categories obtainable from either
Moody's or S&P and (viii) Indebtedness or preferred stock issued by Persons with
a rating of "A" or higher from S&P or "A2" or higher from Moody's.
"Change of Control" means the occurrence of any of the following: (i) the
sale, lease or transfer, in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Subsidiaries, taken as a
whole; or (ii) the Company becomes aware of (by way of a report or any other
filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written
notice or otherwise) the acquisition by any Person or group (within the meaning
of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor
provision), including any group acting for the purpose of acquiring, holding or
disposing of securities (within the meaning of Rule 13d-5(b)(1) under the
Exchange Act), other than the Permitted Holders and their Related Parties, in a
single transaction or in a related series of transactions, by way of merger,
consolidation or other business combination or purchase of beneficial ownership
(within the meaning of Rule 13d-3 under the Exchange Act, or any successor
provision) of 50% or more of the total voting power of the Voting Stock of the
Company.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated, whether voting or
non-voting) of such Person's common stock, whether outstanding on the Issuance
Date or issued after the Issuance Date and includes, without limitation, all
series and class of such common stock.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture, until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company (a) by its Chairman, a Vice-Chairman, its
President or any Vice President and (b) by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee;
provided, however, that such written request or order may be signed by any two
of the officers or directors listed in clause (a) above in lieu of being signed
by one of such officers or directors listed in such clause (a) and one of the
officers listed in clause (b) above.
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5
"Consolidated Depreciation and Amortization Expense" means with respect to
any Person for any period, the total amount of depreciation and amortization
expense of such Person and its Restricted Subsidiaries for such period on a
consolidated basis and otherwise determined in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any period, the sum,
without duplication, of: (a) consolidated interest expense of such Person and
its Restricted Subsidiaries for such period, to the extent, such expense was
deducted in computing Consolidated Net Income (including amortization of
original issue discount, non-cash interest payments, the interest component of
Capitalized Lease Obligations, and net payments and receipts (if any) pursuant
to Hedging Obligations to the extent included in Consolidated Interest Expense,
excluding amortization of deferred financing fees) and (b) consolidated
capitalized interest of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued; provided, however, that Receivables Fees shall
be deemed not to constitute Consolidated Interest Expense.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate of the Net Income, of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, and otherwise determined in accordance
with GAAP; provided, however, that (i) any net after-tax extraordinary gains or
losses (less all fees and expenses relating thereto) shall be excluded, (ii) the
Net Income for such period shall not include the cumulative effect of a change
in accounting principles during such period, (iii) any net after-tax income
(loss) from discontinued operations and any net after-tax gains or losses on
disposal of discontinued operations shall be excluded, (iv) any net after-tax
gains or losses (less all fees and expenses relating thereto) attributable to
asset dispositions other than in the ordinary course of business (as determined
in good faith by the Board of Directors of the Company) shall be excluded, (v)
the Net Income for such period of any Person that is not a Subsidiary, or is an
Unrestricted Subsidiary, or that is accounted for by the equity method of
accounting, shall be included only to the extent of the amount of dividends or
distributions or other payments paid in cash (or to the extent converted into
cash) to the referent Person or a Wholly Owned Restricted Subsidiary thereof in
respect of such period, (vi) the Net Income of any Person acquired in a pooling
of interests transaction shall not be included for any period prior to the date
of such acquisition and (vii) the Net Income for such period of any Restricted
Subsidiary shall be excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary of its Net
Income is not at the date of determination permitted without any prior
governmental approval (which has not been obtained) or, directly or indirectly,
by the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule, or governmental regulation applicable to
that Restricted Subsidiary or its stockholders, unless such restriction with
respect to the payment of dividends or in similar distributions has been legally
waived.
"Contingent Obligations" means, with respect to any Person, any obligation
of such Person guaranteeing any leases, dividends or other obligations that do
not constitute Indebtedness ("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,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (A) for the
purchase or payment of any such primary obligation or (B) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, or (iii) to
<PAGE>
6
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 against loss in respect thereof.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee, at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Indenture is located
at One State Street, New York, NY 10004, except that with respect to
presentation of Notes for payment or for registration of transfer or exchange,
such term shall mean any office or agency of the Trustee at which, at any
particular time, its corporate agency business shall be conducted.
"Credit Facilities" means, with respect to the Company, one or more debt
facilities (including, without limitation, the Senior Credit Facility) or
commercial paper facilities with banks or other institutional lenders providing
for revolving credit loans, term loans, receivables financing (including through
the sale of receivables to such lenders or to special purpose entities formed to
borrow from such lenders against such receivables) or letters of credit, in each
case, as amended, restated, modified, renewed, refunded, replaced or refinanced
in whole or in part from time to time.
"Custodian" means any receiver, trustee, assignee, liquidator, sequestrator
or similar official under any Bankruptcy Law.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Defaulted Interest" has the meaning set forth in Section 308.
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Designated Noncash Consideration" means the fair market value of noncash
consideration received by the Company or one of its Restricted Subsidiaries in
connection with an Asset Sale that is so designated as Designated Noncash
Consideration pursuant to an Officers' Certificate, setting forth the basis of
such valuation, executed by the principal executive officer and the principal
financial officer of the Company, less the amount of cash or Cash Equivalents
received in connection with a sale of such Designated Noncash Consideration.
"Designated Preferred Stock" means preferred stock of the Company (other
than Disqualified Stock) that is issued for cash (other than to a Restricted
Subsidiary) and is so designated as Designated Preferred Stock, pursuant to an
Officers' Certificate executed by the principal executive officer and the
principal financial officer of the Company, on the issuance date thereof, the
cash proceeds of which are excluded from the calculation set forth in clause (C)
of paragraph (a) of Section 1009.
"Designated Senior Indebtedness" means (i) Senior Indebtedness under the
Senior Credit Facility and (ii) any other Senior Indebtedness permitted under
this Indenture the principal amount of which is $50.0 million or more and that
has been designated by the Company as Designated Senior Indebtedness.
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7
"Disqualified Stock" means, with respect to any Person, any Capital Stock
of such Person which, by its terms (or by the terms of any security into which
it is convertible or for which it is putable or exchangeable), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, in each case prior to the date 91 days after the
maturity date of the Notes; provided, however, that if such Capital Stock is
issued to any employee or to any plan for the benefit of employees of the
Company or its Subsidiaries or by any such plan to such employees, such Capital
Stock shall not constitute Disqualified Stock solely because it may be required
to be repurchased by the Company in order to satisfy applicable statutory or
regulatory obligations.
"EBITDA" means, with respect to any Person for any period, the Consolidated
Net Income of such Person for such period plus (a) provision for taxes based on
income or profits of such Person for such period deducted in computing
Consolidated Net Income, plus (b) Consolidated Interest Expense of such Person
for such period and any Receivables Fees paid by such Person or any of its
Restricted Subsidiaries during such period, in each case to the extent the same
was deducted in calculating such Consolidated Net Income, plus (c) Consolidated
Depreciation and Amortization Expense of such Person for such period to the
extent such depreciation and amortization were deducted in computing
Consolidated Net Income, plus (d) any expenses or charges related to any Equity
Offering, Permitted Investment or Indebtedness permitted to be incurred by this
Indenture (including such expenses or charges related to the Merger (including
the costs of (i) the cancellation of the stock options and (ii) the retirement
of the Existing Notes) and the Financings) and deducted in such period in
computing Consolidated Net Income, plus (e) the amount of any restructuring
charge deducted in such period in computing Consolidated Net Income, plus (f)
without duplication, any other non-cash charges reducing Consolidated Net Income
for such period (excluding any such charge which requires an accrual of a cash
reserve for anticipated cash charges for any future period), plus (g) the amount
of any minority interest expense deducted in calculating Consolidated Net
Income, less, without duplication, (h) non-cash items increasing Consolidated
Net Income of such Person for such period (excluding any items which represent
the reversal of any accrual of, or cash reserve for, anticipated cash charges in
any prior period).
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any public or private sale of common stock or
preferred stock of the Company (excluding Disqualified Stock), other than (i)
public offerings with respect to the Company's Common Stock registered on Form
S-8 and (ii) any such public or private sale that constitutes an Excluded
Contribution.
"Event of Default" has the meaning set forth in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
<PAGE>
8
"Excluded Contributions" means the net cash proceeds received by the
Company after the closing of the Merger from (a) contributions to its common
equity capital and (b) the sale (other than to a Subsidiary or to any Company or
Subsidiary management equity plan or stock option plan or any other management
or employee benefit plan or agreement) of Capital Stock (other than Disqualified
Stock) of the Company, in each case designated as Excluded Contributions
pursuant to an Officers' Certificate executed by the principal executive officer
and the principal financial officer of the Company on the date such capital
contributions are made or the date such Equity Interests are sold, as the case
may be, the cash proceeds of which are excluded from the calculation set forth
in paragraph (C) of Section 1009(a) hereof.
"Existing Indebtedness" means Indebtedness of the Company or its Restricted
Subsidiaries in existence on the Issuance Date, plus interest accruing thereon,
after application of the net proceeds of the sale of the Notes as described in
the Prospectus.
"Existing Notes" means the Existing Senior Notes and the Company's 12 3/4%
Senior Subordinated Notes due 2002.
"Existing Senior Notes" means the Company's 10.45% Senior Notes due 2001.
"Financings" means the financing transactions consummated on the Issuance
Date in conjunction with the Merger, and consists of (a) the consummation of the
Senior Credit Facility and (b) the issuance and sale of the Notes to the
Underwriters.
"Fixed Charge Coverage Ratio" means, with respect to any Person for any
period, the ratio of EBITDA of such Person for such period to the Fixed Charges
of such Person for such period. In the event that the Company or any of its
Restricted Subsidiaries incurs, assumes, guarantees or redeems any Indebtedness
(other than in the case of revolving credit borrowings, in which case interest
expense shall be computed based upon the average daily balance of such
Indebtedness during the applicable period) or issues or redeems preferred stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated but prior to the event for which the calculation of
the Fixed Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect to such
incurrence, assumption, guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same had occurred at the
beginning of the applicable four-quarter period. For purposes of making the
computation referred to above, Investments, acquisitions, dispositions, mergers,
consolidations and discontinued operations (as determined in accordance with
GAAP) that have been made by the Company or any of its Restricted Subsidiaries
during the four-quarter reference period or subsequent to such reference period
and on or prior to or simultaneously with the Calculation Date shall be
calculated on a pro forma basis assuming that all such Investments,
acquisitions, dispositions, discontinued operations, mergers and consolidations
(and the reduction of any associated fixed charge obligations and the change in
EBITDA resulting therefrom) had occurred on the first day of the four-quarter
reference period. If since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into the
Company or any Restricted Subsidiary since the beginning of such period) shall
have made any Investment, acquisition, disposition, discontinued operation,
merger or consolidation that would have required adjustment pursuant to this
definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro
forma effect
<PAGE>
9
thereto for such period as if such Investment, acquisition, disposition,
discontinued operation, merger or consolidation had occurred at the beginning of
the applicable four-quarter period. For purposes of this definition, whenever
pro forma effect is to be given to a transaction, the pro forma calculations
shall be made in good faith by a responsible financial or accounting officer of
the Company. If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest on such Indebtedness shall be calculated as
if the rate in effect on the Calculation Date had been the applicable rate for
the entire period (taking into account any Hedging Obligations applicable to
such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed
to accrue at an interest rate reasonably determined by a responsible financial
or accounting officer of the Company to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP. For purposes of making the
computation referred to above, interest on any Indebtedness under a revolving
credit facility computed on a pro forma basis shall be computed based upon the
average daily balance of such Indebtedness during the applicable period.
Interest on Indebtedness that may optionally be determined at an interest rate
based upon a factor of a prime or similar rate, a eurocurrency interbank offered
rate, or other rate, shall be deemed to have been based upon the rate actually
chosen, or, if none, then based upon such optional rate chosen as the Company
may designate.
"Fixed Charges" means, with respect to any Person for any period, the sum
of (a) Consolidated Interest Expense of such Person for such period and (b) all
cash dividend payments (excluding items eliminated in consolidation) on any
series of preferred stock of such Person.
"Foreign Subsidiary" means a Restricted Subsidiary not organized or
existing under the laws of the United States, any State thereof, the District of
Columbia or any territory thereof.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the Issuance Date. For the purposes of this
Indenture, the term "consolidated" with respect to any Person shall mean such
Person consolidated with its Restricted Subsidiaries, and shall not include any
Unrestricted Subsidiary.
"Government Securities" means securities that are (a) direct obligations of
the United States of America for the timely payment of which its full faith and
credit is pledged or (b) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America the
timely payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act), as custodian with respect to any such Government Securities
or a specific payment of principal of or interest on any such Government
Securities held by such custodian for the account of the holder of such
depository receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Securities or the specific payment of principal of or interest on
the Government Securities evidenced by such depository receipt.
<PAGE>
10
"guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness or other obligations.
"Guarantee" means any guarantee of the obligations of the Company under
this Indenture and the Notes by any Person in accordance with the provisions of
this Indenture. When used as a verb, "Guarantee" shall have a corresponding
meaning. No Guarantees will be issued in connection with the initial offering
and sale of the Notes.
"Guarantor" means any Person that incurs a Guarantee; provided that upon
the release and discharge of such Person from its Guarantee in accordance with
this Indenture, such Person shall cease to be a Guarantor. No Guarantees will be
issued in connection with the initial offering and sale of the Notes.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (i) currency exchange or interest rate swap agreements,
currency exchange or interest rate cap agreements and currency exchange or
interest rate collar agreements and (ii) other agreements or arrangements
designed to protect such Person against fluctuations in currency exchange or
interest rates.
"Holder" means the Person in whose name a Note is registered in the Note
Register.
"Indebtedness" means, with respect to any Person, (a) any indebtedness of
such Person, whether or not contingent (i) in respect of borrowed money, (ii)
evidenced by bonds, notes, debentures or similar instruments or letters of
credit or bankers' acceptances (or, without double counting, reimbursement
agreements in respect thereof), (iii) representing the balance deferred and
unpaid of the purchase price of any property (including Capitalized Lease
Obligations), except any such balance that constitutes a trade payable or
similar obligation to a trade creditor, in each case accrued in the ordinary
course of business or (iv) representing any Hedging Obligations, if and to the
extent of any of the foregoing Indebtedness (other than letters of credit and
Hedging Obligations) that would appear as a liability upon a balance sheet
(excluding the footnotes thereto) of such Person prepared in accordance with
GAAP, (b) to the extent not otherwise included, any obligation by such Person to
be liable for, or to pay, as obligor, guarantor or otherwise, on the
Indebtedness of another Person (other than by endorsement of negotiable
instruments for collection in the ordinary course of business) and (c) to the
extent not otherwise included, Indebtedness of another Person secured by a Lien
on any asset owned by such Person (whether or not such Indebtedness is assumed
by such Person); provided, however, that Contingent Obligations incurred in the
ordinary course of business shall be deemed not to constitute Indebtedness and
obligations under or in respect of Receivables Facilities shall not be deemed to
constitute Indebtedness of a Person.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.
<PAGE>
11
"Independent Financial Advisor" means an accounting, appraisal, investment
banking firm or consultant to Persons engaged in Similar Businesses of
nationally recognized standing that is, in the judgment of the Company's Board
of Directors, as evidenced by a Board Resolution, qualified to perform the task
for which it has been engaged.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Notes.
"Investment Grade Securities" means (i) securities issued or directly and
fully guaranteed or insured by the United States government or any agency or
instrumentality thereof (other than Cash Equivalents), (ii) debt securities or
debt instruments with a rating of BBB- or higher by S&P or Baa3 or higher by
Moody's or the equivalent of such rating by such rating organization, or, if no
rating of S&P or Moody's then exists, the equivalent of such rating by any other
nationally recognized securities rating agency, but excluding any debt
securities or instruments constituting loans or advances among the Company and
its Subsidiaries, and (iii) investments in any fund that invests exclusively in
investments of the type described in clauses (i) and (ii) which fund may also
hold immaterial amounts of cash pending investment and/or distribution.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the form of loans (including
guarantees), advances or capital contributions (excluding advances to customers,
commission, travel and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities issued by any other Person
and investments that are required by GAAP to be classified on the balance sheet
(excluding the footnotes thereto) of the Company in the same manner as the other
investments included in this definition to the extent such transactions involve
the transfer of cash or other property. For purposes of the definition of
"Unrestricted Subsidiary" and Section 1009 hereof, (i) "Investments" shall
include the portion (proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of a Subsidiary of the
Company at the time that such Subsidiary is designated an Unrestricted
Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Company shall be deemed to continue to have a
permanent "Investment" in an Unrestricted Subsidiary equal to an amount (if
positive) equal to (x) the Company's "Investment" in such Subsidiary at the time
of such redesignation less (y) the portion (proportionate to the Company's
equity interest in such Subsidiary) of the fair market value of the net assets
of such Subsidiary at the time of such redesignation; and (ii) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its fair
market value at the time of such transfer, in each case as determined in good
faith by the Board of Directors.
"Issuance Date" means the closing date for the sale and original issuance
of the Notes hereunder.
"KKR" means Kohlberg Kravis Roberts & Co. L.P.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed,
<PAGE>
12
recorded or otherwise perfected under applicable law (including any conditional
sale or other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and any filing
of or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction); provided that in no event
shall an operating lease be deemed to constitute a Lien.
"Management Group" means the group consisting of the Officers of the
Company.
"Maturity" means, with respect to any Note, the date on which any principal
of such Note becomes due and payable as therein or herein provided, whether at
the Stated Maturity by declaration of acceleration, call for redemption or
purchase or otherwise.
"Merger" means the merger between the Company and NXS Acquisition Corp.,
with the surviving corporation being the Company, pursuant to an agreement and
plan of merger dated as of January 23, 1997 (as amended as of April 9, 1997),
between the Company and NXS Acquisition Corp.
"Moody's" means Moody's Investors Service, Inc., and its successors.
"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends.
"Net Proceeds" means the aggregate cash proceeds received by the Company or
any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
Designated Noncash Consideration received in any Asset Sale), net of the direct
costs relating to such Asset Sale and the sale or disposition of such Designated
Noncash Consideration (including, without limitation, legal, accounting and
investment banking fees, and brokerage and sales commissions), and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements related thereto), amounts required
to be applied to the repayment of principal, premium (if any) and interest on
Indebtedness required (other than required by clause (i) of Section 1017(b)
hereof) to be paid as a result of such transaction and any deduction of
appropriate amounts to be provided by the Company as a reserve in accordance
with GAAP against any liabilities associated with the asset disposed of in such
transaction and retained by the Company after such sale or other disposition
thereof, including, without limitation, pension and other post-employment
benefit liabilities and liabilities related to environmental matters or against
any indemnification obligations associated with such transaction.
"Note Register" and "Note Registrar" have the respective meanings specified
in Section 305.
"Notes" has the meaning stated in the first recital of this Indenture and
more particularly means any Notes authenticated and delivered under this
Indenture.
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13
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements (including, without limitation, reimbursement
obligations with respect to letters of credit and banker's acceptances), damages
and other liabilities payable under the documentation governing any
Indebtedness.
"Officer" means the Chairman of the Board, the President, any Executive
Vice President, Senior Vice President or Vice President, the Treasurer or the
Secretary of the Company.
"Officers' Certificate" means a certificate signed on behalf of the Company
by two officers of the Company, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company that meets the requirements set forth in
Section 102.
"Opinion of Counsel" means a written opinion of counsel, which and who are
reasonably acceptable to, and addressed to, the Trustee complying with the
requirements of Section 102. Unless otherwise required by the TIA, such legal
counsel may be an employee of or counsel to the Company or the Trustee.
"Outstanding," when used with respect to Notes, means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(a) Notes theretofore cancelled by the Trustee or delivered to the Trustee
for cancellation;
(b) Notes, or portions thereof, for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Notes; provided that, if such Notes are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(c) Notes, except to the extent provided in Sections 1202 and 1203, with
respect to which the Company has effected defeasance and/or covenant
defeasance as provided in Article Twelve; and
(d) Notes in exchange for or in lieu of which other Notes (including
pursuant to Section 307) have been authenticated and delivered pursuant to
this Indenture, other than any such Notes in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such Notes are
held by a bona fide purchaser in whose hands the Notes are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Notes have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding
(provided,
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14
that in connection with any offer by the Company or any obligor to purchase the
Notes, Notes tendered for purchase will be deemed to be Outstanding and held by
the tendering Holder until the date of purchase), except that, in determining
whether the Trustee shall be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Notes which the Trustee actually knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or such other obligor.
"Pari Passu Indebtedness" means (a) with respect to the Notes, Indebtedness
which ranks pari passu in right of payment to the Notes and (b) with respect to
any Guarantee, Indebtedness which ranks pari passu in right of payment to such
Guarantee.
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of (and premium, if any)
or interest on any Notes on behalf of the Company.
"Permitted Holders" means KKR and any of its Affiliates and the Management
Group.
"Permitted Investments" means (a) any Investment in the Company or any
Restricted Subsidiary; (b) any Investment in cash and Cash Equivalents or
Investment Grade Securities; (c) any Investment by the Company or any Restricted
Subsidiary of the Company in a Person that is a Similar Business if as a result
of such Investment (i) such Person becomes a Restricted Subsidiary or (ii) such
Person, in one transaction or a series of related transactions, is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a Restricted
Subsidiary; (d) any Investment in securities or other assets not constituting
cash or Cash Equivalents and received in connection with an Asset Sale made
pursuant to the provisions of Section 1017 hereof or any other disposition of
assets not constituting an Asset Sale; (e) any Investment existing on the
Issuance Date; (f) advances to employees not in excess of $10.0 million
outstanding at any one time, in the aggregate; (g) any Investment acquired by
the Company or any of its Restricted Subsidiaries (i) in exchange for any other
Investment or accounts receivable held by the Company or any such Restricted
Subsidiary in connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the issuer of such other Investment or
accounts receivable or (ii) as a result of a foreclosure by the Company or any
of its Restricted Subsidiaries with respect to any secured Investment or other
transfer of title with respect to any secured Investment in default; (h) Hedging
Obligations permitted under Section 1010(b)(x) hereof; (i) loans and advances to
officers, directors and employees for business-related travel expenses, moving
expenses and other similar expenses, in each case incurred in the ordinary
course of business; (j) any Investment in a Similar Business (other than an
Investment in an Unrestricted Subsidiary) having an aggregate fair market value,
taken together with all other Investments made pursuant to this clause (j) that
are at that time outstanding, not to exceed the greater of (x) $100.0 million or
(y) 15% of Total Assets at the time of such Investment (with the fair market
value of each Investment being measured at the time made and without giving
effect to subsequent changes in value); (k) Investments the payment for which
consists of Equity Interests of the Company (exclusive of
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15
Disqualified Stock); provided, however, that such Equity Interests will not
increase the amount available for Restricted Payments under clause (C) of
Section 1009(a) hereof; (l) additional Investments having an aggregate fair
market value, taken together with all other Investments made pursuant to this
clause (l) that are at that time outstanding, not to exceed the greater of (x)
$35.0 million or (y) 5% of Total Assets at the time of such Investment (with the
fair market value of each Investment being measured at the time made and without
giving effect to subsequent changes in value); (m) any transaction to the extent
it constitutes an investment that is permitted by and made in accordance with
the provisions of Section 1012(b) hereof (except transactions described in
clauses (ii) and (vi) of such paragraph); (n) any Investment by Restricted
Subsidiaries in other Restricted Subsidiaries and Investments by Subsidiaries
that are not Restricted Subsidiaries in other Subsidiaries that are not
Restricted Subsidiaries; and (o) Investments relating to any special purpose
Wholly Owned Subsidiary of the Company organized in connection with a
Receivables Facility that, in the good faith determination of the Board of
Directors of the Company, are necessary or advisable to effect such Receivables
Facility.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof or any other entity.
"Physical Notes" means Notes issued in definitive, certificated form.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 307 in exchange for a mutilated
security or in lieu of a lost, destroyed or stolen Note shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Note.
"preferred stock" means any Equity Interest with preferential right of
payment of dividends or upon liquidation, dissolution, or winding up.
"Prospectus" means the prospectus dated May 13, 1997, relating to the
Notes.
"Receivables Facility" means one or more receivables financing facilities,
as amended from time to time, pursuant to which the Company and/or any of its
Restricted Subsidiaries sells its accounts receivable to a Person that is not a
Restricted Subsidiary.
"Receivables Fees" means distributions or payments made directly or by
means of discounts with respect to any participation interests issued or sold in
connection with, and other fees paid to a Person that is not a Restricted
Subsidiary in connection with, any Receivables Facility.
"Redemption Date," when used with respect to any Note to be redeemed, in
whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price," when used with respect to any Note to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
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16
"Regular Record Date" for the interest payable on any Interest Payment Date
means the May 1 or November 1 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date.
"Related Parties" means any Person controlled by a Permitted Holder,
including any partnership of which a Permitted Holder or its Affiliates is the
general partner.
"Representative" means (a) with respect to the Senior Credit Facility, the
Bank Agent and (b) with respect to any other Senior Indebtedness, the indenture
trustee or other trustee, agent or representative for the holders of such Senior
Indebtedness.
"Repurchase Offer" means an offer made by the Company to purchase all or
any portion of a Holder's Notes pursuant to the provisions described under
Sections 1016 or 1017 hereof.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above-designated officers, and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" means, at any time, any direct or indirect
Subsidiary of the Company that is not then an Unrestricted Subsidiary; provided,
however, that upon the occurrence of an Unrestricted Subsidiary ceasing to be an
Unrestricted Subsidiary, such Subsidiary shall be included in the definition of
"Restricted Subsidiary."
"S&P" means Standard and Poor's Ratings Group and its successors.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Senior Credit Facility" means that certain credit facility described in
the Prospectus among the Company and the lenders from time to time party
thereto, including any collateral documents, instruments and agreements executed
in connection therewith, and the term Senior Credit Facility shall also include
any amendments, supplements, modifications, extensions, renewals, restatements
or refundings thereof and any credit facilities that replace, refund or
refinance any part of the loans, other credit facilities or commitments
thereunder, including any such replacement, refunding or refinancing facility
that increases the amount borrowable thereunder or alters the maturity thereof,
provided, however, that there shall not be more than one facility at any one
time that constitutes the Senior Credit Facility and, if at any time there is
more than one facility which would constitute the Senior Credit Facility, the
Company will designate
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17
to the Trustee which one of such facilities will be the Senior Credit Facility
for purposes of this Indenture.
"Senior Indebtedness" means (i) the Obligations under the Senior Credit
Facility and (ii) any other Indebtedness permitted to be incurred by the Company
under the terms of this Indenture, unless the instrument under which such
Indebtedness is incurred expressly provides that it is on a parity with or
subordinated in right of payment to the Notes, including, with respect to (i)
and (ii), interest accruing subsequent to the filing of, or which would have
accrued but for the filing of, a petition for bankruptcy, whether or not such
interest is an allowable claim in such bankruptcy proceeding. Notwithstanding
anything to the contrary in the foregoing, Senior Indebtedness will not include
(1) any liability for federal, state, local or other taxes owed or owing by the
Company, (2) any obligation of the Company to any of its Subsidiaries, (3) any
accounts payable or trade liabilities arising in the ordinary course of business
(including instruments evidencing such liabilities) other than obligations in
respect of bankers' acceptances and letters of credit under the Senior Credit
Facility, (4) any Indebtedness that is incurred in violation of this Indenture,
(5) Indebtedness which, when incurred and without respect to any election under
Section 1111 (b) of Title 11, United States Code, is without recourse to the
Company, (6) any Indebtedness, guarantee or obligation of the Company which is
subordinate or junior to any other Indebtedness, guarantee or obligation of the
Company, (7) Indebtedness evidenced by the Notes and (8) Capital Stock of the
Company.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date
hereof.
"Similar Business" means a business, the majority of whose revenues are
derived from the design, manufacture and/or marketing of electrical, electronic
and fiber optic connectors, coaxial and flat-ribbon cable, and interconnect
systems, or whose revenues are derived from the licensing of the Amphenol name,
or any business or activity that is reasonably similar thereto or a reasonable
extension, development or expansion thereof or ancillary thereto.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 308.
"Stated Maturity" when used with respect to any Note or any installment of
interest thereon, means the date specified in such Note as the fixed date on
which the principal of such Note or such installment of interest is due and
payable, and, when used with respect to any other Indebtedness, means the date
specified in the instrument governing such Indebtedness as the fixed date on
which the principal of such Indebtedness, or any installment of interest
thereon, is due and payable.
"Subordinated Indebtedness" means (a) with respect to the Notes, any
Indebtedness of the Company which is by its terms subordinated in right of
payment to the Notes and (b) with respect to any Guarantee, any Indebtedness of
the applicable Guarantor which is by its terms subordinated in right of payment
to such Guarantee.
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18
"Subordinated Note Obligations" means any principal of, premium, if any,
and interest on the Notes payable pursuant to the terms of the Notes or upon
acceleration, together with and including any amounts received upon the exercise
of rights of rescission or other rights of action (including claims for damages)
or otherwise, to the extent relating to the purchase price of the Notes or
amounts corresponding to such principal, premium, if any, or interest on the
Notes.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association, or other business entity (other than a partnership) of which more
than 50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time of determination owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person or a combination thereof and (ii) any partnership,
joint venture, limited liability company or similar entity of which (x) more
than 50% of the capital accounts, distribution rights, total equity and voting
interests or general or limited partnership interests, as applicable, are owned
or controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person or a combination thereof whether in the form
of membership, general, special or limited partnership or otherwise and (y) such
Person or any Wholly Owned Restricted Subsidiary of such Person is a controlling
general partner or otherwise controls such entity.
"Total Assets" means the total consolidated assets of the Company and its
Restricted Subsidiaries, as shown on the most recent balance sheet (excluding
the footnotes thereto) of the Company.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in
force on the date as of which this Indenture was executed, except as provided in
Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company which at
the time of determination is an Unrestricted Subsidiary (as designated by the
Board of Directors of the Company, as provided below) and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors of the Company may designate
any Subsidiary of the Company (including any existing Subsidiary and any newly
acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless
such Subsidiary or any of its Subsidiaries owns any Equity Interests of, or
owns, or holds any Lien on, any property of, the Company or any Subsidiary of
the Company (other than any Subsidiary of the Subsidiary to be so designated),
provided that (a) any Unrestricted Subsidiary must be an entity of which shares
of the capital stock or other equity interests (including partnership interests)
entitled to cast at least a majority of the votes that may be cast by all shares
or equity interests having ordinary voting power for the election of directors
or other governing body are owned, directly or indirectly, by the Company, (b)
the Company certifies that such designation complies with Section 1009 hereof
and (c) each of (1) the Subsidiary to be so designated and (2) its Subsidiaries
has not at the time of designation, and does not thereafter, create, incur,
issue, assume, guarantee or otherwise become directly or
<PAGE>
19
indirectly liable with respect to any Indebtedness pursuant to which the lender
has recourse to any of the assets of the Company or any of its Restricted
Subsidiaries. The Board of Directors may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided that, immediately after giving effect to
such designation, (i) the Company could incur at least $1.00 of additional
Indebtedness under the provisions of Section 1010(a) hereof or (ii) the Fixed
Charge Coverage Ratio for the Company and its Restricted Subsidiaries would be
greater than such ratio for the Company and its Restricted Subsidiaries
immediately prior to such designation, in each case on a pro forma basis taking
into account such designation. Any such designation by the Board of Directors
shall be notified by the Company to the Trustee by promptly filing with the
Trustee a copy of the board resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing provisions.
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Voting Stock" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
or Disqualified Stock, as the case may be, at any date, the quotient obtained by
dividing (i) the sum of the products of the number of years from the date of
determination to the date of each successive scheduled principal payment of such
Indebtedness or redemption or similar payment with respect to such Disqualified
Stock multiplied by the amount of such payment, by (ii) the sum of all such
payments.
"Wholly Owned Restricted Subsidiary" is any Wholly Owned Subsidiary that is
a Restricted Subsidiary.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
100% of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person and one or
more Wholly Owned Subsidiaries of such Person.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company and any Guarantor (if
applicable) and any other obligor on the Notes (if applicable) shall furnish to
the Trustee an Officers' Certificate in form and substance reasonably acceptable
to the Trustee stating that all conditions precedent, if any, provided for in
this Indenture (including any covenant compliance with which constitutes a
condition precedent) relating to the proposed action have been complied with and
an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of an Officers'
Certificate and an Opinion of Counsel is specifically required by any
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20
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (including certificates provided
pursuant to Section 1018(a)) shall include:
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual or such firm,
he or it has made such examination or investigation as is necessary to enable
him or it to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer of the Company, any Guarantor or
other obligor on the Notes may be based, insofar as it relates to legal matters,
upon a certificate or opinion of, or representations by, counsel, unless such
Officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an Officer or Officers of
the Company, any Guarantor or other obligor on the Notes stating that the
information with respect to such factual matters is in the possession of the
Company, any Guarantor or other obligor on the Notes unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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21
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agents duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section 104.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of authority.
The fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any other
manner that the Trustee deems sufficient.
(c) The principal amount and serial numbers of Notes held by any Person,
and the date of holding the same, shall be proved by the Note Register.
(d) If the Company shall solicit from the Holders of Notes any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. Notwithstanding TIA Section 316(c),
such record date shall be the record date specified in or pursuant to such Board
Resolution, which shall be a date not earlier than the date 30 days prior to the
first solicitation of Holders generally in connection therewith and not later
than the date such solicitation is completed. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only the Holders of
record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Notes have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other Act,
and for that purpose the Outstanding Notes shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Note shall bind every future Holder of the
same Note and the Holder of every Note issued upon the registration of transfer
thereof or in exchange therefor or
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22
in lieu thereof (including in accordance with Section 307) in respect of
anything done, omitted or suffered to be done by the Trustee, any Paying Agent
or the Company or any Guarantor in reliance thereon, whether or not notation of
such action is made upon such Note.
SECTION 105. Notices, Etc., to Trustee, the Company and any Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or any Guarantor or any
other obligor on the Notes shall be sufficient for every purpose hereunder if
made, given, furnished or delivered in writing and mailed, first-class postage
prepaid, or delivered by recognized overnight courier, to or with the Trustee
and received at its Corporate Trust Office, Attention: Corporate Trust
Department, or
(2) the Company or any Guarantor by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or delivered, in writing, or mailed,
first-class postage prepaid, or delivered by recognized overnight courier, to
the Company or such Guarantor addressed to it at the address of its principal
office specified in the first paragraph of this Indenture, or at any other
address previously furnished in writing to the Trustee by the Company or such
Guarantor.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Note Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it shall be impracticable to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice for every purpose hereunder.
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SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied, shall give
to any Person, (other than the parties hereto, any Agent and their successors
hereunder and each of the Holders and, with respect to any provisions hereof
relating to the subordination of the Notes or the rights of holders of Senior
Indebtedness, the holders of Senior Indebtedness) any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY THE LAW OF THE STATE OF
NEW YORK EXCLUDING (TO THE GREATEST EXTENT PERMISSIBLE BY LAW) ANY RULE OF LAW
THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF NEW YORK.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, any date established for
payment of Defaulted Interest pursuant to Section 308 or Redemption Date or
Stated Maturity or Maturity of any Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Notes) payment
of principal (or premium, if any) or interest need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect
as if made on the Interest Payment Date or date established for payment of
Defaulted Interest pursuant to Section 308, Redemption Date, or at the Stated
Maturity or Maturity; provided that no interest shall accrue for the period from
and after such Interest Payment Date, Redemption Date or date established for
payment of Defaulted Interest pursuant to Section 308, Stated Maturity or
Maturity, as the case may be, to the next succeeding Business Day.
<PAGE>
24
SECTION 113. No Personal Liability of Directors, Officers, Employees,
Stockholders or Incorporators.
No director, officer, employee, incorporator or stockholder, as such, of
the Company or any Guarantor shall have any liability for any obligations of the
Company or such Guarantor under the Notes, this Indenture or any Guarantee or
for any claim based on, in respect of, or by reason of, such obligations or
their creations. Each Holder by accepting a Note waives and releases all such
liability. Such waiver and release are part of the consideration for the
issuance of the Notes.
SECTION 114. Counterparts.
This Indenture may be executed in any number of counterparts, each of which
shall be original; but such counterparts shall together constitute but one and
the same instrument.
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally.
The Notes shall be known as the "9 7/8% Senior Subordinated Notes due 2007"
of the Company. The Notes and the Trustee's certificate of authentication shall
be in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Note. Each Note shall be dated the date of its
authentication.
The definitive Notes shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as determined
by the officers of the Company executing such Notes, as evidenced by their
execution of such Notes.
Notes will be issued on the Issuance Date in the form of one or more
permanent global Notes substantially in the form set forth in Sections 203 and
204 (the "Global Note") deposited with the Trustee, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The Global Note may be represented by more than one
certificate, if so required by the Depositary's rules regarding the maximum
principal amount to be represented by a single certificate.
SECTION 202. Legend.
The Global Note shall bear the following legend on the face thereof:
<PAGE>
25
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER REPRESENTATIVE OF DTC
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 306 OF THE INDENTURE.
<PAGE>
26
SECTION 203. Form of Face of Note.
AMPHENOL CORPORATION
9 7/8% Senior Subordinated Note due 2007
CUSIP No. 032094AD6
No. __________ $
AMPHENOL CORPORATION, a Delaware corporation (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of $_____________ U.S. dollars on May 15,
2007, at the office or agency of the Company referred to below, and to pay
interest thereon on November 15, 1997 and semi-annually thereafter, on May 15
and November 15 in each year, from May 19, 1997, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for, at
the rate of 9 7/8% per annum, until the principal hereof is paid or duly
provided for, and (to the extent lawful) to pay on demand interest on any
overdue interest at the rate borne by the Notes from the date on which such
overdue interest becomes payable to the date payment of such interest has been
made or duly provided for. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Note (or one or more Predecessor Notes)
is registered at the close of business on the Regular Record Date for such
interest, which shall be the May 1 or November 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date, and such defaulted interest,
and (to the extent lawful) interest on such defaulted interest at the rate borne
by the Notes, may be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Notes not less than 10 days prior to
such Special Record Date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
Principal of, premium, if any, and interest on the Notes will be payable at
the office or agency of the Company maintained for such purpose within the City
and State of New York or at such other office or agency of the Company as may be
maintained for such purpose, or at the option of the Company, payment of
interest may be made by check mailed to the Holders of the Notes at their
respective addresses set forth in the register of Holders of Notes or by wire
transfer to an account maintained by the payee located in the United States;
provided that all payments of principal, premium, interest with respect to Notes
represented by one or more permanent global Notes registered in the name of or
held by The Depository Trust Company or its nominee will be made by wire
transfer of immediately available funds to the accounts specified by the Holders
thereof. Until otherwise designated by the Company, the Company's office or
agency in New York will be the office of the Trustee maintained for such
purpose.
<PAGE>
27
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed by
the Trustee or the Authenticating Agent referred to on the reverse hereof by
manual signature, this Note shall not be entitled to any benefit under the
Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
AMPHENOL CORPORATION
By
-----------------------------------
Name:
Title:
Attest: [SEAL]
- -----------------------------------
Authorized Officer
<PAGE>
28
SECTION 204. Form of Reverse of Note.
This Note is one of a duly authorized issue of securities of the Company
designated as its 9 7/8% Senior Subordinated Notes due 2007 (the "Notes"),
limited (except as otherwise provided in the Indenture referred to below) in
aggregate principal amount of $240,000,000, which may be issued under an
indenture (the "Indenture") dated as of May 15, 1997 between the Company and IBJ
Schroder Bank & Trust Company, as trustee (the "Trustee", which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the Trustee and the Holders of the Notes, and of the
terms upon which the Notes are, and are to be, authenticated and delivered.
The indebtedness evidenced by the Notes is, to the extent and in the manner
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness as defined in the Indenture,
and this Note is issued subject to such provisions. Each Holder of this Note, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in the
Indenture and (c) appoints the Trustee his attorney-in-fact for such purpose.
On or before each payment date, the Company shall deliver or cause to be
delivered to the Trustee or the Paying Agent an amount in dollars sufficient to
pay the amount due on such payment date.
Except as described below, the Notes will not be redeemable at the
Company's option prior to May 15, 2002. From and after May 15, 2002, the Notes
will be subject to redemption at any time at the option of the Company, in whole
or in part, upon not less than 30 nor more than 60 days' notice, at the
Redemption Prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest thereon, if any, to the applicable
redemption date, if redeemed during the twelve-month period beginning on May 15
of each of the years indicated below:
Redemption
Year Price
---- -----
2002 .................................................... 104.938%
2003 .................................................... 103.292%
2004 .................................................... 101.646%
2005 and thereafter ..................................... 100.000%
In addition, at any time or from time to time, on or prior to May 15, 2000,
the Company may, at its option, redeem up to 40% of the aggregate principal
amount of Notes originally issued under the Indenture on the Issuance Date at a
Redemption Price equal to 109.875% of the aggregate principal amount thereof,
plus accrued and unpaid interest thereon, if any, to the Redemption Date, with
the net cash proceeds of one or more Equity Offerings; provided that at least
60% of the aggregate principal amount of Notes originally issued under the
<PAGE>
29
Indenture on the Issuance Date remains outstanding immediately after the
occurrence of such redemption; provided further that such redemption shall occur
within 60 days of the date of the closing of any such Equity Offering.
If less than all the Notes are to be redeemed pursuant to the preceding two
paragraphs, the Trustee shall select the Notes or portions thereof to be
redeemed in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes being redeemed are listed, or if
the Notes are not so listed, on a pro rata basis, by lot or by such other method
the Trustee shall deem fair and appropriate (and in such manner as complies with
applicable legal requirements); provided that no such Notes of less than $1,000
shall be redeemed in part.
In the case of any redemption of Notes, interest installments whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders of
such Notes, or one or more Predecessor Notes, of record at the close of business
on the relevant Regular Record Date or Special Record Date, as the case may be,
referred to on the face hereof. Notes (or portions thereof) for whose redemption
and payment provision is made in accordance with the Indenture shall cease to
bear interest from and after the Redemption Date.
In the event of redemption or repurchase of this Note in part only, a new
Note or Notes for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the cancellation hereof.
Upon the occurrence of a Change of Control, the Company will be required to
make an offer to purchase all or any part (equal to $1,000 in principal amount
or an integral multiple thereof) of Notes at a price in cash equal to 101% of
the aggregate principal amount of the Notes thereof, plus accrued and unpaid
interest thereon, if any, to the date of purchase, in accordance with the
Indenture. Holders of Notes that are subject to an offer to purchase will
receive a Change of Control Offer from the Company prior to any related Change
of Control Payment Date.
Under certain circumstances, in the event the Net Proceeds received by the
Company from an Asset Sale, which proceeds are not used (i) to permanently
reduce Obligations under the Senior Credit Facility (and to correspondingly
reduce commitments with respect thereto) or other Senior Indebtedness or Pari
Passu Indebtedness (provided that if the Company shall so reduce Obligations
under Pari Passu Indebtedness, it will equally and ratably reduce Obligations
under the Notes if the Notes are then prepayable or, if the Notes may not be
then prepaid, the Company shall make an offer (in accordance with the procedures
set forth below for an Asset Sale Offer) to all Holders to purchase at 100% of
the principal amount thereof the amount of Notes that would otherwise be
prepaid), (ii) to make an investment in any one or more businesses, capital
expenditures or acquisitions of other assets in each case, used or useful in a
Similar Business and/or (iii) to make an investment in properties or assets that
replace the properties and assets that are the subject of such Asset Sale, equal
or exceed a specified amount, the Company will be required to make an offer to
all Holders to purchase the maximum principal amount of Notes, in an integral
multiple of $1,000, that may be purchased out of such amount at a purchase price
in cash equal to 100% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of purchase, in accordance with the Indenture.
Holders of
<PAGE>
30
Notes that are subject to any offer to purchase will receive an Asset Sale Offer
from the Company prior to any related Asset Sale Purchase Date.
In the case of any redemption or repurchase of Notes, interest installments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Notes, or one or more Predecessor Notes, of record at the
close of business on the relevant Regular Record Date or Special Record Date, as
the case may be, referred to on the face hereof. Notes (or portions thereof) for
whose redemption and payment provision is made in accordance with the Indenture
shall cease to bear interest from and after the Redemption Date.
If an Event of Default shall occur and be continuing, the principal of all
the Notes may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Note and (b) certain restrictive
covenants and the related Defaults and Events of Default, upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Note.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture and the Notes and the
Guarantees, if any, at any time by the Company and the Trustee with the consent
of the Holders of a specified percentage in aggregate principal amount of the
Notes at the time Outstanding. Additionally, the Indenture permits that, without
notice to or consent of any Holder, the Company, any Guarantor and the Trustee
together may amend or supplement the Indenture, any Guarantee or this Note (i)
to cure any ambiguity, defect or inconsistency, (ii) to provide for
uncertificated Notes in addition to or in place of certificated Notes, (iii) to
comply with Article Eight of the Indenture, (iv) to provide for the assumption
of the Company's or any Guarantor's obligations to Holders of such Notes, (v) to
make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights under
the Indenture of any such Holder, (vi) to add covenants for the benefit of the
Holders or to surrender any right or power conferred upon the Company, (vii) to
comply with the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act, (viii) to
evidence and provide for the acceptance of appointment under this Indenture by a
successor Trustee pursuant to the requirements of Section 610, or (ix) to add a
Guarantor under the Indenture. The Indenture also contains provisions permitting
the Holders of specified percentages in aggregate principal amount of the Notes
at the time Outstanding, on behalf of the Holders of all the Notes, to waive
compliance by the Company with certain provisions of the Indenture the Notes and
the Guarantees, if any, and certain past Defaults under the Indenture and the
Notes and the Guarantees, if any, and their consequences. Any such consent or
waiver by or on behalf of the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, any Guarantor
or any other obligor
<PAGE>
31
on the Notes (in the event such Guarantor or other obligor is obligated to make
payments in respect of the Notes), which is absolute and unconditional, to pay
the principal of (and premium, if any) and interest on this Note at the times,
place, and rate, and in the coin or currency, herein prescribed, subject to the
subordination provisions of the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registerable on the Note Register of the
Company, upon surrender of this Note for registration of transfer at the office
or agency of the Company maintained for such purpose in The City of New York,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or
exchange or redemption of Notes, but the Company may require payment of a sum
sufficient to pay all documentary, stamp or similar issue or transfer taxes or
other governmental charges payable in connection therewith.
Prior to the time of due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee nor any agent shall be affected by notice to the contrary.
<PAGE>
32
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY THE LAW OF THE STATE OF
NEW YORK EXCLUDING (TO THE GREATEST EXTENT PERMISSIBLE BY LAW) ANY RULE OF LAW
THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF NEW YORK.
Interest on this Note shall be computed on the basis of a 360-day year of
twelve 30-day months.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
please print or typewrite name and address including zip code of assignee
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
attorney to transfer said Note on the books of the Company with full power of
substitution in the premises.
<PAGE>
33
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to Section
1016 or 1017 of the Indenture, check the applicable Box below:
[ ] Section 1016 [ ] Section 1017
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 1016 or 1017 of the Indenture, state the amount (in original
principal amount) below:
$___________________.
Date:
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
SECTION 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Notes referred to in the within-mentioned Indenture.
________________________________,
as Trustee
By
-----------------------------------
Authorized Signatory
Dated:
--------------------
<PAGE>
34
ARTICLE THREE
THE NOTES
SECTION 301. Title and Terms.
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is limited to $240,000,000, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 304, 305, 306, 307, 906,
1015, 1017 or 1108.
The Notes shall be known and designated as the "9 7/8% Senior Subordinated
Notes due 2007" of the Company. The Stated Maturity of the Notes shall be May
15, 2007, and they shall bear interest at the rate of 9 7/8% per annum from May
19, 1997, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, payable on November 15, 1997 and semi-annually
thereafter on May 15 and November 15 in each year, until the principal thereof
is paid in full and to the Person in whose name the Note (or any predecessor
Note) is registered at the close of business on the May 1 or November 1 next
preceding such interest payment date. Interest will be computed on the basis of
a 360-day year comprised of twelve 30-day months, until the principal thereof is
paid or duly provided for. Interest on any overdue principal, interest (to the
extent lawful) or premium, if any, shall be payable on demand.
Principal of, premium, if any, and interest on the Notes will be payable at
the office or agency of the Company maintained for such purpose within the City
and State of New York or at such other office or agency of the Company as may be
maintained for such purposes, or at the option of the Company, payment of
interest may be made by check mailed to the Holders of the Notes at their
respective addresses set forth in the register of Holders of Notes or by wire
transfer to an account maintained by the payee located in the United States;
provided that all payments of principal, premium, interest with respect to Notes
represented by one or more permanent global Notes registered in the name of or
held by The Depository Trust Company or its nominee will be made by wire
transfer of immediately available funds to the accounts specified by the Holders
thereof. Until otherwise designated by the Company, the Company's office or
agency in New York will be the office of the Trustee maintained for such
purpose.
Holders shall have the right to require the Company to purchase their
Notes, in whole or in part, in the event of a Change of Control pursuant to
Section 1016.
The Notes shall be subject to repurchase by the Company pursuant to an
Asset Sale Offer as provided in Section 1017.
The Notes shall be redeemable as provided in Article Eleven and in the
Notes.
The Indebtedness evidenced by the Notes shall be subordinated in right of
payment to Senior Indebtedness as provided in Article Thirteen.
<PAGE>
35
SECTION 302. Denominations.
The Notes shall be issuable only in registered form without coupons and
only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its Chief Executive
Officer or a Vice President, under its corporate seal reproduced thereon and
attested by its Corporate Secretary or an Assistant Secretary. The signature of
any of these officers on the Notes may be manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or otherwise
reproduced on the Notes.
Notes bearing the manual or facsimile signatures of individuals who were at
any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Notes executed by the Company to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of such Notes, directing the Trustee to authenticate the Notes and
certifying that all conditions precedent to the issuance of Notes contained
herein have been fully complied with, and the Trustee in accordance with such
Company Order shall authenticate and deliver such Notes. The Trustee shall be
entitled to receive an Officers' Certificate and an Opinion of Counsel of the
Company that it may reasonably request in connection with such authentication of
Notes. Such order shall specify the amount of Notes to be authenticated and the
date on which the original issue of Notes is to be authenticated.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such Note a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Note shall be conclusive evidence, and the only evidence, that such
Note has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
In case the Company or any Guarantor, pursuant to Article Eight, shall be
consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of its properties and assets substantially as an
entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company or such
Guarantor shall have been merged, or the Person which shall have received a
conveyance, transfer, lease or other disposition as aforesaid, shall have
executed an indenture supplemental hereto with the Trustee pursuant to Article
Eight, any of the Notes authenticated or delivered prior to such consolidation,
merger, conveyance, transfer, lease or other disposition may, from time to time,
at the request of the successor Person, be exchanged for other Notes executed in
<PAGE>
36
the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the Notes
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Request of the successor Person, shall authenticate and deliver
Notes as specified in such request for the purpose of such exchange. If Notes
shall at any time be authenticated and delivered in any new name of a successor
Person pursuant to this Section 303 in exchange or substitution for or upon
registration of transfer of any Notes, such successor Person, at the option of
the Holders but without expense to them, shall provide for the exchange of all
Notes at the time Outstanding for Notes authenticated and delivered in such new
name.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes on behalf of the Trustee. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as any Note Registrar or Paying Agent to deal with the Company and
its Affiliates.
SECTION 304. Temporary Notes.
Pending the preparation of definitive Notes, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Notes
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Notes in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Notes may determine, as conclusively evidenced by their execution
of such Notes.
If temporary Notes are issued, the Company will cause definitive Notes to
be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes upon
surrender of the temporary Notes at the office or agency of the Company
designated for such purpose pursuant to Section 1002, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
referred to as the "Note Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Notes and of transfers of Notes. The Note Register shall be in written form
or any other form capable of being converted into written form within a
reasonable time. At all reasonable times, the Note Register shall be open to
inspection by the Trustee. The Trustee is hereby initially appointed as security
registrar (the Trustee in such capacity, together with any
<PAGE>
37
successor of the Trustee in such capacity, the "Note Registrar") for the purpose
of registering Notes and transfers of Notes as herein provided.
Upon surrender for registration of transfer of any Note at the office or
agency of the Company designated pursuant to Section 1002, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any authorized
denomination or denominations of a like aggregate principal amount.
Furthermore, any Holder of a Global Note shall, by acceptance of such
Global Note, agree that transfers of beneficial interest in such Global Note may
be effected only through a book-entry system maintained by the Holder of such
Global Note (or its agent), and that ownership of a beneficial interest in the
Note shall be required to be reflected in a book entry.
At the option of the Holder, Notes may be exchanged for other Notes of any
authorized denomination and of a like aggregate principal amount, upon surrender
of the Notes to be exchanged at such office or agency. Whenever any Notes are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Notes which the Holder making the exchange is
entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Note Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Note Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange or redemption of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 304, 906, 1016, 1017 or 1108, not involving any
transfer.
SECTION 306. Book-Entry Provisions for the Global Note.
(a) The Global Note initially shall (i) be registered in the name of the
Depositary for such Global Note or the nominee of such Depositary, (ii) be
delivered to the Trustee as custodian for such Depositary and (iii) bear the
legend as set forth in Section 202.
Members of, or participants in, the Depositary ("Agent Members") shall have
no rights under this Indenture with respect to the Global Note held on their
behalf by the Depositary, or the Trustee as its custodian, or under the Global
Note, and the Depositary may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of such Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving
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effect to any written certification, proxy or other authorization furnished by
the Depositary or shall impair, as between the Depositary and its Agent Members,
the operation of customary practices governing the exercise of the rights of a
Holder of any Note.
(b) Transfers of the Global Note shall be limited to transfers of such
Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in the Global Note may
be transferred in accordance with the rules and procedures of the Depositary. If
required to do so pursuant to any applicable law or regulation, beneficial
owners may obtain Physical Notes in exchange for their beneficial interests in
the Global Note upon written request in accordance with the Depositary's and the
Registrar's procedures. In addition, Physical Notes shall be transferred to all
beneficial owners in exchange for their beneficial interests in the Global Note
if (i) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Note or the Depositary ceases to be a
clearing agency registered under the Exchange Act, at a time when the Depositary
is required to be so registered in order to act as Depositary, and in each case
a successor depositary is not appointed by the Company within 90 days of such
notice or (ii) the Company executes and delivers to the Trustee and Note
Registrar an Officers' Certificate stating that such Global Note shall be so
exchangeable or (iii) an Event of Default has occurred and is continuing and the
Note Registrar has received a request from the Depositary.
(c) In connection with any transfer of a portion of the beneficial interest
in the Global Note pursuant to subsection (b) of this Section to beneficial
owners who are required to hold Physical Notes, the Note Registrar shall reflect
on its books and records the date and a decrease in the principal amount of such
Global Note in an amount equal to the principal amount of the beneficial
interest in the Global Note to be transferred, and the Company shall execute,
and the Trustee shall authenticate and deliver, one or more Physical Notes of
like tenor and amount.
(d) In connection with the transfer of the entire Global Note to beneficial
owners pursuant to subsection (b) of this Section, such Global Note shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depositary in exchange for its beneficial interest in
such Global Note, an equal aggregate principal amount of Physical Notes of
authorized denominations.
(e) The registered holder of the Global Note may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
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39
SECTION 307. Mutilated, Destroyed, Lost and Stolen Notes.
If (i) any mutilated Note is surrendered to the Trustee, or (ii) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, and there is delivered to the Company,
any Guarantor and the Trustee such security or indemnity, in each case, as may
be required by them to save each of them harmless, then, in the absence of
notice to the Company any Guarantor or the Trustee that such Note has been
acquired by a bona fide purchaser, the Company shall execute and upon Company
Order the Trustee shall authenticate and deliver, in exchange for any such
mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new Note
of like tenor and principal amount, bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) in connection therewith.
Every new Note issued pursuant to this Section in lieu of any mutilated,
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, any Guarantor and any other obligor upon
the Notes, whether or not the mutilated, destroyed, lost or stolen Note shall be
at any time enforceable by anyone, and shall be entitled to all benefits of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 308. Payment of Interest; Interest Rights Preserved.
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name such Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest at the office or agency of
the Company maintained for such purpose pursuant to Section 1002; provided,
however, that each installment of interest may at the Company's option be paid
by (i) mailing a check for such interest, payable to or upon the written order
of the Person entitled thereto pursuant to Section 309, to the address of such
Person as it appears in the Note Register or (ii) wire transfer to an account
located in the United States maintained by the payee.
Any interest on any Note which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder on the Regular Record Date by virtue of having been such
Holder, and such defaulted interest and (to the extent lawful) interest on such
defaulted interest at the rate borne by the Notes (such
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40
defaulted interest and interest thereon herein collectively called "Defaulted
Interest") shall be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Notes (or their respective Predecessor Notes) are
registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Note and the date (not less than 30 days
after such notice) of the proposed payment (the "Special Record Date"), and at
the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the Special Record Date and
not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date, and in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be given in the manner provided for in Section
106, not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so given, such Defaulted Interest shall be paid to the
Persons in whose names the Notes (or their respective Predecessor Notes) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note delivered
under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Note shall carry the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Note.
SECTION 309. Persons Deemed Owners.
Prior to the due presentment of a Note for registration of transfer, the
Company, the Trustee and any agent of the Company, any Guarantor or the Trustee
may treat the Person in whose name such Note is registered as the owner of such
Note for the purpose of receiving payment of principal of (and premium, if any)
and (subject to Sections 305 and 308) interest on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and none of the
Company, any Guarantor, the Trustee nor any agent of the Company, any Guarantor
or the Trustee shall be affected by notice to the contrary.
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41
SECTION 310. Cancellation.
All Notes surrendered for payment, redemption, registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. If the Company
shall acquire any of the Notes other than as set forth in the preceding
sentence, the acquisition shall not operate as a redemption or satisfaction of
the Indebtedness represented by such Notes unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 310. No
Notes shall be authenticated in lieu of or in exchange for any Notes cancelled
as provided in this Section, except as expressly permitted by this Indenture.
All cancelled Notes held by the Trustee shall be disposed of by the Trustee in
accordance with its customary procedures unless by Company Order the Company
shall direct that cancelled Notes be returned to it.
SECTION 311. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 312. CUSIP Numbers.
The Company in issuing Notes may use "CUSIP" numbers (if then generally in
use) in addition to serial numbers; if so, the Trustee shall use such CUSIP
numbers in addition to serial numbers in notices of redemption and repurchase as
a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such CUSIP numbers either as
printed on the Notes or as contained in any notice of a redemption or repurchase
and that reliance may be placed only on the serial or other identification
numbers printed on the Notes, and any such redemption or repurchase shall not be
affected by any defect in or omission of such CUSIP numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to surviving rights of registration of transfer or exchange of Notes
expressly provided for herein or pursuant hereto) and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture when
(1) either
(a) all such Notes theretofore authenticated and delivered (except (i)
lost, stolen or destroyed Notes which have been replaced or paid as
provided in Section 307 and (ii) Notes for whose payment money has
theretofore been
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42
deposited in trust and thereafter repaid to the Company) have been
delivered to the Trustee for cancellation; or
(b) all such Notes not theretofore delivered to such Trustee for
cancellation
(i) have become due and payable by reason of the making of a
notice of redemption or otherwise;
(ii) will become due and payable at their Stated Maturity within
one year; or
(iii) are called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company or any Guarantor, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust solely for the benefit of the Holders, cash in U.S.
dollars, non-callable Government Securities, or a combination thereof, in
such amounts as will be sufficient without consideration of any
reinvestment of interest, to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the Trustee for cancellation, for
principal, premium, if any and accrued interest to the date of the Stated
Maturity or Redemption Date, as the case may be;
(2) no Default or Event of Default with respect to this Indenture or the
Notes shall have occurred and be continuing on the date of such deposit or
shall occur as a result of such deposit and such deposit will not result in a
breach or violation of, or constitute a default under, any other instrument to
which the Company or any Guarantor is a party or by which the Company or any
Guarantor is bound;
(3) the Company or any Guarantor has paid or caused to be paid all sums
payable hereunder by the Company or any Guarantor;
(4) the Company has delivered irrevocable instructions to the Trustee to
apply the deposited money toward the payment of such Notes at maturity or the
Redemption Date, as the case may be; and
(5) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (1) of
this Section, the provisions of Section 402 and the last paragraph of Section
1003 shall survive.
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SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
If the Trustee or Paying Agent is unable to apply any money or Government
Securities in accordance with Section 401 by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
and any Guarantor's obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section
401; provided that if the Company has made any payment of principal of, premium,
if any, or interest on any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or Government Securities held
by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article Thirteen or be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body):
(i) default in payment when due and payable, upon redemption, acceleration
or otherwise, of principal or premium, if any, on the Notes whether or not
such payment shall be prohibited by Article Thirteen;
(ii) default for 30 days or more in the payment when due of interest on or
with respect to the Notes whether or not such payment shall be prohibited by
Article Thirteen;
(iii) failure by the Company or any Guarantor for 30 days after receipt of
written notice given by the Trustee or the holders of at least 30% in
principal amount of the Notes then Outstanding to comply with any of its other
agreements in this Indenture or the Notes;
(iv) default under any mortgage, indenture or instrument under which there
is issued or by which there is secured or evidenced any Indebtedness for money
borrowed
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44
by the Company or any of its Restricted Subsidiaries or the payment of which
is guaranteed by the Company or any of its Restricted Subsidiaries (other than
Indebtedness owed to the Company or a Restricted Subsidiary), whether such
Indebtedness or guarantee now exists or is created after the Issuance Date, if
both (A) such default either (1) results from the failure to pay any such
Indebtedness at its stated final maturity (after giving effect to any
applicable grace periods) or (2) relates to an obligation other than the
obligation to pay principal of any such Indebtedness at its stated final
maturity and results in the holder or holders of such Indebtedness causing
such Indebtedness to become due prior to its stated maturity and (B) the
principal amount of such Indebtedness, together with the principal amount of
any other such Indebtedness in default for failure to pay principal at stated
final maturity (after giving effect to any applicable grace periods), or the
maturity of which has been so accelerated, aggregate $25.0 million or more at
any one time outstanding; provided, however, that any default under or
acceleration of the Existing Senior Notes within the five day period
commencing on the consummation of the Merger shall not be deemed a Default or
Event of Default so long as all outstanding Existing Senior Notes have been
repaid in full within five days of the consummation of the Merger;
(v) failure by the Company or any of its Significant Subsidiaries to pay
final judgments aggregating in excess of $25.0 million, which final judgments
remain unpaid, undischarged and unstayed for a period of more than 60 days
after such judgment becomes final, and in the event such judgment is covered
by insurance, an enforcement proceeding has been commenced by any creditor
upon such judgment or decree which is not promptly stayed;
(vi) the Company or any of its Significant Subsidiaries pursuant to or
within the meaning of Federal Bankruptcy Code: (A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an involuntary
case; (C) consents to the appointment of a Custodian of it or for all or
substantially all of its property; (D) makes a general assignment for the
benefit of its creditors, or (E) admits in writing that it is generally not
paying its debts (other than debts which are the subject of a bona fide
dispute) as they become due;
(vii) a court of competent jurisdiction enters an order or decree under any
Federal Bankruptcy Code that remains unstayed and in effect for 60 days and:
(A) is for relief against the Company or any of its Significant Subsidiaries
in an involuntary case; (B) appoints a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of the property of
the Company or any of its Significant Subsidiaries; or (C) orders the
liquidation of the Company or any of its Significant Subsidiaries; provided
that clauses (A), (B) and (C) shall not apply to an Unrestricted Subsidiary,
unless such action or proceeding has a material adverse effect on the
interests of the Company or any Restricted Subsidiary; or
(viii) any Guarantee shall for any reason cease to be in full force and
effect or is declared null and void or any Responsible Officer of the Company
or any Guarantor denies that it has any further liability under any Guarantee
or gives notice to such effect
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45
(other than by reason of the termination of this Indenture or the release of
any such Guarantee in accordance with this Indenture).
The Trustee shall not be charged with knowledge of any Event of Default
unless written notice thereof shall have been given to a Responsible Officer of
the Trustee at the Corporate Trust Office.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If any Event of Default (other than of a type specified in Section 501(vi)
or 501(vii)) occurs and is continuing, the Trustee or the Holders of at least
30% in principal amount of the Outstanding Notes may declare the principal,
premium, if any, interest and any other monetary obligations on all the then
Outstanding Notes to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by Holders); provided, however, that,
so long as any Indebtedness permitted to be incurred pursuant to the Senior
Credit Facility shall be outstanding, such acceleration shall not be effective
until the earlier of (i) acceleration of any such Indebtedness under the Senior
Credit Facility or (ii) five Business Days after the giving of written notice to
the Company and the Bank Agent of such acceleration. Upon the effectiveness of
such declaration, such principal and interest shall be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of Default
specified in Section 501(vi) or 501(vii) occurs and is continuing, then the
principal amount of all the Notes shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holder.
At any time after a declaration of acceleration has been made and before a
judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter provided in this Article, the Holders of a majority in aggregate
principal amount of the Notes Outstanding, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay,
(A) all overdue interest on all Outstanding Notes,
(B) all unpaid principal of (and premium, if any, on) any Outstanding
Notes which has become due otherwise than by such declaration of
acceleration, and interest on such unpaid principal and premium at the rate
borne by the Notes (for purposes of this clause (B) without duplication to
amounts to be paid or deposited under clause (A) above);
(C) to the extent that payment of such interest is lawful, interest on
overdue interest at the rate borne by the Notes;
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
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46
(2) all Events of Default, other than the non-payment of amounts of
principal of (or premium, if any, on) or interest on Notes which have become
due solely by such declaration of acceleration, have been cured or waived as
provided in Section 513;
(3) if the rescission would not conflict with any judgment or decree; and
(4) in the event of the cure or waiver of an Event of Default specified in
clause (iv) of Section 501, the Trustee shall have received an Officers'
Certificate and, if appropriate, an Opinion of Counsel that such Event of
Default has been cured or waived.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon a determination by the Company that the Senior Credit Facility is no
longer in effect, the Company shall promptly give to the Trustee written notice
thereof executed by an Officer of the Company, which notice shall be
countersigned by the Bank Agent. Unless and until the Trustee shall have
received such written notice with respect to the Senior Credit Facility, the
Trustee, subject to the TIA Sections 315(a) through 315(d), shall be entitled in
all respects to assume that the Senior Credit Facility is in effect (unless a
Responsible Officer of the Trustee shall have knowledge to the contrary).
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
If an Event of Default specified in Section 501(i) or 501(ii) occurs and is
continuing, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any Guarantor (in accordance with the
applicable Guarantee) or any other obligor upon the Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company, any Guarantor or any other obligor upon the Notes,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders under this Indenture or any Guarantee by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, including, seeking recourse against any Guarantor pursuant to the
terms of any Guarantee, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy including, without limitation,
seeking recourse against any Guarantor pursuant to the terms of a Guarantee, or
to enforce any other proper remedy, subject however to Section 513. No recovery
of any such judgment upon any property of the Company or any Guarantor shall
affect or impair any rights, powers or remedies of the Trustee or the Holders.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor, including any
Guarantor, upon the Notes or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the
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47
principal of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal, premium, if any,
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Notes, to
take such other actions (including participating as a member, voting or
otherwise, of any official committee of creditors appointed in such matter)
and to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any Custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding; provided, however, that the
Trustee may, on behalf of such Holders, vote for the election of a trustee in
bankruptcy or other similar official.
SECTION 505. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture, the Notes or the
Guarantees may be prosecuted and enforced by the Trustee without the possession
of any of the Notes or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Thirteen, any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of the Notes and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
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FIRST: To the payment of all amounts due the Trustee under Section 607 or
otherwise pursuant to this Indenture;
SECOND: To the payment of the amounts then due and unpaid for principal of
(and premium, if any) and interest on the Notes in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such Notes
for principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto,
including the Company or any other obligor on the Notes, as their interests
may appear or as a court of competent jurisdiction may direct, provided that
all sums due and owing to the Holders and the Trustee have been paid in full
as required by this Indenture.
SECTION 507. Limitation on Suits.
No Holder of any Notes shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 30% in principal amount of the Outstanding
Notes shall have made written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 30 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 30-day period by the Holders of a majority or more in
principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture, any Note or any Guarantee to affect, disturb or prejudice the
rights of any other Holders, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture,
any Note or any Guarantee, except in the manner herein provided and for the
equal and ratable benefit of all the Holders.
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SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Note shall have the right, which is absolute and unconditional, to receive
payment, as provided herein (including, if applicable, Article Eleven) and in
such Note of the principal of (and premium, if any) and (subject to Section 308)
interest on such Note on the respective Stated Maturities expressed in such Note
(or, in the case of redemption or repurchase, on the Redemption Date or
repurchase) and to institute suit for the enforcement of any such payment, and
such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture or any Guarantee and such proceeding has
been discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, any Guarantor, any other obligor
on the Notes, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes in the last paragraph of Section 307,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of not less than a majority in principal amount of the
Outstanding Notes shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, provided that
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(1) such direction shall not be in conflict with any rule of law or with
this Indenture or any Guarantee,
(2) the Trustee need not take any action which might involve it in personal
liability or be unjustly prejudicial to the Holders not consenting; and
(3) subject to the provisions of Section 315 of the Trust Indenture Act,
the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
Subject to Sections 508 and 902, the Holders of a majority in aggregate
principal amount of the Outstanding Notes (including consents obtained in
connection with a tender offer or exchange offer for the Notes) may on behalf of
the Holders of all of such Notes waive any existing Default or Event of Default
and its consequences under this Indenture or any Guarantee except a continuing
Default or Event of Default in the payment of interest on, premium, if any, or
the principal of, any such Note held by a non-consenting Holder, or in respect
of a covenant or a provision which cannot be amended or modified without the
consent of all Holders.
In the event that any Event of Default specified in Section 501(iv) shall
have occurred and be continuing, such Event of Default and all consequences
thereof (including without limitation any acceleration or resulting payment
default) shall be annulled, waived and rescinded, automatically and without any
action by the Trustee or the Holders of the Notes, if within 20 days after such
Event of Default arose (x) the Indebtedness or guarantee that is the basis for
such Event of Default has been discharged, or (y) the holders thereof have
rescinded or waived the acceleration, notice or action (as the case may be)
giving rise to such Event of Default, or (z) if the default that is the basis
for such Event of Default has been cured.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company, the Guarantors and any other obligors upon the Notes,
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which would prohibit or forgive the Company, any
Guarantor or any such obligor from paying all or any portion of the principal
of, premium, if any, or interest on the Notes contemplated herein or in the
Notes or which may affect the covenants or the performance of this Indenture;
and each of the Company, any Guarantor and any such obligor (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
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SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Note by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Notes, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Note on or after the
respective Stated Maturities expressed in such Note (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of a Default or an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith or willful misconduct on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions required to be delivered
hereunder, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture, but not to
verify the contents thereof.
(b) In case a Default or an Event of Default has occurred and is continuing
of which a Responsible Officer of the Trustee has actual knowledge or of which
written notice of such Default or Event of Default shall have been given to the
Trustee by the Company, any other obligor of the Notes or by any Holder, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
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(1) this paragraph (c) shall not be construed to limit the effect of
paragraph (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
the Holders of the Outstanding Notes received by the Trustee pursuant to
Sections 502, 512 and 513 hereof or in exercising any trust or power conferred
upon the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 313(c),
notice of such Default hereunder known to the Trustee, unless such Default shall
have been cured or waived; provided, however, that, except in the case of a
Default in the payment of the principal of (or premium, if any) or interest on
any Note, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interest of the Holders; and
provided further that in the case of any Default of the character specified in
Section 501(iii) no such notice to Holders shall be given until at least 30 days
after the occurrence thereof.
SECTION 603. Certain Rights of Trustee.
(a) Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
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(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee may, in the absence of bad faith
on its part, request and rely upon an Officers' Certificate or an Opinion of
Counsel or both;
(4) the Trustee may consult with counsel of its selection and any written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance with such request
or direction;
(6) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company, personally or by
agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
(b) The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
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SECTION 604. Trustee Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except for the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Notes and shall not be responsible for any statement of any Person in
this Indenture, the Notes or any statement made in connection with the sale of
the Notes, provided that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Notes and perform its
obligations hereunder and that the statements made by it in a Statement of
Eligibility on Form T-1 supplied to the Company are true and accurate, subject
to the qualifications set forth therein. The Trustee shall not be accountable
for the use or application by the Company of Notes or the proceeds thereof.
SECTION 605. May Hold Notes.
The Trustee, any Paying Agent, any Note Registrar, any Authenticating Agent
or any other agent of the Company or of the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Notes and, subject to TIA
Sections 310(b) and 311, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Note Registrar,
Authenticating Agent or such other agent.
SECTION 606. Money Held in Trust.
All moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust hereunder for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as shall be
agreed to in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel and costs and expenses of collection),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee (and their
respective directors, officers, employees and agents) for, and to hold it
harmless against,
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any and all loss, damage, claim, liability or expense, including taxes (other
than taxes based on the income of the Trustee) incurred without negligence or
bad faith on its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such obligations
of the Company, the Trustee shall have a lien prior to the Holders of the Notes
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (and premium, if any) or
interest on particular Notes.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(vi) or (vii), the expenses (including
the reasonable charges and expenses of its counsel) of and the compensation for
such services are intended to constitute expenses of administration under any
applicable federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section shall also apply to the Trustee in its
capacity as Note Registrar and for so long as the Trustee shall remain Note
Registrar.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 608. Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder which shall be eligible to
act as Trustee under TIA Section 310(a)(1), and which shall have an office in
The City of New York and shall have a combined capital and surplus of at least
$50,000,000. If the Trustee does not have an office in The City of New York, the
Trustee may appoint an agent in The City of New York reasonably acceptable to
the Company to conduct any activities which the Trustee may be required under
this Indenture to conduct in The City of New York. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section 608, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 608, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
SECTION 609. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of this Section.
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(b) The Trustee may resign at any time by giving written notice thereof to
the Company. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee by written instrument executed by authority
of the Board of Directors, a copy of which shall be delivered to the resigning
Trustee and a copy to the successor trustee. If an instrument of acceptance
required by this Section shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of not
less than a majority in principal amount of the Outstanding Notes, delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA Section
310(b) after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 608 and shall fail
to resign after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Note for at least six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a Custodian of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation
or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee, or (ii) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Notes delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
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(f) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to the Holders of Notes
in the manner provided for in Section 106. Each notice shall include the name of
the successor Trustee and the address of its Corporate Trust Office.
SECTION 610. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 611. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes. In case at
that time any of the Notes shall not have been authenticated, any successor
Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor Trustee. In all such cases such
certificates shall have the full force and effect which this Indenture provides
for the certificate of authentication of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses.
The Company will furnish or cause to be furnished to the Trustee
(a) semiannually, not more than 10 days after each Regular Record Date, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Regular Record Date; and
(b) at such other times as the Trustee may reasonably request in writing,
within 30 days after receipt by the Company of any such request, a list of
similar form and content to that in Subsection (a) hereof as of a date not more
than 15 days prior to the time such list is furnished; provided, however that if
and so long as the Trustee shall be the Note Registrar, no such list need be
furnished.
SECTION 702. Disclosure of Names and Addresses of Holders.
Every Holder of Notes, by receiving and holding the same, agrees with the
Company and the Trustee that none of the Company or the Trustee or any agent of
either of them shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with TIA
Section 312, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under TIA Section 312(b).
SECTION 703. Reports by Trustee.
To the extent required by TIA Section 313(a), within 60 days after May 15
of each year commencing with the first May 15 after the first issuance of Notes,
the Trustee shall transmit to the Holders, in the manner and to the extent
required by TIA Section 313(c), a brief report dated as of such May 15 if
required by TIA Section 313(a).
ARTICLE EIGHT
MERGER, CONSOLIDATION, OR SALE OF ASSETS
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
(1) The Company shall not consolidate or merge with or into or wind up into
(whether or not the Company is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to any Person unless
(i) the Company is the surviving corporation or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
will have been made is a
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corporation organized or existing under the laws of the United States, any state
thereof, the District of Columbia, or any territory thereof (the Company or such
Person, as the case may be, being herein called the "Successor Company"); (ii)
the Successor Company (if other than the Company) expressly assumes all the
obligations of the Company under this Indenture and the Notes pursuant to a
supplemental indenture or other documents or instruments in form reasonably
satisfactory to the Trustee; (iii) immediately after such transaction no Default
or Event of Default shall have occurred and be continuing; (iv) immediately
after giving pro forma effect to such transaction, as if such transaction had
occurred at the beginning of the applicable four-quarter period, (A) the
Successor Company would be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in
Section 1010(a) hereof or (B) the Fixed Charge Coverage Ratio for the Successor
Company and its Restricted Subsidiaries would be greater than such Ratio for the
Company and its Restricted Subsidiaries immediately prior to such transaction;
(v) each Guarantor, if any, unless it is the other party to the transactions
described above, shall have by supplemental indenture confirmed that its
Guarantee shall apply to such Person's obligations under this Indenture and the
Notes; and (vi) the Company shall have delivered to the Trustee an Officers'
Certificate and an opinion of counsel, each stating that such consolidation,
merger or transfer and such supplemental indenture (if any) comply with this
Indenture. The Successor Company shall succeed to, and be substituted for, the
Company under this Indenture and the Notes. Notwithstanding the foregoing clause
(iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer
all or part of its properties and assets to the Company and (b) the Company may
merge with an Affiliate incorporated solely for the purpose of reincorporating
the Company in another State of the United States so long as the amount of
Indebtedness of the Company and its Restricted Subsidiaries is not increased
thereby.
(2) Each Guarantor, if any, shall not, and the Company shall not permit a
Guarantor to, consolidate or merge with or into or wind up into (whether or not
such Guarantor is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to any Person unless (i) such
Guarantor is the surviving corporation or the Person formed by or surviving any
such consolidation or merger (if other than such Guarantor) or to which such
sale, assignment, transfer, lease, conveyance or other disposition will have
been made is a corporation organized or existing under the laws of the United
States, any state thereof, the District of Columbia, or any territory thereof
(such Guarantor or such Person, as the case may be, being herein called the
"Successor Guarantor"); (ii) the Successor Guarantor (if other than such
Guarantor) expressly assumes all the obligations of such Guarantor under this
Indenture and such Guarantor's Guarantee pursuant to a supplemental indenture or
other documents or instruments in form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no Default or Event of Default shall
have occurred and be continuing; and (iv) the Guarantor shall have delivered or
caused to be delivered to the Trustee an Officers' Certificate and an opinion of
counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture. The Successor
Guarantor shall succeed to, and be substituted for, such Guarantor under this
Indenture and such Guarantor's Guarantee.
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SECTION 802. Successor Substituted.
Upon any consolidation of the Company with or merger of the Company with or
into or wind up into any other corporation or any sale, assignment, conveyance,
transfer, lease or other disposition of the properties and assets of the Company
substantially as an entirety to any Person in accordance with Section 801, the
successor Person formed by such consolidation or into which the Company is
merged or wound up or to which such sale, assignment, conveyance, transfer,
lease or other disposition is made will succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company therein,
and thereafter (except in the case of a sale, assignment, transfer, lease,
conveyance or other disposition) the predecessor corporation will be relieved of
all further obligations and covenants under this Indenture and the Notes;
provided that, solely with respect to calculating amounts described in clauses
(A), (B) and (C) of paragraph (a) of Section 1009, any such surviving entity to
the Company shall only be deemed to have succeeded to and be substituted for the
Company with respect to periods subsequent to the effective time of such merger,
consolidation, combination or transfer of assets.
ARTICLE NINE
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Notes, the Company, any Guarantor
(with respect to a Guarantee to which it is a party), when authorized by a Board
Resolution, and the Trustee may amend or supplement this Indenture, any
Guarantee or the Notes:
(1) to cure any ambiguity, defect or inconsistency; or
(2) to provide for uncertificated Notes in addition to or in place of
certificated Notes; or
(3) to comply with Article Eight hereof; or
(4) to provide for the assumption of the Company's or any Guarantor's
obligations to Holders of such Notes; or
(5) to make any change that would provide any additional rights or benefits
to the Holders of the Notes or that does not adversely affect the legal rights
hereunder of any such Holder; or
(6) to add covenants for the benefit of the Holders or to surrender any
right or power conferred upon the Company; or
(7) to comply with requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act; or
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(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee pursuant to the requirements of Section 610; or
(9) to add a Guarantor hereunder.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of at least a majority in principal amount
of the Outstanding Notes (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, the
Notes), by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders under
this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of each Holder affected thereby (with respect to any Notes
held by a nonconsenting Holder of the Notes):
(1) reduce the principal amount of the Notes whose Holders must consent to
an amendment, supplement or waiver; or
(2) reduce the principal of or change or have the effect of changing the
Stated Maturity of any such Note or alter or waive the provisions with respect
to the redemption of the Notes (other than Sections 1016 and 1017 and the
defined terms used therein); or
(3) reduce the rate of or change the time for payment of interest on any
Note; or
(4) waive a Default or Event of Default in the payment of principal of,
premium, if any, or interest on the Notes (except a rescission of acceleration
of the Notes by the Holders of at least a majority in aggregate principal
amount of such Notes Outstanding and a waiver of the payment default that
resulted from such acceleration), or in respect of a covenant or provision
contained in this Indenture or any Guarantee which cannot be amended or
modified without the consent of all Holders; or
(5) make any Note payable in money other than that stated in such Notes; or
(6) make any change in the provisions of this Indenture relating to waivers
of past Defaults or the rights of Holders of the Notes to receive payments of
principal of or premium, if any, or interest on the Notes; or
(7) make any change in the foregoing amendment and waiver provisions; or
(8) impair the right of any Holder of the Notes to receive payment of
principal of, or interest on such Holder's Notes on or after the due dates
theretofore or to institute suit for the enforcement of any payment on or with
respect to such Holder's Notes; or
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(9) make any change in the subordination provisions of this Indenture that
would adversely affect the Holders of the Notes.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustees own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby (except as provided in Section 902).
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to the Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Notes so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding Notes.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Note affected, in
the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
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SECTION 908. Effect on Senior Indebtedness.
No supplemental indenture shall adversely affect the rights of any holders
of Senior Indebtedness under Article Thirteen unless the requisite holders of
each issue of Senior Indebtedness affected thereby shall have consented to such
supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and Interest.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and interest shall be considered paid on the
date due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest then due.
SECTION 1002. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
the City of New York for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 305.
SECTION 1003. Money for Note Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of (or premium, if any) or interest on
any of the Notes, segregate
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and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal of (or premium, if any) or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure to
so act.
Whenever the Company shall have one or more Paying Agents for the Notes, it
will, on or before each due date of the principal of (or premium, if any) or
interest on any Notes, deposit with a Paying Agent a sum in same day funds (or
New York Clearing House funds if such deposit is made prior to the date on which
such deposit is required to be made) sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of such action or any failure to so act.
The Company will cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Notes) in the making of any payment of principal (and
premium, if any) or interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (or premium, if any)
or interest on any Note and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Note shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment to the Company, may at the expense of the Company
cause to be published once, in a newspaper published in the English
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language, customarily published on each Business Day and of general circulation
in the Borough of Manhattan, The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Restricted Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Restricted Subsidiary and (ii) the rights (charter and statutory), licenses
and franchises of the Company and its Restricted Subsidiaries; provided,
however, that the Company shall not be required to preserve any such right,
license or franchise, or the corporate, partnership or other existence of any of
its Restricted Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders of the Notes.
SECTION 1005. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental charges
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders of the Notes.
SECTION 1006. Maintenance of Properties.
The Company will cause all material properties owned by the Company or any
Restricted Subsidiary or used or held for use in the conduct of its business or
the business of any Restricted Subsidiary to be maintained and kept in normal
condition, repair and working order and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly conducted at all times; provided, however,
that nothing in this Section shall prevent the Company or any of its Restricted
Subsidiaries from discontinuing the maintenance of any of such properties if
such discontinuance is, in the judgment of the Company, desirable in the conduct
of its business or the business of any Restricted Subsidiary and not adverse in
any material respect to the Holders.
SECTION 1007. Insurance.
To the extent available at commercially reasonable rates, the Company will
maintain, and will cause its Subsidiaries to maintain, insurance with
responsible carriers against such risks and in such amounts, and with such
deductibles, retentions, self-insured amounts and co-insurance provisions, as
are customarily carried by similar businesses, of similar size, including
professional and general liability, property and casualty loss, workers'
compensation and interruption of business insurance.
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SECTION 1008. Compliance with Laws.
The Company shall comply, and shall cause each of its Subsidiaries to
comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and municipalities
thereof, and of any governmental regulatory authority, in respect of the conduct
of their respective businesses and the ownership of their respective properties,
except for such noncompliances as would not in the aggregate have a material
adverse effect on the financial condition or results of operations of the
Company and its Subsidiaries, taken as a whole.
SECTION 1009. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests, including any dividend or distribution payable
in connection with any merger or consolidation (other than (A) dividends or
distributions by the Company payable in Equity Interests (other than
Disqualified Stock) of the Company or (B) dividends or distributions by a
Restricted Subsidiary so long as, in the case of any dividend or distribution
payable on or in respect of any class or series of securities issued by a
Subsidiary other than a Wholly Owned Subsidiary, the Company or a Restricted
Subsidiary receives at least its pro rata share of such dividend or distribution
in accordance with its Equity Interests in such class or series of securities);
(ii) purchase, redeem, defease or otherwise acquire or retire for value any
Equity Interests of the Company or any direct or indirect parent of the Company;
(iii) make any principal payment on, or redeem, repurchase, defease or otherwise
acquire or retire for value in each case, prior to any scheduled repayment, or
maturity, any Subordinated Indebtedness (other than Indebtedness permitted under
clauses (vii) and (ix) of Section 1010(b) hereof); or (iv) make any Restricted
Investment (all such payments and other actions set forth in clauses (i) through
(iv) above being collectively referred to as "Restricted Payments"), unless, at
the time of such Restricted Payment:
(A) no Default or Event of Default shall have occurred and be continuing or
would occur as a consequence thereof;
(B) immediately before and immediately after giving effect to such transaction
on a pro forma basis, the Company could incur $1.00 of additional Indebtedness
under the provisions of Section 1010(a) hereof; and
(C) such Restricted Payment, together with the aggregate amount of all other
Restricted Payments made by the Company and its Restricted Subsidiaries after
the Issuance Date (including Restricted Payments permitted by clauses (i),
(ii) (with respect to the payment of dividends on Refunding Capital Stock
pursuant to clause (B) thereof), (v) (only to the extent that amounts paid
pursuant to such clause are greater than amounts that would have been paid
pursuant to such clause if $5.0 million and $10.0 million were substituted in
such clause for $10.0 million and $20.0 million, respectively), (vi), (ix) and
(x) of the next succeeding paragraph, but excluding all other Restricted
Payments permitted by the next succeeding paragraph), is less than the sum of
(i) 50% of the Consolidated Net Income of the Company for the period (taken as
one accounting period) from the fiscal
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quarter that first begins after the Issuance Date to the end of the Company's
most recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, in the case such
Consolidated Net Income for such period is a deficit, minus 100% of such
deficit), plus (ii) 100% of the aggregate net cash proceeds and the fair
market value, as determined in good faith by the Board of Directors, of
marketable securities received by the Company since immediately after the
closing of the Merger and the Financings from the issue or sale of Equity
Interests of the Company (including Refunding Capital Stock (as defined
below), but excluding cash proceeds and marketable securities received from
the sale of Equity Interests to members of management, directors or
consultants of the Company and its Subsidiaries after the Issuance Date to the
extent such amounts have been applied to Restricted Payments in accordance
with clause (v) of the next succeeding paragraph and excluding Excluded
Contributions) or debt securities of the Company that have been converted into
such Equity Interests of the Company (other than Refunding Capital Stock (as
defined below) or Equity Interests or convertible debt securities of the
Company sold to a Restricted Subsidiary of the Company and other than
Disqualified Stock or debt securities that have been converted into
Disqualified Stock), plus (iii) 100% of the aggregate amount of cash and
marketable securities contributed to the capital of the Company following the
Issuance Date (excluding Excluded Contributions), plus (iv) 100% of the
aggregate amount received in cash and the fair market value of marketable
securities (other than Restricted Investments) received from (A) the sale or
other disposition (other than to the Company or a Restricted Subsidiary) of
Restricted Investments made by the Company and its Restricted Subsidiaries or
(B) a dividend from, or the sale (other than to the Company or a Restricted
Subsidiary) of the stock of, an Unrestricted Subsidiary (other than an
Unrestricted Subsidiary the Investment in which was made by the Company or a
Restricted Subsidiary pursuant to clauses (vii) or (xii) below).
(b) The foregoing provisions will not prohibit:
(i) the payment of any dividend within 60 days after the date of declaration
thereof, if at the date of declaration such payment would have complied with
the provisions of this Indenture;
(ii) (A) the redemption, repurchase, retirement or other acquisition of any
Equity Interests (the "Retired Capital Stock") or Subordinated Indebtedness of
the Company in exchange for, or out of the proceeds of the substantially
concurrent sale (other than to a Restricted Subsidiary) of, Equity Interests
of the Company (other than any Disqualified Stock) (the "Refunding Capital
Stock"), and (B) if immediately prior to the retirement of Retired Capital
Stock, the declaration and payment of dividends thereon was permitted under
clause (vi) of this paragraph, the declaration and payment of dividends on the
Refunding Capital Stock in an aggregate amount per year no greater than the
aggregate amount of dividends per annum that was declarable and payable on
such Retired Capital Stock immediately prior to such retirement; provided,
however, that at the time of the declaration of any such dividends, no Default
or Event of Default shall have occurred and be continuing or would occur as a
consequence thereof;
(iii) distributions or payments of Receivables Fees;
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(iv) the redemption, repurchase or other acquisition or retirement of
Subordinated Indebtedness of the Company made by exchange for, or out of the
proceeds of the substantially concurrent sale of, new Indebtedness of the
Company so long as (A) the principal amount of such new Indebtedness does not
exceed the principal amount of the Subordinated Indebtedness being so
redeemed, repurchased, acquired or retired for value (plus the amount of any
premium required to be paid under the terms of the instrument governing the
Subordinated Indebtedness being so redeemed, repurchased, acquired or
retired), (B) such Indebtedness is subordinated to the Senior Indebtedness and
the Notes at least to the same extent as such Subordinated Indebtedness so
purchased, exchanged, redeemed, repurchased, acquired or retired for value,
(C) such Indebtedness has a final scheduled maturity date equal to or later
than the final scheduled maturity date of the Subordinated Indebtedness being
so redeemed, repurchased, acquired or retired and (D) such Indebtedness has a
Weighted Average Life to Maturity equal to or greater than the remaining
Weighted Average Life to Maturity of the Subordinated Indebtedness being so
redeemed, repurchased, acquired or retired;
(v) a Restricted Payment to pay for the repurchase, retirement or other
acquisition or retirement for value of common Equity Interests of the Company
held by any future, present or former employee, director or consultant of the
Company or any Subsidiary pursuant to any management equity plan or stock
option plan or any other management or employee benefit plan or agreement;
provided, however, that the aggregate Restricted Payments made under this
clause (v) does not exceed in any calendar year $10.0 million (with unused
amounts in any calendar year being carried over to succeeding calendar years
subject to a maximum (without giving effect to the following proviso) of $20.0
million in any calendar year); provided further that such amount in any
calendar year may be increased by an amount not to exceed (i) the cash
proceeds from the sale of Equity Interests of the Company to members of
management, directors or consultants of the Company and its Subsidiaries that
occurs after the Issuance Date (to the extent the cash proceeds from the sale
of such Equity Interest have not otherwise been applied to the payment of
Restricted Payments by virtue of the preceding paragraph (C)) plus (ii) the
cash proceeds of key man life insurance policies received by the Company and
its Restricted Subsidiaries after the Issuance Date less (iii) the amount of
any, Restricted Payments previously made pursuant to clauses (i) and (ii) of
this subparagraph (v); and provided further that cancellation of Indebtedness
owing to the Company from members of management of the Company or any of its
Restricted Subsidiaries in connection with a repurchase of Equity Interests of
the Company will not be deemed to constitute a Restricted Payment for purposes
of this covenant or any other provision of this Indenture;
(vi) the declaration and payment of dividends to holders of any class or
series of Designated Preferred Stock (other than Disqualified Stock) issued
after the Issuance Date (including, without limitation, the declaration and
payment of dividends on Refunding Capital Stock in excess of the dividends
declarable and payable thereon pursuant to clause (ii)); provided, however,
that for the most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date of issuance
of such Designated Preferred Stock, after giving effect to such issuance on a
pro forma basis, the Company and its Restricted Subsidiaries would have had a
Fixed Charge Coverage Ratio of at least 1.75 to 1.00;
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(vii) Investments in Unrestricted Subsidiaries having an aggregate fair market
value, taken together with all other Investments made pursuant to this clause
(vii) that are at that time outstanding, not to exceed $25.0 million at the
time of such Investment (with the fair market value of each Investment being
measured at the time made and without giving effect to subsequent changes in
value);
(viii) repurchases of Equity Interests deemed to occur upon exercise of stock
options if such Equity Interests represent a portion of the exercise price of
such options;
(ix) the payment of dividends on the Company's Common Stock, following the
first public offering of the Company's Common Stock after the Issuance Date,
of up to 6% per annum of the net proceeds received by the Company in such
public offering, other than public offerings with respect to the Company's
Common Stock registered on Form S-8;
(x) a Restricted Payment to pay for the repurchase, retirement or other
acquisition or retirement for value of Equity Interests of the Company in
existence on the Issuance Date and which are not held by KKR or any of their
Affiliates or the Management Group on the Issuance Date (including any Equity
Interests issued in respect of such Equity Interests as a result of a stock
split, recapitalization, merger, combination, consolidation or otherwise, but
excluding any management equity plan or stock option plan or similar
agreement), provided that the aggregate Restricted Payments made under this
clause (x) shall not exceed $80.0 million, provided further that prior to the
first anniversary of the consummation of the Merger, the aggregate amount of
Restricted Payments made under this clause (x) shall not exceed $40.0 million,
provided further that notwithstanding the foregoing proviso, the Company shall
be permitted to make Restricted Payments under this clause (x) only if after
giving effect thereto, the Company would be permitted to incur at least $1.00
of additional Indebtedness under the provisions of Section 1010(a) hereof;
(xi) Investments in Unrestricted Subsidiaries that are made with Excluded
Contributions; and
(xii) other Restricted Payments in an aggregate amount not to exceed $25.0
million; provided, however, that at the time of, and after giving effect to,
any Restricted Payment permitted under clauses (iv), (v), (vi), (vii), (viii),
(ix), (x), (xi) and (xii), no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof; and provided
further that for purposes of determining the aggregate amount expended for
Restricted Payments in accordance with clause (C) of the immediately preceding
paragraph, only the amounts expended under clauses (i), (ii) (with respect to
the payment of dividends on Refunding Capital Stock pursuant to clause (b)
thereof), (v) (only to the extent that amounts paid pursuant to such clause
are greater than amounts that would have been paid pursuant to such clause if
$5.0 million and $10.0 million were substituted in such clause for $10.0
million and $20.0 million, respectively), (vi), (ix) and (x) shall be
included.
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(c) As of the Issuance Date, all of the Company's Subsidiaries other then
Amphenol Funding Corp. will be Restricted Subsidiaries. The Company will not
permit any Unrestricted Subsidiary to become a Restricted Subsidiary except
pursuant to the second to last sentence of the definition of "Unrestricted
Subsidiary." For purposes of designating any Restricted Subsidiary as an
Unrestricted Subsidiary, all outstanding Investments by the Company and its
Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so
designated will be deemed to be Restricted Payments in an amount determined as
set forth in the last sentence of the definition of "Investments." Such
designation will only be permitted if a Restricted Payment in such amount would
be permitted at such time (whether pursuant to the first paragraph of this
covenant or under clause (vii) or (xi)) and if such Subsidiary otherwise meets
the definition of an Unrestricted Subsidiary. Unrestricted Subsidiaries will not
be subject to any of the restrictive covenants set forth in this Indenture.
SECTION 1010. Limitation on Incurrence of Indebtedness and Issuance of
Disqualified Stock.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur" and collectively, an "incurrence") any
Indebtedness (including Acquired Indebtedness) and that the Company will not
issue any shares of Disqualified Stock and will not permit any of its Restricted
Subsidiaries to issue any shares of preferred stock; provided, however, that the
Company may incur Indebtedness (including Acquired Indebtedness) or issue shares
of Disqualified Stock if the Fixed Charge Coverage Ratio for the Company's and
the Restricted Subsidiaries' most recently ended four full fiscal quarters for
which internal financial statements are available immediately preceding the date
on which such additional Indebtedness is incurred or such Disqualified Stock is
issued would have been at least 1.75 to 1.00, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred, or the Disqualified Stock had been
issued, as the case may be, and the application of proceeds therefrom had
occurred at the beginning of such four-quarter period.
(b) Section 1010(a) shall not apply to:
(i) the incurrence by the Company or its Restricted Subsidiaries of
Indebtedness under Credit Facilities and the issuance and creation of letters
of credit and banker's acceptances thereunder (with letters of credit and
banker's acceptances being deemed to have a principal amount equal to the face
amount thereof) up to an aggregate principal amount of $1.0 billion
outstanding at any one time; provided, however, that Indebtedness incurred by
Restricted Subsidiaries pursuant to this clause (i) does not exceed $100.0
million (or the equivalent thereof in any other currency) at any one time
outstanding;
(ii) the incurrence by the Company of Indebtedness represented by the Notes;
(iii) the Existing Indebtedness (other than Indebtedness described in clauses
(i) and (ii));
(iv) Indebtedness (including Capitalized Lease Obligations) incurred by the
Company or any of its Restricted Subsidiaries, to finance the purchase, lease
or improvement of
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property (real or personal) or equipment (whether through the direct purchase
of assets or the Capital Stock of any Person owning such assets) in an
aggregate principal amount which, when aggregated with the principal amount of
all other Indebtedness then outstanding and incurred pursuant to this clause
(iv) and including all Refinancing Indebtedness incurred to refund, refinance
or replace any other Indebtedness incurred pursuant to this clause (iv), does
not exceed 10% of Total Assets;
(v) Indebtedness incurred by the Company or any of its Restricted Subsidiaries
constituting reimbursement obligations with respect to letters of credit
issued in the ordinary course of business, including without limitation
letters of credit in respect of workers' compensation claims or
self-insurance, or other Indebtedness with respect to reimbursement type
obligations regarding workers' compensation claims; provided, however, that
upon the drawing of such letters of credit or the incurrence of such
Indebtedness, such obligations are reimbursed within 30 days following such
drawing or incurrence;
(vi) Indebtedness arising from agreements of the Company or a Restricted
Subsidiary providing for indemnification, adjustment of purchase price or
similar obligations, in each case, incurred or assumed in connection with the
disposition of any business, assets or a Subsidiary, other than guarantees of
Indebtedness incurred by any Person acquiring all or any portion of such
business, assets or a Subsidiary for the purpose of financing such
acquisition; provided, however, that (A) such Indebtedness is not reflected on
the balance sheet of the Company or any Restricted Subsidiary (contingent
obligations referred to in a footnote to financial statements and not
otherwise reflected on the balance sheet will not be deemed to be reflected on
such balance sheet for purposes of this clause (A)) and (B) the maximum
assumable liability in respect of all such Indebtedness shall at no time
exceed the gross proceeds including noncash proceeds (the fair market value of
such noncash proceeds being measured at the time received and without giving
effect to any subsequent changes in value) actually received by the Company
and its Restricted Subsidiaries in connection with such disposition;
(vii) Indebtedness of the Company to a Restricted Subsidiary; provided that
any such Indebtedness is made pursuant to an intercompany note and is
subordinated in right of payment to the Notes; provided further that any
subsequent issuance or transfer of any Capital Stock or any other event which
results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such Indebtedness (except
to the Company or another Restricted Subsidiary) shall be deemed, in each case
to be an incurrence of such Indebtedness;
(viii) shares of preferred stock of a Restricted Subsidiary issued to the
Company or another Restricted Subsidiary; provided that any subsequent
issuance or transfer of any Capital Stock or any other event which results in
any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
other subsequent transfer of any such shares of preferred stock (except to the
Company or another Restricted Subsidiary) shall be deemed, in each case to be
an issuance of shares of preferred stock;
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(ix) Indebtedness of a Restricted Subsidiary to the Company or another
Restricted Subsidiary; provided that (A) any such Indebtedness is made
pursuant to an intercompany note and (B) if a Guarantor incurs such
Indebtedness from a Restricted Subsidiary that is not a Guarantor such
Indebtedness is subordinated in right of payment to the Guarantee of such
Guarantor; provided further that any subsequent transfer of any such
Indebtedness (except to the Company or another Restricted Subsidiary) shall be
deemed, in each case to be an incurrence of such Indebtedness;
(x) Hedging Obligations that are incurred in the ordinary course of business
(A) for the purpose of fixing or hedging interest rate risk with respect to
any Indebtedness that is permitted by the terms of this Indenture to be
outstanding or (B) for the purpose of fixing or hedging currency exchange rate
risk with respect to any currency exchanges;
(xi) obligations in respect of performance and surety bonds and completion
guarantees provided by the Company or any Restricted Subsidiary in the
ordinary course of business;
(xii) Indebtedness of any Guarantor in respect of such Guarantor's Guarantee;
(xiii) Indebtedness of the Company and any of its Restricted Subsidiaries not
otherwise permitted hereunder in an aggregate principal amount, which when
aggregated with the principal amount of all other Indebtedness then
outstanding and incurred pursuant to this clause (xiii), does not exceed
$200.0 million at any one time outstanding; provided, however, that (A)
Indebtedness of Foreign Subsidiaries, which when aggregated with the principal
amount of all other Indebtedness of Foreign Subsidiaries then outstanding and
incurred pursuant to this clause (xiii), does not exceed $100.0 million (or
the equivalent thereof in any other currency) at any one time outstanding and
(B) Indebtedness of a Restricted Subsidiary organized under the laws of the
United States, any state thereof, the District of Columbia or any territory
thereof, which when aggregated with the principal amount of all other
Indebtedness of such Restricted Subsidiaries then outstanding and incurred
pursuant to this clause (xiii), does not exceed $100.0 million at any one time
outstanding;
(xiv) (A) any guarantee by the Company of Indebtedness or other obligations of
any of its Restricted Subsidiaries so long as the incurrence of such
Indebtedness incurred by such Restricted Subsidiary is permitted under the
terms of this Indenture and (B) any Excluded Guarantee (as defined in Section
1014 hereof) of a Restricted Subsidiary;
(xv) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness which serves to refund, refinance or restructure any Indebtedness
incurred as permitted under the first paragraph of this covenant and clauses
(ii) and (iii) above, or any Indebtedness issued to so refund, refinance or
restructure such Indebtedness including additional Indebtedness incurred to
pay premiums and fees in connection therewith (the "Refinancing Indebtedness")
prior to its respective maturity; provided, however, that such Refinancing
Indebtedness (A) has a Weighted Average Life to Maturity at the time such
Refinancing Indebtedness is incurred which is not less than the remaining
Weighted Average Life to Maturity of Indebtedness being refunded or
refinanced, (B) to the extent such Refinancing Indebtedness refinances
Indebtedness subordinated or pari passu to the
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Notes, such Refinancing Indebtedness is subordinated or pari passu to the
Notes at least to the same extent as the Indebtedness being refinanced or
refunded and (C) shall not include (x) Indebtedness of a Subsidiary that
refinances Indebtedness of the Company or (y) Indebtedness of the Company or a
Restricted Subsidiary that refinances Indebtedness of an Unrestricted
Subsidiary; and provided further that subclauses (A) and (B) of this clause
(xv) will not apply to any refunding or refinancing of any Senior
Indebtedness; and
(xvi) Indebtedness or Disqualified Stock of Persons that are acquired by the
Company or any of its Restricted Subsidiaries or merged into a Restricted
Subsidiary in accordance with the terms of this Indenture; provided that such
Indebtedness or Disqualified Stock is not incurred in contemplation of such
acquisition or merger; and provided further that after giving effect to such
acquisition, either (A) the Company would be permitted to incur at least $1.00
of additional Indebtedness under the provisions of Section 1010(a) or (B) the
Fixed Charge Coverage Ratio is greater than immediately prior to such
acquisition.
For purposes of determining compliance with this covenant, in the event that
an item of Indebtedness meets the criteria of more than one of the categories of
permitted Indebtedness described in clauses (i) through (xvi) above or is
entitled to be incurred pursuant to the first paragraph of this covenant, the
Company shall, in its sole discretion, classify such item of Indebtedness in any
manner that complies with this covenant and such item of Indebtedness will be
treated as having been incurred pursuant to only one of such clauses or pursuant
to the first paragraph hereof. Accrual of interest, the accretion of accreted
value and the payment of interest in the form of additional Indebtedness will
not be deemed to be an incurrence of Indebtedness for purposes of this Section
1010.
SECTION 1011. Liens.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly create, incur, assume or suffer to exist
any Lien that secures obligations under any Pari Passu Indebtedness or
Subordinated Indebtedness on any asset or property of the Company or such
Restricted Subsidiary, or any income or profits therefrom, or assign or convey
any right to receive income therefrom, unless the Notes are equally and ratably
secured with the obligations so secured or until such time as such obligations
are no longer secured by a Lien.
(b) No Guarantor shall directly or indirectly create, incur, assume or
suffer to exist any Lien that secures obligations under any Pari Passu
Indebtedness or Subordinated Indebtedness of such Guarantor on any asset or
property of such Guarantor or any income or profits therefrom, or assign or
convey any right to receive income therefrom, unless the Guarantee of such
Guarantor is equally and ratably secured with the obligations so secured or
until such time as such obligations are no longer secured by a Lien.
(c) Any Lien created, incurred or existing in respect of unfunded pension
obligations or any similar obligations of the Company or any of its Restricted
Subsidiaries or any Guarantor shall not be deemed to give rise to any
obligations under this Section 1011.
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SECTION 1012. Transactions with Affiliates.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction") involving
aggregate consideration in excess of $5.0 million, unless (i) such Affiliate
Transaction is on terms that are not materially less favorable to the Company or
the relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary with an
unrelated Person and (ii) the Company delivers to the Trustee with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $10.0 million, a resolution adopted by the
majority of the Board of Directors approving such Affiliate Transaction and set
forth in an Officers' Certificate certifying that such Affiliate Transaction
complies with clause (i) above.
(b) Notwithstanding Section 1012(a), this Section 1012 shall not apply to
the following: (i) transactions between or among the Company and/or any of its
Restricted Subsidiaries; (ii) Restricted Payments permitted by Section 1009
hereof; (iii) the payment of customary annual management, consulting and
advisory fees and related expenses to KKR and its Affiliates; (iv) the payment
of reasonable and customary fees paid to, and indemnity provided on behalf of,
officers, directors, employees or consultants of the Company or any Restricted
Subsidiary; (v) payments by the Company or any of its Restricted Subsidiaries to
KKR and its Affiliates made for any financial advisory, financing, underwriting
or placement services or in respect of other investment banking activities,
including, without limitation, in connection with acquisitions or divestitures
which payments are approved by a majority of the Board of Directors of the
Company in good faith; (vi) transactions in which the Company or any of its
Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter
from an Independent Financial Advisor stating that such transaction is fair to
the Company or such Restricted Subsidiary from a financial point of view or
meets the requirements of clause (i) of the preceding paragraph; (vii) payments
or loans to employees or consultants which are approved by a majority of the
Board of Directors of the Company in good faith; (viii) any agreement as in
effect as of the Issuance Date or any amendment thereto (so long as any such
amendment is not disadvantageous to the Holders of the Notes in any material
respect) or any transaction contemplated thereby; (ix) the existence of, or the
performance by the Company or any of its Restricted Subsidiaries of its
obligations under the terms of, any stockholders agreement (including any
registration rights agreement or purchase agreement related thereto) to which it
is a party as of the Issuance Date and any similar agreements which it may enter
into thereafter; provided, however, that the existence of, or the performance by
the Company or any of its Restricted Subsidiaries of obligations under any
future amendment to any such existing agreement or under any similar agreement
entered into after the Issuance Date shall only be permitted by this clause (ix)
to the extent that the terms of any such amendment or new agreement are not
otherwise disadvantageous to the Holders of the Notes in any material respect;
(x) the payment of all fees and expenses related to the Merger and the
Financings; (xi) transactions with customers, clients, suppliers, or purchasers
or sellers of goods or services, in each case in the ordinary course of business
and otherwise in compliance with the terms of this Indenture which are fair to
the Company or its Restricted Subsidiaries, in the reasonable determination of
the Board of Directors of the Company
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75
or the senior management thereof, or are on terms at least as favorable as might
reasonably have been obtained at such time from an unaffiliated party; and (xii)
sales of accounts receivable, or participations therein, in connection with any
Receivables Facility.
SECTION 1013. Dividend and Other Payment Restrictions Affecting
Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or consensual restriction
on the ability of any Restricted Subsidiary to: (a)(i) pay dividends or make any
other distributions to the Company or any of its Restricted Subsidiaries (1) on
its Capital Stock or (2) with respect to any other interest or participation in,
or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or
any of its Restricted Subsidiaries; (b) make loans or advances to the Company or
any of its Restricted Subsidiaries; or (c) sell, lease or transfer any of its
properties or assets to the Company or any of its Restricted Subsidiaries;
except (in each case) for such encumbrances or restrictions existing under or by
reason of:
(1) contractual encumbrances or restrictions in effect on the Issuance Date,
including pursuant to the Senior Credit Facility and its related
documentation;
(2) this Indenture and the Notes;
(3) purchase money obligations for property acquired in the ordinary course of
business that impose restrictions of the nature discussed in clause (c) above
on the property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(5) any agreement or other instrument of a Person acquired by the Company or
any Restricted Subsidiary in existence at the time of such acquisition (but
not created in contemplation thereof), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other
than the Person, or the property or assets of the Person, so acquired;
(6) contracts for the sale of assets, including, without limitation customary
restrictions with respect to a Subsidiary pursuant to an agreement that has
been entered into for the sale or disposition of all or substantially all of
the Capital Stock or assets of such Subsidiary;
(7) secured Indebtedness otherwise permitted to be incurred pursuant to
Sections 1010 and 1011 hereof that limit the right of the debtor to dispose of
the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers
under contracts entered into in the ordinary course of business;
(9) other Indebtedness of Restricted Subsidiaries permitted to be incurred
subsequent to the Issuance Date pursuant to the provisions of Section 1010
hereof;
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(10) customary provisions in joint venture agreements and other similar
agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases and other agreements entered
into in the ordinary course of business;
(12) restrictions created in connection with any Receivables Facility that, in
the good faith determination of the Board of Directors of the Company, are
necessary or advisable to effect such Receivables Facility; or
(13) any encumbrances or restrictions of the type referred to in clauses (a),
(b) and (c) above imposed by any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings of
the contracts, instruments or obligations referred to in clauses (1) through
(11) above, provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings
are, in the good faith judgment of the Company's Board of Directors, no more
restrictive with respect to such dividend and other payment restrictions than
those contained in the dividend or other payment restrictions prior to such
amendment, modification, restatement, renewal, increase, supplement,
refunding, replacement or refinancing.
SECTION 1014. Limitation on Guarantees of Indebtedness by Restricted
Subsidiaries.
(a) The Company shall not permit any Restricted Subsidiary to guarantee the
payment of any Indebtedness of the Company or any Indebtedness of any other
Restricted Subsidiary unless (i) such Restricted Subsidiary simultaneously
executes and delivers a supplemental indenture to this Indenture providing for a
Guarantee of payment of the Notes by such Restricted Subsidiary except that (A)
if the Notes are subordinated in right of payment to such Indebtedness, the
Guarantee under the supplemental indenture shall be subordinated to such
Restricted Subsidiary's guarantee with respect to such Indebtedness
substantially to the same extent as the Notes are subordinated to such
Indebtedness under this Indenture and (B) if such Indebtedness is by its express
terms subordinated in right of payment to the Notes, any such guarantee of such
Restricted Subsidiary with respect to such Indebtedness shall be subordinated in
right of payment to such Restricted Subsidiary's Guarantee with respect to the
Notes substantially to the same extent as such Indebtedness is subordinated to
the Notes; (ii) such Restricted Subsidiary waives and will not in any manner
whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Restricted Subsidiary as a result of any payment by such Restricted
Subsidiary under its Guarantee; and (iii) such Restricted Subsidiary shall
deliver to the Trustee an opinion of counsel to the effect that (A) such
Guarantee of the Notes has been duly executed and authorized and (B) such
Guarantee of the Notes constitutes a valid, binding and enforceable obligation
of such Restricted Subsidiary, except insofar as enforcement thereof may be
limited by bankruptcy, insolvency or similar laws (including, without
limitation, all laws relating to fraudulent transfers) and except insofar as
enforcement thereof is subject to general principles of equity; provided that
this paragraph (a) shall not be applicable to any guarantee of any Restricted
Subsidiary (x) that (A) existed at the time such Person became a Restricted
Subsidiary of the
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Company and (B) was not incurred in connection with, or in contemplation of,
such Person becoming a Restricted Subsidiary of the Company or (y) that
guarantees the payment of Obligations of the Company or any Restricted
Subsidiary under the Senior Credit Facility or any other bank facility which is
designated as Senior Indebtedness and any refunding, refinancing or replacement
thereof, in whole or in part, provided that such refunding, refinancing or
replacement thereof constitutes Senior Indebtedness and is not incurred pursuant
to a registered offering of securities under the Securities Act or a private
placement of securities (including under Rule 144A) pursuant to an exemption
from the registration requirements of the Securities Act, which private
placement provides for registration rights under the Securities Act (any
guarantee excluded by operations of this clause (y) being an "Excluded
Guarantee").
(b) Notwithstanding the foregoing and the other provisions herein, any
Guarantee by a Restricted Subsidiary of the Notes shall provide by its terms
that it shall be automatically and unconditionally released and discharged upon
(i) any sale, exchange or transfer, to any Person not an Affiliate of the
Company, of all of the Company's Capital Stock in, or all or substantially all
the assets of, such Restricted Subsidiary (which sale, exchange or transfer is
not prohibited by this Indenture) or (ii) the release or discharge of the
guarantee which resulted in the creation of such Guarantee, except a discharge
or release by or as a result of payment under such guarantee.
SECTION 1015. Limitation on Other Senior Subordinated Indebtedness.
The Company shall not, and shall not permit any Guarantor to, directly or
indirectly, incur any Indebtedness (including Acquired Indebtedness) that is
subordinate in right of payment to any Indebtedness of the Company or any
Indebtedness of any Guarantor, as the case may be, unless such Indebtedness is
either (a) pari passu in right of payment with the Notes or such Guarantor's
Guarantee, as the case may be or (b) subordinate in right of payment to the
Notes, or such Guarantor's Guarantee, as the case may be, in the same manner and
at least to the same extent as the Notes are subordinate to Senior Indebtedness
or such Guarantor's Guarantee is subordinate to such Guarantor's Senior
Indebtedness, as the case may be.
SECTION 1016. Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, the Company shall make an
offer to purchase all or any part (equal to $1,000 or an integral multiple
thereof) of the Notes pursuant to the offer described below (the "Change of
Control Offer") at a price in cash (the "Change of Control Payment") equal to
101% of the aggregate principal amount thereof plus accrued and unpaid interest,
if any, to the date of purchase. Within 30 days following any Change of Control,
the Company shall mail a notice to each Holder of Notes issued hereunder in the
manner set forth in Section 106, with a copy to the Trustee, with the following
information: (1) a Change of Control Offer is being made pursuant to this
Section 1016, and that all Notes properly tendered pursuant to such Change of
Control Offer will be accepted for payment; (2) the purchase price and the
purchase date, which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed, except as may be otherwise required by
applicable law (the "Change of Control Payment Date"); (3) any Note not properly
tendered will remain outstanding and continue to accrue interest; (4) unless the
Company defaults in the payment of the Change of Control Payment, all Notes
accepted for payment pursuant to the
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Change of Control Offer will cease to accrue interest on the Change of Control
Payment Date; (5) Holders electing to have any Notes purchased pursuant to a
Change of Control Offer will be required to surrender the Notes, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Notes
completed, to the paying agent specified in the notice at the address specified
in the notice prior to the close of business on the third Business Day preceding
the Change of Control Payment Date; (6) Holders will be entitled to withdraw
their tendered Notes and their election to require the Company to purchase such
Notes, provided that the paying agent receives, not later than the close of
business on the last day of the offer period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes tendered for purchase, and a statement that such Holder is
withdrawing his tendered Notes and his election to have such Notes purchased;
and (7) that Holders whose Notes are being purchased only in part will be issued
new Notes equal in principal amount to the unpurchased portion of the Notes
surrendered, which unpurchased portion must be equal to $1,000 in principal
amount or an integral multiple thereof.
(b) Prior to complying with the provisions of this Section 1016, but in any
event within 30 days following a Change of Control, the Company shall either
repay all outstanding Senior Indebtedness or obtain the requisite consents, if
any, under any outstanding Senior Indebtedness to permit the repurchase of the
Notes required by this Section 1016.
(c) On the Change of Control Payment Date, the Company shall, to the extent
permitted by law, (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying
Agent an amount equal to the aggregate Change of Control Payment in respect of
all Notes or portions thereof so tendered and (3) deliver, or cause to be
delivered, to the Trustee for cancellation the Notes so accepted together with
an Officers' Certificate stating that such Notes or portions thereof have been
tendered to and purchased by the Company. The Paying Agent shall promptly mail
to each Holder of Notes the Change of Control Payment for such Notes, and the
Trustee shall promptly authenticate and mail to each Holder a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered, if any,
provided, that each such new Note shall be in a principal amount of $1,000 or an
integral multiple thereof. The Company shall publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
(d) The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent that such laws or regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with provisions of
this Indenture, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations described
herein by virtue thereof.
SECTION 1017. Asset Sales.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, cause, make or suffer to exist an Asset Sale, unless (x) the
Company, or its Restricted Subsidiaries, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market
value (as determined in good faith by the Company) of the assets sold
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or otherwise disposed of and (y) at least 75% of the consideration therefor
received by the Company, or such Restricted Subsidiary, as the case may be, is
in the form of cash or Cash Equivalents; provided that the amount of (A) any
liabilities (as shown on the Company's or such Restricted Subsidiary's most
recent balance sheet or in the notes thereto) of the Company or any Restricted
Subsidiary (other than liabilities that are by their terms subordinated to the
Notes), that are assumed by the transferee of any such assets, (B) any notes or
other obligations received by the Company or such Restricted Subsidiary from
such transferee that are converted by the Company or such Restricted Subsidiary
into cash (to the extent of the cash received) within 180 days following the
closing of such Asset Sale and (C) any Designated Noncash Consideration received
by the Company or any of its Restricted Subsidiaries in such Asset Sale having
an aggregate fair market value, taken together with all other Designated Noncash
Consideration received pursuant to this clause (C) that is at that time
outstanding, not to exceed 15% of Total Assets at the time of the receipt of
such Designated Noncash Consideration (with the fair market value of each item
of Designated Noncash Consideration being measured at the time received and
without giving effect to subsequent changes in value), shall be deemed to be
cash for purposes of this provision and for no other purpose.
(b) Within 365 days after the Company's or any Restricted Subsidiary's
receipt of the Net Proceeds of any Asset Sale, the Company or such Restricted
Subsidiary may apply the Net Proceeds from such Asset Sale, at its option, (i)
to permanently reduce Obligations under the Senior Credit Facility (and to
correspondingly reduce commitments with respect thereto) or other Senior
Indebtedness or Pari Passu Indebtedness (provided that if the Company shall so
reduce Obligations under Pari Passu Indebtedness, it will equally and ratably
reduce Obligations under the Notes if the Notes are then prepayable or, if the
Notes may not be then prepaid, the Company shall make an offer (in accordance
with the procedures set forth below for an Asset Sale Offer) to all Holders to
purchase at 100% of the principal amount thereof the amount of Notes that would
otherwise be prepaid), (ii) to an investment in any one or more businesses,
capital expenditures or acquisitions of other assets in each case, used or
useful in a Similar Business and/or (iii) to make an investment in properties or
assets that replace the properties and assets that are the subject of such Asset
Sale. Pending the final application of any such Net Proceeds, the Company or
such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving
credit facility, if any, or otherwise invest such Net Proceeds in Cash
Equivalents or Investment Grade Securities. Any Net Proceeds from the Asset Sale
that are not invested as provided and within the time period set forth in the
first sentence of this paragraph shall be deemed to constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $15.0 million,
the Company shall make an offer to all Holders of Notes (an "Asset Sale Offer")
to purchase the maximum principal amount of Notes, that is an integral multiple
of $1,000, that may be purchased out of the Excess Proceeds at an offer price in
cash in an amount equal to 100% of the principal amount thereof, plus accrued
and unpaid interest, if any, to the date fixed for the closing of such offer
(the "Offered Price"). The Company shall commence an Asset Sale Offer with
respect to Excess Proceeds within 10 Business Days after the date on which the
aggregate amount of Excess Proceeds exceeds $15.0 million by giving to each
Holder of the Notes, with a copy to the Trustee, in the manner provided in
Section 106 a notice stating:
(i) that the Holder has the right to require the Company to repurchase such
Holder's Notes at the Offered Price, subject to proration in the event the
Excess Proceeds are less than the aggregate Offered Price of all Notes
tendered;
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(ii) the date of purchase of Notes pursuant to the Asset Sale Offer (the
"Asset Sale Purchase Date"), which shall be no earlier than 30 days nor later
than 60 days from the date such notice is mailed;
(iii) that the Offered Price will be paid to Holders electing to have Notes
purchased on the Asset Sale Purchase Date, provided that a Holder must
surrender its Note to the Paying Agent at the address specified in the notice
prior to the close of business at least five Business Days prior to the Asset
Sale Purchase Date;
(iv) any Note not tendered will continue to accrue interest pursuant to its
terms;
(v) that unless the Company defaults in the payment of the Offered Price,
any Note accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest on and after the Asset Sale Purchase Date;
(vi) that Holders will be entitled to withdraw their tendered Notes and
their election to require the Company to purchase such Notes, provided that
the Company receives, not later than the close of business on the third
Business Day preceding the Asset Sale Purchase Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Notes tendered for purchase, and a statement that such
Holder is withdrawing its election to have such Notes purchased;
(vii) that the Holders whose Notes are being purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered; which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof; and
(viii) the instructions a Holder must follow in order to have his Notes
purchased in accordance with this Section 1017.
To the extent that the aggregate amount of Notes tendered pursuant to an
Asset Sale Offer is less than the Excess Proceeds, the Company may use any
remaining Excess Proceeds for general corporate purposes. If the aggregate
principal amount of Notes surrendered by Holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes to be purchased in the
manner described in Section 1104. Upon completion of any such Asset Sale Offer,
the amount of Excess Proceeds shall be reset at zero.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this Section 1017, the Company shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached its obligations under
this Indenture.
SECTION 1018. Compliance Certificate.
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(a) The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and there is no Default or Event of Default which has occurred
and is continuing in the performance or observance of any of the terms,
provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
(b) The Company shall, so long as any of the Notes are outstanding, deliver
to the Trustee, within 5 Business Days of any Officer becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such Default or
Event of Default.
SECTION 1019. Reports.
Notwithstanding that the Company may not be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on
an annual and quarterly basis on forms provided for such annual and quarterly
reporting pursuant to rules and regulations promulgated by the Commission, the
Company shall file with the Commission (and provide the Trustee and Holders with
copies thereof, without cost to each Holder, within 15 days after it files them
with the Commission), (i) within 90 days after the end of each fiscal year,
annual reports on Form 1O-K (or any successor or comparable form) containing the
information required to be contained therein (or required in such successor or
comparable form); (ii) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, reports on Form 1O-Q (or any successor or
comparable form); (iii) promptly from time to time after the occurrence of an
event required to be therein reported, such other reports on Form 8-K (or any
successor or comparable form); and (iv) any other information, documents and
other reports which the Company would be required to file with the Commission if
it were subject to Section 13 or 15(d) of the Exchange Act; provided, however,
the Company shall not be so obligated to file such reports with the Commission
if the Commission does not permit such filing, in which event the Company will
make available such information to prospective purchasers of Notes, in addition
to providing such information to the Trustee and the Holders, in each case
within 15 days after the time the Company would be required to file such
information with the Commission, if it were subject to Sections 13 or 15(d) of
the Exchange Act. The Company shall at all times comply with TIA ss. 314(a).
SECTION 1020. Further Assurances.
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The Company shall, upon the request of the Trustee, execute and deliver
such further instruments and perform such further acts as may reasonably be
necessary or proper to carry out more effectively the provisions of this
Indenture.
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Redemption.
The Notes may or shall, as the case may be, be redeemed, as a whole or from
time to time in part, subject to the conditions and at the Redemption Prices
specified in the form of Note, together with accrued interest to the Redemption
Date specified in the form of the Note.
SECTION 1102. Applicability of Article.
Redemption of Notes at the election of the Company or otherwise, as
permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes pursuant to Section 1101
shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Notes to be redeemed and shall deliver to the Trustee
such documentation and records as shall enable the Trustee to select the Notes
to be redeemed pursuant to Section 1104.
SECTION 1104. Selection by Trustee of Notes to Be Redeemed.
If less than all the Notes are to be redeemed, selection of such Notes for
redemption shall be made by the Trustee not more than 60 days prior to the
Redemption Date, from the Outstanding Notes not previously called for
redemption, in compliance with the requirements of the principal national
securities exchange, if any, on which such Notes are listed, or, if such Notes
are not so listed, on a pro rata basis, by lot or by such other method as the
Trustee shall deem fair and appropriate (and in such manner as complies with
applicable legal requirements) and which may provide for the selection for
redemption of portions of the principal of Notes; provided, however, that no
Notes of less than $1,000 shall be redeemed in part.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Notes selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to redemption of Notes shall relate, in the case of any
Note redeemed or to
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be redeemed only in part, to the portion of the principal amount of such Note
which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given in the manner provided for in Section
106 at least 30 but not more than 60 days prior to the Redemption Date, to each
Holder of Notes to be redeemed at such Holder's registered address. The Trustee
shall give notice of redemption in the Company's name and at the Company's
expense; provided, however, that the Company shall deliver to the Trustee, at
least 30 days prior to the Redemption Date, an Officers' Certificate requesting
that the Trustee give such notice and setting forth the information to be stated
in such notice as provided in the following items.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1107, if any,
(3) if less than all Outstanding Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be redeemed, as
well as the aggregate principal amount of Notes to be redeemed and the
aggregate principal amount of Notes to be outstanding after such partial
redemption,
(4) in case any Note is to be redeemed in part only, the notice which
relates to such Note shall state that on and after the Redemption Date, upon
surrender of such Note, the holder will receive, without charge, a new Note or
Notes of authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date the Redemption Price (and accrued interest,
if any, to the Redemption Date payable as provided in Section 1107) will
become due and payable upon each such Note, or the portion thereof, to be
redeemed, and, unless the Company defaults in making the redemption payment,
that interest on Notes called for redemption (or the portion thereof) will
cease to accrue on and after said date,
(6) the place or places where such Notes are to be surrendered for payment
of the Redemption Price and accrued interest, if any,
(7) the name and address of the Paying Agent,
(8) that Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price,
(9) the CUSIP number, and that no representation is made as to the accuracy
or correctness of the CUSIP number, if any, listed in such notice or printed
on the Notes, and
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(10) the paragraph of the Notes pursuant to which the Notes are to be
redeemed.
SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and accrued interest on, all the
Notes which are to be redeemed on that date.
SECTION 1107. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Notes shall
cease to bear interest. Upon surrender of any such Note for redemption in
accordance with said notice, such Note shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Notes, or one or more Predecessor Notes, registered as such at the close of
business on the relevant Regular Record Date or Special Record Date, as the case
may be, according to their terms and the provisions of Section 308.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate borne by the Notes.
SECTION 1108. Notes Redeemed in Part.
Any Note which is to be redeemed only in part (pursuant to the provisions
of this Article) shall be surrendered at the office or agency of the Company
maintained for such purpose pursuant to Section 1002 (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Note without service charge, a new Note or Notes, of any authorized
denomination as requested by such Holder, in an aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Note so
surrendered; provided that each such new Note will be in a principal amount of
$1,000 or integral multiple thereof.
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ARTICLE TWELVE
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company and the Guarantors may, at their option by Board Resolution, at
any time, with respect to the Notes, elect to have either Section 1202 or
Section 1203 be applied to all Outstanding Notes upon compliance with the
conditions set forth below in this Article Twelve.
SECTION 1202. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 1201 of the option applicable to
this Section 1202, the Company shall be deemed to have been discharged from its
obligations with respect to all Outstanding Notes and each Guarantor shall be
deemed to have been discharged from its obligations with respect to its
Guarantee on the date the conditions set forth in Section 1204 are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means
that the Company and any such Guarantor shall be deemed to have paid and
discharged the entire Indebtedness represented by the Outstanding Notes, which
shall thereafter be deemed to be "Outstanding" only for the purposes of Section
1205 and the other Sections of this Indenture referred to in (A) and (B) below,
and to have satisfied all its other obligations under such Notes and this
Indenture insofar as such Notes are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same), except
for the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding Notes to receive payments in
respect of the principal of, premium, if any, and interest on such Notes when
such payments are due, solely from the trust fund described in Section 1204 and
as more fully set forth in such Section, (B) the Company's obligations with
respect to such Notes under Sections 304, 305, 307, 1002 and 1003, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder, and the
Company's obligations in connection therewith and (D) this Article Twelve.
Subject to compliance with this Article Twelve, the Company may exercise
its option under this Section 1202 notwithstanding the prior exercise of its
option under Section 1203 with respect to the Notes.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise under Section 1201 of the option applicable to
this Section 1203, the Company and each Guarantor shall be released from its
obligations under any covenant contained in Section 801 and in Sections 1009
through 1019 with respect to the Outstanding Notes on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"),
and the Notes shall thereafter be deemed not to be "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder (it being
understood that such Notes will not be outstanding for accounting purposes). For
this purpose, such Covenant Defeasance means that,
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with respect to the Outstanding Notes, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 501(iii), but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby.
SECTION 1204. Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 1202
or Section 1203 to the Outstanding Notes:
(i) The Company must irrevocably deposit with the Trustee (or another
trustee satisfying the requirements of this Indenture who shall agree to
comply with the provisions of this Article Twelve applicable to it) as trust
funds in trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders
of such Notes, cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient, in the opinion of
a nationally recognized firm of independent public accountants selected by the
Company, to pay the principal of, premium, if any, and interest due on the
Outstanding Notes on the Stated Maturity or on the applicable Redemption Date
as the case may be, of such principal, premium, if any, or interest on the
Outstanding Notes;
(ii) in the case of Legal Defeasance, the Company shall have delivered to
the Trustee an Opinion of Counsel in the United States reasonably acceptable
to the Trustee confirming that, subject to customary assumptions and
exclusions, (A) the Company has received from, or there has been published by,
the United States Internal Revenue Service a ruling or (B) since the Issuance
Date, there has been a change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel
in the United States shall confirm that, subject to customary assumptions and
exclusions, the Holders of the Outstanding Notes will not recognize income,
gain or loss for U.S. federal income tax purposes as a result of such Legal
Defeasance and will be subject to U.S. federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
Legal Defeasance had not occurred;
(iii) in the case of Covenant Defeasance, the Company shall have delivered
to the Trustee an Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that, subject to customary assumptions
and exclusions, the Holders of the Outstanding Notes will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of such
Covenant Defeasance and will be subject to such tax on the same amounts, in
the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(iv) no Default or Event of Default shall have occurred and be continuing
on the date of such deposit or insofar as Events of Default from bankruptcy or
insolvency
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events are concerned, at any time in the period ending on the 91st day after
the date of deposit;
(v) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any material agreement
or instrument (other than this Indenture) to which the Company or any
Guarantor is a party or by which the Company or any Guarantor is bound;
(vi) the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that, as of the date of such opinion and subject to customary
assumptions and exclusions following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally under any applicable
U.S. federal or state law, and that the Trustee has a perfected security
interest in such trust funds for the ratable benefit of the Holders;
(vii) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of defeating, hindering, delaying or defrauding any creditors of the
Company or any Guarantor or others; and
(viii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel in the United States (which Opinion of
Counsel may be subject to customary assumptions and exclusions) each stating
that all conditions precedent provided for or relating to the Legal Defeasance
or the Covenant Defeasance, as the case may be, have been complied with.
SECTION 1205. Deposited Money and U.S. Government Securities to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
1205, the "Trustee") pursuant to Section 1204 in respect of the Outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Notes of all sums due and
to become due thereon in respect of principal (and premium, if any) and
interest, but such money need not be segregated from other funds except to the
extent required by law. Money and Government Securities so held in trust are not
subject to Article Thirteen.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Securities deposited
pursuant to Section 1204 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the Outstanding Notes.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S.
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Government Securities held by it as provided in Section 1204 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent legal defeasance or covenant defeasance, as applicable, in
accordance with this Article.
SECTION 1206. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money or
Government Securities in accordance with Section 1205 by reason of any legal
proceeding or by any reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 1202 or 1203, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1205; provided, however, that if the Company makes any payment of principal of
(or premium, if any) or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money and Government Securities held
by the Trustee or Paying Agent.
ARTICLE THIRTEEN
SUBORDINATION OF NOTES
SECTION 1301. Notes Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Note, by his
acceptance thereof, likewise covenants and agrees, for the benefit of the
holders, from time to time, of Senior Indebtedness that, to the extent and in
the manner hereinafter set forth in this Article, the Indebtedness represented
by the Notes and the payment of the principal of (and premium, if any) and
interest on each and all of the Notes and all other Subordinated Note
Obligations are hereby expressly made subordinate and subject in right of
payment as provided in this Article to the prior payment in full in cash
equivalents of all Senior Indebtedness, whether outstanding on the date of this
Indenture or thereafter incurred.
SECTION 1302. Payment over of Proceeds upon Dissolution, Etc.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, an
assignment for the benefit of creditors or any marshalling of the Company's
assets and liabilities:
(1) the holders of Senior Indebtedness shall be entitled to receive payment
in full in cash equivalents of such Senior Indebtedness before the Holders of
Notes shall be entitled to receive any payment with respect to the
Subordinated Note Obligations (except that Holders of Notes may receive (i)
shares of stock and any debt securities that are
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subordinated at least to the same extent as the Notes to (a) Senior
Indebtedness and (b) any securities issued in exchange for Senior Indebtedness
and (ii) payments and other distributions made from the trusts described in
Article Twelve); and
(2) until all Obligations with respect to Senior Indebtedness (as provided
in subsection (1) above) are paid in full in cash equivalents, any
distribution to which Holders would be entitled but for this Article shall be
made to holders of Senior Indebtedness (except that Holders of Notes may
receive (i) shares of stock and any debt securities that are subordinated to
at least the same extent as the Notes to (a) Senior Indebtedness and (b) any
securities issued in exchange for Senior Indebtedness and (ii) payments and
other distributions made from the trusts described in Article Twelve) as their
interests may appear.
SECTION 1303. Suspension of Payment When Senior Indebtedness in Default.
The Company may not make any payment upon or distribution in respect of the
Subordinated Note Obligations (other than (i) securities that are subordinated
to at least the same extent as the Notes to (a) Senior Indebtedness and (b) any
securities issued in exchange for Senior Indebtedness and (ii) payments and
other distributions made from the trusts described in Article Twelve) until all
Senior Indebtedness has been paid in full in cash equivalents if:
(i) a default in the payment of any principal of, premium, if any, or
interest on, or of unreimbursed amounts under drawn letters of credit or in
respect of banker's acceptances or fees relating to letters of credit or
banker's acceptances constituting, Designated Senior Indebtedness occurs and
is continuing beyond any applicable grace period in the agreement, indenture
or other document governing such Designated Senior Indebtedness (a "payment
default"); or
(ii) a default, other than a payment default, on Designated Senior
Indebtedness occurs and is continuing that then permits holders of the
Designated Senior Indebtedness to accelerate its maturity (a "non-payment
default") and the Trustee receives a notice of the default (a "Payment
Blockage Notice") from a Person who may give it pursuant to Section 1313
hereof. No new period of payment blockage may be commenced unless and until
365 days have elapsed since the effectiveness of the immediately preceding
Payment Blockage Notice. However, if any Payment Blockage Notice within such
365-day period is given by or on behalf of any holders of Designated Senior
Indebtedness (other than the Bank Agent under the Senior Credit Facility), the
Bank Agent may give another Payment Blockage Notice within such period. In no
event, however, may the total number of days during which any Payment Blockage
Period or Periods is in effect exceed 179 days in the aggregate during any 365
consecutive day period. No nonpayment default that existed or was continuing
on the date of delivery of any Payment Blockage Notice to the Trustee shall
be, or be made, the basis for a subsequent Payment Blockage Notice unless such
default shall have been cured or waived for a period of not less than 90 days.
The Company may and shall resume payments on and distributions in respect
of the Notes and may acquire them upon the earlier of:
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(1) in the case of a payment default, upon the date on which such default
is cured or waived or shall have ceased to exist or such Designated Senior
Indebtedness shall have been discharged or paid in full in cash equivalents,
or
(2) in case of a nonpayment default, the earlier of (x) the date on which
such nonpayment default is cured or waived, (y) 179 days after the date on
which the applicable Payment Blockage Notice is received (each such period,
the "Payment Blockage Period") or (z) the date such Payment Blockage Period
shall be terminated by written notice to the Trustee from the requisite
holders of such Designated Senior Indebtedness necessary to terminate such
period or from their Representative, after which the Company shall resume
making any and all required payments in respect of the Notes, including any
missed payments,
if this Article otherwise permits the payment, distribution or acquisition at
the time of such payment or acquisition.
SECTION 1304. Acceleration of Notes.
If payment of the Notes is accelerated because of an Event of Default, the
Company shall promptly notify holders of Senior Indebtedness of the
acceleration.
SECTION 1305. When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder receives any payment of any
Subordinated Note Obligations at a time when such payment is prohibited by
Sections 1302 or 1303, such payment shall be held by the Trustee or such Holder,
for the benefit of, and shall be paid forthwith over and delivered, upon written
request, to, the holders of Senior Indebtedness as their interests may appear or
to their Representative under the indenture or other agreement (if any) pursuant
to which such Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay such Senior Indebtedness in full
in cash equivalents in accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the benefit of holders of Senior
Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform only such obligations on the part of the Trustee as are specifically
set forth in this Article Thirteen, and no implied covenants or obligations with
respect to the holders of Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Indebtedness, and shall not be liable to any such
holders if the Trustee shall pay over or distribute to or on behalf of Holders
or the Company or any other Person money or assets to which any holders of
Senior Indebtedness shall be entitled by virtue of this Article Thirteen, except
if such payment is made as a result of the willful misconduct or gross
negligence of the Trustee.
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SECTION 1306. Notice by Company.
The Company shall promptly notify the Trustee and the Paying Agent of any
facts known to the Company that would cause a payment of any Obligations with
respect to the Notes that violate this Article, but failure to give such notice
shall not affect the subordination of the Notes to the Senior Indebtedness as
provided in this Article Thirteen.
SECTION 1307. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Notes shall prevent the Company, at any time except during the pendency
of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 1302 or under the conditions
described in Section 1303, from making payments at any time of principal of (and
premium, if any, on) or interest on the Notes.
SECTION 1308. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness in cash
equivalents, the Holders shall be subrogated (equally and ratably with the
holders of all Pari Passu Indebtedness of the Company) to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
Subordinated Note Obligations shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of Senior Indebtedness
of any cash, property or securities to which the Holders of the Notes or the
Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of
Senior Indebtedness by Holders of the Notes or on their behalf or by the
Trustee, shall, as among the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Notes, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness; it
being understood that the provisions of this Article are intended solely for the
purpose of determining the relative rights of the Holders of the Notes, on the
one hand, and the holders of Senior Indebtedness, on the other hand.
SECTION 1309. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders on the one hand and the holders
of Senior Indebtedness on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Notes is intended to or shall (a) impair,
as between the Company and the Holders, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders the principal of (and premium,
if any) and interest on the Notes as and when the same shall become due and
payable in accordance with their terms; or (b) affect the relative rights
against the Company of the Holders and creditors of the Company other than their
rights in relation to holders of Senior Indebtedness; or (c) prevent the Trustee
or any Holder from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness. If the Company fails because of
this Article
<PAGE>
92
to pay principal (or premium, if any) or interest on a Note on the due date, the
failure is still a Default or Event of Default.
SECTION 1310. Trustee to Effectuate Subordination.
Each Holder of a Note by his acceptance thereof authorizes and directs the
Trustee on such Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes. If the
Trustee does not file a proper proof of claim or proof of debt in the form
required in any proceeding referred to in Section 504 hereof at least 30 days
before the expiration of the time to file such claim, the Bank Agent (if the
Senior Credit Facility is still outstanding) is hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Notes.
SECTION 1311. Subordination May Not Be Impaired by Company.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
SECTION 1312. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to in
this Article Thirteen, the Trustee and the Holders shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to the Holders for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other acts pertinent thereto or to this Article
Thirteen.
SECTION 1313. Notice to Trustee.
(a) The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Notes. Notwithstanding the provisions of this Article
or any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Notes, unless and until the
Trustee shall have received written notice thereof from the Company, the Bank
Agent or a holder of Senior Indebtedness or from any trustee, fiduciary or agent
therefor; and, prior to the receipt of any such written notice, the Trustee,
subject to TIA Sections 315(a)
<PAGE>
93
through 315(d), shall be entitled in all respects to assume that no such facts
exist; provided, however, that, if the Trustee shall not have received the
notice provided for in this Section at least three Business Days prior to the
date upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium, if
any) or interest on any Note), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purpose for which such money was received and
shall not be affected by any notice to the contrary which may be received by it
within three Business Days prior to such date.
(b) Subject to TIA Sections 315(a) through 315(d), the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 1314. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to TIA Sections 315(a) through 315(d), and
the Holders of the Notes shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Notes, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article;
provided that such court, trustee, receiver, custodian, assignee, agent or other
Person has been apprised of, or the order, decree or certificate makes reference
to, the provisions of this Article.
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94
SECTION 1315. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustees' Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
SECTION 1316. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee; provided, however, that
Section 1315 shall not apply to the Company or any Affiliate of the Company if
it or such Affiliate acts as Paying Agent.
SECTION 1317. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the Trustee or
the Holders of Notes to take any action to accelerate the maturity of the Notes
pursuant to Article Five or to pursue any rights or remedies hereunder or under
applicable law, except as provided in Article Five.
SECTION 1318. Modification of Terms of Senior Indebtedness.
Any renewal or extension of the time of payment of any Senior Indebtedness
or the exercise by the holders of Senior Indebtedness of any of their rights
under any instrument creating or evidencing Senior Indebtedness, including,
without limitation, the waiver of default thereunder, may be made or done all
without notice to or assent from the Holders or the Trustee.
No compromise, alteration, amendment, modification, extension, renewal or
other change of, or waiver, consent or other action in respect of, any liability
or obligation under or in respect of, or of any of the terms, covenants or
conditions of any indenture or other instrument under which any Senior
Indebtedness is outstanding or of such Senior Indebtedness, whether or not such
release is in accordance with the provisions of any applicable document, shall
in any way alter or affect any of the provisions of this Article Thirteen or of
the Notes relating to the subordination thereof.
<PAGE>
95
SECTION 1319. Certain Terms.
For purposes of this Article Thirteen, (i) "cash equivalents" means
Government Securities with maturities of nine months or less and (ii) unless the
context clearly indicates otherwise, any payment or distribution to the Trustee
or any Holder in respect of any Subordinated Note Obligation shall include any
payment or distribution of any kind or character from any source, whether in
cash, property or securities, by set-off or otherwise, including any repurchase,
redemption or acquisition of the Notes and any direct or indirect payment
payable by reason of any other Indebtedness or Obligation being subordinated to
the Notes.
SECTION 1320. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments from
cash or the proceeds of Government Securities held in trust under Article Twelve
hereof by the Trustee (or other qualifying trustee) and which were deposited in
accordance with the terms of Article Twelve hereof and not in violation of
Section 1303 hereof for the payment of principal of (and premium, if any) and
interest on the Notes shall not be subordinated to the prior payment of any
Senior Indebtedness or subject to the restrictions set forth in this Article
Thirteen, and none of the Holders shall be obligated to pay over any such amount
to the Company or any holder of Senior Indebtedness or any other creditor of the
Company.
This Indenture may be signed in any number of counterparts each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
<PAGE>
96
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
AMPHENOL CORPORATION,
a Delaware corporation
By: /s/ Edward G. Jepsen
----------------------------------------
Name: Edward G. Jepsen
Title: Executive Vice President and
Chief Financial Officer
IBJ SCHRODER BANK & TRUST COMPANY,
a New York banking corporation, as Trustee
By: /s/ Barbara McCluskey
----------------------------------------
Name: Barbara McCluskey
Title: Vice President
<PAGE>
EXECUTION COPY
AMPHENOL CORPORATION
as Issuer
and
IBJ Schroder Bank & Trust Company
as Trustee
--------------------
Indenture
Dated as of May 15, 1997
---------------------
$240,000,000
9 7/8% Senior Subordinated Notes due May 15, 2007
<PAGE>
AMPHENOL CORPORATION*
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of May 15, 1997
Trust Indenture
Act Section Indenture Section
ss. 310(a)(1) ........................................... 608
(a)(2) ........................................... 608
(b) ........................................... 609
ss. 311 ........................................... 101
ss. 312(a) ........................................... 701
(c) ........................................... 702
ss. 313(a) ........................................... 703
(c) ........................................... 703
ss. 314(a)(4) ........................................... 1010(a)
(c)(1) ........................................... 102
(c)(2) ........................................... 102
(e) ........................................... 102
ss. 315(a) ........................................... 601(a)
(b) ........................................... 602
(c) ........................................... 601(b)
(d) ........................................... 601(c), 603
ss. 316(a)(last
sentence) ........................................... 101
(a)(1)(A) ........................................... 502, 512
(a)(1)(B) ........................................... 513
(b) ........................................... 508
(c) ........................................... 104(d)
ss. 317(a)(1) ........................................... 503
(a)(2) ........................................... 504
(b) ........................................... 1003
ss. 318(a) ........................................... 111
- ------------------
*Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS*
Page
PARTIES...................................................................... 1
RECITALS OF THE COMPANY...................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions............................................... 1
Acquired Indebtedness............................................. 2
Act............................................................... 2
Affiliate......................................................... 2
Agent............................................................. 2
Asset Sale........................................................ 2
Authenticating Agent.............................................. 3
Bank Agent........................................................ 3
Bankruptcy Law.................................................... 3
Board of Directors................................................ 3
Board Resolution.................................................. 3
Business Day...................................................... 3
Capital Stock..................................................... 3
Capitalized Lease Obligation...................................... 3
Cash Equivalents.................................................. 4
Change of Control................................................. 4
Commission........................................................ 4
Common Stock...................................................... 4
Company........................................................... 4
Company Request or Company Order.................................. 4
Consolidated Depreciation and Amortization Expense................ 5
Consolidated Interest Expense..................................... 5
Consolidated Net Income........................................... 5
Contingent Obligations............................................ 6
Corporate Trust Office............................................ 6
Custodian......................................................... 6
Default........................................................... 6
Defaulted Interest................................................ 6
Depositary........................................................ 6
Designated Noncash Consideration.................................. 6
Designated Preferred Stock........................................ 7
Designated Senior Indebtedness.................................... 7
Disqualified Stock................................................ 7
- ------------------
*Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
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EBITDA............................................................ 7
Equity Interests.................................................. 8
Equity Offering................................................... 8
Event of Default.................................................. 8
Exchange Act...................................................... 8
Existing Indebtedness............................................. 8
Existing Notes.................................................... 8
Existing Senior Notes............................................. 8
Financings........................................................ 8
Fixed Charge Coverage Ratio....................................... 8
Fixed Charges..................................................... 9
Foreign Subsidiary................................................ 9
GAAP.............................................................. 9
Government Securities............................................. 10
guarantee......................................................... 10
Guarantee......................................................... 10
Guarantor......................................................... 10
Hedging Obligations............................................... 10
Holder............................................................ 10
Indebtedness...................................................... 11
Indenture......................................................... 11
Independent Financial Advisor..................................... 11
Interest Payment Date............................................. 11
Investment Grade Securities....................................... 11
Investments....................................................... 11
Issuance Date..................................................... 12
KKR............................................................... 12
Lien.............................................................. 12
Management Group.................................................. 12
Maturity.......................................................... 12
Merger............................................................ 12
Moody's........................................................... 12
Net Income........................................................ 13
Net Proceeds...................................................... 13
Note Register and Note Registrar.................................. 13
Notes............................................................. 13
Obligations....................................................... 13
Officer........................................................... 13
Officers' Certificate............................................. 13
Opinion of Counsel................................................ 13
Outstanding....................................................... 14
Pari Passu Indebtedness........................................... 14
Paying Agent...................................................... 15
Permitted Holders................................................. 15
Permitted Investments............................................. 15
ii
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Person............................................................ 16
Predecessor Note.................................................. 16
preferred stock................................................... 16
Prospectus........................................................ 16
Receivables Facility.............................................. 16
Receivables Fees.................................................. 16
Redemption Date................................................... 16
Redemption Price.................................................. 16
Regular Record Date............................................... 16
Related Parties................................................... 16
Representative.................................................... 16
Repurchase Offer.................................................. 17
Responsible Officer............................................... 17
Restricted Investment............................................. 17
Restricted Subsidiary............................................. 17
S&P............................................................... 17
Securities Act.................................................... 17
Senior Credit Facility............................................ 17
Senior Indebtedness............................................... 17
Significant Subsidiary............................................ 18
Similar Business.................................................. 18
Special Record Date............................................... 18
Stated Maturity................................................... 18
Subordinated Indebtedness......................................... 18
Subordinated Note Obligations..................................... 18
Subsidiary........................................................ 18
Total Assets...................................................... 19
Trust Indenture Act or TIA........................................ 19
Trustee........................................................... 19
Unrestricted Subsidiary........................................... 19
Vice President.................................................... 20
Voting Stock...................................................... 20
Weighted Average Life to Maturity................................. 20
Wholly Owned Restricted Subsidiary................................ 20
Wholly Owned Subsidiary........................................... 20
SECTION 102. Compliance Certificates and Opinions...................... 20
SECTION 103. Form of Documents Delivered to Trustee.................... 21
SECTION 104. Acts of Holders........................................... 21
SECTION 105. Notices, Etc., to Trustee, the Company and any Guarantor.. 23
SECTION 106. Notice to Holders; Waiver................................. 23
SECTION 107. Effect of Headings and Table of Contents.................. 24
SECTION 108. Successors and Assigns.................................... 24
SECTION 109. Separability Clause....................................... 24
SECTION 110. Benefits of Indenture..................................... 24
SECTION 111. Governing Law............................................. 24
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SECTION 112. Legal Holidays............................................ 24
SECTION 113. No Personal Liability of Directors, Officers,
Employees, Stockholders or Incorporators............... 25
SECTION 114. Counterparts.............................................. 25
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally........................................... 25
SECTION 202. Legend.................................................... 26
SECTION 203. Form of Face of Note...................................... 27
SECTION 204. Form of Reverse of Note................................... 29
SECTION 205. Form of Trustee's Certificate of Authentication........... 34
ARTICLE THREE
THE NOTES
SECTION 301. Title and Terms........................................... 35
SECTION 302. Denominations............................................. 36
SECTION 303. Execution, Authentication, Delivery and Dating............ 36
SECTION 304. Temporary Notes........................................... 37
SECTION 305. Registration, Registration of Transfer and Exchange....... 38
SECTION 306. Book-Entry Provisions for the Global Note................. 39
SECTION 307. Mutilated, Destroyed, Lost and Stolen Notes............... 40
SECTION 308. Payment of Interest; Interest Rights Preserved............ 41
SECTION 309. Persons Deemed Owners..................................... 42
SECTION 310. Cancellation.............................................. 42
SECTION 311. Computation of Interest................................... 42
SECTION 312. CUSIP Numbers............................................. 42
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture................... 43
SECTION 402. Application of Trust Money................................ 44
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default......................................... 45
SECTION 502. Acceleration of Maturity; Rescission and Annulment........ 46
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SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee................................. 48
SECTION 504. Trustee May File Proofs of Claim.......................... 48
SECTION 505. Trustee May Enforce Claims Without Possession of Notes.... 49
SECTION 506. Application of Money Collected............................ 49
SECTION 507. Limitation on Suits....................................... 50
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest........................ 50
SECTION 509. Restoration of Rights and Remedies........................ 51
SECTION 510. Rights and Remedies Cumulative............................ 51
SECTION 511. Delay or Omission Not Waiver.............................. 51
SECTION 512. Control by Holders........................................ 51
SECTION 513. Waiver of Past Defaults................................... 52
SECTION 514. Waiver of Stay or Extension Laws.......................... 52
SECTION 515. Undertaking for Costs..................................... 52
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities....................... 53
SECTION 602. Notice of Defaults........................................ 54
SECTION 603. Certain Rights of Trustee................................. 54
SECTION 604. Trustee Not Responsible for Recitals or
Issuance of Notes...................................... 56
SECTION 605. May Hold Notes............................................ 56
SECTION 606. Money Held in Trust....................................... 56
SECTION 607. Compensation and Reimbursement............................ 56
SECTION 608. Corporate Trustee Required; Eligibility................... 57
SECTION 609. Resignation and Removal; Appointment of Successor......... 58
SECTION 610. Acceptance of Appointment by Successor.................... 59
SECTION 611. Merger, Conversion, Consolidation or
Succession to Business................................. 59
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses............ 60
SECTION 702. Disclosure of Names and Addresses of Holders.............. 60
SECTION 703. Reports by Trustee........................................ 60
ARTICLE EIGHT
MERGER, CONSOLIDATION, OR SALE OF ASSETS
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms...... 60
SECTION 802. Successor Substituted..................................... 62
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ARTICLE NINE
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
SECTION 901. Supplemental Indentures Without Consent of Holders........ 62
SECTION 902. Supplemental Indentures with Consent of Holders........... 63
SECTION 903. Execution of Supplemental Indentures...................... 64
SECTION 904. Effect of Supplemental Indentures......................... 64
SECTION 905. Conformity with Trust Indenture Act....................... 64
SECTION 906. Reference in Notes to Supplemental Indentures............. 65
SECTION 907. Notice of Supplemental Indentures......................... 65
SECTION 908. Effect on Senior Indebtedness............................. 65
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and Interest...... 65
SECTION 1002. Maintenance of Office or Agency.......................... 66
SECTION 1003. Money for Note Payments to Be Held in Trust.............. 66
SECTION 1004. Corporate Existence...................................... 68
SECTION 1005. Taxes.................................................... 68
SECTION 1006. Maintenance of Properties................................ 68
SECTION 1007. Insurance................................................ 68
SECTION 1008. Compliance with Laws..................................... 69
SECTION 1009. Limitation on Restricted Payments........................ 69
SECTION 1010. Limitation on Incurrence of Indebtedness
and Issuance of Disqualified Stock..................... 73
SECTION 1011. Liens.................................................... 77
SECTION 1012. Transactions with Affiliates............................. 77
SECTION 1013. Dividend and Other Payment Restrictions
Affecting Subsidiaries................................. 78
SECTION 1014. Limitation on Guarantees of Indebtedness by Restricted
Subsidiaries........................................... 80
SECTION 1015. Limitation on Other Senior Subordinated Indebtedness..... 81
SECTION 1016. Offer to Repurchase Upon Change of Control............... 81
SECTION 1017. Asset Sales.............................................. 82
SECTION 1018. Compliance Certificate................................... 84
SECTION 1019. Reports.................................................. 85
SECTION 1020. Further Assurances....................................... 85
ARTICLE ELEVEN
vi
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REDEMPTION OF NOTES
SECTION 1101. Redemption............................................... 86
SECTION 1102. Applicability of Article................................. 86
SECTION 1103. Election to Redeem; Notice to Trustee.................... 86
SECTION 1104. Selection by Trustee of Notes to Be Redeemed............. 86
SECTION 1105. Notice of Redemption..................................... 86
SECTION 1106. Deposit of Redemption Price.............................. 88
SECTION 1107. Notes Payable on Redemption Date......................... 88
SECTION 1108. Notes Redeemed in Part................................... 88
ARTICLE TWELVE
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect Legal Defeasance or Covenant
Defeasance............................................. 89
SECTION 1202. Legal Defeasance and Discharge........................... 89
SECTION 1203. Covenant Defeasance...................................... 89
SECTION 1204. Conditions to Legal Defeasance or Covenant Defeasance.... 90
SECTION 1205. Deposited Money and U.S. Government Securities to
Be Held in Trust; Other Miscellaneous Provisions....... 91
SECTION 1206. Reinstatement............................................ 92
ARTICLE THIRTEEN
SUBORDINATION OF NOTES
SECTION 1301. Notes Subordinate to Senior Indebtedness................. 92
SECTION 1302. Payment over of Proceeds upon Dissolution, Etc........... 92
SECTION 1303. Suspension of Payment When Senior
Indebtedness in Default................................ 93
SECTION 1304. Acceleration of Notes.................................... 94
SECTION 1305. When Distribution Must Be Paid Over...................... 94
SECTION 1306. Notice by Company........................................ 95
SECTION 1307. Payment Permitted If No Default.......................... 95
SECTION 1308. Subrogation to Rights of Holders of Senior
Indebtedness........................................... 95
SECTION 1309. Provisions Solely to Define Relative Rights.............. 96
SECTION 1310. Trustee to Effectuate Subordination...................... 96
SECTION 1311. Subordination May Not Be Impaired by Company............. 96
SECTION 1312. Distribution or Notice to Representative................. 96
SECTION 1313. Notice to Trustee........................................ 97
SECTION 1314. Reliance on Judicial Order or Certificate of
Liquidating Agent...................................... 97
SECTION 1315. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustees' Rights....................... 98
SECTION 1316. Article Applicable to Paying Agents...................... 98
vii
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SECTION 1317. No Suspension of Remedies................................ 98
SECTION 1318. Modification of Terms of Senior Indebtedness............. 98
SECTION 1319. Certain Terms............................................ 99
SECTION 1320. Trust Moneys Not Subordinated............................ 99
viii
<PAGE>
Exhibit 99.4
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of May 19, 1997 and entered into
by and among AMPHENOL CORPORATION, a Delaware corporation ("Company"), AMPHENOL
HOLDING UK, LIMITED, a limited liability company incorporated under the laws of
England and Wales ("UK Holding"), AMPHENOL COMMERCIAL & INDUSTRIAL UK, LIMITED,
a limited liability company incorporated under the laws of England and Wales
("ACI"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (each
individually referred to herein as a "Lender" and collectively as "Lenders"),
THE CHASE MANHATTAN BANK ("Chase"), as syndication agent (in such capacity,
"Syndication Agent"), THE BANK OF NEW YORK ("BNY"), as documentation agent (in
such capacity, "Documentation Agent"), and BANKERS TRUST COMPANY ("BTCo"), as
administrative agent for Lenders (in such capacity, "Administrative Agent") and
as the initial collateral agent for Lenders.
R E C I T A L S
WHEREAS, Newco (this and other capitalized terms used in these
recitals without definition being used as defined in subsection 1.1) has been
formed by Affiliates of KKR for the purpose of acquiring, in the aggregate, not
less than 75% of the Post-Merger Shares;
WHEREAS, on or before the Closing Date, Affiliates of KKR will make
a cash investment in Newco of not less than $341,000,000 (the "Newco Equity
Amount") in consideration for all of the outstanding common stock of Newco;
WHEREAS, on or before the Closing Date, (i) Management Investors may
(a) elect to retain all or a portion of the Pre-Merger Shares held by Management
Investors in accordance with the terms of the Merger Agreement and the
Management Subscription Agreements and (b) purchase additional Post-Merger
Shares pursuant to the terms of the Management Subscription Agreements in an
aggregate amount such that, when added to the Post-Merger Shares retained by
Management Investors after consummation of the Merger as a result of the
election described in the foregoing clause (a), Management Investors will have
an aggregate investment in Post-Merger Shares equal in value to approximately
$6,500,000, and (ii) Company will issue and sell not less than $240,000,000 in
aggregate principal amount of New Sub Debt;
WHEREAS, (i) on the Closing Date, Newco will be merged with and into
Company pursuant to the Merger Agreement, with Company being the surviving
corporation in the Merger and with Individual Seller and Existing Public
Stockholders receiving cash consideration and retaining Post-Merger Shares in
the respective amounts
1
<PAGE>
and ratable proportions determined in accordance with the provisions of the
Merger Agreement, and (ii) within 35 days after the Closing Date, an Affiliate
of KKR may purchase any Post-Merger Shares retained by Individual Seller
pursuant to the terms of the Stockholders Agreement;
WHEREAS, Lenders have agreed to extend certain credit facilities to
Company, the proceeds of which will be used (i) together with the proceeds of
the issuance and sale of the New Sub Debt and the proceeds of the Newco Equity
Amount, to fund that portion of the Recapitalization Financing Requirements
required to be funded on the Closing Date, (ii) within 35 days after the Closing
Date, to fund the repurchase of the Existing Senior Notes, and (iii) to provide
financing for working capital and other general corporate purposes of Company
and its Subsidiaries;
WHEREAS, Lenders have agreed to extend certain credit facilities to
U.K. Borrowers, the proceeds of which will be used to provide financing for
general corporate purposes of each such Borrower;
WHEREAS, Company desires to secure all of the Obligations hereunder
and under the other Loan Documents by granting to Collateral Agent, on behalf of
Lenders, a first priority pledge of (i) 100% of the capital stock of each of its
direct Domestic Subsidiaries and (ii) 65% of the capital stock of each of its
direct Material Foreign Subsidiaries; and
WHEREAS, Company has agreed to guarantee the Obligations of U.K.
Borrowers hereunder and under the other Loan Documents, and Subsidiary
Guarantors have agreed to guarantee the Obligations of the Loan Parties
hereunder and under the other Loan Documents;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Borrowers, Lenders, Syndication
Agent, Documentation Agent, Administrative Agent and Collateral Agent agree as
follows:
Section 1. DEFINITIONS
1.1 Certain Defined Terms.
The following terms used in this Agreement shall have the following
meanings:
"Accounts Receivable Facility" means the Existing A/R Facility and
any successor, replacement or additional accounts receivable financing program
entered into by Company and/or any of its Subsidiaries on terms customary for
accounts receivable
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financings; provided, in each case, that there is no recourse thereunder against
Company or any of its Subsidiaries for any default by any account obligor in the
payment of its obligations in connection with the accounts receivable subject to
such program, except to the extent that such recourse is limited substantially
to the same extent as under the Existing A/R Facility as in effect on the
Closing Date; and provided, further, that any accounts receivable financing
program shall cease to constitute an "Accounts Receivable Facility" in the event
the attributes described in the foregoing proviso cease to exist with regard to
such program.
"ACI" has the meaning assigned to that term in the introduction to
this Agreement.
"Acquisition" means the acquisition by Company or any of its
Subsidiaries (by purchase or otherwise) of all or substantially all of the
business, property or fixed assets of, or the stock or other evidence of
beneficial ownership of, any Person or any division, business unit or line of
business of any Person.
"Administrative Agent" has the meaning assigned to that term in the
introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 9.5A.
"Affected Lender" has the meaning assigned to that term in
subsection 2.6C.
"Affiliate", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to (i) vote 10% or more of the Voting Stock of such
Person or (ii) direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting securities or by contract
or otherwise.
"Agents" shall mean Administrative Agent and Collateral Agent.
"Agreement" means this Credit Agreement dated as of May 19, 1997, as
it may be amended, supplemented or otherwise modified from time to time.
"Amphenol Borg" means Amphenol Borg Limited, a company incorporated
under the laws of England and Wales.
"Applicable Commitment Fee Percentage" means, as at any date of
determination, a rate per annum equal to the percentage set forth below opposite
the Applicable Leverage Ratio in effect as of such date of determination, any
change in the
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Applicable Commitment Fee Percentage to be effective on the date of any
corresponding change in the Applicable Leverage Ratio:
Applicable Leverage Ratio Applicable Commitment Fee Percentage
------------------------- ------------------------------------
6.25:1.00 or greater 0.50%
5.50:1.00 or greater, but
less than 6.25:1.00 0.425%
4.50:1.00 or greater, but
less than 5.50:1.00 0.375%
4.00:1.00 or greater, but
less than 4.50:1.00 0.300%
less than 4.00:1.00 0.25%
"Applicable Currency" means, as to any particular payment or Loan,
the currency (being Dollars or Sterling) in which it is denominated or is
payable.
"Applicable Leverage Ratio" means, with respect to any date of
determination, the Consolidated Leverage Ratio set forth in the Pricing
Certificate (as defined below) in effect for the Pricing Period (as defined
below) in which such date of determination occurs. For purposes of this
definition, (i) "Pricing Certificate" means an Officer's Certificate of Company
certifying as to the Consolidated Leverage Ratio as of the last day of any
Fiscal Quarter and setting forth the calculation of such Consolidated Leverage
Ratio in reasonable detail, which Officer's Certificate may be delivered to
Administrative Agent at any time on or after the date of delivery by Company of
the Compliance Certificate (the "Related Compliance Certificate") with respect
to the period ending on the last day of such Fiscal Quarter pursuant to
subsection 6.1(iii), and (ii) "Pricing Period" means each period commencing on
the first Business Day after the delivery to Administrative Agent of a Pricing
Certificate and ending on the first Business Day after the next Pricing
Certificate is delivered to Administrative Agent; provided that, anything
contained in this definition to the contrary notwithstanding, (a) the first
Pricing Period shall commence no earlier than the date which is six months after
the Closing Date, and the Pricing Certificate in respect of the first Pricing
Period may be delivered at any time on or after such date and shall relate to
the most recent financial statements delivered by Company to Administrative
Agent pursuant to subsection 6.1(i), (b) the Applicable Leverage Ratio for the
period from the Closing Date to but excluding the date of commencement of the
first Pricing Period shall be deemed to be 6.25:1.00, and (c) in the event that,
after the commencement of the first Pricing Period, (X) Company fails to deliver
a Pricing Certificate to Administrative Agent setting forth the Consolidated
Leverage Ratio as of the last day of any Fiscal Quarter on or before the last
day (the
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"Cutoff Date") on which Company is required to deliver the Related Compliance
Certificate and (Y) Administrative Agent determines (each such determination
being an "Agent Determination") on or after the Cutoff Date (on the basis of the
Related Compliance Certificate or a Pricing Certificate delivered after the
Cutoff Date) that the Applicable Leverage Ratio that would have been in effect
if Company had delivered a Pricing Certificate on the Cutoff Date is greater
than the Consolidated Leverage Ratio set forth in the most recent Pricing
Certificate actually delivered by Company, then (1) the Applicable Leverage
Ratio in effect for the period from the Cutoff Date to the date of delivery by
Company of the next Pricing Certificate (or, if earlier, the next date on which
an Agent Determination is made) shall be the Consolidated Leverage Ratio
determined pursuant to the Agent Determination and (2) on the first Business Day
after Administrative Agent delivers written notice to Company of any Agent
Determination, the applicable Borrower shall pay to Administrative Agent, for
distribution (as appropriate) to Lenders, an aggregate amount equal to the
additional interest, letter of credit fees and commitment fees such Borrower
would have been required to pay in respect of all Loans, Letters of Credit or
Commitments in respect of which any interest or fees have been paid by such
Borrower during the period from the Cutoff Date to the date such notice is given
by Administrative Agent to Company if the amount of such interest and fees had
been calculated using the Applicable Leverage Ratio based on such Agent
Determination.
"Applicable Tranche A Base Rate Margin" means, as at any date of
determination, a rate per annum equal to the percentage set forth below opposite
the Applicable Leverage Ratio in effect as of such date of determination, any
change in any such Applicable Tranche A Base Rate Margin to be effective on the
date of any corresponding change in the Applicable Leverage Ratio:
Applicable Leverage Ratio Applicable Tranche A Base Rate Margin
------------------------- -------------------------------------
5.50:1.00 or greater 1.00%
5.00:1.00 or greater, but
less than 5.50:1.00 0.75%
4.50:1.00 or greater, but
less than 5.00:1.00 0.375%
4.00:1.00 or greater, but
less than 4.50:1.00 0.125%
less than 4.00:1.00 0.00%
"Applicable Tranche A LIBOR Margin" means, as at any date of
determination, a rate per annum equal to the percentage set forth below opposite
the Applicable Leverage Ratio in effect as of such date of determination, any
change in any
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such Applicable Tranche A LIBOR Margin to be effective on the date of any
corresponding change in the Applicable Leverage Ratio:
Applicable Leverage Ratio Applicable Tranche A LIBOR Margin
------------------------- ---------------------------------
5.50:1.00 or greater 2.25%
5.00:1.00 or greater, but
less than 5.50:1.00 2.00%
4.50:1.00 or greater, but
less than 5.00:1.00 1.625%
4.00:1.00 or greater, but
less than 4.50:1.00 1.375%
3.50:1.00 or greater, but
less than 4.00:1.00 1.125%
less than 3.50:1.00 1.00%
"Applicable Tranche B Base Rate Margin" means, as at any date of
determination, a rate per annum equal to the percentage set forth below opposite
the Applicable Leverage Ratio in effect as of such date of determination, any
change in any such Applicable Tranche B Base Rate Margin to be effective on the
date of any corresponding change in the Applicable Leverage Ratio:
Applicable Leverage Ratio Applicable Tranche B Base Rate Margin
------------------------- -------------------------------------
5.00:1.00 or greater 1.50%
4.00:1.00 or greater, but
less than 5.00:1.00 1.25%
less than 4.00:1.00 1.00%
"Applicable Tranche B LIBOR Margin" means, as at any date of
determination, a rate per annum equal to the percentage set forth below opposite
the Applicable Leverage Ratio in effect as of such date of determination, any
change in any such Applicable Tranche B LIBOR Margin to be effective on the date
of any corresponding change in the Applicable Leverage Ratio:
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Applicable Leverage Ratio Applicable Tranche B LIBOR Margin
------------------------- ---------------------------------
5.00:1.00 or greater 2.75%
4.00:1.00 or greater, but
less than 5.00:1.00 2.50%
less than 4.00:1.00 2.25%
"Applicable Tranche C Base Rate Margin" means, as at any date of
determination, a rate per annum equal to the percentage set forth below opposite
the Applicable Leverage Ratio in effect as of such date of determination, any
change in any such Applicable Tranche C Base Rate Margin to be effective on the
date of any corresponding change in the Applicable Leverage Ratio:
Applicable Leverage Ratio Applicable Tranche C Base Rate Margin
------------------------- -------------------------------------
5.00:1.00 or greater 2.00%
4.00:1.00 or greater, but
less than 5.00:1.00 1.75%
less than 4.00:1.00 1.50%
"Applicable Tranche C LIBOR Margin" means, as at any date of
determination, a rate per annum equal to the percentage set forth below opposite
the Applicable Leverage Ratio in effect as of such date of determination, any
change in any such Applicable Tranche C LIBOR Margin to be effective on the date
of any corresponding change in the Applicable Leverage Ratio:
Applicable Leverage Ratio Applicable Tranche C LIBOR Margin
------------------------- ---------------------------------
5.00:1.00 or greater 3.25%
4.00:1.00 or greater, but
less than 5.00:1.00 3.00%
less than 4.00:1.00 2.75%
"Asset Sale" means the sale by Company or any of its Subsidiaries to
any Third Party of (i) any of the stock or other ownership interests of any of
Company's Subsidiaries, (ii) substantially all of the assets of any division or
line of business of Company or any of its Subsidiaries, or (iii) any other
assets (whether tangible or intangible) of Company or any of its Subsidiaries
outside of the ordinary course of busi-
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<PAGE>
ness (other than (a) accounts receivable sold pursuant to any Accounts
Receivable Facility or sold in accordance with subsection 7.7(iii) and (b) any
other such assets to the extent that the aggregate value of such assets sold in
any single transaction or related series of transactions is equal to $500,000 or
less).
"Assignment Agreement" means an Assignment Agreement in
substantially the form of Exhibit XII annexed hereto.
"Available Amount" means, as of any date of determination, an amount
equal to (i) the aggregate amount of net cash proceeds received by Company after
the Closing Date in respect of any equity contributions made to Company by, or
any issuances of equity Securities by Company to, any Third Party other than an
Unrestricted Subsidiary (other than proceeds from purchases of capital stock of
Company to the extent such purchases are financed with the proceeds of
Investments permitted under subsection 7.3(ii)) plus (ii) the aggregate amount
of Retained Excess Cash Flow (as defined in subsection 2.4B(iii)(b)) as of such
date plus (iii) the aggregate amount of Retained Prepayments (as defined in
subsection 2.4B(iv)(c)) as of such date minus (iv) any proceeds received by
Company from the issuance of new shares of its common stock to the extent such
proceeds are used as provided in subsection 7.5(iii)(d).
"Available Amount Usage" means, as of any date of determination, an
amount equal to the sum of (i) the aggregate amount of Investments made pursuant
to subsection 7.3(vi)(b) as of such date plus (ii) the aggregate amount of
Restricted Junior Payments made pursuant to subsection 7.5(iii)(c) on or prior
to such date (other than any such Restricted Junior Payments made pursuant to a
Refinancing (as defined in the definition of "Refinancing Sub Debt")) plus (iii)
the aggregate amount of any Refinancing Premiums (as defined in the definition
of "Refinancing Sub Debt") paid by Company on or prior to such date.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Base Rate" means, at any time, the higher of (x) the Prime Rate or
(y) the rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate.
"Base Rate Loans" means Loans bearing interest at rates determined
by reference to the Base Rate as provided in subsection 2.2A.
"Borrower" means Company or either U.K. Borrower, as the context
requires.
"BTCo" has the meaning assigned to that term in the introduction to
this Agreement.
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"Business Day" means, for all purposes other than as covered by
clause (ii) below, (i) any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of the State of New York or is a day on which
banking institutions located in such state are authorized or required by law or
other governmental action to close and, (ii) with respect to all notices,
determinations, fundings and payments in connection with LIBOR or any LIBOR
Loans, any day that is a Business Day described in clause (i) above and that is
also (a) a day for trading by and between banks in Dollar or Sterling deposits,
as the case may be, in the London interbank market and (b) a day on which
banking institutions are open for business in London.
"Capital Lease", as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Cash" means money, currency or a credit balance in a Deposit
Account.
"Cash Equivalents" means (i) marketable securities (a) issued or
directly and unconditionally guaranteed as to interest and principal by the
United States Government or (b) issued by any agency of the United States the
obligations of which are backed by the full faith and credit of the United
States, in each case maturing within 24 months after the date of acquisition
thereof; (ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within 24 months after the date
of acquisition thereof and having, at the time of the acquisition thereof, an
investment grade rating generally obtainable from either Standard & Poor's
Ratings Group ("S&P") or Moody's Investors Service, Inc. ("Moody's"); (iii)
commercial paper maturing no more than 12 months from the date of creation
thereof and having, at the time of the acquisition thereof, a rating of at least
A-2 from S&P or at least P-2 from Moody's; (iv) domestic and Eurodollar
certificates of deposit or bankers' acceptances maturing within 24 months after
the date of acquisition thereof and issued or accepted by any Lender or by any
other commercial bank that has combined capital and surplus of not less than
$250,000,000; (v) repurchase agreements with a term of not more than 30 days for
underlying securities of the types described in clauses (i), (ii) and (iv) above
entered into with any commercial bank meeting the requirements specified in
clause (iv) above or with any securities dealer of recognized national standing,
(vi) shares of investment companies that are registered under the Investment
Company Act of 1940 and that invest solely in one or more of the types of
investments referred to in clauses (i) through (v) above, and (vii) in the case
of any Foreign Subsidiary, high quality, short-term liquid Investments made by
such Foreign Subsidiary in the ordinary course of managing its surplus cash
position in a manner consistent with past practices.
"Certificate re Non-Bank Status" means a certificate substantially
in the form of Exhibit XIII annexed hereto delivered by a Lender to
Administrative Agent pursuant to subsection 2.7B(iii).
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<PAGE>
"Change of Control" means, and shall be deemed to have occurred, if:
(i)(a) KKR, its Affiliates and the Management Group shall at any time not own,
in the aggregate, directly or indirectly, beneficially and of record, at least
35% of the outstanding Voting Stock of Company (other than as the result of one
or more widely distributed offerings of common stock of Company, in each case
whether by Company or by KKR, its Affiliates or the Management Group) and/or (b)
any person, entity or "group" (within the meaning of Section 13(d) or 14(d) of
the Exchange Act) shall at any time have acquired direct or indirect beneficial
ownership of a percentage of the outstanding Voting Stock of Company that
exceeds the percentage of such Voting Stock then beneficially owned, in the
aggregate, by KKR, its Affiliates and the Management Group, unless, in the case
of either clause (a) or (b) above, KKR, its Affiliates and the Management Group
shall, at the relevant time, have the collective right or ability, either by
contract or pursuant to a written proxy or other written evidence of voting
power, to elect or designate for election a majority of the Board of Directors
of Company; and/or (ii) at any time Continuing Directors shall not constitute a
majority of the Board of Directors of Company. For purposes of this definition,
"Continuing Director" means, as of any date of determination, an individual (A)
who is a member of the Board of Directors of Company on the Closing Date, (B)
who, as of such date of determination, has been a member of such Board of
Directors for at least the 12 preceding months (or, if such date of
determination occurs during the period comprising the first 12 months after the
Closing Date, since the Closing Date), or (C) who has been nominated to be a
member of such Board of Directors, directly or indirectly, by KKR or Persons
nominated by KKR or who has been nominated to be a member of such Board of
Directors by a majority of the other Continuing Directors then in office.
"Class" means, as applied to Lenders, each of the following three
classes of Lenders: (i) Lenders having Revolving Loan Exposure, (ii) Lenders
having Tranche A Term Loan Exposure, and (iii) Lenders having Tranche B Term
Loan Exposure and/or Tranche C Term Loan Exposure (taken together as a single
class).
"Closing Date" means the date on or before June 30, 1997, on which
the initial Loans are made.
"Collateral" means all of the personal property (including capital
stock) in which Liens are purported to be granted pursuant to the Collateral
Documents as security for the obligations.
"Collateral Agent" means BTCo, or any Person serving as successor
Administrative Agent hereunder, in its capacity (i) as Collateral Agent under
the Pledge Agreements and the Intercreditor Agreement on behalf of (a) Lenders
and Lender Counterparties (as defined in the Master Pledge Agreement) and (b)
the PBGC, and (ii) as Collateral Agent under this Agreement, the Guaranties and
the Collateral Documents (other than the Pledge Agreements) on behalf of Lenders
and Lender Counterparties.
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"Collateral Documents" means the Pledge Agreements, this Agreement
(with respect to Section 8 hereof) and any security documents that may be
entered into from time to time after the Closing Date by any Subsidiary of
Company pursuant to subsection 6.7B or by Company pursuant to Section 8.
"Commercial Letter of Credit" means any letter of credit or similar
instrument issued for the purpose of providing the primary payment mechanism in
connection with the purchase of any materials, goods or services by Company or
any of its Subsidiaries in the ordinary course of business of Company or such
Subsidiary.
"Commitments" means the commitments of Lenders to make Loans as set
forth in subsection 2.1A.
"Commodities Agreement" means any forward commodities contract,
commodity futures contract, commodities option contract or similar agreement or
arrangement to which Company or any of its Subsidiaries is a party.
"Company" has the meaning assigned to that term in the introduction
to this Agreement.
"Company Guaranty" means the Company Guaranty executed and delivered
by Company on the Closing Date, substantially in the form of Exhibit XVII
annexed hereto, as such Company Guaranty may thereafter be amended, supplemented
or otherwise modified from time to time.
"Compliance Certificate" means a certificate substantially in the
form of Exhibit IX annexed hereto delivered to Administrative Agent and Lenders
by Company pursuant to subsection 6.1(iii).
"Confidential Information Memorandum" means that certain
Confidential Information Memorandum relating to Company dated February, 1997.
"Consent Solicitation" means the solicitation by Company, from the
holders of outstanding Existing Subordinated Notes, of consents to certain
amendments to the Existing Subordinated Note Indenture in accordance with the
terms of the Debt Tender Offer Materials.
"Consolidated Adjusted EBITDA" means, with respect to any Person for
any period, an amount equal to (i) Consolidated Net Income plus (ii) to the
extent the following items are deducted in calculating such Consolidated Net
Income, the sum, without duplication, of the amounts for such period of (a)
Consolidated Interest Expense, (b) taxes computed on the basis of income, (c)
total depreciation expense, (d) total amortization expense (including
amortization of deferred financing fees), (e) any expenses or charges incurred
in connection with any issuance of debt or equity Securities (including
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<PAGE>
upfront fees payable in respect of bank facilities), (f) any restructuring
charges or reserves, (g) any expenses or charges relating to the
Recapitalization, (h) any Receivables Fees, (i) any fees and expenses related to
Acquisitions and Investments permitted hereunder, (j) any other non-cash
charges, (k) any deduction for minority interest expense, and (l) any other
non-recurring charges minus (iii) to the extent the following items are added in
calculating such Consolidated Net Income, the sum, without duplication, of the
amounts for such period of (a) any non-recurring gains, and (b) any non-cash
gains, all of the foregoing as determined on a consolidated basis for such
Person and its Subsidiaries in conformity with GAAP; provided that, for purposes
of subsections 7.6 and 7.7(ii) only, (X) Consolidated Adjusted EBITDA of any
Included Pro Forma Entity (other than any Unrestricted Subsidiary redesignated
as a Subsidiary of Company) shall be increased (if positive) or decreased (if
negative) by any Pro Forma Adjustment applicable thereto and (Y) Consolidated
Adjusted EBITDA of Company and its Subsidiaries shall be increased (if positive)
or decreased (if negative) by the Net EBITDA Adjustment.
"Consolidated Capital Expenditures" means, for any period, the
aggregate of all expenditures (whether paid in cash or other consideration or
accrued as a liability and including that portion of Capital Leases which is
capitalized as principal on the consolidated balance sheet of Company and its
Subsidiaries) by Company and its Subsidiaries during that period that, in
conformity with GAAP, are included in "additions to property, plant or
equipment" or comparable items reflected in the consolidated statement of cash
flows of Company and its Subsidiaries; provided that Consolidated Capital
Expenditures shall not include (i) any such expenditures constituting all or a
portion of the purchase price in connection with any Acquisition, (ii) any such
expenditures made in connection with the replacement, substitution, repair or
restoration of any assets to the extent financed (a) with insurance proceeds
received by Company or any of its Subsidiaries on account of the loss of, or any
damage to, the assets being replaced, substituted for, repaired or restored or
(b) with the proceeds of any compensation awarded to Company or any of its
Subsidiaries as a result of the taking, by eminent domain or condemnation, of
the assets being replaced or substituted for, (iii) the purchase price of any
equipment that is purchased simultaneously with the trade-in of any existing
equipment by Company or any of its Subsidiaries to the extent that the gross
amount of such purchase price is reduced by any credit granted by the seller of
such equipment for such equipment being traded in, or (iv) the purchase price of
any property, plant or equipment purchased within one year of the consummation
of any Asset Sale or any other sale by Company or any of its Subsidiaries of any
other property, plant or equipment to the extent purchased with the Net Asset
Sale Proceeds of such Asset Sale or the proceeds of such other sale.
"Consolidated Current Assets" means, as at any date of
determination, the total assets of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current assets in
conformity with GAAP, excluding Cash and Cash Equivalents.
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<PAGE>
"Consolidated Current Liabilities" means, as at any date of
determination, the total liabilities of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current liabilities in
conformity with GAAP, excluding the current portions of Funded Debt.
"Consolidated Excess Cash Flow" means, for any Fiscal Year, an
amount (if positive) equal to (i) the sum, without duplication, of the amounts
for such Fiscal Year of (a) Consolidated Net Income, (b) the amount of all
non-cash charges to the extent deducted in arriving at such Consolidated Net
Income, (c) any net decrease in Consolidated Working Capital since the end of
the preceding Fiscal Year (other than any such decrease resulting from transfers
of accounts receivable pursuant to an Accounts Receivable Facility), and (d) the
aggregate net non-cash loss realized by Company and its Subsidiaries in
connection with the sale, lease, transfer or other disposition of assets by
Company and its Subsidiaries during such Fiscal Year (other than sales in the
ordinary course of business), to the extent deducted in arriving at such
Consolidated Net Income, minus (ii) the sum, without duplication, of the amounts
for such Fiscal Year of (a) the amount of all non-cash credits to the extent
added in arriving at such Consolidated Net Income, (b) Consolidated Capital
Expenditures actually paid in Cash during such Fiscal Year (net of the principal
amount of any Indebtedness incurred to finance such Consolidated Capital
Expenditures, whether incurred in such Fiscal Year or in the immediately
succeeding Fiscal Year), (c) the aggregate amount of all prepayments of
Revolving Loans and Swing Line Loans to the extent accompanied by permanent
reductions in the Revolving Loan Commitments, (d) the aggregate amount of all
principal payments in respect of any Indebtedness of Company or any of its
Subsidiaries (including the Term Loans and the principal component of any
payments in respect of Capital Leases), other than (1) any mandatory prepayments
of the Term Loans pursuant to subsection 2.4B(iii), (2) any prepayments of
Indebtedness with the proceeds of other Indebtedness, or (3) repayments in
respect of any revolving credit facility except to the extent there is a
permanent reduction in commitments thereunder in connection with such
repayments, (e) any net increase in Consolidated Working Capital since the end
of the preceding Fiscal Year, (f) the aggregate net non-cash gain realized by
Company and its Subsidiaries in connection with the sale, lease, transfer or
other disposition of assets by Company and its Subsidiaries during such Fiscal
Year (other than sales in the ordinary course of business), (g) the aggregate
amount of all Cash payments made by Company and its Subsidiaries in respect of
long-term liabilities of Company or any of its Subsidiaries other than
Indebtedness, (h) the aggregate amount of new Investments made in Cash in
accordance with subsection 7.3(vi), (i) the aggregate amount of Cash
consideration paid in connection with any Acquisitions (net of any such
consideration paid out of any Net Asset Sale Proceeds), (j) the aggregate amount
of Restricted Junior Payments made in accordance with subsection 7.5(iii)(a) (to
the extent such Restricted Junior Payments are required by the terms of the
applicable management and/or employee stock plan, stock subscription agreement
or shareholder agreement) and subsections 7.5(iii)(b), (c) and (f), (k) the
aggregate amount of any expenditures actually made in Cash by Company and its
Subsidiaries during such Fiscal Year (including
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<PAGE>
expenditures for the payment of financing fees) to the extent such expenditures
are not expensed during such Fiscal Year, (l) the aggregate amount of any net
currency gains realized by Company and its Subsidiaries during such Fiscal Year
that are prohibited from being repatriated to the United States, and (m) the
aggregate amount of any premium, make-whole or penalty payments actually paid in
cash during such Fiscal Year that are required in connection with any prepayment
of Indebtedness and that are accounted for by Company as extraordinary items,
all of the foregoing as determined on a consolidated basis for Company and its
Subsidiaries in accordance with GAAP.
"Consolidated Gross Sales Revenues" means, for any Fiscal Year, an
amount equal to gross sales revenues of Company and its Subsidiaries for such
Fiscal Year on a consolidated basis determined in conformity with GAAP; provided
that, for purposes of calculating such gross sales revenues, (i) the gross sales
revenues of any business acquired during such Fiscal Year in an Acquisition
permitted under subsection 7.7(ii) shall be determined on a pro forma basis
(based on assumptions believed by Company in good faith to be reasonable) as if
such Acquisition had been consummated on the first day of such Fiscal Year and
(ii) the gross sales revenues of any business sold or otherwise disposed of by
Company or any of its Subsidiaries during such Fiscal Year shall be excluded in
their entirety.
"Consolidated Gross Sales Revenues Adjustment" means, for any Fiscal
Year, 5% of the amount equal to (i) the increase (if any) of consolidated gross
sales revenues of Company and its Subsidiaries for such Fiscal Year attributable
to any business acquired during such Fiscal Year in an Acquisition permitted
under subsection 7.7(ii) minus (ii) the decrease (if any) in such consolidated
gross sales revenues attributable to any business sold or otherwise disposed of
by Company or any of its Subsidiaries during such Fiscal Year.
"Consolidated Interest Expense" means, with respect to any Person
for any period, an amount equal to, without duplication, (i) total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP, capitalized interest and any administrative agency or commitment or
other similar fees payable in respect of bank facilities) of such Person and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP, with
respect to all outstanding Indebtedness of such Person and its Subsidiaries,
including all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financings and net costs
under Interest Rate Agreements, but excluding, however, (a) any interest expense
(including amortization of discount, amortization of debt issuance costs, and
amortization of any other charges relating to the Recapitalization) not payable
in Cash during such period and (b) any Receivables Fees and any amounts referred
to in subsection 2.3 payable to Administrative Agent, Syndication Agent,
Documentation Agent and Lenders on or before the Closing Date minus (ii) total
interest income of such Person and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP, but excluding, however, any interest
income not received in Cash during such period; provided that, for purposes
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of subsections 7.6 and 7.7(ii) only, Consolidated Interest Expense of Company
and its Subsidiaries shall be increased (if positive) or decreased (if negative)
by the Net Interest Adjustment.
"Consolidated Leverage Ratio" means, as of the last day of any
Fiscal Quarter, the ratio of (i) Consolidated Total Debt as of such date to (ii)
Consolidated Adjusted EBITDA of Company and its Subsidiaries for the four-Fiscal
Quarter period ending on such date.
"Consolidated Net Income" means, with respect to any Person (the
"Subject Person") for any period, the net income (or loss) of the Subject Person
and its Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP; provided that there shall
be excluded (i) the income (or loss) of any Person in which any other Person
(other than the Subject Person or any of its Subsidiaries) has a joint interest,
except to the extent of the amount of dividends or other distributions actually
paid to the Subject Person or any of its Subsidiaries by the other Person during
such period, (ii) the income (or loss) of any Person accrued prior to the date
it becomes a Subsidiary of the Subject Person or is merged into or consolidated
with the Subject Person or any of its Subsidiaries or that Person's assets are
acquired by the Subject Person or any of its Subsidiaries, (iii) any after-tax
gains or losses, and any related fees and expenses, in each case to the extent
attributable to Asset Sales or returned surplus assets of any Pension Plan, (iv)
any translation currency gains and losses, and (v) (to the extent not included
in clauses (i) through (iv) above) any net extraordinary gains or net
extraordinary losses.
"Consolidated Total Debt" means, as at any date of determination,
the aggregate stated balance sheet amount of all Indebtedness of Company and its
Subsidiaries under clauses (i), (ii) and (iii) of the definition of
"Indebtedness" (but only to the extent, in the case of said clause (iii), of any
drawings honored under letters of credit and not yet reimbursed by Company or
any of its Subsidiaries), as determined on a consolidated basis in accordance
with GAAP.
"Consolidated Working Capital" means, as at any date of
determination, the excess (or deficit) of Consolidated Current Assets over
Consolidated Current Liabilities.
"Contractual Obligation", as applied to any Person, means any
provision of any Security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement, currency futures contract, currency option contract, synthetic
currency
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exchange rate cap or other similar agreement or arrangement to which Company or
any of its Subsidiaries is a party.
"Debt Tender Offer" means the offer by Company to repurchase up to
100% of the outstanding Existing Subordinated Notes pursuant to the Debt Tender
Offer Materials.
"Debt Tender Offer Materials" means the Offer to Purchase and
Consent Solicitation Statement dated April 15, 1997 relating to the Debt Tender
Offer and the accompanying Consent and Letter of Transmittal.
"Defaulting Lender" has the meaning assigned to that term in
subsection 2.9.
"Default Period" has the meaning assigned to that term in subsection
2.9.
"Delayed-Draw Term Loans" means a portion of the Tranche A Term
Loans, in an aggregate amount not to exceed the maximum aggregate consideration
(including accrued interest and premiums) which Company may be required to pay
in connection with the redemption of all outstanding Existing Senior Notes, that
may be borrowed by Company at any time during the period commencing on the
Closing Date and ending on the 35th day thereafter for the purpose of funding
such redemption; provided that (i) Company shall have delivered to
Administrative Agent, on or before the tenth Business Day immediately preceding
the Closing Date, an Officer's Certificate requesting that a portion of the
Tranche A Term Loans be made available as Delayed-Draw Term Loans and setting
forth in reasonable detail the calculation of the aggregate principal amount of
the Delayed-Draw Term Loans and (ii) on or before the Closing Date, Company
shall have caused irrevocable notice of the redemption of the Existing Senior
Notes to be given in accordance with the terms of the Existing Senior Note
Indenture.
"Deposit Account" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"Documentation Agent" has the meaning assigned to that term in the
introduction to this Agreement.
"Dollar Loans" means Loans denominated and payable in Dollars.
"Dollars" and the sign "$" mean the lawful money of the United
States of America.
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"Domestic Subsidiary" means a Subsidiary of Company organized under
the laws of the United States or any state thereof.
"Eligible Assignee" means (A) (i) a commercial bank organized under
the laws of the United States or any state thereof; (ii) a savings and loan
association or savings bank organized under the laws of the United States or any
state thereof; (iii) a commercial bank organized under the laws of any other
country or a political subdivision thereof; provided that (x) such bank is
acting through a branch or agency located in the United States or (y) such bank
is organized under the laws of a country that is a member of the Organization
for Economic Cooperation and Development or a political subdivision of such
country; and (iv) any other entity which is an "accredited investor" (as defined
in Regulation D under the Securities Act) which extends credit or buys loans as
one of its businesses including insurance companies, mutual funds and lease
financing companies; and (B) any Lender, any Affiliate of any Lender and, with
respect to any Lender that is an investment fund that invests in commercial
loans, any other investment fund that invests in commercial loans and that is
managed by the same investment advisor as such Lender or by an Affiliate of such
investment advisor; provided that no Affiliate of Company shall be an Eligible
Assignee.
"Environmental Claims" means any and all administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations (other than internal reports prepared
by Company or any of its Subsidiaries (i) in the ordinary course of such
Person's business or (ii) as required in connection with a financing transaction
or an acquisition or disposition of real estate) or proceedings relating in any
way to any Environmental Law (for purposes of this definition, "Claims"),
including (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 Laws" means any and all present and future laws,
statutes, ordinances, rules, regulations, requirements, restrictions, permits,
orders, and determinations of any governmental authority that have the force and
effect of law, and that pertain to pollution (including hazardous, toxic or
dangerous substances), natural resources or the environment, whether federal,
state, or local, domestic or foreign including environmental response laws such
as the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 and
as the same may be further amended (hereinafter collectively called "CERCLA").
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, and any regulations promulgated thereunder.
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"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with Company or any of its Subsidiaries
within the meaning of Section 414(b) or (c) of the Internal Revenue Code or (for
purposes of provisions of the Internal Revenue Code relating to Section 412 of
the Internal Revenue Code) Section 414(m) or (o) of the Internal Revenue Code.
"ERISA Event" means any of the following events or occurrences if
such event or occurrence could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect: (i) the failure to make a required
contribution to a Pension Plan; (ii) a withdrawal by Company, any of its
Subsidiaries or any ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial employer (as defined
in Section 4001(a)(2) of ERISA), or a cessation of operation which is treated as
such a withdrawal under Section 4062(e) of ERISA; (iii) a complete or partial
withdrawal by Company, any of its Subsidiaries or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization or is insolvent pursuant to Section 4241 or 4245 of ERISA; (iv)
the filing of a notice of intent to terminate, the treatment of a Plan amendment
as a termination under Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate, in each case with respect to a Pension
Plan or Multiemployer Plan; (v) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; (vi) the imposition of any liability upon Company, any of
its Subsidiaries or any ERISA Affiliate under Title IV of ERISA (other than with
respect to PBGC premiums due but not delinquent under Section 4007 of ERISA)
upon Company, any of its Subsidiaries or any ERISA Affiliate; (vii) the
imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Internal
Revenue Code or pursuant to ERISA with respect to any Pension Plan; (viii)
receipt from the Internal Revenue Service of notice of the failure of any
Pension Plan (or any other Plan intended to qualify under Section 401(a) of the
Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue
Code, or the failure of any trust forming part of any Pension Plan to qualify
for exemption from taxation under Section 501(a) of the Internal Revenue Code;
or (ix) the violation of any applicable foreign law, or an event or occurrence
that is comparable to any of the foregoing events or occurrences, in either case
with respect to a Plan that is not subject to regulation under ERISA by reason
of Section 4(b)(4) of ERISA.
"Event of Default" means each of the events set forth in Section 8.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
"Exchange Rate" means, on any date when an amount expressed in a
currency other than Dollars is to be determined with respect to any Letter of
Credit, the spot rate of exchange of the applicable Issuing Lender in the New
York foreign exchange
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market for the purchase by such Issuing Lender of such currency in exchange for
Dollars two Business Days prior to such date, expressed as a number of units of
such currency per one Dollar.
"Excluded Pro Forma Entity" means, for any period, (i) any Person,
property, business or asset (other than an Unrestricted Subsidiary) that is
sold, transferred or otherwise disposed of by Company or any of its Subsidiaries
to a Third Party during such period; provided that, for purposes of calculating
any consolidated financial information for any Excluded Pro Forma Entity to be
used in determining the Net EBITDA Adjustment or Net Interest Adjustment for
such period, financial information pertaining to any Person, property, business
or asset that was related to such Excluded Pro Forma Entity but that was not
disposed of by Company or such Subsidiary shall not be consolidated with the
relevant financial information of the Excluded Pro Forma Entity and (ii) any
Subsidiary of Company that is redesignated as an Unrestricted Subsidiary during
such period.
"Existing A/R Facility" means the accounts receivable factoring
facility established pursuant to that certain Receivables Purchase Agreement
dated as of December 3, 1993 between Amphenol Funding Corp., as Seller, Company,
individually and as initial servicer, Pooled Accounts Receivable Capital
Corporation, as purchaser, and Bank of Montreal, as agent, as amended prior to
the Closing Date.
"Existing Credit Agreement" means that certain Credit Agreement
dated as of November 30, 1995 between Company, the lenders parties thereto and
The Chase Manhattan Bank (formerly Chemical Bank), as agent, as amended prior to
the Closing Date.
"Existing Public Stockholders" means, collectively, all of the
holders of Pre-Merger Shares other than Individual Seller and Management
Investors.
"Existing Senior Note Indenture" means the indenture pursuant to
which the Existing Senior Notes were issued, as such indenture may be amended
from time to time.
"Existing Senior Notes" means Company's $100,000,000 in initial
aggregate principal amount of 10.45% Senior Notes due 2001.
"Existing Subordinated Note Indenture" means the indenture pursuant
to which the Existing Subordinated Notes were issued, as amended pursuant to the
Consent Solicitation and as such indenture may be further amended from time to
time.
"Existing Subordinated Notes" means Company's $95,000,000 in initial
aggregate principal amount of 12.75% Senior Subordinated Notes due 2002.
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"Federal Funds Effective Rate" means, 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 Administrative Agent from three Federal funds brokers
of recognized standing selected by Administrative Agent.
"Financial Plan" has the meaning assigned to that term in subsection
6.1(ix).
"First Priority" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that (i) such
Lien has priority over any other Lien on such Collateral and (ii) such Lien is
the only Lien (other than Permitted Encumbrances) to which such Collateral is
subject.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Company and its Subsidiaries
ending on December 31 of each calendar year (or any other date to which such
Fiscal Year-end is changed pursuant to subsection 6.10).
"Funded Debt", as applied to any Person, means all Indebtedness for
borrowed money of that Person (including any current portions thereof) which by
its terms or by the terms of any instrument or agreement relating thereto
matures more than one year from, or is directly renewable or extendable at the
option of that Person to a date more than one year from (including an option of
that Person under a revolving credit or similar agreement obligating the lender
or lenders to extend credit over a period of one year or more from), the date of
the creation thereof.
"Funding and Payment Office" means (i) in respect of fundings and
payments with respect to Dollar Loans, the office of Administrative Agent and
Swing Line Lender located at One Bankers Trust Plaza, 130 Liberty Street, New
York, New York 10006, (ii) in respect of fundings and payments with respect to
Sterling Loans, the office of Administrative Agent located at 1 Appold Street,
Broadgate, London EC2A 2AT, or (iii) with respect to either clause (i) or (ii),
such other office of Administrative Agent and/or Swing Line Lender as may from
time to time hereafter be designated as such in a written notice delivered by
Administrative Agent and/or Swing Line Lender to Company and each Lender.
"Funding Date" means the date of the funding of a Loan.
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"GAAP" means, subject to the limitations on the application thereof
set forth in subsection 1.2, generally accepted accounting principles set forth
in opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession in the United States, in each case as the same are
applicable to the circumstances as of the date of determination.
"Governmental Authorization" means any permit, license,
authorization, plan, directive, consent order or consent decree of or from any
federal, state, local or foreign governmental authority, agency or court.
"Guarantee Obligations" means, as to any Person, any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness 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, (i) to purchase any such Indebtedness or any property constituting
direct or indirect security therefor, (ii) to advance or supply funds (a) for
the purchase or payment of any such Indebtedness or (b) to maintain working
capital or equity capital of the Primary Obligor or otherwise to maintain the
net worth or solvency of the Primary Obligor, (iii) to purchase property,
Securities or services primarily for the purpose of assuring the owner of any
such Indebtedness of the ability of the Primary Obligor to make payment of such
Indebtedness or (iv) otherwise to assure or hold harmless the owner of such
Indebtedness against loss in respect thereof; provided, however, that the term
"Guarantee Obligations" shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the Indebtedness in respect of which such Guarantee
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.
"Guaranties" means the Company Guaranty, the Subsidiary Guaranty and
any guaranty entered into by any Subsidiary of Company pursuant to subsection
6.7B.
"Hazardous Materials" means any substance that is defined or listed
as a hazardous, toxic or dangerous substance under any present or future
Environmental Law or that is otherwise regulated or prohibited or subject to
investigation or remediation under any present or future Environmental Law
because of its hazardous, toxic, or dangerous properties, including (i) any
substance that is a "hazardous substance" under CERCLA (as defined in the
definition of "Environmental Laws") and (ii) petroleum wastes or products.
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"Hedge Agreement" means any Interest Rate Agreement, Commodities
Agreement or Currency Agreement designed to hedge against fluctuations in
interest rates, the price or availability of commodities, or currency values,
respectively.
"Included Pro Forma Entity" means, for any period, (i) any Person,
property, business or asset (other than an Unrestricted Subsidiary) that is
acquired by Company or any of its Subsidiaries from a Third Party during such
period and not subsequently sold, transferred or otherwise disposed of by
Company or such Subsidiary to a Third Party during such period; provided that,
for purposes of calculating any consolidated financial information for any
Included Pro Forma Entity to be used in determining the Net EBITDA Adjustment or
Net Interest Adjustment for such period, financial information pertaining to any
Person, property, business or asset that was related to such Included Pro Forma
Entity but that was not acquired by Company or such Subsidiary shall not be
consolidated with the relevant financial information of the Included Pro Forma
Entity and (ii) any Unrestricted Subsidiary that is redesignated as a Subsidiary
of Company during such period.
"Indebtedness", as applied to any Person, means (i) all indebtedness
of such Person for borrowed money, (ii) that portion of obligations with respect
to Capital Leases that is properly classified as a liability on a balance sheet
of such Person in conformity with GAAP, (iii) any obligation incurred by such
Person in connection with banker's acceptances and the maximum aggregate amount
from time to time available for drawing under all outstanding letters of credit
issued for the account of such Person together, without duplication, with the
amount of all honored but unreimbursed drawings thereunder, (iv) any obligation
owed for all or any part of the deferred purchase price of property or services
(excluding any such obligations incurred under ERISA), which purchase price (a)
is due more than six months from the date of incurrence of the obligation in
respect thereof and (b) would be shown on the liability side of the balance
sheet of such Person in accordance with GAAP, (v) all monetary obligations of
such Person under Hedge Agreements (it being understood that monetary
obligations under Interest Rate Agreements, Commodities Agreements and Currency
Agreements other than Hedge Agreements constitute Investments and not
Indebtedness), and (vi) all indebtedness referred to in clauses (i) through (iv)
above secured by any Lien on any property or asset owned or held by that Person
regardless of whether the indebtedness secured thereby shall have been assumed
by that Person or is nonrecourse to the credit of that Person; provided that the
term "Indebtedness" shall in no event include (X) any obligations in respect of
any Accounts Receivable Facility or (Y) any trade payables or accrued expenses
arising in the ordinary course of business.
"Indemnitee" has the meaning assigned to that term in subsection
10.3.
"Individual Seller" means Lawrence J. DeGeorge and certain of his
family members and affiliated investment vehicles owning, in the aggregate,
approximately 30% of the Pre-Merger Shares.
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"Intellectual Property" means all patents, trademarks, tradenames,
copyrights, technology, know-how and processes used in or necessary for the
conduct of the business of Company and its Subsidiaries as currently conducted
that are material to the condition (financial or otherwise), business or
operations of Company and its Subsidiaries, taken as a whole.
"Intercreditor Agreement" means the Intercreditor Agreement, dated
as of the Closing Date, by and among the PBGC, Administrative Agent, Collateral
Agent and Company, substantially in the form of Exhibit XVIII annexed hereto, as
such Intercreditor Agreement may thereafter be amended, modified or otherwise
supplemented from time to time.
"Interest Payment Date" means (i) with respect to any Base Rate
Loan, each March 31, June 30, September 30 and December 31 of each year,
commencing on the first such date to occur after the Closing Date, and (ii) with
respect to any LIBOR Loan, the last day of each Interest Period applicable to
such Loan; provided that, in the case of each Interest Period of longer than
three months, "Interest Payment Date" shall also include each date that is three
months, or an integral multiple thereof, after the commencement of such Interest
Period.
"Interest Period" has the meaning assigned to that term in
subsection 2.2B.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement to which Company or any of its Subsidiaries is a party.
"Interest Rate Determination Date" means (i) with respect to any
Interest Period relating to a Dollar Loan, the second Business Day prior to the
first day of such Interest Period, and (ii) with respect to any Interest Period
relating to a Sterling Loan, the first day of such Interest Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, and any successor
statute.
"Investment" means (i) any purchase or other acquisition by Company
or any of its Subsidiaries of, or of a beneficial interest in, any Securities of
any other Person (other than a Person that prior to such purchase or acquisition
was a Subsidiary of Company), (ii) any loan, advance (other than advances to
employees for moving, entertainment and travel expenses, drawing accounts and
similar expenditures in the ordinary course of business) or capital contribution
by Company or any of its Subsidiaries to any Third Party, including all
indebtedness and accounts receivable from that Third Party that are not current
assets or did not arise from sales to that Third Party in the ordinary course of
business, (iii) the designation of any Person as an Unrestricted Subsidiary, or
(iv) any monetary obligations under Interest Rate Agreements, Commodities
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Agreements or Currency Agreements not constituting Hedge Agreements. The amount
of any Investment shall be (A) the original cost of such Investment (determined,
in the case of an Investment described in clause (iii) above, as provided in the
definition of "Subsidiary", without any adjustments for increases or decreases
in value, or write-ups, write-downs or write-offs with respect to such
Investment, minus (B) the lesser of (1) the aggregate amount of any repayments,
redemptions, dividends or distributions thereon or proceeds from the sale
thereof, in each case to the extent of Cash payments (including any Cash
received by way of deferred payment pursuant to, or monetization of, a note
receivable or otherwise, but only as and when so received) actually received by
Company or the applicable Subsidiary of Company, and (2) the aggregate amount
described in the immediately preceding clause (A).
"Issuing Lender" means, with respect to any Letter of Credit, the
Lender which agrees or is otherwise obligated to issue such Letter of Credit,
determined as provided in subsection 3.1B(ii).
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; provided
that in no event shall any corporate Subsidiary of any Person be considered to
be a Joint Venture to which such Person is a party.
"KKR" means Kohlberg Kravis Roberts & Co. L.P.
"Lender" and "Lenders" means the persons identified as "Lenders" and
listed on the signature pages of this Agreement, together with their successors
and permitted assigns pursuant to subsection 10.1, and the term "Lenders" shall
include Swing Line Lender unless the context otherwise requires; provided that
the term "Lenders", when used in the context of a particular Commitment, shall
mean Lenders having that Commitment; and provided, further that the terms
"Lender" and "Lenders", when used in the context of the making or carrying of
the Sterling Loans of any Lender, shall mean and include the Sterling Lender
Affiliate, if any, of such Lender.
"Lending Office" means, as to any Lender, the offices or offices of
such Lender or its Sterling Lender Affiliate specified as the "Dollar Lending
Office" or "Sterling Lending Office", as the case may be, on Schedule 2.1
annexed hereto, or such other office or offices as such Lender may from time to
time hereafter designate as such in a written notice delivered by such Lender to
Company and Administrative Agent.
"Letter of Credit" or "Letters of Credit" means Commercial Letters
of Credit and Standby Letters of Credit issued or to be issued by Issuing
Lenders for the account of Company pursuant to subsection 3.1.
"Letter of Credit Usage" means, as at any date of determination, the
sum of (i) the maximum aggregate amount which is or at any time thereafter may
become
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available for drawing under all Letters of Credit then outstanding plus (ii) the
aggregate amount of all drawings under Letters of Credit honored by Issuing
Lenders and not theretofore reimbursed by Company (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to subsection
3.3B). For purposes of this definition, any amount described in clause (i) or
(ii) of the preceding sentence which is denominated in a currency other than
Dollars shall be valued based on the applicable Exchange Rate for such currency
as of the applicable date of determination.
"LIBOR" means, for any Interest Rate Determination Date with respect
to an Interest Period for a LIBOR Loan, the rate per annum determined on the
basis of the London interbank offered rate for Dollar deposits (or, in the case
of Sterling Loans, Sterling deposits) with maturities comparable to such
Interest Period as of approximately 11:00 A.M. (London time) on such Interest
Rate Determination Date as set forth on Telerate Page 3750; provided that in the
event such rate does not appear on Page 3750 (or otherwise) of the Telerate
Service, "LIBOR" for purposes of this paragraph shall be determined by reference
to (i) such other publicly available service for displaying interest rates for
deposits in the Applicable Currency as may be agreed upon by Company and
Administrative Agent or (ii) in the absence of such agreement, the arithmetic
average (rounded upward to the nearest 1/16 of one percent) of the offered
quotations, if any, to first class banks in the London interbank market for the
Applicable Currency by Reference Lenders for Dollar deposits (or, in the case of
Sterling Loans, Sterling deposits) of amounts in same day funds comparable to
the respective principal amounts of the LIBOR Loans of Reference Lenders for
which LIBOR is then being determined (which principal amount shall be deemed to
be $1,000,000 (or (pounds)1,000,000, in the case of a Sterling Loan) in the case
of any Reference Lender not making, converting to or continuing such a LIBOR
Loan) with maturities comparable to such Interest Period as of approximately
10:00 A.M. (New York time) (or 11:00 A.M. (London time), in the case of Sterling
Loans) on such Interest Rate Determination Date; provided that if any Reference
Lender fails to provide Administrative Agent with its aforementioned quotation
then LIBOR shall be determined based on the quotation(s) provided to
Administrative Agent by the other Reference Lender(s).
"LIBOR Loans" means Loans bearing interest at rates determined by
reference to LIBOR as provided in subsection 2.2A.
"Lien" means any lien, mortgage, pledge, assignment, security
interest, charge or other similar encumbrance of any kind (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, and any agreement to give any security interest) and any other similar
preferential arrangement having the practical effect of any of the foregoing.
"LLC Pledge Agreement" means the LLC Pledge Agreement executed and
delivered on the Closing Date by Company and Collateral Agent, in form and
substance satisfactory to Collateral Agent and Administrative Agent, as such LLC
Pledge
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Agreement may thereafter be amended, supplemented or otherwise modified from
time to time.
"Loan" or "Loans" means one or more of the Tranche A Term Loans,
Tranche B Term Loans, Tranche C Term Loans, Revolving Loans or Swing Line Loans
or any combination thereof.
"Loan Documents" means this Agreement, the Notes, the Letters of
Credit (and any applications for Letters of Credit), the Guaranties and the
Collateral Documents.
"Loan Party" means each Borrower, each Subsidiary Guarantor and each
Subsidiary executing and delivering a Loan Document after the Closing Date
pursuant to subsection 6.7B, and "Loan Parties" means all such Persons,
collectively.
"MLA Reference Banks" means BTCo, Chase and BNY.
"Management Group" means, at any time, the Chairman of the Board,
the President, any Executive Vice President or Vice President, the Treasurer and
the Secretary of the Borrower at such time.
"Management Investors" means the management officers and employees
of Company and its Subsidiaries identified as Management Investors on Schedule
4.1C annexed hereto.
"Management Subscription Agreements" means the Management Stock
Subscription Agreements dated as of the Closing Date between Company and the
Management Investors providing for the retention of Pre-Merger Shares and/or the
purchase of Post-Merger Shares by the Management Investors, in each case as in
effect on the Closing Date.
"Mandatory Liquid Asset Costs" means, with respect to each Tranche A
Lender in respect of any Sterling Loans, any additional cost to such Lender of
complying with the relative reserve asset ratio required by the Bank of England
from time to time, expressed as a percentage per annum, and calculated as set
forth in Schedule 1.1 annexed hereto.
"Margin Stock" has the meaning assigned to that term in Regulation U
of the Board of Governors of the Federal Reserve System as in effect from time
to time.
"Master Pledge Agreement" means the Master Pledge Agreement executed
and delivered on the Closing Date by Company and Collateral Agent, substantially
in the form of Exhibit XV annexed hereto, as such Master Pledge Agreement may
thereafter be amended, supplemented or otherwise modified from time to time.
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"Material Adverse Effect" means any circumstance or condition
affecting the business, assets, operations, properties or financial condition of
Company and its Subsidiaries, taken as a whole, that would materially adversely
affect (a) the ability of Loan Parties, taken as a whole, to perform their
obligations under this Agreement and the other Loan Documents, taken as a whole,
or (b) the rights and remedies of Administrative Agent and Lenders under this
Agreement and the other Loan Documents, taken as a whole.
"Material Foreign Subsidiary" means a Material Subsidiary that is
not a Domestic Subsidiary.
"Material Subsidiary" means (i) each U.K. Borrower and (ii) each
Subsidiary of Company now existing or hereafter acquired or formed by Company
which, on a consolidated basis for such Subsidiary and its Subsidiaries, (a) for
the most recent Fiscal Year accounted for more than 5% of the consolidated gross
revenues of Company and its Subsidiaries or (b) as at the end of such Fiscal
Year, was the owner of more than 5% of the consolidated total assets of Company
and its Subsidiaries.
"Merger" means the merger of Newco with and into Company in
accordance with the terms of the Merger Agreement, with Company being the
surviving corporation in such Merger.
"Merger Agreement" means that certain Agreement and Plan of Merger
by and among Company and Newco dated as of January 23, 1997, as amended as of
April 19, 1997, in the form delivered to Administrative Agent and Lenders prior
to their execution of this Agreement.
"Multiemployer Plan" means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, with respect to which Company, any of
its Subsidiaries or any ERISA Affiliate may have liability.
"Net Asset Sale Proceeds" means, with respect to any Asset Sale,
Cash payments (including any Cash received by way of deferred payment pursuant
to, or by monetization of, a note receivable or otherwise, but only as and when
so received) received from such Asset Sale, net of (i) the costs and expenses
relating to such Asset Sale, (ii) all taxes paid or estimated to be payable in
connection with such Asset Sale, (iii) payment of the outstanding principal
amount of, premium or penalty, if any, and interest on any Indebtedness (other
than the Loans) that is secured by a Lien on the stock or assets in question and
that is required to be repaid under the terms thereof as a result of such Asset
Sale and (iv) the amount of any reasonable reserves established in accordance
with GAAP against any liabilities (other than taxes described in clause (ii)
above) that are (a) associated with the assets that are the subject of such
Asset Sale and (b) retained by Company or any of its Subsidiaries; provided that
(X) in the event the amount of any taxes estimated to be payable as described in
clause (ii) above exceeds the
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amount actually paid, Company or the applicable Subsidiary shall be deemed to
have received Net Asset Sale Proceeds in the amount of such excess on the date
such taxes are paid, and (Y) upon any subsequent reduction in the amount of any
reserve described in clause (iv) above (other than in connection with a payment
by Company or the applicable Subsidiary in respect of the applicable liability),
Company or the applicable Subsidiary shall be deemed to have received Net Asset
Sale Proceeds on the date and in the amount of such reduction.
"Net EBITDA Adjustment" means, for any period, an amount equal to
(i) the sum of the aggregate of the amounts of Consolidated Adjusted EBITDA for
any Included Pro Forma Entities (calculated for the entire such period for each
such Included Pro Forma Entity as if such Included Pro Forma Entity had become
an Included Pro Forma Entity on the first day of such period) minus (ii) the sum
of the aggregate of the amounts of Consolidated Adjusted EBITDA for any Excluded
Pro Forma Entities (calculated for the entire such period for each such Excluded
Pro Forma Entity, including any portion thereof prior to the date on which it
became an Excluded Pro Forma Entity).
"Net Interest Adjustment" means, for any period, an amount equal to
(i) the sum of the aggregate of the amounts of Consolidated Interest Expense for
any Included Pro Forma Entities (calculated for the entire such period for each
such Included Pro Forma Entity, including any portion thereof prior to the date
on which it became an Included Pro Forma Entity, in each case on a pro forma
basis as if any Indebtedness of such Included Pro Forma Entity that was
incurred, assumed or prepaid in connection with the transaction pursuant to
which it became an Included Pro Forma Entity had been incurred, assumed or
prepaid on the first day of such period) minus (ii) the sum of the aggregate of
the amounts of Consolidated Interest Expense for any Excluded Pro Forma Entities
(calculated for the entire such period for each such Excluded Pro Forma Entity,
including any portion thereof prior to the date on which it became an Excluded
Pro Forma Entity).
"Newco" means NXS Acquisition Corp. a Delaware corporation existing
prior to the Merger.
"Newco Equity Amount" has the meaning assigned to that term in the
recitals to this Agreement.
"New Sub Debt" means the $240,000,000 in aggregate principal amount
of 97/8% Senior Subordinated Notes due 2007 of Company issued pursuant to the
New Sub Debt Indenture.
"New Sub Debt Indenture" means the indenture pursuant to which the
New Sub Debt is issued, as such indenture may be amended from time to time.
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"Non-Excluded Tax" has the meaning assigned to that term in
subsection 2.7A.
"Notes" means one or more of the Tranche A Term Notes, Tranche B
Term Notes, Tranche C Term Notes, Revolving Notes or Swing Line Note or any
combination thereof.
"Notice of Borrowing" means a notice substantially in the form of
Exhibit I annexed hereto delivered by the applicable Borrower to Administrative
Agent pursuant to subsection 2.1B with respect to a proposed borrowing.
"Notice of Conversion/Continuation" means a notice substantially in
the form of Exhibit II annexed hereto delivered by the applicable Borrower to
Administrative Agent pursuant to subsection 2.2D with respect to a proposed
conversion or continuation of the applicable basis for determining the interest
rate with respect to the Loans specified therein.
"Notice of Request for Issuance of Letter of Credit" means a notice
substantially in the form of Exhibit III annexed hereto delivered by Company to
Administrative Agent pursuant to subsection 3.1B(i) with respect to the proposed
issuance of a Letter of Credit.
"Obligations" means all monetary obligations of every nature of each
Loan Party from time to time owed to Agents, Lenders or any of them under the
Loan Documents, whether for principal, interest, reimbursement of amounts drawn
under Letters of Credit, fees, expenses, indemnification or otherwise.
"Officer's Certificate" means, as applied to any corporation, a
certificate executed on behalf of such corporation by its chairman of the board
(if an officer), its president, one of its vice presidents, its chief financial
officer, or its treasurer.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"Pension Plan" means a pension plan as defined in Section 3(2) of
ERISA (other than a Multiemployer Plan), with respect to which Company, any of
its Subsidiaries or any ERISA Affiliate may have any liability.
"Permitted Encumbrances" means the following types of Liens:
(i) Liens for taxes, fees, assessments or other governmental charges
which are not delinquent or remain payable without penalty, or to the extent
that payment thereof is otherwise not, at the time, required by subsection 6.3;
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(ii) Liens in respect of property or assets imposed by law, such as
carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's or
other similar Liens arising in the ordinary course of business, in each case so
long as such Liens do not, individually or in the aggregate, have a Material
Adverse Effect;
(iii) Liens (other than any Lien imposed pursuant to Section
401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA) incurred or
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and return-of-money bonds
and other similar obligations incurred in the ordinary course of business
(exclusive of obligations in respect of payments for borrowed money);
(iv) Liens incurred in the ordinary course of business on securities
to secure repurchase and reverse repurchase obligations in respect of such
securities;
(v) Liens consisting of judgment or judicial attachment liens in
circumstances not constituting an Event of Default under subsection 8.8;
(vi) easements, rights-of-way, restrictions, minor defects or
irregularities of title and other similar encumbrances not interfering in any
material respect with the business of Company and its Subsidiaries, taken as a
whole;
(vii) Liens securing obligations in respect of Capital Leases on the
assets subject to such Capital Leases; provided that such Capital Leases are
otherwise permitted hereunder.
(viii) Liens arising solely by virtue of (a) any statutory or common
law provision relating to bankers' liens, rights of set-off or similar rights
and remedies with respect to deposit accounts or other funds maintained with a
creditor depository institution or (b) any contractual netting arrangement with
respect to deposit accounts maintained by any Subsidiaries of Company in the
United Kingdom, to the extent such arrangement
secures the repayment of any overdraft charged against any such account on a net
credit/debit balance basis with the other such accounts; provided that (in the
case of both clause (a) and (b) above) the applicable deposit account is not a
cash collateral account;
(ix) any interest or title of a lessor, or secured by a lessor's
interest under, any lease permitted by this Agreement;
(x) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
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(xi) Liens on goods the purchase price of which is financed by a
Commercial Letter of Credit issued for the account of Company or any of its
Subsidiaries; provided that such Lien secures only the obligations of Company or
such Subsidiary in respect of such Commercial Letter of Credit to the extent
permitted under this Agreement;
(xii) leases or subleases granted to others not interfering in any
material respect with the business of Company and its Subsidiaries, taken as a
whole; and
(xiii) Liens created or deemed to exist in connection with an
Accounts Receivable Facility, to the extent that any such Lien relates to
accounts receivables subject to such program.
"Person" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which Company or any of its Subsidiaries sponsors or maintains, or to
which Company or any of its Subsidiaries makes, is making or is obligated to
make contributions, or to which Company or any of its Subsidiaries may have any
liability, and includes any Pension Plan.
"Pledge Agreements" means the Master Pledge Agreement, the LLC
Pledge Agreement and any pledge agreements or other similar instruments that
Company may enter into from time to time on or after the Closing Date with
respect to any Material Foreign Subsidiary pursuant to the terms of the Master
Pledge Agreement, as such agreements or instruments may thereafter be amended,
supplemented or otherwise modified from time to time.
"Pledged Collateral" means, collectively, the "Pledged Collateral"
as defined in each of the Master Pledge Agreement and the LLC Pledge Agreement.
"Post-Merger Shares" means the Class A common stock of Company, par
value $0.001 per share, outstanding immediately after consummation of the
Merger.
"Potential Event of Default" means a condition or event that, after
notice or lapse of time or both, would constitute an Event of Default.
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"Pre-Merger Shares" means the Class A common stock of Company, par
value $0.001 per share, outstanding immediately prior to the consummation of the
Merger.
"Prime Rate" means the rate that BTCo announces from time to time as
its prime lending rate, as in effect from time to time. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. BTCo or any other Lender may make commercial
loans or other loans at rates of interest at, above or below the Prime Rate.
"Pro Forma Adjustment" means, for any period with respect to any
Included Pro Forma Entity (other than an Unrestricted Subsidiary redesignated as
a Subsidiary of Company, for which there shall be no Pro Forma Adjustment), the
pro forma increase or decrease in the Consolidated Adjusted EBITDA of such
Included Pro Forma Entity that Company in good faith predicts will occur as a
result of reasonably identifiable and supportable net cost savings or additional
net costs or a reasonably identifiable and supportable increase in sales volume,
as the case may be, that will be realizable during such period by combining the
operations of such Included Pro Forma Entity with the operations of Company and
its Subsidiaries; provided that, so long as such net cost savings or additional
net costs or increase in sales volume will be realizable at any time during such
period it shall be assumed, for purposes of projecting such pro forma increase
or decrease in such Consolidated Adjusted EBITDA, that such net cost savings or
additional net costs or increase in sales volume will be realizable during the
entire such period; and provided, further that any such pro forma increase or
decrease in such Consolidated Adjusted EBITDA shall be without duplication of
any net cost savings or additional net costs or increase in sales volume
actually realized during such period and already included in such Consolidated
Adjusted EBITDA.
"Pro Forma Adjustment Certificate" shall mean a certificate of a
Responsible Officer of Company delivered pursuant to subsection 6.1(xii) setting
forth the information described in clause (d) of subsection 6.1(iii).
"Pro Rata Share" means (i) with respect to all payments,
computations and other matters relating to the Tranche A Term Loan Commitment or
the Tranche A Term Loans of any Lender, the percentage obtained by dividing (x)
the Tranche A Term Loan Exposure of that Lender by (y) the aggregate Tranche A
Term Loan Exposure of all Lenders, (ii) with respect to all payments,
computations and other matters relating to the Tranche B Term Loan Commitment or
the Tranche B Term Loan of any Lender, the percentage obtained by dividing (x)
the Tranche B Term Loan Exposure of that Lender by (y) the aggregate Tranche B
Term Loan Exposure of all Lenders, (iii) with respect to all payments,
computations and other matters relating to the Tranche C Term Loan Commitment or
the Tranche C Term Loan of any Lender, the percentage obtained by dividing (x)
the Tranche C Term Loan Exposure of that Lender by (y) the aggregate Tranche C
Term Loan Exposure of all Lenders, (iv) with respect to all payments,
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computations and other matters relating to the Revolving Loan Commitment or the
Revolving Loans of any Lender or any Letters of Credit issued or participations
therein purchased by any Lender or any participations in any Swing Line Loans
purchased by any Lender, the percentage obtained by dividing (x) the Revolving
Loan Exposure of that Lender by (y) the aggregate Revolving Loan Exposure of all
Lenders, and (v) for all other purposes with respect to each Lender, the
percentage obtained by dividing (x) the sum of the Tranche A Term Loan Exposure
of that Lender plus the Tranche B Term Loan Exposure of that Lender plus the
Tranche C Term Loan Exposure of that Lender plus the Revolving Loan Exposure of
that Lender by (y) the sum of the aggregate Tranche A Term Loan Exposure of all
Lenders plus the aggregate Tranche B Term Loan Exposure of all Lenders plus the
aggregate Tranche C Term Loan Exposure of all Lenders plus the aggregate
Revolving Loan Exposure of all Lenders, in any such case as the applicable
percentage may be adjusted by assignments permitted pursuant to subsection 10.1.
The initial Pro Rata Share of each Lender for purposes of each of clauses (i),
(ii), (iii), (iv) and (v) of the preceding sentence is set forth opposite the
name of that Lender in Schedule 2.1 annexed hereto.
"Recapitalization" means, collectively, (i) the Merger, (ii) the
repurchase of the Existing Senior Notes and the Existing Subordinated Notes and
the repayment of all amounts outstanding under the Existing Credit Agreement,
(iii) the amendment of the Existing Subordinated Note Indenture pursuant to the
Consent Solicitation, (iv) the transactions contemplated by the Stockholders
Agreement, and (v) the related transactions in respect of management stock,
including the cancellation of options for the purchase of Pre-Merger Shares held
by certain members of management, the retention and purchase of Post-Merger
Shares by certain members of management and the issuance to certain members of
management of options for the purchase of Post-Merger Shares.
"Recapitalization Financing Requirements" means the aggregate of all
amounts necessary (i) to pay the aggregate cash consideration payable to all
holders of Pre-Merger Shares pursuant to the Merger Agreement upon consummation
of the Merger, (ii) to repurchase the Existing Senior Notes and the Existing
Subordinated Notes and to repay all Indebtedness outstanding under the Existing
Credit Agreement, and (iii) to pay Transaction Costs.
"Receivables Fees" means distributions or payments made directly or
by means of discounts with respect to any participation interests issued or sold
in connection with, and other fees paid in connection with, any Accounts
Receivable Facility.
"Reference Lenders" means BTCo, Chase and BNY.
"Refinancing Sub Debt" means Indebtedness of Company issued in
exchange for, or the proceeds of which are used to repurchase, redeem, defease
or otherwise prepay or retire (collectively, to "Refinance" or a "Refinancing"),
New Sub Debt; provided that (i) the aggregate principal amount of such
Indebtedness shall not
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exceed the sum of (a) the aggregate principal amount of New Sub Debt thereby
Refinanced plus (b) the amount of any tender premium, call premium or similar
premium (any such premium being a "Refinancing Premium") paid by Company in
connection with such Refinancing, (ii) such Indebtedness is unsecured and is not
guarantied by any Subsidiary of Company, and (iii) the terms of such
Indebtedness (including the maturity, amortization schedule, covenants,
defaults, remedies, subordination provisions and other material terms thereof)
shall be no less favorable in any material respect to Lenders than the other
terms of the New Sub Debt.
"Refinancing Sub Debt Indenture" means the Indenture pursuant to
which any Refinancing Sub Debt is issued, as such indenture may be amended from
time to time.
"Refunded Swing Line Loans" has the meaning assigned to that term in
subsection 2.1A(v).
"Register" has the meaning assigned to that term in subsection 2.1D.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Reimbursement Date" has the meaning assigned to that term in
subsection 3.3B.
"Related Agreements" means, collectively, the Merger Agreement, the
Debt Tender Offer Materials, the Stockholders Agreement and the New Sub Debt
Indenture.
"Requisite Class Lenders" means, at any time of determination (i)
for the Class of Lenders having Revolving Loan Exposure, Lenders having or
holding more than 50% of the aggregate Revolving Loan Exposure of all Lenders,
(ii) for the Class of Lenders having Tranche A Term Loan Exposure, Lenders
having or holding more than 50% of the aggregate Tranche A Term Loan Exposure of
all Lenders, and (iii) for the Class of Lenders having Tranche B Term Loan
Exposure and/or Tranche C Term Loan Exposure, Lenders having or holding more
than 50% of the sum of the aggregate Tranche B Term Loan Exposure of all Lenders
plus the aggregate Tranche C Term Loan Exposure of all Lenders.
"Requisite Lenders" means Lenders having or holding more than 50% of
the sum of the aggregate Tranche A Term Loan Exposure of all Lenders plus the
aggregate Tranche B Term Loan Exposure of all Lenders plus the aggregate Tranche
C Term Loan Exposure of all Lenders plus the aggregate Revolving Loan Exposure
of all Lenders.
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"Responsible Officer" means, with respect to any Person, its chief
executive officer, president, or any vice president, managing director,
treasurer, controller or other officer of such Person having substantially the
same authority and responsibility; provided that, with respect to compliance
with financial covenants, "Responsible Officer" means the chief financial
officer, treasurer or controller of Company, or any other officer of Company
having substantially the same authority and responsibility.
"Restricted Acquisition Subsidiary" means (i) a Subsidiary of
Company (other than any Subsidiary of either U.K. Borrower, for so long as
either U.K. Borrower has any Obligations outstanding) that is (a) first created
or acquired by Company or any of its Subsidiaries after the Closing Date in
connection with an Acquisition and (b) designated as a "Restricted Acquisition
Subsidiary" pursuant to a written notice delivered by Company to Administrative
Agent prior to the consummation of such Acquisition; provided that Company may,
by written notice to Administrative Agent, redesignate any Restricted
Acquisition Subsidiary as a Subsidiary that is not a Restricted Acquisition
Subsidiary so long as, after giving effect to the aggregate principal amount of
any outstanding Indebtedness of such Restricted Acquisition Subsidiary that was
originally incurred pursuant to subsection 7.1(x) as if such Indebtedness were
being incurred by such Restricted Acquisition Subsidiary as of the date of such
redesignation, no Event of Default or Potential Event of Default shall have
occurred and be continuing or would result therefrom and (ii) any Subsidiary of
a Restricted Acquisition Subsidiary described in the foregoing clause (i).
"Restricted Junior Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
of Company now or hereafter outstanding, except a dividend payable solely in
shares of common stock of Company or payable solely in shares of that class of
stock to the holders of that class, (ii) any redemption, retirement, sinking
fund or similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of stock of Company now or hereafter
outstanding, (iii) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class
of stock of Company now or hereafter outstanding, and (iv) any payment or
prepayment of principal of, or redemption, purchase, retirement, defeasance
(including in-substance or legal defeasance), sinking fund or similar payment
with respect to, any Subordinated Indebtedness.
"Revolving Loan Commitment" means the commitment of a Lender to make
Revolving Loans to Company pursuant to subsection 2.1A(iv), and "Revolving Loan
Commitments" means such commitments of all Lenders in the aggregate.
"Revolving Loan Commitment Termination Date" means the seventh
anniversary of the Closing Date or such earlier date on which the Revolving Loan
Commitments may be terminated pursuant to subsection 2.4B or Section 8.
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"Revolving Loan Exposure" means, with respect to any Lender as of
any date of determination (i) prior to the termination of the Revolving Loan
Commitments, that Lender's Revolving Loan Commitment and (ii) after the
termination of the Revolving Loan Commitments, the sum, without duplication, of
(a) the aggregate outstanding principal amount of the Revolving Loans of that
Lender plus (b) in the event that Lender is an Issuing Lender, the aggregate
Letter of Credit Usage in respect of all Letters of Credit issued by that Lender
(in each case net of any participations purchased by other Lenders in such
Letters of Credit or any unreimbursed drawings thereunder) plus (c) the
aggregate amount of all participations purchased by that Lender in any
outstanding Letters of Credit or any unreimbursed drawings under any Letters of
Credit plus (d) in the case of Swing Line Lender, the aggregate outstanding
principal amount of all Swing Line Loans (net of any participations therein
purchased by other Lenders) plus (e) the aggregate amount of all participations
purchased by that Lender in any outstanding Swing Line Loans, in each case
without duplication.
"Revolving Loans" means the Loans made by Lenders to Company
pursuant to subsection 2.1A(iv).
"Revolving Notes" means (i) any promissory notes of Company issued
pursuant to subsection 2.1E to evidence the Revolving Loans of any Lenders and
(ii) any promissory notes issued by Company pursuant to the last sentence of
subsection 10.1B(i) in connection with assignments of the Revolving Loan
Commitments and Revolving Loans of any Lenders, in each case substantially in
the form of Exhibit VII annexed hereto, as they may be amended, supplemented or
otherwise modified from time to time.
"SEC" means the Securities and Exchange Commission or any successor
thereto.
"Securities" means any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
"Standby Letter of Credit" means any standby letter of credit or
similar instrument issued for the purpose of supporting (i) Indebtedness of
Company or any of its Subsidiaries in respect of industrial revenue or
development bonds or financings, (ii) workers' compensation liabilities of
Company or any of its Subsidiaries, (iii) the obligations of third party
insurers of Company or any of its Subsidiaries arising by virtue
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of the laws of any jurisdiction requiring third party insurers, (iv) obligations
with respect to Capital Leases or operating leases of Company or any of its
Subsidiaries, and (v) other lawful corporate purposes of Company or any of its
Subsidiaries.
"Sterling" and the sign "(pounds)" mean the lawful currency from
time to time of the United Kingdom.
"Sterling Lender Affiliate" has the meaning assigned to that term in
subsection 2.1G.
"Sterling Loans" means Loans made to U.K. Borrowers denominated and
payable in Sterling.
"Sterling Notice Office" means the office of Administrative Agent
located at BT Services Ireland Limited, Abbey Court, Irish Life Centre, Lower
Abbey Street, Dublin 1, Ireland, Attention: Elizabeth Keegan; telephone: 011 353
1 805-1027; facsimile: 011 353 1 805-1708; or such other office of
Administrative Agent as may from time to time hereafter be designated as such in
a written notice delivered by Administrative Agent to Company and each Lender.
"Stockholders Agreement" means that certain Stockholders Agreement
dated as of January 23, 1997 by and among NXS I, L.L.C. and the Persons listed
on Schedule 1 annexed thereto, in the form delivered to Administrative Agent and
Lenders prior to their execution of this Agreement and as such agreement may be
amended from time to time thereafter.
"Subordinated Indebtedness" means (i) the Indebtedness of Company
evidenced by the Existing Subordinated Notes, (ii) the Indebtedness of Company
evidenced by the New Sub Debt, and (iii) the Indebtedness of Company evidenced
by any Refinancing Sub Debt.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof; provided that, with respect to Company or any of its Subsidiaries, the
term "Subsidiary" shall not include any Unrestricted Subsidiary or any
special-purpose entity that is a party to any Accounts Receivable Facility; and
provided, further that Company shall be permitted from time to time to (i)
designate any Unrestricted Subsidiary as a "Subsidiary" of Company hereunder by
written notice to Administrative Agent, so long as
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(a) no Event of Default or Potential Event of Default shall have occurred and be
continuing or shall be caused thereby and (b) the provisions of subsection 6.7
shall have been complied with in respect of such newly-designated Subsidiary, or
(ii) designate any Subsidiary of Company that is formed or acquired after the
Closing Date (other than a U.K. Borrower or any Subsidiary of a U.K. Borrower,
for so long as either U.K. Borrower has any Obligations outstanding), or any
Person that, as a result of the acquisition after the Closing Date by Company or
any of its Subsidiaries of any equity Securities of such Person, would otherwise
be a Subsidiary of Company hereunder, to be an "Unrestricted Subsidiary" by
written notice to Administrative Agent so long as (1) after giving effect to
such designation as an Investment in such Unrestricted Subsidiary (calculated as
an amount equal to the sum of (X) the net worth of the Subsidiary or other
Person so designated (the "Designated Person") immediately prior to such
designation (such net worth to be calculated, in the case of a Designated Person
that is currently a Subsidiary of Company, without regard to any Obligations of
such Subsidiary under the Subsidiary Guaranty) and (Y) the aggregate principal
amount of any Indebtedness owed by the Designated Person to Company or any of
its Subsidiaries immediately prior to such designation, all calculated, except
as set forth in the parenthetical to clause (X) above, on a consolidated basis
in accordance with GAAP), Company shall be in compliance with the provisions of
subsection 7.3(vi), (2) no Subsidiary is a Subsidiary of such Unrestricted
Subsidiary, (3) on or promptly after the date of designation of such Person as
such Unrestricted Subsidiary, such Unrestricted Subsidiary shall enter into a
tax sharing agreement with Company that provides (as determined by Company in
good faith) for an appropriate allocation of tax liabilities and benefits, and
(4) no recourse whatsoever (whether by contract or by operation of law or
otherwise) may be had to Company or any of its Subsidiaries or any of their
respective properties or assets for any obligations of such Unrestricted
Subsidiary except to the extent that the aggregate maximum amount of such
recourse constitutes (X) an Investment permitted under subsection 7.3(vi) or (Y)
a Guarantee Obligation permitted under subsection 7.4(vii).
"Subsidiary Guarantor" means any Domestic Subsidiary that executes
and delivers a counterpart of the Subsidiary Guaranty on the Closing Date or
from time to time thereafter pursuant to subsection 6.7.
"Subsidiary Guaranty" means the Subsidiary Guaranty executed and
delivered by existing Domestic Subsidiaries on the Closing Date and to be
executed and delivered by additional Domestic Subsidiaries from time to time
thereafter in accordance with subsection 6.7A, substantially in the form of
Exhibit XVI annexed hereto, as such Subsidiary Guaranty may thereafter be
amended, supplemented or otherwise modified from time to time.
"Supermajority Class Lenders" means, at any time of determination
(i) for the Class of Lenders having Revolving Loan Exposure, Lenders having or
holding more than 66-2/3% of the aggregate Revolving Loan Exposure of all
Lenders, (ii) for the Class of Lenders having Tranche A Term Loan Exposure,
Lenders having or holding more than
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66-2/3% of the aggregate Tranche A Term Loan Exposure of all Lenders, and (iii)
for the Class of Lenders having Tranche B Term Loan Exposure and/or Tranche C
Term Loan Exposure, Lenders having or holding more than 66-2/3% of the sum of
the aggregate Tranche B Term Loan Exposure of all Lenders plus the aggregate
Tranche C Term Loan Exposure of all Lenders.
"Swing Line Lender" means BTCo, or any Person serving as a successor
Administrative Agent hereunder, in its capacity as Swing Line Lender hereunder.
"Swing Line Loan Commitment" means the commitment of Swing Line
Lender to make Swing Line Loans to Company pursuant to subsection 2.1A(v).
"Swing Line Loans" means the Loans made by Swing Line Lender to
Company pursuant to subsection 2.1A(v).
"Swing Line Note" means (i) any promissory note of Company issued
pursuant to subsection 2.1E to evidence the Swing Line Loans of Swing Line
Lender and (ii) any promissory note issued by Company to any successor
Administrative Agent and Swing Line Lender pursuant to the last sentence of
subsection 9.5B, in each case substantially in the form of Exhibit VIII annexed
hereto, as it may be amended, supplemented or otherwise modified from time to
time.
"Syndication Agent" has the meaning assigned to that term in the
introduction to this Agreement.
"Tax" or "Taxes" means any present or future tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature and whatever called,
by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld
or assessed; provided that "Tax on the overall net income" of a Person shall be
construed as a reference to a tax imposed by the jurisdiction in which that
Person is organized or in which that Person's principal office (and/or, in the
case of a Lender, its applicable Lending Office) is located or in which that
Person (and/or, in the case of a Lender, its applicable Lending Office) is
deemed to be doing business on all or part of the net income, profits or gains
(whether worldwide, or only insofar as such income, profits or gains are
considered to arise in or to relate to a particular jurisdiction, or otherwise)
of that Person (and/or, in the case of a Lender, its applicable Lending Office).
"Term Loans" means, collectively, the Tranche A Term Loans, the
Tranche B Term Loans and the Tranche C Term Loans.
"Third Party" means any Person other than Company or any of its
Subsidiaries.
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"Total Utilization of Revolving Loan Commitments" means, as at any
date of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans (other than Revolving Loans made for the purpose of
repaying any Refunded Swing Line Loans or reimbursing the applicable Issuing
Lender for any amount drawn under any Letter of Credit but not yet so applied)
plus (ii) the aggregate principal amount of all outstanding Swing Line Loans
plus (iii) the Letter of Credit Usage.
"Tranche A Lender" means a Lender that has Tranche A Term Loan
Exposure; provided, that if the Sterling Loans of such Lender are made or
carried by a Sterling Lender Affiliate of such Lender, the term "Tranche A
Lender" shall mean the Sterling Lender Affiliate of such Lender.
"Tranche A Term Loan Commitment" means the commitment of a Lender to
make Tranche A Term Loans to Company and to U.K. Borrowers pursuant to
subsection 2.1A(i), and "Tranche A Term Loan Commitments" means such commitments
of all Lenders in the aggregate.
"Tranche A Term Loan Exposure" means, with respect to any Lender as
of any date of determination (i) prior to the funding of the Tranche A Term
Loans, that Lender's Tranche A Term Loan Commitment, (ii) after the initial
funding of the Tranche A Term Loans but before the date (the "Tranche A Term
Loan Commitment Termination Date") that is 35 days after the Closing Date or (if
earlier) the date on which the Delayed-Draw Term Loans are made, the outstanding
principal amount of the Tranche A Term Loans of that Lender plus that portion of
the Tranche A Term Loan Commitment of that Lender that equals that Lender's Pro
Rata Share of the Delayed-Draw Term Loans requested by Company pursuant to the
proviso to the definition thereof, and (iii) after the Tranche A Term Loan
Commitment Termination Date, the outstanding principal amount of the Tranche A
Term Loans of that Lender.
"Tranche A Term Loans" means the Loans made by Lenders to Company
and U.K. Borrowers pursuant to subsection 2.1A(i).
"Tranche A Term Notes" means any promissory notes of Company or U.K.
Borrowers issued pursuant to subsection 2.1E to evidence the Tranche A Term
Loans of any Lenders, substantially in the form of Exhibit IV-A annexed hereto
in the case of Dollar Loans, and substantially in the form of Exhibit IV-B
annexed hereto in the case of Sterling Loans, as any such note may be amended,
supplemented or otherwise modified from time to time.
"Tranche B Term Loan Commitment" means the commitment of a Lender to
make a Tranche B Term Loan to Company pursuant to subsection 2.1A(ii), and
"Tranche B Term Loan Commitments" means such commitments of all Lenders in the
aggregate.
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"Tranche B Term Loan Exposure" means, with respect to any Lender as
of any date of determination (i) prior to the funding of the Tranche B Term
Loans, that Lender's Tranche B Term Loan Commitment and (ii) after the funding
of the Tranche B Term Loans, the outstanding principal amount of the Tranche B
Term Loan of that Lender.
"Tranche B Term Loans" means the Loans made by Lenders to Company
pursuant to subsection 2.1A(ii).
"Tranche B Term Notes" means any promissory notes of Company issued
pursuant to subsection 2.1E to evidence the Tranche B Term Loans of any Lenders,
substantially in the form of Exhibit V annexed hereto, as they may be amended,
supplemented or otherwise modified from time to time.
"Tranche C Term Loan Commitment" means the commitment of a Lender to
make a Tranche C Term Loan to Company pursuant to subsection 2.1A(iii), and
"Tranche C Term Loan Commitments" means such commitments of all Lenders in the
aggregate.
"Tranche C Term Loan Exposure" means, with respect to any Lender as
of any date of determination (i) prior to the funding of the Tranche C Term
Loans, that Lender's Tranche C Term Loan Commitment and (ii) after the funding
of the Tranche C Term Loans, the outstanding principal amount of the Tranche C
Term Loan of that Lender.
"Tranche C Term Loans" means the Loans made by Lenders to Company
pursuant to subsection 2.1A(iii).
"Tranche C Term Notes" means any promissory notes of Company issued
pursuant to subsection 2.1E to evidence the Tranche C Term Loans of any Lenders,
substantially in the form of Exhibit VI annexed hereto, as they may be amended,
supplemented or otherwise modified from time to time.
"Transaction Costs" means the fees, costs and expenses payable by
Company in connection with the transactions contemplated by the Loan Documents,
the Related Agreements and the amendment of the Existing A/R Facility on or
before the Closing Date.
"Type" means, as applied to any Loan, whether such Loan is a Tranche
A Term Loan, a Tranche B Term Loan, a Tranche C Term Loan, a Revolving Loan or a
Swing Line Loan.
"UCC" means the Uniform Commercial Code (or any similar or
equivalent legislation) as in effect in any applicable jurisdiction.
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"U.K. Borrower" means each of UK Holding and ACI, and "U.K.
Borrowers" means UK Holding and ACI, collectively.
"UK Holding" has the meaning assigned to that term in the
introduction to this Agreement.
"U.K. Qualifying Bank" means a bank, trust or other financial
institution which (i) is a "bank" as defined in Section 840A of the Income and
Corporation Taxes Act 1988 (or any statutory re-enactment or modification
thereof in substantially the same form and context as at June 21, 1996) which is
within the charge to United Kingdom corporation tax as regards interest payable
or paid to it in respect of Sterling Loans under this Agreement; or (ii) if at
any time Section 349 or Section 840A of the Income and Corporation Taxes Act
1988 (or a statutory re-enactment or modification thereof, in substantially the
same form and context as at the date hereof) shall not at any time continue in
full force and effect, is a bank carrying on through its Sterling Lending Office
(as defined in the definition of "Lending Office") for the purposes of this
Agreement a bona fide banking business in the United Kingdom which is within the
charge to United Kingdom corporation tax as regards any interest payable or paid
to it in respect of Sterling Loans under this Agreement.
"Unfunded Pension Liability" means, with respect to any Pension
Plan, the amount of unfunded benefit liabilities of such Pension Plan as defined
in Section 4001(a)(18) of ERISA.
"United Kingdom" means the United Kingdom of Great Britain and
Northern Ireland.
"Unreinvested Asset Sale Proceeds" means that portion, if any, of
any Net Asset Sale Proceeds that shall not have been reinvested by Company and
its Subsidiaries in the business of Company and its Subsidiaries within (i) two
years after the receipt by Company or any of its Subsidiaries of such Net Asset
Sale Proceeds, in the case of an Asset Sale consisting of the issuance of
capital stock by any of Company's Subsidiaries to a Third Party or (ii) one year
after the receipt by Company or any of its Subsidiaries of such Net Asset Sale
Proceeds, in the case of any other Asset Sale.
"Unrestricted Subsidiary" means any corporate Subsidiary of Company
(determined without giving effect to the provisos set forth in the definition of
"Subsidiary") that is formed or acquired after the Closing Date and that is
designated by Company as an "Unrestricted Subsidiary" as provided in the
definition of "Subsidiary".
"Voting Stock" means, with respect to any Person, Securities of such
Person having ordinary voting power (without regard to the occurrence of any
contingency) to vote in the election of directors of such Person.
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1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under
Agreement.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. All computations made for purposes of
determining any Applicable Leverage Ratio or any amount of Consolidated Excess
Cash Flow or for purposes of determining compliance with any of the provisions
of Section 7, including any related computations of amounts represented by terms
defined in subsection 1.1, shall utilize accounting principles and policies in
effect at the time of preparation of, and consistent with those used to prepare,
the historical financial statements of Company and its Subsidiaries described in
subsection 5.3. Financial statements and other information required to be
delivered by Company to Lenders pursuant to clauses (i), (ii) and (ix) of
subsection 6.1 shall be prepared in accordance with GAAP as in effect at the
time of such preparation; provided that if any of the computations described in
the immediately preceding sentence shall at any time utilize accounting
principles and policies different from those utilized in preparing the financial
statements referred to in this sentence, such financial statements shall be
delivered together with reconciliation worksheets showing in reasonable detail
the differences that would result in such computations if the accounting
principles and policies utilized in preparing such financial statements were
utilized in making such computations.
1.3 Other Definitional Provisions and Rules of Construction.
A. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference.
B. References to "Sections" and "subsections" shall be to Sections
and subsections, respectively, of this Agreement unless otherwise specifically
provided.
C. The use in any of the Loan Documents of the word "include" or
"including", when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or
matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
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Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments; Making of Loans; the Register; Notes.
A. Commitments. Subject to the terms and conditions of this Agreement and
in reliance upon the representations and warranties of Borrowers herein set
forth, each Lender hereby severally agrees to make the Loans described in
subsections 2.1A(i), 2.1A(ii), 2.1A(iii) and 2.1A(iv), and Swing Line Lender
hereby agrees to make the Loans described in subsection 2.1A(v).
(i) Tranche A Term Loans. Each Lender severally agrees (a) to lend
to Company and U.K. Borrowers on the Closing Date (in the case of Tranche
A Term Loans other than Delayed-Draw Term Loans) and (b) to lend to
Company within 35 days after the Closing Date (in the case of Delayed-Draw
Term Loans) an aggregate amount not exceeding its Pro Rata Share of the
aggregate amount of the Tranche A Term Loan Commitments to be used for the
purposes identified in subsection 2.5A. Loans made to U.K. Borrowers shall
be made by Lenders in accordance with their respective Pro Rata Shares and
shall be denominated and payable in Sterling, and the aggregate amount of
such Loans shall not exceed (x) in the case of Loans made to UK Holding,
(pounds)12,499,237.85 and (y) in the case of Loans made to ACI,
(pounds)21,645,021.65. The original amount of each Lender's Tranche A Term
Loan Commitment is set forth opposite its name on Schedule 2.1 annexed
hereto and the aggregate amount of the Tranche A Term Loan Commitments (1)
to make Dollar Loans is $294,000,000 and (2) to make Sterling Loans is
(pounds)34,144,259.50. Each Lender's Tranche A Term Loan Commitment shall
expire immediately and without further action on June 30, 1997 if the
initial Tranche A Term Loans are not made on or before that date, and each
Lender's Tranche A Term Loan Commitment in respect of the Delayed-Draw
Term Loans shall expire immediately and without further action on the date
that is 35 days after the Closing Date in the event the Delayed-Draw Term
Loans are not made on or before that date. Company may make only two
borrowings, and each U.K. Borrower may make only one borrowing, under the
Tranche A Term Loan Commitments. Amounts borrowed under this subsection
2.1A(i) and subsequently repaid or prepaid may not be reborrowed.
(ii) Tranche B Term Loans. Each Lender severally agrees to lend to
Company on the Closing Date an amount not exceeding its Pro Rata Share of
the aggregate amount of the Tranche B Term Loan Commitments to be used for
the purposes identified in subsection 2.5A. The original amount of each
Lender's Tranche B Term Loan Commitment is set forth opposite its name on
Schedule 2.1 annexed hereto and the aggregate amount of the Tranche B Term
Loan Commitments is $200,000,000. Each Lender's Tranche B Term Loan
Commitment shall expire immediately and without further action on June 30,
1997 if the Tranche B Term Loans are not made on or before that date.
Company may make only one
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borrowing under the Tranche B Term Loan Commitments. Amounts borrowed
under this subsection 2.1A(ii) and subsequently repaid or prepaid may not
be reborrowed.
(iii) Tranche C Term Loans. Each Lender severally agrees to lend to
Company on the Closing Date an amount not exceeding its Pro Rata Share of
the aggregate amount of the Tranche C Term Loan Commitments to be used for
the purposes identified in subsection 2.5A. The original amount of each
Lender's Tranche C Term Loan Commitment is set forth opposite its name on
Schedule 2.1 annexed hereto and the aggregate amount of the Tranche C Term
Loan Commitments is $200,000,000. Each Lender's Tranche C Term Loan
Commitment shall expire immediately and without further action on June 30,
1997 if the Tranche C Term Loans are not made on or before that date.
Company may make only one borrowing under the Tranche C Term Loan
Commitments. Amounts borrowed under this subsection 2.1A(iii) and
subsequently repaid or prepaid may not be reborrowed.
(iv) Revolving Loans. Each Lender severally agrees, subject to the
limitations set forth below with respect to the maximum amount of
Revolving Loans permitted to be outstanding from time to time, to lend to
Company from time to time during the period from the Closing Date to but
excluding the Revolving Loan Commitment Termination Date an aggregate
amount not exceeding its Pro Rata Share of the aggregate amount of the
Revolving Loan Commitments to be used for the purposes identified in
subsection 2.5B. The original amount of each Lender's Revolving Loan
Commitment is set forth opposite its name on Schedule 2.1 annexed hereto
and the aggregate original amount of the Revolving Loan Commitments is
$150,000,000; provided that the Revolving Loan Commitments of Lenders
shall be adjusted to give effect to any assignments of the Revolving Loan
Commitments pursuant to subsection 10.1B; and provided, further that the
amount of the Revolving Loan Commitments shall be reduced from time to
time by the amount of any reductions thereto made pursuant to subsection
2.4B(ii). Each Lender's Revolving Loan Commitment shall expire on the
Revolving Loan Commitment Termination Date and all Revolving Loans and all
other amounts owed hereunder with respect to the Revolving Loans and the
Revolving Loan Commitments shall be paid in full no later than that date;
provided that each Lender's Revolving Loan Commitment shall expire
immediately and without further action on June 30, 1997 if the initial
Term Loans are not made on or before that date. Amounts borrowed under
this subsection 2.1A(iv) may be repaid and reborrowed to but excluding the
Revolving Loan Commitment Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Revolving Loans and the Revolving Loan Commitments
shall be subject to the
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limitation that in no event shall the Total Utilization of Revolving Loan
Commitments at any time exceed the Revolving Loan Commitments then in
effect.
(v) Swing Line Loans. Swing Line Lender hereby agrees, subject to
the limitations set forth below with respect to the maximum amount of
Swing Line Loans permitted to be outstanding from time to time, to make a
portion of the Revolving Loan Commitments available to Company from time
to time during the period from the Closing Date to but excluding the
Revolving Loan Commitment Termination Date by making Swing Line Loans to
Company in an aggregate amount not exceeding the amount of the Swing Line
Loan Commitment to be used for the purposes identified in subsection 2.5B,
notwithstanding the fact that such Swing Line Loans, when aggregated with
Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's
Pro Rata Share of the Letter of Credit Usage then in effect, may exceed
Swing Line Lender's Revolving Loan Commitment. The original amount of the
Swing Line Loan Commitment is $10,000,000; provided that any reduction of
the Revolving Loan Commitments made pursuant to subsection 2.4B(ii) which
reduces the aggregate Revolving Loan Commitments to an amount less than
the then current amount of the Swing Line Loan Commitment shall result in
an automatic corresponding reduction of the Swing Line Loan Commitment to
the amount of the Revolving Loan Commitments, as so reduced, without any
further action on the part of Company, Administrative Agent or Swing Line
Lender. The Swing Line Loan Commitment shall expire on the Revolving Loan
Commitment Termination Date and all Swing Line Loans and all other amounts
owed hereunder with respect to the Swing Line Loans shall be paid in full
no later than that date; provided that the Swing Line Loan Commitment
shall expire immediately and without further action on June 30, 1997 if
the initial Term Loans are not made on or before that date. Amounts
borrowed under this subsection 2.1A(v) may be repaid and reborrowed to but
excluding the Revolving Loan Commitment Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment
shall be subject to the limitation that in no event shall the Total
Utilization of Revolving Loan Commitments at any time exceed the Revolving
Loan Commitments then in effect.
With respect to any Swing Line Loans which have not been voluntarily
prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may,
at any time in its sole and absolute discretion, deliver to Administrative
Agent (with a copy to Company), no later than 11:00 A.M. (New York City
time) on the first Business Day in advance of the proposed Funding Date, a
notice (which shall be deemed to be a Notice of Borrowing given by
Company) requesting Lenders to make Revolving Loans that are Base Rate
Loans on such Funding Date in an amount equal to the amount of such Swing
Line Loans (the "Refunded Swing Line Loans") outstanding on the date such
notice is given which Swing Line
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Lender requests Lenders to prepay. Anything contained in this Agreement to
the contrary notwithstanding, (i) the proceeds of such Revolving Loans
made by Lenders other than Swing Line Lender shall be immediately
delivered by Administrative Agent to Swing Line Lender (and not to
Company) and applied to repay a corresponding portion of the Refunded
Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing
Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be
deemed to be paid with the proceeds of a Revolving Loan made by Swing Line
Lender, and such portion of the Swing Line Loans deemed to be so paid
shall no longer be outstanding as Swing Line Loans and shall no longer be
due under the Swing Line Note, if any, of Swing Line Lender but shall
instead constitute part of Swing Line Lender's outstanding Revolving Loans
and shall be due under the Revolving Note, if any, of Swing Line Lender.
If any portion of any such amount paid (or deemed to be paid) to Swing
Line Lender should be recovered by or on behalf of Company from Swing Line
Lender in bankruptcy, by assignment for the benefit of creditors or
otherwise, the loss of the amount so recovered shall be ratably shared
among all Lenders in the manner contemplated by subsection 10.5.
If for any reason the Revolving Loan Commitments are terminated at a
time when any Swing Line Loans are outstanding, each Lender shall be
deemed to, and hereby agrees to, have purchased a participation in such
outstanding Swing Line Loans in an amount equal to its Pro Rata Share
(calculated immediately prior to such termination of the Revolving Loan
Commitments) of the unpaid amount of such Swing Line Loans together with
accrued interest thereon. Upon one Business Day's notice from Swing Line
Lender, each Lender shall deliver to Swing Line Lender an amount equal to
its respective participation in same day funds at the Funding and Payment
Office. In order to further evidence such participation (and without
prejudice to the effectiveness of the participation provisions set forth
above), each Lender agrees to enter into a separate participation
agreement at the request of Swing Line Lender in form and substance
reasonably satisfactory to such Lender and Swing Line Lender. In the event
any Lender fails to make available to Swing Line Lender the amount of such
Lender's participation as provided in this paragraph, Swing Line Lender
shall be entitled to recover such amount on demand from such Lender
together with interest thereon at the Federal Funds Effective Rate for
three Business Days and thereafter at the Base Rate. In the event Swing
Line Lender receives a payment of any amount in which other Lenders have
purchased participations as provided in this paragraph, Swing Line Lender
shall promptly distribute to each such other Lender its Pro Rata Share of
such payment.
Anything contained herein to the contrary notwithstanding, each
Lender's obligation to make Revolving Loans for the purpose of repaying
any Refunded Swing Line Loans pursuant to the second preceding paragraph
and each Lender's obligation to purchase a participation in any unpaid
Swing Line Loans pursuant to
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the immediately preceding paragraph shall be absolute and unconditional
and shall not be affected by any circumstance, including (a) any set-off,
counterclaim, re-coupment, defense or other right which such Lender may
have against Swing Line Lender, Company or any other Person for any reason
whatsoever; (b) the occurrence or continuation of an Event of Default or a
Potential Event of Default; (c) any adverse change in the business,
operations, properties, assets, condition (financial or otherwise) or
prospects of Company or any of its Subsidiaries; (d) any breach of this
Agreement or any other Loan Document by any party thereto; or (e) any
other circumstance, happening or event whatsoever, whether or not similar
to any of the foregoing; provided that such obligations of each Lender are
subject to the condition that (X) Swing Line Lender believed in good faith
that all conditions under Section 4 to the making of the applicable
Refunded Swing Line Loans or other unpaid Swing Line Loans, as the case
may be, were satisfied at the time such Refunded Swing Line Loans or
unpaid Swing Line Loans were made or (Y) the satisfaction of any such
condition not satisfied had been waived in accordance with subsection 10.6
prior to or at the time such Refunded Swing Line Loans or other unpaid
Swing Line Loans were made.
B. Borrowing Mechanics. Tranche A Term Loans (other than Sterling
Loans), Tranche B Term Loans or Tranche C Term Loans made on any Funding Date as
Base Rate Loans or as LIBOR Loans with a particular Interest Period shall be in
an aggregate minimum amount of $5,000,000 and integral multiples of $500,000 in
excess of that amount, and Sterling Loans made on the Closing Date with a
particular Interest Period shall be in an aggregate minimum amount of
(pounds)5,000,000 and integral multiples of (pounds)500,000 in excess of that
amount; provided, that no more than one Sterling Loan of each U.K. Borrower may
be in an aggregate minimum amount of (pounds)5,000,000 and any amount in excess
thereof. Revolving Loans (other than Revolving Loans made pursuant to a request
by Swing Line Lender pursuant to subsection 2.1A(v) for the purpose of repaying
any Refunded Swing Line Loans or Revolving Loans made pursuant to subsection
3.3B for the purpose of reimbursing any Issuing Lender for the amount of a
drawing under a Letter of Credit issued by it) made on any Funding Date shall be
in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000
in excess of that amount. Swing Line Loans made on any Funding Date shall be in
an aggregate minimum amount of $500,000 and integral multiples of $100,000 in
excess of that amount. Whenever a Borrower desires that Lenders make Term Loans
or Revolving Loans to such Borrower it shall deliver to Administrative Agent a
Notice of Borrowing no later than 11:00 A.M. (New York City time) at least three
Business Days in advance of the proposed Funding Date (in the case of a LIBOR
Loan) or at least one Business Day in advance of the proposed Funding Date (in
the case of a Base Rate Loan). Whenever Company desires that Swing Line Lender
make a Swing Line Loan, it shall deliver to Administrative Agent a Notice of
Borrowing no later than 1:00 P.M. (New York City time) on the proposed Funding
Date. The Notice of Borrowing shall specify (i) the proposed Funding Date (which
shall be a Business Day), (ii) the amount and type of Loans requested, (iii) in
the case of Swing Line Loans and any Loans (other than Sterling
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Loans) made on the Closing Date, that such Loans shall be Base Rate Loans, (iv)
in the case of Delayed-Draw Term Loans and Revolving Loans not made on the
Closing Date, whether such Loans shall be Base Rate Loans or LIBOR Loans, and
(v) in the case of any Loans requested to be made as LIBOR Loans, the initial
Interest Period requested therefor. Term Loans and Revolving Loans may be
continued as or converted into Base Rate Loans and LIBOR Loans in the manner
provided in subsection 2.2D; provided, that Sterling Loans may not be converted
into Base Rate Loans. In lieu of delivering the above-described Notice of
Borrowing, a Borrower may give Administrative Agent telephonic notice by the
required time of any proposed borrowing under this subsection 2.1B; provided
that such notice shall be promptly confirmed in writing by delivery of a Notice
of Borrowing to Administrative Agent on or before the applicable Funding Date.
Neither Administrative Agent nor any Lender shall incur any
liability to any Borrower in acting upon any telephonic notice referred to above
that Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on behalf of such
Borrower or for otherwise acting in good faith under this subsection 2.1B, and
upon funding of Loans by Lenders in accordance with this Agreement pursuant to
any such telephonic notice the applicable Borrower shall have effected Loans
hereunder.
Each Borrower shall notify Administrative Agent prior to the funding
of any Loans in the event that any of the matters to which such Borrower is
required to certify in the applicable Notice of Borrowing is no longer true and
correct as of the applicable Funding Date, and the acceptance by such Borrower
of the proceeds of any Loans shall constitute a re-certification by Borrowers,
as of the applicable Funding Date, as to matters to which Borrowers are required
to certify in the applicable Notice of Borrowing.
C. Disbursement of Funds. All Term Loans and Revolving Loans under this
Agreement shall be made by Lenders simultaneously and proportionately to their
respective Pro Rata Shares, it being understood that no Lender shall be
responsible for any default by any other Lender in that other Lender's
obligation to make a Loan requested hereunder nor shall the Commitment of any
Lender to make the particular Type of Loan requested be increased or decreased
as a result of a default by any other Lender in that other Lender's obligation
to make a Loan requested hereunder. Promptly after receipt by Administrative
Agent of a Notice of Borrowing pursuant to subsection 2.1B (or telephonic notice
in lieu thereof), Administrative Agent shall notify each Lender or Swing Line
Lender, as the case may be, of the proposed borrowing. Each Lender shall make
the amount of its Loan available to Administrative Agent in the Applicable
Currency not later than 1:00 P.M. (New York City time) on the applicable Funding
Date in the case of Loans other than Sterling Loans, and not later than 11:00
A.M. (London time) on the applicable Funding Date in the case of Sterling Loans,
and Swing Line Lender shall make the amount of its Swing Line Loan available to
Administrative Agent not later than 2:00 P.M.(New York City time) on the
applicable Funding Date, in each case in same day funds in Dollars (or Sterling,
in the case of Sterling Loans), at the Funding and Payment
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Office for such Loans. Except as provided in subsection 2.1A(v) or subsection
3.3B with respect to Revolving Loans used to repay Refunded Swing Line Loans or
to reimburse any Issuing Lender for the amount of a drawing under a Letter of
Credit issued by it, upon satisfaction or waiver of the conditions precedent
specified in subsections 4.1 (in the case of Loans made on the Closing Date) and
4.2 (in the case of all Loans), Administrative Agent shall make the proceeds of
such Loans available to the applicable Borrower on the applicable Funding Date
by causing an amount of same day funds in Dollars (or Sterling, in the case of
Sterling Loans) equal to the proceeds of all such Loans received by
Administrative Agent from Lenders or Swing Line Lender, as the case may be, to
be credited to the account of the applicable Borrower at the Funding and Payment
Office for such Loans.
Unless Administrative Agent shall have been notified by any Lender
prior to the Funding Date for any Loans that such Lender does not intend to make
available to Administrative Agent the amount of such Lender's Loan requested on
such Funding Date, Administrative Agent may assume that such Lender has made
such amount available to Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall not be obligated to,
make available to the applicable Borrower a corresponding amount in the
Applicable Currency on such Funding Date. If such corresponding amount is not in
fact made available to Administrative Agent by such Lender, Administrative Agent
shall be entitled to recover such corresponding amount on demand from such
Lender together with interest thereon, for each day from such Funding Date until
the date such amount is paid to Administrative Agent in the Applicable Currency,
(i) for amounts in Dollars, at the Federal Funds Effective Rate for three
Business Days and thereafter at the Base Rate or (ii) for amounts in Sterling,
at Administrative Agent's cost of funds as determined by Administrative Agent
and notified to such Lender for amounts in Sterling. If such Lender does not pay
such corresponding amount forthwith upon Administrative Agent's demand therefor,
Administrative Agent shall promptly notify the applicable Borrower, and the
applicable Borrower shall immediately pay such corresponding amount to
Administrative Agent together with interest thereon, all in the Applicable
Currency, for each day from such Funding Date until the date such amount is paid
to Administrative Agent, at the rate payable under this Agreement for Base Rate
Loans in the case of Dollar Loans and at the rate otherwise payable pursuant to
subsection 2.2A in the case of Sterling Loans. Nothing in this subsection 2.1C
shall be deemed to relieve any Lender from its obligation to fulfill its
Commitments hereunder or to prejudice any rights that any Borrower may have
against any Lender as a result of any default by such Lender hereunder.
D. The Register.
(i) Administrative Agent shall maintain, at its address referred to
in subsection 10.7, a register for the recordation of the names and
addresses of Lenders and the Commitments and Loans (whether or not
separately evidenced by one or more Notes) of each Lender from time to
time (the "Register"). The
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Register shall be available for inspection by Borrowers or any Lender at
any reasonable time and from time to time upon reasonable prior notice.
(ii) Administrative Agent shall record in the Register the Tranche A
Term Loan Commitment, Tranche B Term Loan Commitment, Tranche C Term Loan
Commitment and Revolving Loan Commitment and the Tranche A Term Loans,
Tranche B Term Loan, Tranche C Term Loan and Revolving Loans from time to
time of each Lender, the Swing Line Loan Commitment and the Swing Line
Loans from time to time of Swing Line Lender, and each repayment or
prepayment in respect of the principal amount of the Tranche A Term Loans,
Tranche B Term Loan, Tranche C Term Loan or Revolving Loans of each Lender
or the Swing Line Loans of Swing Line Lender. Any such recordation shall
be conclusive and binding on Borrowers and each Lender, absent clearly
demonstrable error; provided that failure to make any such recordation, or
any error in such recordation, shall not affect any Lender's Commitments
or Borrowers' Obligations in respect of any applicable Loans.
(iii) Each Lender shall record on its internal records (including
any Notes held by such Lender) the amount of the Tranche B Term Loan and
the Tranche C Term Loan and each Tranche A Term Loan and Revolving Loan
made by it and each payment in respect thereof. Any such recordation shall
be conclusive and binding on Borrowers, absent clearly demonstrable error;
provided that failure to make any such recordation, or any error in such
recordation, shall not affect any Lender's Commitments or any Borrower's
Obligations in respect of any applicable Loans; and provided, further that
in the event of any inconsistency between the Register and any Lender's
records, the recordations in the Register shall govern.
(iv) Borrowers, Administrative Agent and Lenders shall deem and
treat the Persons listed as Lenders in the Register as the holders and
owners of the corresponding Commitments and Loans listed therein for all
purposes hereof, and no assignment or transfer of any such Commitment or
Loan shall be effective, in each case unless and until an Assignment
Agreement effecting the assignment or transfer thereof shall have been
accepted by Administrative Agent and recorded in the Register as provided
in subsection 10.1B(ii). Prior to such recordation, all amounts owed with
respect to the applicable Commitment or Loan shall be owed to the Lender
listed in the Register as the owner thereof, and any request, authority or
consent of any Person who, at the time of making such request or giving
such authority or consent, is listed in the Register as a Lender shall be
conclusive and binding on any subsequent holder, assignee or transferee of
the corresponding Commitments or Loans.
(v) Each Borrower hereby designates BTCo to serve as its agent
solely for purposes of maintaining the Register as provided in this
subsection 2.1D, and Borrowers hereby agree that, to the extent BTCo
serves in such capacity, BTCo
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and its officers, directors, employees, agents and affiliates shall
constitute Indemnitees for all purposes under subsection 10.3.
E. Optional Notes. Upon the request of any Lender made through the
Administrative Agent at least two Business Days prior to the Closing Date or at
any time after the Closing Date (in the case of Dollar Loans, solely to
facilitate the pledge or assignment of such Lender's applicable Loans pursuant
to subsection 10.1D), the applicable Borrower shall execute and deliver to such
Lender (and/or, if applicable and if so specified in such notice, to any Person
who is an assignee of such Lender pursuant to subsection 10.1) on the Closing
Date (or, if such notice is delivered after the Closing Date, promptly after
such Borrower's receipt of such notice) a promissory note or promissory notes to
evidence such Lender's Tranche A Term Loans, Tranche B Term Loan, Tranche C Term
Loan, Revolving Loans or Swing Line Loans, as the case may be, substantially in
the form of Exhibit IV-A or Exhibit IV-B, Exhibit V, Exhibit VI, Exhibit VII or
Exhibit VIII annexed hereto, respectively, with appropriate insertions.
F. Company as Agent for U.K. Borrowers. Each U.K. Borrower by its
execution of this Agreement irrevocably authorizes Company to give and receive
all notices and instructions, to take all actions and make such agreements
expressed to be capable of being given, received or taken by Company in this
Agreement and the other Loan Documents notwithstanding that they may affect such
U.K. Borrower, and each U.K. Borrower shall, as regards Administrative Agent and
each Lender, be bound thereby as though such Borrower itself had given or
received such notice, taken such action or made such agreement.
G. Booking of Sterling Loans; Sterling Lender Affiliates. Each Lender
hereby agrees to book the Sterling Loans of such Lender in such a manner as to
cause such Lender to be a U.K. Qualifying Bank with respect to such Sterling
Loans. In furtherance of the foregoing, such Lender may agree with any Affiliate
of such Lender (such Affiliate, the "Sterling Lender Affiliate" of such Lender)
that such Affiliate shall make or carry such Sterling Loans for its own account
and such Sterling Lender Affiliate shall have, as against Company and the
applicable Borrower, all the rights of a Lender with respect to such Sterling
Loans as a third party beneficiary hereunder.
2.2 Interest on the Loans.
A. Rate of Interest. Subject to the provisions of subsections 2.6 and 2.7,
each Term Loan and each Revolving Loan shall bear interest on the unpaid
principal amount thereof from the date made to maturity (whether by acceleration
or otherwise) at a rate determined by reference to the Base Rate (in the case of
all Loans other than Sterling Loans) or LIBOR. Subject to the provisions of
subsection 2.7, each Swing Line Loan shall bear interest on the unpaid principal
amount thereof from the date made through maturity (whether by acceleration or
otherwise) at a rate determined by reference to the Base Rate. The applicable
basis for determining the rate of interest with respect to any
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Term Loan or any Revolving Loan shall be selected by Company initially at the
time a Notice of Borrowing is given with respect to such Loan pursuant to
subsection 2.1B, and the basis for determining the interest rate with respect to
any Term Loan or any Revolving Loan may be changed from time to time pursuant to
subsection 2.2D. Subject to the last proviso to the first paragraph of
subsection 2.2D, if on any day a Term Loan or Revolving Loan is outstanding with
respect to which notice has not been delivered to Administrative Agent in
accordance with the terms of this Agreement specifying the applicable basis for
determining the rate of interest, then for that day that Loan shall bear
interest determined by reference to the Base Rate.
(i) Subject to the provisions of subsections 2.2E and 2.7, the
Tranche A Term Loans and the Revolving Loans shall bear interest through
maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base Rate plus
the Applicable Tranche A Base Rate Margin; or
(b) if a LIBOR Loan, then at the sum of LIBOR plus the
Applicable Tranche A LIBOR Margin plus, in the case of Sterling
Loans, any Mandatory Liquid Asset Costs incurred by the applicable
Lender in respect of such LIBOR Loan from time to time.
(ii) Subject to the provisions of subsections 2.2E and 2.7, the
Tranche B Term Loans shall bear interest through maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base Rate plus
the Applicable Tranche B Base Rate Margin; or
(b) if a LIBOR Loan, then at the sum of LIBOR plus the
Applicable Tranche B LIBOR Margin.
(iii) Subject to the provisions of subsections 2.2E and 2.7, the
Tranche C Term Loans shall bear interest through maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base Rate plus
the Applicable Tranche C Base Rate Margin; or
(b) if a LIBOR Loan, then at the sum of LIBOR plus the
Applicable Tranche C LIBOR Margin.
(iv) Subject to the provisions of subsections 2.2E and 2.7, the
Swing Line Loans shall bear interest through maturity at the sum of the
Base Rate plus the Applicable Tranche A Base Rate Margin minus the
Applicable Commitment Fee Percentage.
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B. Interest Periods. In connection with each LIBOR Loan, the applicable
Borrower may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"Interest Period") to be applicable to such Loan, which Interest Period shall
be, at such Borrower's option, either a one, two, three or six month period or,
in the case of Dollar Loans only, if deposits in the interbank Eurodollar market
are generally available for such period to all Lenders making the applicable
Loans (as determined by such Lenders in good faith based on prevailing market
conditions), a nine or twelve month period; provided that:
(i) the initial Interest Period for any LIBOR Loan shall commence on
the Funding Date in respect of such Loan, in the case of a Loan initially
made as a LIBOR Loan, or on the date specified in the applicable Notice of
Conversion/Continuation, in the case of a Loan converted to a LIBOR Loan;
(ii) in the case of immediately successive Interest Periods
applicable to a LIBOR Loan continued as such pursuant to a Notice of
Conversion/Continuation, each successive Interest Period shall commence on
the day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided that, if any Interest Period would
otherwise expire on a day that 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;
(iv) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clauses (v) and (vi) of this subsection 2.2B,
end on the last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the Tranche A
Term Loans shall extend beyond the seventh anniversary of the Closing
Date, no Interest Period with respect to any portion of the Tranche B Term
Loans shall extend beyond the eighth anniversary of the Closing Date, no
Interest Period with respect to any portion of the Tranche C Term Loans
shall extend beyond the ninth anniversary of the Closing Date, and no
Interest Period with respect to any portion of the Revolving Loans shall
extend beyond the Revolving Loan Commitment Termination Date;
(vi) no Interest Period with respect to any portion of the Tranche A
Term Loans, Tranche B Term Loans or Tranche C Term Loans shall extend
beyond a date on which the applicable Borrower is required to make a
scheduled payment of principal of the Tranche A Term Loans, Tranche B Term
Loans or Tranche C
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Term Loans, as the case may be, unless the sum of (a) the aggregate
principal amount of Tranche A Term Loans, Tranche B Term Loans or Tranche
C Term Loans, as the case may be, that are Base Rate Loans plus (b) the
aggregate principal amount of Tranche A Term Loans, Tranche B Term Loans
or Tranche C Term Loans, as the case may be, that are LIBOR Loans with
Interest Periods expiring on or before such date equals or exceeds the
principal amount required to be paid on the Tranche A Term Loans, Tranche
B Term Loans or Tranche C Term Loans, as the case may be, on such date;
(vii) there shall be no more than 20 Interest Periods outstanding at
any time; and
(viii) in the event the applicable Borrower fails to specify an
Interest Period for any LIBOR Loan in the applicable Notice of Borrowing
or Notice of Conversion/Continuation, such Borrower shall be deemed to
have selected an Interest Period of one month.
C. Interest Payments. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity); provided that in the event any Swing Line Loans or any Revolving
Loans that are Base Rate Loans are prepaid pursuant to subsection 2.4B, interest
accrued on such Swing Line Loans or Revolving Loans through the date of such
prepayment shall be payable on the next succeeding Interest Payment Date
applicable to Base Rate Loans (or, if earlier, at final maturity).
D. Conversion or Continuation. Subject to the provisions of subsection
2.6, (i) Company shall have the option to convert at any time all or any part of
its outstanding Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans
or Revolving Loans equal to $5,000,000 and integral multiples of $500,000 in
excess of that amount from Loans bearing interest at a rate determined by
reference to one basis to Loans bearing interest at a rate determined by
reference to an alternative basis and (ii) upon the expiration of any Interest
Period applicable to a LIBOR Loan, the applicable Borrower shall have the option
to continue as a LIBOR Loan all or any portion of such Loan equal to $5,000,000
and integral multiples of $500,000 in excess of that amount (or, in the case of
Sterling Loans, equal to (pounds)5,000,000 and integral multiples of
(pounds)500,000 in excess of that amount; provided that no more than one
Sterling Loan of each U.K. Borrower outstanding at any time may be in an
aggregate minimum amount equal to (pounds)5,000,000 and any amount in excess
thereof); provided, however, that if, upon the expiration of any Interest Period
applicable to any LIBOR Loan, the applicable Borrower shall have failed to give
a Notice of Conversion/Continuation with respect to such LIBOR Loan in
accordance with this subsection 2.2D, such Borrower shall be deemed to have
given a timely Notice of Conversion/Continuation electing to continue such LIBOR
Loan as a LIBOR Loan with an Interest Period of one month.
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The applicable Borrower shall deliver a Notice of
Conversion/Continuation to Administrative Agent no later than 11:00 A.M. (New
York City time) at least one Business Day in advance of the proposed conversion
date (in the case of a conversion to a Base Rate Loan) and at least three
Business Days in advance of the proposed conversion/continuation date (in the
case of a conversion to, or a continuation of, a LIBOR Loan), with a copy to the
Sterling Notice Office, in the case of Sterling Loans. A Notice of
Conversion/Continuation shall specify (i) the proposed conversion/continuation
date (which shall be a Business Day), (ii) the amount and type of the Loan to be
converted/continued, (iii) the nature of the proposed conversion/continuation,
(iv) in the case of a conversion to, or a continuation of, a LIBOR Loan, the
requested Interest Period, and (v) in the case of a conversion to, or a
continuation of, a LIBOR Loan, that no Potential Event of Default or Event of
Default has occurred and is continuing. In lieu of delivering the
above-described Notice of Conversion/Continuation, the applicable Borrower may
give Administrative Agent telephonic notice by the required time of any proposed
conversion/continuation under this subsection 2.2D; provided that such notice
shall be promptly confirmed in writing by delivery of a Notice of
Conversion/Continuation to Administrative Agent, with a copy to the Sterling
Notice Office, in the case of Sterling Loans, on or before the proposed
conversion/continuation date. Upon receipt of written or telephonic notice of
any proposed conversion/continuation under this subsection 2.2D, Administrative
Agent shall promptly transmit such notice by telefacsimile or telephone to each
Lender.
Neither Administrative Agent nor any Lender shall incur any
liability to any Borrower in acting upon any telephonic notice referred to above
that Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to act on behalf of such Borrower
or for otherwise acting in good faith under this subsection 2.2D, and upon
conversion or continuation of the applicable basis for determining the interest
rate with respect to any Loans in accordance with this Agreement pursuant to any
such telephonic notice the applicable Borrower shall have effected a conversion
or continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C, 2.6F and
2.6G, a Notice of Conversion/Continuation for conversion to, or continuation of,
a LIBOR Loan (or telephonic notice in lieu thereof) shall be irrevocable on and
after the related Interest Rate Determination Date, and the applicable Borrower
shall be bound to effect a conversion or continuation in accordance therewith.
E. Post-Maturity Interest. Any principal payments on the Loans not paid
when due and, to the extent permitted by applicable law, any interest payments
on the Loans or any fees or other amounts owed hereunder not paid when due, in
each case whether at stated maturity, by notice of prepayment, by acceleration
or otherwise, shall thereafter bear interest (including post-petition interest
in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws)
payable on demand at a rate which is 2% per annum in excess of the interest rate
otherwise payable under this Agreement for
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Base Rate Loans of the applicable Type (any such fees and other amounts being
deemed for such purposes to bear interest on the same basis as Revolving Loans)
or, in the case of Sterling Loans, for LIBOR Loans having consecutive Interest
Periods of one month, commencing on the date of such non-payment. Payment or
acceptance of the increased rates of interest provided for in this subsection
2.2E is not a permitted alternative to timely payment and shall not constitute a
waiver of any Event of Default or otherwise prejudice or limit any rights or
remedies of Administrative Agent or any Lender.
F. Computation of Interest. Interest on the Loans shall be computed (i) in
the case of Base Rate Loans bearing interest at a rate determined by reference
to the Prime Rate, on the basis of a 365-day or 366-day year, as the case may
be, (ii) in the case of Sterling Loans, on the basis of a 365-day year, and
(iii) in the case of other LIBOR Loans and Base Rate Loans bearing interest at a
rate determined by reference to the Federal Funds Effective Rate, on the basis
of a 360-day year, in each case for the actual number of days elapsed in the
period during which it accrues. In computing interest on any Loan, the date of
the making of such Loan or the first day of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted from a LIBOR
Loan, the date of conversion of such LIBOR Loan to such Base Rate Loan, as the
case may be, shall be included, and the date of payment of such Loan or the
expiration date of an Interest Period applicable to such Loan or, with respect
to a Base Rate Loan being converted to a LIBOR Loan, the date of conversion of
such Base Rate Loan to such LIBOR Loan, as the case may be, shall be excluded;
provided that if a Loan is repaid on the same day on which it is made, one day's
interest shall be paid on that Loan.
2.3 Fees.
A. Commitment Fees. Company agrees to pay to Administrative Agent, for
distribution to each Lender in proportion to that Lender's Pro Rata Share,
commitment fees for the period from and including the Closing Date to and
excluding the Revolving Loan Commitment Termination Date equal to the sum of (i)
the average of the daily excess of the Revolving Loan Commitments over the
aggregate principal amount of outstanding Revolving Loans (but not any
outstanding Swing Line Loans or the Letter of Credit Usage) and (ii) any undrawn
portion of the Tranche A Term Loan Commitments that is available for borrowing
as Delayed-Draw Term Loans multiplied by the Applicable Commitment Fee
Percentage, such commitment fees to be calculated on the basis of a 365-day or
366-day year, as the case may be, and the actual number of days elapsed and to
be payable quarterly in arrears on March 31, June 30, September 30 and December
31 of each year, commencing on the first such date to occur after the Closing
Date, and on the Revolving Loan Commitment Termination Date.
B. Other Fees. Company agrees to pay to Administrative Agent, Syndication
Agent and Documentation Agent such other fees in the amounts and at the times
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separately agreed upon between Company and Administrative Agent, Syndication
Agent and Documentation Agent, as the case may be.
2.4 Repayments, Prepayments and Reductions in Revolving Loan Commitments;
General Provisions Regarding Payments; Application of Proceeds of
Collateral and Payments Under the Guaranties.
A. Scheduled Payments of Term Loans.
(i) Scheduled Payments of Tranche A Term Loans. Each Borrower shall
make principal payments on the Tranche A Term Loans made to such Borrower
in installments on the second anniversary of the Closing Date and on each
subsequent anniversary of the Closing Date until the Tranche A Term Loans
are paid in full, each such installment to be in an amount in Dollars or
Sterling, as applicable, equal to the corresponding percentages set forth
below of the original principal amount of the Tranche A Term Loans
(including, in the case of Company, the Delayed-Draw Term Loans) made to
such Borrower:
Percentage of Original
Principal Amount
Anniversary of Closing Date of Tranche A Term Loans
--------------------------- -----------------------
Second 7.15%
Third 10.71%
Fourth 13.57%
Fifth 17.14%
Sixth 22.86%
Seventh 28.57%
-------
TOTAL 100.00%
; provided that the scheduled installments of principal of the Tranche A
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche A Term Loans in
accordance with subsection 2.4B(iv); and provided, further that the
Tranche A Term Loans and all other amounts owed hereunder with respect to
the Tranche A Term Loans shall be paid in full no later than the seventh
anniversary of the Closing Date, and the final installment payable by each
Borrower in respect of the Tranche A Term Loans on such date shall be in
an amount, if such amount is different from that specified above,
sufficient to repay all amounts owing by Borrowers under this Agreement
with respect to the Tranche A Term Loans.
(ii) Scheduled Payments of Tranche B Term Loans. Company shall
make principal payments on the Tranche B Term Loans in installments on the
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second anniversary of the Closing Date and on each subsequent anniversary
of the Closing Date until the Tranche B Term Loans are paid in full, each
such installment to be in the correlative amount set forth below:
Scheduled Repayment
Anniversary of Closing Date of Tranche B Term Loans
--------------------------- -----------------------
Second $ 500,000
Third $ 500,000
Fourth $ 500,000
Fifth $ 500,000
Sixth $ 500,000
Seventh $ 500,000
Eighth $197,000,000
------------
TOTAL $200,000,000
; provided that the scheduled installments of principal of the Tranche B
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche B Term Loans in
accordance with subsection 2.4B(iv); and provided, further that the
Tranche B Term Loans and all other amounts owed hereunder with respect to
the Tranche B Term Loans shall be paid in full no later than the eighth
anniversary of the Closing Date, and the final installment payable by
Company in respect of the Tranche B Term Loans on such date shall be in an
amount, if such amount is different from that specified above, sufficient
to repay all amounts owing by Company under this Agreement with respect to
the Tranche B Term Loans.
(iii) Scheduled Payments of Tranche C Term Loans. Company shall make
principal payments on the Tranche C Term Loans in installments on the
second anniversary of the Closing Date and on each subsequent anniversary
of the Closing Date until the Tranche C Term Loans are paid in full, each
such installment to be in the correlative amount set forth below:
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Scheduled Repayment
Anniversary of Closing Date of Tranche C Term Loans
--------------------------- -----------------------
Second $ 500,000
Third $ 500,000
Fourth $ 500,000
Fifth $ 500,000
Sixth $ 500,000
Seventh $ 500,000
Eighth $ 500,000
Ninth $196,500,000
------------
TOTAL $200,000,000
; provided that the scheduled installments of principal of the Tranche C
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche C Term Loans in
accordance with subsection 2.4B(iv); and provided, further that the
Tranche C Term Loans and all other amounts owed hereunder with respect to
the Tranche C Term Loans shall be paid in full no later than the ninth
anniversary of the Closing Date, and the final installment payable by
Company in respect of the Tranche C Term Loans on such date shall be in an
amount, if such amount is different from that specified above, sufficient
to repay all amounts owing by Company under this Agreement with respect to
the Tranche C Term Loans.
B. Prepayments and Reductions in Revolving Loan Commitments.
(i) Voluntary Prepayments. Company may, upon written or telephonic
notice to Administrative Agent at or prior to 1:00 P.M. (New York City
time) on the date of prepayment, which notice, if telephonic, shall be
promptly confirmed in writing, at any time and from time to time prepay
any Swing Line Loan on any Business Day in whole or in part in an
aggregate minimum amount of $500,000 and integral multiples of $100,000 in
excess of that amount. Any Borrower may, upon not less than one Business
Day's prior written or telephonic notice, in the case of Base Rate Loans,
and three Business Days' prior written or telephonic notice, in the case
of LIBOR Loans, in each case given to Administrative Agent by 12:00 Noon
(New York City time) on the date required and, if given by telephone,
promptly confirmed in writing to Administrative Agent (which original
written or telephonic notice Administrative Agent will promptly transmit
by telefacsimile or telephone to each Lender), at any time and from time
to time prepay any of such Borrower's Tranche A Term Loans, Tranche B Term
Loans, Tranche C Term Loans or Revolving Loans on any Business Day in
whole or in part in an aggregate minimum amount of $5,000,000 and integral
multiples of $500,000 in excess of that amount (or, in the case of
Sterling Loans, equal to (pounds)5,000,000 and integral
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multiples of (pounds)500,000 in excess of that amount). Notice of
prepayment having been given as aforesaid, the principal amount of the
Loans specified in such notice shall become due and payable on the
prepayment date specified therein. Any such voluntary prepayment shall be
applied as specified in subsection 2.4B(iv).
(ii) Voluntary Reductions of Revolving Loan Commitments. Company
may, upon not less than three Business Days' prior written or telephonic
notice confirmed in writing to Administrative Agent (which original
written or telephonic notice Administrative Agent will promptly transmit
by telefacsimile or telephone to each Lender), at any time and from time
to time terminate in whole or permanently reduce in part, without premium
or penalty, the Revolving Loan Commitments in an amount up to the amount
by which the Revolving Loan Commitments exceed the Total Utilization of
Revolving Loan Commitments at the time of such proposed termination or
reduction; provided that any such partial reduction of the Revolving Loan
Commitments shall be in an aggregate minimum amount of $1,000,000 and
integral multiples of $500,000 in excess of that amount. Company's notice
to Administrative Agent shall designate the date (which shall be a
Business Day) of such termination or reduction and the amount of any
partial reduction, and such termination or reduction of the Revolving Loan
Commitments shall be effective on the date specified in Company's notice
and shall reduce the Revolving Loan Commitment of each Lender
proportionately to its Pro Rata Share.
(iii) Mandatory Prepayments. Subject to the provisions of
subsections 2.4B(iv)(d), the Loans shall be prepaid in the amounts and
under the circumstances set forth below, all such prepayments to be
applied as set forth below or as more specifically provided in subsection
2.4B(iv):
(a) Prepayments From Net Asset Sale Proceeds. No later than
the fifth Business Day following the date on which any Net Asset
Sale Proceeds become Unreinvested Asset Sale Proceeds, Company shall
prepay its outstanding Term Loans in an aggregate amount equal to
such Unreinvested Asset Sale Proceeds; provided that, to the extent
that such Unreinvested Asset Sale Proceeds result from the sale of
any assets of a U.K. Borrower that has Term Loans outstanding or any
Subsidiary of such U.K. Borrower (other than the other U.K.
Borrower), such U.K. Borrower shall prepay its outstanding Term
Loans in an aggregate amount equal to such Unreinvested Asset Sale
Proceeds (and, if such sale is of the assets of a Subsidiary of both
U.K. Borrowers, such prepayment shall be made by the U.K. Borrower
that has the most direct ownership interest therein, and, if both
U.K. Borrowers shall have a direct ownership interest therein, by
both U.K. Borrowers pro rata to their respective ownership interests
therein), and Company shall not be required to prepay its Term Loans
to the extent of any such prepayment; provided further that
Borrowers may in their sole discretion elect, pursuant to a written
notice given by Company
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on behalf of Borrowers to Administrative Agent describing such
election, to postpone any mandatory prepayments otherwise required
to be made by Borrowers pursuant to this subsection 2.4B(iii)(a)
(any such prepayment, until the time actually made, being "Postponed
Prepayments") until such time as the aggregate amount of Postponed
Prepayments equals $5,000,000.
(b) Prepayments from Consolidated Excess Cash Flow. In the
event that (1) the Consolidated Leverage Ratio shall be equal to or
greater than 4.00:1.00 as of the last day of any Fiscal Year
(commencing with Fiscal Year 1997) and (ii) there shall be
Consolidated Excess Cash Flow for such Fiscal Year, Company shall,
no later than the date on which Company is required to deliver
audited financial statements with respect to such Fiscal Year
pursuant to subsection 6.1(ii), prepay its outstanding Term Loans in
an aggregate amount equal to 50% of such Consolidated Excess Cash
Flow (the remaining 50% of such Consolidated Excess Cash Flow being
"Retained Excess Cash Flow").
(c) Prepayments Due to Reductions or Restrictions of Revolving
Loan Commitments. Company shall from time to time prepay first the
Swing Line Loans and second the Revolving Loans to the extent
necessary so that the Total Utilization of Revolving Loan
Commitments shall not at any time exceed the Revolving Loan
Commitments then in effect.
(iv) Application of Prepayments.
(a) Application of Voluntary Prepayments by Type of Loans and
Order of Maturity. Any voluntary prepayments pursuant to subsection
2.4B(i) shall be applied as specified by the applicable Borrower in
the applicable notice of prepayment; provided that in the event
Company fails to specify the Loans of Company to which any such
prepayment shall be applied, such prepayment shall be applied first
to repay outstanding Swing Line Loans to the full extent thereof,
second to repay outstanding Revolving Loans to the full extent
thereof, and third to repay outstanding Term Loans to the full
extent thereof. Any voluntary prepayment of any Borrower's Term
Loans pursuant to subsection 2.4B(i) shall be applied to prepay the
Tranche A Term Loans, and, in the case of Company, the Tranche B
Term Loans and/or the Tranche C Term Loans in the manner specified
by such Borrower and to reduce the scheduled installments of
principal of the Tranche A Term Loans and, in the case of Company,
the Tranche B Term Loans and/or the Tranche C Term Loans set forth
in subsections 2.4A(i), 2.4A(ii) and/or 2.4A(iii), as the case may
be, in such order as such Borrower shall direct.
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(b) Application of Mandatory Prepayments of Term Loans to
Tranche A Term Loans, Tranche B Term Loans and Tranche C Term Loans
and the Scheduled Installments of Principal Thereof. Any mandatory
prepayments of Company's Term Loans pursuant to subsection 2.4B(iii)
shall be applied to prepay the Tranche A Term Loans of Company, the
Tranche B Term Loans and the Tranche C Term Loans on a pro rata
basis (in accordance with the respective outstanding principal
amounts thereof). Except as provided in the last sentence of this
paragraph, any mandatory prepayment of the Tranche A Term Loans of
any Borrower, the Tranche B Term Loans or the Tranche C Term Loans
shall be applied first to reduce the next two succeeding scheduled
installments of principal of such Tranche A Term Loans, the Tranche
B Term Loans or the Tranche C Term Loans, as the case may be, set
forth in subsection 2.4A(i), 2.4A(ii) or 2.4A(iii), respectively,
that are unpaid at the time of such prepayment in the forward order
of maturity and second to reduce each remaining unpaid scheduled
installment of principal of such Tranche A Term Loans, the Tranche B
Term Loans or the Tranche C Term Loans, as the case may be, on a pro
rata basis (in accordance with the respective unpaid principal
amounts thereof). Any such mandatory prepayment of the Tranche A
Term Loans of any Borrower, the Tranche B Term Loans or the Tranche
C Term Loans out of Consolidated Excess Cash Flow shall be applied
to reduce each remaining unpaid scheduled installment of principal
of such Tranche A Term Loans, the Tranche B Term Loans or the
Tranche C Term Loans, as the case may be, in such order as the
applicable Borrower shall elect.
(c) Waiver of Certain Mandatory Prepayments. Anything
contained herein to the contrary notwithstanding, so long as any
Tranche A Term Loans are outstanding, in the event Company is
required to make any mandatory prepayment (a "Waivable Mandatory
Prepayment") of the Tranche B Term Loans or the Tranche C Term Loans
pursuant to subsection 2.4B(iii), (V) Company may, by written or
telephonic notice (promptly confirmed in writing) given to
Administrative Agent not less than three Business Days prior to the
date (the "Required Prepayment Date") on which Company is required
to make such Waivable Mandatory Prepayment, elect to offer each
Lender holding an outstanding Tranche B Term Loan or Tranche C Term
Loan, as the case may be, the option to refuse such Lender's Pro
Rata Share of such Waivable Mandatory Prepayment, (W) in the event
Company gives such notice to Administrative Agent, Administrative
Agent will promptly notify each such Lender of the amount of such
Lender's Pro Rata Share of such Waivable Mandatory Prepayment and
such Lender's option to refuse such amount, (X) each such Lender may
exercise such option by giving written notice to Company and
Administrative Agent of its election to do so on or before the first
Business Day (the "Cutoff Date") prior to the Required Prepayment
Date, (Y) on the
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Required Prepayment Date, Company shall pay to Administrative Agent
an amount equal to the sum of (1) that portion of the Waivable
Mandatory Prepayment payable to those Lenders that have elected not
to exercise such option (it being understood that any Lender which
does not notify Company and Administrative Agent of its election to
exercise such option on or before the Cutoff Date shall be deemed to
have elected, as of the Cutoff Date, not to exercise such option),
which amount shall be applied to prepay the Tranche B Term Loans or
Tranche C Term Loans, as the case may be, of such Lenders in
accordance with subsection 2.4B(iv)(b) plus (2) 50% of that portion
(the "Waived Portion") of the Waivable Mandatory Prepayment
otherwise payable to those Lenders that have elected to exercise
such option, which amount shall be applied to prepay the Tranche A
Term Loans in the same manner as voluntary prepayments of the
Tranche A Term Loans are applied pursuant to subsection 2.4B(iv)(a),
and (Z) Company shall be entitled to retain the remaining 50% of the
Waived Portion (such amount being a "Retained Prepayment") to be
used for general corporate purposes.
(d) Application of Prepayments of Dollar Loans to Base Rate
Loans and LIBOR Loans; Option to Defer Certain Mandatory Prepayments
of LIBOR Loans. Considering Tranche A Term Loans that are Dollar
Loans, Tranche B Term Loans, Tranche C Term Loans and Revolving
Loans being prepaid separately, any prepayment thereof shall be
applied first to Base Rate Loans to the full extent thereof before
application to LIBOR Loans, in each case in a manner which minimizes
the amount of any payments required to be made by Company pursuant
to subsection 2.6D; provided that, anything contained in this
Agreement to the contrary notwithstanding, in the event that (1) the
application of any mandatory prepayment pursuant to subsection
2.4B(iii) in accordance with the foregoing provisions of this
subsection 2.4B(iv) would result in the prepayment of all or any
portion of a LIBOR Loan (whether a Dollar Loan or a Sterling Loan)
prior to the end of the Interest Period applicable thereto, (2) the
remaining term of such Interest Period is less than three months,
and (3) no Potential Event of Default or Event of Default shall have
occurred and be continuing, the applicable Borrower shall have the
option, by giving written notice (or telephonic notice promptly
confirmed in writing) to Administrative Agent of its election to do
so on or before the first Business Day prior to the date on which
such prepayment would otherwise be required to be made, to defer the
making of such prepayment until the last day of such Interest Period
or such earlier date as such Borrower may specify in such notice.
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C. General Provisions Regarding Payments.
(i) Manner and Time of Payment. All payments by Company of
principal, interest, fees and other Obligations hereunder and under the
Notes shall be made in Dollars in same day funds, and all payment by U.K.
Borrowers of principal, interest and other Obligations hereunder and under
the Notes in respect of the Sterling Loans shall be made in Sterling in
same day funds, in each case without defense, setoff or counterclaim, free
of any restriction or condition, and delivered to Administrative Agent not
later than 3:00 P.M. (New York City time) or 11:00 A.M. (London time), as
applicable, on the date due at the applicable Funding and Payment Office
for the account of Lenders; funds received by Administrative Agent after
that time on such due date shall be deemed to have been paid by Company on
the next succeeding Business Day.
(ii) Application of Payments to Principal and Interest. Except as
provided in subsection 2.2C, all payments in respect of the principal
amount of any Loan shall include payment of accrued interest on the
principal amount being repaid or prepaid, and all such payments (and, in
any event, any payments in respect of any Loan on a date when interest is
due and payable with respect to such Loan) shall be applied to the payment
of interest before application to principal.
(iii) Apportionment of Payments. Aggregate principal and interest
payments in respect of Term Loans and Revolving Loans shall be apportioned
among all outstanding Loans to which such payments relate, in each case
proportionately to Lenders' respective Pro Rata Shares. Administrative
Agent shall promptly distribute to each Lender, at its applicable Lending
Office or at such other address as such Lender may request, its Pro Rata
Share of all such payments received by Administrative Agent and the
commitment fees of such Lender when received by Administrative Agent
pursuant to subsection 2.3. Notwithstanding the foregoing provisions of
this subsection 2.4C(iii), if, pursuant to the provisions of subsection
2.6C, any Notice of Conversion/Continuation is withdrawn as to any
Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of
its Pro Rata Share of any LIBOR Loans, Administrative Agent shall give
effect thereto in apportioning payments received thereafter.
(iv) Payments on Business Days. Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day,
such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the payment of
interest hereunder or of the commitment fees hereunder, as the case may
be.
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(v) Conversion of Amounts to Applicable Currencies. To the extent
funds received by Administrative Agent from any Loan Party (or debited
from any Loan Party's account with Administrative Agent) in Dollars or in
Sterling must be converted into the Applicable Currency required for any
payment hereunder, Administrative Agent shall effect such conversion on
the applicable payment date on the basis of the rate at which
Administrative Agent is able to purchase such Applicable Currency with
such other currency on such payment date.
D. Application of Proceeds of Collateral and Payments Under the
Guaranties.
(i) Application of Proceeds of Collateral. Subject to the provisions
of the Intercreditor Agreement, all proceeds received by Collateral Agent
in respect of any sale of, collection from, or other realization upon all
or any part of the Collateral under any Collateral Document may, in the
discretion of Collateral Agent, be held by Collateral Agent as Collateral
for, and/or (then or at any time thereafter) applied in full or in part by
Collateral Agent against, the applicable Secured Obligations (as defined
in such Collateral Document) in the following order of priority:
(a) To the payment of all costs and expenses of such sale,
collection or other realization, including reasonable compensation
to Collateral Agent and its agents and counsel, and all other
expenses, liabilities and advances made or incurred by Collateral
Agent in connection therewith, and all amounts for which Collateral
Agent is entitled to indemnification under such Collateral Document
and all advances made by Collateral Agent thereunder for the account
of the applicable Loan Party, and to the payment of all costs and
expenses paid or incurred by Collateral Agent in connection with the
exercise of any right or remedy under such Collateral Document, all
in accordance with the terms of this Agreement and such Collateral
Document;
(b) thereafter, to the extent of any excess such proceeds, to
the payment of all other such Secured Obligations for the ratable
benefit of the holders thereof; and
(c) thereafter, to the extent of any excess such proceeds, to
the payment to or upon the order of such Loan Party or to whosoever
may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.
(ii) Application of Payments Under the Guaranties. All payments
received by Collateral Agent under the Guaranties shall be applied
promptly from time to time by Collateral Agent in the following order of
priority:
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(a) To the payment of the costs and expenses of any collection
or other realization under the Guaranties, including reasonable
compensation to Collateral Agent and its agents and counsel, and all
expenses, liabilities and advances made or incurred by Collateral
Agent in connection therewith, all in accordance with the terms of
this Agreement and such Guaranty;
(b) thereafter, to the extent of any excess such payments, to
the payment of all other Guarantied Obligations (as defined in such
Guaranty) for the ratable benefit of the holders thereof; and
(c) thereafter, to the extent of any excess such payments, to
the payment to the applicable Guarantor or to whosoever may be
lawfully entitled to receive the same or as a court of competent
jurisdiction may direct.
2.5 Use of Proceeds.
A. Term Loans. The proceeds of the Term Loans (including the Delayed-Draw
Term Loans) other than Sterling Loans, together with a portion of the proceeds
of the initial Revolving Loans (the "Recapitalization Revolving Loans") and the
proceeds of the debt and equity capitalization of Company described in
subsection 4.1D(ii), shall be applied by Company to fund the Recapitalization
Financing Requirements. The proceeds of the Sterling Loans made to ACI and UK
Holding shall be used for general corporate purposes; provided that no proceeds
of any Sterling Loan may be used in any way which infringes Section 151 of the
Companies Act 1985, as amended.
B. Revolving Loans; Swing Line Loans. The proceeds of the Recapitalization
Revolving Loans shall be applied by Company as provided in subsection 2.5A. The
proceeds of any other Revolving Loans and any Swing Line Loans shall be applied
by Company for general corporate purposes.
2.6 Special Provisions Governing LIBOR Loans.
Notwithstanding any other provision of this Agreement to the
contrary, the following provisions shall govern with respect to LIBOR Loans as
to the matters covered:
A. Determination of Applicable Interest Rate. As soon as practicable after
10:00 A.M. (New York City time), or, in the case of Sterling Loans, 11:00 A.M.
(London time), on each Interest Rate Determination Date, Administrative Agent
shall determine (which determination shall, absent clearly demonstrable error,
be final, conclusive and binding upon all parties) the interest rate that shall
apply to LIBOR Loans for which an interest rate is then being determined for the
applicable Interest Period and shall promptly give notice thereof (in writing or
by telephone confirmed in writing) to Company, the applicable U.K. Borrower (in
the case of Sterling Loans) and each Lender.
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B. Inability to Determine Applicable Interest Rate. In the event that
Administrative Agent shall have reasonably determined (which determination
shall, absent clearly demonstrable error, be final and conclusive and binding
upon all parties hereto), on any Interest Rate Determination Date with respect
to any LIBOR Loans, that by reason of circumstances affecting the London
interbank market for the Applicable Currency adequate and fair means do not
exist for ascertaining the interest rate applicable to such Loans on the basis
provided for in the definition of LIBOR, Administrative Agent shall on such date
give notice (by telefacsimile or by telephone confirmed in writing) to the
applicable Borrower and each Lender of such determination, whereupon (i) no
Dollar Loans may be made as, or converted to, LIBOR Loans until such time as
Administrative Agent notifies the applicable Borrower and Lenders that the
circumstances giving rise to such notice no longer exist (which notice
Administrative Agent shall give at such time as such circumstances no longer
exist), (ii) any Notice of Borrowing or Notice of Conversion/Continuation given
by any Borrower with respect to the Dollar Loans in respect of which such
determination was made shall be deemed to be rescinded by such Borrower and
(iii) the provisions of subsection 2.6G shall apply with respect to Sterling
Loans.
C. Illegality or Impracticability of LIBOR Loans. In the event that on any
date any Lender shall have reasonably determined (which determination shall be
made only after consultation with Company and Administrative Agent, it being
understood that any such determination so made shall, absent clearly
demonstrable error, be final and conclusive and binding upon all parties hereto)
that the making, maintaining or continuation of its LIBOR Loans (i) has become
unlawful as a result of compliance by such Lender in good faith with any law,
treaty, governmental rule, regulation, guideline or order (or would conflict
with any such treaty, governmental rule, regulation, guideline or order not
having the force of law even though the failure to comply therewith would not be
unlawful) or (ii) has become impracticable as a result of contingencies
occurring after the date of this Agreement which materially and adversely affect
the London interbank market for the Applicable Currency then, and in any such
event, such Lender shall be an "Affected Lender" and it shall on that day give
notice (by telefacsimile or by telephone confirmed in writing) to the applicable
Borrower and Administrative Agent of such determination (which notice
Administrative Agent shall promptly transmit to each other Lender). Thereafter
(a) the obligation of the Affected Lender to make Loans as, or to convert Loans
to, LIBOR Loans shall be suspended until such notice shall be withdrawn by the
Affected Lender, (b) to the extent such determination by the Affected Lender
relates to a LIBOR Loan other than a Sterling Loan then being requested by
Company pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, the Affected Lender shall make such Loan as (or convert
such Loan to, as the case may be) a Base Rate Loan, (c) the Affected Lender's
obligation to maintain its outstanding LIBOR Loans (the "Affected Loans") shall
be terminated at the earlier to occur of the expiration of the Interest Period
then in effect with respect to the Affected Loans or when required by law, and
(d) any Affected Loans that are Dollar Loans shall automatically convert into
Base Rate Loans on the date of such termination. Notwithstanding the foregoing,
to the
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extent a determination by an Affected Lender as described above relates to a
LIBOR Loan then being requested by a Borrower pursuant to a Notice of Borrowing
or a Notice of Conversion/Continuation, such Borrower shall have the option,
subject to the provisions
of subsection 2.6D, to rescind such Notice of Borrowing or Notice of
Conversion/Continuation as to all Lenders by giving notice (by telefacsimile or
by telephone confirmed in writing) to Administrative Agent of such rescission on
the date on which the Affected Lender gives notice of its determination as
described above (which notice of rescission Administrative Agent shall promptly
transmit to each other Lender). Except as provided in the immediately preceding
sentence, nothing in this subsection 2.6C shall affect the obligation of any
Lender other than an Affected Lender to make or maintain Loans as, or to convert
Loans to, LIBOR Loans in accordance with the terms of this Agreement.
Notwithstanding the foregoing, if Tranche A Lenders having or holding more than
50% of the outstanding Sterling Loans are Affected Lenders as a result of
contingencies materially and adversely affecting the London interbank Sterling
market, Administrative Agent shall give prompt written notice of such event to
U.K. Borrowers and Lenders, in which event the provisions of subsection 2.6G
shall apply; provided that such notice shall not relieve any Lender of any
obligation to maintain its outstanding Sterling Loans in accordance with the
terms of this Agreement.
D. Compensation For Breakage or Non-Commencement of Interest Periods. The
applicable Borrower shall compensate each Lender, upon written request by that
Lender (which request shall set forth in reasonable detail the basis for
requesting such amounts), for all reasonable losses, costs and expenses
sustained by that Lender (including losses, costs and expenses actually
sustained by that Lender in connection with the liquidation or re-employment of
deposits or other funds acquired by it to make or carry the subject LIBOR Loans
but excluding any loss of anticipated profits): (i) if for any reason (other
than a default by that Lender or Administrative Agent) a borrowing of any LIBOR
Loan by such Borrower does not occur on a date specified therefor in a Notice of
Borrowing or a telephonic request for borrowing, or a conversion to or
continuation of any LIBOR Loan by such Borrower does not occur on a date
specified therefor in a Notice of Conversion/Continuation or a telephonic
request for conversion or continuation, (ii) if any prepayment (including any
prepayment pursuant to subsection 2.4B(i)) or other principal payment or any
conversion of any of such Borrower's LIBOR Loans occurs on a date prior to the
last day of an Interest Period applicable to that Loan or (iii) if any
prepayment of any of such Borrower's LIBOR Loans is not made on any date
specified in a notice of prepayment given by such Borrower.
E. Booking of LIBOR Loans. Any Lender may make, carry or transfer LIBOR
Loans at, to, or for the account of any of its branch offices or the office of
an Affiliate of that Lender; provided that Sterling Loans may only be made or
carried by a U.K. Qualifying Bank.
F. LIBOR Loans After Default. If, after the occurrence of and during the
continuation of a Potential Event of Default or an Event of Default,
Administrative Agent
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or Requisite Lenders have determined in its or their sole discretion not to
permit the making or continuation of any Dollar Loans as, or the conversion of
any Dollar Loans to, LIBOR Loans and Administrative Agent has so notified
Borrowers in writing (i) Borrowers may not elect to have any Loans be made as or
converted to LIBOR Loans or elect to have any outstanding LIBOR Loans continued
as such after the expiration of the Interest Periods then in effect for such
LIBOR Loans, (ii) subject to the provisions of subsection 2.6D, any Notice of
Borrowing or Notice of Conversion/Continuation given by such Borrower with
respect to a requested borrowing or conversion/continuation in respect of LIBOR
Loans that has not yet occurred shall be deemed to be rescinded by such
Borrower, and (iii) Sterling Loans shall be automatically continued as LIBOR
Loans having consecutive Interest Periods of one month.
G. Certain Events Affecting Sterling Loans. During the period of 25 days
after the giving of any notice by Administrative Agent (i) of the inability to
determine a Sterling interest rate pursuant to subsection 2.6B or (ii) that more
than 50% of the Tranche A Lenders are Affected Lenders pursuant to subsection
2.6C, Administrative Agent (in consultation with Tranche A Lenders that are
affected by such notice (the "Affected Sterling Lenders") shall negotiate with
U.K. Borrowers in good faith in order to ascertain whether a substitute interest
rate (a "Substitute Rate") or a substitute basis (a "Substitute Basis") may be
agreed upon for the maintaining of existing Sterling Loans that are Affected
Loans. If a Substitute Rate or a Substitute Basis is agreed upon by U.K.
Borrowers and all Affected Sterling Lenders, such Substitute Rate or such
Substitute Basis, as the case may be, shall apply in accordance with its terms
from the time referred to in clause (c) of the second sentence of subsection
2.6C. If a Substitute Rate or a Substitute Basis is not so agreed upon by U.K.
Borrowers and all Affected Sterling Lenders by the end of such 25-day period,
each Affected Sterling Lender's Sterling Loans shall thereafter bear interest at
a rate equal to the sum of (x) the rate certified by such Affected Sterling
Lender to be its cost of funds (from such sources as it may reasonably select
out of those sources then available to it) for such Sterling Loans plus (y) the
Applicable Tranche A LIBOR Margin plus (z) any Mandatory Liquid Asset Costs
incurred by such Affected Sterling Lender in respect of such Sterling Loans from
time to time.
2.7 Increased Costs; Capital Adequacy.
A. Compensation for Increased Costs and Taxes. Subject to the provisions
of subsection 2.7B (which shall be controlling with respect to the matters
covered thereby), in the event that any Lender shall reasonably determine (which
determination shall, absent clearly demonstrable error, be final and conclusive
and binding upon all parties hereto) that the introduction or adoption (after
the date hereof) of any law, treaty or governmental rule, regulation or order,
or that any change (after the date hereof) in any law, treaty or governmental
rule, regulation or order or in the interpretation, administration or
application thereof, or that any determination (after the date hereof) by a
court or governmental authority, or that compliance by such Lender with any
guideline,
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request or directive issued or made (after the date hereof) by any central bank
or other governmental or quasi-governmental authority (whether or not having the
force of law), in any such case:
(i) subjects such Lender (or its applicable Lending Office) to any
additional Tax (excluding (x) any Tax on the overall net income of such
Lender and (y) any Tax imposed on any Agent or any Lender as result of a
present or former connection between the jurisdiction imposing such Taxes
and such Lender (except a present connection arising solely from such
Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced any Loan Documents))
with respect to this Agreement or any of its obligations hereunder or any
payments to such Lender (or its applicable Lending Office) of principal,
interest, fees or any other amount payable hereunder (any such
non-excluded Tax, a "Non-Excluded Tax");
(ii) imposes, modifies or holds applicable any reserve (including
any marginal, emergency, supplemental, special or other reserve), special
deposit, compulsory loan, FDIC insurance or similar requirement against
assets held by, or deposits or other liabilities in or for the account of,
or advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Lender (other than any
included within the definition of Mandatory Liquid Asset Costs); or
(iii) imposes any other condition (other than with respect to a Tax
matter) on or affecting such Lender (or its applicable Lending Office) or
its obligations hereunder or the London interbank market for the
Applicable Currency;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable Lending Office) with
respect thereto; then, in any such case, the applicable Borrower shall pay to
such Lender, promptly after receipt of the statement referred to in the next
sentence, such additional amount or amounts (in the form of an increased rate
of, or a different method of calculating, interest or otherwise as such Lender
in its reasonable discretion shall determine) as may be necessary to compensate
such Lender for any such increased cost or reduction in amounts received or
receivable hereunder. Such Lender shall deliver to the applicable Borrower (with
a copy to Administrative Agent) a written statement, setting forth in reasonable
detail the basis for calculating the additional amounts owed to such Lender
under this subsection 2.7A, which statement shall be conclusive and binding upon
all parties hereto absent clearly demonstrable error. Notwithstanding the
foregoing, neither U.K. Borrower shall be obligated to compensate any Lender
under this subsection 2.7A in respect of any increased cost which is incurred as
a result of the implementation after the date hereof, in whole or in part, of
the International Convergence of Capital Measurements and Capital Standards
dated July 1988 published by the Basle Committee on Banking Regulations and
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Supervisory Practices (the "Guidance"), except where a higher level of capital
adequacy is imposed than that stipulated in the Guidance as at the date of this
Agreement.
B. Withholding of Taxes.
(i) Payments to Be Free and Clear. All sums payable by Borrowers
under this Agreement and the other Loan Documents shall (except to the
extent required by law) be paid free and clear of, and without any
deduction or withholding on account of, any Non-Excluded Tax imposed,
levied, collected, withheld or assessed by or within the United States of
America or the United Kingdom or any political subdivision in or of the
United States of America or the United Kingdom or any other jurisdiction
from or to which a payment is made by or on behalf of any Borrower or by
any federation or organization of which the United States of America or
the United Kingdom or any such jurisdiction is a member at the time of
payment.
(ii) Grossing-up of Payments. If any Borrower or any other Person is
required by law to make any deduction or withholding on account of any
such Non-Excluded Tax from any sum paid or payable by such Borrower to
Administrative Agent or any Lender under any of the Loan Documents:
(a) such Borrower shall notify Administrative Agent of any
such requirement or any change in any such requirement as soon as
such Borrower becomes aware of it;
(b) such Borrower shall pay any such Non-Excluded Tax before
the date on which penalties attach thereto, such payment to be made
(if the liability to pay is imposed on such Borrower) for its own
account or (if that liability is imposed on Administrative Agent or
such Lender, as the case may be) on behalf of and in the name of
Administrative Agent or such Lender;
(c) the sum payable by such Borrower in respect of which the
relevant deduction, withholding or payment is required shall be
increased to the extent necessary to ensure that, after the making
of that deduction, withholding or payment, Administrative Agent or
such Lender, as the case may be, receives on the due date a net sum
equal to what it would have received had no such deduction,
withholding or payment been required or made; and
(d) within 30 days after paying any sum from which it is
required by law to make any deduction or withholding, and within 30
days after the due date of payment of any Non-Excluded Tax which it
is required by clause (b) above to pay, such Borrower shall deliver
to Administrative
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Agent evidence satisfactory to the other affected parties of such
deduction, withholding or payment and of the remittance thereof to
the relevant taxing or other authority;
provided that no such additional amount shall be required to be paid to
any Lender under clause (c) above except to the extent that any change
after the date hereof (in the case of each Lender listed on the signature
pages hereof) or after the date of the Assignment Agreement pursuant to
which such Lender became a Lender (in the case of each other Lender) in
any such requirement for a deduction, withholding or payment as is
mentioned therein shall result in an increase in the rate of such
deduction, withholding or payment from that in effect at the date of this
Agreement or at the date of such Assignment Agreement, as the case may be,
in respect of payments to such Lender.
(iii) Evidence of Exemption from U.S. Withholding Tax.
(a) Each Lender that is organized under the laws of any
jurisdiction other than the United States or any state or other
political subdivision thereof (for purposes of this subsection
2.7B(iii), a "Non-US Lender") shall deliver to Administrative Agent
for transmission to Company, on or prior to the Closing Date (in the
case of each Lender listed on the signature pages hereof) or on or
prior to the date of the Assignment Agreement pursuant to which it
becomes a Lender (in the case of each other Lender), and at such
other times as may be necessary in the determination of Company or
Administrative Agent (each in the reasonable exercise of its
discretion), (1) two original copies of Internal Revenue Service
Form 1001 or 4224 (or any successor forms), properly completed and
duly executed by such Lender, together with any other certificate or
statement of exemption required under the Internal Revenue Code or
the regulations issued thereunder to establish that such Lender is
not subject to deduction or withholding of United States federal
income tax with respect to any payments to such Lender of principal,
interest, fees or other amounts payable under any of the Loan
Documents or (2) if such Lender is not a "bank" or other Person
described in Section 881(c)(3) of the Internal Revenue Code and
cannot deliver either Internal Revenue Service Form 1001 or 4224
pursuant to clause (1) above, a Certificate re Non-Bank Status
together with two original copies of Internal Revenue Service Form
W-8 (or any successor form), properly completed and duly executed by
such Lender, together with any other certificate or statement of
exemption required under the Internal Revenue Code or the
regulations issued thereunder to establish that such Lender is not
subject to deduction or withholding of United States federal income
tax with respect to any payments to such Lender of interest payable
under any of the Loan Documents.
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(b) Each Lender required to deliver any forms, certificates or
other evidence with respect to United States federal income tax
withholding matters pursuant to subsection 2.7B(iii)(a) hereby
agrees, from time to time after the initial delivery by such Lender
of such forms, certificates or other evidence, whenever a lapse in
time or change in circumstances renders such forms, certificates or
other evidence obsolete or inaccurate in any material respect, that
such Lender shall promptly (1) deliver to Administrative Agent for
transmission to Company two new original copies of Internal Revenue
Service Form 1001 or 4224, or a Certificate re Non-Bank Status and
two original copies of Internal Revenue Service Form W-8, as the
case may be, properly completed and duly executed by such Lender,
together with any other certificate or statement of exemption
required in order to confirm or establish that such Lender is not
subject to deduction or withholding of United States federal income
tax with respect to payments to such Lender under the Loan Documents
or (2) notify Administrative Agent and Company of its inability to
deliver any such forms, certificates or other evidence.
(c) Company shall not be required to pay any additional amount
to any Non-US Lender under clause (c) of subsection 2.7B(ii) if such
Lender shall have failed to satisfy the requirements of clause (a)
or (b)(1) of this subsection 2.7B(iii); provided that if such Lender
shall have satisfied the requirements of subsection 2.7B(iii)(a) on
the Closing Date (in the case of each Lender listed on the signature
pages hereof) or on the date of the Assignment Agreement pursuant to
which it became a Lender (in the case of each other Lender), nothing
in this subsection 2.7B(iii)(c) shall relieve Company of its
obligation to pay any additional amounts pursuant to clause (c) of
subsection 2.7B(ii) in the event that, as a result of any change in
any applicable law, treaty or governmental rule, regulation or
order, or any change in the interpretation, administration or
application thereof, such Lender is no longer properly entitled to
deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender is not subject to withholding
as described in subsection 2.7B(iii)(a).
(iv) U.K. Tax Status.
(a) Each Tranche A Lender represents and warrants that it is a
U.K. Qualifying Bank and hereby agrees to deliver to Administrative
Agent from time to time such forms, certificates or other evidence
with respect to its status as a U.K. Qualifying Bank as
Administrative Agent may reasonably request from time to time.
(b) Neither U.K. Borrower shall be required to pay any
additional amount to any Lender under clause (c) of subsection
2.7B(ii) in respect of deductions or withholdings of income or
similar taxes imposed by the
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United Kingdom with respect to payments by such U.K. Borrower which
would not have been imposed on such payment if the Lender to which
such payment was made was at the date of payment a U.K. Qualifying
Bank and was beneficially entitled to the interest.
C. Capital Adequacy Adjustment. If any Lender shall have determined that
the introduction or adoption (after the date hereof) of any law, rule or
regulation (or any provision thereof) regarding capital adequacy, or that any
change (after the date hereof) therein or in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or that
compliance by any Lender (or its applicable Lending Office) with any guideline,
request or directive regarding capital adequacy (whether or not having the force
of law) introduced or adopted (after the date hereof) by any such governmental
authority, central bank or comparable agency, in any such case has or would have
the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's Loans or
Commitments or Letters of Credit or participations therein or other obligations
hereunder with respect to the Loans or the Letters of Credit to a level below
that which such Lender or such controlling corporation could have achieved but
for such introduction, adoption, change or compliance (taking into consideration
the policies of such Lender or such controlling corporation with regard to
capital adequacy), then from time to time, promptly after receipt by the
applicable Borrower from such Lender of the statement referred to in the next
sentence, such Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such controlling corporation for such
reduction. Such Lender shall deliver to such Borrower (with a copy to
Administrative Agent) a written statement setting forth in reasonable detail the
basis of the calculation of such additional amounts, which statement shall be
conclusive and binding upon all parties hereto absent clearly demonstrable
error.
2.8 Notice of Certain Costs; Obligation of Lenders and Issuing Lenders to
Mitigate.
A. Notwithstanding anything in this Agreement to the contrary, to
the extent subsection 2.6, 2.7 or 3.6 requires any Lender or Issuing Lender to
give notice to any Borrower of an event or a condition that would entitle such
Lender or Issuing Lender to receive payments under subsection 2.6, 2.7 or 3.6,
as the case may be, in the event such notice is given by such Lender or Issuing
Lender more than 180 days after such Lender or Issuing Lender has knowledge of
the occurrence or existence of such event or circumstance, such Lender or
Issuing Lender shall not be entitled to receive any such payments under
subsection 2.6, 2.7 or 3.6, as the case may be, in respect of the period ending
on the Business Day immediately preceding the date on which such notice is given
to such Borrower.
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B. Each Lender and Issuing Lender agrees that, if an event occurs or
a condition arises that would cause such Lender to become an Affected Lender or
that would entitle such Lender or Issuing Lender to receive payments under
subsection 2.7 or subsection 3.6, it will, if so requested by any applicable
Borrower, use reasonable efforts (subject to overall policy considerations of
such Lender) to (i) make, issue, fund or maintain the Commitments of such Lender
or the affected Loans or Letters of Credit (or participations therein) of such
Lender or Issuing Lender through another lending or letter of credit office of
such Lender or Issuing Lender or (ii) take such other measures as such Lender or
Issuing Lender may deem reasonable in good faith, if as a result thereof the
circumstances which would cause such Lender to be an Affected Lender would cease
to exist or the additional amounts which would otherwise be required to be paid
to such Lender or Issuing Lender pursuant to subsection 2.7 or subsection 3.6
would be materially reduced and if the making, issuing, funding or maintaining
of such Commitments or Loans or Letters of Credit (or participations therein)
through such other lending or letter of credit office or in accordance with such
other measures, as the case may be, would not otherwise materially adversely
affect such Commitments or Loans or Letters of Credit (or participations
therein) or cause such Lender or Issuing Lender to suffer any economic, legal or
regulatory disadvantage or (except with the express consent of the applicable
Borrower) cause such Lender not to be a U.K. Qualifying Bank; provided that
nothing in this subsection 2.8 shall affect or postpone any of the Obligations
of any Borrower or the rights of any Lender provided in subsection 2.6C, 2.6G,
2.7 or 3.6.
2.9 Defaulting Lenders.
Anything contained herein to the contrary notwithstanding, in the
event that any Lender (a "Defaulting Lender") defaults (a "Funding Default") in
its obligation to fund any Revolving Loan (a "Defaulted Revolving Loan") in
accordance with subsection 2.1 as a result of the appointment of a receiver or
conservator with respect to such Lender at the direction or request of any
regulatory agency or authority, then (i) during any Default Period (as defined
below) with respect to such Defaulting Lender, such Defaulting Lender shall be
deemed not to be a "Lender" for purposes of voting on any matters (including the
granting of any consents or waivers) with respect to any of the Loan Documents,
(ii) to the extent permitted by applicable law, until such time as the Default
Excess (as defined below) with respect to such Defaulting Lender shall have been
reduced to zero, (a) any voluntary prepayment of the Revolving Loans pursuant to
subsection 2.4B(i) shall, if Company so directs at the time of making such
voluntary prepayment, be applied to the Revolving Loans of other Lenders as if
such Defaulting Lender had no Revolving Loans outstanding and the Revolving Loan
Exposure of such Defaulting Lender were zero, and (b) any mandatory prepayment
of the Revolving Loans pursuant to subsection 2.4B(iii) shall, if Company so
directs at the time of making such mandatory prepayment, be applied to the
Revolving Loans of other Lenders (but not to the Revolving Loans of such
Defaulting Lender) as if such Defaulting Lender had funded all Defaulted
Revolving Loans of such Defaulting Lender, it being understood and agreed
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that Company shall be entitled to retain any portion of any mandatory prepayment
of the Revolving Loans that is not paid to such Defaulting Lender solely as a
result of the operation of the provisions of this clause (b), (iii) such
Defaulting Lender's Revolving Loan Commitment and outstanding Revolving Loans
and such Defaulting Lender's Pro Rata Share of the Letter of Credit Usage shall
be excluded for purposes of calculating the commitment fee payable to Lenders
pursuant to subsection 2.3A in respect of any day during any Default Period with
respect to such Defaulting Lender, and such Defaulting Lender shall not be
entitled to receive any commitment fee pursuant to subsection 2.3A with respect
to such Defaulting Lender's Revolving Loan Commitment in respect of any Default
Period with respect to such Defaulting Lender, and (iv) the Total Utilization of
Revolving Loan Commitments as at any date of determination shall be calculated
as if such Defaulting Lender had funded all Defaulted Revolving Loans of such
Defaulting Lender.
For purposes of this Agreement, (I) "Default Period" means, with
respect to any Defaulting Lender, the period commencing on the date of the
applicable Funding Default and ending on the earliest of the following dates:
(A) the date on which all Revolving Loan Commitments are cancelled or terminated
and/or the Obligations are declared or become immediately due and payable, (B)
the date on which (1) the Default Excess with respect to such Defaulting Lender
shall have been reduced to zero (whether by the funding by such Defaulting
Lender of any Defaulted Revolving Loans of such Defaulting Lender or by the
non-pro rata application of any voluntary or mandatory prepayments of the
Revolving Loans in accordance with the terms of this subsection 2.9 or by a
combination thereof) and (2) such Defaulting Lender shall have delivered to
Company and Administrative Agent a written reaffirmation of its intention to
honor its obligations under this Agreement with respect to its Revolving Loan
Commitment, and (C) the date on which Company, Administrative Agent and
Requisite Lenders waive all Funding Defaults of such Defaulting Lender in
writing, and (II) "Default Excess" means, with respect to any Defaulting Lender,
the excess, if any, of such Defaulting Lender's Pro Rata Share of the aggregate
outstanding principal amount of Revolving Loans of all Lenders (calculated as if
all Defaulting Lenders (other than such Defaulting Lender) had funded all of
their respective Defaulted Revolving Loans) over the aggregate outstanding
principal amount of Revolving Loans of such Defaulting Lender.
No Commitment of any Lender shall be increased or otherwise
affected, and, except as otherwise expressly provided in this subsection 2.9,
performance by Company of its obligations under this Agreement and the other
Loan Documents shall not be excused or otherwise modified, as a result of any
Funding Default or the operation of this subsection 2.9. The rights and remedies
against a Defaulting Lender under this subsection 2.9 are in addition to other
rights and remedies which Company may have against such Defaulting Lender with
respect to any Funding Default and which Administrative Agent or any Lender may
have against such Defaulting Lender with respect to any Funding Default.
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2.10 Removal or Replacement of a Lender.
A. Anything contained in this Agreement to the contrary
notwithstanding, in the event that:
(i) (a) any Lender (an "Increased-Cost Lender") shall give notice to
any Borrower that such Lender is an Affected Lender or that such Lender is
entitled to receive payments under subsection 2.7 or subsection 3.6, (b)
the circumstances which have caused such Lender to be an Affected Lender
or which entitle such Lender to receive such payments shall remain in
effect, and (c) such Lender shall fail to withdraw such notice within five
Business Days after such Borrower's request for such withdrawal; or
(ii) (a) any Lender shall become a Defaulting Lender, (b) the
Default Period for such Defaulting Lender shall remain in effect, and (c)
such Defaulting Lender shall fail to cure the default as a result of which
it has become a Defaulting Lender within five Business Days after
Company's request that it cure such default; or
(iii) (a) in connection with any proposed amendment, modification,
termination, waiver or consent with respect to any of the provisions of
this Agreement as contemplated by clauses (i) through (iv) of the first
proviso to subsection 10.6A, the consent of Requisite Lenders shall have
been obtained but the consent of one or more of such other Lenders (each a
"Non-Consenting Lender") whose consent is required shall not have been
obtained, and (b) the failure to obtain Non-Consenting Lenders' consents
does not result solely from the exercise of Non-Consenting Lenders' rights
(and the withholding of any required consents by Non-Consenting Lenders)
pursuant to the second proviso to subsection 10.6A;
then, and in each such case, Company shall have the right, at its option and on
behalf of all Borrowers, to remove or replace the applicable Increased-Cost
Lender, Defaulting Lender or Non-Consenting Lender (the "Terminated Lender") to
the extent permitted by subsection 2.10B.
B. Company may, by giving written notice to Administrative Agent and any
Terminated Lender of its election to do so:
(i) elect to (a) terminate the Revolving Loan Commitment, if any, of
such Terminated Lender upon receipt by such Terminated Lender of such
notice and (b) prepay on the date of such termination any outstanding
Loans made by such Terminated Lender, together with accrued and unpaid
interest thereon and any other amounts payable to such Terminated Lender
hereunder pursuant to subsection 2.6, subsection 2.7 or subsection 3.6 or
otherwise; provided that, in the event such
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Terminated Lender has any Loans outstanding at the time of such
termination, the written consent of Administrative Agent and Requisite
Lenders (which consent shall not be unreasonably withheld or delayed)
shall be required in order for Company to make the election set forth in
this clause (i); or
(ii) elect to cause such Terminated Lender (and such Terminated
Lender hereby irrevocably agrees) to assign its outstanding Loans and its
Revolving Loan Commitment, if any, in full to one or more Eligible
Assignees (each a "Replacement Lender") in accordance with the provisions
of subsection 10.1B; provided that (a) on the date of such assignment, the
applicable Borrower shall pay any amounts payable to such Terminated
Lender pursuant to subsection 2.6, subsection 2.7 or subsection 3.6 or
otherwise as if it were a prepayment and (b) in the event such Terminated
Lender is a Non-Consenting Lender, each Replacement Lender shall consent,
at the time of such assignment, to each matter in respect of which such
Terminated Lender was a Non-Consenting Lender;
provided that (X) Company may not make either of the elections set forth in
clauses (i) or (ii) above with respect to any Non-Consenting Lender unless
Company also makes one of such elections with respect to each other Terminated
Lender which is a Non-Consenting Lender and (Y) Company may not make either of
such elections with respect to any Terminated Lender that is an Issuing Lender
unless, prior to the effectiveness of such election, Company shall have caused
each outstanding Letter of Credit issued by such Issuing Lender to be cancelled.
C. Upon the prepayment of all amounts owing to any Terminated Lender and
the termination of such Terminated Lender's Revolving Loan Commitment, if any,
pursuant to clause (i) of subsection 2.10B, (i) Schedule 2.1 shall be deemed
modified to reflect any corresponding changes in the Revolving Loan Commitments
and (ii) such Terminated Lender shall no longer constitute a "Lender" for
purposes of this Agreement; provided that any rights of such Terminated Lender
to indemnification under this Agreement (including under subsections 2.6D, 2.7,
3.6, 10.2 and 10.3) shall survive as to such Terminated Lender.
Section 3. LETTERS OF CREDIT
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations
Therein.
A. Letters of Credit. In addition to Company requesting that Lenders make
Revolving Loans pursuant to subsection 2.1A(iv) and that Swing Line Lender make
Swing Line Loans pursuant to subsection 2.1A(v), Company may request, in
accordance with the provisions of this subsection 3.1, from time to time during
the period from the Closing Date to but excluding the Revolving Loan Commitment
Termination Date, that one or more Lenders issue Letters of Credit for the
account of Company for the purposes
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specified in the definitions of Commercial Letters of Credit and Standby Letters
of Credit. Subject to the terms and conditions of this Agreement and in reliance
upon the representations and warranties of Company herein set forth, any one or
more Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be
obligated to, issue such Letters of Credit in accordance with the provisions of
this subsection 3.1; provided that Company shall not request that any Lender
issue (and no Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance,
the Total Utilization of Revolving Loan Commitments would exceed the
Revolving Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance,
the Letter of Credit Usage would exceed $100,000,000;
(iii) any Standby Letter of Credit having an expiration date later
than the earlier of (a) five Business Days prior to the Revolving Loan
Commitment Termination Date and (b) the date which is one year from the
date of issuance of such Standby Letter of Credit; provided that the
immediately preceding clause (b) shall not prevent any Issuing Lender from
agreeing that a Standby Letter of Credit will automatically be extended
for one or more successive periods not to exceed one year each unless such
Issuing Lender elects not to extend for any such additional period; and
provided, further that such Issuing Lender shall elect not to extend such
Standby Letter of Credit if it has been notified by Administrative Agent
that an Event of Default has occurred and is continuing (and has not been
waived in accordance with subsection 10.6) at the time such Issuing Lender
must elect whether or not to allow such extension;
(iv) any Commercial Letter of Credit having an expiration date (a)
later than the earlier of (X) the date which is 30 days prior to the
Revolving Loan Commitment Termination Date and (Y) the date which is 180
days from the date of issuance of such Commercial Letter of Credit or (b)
that is otherwise unacceptable to the applicable Issuing Lender in its
reasonable discretion; or
(v) any Letter of Credit that does not provide for sight payment.
B. Mechanics of Issuance.
(i) Notice of Request for Issuance. Whenever Company desires the
issuance of a Letter of Credit, it shall deliver to Administrative Agent a
Notice of Request for Issuance of Letter of Credit substantially in the
form of Exhibit III annexed hereto no later than 12:00 Noon (New York City
time) at least three Business Days (in the case of Standby Letters of
Credit) or five Business Days (in the case of Commercial Letters of
Credit), or in each case such shorter period as may be agreed to by the
Issuing Lender in any particular instance, in advance of
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the proposed date of issuance. The Notice of Request for Issuance of
Letter of Credit shall specify (a) the proposed date of issuance (which
shall be a Business Day), (b) whether the Letter of Credit is to be a
Standby Letter of Credit or a Commercial Letter of Credit, (c) the face
amount of the Letter of Credit, (d) in the case of a Letter of Credit
which Company requests to be denominated in a currency other than Dollars,
the currency in which Company requests such Letter of Credit to be issued,
(e) the expiration date of the Letter of Credit, (f) the name and address
of the beneficiary, and (g) either the verbatim text of the proposed
Letter of Credit or the proposed terms and conditions thereof, including a
precise description of any documents to be presented by the beneficiary
which, if presented by the beneficiary in substantial compliance with the
terms and conditions of the Letter of Credit on or prior to the expiration
date of the Letter of Credit, would require the Issuing Lender to make
payment under the Letter of Credit; provided that the Issuing Lender, in
its reasonable discretion, may require changes in the text of the proposed
Letter of Credit or any such documents; and provided, further that no
Letter of Credit shall require payment against a conforming draft to be
made thereunder on the same business day (under the laws of the
jurisdiction in which the office of the Issuing Lender to which such draft
is required to be presented is located) that such draft is presented if
such presentation is made after 11:00 A.M. (in the time zone of such
office of the Issuing Lender) on such business day.
Company shall notify the applicable Issuing Lender (and
Administrative Agent, if Administrative Agent is not such Issuing Lender)
prior to the issuance of any Letter of Credit in the event that any of the
matters to which Company is required to certify in the applicable Notice
of Request for Issuance of Letter of Credit is no longer true and correct
as of the proposed date of issuance of such Letter of Credit, and upon the
issuance of any Letter of Credit Company shall be deemed to have
re-certified, as of the date of such issuance, as to the matters to which
Company is required to certify in the applicable Notice of Request for
Issuance of Letter of Credit.
(ii) Determination of Issuing Lender. Upon receipt by Administrative
Agent of a Notice of Request for Issuance of Letter of Credit pursuant to
subsection 3.1B(i) requesting the issuance of a Letter of Credit, in the
event Administrative Agent elects to issue such Letter of Credit,
Administrative Agent shall promptly so notify Company, and Administrative
Agent shall be the Issuing Lender with respect thereto. In the event that
Administrative Agent, in its sole discretion, elects not to issue such
Letter of Credit, Administrative Agent shall promptly so notify Company,
whereupon Company may request any other Lender to issue such Letter of
Credit by delivering to such Lender a copy of the applicable Notice of
Request for Issuance of Letter of Credit. Any Lender so requested to issue
such Letter of Credit shall promptly notify Company and Administrative
Agent whether or not, in its sole discretion, it has elected to issue such
Letter of
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Credit, and any such Lender which so elects to issue such Letter of Credit
shall be the Issuing Lender with respect thereto. In the event that all
other Lenders shall have declined to issue such Letter of Credit,
notwithstanding the prior election of Administrative Agent not to issue
such Letter of Credit, Administrative Agent shall be obligated to issue
such Letter of Credit and shall be the Issuing Lender with respect
thereto, notwithstanding the fact that the Letter of Credit Usage with
respect to such Letter of Credit and with respect to all other Letters of
Credit issued by Administrative Agent, when aggregated with Administrative
Agent's outstanding Revolving Loans and Swing Line Loans, may exceed
Administrative Agent's Revolving Loan Commitment then in effect; provided
that Administrative Agent shall not be obligated to issue any Letter of
Credit denominated in a foreign currency which in the judgment of
Administrative Agent is not readily and freely available.
Company shall notify the applicable Issuing Lender (and
Administrative Agent, if Administrative Agent is not such Issuing Lender)
prior to the issuance of any Letter of Credit in the event that any of the
matters to which Company is required to certify in the applicable Notice
of Request for Issuance of Letter of Credit is no longer true and correct
as of the proposed date of issuance of such Letter of Credit, and upon the
issuance of any Letter of Credit Company shall be deemed to have
re-certified, as of the date of such issuance, as to the matters to which
Company is required to certify in the applicable Notice of Request for
Issuance of Letter of Credit.
(iii) Issuance of Letter of Credit. Upon satisfaction or waiver (in
accordance with subsection 10.6) of the conditions set forth in subsection
4.3, the Issuing Lender shall issue the requested Letter of Credit in
accordance with the Issuing Lender's standard operating procedures.
(iv) Notification to Lenders Regarding Standby Letters of Credit.
Upon the issuance of any Standby Letter of Credit the applicable Issuing
Lender shall promptly notify Administrative Agent and each other Lender of
such issuance, which notice shall be accompanied by a copy of such Standby
Letter of Credit. Promptly after receipt of such notice (or, if
Administrative Agent is the Issuing Lender, together with such notice),
Administrative Agent shall notify each Lender of the amount of such
Lender's respective participation in such Standby Letter of Credit,
determined in accordance with subsection 3.1C. In addition, on the first
Business Day of each calendar month each Issuing Lender shall deliver to
Administrative Agent and each Lender a report setting forth the maximum
aggregate amount which is at or any time thereafter may become available
for drawing under all Standby Letters of Credit issued by such Issuing
Lender then outstanding (any amount which is denominated in a currency
other than Dollars being determined by reference to the applicable
Exchange Rate for such currency as at such date), and identifying each
Standby Letter of Credit issued by such
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Issuing Lender, the maximum amount that may become available thereunder
and, in the case of each Standby Letter of Credit that is not denominated
in Dollars, the applicable Exchange Rate for such Letter of Credit as at
such date.
(v) Reports to Administrative Agent and Lenders Regarding Commercial
Letters of Credit. Each Issuing Lender (other than Administrative Agent)
with respect to any Commercial Letter of Credit shall deliver to
Administrative Agent, by telefacsimile transmission on the first Business
Day of each week, a report setting forth the daily aggregate amount
available for drawing during the immediately preceding week under all
outstanding Commercial Letters of Credit issued by such Issuing Lender.
Within 15 days after the end of each calendar month ending after the
Closing Date, so long as any Commercial Letter of Credit shall have been
outstanding during such calendar month, Administrative Agent shall deliver
to each Lender a report setting forth for such calendar month the daily
aggregate amount available to be drawn under all Commercial Letters of
Credit that were outstanding during such calendar month.
C. Lenders' Purchase of Participations in Letters of Credit. Immediately
upon the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby agrees to, have irrevocably purchased from the Issuing Lender a
participation in such Letter of Credit and any drawings honored thereunder in an
amount equal to such Lender's Pro Rata Share of the maximum amount which is or
at any time may become available to be drawn thereunder.
3.2 Letter of Credit Fees.
Company agrees to pay the following amounts with respect to Letters
of Credit issued hereunder:
(i) with respect to each Letter of Credit, (a) a fronting fee,
payable directly to the applicable Issuing Lender for its own account,
equal to 0.125% per annum multiplied by the daily amount available to be
drawn under such Letter of Credit and (b) a letter of credit fee, payable
to Administrative Agent for the account of Lenders, equal to the
Applicable Tranche A LIBOR Margin minus 0.125% per annum minus the
Applicable Commitment Fee Percentage multiplied by the daily amount
available to be drawn under such Letter of Credit, each such fronting fee
or letter of credit fee to be payable in arrears on and to (but excluding)
each March 31, June 30, September 30 and December 31 of each year and on
the Revolving Loan Commitment Termination Date, in each case computed on
the basis of a 365-day or 366-day year, as the case may be, for the actual
number of days elapsed; and
(ii) with respect to the issuance, amendment or transfer of each
Letter of Credit and each payment of a drawing made thereunder (without
duplication of the
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fees payable under clause (i) above), customary documentary and processing
charges payable directly to the applicable Issuing Lender for its own
account in accordance with such Issuing Lender's standard schedule for
such charges in effect at the time of such issuance, amendment, transfer
or payment, as the case may be.
For purposes of calculating any fees payable under clause (i) of this subsection
3.2, (1) the daily amount available to be drawn under any Letter of Credit shall
be determined as of the close of business on any date of determination and (2)
any amount described in such clause which is denominated in a currency other
than Dollars shall be valued based on the applicable Exchange Rate for such
currency as of the applicable date of determination. Promptly upon receipt by
Administrative Agent of any amount described in clause (i)(b) of this subsection
3.2, Administrative Agent shall distribute to each Lender its Pro Rata Share of
such amount.
3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit.
A. Responsibility of Issuing Lender With Respect to Drawings. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to examine the
documents delivered under such Letter of Credit with reasonable care so as to
ascertain whether they appear on their face to be in substantial compliance with
the terms and conditions of such Letter of Credit.
B. Reimbursement by Company of Amounts Paid Under Letters of Credit. In
the event an Issuing Lender has determined to honor a drawing under a Letter of
Credit issued by it, such Issuing Lender shall immediately notify Company and
Administrative Agent, and Company shall reimburse such Issuing Lender on or
before the Business Day immediately following the date on which such drawing is
honored (the "Reimbursement Date") in an amount in Dollars (which amount, in the
case of a drawing under a Letter of Credit which is denominated in a currency
other than Dollars, shall be calculated by reference to the applicable Exchange
Rate) and in same day funds equal to the amount of such honored drawing;
provided that, anything contained in this Agreement to the contrary
notwithstanding, (i) unless Company shall have notified Administrative Agent and
such Issuing Lender prior to 11:00 A.M. (New York City time) on the date such
drawing is honored that Company intends to reimburse such Issuing Lender for the
amount of such honored drawing with funds other than the proceeds of Revolving
Loans, Company shall be deemed to have given a timely Notice of Borrowing to
Administrative Agent requesting Lenders to make Revolving Loans that are Base
Rate Loans on the Reimbursement Date in an amount in Dollars (which amount, in
the case of a drawing under a Letter of Credit which is denominated in a
currency other than Dollars, shall be calculated by reference to the applicable
Exchange Rate) equal to the amount of such honored drawing and (ii) subject to
satisfaction or waiver of the conditions specified in subsection 4.2B, Lenders
shall, on the Reimbursement Date, make Revolving Loans that are Base Rate Loans
in the amount of such honored drawing, the proceeds of which
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shall be applied directly by Administrative Agent to reimburse such Issuing
Lender for the amount of such honored drawing; and provided, further that if for
any reason proceeds of Revolving Loans are not received by such Issuing Lender
on the Reimbursement Date in an amount equal to the amount of such honored
drawing, Company shall reimburse such Issuing Lender, on demand, in an amount in
same day funds equal to the excess of the amount of such honored drawing over
the aggregate amount of such Revolving Loans, if any, which are so received.
Nothing in this subsection 3.3B shall be deemed to relieve any Lender from its
obligation to make Revolving Loans on the terms and conditions set forth in this
Agreement, and Company shall retain any and all rights it may have against any
Lender resulting from the failure of such Lender to make such Revolving Loans
under this subsection 3.3B.
C. Payment by Lenders of Unreimbursed Amounts Paid Under Letters of
Credit.
(i) Payment by Lenders. In the event that Company shall fail for any
reason to reimburse any Issuing Lender as provided in subsection 3.3B in
an amount (calculated, in the case of a drawing under a Letter of Credit
denominated in a currency other than Dollars, by reference to the
applicable Exchange Rate) equal to the amount of any drawing honored by
such Issuing Lender under a Letter of Credit issued by it, such Issuing
Lender shall promptly notify each other Lender of the unreimbursed amount
of such honored drawing and of such other Lender's respective
participation therein based on such Lender's Pro Rata Share. Each Lender
shall make available to such Issuing Lender an amount equal to its
respective participation, in Dollars and in same day funds, at the office
of such Issuing Lender specified in such notice, not later than 12:00 Noon
(New York City time) on the first business day (under the laws of the
jurisdiction in which such office of such Issuing Lender is located) after
the date notified by such Issuing Lender. In the event that any Lender
fails to make available to such Issuing Lender on such business day the
amount of such Lender's participation in such Letter of Credit as provided
in this subsection 3.3C, such Issuing Lender shall be entitled to recover
such amount on demand from such Lender together with interest thereon at
the Federal Funds Effective Rate for three Business Days and thereafter at
the Base Rate. Nothing in this subsection 3.3C shall be deemed to
prejudice the right of any Lender to recover from any Issuing Lender any
amounts made available by such Lender to such Issuing Lender pursuant to
this subsection 3.3C in the event that it is determined by the final
judgment of a court of competent jurisdiction that the payment with
respect to a Letter of Credit by such Issuing Lender in respect of which
payment was made by such Lender constituted gross negligence or willful
misconduct on the part of such Issuing Lender.
(ii) Distribution to Lenders of Reimbursements Received From
Company. In the event any Issuing Lender shall have been reimbursed by
other Lenders pursuant to subsection 3.3C(i) for all or any portion of any
drawing
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honored by such Issuing Lender under a Letter of Credit issued by it, such
Issuing Lender shall distribute to each other Lender which has paid all
amounts payable by it under subsection 3.3C(i) with respect to such
honored drawing such other Lender's Pro Rata Share of all payments
subsequently received by such Issuing Lender from Company in reimbursement
of such honored drawing when such payments are received. Any such
distribution shall be made to a Lender at its primary address set forth
below its name on the appropriate signature page hereof or at such other
address as such Lender may request.
D. Interest on Amounts Paid Under Letters of Credit.
(i) Payment of Interest by Company. Company agrees to pay to each
Issuing Lender, with respect to drawings honored under any Letters of
Credit issued by it, interest on the amount paid by such Issuing Lender in
respect of each such honored drawing from the date such drawing is honored
to but excluding the date such amount is reimbursed by Company (including
any such reimbursement out of the proceeds of Revolving Loans pursuant to
subsection 3.3B) at a rate equal to (a) for the period from the date such
drawing is honored to but excluding the Reimbursement Date, the rate then
in effect under this Agreement with respect to Revolving Loans that are
Base Rate Loans and (b) thereafter, a rate which is 2% per annum in excess
of the rate of interest otherwise payable under this Agreement with
respect to Revolving Loans that are Base Rate Loans. Interest payable
pursuant to this subsection 3.3D(i) shall be computed in the manner
specified in subsection 2.2F for the computation of interest on Base Rate
Loans and shall be payable on demand or, if no demand is made, on the date
on which the related drawing under a Letter of Credit is reimbursed in
full.
(ii) Distribution of Interest Payments by Issuing Lender. Promptly
upon receipt by any Issuing Lender of any payment of interest pursuant to
subsection 3.3D(i) with respect to a drawing honored under a Letter of
Credit issued by it, (a) such Issuing Lender shall distribute to each
other Lender, out of the interest received by such Issuing Lender in
respect of the period from the date such drawing is honored to but
excluding the date on which such Issuing Lender is reimbursed for the
amount of such drawing (including any such reimbursement out of the
proceeds of Revolving Loans pursuant to subsection 3.3B), the amount that
such other Lender would have been entitled to receive in respect of the
letter of credit fee that would have been payable in respect of such
Letter of Credit for such period pursuant to subsection 3.2 if no drawing
had been honored under such Letter of Credit, and (b) in the event such
Issuing Lender shall have been reimbursed by other Lenders pursuant to
subsection 3.3C(i) for all or any portion of such honored drawing, such
Issuing Lender shall distribute to each other Lender which has paid all
amounts payable by it under subsection 3.3C(i) with respect to such
honored drawing such other Lender's Pro Rata Share of any interest
received by such Issuing Lender in respect of that portion of such honored
drawing so
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reimbursed by other Lenders for the period from the date on which such
Issuing Lender was so reimbursed by other Lenders to but excluding the
date on which such portion of such honored drawing is reimbursed by
Company. Any such distribution shall be made to a Lender at its primary
address set forth below its name on the appropriate signature page hereof
or at such other address as such Lender may request.
3.4 Obligations Absolute.
The obligation of Company to reimburse each Issuing Lender for
drawings honored under the Letters of Credit issued by it and to repay any
Revolving Loans made by Lenders pursuant to subsection 3.3B and the obligations
of Lenders under subsection 3.3C(i) shall be unconditional and irrevocable and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances including any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right
which Company or any Lender may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), any Issuing Lender or other Lender or any other
Person or, in the case of a Lender, against Company, whether in connection
with this Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between Company or one
of its Subsidiaries and the beneficiary for which any Letter of Credit was
procured);
(iii) any draft or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(iv) payment by the applicable Issuing Lender under any Letter of
Credit against presentation of a draft or other document which does not
substantially comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any
of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by any
party thereto;
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing; or
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(viii) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing;
provided, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question.
3.5 Indemnification; Nature of Issuing Lenders' Duties.
A. Indemnification. In addition to amounts payable as provided in
subsection 3.6, Company hereby agrees to protect, indemnify, pay and save
harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which such Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit by such Issuing
Lender, other than as a result of (a) the gross negligence or willful misconduct
of such Issuing Lender as determined by a final judgment of a court of competent
jurisdiction or (b) subject to the following clause (ii), the wrongful dishonor
by such Issuing Lender of a proper demand for payment made under any Letter of
Credit issued by it or (ii) the failure of such Issuing Lender to honor a
drawing under any such Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts or omissions herein called
"Governmental Acts").
B. Nature of Issuing Lenders' Duties. As between Company and any Issuing
Lender, Company assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by such Issuing Lender by, the respective beneficiaries
of such Letters of Credit. In furtherance and not in limitation of the
foregoing, such Issuing Lender shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes beyond the
control of such Issuing Lender, including any Governmental Acts, and none of
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the above shall affect or impair, or prevent the vesting of, any of such Issuing
Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by any Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to Company.
Notwithstanding anything to the contrary contained in this
subsection 3.5, Company shall retain any and all rights it may have against any
Issuing Lender for any liability arising solely out of the gross negligence or
willful misconduct of such Issuing Lender.
3.6 Increased Costs and Taxes Relating to Letters of Credit.
Subject to the provisions of subsection 2.7B (which shall be
controlling with respect to the matters covered thereby), in the event that any
Issuing Lender or Lender shall reasonably determine (which determination shall,
absent clearly demonstrable error, be final and conclusive and binding upon all
parties hereto) that the introduction or adoption (after the date hereof) of any
law, treaty or governmental rule, regulation or order, or that any change (after
the date hereof) therein or in the interpretation, administration or application
thereof, or that any determination (after the date hereof) by a court or
governmental authority, or that compliance by any Issuing Lender or Lender with
any guideline, request or directive issued or made (after the date hereof) by
any central bank or other governmental or quasi-governmental authority (whether
or not having the force of law), in any such case:
(i) subjects such Issuing Lender or Lender (or its applicable
lending or letter of credit office) to any additional Tax (other than any
Tax on the overall net income of such Issuing Lender or Lender) with
respect to the issuing or maintaining of any Letters of Credit or the
purchasing or maintaining of any participations therein or any other
obligations under this Section 3, whether directly or by such being
imposed on or suffered by any particular Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve (including
any marginal, emergency, supplemental, special or other reserve), special
deposit, compulsory loan, FDIC insurance or similar requirement in respect
of any Letters of Credit issued by any Issuing Lender or participations
therein purchased by any Lender; or
(iii) imposes any other condition (other than with respect to a Tax
matter) on or affecting such Issuing Lender or Lender (or its applicable
lending or letter of
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credit office) regarding this Section 3 or any Letter of Credit or any
participation therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Lender or Lender of agreeing to issue, issuing or maintaining any Letter of
Credit or agreeing to purchase, purchasing or maintaining any participation
therein or to reduce any amount received or receivable by such Issuing Lender or
Lender (or its applicable lending or letter of credit office) with respect
thereto; then, in any case, Company shall pay to such Issuing Lender or Lender,
promptly after receipt of the statement referred to in the next sentence, such
additional amount or amounts as may be necessary to compensate such Issuing
Lender or Lender for any such increased cost or reduction in amounts received or
receivable hereunder. Such Issuing Lender or Lender shall deliver to Company
(with a copy to Administrative Agent) a written statement, setting forth in
reasonable detail the basis for calculating the additional amounts owed to such
Issuing Lender or Lender under this subsection 3.6, which statement shall be
conclusive and binding upon all parties hereto absent clearly demonstrable
error.
Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of Letters
of Credit hereunder are subject to the satisfaction of the following conditions.
4.1 Conditions to Initial Loans.
The obligations of Lenders to make the initial Term Loans and any
Revolving Loans and Swing Line Loans to be made on the Closing Date and the
issuance of any Letters of Credit to be issued on the Closing Date are, in
addition to the conditions precedent specified in subsection 4.2 (in the case of
any such Loans) or 4.3 (in the case of any such Letters of Credit), subject to
prior or concurrent satisfaction of the following conditions:
A. Loan Party Documents. On or before the Closing Date, Company shall, and
shall cause each other Loan Party to, deliver to Lenders (or to Administrative
Agent for Lenders with sufficient originally executed copies, where appropriate,
for each Lender and its counsel) the following with respect to Company or such
Loan Party, as the case may be, each, unless otherwise noted, dated the Closing
Date:
(i) Certified copies of the Certificate or Articles of Incorporation
of such Person (or, in the case of each of U.K. Borrowers, its Memorandum
and Articles of Association), together (in the case of Company only) with
a good standing certificate from the Secretary of State of each of the
States of Delaware and Connecticut, each dated a recent date prior to the
Closing Date;
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(ii) Copies of the Bylaws of such Person, certified as of the
Closing Date by such Person's corporate secretary or an assistant
secretary;
(iii) Resolutions of the Board of Directors of such Person approving
and authorizing the execution, delivery and performance of the Loan
Documents and Related Agreements to which it is a party, certified as of
the Closing Date by the corporate secretary or an assistant secretary of
such Person as being in full force and effect without modification or
amendment;
(iv) Signature and incumbency certificates of the officers of such
Person executing the Loan Documents to which it is a party; and
(v) Executed originals of the Loan Documents to which such Person is
a party.
B. No Material Adverse Effect. No material adverse change has occurred
since December 31, 1996 with respect to the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company and its
Subsidiaries, taken as a whole.
C. Corporate and Capital Structure, Ownership, Etc.
(i) Corporate Structure. The corporate organizational structure of
Newco and of Company and its Subsidiaries, both before and after giving
effect to the Recapitalization, shall be reasonably satisfactory to
Administrative Agent.
(ii) Capital Structure and Ownership. The capital structure and
ownership of Newco and of Company, both before and after giving effect to
the Recapitalization, shall be reasonably satisfactory to Administrative
Agent.
D. Proceeds of Debt and Equity Capitalization of Newco and Company.
(i) Equity Capitalization of Newco. On or before the Closing Date,
Affiliates of KKR shall have made an aggregate cash investment in Newco in
an amount equal to the Newco Equity Amount in exchange for all of the
outstanding common stock of Newco.
(ii) Issuance of New Sub Debt by Company. On or before the Closing
Date, Company shall received not less than $240,000,000 in gross proceeds
from the issuance and sale of the New Sub Debt.
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E. Related Agreements.
(i) Form of New Sub Debt Indenture. The New Sub Debt Indenture shall
be in the form of Exhibit 4.1 to the Registration Statement of Company on
Form S-3 (Registration No. 333-22521) filed with the SEC on February 28,
1997, as amended by Amendment No. 1 and Amendment No. 2 thereto, with such
changes thereto, if any, that have been approved by Administrative Agent
or that would otherwise have been permitted to be made pursuant to
subsection 7.9 if the New Sub Debt were issued and outstanding at the time
of any such change.
(ii) Related Agreements in Full Force and Effect. Administrative
Agent shall have received a fully executed or conformed copy of the Merger
Agreement and the New Sub Debt Indenture and any documents executed in
connection therewith, and each Related Agreement shall be in full force
and effect and no provision thereof shall have been modified or waived in
any respect determined by Administrative Agent to be material, in each
case without the consent of Administrative Agent.
F. Matters Relating to Existing Indebtedness of Company and its
Subsidiaries.
(i) Termination of Existing Credit Agreement and Related Liens;
Existing Letters of Credit. On the Closing Date, Company and its
Subsidiaries shall have (a) repaid in full all Indebtedness outstanding
under the Existing Credit Agreement, (b) terminated any commitments to
lend or make other extensions of credit thereunder, (c) delivered to
Administrative Agent all documents or instruments necessary to release all
Liens securing Indebtedness or other obligations of Company and its
Subsidiaries thereunder, and (d) made arrangements satisfactory to
Administrative Agent with respect to the cancellation of any letters of
credit outstanding thereunder or the issuance of Letters of Credit to
support the obligations of Company and its Subsidiaries with respect
thereto.
(ii) Consent Solicitation. Pursuant to the Consent Solicitation,
Company shall have obtained all such consents and amendments with respect
to the Existing Subordinated Note Indenture as may be required to permit
the consummation of the Recapitalization, the related financings
(including the incurrence of the Obligations hereunder) and the other
transactions contemplated by the Loan Documents.
(iii) Consummation of Debt Tender Offer. Company shall have
repurchased all of the Existing Subordinated Notes tendered in the Debt
Tender Offer.
(iv) Redemption of Existing Senior Notes. Company shall have either
(a) redeemed all of the Existing Senior Notes for aggregate consideration,
including
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accrued interest and premiums, not to exceed $111,000,000 or (b) caused
irrevocable notice of such redemption to be given in accordance with the
terms of the Existing Senior Note Indenture and provided evidence
satisfactory to Administrative Agent that the amount of the Delayed-Draw
Term Loans is sufficient to pay the aggregate consideration in respect of
such redemption (which amount shall not exceed the amount set forth in the
foregoing clause (a)).
(v) Existing Indebtedness to Remain Outstanding. Administrative
Agent shall have received an Officer's Certificate of Company stating
that, after giving effect to the transactions described in this subsection
4.1F, the Indebtedness and unfunded credit facilities of Company and its
Subsidiaries (other than Indebtedness and unfunded credit facilities under
the Loan Documents and the New Sub Debt) shall consist of the aggregate
principal amount of outstanding Indebtedness and commitments to lend
described in Schedule 7.1 annexed hereto.
G. Necessary Governmental Authorizations and Consents; Expiration of
Waiting Periods, Etc. Company shall have obtained all Governmental
Authorizations and all consents of other Persons, in each case that are
necessary or advisable in connection with the Recapitalization, the other
transactions contemplated by the Loan Documents and the Related Agreements, and
the continued operation of the business conducted by Company and its
Subsidiaries in substantially the same manner as conducted prior to the
consummation of the Recapitalization, and each of the foregoing shall be in full
force and effect, in each case other than those the failure to obtain or
maintain which, either individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect. All applicable waiting periods shall
have expired without any action being taken or threatened by any competent
authority which would restrain, prevent or otherwise impose adverse conditions
on the Recapitalization or the financing thereof.
H. Consummation of Recapitalization.
(i) The Merger Agreement shall not have been amended and the
fulfillment of any conditions set forth therein shall not have been
waived, in each case unless such amendment or waiver is not adverse in any
material respect to the interests of Lenders; and
(ii) the Merger shall have become effective in accordance with the
terms of the Merger Agreement and the laws of the State of Delaware.
I. Security Interests in Pledged Collateral. Administrative Agent and
Collateral Agent shall each have received evidence satisfactory to it that
Company shall have taken or caused to be taken all such actions, executed and
delivered or caused to be executed and delivered all such agreements, documents
and instruments, and made or caused to be made all such registrations, filings
and recordings (other than the filing or recording of items described in clause
(c) below and the registration of the Liens created
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by the Pledge Agreement entered into by Company on the Closing Date in respect
of the stock of UK Holding with the Registrar of Companies under Section 395 of
the Companies Act) that may be necessary or, in the opinion of Collateral Agent,
desirable in order to create in favor of Collateral Agent, for the benefit of
Lenders, a valid and (upon such filing and recording) perfected First Priority
security interest in the entire Pledged Collateral. Such actions shall include
the following:
(a) Schedules to Pledge Agreements. Delivery to Collateral
Agent of accurate and complete schedules to the Pledge Agreements;
(b) Stock Certificates. Delivery to Collateral Agent of
certificates to the extent applicable (which certificates shall be
accompanied by irrevocable undated stock powers, duly endorsed in
blank and otherwise satisfactory in form and substance to Collateral
Agent) representing all capital stock included in the Pledged
Collateral; and
(c) UCC Financing Statements. Delivery to Collateral Agent of
a UCC financing statement duly executed by Company with respect to
certain Collateral under the Pledge Agreements, for filing in the
jurisdiction where Company maintains its "chief executive office"
(as that term is defined in the UCC as in effect in the State of New
York).
J. Financial Statements; Pro Forma Balance Sheet. On or before the Closing
Date, Lenders shall have received from Company (i) audited financial statements
of Company and its Subsidiaries for Fiscal Years 1994, 1995 and 1996, consisting
of balance sheets and the related consolidated statements of income,
stockholders' equity and cash flows for such Fiscal Years, and (ii) a pro forma
consolidated balance sheet of Company and its Subsidiaries as of the date of the
most recent balance sheet filed by Company with the SEC in connection with the
Recapitalization, prepared in accordance with GAAP and reflecting the
consummation of the Recapitalization, the related financings and the other
transactions contemplated by the Loan Documents and the Related Agreements,
which pro forma financial statements shall be in form and substance reasonably
satisfactory to Lenders.
K. Solvency Assurances. On the Closing Date, Administrative Agent and
Lenders shall have received (i) a letter from Valuation Research Corporation,
dated the Closing Date and addressed to Administrative Agent and Lenders, in
form and substance satisfactory to Administrative Agent and with appropriate
attachments, and (ii) a Financial Condition Certificate dated the Closing Date,
substantially in the form of Exhibit XIV annexed hereto and with appropriate
attachments, in each case demonstrating that, after giving effect to the
consummation of the Recapitalization, the related financings and the other
transactions contemplated by the Loan Documents and the Related Agreements,
Company will be solvent.
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L. Opinions of Counsel to Loan Parties. Lenders and their respective
counsel shall have received originally executed copies of one or more favorable
written opinions of (i) Edward G. Wetmore, general counsel for Company, (ii)
Simpson Thacher & Bartlett, special counsel for Loan Parties, and (iii) Ashurst
Morris Crisp, U.K. counsel to U.K. Borrowers, in each case dated as of the
Closing Date and setting forth substantially the matters in the opinions
designated in Exhibit X annexed hereto, and Company hereby requests such counsel
for Loan Parties to deliver such opinions.
M. Opinions of Administrative Agent's Counsel. Lenders shall have received
originally executed copies of one or more favorable written opinions of
O'Melveny & Myers, counsel to Administrative Agent, dated as of the Closing
Date, substantially in the form of Exhibit XI annexed hereto and as to such
other matters as Administrative Agent acting on behalf of Lenders may reasonably
request.
N. Opinions of Counsel Delivered Under Related Agreements.
Administrative Agent and its counsel shall have received copies of each of the
opinions of counsel delivered to the parties under the Related Agreements,
together with a letter from each such counsel (if available) authorizing Lenders
to rely upon such opinion to the same extent as though it were addressed to
Lenders.
O. Fees. Company shall have paid to Administrative Agent, for distribution
(as appropriate) to Administrative Agent, Documentation Agent, Syndication Agent
and Lenders, the fees payable on the Closing Date referred to in subsection 2.3.
P. Representations and Warranties; Performance of Agreements. Company
shall have delivered to Administrative Agent an Officer's Certificate, in form
and substance satisfactory to Administrative Agent, to the effect that the
representations and warranties in Section 5 are true and correct in all material
respects on and as of the Closing Date to the same extent as though made on and
as of that date (or, to the extent such representations and warranties
specifically relate to an earlier date, that such representations and warranties
were true, correct and complete in all material respects on and as of such
earlier date).
4.2 Conditions to All Loans.
The obligations of Lenders to make Loans on each Funding Date are
subject to the following further conditions precedent:
A. Administrative Agent shall have received on or before that
Funding Date, in accordance with the provisions of subsection 2.1B, an executed
Notice of Borrowing, in each case signed by the chief executive officer, the
chief financial officer or the treasurer of the applicable Borrower or by any
officer of such Borrower designated by any of the above-described officers on
behalf of such Borrower in a writing delivered to Administrative Agent; and
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B. as of that Funding Date:
(i) The representations and warranties contained herein and in the
other Loan Documents shall be true and correct in all material respects on
and as of that Funding Date to the same extent as though made on and as of
that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations
and warranties shall have been true and correct in all material respects
on and as of such earlier date; and
(ii) No event shall have occurred and be continuing or would result
from the consummation of the borrowing contemplated by such Notice of
Borrowing that would constitute an Event of Default or a Potential Event
of Default.
4.3 Conditions to Letters of Credit.
The issuance of any Letter of Credit hereunder (whether or not the
applicable Issuing Lender is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:
A. On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the provisions of
subsection 3.1B(i), an originally executed Notice of Request for Issuance of
Letter of Credit, in each case signed by the chief executive officer, the chief
financial officer or the treasurer of Company or by any officer of Company
designated by any of the above-described officers on behalf of Company in a
writing delivered to Administrative Agent, together with all other information
specified in subsection 3.1B(i); and
B. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.2B shall be satisfied to the same extent as
if the issuance of such Letter of Credit were the making of a Loan and the date
of issuance of such Letter of Credit were a Funding Date.
Section 5. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make
the Loans, to induce Issuing Lenders to issue Letters of Credit and to induce
other Lenders to purchase participations therein, Company represents and
warrants to each Lender, on the date of this Agreement, on each Funding Date and
on the date of issuance of each Letter of Credit, and each U.K. Borrower
represents as to itself on the date of this Agreement and on the Closing Date,
that the following statements are true, correct and complete:
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5.1 Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries.
A. Organization and Powers. Each Borrower and each Material Subsidiary is
a corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation as specified in Schedule 5.1 annexed
hereto and has all requisite corporate power and authority to own and operate
its properties and to carry on its business as now conducted and as proposed to
be conducted. Each Loan Party has all requisite corporate power and authority to
enter into the Loan Documents and Related Agreements to which it is a party and
to carry out the transactions contemplated thereby. As of the Closing Date, each
U.K. Borrower is a direct wholly-owned Subsidiary of Company.
B. Qualification and Good Standing. Each Borrower and each Material
Subsidiary is qualified to do business and in good standing in every
jurisdiction where its assets are located and wherever necessary to carry out
its business and operations, except to the extent that the failure to be so
qualified or in good standing has not had and will not have a Material Adverse
Effect.
C. Subsidiaries. All of the Subsidiaries and Unrestricted Subsidiaries of
Company as of the Closing Date are identified in Schedule 5.1 annexed hereto
and, to the best knowledge of Company, each Material Subsidiary as of the
Closing Date has been so designated on said Schedule 5.1.
5.2 Authorization of Borrowing, etc.
A. Authorization of Borrowing. The execution, delivery and performance of
the Loan Documents and the Related Agreements have been duly authorized by all
necessary corporate action on the part of each Loan Party that is a party
thereto.
B. No Conflict. The execution, delivery and performance by Loan Parties of
the Loan Documents to which they are parties and the consummation of the
transactions contemplated by the Loan Documents and the Related Agreements do
not and will not (i) violate any provision of any material law or any material
governmental rule or regulation applicable to Company or any of its Material
Subsidiaries or any other Loan Party, the Certificate or Articles of
Incorporation or Bylaws (or equivalent constitutional documents) of Company or
any of its Subsidiaries, or any material order, judgment or decree of any court
or other agency of government binding on Company or any of its Material
Subsidiaries or any other Loan Party, (ii) conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation (other than the Existing Senior Note Indenture) of
Company or any of its Material Subsidiaries or any other Loan Party, or (iii)
result in or require the creation or imposition of any Lien under any such
Contractual Obligation upon any of the properties
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or assets of Company or any of its Subsidiaries (other than any Liens created
under any of the Loan Documents in favor of Administrative Agent on behalf of
Lenders).
C. Governmental Consents. The execution, delivery and performance by Loan
Parties of the Loan Documents to which they are parties and the consummation of
the transactions contemplated by the Loan Documents and the Related Agreements
do not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body except (i) any thereof that have been
obtained and are in full force and effect and (ii) as of the Closing Date with
respect to the consummation of the Recapitalization, any thereof which the
failure to obtain or make could not reasonably be expected to have a Material
Adverse Effect.
D. Binding Obligation. Each of the Loan Documents has been duly executed
and delivered by each Loan Party that is a party thereto and is the legally
valid and binding obligation of such Loan Party, enforceable against such Loan
Party in accordance with its respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles relating to
enforceability.
5.3 Financial Condition.
Company has heretofore delivered to Lenders, at Lenders' request,
the audited consolidated balance sheet of Company and its Subsidiaries as at
December 31, 1996 and the related consolidated statements of income,
stockholders' equity and cash flows of Company and its Subsidiaries for the
Fiscal Year then ended. All such statements were prepared in conformity with
GAAP except as otherwise noted therein and fairly present, in all material
respects, the financial position (on a consolidated basis) of the entities
described in such financial statements as at the respective dates thereof and
the results of operations and cash flows (on a consolidated basis) of the
entities described therein for each of the periods then ended.
5.4 No Material Adverse Effect.
Since December 31, 1996, no event or change has occurred that has
caused or evidences, either in any case or in the aggregate, a Material Adverse
Effect.
5.5 Title to Properties; Liens.
Company and each of its Subsidiaries have good title to, or
leasehold interests in, all properties that are necessary for the conduct of
their respective businesses as now conducted and as proposed to be conducted,
free and clear of all Liens (other than any Liens permitted by this Agreement),
except where the failure to have such good title
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or leasehold interests could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
5.6 Litigation; Adverse Facts.
Except as set forth in Schedule 5.6 annexed hereto, there are no
actions, suits, proceedings, arbitrations or governmental investigations
(whether or not purportedly on behalf of Company or any of its Subsidiaries) at
law or in equity, or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign (including any Environmental Claims) that are pending or, to
the knowledge of Company, threatened against or affecting Company or any of its
Subsidiaries that, individually or in the aggregate (taking into consideration,
among other things, the ability of Company and its Subsidiaries to obtain
indemnification in respect thereof from Persons that are willing and able to
honor any existing indemnification obligations with respect thereto), could
reasonably be expected to result in a Material Adverse Effect.
5.7 Payment of Taxes.
Each of Company, each of its Subsidiaries and each other corporation
(each a "Consolidated Corporation") with whom Company or any of its Subsidiaries
joins in the filing of a consolidated return has filed all Federal income tax
returns and other material tax returns and reports, domestic and foreign,
required to be filed by it, and has paid all material taxes, assessments, fees
and other governmental charges levied or imposed upon it or its respective
properties, income or assets to the extent the same have become due and payable,
except those which are not yet delinquent or which are being contested in good
faith. Each of Company, each of its Subsidiaries and each Consolidated
Corporation has paid, or has provided adequate reserves (in the good faith
judgment of the management of Company) in accordance with GAAP (or, in the case
of a Foreign Subsidiary, appropriate reserves under generally accepted
accounting principles in the applicable jurisdiction), for the payment of, all
such material taxes, assessments, fees and charges relating to all prior taxable
years and the current taxable year of Company, each of its Subsidiaries and each
Consolidated Corporation. To the best knowledge of Company, there is no proposed
tax assessment against Company, any of its Subsidiaries or any Consolidated
Corporation that could reasonably be expected to have a Material Adverse Effect.
5.8 Governmental Regulation.
Neither the making of any extension of credit hereunder, nor the use
of any of the proceeds thereof, will violate the provisions of Regulation G, T,
U or X of the Board of Governors of the Federal Reserve System. Company is not
an "investment company" within the meaning of the Investment Company Act of
1940.
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5.9 Employee Benefit Plans.
A. Company and each of its Subsidiaries is in compliance with all
applicable provisions of ERISA, the Internal Revenue Code and other applicable
federal, state or foreign law with respect to each Plan, and has performed all
of its obligations under each Plan, except to the extent that failure to comply,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. Company, each of its Subsidiaries and each ERISA
Affiliate has made all required contributions to any Plan subject to Section 412
of the Internal Revenue Code, except to the extent that a failure to do so could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Internal Revenue Code has
been made with respect to any Plan.
B. There are no pending or, to the best knowledge of Company,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Pension Plan which, individually or in the aggregate, have
resulted or could reasonably be expected to result in a Material Adverse Effect.
C. (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability in an amount
which, individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), could reasonably be expected to have a Material
Adverse Effect if such Pension Plan or Pension Plans were then terminated,
unless such Pension Plan is not reasonably likely to be terminated; and (iii)
neither Company nor any of its Subsidiaries nor any ERISA Affiliate has engaged
in a transaction that could be subject to Section 4069 or 4212(c) of ERISA that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
5.10 Environmental Protection.
Company and each of its Subsidiaries is in compliance with all
applicable Environmental Laws in respect of the conduct of its business and the
ownership of its property, except such noncompliance as could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Without limiting the effect of the preceding sentence:
(a) neither Company nor any of its Subsidiaries has received a
complaint, order, citation, notice or other written communication with
respect to the existence or alleged existence of a violation of, or
liability arising under, any Environmental Law, the outcome of which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect; and
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(b) to the best of Company's knowledge, after due inquiry,
there are no environmental, health or safety conditions existing or
reasonably expected to exist at any real property owned, operated, leased
or used by Company or any of its existing or former Subsidiaries or any of
their respective predecessors, including off-site treatment or disposal
facilities used by Company or its existing or former Subsidiaries for
wastes treatment or disposal, which could reasonably be expected to
require any construction or other capital costs or clean-up obligations to
be incurred prior to the final scheduled maturity of the Tranche C Term
Loans in order to assure compliance with any Environmental Law, including
provisions regarding clean-up, to the extent that any of such conditions,
construction or other capital costs or clean-up obligations, individually
or in the aggregate, could reasonably be expected to have a Material
Adverse Effect.
5.11 Disclosure.
All factual information (taken as a whole) furnished by or on behalf
of Company or any of its Subsidiaries to Administrative Agent or any Lender in
writing on or before the Closing Date (including any such information contained
in the Confidential Information Memorandum or in any Loan Document or Related
Agreement or in any other document, certificate or written statement furnished
to Lenders by or on behalf of Company or any of its Subsidiaries) for use in
connection with the transactions contemplated by this Agreement is true and
correct in all material respects and does not omit to state a material fact
necessary in order to make the statements contained herein and therein, taken as
a whole, not misleading at such time in light of the circumstances in which the
same were made, it being understood that, for purposes of this subsection 5.11,
such factual information does not include projections and pro forma financial
information. Any projections and pro forma financial information contained in
such materials are based upon good faith estimates and assumptions believed by
Company to be reasonable at the time made, it being recognized by Lenders that
such projections as to future events are not to be viewed as facts and that
actual results during the period or periods covered by any such projections may
differ from the projected results.
Section 6. AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 6. Each U.K. Borrower covenants and agrees that, so
long as the Tranche A Term Loan Commitments hereunder shall remain in effect and
until payment in full of all of the Sterling Loans made to such U.K. Borrower
and all Obligations of such U.K. Borrower relating thereto, unless Requisite
Lenders shall otherwise give prior written consent, such U.K. Borrower
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shall perform, and shall cause each of its Subsidiaries to perform, all
covenants applicable to it and its Subsidiaries in this Section 6.
6.1 Financial Statements and Other Reports.
Company will deliver to Administrative Agent and Lenders:
(i) Quarterly Financials: (a) no later than the date on which such
financial statements are filed with the SEC, the consolidated balance
sheet of Company, its Subsidiaries and its Unrestricted Subsidiaries as at
the end of the first three Fiscal Quarters of each Fiscal Year and the
related consolidated statements of income, stockholders' equity and cash
flows of Company, its Subsidiaries and its Unrestricted Subsidiaries for
such Fiscal Quarter and for the period from the beginning of the then
current Fiscal Year to the end of such Fiscal Quarter, and (b) promptly
when available but in any event no later than 60 days after the end of the
first three Fiscal Quarters of each Fiscal Year, the consolidated balance
sheet of Company and its Subsidiaries as at the end of each Fiscal Quarter
and the related consolidated statements of income, stockholders' equity
and cash flows of Company and its Subsidiaries for such Fiscal Quarter and
for the period from the beginning of the then current Fiscal Year to the
end of such Fiscal Quarter, setting forth in each case (under both clauses
(a) and (b) above) in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year, all in reasonable
detail and certified (in the case of both clauses (a) and (b) above) by
the chief financial officer of Company that they fairly present, in all
material respects, the financial condition of Company, its Subsidiaries
and its Unrestricted Subsidiaries or Company and its Subsidiaries, as the
case may be, as at the dates indicated and the results of their operations
and their cash flows for the periods indicated, subject to changes
resulting from audit and normal year-end adjustments;
(ii) Year-End Financials: (a) no later than the date on which such
financial statements are filed with the SEC, the consolidated balance
sheet of Company, its Subsidiaries and its Unrestricted Subsidiaries as at
the end of each Fiscal Year and the related consolidated statements of
income, stockholders' equity and cash flows of Company, its Subsidiaries
and its Unrestricted Subsidiaries for such Fiscal Year, (b) promptly when
available but in any event no later than 120 days after the end of each
Fiscal Year, the consolidated balance sheet of Company and its
Subsidiaries as at the end of such Fiscal Year and the related
consolidated statements of income, stockholders' equity and cash flows of
Company and its Subsidiaries for such Fiscal Year, setting forth in each
case (under both clauses (a) and (b) above) in comparative form the
corresponding figures for the previous Fiscal Year, all in reasonable
detail and certified (in the case of both clauses (a) and (b) above) by
the chief financial officer of Company that they fairly present, in all
material respects, the financial condition of Company and its Subsidiaries
as at
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the end of such Fiscal Year and the results of their operations and their
cash flows for such Fiscal Year, and (c) in the case of both clauses (a)
and (b) above) a report thereon of a firm of independent certified public
accountants of recognized national standing selected by Company, which
report shall be unqualified as to the scope of audit or as to the going
concern status of Company, its Subsidiaries and its Unrestricted
Subsidiaries or Company and its Subsidiaries, as the case may be (in
either case taken as a whole), and shall state that such consolidated
financial statements fairly present, in all material respects, the
consolidated financial condition of Company, its Subsidiaries and its
Unrestricted Subsidiaries or Company and its Subsidiaries, as the case may
be, as at the end of such Fiscal Year and the results of their operations
and their cash flows for such Fiscal Year in conformity with GAAP applied
on a basis consistent with prior years (except as otherwise disclosed in
such financial statements) and that the examination by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards;
(iii) Officers' and Compliance Certificates: together with each
delivery of financial statements of Company and its Subsidiaries pursuant
to subdivisions (i) and (ii) above, (a) an Officer's Certificate of
Company stating that the signers do not have knowledge of the existence,
as at the date of such Officer's Certificate, of any condition or event
that constitutes an Event of Default or Potential Event of Default, or, if
any such condition or event exists, specifying the nature and period of
existence thereof and what action Company has taken, is taking and
proposes to take with respect thereto; (b) a Compliance Certificate
demonstrating in reasonable detail compliance during and at the end of the
applicable accounting periods with the covenants set forth in subsection
7.6 and with any specific dollar amounts specified in respect of any
restrictions contained in any other provisions of Section 7; (c) in the
event the identity of any of the Subsidiaries or Unrestricted Subsidiaries
of Company has changed since the Closing Date (or, if applicable, since
the date of the most recent Officer's Certificate delivered to Lenders in
accordance with this clause (c)), an Officer's Certificate setting forth
such change; (d) the amount of any Pro Forma Adjustment not previously set
forth in any Pro Forma Adjustment Certificate or any change in the amount
of a Pro Forma Adjustment set forth in any Pro Forma Adjustment
Certificate previously provided and, in either case, in reasonable detail,
the calculations and basis therefor, and (e) at the time of the delivery
of the financial statements pursuant to subdivision (ii) above, the
Available Amount as at the end of the Fiscal Year to which such statements
relate;
(iv) Accountants' Certification: together with each delivery of
consolidated financial statements of Company and its Subsidiaries pursuant
to subdivision (ii) above, a written statement by the independent
certified public accountants giving the report thereon stating whether, in
connection with their audit examination, any condition or event that
constitutes an Event of Default
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under subsection 7.6 has come to their attention and, if such a condition
or event has come to their attention, specifying the nature thereof,
except to the extent that the delivery of such statement would be
prohibited by professional auditing standards applicable to such matters;
(v) SEC Filings: promptly after the transmission thereof by Company
or any of its Subsidiaries to the SEC, copies of any filings on Form 10-K,
10-Q, or 8-K and any effective registration statements (and, upon the
effectiveness thereof, any material amendments thereto) filed with the SEC
(but not any exhibits to any such registration statement or amendment
(except as provided below) or any registration statement on Form S-8), and
copies of all financial statements, proxy statements, notices and reports
that Company or any of its Subsidiaries actually sends to the holders of
any publicly-issued debt Securities of Company or any of its Subsidiaries
(including the Subordinated Indebtedness) in their capacity as such
holders (in each case to the extent not theretofore delivered to Lenders
pursuant to this Agreement and in each case including, to the extent
requested by Administrative Agent, any schedules and exhibits thereto), in
each case as so transmitted to the SEC;
(vi) Events of Default, etc.: promptly upon any Responsible Officer
of Company obtaining actual knowledge of (a) any condition or event that
constitutes an Event of Default or Potential Event of Default or (b) any
acceleration, redemption or purchase demands or notices provided by the
trustee for, or any event of default under, any Subordinated Indebtedness,
a notice specifying the nature and period of existence of such condition
or event or specifying the notice given by such trustee or the nature of
such event of default, and what action Company has taken, is taking and
proposes to take with respect thereto;
(vii) Litigation or Other Proceedings: promptly upon any Responsible
Officer of Company obtaining actual knowledge of (X) the institution of
any action, suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration against or affecting
Company or any of its Subsidiaries or any property of Company or any of
its Subsidiaries (collectively, "Proceedings") not previously disclosed in
writing by Company to Lenders or (Y) any material development in any
Proceeding that, in any such case, could reasonably be expected to give
rise to a Material Adverse Effect, written notice thereof together with
such other information as may be reasonably available to Company to enable
Lenders and their counsel to evaluate such matters;
(viii) ERISA Events: promptly upon any Responsible Officer of
Company obtaining knowledge of the occurrence or forthcoming occurrence of
any ERISA Event, a written notice specifying the nature thereof and what
action Company, any of its Subsidiaries or any of their respective ERISA
Affiliates has taken, is taking or proposes to take with respect thereto;
and, promptly upon receipt thereof,
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copies of any notice received by Company, any of its Subsidiaries or any
of their respective ERISA Affiliates from the Internal Revenue Service,
the Department of Labor or the PBGC or from a Multiemployer Plan sponsor
concerning any ERISA Event;
(ix) Financial Plans: as soon as practicable and in any event no
later than 60 days after the beginning of each Fiscal Year, consolidated
operating and related budgets for Company and its Subsidiaries for each
Fiscal Quarter of such Fiscal Year (the "Financial Plan" for such Fiscal
Year), in reasonable detail as customarily prepared by management of
Company for its internal use and setting forth an explanation of the
principal assumptions on which such budgets are based;
(x) Environmental Audits and Reports: as soon as practicable
following receipt thereof, copies of all environmental audits,
investigations, analyses and reports of any kind or character, whether
prepared by personnel of Company or any of its Subsidiaries or by
independent consultants, governmental authorities or any other Persons,
with respect to significant environmental matters at any Real Estate (as
defined in subsection 6.1(xi)(1)) which, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect or
with respect to any Environmental Claims which, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect;
(xi) Notice of Certain Environmental Matters: promptly upon any
Responsible Officer of Company obtaining knowledge of any one or more of
the following environmental matters the existence of which, either
individually or when aggregated with all other such matters, would
reasonably be expected to result in a Material Adverse Effect, a written
notice specifying in reasonable detail the nature thereof and what action
Company and its Subsidiaries have taken, are taking or propose to take
with respect thereto:
(1) any pending or threatened Environmental Claim against
Company or any of its Subsidiaries or any land, buildings and improvements
owned or leased by Company or any of its Subsidiaries (but excluding all
operating fixtures and equipment, whether or not incorporated into
improvements) (collectively, "Real Estate");
(2) any condition or occurrence that (x) results in
noncompliance by Company 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 Company or any of its Subsidiaries or
any Real Estate;
(3) any condition or occurrence on any Real Estate that could
reasonably be anticipated to cause such Real Estate to be subject to any
restrictions
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on the ownership, occupancy, use or transferability of such Real Estate
under any Environmental Law; or
(4) the taking of any removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on any Real
Estate;
(xii) Pro Forma Adjustment Certificate: not later than the
consummation of any Acquisition by Company or any of its Subsidiaries for
which there shall be a Pro Forma Adjustment, an Officer's Certificate of
Company setting forth the amount of such Pro Forma Adjustment and, in
reasonable detail, the calculations and basis therefor; and
(xiii) Other Information: with reasonable promptness, such other
information and data with respect to Company or any of its Subsidiaries as
from time to time may be reasonably requested by Administrative Agent on
its own behalf or on behalf of Requisite Lenders.
6.2 Corporate Existence, etc.
Except as permitted under subsection 7.7, each Borrower will, and
will cause each of its Subsidiaries to, at all times preserve and keep in full
force and effect (i) its corporate existence (except, in the case of a
Subsidiary of Company (other than U.K. Borrowers) only, to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect) and (ii) all rights and franchises material to its business (except, in
any case, to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect).
6.3 Payment of Taxes and Claims; Tax Consolidation
Each Borrower will, and will cause each of its Subsidiaries to, pay
all material taxes, assessments and other governmental charges imposed upon it
or any of its properties or assets or in respect of any of its income,
businesses or franchises before any material penalty accrues thereon, and all
lawful material claims (including claims for labor, services, materials and
supplies) for sums that have become due and payable and that by law have become
or could reasonably be expected to become a material Lien upon any of the
properties or assets of such Borrower or any of its Subsidiaries; provided that
no such charge or claim need be paid if it is being contested in good faith and
by proper proceedings, so long as it has maintained adequate reserves (in the
good faith judgment of such Borrower or such Subsidiary) with respect thereto in
accordance with GAAP.
6.4 Maintenance of Properties; Insurance.
A. Maintenance of Properties. Each Borrower will, and will cause
each of its Subsidiaries to, maintain or cause to be maintained in good repair,
working
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order and condition, ordinary wear and tear excepted, all material properties
used or useful in the business of Company and its Subsidiaries (including all
Intellectual Property) and from time to time will make or cause to be made all
appropriate repairs, renewals and replacements thereof, in each case except to
the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.
B. Insurance. Each Borrower will, and will cause each of its
Material Subsidiaries to, at all times maintain in full force and effect, with
insurance companies which such Borrower believes (in the good faith judgment of
such Borrower's management) are financially sound and responsible at the time
the relevant coverage is placed or renewed, insurance in at least such amounts
and against at least such risks (and with such risk retentions) as are usually
insured against in the same general area by companies engaged in the same or a
similar business. Each Borrower shall furnish to Lenders, upon written request
from Administrative Agent, information presented in reasonable detail as to the
insurance so carried.
6.5 Inspection Rights.
Each Borrower shall, and shall cause each of its Material
Subsidiaries to, permit any authorized representatives designated by
Administrative Agent or Requisite Lenders to visit and inspect any of the
properties of Company or of any of its Material Subsidiaries, to inspect, copy
and make abstracts from its and their financial and accounting records, and to
discuss its and their affairs, finances and accounts with its and their officers
and independent public accountants (provided that such Borrower may, if it so
chooses, be present at or participate in any such discussion), all upon
reasonable notice and at such reasonable times during normal business hours and
as often as may reasonably be requested.
6.6 Compliance with Laws, etc.
Each Borrower shall comply, and shall cause each of its Subsidiaries
to comply, in all material respects, with the requirements of all applicable
laws, rules, regulations and orders (including all Environmental Laws) of any
governmental authority having jurisdiction over it, except such as may be
contested in good faith or as to which a bona fide dispute may exist and except
to the extent that noncompliance therewith could not reasonably be expected to
cause, individually or in the aggregate, a Material Adverse Effect.
6.7 Execution of Subsidiary Guaranty by Future Domestic Subsidiaries; Pledge
of Stock of Future Direct Subsidiaries; Ratable Credit Support; Certain
Closing Date Transactions; Certain Post-Closing Actions.
A. In the event that any Person (other than a Restricted Acquisition
Subsidiary or a Subsidiary that has incurred Indebtedness permitted under
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subsection 7.1(xi)(b)) becomes a Domestic Subsidiary after the date hereof,
Company will promptly notify each Agent of that fact and cause such Domestic
Subsidiary to execute and deliver to Collateral Agent a counterpart of the
Subsidiary Guaranty. In the event that any Person (other than a Restricted
Acquisition Subsidiary or, subject to subsection 6.7B, a Subsidiary the capital
stock of which is pledged pursuant to 7.2(vi)(b)) becomes a direct Domestic
Subsidiary or a direct Material Foreign Subsidiary after the date hereof,
Company will promptly notify each Agent of that fact and cause the capital stock
owned by Company of such direct Domestic Subsidiary or such direct Material
Foreign Subsidiary (or, if Company owns 65% or more of any such direct Material
Foreign Subsidiary, 65% of the capital stock of such direct Material Foreign
Subsidiary) to be pledged under the Master Pledge Agreement (or, if any such
direct Domestic Subsidiary is a limited liability company, under the LLC Pledge
Agreement) and, in the case of any such direct Material Foreign Subsidiary, also
under any pledge agreements or instruments that the Collateral Agent deems
necessary or advisable, or that the Collateral Agent may reasonably request,
pursuant to the terms of the Master Pledge Agreement to effectuate such pledge
in the jurisdiction in which such Material Foreign Subsidiary is organized.
B. In the event that any Subsidiary of Company has guaranteed any
Indebtedness incurred pursuant to subsection 7.1(xi) in an aggregate principal
amount exceeding $125,000,000, or has granted any security interests as
collateral therefor, such Subsidiary shall (i) guaranty the Obligations
hereunder and under the other Loan Documents on a pari passu basis with its
guaranty of any portion of such Indebtedness exceeding $125,000,000 and shall
grant Liens on such assets securing the Obligations on an equal and ratable
basis with the security for such Indebtedness pursuant to documentation
reasonably satisfactory to Administrative Agent and Requisite Lenders and (ii)
execute and deliver to Collateral Agent all such documents and instruments as
may be necessary or, in the opinion of Collateral Agent, desirable, in order to
more fully evidence, perfect or protect such security interest.
C. On the Closing Date, (i) UK Holding shall borrow (pounds)12,499,237.85
in Tranche A Term Loans in the United Kingdom, (ii) ACI shall borrow
(pounds)21,645,021.65 in Tranche A Term Loans in the United Kingdom, (iii) ACI
shall purchase from Company all of the issued and outstanding shares of stock of
Amphenol Borg and (iv) immediately thereafter, UK Holding shall purchase from
Company all of the issued and outstanding shares of stock of ACI. Upon
completion of such transactions, Amphenol Borg will be a wholly-owned Subsidiary
of ACI, ACI will be a wholly-owned Subsidiary of UK Holding, and 65% of the
stock of UK Holding will be pledged to Collateral Agent by Company pursuant to
the Master Pledge Agreement to secure the Obligations of Loan Parties hereunder
and under the other Loan Documents. On the Closing Date, neither U.K. Borrower
shall be liable with respect to any Indebtedness or Guarantee Obligations other
than their respective Obligations and any intercompany Indebtedness permitted
pursuant to subsection 7.1(iv).
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D. Within thirty days of the Closing Date, Company shall have (i)
completed (or caused to have been completed) the contemplated reorganization of
the German Subsidiaries of Company and certain other foreign Subsidiaries of
Company under the common ownership of a newly-formed German corporation which
shall be a direct Subsidiary of Company, (ii) pledged 65% of the stock of such
newly-formed Subsidiary to Collateral Agent on behalf of Lenders pursuant to the
terms of the Master Pledge Agreement and such other agreements or instruments
under German law as Collateral Agent may deem necessary or desirable to perfect
the First Priority security interest of Collateral Agent therein, and (iii)
taken (or caused to be taken) all such other actions with respect thereto
(including the delivery of legal opinions) as Collateral Agent shall reasonably
request.
6.8 Transactions with Affiliates.
Each Borrower shall, and shall cause each of its Subsidiaries to, conduct
all transactions with any of its Affiliates (other than Company or any of its
Subsidiaries) upon terms that are substantially as favorable to Company or such
Subsidiary as it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate of Company or such Subsidiary; provided that the
foregoing restrictions shall not apply to (a) the payment of customary annual
fees to KKR and its Affiliates for management, consulting and financial services
rendered to Company and its Subsidiaries, and customary investment banking fees
paid to KKR and its Affiliates for services rendered to Company and its
Subsidiaries in connection with divestitures, acquisitions, financings and other
transactions, (b) reasonable and customary fees paid to members of the Board of
Directors of Company and its Subsidiaries, (c) transactions otherwise expressly
permitted hereunder between Company or any of its Subsidiaries and any such
Affiliate, and (d) transactions between Company or any of its Subsidiaries and
any special-purpose entity established in connection with any Accounts
Receivable Facility.
6.9 Conduct of Business.
From and after the Closing Date, each Borrower shall, and shall cause its
Subsidiaries (taken as a whole) to, engage primarily in (i) the lines of
business carried on by such Borrower and its Subsidiaries on the Closing Date,
(ii) other businesses or activities that are reasonably similar thereto or that
constitute a reasonable extension, development or expansion thereof or that are
ancillary or reasonably related thereto.
6.10 Fiscal Year.
Company shall maintain its Fiscal Year-end at December 31 of each year;
provided that Company may, upon prior written notice to Administrative Agent,
change such Fiscal Year-end to any other date reasonably acceptable to
Administrative Agent, in which case Company and Administrative Agent shall, and
are hereby authorized by
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Lenders to, make any adjustments to this Agreement that are necessary in order
to reflect any corresponding changes in financial reporting.
Section 7. NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 7. Each U.K. Borrower covenants and agrees that, so
long as the Tranche A Term Loan Commitments hereunder shall remain in effect and
until payment in full of all of the Sterling Loans made to such U.K. Borrower
and all Obligations of such U.K. Borrower relating thereto, unless Requisite
Lenders shall otherwise give prior written consent, such U.K. Borrower shall
perform and shall cause each of its Subsidiaries to perform all covenants
applicable to it and its Subsidiaries in this Section 7.
7.1 Indebtedness.
Each Borrower shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become
or remain directly or indirectly liable with respect to, any Indebtedness,
except:
(i) Borrowers may become and remain liable with respect to the
Obligations;
(ii) Company and its Subsidiaries may become and remain liable with
respect to Guarantee Obligations permitted under subsection 7.4 and, upon
any matured obligations actually arising pursuant thereto, the
Indebtedness corresponding to the Guarantee Obligations so extinguished;
(iii) Company and its Subsidiaries may become and remain liable with
respect to Indebtedness in respect of Capital Leases in an aggregate
amount not to exceed at any time $50,000,000;
(iv) Company may become and remain liable with respect to
Indebtedness to any of its Subsidiaries, and any Subsidiary of Company may
become and remain liable with respect to Indebtedness to Company or any
other Subsidiary of Company;
(v) Company and its Subsidiaries, as applicable, may remain liable
with respect to Indebtedness described in Schedule 7.1 annexed hereto;
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(vi) Company may remain liable with respect to (a) any portion of
the Existing Subordinated Notes not tendered pursuant to the Debt Tender
Offer and (b) the Existing Senior Notes until the repurchase thereof with
the proceeds of the Delayed-Draw Term Loans;
(vii) Company may become and remain liable with respect to
Indebtedness evidenced by the New Sub Debt and any Refinancing Sub Debt;
(viii) Company and its Subsidiaries may become and remain liable
with respect to Indebtedness (a) incurred within 270 days of the
acquisition, construction or improvement of fixed or capital assets to
finance the acquisition, construction or improvement of such fixed or
capital assets or (b) otherwise incurred in respect of Capital
Expenditures permitted under subsection 7.8;
(ix) Company and its Subsidiaries may become and remain liable with
respect to Indebtedness under Hedge Agreements;
(x) Any Person that becomes a Restricted Acquisition Subsidiary (a)
may remain liable with respect to (X) Indebtedness of such Person existing
at the time of consummation of the Acquisition pursuant to which such
Person becomes a Subsidiary of Company or (Y) Indebtedness secured by
assets acquired by such Person in an Acquisition at the time of
consummation of such Acquisition; provided that such Indebtedness was not
incurred in contemplation of the Acquisition referred to in clause (X) or
the acquisition of such assets referred to in clause (Y), as the case may
be, and (b) may become and remain liable with respect to Indebtedness
incurred to finance the Acquisition pursuant to which such Person becomes
a Subsidiary of Company;
(xi) Company and its Subsidiaries (a) may remain liable with respect
to (X) in the case of a Subsidiary, Indebtedness of such Subsidiary
existing at the time of consummation of an Acquisition pursuant to which
such Person becomes a Subsidiary of Company or (Y) Indebtedness secured by
assets acquired by such Person in an Acquisition at the time of
consummation of such Acquisition; provided that such Indebtedness was not
incurred in contemplation of the Acquisition referred to in clause (X) or
the acquisition of such assets referred to in clause (Y), as the case may
be, and (b) may become and remain liable with respect to Indebtedness
incurred to finance an Acquisition consummated by such Person, including
an Acquisition pursuant to which such Person becomes a Subsidiary of
Company; provided that the aggregate outstanding principal amount of all
Indebtedness permitted pursuant to this subsection 7.1(xi) shall at no
time exceed $200,000,000;
(xii) Company and its Subsidiaries may extend the maturity of, and
may become and remain liable with respect to Indebtedness incurred to
refinance, any
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Indebtedness permitted under clauses (ii), (v), (viii), (x) and (xi)
above; provided that (a) the principal amount of any such Indebtedness is
not increased above the principal amount thereof outstanding immediately
prior to such extension or refinancing and (y) the direct and contingent
obligors with respect to such Indebtedness are not changed as a result of
such extension or refinancing;
(xiii) Company and its Subsidiaries may enter into and remain liable
with respect to commodity consignment arrangements in the ordinary course
of business in an aggregate amount not to exceed at any time $20,000,000;
and
(xiv) Company and its Subsidiaries may become and remain liable with
respect to other Indebtedness in an aggregate principal amount not to
exceed $200,000,000 at any time outstanding.
7.2 Liens and Related Matters.
Each Borrower shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or permit to exist any Lien on or
with respect to any property or asset of any kind (including any document or
instrument in respect of goods or accounts receivable) of such Borrower or any
of its Subsidiaries, whether now owned or hereafter acquired, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents;
(iii) Liens existing on the Closing Date securing Indebtedness
described on Schedule 7.1 annexed hereto in an aggregate principal amount
not to exceed $20,000,000;
(iv) Liens placed on property, plant or equipment used in the
ordinary course of business of Company or any of its Subsidiaries to
secure Indebtedness incurred to pay all or a portion of the purchase price
thereof; provided that (a) the Lien encumbering such property, plant or
equipment does not encumber any other asset of Company or any of its
Subsidiaries and (b) the Indebtedness secured thereby is permitted under
subsection 7.1(viii);
(v) (a) Liens encumbering assets of a Restricted Acquisition
Subsidiary that are granted to secure Indebtedness permitted under
subsection 7.1(x) at the time such Indebtedness is assumed by such
Restricted Acquisition Subsidiary; provided that such Liens are not
granted in contemplation of the Acquisition pursuant to which such Person
becomes a Subsidiary of Company, and (b) Liens encumbering the capital
stock of a Restricted Acquisition Subsidiary that are granted to secure
Indebtedness permitted under subsection 7.1(x)(b);
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(vi) (a) Liens encumbering assets of a Subsidiary of Company that
are granted to secure Indebtedness permitted under subsection 7.1(xi) at
the time such Indebtedness is originally incurred and (b) Liens
encumbering the capital stock of a Subsidiary of Company that are granted
to secure Indebtedness permitted under subsection 7.1(xi)(b); provided
that the aggregate outstanding principal amount of Indebtedness secured by
all Liens permitted pursuant to this subsection 7.2(vi) shall at no time
exceed $125,000,000, except to the extent that such Subsidiary has granted
a Lien on the assets securing any portion of such Indebtedness in excess
of $125,000,000 on an equal and ratable basis to Collateral Agent on
behalf of Lenders to secure the Obligations;
(vii) Liens on commodities subject to any arrangement permitted
under subsection 7.1(xiii); and
(viii) Other Liens securing Indebtedness in an aggregate amount not
to exceed $25,000,000 at any time outstanding.
7.3 Investments; Joint Ventures.
Each Borrower shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, make or own any Investment in any Person, including any
Joint Venture, except:
(i) Company and its Subsidiaries may make and own Investments in
Cash Equivalents;
(ii) Company and its Subsidiaries may make loans and advances to
officers, directors and employees of Company or any of its Subsidiaries
(a) to finance the purchase of capital stock of Company and (b) in an
aggregate principal amount not to exceed $5,000,000 at any time
outstanding for additional purposes not contemplated by the foregoing
clause (a);
(iii) Company and its Subsidiaries may make and own Investments
consisting of any non-cash proceeds received by Company or any of its
Subsidiaries in connection with any Asset Sale permitted under subsection
7.7(v);
(iv) Company and its Subsidiaries may continue to own the
Investments owned by them and described in Schedule 7.3 annexed hereto and
Company and its Subsidiaries may make and own Investments purchased with
the proceeds of the sale of any Investments permitted under this
subsection 7.3(iv);
(v) Company and its Subsidiaries may make and own Investments in
special-purpose entities established to purchase accounts receivable from
Company or any of its Subsidiaries pursuant to an Accounts Receivable
Facility; and
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(vi) Company and its Subsidiaries may make and own Investments
(collectively, "Unrestricted Investments") in addition to those permitted
under clauses (i) through (v) above, including Investments in Restricted
Acquisition Subsidiaries and in Unrestricted Subsidiaries, as follows: (a)
Unrestricted Investments in an aggregate amount not to exceed at any time
(1) $50,000,000 for all such Unrestricted Investments in Unrestricted
Subsidiaries or (2) $100,000,000 for all such Unrestricted Investments
(including all such Unrestricted Investments in Restricted Acquisition
Subsidiaries and Unrestricted Subsidiaries) and (b) Unrestricted
Investments in addition to the Unrestricted Investments permitted under
the preceding clause (a), provided that after giving effect to any such
additional Unrestricted Investment pursuant to this clause (b) the
Available Amount Usage shall not exceed the Available Amount.
7.4 Guarantee Obligations.
Each Borrower shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create or become or remain liable with respect to any
Guarantee Obligation, except:
(i) Company and its Subsidiaries may become and remain liable with
respect to Guarantee Obligations in respect of the Guaranties;
(ii) Company may become and remain liable with respect to Guarantee
Obligations in respect of Letters of Credit;
(iii) Company and its Subsidiaries may become and remain liable with
respect to Guarantee Obligations in respect of customary indemnification
and purchase price adjustment obligations incurred in connection with
Asset Sales or other sales of assets;
(iv) Company and its Subsidiaries may become and remain liable with
respect to Guarantee Obligations under guarantees in the ordinary course
of business of the obligations of suppliers, customers, franchisees and
licensees of Company and its Subsidiaries;
(v) Company and its Subsidiaries may become and remain liable with
respect to Guarantee Obligations in respect of any Indebtedness of Company
or any of its Subsidiaries (other than Restricted Acquisition
Subsidiaries) permitted by subsection 7.1; provided that neither Company
nor any of its Subsidiaries may become or remain liable with respect to
Guarantee Obligations in respect of any Indebtedness permitted under
subsection 7.1(xi)(b) unless such Person becomes a Subsidiary of Company
pursuant to the Acquisition financed with the proceeds of such
Indebtedness or acquires a direct Subsidiary pursuant to such Acquisition;
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(vi) Company and its Subsidiaries, as applicable, may remain liable
with respect to Guarantee Obligations described in Schedule 7.4 annexed
hereto; and
(vii) Company and its Subsidiaries may become and remain liable with
respect to other Guarantee Obligations; provided that the maximum
aggregate liability, contingent or otherwise, of Company and its
Subsidiaries in respect of all such Guarantee Obligations shall at no time
exceed $25,000,000.
7.5 Restricted Junior Payments.
Each Borrower shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, declare, order, pay, make or set apart any sum for any
Restricted Junior Payment; provided that (i) Company may redeem the Existing
Senior Notes as contemplated by subsection 4.1F(iv), (ii) Company may make
scheduled payments of principal in respect of any Existing Subordinated Notes
not tendered pursuant to the Debt Tender Offer in accordance with the terms of,
and only to the extent required by, and subject to the subordination provisions
contained in, the Existing Subordinated Note Indenture, and (iii) so long as no
Event of Default or Potential Event of Default has occurred and is continuing or
would be caused thereby, Company may:
(a) repurchase shares of its capital stock (together with options or
warrants in respect of any thereof) held by officers, directors and
employees of Company so long as such repurchase is pursuant to, and in
accordance with the terms of, management and/or employee stock plans,
stock subscription agreements or shareholder agreements;
(b) repurchase, redeem, defease or otherwise prepay or retire any
Existing Subordinated Notes not tendered pursuant to the Debt Tender Offer
on terms (set forth in the Existing Subordinated Note Indenture or
otherwise) no less favorable in any material respect to Company and
Lenders than the terms of the Debt Tender Offer;
(c) repurchase, redeem, defease or otherwise prepay or retire New
Sub Debt; provided that after giving effect thereto the Available Amount
Usage shall not exceed the Available Amount;
(d) purchase, redeem or otherwise acquire shares of common stock of
Company or warrants or options to acquire any such shares with proceeds
received by Company from substantially concurrent equity contributions or
issuances of new shares of its common stock;
(e) redeem or exchange, in whole or in part, any capital stock of
Company for shares of another class of capital stock of Company or rights
to acquire shares of such other class of capital stock; provided that such
other class of
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capital stock contains terms and provisions (taken as a whole, and taking
into account the relative amounts of the shares of each class of capital
stock involved in such redemption or exchange) that are at least as
advantageous to Lenders as those contained in the capital stock redeemed
or exchanged therefor; and
(f) make other Restricted Junior Payments; provided that on the date
(the "Declaration Date") of declaration of any dividend in respect of
Company's outstanding capital stock pursuant to the terms of this clause
(f) or the making of any other Restricted Junior Payment pursuant to the
terms of this clause (f), (X) the Consolidated Leverage Ratio as of the
last day of the Fiscal Quarter most recently ended shall be less than
4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior
Payment, when added to the aggregate amount of all Restricted Junior
Payments previously declared or (without duplication) paid by Company
pursuant to this clause (f) during the period commencing on the Closing
Date and ending on the Declaration Date, does not exceed 50% of cumulative
Consolidated Net Income of Company and its Subsidiaries for the period
commencing on the Closing Date and ending on the last day of the Fiscal
Quarter most recently ended.
7.6 Financial Covenants.
A. Minimum Interest Coverage Ratio. Company shall not permit the ratio of
(i) Consolidated Adjusted EBITDA to (ii) Consolidated Interest Expense for the
four-Fiscal Quarter period ending on the last day of any Fiscal Quarter set
forth below to be less than the correlative ratio indicated:
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Minimum Interest
Year Fiscal Quarter Coverage Ratio
---- -------------- ----------------
1998 First 1.50:1.00
Second 1.50:1.00
Third 1.50:1.00
Fourth 1.50:1.00
1999 First 1.50:1.00
Second 1.50:1.00
Third 1.75:1.00
Fourth 1.75:1.00
2000 First 1.75:1.00
Second 1.75:1.00
Third 1.75:1.00
Fourth 1.75:1.00
2001 First 1.75:1.00
Second 1.75:1.00
Third 2.00:1.00
Thereafter 2.00:1.00
B. Maximum Leverage Ratio. Company shall not permit the Consolidated
Leverage Ratio as of the last day of any Fiscal Quarter set forth below to
exceed the correlative ratio indicated:
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Maximum
Year Fiscal Quarter Leverage Ratio
---- -------------- --------------
1998 First 6.65:1.00
Second 6.50:1.00
Third 6.40:1.00
Fourth 6.25:1.00
1999 First 6.00:1.00
Second 6.00:1.00
Third 6.00:1.00
Fourth 5.75:1.00
2000 First 5.50:1.00
Second 5.50:1.00
Third 5.50:1.00
Fourth 5.00:1.00
2001 First 4.75:1.00
Second 4.75:1.00
Third 4.75:1.00
Fourth 4.75:1.00
2002 First 4.25:1.00
Second 4.25:1.00
Third 4.25:1.00
Fourth 4.00:1.00
Thereafter 4.00:1.00
7.7 Restriction on Certain Fundamental Changes; Asset Sales and Acquisitions.
Each Borrower shall not, and shall not permit any of its Subsidiaries to,
enter into any transaction of merger or consolidation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of,
in one transaction or a series of transactions, all or any part of its business,
property or assets, whether now owned or hereafter acquired, or make any
Acquisition, except:
(i) any Subsidiary of Company may be merged with or into Company or
any other Subsidiary of Company, and any Subsidiary of Company may be
liquidated, wound up or dissolved, or all or any part of its business,
property or assets (including capital stock of any Subsidiary of Company)
may be conveyed, sold, leased, transferred or otherwise disposed of, in
one transaction or a series of
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transactions, to Company or any other Subsidiary of Company; provided that
(a) in the case of any such merger involving Company, Company shall be the
continuing or surviving corporation, and (b) for so long as either U.K.
Borrower has any outstanding Obligations, (1) no such merger shall have
the effect of causing a U.K. Borrower to have transferred all or
substantially all of its assets to Company or another Subsidiary of
Company, (2) in the case of a merger involving a U.K. Borrower (but not
Company), a U.K. Borrower shall be the continuing or surviving
corporation, (3) neither an Unrestricted Subsidiary nor a Restricted
Acquisition Subsidiary may merge with either U.K. Borrower, and (4)
neither U.K. Borrower may dispose of all or substantially all of its
assets, whether in one transaction or a series of transactions; provided,
further that, notwithstanding the restrictions set forth in clauses (1)
and (4) of the immediately preceding proviso, one U.K. Borrower may merge
into the other U.K. Borrower and any Subsidiary of a U.K. Borrower may
merge into such U.K. Borrower;
(ii) Company and its Subsidiaries may make Acquisitions (by merger
or otherwise) so long as, prior to the consummation of any such
Acquisition, Company shall have delivered to Administrative Agent (a)
financial statements for Company and its Subsidiaries for the four
Fiscal-Quarter period most recently ended (the "Pro Forma Test Period"),
prepared on a pro forma basis as if such Acquisition had been consummated
on the first day of the Pro Forma Test Period and giving effect to
Company's good faith estimate of any anticipated cost savings or increases
as a result of the consummation thereof, and (b) a pro forma Compliance
Certificate demonstrating that, on the basis of such pro forma financial
statements, Company would have been in compliance with all financial
covenants set forth in subsection 7.6 on the last day of the Pro Forma
Test Period; provided that, for Acquisitions consummated prior to the last
day of the first Fiscal Quarter of 1998, the requirements of subsection
7.6 in effect for the four Fiscal-Quarter period ending on such date shall
be deemed to be in effect for the Pro Forma Test Period;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out
or surplus property in the ordinary course of business and sell or
discount without recourse accounts receivable arising in the ordinary
course of business in connection with the compromise or collection
thereof;
(iv) Company and its Subsidiaries may sell or otherwise dispose of
other assets in transactions that do not constitute Asset Sales;
(v) Company and its Subsidiaries may make Asset Sales of assets
having a fair value not in excess of $300,000,000 during the term of this
Agreement; provided that (w) the consideration received in each such Asset
Sale shall be in an amount at least equal to the fair value of the assets
being sold; (x) any non-cash consideration received by Company in respect
of any such Asset Sale in the form
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of Indebtedness of any Person in an amount in excess of $5,000,000 shall
be evidenced by a promissory note which shall be pledged by Company to
Collateral Agent pursuant to the Master Pledge Agreement as security for
the Obligations; and (y) the proceeds of such Asset Sales shall be applied
as required by subsection 2.4B(iii)(a);
(vi) Company may sell the assets described on Schedule 7.3 annexed
hereto on the Closing Date; and
(vii) Investments permitted under subsection 7.3.
7.8 Consolidated Capital Expenditures.
Company shall not, and shall not permit its Subsidiaries to, make or incur
Consolidated Capital Expenditures in any Fiscal Year (the "Current Fiscal Year")
in an aggregate amount in excess of an amount (the "Maximum Capital Expenditures
Amount" for the Current Fiscal Year) equal to (x) 5% of Consolidated Gross Sales
Revenues for the immediately preceding Fiscal Year plus (y) the Consolidated
Gross Sales Revenues Adjustment for the Current Fiscal Year; provided that the
Maximum Capital Expenditures Amount for any Fiscal Year shall be increased by an
amount equal to the excess, if any, of the Maximum Capital Expenditures Amount
for the previous Fiscal Year (prior to adjustment in accordance with this
proviso) over the actual amount of Consolidated Capital Expenditures for such
previous Fiscal Year.
7.9 Amendments of Documents Relating to Subordinated Indebtedness.
Borrowers shall not, and shall not permit any of their respective
Subsidiaries to, amend or otherwise change any of the terms of any Subordinated
Indebtedness in a manner that would be adverse to Lenders in any material
respect.
Section 8. EVENTS OF DEFAULT
If any of the following conditions or events ("Events of Default") shall
occur:
8.1 Failure to Make Payments When Due.
Failure by Company or either U.K. Borrower to pay any installment of
principal of any Loan when due from such Borrower, whether at stated maturity,
by acceleration, by mandatory prepayment or otherwise; or failure by Company to
pay when due any amount payable to an Issuing Lender in reimbursement of any
drawing under a Letter of Credit; or failure by any Borrower to pay any interest
on any Loan or any fee
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or any other amount due from such Borrower under this Agreement, in each case
within five days after the date due; or
8.2 Default in Other Agreements.
(i) Failure of Company or any of its Subsidiaries to pay when due any
principal of or interest on or any other amount payable in respect of one or
more items of Indebtedness (other than Indebtedness referred to in subsection
8.1) or Guarantee Obligations with an aggregate principal amount of $20,000,000
or more beyond the end of any grace or notice period provided therefor; or (ii)
breach or default by Company or any of its Subsidiaries with respect to any
other material term of (a) one or more items of Indebtedness or Guarantee
Obligations in the aggregate principal amount referred to in clause (i) above or
(b) any loan agreement, mortgage, indenture or other agreement relating to such
item(s) of Indebtedness or Guarantee Obligation(s), if such breach or default
continues after any applicable grace or notice period provided therefor and the
effect of such breach or default is to cause, or (other than in the case of the
Existing Senior Notes) to permit the holder or holders of that Indebtedness or
Contingent Obligation(s) (or a trustee on behalf of such holder or holders) to
cause, that Indebtedness or Contingent Obligation(s) to become or be declared
due and payable prior to its stated maturity or the stated maturity of any
underlying obligation, as the case may be; or
8.3 Breach of Certain Covenants.
Failure of any Borrower to perform or comply with any term or condition
contained in subsection 6.1(vi)(a) or Section 7; or
8.4 Breach of Warranty.
Any representation, warranty, certification or other statement made by
Company or any of its Subsidiaries in any Loan Document or in any statement or
certificate at any time given by Company or any of its Subsidiaries in writing
pursuant hereto or thereto or in connection herewith or therewith shall be false
in any material respect on the date as of which made; or
8.5 Other Defaults Under Loan Documents.
Any Loan Party shall default in the performance of or compliance with any
term contained in this Agreement or any of the other Loan Documents, other than
any such term referred to in any other subsection of this Section 8, and such
default shall not have been remedied or waived within 30 days after receipt by
Company and such Loan Party of notice from Administrative Agent or any Lender of
such default; or
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8.6 Involuntary Bankruptcy; Appointment of Receiver, etc.
(i) A court having jurisdiction in the premises shall enter a decree or
order for relief in respect of Company or any of its Material Subsidiaries in an
involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree
or order is not stayed; or any other similar relief shall be granted under any
applicable federal, state or foreign law; or (ii) an involuntary case shall be
commenced against Company or any of its Material Subsidiaries under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency,
dissolution, liquidation or similar law now or hereafter in effect; or a decree
or order of a court having jurisdiction in the premises for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or other officer having
similar powers over Company or any of its Material Subsidiaries, or over all or
a substantial part of its property, shall have been entered; or there shall have
occurred the involuntary appointment of an interim receiver, trustee or other
custodian of Company or any of its Material Subsidiaries for all or a
substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of the
property of Company or any of its Material Subsidiaries, and any such event
described in this clause (ii) shall continue for 60 days unless dismissed,
bonded or discharged; or
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.
(i) Company or any of its Material Subsidiaries shall have an order for
relief entered with respect to it or commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency,
dissolution, liquidation or similar law (whether federal, state or foreign) now
or hereafter in effect, or shall consent to the entry of an order for relief in
an involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property; or Company or any of its Material Subsidiaries shall make
any assignment for the benefit of creditors; or (ii) Company or any of its
Material Subsidiaries shall fail generally, or shall admit in writing its
inability, to pay its debts as such debts become due; or the Board of Directors
of Company or any of its Material Subsidiaries (or any committee thereof) shall
adopt any resolution or otherwise authorize any action to approve any of the
actions referred to in clause (i) above or this clause (ii); or
8.8 Judgments and Attachments.
Any money judgments, writs or warrants of attachment or similar processes
involving in the aggregate at any time an amount in excess of $20,000,000 (to
the extent such amount is not adequately covered by insurance as to which the
insurance company has not disputed coverage in writing) shall be entered or
filed against Company or any of its Subsidiaries or any of their respective
assets and shall remain undischarged, unvacated, unbonded or unstayed for a
period of 60 days; or
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8.9 ERISA.
An ERISA Event shall occur with respect to a Pension Plan or Multiemployer
Plan; or
8.10 Change of Control.
A Change of Control shall occur; or
8.11 Material Invalidity of Guaranties; Material Failure of Security;
Repudiation of Obligations.
At any time after the execution and delivery thereof, (i) any material
provision of the Company Guaranty, the Subsidiary Guaranty or any guaranty
entered into by a Subsidiary of Company pursuant to subsection 6.7B for any
reason, other than the satisfaction in full of all Obligations, shall cease to
be in full force and effect (other than in accordance with its terms) or shall
be declared to be null and void, in either case, as to Company, with respect to
the Company Guaranty, or as to any material portion of Subsidiary Guarantors and
other Subsidiaries guaranteeing the Obligations, with respect to the Subsidiary
Guaranty and any guaranty entered into pursuant to subsection 6.7B, (ii) any
Collateral Document shall cease to create a valid security interest in the
collateral purported to be covered thereby or shall cease to be in full force
and effect (other than by reason of a release of Collateral thereunder in
accordance with the terms hereof or thereof, the satisfaction in full of the
Obligations or any other termination of such Collateral Document in accordance
with the terms hereof or thereof), in each case to the extent the same affects a
material portion of the Collateral and in each case for any reason other than
any act or omission of either Agent or any Lender, or (iii) any Loan Party shall
deny in writing its obligations under any Loan Document to which it is a party:
THEN (i) upon the occurrence of any Event of Default described in subsection 8.6
or 8.7, each of (a) the unpaid principal amount of and accrued interest on the
Loans, (b) an amount equal to the maximum amount that may at any time be drawn
under all Letters of Credit then outstanding (whether or not any beneficiary
under any such Letter of Credit shall have presented, or shall be entitled at
such time to present, the drafts or other documents or certificates required to
draw under such Letter of Credit), and (c) all other Obligations shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by Borrowers, and the obligation of each Lender to make any Loan, the
obligation of Administrative Agent to issue any Letter of Credit and the right
of any Lender to issue any Letter of Credit hereunder shall thereupon terminate,
and (ii) upon the occurrence and during the continuation of any other Event of
Default, Administrative Agent shall, upon the written request or with the
written consent of Requisite Lenders, by written notice to Borrowers, declare
all or any portion of the amounts described in clauses (a) through (c) above to
be, and the same shall forthwith become, immediately due and
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payable, and the obligation of each Lender to make any Loan, the obligation of
Administrative Agent to issue any Letter of Credit and the right of any Lender
to issue any Letter of Credit hereunder shall thereupon terminate; provided that
the foregoing shall not affect in any way the obligations of Lenders under
subsection 3.3C(i) or the obligations of Lenders to purchase participations in
any unpaid Swing Line Loans as provided in subsection 2.1A(v).
Any amounts described in clause (b) above, when received by Administrative
Agent, shall be paid to Collateral Agent, for the benefit of Lenders, and held
by Collateral Agent, for the benefit of Lenders, as collateral security for the
Obligations of Company in respect of all outstanding Letters of Credit, and
Company hereby (X) grants to Collateral Agent, for the benefit of Lenders, a
security interest in all such amounts, together with any interest accrued
thereon and any Investments of such amounts, as security for the Obligations,
(Y) agrees to execute and deliver to Collateral Agent all such documents and
instruments as may be necessary or, in the opinion of Collateral Agent,
desirable in order to more fully evidence, perfect or protect such security
interest, and (Z) agrees that, upon the honoring by any Issuing Bank of any
drawing under a Letter of Credit issued by it, Collateral Agent is authorized
and directed to apply any amounts held as collateral security in accordance with
the terms of this paragraph to reimburse such Issuing Lender for the amount of
such drawing.
Notwithstanding anything contained in the second preceding paragraph, if
at any time within 60 days after an acceleration of the Loans pursuant to clause
(ii) of such paragraph Borrowers shall pay all arrears of interest and all
payments on account of principal which shall have become due otherwise than as a
result of such acceleration (with interest on principal and, to the extent
permitted by law, on overdue interest, at the rates specified in this Agreement)
and all Events of Default and Potential Events of Default (other than
non-payment of the principal of and accrued interest on the Loans, in each case
which is due and payable solely by virtue of acceleration) shall be remedied or
waived pursuant to subsection 10.6, then Requisite Lenders, by written notice to
Borrowers, may at their option rescind and annul such acceleration and its
consequences; but such action shall not affect any subsequent Event of Default
or Potential Event of Default or impair any right consequent thereon. The
provisions of this paragraph are intended merely to bind Lenders to a decision
which may be made at the election of Requisite Lenders and are not intended,
directly or indirectly, to benefit Company, and such provisions shall not at any
time be construed so as to grant Company the right to require Lenders to rescind
or annul any acceleration hereunder or to preclude Agents or Lenders from
exercising any of the rights or remedies available to them under any of the Loan
Documents, even if the conditions set forth in this paragraph are met.
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Section 9. AGENTS
9.1 Appointment of Administrative Agent.
BTCo is hereby appointed Administrative Agent hereunder and under the
other Loan Documents and each Lender hereby authorizes Administrative Agent to
act as its agent in accordance with the terms of this Agreement and the other
Loan Documents. Administrative Agent agrees to act upon the express conditions
contained in this Agreement and the other Loan Documents, as applicable. The
provisions of this Section 9 are solely for the benefit of Administrative Agent
and Lenders and no Borrower shall have any rights as a third party beneficiary
of any of the provisions thereof. In performing its functions and duties under
this Agreement, Administrative Agent shall act solely as an agent of Lenders and
does not assume and shall not be deemed to have assumed any obligation towards
or relationship of agency or trust with or for Company or any of its
Subsidiaries. Neither Syndication Agent nor Documentation Agent nor any Lender
named as a Lead Manager or Co-Agent hereunder shall have any liability to any
Person under this Agreement except in its capacity as a Lender or, if
applicable, an Issuing Lender.
9.2 Powers and Duties; General Immunity.
A. Powers; Duties Specified. Each Lender irrevocably authorizes each Agent
to take such action on such Lender's behalf and to exercise such powers, rights
and remedies hereunder and under the other Loan Documents as are specifically
delegated or granted to such Agent by the terms hereof and thereof, together
with such powers, rights and remedies as are reasonably incidental thereto. Each
Agent shall have only those duties and responsibilities that are expressly
specified in this Agreement and the other Loan Documents. Administrative Agent
may exercise such powers, rights and remedies and perform such duties by or
through its agents or employees. Neither Agent shall have, by reason of this
Agreement or any of the other Loan Documents, a fiduciary relationship in
respect of any Lender; and nothing in this Agreement or any of the other Loan
Documents, expressed or implied, is intended to or shall be so construed as to
impose upon either Agent any obligations in respect of this Agreement or any of
the other Loan Documents except as expressly set forth herein or therein.
B. No Responsibility for Certain Matters. Neither Agent shall be
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any
other Loan Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or
in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by either Agent to Lenders or by or on
behalf of any Borrower to either Agent or any Lender in connection with the Loan
Documents and the transactions contemplated thereby or for the financial
condition or business affairs of any Borrower or any other Person liable for the
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payment of any Obligations, nor shall either Agent be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Loan Documents or as
to the use of the proceeds of the Loans or the use of the Letters of Credit or
as to the existence or possible existence of any Event of Default or Potential
Event of Default. Anything contained in this Agreement to the contrary
notwithstanding, Administrative Agent shall not have any liability arising from
confirmations of the amount of outstanding Loans or the Letter of Credit Usage
or the component amounts thereof.
C. Exculpatory Provisions. Neither Administrative Agent nor Collateral
Agent nor any of their respective officers, directors, employees or agents shall
be liable to Lenders for any action taken or omitted by such Agent under or in
connection with any of the Loan Documents except to the extent caused by such
Agent's gross negligence or willful misconduct. Each Agent shall be entitled to
refrain from any act or the taking of any action (including the failure to take
an action) in connection with this Agreement or any of the other Loan Documents
or from the exercise of any power, discretion or authority vested in it
hereunder or thereunder unless and until such Agent shall have received
instructions in respect thereof from Requisite Lenders (or such other Lenders as
may be required to give such instructions under subsection 10.6) and, upon
receipt of such instructions from Requisite Lenders (or such other Lenders, as
the case may be), such Agent shall be entitled to act or (where so instructed)
refrain from acting, or to exercise such power, discretion or authority, in
accordance with such instructions. Without prejudice to the generality of the
foregoing, (i) each Agent shall be entitled to rely, and shall be fully
protected in relying, upon any communication, instrument or document believed by
it to be genuine and correct and to have been signed or sent by the proper
person or persons, and shall be entitled to rely and shall be protected in
relying on opinions and judgments of attorneys (who may be attorneys for Company
and its Subsidiaries), accountants, experts and other professional advisors
selected by it; and (ii) no Lender shall have any right of action whatsoever
against either Agent as a result of such Agent acting or (where so instructed)
refraining from acting under this Agreement or any of the other Loan Documents
in accordance with the instructions of Requisite Lenders (or such other Lenders
as may be required to give such instructions under subsection 10.6).
D. Agents Entitled to Act as Lenders. The agency hereby created shall in
no way impair or affect any of the rights and powers of, or impose any duties or
obligations upon, either Agent in its individual capacity as a Lender hereunder.
With respect to its participation in the Loans and the Letters of Credit, such
Agent shall have the same rights and powers hereunder as any other Lender and
may exercise the same as though it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" or "Lenders" or any similar
term shall, unless the context clearly otherwise indicates, include each Agent
in its individual capacity. Each Agent and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of banking, trust,
financial advisory or other business with Company or any of its Affiliates as if
it were not performing the duties specified herein, and may accept fees and
other consideration from
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any Borrower for services in connection with this Agreement and otherwise
without having to account for the same to Lenders.
9.3 Representations and Warranties; No Responsibility For Appraisal of Credit-
worthiness.
Each Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of Company and its
Subsidiaries in connection with the making of the Loans and the issuance of
Letters of Credit hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Company and its Subsidiaries. Neither
Agent shall have any duty or responsibility, either initially or on a continuing
basis, to make any such investigation or any such appraisal on behalf of Lenders
or to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter, and neither Agent shall have any responsibility
with respect to the accuracy of or the completeness of any information provided
to Lenders.
9.4 Right to Indemnity.
Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify Administrative Agent, Collateral Agent, Documentation Agent and
Syndication Agent to the extent that such Person shall not have been reimbursed
by Company, for and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including
counsel fees and disbursements) or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against such Person
in exercising its powers, rights and remedies or performing its duties hereunder
or under the other Loan Documents or otherwise in its capacity as Administrative
Agent, Collateral Agent, Documentation Agent or Syndication Agent, respectively,
in any way relating to or arising out of this Agreement or the other Loan
Documents; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the indemnified Person. If any indemnity furnished to
Administrative Agent, Collateral Agent, Documentation Agent or Syndication Agent
for any purpose shall, in the opinion of such Person, be insufficient or become
impaired, such Person may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished.
9.5 Successor Agents and Swing Line Lender.
A. Successor Administrative Agent. Administrative Agent may resign at any
time by giving 30 days' prior written notice thereof to Lenders and Borrowers,
and Administrative Agent may be removed at any time with or without cause by an
instrument or concurrent instruments in writing delivered to Borrowers and
Administrative Agent and
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signed by Requisite Lenders. Upon any such notice of resignation or any such
removal, Requisite Lenders shall have the right, upon five Business Days' notice
to Borrowers, to appoint a successor Administrative Agent acceptable to Company
(which acceptance shall not be unreasonably withheld). Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Administrative
Agent, that successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or
removed Administrative Agent and the retiring or removed Administrative Agent
shall be discharged from its duties and obligations under this Agreement and the
other Loan Documents. After any retiring or removed Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Section 9 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement.
B. Successor Collateral Agent. Any resignation or removal of
Administrative Agent pursuant to subsection 9.5A shall also constitute the
resignation or removal of BTCo or its successor as Collateral Agent, and any
successor Administrative Agent appointed pursuant to subsection 9.5A shall, upon
its acceptance of such appointment, become the successor Collateral Agent for
all purposes under the Loan Documents. After any resignation or removal of
Collateral Agent hereunder, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted by it while it was Collateral Agent
under the Loan Documents.
C. Successor Swing Line Lender. Any resignation or removal of
Administrative Agent pursuant to subsection 9.5A shall also constitute the
resignation or removal of BTCo or its successor as Swing Line Lender, and any
successor Administrative Agent appointed pursuant to subsection 9.5A shall, upon
its acceptance of such appointment, become the successor Swing Line Lender for
all purposes hereunder. In such event (i) Company shall prepay any outstanding
Swing Line Loans made by the retiring or removed Administrative Agent in its
capacity as Swing Line Lender, (ii) upon such prepayment, the retiring or
removed Administrative Agent and Swing Line Lender shall surrender any Swing
Line Note held by it to Company for cancellation, and (iii) if so requested by
the successor Administrative Agent and Swing Line Lender in accordance with
subsection 2.1E, Company shall issue a new Swing Line Note to the successor
Administrative Agent and Swing Line Lender substantially in the form of Exhibit
VIII annexed hereto, in the principal amount of the Swing Line Loan Commitment
then in effect and with other appropriate insertions.
9.6 Collateral Documents and Guaranties.
Each Lender hereby further authorizes Collateral Agent, on behalf of and
for the benefit of Lenders, to enter into each Collateral Document as secured
party and to be the agent for and representative of Lenders under the Guaranties
and to enter into the Intercreditor Agreement, and each Lender agrees to be
bound by the terms of each Collateral Document, each Guaranty and the
Intercreditor Agreement; provided that
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Collateral Agent shall not (i) enter into or consent to any material amendment,
modification, termination or waiver of any provision contained in any Collateral
Document, the Intercreditor Agreement or the Guaranties or (ii) release any
Collateral (except as otherwise expressly permitted or required pursuant to the
terms of this Agreement or the applicable Collateral Document), in each case
without the prior consent of Requisite Lenders (or such other Lenders as may be
required to give such instructions under subsection 10.6); provided further,
however, that, without further written consent or authorization from Lenders,
Collateral Agent may execute any documents or instruments necessary to (a)
release any Lien encumbering any item of Collateral that is the subject of a
sale or other disposition of assets permitted by this Agreement or to which
Requisite Lenders have otherwise consented or (b) release any Subsidiary from
its Guaranty if all of the capital stock of such Subsidiary is sold to any
Person (other than an Affiliate of Company) pursuant to a sale or other
disposition permitted hereunder or to which Requisite Lenders have otherwise
consented. Anything contained in any of the Loan Documents to the contrary
notwithstanding, Company, Collateral Agent and each Lender hereby agree that (X)
no Lender shall have any right individually to realize upon any of the
Collateral under any Collateral Document or to enforce the Guaranties, it being
understood and agreed that all powers, rights and remedies under the Collateral
Documents and the Guaranties may be exercised solely by Collateral Agent for the
benefit of Lenders in accordance with the terms thereof, and (Y) in the event of
a foreclosure by Collateral Agent on any of the Collateral pursuant to a public
or private sale, Collateral Agent or any Lender may be the purchaser of any or
all of such Collateral at any such sale and Collateral Agent, as agent for and
representative of Lenders (but not any Lender or Lenders in its or their
respective individual capacities unless Requisite Lenders shall otherwise agree
in writing) shall be entitled, for the purpose of bidding and making settlement
or payment of the purchase price for all or any portion of the Collateral sold
at any such public sale, to use and apply any of the Obligations as a credit on
account of the purchase price for any collateral payable by Collateral Agent at
such sale.
Section 10. MISCELLANEOUS
10.1 Assignments and Participations in Loans and Letters of Credit.
A. General. Subject to subsection 10.1B, each Lender shall have the right
at any time (i) to sell, assign or transfer to any Eligible Assignee, or (ii) to
sell participations to any Person in, all or any part of its Commitments or any
Loan or Loans made by it or its Letters of Credit or participations therein or
any other interest herein or in any other Obligations owed to it; provided that
no such sale, assignment, transfer or participation shall, without the consent
of Company, require Company to file a registration statement with the SEC or
apply to qualify such sale, assignment, transfer or participation under the
securities laws of any state; provided, further that no such sale, assignment or
transfer described in clause (i) above shall be effective unless and until an
Assignment Agreement effecting such sale, assignment or transfer shall have been
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accepted by Administrative Agent and recorded in the Register as provided in
subsection 10.1B(ii); provided, further that no sale, assignment or transfer of
any Sterling Loan shall be made except to a U.K. Qualifying Bank and any sale,
assignment or transfer of any Tranche A Term Loan shall be made pro rata with a
sale, assignment or transfer of such Lender's other Tranche A Term Loans;
provided, further that no such sale, assignment, transfer or participation of
any Letter of Credit or any participation therein may be made separately from a
sale, assignment, transfer or participation of a corresponding interest in the
Revolving Loan Commitment and the Revolving Loans of the Lender effecting such
sale, assignment, transfer or participation; and provided, further that,
anything contained herein to the contrary notwithstanding, the Swing Line Loan
Commitment and the Swing Line Loans of Swing Line Lender may not be sold,
assigned or transferred as described in clause (i) above to any Person other
than a successor Administrative Agent and Swing Line Lender to the extent
contemplated by subsection 9.5. Except as otherwise provided in this subsection
10.1, no Lender shall, as between Company and such Lender, be relieved of any of
its obligations hereunder as a result of any sale, assignment or transfer of, or
any granting of participations in, all or any part of its Commitments or the
Loans, the Letters of Credit or participations therein, or the other Obligations
owed to such Lender.
B. Assignments.
(i) Amounts and Terms of Assignments. Each Commitment, Loan, Letter
of Credit or participation therein, or other Obligation may (a) be
assigned in any amount to another Lender, or to an Affiliate of the
assigning Lender or another Lender, with the giving of notice to Company
and Administrative Agent or (b) be assigned in an aggregate amount of not
less than $5,000,000 (or such lesser amount as shall constitute the
aggregate amount of the Commitments, Loans, Letters of Credit and
participations therein, and other Obligations of the assigning Lender) to
any other Eligible Assignee with the consent of Company and Administrative
Agent (which consent of Company and Administrative Agent shall not be
unreasonably withheld or delayed); provided, that the consent of Company
shall not be required for any assignment that occurs at any time when an
Event of Default under subsection 8.6 or 8.7 shall have occurred and be
continuing and; provided, further that Sterling Loans may only be assigned
to a U.K. Qualifying Bank. To the extent of any such assignment in
accordance with either clause (a) or (b) above, the assigning Lender shall
be relieved of its obligations with respect to its Commitments, Loans,
Letters of Credit or participations therein, or other Obligations or the
portion thereof so assigned. The parties to each such assignment shall
execute and deliver to Administrative Agent, for its acceptance and
recording in the Register, an Assignment Agreement, together with a
processing and recordation fee of $3,500 and such forms, certificates or
other evidence, if any, with respect to United States federal income tax
withholding matters and United Kingdom tax matters as the assignee under
such Assignment Agreement may be required to deliver to Administrative
Agent pursuant to
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subsections 2.7B(iii)(a) and 2.7B(iv)(a). Upon such execution, delivery,
acceptance and recordation, from and after the effective date specified in
such Assignment Agreement, (y) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment Agreement, shall have the
rights and obligations of a Lender hereunder and (z) the assigning Lender
thereunder shall, to the extent that rights and obligations hereunder have
been assigned by it pursuant to such Assignment Agreement, relinquish its
rights (other than any rights which survive the termination of this
Agreement under subsection 10.8B) and be released from its obligations
under this Agreement (and, in the case of an Assignment Agreement covering
all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party
hereto; provided that, anything contained in any of the Loan Documents to
the contrary notwithstanding, if such Lender is the Issuing Lender with
respect to any outstanding Letters of Credit such Lender shall continue to
have all rights and obligations of an Issuing Lender with respect to such
Letters of Credit until the cancellation or expiration of such Letters of
Credit and the reimbursement of any amounts drawn thereunder). The
Commitments hereunder shall be modified to reflect the Commitment of such
assignee and any remaining Commitment of such assigning Lender and, if any
such assignment occurs after the issuance of any Notes hereunder, the
assigning Lender shall, upon the effectiveness of such assignment or as
promptly thereafter as practicable, surrender its applicable Notes, if
any, to Administrative Agent for cancellation, and thereupon new Notes
shall, if so requested by the assignee and/or the assigning Lender in
accordance with subsection 2.1E, be issued to the assignee and to the
assigning Lender, substantially in the form of Exhibit IV-A or Exhibit
IV-B, Exhibit V, Exhibit VI or Exhibit VII annexed hereto, as the case may
be, with appropriate insertions, to reflect the new Commitments and/or
outstanding Tranche A Term Loans and/or Tranche B Term Loans and/or
Tranche C Term Loans, as the case may be, of the assignee and the
assigning Lender.
(ii) Acceptance by Administrative Agent; Recordation in Register.
Upon its receipt of an Assignment Agreement executed by an assigning
Lender and an assignee representing that it is an Eligible Assignee,
together with the processing and recordation fee referred to in subsection
10.1B(i) and any forms, certificates or other evidence with respect to
United States federal income tax withholding matters and United Kingdom
tax matters that such assignee may be required to deliver to
Administrative Agent pursuant to subsections 2.7B(iii)(a) and 2.7B(iv)(a),
Administrative Agent shall, if Administrative Agent and Company have
consented to the assignment evidenced thereby (in each case to the extent
such consent is required pursuant to subsection 10.1B(i)), (a) accept such
Assignment Agreement by executing a counterpart thereof as provided
therein (which acceptance shall evidence any required consent of
Administrative Agent to such assignment), (b) record the information
contained therein in the Register, and (c) give prompt
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notice thereof to Company. Administrative Agent shall maintain a copy of
each Assignment Agreement delivered to and accepted by it as provided in
this subsection 10.1B(ii).
C. Participations. The holder of any participation, other than an
Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
directly affecting (i) the extension of the scheduled final maturity date of any
Loan allocated to such participation or (ii) a reduction of the principal amount
of or the rate of interest payable on any Loan allocated to such participation
or a reduction of the fee payable in respect of any Letter of Credit allocated
to such participation or a reduction of any commitment fee in respect of any
Commitment allocated to such participation, and all amounts payable by Borrowers
hereunder (including amounts payable to such Lender pursuant to subsections
2.6D, 2.7 and 3.6) shall be determined as if such Lender had not sold such
participation. Borrowers and each Lender hereby acknowledge and agree that,
solely for purposes of subsections 10.4 and 10.5, (a) any participation will
give rise to a direct obligation of Company to the participant and (b) the
participant shall be considered to be a "Lender".
D. Assignments to Federal Reserve Banks and Fund Trustees. In addition to
the assignments and participations permitted under the foregoing provisions of
this subsection 10.1, any Lender may assign and pledge all or any portion of its
Loans, the other Obligations owed to such Lender, and its Notes to any Federal
Reserve Bank as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any operating circular issued by
such Federal Reserve Bank and with the consent of Company and Administrative
Agent any Lender which is an investment fund may pledge all or any portion of
its Notes or Loans to its trustee in support of its obligations to its trustee;
provided that (i) no Lender shall, as between Company and such Lender, be
relieved of any of its obligations hereunder as a result of any such assignment
and pledge and (ii) in no event shall such Federal Reserve Bank be considered to
be a "Lender" or be entitled to require the assigning Lender to take or omit to
take any action hereunder.
E. Information. Each Lender may furnish any information concerning Company
and its Subsidiaries in the possession of that Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject to subsection 10.18.
F. Representations of Lenders. Each Lender listed on the signature pages
hereof hereby represents and warrants (i) that it is an Eligible Assignee
described in clause (A) of the definition thereof; (ii) that it has experience
and expertise in the making of loans such as the Loans; and (iii) that it will
make its Loans for its own account in the ordinary course of its business and
without a view to distribution of such Loans within the meaning of the
Securities Act or the Exchange Act or other federal securities laws (it being
understood that, subject to the provisions of this subsection 10.1, the
disposition of
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such Loans or any interests therein shall at all times remain within its
exclusive control). Each Lender that becomes a party hereto pursuant to an
Assignment Agreement shall be deemed to agree that the representations and
warranties of such Lender contained in Section 2(c) of such Assignment Agreement
are incorporated herein by this reference.
10.2 Expenses.
Whether or not the transactions contemplated hereby shall be consummated,
Company agrees to pay promptly (i) all the actual and reasonable costs and
expenses of preparation of the Loan Documents and any consents, amendments,
waivers or other modifications thereto; (ii) all the costs of furnishing all
opinions by counsel for Company (including any opinions requested by Lenders as
to any legal matters arising hereunder) and of Company's performance of and
compliance with all agreements and conditions on its part to be performed or
complied with under this Agreement and the other Loan Documents including with
respect to confirming compliance with environmental, insurance and solvency
requirements; (iii) the reasonable fees, expenses and disbursements of counsel
to Administrative Agent (including allocated costs of internal counsel) in
connection with the negotiation, preparation, execution and administration of
the Loan Documents and any consents, amendments, waivers or other modifications
thereto and any other documents or matters requested by Company; (iv) all the
actual costs and reasonable expenses of creating and perfecting Liens in favor
of Collateral Agent on behalf of Lenders pursuant to any Collateral Document,
including filing fees, expenses and taxes, stamp or documentary taxes, search
fees and reasonable fees, expenses and disbursements of counsel to Collateral
Agent; (v) all the actual costs and reasonable expenses (including the
reasonable fees, expenses and disbursements of any environmental consultants
retained by Administrative Agent or its counsel) of obtaining and reviewing any
environmental audits or reports provided for on or before the Closing Date; (vi)
all the actual costs and reasonable expenses of the custody or preservation of
any of the Collateral; (vii) all other actual and reasonable costs and expenses
incurred by Syndication Agent, Documentation Agent and Administrative Agent in
connection with the syndication of the Commitments and the negotiation,
preparation and execution of the Loan Documents and any consents, amendments,
waivers or other modifications thereto and the transactions contemplated
thereby; and (viii) after the occurrence of an Event of Default, all costs and
expenses, including reasonable attorneys' fees and costs of settlement, incurred
by Administrative Agent, Collateral Agent and each Lender in enforcing any
Obligations of or in collecting any payments due from any Loan Party hereunder
or under the other Loan Documents by reason of such Event of Default (including
in connection with the sale of, collection from, or other realization upon any
of the Collateral or the enforcement of the Guaranties) or in connection with
any refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a "work-out" or pursuant to any insolvency or
bankruptcy proceedings.
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10.3 Indemnity.
In addition to the payment of expenses pursuant to subsection 10.2,
whether or not the transactions contemplated hereby shall be consummated,
Company agrees to defend (subject to Indemnitees' selection of counsel),
indemnify, pay and hold harmless Administrative Agent, Collateral Agent,
Syndication Agent, Documentation Agent, each Lead Manager, each Co-Agent and
each Lender, and the officers, directors, employees, trustees, partners, agents
and affiliates of Administrative Agent, Collateral Agent, Syndication Agent,
Documentation Agent, each Lead Manager, each Co-Agent and each Lender
(collectively called the "Indemnitees"), from and against any and all
Indemnified Liabilities (as hereinafter defined); provided that Company shall
not have any obligation to any Indemnitee hereunder with respect to any
Indemnified Liabilities to the extent such Indemnified Liabilities arise solely
from the gross negligence or willful misconduct of that Indemnitee as determined
by a final judgment of a court of competent jurisdiction.
As used herein, "Indemnified Liabilities" means, collectively, any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs, expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto, and any fees or expenses
incurred by Indemnitees in enforcing this indemnity), whether direct, indirect
or consequential and whether based on any federal, state or foreign laws,
statutes, rules or regulations (including securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of (i) this Agreement or the other Loan Documents or the Related
Agreements or the transactions contemplated hereby or thereby (including
Lenders' agreement to make the Loans hereunder or the use or intended use of the
proceeds thereof or the issuance of Letters of Credit hereunder or the use or
intended use of any thereof, or any enforcement of any of the Loan Documents
(including any sale of, collection from, or other realization upon any of the
Collateral or the enforcement of the Guaranties), (ii) the statements contained
in the commitment letter delivered by any Lender to Company with respect
thereto, or (iii) any Environmental Claim or any Hazardous Materials relating to
or arising from, directly or indirectly, any past or present activity,
operation, land ownership, or practice of Company or any of its Subsidiaries.
To the extent that the undertakings to defend, indemnify, pay and hold
harmless set forth in this subsection 10.3 may be unenforceable in whole or in
part because they are violative of any law or public policy, Company shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.
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10.4 Set-Off.
In addition to any rights now or hereafter granted under applicable law
and not by way of limitation of any such rights, upon the occurrence of any
Event of Default each Lender is hereby authorized by each Borrower at any time
or from time to time, without notice to such Borrower or to any other Person,
any such notice being hereby expressly waived, to set off and to appropriate and
to apply any and all deposits (general or special, including Indebtedness
evidenced by certificates of deposit, whether matured or unmatured, but not
including trust accounts) and any other Indebtedness at any time held or owing
by that Lender to or for the credit or the account of such Borrower against and
on account of any obligations and liabilities of such Borrower then due and
payable to that Lender under this Agreement, the Letters of Credit and
participations therein and the other Loan Documents, irrespective of whether or
not that Lender shall have made any demand for payment thereof.
10.5 Ratable Sharing.
Lenders hereby agree among themselves that if any of them shall, whether
by voluntary payment (other than a voluntary prepayment of Loans made and
applied in accordance with the terms of this Agreement), by realization upon
security, through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the Loan
Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and owing to that
Lender hereunder or under the other Loan Documents (collectively, the "Aggregate
Amounts Due" to such Lender) which is greater than the proportion received by
any other Lender in respect of the Aggregate Amounts Due to such other Lender,
then the Lender receiving such proportionately greater payment shall (i) notify
Administrative Agent and each other Lender of the receipt of such payment and
(ii) apply a portion of such payment to purchase participations (which it shall
be deemed to have purchased from each seller of a participation simultaneously
upon the receipt by such seller of its portion of such payment) in the Aggregate
Amounts Due to the other Lenders so that all such recoveries of Aggregate
Amounts Due shall be shared by all Lenders in proportion to the Aggregate
Amounts Due to them; provided that if all or part of such proportionately
greater payment received by such purchasing Lender is thereafter recovered from
such Lender upon the bankruptcy or reorganization of Company or otherwise, those
purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such purchasing Lender ratably to the extent
of such recovery, but without interest. Company expressly consents to the
foregoing arrangement and agrees that any holder of a participation so purchased
may exercise any and all rights of banker's lien, set-off or counterclaim with
respect to any and all monies owing by Company to that holder with respect
thereto as fully as if that holder were owed the amount of the participation
held by that holder.
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10.6 Amendments and Waivers.
A. No amendment, modification, termination or waiver of any provision of
the Loan Documents, or consent to any departure by any Borrower therefrom, shall
in any event be effective without the written concurrence of Requisite Lenders;
provided that no such amendment, modification, termination, waiver or consent
shall, without the consent of each Lender (with Obligations directly affected in
the case of the following clause (i)): (i) extend the scheduled final maturity
of any Loan or Note, or extend the stated expiration date of any Letter of
Credit beyond the Revolving Loan Commitment Termination Date, or reduce the rate
of interest on any Loan (other than any waiver of any increase in the interest
rate applicable to any Loan pursuant to subsection 2.2E) or any commitment fees
or letter of credit fees payable hereunder, or extend the time for payment of
any such interest or fees, or reduce the principal amount of any Loan or any
reimbursement obligation in respect of any Letter of Credit, (ii) amend, modify,
terminate or waive any provision of this subsection 10.6, (iii) reduce the
percentage specified in the definition of "Requisite Lenders" (it being
understood that, with the consent of Requisite Lenders, additional extensions of
credit pursuant to this Agreement may be included in the determination of
"Requisite Lenders" on substantially the same basis as the Term Loan
Commitments, the Term Loans, the Revolving Loan Commitments and the Revolving
Loans are included on the Closing Date) or (iv) consent to the assignment or
transfer by any Borrower of any of its rights and obligations under this
Agreement; provided, further that no such amendment, modification, termination
or waiver shall (1) increase the Commitments of any Lender over the amount
thereof then in effect without the consent of such Lender (it being understood
that no amendment, modification or waiver of any condition precedent, covenant,
Potential Event of Default or Event of Default shall constitute an increase in
the Commitment of any Lender, and that no increase in the available portion of
any Commitment of any Lender shall constitute an increase in such Commitment of
such Lender); (2) amend, modify, terminate or waive any provision of subsection
2.1A(v) or any other provision of this Agreement relating to the Swing Line Loan
Commitment or the Swing Line Loans without the consent of Swing Line Lender; (3)
so long as any Obligations of the applicable U.K. Borrower remain outstanding,
consent to the sale of the stock of all or substantially all of the assets of
such U.K. Borrower, or release Company from its guaranty of the Obligations of
such U.K. Borrower under the Company Guaranty, without the consent of the
Tranche A Lenders; (4) amend the definition of "Supermajority Class Lenders"
without the consent of the Supermajority Class Lenders of each Class, or release
all or substantially all of the Collateral or all or substantially all of the
Subsidiary Guarantors from the Subsidiary Guaranty except as expressly provided
in the Loan Documents, without the consent of the Supermajority Class Lenders of
each Class, (5) amend the definition of "Requisite Class Lenders" without the
consent of Requisite Class Lenders of each Class, or alter the required
application of any repayments or prepayments as between Classes pursuant to
subsection 2.4B(iv) without the consent of Requisite Class Lenders of each Class
which is being allocated a lesser repayment or prepayment as a result thereof
(although Requisite Lenders may waive, in whole or in part, any mandatory
prepayment so long as the
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application, as between Classes, of any portion of such prepayment which is
still required to be made is not altered); (6) without the consent of Requisite
Class Lenders of the respective Class, waive, reduce or postpone any scheduled
repayment set forth in subsection 2.4A(i), (ii) or (iii) with respect to the
applicable Term Loans of such affected Class; (7) amend, modify, terminate or
waive any obligation of Lenders relating to the purchase of participations in
Letters of Credit as provided in subsection 3.1C without the written concurrence
of Administrative Agent and of each Issuing Lender which has a Letter of Credit
then outstanding or which has not been reimbursed for a drawing under a Letter
of Credit issued it; or (8) amend, modify, terminate or waive any provision of
Section 9 as the same applies to Administrative Agent, or any other provision of
this Agreement as the same applies to the rights or obligations of
Administrative Agent, in each case without the consent of Administrative Agent.
B. Administrative Agent may, but shall have no obligation to, with the
concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of that Lender. Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was given. No
notice to or demand on any Borrower in any case shall entitle any Borrower to
any other or further notice or demand in similar or other circumstances. Any
amendment, modification, termination, waiver or consent effected in accordance
with this subsection 10.6 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by any Borrower, such Borrower.
10.7 Notices.
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of telefacsimile or telex, or three
Business Days after depositing it in the United States mail with postage prepaid
and properly addressed; provided that notices to either Agent shall not be
effective until received. For the purposes hereof, the address of each party
hereto shall be as set forth under such party's name on the signature pages
hereof or (i) as to Company and each Agent, such other address as shall be
designated by such Person in a written notice delivered to the other parties
hereto and (ii) as to each other party, such other address as shall be
designated by such party in a written notice delivered to Administrative Agent.
10.8 Survival of Representations, Warranties and Agreements.
A. All representations, warranties and agreements made herein shall
survive the execution and delivery of this Agreement and the making of the Loans
and the issuance of the Letters of Credit hereunder.
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B. Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of Borrowers set forth in subsections 2.6D, 2.7, 3.5A,
3.6, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth in subsections
9.2C, 9.4 and 10.5 shall survive the payment of the Loans, the cancellation or
expiration of the Letters of Credit and the reimbursement of any amounts drawn
thereunder, and the termination of this Agreement.
10.9 Failure or Indulgence Not Waiver; Remedies Cumulative.
No failure or delay on the part of any Agent or any Lender in the exercise
of any power, right or privilege hereunder or under any other Loan Document
shall impair such power, right or privilege or be construed to be a waiver of
any default or acquiescence therein, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof or
of any other power, right or privilege. All rights and remedies existing under
this Agreement and the other Loan Documents are cumulative to, and not exclusive
of, any rights or remedies otherwise available.
10.10 Marshalling; Payments Set Aside.
Neither Administrative Agent, nor Collateral Agent nor any Lender shall be
under any obligation to marshal any assets in favor of Company or any other
party or against or in payment of any or all of the Obligations. To the extent
that any Borrower makes a payment or payments to either Agent or Lenders (or to
either Agent for the benefit of Lenders), or either Agent or Lenders enforce any
security interests or exercise their rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies therefor
or related thereto, shall be revived and continued in full force and effect as
if such payment or payments had not been made or such enforcement or setoff had
not occurred.
10.11 Severability.
In case any provision in or obligation under this Agreement or the Notes
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
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10.12 Obligations Several; Independent Nature of Lenders' Rights.
The obligations of Lenders hereunder are several and no Lender shall be
responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and it shall not be necessary for any other
Lender to be joined as an additional party in any proceeding for such purpose.
10.13 Headings.
Section and subsection headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
10.14 Applicable Law.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES.
10.15 Successors and Assigns.
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders (it being understood that
Lenders' rights of assignment are subject to subsection 10.1). No Borrower's
rights or obligations hereunder or under the other Loan Documents nor any
interest therein may be assigned or delegated by such Borrower without the prior
written consent of all Lenders.
10.16 Consent to Jurisdiction and Service of Process.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY BORROWER ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS
THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY
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EXECUTING AND DELIVERING THIS AGREEMENT, EACH BORROWER, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN
ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO SUCH BORROWER AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SUBSECTION 10.7;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH BORROWER IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH
BORROWER IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.16 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST
EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402
OR OTHERWISE.
10.17 Waiver of Jury Trial.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY WAIVES ITS RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS AMONG THEM
RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER
RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver is intended to
be all-encompassing of any and all disputes that may be filed in any court and
that relate to the subject matter of this transaction, including contract
claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this waiver is a material
inducement to enter into a business relationship, that each has already relied
on
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<PAGE>
this waiver in entering into this Agreement, and that each will continue to rely
on this waiver in their related future dealings. Each party hereto further
warrants and represents that it has reviewed this waiver with its legal counsel
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 10.17 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
10.18 Confidentiality.
Each Lender shall hold all non-public information obtained pursuant to the
requirements of this Agreement which has been identified as confidential by
Company in accordance with such Lender's customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices, it being understood and agreed by each Borrower that in any
event a Lender may make disclosures to Affiliates of such Lender or disclosures
reasonably required by any bona fide assignee, transferee or participant in
connection with the contemplated assignment or transfer by such Lender of any
Loans or any participations therein or disclosures required or requested by any
governmental agency or representative thereof, or the National Association of
Insurance Commissioners (the "NAIC") or any other Person with the prior written
consent of Company and Administrative Agent in the exercise of their respective
sole discretion or pursuant to legal process; provided that, unless specifically
prohibited by applicable law or court order, each Lender shall notify Company of
any request by any governmental agency or representative thereof or the NAIC
(other than any such request in connection with any examination of the financial
condition of such Lender by such governmental agency or the NAIC) for disclosure
of any such non-public information prior to disclosure of such information; and
provided, further that in no event shall any Lender be obligated or required to
return any materials furnished by Company or any of its Subsidiaries.
10.19 Counterparts; Effectiveness.
This Agreement and any amendments, waivers, consents or supplements hereto
or in connection herewith may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically
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<PAGE>
attached to the same document. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto and receipt by
Company and Administrative Agent of written or telephonic notification of such
execution and authorization of delivery thereof.
10.20 Judgment Currency.
A. Currency Conversion Rate. If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due hereunder in any currency (the
"Original Currency") into another currency (the "Other Currency"), the parties
hereto agree, to the fullest extent permitted by law, that the rate of exchange
used shall be that at which in accordance with normal banking procedures
Administrative Agent could purchase the Original Currency with the Other
Currency on the Business Day preceding that on which final judgment is given.
B. Discharge of Judgment. The obligations of each Borrower in respect of
any sum due from it to Lenders hereunder shall, notwithstanding any judgment in
such Other Currency, be discharged only to the extent that, on the Business Day
following receipt by Administrative Agent of any sum adjudged to be so due in
the Other Currency, Administrative Agent may in accordance with normal banking
procedures purchase the Original Currency with the Other Currency; if the
Original Currency so purchased is less than the sum originally due to Lenders in
the Original Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify Lenders against such loss, and
if the amount of the Original Currency so purchased exceeds the sum originally
due to Lenders in the Original Currency, Lenders shall remit such excess to such
Borrower.
10.21 European Monetary Union.
It is hereby acknowledged that during the term of this Agreement the
United Kingdom may adopt a single European currency as its lawful currency in
place of Sterling as part of the anticipated European Economic and Monetary
Union. It is hereby acknowledged and agreed that "Sterling", as defined herein,
shall include any such successor currency and that conversion into such
successor currency shall be made at the official rate of conversion on the date
on which Sterling is so replaced, and that the denomination of the original
currency shall be retained hereunder for so long as it is legally permissible.
It is hereby further acknowledged and agreed that the provisions of this
Agreement relating to Sterling Loans shall remain in full force and effect upon
such conversion, and that neither the introduction of a single European
currency, the replacement of Sterling thereby, the fixing of the official rate
of conversion, nor any economic consequences resulting therefrom shall give rise
to any right to terminate, contest, cancel, modify or renegotiate the provisions
of this Agreement.
[Remainder of page intentionally left blank]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY:
AMPHENOL CORPORATION
By: /s/ Edward G. Jepsen
-------------------------------------
Name: Edward G. Jepsen
Title: Executive Vice President and
Chief Financial Officer
Notice Address:
358 Hall Avenue
Wallingford, Connecticut 06492
Attention: Treasurer
Facsimile: (203) 265-8628
S-1
<PAGE>
U.K. BORROWERS:
AMPHENOL HOLDING UK, LIMITED
By: /s/ Martin H. Loeffler
-------------------------------------
Name: Martin H. Loeffler
Title: Managing Director
AMPHENOL COMMERCIAL & INDUSTRIAL UK,
LIMITED
By: /s/ Martin H. Loeffler
-------------------------------------
Name: Martin H. Loeffler
Title: Managing Director
Notice Address for the U.K. Borrowers:
c/o Amphenol Corporation
358 Hall Avenue
Wallingford, Connecticut 06492
Attention: Treasurer
Facsimile: (203) 265-8628
S-2
<PAGE>
AGENTS AND LENDERS:
THE CHASE MANHATTAN BANK,
individually and as Syndication Agent
By: /s/ Peter Eckstein
-------------------------------------
Name: Peter Eckstein
Title: Vice President
Notice Address:
270 Park Avenue, 10th Floor
New York, New York 10017-2070
Attention: Stephanie Parker
Telephone: (212) 270-6532
Facsimile: (212) 270-1403
S-3
<PAGE>
THE BANK OF NEW YORK,
individually and as Documentation Agent
By: /s/ Nancy McEwen
-------------------------------------
Name: Nancy McEwen
Title: Vice President
Notice Address:
One Wall Street
New York, New York 10286
Attention: Zina Gregory
Telephone: 212-635-6720
Facsimile: 212-635-6426
S-4
<PAGE>
BANKERS TRUST COMPANY,
individually and as Administrative Agent
By: /s/ Mary Jo Jolly
-------------------------------------
Mary Jo Jolly
Assistant Vice President
Notice Address:
130 Liberty Plaza
14th Floor
New York, New York 10006
Attention: Ariana Boer
Telephone: (212) 250-7346
Facsimile: (212) 250-7351
with a copy to:
300 South Grand Avenue
41st Floor
Los Angeles, California 90071
Attention: Michael R. Duckworth
Telephone: (213) 620-8289
Facsimile: (213) 620-8484
S-5
<PAGE>
ALLIEDSIGNAL INC.
By: /s/ Frank X. Whitley
-------------------------------------
Name: Frank X. Whitley
Title: SVP - Shenkman Capital Management,
as Attorney-in-Fact
Notice Address:
461 5th Avenue
New York, New York 10017
Attention: Niall Rosenzweig
Telephone: (212) 867-9090
Facsimile: (212) 867-9106
S-6
<PAGE>
ALLSTATE INSURANCE COMPANY
By: /s/ Judith P. Greffin
-------------------------------------
Name: Judith P. Greffin
Title: Authorized Signatory
By: /s/ Jerry Zinkula
-------------------------------------
Name: Jerry Zinkula
Title: Authorized Signatory
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Judith P. Greffin
-------------------------------------
Name: Judith P. Greffin
Title: Authorized Signatory
By: /s/ Jerry Zinkula
-------------------------------------
Name: Jerry Zinkula
Title: Authorized Signatory
Notice Address:
3075 Sanders Road, STE G3A
Northbrook, Illinois 60062-7127
Attention: Daniel Leimbach
Telephone: (847) 402-9155
Facsimile: (847) 402-3092
S-7
<PAGE>
S-8
<PAGE>
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By: /s/ Peter Karl Harris
-------------------------------------
Name: Peter Karl Harris
Title: Vice President
By: /s/ William C. Maier
-------------------------------------
Name: William C. Maier
Title: VP - Group Manager
Notice Address:
645 5th Avenue
New York, New York 10022
Attention: Peter Harris
Telephone: (212) 872-5180
Facsimile: (212) 872-5045
S-9
<PAGE>
BANK OF AMERICA ILLINOIS
By: /s/ Eugene F. Martin
-------------------------------------
Name: Eugene F. Martin
Title: Vice President
Notice Address:
335 Madison Avenue
New York, New York 10017
Attention: Eugene Martin
Telephone: (212) 503-7512
Facsimile: (212) 503-7502
S-10
<PAGE>
BANKBOSTON, N.A.
By: /s/ C. Andrew Piculell
-------------------------------------
Name: C. Andrew Piculell
Title: Vice President
Notice Address:
100 Federal Street
Mail Stop 01-08-05
Boston, Massachusetts 02110
Attention: C. Andrew Piculell
Telephone: (617) 434-4060
Facsimile: (617) 434-4929
S-11
<PAGE>
THE BANK OF NOVA SCOTIA
By: /s/ John Hopmans
-------------------------------------
Name: John Hopmans
Title: Senior Relationship Manager
Notice Address:
One Liberty Plaza
New York, New York 10006
Attention: John Hopmans
Telephone: (212) 225-5009
Facsimile: (212) 225-5090
S-12
<PAGE>
THE BANK OF TOKYO - MITSUBISHI, LTD.
By: /s/ Nick Campbell
-------------------------------------
Name: Nick Campbell
Title: Attorney-in-Fact
Notice Address:
12th Floor
1251 Avenue of the Americas
New York, New York 10020
Attention: Nick Campbell
Telephone: (212) 782-4268
Facsimile: (212) 782-4981
S-13
<PAGE>
BANQUE PARIBAS
By: /s/ John J. McCormick, III
-------------------------------------
Name: John J. McCormick
Title: Vice President
By: /s/ Mary T. Finnegan
-------------------------------------
Name: Mary T. Finnegan
Title: Group Vice President
Notice Address:
787 Seventh Avenue
New York, New York 10019
Attention: John J. McCormick, III
Telephone: (212) 841-2382
Facsimile: (212) 841-2333
S-14
<PAGE>
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Tim Doyle
-------------------------------------
Name: Tim Doyle
Title: Authorized Signatory
Notice Address:
425 Lexington Avenue, 8th Floor
New York, New York 10017
Attention: Tim Doyle
Telephone: (212) 856-3650
Facsimile: (212) 856-3991
S-15
<PAGE>
CITICORP USA, INC.
By: /s/ Jeroen Fikke
-------------------------------------
Name: Jeroen Fikke
Title: Attorney-in-Fact
CITIBANK, N.A., LONDON
By: /s/ Jeroen Fikke
-------------------------------------
Name: Jeroen Fikke
Title: Attorney-in-Fact
Notice Address:
399 Park Avenue, 6th Floor/Zone 4
New York, New York 10043
Attention: George Dewey
Telephone: (212) 559-3043
Facsimile: (212) 758-6278
S-16
<PAGE>
CORESTATES BANK, N.A.
By: /s/ Mark S. Supple
-------------------------------------
Name: Mark S. Supple
Title: Vice President
Notice Address:
1339 Chestnut Street, FC# 1-8-4-16
Philadelphia, Pennsylvania 19107-3579
Attention: Mark S. Supple
Telephone: (215) 973-2562
Facsimile: (215) 973-6680
S-17
<PAGE>
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Attila Koc
-------------------------------------
Name: Attila Koc
Title: Vice President
Notice Address:
1301 Avenue of the Americas
New York, New York 10019
Attention: Michael Regan
Telephone: (212) 261-7286
Facsimile: (212) 459-3176
S-18
<PAGE>
CREDIT SUISSE FIRST BOSTON
By: /s/ Edward E. Barr
-------------------------------------
Name: Edward E. Barr
Title: Associate
By: /s/ Joel Glodowski
-------------------------------------
Name: Joel Glodowski
Title: Managing Director
Notice Address:
11 Madison Avenue
New York, New York 10010
Attention: Ed Barr
Telephone: (212) 325-9151
Facsimile: (212) 325-8309
S-19
<PAGE>
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Stephanie Rogers
-------------------------------------
Name: Stephanie Rogers
Title: Vice President
Notice Address:
Suite 4911
One World Trade Center
New York, New York 10048
Attention: Stephanie Rogers
Telephone: (212) 432-6648
Facsimile: (212) 432-8955
S-20
<PAGE>
PRIME INCOME TRUST
By: /s/ Rafael Scolari
-------------------------------------
Name: Rafael Scolari
Title: Vice President
Notice Address:
c/o Dean Witter Intercapital
2 World Trade Center, 72nd Floor
New York, New York 10048
Attention: Louis Pistecchia
Telephone: (212) 392-5845
Facsimile: (212) 392-5345
S-21
<PAGE>
DLJ CAPITAL FUNDING, INC.
By: /s/ Stephen P. Hickey
-------------------------------------
Name: Stephen P. Hickey
Title: Managing Director
Notice Address:
277 Park Avenue, 9th Floor
New York, New York 10172
Attention: Kevin King
Telephone: (212) 892-2403
Facsimile: (212) 892-5286
Fox Plaza, 30th Floor
2121 Avenue of the Stars,
Los Angeles, California 90067
Attention: Eric Swanson
Telephone: (310) 282-7447
Facsimile: (310) 282-6178
S-22
<PAGE>
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By: /s/ William E. Lambert
-------------------------------------
Name: William E. Lambert
Title: Assistant Vice President
By: /s/ Robert Grella
-------------------------------------
Name: Robert Grella
Title: Vice President
Notice Address:
75 Wall Street
New York, New York 10005
Attention: Robert Grella
Telephone: (212) 429-2252
Facsimile: (212) 429-2129
S-23
<PAGE>
FIRST UNION BANK OF NORTH CAROLINA
By: /s/ Jorge Gonzales
-------------------------------------
Name: Jorge Gonzales
Title: Senior Vice President
Notice Address:
301 South College Street, DC-5
Charlotte, North Carolina 28288
Attention: Jorge Gonzalez
Telephone: (704) 383-8461
Facsimile: (704) 374-3300
S-24
<PAGE>
FIRSTRUST BANK
By: /s/ Ed D'Ancona
-------------------------------------
Name: Ed D'Ancona
Title: Vice President
Notice Address:
1931 Cottman Avenue
Philadelphia, Pennsylvania 19111-3897
Attention: Kent Nelson
Telephone: (215) 728-8285
Facsimile: (215) 728-8767
S-25
<PAGE>
FLEET NATIONAL BANK
By: /s/ Eric Vander Mel
-------------------------------------
Name: Eric Vander Mel
Title: Vice President
Notice Address:
One Federal Street, MAOFDO3C
Boston, Massachusetts 02211
Attention: Eric Vander Mel
Telephone: (617) 346-4853
Facsimile: (617) 346-4806
S-26
<PAGE>
THE FUJI BANK, LIMITED
By: /s/ Teiji Teramoto
-------------------------------------
Name: Teiji Teramoto
Title: Vice President & Manager
Notice Address:
Two World Trade Center, 79th Floor
New York, New York 10048
Attention: Teiji Teramoto
Telephone: (212) 898-2061
Facsimile: (212) 912-0516
S-27
<PAGE>
GOLDMAN SACHS CREDIT PARTNERS L.P.
By: /s/ Robert O'Shea
-------------------------------------
Authorized Signatory
Notice Address:
85 Broad Street
New York, New York 10004
Attention: Tracy McCaffrey
Telephone: (212) 902-1040
Facsimile: (212) 357-4597
S-28
<PAGE>
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ Takuya Honjo
-------------------------------------
Name: Takuya Honjo
Title: Senior Vice President
Notice Address:
1251 Avenue of the Americas
New York, New York 10020-1104
Attention: Ken Takehisa
Telephone: (212) 282-3321
Facsimile: (212) 282-4490
S-29
<PAGE>
THE ING CAPITAL SENIOR SECURED HIGH
INCOME FUND, L.P.
By: ING CAPITAL ADVISORS, INC., as
Investment Advisor
By: /s/ Kathleen A. Lenarcic
-------------------------------------
Name: Kathleen A. Lenarcic
Title: Vice President and Portfolio
Manager
Notice Address:
333 South Grand Avenue, Suite 4250
Los Angeles, California 90071
Attention: Kathleen Lenarcic
Telephone: (213) 346-3971
Facsimile: (213) 346-3995
S-30
<PAGE>
KZH HOLDING CORPORATION
By: /s/ Robert Goodwin
-------------------------------------
Name: Robert Goodwin
Title: Authorized Agent
Notice Address:
c/o The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Robert Goodwin/Joseph Nerich
Telephone: (212) 946-7776
S-31
<PAGE>
KZH HOLDING CORPORATION II
By: /s/ Robert Goodwin
-------------------------------------
Name: Robert Goodwin
Title: Authorized Agent
Notice Address:
c/o The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Robert Goodwin/Joseph Nerich
Telephone: (212) 946-7776
S-32
<PAGE>
LEHMAN COMMERCIAL PAPER INC.
By: /s/ Dennis J. Dee
-------------------------------------
Name: Dennis J. Dee
Title: Authorized Signatory
Notice Address:
3 World Financial Center, 10th Floor
New York, New York 10285
Attention: Michele Swanson
Telephone: (212) 526-0330
Facsimile: (212) 528-0819
S-33
<PAGE>
LLOYDS BANK PLC
By: /s/ Michael J. Gilligan
-------------------------------------
Name: Michael J. Gilligan
Title: Vice President
By: /s/ Steve Attree
-------------------------------------
Name: Steve Attree
Title: Assistant Vice President
Notice Address:
199 Water Street
New York, New York 10038
Attention: Michael Gilligan
Telephone: (212) 607-4954
Facsimile: (212) 607-4999/5410
S-34
<PAGE>
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED
By: /s/ Shuichi Tajima
-------------------------------------
Name: Shuichi Tajima
Title: Deputy General Manager
Notice Address:
165 Broadway, 49th Floor
New York, New York 10006
Attention: Jay Shankar
Telephone: (212) 335-4525
Facsimile: (212) 608-2371
S-35
<PAGE>
MARINE MIDLAND BANK
By: /s/ John Lyons
-------------------------------------
Name: John Lyons
Title: Senior Vice President
Notice Address:
140 Broadway, 5th Floor
New York, New York 10005
Attention: Gina Sidorsky
Telephone: (212) 658-2750
Facsimile: (212) 658-2586
S-36
<PAGE>
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: /s/ Mary Ann McCarthy
-------------------------------------
Name: Mary Ann McCarthy
Title: Managing Director
Notice Address:
1295 State Street
Springfield, Massachusetts 01111
Attention: John Wheeler
Telephone: (413) 744-6228
Facsimile: (413) 744-6127
S-37
<PAGE>
S-38
<PAGE>
SENIOR HIGH INCOME PORTFOLIO, INC.
By: /s/ Gilles Marchand
-------------------------------------
Name: Gilles Marchand, CFA
Title: Authorized Signatory
Notice Address:
c/o Merrill Lynch Asset Management
800 Scudders Mill Road
Plainsboro, New Jersey 08536
Attention: Gil Marchand, CFA
Telephone: (609) 282-3102
Facsimile: (609) 282-2550
S-39
<PAGE>
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ James Dingler
-------------------------------------
Name: James Dingler
Title: Assistant Vice President
Notice Address:
334 Madison Avenue
Convent Station, New Jersey 07961-0633
Attention: James Dingler
Telephone: (201) 254-3206
Facsimile: (201) 254-3050
S-40
<PAGE>
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ Patricia Loret de Mola
-------------------------------------
Name: Patricia Loret de Mola
Title: Senior Vice President
Notice Address:
520 Madison Avenue, 26th Floor
New York, New York 10022
Attention: Beatrice Kossodo
Telephone: (212) 891-8363
Facsimile: (212) 644-6825
S-41
<PAGE>
NATIONAL WESTMINSTER BANK PLC
By: /s/ W. Wakefield Smith
-------------------------------------
Name: W. Wakefield Smith
Title: Vice President
Notice Address:
175 Water Street
New York, New York 10038
Attention: W. Wakefield Smith
Telephone: (212) 602-8969
Facsimile: (212) 602-4319
S-42
<PAGE>
NATIONSBANK, N.A.
By: /s/ Kerry Shute
-------------------------------------
Name: Kerry Shute
Title: Vice President
Notice Address:
100 North Tryon Street
NC 1-007-07-01
Charlotte, North Carolina 28255
Attention: Caryn Chittenden
Telephone: (704) 388-5559
Facsimile: (704) 388-0922
S-43
<PAGE>
NEW YORK LIFE INSURANCE COMPANY
By: /s/ Andrew H. Steuerman
-------------------------------------
Name: Andrew H. Steuerman
Title: Investment Manager
Notice Address:
Room 206
51 Madison Avenue
New York, New York 10010
Attention: Andrew Steuerman
Telephone: (212) 576-576-5649
Facsimile: (212) 447-4122
S-44
<PAGE>
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Jerome R. Baier
-------------------------------------
Name: Jerome R. Baier
Title: Vice President
Notice Address:
720 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Richard A. Strait
Telephone: (414) 299-7350
Facsimile: (414) 299-7124
S-45
<PAGE>
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (A UNIT OF THE CHASE
MANHATTAN BANK)
By: /s/ Joyce DeLucca
-------------------------------------
Name: Joyce DeLucca
Title: Managing Director
Notice Address:
380 Madison Avenue, 12th Floor
New York, New York 10017
Attention: Joyce C. DeLucca
Telephone: (212) 622-3104
Facsimile: (212) 622-3797
S-46
<PAGE>
PARIBAS CAPITAL FUNDING LLC
By: /s/ Eric Green
-------------------------------------
Name: Eric Green
Title: Director
Notice Address:
787 Seventh Avenue, 32nd Floor
New York, New York 10019
Attention: Michael Weinberg
Telephone: (212) 841-2544
Facsimile: (212) 841-2144
S-47
<PAGE>
PPM AMERICA, INC., as Attorney in Fact, on
behalf of JACKSON NATIONAL LIFE
INSURANCE COMPANY
By: /s/ Michael DiRe
-------------------------------------
Name: Michael DiRe
Title: Managing Director
Notice Address:
c/o PPM America, Inc.
Suite 1200
225 West Wacker Drive
Chicago, Illinois 60606-1228
Attention: Michael DiRe
Telephone: (312) 634-2509
Facsimile: (312) 634-0054
S-48
<PAGE>
ROYAL BANK OF CANADA
By: /s/ Sheryl L. Greenberg
------------------------------------------------
Name: Sheryl L. Greenberg
Title: Senior Manager
Notice Address:
A. For all matters except those covered by B:
Royal Bank of Canada
Grand Cayman (North America No.1) Branch
c/o New York Branch
Financial Square, 23rd Floor
32 Old Slip
New York, New York 10005-3531
Attention: Manager, Credit Administration
Telephone: (212) 428-6204
Facsimile: (212) 428-2372
with a copy to:
Financial Square, 24th Floor
32 Old Slip
New York, New York 10005-3531
Attention: Sheryl L. Greenberg, Senior
Manager
Telephone: (212) 428-6476
Facsimile: (212) 428-6489
B. For matters related to Sterling Loans to U.K.
Borrowers:
Royal Bank of Canada, London Branch
71 Queen Victoria Street
London EC4V 4DE, England
Attention: Sarah Hood
Telephone: (44-171) 653-4066
Facsimile: (44-171) 332-0036
with a copy to:
Financial Square, 24th Floor
32 Old Slip
New York, New York 10005-3531
Attention: Sheryl L. Greenberg
Senior Manager
Telephone: (212) 428-6476
Facsimile: (212) 428-6459
S-49
<PAGE>
THE SAKURA BANK, LTD.
By: /s/ Yoshikazu Nagura
-------------------------------------
Name: Yoshikazu Nagura
Title: Vice President
Notice Address:
277 Park Avenue, 45th floor
New York, New York 10172
Attention: Atsushi Horikawa
Telephone: (212) 756-6769
Facsimile: (212) 888-7651
S-50
<PAGE>
THE SANWA BANK, LIMITED
By: /s/ Christian Kambour
-------------------------------------
Name: Christian Kambour
Title: Vice President
Notice Address:
55 East 52nd Street
New York, New York 10055
Attention: Christian Kambour
Telephone: (212) 339-6232
Facsimile: (212) 754-1304
S-51
<PAGE>
SOCIETE GENERALE
By: /s/ John M. Stack
-------------------------------------
Name: John M. Stack
Title: Vice President
Notice Address:
1221 Avenue of the Americas
New York, New York 10020
Attention: John Stack
Telephone: (212) 278-6402
Facsimile: (212) 278-6178
S-52
<PAGE>
SOUTHERN PACIFIC THRIFT & LOAN
ASSOCIATION
By: /s/ Chris Kelleher
-------------------------------------
Name: Chris Kelleher
Title: Vice President
Notice Address:
12300 Wilshire Boulevard
Los Angeles, Califonia 90025
Attention: Chris Kelleher
Telephone: (310) 442-3351
Facsimile: (310) 207-4067
S-53
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THE SUMITOMO BANK, LIMITED, NEW YORK
BRANCH
By: /s/ John C. Kissinger
-------------------------------------
Name: John C. Kissinger
Title: Joint General Manager
Notice Address:
277 Park Avenue
New York, New York 10172
Attention: Gregory Aptman
Telephone: (212) 224-4131
Facsimile: (212) 224-5188
S-54
<PAGE>
TCW ASSET MANAGEMENT COMPANY, as
attorney-in-fact for INTEGON LIFE INSURANCE
COMPANY
By: /s/ Justin Driscoll
-------------------------------------
Name: Justin Driscoll
Title: SVP
Notice Address:
200 Park Avenue, Suite 2200
New York, New York 10166-0228
Attention: Justin Driscoll
Telephone: (212) 297-4000
Facsimile: (212) 297-4159
S-55
<PAGE>
TCW ASSET MANAGEMENT COMPANY, as
attorney-in-fact for UNITED COMPANIES LIFE
INSURANCE COMPANY
By: /s/ Justin Driscoll
-------------------------------------
Name: Justin Driscoll
Title: SVP
Notice Address:
200 Park Avenue, Suite 2200
New York, New York 10166-0228
Attention: Justin Driscoll
Telephone: (212) 297-4000
Facsimile: (212) 297-4159
S-56
<PAGE>
CRESCENT/MACH I PARTNERS, L.P.
By: TCW ASSET MANAGEMENT COMPANY,
Its Investment Manager
By: /s/ Justin Driscoll
------------------------------
Name: Justin Driscoll
Title: SVP
Notice Address:
200 Park Avenue, Suite 2200
New York, New York 10166-0228
Attention: Justin Driscoll
Telephone: (212) 297-4000
Facsimile: (212) 297-4159
S-57
<PAGE>
THE TRAVELERS INSURANCE COMPANY
By: /s/ John W. Petchler
-------------------------------------
Name: John W. Petchler
Title: Second Vice President
Notice Address:
1 Tower Square, 9-PB
Hartford, Connecticut 06183-2030
Attention: John Petchler
Telephone: (860) 277-5346
Facsimile: (860) 954-5243
S-58
<PAGE>
VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By: /s/ Jeffrey W. Maillet
-------------------------------------
Name: Jeffrey W. Maillet
Title: Senior Vice President-
Portfolio Manager
Notice Address:
One Parkview Plaza
Oakbrook Terrace, IL 60181
Attention: Jeffrey Maillet
Telephone: (630) 684-6438
Facsimile: (630) 684-6740/6741
S-59
<PAGE>
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ R. Craig Welch
-------------------------------------
Name: R. Craig Welch
Title: First Vice President
Notice Address:
520 Madison Avenue
8th Floor
New York, New York 10022
Attention: John McCloskey
Telephone: (212) 418-2217
S-60
<PAGE>
MEDICAL LIABILITY MUTUAL INSURANCE
COMPANY
By: /s/ K. Wayne Kahle
------------------------------------------------
K. Wayne Kahle
Vice President
Notice Address:
Chancellor Senior Secured Management, Inc.
1166 Avenue of the Americas
27th Floor
New York, New York 10036
Attention: Stephen M. Alfieri
Telephone: (212) 278-9563
Facsimile: (212) 278-9619
S-61
<PAGE>
GOLDMAN SACHS INTERNATIONAL BANK
By: /s/ Robert O'Shea
-------------------------------------
Authorized Signatory
Notice Address:
Peterborough Court
133 Fleet Street
London EC4A 2BB, England
Attention:
Telephone:
Facsimile:
S-62
<PAGE>
FLOATING RATE PORTFOLIO
By: CHANCELLOR LGT SENIOR SECURED
MANAGEMENT INC., as Attorney-in-Fact
By: /s/ Gregory L. Smith
---------------------------------
Name: Gregory L. Smith
Title: Vice President
Notice Address:
GT Global Floating Rate Fund, Inc.
c/o Chancellor LGT Senior Secured
Management, Inc.
1166 Avenue of the Americas
New York, New York 10036
Attention: Susan McKofke
Facsimile: (212) 278-9847
S-63
<PAGE>
DEEPROCK & COMPANY
By: EATON VANCE MANAGEMENT, as
Investment Advisor
By: /s/ Payson F. Swaffield
-------------------------------
Name: Payson F. Swaffield
Title: Vice President
Notice Address:
Eaton Vance Management
6th Floor
24 Federal Street
Boston, MA 02110
Attention: Juliana Riley
Facsimile: (617) 695-9594
S-64
<PAGE>
EXECUTION
================================================================================
CREDIT AGREEMENT
DATED AS OF MAY 19, 1997
AMONG
AMPHENOL CORPORATION,
as Borrower,
AMPHENOL HOLDING UK, LIMITED
and
AMPHENOL COMMERCIAL & INDUSTRIAL UK, LIMITED
as U.K. Borrowers,
THE LENDERS LISTED HEREIN,
as Lenders,
THE CHASE MANHATTAN BANK,
as Syndication Agent,
THE BANK OF NEW YORK,
as Documentation Agent,
and
BANKERS TRUST COMPANY,
as Administrative Agent and Collateral Agent.
================================================================================
<PAGE>
AMPHENOL CORPORATION
CREDIT AGREEMENT
TABLE OF CONTENTS
Page
SECTION 1.
DEFINITIONS............................. 2
1.1 Certain Defined Terms.............................................. 2
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations
Under Agreement.................................................... 43
1.3 Other Definitional Provisions and Rules of Construction............ 43
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS.............. 44
2.1 Commitments; Making of Loans; the Register; Notes.................. 44
2.2 Interest on the Loans.............................................. 52
2.3 Fees............................................................... 57
2.4 Repayments, Prepayments and Reductions in Revolving Loan
Commitments; General Provisions Regarding Payments; Application
of Proceeds of Collateral and Payments Under the Guaranties........ 58
2.5 Use of Proceeds.................................................... 67
2.6 Special Provisions Governing LIBOR Loans........................... 67
2.7 Increased Costs; Capital Adequacy.................................. 70
2.8 Notice of Certain Costs; Obligation of Lenders and Issuing
Lenders to Mitigate................................................ 75
2.9 Defaulting Lenders................................................. 76
2.10 Removal or Replacement of a Lender................................. 78
SECTION 3.
LETTERS OF CREDIT.......................... 79
3.1 Issuance of Letters of Credit and Lenders' Purchase of
Participations Therein............................................. 79
3.2 Letter of Credit Fees.............................................. 83
3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit. 84
3.4 Obligations Absolute............................................... 87
3.5 Indemnification; Nature of Issuing Lenders' Duties................. 88
3.6 Increased Costs and Taxes Relating to Letters of Credit............ 89
(i)
<PAGE>
Page
----
SECTION 4.
CONDITIONS TO LOANS AND LETTERS OF CREDIT.............. 90
4.1 Conditions to Initial Loans........................................ 90
4.2 Conditions to All Loans............................................ 95
4.3 Conditions to Letters of Credit.................................... 96
SECTION 5.
COMPANY'S REPRESENTATIONS AND WARRANTIES............... 96
5.1 Organization, Powers, Qualification, Good Standing, Business
and Subsidiaries................................................... 97
5.2 Authorization of Borrowing, etc.................................... 97
5.3 Financial Condition................................................ 98
5.4 No Material Adverse Effect......................................... 98
5.5 Title to Properties; Liens......................................... 98
5.6 Litigation; Adverse Facts.......................................... 99
5.7 Payment of Taxes................................................... 99
5.8 Governmental Regulation............................................ 99
5.9 Employee Benefit Plans.............................................100
5.10 Environmental Protection...........................................100
5.11 Disclosure.........................................................101
SECTION 6.
AFFIRMATIVE COVENANTS........................101
6.1 Financial Statements and Other Reports.............................102
6.2 Corporate Existence, etc...........................................106
6.3 Payment of Taxes and Claims; Tax Consolidation.....................106
6.4 Maintenance of Properties; Insurance...............................106
6.5 Inspection Rights..................................................107
6.6 Compliance with Laws, etc..........................................107
6.7 Execution of Subsidiary Guaranty by Future Domestic Subsidiaries;
Pledge of Stock of Future Direct Subsidiaries; Ratable Credit
Support; Certain Closing Date Transactions; Certain Post-Closing
Actions............................................................107
6.8 Transactions with Affiliates.......................................109
6.9 Conduct of Business................................................109
6.10 Fiscal Year........................................................109
(ii)
<PAGE>
Page
----
SECTION 7.
NEGATIVE COVENANTS..........................110
7.1 Indebtedness.......................................................110
7.2 Liens and Related Matters..........................................112
7.3 Investments; Joint Ventures........................................113
7.4 Guarantee Obligations..............................................114
7.5 Restricted Junior Payments.........................................115
7.6 Financial Covenants................................................116
7.7 Restriction on Certain Fundamental Changes; Asset Sales
and Acquisitions...................................................118
7.8 Consolidated Capital Expenditures..................................120
7.9 Amendments of Documents Relating to Subordinated Indebtedness......120
SECTION 8.
EVENTS OF DEFAULT..........................120
8.1 Failure to Make Payments When Due..................................120
8.2 Default in Other Agreements........................................121
8.3 Breach of Certain Covenants........................................121
8.4 Breach of Warranty.................................................121
8.5 Other Defaults Under Loan Documents................................121
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc...............122
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.................122
8.8 Judgments and Attachments..........................................122
8.9 ERISA..............................................................123
8.10 Change of Control..................................................123
8.11 Material Invalidity of Guaranties; Material Failure of Security;
Repudiation of Obligations.........................................123
SECTION 9.
AGENTS................................125
9.1 Appointment........................................................125
9.2 Powers and Duties; General Immunity................................125
9.3 Representations and Warranties; No Responsibility For
Appraisal of Creditworthiness......................................127
9.4 Right to Indemnity.................................................127
9.5 Successor Agents and Swing Line Lender.............................127
9.6 Collateral Documents and Guaranties................................128
(iii)
<PAGE>
Page
----
SECTION 10.
MISCELLANEOUS............................129
10.1 Assignments and Participations in Loans and Letters of Credit......129
10.2 Expenses...........................................................133
10.3 Indemnity..........................................................134
10.4 Set-Off............................................................135
10.5 Ratable Sharing....................................................135
10.6 Amendments and Waivers.............................................136
10.7 Notices............................................................137
10.8 Survival of Representations, Warranties and Agreements.............137
10.9 Failure or Indulgence Not Waiver; Remedies Cumulative..............138
10.10 Marshalling; Payments Set Aside....................................138
10.11 Severability.......................................................138
10.12 Obligations Several; Independent Nature of Lenders' Rights.........139
10.13 Headings...........................................................139
10.14 Applicable Law.....................................................139
10.15 Successors and Assigns.............................................139
10.16 Consent to Jurisdiction and Service of Process.....................139
10.17 Waiver of Jury Trial...............................................140
10.18 Confidentiality....................................................141
10.19 Counterparts; Effectiveness........................................141
10.20 Judgment Currency..................................................142
10.21 European Monetary Union............................................142
Signature pages..........................................................S-1
(iv)
<PAGE>
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NOTICE OF REQUEST FOR ISSUANCE OF LETTER
OF CREDIT
IV-A FORM OF TRANCHE A TERM NOTE (DOLLAR LOANS)
IV-B FORM OF TRANCHE A TERM NOTE (STERLING LOANS)
V FORM OF TRANCHE B TERM NOTE
VI FORM OF TRANCHE C TERM NOTE
VII FORM OF REVOLVING NOTE
VIII FORM OF SWING LINE NOTE
IX FORM OF COMPLIANCE CERTIFICATE
X FORM OF OPINIONS OF COUNSEL TO THE LOAN PARTIES
XI FORM OF OPINION OF O'MELVENY & MYERS
XII FORM OF ASSIGNMENT AGREEMENT
XIII FORM OF CERTIFICATE RE NON-BANK STATUS
XIV FORM OF FINANCIAL CONDITION CERTIFICATE
XV FORM OF MASTER PLEDGE AGREEMENT
XVI FORM OF SUBSIDIARY GUARANTY
XVII FORM OF COMPANY GUARANTY
XVIII FORM OF INTERCREDITOR AGREEMENT
(v)
<PAGE>
SCHEDULES
1.1 MANDATORY LIQUID ASSET COSTS FOR STERLING LOANS
2.1 LENDERS' COMMITMENTS, LENDING OFFICES AND PRO RATA
SHARES
4.1C MANAGEMENT INVESTORS
5.1 SUBSIDIARIES OF COMPANY
5.6 LITIGATION
7.1 CERTAIN EXISTING INDEBTEDNESS
7.3 CERTAIN EXISTING INVESTMENTS
7.4 CERTAIN EXISTING GUARANTEE OBLIGATIONS
(vi)
<PAGE>
Exhibit 99.5
Conformed Copy
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of May 19, 1997, among NXS
Acquisition Corp., a Delaware corporation, KKR 1996 Fund L.P., a Delaware
limited partnership ("KKR 1996"), NXS Associates, L.P., a Delaware limited
partnership ("Associates"), KKR Partners II, L.P., a Delaware limited
partnership ("KKR Partners II" and, collectively with KKR 1996 and Associates,
the "Common Stock Partnerships"), and NXS I, L.L.C., a Delaware limited
liability company ("NXS LLC").
RECITALS
Pursuant to an Agreement and Plan of Merger, dated as of January 23,
1997 (the "Merger Agreement"), between Amphenol Corporation ("Amphenol") and the
Company (as defined below), the Company will be merged with and into Amphenol on
May 19, 1997 (the "Merger"). As a result of the Merger, each outstanding share
of common stock, par value $.01 per share (the "Common Stock") of the Company,
all 100 of which shares are owned collectively by the Common Stock Partnerships,
will be converted into (i) a number of shares of Class A common stock, par value
$.001 per share, of Amphenol equal to the quotient of (A) 13,116,955 divided by
(B) the number of shares of Common Stock outstanding immediately prior to the
Effective Time of the Merger. At the Effective Time of the Merger, Amphenol
shall succeed by merger to all of the rights and obligations of the Company,
including those set forth herein, as well as to all of the other property and
assets of the Company.
Pursuant to an agreement between and among NXS LLC and certain
stockholders of Amphenol, NXS LLC may acquire shares of Amphenol Common Stock.
Pursuant to a Stock Sale and Equity Contribution Agreement, dated as
of May 19, 1997 (the "Equity Contribution Agreement"), among the Company and the
Common Stock Partnerships, the Common Stock Partnerships made equity
contributions of $341,039,822 in the aggregate to the Company. Upon the merger
of the Company with and into Amphenol, such $341,039,822 will be received by
Amphenol as an equity contribution by the Common Stock Partnerships.
AGREEMENT
1. Definitions. As used in this Agreement, the following capitalized
terms shall have the following respective meanings:
<PAGE>
"Common Stock": the common stock, par value $.01 per share, of NXS
Acquisition Corp. and its successors, including, without limitation, the
common stock of Amphenol into which the Common Stock may be converted by
Merger.
"Common or Common Equivalent Registrable Securities": Registrable
Securities which are (i) Common Stock or (ii) securities that are
convertible into or exchangeable or exercisable for Common Stock.
"Company": NXS Acquisition Corp. and its successors, including,
without limitation, Amphenol Corporation as successor by Merger.
"Demand Party": (a) KKR 1996, (b) Associates, (c) KKR Partners II,
(d) NXS LLC or (e) any other Holder or Holders, including, without
limitation, any present or future general or limited partner of either
Common Stock Partnership, or any general or limited partner of any general
or limited partner thereof, that may become an assignee of such Common
Stock Partnership's rights hereunder; provided that to be a Demand Party
under this clause (e), a Holder or Holders must either individually or in
aggregate with all other Holders with whom it is acting together to demand
registration own at least 1% of the total number of Registrable
Securities.
"Exchange Act": The Securities Exchange Act of 1934, as amended, or
any similar federal statute then in effect, and a reference to a
particular section thereof shall be deemed to include a reference to the
comparable section, if any, of any such similar federal statute.
"Holder": Each Common Stock Partnership, NXS LLC, and any other
holder of Registrable Securities (including any direct or indirect
transferees of a Common Stock Partnership or NXS LLC) who agrees in
writing to be bound by the provisions of this Agreement.
"Person": Any individual, partnership, joint venture, corporation,
trust, unincorporated organization or government or any department or
agency thereof.
"Registrable Securities": Any Common Stock acquired by a Common
Stock Partnership or by NXS LLC from the Company or any affiliate of the
Company (including, without limitation, from any person defined as a
"Stockholder" pursuant to the Stockholders Agreement dated as of January
23, 1997 by and among NXS LLC and the other parties named therein),
whether as a result of the Merger or upon the conversion of any
convertible security or otherwise, and any Common Stock or convertible
security which may be issued or distributed in respect thereof by way of
stock dividend or stock split or other distribution, recapitalization or
reclassification. As to any particular Registrable Securities, once
issued, such Registrable Securities shall cease to be Registrable
Securities when (i) a registration statement with respect to the sale by
the Holder of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in
accordance with such registration statement, (ii) such securities shall
have been distributed to the public
-2-
<PAGE>
pursuant to Rule 144 (or any successor provision) under the Securities
Act, (iii) such securities shall have been otherwise transferred, new
certificates for such securities not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent
disposition of such securities shall not require registration or
qualification of such securities under the Securities Act or any state
securities or blue sky law then in force, or (iv) such securities shall
have ceased to be outstanding.
"Registration Expenses": Any and all expenses incident to
performance of or compliance with this Agreement, including, without
limitation, (i) all SEC and stock exchange or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing fees
(including, if applicable, the fees and expenses of any "qualified
independent underwriter," as such term is defined in Schedule E to the
By-laws of the NASD, and of its counsel), (ii) all fees and expenses of
complying with securities or blue sky laws (including fees and
disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities), (iii) all printing,
messenger and delivery expenses, (iv) all fees and expenses incurred in
connection with the listing of the Registrable Securities on any
securities exchange pursuant to clause (viii) of Section 4 and all rating
agency fees, (v) the fees and disbursements of counsel for the Company and
of its independent public accountants, including the expenses of any
special audits and/or "cold comfort" letters required by or incident to
such performance and compliance, (vi) the reasonable fees and
disbursements of counsel selected pursuant to Section 7 hereof by the
Holders of the Registrable Securities being registered to represent such
Holders in connection with each such registration, (vii) any fees and
disbursements of underwriters customarily paid by the issuers or sellers
of securities, including liability insurance if the Company so desires or
if the underwriters so require, and the reasonable fees and expenses of
any special experts retained in connection with the requested
registration, but excluding underwriting discounts and commissions and
transfer taxes, if any, and (viii) other reasonable out-of-pocket expenses
of Holders (provided that such expenses shall not include expenses of
counsel other than those provided for in clause (vi) above).
"Securities Act": The Securities Act of 1933, as amended, or any
similar federal statute then in effect, and a reference to a particular
section thereof shall be deemed to include a reference to the comparable
section, if any, of any such similar federal statute.
"SEC": The Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act or the Exchange Act.
2. Incidental Registrations. (a) Right to Include Common or Common
Equivalent Registrable Securities. If the Company at any time after the date
hereof proposes to register its Common Stock (or any security which is
convertible into or exchangeable or exercisable for Common Stock) under the
Securities Act (other than a registration on Form S-4 or S-8, or any successor
or other forms promulgated for similar purposes), whether or not for sale for
its own account, in a manner which would permit registration of Common or Common
Equivalent Registrable Securities for sale to the public under the Securities
Act, it
-3-
<PAGE>
will, at each such time, give prompt written notice to all Holders of Common or
Common Equivalent Registrable Securities of its intention to do so and of such
Holders' rights under this Section 2. Upon the written request of any such
Holder made within 15 days after the receipt of any such notice (which request
shall specify the Common or Common Equivalent Registrable Securities intended to
be disposed of by such Holder), the Company will use its best efforts to effect
the registration under the Securities Act of all Common or Common Equivalent
Registrable Securities which the Company has been so requested to register by
the Holders thereof, to the extent requisite to permit the disposition of the
Common or Common Equivalent Registrable Securities so to be registered; provided
that (i) if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to proceed with the proposed registration of the
securities to be sold by it, the Company may, at its election, give written
notice of such determination to each Holder of Common or Common Equivalent
Registrable Securities and, thereupon, shall be relieved of its obligation to
register any Common or Common Equivalent Registrable Securities in connection
with such registration (but not from its obligation to pay the Registration
Expenses in connection therewith), and (ii) if such registration involves an
underwritten offering, all Holders of Common or Common Equivalent Registrable
Securities requesting to be included in the Company's registration must sell
their Common or Common Equivalent Registrable Securities to the underwriters
selected by the Company on the same terms and conditions as apply to the
Company, with such differences, including any with respect to indemnification
and liability insurance, as may be customary or appropriate in combined primary
and secondary offerings. If a registration requested pursuant to this Section
2(a) involves an underwritten public offering, any Holder of Common or Common
Equivalent Registrable Securities requesting to be included in such registration
may elect, in writing prior to the effective date of the registration statement
filed in connection with such registration, not to register such securities in
connection with such registration. Nothing in this Section 2(a) shall operate to
limit the right of Holder to (i) request the registration of Common Stock
issuable upon conversion or exercise of convertible securities held by such
Holder notwithstanding the fact that at the time of request such Holder holds
only convertible securities or (ii) request the registration at one time of both
Common Stock and securities convertible into Common Stock.
(b) Expenses. The Company will pay all Registration Expenses in
connection with each registration of Common or Common Equivalent Registrable
Securities requested pursuant to this Section 2.
(c) Priority in Incidental Registrations. If a registration pursuant
to this Section 2 involves an underwritten offering and the managing underwriter
advises the Company in writing that, in its opinion, the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering, so as to be likely to have an adverse effect on the
price, timing or distribution of the Securities offered in such offering as
contemplated by the Company (other than the Common or Common Equivalent
Registrable Securities), then the Company will include in such registration (i)
first, 100% of the securities the Company proposes to sell and (ii) second, to
the extent of the number of Common or Common Equivalent Registrable Securities
requested to be included in such
-4-
<PAGE>
registration which, in the opinion of such managing underwriter, can be sold
without having the adverse effect referred to above, the number of Common or
Common Equivalent Registrable Securities which the Holders have requested to be
included in such registration, such amount to be allocated pro rata among all
requesting Holders on the basis of the relative number of shares of Common or
Common Equivalent Registrable Securities then held by each such Holder (provided
that any shares thereby allocated to any such Holder that exceed such Holder's
request will be reallocated among the remaining requesting Holders in like
manner).
3. Registration on Request. (a) Request by the Demand Party. At any
time, upon the written request of the Demand Party requesting that the Company
effect the registration under the Securities Act of all or part of such Demand
Party's Registrable Securities and specifying the amount and intended method of
disposition thereof, the Company will promptly give written notice of such
requested registration to all other Holders of such Registrable Securities, and
thereupon will, as expeditiously as possible, use its best efforts to effect the
registration under the Securities Act of:
(i) such Registrable Securities (including, if such request relates
to a security which is convertible into shares of Common Stock, the shares
of Common Stock issuable upon such conversion) which the Company has been
so requested to register by the Demand Party; and
(ii) all other Registrable Securities of the same class or series as
are to be registered at the request of a Demand Party and which the
Company has been requested to register by any other Holder thereof by
written request given to the Company within 15 days after the giving of
such written notice by the Company (which request shall specify the amount
and intended method of disposition of such Registrable Securities),
all to the extent necessary to permit the disposition (in accordance with the
intended method thereof as aforesaid) of the Registrable Securities so to be
registered; provided, that with respect to any Demand Party other than a Common
Stock Partnership or NXS LLC, the Company shall not be obligated to effect any
registration of Registrable Securities under this Section 3(a) unless such
Demand Party requests that the Company register at least 1% of the total number
of Registrable Securities; and provided, further, that, unless Holders of a
majority of the shares of Registrable Securities held by Holders consent thereto
in writing, the Company shall not be obligated to file a registration statement
relating to any registration request under this Section 3(a) (x) within a period
of nine months after the effective date of any other registration statement
relating to any registration request under this Section 3(a) which was not
effected on Form S-3 (or any successor or similar short-form registration
statement) or relating to any registration effected under Section 2, or (y) if
with respect thereto the managing underwriter, the SEC, the Securities Act or
the rules and regulations thereunder, or the form on which the registration
statement is to be filed, would require the conduct of an audit other than the
regular audit conducted by the Company at the end of its fiscal year, in which
case the filing may be delayed until the completion of such regular audit
(unless the Holders of the Registrable Securities to be registered agree to pay
the expenses of the Company in connection with such an audit other than the
regular audit). Nothing in this
-5-
<PAGE>
Section 3 shall operate to limit the right of a Holder to (i) request the
registration of Common Stock issuable upon conversion or exercise of convertible
securities held by such Holder notwithstanding the fact that at the time of
request such Holder holds only convertible securities or (ii) request the
registration at one time of both Common Stock and securities convertible into
Common Stock.
(b) Registration Statement Form. If any registration requested
pursuant to this Section 3 which is proposed by the Company to be effected by
the filing of a registration statement on Form S-3 (or any successor or similar
short-form registration statement) shall be in connection with an underwritten
public offering, and if the managing underwriter shall advise the Company in
writing that, in its opinion, the use of another form of registration statement
is of material importance to the success of such proposed offering, then such
registration shall be effected on such other form.
(c) Expenses. The Company will pay all Registration Expenses in
connection with the first ten (10) registrations of each class or series of
Registrable Securities pursuant to this Section 3 upon the written request of
any of the Holders, provided that, for purposes hereof, a request to register
Common Stock into which a convertible security is convertible in conjunction
with a registration of such convertible security shall be deemed to be one
request for registration of a class or series of Registrable Securities. All
expenses for any subsequent registrations of Registrable Securities pursuant to
this Section 3 shall be paid pro rata by the Company and all other Persons
(including the Holders) participating in such registration on the basis of the
relative number of shares of Common Stock of each such person whose Registrable
Securities are included in such registration.
(d) Effective Registration Statement. A registration requested
pursuant to this Section 3 will not be deemed to have been effected unless it
has become effective and all of the Registrable Securities registered thereunder
have been sold; provided that if, within 180 days after it has become effective,
the offering of Registrable Securities pursuant to such registration is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court, such registration will be deemed
not to have been effected.
(e) Selection of Underwriters. If a requested registration pursuant
to this Section 3 involves an underwritten offering, the Holders of a majority
of the shares of Registrable Securities which are held by Holders and which the
Company has been requested to register shall have the right to select the
investment banker or bankers and managers to administer the offering; provided,
however, that such investment banker or bankers and managers shall be reasonably
satisfactory to the Company.
(f) Priority in Requested Registrations. If a requested registration
pursuant to this Section 3 involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the number of
securities requested to be included in such registration (including securities
of the Company which are not Registrable Securities) exceeds the number which
can be sold in such offering, the Company will include in such registration only
the Registrable Securities requested to be included in such registration. In
-6-
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the event that the number of Registrable Securities requested to be included in
such registration exceeds the number which, in the opinion of such managing
underwriter, can be sold, the number of such Registrable Securities to be
included in such registration shall be allocated pro rata among all requesting
Holders on the basis of the relative number of shares of Registrable Securities
then held by each such Holder (provided that any shares thereby allocated to any
such Holder that exceed such Holder's request shall be reallocated among the
remaining requesting Holders in like manner). In the event that the number of
Registrable Securities requested to be included in such registration is less
than the number which, in the opinion of the managing underwriter, can be sold,
the Company may include in such registration the securities the Company proposes
to sell up to the number of securities that, in the opinion of the underwriter,
can be sold.
(g) Additional Rights. If the Company at any time grants to any
other holders of Common Stock any rights to request the Company to effect the
registration under the Securities Act of any such shares of Common Stock on
terms more favorable to such holders than the terms set forth in this Section 3,
the terms of this Section 3 shall be deemed amended or supplemented to the
extent necessary to provide the Holders such more favorable rights and benefits.
4. Registration Procedures. If and whenever the Company is required
to use its best efforts to effect or cause the registration of any Registrable
Securities under the Securities Act as provided in this Agreement, the Company
will, as expeditiously as possible:
(i) prepare and, in any event within 120 days after the end of the
period within which a request for registration may be given to the
Company, file with the SEC a registration statement with respect to such
Registrable Securities and use its best efforts to cause such registration
statement to become effective, provided, however, that the Company may
discontinue any registration of its securities which is being effected
pursuant to Section 2 at any time prior to the effective date of the
registration statement relating thereto;
(ii) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective for a period not in excess of 270 days and to comply with the
provisions of the Securities Act, the Exchange Act and the rules and
regulations of the SEC thereunder with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement; provided that
before filing a registration statement or prospectus, or any amendments or
supplements thereto, the Company will furnish to counsel selected pursuant
to Section 7 hereof by the Holders of the Registrable Securities covered
by such registration statement to represent such Holders, copies of all
documents proposed to be filed, which documents will be subject to the
review of such counsel;
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(iii) furnish to each seller of such Registrable Securities such
number of copies of such registration statement and of each amendment and
supplement thereto (in each case including all exhibits filed therewith,
including any documents incorporated by reference), such number of copies
of the prospectus included in such registration statement (including each
preliminary prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such
seller may reasonably request in order to facilitate the disposition of
the Registrable Securities by such seller;
(iv) use its best efforts to register or qualify such Registrable
Securities covered by such registration in such jurisdictions as each
seller shall reasonably request, and do any and all other acts and things
which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller, except that the Company shall not for any
such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction where, but for the requirements of this
clause (iv), it would not be obligated to be so qualified, to subject
itself to taxation in any such jurisdiction or to consent to general
service of process in any such jurisdiction;
(v) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the disposition of such
Registrable Securities;
(vi) notify each seller of any such Registrable Securities covered
by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act within the
appropriate period mentioned in clause (ii) of this Section 4, of the
Company's becoming aware that the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing, and at the request of any such seller,
prepare and furnish to such seller a reasonable number of copies of an
amended or supplemental prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing;
(vii) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable (but not more than eighteen
months) after the effective date of the registration statement, an
earnings statement which shall satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations promulgated thereunder;
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(viii) (A) if such Registrable Securities are Common Stock
(including Common Stock issuable upon conversion of a convertible
security), use its best efforts to list such Registrable Securities on any
securities exchange on which the Common Stock is then listed if such
Registrable Securities are not already so listed and if such listing is
then permitted under the rules of such exchange; (B) if such Registrable
Securities are convertible securities, upon the reasonable request of
sellers of a majority of shares of such Registrable Securities, use its
best efforts to list the convertible securities and, if requested, the
Common Stock underlying the convertible securities, notwithstanding that
at the time of request such sellers hold only convertible securities, on
any securities exchange so requested, if such Registrable Securities are
not already so listed, and if such listing is then permitted under the
rules of such exchange; (C) and use its best efforts to provide a transfer
agent and registrar for such Registrable Securities covered by such
registration statement not later than the effective date of such
registration statement;
(ix) enter into such customary agreements (including an underwriting
agreement in customary form), which may include indemnification provisions
in favor of underwriters and other persons in addition to, or in
substitution for the provisions of Section 5 hereof, and take such other
actions as sellers of a majority of shares of such Registrable Securities
or the underwriters, if any, reasonably requested in order to expedite or
facilitate the disposition of such Registrable Securities;
(x) obtain a "cold comfort" letter or letters from the Company's
independent public accounts in customary form and covering matters of the
type customarily covered by "cold comfort" letters as the seller or
sellers of a majority of shares of such Registrable Securities shall
reasonably request (provided that Registrable Securities constitute at
least 25% of the securities covered by such registration statement);
(xi) make available for inspection by any seller of such Registrable
Securities covered by such registration statement, by any underwriter
participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent
retained by any such seller or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and properties
of the Company, and cause all of the Company's officers, directors and
employees to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(xii) notify counsel (selected pursuant to Section 7 hereof) for the
Holders of Registrable Securities included in such registration statement
and the managing underwriter or agent, immediately, and confirm the notice
in writing (i) when the registration statement, or any post-effective
amendment to the registration statement, shall have become effective, or
any supplement to the prospectus or any amendment prospectus shall have
been filed, (ii) of the receipt of any comments from the SEC, (iii) of any
request of the SEC to amend the registration statement or amend or
supplement the prospectus or for additional information, and (iv) of the
issuance by the SEC of any stop order suspending the effectiveness of the
registration statement or of
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any order preventing or suspending the use of any preliminary prospectus,
or of the suspension of the qualification of the registration statement
for offering or sale in any jurisdiction, or of the institution or
threatening of any proceedings for any of such purposes;
(xiii) make every reasonable effort to prevent the issuance of any
stop order suspending the effectiveness of the registration statement or
of any order preventing or suspending the use of any preliminary
prospectus and, if any such order is issued, to obtain the withdrawal of
any such order at the earliest possible moment;
(xiv) if requested by the managing underwriter or agent or any
Holder of Registrable Securities covered by the registration statement,
promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or agent or such
Holder reasonably requests to be included therein, including, without
limitation, with respect to the number of Registrable Securities being
sold by such Holder to such underwriter or agent, the purchase price being
paid therefor by such underwriter or agent and with respect to any other
terms of the underwritten offering of the Registrable Securities to be
sold in such offering; and make all required filings of such prospectus
supplement or post-effective amendment as soon as practicable after being
notified of the matters incorporated in such prospectus supplement or
post-effective amendment;
(xv) cooperate with the Holders of Registrable Securities covered by
the registration statement and the managing underwriter or agent, if any,
to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing securities to be sold under
the registration statement, and enable such securities to be in such
denominations and registered in such names as the managing underwriter or
agent, if any, or such Holders may request;
(xvi) obtain for delivery to the Holders of Registrable Securities
being registered and to the underwriter or agent an opinion or opinions
from counsel for the Company in customary form and in form, substance and
scope reasonably satisfactory to such Holders, underwriters or agents and
their counsel; and
(xvii) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the NASD.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company with such
information regarding such seller and pertinent to the disclosure requirements
relating to the registration and the distribution of such securities as the
Company may from time to time reasonably request in writing.
Each Holder of Registrable Securities agrees that, upon receipt of
any notice from the Company of the happening of any event of the kind described
in clause (vi) of this
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Section 4, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by clause (vi) of this Section 4, and, if so
directed by the Company, such Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company shall
give any such notice, the period mentioned in clause (ii) of this Section 4
shall be extended by the number of days during the period from and including the
date of the giving of such notice pursuant to clause (vi) of this Section 4 and
including the date when each seller of Registrable Securities covered by such
registration statement shall have received the copies of the supplemented or
amended prospectus contemplated by clause (vi) of this Section 4.
5. Indemnification. (a) Indemnification by the Company. In the event
of any registration of any securities of the Company under the Securities Act
pursuant to Section 2 or 3, the Company will, and it hereby does, indemnify and
hold harmless, to the extent permitted by law, the seller of any Registrable
Securities covered by such registration statement, each affiliate of such seller
and their respective directors and officers or general and limited partners or
members or managing members (including any director, officer, affiliate,
employee, agent and controlling Person of any of the foregoing), each other
Person who participates as an underwriter in the offering or sale of such
securities and each other Person, if any, who controls such seller or any such
underwriter within the meaning of the Securities Act (collectively, the
"Indemnified Parties"), against any and all losses, claims, damages or
liabilities, joint or several, and expenses (including reasonable attorney's
fees and reasonable expenses of investigation) to which such Indemnified Party
may become subject under the Securities Act, common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof, whether or not such Indemnified Party is a party thereto) arise
out of or are based upon (a) any untrue statement or alleged untrue statement of
any material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary, final or
summary prospectus contained therein, or any amendment or supplement thereto, or
(b) any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein (in the case of
a prospectus, in light of the circumstances under which they were made) not
misleading, and the Company will reimburse such Indemnified Party for any legal
or any other expenses reasonably incurred by it in connection with investigating
or defending against any such loss, claim, liability, action or proceeding;
provided that the Company shall not be liable to any Indemnified Party in any
such case to the extent that any such loss, claim, damage, liability (or action
or proceeding in respect thereof) or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or amendment or supplement thereto or in any
such preliminary, final or summary prospectus in reliance upon and in conformity
with written information furnished to the Company through an instrument duly
executed by such seller specifically stating that it is for use in the
preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such seller or any
Indemnified Party and shall survive the transfer of such securities by such
seller.
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(b) Indemnification by the Seller. The Company may require, as a
condition to including any Registrable Securities in any registration statement
filed in accordance with Section 4 herein, that the Company shall have received
an undertaking reasonably satisfactory to it from the prospective seller of such
Registrable Securities or any underwriter to indemnify and hold harmless (in the
same manner and to the same extent as set forth in subdivision (a) of this
Section 5) the Company and all other prospective sellers with respect to any
untrue statement or alleged untrue statement in or omission or alleged omission
from such registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement, if such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company through
an instrument duly executed by such seller or underwriter specifically stating
that it is for use in the preparation of such registration statement,
preliminary, final or summary prospectus or amendment or supplement, or a
document incorporated by reference into any of the foregoing. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of the Company or any of the prospective sellers, or any of their
respective affiliates, directors, officers or controlling Persons and shall
survive the transfer of such securities by such seller. In no event shall the
liability of any selling Holder of Registrable Securities hereunder be greater
in amount than the dollar amount of the proceeds received by such Holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) Notices of Claims, Etc. Promptly after receipt by an Indemnified
Party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 5, such Indemnified Party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; provided that the failure of the
Indemnified Party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of this
Section 5, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an Indemnified Party, unless in such Indemnified Party's reasonable
judgment a conflict of interest between such Indemnified Party and indemnifying
parties may exist in respect of such claim, the indemnifying party will be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such Indemnified Party, and after notice from
the indemnifying party to such Indemnified Party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party will consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof, the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect to such claim or litigation.
(d) Contribution. If the indemnification provided for in this
Section 5 from the indemnifying party is unavailable to an Indemnified Party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to herein, then the indemnifying party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable
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by such Indemnified Party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and Indemnified Parties in connection
with the actions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and Indemnified Parties shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or Indemnified Parties, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party under this Section
5(d) as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
(e) Other Indemnification. Indemnification similar to that specified
in the preceding subdivisions of this Section 5 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities with
respect to any required registration or other qualification of securities under
any federal or state law or regulation or governmental authority other than the
Securities Act.
(f) Non-Exclusivity. The obligations of the parties under this
Section 5 shall be in addition to any liability which any party may otherwise
have to any other party.
6. Rule 144. The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any Holder of
Registrable Securities, make publicly available such information), and it will
take such further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell shares of Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (ii) any
similar rule or regulation hereafter adopted by the SEC. Upon the request of any
Holder of Registrable Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
Notwithstanding anything contained in this Section 6, the Company may
de-register under Section 12 of the Exchange Act if it then is permitted to do
so pursuant to the Exchange Act and the rules and regulations thereunder and, in
such circumstances, shall not be required hereby to file any reports which may
be necessary in order for Rule 144 or any similar rule or regulation to be
available.
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7. Selection of Counsel. In connection with any registration of
Registrable securities pursuant to Sections 2 and 3 hereof, the Holders of a
majority of the Registrable Securities covered by any such registration may
select one counsel to represent all Holders of Registrable Securities covered by
such registration; provided, however, that in the event that the counsel
selected as provided above is also acting as counsel to the Company in
connection with such registration, the remaining Holders shall be entitled to
select one additional counsel to represent all such remaining Holders.
8. Miscellaneous. (a) Other Investors. The Company may enter into
agreements with other holders and purchasers of Common Stock who are then
employees of the Company (or its successor) or any of its subsidiaries, making
them parties hereto (and thereby giving them all, or a portion, of the rights,
preferences and privileges of an original party hereto) with respect to
additional shares of Common Stock (the "Supplemental Agreements"); provided,
however, that pursuant to any such Supplemental Agreement, such holder or
purchaser expressly agrees to be bound by all of the terms, conditions and
obligations of this Agreement as if such holder or purchaser were an original
party hereto. All shares of Common Stock issued or issuable pursuant to such
Supplemental Agreements shall be deemed to be Registrable Securities.
(b) Holdback Agreement. If any such registration shall be in
connection with an underwritten public offering, each Holder of Registrable
Securities agrees not to effect any public sale or distribution, including any
sale pursuant to Rule 144 under the Securities Act, of any equity securities of
the Company, or of any security convertible into or exchangeable or exercisable
for any equity security of the Company (in each case, other than as part of such
underwritten public offering), within 7 days before or such period not to exceed
60 days as the underwriting agreement may require (or such lesser period as the
managing underwriters may permit) after the effective date of such registration
(except as part of such registration), and the Company hereby also so agrees and
agrees to cause each other holder of any equity security, or of any security
convertible into or exchangeable or exercisable for any equity security, of the
Company purchased from the Company (at any time other than in a public offering)
to so agree. This Section 8(b) is in addition to, and shall not be deemed to be
in limitation of, the obligations which any party to a Management Stockholder's
Agreement with Amphenol may have under Section 2(e) thereof.
(c) Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the Holders of
a majority of the Registrable Securities then outstanding; provided, however,
that no amendment, waiver or consent to the departure from the terms and
provisions of this Agreement that is adverse to either Common Stock Partnership,
NXS LLC or any of their respective successors and assigns shall be effective as
against any such Person for so long as such Person holds any Registrable
Securities unless consented to in writing by such Person. Each Holder of any
Registrable Securities at the time or thereafter outstanding shall be bound by
any consent authorized by this Section 8(c), whether or not such Registrable
Securities shall have been marked to indicate such consent.
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(d) Successors, Assigns and Transferees. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the parties hereto other than the Company shall also be for the
benefit of and enforceable by any subsequent Holder of any Registrable
Securities, subject to the provisions contained herein. Without limitation to
the foregoing, in the event that either Common Stock Partnership or NXS LLC
distributes or otherwise transfers any shares of the Registrable Securities to
any of its present or future general or limited partners, the Company hereby
acknowledges that the registration rights granted pursuant to this Agreement
shall be transferred to such partner or partners on a pro rata basis, and that
at or after the time of any such distribution or transfer, any such partner or
group of partners may designate a Person to act on its behalf in delivering any
notices or making any requests hereunder.
(e) Notices. All notices and other communications provided for
hereunder shall be in writing and shall be sent by first class mail, telex,
telecopier or hand delivery:
(i) (A) if to the Company prior to the Merger, to:
NXS Acquisition Corp.
2800 Sand Hill Road
Suite 200
Menlo Park, California 94025
Attention: Michael Michelson
(B) if to the Company following the Merger, to:
Amphenol Corporation
358 Hall Avenue
Wallingford, Connecticut 06492
Attention: General Counsel
(ii) if to any Common Stock Partnership, to:
c/o KKR 1996 Fund L.P.
2800 Sand Hill Road
Suite 200
Menlo Park, CA 94025
Attention: Michael Michelson
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Charles I. Cogut, Esq
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<PAGE>
(iii) if to NXS LLC, to:
NXS I, L.L.C.
2800 Sand Hill Road
Suite 200
Menlo Park, CA 94025
Attention: Michael Michelson
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Charles I. Cogut, Esq
(iv) if to any other holder of Registrable Securities, to the
address of such other holder as shown in the stock record book of the
Company, or to such other address as any of the above shall have
designated in writing to all of the other above.
All such notices and communications shall be deemed to have been
given or made (1) when delivered by hand, (2) five business days after being
deposited in the mail, postage prepaid, (3) when telexed answer-back received or
(4) when telecopied, receipt acknowledged.
(f) Descriptive Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
(g) Severability. In the event that any one or more of the
provisions, paragraphs, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the remaining provisions, paragraphs,
words, clauses, phrases or sentences hereof shall not be in any way impaired, it
being intended that all rights, powers and privileges of the parties hereto
shall be enforceable to the fullest extent permitted by law.
(h) Counterparts. This Agreement may be executed in counterparts,
and by different parties on separate counterparts, each of which shall be deemed
an original, but all such counterparts shall together constitute one and the
same instrument.
(i) Governing Law; Submission to Jurisdiction. This Agreement shall
be governed by and construed and enforced in accordance with the laws of the
State of New York applicable to contracts made and to be performed therein. The
parties to this Agreement hereby agree to submit to the jurisdiction of the
courts of the State of New York, the courts
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of the United States of America for the Southern District of New York, and
appellate courts from any thereof in any action or proceeding arising out of or
relating to this Agreement.
(j) Specific Performance. The parties hereto acknowledge and agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. Accordingly, it is agreed that they shall be entitled
to an injunction or injunctions to prevent breaches of the provision of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of competent jurisdiction in the United States or any state thereof, in
addition to any other remedy to which they may be entitled at law or in equity.
(k) Limited Liability of Partners. Notwithstanding any other
provision of this Agreement, neither the general partner nor the limited
partners, nor any future general or limited partner of any of the Common Stock
Partnerships, nor any member or managing member of NXS LLC shall have any
personal liability for performance of any obligation of such Common Stock
Partnership or NXS LLC under this Agreement.
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IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be duly executed on its behalf as of the
date first written above.
NXS ACQUISITION CORP.
By: Michael W. Michelson
----------------------------------------
Title: President
KKR 1996 FUND L.P.
By: KKR Associates 1996 L.P.,
its General Partner
By: KKR 1996 GP LLC,
its General Partner
By: Michael W. Michelson
-----------------------------------
General Partner
NXS ASSOCIATES, L.P.
By: KKR Associates (NXS) L.P.,
its General Partner
By: KKR-NXS L.L.C.,
its General Partner
By: Michael W. Michelson
-----------------------------------
Member
KKR PARTNERS II, L.P.
By: KKR Associates,
its General Partner
By: Michael W. Michelson
-----------------------------------
General Partner
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<PAGE>
NXS I, L.L.C.
By: KKR 1996 Fund L.P.,
its Member,
By: KKR Associates 1996 L.P.
its General Partner
By: KKR 1996 GP LLC,
its General Partner
By: Michael W. Michelson
-----------------------------------
General Partner
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ACKNOWLEDGEMENT
The undersigned authorized officer of Amphenol Corporation is aware of this
Registration Rights Agreement and acknowledges that Amphenol Corporation will be
bound by the terms hereof as successor to NXS Acquisition Corp. by merger.
AMPHENOL CORPORATION
By Edward G. Jepsen
---------------------------------
Name: Edward G. Jepsen
Title: Executive Vice President and
Chief Financial Officer
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