<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1997
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ________________to _________________
Commission File Number 1-10879
AMPHENOL CORPORATION
(Exact name of Registrant as specified in its Charter)
Delaware 22-2785165
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
358 Hall Avenue, Wallingford, Connecticut 06492
203-265-8900
(Address, including zip code, and telephone
number, including area code, of Registrant's
principal executive offices)
Indicate by check mark whether the Registrant (1) has filed reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the Registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
___ ___
As of July 1, 1997, the total number of shares outstanding of Class A Common
Stock was 17,516,955.
<PAGE>
AMPHENOL CORPORATION
Index to Quarterly Report
on Form 10-Q
Page
____
Part I Financial Information
Item 1. Financial Statements:
Condensed Consolidated Balance Sheet
June 30, 1997 and December 31, 1996 3
Condensed Consolidated Statement of Income
Three and six months ended June 30, 1997 and 1996 5
Condensed Consolidated Statement of Cash Flow
Six months ended June 30, 1997 and 1996 6
Notes to Condensed Consolidated Financial
Statements 7
Item 2. Management's Discussion and Analysis of
Results of Operations and Financial Condition 10
Part II Other Information
Item 1. Legal Proceedings 13
Item 2. Changes in Securities 13
Item 3. Defaults upon Senior Securities 14
Item 4. Submission of Matters to a Vote
of Security-Holders 14
Item 5. Other Information 14
Item 6. Exhibits and Reports on Form 8-K 14
Signatures 18
<PAGE>
Part I. Financial Information
Item 1. Financial Statements
AMPHENOL CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEET
(dollars in thousands)
June 30, December 31,
1997 1996
------------ ------------
(Unaudited)
A S S E T S
Current Assets:
Cash and short-term cash investments......... $ 10,065 $ 3,984
Accounts receivable, less allowance
for doubtful accounts of $2,014
and $1,868, respectively................... 82,709 64,904
Inventories.................................. 163,507 153,283
Prepaid expenses and other assets............ 13,418 11,611
-------- --------
Total current assets........................... 269,699 233,782
-------- --------
Land and depreciable assets, less
accumulated depreciation of
$164,124 and $163,110, respectively.......... 101,683 102,075
Deferred debt issuance costs................... 38,675 3,717
Excess of cost over fair value of net
assets acquired.............................. 344,892 346,583
Other assets................................... 9,942 24,505
-------- --------
$764,891 $710,662
________ ________
See accompanying notes to condensed
consolidated financial statements.
<PAGE>
AMPHENOL CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEET
(dollars in thousands)
June 30, December 31,
1997 1996
----------- ------------
(Unaudited)
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Accounts payable.............................. $ 63,011 $ 49,484
Accrued interest.............................. 8,790 2,481
Other accrued expenses........................ 52,875 37,194
Current portion of long-term debt............. 276 7,759
-------- --------
Total current liabilities....................... 124,952 96,918
-------- --------
Long-term debt.................................. 961,532 219,484
Accrued pension and post employment
benefit obligations........................... 10,318 15,016
Deferred taxes and other liabilities............ 21,150 18,696
Shareholders' Equity:
Common stock.................................. 20 47
Additional paid-in capital.................... (511,668) 265,425
Accumulated earnings.......................... 172,060 151,634
Cumulative valuation adjustments.............. (13,473) (3,887)
Treasury stock, at cost....................... - (52,671)
-------- --------
Total shareholders' equity...................... (353,061) 360,548
-------- --------
$764,891 $710,662
________ ________
See accompanying notes to condensed
consolidated financial statements.
<PAGE>
AMPHENOL CORPORATION
CONDENSED CONSOLIDATED STATEMENT OF INCOME
(Unaudited)
(dollars in thousands, except per share data)
<TABLE>
<CAPTION>
Three months ended Six months ended
June 30, June 30,
--------------------- ---------------------
1997 1996 1997 1996
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Net sales....................................... $226,996 $198,921 $438,769 $393,743
Costs and expenses:
Cost of sales, excluding depreciation
and amortization............................. 146,463 126,878 283,985 250,806
Depreciation and amortization expense......... 5,055 4,431 9,920 8,905
Selling, general and administrative expense... 31,973 29,553 62,440 58,252
Amortization of goodwill...................... 2,829 2,712 5,659 5,424
-------- -------- -------- --------
Operating income................................ 40,676 35,347 76,765 70,356
Interest expense................................ (14,249) (6,091) (20,671) (12,143)
Expenses relating to Merger
and Recapitalization (Note 4)................. (2,500) - (2,500) -
Other income (expense), net..................... 2,901 (903) 1,684 (1,627)
-------- -------- -------- --------
Income before income taxes
and extraordinary item........................ 26,828 28,353 55,278 56,586
Provision for income taxes...................... 11,054 10,945 22,007 22,238
-------- -------- -------- --------
Net income before
extraordinary item............................ 15,774 17,408 33,271 34,348
Extraordinary item:
Loss on early extinguishment
of debt, net of income
taxes (Note 4)............................... (12,845) - (12,845) -
-------- -------- -------- --------
Net income...................................... $ 2,929 $ 17,408 $ 20,426 $ 34,348
________ ________ ________ ________
Net income per share:
Income before extraordinary item............... $.50 $.37 $.87 $.73
Extraordinary charge........................... (.41) - (.34) -
---- ---- ---- ----
Net income..................................... $.09 $.37 $.53 $.73
____ ____ ____ ____
Average common and common
equivalent shares outstanding................. 31,866,577 47,328,447 38,257,794 47,324,492
__________ __________ __________ __________
</TABLE>
See accompanying notes to condensed
consolidated financial statements.
<PAGE>
AMPHENOL CORPORATION
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOW
(Unaudited)
(dollars in thousands)
Six Months Ended
June 30,
---------------------
1997 1996
-------- --------
Net income....................................... $ 20,426 $ 34,348
Adjustments for cash from operations:
Depreciation and amortization.................. 15,579 14,329
Amortization of deferred debt issuance costs... 798 346
Net loss on early extinguishment of debt....... 12,845 -
Expenses relating to the Merger and Recapitalization 2,500 -
Gain on sale of marketable securities.......... (3,917) -
Net change in non-cash components of
working capital............................... 2,022 (31,497)
-------- --------
Cash provided from operations.................... 50,253 17,526
-------- --------
Cash flow from investing activities:
Capital additions, net......................... (10,246) (10,636)
Proceeds from the sale of marketable securities 7,351 -
-------- --------
Cash flow used by investing activities........... (2,895) (10,636)
-------- --------
Cash flow from financing activities:
Net change in borrowings under revolving
credit facilities.......................... (23,824) 2,018
Repurchase of senior notes and subordinated debt (211,153) -
Payment of fees and other expenses related to
Merger and Recapitalization.................. (48,851) -
Borrowings under New Credit Facility........... 750,000 -
Decrease in borrowings under New Credit Facility (40,000) -
Proceeds from the issuance of senior notes..... 240,000 -
Purchase of Amphenol Common stock.............. (1,048,490) -
Equity proceeds related to Merger.............. 341,041 -
-------- --------
Cash flow from (used by) financing activities.... (41,277) 2,018
-------- --------
Net change in cash and short-term
cash investments............................... 6,081 8,908
Cash and short-term cash investments
balance, beginning of period................... 3,984 12,028
-------- --------
Cash and short-term cash investments
balance, end of period......................... $ 10,065 $ 20,936
________ ________
Cash paid during the year for:
Interest paid $13,751 $11,809
Income taxes paid, net of refunds 9,960 31,034
See accompanying notes to condensed
consolidated financial statements.
<PAGE>
AMPHENOL CORPORATION
NOTES TO CONDENSED CONSOLIDATED
FINANCIAL STATEMENTS
(dollars in thousands, except per share data)
Note 1 - Principles of Consolidation and Interim Financial Statements
- ---------------------------------------------------------------------
The condensed consolidated balance sheet as of June 30, 1997 and December
31, 1996 and the related condensed consolidated statements of income for the
three and six months ended June 30, 1997 and 1996 and of cash flow for the six
months ended June 30, 1997 and 1996 include the accounts of the Company and its
subsidiaries. The interim financial statements included herein are unaudited.
In the opinion of management all adjustments, consisting only of normal
recurring adjustments, necessary for a fair presentation of such interim
financial statements have been included. The results of operations for the
three and six months ended June 30, 1997 are not necessarily indicative of the
results to be expected for the full year. These financial statements should be
read in conjunction with the financial statements and notes included in the
Company's 1996 Annual Report on Form 10-K/A.
Note 2 - Inventories
- --------------------
Inventories consist of:
June 30, December 31,
1997 1996
--------- ------------
(Unaudited)
Raw materials and supplies......... $ 21,443 $ 21,648
Work in process.................... 98,984 92,771
Finished goods..................... 43,080 38,864
-------- --------
$163,507 $153,283
________ ________
Note 3 - Commitments and Contingencies
- --------------------------------------
In the course of pursuing its normal business activities, the Company is
involved in various legal proceedings and claims. Management does not expect
that amounts, if any, which may be required to be paid by reason of such
proceedings or claims will have a material effect on the Company's financial
position or results of operations.
Subsequent to the acquisition of Amphenol from Allied Signal Corporation
("Allied") in 1987, Amphenol and Allied have been named jointly and severally
liable as potentially responsible parties in relation to several environmental
cleanup sites. Amphenol and Allied have jointly consented to perform certain
investigations and remedial and monitoring activities at two sites and they
have been jointly ordered to perform work at another site. The responsibility
for costs incurred relating to these sites is apportioned between Amphenol and
Allied based on an agreement entered into in connection with the acquisition.
<PAGE>
For sites covered by this agreement, to the extent that conditions or
circumstances occurred or existed at the time of or prior to the acquisition,
the first $13,000 of costs are borne by Amphenol and have been incurred as of
December 31, 1996. Allied is obligated to pay 80% of the excess over $13,000
and 100% of the excess over $30,000. Management does not believe that the costs
associated with resolution of these or any other environmental matters will
have a material adverse effect on the Company's financial position or results
of operations.
In December 1993, a subsidiary of the Company entered into a four year
agreement with a financial institution whereby the subsidiary would sell an
undivided interest of up to $50,000 in a designated pool of qualified accounts
receivable. In May 1997 the agreement was amended and the term was extended
through May 2004. Under the terms of the agreement, new receivables are added
to the pool as collections reduce previously sold accounts receivable. The
Company services, administers and collects the receivables on behalf of the
purchaser. Fees payable to the purchaser under this agreement are equivalent to
rates afforded high quality commercial paper issuers plus certain
administrative expenses and are included in other income (expense), net in the
accompanying Consolidated Statement of Income. The agreement contains certain
covenants and provides for various events of termination. In certain
circumstances the Company is contingently liable for the collection of the
receivables sold; management believes that its allowance for doubtful accounts
will be adequate to absorb the expense of any such liability. At June 30, 1997
and December 31, 1996, approximately $50,000 in receivables were sold under the
agreement and are therefore not reflected in the accounts receivable balance in
the accompanying Consolidated Balance Sheet.
Note 4 - Merger and Recapitalization
- ------------------------------------
On May 19, 1997, the Company merged with NXS Acquisition Corp., a wholly
owned subsidiary of KKR 1996 Fund L.P., KKR Partners II, L.P., and NXS
Associates, L.P., limited partnerships formed at the direction of Kohlberg
Kravis Roberts & Co. L.P. ("KKR"). The Merger had the effect of affiliates of
KKR investing $341,041 in exchange for 13,165,745 shares, or 75% of the
Company's common stock. Such equity proceeds, along with $240,000 of proceeds
from the sale of 9 7/8% Senior Subordinated Debentures due 2007 and borrowings
of $750,000 under a $900,000 bank loan agreement ("Bank Agreement") were used
to repurchase 40,325,240 shares of the Company's common stock for $1,048,490,
purchase all of the Company's outstanding 10.45% Senior Notes and substantially
all of the Company's 12 3/4% Subordinated Debentures for $211,153 and pay fees
and expenses relating to the Merger and Recapitalization of $59,436 (of which
approximately $10,000 were unpaid at June 30, 1997), including $18,000 paid to
KKR.
The Merger and related transactions have been recorded as a
Recapitalization. Expenses related to the new debt of $39,292 have been
recorded as deferred financing costs and are being amortized on the interest
method over the life of the related debt, expenses related to the repurchase of
the Company's stock of $17,644 have been reflected as a reduction of additional
paid-in capital and the remaining expenses, primarily relating to the buyout of
certain stock options, are reflected in the accompanying Statement of Income.
<PAGE>
The cost associated with early extinguishment of debt includes premiums
associated with redemption of the Company's 10.45% Senior Notes and 12 3/4%
Subordinated Debentures and the write off of unamortized deferred debt issuance
costs and is reflected as an extraordinary item net of income taxes of $8,041
in the accompanying Statement of Income.
Supplemental earnings per share assuming the Merger and Recapitalization
were completed at the beginning of the quarter and six months ended June 30,
1997 but excluding the impact of non-recurring expenses relating to the Merger
and Recapitalization, is $.63 and $.95 for the quarter and six months,
respectively.
<PAGE>
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS
OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION
(dollars in thousands, except per share data)
Results of Operations
- ---------------------
Quarter and six months ended June 30, 1997 compared to the quarter and six
- --------------------------------------------------------------------------
months ended June 30, 1996
- --------------------------
Net sales in the second quarter of 1997 increased approximately 14% from the
comparable 1996 quarter to $226,996. For the six months ended June 30, 1997,
net sales increased approximately 11% to $438,769. The increase in sales for
both the quarter and six month period is primarily attributable to increased
sales of interconnect products particularly in the communications, aerospace
and industrial markets. Currency translation and the relatively stronger U.S.
dollar had the effect of decreasing sales by approximately $4.7 million in the
second quarter and approximately $9.5 million in the six month period 1997 when
compared to exchange rates for the comparable 1996 periods.
The gross profit margin as a percentage of net sales (including depreciation
in cost of sales) was 33% for the 1997 second quarter and six month period
compared to 34% for the 1996 second quarter and six month period, respectively.
The decrease in the gross profit margin in both the 1997 quarter and six month
period is generally attributable to margin pressure in the Company's coaxial
cable business and certain European interconnect product operations.
Selling, general and administrative expenses as a percentage of net sales
decreased to approximately 14% for the quarter and six month period ended June
30, 1997 from approximately 15% for the 1996 second quarter and six month
periods. The reduction is primarily attributable to higher sales volume in the
1997 periods.
Interest expense for the second quarter and six months increased to $14,249
and $20,671 in 1997 from $6,091 and $12,143 in 1996, respectively. The increase
in both periods is primarily attributable to increased debt levels resulting
from the Merger and Recapitalization which closed on May 19, 1997 (Note 4).
Other income (expense), net for the second quarter and six months was $2,901
and $1,684 in 1997 compared to ($903) and ($1,627) in 1996, respectively. The
1997 periods include a gain on sale of marketable securities of $3,917.
The provision for income taxes for the six months ended June 30, 1997 was
$22,007 compared to $22,238 in 1996. The 1997 estimated effective tax rate of
approximately 40% reflects federal, state and foreign taxes.
Liquidity and Capital Resources
- -------------------------------
Cash provided by operating activities was $50,253 in the six months ended
June 30, 1997 compared to $17,526 in the 1996 period. The increase in cash
flow from operating activities relates primarily to a net decrease in non-cash
components of working capital. The increase in working capital in the 1996
period reflected significantly higher tax payments ($31,034 in 1996, $9,960 in
1997).
<PAGE>
In 1997 cash from operating activities, proceeds from the sale of marketable
securities of $7,351 and net funds available from the Merger and
Recapitalization (Note 4) of $22,547 were used to fund capital expenditures of
$10,246 and debt reduction of $63,824 (of which $40 million represents a
prepayment of term loan borrowings under the Company's Bank Agreement).
In conjunction with the Merger and Recapitalization, the Company entered
into a $900 million Bank Agreement with a syndicate of financial institutions,
comprised of a $150 million revolving credit facility that expires in the year
2004 and a $750 million term loan facility. At June 30, 1997, the Company had
prepaid $40 million of the term loan. The credit agreement requires the
maintenance of certain interest coverage and leverage ratios, and includes
limitations with respect to, among other things, indebtedness, and restricted
payments, including dividends on the Company's common stock. At June 30, 1997
there were $710 million of borrowings outstanding under the term loan facility
and there were no amounts outstanding under the revolving credit facility.
In July the Company entered into interest rate protection agreements that
effectively fix the Company's interest cost on $450 million of borrowings under
the Bank Agreement to the extent the LIBOR interest rates remain below 7% to
8%.
The Company's EBITDA as defined in the Bank agreement was $94.7 million and
$84.9 million for the six months ended June 30, 1997 and 1996, respectively.
EBITDA is not a defined term under Generally Accepted Accounting Principles
(GAAP) and is not an alternative to operating income or cash flow from
operations as determined under GAAP. The Company believes that EBITDA provides
additional information for determining its ability to meet future debt service
requirements; however, EBITDA does not reflect cash available to fund cash
requirements.
The Company's primary ongoing cash requirements will be for debt service,
capital expenditures and product development activities. The Company's debt
service requirements consist primarily of principal and interest on bank
borrowings and interest on Senior Subordinated Notes due 2007. The Company has
not paid, and does not have any present intention to commence payment of, cash
dividends on its Common Stock. The Company expects that ongoing requirements
for debt service, capital expenditures and product development activities will
be funded by internally-generated cash flow and availability under the
Company's revolving credit facility.
<PAGE>
Environmental Matters
- ---------------------
Subsequent to the acquisition of Amphenol from Allied Signal Corporation
("Allied") in 1987, Amphenol and Allied have been named jointly and severally
liable as potentially responsible parties in relation to several environmental
cleanup sites. Amphenol and Allied have jointly consented to perform certain
investigations and remedial and monitoring activities at two sites and they
haven been jointly ordered to perform work at another site. The responsibility
for costs incurred relating to these sites is apportioned between Amphenol and
Allied based on an agreement entered into in connection with the acquisition.
For sites covered by this agreement, to the extent that conditions or
circumstances occurred or existed at the time of or prior to the acquisition,
the first $13,000 of costs are borne by Amphenol and have been incurred as of
December 31, 1996. Allied is obligated to pay 80% of the excess over $13,000
and 100% of the excess over $30,000. Management does not believe that the costs
associated with resolution of these or any other environmental matters will
have a material adverse effect on the Company's financial position or results
of operations.
Future Accounting Changes
- -------------------------
In June 1996 the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 125 (FAS 125), "Accounting for Transfers and
Servicing of Financial Assets and Extinguishment of Liabilities." The Company
adopted the Statement effective January 1, 1997. Adoption of the Statement had
no effect on the Company's financial position or results of operations.
In February 1997 the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 128 (FAS 128), "Earnings per Share."
Management has reviewed the Statement and believes that implementation of the
Statement will not have a material effect on the Company's results of
operations. The Company is required to adopt the Statement effective December
15, 1997.
Cautionary Statements for Purposes of Forward Looking Information
- -----------------------------------------------------------------
Statements in this report that are not strictly historical are
"forward-looking" statements which should be considered as subject to the many
uncertainties that exist in the Company's operations and business environment.
These uncertainties which include, among other things, economic and currency
conditions, market demand and pricing and competitive and cost factors are set
forth in the Company's 1996 Annual Report on Form 10-K/A.
<PAGE>
PART II
OTHER INFORMATION
Item 1. LEGAL PROCEEDINGS
Reference is made to the Company's 1996 Annual Report on Form 10-K
as amended by Amendment No. 1 thereto on Form 10-K/A, (the "10-K").
As described in greater detail in the 10-K, in December 1995, the
Company and Allied received a letter from the United States Environ-
mental Protection Agency (the "EPA"), demanding that the Company and
Allied accept responsibility for the investigation and cleanup of the
Sidney Center Landfill, an EPA Superfund site (the "Sidney Site"). The
Sidney Center Landfill was a municipal landfill site utilized by the
Company's Sidney facility and other local towns and businesses. The
Company has acknowledged that it sent general plant refuse to the
Sidney Site but no hazardous waste. Allied and the Company offered to
prepare a remedial design and to assist the EPA in identifying other
potentially responsible parties for the Sidney Site. In July 1996,
the Company and Allied received a unilateral order from the EPA
directing the Company and Allied to perform certain investigation,
design and cleanup activities at the Sidney Site. The Company and
Allied responded to the unilateral order by agreeing to undertake
certain remedial design activities. In March 1997, the EPA filed a
lawsuit by which it seeks to recover from Allied and the Company
$2.7 million in alleged past response costs relating to the Sidney
Site. To date the Company and Allied have not accepted any
responsibility for the cleanup of the Sidney Site. The Company and
Allied have, however, continued work on the preparation of a remedial
design and the identification of other potentially responsible parties
for the Sidney Site.
Reference is also made to the Company's Current Report on Form 8-K
dated May 9, 1997, relating to the proposed settlement of two class
action lawsuits relating to the Merger and Recapitalization.
Item 2. CHANGES IN SECURITIES
In connection with the Merger and Recapitalization, the stockholders
of the Company and the Company adopted and approved a Certificate of
Merger dated May 19, 1997 including a Restated Certificate of
Incorporation for the Company, which among other things reduced the
total number of shares which the Company shall have authority to issue
from one hundred one million (101,000,000) consisting of ninety-six
million two hundred fifty thousand (96,250,000) shares of Class A
Common Stock, three million seven hundred fifty thousand (3,750,000)
shares of Class B Common Stock and one million (1,000,000) shares of
Preferred Stock to forty million (40,000,000) shares of Common Stock.
Of the forty million (40,000,000) shares of Common Stock currently
authorized, seventeen million five hundred sixteen thousand nine
hundred fifty-five (17,516,955) are currently outstanding. The
continuing rights of the holders of the Company's Common Stock have
not been materially modified.
<PAGE>
Item 3. DEFAULTS UPON SENIOR SECURITIES
None
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS
A Special Meeting in lieu of the 1997 Annual Meeting of the
Stockholders of the Company was held on May 14, 1997 to (i) vote upon
a proposal to approve and adopt the Agreement and Plan of Merger,
dated as of January 23, 1997 and as amended as of April 9, 1997
between the Company and NXS Acquisition Corp. (the "Merger Agreement")
("Proposal 1"); (ii) elect two directors to serve either until their
terms expire; provided, that if the Merger Agreement is approved and
adopted by the stockholders of the Company, the directors of the
Company immediately after the effective time of the closing of the
Merger Agreement would be Martin H. Loeffler and the then current
directors of NXS Acquisition Corp. ("Proposal 2"); and (iii) ratify
the selection of Price Waterhouse LLP as independent auditors of the
Company ("Proposal 3"). Proposal 1 was approved by the stockholders of
the Company by a vote of 34,749,400 FOR to 319,360 AGAINST, with
164,335 ABSTENTIONS. As a result of the approval of Proposal 1 Martin
H. Loeffler and the then current directors of NXS Acquisition Corp.
including Henry R. Kravis, George R. Roberts, Michael W. Michelson,
Marc S. Lipschultz and Andrew Clarkson became directors of the
Company effective with the closing of the Merger.
Proposal 3 was approved by the stockholders of the Company by a
vote of 38,265,947 FOR to 26,889 AGAINST, with 177,060 ABSTENTIONS.
Item 5. OTHER INFORMATION
None
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Listing of Exhibits
2.1 Agreement and Plan of Merger dated as of January 23, 1997 between
NXS Acquisition Corp. and Amphenol Corporation (incorporated by
reference to Current Report on Form 8-K dated January 23, 1997).**
2.2 Amendment, dated as of April 9, 1997, to the Agreement and Plan of
Merger between NXS Acquisition Corp. and Amphenol Corporation, dated
as of January 23, 1997 (incorporated by reference to the Registration
Statement on Form S-4 (registration No. 333-25195) filed on April 15,
1997).**
3.1 Certificate of Merger, dated May 19, 1997 (including Restated
Certificate of Incorporation of Amphenol Corporation).*
* Filed herewith
** Previously filed
<PAGE>
3.2 By-Laws of the Company as of May 19, 1997 - NXS Acquisition Corp.
By-Laws.*
4.1 Indenture between Amphenol Corporation and IBJ Schroeder Bank and
Trust Company, as Trustee, dated as of May 19, 1997, relating to
Senior Subordinated Notes due 2007.*
10.1 Amended and Restated Receivables Purchase Agreement dated as of
May 19, 1997 among Amphenol Funding Corp., the Company, Pooled
Accounts Receivable Capital Corporation and Nesbitt Burns Securities,
Inc., as Agent.*
10.2 Amended and Restated Purchase and Sale Agreement dated as of May 19,
1997 among the Originators named therein, Amphenol Funding Corp. and
the Company.*
10.3 Credit Agreement dated as of May 19, 1997 among the Company, Amphenol
Holding UK, Limited, Amphenol Commercial and Industrial UK, Limited,
the Lenders listed therein, 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.*
10.4 1997 Amphenol Incentive Plan (filed as Exhibit 10.13 to the 1996
10-K).**
10.5 Amended and Restated Salaried Employees Pension Plan of Amphenol
Corporation (filed as Exhibit 10.12 to the 1994 10-K).**
10.6 Amended and Restated LPL Technologies Inc. Retirement Plan for Salaried
Employees (filed as Exhibit 10.13 to the 1994 10-K).**
10.7 Amphenol Corporation Supplemental Employee Retirement Plan formally
adopted effective January 25, 1996 (filed as Exhibit 10.18 to the
1996 10-K).**
10.8 LPL Technologies Inc. and Affiliated Companies Employee Savings/401(k)
Plan, dated and adopted January 23, 1990 (filed as Exhibit 10.19 to
the 1991 Registration Statement).**
10.9 Management Agreement between the Company and Dr. Martin H. Loeffler,
dated July 28, 1987 (filed as Exhibit 10.7 to the 1987 Registration
Statement).**
10.10 Agreement and Plan of Merger among Amphenol Acquisition Corporation,
Allied Corporation and the Company, dated April 1, 1987, and the
Amendment thereto dated as of May 15, 1987 (filed as Exhibit 2 to the
1987 Registration Statement).**
* Filed herewith
** Previously filed
<PAGE>
10.11 Settlement Agreement among Allied Signal Inc., the Company and LPL
Investment Group, Inc. dated November 28,1988 (filed as Exhibit 10.20
to the 1991 Registration Statement).**
10.12 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. (filed as Exhibit 99.5 to
Schedule 13D, Amendment No.1, relating to the beneficial ownership
of shares of the Company's Common Stock by 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., and KKR-NXS L.L.C. dated May 27, 1997).**
10.13 Management Stockholder's Agreement entered into as of May 19, 1997
between the Company and Martin H. Loeffler.*
10.14 Management Stockholder's Agreement entered into as of May 19, 1997
between the Company and Edward G. Jepsen.*
10.15 Management Stockholder's Agreement entered into as of May 19, 1997
between the Company and Timothy F. Cohane.*
10.16 1997 Option Plan for Key Employees of Amphenol and Subsidiaries.*
10.17 Non-Qualified Stock Option Agreement between the Company and Martin
H. Loeffler dated as of May 19, 1997.*
10.18 Non-Qualified Stock Option Agreement between the Company and Edward
G. Jepsen dated as of May 19, 1997.*
10.19 Non-Qualified Stock Option Agreement between the Company and Timothy
F. Cohane dated as of May 19, 1997.*
27. Financial Data Schedule.*
(b) Reports filed on Form 8-K
A current report on Form 8-K dated May 9, 1997 was filed with the
Securities and Exchange Commission on May 9, 1997, reporting
information under Items 5 and 7 thereof and providing a copy of the
Press Release announcing the execution of a Memorandum of Under-
standing relating to the proposed settlement of two class action
lawsuits relating to the Company's then proposed merger with NXS
Acquisition Corp., a subsidiary of an affiliate of Kohlberg Kravis
Roberts & Co., L.P.
* Filed herewith
** Previously filed
<PAGE>
A current report and Form 8-K dated June 20, 1997 was filed with the
Securities and Exchange Commission on June 20, 1997, reporting
information under Items 4 and 7 thereof that Deloitte and Touche LLP
has been appointed as the Registrant's certified public accountants
replacing Price Waterhouse LLP who was dismissed, effective June 13,
1997.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AMPHENOL CORPORATION
DATE: August 14, 1997 /s/ Edward G. Jepsen
----------------- ---------------------------
Edward G. Jepsen
Executive Vice President and
Chief Financial Officer
<PAGE>
Exhibit 3.1
CERTIFICATE OF MERGER
OF
NXS ACQUISITION CORP.
INTO
AMPHENOL CORPORATION
UNDER SECTION 251 OF THE
GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
Pursuant to Section 251(c) of the General Corporation Law of the
State of Delaware, Amphenol Corporation, a Delaware corporation (the
"Corporation"), hereby certifies the following information relating to the
merger of NXS Acquisition Corp., a Delaware corporation ("Newco"), with and into
the Corporation (the "Merger"):
FIRST: The names of the constituent corporations in the Merger (the
"Constituent Corporations") and their states of incorporation are as follows:
Name State
---- -----
Amphenol Corporation Delaware
NXS Acquisition Corp. Delaware
SECOND: The Agreement and Plan of Merger, dated as of January 23,
1996 and as amended as of April 9, 1997 (the "Merger
<PAGE>
2
Agreement") between Newco and the Corporation, setting forth the terms and
conditions of the Merger, has been approved, adopted, certified, executed and
acknowledged by each of the Constituent Corporations in accordance with the
provisions of Section 251 of the General Corporation Law of the State of
Delaware.
THIRD: The surviving corporation in the Merger is the Corporation
(the "Surviving Corporation").
FOURTH: The Restated Certificate of Incorporation of the Corporation
shall be amended in its entirety to read as set forth below, and as such shall
be the Restated Certificate of Incorporation of the Surviving Corporation:
"FIRST: The name of the Corporation is Amphenol Corporation.
SECOND: The registered office and registered agent of the
Corporation is The Corporation Trust Company, 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under
the Delaware General Corporation Law.
FOURTH: The total number of shares of stock that the
Corporation is authorized to issue is 40,000,000 shares of Class A
Common Stock, par value $.001 each.
FIFTH: The Board of Directors of the Corporation, acting by
majority vote, may alter, amend or repeal the By-Laws of the
Corporation.
<PAGE>
3
SIXTH: For the management of the business and for the conduct
of the affairs of the Corporation, and in further definition,
limitation and regulation of the powers of the Corporation and of
its directors and of its stockholders or any class thereof, as the
case may be, it is further provided:
I. The business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors.
(1) The directors shall have concurrent power with the stockholders
to make, alter, amend, change, add to or repeal the By-Laws of the
Corporation.
(2) The number of directors of the Corporation shall be three or
more as from time to time fixed by, or in the manner provided in,
the By-Laws of the Corporation. At all times after December 1, 1987,
not less than two directors of the Corporation shall be persons who
are not officers or employees of the Corporation or any affiliate of
the Corporation and are not members of the immediate family of,
controlled by, or under common control with any such officer or
employee. Election of directors need not be by written ballot unless
the ByLaws so provide.
(3) The directors shall be classified, with respect to the time for
which they severally hold office, into three classes, as nearly
equal in number as possible, one class to hold office initially for
a term expiring at the annual meeting of stockholders to be held in
1992, another class to hold office initially for a term expiring at
the annual meeting of stockholders to be held in 1993, and another
class to hold office initially for a term expiring at the annual
meeting of stockholders to be held in 1994, with the members of each
class to hold office until their successors are elected and
qualified. At each annual meeting of the stockholders of the
Corporation following the adoption of this Restated Certificate of
Incorporation, the successors to the class of directors whose term
expires at that meeting shall be elected to hold office for a term
expiring at the annual meeting of stockholders
<PAGE>
4
held in the third year following the year of their election.
(4) Subject to the rights of the holders of any class or series of
capital stock having preference over the Common Stock as to
dividends or to elect directors under specified circumstances, any
director, or the entire Board of Directors, may be removed from
office at any time by the affirmative vote of the majority of the
stockholders entitled to vote for the election of directors but only
for cause.
(5) The affirmative vote of the holders of at least 80 percent of
the combined voting power of all the then-outstanding shares of the
Corporation entitled to vote in the election of directors, voting
together as a single class, shall be required to alter, amend or
repeal paragraphs (3), (4), (5) or (6) of this Article SIXTH, or any
provision thereof.
(6) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby
empowered to exercise all such powers and do all such acts and
things as may be exercised or done by the Corporation, subject,
nevertheless, to the provisions of the DGCL, this Restated
Certificate of Incorporation, and any By-Laws adopted by the
stockholders; provided, however, that no By-Laws hereafter adopted
by the stockholders shall invalidate any prior act of the directors
which would have been valid if such By-Laws had not been adopted.
SEVENTH: Except as otherwise provided by the Delaware General
Corporation Law as the same exists or may hereafter be amended, no
director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director. Any repeal or modification of this
Article SEVENTH by the stockholders of the Corporation shall not
adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
<PAGE>
5
EIGHTH: To the fullest extent permitted by the Delaware
General Corporation Law, the Corporation shall indemnify any current
or former director or officer of the Corporation and may, at the
discretion of the Board of Directors, indemnify any current or
former employee or agent of the Corporation against all expenses,
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with any threatened,
pending or completed action, suit or proceeding brought by or in the
right of the Corporation or otherwise, to which he was or is a party
by reason of his current or former position with the Corporation or
by reason of the fact that he is or was serving, at the request of
the Corporation, as a director, officer, partner, trustee, employee
or agent of another corporation, partnership, joint venture, trust
or other enterprise."
FIFTH: The executed Merger Agreement is on file at the
principal place of business of the Surviving Corporation, 358 Hall
Avenue, Wallingford, Connecticut 06492.
SIXTH: A copy of the Merger Agreement will be furnished by the
Surviving Corporation, on request and without cost, to any
stockholder of either of the Constituent Corporations.
<PAGE>
6
IN WITNESS WHEREOF, this Certificate of Merger has been executed on
the 19th day of May, 1997.
AMPHENOL CORPORATION
By
----------------------------
Name:
Title:
<PAGE>
EXHIBIT 3.2
AMPHENOL CORPORATION
BY-LAWS
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meeting and Notice. Meetings of the stockholders
of the Corporation shall be held at such place either within or without the
State of Delaware as the Board of Directors may determine.
Section 2. Annual and Special Meetings. Annual meetings of
stockholders shall be held, at a date, time and place fixed by the Board of
Directors and stated in the notice of meeting, to elect a Board of Directors and
to transact such other business as may properly come before the meeting. Special
meetings of the stockholders may be called by the President for any purpose and
shall be called by the President or Secretary if directed by the Board of
Directors or requested in writing by the holders of not less than 50% of the
capital stock of the Corporation. Each such stockholder request shall state the
purpose of the proposed meeting. Unless otherwise determined by the Board of
Directors prior to any meeting of stockholders, the presiding officer of such
meeting shall determine the order of business and shall have the authority in
his or her discretion to regulate the conduct of any such meeting, including,
without limitation, by imposing restrictions on the persons (other than
stockholders of the Corporation or their duly appointed proxies) who may attend
any such meeting, whether any stockholder or stockholders' proxy may be excluded
from any meeting of stockholders based upon any determination by the presiding
officer, in his or her sole discretion, that any such person has unduly
disrupted or is likely to disrupt the proceedings thereat, and the circumstances
in which any person may make a statement or ask questions at any meeting of
stockholders.
Section 3. Notice. Except as otherwise provided by law, at least 10
and not more than 60 days before each meeting of stockholders, written notice of
the time, date and place of the meeting, and, in the case of a special meeting,
the purpose or purposes for which the meeting is called, shall be given to each
stockholder.
Section 4. Quorum. At any meeting of stockholders, the holders of
record, present in person or by proxy, of a majority of the Corporation's issued
and outstanding capital stock shall constitute a quorum for the transaction of
business, except as otherwise provided by law. In the absence of a quorum, any
officer entitled to preside at or to act as secretary of the
<PAGE>
2
meeting shall have power to adjourn the meeting from time to time until a quorum
is present.
Section 5. Voting. Except as otherwise provided by law, all matters
submitted to a meeting of stockholders shall be decided by vote of the holders
of record, present in person or by proxy, of a majority of the Corporation's
issued and outstanding capital stock.
Section 6. Notice of Stockholder Nominees. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as Directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of stockholders by or at
the direction of the Board of Directors, by any nominating committee or person
appointed to make such nominations by the Board of Directors, or by any
stockholder of the Corporation entitled to vote for the election of Directors at
the meeting who complies with the notice procedures set forth in this Section 6.
Such nominations, if made by a stockholder of the Corporation as such, shall be
made pursuant to timely notice in writing addressed to the Secretary of the
Corporation. To be timely, a stockholder's notice shall be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than 60 days nor more than 90 days prior to the meeting at which Directors
are to be elected; provided, however, that in the event that less than 70 days'
notice or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received no
later than the close of business on the 10th day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was made.
Such stockholder's notice shall set forth: (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a Director (i)
the name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class and number of
shares of stock of the Corporation which are beneficially owned by the person
and (iv) any other information relating to the person that would be required to
be disclosed in solicitations for proxies for election of Directors pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended, or any
successor rule thereto; and (b) as to the stockholder giving the notice (i) the
name and record address of the stockholder and (ii) the class and number of
shares of the Corporation which are beneficially owned by the stockholder. The
Corporation may require any proposed nominee to furnish such other information
as may reasonably be required by the Corporation to determine the eligibility of
such proposed nominee to serve as a Director of the Corporation. No person shall
be eligible for election as a Director of the Corporation unless nominated in
accordance with the procedures set forth herein.
<PAGE>
3
The presiding officer at the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and following any such determination,
the presiding officer shall so declare to the meeting and the defective
nomination shall be disregarded.
Section 7. Notice of Stockholder Proposals. At an annual meeting of
the stockholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before an annual
meeting business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (c) otherwise properly brought before the meeting by a
stockholder entitled to vote on such business at the meeting who complies with
the notice provisions set forth in this Section 7. For business to be properly
brought before an annual meeting by a stockholder, the stockholder must have
given timely notice thereof in writing addressed to the Secretary of the
Corporation. To be timely, a stockholder's notice shall be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than 60 days nor more than 90 days prior to the meeting at which the
business would be acted upon; provided, however, that in the event that less
than 70 days' notice or prior public disclosure of the date of the meeting is
given or made to stockholders, notice by the stockholder to be timely must be so
received no later than the close of business on the 10th day following the day
on which such notice of the date of the meeting was mailed or such public
disclosure was made. Such stockholder's notice shall set forth: (a) as to each
matter the stockholder proposes to bring before the annual meeting a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting and (b) as to the
stockholder proposing such business (i) the name and record address of the
stockholder, (ii) the class and number of shares of the Corporation which are
beneficially owned by the stockholder and (iii) any material interest of the
stockholder in such business. No business shall be conducted at any annual
meeting except in accordance with the procedures set forth herein.
The presiding officer at the annual meeting shall, if the facts
warrant, determine and declare to the meeting that any stockholder proposal was
not properly brought before the meeting and in accordance with the provisions of
this Section 7, and following any such determination, the presiding officer
shall so declare to the meeting and any such stockholder proposal shall not be
acted upon.
Section 8. Voting Procedures and Inspectors of Elections. The
Corporation shall, in advance of any meeting of stockholders, appoint one or
more inspectors to act at the
<PAGE>
4
meeting and make a written report thereof. The Corporation may designate one or
more persons as alternate inspectors to replace any inspector who fails to act.
If no inspector or alternate is able to act at a meeting of stockholders, the
person presiding at the meeting shall appoint one or more inspectors to act at
the meeting. Each inspector, before entering upon the discharge of his duties in
accordance with the provisions of the General Corporation Law of the State of
Delaware, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his ability.
The date and time of the opening and the closing of the polls for
each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting. No ballot proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls except as provided under the General Corporation Law of the
State of Delaware.
In determining the validity and counting of proxies and ballots, the
inspector shall be limited to an examination of the proxies, any envelopes
submitted with those proxies, any information provided in accordance with the
provisions of the General Corporation Law of the State of Delaware, ballots and
the regular books and records of the Corporation, except that the inspectors may
consider other reliable information for the limited purpose of reconciling
proxies and ballots submitted by or on behalf of banks, brokers, their nominees
or similar persons which represent more votes than the holder of a proxy is
authorized by the record owner to cast or more votes than the stockholder holds
of record. If the inspectors consider other reliable information for the limited
purpose permitted herein, the inspectors at the time they make their
certification shall specify the precise information considered by them,
including the person or persons from whom they obtained the information, when
the information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
Section 9. Special Meetings of Stockholders. Only such business
shall be conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the Corporations's notice of meeting
pursuant to Article I, Section 3 of these By-Laws.
<PAGE>
5
ARTICLE II
DIRECTORS
Section 1. Number, Election and Removal of Directors. The number of
Directors that shall constitute the Board of Directors shall not be less than
three or more than fifteen. The Directors shall be divided into three classes in
the manner set forth in the Restated Certificate of Incorporation of the
Corporation, each class to be elected for the term set forth therein. The number
of Directors of the Board of Directors on the date of the adoption and
effectiveness of these By-Laws shall be six. Thereafter, within the limits
specified above, the number of Directors shall be determined by the Board of
Directors or the stockholders. The Directors shall be elected by stockholders at
their annual meeting. Vacancies and newly created directorships resulting from
any increase in the number of Directors may be filled by a majority of the
Directors then in office, although less than a quorum, or by the sole remaining
Director or by the stockholders.
Section 2. Meetings. Regular meetings of the Board of Directors
shall be held at such times and places as may from time to time be fixed by the
Board of Directors or as may be specified in a notice of meeting. Special
meetings of the Board of Directors may be held at any time upon the call of the
President and shall be called by the President or Secretary if directed by the
Board of Directors. Telegraphic or written notice of each special meeting of the
Board of Directors shall be sent to each Director not less than twenty-four
hours before such meeting. A meeting of the Board of Directors may be held
without notice immediately after the annual meeting of the stockholders. Notice
need not be given of regular meetings of the Board of Directors.
Section 3. Quorum. A majority of the total number of Directors shall
constitute a quorum for the transaction of business. If a quorum is not present
at any meeting of the Board of Directors, the Directors present may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until such a quorum is present. Except as otherwise provided by law,
the Certificate of Incorporation of the Corporation, these By-Laws or any
contract or agreement to which the Corporation is a party, the act of a majority
of the Directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors.
Section 4. Committees. The Board of Directors may, by resolution
adopted by a majority of the whole Board, designate one or more committees,
including, without limitation, an Executive Committee, to have and exercise such
power and authority as the Board of Directors shall specify. In the absence or
disqualification of a member of a committee, the
<PAGE>
6
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another Director to act at the absent or disqualified member.
Section 5. Compensation of Directors. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, the Board of Directors shall
have the authority to fix the compensation of Directors. The Directors may be
paid their expenses, if any, of attendance at each meeting of the Board of
Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
ARTICLE III
OFFICERS
The officers of the Corporation shall consist of a President, a Vice
President, a Secretary, a Treasurer, an Assistant Secretary, an Assistant
Treasurer and such other additional officers with such titles as the Board of
Directors shall determine, all of which shall be chosen by and shall serve at
the pleasure of the Board of Directors. Such officers shall have the usual
powers and shall perform all the usual duties incident to their respective
offices. All officers shall be subject to the supervision and direction of the
Board of Directors. The authority, duties or responsibilities of any officer of
the Corporation may be suspended by the President with or without cause. Any
officer elected or appointed by the Board of Directors may be removed by the
Board of Directors with or without cause.
ARTICLE IV
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings Other
Than Those by or in the Right of the Corporation. Subject to Section 3 of this
Article IV, the Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
other than an action by or in the right of the Corporation, by reason of the
fact that he is or was a Director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
Director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by
<PAGE>
7
him in connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or
in the Right of the Corporation. Subject to Section 3 of this Article IV, the
Corporation shall indemnify any person who was or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that
he is or was a Director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a Director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation unless and only to
the extent that the Court of Chancery or the Court in which such action or suit
was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification
under this Article IV (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the Director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 1 or Section 2 of this Article IV, as the case my be. Such determination
shall be made (i) by the Board of Directors by a majority vote of a quorum
consisting of Directors who were not parties to such action, suit or proceeding,
or (ii) if such a quorum is not obtainable, or , even if obtainable a quorum of
disinterested Directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders. To the extent, however, that a Director,
officer,
<PAGE>
8
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding described above or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith, without the necessity for authorization in the specific
case.
Section 4. Good Faith Defined. For purposes of any determination
under Section 3 of this Article IV, a person shall be deemed to have acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, or, with respect to any criminal action or
proceeding, to have no reasonable cause to believe his conduct was unlawful, if
his action is based on the records or books of account of the Corporation or
another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or another enterprise or on
information or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Corporation or another
enterprise. The term "another enterprise" as used in this Section 4 shall mean
any other corporation or any partnership, joint venture, trust or other
enterprise of which such person is or was serving at the request of the
Corporation as Director, officer, employee or agent. The provisions of this
Section 4 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Sections 1 or 2 of this Article IV, as the case
may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article IV, and
notwithstanding the absence of any determination thereunder, any Director,
officer, employee or agent may apply to any court of competent jurisdiction in
the State of Delaware for indemnification to the extent otherwise permissible
under Sections 1 and 2 of this Article IV. The basis of such indemnification by
a court shall be a determination by such court that indemnification of the
Director, officer, employee or agent is proper in the circumstances because he
had met the applicable standards of conduct set forth in Sections 1 or 2 of this
Article IV, as the case may be. Notice of any application for indemnification
pursuant to this Section 5 shall be given to the Corporation promptly upon the
filing of such application.
Section 6. Expenses Payable in Advance. Expenses incurred in
defending or investigating a threatened or pending action, suit or proceeding
may be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding as authorized by the Board of Directors in the
<PAGE>
9
specific case upon receipt of an undertaking by or on behalf of the Director,
officer, employee or agent to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified by the Corporation as
authorized in this Article IV.
Section 7. Non-exclusivity and Survival of Indemnification. The
indemnification provided by this Article IV shall not be deemed exclusive of any
other rights to which those seeking indemnification may be entitled under any
By-Law, agreement, contract, vote of stockholders or disinterested Directors or
pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in Sections 1 or 2 of
this Article IV shall be made to the fullest extent permitted by law. The
provisions of this Article IV shall not be deemed to preclude the
indemnification of any person who is not specified in Sections 1 or 2 of this
Article IV but whom the Corporation has the power or obligation to indemnify
under the provisions of the General Corporation Law of the State of Delaware, or
otherwise. The indemnification provided by this Article IV shall continue as to
a person who has ceased to be a Director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such person.
Section 8. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a Director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a Director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power or the obligation to
indemnify him against such liability under the provisions of this Article IV.
Section 9. Meaning of "Corporation" for Purposes of Article IV. For
purposes of this Article IV, references to "the Corporation" shall include, in
addition to the resulting Corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued would have had power and authority to
indemnify its Directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article IV with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
<PAGE>
10
ARTICLE V
GENERAL PROVISIONS
Section 1. Notices. Whenever any statute, the Certificate of
Incorporation or these By-Laws require notice to be given to any Director or
stockholder, such notice may be given in writing by mail, addressed to such
Director or stockholder at his address as it appears in the records of the
Corporation, with postage thereon prepaid. Such notice shall be deemed to have
been given when it is deposited in the United States mail. Notice to Directors
may also be given by telegram. A waiver of such notice in writing signed by the
person or persons entitled thereto, whether before or after the time stated in
such notice, shall be equivalent to the giving of such notice. Attendance of a
Director at a meeting shall constitute a waiver of notice of such meeting except
where a Director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened.
Section 2. Fiscal Year. The fiscal year of the Corporation shall be
fixed by the Board of Directors.
ARTICLE VI
AMENDMENTS
These By-Laws may be amended, added to, rescinded or repealed at any
meeting of the Board of Directors or of the stockholders, provided notice of the
proposed change was given in the notice of the meeting of the stockholders or in
the case of a meeting of the Board of Directors, in a notice given not less than
two days prior to the meeting; provided, however, that, notwithstanding any
other provisions of these By-Laws or any provision of law which might otherwise
permit a lesser vote of the stockholders, the affirmative vote of the holders of
at least 80 percent in voting power of all shares of the Corporation entitled to
vote generally in the election of Directors, voting together as a single class,
shall be required in order for the stockholders to alter, amend or repeal
Section 1 of Article II, or this proviso to this Article VI of these By-Laws or
to adopt any provision inconsistent with such Section or with this proviso.
<PAGE>
Exhibit 4.1
EXECUTION COPY
AMPHENOL CORPORATION
as Issuer
and
IBJ Schroder Bank & Trust Company
as Trustee
--------------------
Indenture
Dated as of May 15, 1997
---------------------
$240,000,000
97/8% 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.
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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
iii
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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
iv
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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
v
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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>
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
97/8 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
<PAGE>
3
value of less than $1.0 million; (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,
<PAGE>
4
(iii) 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
<PAGE>
5
signed by one of such officers or directors listed in such clause (a) and one of
the officers listed in clause (b) above.
"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
<PAGE>
6
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 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
<PAGE>
7
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.
"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
<PAGE>
8
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.
"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
<PAGE>
9
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 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
<PAGE>
10
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.
"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
<PAGE>
11
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.
"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
<PAGE>
12
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, 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)
<PAGE>
13
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.
"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;
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14
(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, 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
<PAGE>
15
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 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.
<PAGE>
16
"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.
"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
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17
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 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
<PAGE>
18
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.
"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.
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19
"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 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.
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20
"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 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.
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21
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.
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.
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22
(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 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
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23
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.
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.
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24
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.
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.
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25
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally.
The Notes shall be known as the "97/8% 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:
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.
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26
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.
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27
SECTION 203. Form of Face of Note.
AMPHENOL CORPORATION
97/8% 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 97/8% 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>
28
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>
29
SECTION 204. Form of Reverse of Note.
This Note is one of a duly authorized issue of securities of the
Company designated as its 97/8% 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
<PAGE>
30
the 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
<PAGE>
31
with the Indenture. Holders of 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.
<PAGE>
32
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 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>
33
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>
34
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>
35
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 "97/8% 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 97/8% 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.
<PAGE>
36
The Indebtedness evidenced by the Notes shall be subordinated in
right of payment to Senior Indebtedness as provided in Article Thirteen.
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
<PAGE>
37
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 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
<PAGE>
38
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 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.
<PAGE>
39
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 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.
<PAGE>
40
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
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41
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 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
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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.
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
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43
(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 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.
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44
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.
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;
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45
(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 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
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46
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 (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);
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(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;
(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
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48
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
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
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49
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:
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
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(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.
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.
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51
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
(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
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52
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.
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
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(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
(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.
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54
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;
(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
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55
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.
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
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56
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, 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.
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57
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.
(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
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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.
(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.
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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.
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
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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 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
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61
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.
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.
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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
(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):
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(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
(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
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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.
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.
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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 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
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66
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 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.
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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%
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of the Consolidated Net Income of the Company for the period (taken as one
accounting period) from the fiscal 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;
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(iii) distributions or payments of Receivables Fees;
(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
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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;
(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
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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.
(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;
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(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 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
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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;
(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
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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 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
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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.
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
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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 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;
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(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;
(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
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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 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
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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 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.
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(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 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
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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;
(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.
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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.
(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
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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.
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.
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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 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,
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(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
(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.
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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.
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.
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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, 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
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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 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.
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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. 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
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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 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
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(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:
(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
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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.
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
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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 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
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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) 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
<PAGE>
96
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.
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,
<PAGE>
97
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.
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>
98
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:
------------------------------------
Name:
Title:
IBJ SCHRODER BANK & TRUST COMPANY,
a New York banking corporation, as Trustee
By:
------------------------------------
Name:
Title:
<PAGE>
Exhibit 10.1
AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
Dated as of May 19, 1997
among
AMPHENOL FUNDING CORP.,
as Seller,
AMPHENOL CORPORATION
individually and as initial Servicer,
POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION
as Purchaser,
and
NESBITT BURNS SECURITIES, INC.,
as Agent.
<PAGE>
|| TABLE OF CONTENTS
ARTICLE I
THE COMMITMENT
SECTION 1.01 Commitment.......................................................2
SECTION 1.02 Purchase and Reinvestment Limits.................................2
SECTION 1.03 Making Purchases from Seller.....................................2
SECTION 1.04 Number of Participations.........................................3
SECTION 1.05 Commitment Termination Date......................................3
SECTION 1.06 Voluntary Termination of Commitment or Reduction of
Purchase Limit...................................................3
SECTION 1.07 Limitation of Ownership Interest.................................3
ARTICLE II
PARTICIPATION, PAY-OUT AMOUNT
AND RELATED DEFINITIONS
SECTION 2.01 Participation....................................................4
SECTION 2.02 Pay-Out Amount...................................................4
SECTION 2.03 Investment.......................................................5
SECTION 2.04 Yield Factor and Related Definitions.............................5
SECTION 2.05 Servicer's Fee Factor and Related Definitions....................7
SECTION 2.06 Total Reserves and Related Definitions...........................7
SECTION 2.07 Purchaser's Share................................................8
ARTICLE III
SETTLEMENTS
SECTION 3.01 Establishment and Use of Accounts................................9
SECTION 3.02 Non-Investment Reduction Day Settlement Procedures
for Collections..................................................9
SECTION 3.03 Investment Reduction Settlement Procedures for Collections......10
SECTION 3.04 Special Settlement Procedures; Reduction of Investment, etc.....11
SECTION 3.05 Reporting.......................................................13
SECTION 3.06 Payments and Computations, Etc..................................14
SECTION 3.07 Dividing or Combining Participations............................14
SECTION 3.08 Treatment of Collections and Deemed Collections.................15
ARTICLE IV
FEES AND YIELD PROTECTION
SECTION 4.01 Fees............................................................15
Receivables Purchase Agreement - i
<PAGE>
SECTION 4.02 Yield Protection................................................15
ARTICLE V
CONDITIONS OF PURCHASES
SECTION 5.01 Conditions Precedent to Purchase................................17
SECTION 5.02 Conditions Precedent to All Purchases and Reinvestments.........19
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01 Representations and Warranties of Seller........................20
SECTION 6.02 Representations and Warranties of Amphenol......................24
ARTICLE VII
COVENANTS OF SELLER AND AMPHENOL
SECTION 7.01 Affirmative Covenants of Seller and Amphenol....................28
SECTION 7.02 Reporting Requirements of Seller................................32
SECTION 7.03 Negative Covenants..............................................34
ARTICLE VIII
ADMINISTRATION AND COLLECTION
SECTION 8.01 Designation of Servicer.........................................37
SECTION 8.02 Duties of Servicer and Seller...................................39
SECTION 8.03 Rights of the Agent.............................................40
SECTION 8.04 Further Action Evidencing Purchases.............................42
SECTION 8.05 Application of Collections......................................42
ARTICLE IX
TERMINATION EVENTS
SECTION 9.01 Termination Events..............................................43
SECTION 9.02 Remedies........................................................44
ARTICLE X
THE AGENT
SECTION 10.01 Authorization and Action.......................................45
SECTION 10.02 Agent's Reliance, Etc..........................................45
Receivables Purchase Agreement - ii
<PAGE>
ARTICLE XI
ASSIGNMENT OF PURCHASER'S INTEREST
SECTION 11.01 Restrictions on Assignments....................................46
SECTION 11.02 Evidence of Assignment; Endorsement on Certificate.............46
SECTION 11.03 Rights of Assignee.............................................46
SECTION 11.04 Rights of Collateral Trustee...................................46
ARTICLE XII
INDEMNIFICATION
SECTION 12.01 Indemnities by Seller and Amphenol.............................47
ARTICLE XIII
SECURITY INTEREST
SECTION 13.01 Grant of Security Interest.....................................49
SECTION 13.02 Further Assurances.............................................49
SECTION 13.03 Remedies.......................................................49
ARTICLE XIV
MISCELLANEOUS
SECTION 14.01 Amendments, Etc................................................49
SECTION 14.02 Notices, Etc...................................................50
SECTION 14.03 No Waiver; Cumulative Remedies................................50
SECTION 14.04 Binding Effect; Assignability..................................50
SECTION 14.05 GOVERNING LAW..................................................50
SECTION 14.06 Costs, Expenses and Taxes......................................50
SECTION 14.07 No Proceedings.................................................51
SECTION 14.08 No Recourse to Certain Persons.................................51
SECTION 14.09 Confidentiality................................................51
SECTION 14.10 Submission to Jurisdiction.....................................52
SECTION 14.11 Waiver of Jury Trial...........................................52
SECTION 14.12 Integration....................................................53
SECTION 14.13 Captions and Cross References..................................53
SECTION 14.14 Execution in Counterparts......................................53
||
Receivables Purchase Agreement - iii
<PAGE>
APPENDICES
APPENDIX A Definitions
SCHEDULES
SCHEDULE 6.01(f) Description of Proceedings
SCHEDULE 6.01(m) List of Offices where Records are Kept
SCHEDULE 6.01(n) List of Lock-box Banks
SCHEDULE 6.01(r) Trade Names and Corporate Reorganizations
SCHEDULE 7.01(g) Description of Credit and Collection Policy
SCHEDULE 7.03(d) List of Account Banks
EXHIBITS
EXHIBIT 1.03(a) Notice of Purchase
EXHIBIT 3.04(a) Form of Periodic Report
EXHIBIT 3.04(b) Form of Liquidation Statement
EXHIBIT 5.01(a) Form of Certificate
EXHIBIT 5.01(h)(i) Form of Lock-box Agreement
EXHIBIT 5.01(h)(ii)-1 Form of Collection Account Agreement
EXHIBIT 5.01(h)(ii)-2 Form of Liquidation Account Agreement
EXHIBIT 5.01(i)-1 Form of Opinion of Counsel to Seller, Servicer and the
Originators
EXHIBIT 5.01(i)-2 Form of Opinion of General Counsel of Seller, Servicer
and the Originators
EXHIBIT 11.01 Form of Assignment
Receivables Purchase Agreement - iv
<PAGE>
THIS AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (this
"Agreement"), dated as of May 19, 1997, is among AMPHENOL FUNDING CORP., a
Delaware corporation having its principal office at 358 Hall Avenue,
Wallingford, Connecticut 06492-7530 ("Seller"), AMPHENOL CORPORATION, a Delaware
corporation having its principal office at 358 Hall Avenue, Wallingford,
Connecticut 06492-7530 (in its individual capacity, "Amphenol," and as the
initial Servicer), POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION, a Delaware
corporation having its principal office at c/o Broadstreet Contract Services,
Inc., Two Wall Street, New York, New York 10005 ("Purchaser") and NESBITT BURNS
SECURITIES, INC., a Delaware corporation having its principal office at 111 West
Monroe Street, Chicago, Illinois 60603 ("Nesbitt Burns"), as agent for Purchaser
(in such capacity, the "Agent"). Unless otherwise indicated, certain terms that
are capitalized and used throughout this Agreement are defined in Appendix A.
Background
1. Seller has a portfolio of Receivables referred to herein as the
Portfolio in which Seller intends to sell Participations referred to herein as
Participations.
2. The parties hereto (except that Nesbitt Burns is the successor to
Bank of Montreal) entered into a Receivables Purchase Agreement, dated as of
December 3, 1993 (as amended to the date hereof, the "Original RPA"), pursuant
to which, among other things, the Seller agreed to sell to the Purchaser, and
the Purchaser agreed to purchase from the Seller, Participations in the
Portfolio. Seller has requested Purchaser, and Purchaser has agreed, on the
terms and subject to the conditions contained in this Agreement, to purchase
Participations from Seller from time to time during the term of this Agreement.
3. Seller and Purchaser also desire that, on the terms and subject to
the conditions of this Agreement, certain of the daily Collections in respect of
such Participations be reinvested in the Portfolio through the sale to Purchaser
of additional Participations in the Portfolio, such daily reinvestment of
Collections to be effected by an automatic daily adjustment to Purchaser's
Participations, and to be intended to permit Purchaser to maintain its
Investments fully invested in the Portfolio.
4. Purchaser expects generally to fund its Purchases and Reinvestments
through the issuance of Commercial Paper Notes. Purchaser has entered into a
Liquidity Agreement with the Banks providing for the making of loans by the
Banks secured by Participations in the event Purchaser hereunder is unable to
fund its Purchases or Reinvestments pursuant to this Agreement by the issuance
of Commercial Paper Notes or otherwise prefers to fund such Purchases or
Reinvestments under the Liquidity Agreement rather than by the issuance of
Commercial Paper Notes because the Commercial Paper Rate is unavailable or
otherwise not desirable, or is unable to pay such
<PAGE>
Commercial Paper Notes at maturity from the proceeds of Collections from the
Portfolio in which it holds a Participation hereunder. Purchaser has also
entered into the Insurance Agreement with the Surety Bond Provider providing for
the issuance of the surety bond supporting payment of Portfolio Receivables.
5. Nesbitt Burns has been requested, and is willing, to act as the Agent.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
THE COMMITMENT
SECTION 1.01 Commitment. On the terms and subject to the conditions set
forth in this Agreement:
(a) Purchases. Purchaser shall purchase from Seller
Participations from time to time during the period from the date hereof
to the Commitment Termination Date. Each such purchase and, as the
context may require, the purchase price paid by Purchaser to Seller in
respect thereof, is called a "Purchase".
(b) Reinvestments. Pursuant to Section 3.02(a)(v), during the
period from the date hereof to the Commitment Termination Date,
Purchaser shall permit Servicer to cause certain of the Collections in
respect of each Participation to be applied on behalf of the Purchaser
to the reinvestment in Portfolio Receivables (herein called a
"Reinvestment").
Purchaser's obligation to make Purchases and Reinvestments is herein
called the "Commitment".
SECTION 1.02 Purchase and Reinvestment Limits. Under no circumstances
shall Purchaser make any Purchase or Reinvestment to the extent that, after
giving effect to such Purchase or Reinvestment, as the case may be:
(a) Purchase Limit. The Aggregate Investment would exceed an
amount (the "Purchase Limit") equal to $50,000,000, as such amount may
be reduced pursuant to Section 1.06; or
(b) Pay-Out Amount Limit. The Aggregate Pay-Out Amount would
exceed an amount (the "Pay-Out Amount Limit") equal to 100% of the Net
Portfolio Balance.
Receivables Purchase Agreement - 2
<PAGE>
SECTION 1.03 Making Purchases from Seller. (a) Notice of Purchase.
Seller may request a Purchase by delivering a notice substantially in the form
of Exhibit 1.03(a) to the Agent not later than 11:00 a.m. (Chicago time) on the
Business Day preceding the date of such proposed Purchase. Each such notice of a
proposed Purchase shall specify the desired amount and date of such Purchase and
the desired duration of the initial Yield Period for the resulting
Participation. The Agent shall select the duration of such initial, and each
subsequent, Yield Period in its discretion; provided that it shall use
reasonable efforts, taking into account market conditions, to accommodate
Seller's preferences.
(b) Amount of Purchase. The amount of a Purchase shall be equal to the
lesser of (x) the amount proposed by Seller pursuant to Section 1.03(a) and (y)
the maximum amount permitted under Section 1.02.
(c) Funding of Purchase. On the date of each Purchase, Purchaser shall,
upon satisfaction of the applicable conditions set forth in Article V, make
available to the Agent at its office indicated above the amount of its Purchase
(determined pursuant to Section 1.03(b)) in same day funds, and after the
Agent's receipt of such funds, the Agent shall make such funds immediately
available to Seller at such office.
SECTION 1.04 Number of Participations. The number of Participations
hereunder at any one time, after giving effect to any Purchase, Reinvestment,
division or combination, shall not exceed seven (7).
SECTION 1.05 Commitment Termination Date. (a) The "Commitment
Termination Date" shall be the earlier of (i) May 19, 2004 (herein, as such date
may be extended, called the "Scheduled Commitment Termination Date"), and (ii)
the date of termination of the Commitment pursuant to Section 1.06 or Section
9.02.
(b) The then Scheduled Commitment Termination Date may be extended in
the sole discretion of Purchaser and the Agent from time to time for an
additional one year period by written request given by Seller to the Agent not
more than ninety nor less than thirty days before the then Scheduled Commitment
Termination Date, and written acceptance given by the Agent to Seller not later
than such day.
SECTION 1.06 Voluntary Termination of Commitment or Reduction of
Purchase Limit. Seller may, upon at least five Business Days' notice to the
Agent, terminate the Commitment in whole or reduce in part the unused portion of
the Purchase Limit; provided, however, that (a) each partial reduction shall be
in an amount equal to $5,000,000 or an integral multiple thereof, and (b) after
giving effect to such partial reduction, the remaining Purchase Limit will not
be less than $25,000,000.
Receivables Purchase Agreement - 3
<PAGE>
SECTION 1.07 Limitation of Ownership Interest. Nothing in this Agreement
shall be interpreted as providing Purchaser with an ownership interest in any
receivables that are not Portfolio Receivables.
ARTICLE II
PARTICIPATION, PAY-OUT AMOUNT
AND RELATED DEFINITIONS
SECTION 2.01 Participation.
(a) Definition and Computation of Participation. (i) For purposes of
this Agreement, "Participation" means, as the context may require, an undivided
ownership interest, stated as a percentage determined from time to time as
provided in clause (ii) below, in (A) all then outstanding Portfolio
Receivables, (B) all Related Security with respect to such Portfolio
Receivables, and (C) all Collections with respect to, and other proceeds of,
such Portfolio Receivables and Related Security.
(ii) The ownership interest in clause (i) above at any time shall
be computed as follows:
P = PA/NPB
where:
P = the Participation at any time;
PA = the Pay-Out Amount of such Participation at such
time as determined pursuant to Section 2.02; and
NPB = the Net Portfolio Balance.
(b) Frequency of Computation of Participation. Each Participation shall
be computed initially as of the opening of business of Servicer on the date of
Purchase of such Participation and shall be recomputed upon receipt of each
Periodic Report. In addition, until such Participation shall be reduced to zero,
such Participation shall be deemed to be automatically recomputed as of the
close of business of Servicer on each day, and, as so recomputed, shall
constitute the percentage ownership interest in the Portfolio Receivables, the
Related Security and the Collections and other proceeds with respect thereto
held by Purchaser on such day. Such Participation shall become zero at such time
as Purchaser shall have received the Earned Yield for such Participation, shall
have recovered the Investment in such Participation and shall have received all
other amounts payable to Purchaser
Receivables Purchase Agreement - 4
<PAGE>
pursuant to this Agreement in respect of such Participation, and Servicer shall
have received the accrued Servicer's Fee for such Participation. Such
Participation shall remain constant from the time as of which any such
computation or recomputation is made until the time as of which the next such
recomputation, if any, shall be made.
SECTION 2.02 Pay-Out Amount. "Pay-Out Amount" of a Participation at any
times means an amount determined as follows:
PA = I + YF + SFF + TR
where:
PA = the Pay-Out Amount of a Participation at any time;
I = the Investment in such Participation, as determined
pursuant to Section 2.03;
YF = the Yield Factor of such Participation at such
time, as determined pursuant to Section 2.04;
SFF = the Servicer's Fee Factor of such Participation,
as determined pursuant to Section 2.05; and
TR = the Total Reserves of such Participation, as
determined pursuant to Section 2.06.
SECTION 2.03 Investment. "Investment" in a Participation means an amount
equal to: (i) the aggregate of the amounts theretofore paid to Seller for such
Participation: (A) by Purchase pursuant to Sections 1.01(a) and 1.03 and (B) by
Reinvestments pursuant to Sections 1.01(b) and 3.02(a)(v) less (ii) the
aggregate amount of Collections received and actually distributed to the
Purchaser on account of such Investment pursuant to Sections 3.02 and 3.03.
SECTION 2.04 Yield Factor and Related Definitions.
(a) Yield Factor. "Yield Factor" means, for a related Participation at
any time, an amount determined as follows:
YF = EY + UYR
where:
YF = the Yield Factor of such Participation at such time;
Receivables Purchase Agreement - 5
<PAGE>
EY = the Earned Yield of such Participation as
determined pursuant to Section 2.04(b); and
UYR = the Unearned Yield Reserve of such Participation
as determined pursuant to Section 2.04(d).
(b) Earned Yield. "Earned Yield" means, for any Participation (or
portion thereof) for each completed day in a related Yield Period during which
Purchaser owns such Participation, an amount equal to the sum of (a) the product
of (i) the Investment in such Participation on such day, (ii) the Purchaser Rate
per annum on such day and (iii) without duplicating the impact of the per annum
nature of the Purchaser Rate, 1/360, plus (b) the Negative Spread Fee for such
day (if any); provided, however, that if, pursuant to the definition of
"Purchaser Rate", different Purchaser Rates would apply to different portions of
such Participation, then Earned Yield shall be calculated separately with
respect to each such portion, and the Earned Yield for such Participation shall
be the sum of the Earned Yields so calculated for such portions.
(c) The Purchaser Rate. The "Purchaser Rate" for any Yield Period for
any related Participation (or portion thereof) means:
(i) in the case of a Participation (or portion thereof) funded by
Commercial Paper Notes, the Commercial Paper Rate for such Yield Period;
(ii) in the case of a Participation (or portion thereof) funded
pursuant to the Liquidity Agreement, the Bank Rate for such Yield
Period; provided, however, that the Bank Rate for such Yield Period will
be based on the Reference Rate rather than the IBOR Rate (Reserve
Adjusted) unless the Agent receives notice from Seller not later than
10:00 a.m. (Chicago time) two IBOR Business Days prior to the first day
of such Yield Period; and
(iii) with respect to any day on which a Termination Event shall
have occurred and shall be continuing, notwithstanding clauses (i) and
(ii) of this definition, the "Purchaser Rate" shall be a rate per annum
equal to the Reference Rate in effect on such day plus 2% per annum.
(d) Unearned Yield Reserve. "Unearned Yield Reserve" means, with respect
to any Participation at any time, an amount equal to the product of (A) the
related Investment in such Participation at such time, (B) the sum of (x) the
Bank Rate for such Participation (for a Yield Period deemed to commence at such
time for a period of one month) plus (y) the Yield Protection Margin deemed to
be in effect at such time, (C) without duplicating the impact of the per annum
nature of the rate described in clause (B), 1/360 and (D) the Adjusted Average
Term of the Portfolio.
(i) Yield Protection Margin. "Yield Protection Margin" means,
during any Yield Period, a rate per annum equal to 0.25 times the IBOR
Rate (Reserve Adjusted).
Receivables Purchase Agreement - 6
<PAGE>
(ii) Adjusted Average Term. "Adjusted Average Term" means, on
any day, the product of 1.5 and the Average Term for such day.
(iii) Average Term. "Average Term" means, on any day, that period
(expressed in days) equal to the weighted average number of days (based
on aging categories) that the Portfolio Receivables are outstanding
until paid in full as shall be calculated by Servicer as set forth in
the most recent Periodic Report in accordance with the provisions
thereof; provided, however, that if the Agent shall disagree with any
such calculation, the Agent may recalculate the Average Term for such
day, which calculation shall, absent manifest errors, be conclusive.
SECTION 2.05 Servicer's Fee Factor and Related Definitions.
(a) Servicer's Fee Factor. "Servicer's Fee Factor" means, with respect
to any Participation at any time, an amount determined as follows:
SFF = SF + USFR
where:
SFF = the Servicer's Fee Factor for such Participation at
such time;
SF = the accrued and unpaid Servicer's Fee with respect
to such Participation at such time, as determined
pursuant to Section 2.05(b); and
USFR = the Unearned Servicer's Fee Reserve for such
Participation at such time, as determined pursuant
to Section 2.05(c).
(b) Servicer's Fee. "Servicer's Fee" means, with respect to any
Participation, an amount accrued each day in a Yield Period equal to (i) the
product of (x) 1%, (y) the Investment in such Participation at the close of
business on such day and (z) 1/360; or (ii) upon Servicer's reasonable request
on and after the date that Amphenol shall no longer be Servicer, an alternative
amount specified by Servicer not exceeding 110% of Servicer's reasonable
estimate of the costs and expenses to perform its obligations under this
Agreement during such Yield Period.
(c) Unearned Servicer's Fee Reserve. "Unearned Servicer's Fee Reserve"
means, for any Participation at any time, an amount equal to the product of (x)
the related Investment in such Participation at such time times (y) 1% (or if
Servicer's Fee is calculated pursuant to clause (b)(ii) above, the percentage
determined by dividing such Investment at the close of business on such day by
the amount of the Servicer's Fee accrued for such day, multiplying the quotient
by l/360 and
Receivables Purchase Agreement - 7
<PAGE>
expressing the product as a percentage), times (z) a fraction the numerator of
which is the number of days equal to the then Adjusted Average Term and the
denominator of which is 360.
SECTION 2.06 Total Reserves and Related Definitions. (a) The "Total
Reserves" of any Participation on any day means the Investment in such
Participation at the opening of business of Purchaser on such day multiplied by
the greater of: (i) the Dilution Reserve Percentage plus the Loss Reserve
Percentage and (ii) 12%.
(b) The "Dilution Reserve Percentage" of any Participation on any day
means an amount, expressed as a percentage, determined as follows:
DRP = [(1.5 x ED) + ((DS-ED) x DS/ED)] x DHR
where:
DRP = the Dilution Reserve Percentage at such time;
ED = the "Expected Dilution" means the average of the
Dilution Ratios for the 12 most recent calendar
months;
DS = the "Dilution Spike" means the highest three-month
rolling average of the Dilution Ratio during the 12
most recent calendar months; and
DHR = the "Dilution Horizon Ratio" means the gross
sales of the Originators during the most recent
calendar month divided by Eligible Receivables.
(c) The "Loss Reserve Percentage" of any Participation on any day means
an amount, expressed as a percentage, determined as follows:
LRP = (1.5 x LR x LHR) / (1-(1.5 x LR x LHR))
where:
LRP = the Loss Reserve Percentage at such time;
LR = the "Loss Ratio" means the highest three-month
rolling average of the Default Ratio during the 12
most recent calendar months; and
LHR = the "Loss Horizon Ratio" means the gross sales of
the Originators during the four most recent
calendar months divided by the Eligible
Receivables.
Receivables Purchase Agreement - 8
<PAGE>
SECTION 2.07 Purchaser's Share. "Purchaser's Share" of any Participation
with regard to any Collections of Portfolio Receivables received (or deemed
received) by Seller or Servicer on any day means an amount equal to the product
of: (a) the amount of such Collections received (or deemed received) by Seller
or Servicer on such day, times (b)(i) if such day is not an Investment Reduction
Day, such Participation (expressed as a decimal) on such day, and (ii) if such
day is an Investment Reduction Day, the Pro Rata Share in respect of such
Participation (expressed as a decimal) on such day; provided, however, that
after such time as a Participation shall equal zero, the Purchaser's Share of
Collections therefor shall also equal zero.
ARTICLE III
SETTLEMENTS
SECTION 3.01 Establishment and Use of Accounts. (a) Lock-box Accounts.
Seller hereby agrees to establish (or already has established in connection with
the Original RPA) the Lock-box Accounts listed on Schedule 6.01(n) (and the
related post office boxes) on or before the date of the first Purchase
hereunder. The Lock-box Accounts shall be used to receive Collections. No funds
other than Collections shall be deposited or transferred intentionally into any
Lock-box Account.
(b) Liquidation Account. Seller hereby agrees to establish (or already
has established in connection with the Original RPA) the Liquidation Account on
or before the date of the first Purchase hereunder. The Liquidation Account
shall be used to receive transfers of certain amounts of the Purchaser's Share
of Collections prior to Settlement Dates and for the other purposes described in
the Transaction Documents. No funds other than those transferred in accordance
with this Article III shall be transferred or deposited into the Liquidation
Account.
(c) Collection Account. Seller hereby agrees to establish (or already
has established in connection with the Original RPA) the Collection Account on
or before the date of the first Purchase hereunder. The Collection Account may
be used to receive transfers of certain amounts of the Seller's share of
Collections and for the other purposes described in the Transaction Documents.
SECTION 3.02 Non-Investment Reduction Day Settlement Procedures for
Collections.
(a) Daily Procedure. On each day (other than an Investment Reduction
Day), Servicer shall be deemed to have received an amount equal to the
Purchaser's Share of Collections of Portfolio Receivables that are deposited in
the Lock-box Accounts on such day in respect of all Participations; and
(i) Servicer may transfer from the Lock-box Accounts to the
Collection Account (or may apply in accordance with Section 7.03(g)) the
Seller's share of Collections in an amount
Receivables Purchase Agreement - 9
<PAGE>
equal to the excess of (A) the aggregate Collections deposited in the
Lock-box Accounts on such day over (B) the Purchaser's Share of such
Collections for all Participations,
(ii) out of the portion of the Purchaser's Share of such
Collections that is allocable to each respective Participation, Servicer
shall hold in trust for the benefit of Purchaser and shall transfer to
the Liquidation Account (or may retain in one or more Lock-box Accounts)
an amount equal to the Earned Yield on the Investment in such
Participation accrued to (and including) such day and not previously so
transferred to the Liquidation Account as aforesaid,
(iii) Out of the portion of the Purchaser's Share of such
Collections that is allocable to each respective Participation, Servicer
shall transfer to its own account at its convenience, but in any event
within five (5) days, the amount of the Servicer's Fee allocated to such
Participation (as determined in accordance with Section 2.05(b)) which
has accrued to (and including) such day but which has not previously
been transferred to Servicer's account as aforesaid,
(iv) Servicer shall apply an amount equal to the remainder of the
portion of the Purchaser's Share of such Collections that is allocable
to each respective Participation to reduce the Investment in each such
Participation, such amount to be applied pro rata in accordance with the
amount of each such Investment before such reduction (it being
understood that such amount need not be physically paid to Purchaser
under this clause (iv)),
(v) After such reduction, but subject to Section 3.04(b), the
amount referred to in the foregoing clause (iv) with respect to each
Investment shall be reinvested by Servicer by means of a Reinvestment in
the related Participation, thereby increasing the Investment in such
Participation and causing a recomputation of such Participation pursuant
to Section 2.01 as of the end of such day, and
(vi) After any such Reinvestment, Servicer may transfer from the
Lock-box Accounts to the Collection Account the amount referred to in
the foregoing clause (v), or may apply such amount to make Restricted
Payments permitted by Section 7.03(f).
(b) Settlement Date Procedure. On each Settlement Date for each
Participation (if no Investment Reduction Day shall have occurred during the
Settlement Period then ending), Servicer shall transfer from the Liquidation
Account (or from the Lock-box Accounts), as applicable, to the Purchaser's
Account the amounts set aside as described in Section 3.02(a)(ii) and the
amounts, if any, set aside pursuant to Section 3.04(b) or (c) for payment to the
Agent on such Settlement Date; provided, however, that, if any Yield Period for
a related Participation shall exceed three months, Servicer shall pay to the
Agent within two Business Days of the last day of each three-month period in
such Yield Period all Earned Yield that shall have accrued through such last day
to the same extent as if such Yield Period had ended on such last day.
Receivables Purchase Agreement - 10
<PAGE>
(c) Order of Application. Upon the Agent's receipt of funds distributed
pursuant to Section 3.02(b), the Agent shall distribute them (i) to Purchaser in
payment of the Earned Yield for such Participation and (ii) in the case of any
amounts set aside pursuant to Section 3.04(b) or (c), to Purchaser in reduction
of the related Investment.
SECTION 3.03 Investment Reduction Settlement Procedures for Collections.
(a) Daily Procedure. On each Investment Reduction Day Servicer shall set aside
and hold in trust for Purchaser the Purchaser's Share (calculated in respect of
all Participations) of the Collections in respect of the Portfolio Receivables
that were deposited in the Lock-box Accounts on such day by transferring an
amount equal to the Purchaser's Share of such Collections no later than one
Business day after the Servicer Persons' (or the relevant Servicers') deposit of
such Collections into the relevant Lock-box Account, (i) to the Liquidation
Account (if no Termination Event shall be continuing on such day) or (ii) upon
the request of the Agent, to the Purchaser's Account (if a Termination Event
shall be continuing on such day).
(b) Settlement Date Procedure. On each Settlement Date for each
Participation, if one or more Investment Reduction Days for such Participation
occurs during the related Yield Period for such Settlement Period, Servicer
shall transfer from the Liquidation Account (or from the Lock-box Accounts), as
applicable, to the Purchaser's Account the amounts that have been deposited or
retained therein pursuant to Sections 3.02(a)(ii) and 3.03(a), but that have not
already been transferred to the Purchaser's Account; provided, however, that the
total amount transferred to the Purchaser's Account (on an aggregate basis,
taking into account both amounts transferred pursuant to this Section 3.03(b)
and amounts transferred pursuant to Section 3.03(a) in respect of each
Participation) shall not exceed the sum of (i) the Earned Yield for such
Participation, (ii) the Investment in such Participation, (iii) the aggregate of
other amounts owed hereunder by Seller to Purchaser or Agent (including, without
limitation, all fees payable pursuant to the Fee Letter) and (iv) the accrued
Servicer's Fee payable with respect to such Participation.
(c) Order of Application. Upon receipt of funds deposited to the
Purchaser's Account pursuant to Section 3.03(b), the Agent shall distribute them
(i) to Purchaser or the Agent (as the case may be) (A) in payment of the Earned
Yield for the relevant Participation(s), (B) in reduction of the related
Investment in such Participation(s), and (C) in payment of any other amounts
owed by Seller hereunder to Purchaser or the Agent, in each case until reduced
to zero, and (ii) to Servicer in payment of the accrued Servicer's Fee allocated
to such Participation(s), also until reduced to zero. If there shall be
insufficient funds on deposit for the Agent to distribute funds in payment in
full of the aforementioned amounts, the Agent shall distribute funds, first, in
payment of the Earned Yield for the relevant Participation(s), second, if
Amphenol is not the Servicer, the amount described in the foregoing clause (ii)
owing to such Person, third, in reduction of the related Investment in such
Participation(s), fourth, in payment of other amounts payable to Purchaser or
the Agent, and fifth, if Amphenol is the Servicer, in payment of the Servicer's
Fee payable with respect to such Participation(s) owing to Amphenol.
Receivables Purchase Agreement - 11
<PAGE>
SECTION 3.04 Special Settlement Procedures; Reduction of Investment,
etc.
(a) Deemed Collections. If on any day:
(i) the Unpaid Balance of any Portfolio Receivable is:
(A) reduced as a result of any defective, rejected or
returned merchandise or services, any cash discount, incorrect
billings or any other adjustment by Seller, any Originator or any
other Affiliate of Seller,
(B) reduced or cancelled as a result of a setoff in
respect of any claim or dispute by the Obligor thereof against
Seller, any Originator or any other Affiliate of Seller (whether
such claim arises out of the same or a related or an unrelated
transaction), or
(C) reduced on account of the obligation of Seller, any
Originator or any other Affiliate of Seller to pay to the
related Obligor any rebate or refund; or
(ii) any of the representations or warranties of Seller set
forth in Section 6.01(k) or (o) is no longer true with respect to the
Portfolio Receivable,
then, on such day, Seller shall be deemed to have received a Collection of such
Portfolio Receivable: (I) in the case of clause (i) above, in the amount of such
reduction; and (II) in the case of clause (ii) above, in the amount of the
Unpaid Balance of such Pool Receivable.
On or before the fourteenth calendar day after the Month End Date of
each month that contains one or more days on which Seller is deemed to have
received such a Collection, Seller shall transfer an amount equal to the
aggregate amount of such deemed Collections to Servicer (such transfer to be
made, to the greatest extent practicable, from the Collection Account) and
Servicer shall distribute such transferred amount in the manner set forth in
Section 3.02(a) or Section 3.03(a), as the case may be, as if such transferred
amount actually had been received by Seller on the date of such transfer from
the Obligors of such Receivables and as if such transferred amount actually had
been deposited into one or more of the Lock-box Accounts on the date of such
transfer.
(b) Unreinvested Collections. Collections that may not be reinvested by
means of Reinvestments in a Participation on account of the application of the
Pay-Out Amount Limit or the Purchase Limit pursuant to Section 1.02 shall be so
reinvested as soon as practicable without violating such Pay-Out Amount Limit or
Purchase Limit, as the case may be, unless the Conditions Precedent have not
been satisfied. To the extent and so long as such Collections may not be so
reinvested, Servicer shall hold such Collections for the benefit of Purchaser
for payment to the Agent on the Settlement Date for the Yield Period in which
such Collections are accumulated to the extent that permitted Reinvestments
cannot occur before such Settlement Date, and the related Investment
Receivables Purchase Agreement - 12
<PAGE>
as to such Participation shall be deemed reduced in the amount to be paid to the
Agent only when in fact so paid. During any Investment Reduction Period, all
such Collections shall be held in the Liquidation Account, and upon one Business
Day's written notice given by the Agent to Seller, Servicer shall transfer such
Collections from the Liquidation Account to the Purchaser's Account.
(c) Seller's Reduction of Investment. If at any time Seller shall wish
to cause the reduction of the Investment in a related Participation (but not to
commence the liquidation of all Participations), Seller may do so as follows:
(i) Seller shall give the Agent at least five Business Days'
prior written notice thereof (including the amount of such proposed
reduction and the proposed date on which such reduction will commence),
(ii) on the proposed date of commencement of such reduction and
on each day thereafter, Servicer shall stop reinvesting Collections
until the amount thereof not so reinvested shall equal the desired
amount of reduction, and
(iii) Servicer shall hold such Collections for the benefit of
Purchaser in the Liquidation Account, for payment to the Agent on the
Settlement Date for the Yield Period in which such Collections are
accumulated, and the Investment in such Participation shall be deemed
reduced in the amount to be paid to the Agent only when in fact so paid;
provided, however, that
(A) the amount of any such reduction shall be not less than
$5,000,000 and shall be an integral multiple of $1,000,000, and the
Aggregate Investment after giving effect to such reduction shall not be
less than $5,000,000 and shall be in an integral multiple of $1,000,000;
provided, that the Aggregate Investment after giving effect to such
reduction may be $0,
(B) Seller shall use reasonable efforts to attempt to choose a
reduction amount, and the date of the commencement thereof, so that such
reduction shall commence and conclude in the same Yield Period, and
(C) if two or more Participations shall be outstanding at the
time of any proposed reduction, unless the Agent shall otherwise
consent, such proposed reduction shall be applied to the Participation
with the shortest remaining Yield Period.
(d) Allocations of Obligor's Payments. Except as provided in Section
3.04(a) or as otherwise required by law or the underlying Contract, all
Collections received from an Obligor of any Receivable shall be applied to such
Obligor's Receivables then outstanding in the order of the age of such
Receivables, starting with the oldest such Receivable; provided, however, that,
if payment
Receivables Purchase Agreement - 13
<PAGE>
is designated by such Obligor for application to specific Receivables, it shall
be applied to such specified Receivables.
(e) Permitted Investments. Any amounts in the Liquidation Account or the
Collection Account, as the case may be, may be invested by Seller (or Servicer
on Seller's behalf) in Permitted Investments, so long as Purchaser's interest in
such Permitted Investments is perfected and such Permitted Investments are
subject to no Adverse Claims other than those of Purchaser provided hereunder.
SECTION 3.05 Reporting. (a) On or prior to the fifteenth Business Day of
each month (the "Report Date"), Servicer shall prepare and forward to the Agent:
(i) a Periodic Report, relating to each Participation owned by
Purchaser, as of the close of business of Servicer on the preceding
Month End Date,
(ii) a listing by Obligor of all Portfolio Receivables together
with an aging of such Portfolio Receivables as of such Month End Date,
and
(iii) a certificate of Seller signed on its behalf by its chief
financial officer, dated as of such Month End Date, to the effect that
no Termination Event or Unmatured Termination Event has occurred and is
continuing.
(b) On or prior to each Settlement Date of any Settlement Period
containing an Investment Reduction Day, Servicer shall prepare and forward to
the Agent a Liquidation Statement as of the close of business of Servicer on
such Settlement Date.
(c) On or prior to each Settlement Date, Seller will advise the Agent
and the Servicer of each Investment Reduction Day that occurrred during such
Settlement Period ending on such Settlement Date.
(d) Upon the request of the Agent, and upon the Commitment Termination
Date, Servicer shall deliver to the Agent and the Surety Bond Provider a General
Trial Balance as of the date specified in such request or as of the Commitment
Termination Date, as the case may be.
SECTION 3.06 Payments and Computations, Etc. (a) All amounts to be paid
or deposited by Seller hereunder shall be paid or deposited in accordance with
the terms hereof no later than 11:00 a.m. (Chicago time) on the day when due in
lawful money of the United States of America in same day funds to a special
account (account number 372968-8) in the name of the Purchaser (the "Purchaser's
Account") and maintained at Harris Trust and Savings Bank at 115 South LaSalle
Street, Chicago, Illinois 60603.
Receivables Purchase Agreement - 14
<PAGE>
(b) Seller or Servicer, as applicable, shall, to the extent permitted by
law, pay to the Agent interest on all amounts not paid or deposited when due
hereunder at 2% per annum above the Reference Rate, payable on demand; provided,
however, that such interest rate shall not at any time exceed the maximum rate
permitted by applicable law. Such interest shall be retained by the Agent except
to the extent that such failure to make a timely payment or deposit has
continued beyond the date for distribution by the Agent of such overdue amount
to Purchaser, in which case such interest accruing after such date shall be for
the account of, and distributed by the Agent to, Purchaser.
(c) All computations of interest and all computations of Earned Yield,
Negative Spread Fee and other fees hereunder shall be made on the basis of a
year of 360 days for the actual number of days (including the first but
excluding the last day) elapsed.
SECTION 3.07 Dividing or Combining Participations.
(a) Division of Participations. The Agent may as of the last day of any
Yield Period for any then existing Participation, divide such existing
Participation on such last day into two or more new Participations, each such
new Participation having such Investment as the Agent determines, and all such
new Participations collectively having Investments in an aggregate amount equal
to the Investment of such existing Participation.
(b) Combination of Participations. The Agent may as of the last day of
any Yield Period, or on or before the date of any proposed Purchase of a
Participation by Purchaser, on such last day or such date of Purchase, as the
case may be, combine into one new Participation such existing and/or proposed
Participations or any combination thereof, such new Participation having an
Investment equal to the sum of the Investments of such Participations so
combined.
SECTION 3.08 Treatment of Collections and Deemed Collections. Seller
shall deliver forthwith to Servicer an amount equal to all Collections deemed
received by Seller pursuant to Section 3.04(a), and Seller shall hold or
distribute such Collections as Earned Yield, accrued Servicer's Fee, repayment
of Investment, etc. to the same extent as if such Collections had actually been
received on such date. If Collections are being paid to the Agent, or lock boxes
or accounts directly or indirectly owned or controlled by the Agent, Servicer
shall forthwith cause any deemed Collections to be paid to the Agent or such
lock boxes or accounts. So long as Seller shall hold any Collections or deemed
Collections required to be paid to Servicer or the Agent, it shall hold such
Collections in trust and separate and apart from its own funds and shall clearly
mark its records to reflect such trust.
Receivables Purchase Agreement - 15
<PAGE>
ARTICLE IV
FEES AND YIELD PROTECTION
SECTION 4.01 Fees. Seller shall pay to the Agent and Purchaser the fees
in the amount and in the times set forth in the Fee Letter.
SECTION 4.02 Yield Protection. (a) If (i) Regulation D of the Board of
Governors of the Federal Reserve System or (ii) any Regulatory Change occurring
after the date hereof:
(A) shall subject an Affected Party to any tax, duty or other
charge with respect to any Participation owned by or funded by it, or
any obligations or right to make Purchases or Reinvestments or to
provide funding therefor, or shall change the basis of taxation of
payments to the Affected Party of any Investments or Earned Yield made
by or owed to or funded by it or any other amounts due under this
Agreement in respect of any Participations owned by or funded by it or
its obligations or rights, if any, to make Purchases or Reinvestments or
to provide funding therefor (except for changes in the rate of tax on
the overall net income of such Affected Party imposed by the United
States of America or the jurisdiction in which such Affected Party's
principal executive office is located);
(B) shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the Board of
Governors of the Federal Reserve System but excluding any reserve
included in the determination of Earned Yield), special deposit,
compulsory loan or similar requirement against assets of, deposits or
obligations with or for the account of (or with or for the account of
any Affiliate of), or credit extended by, any Affected Party;
(C) shall change the amount of capital maintained or required,
requested or directed to be maintained by such Affected Party;
(D) shall change the rate for, or the manner in which the Federal
Deposit Insurance Corporation (or any successor thereto) assesses,
deposit insurance premiums or similar charges applicable to such
Affected Party; or
(E) shall impose any other condition affecting any Participations
owned or funded by any Affected Party, its Certificates, if any, or its
obligations or rights, if any, to make Purchases or Reinvestments or to
provide funding therefor;
and the result of any of the foregoing is or would be:
(x) to increase the cost to (or in the case of Regulation D
referred to above to impose a cost on): (I) an Affected Party funding or
making or maintaining any Purchases or
Receivables Purchase Agreement - 16
<PAGE>
Reinvestments, or loans or other extensions of credit under the
Liquidity Agreement, or any commitment of such Affected Party with
respect to any of the foregoing, or (II) the Agent for continuing its,
or Seller's, relationship with Purchaser,
(y) to reduce the amount of any sum received or receivable by an
Affected Party under this Agreement, the Liquidity Agreement or the
Insurance Agreement with respect thereto, or
(z) in the reasonable determination of such Affected Party, to
reduce the rate or return on the capital of an Affected Party as a
consequence of its obligations hereunder or arising in connection
herewith to a level below that which any such Affected Party could
otherwise have achieved,
then, within thirty days after demand by such Affected Party (which demand shall
be accompanied by a statement setting forth the basis of such demand), Seller
shall pay directly to such Affected Party, subject to the second sentence of
subsection (b) below, such additional amount or amounts as will compensate such
Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify Seller and the Agent within
30 days after it has knowledge of any event occurring after the date hereof
which will entitle such Affected Party to such additional amounts as
compensation pursuant to this Section 4.02. Such additional amounts shall accrue
from the date of such event (or if such notice is not given within 30 days after
such Affected Party's knowledge of such Event, from the date which is 30 days
prior to the date such notice is given by such Affected Party).
(c) In determining any amount provided for in this Section 4.02, the
Affected Party may use any reasonable averaging and attribution methods that it
(in its sole discretion) shall deem applicable. Any Affected Party when making a
claim under this Section 4.02 shall submit to Seller a statement as to such
increased cost or reduced return (including calculation thereof in reasonable
detail), which statement shall, in the absence of manifest error, be conclusive
and binding upon Seller.
ARTICLE V
CONDITIONS OF PURCHASES
SECTION 5.01 Conditions Precedent to Purchase. The effectiveness of this
Agreement is subject to the condition precedent that the Agent shall have
received the following, each (unless otherwise indicated) dated the date hereof,
in form and substance satisfactory to the Agent:
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<PAGE>
(a) Except to the extent already delivered in connection with
the Original RPA, a Certificate;
(b) A copy of the resolutions of the Board of Directors of Seller
and each Originator approving this amendment and restatement of the
Original RPA and the transactions contemplated hereby, certified by the
Secretary or Assistant Secretary of each such Person;
(c) Good standing certificates for Seller and each Originator
issued by the Secretary of State of the jurisdiction of such Person's
incorporation;
(d) Except to the extent that the certificates delivered in
connection with the Original RPA remain true and correct, a certificate
of the Secretary or Assistant Secretary of Seller and each Originator
certifying the names and true signatures of the officers authorized on
such Person's behalf to sign the Transaction Documents to be delivered
by it (on which certificate the Agent and Purchaser may conclusively
rely until such time as the Agent shall receive from Seller a revised
certificate meeting the requirements of this subsection (d));
(e) Except to the extent that the certificate of incorporation,
other organizational document and/or by-laws delivered in connection
with the Original RPA remain true and correct, the certificate of
incorporation or other organizational document of each of Seller and
each Originator, duly certified by the Secretary of State of the
jurisdiction of such Person's incorporation as of a recent date
acceptable to Agent, together with a copy of the by-laws of each of
Seller and each Originator, duly certified by the Secretary or an
Assistant Secretary of such Person;
(f) Except to the extent already delivered in connection with the
Original RPA: (i) acknowledgment copies of proper financing statements
(Form UCC-1), filed on or prior to the date of the initial Purchase,
naming Seller as assignor/seller of receivables or an undivided interest
therein and Purchaser as the secured party and purchaser as may be
necessary or, in the opinion of the Agent, desirable under the UCC to
perfect Purchaser's interests in all Participations in which an interest
may be assigned to it or otherwise created or arising hereunder and (ii)
executed copies of proper Uniform Commercial Code Form UCC-3 termination
statements necessary to release all liens and other Adverse Claims of
any Person in any Receivables, Related Security and the Lock-box
Accounts previously granted by any Person;
(g)(i) A written search report provided to the Agent by a search
service acceptable to the Agent, listing all effective financing
statements that name Seller or any Originator as debtor or assignor and
that are filed in the jurisdictions in which filings were made pursuant
to subsection (f) above and in such other jurisdictions that Agent shall
reasonably request, together with copies of such financing statements
(none of which shall cover any Receivable or interests therein or
proceeds of any thereof), and (ii) tax and judgment lien search reports
Receivables Purchase Agreement - 18
<PAGE>
from a Person satisfactory to the Agent showing no evidence of such lien
filed against Seller or any Originator;
(h) Except to the extent already delivered in connection with the
Original RPA, duly executed copies of (i) Lock-box Agreements with each
of the Lock-box Banks and (ii) Account Agreements with each of the
Account Banks;
(i) Favorable opinions from:
(i) Simpson Thatcher & Bartlett, counsel to Amphenol (as
the Servicer), Seller and the Originators, substantially in the
form of Exhibit 5.01(i)-1; and
(ii) Edward C. Wetmore, General Counsel of Amphenol (as
the Servicer), Seller and the Originators, substantially in the
form of Exhibit 5.01(i)-2;
(j) Except to the extent already delivered in connection with the
Original RPA, such powers of attorney as the Agent shall reasonably
request to enable Agent to collect all amounts due under any and all
Portfolio Receivables;
(k) A Periodic Report as of the most recent Month End Date;
(l) Except to the extent already delivered in connection with the
Original RPA, the Servicer Person Letter Agreement, duly executed by
Seller, Amphenol and the Originators;
(m) Evidence (i) of the execution and delivery by each of the
parties thereto of the amended and restated Purchase and Sale Agreement,
dated as of the date hereof, and all documents, agreements and
instruments contemplated thereby (which evidence shall include copies,
either original or facsimile, of each of such documents, instruments and
agreements), (ii) that each of the conditions precedent to the
effectiveness of such amended and restated Purchase and Sale Agreement
has been satisfied to the Agent's satisfaction, and (iii) that the
initial purchases under such amended and restated Purchase and Sale
Agreement have been consummated;
(n) A certificate from an officer of Amphenol (in form
satisfactory to the Agent) to the effect that, on the date hereof,
Seller has a Tangible Net Worth, as calculated in accordance with GAAP,
of at least Four Million Dollars ($4,000,000);
(o) A certificate from an officer of Amphenol to the effect that
Servicer and each Originator have placed on the most recent, and have
taken all steps reasonably necessary to ensure that there shall be
placed on each subsequent, data processing report that it generates
which are of the type which any proposed purchaser or lender would use
to evaluate the Receivables, the following legend (or the substantive
thereof): "THE RECEIVABLES
Receivables Purchase Agreement - 19
<PAGE>
DESCRIBED HEREIN HAVE BEEN SOLD TO AMPHENOL FUNDING CORP. PURSUANT TO AN
AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT, DATED AS OF MAY 19,
1997, AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AMONG AMPHENOL
CORPORATION, CERTAIN OTHER ORIGINATORS, AND AMPHENOL FUNDING CORP.; AND
UNDIVIDED, FRACTIONAL OWNERSHIP INTERESTS IN THE RECEIVABLES DESCRIBED
HEREIN HAVE BEEN SOLD TO POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION
PURSUANT TO AN AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT,
DATED AS OF MAY 19, 1997, AS THE SAME MAY BE AMENDED OR SUPPLEMENTED
FROM TIME TO TIME, AMONG AMPHENOL FUNDING CORP., AMPHENOL CORPORATION,
POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION, AND NESBITT BURNS
SECURITIES, INC., AS AGENT";
(p) The Fee Letter, together with the fees payable to the Agent
pursuant thereto and all costs and expenses due and payable pursuant to
Section 14.06, if then invoiced;
(q)(i) Duly executed and delivered counterparts of the Amphenol
Credit Agreement (which agreement shall have a revolving credit term
that expires no earlier than the Scheduled Commitment Termination Date)
permitting the transactions contemplated by the Transaction Documents
and not providing for any Adverse Claims in the Receivables, Related
Security, Lock-box Accounts and other collateral described in Section
13.01, and (ii) confirmation that the recapitalization of Amphenol and
its Affiliates shall have closed;
(r) A certificate from an authorized officer of Amphenol and an
authorized officer of Seller as to the satisfaction of the conditions
set forth in Section 5.02; and
(s) The Agent shall have received evidence of the execution and
delivery of an amendment to the Liquidity Agreement in connection with
this amendment and restatement of the Original RPA.
SECTION 5.02 Conditions Precedent to All Purchases and Reinvestments.
Each Purchase (including the initial Purchase) and each Reinvestment hereunder
shall be subject to the further condition precedent ("Conditions Precedent")
that on the date of such Purchase or Reinvestment the following statements shall
be true (and Seller by accepting the amount of such Purchase or by receiving the
proceeds of such Reinvestment shall be deemed to have certified that):
(a) The representations and warranties contained in Sections
6.01 and 6.02 are true and correct on and as of such day as though made
on and as of such day and shall be deemed to have been made on such day
(except to the extent that any such representation or warranty is
expressed to be made only as of an earlier date, in which case such
representation or warranty shall have been true and correct on and as of
such earlier date);
Receivables Purchase Agreement - 20
<PAGE>
(b) No event has occurred and is continuing, or would result from
such Purchase or Reinvestment, that constitutes a Termination Event or
an Unmatured Termination Event;
(c) After giving effect to each proposed Purchase or
Reinvestment, the Aggregate Investment will not exceed the Purchase
Limit and the Aggregate Pay-Out Amount will not exceed the Pay-Out
Amount Limit; and
(d) The Commitment Termination Date shall not have occurred;
provided, however, that the absence of the occurrence and continuance of an
Unmatured Termination Event (other than an Unmatured Termination Event with
respect to an event described in Section 9.01(f)) shall not be a Condition
Precedent to:
(i) any Reinvestment being made with the proceeds of Collections
that were, on the same day, applied in reduction of the Aggregate
Investment, or
(ii) any other Reinvestment or any Purchase on any day which does
not cause the Aggregate Investment, after giving effect to such
Reinvestment or Purchase (and any Reinvestment referred to in clause (i)
next above) to exceed the Aggregate Investment as of the opening of
business on such day.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01 Representations and Warranties of Seller. In order to
induce Purchaser and the Agent to enter into this Agreement and, in the case of
Purchaser, to make Purchases and Reinvestments hereunder, Seller hereby
represents and warrants to Purchaser and the Agent as to itself as follows:
(a) Organization and Good Standing. It is a corporation duly
organized, validly existing and in good standing under the laws of its
state of incorporation; and has all requisite corporate power and
authority to own its properties and to conduct its business as such
properties are presently owned and such business is presently conducted.
(b) Due Qualification. It is duly licensed or qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of its property or the conduct of its business
requires such qualification, licenses or approvals (except to the extent
that the failure to be so licensed or qualified would not be reasonably
likely to have a Material Adverse Effect),
Receivables Purchase Agreement - 21
<PAGE>
(c) Power and Authority; Due Authorization. It has (i) all
necessary corporate power and authority and legal right (A) to execute,
deliver and perform its obligations under each Transaction Document to
which it is a party, and (B) to sell and assign Participations on the
terms and conditions herein provided, and (ii) duly authorized by all
necessary corporate action (including, if required, any shareholder
action) such execution, delivery and performance of such Transaction
Documents. Seller had at all relevant times, and now has, all necessary
power and authority and legal right to acquire and own the Portfolio
Receivables, to sell and assign Participations and to incur obligations
hereunder.
(d) Valid Sale; Binding Obligations. Each Purchase made pursuant
to this Agreement shall constitute a valid sale, transfer and assignment
of the relevant Participation to Purchaser, enforceable against
creditors of, and purchasers from, Seller; and this Agreement
constitutes, and each other Transaction Document executed or to be
executed by Seller, when duly executed and delivered, constitutes or
will constitute, a legal, valid and binding obligation of Seller
enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally and by
general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents, and
the fulfillment of the terms hereof and thereof, will not (i) conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice, lapse of time or both) a default
under: (A) the articles or certificate of incorporation or by-laws of
Seller, or (B) any indenture, loan agreement, mortgage, deed of trust or
other agreement or instrument to which Seller is a party or by which it
or any of its properties is otherwise bound, (ii) result in the creation
or imposition of any Adverse Claim upon any of its Receivables or
related properties pursuant to the terms of any such indenture, loan
agreement, mortgage, deed of trust or other agreement or instrument,
other than the Transaction Documents, or (iii) violate any law or any
order, rule or regulation applicable to Seller of any court or of any
federal, state or foreign regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over Seller or
any of its properties.
(f) No Proceedings. Except as described in Schedule 6.01(f),
(i) there is: (A) no order, judgment, decree,
injunction, stipulation or consent order of or with any court or
other government authority to which Seller is subject, and (B)
there is no action, suit, arbitration, regulatory proceeding or
investigation pending or threatened, before or by any court,
regulatory body, administrative agency or other tribunal or
governmental instrumentality, against Seller, that, in either
case, individually or in the aggregate, is reasonably likely to
have a Material Adverse Effect; and
Receivables Purchase Agreement - 22
<PAGE>
(ii) there is no action, suit, proceeding, arbitration or
regulatory or governmental investigation, pending or threatened,
before or by any court, regulatory body, administrative agency or
other tribunal or governmental instrumentality (A) asserting the
invalidity of this Agreement, the Certificate or any other
Transaction Document, (B) seeking to prevent the sale and
assignment of any Participation, the issuance of the Certificate,
or the consummation of any of the other transactions contemplated
by this Agreement or any other Transaction Document, or (C)
seeking to adversely affect the federal income tax attributes of
the Purchases and Reinvestments hereunder or the Certificate.
(g) Bulk Sales Act. No transaction contemplated by this Agreement
or the other Transaction Documents requires compliance with, or will be
subject to avoidance under, any bulk sales act or similar law.
(h) Government Approvals. No authorization, consent, approval or
other action by, and no notice to or filing with, any court,
governmental authority or regulatory body or other Person, domestic or
foreign (which has not been obtained or made), is or will be required
for the due execution, delivery or performance by Seller of any
Transaction Document to which it is a party, except for the filing of
the UCC Financing Statements referred to in Article V, all of which, at
the time required in Article V, shall have been duly made and shall be
in full force and effect.
(i) Financial Condition. (i) Seller's balance sheet as of the
date of this Agreement, certified by the Financial Officer, copies of
which have been furnished to Purchaser and the Agent, fairly presents
Seller's assets and liabilities at such date; and
(ii) Since December 31, 1996, no event has occurred that
has had, or is reasonably likely to have, a Material Adverse
Effect.
(j) Margin Regulations. The use of all funds acquired by Seller
under this Agreement will not conflict with or contravene any of
Regulations G, T, U and X promulgated by the Board of Governors of the
Federal Reserve System from time to time.
(k) Quality of Title. Seller owns each Portfolio Receivable,
together with the related Contract and all purchase orders and other
agreements related to such Portfolio Receivable, free and clear of any
Adverse Claim (other than any Adverse Claim arising solely as the result
of any action taken
Receivables Purchase Agreement - 23
<PAGE>
by Purchaser or by the Agent) except as expressly provided herein or in
the Purchase and Sale Agreement. When Purchaser makes a Purchase, it
shall have acquired and shall continue to maintain a valid and perfected
first priority undivided percentage ownership interest to the extent of
its Participation in each Portfolio Receivable and in the Related
Security and Collections with respect thereto free and clear of any
Adverse Claim (other than any Adverse Claim arising solely as the result
of any action taken by Purchaser or by the Agent except as expressly
provided under this Agreement or under the Purchase and Sale Agreement).
No effective financing statement or other instrument similar in effect
covering any Portfolio Receivable, any interest therein, the Related
Security or Collections with respect thereto is on file in any recording
office except such as may be filed (i) in favor of the relevant
Originator in accordance with the Contracts, (ii) in favor of the Seller
in accordance with the Purchase and Sale Agreement, (iii) in favor of
Purchaser or the Agent in accordance with this Agreement, (iv) in
connection with any Adverse Claim arising solely as the result of any
action taken by Purchaser (or any assignee thereof) or by the Agent or
(v) in favor of the Collateral Trustee.
(l) Accurate Reports. No Periodic Report (if prepared by Seller
or any Originator, or to the extent that information contained therein
was supplied by Seller or any Originator), information, exhibit,
financial statement, document, book, record or report furnished or to be
furnished by Seller or any Originator to the Agent or Purchaser in
connection with this Agreement or the other Transaction Documents was or
will be inaccurate in any material respect as of the date it was or will
be dated or (except as otherwise disclosed to the Agent or Purchaser, as
the case may be, at such time) as of the date so furnished, or contained
or will contain any material misstatement of fact or omitted or will
omit to state a material fact or any fact necessary to make the
statements contained therein not materially misleading.
(m) Offices. The principal places of business and chief executive
offices of Seller is located at its address referred to in Section 14.02
and the offices where Seller keeps all its books, records and documents
evidencing Portfolio Receivables, the related Contracts and all purchase
orders and other agreements related to such Portfolio Receivables are
located at the address specified in Exhibit 6.01(m) (or at such other
locations, notified to the Agent in accordance with Section 7.01(f), in
jurisdictions where all action required by Section 8.04 has been taken
and completed).
(n) Lock-box Accounts. The names and addresses of all the
Lock-box Banks, together with the account numbers of the lock-box
accounts of Seller at such Lock-box Banks, are specified in Exhibit
6.01(n) (or at such other Lock-box Banks and/or with such other lock-box
accounts as have been notified to the Agent in accordance with Section
7.03(d)).
(o) Eligible Receivables. Each Receivable included in the
Seller's calculation of the Net Portfolio Balance as an Eligible
Receivable on the date of any Purchase or Reinvestment shall be an
Eligible Receivable on such date.
(p) Capitalization.The authorized capital stock of Seller
consists of one thousand (1000) shares of common stock, without par
value ("Seller Common Stock"), 100 of which shares are currently issued
and outstanding. All of such outstanding shares of Seller Common Stock
are validly issued, fully paid and nonassessable and are owned
(beneficially and of
Receivables Purchase Agreement - 24
<PAGE>
record) by the Originators in the amounts set forth in Schedule 1 to
the Subscription Agreement.
(q) Licenses and Labor Controversies. (i) Seller has not failed
to obtain any licenses, permits, franchises or other governmental
authorizations necessary to the ownership of its properties or to the
conduct of its business, which violation or failure to obtain would be
reasonably likely to have a Material Adverse Effect;
(ii) There are no labor controversies pending against
Seller that have had (or are reasonably likely to have) a
Material Adverse Effect.
(r) Trade Names. Seller does not use any trade name other than
its actual corporate name and the trade names set forth in Schedule
6.01(r). From and after December 3, 1988, Seller has not been known by
any legal name other than its corporate name as of the date hereof, nor
has it been the subject of any merger or other corporate reorganization,
except as set forth in Schedule 6.01(r).
(s) Taxes. Seller has filed all federal and other tax returns and
reports required by law to have been filed by it and has paid all taxes
and governmental charges thereby shown to be owing, except any such
taxes or charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves, if any, in
accordance with GAAP shall have been set aside on its respective books.
(t) Compliance with Applicable Laws. Seller is in compliance with
the requirements of (i) all applicable laws, rules, regulations and
orders of all governmental authorities (excluding with respect to
environmental matters, which are covered by clause (ii)) and (ii) to the
best of its knowledge, all applicable environmental laws, rules,
regulations and orders of all governmental authorities, in the case of
each of clauses (i) and (ii), including federal, state, local or
foreign, a breach of any of which, individually or in the aggregate,
would be reasonably likely to have a Material Adverse Effect.
SECTION 6.02 Representations and Warranties of Amphenol. In order to
induce Purchaser and the Agent to enter into this Agreement and, in the case of
Purchaser, to make Purchases and Reinvestments hereunder, Amphenol hereby
represents and warrants to Purchaser and the Agent as to itself and with respect
to each other Originator as follows:
(a) Organization and Good Standing. Each Originator has been duly
organized and is validly existing as a corporation in good standing
under the laws of the state of its incorporation, with power and
authority to own its properties and to conduct its business as such
properties are presently owned and such business is presently conducted.
Receivables Purchase Agreement - 25
<PAGE>
(b) Due Qualification. Each Originator is duly licensed or
qualified to do business as a foreign corporation in good standing in
all jurisdictions in which the ownership or lease of its property or the
conduct of its business requires such licensing or qualification (except
to the extent that the failure to be so licensed or qualified would not
be reasonably likely to have a Material Adverse Effect).
(c) Power and Authority; Due Authorization. Each Originator has:
(i) all necessary power, authority and legal right: (A) to execute and
deliver, and perform its obligations under, each Transaction Document to
which it is a party and (B) to generate, own, sell and assign
Receivables on the terms and subject to the conditions herein and
therein provided; and (ii) duly authorized such execution and delivery
and such sale and assignment and the performance of such obligations by
all necessary corporate action (including, if required, any shareholder
action).
(d) Binding Obligations. This Agreement and each other
Transaction Document signed or to be signed by each Originator, when
duly executed and delivered, constitutes or will constitute, a legal,
valid and binding obligation of such Originator, enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally and by general principles
of equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents, and
the fulfillment of the terms hereof or thereof, will not (a) conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice, lapse of time or both) a default
under (i) each Originator's articles or certificate of incorporation or
by-laws, or (ii) any indenture, loan agreement, mortgage, deed of trust
or other agreement or instrument to which any Originator is a party or
by which any Originator or any of their respective properties is bound,
except for any conflict, breach or default that would not be reasonably
likely to have a Material Adverse Effect, (b) result in the creation or
imposition of any Adverse Claim upon any Originator's properties
pursuant to the terms of any such indenture, loan agreement, mortgage,
deed of trust or other agreement or instrument, other than the
Transaction Documents, or (c) violate any law or any order, rule or
regulation applicable to it of any court or of any federal, state or
foreign regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over any Originator or any of its
properties, except for any violation that would not be reasonably likely
to have a Material Adverse Effect.
(f) No Proceedings. Except as described in Schedule 6.01(f),
there is no action, suit, proceeding or investigation pending before any
court, regulatory body, arbitrator, administrative agency or other
tribunal or governmental instrumentality: (i) asserting the
Receivables Purchase Agreement - 26
<PAGE>
invalidity of any Transaction Document, (ii) seeking to prevent the
issuance of any such Originator's Originator Assignment Certificate or
the consummation of any of the transactions contemplated by any
Transaction Document, or (iii) seeking any determination or ruling that
is reasonably likely to have a Material Adverse Effect.
(g) Bulk Sales Acts. No transaction contemplated hereby requires
compliance with, or will be subject to avoidance under, any bulk sales
act or similar law.
(h) Government Approvals. Except for the filing of the UCC
financing statements referred to in Article V of the Purchase and Sale
Agreement, all of which, at the time required in such Article V, shall
have been duly made and shall be in full force and effect, no
authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required for each
Originator's due execution, delivery and performance of any Transaction
Document to which it is a party, except where the failure to receive or
make such authorization, approval, action, notice or filing would not be
reasonably likely to have a Material Adverse Effect.
(i) Financial Condition. (i) The consolidated balance sheets of
Amphenol and its consolidated subsidiaries as of December 31, 1996, and
the related statements of income and shareholders' equity of Amphenol
and its consolidated subsidiaries for the fiscal year then ended
certified by Price Waterhouse, Amphenol's independent accountants,
copies of which have been furnished to the Agent, present fairly the
consolidated financial position of Amphenol and its consolidated
subsidiaries as at such date and the consolidated results of the
operations of Amphenol and its consolidated subsidiaries for the period
ended on such date, all in accordance with GAAP consistently applied;
and
(ii) Since December 31, 1996, no event has occurred that
has had, or is reasonably likely to have, a Material Adverse
Effect.
(j) Licenses, Contingent Liabilities and Labor Controversies. (i)
No Originator has failed to obtain any licenses, permits, franchises or
other governmental authorizations necessary to the ownership of its
properties or to the conduct of its business, which violation or failure
to obtain would be reasonably likely to have a Material Adverse Effect.
(ii) There are no labor controversies pending against any
Originator that have had (or are reasonably likely to have) a
Material Adverse Effect.
(k) Margin Regulations. No use of any funds acquired by any
Originator under the Purchase and Sale Agreement will conflict with or
contravene any of Regulations G, T, U and X promulgated by the Board of
Governors of the Federal Reserve System from time to time.
Receivables Purchase Agreement - 27
<PAGE>
(l) Quality of Title. (i) Each Receivable of each Originator
(together with the Related Security for such Receivable) which is to be
sold to Seller under the Purchase and Sale Agreement is or shall be
owned by such Originator, free and clear of any Adverse Claim, except as
provided herein and in the Purchase and Sale Agreement. Whenever Seller
makes a purchase under the Purchase and Sale Agreement, it shall have
acquired and shall continue to have maintained a valid and perfected
ownership interest (free and clear of any Adverse Claim) in all
Receivables generated by such Originator and all Collections related
thereto, and in such Originator's entire right, title and interest in
and to the Related Security with respect thereto.
(ii) No effective financing statement or other instrument
similar in effect covering any Receivable generated by any
Originator or any right related to any such Receivable that is of
the type described in Section 1.1 of the Purchase and Sale
Agreement is on file in any recording office except such as may
be filed in favor of Seller or the Originators, as the case may
be, in accordance with the Purchase and Sale Agreement or in
favor of Purchaser in accordance with this Agreement.
(m) Accuracy of Information. All factual written information
heretofore or contemporaneously furnished (and prepared) by each
Originator to Seller, Purchaser or the Agent for purposes of or in
connection with any Transaction Document or any transaction contemplated
hereby or thereby is, and all other such factual written information
hereafter furnished (and prepared) by such Originator to Seller,
Purchaser or the Agent pursuant to or in connection with any Transaction
Document will be, true and accurate in every material respect on the
date as of which such information is dated or certified. No information
contained in any report delivered pursuant to Section 7.2 of the
Purchase and Sale Agreement or in any Purchase Report shall be
incomplete by omitting to state any material fact necessary to make such
information not misleading on the date as of which such information is
dated or certified.
(n) Offices. Each Originator's principal place of business and
chief executive office are located at their respective addresses set
forth on the signature pages to the Purchase and Sale Agreement under
such Originator's signature thereto, and the offices where such
Originator keeps all its books, records and documents evidencing its
Receivables, the related Contracts and all other agreements related to
such Receivables are located at the addresses specified in Exhibit
6.01(m) (or at such other locations, notified to Servicer and the Agent
in accordance with Section 7.01(f), in jurisdictions where all action
required by Section 8.05 has been taken and completed).
(o) Trade Names. No Originator uses any trade name other than its
actual corporate name and the trade names set forth in Schedule 6.01(r).
Except as set forth on Schedule 6.01(r), from and after December 3,
1988, each Originator has not been known by any legal name other than
its corporate name as of the date hereof, nor has any Originator been
the
Receivables Purchase Agreement - 28
<PAGE>
subject of any merger or other corporate reorganization, except as set
forth in Schedule 6.01(r).
(p) Taxes. Each Originator has filed all tax returns and reports
required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes or
charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books.
(q) Compliance with Applicable Laws. Each Originator is in
compliance with the requirements of all applicable laws, rules,
regulations and orders of all governmental authorities, a breach of any
of which, individually or in the aggregate, would be reasonably likely
to have a Material Adverse Effect.
ARTICLE VII
COVENANTS OF SELLER AND AMPHENOL
SECTION 7.01 Affirmative Covenants of Seller and Amphenol. From the date
hereof until the first day following the Commitment Termination Date on which
all Participations shall be reduced to zero and all Obligations hereunder shall
have been finally and fully paid and performed, Seller hereby covenants and
agrees with Purchaser and the Agent as to itself, and Amphenol hereby covenants
and agrees with Purchaser and the Agent as to itself, Seller and each
Originator, that, unless the Agent shall otherwise consent in writing, it shall:
(a) Compliance with Laws, Etc. Comply, and in the case of
Amphenol, cause each Originator to comply, in all material respects with
all applicable laws, rules, regulations and orders that relate to the
Portfolio Receivables and related Contracts except where the failure to
so comply would not materially and adversely affect the collectability
of the Portfolio Receivables or the rights of Purchaser hereunder.
(b) Preservation of Corporate Existence. Preserve and maintain
its corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation, and qualify and remain qualified in
good standing as a foreign corporation in each jurisdiction where the
failure to preserve and maintain such existence, rights, franchises,
privileges and qualification would have a Material Adverse Effect.
(c) Audits. (i) At any time and from time to time during regular
business hours (and upon two Business Days' prior notice so long as no
Termination Event is continuing), permit, and in the case of Amphenol,
cause the Seller and each Originator to permit, the Agent, or its agents
or representatives (and/or, if the Agent shall have consented (which
consent shall
Receivables Purchase Agreement - 29
<PAGE>
not be unreasonably withheld), the Surety Bond Provider or its agents or
representatives) (A) to examine and make copies of and abstracts from
all books, records and documents (including, without limitation,
computer tapes and disks) in possession or under the control of Seller,
Amphenol or any other Originator relating to Receivables, including,
without limitation, the related Contracts and purchase orders and other
agreements, and (B) to visit the offices and properties of Seller,
Amphenol and each Originator for the purpose of examining such materials
described in clause (i)(A) above, and to discuss matters relating to
Portfolio Receivables or the performance hereunder with any of the
officers or employees of Seller, Amphenol and each Originator having
knowledge of such matters, and (ii) without limiting the foregoing
clause (i), from time to time on request of the Agent (given not more
than once in each calendar year so long as no Termination Event shall
have occurred and be continuing), permit certified public accountants or
other auditors acceptable to the Agent to conduct, at Seller's expense
(so long as such expenses for Seller's account do not exceed $15,000 in
a calendar year), a review of Seller's and Amphenol's books and records
with respect to the Receivables.
(d) Keeping of Records and Books of Account. Maintain and
implement, and in the case of Amphenol, cause Seller and each Originator
to maintain and implement, administrative and operating procedures
(including, without limitation, an ability to recreate records
evidencing Portfolio Receivables in the event of the destruction of the
originals thereof), and keep and maintain all documents, books, records
and other information reasonably necessary or advisable for the
collection of all Portfolio Receivables (including, without limitation,
records adequate to permit the daily identification of each new
Portfolio Receivable and all Collections of and adjustments to each
existing Portfolio Receivable).
(e) Performance and Compliance with Receivables and Contracts.
Subject to Section 7.03(b), in the case of Amphenol, at its expense
timely and fully perform and comply, and cause each other Originator
timely and fully to perform and comply, in all material respects with
all of the provisions, covenants and other promises required to be
observed by it under the Contracts related to the Portfolio Receivables
and all purchase orders and other agreements related to such Portfolio
Receivables.
(f) Location of Records. Keep, and in the case of Amphenol, cause
each other Originator to keep, its principal place of business and chief
executive office, and the offices where it keeps its records concerning
the Portfolio Receivables, all related Contracts and all purchase orders
and other agreements related to such Portfolio Receivables (and all
original documents relating thereto), at the address(es) referred to in
Section 6.01(m) or, upon 15 days' prior written notice to the Agent, at
such other locations in jurisdictions where all action required by
Section 8.04 shall have been taken and completed.
(g) Credit and Collection Policies. In the case of Amphenol,
comply, and cause each other Originator to comply, in all material
respects with the Credit and Collection Policy of
Receivables Purchase Agreement - 30
<PAGE>
Amphenol and each such Originator, respectively, in regard to each
Portfolio Receivable and the related Contract.
(h) Collections. (i) In the case of Amphenol (individually and
not as Servicer), promptly remit, and cause each other Originator
promptly to remit, to the applicable post office box related to the
Lock-box Accounts (or cause to be deposited directly to such Lockbox
Accounts) all Collections received by Amphenol or such other
Originators, as the case may be;
(ii) Amphenol agrees to instruct, and to cause each other
Originator to instruct, all Obligors to cause all Collections of
Portfolio Receivables to be deposited directly with a Lock-box
Bank; and
(iii) Amphenol shall, and shall cause each Servicer Person
to, promptly draw on any letter of credit supporting any
Receivable originated by it in order to ensure the timely payment
of such Receivable, and shall cause the proceeds of such drawing
to be deposited to a Lock-box Account on the date such drawing is
honored by the issuer of such letter of credit.
(i) Separate Corporate Existence. Amphenol and Seller hereby
acknowledge that Purchaser and the Agent are entering into the
transactions contemplated by this Agreement in reliance upon Seller's
identity as a legal entity separate from Servicer, Amphenol, and the
Originators. Therefore, from and after the date hereof, Seller and
Amphenol shall take all reasonable steps to continue Seller's identity
as a separate legal entity and to make it apparent to third Persons that
Seller is an entity with assets and liabilities distinct from those of
Servicer, Amphenol, the Originators and any other Person, and is not a
division of Servicer, Amphenol, any Originator or any other Person.
Without limiting the generality of the foregoing and in addition to and
consistent with the covenant set forth in Section 7.01(b), Seller and
Amphenol shall take such actions, and Amphenol shall cause the
Originators to take such actions, as shall be required in order that:
(i) Seller will be a limited purpose corporation whose
primary activities are restricted in its certificate of
incorporation to purchasing Receivables from the Originators,
entering into agreements for the servicing of such Receivables,
selling Participations, making Originator Loans and conducting
such other activities as it deems necessary or appropriate to
carry out its primary activities;
(ii) Not less than one member of Seller's Board of
Directors (the "Independent Directors") shall be individuals who
are not direct, indirect or beneficial stockholders, officers,
directors, employees, affiliates, associates, customers or
suppliers of any Amphenol Person or any of its Affiliates.
Seller's Board of Directors shall not approve, or take any other
action to cause, the commencement of a
Receivables Purchase Agreement - 31
<PAGE>
voluntary case or other proceeding with respect to Seller under any
applicable bankruptcy, insolvency, reorganization, debt arrangement,
dissolution or other similar law, or the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian or
other similar official for Seller unless in each case all of the
Independent Directors shall approve the taking of such action in writing
prior to the taking of such action. The Independent Directors' fiduciary
duty shall be to Seller (and creditors) and not to Seller's shareholders
in respect of any decision of the type described in the preceding
sentence. In the event an Independent Director resigns or otherwise
ceases to be a director of Seller, there shall be selected a replacement
Independent Director who shall not be an individual within the
proscriptions of the first sentence of this clause (ii) or any
individual who has any other type of professional relationship with any
Amphenol Person or any of its Affiliates or any management personnel of
any such Person or Affiliate and who shall be (x) a tenured professor at
a business or law school, (y) a retired judge or (z) an established
independent member of the business community, having a sound reputation
and experience relative to the duties to be performed by such individual
as an Independent Director;
(iii) No Independent Director shall at any time serve as
a trustee in bankruptcy for any Amphenol Person;
(iv) Any employee, consultant or agent of Seller will be
compensated from Seller's own bank accounts for services provided
to Seller except as provided herein in respect of Servicer's Fee.
Seller will engage no agents other than a Servicer for the
Receivables, which Servicer will be fully compensated for its
services to Seller by payment of the Servicer's Fee;
(v) Seller will contract with Servicer to perform for
Seller all operations required on a daily basis to service its
Receivables. Seller will pay Servicer a monthly fee based on the
level of Receivables being managed by Servicer. Seller will not
incur any material indirect or overhead expenses for items shared
between Seller and any Amphenol Person which are not reflected in
the Servicer's Fee. To the extent, if any, that Seller and any
Amphenol Person share items of expenses not reflected in the
Servicer's Fee, such as legal, auditing and other professional
services, such expenses will be allocated to the extent practical
on the basis of actual use or the value of services rendered, and
otherwise on a basis reasonably related to the actual use or the
value of services rendered, it being understood that Amphenol
shall pay all expenses relating to the preparation, negotiation,
execution and delivery of the Transaction Documents and the
Liquidity Agreement, including, without limitation, legal,
commitment, agency and other fees;
Receivables Purchase Agreement - 32
<PAGE>
(vi) Seller's operating expenses will not be paid by any
Amphenol Person unless Seller shall have agreed in writing with
such Amphenol Person to reimburse such Amphenol Person for any
such payments;
(vii) Seller will have its own separate mailing address
and stationery;
(viii) Seller's books and records will be maintained
separately from those of every other Amphenol Person;
(ix) Any financial statements of any Amphenol Person which
are consolidated to include Seller will contain detailed notes
clearly stating that Seller is a separate corporate entity and
has sold ownership interests in Seller's accounts receivable;
(x) Seller's assets will be maintained in a manner that
facilitates their identification and segregation from those of
any other Amphenol Person;
(xi) Seller will strictly observe corporate formalities in
its dealings with each Amphenol Person, and funds or other assets
of Seller will not be commingled with those of any Amphenol
Person. Seller shall not maintain joint bank accounts or other
depository accounts to which any Amphenol Person (other than
Amphenol in its capacity as Servicer or any other Originator in
its capacity as a Servicer Person) has independent access. None
of Seller's funds will at any time be pooled with any funds of
any other Amphenol Person;
(xii) Seller shall pay to the appropriate Amphenol Person
the marginal increase (or, in the absence of such increase, the
market amount of its portion) of the premium payable with respect
to any insurance policy that covers Seller and any other Amphenol
Person, but Seller shall not, directly or indirectly, be named or
enter into an agreement to be named, as a direct or contingent
beneficiary or loss payee, under any such insurance policy, with
respect to any amounts payable due to occurrences or events
related to any other Amphenol Person;
(xiii) Seller will maintain arm's length relationships
with each Amphenol Person. Any Amphenol Person that renders or
otherwise furnishes services to Seller will be compensated by
Seller at market rates for such services; and
(xiv) Neither Seller nor any Amphenol Person will be or
will hold itself out to be responsible for the debts of the other
or the decisions or actions respecting the daily business and
affairs of the other.
(j) Post Office Boxes. Except to the extent already provided in
connection with the Original RPA, within 60 days after the date hereof,
Amphenol shall deliver to the Agent
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<PAGE>
(with a copy for Purchaser) a certificate from an authorized officer of
Amphenol to the effect that (i) the name of the renter of all post
office boxes into which Collections may from time to time be mailed have
been changed to the name of Seller (unless such post office boxes are in
the name of the relevant Lock-box Banks) and (ii) all relevant
postmasters have been notified that each of Servicer (and each Servicer
Person) and the Agent are authorized to collect mail delivered to such
post office boxes (unless such post office boxes are in the name of the
relevant Lock-box Banks).
SECTION 7.02 Reporting Requirements of Seller. From the date hereof
until the first day following the Commitment Termination Date on which all
Participations shall be reduced to zero and all Obligations shall have been
finally and fully paid and performed, Seller will, unless the Agent shall
otherwise consent in writing, furnish to the Agent the following:
(a) Quarterly Financial Statements. As soon as available and in
any event within 60 days after the end of each of the first three
quarters of each fiscal year of Amphenol and Seller, (i) copies of (A)
the unaudited consolidated balance sheet of Amphenol and its
consolidated subsidiaries, and (B) the unaudited balance sheet of
Seller, in each case as at the end of such quarter, together with
unaudited statements of earnings, stockholders' equity
and cash flows for such quarter and the portion of the fiscal year
through such quarter, prepared in accordance with GAAP (subject to
ordinary course audit adjustments; provided that any adjusted financial
statements shall be furnished to the Agent as soon as reasonably
practical thereafter) and certified by the chief financial officer,
treasurer or chief accounting officer of Amphenol (such officer being
herein called the "Financial Officer"), (ii) a letter from the Financial
Officer certifying to the best knowledge of the Financial Officer that
neither a Termination Event nor an Unmatured Termination Event has
occurred and is continuing;
(b) Annual Financial Statements. As soon as available and in any
event within 120 days after the end of each fiscal year of each of
Amphenol and Seller, a copy of (A) the consolidated balance sheet of
Amphenol and its consolidated subsidiaries, and (B) the balance sheet of
Seller, in each case as at the end of such fiscal year, together with
the related statements of earnings, stockholders' equity and cash flows
for such fiscal year, each prepared in accordance with GAAP applied
consistently throughout the periods reflected therein (Amphenol's
consolidated balance sheet and such related statements to be certified
without any Impermissible Qualification by independent certified public
accountants of nationally recognized standing, and Seller's balance
sheet and such related statements to be certified by the Financial
Officer);
(c) Reports to Holders and Exchanges. In addition to the reports
required by subsections (a) and (b) above, promptly upon the Agent's
request, copies of any publicly-filed reports or other documents,
including any reports or registration statements that
Receivables Purchase Agreement - 34
<PAGE>
Amphenol or Seller files with the Securities and Exchange Commission or
any national securities exchange other than registration statements
relating to employee benefit plans;
(d) ERISA. Promptly after receiving any notice of any Reportable
Event (as defined in Title IV of ERISA) with respect to any Amphenol
Person that would be reasonably likely to have a Material Adverse
Effect, a copy of such notice;
(e) Termination Events. As soon as possible after the occurrence
of, and in any event within three Business Days after the occurrence of,
each Termination Event and each Unmatured Termination Event, a written
statement of Seller's chief financial officer or chief accounting
officer setting forth details thereof and the action that Seller
proposes to take with respect thereto, in each case in reasonable
detail;
(f) Litigation. As soon as possible, and in any event within
three Business Days of Seller's knowledge thereof, written notice of (i)
any action, suit, proceeding, arbitration, regulatory or governmental
investigation of the type described in Schedule 6.01(f) not previously
disclosed to the Agent, and (ii) any material adverse development in
previously disclosed actions, suits, proceedings, arbitrations,
regulatory or governmental investigations; and
(g) Other. Promptly, from time to time, such other information,
documents, records or reports with respect to the Receivables or the
conditions or operations, financial or otherwise, of Seller or Amphenol
as the Agent may from time to time reasonably request in order to
protect the interests of the Agent or Purchaser in connection with this
Agreement.
SECTION 7.03 Negative Covenants. From the date hereof until the date
following the Commitment Termination Date on which all Participations shall be
reduced to zero and all Obligations hereunder shall have been finally and fully
paid and performed, Seller and Amphenol shall perform their respective
Obligations under this Section 7.03, unless the Agent shall otherwise consent in
writing:
(a) Sales, Liens, Etc. Except as otherwise provided herein or in
the Purchase and Sale Agreement, neither Seller nor Amphenol shall sell,
assign (by operation of law or otherwise) or otherwise dispose of, or
create or suffer to exist any Adverse Claim upon or with respect to, any
Portfolio Receivable or related Contract or Related Security, any
interest therein, or upon or with respect to any lock-box account to
which any Collections of any Portfolio Receivable are sent, or assign
any right to receive income in respect thereof.
(b) Extension or Amendment of Receivables. Except as otherwise
permitted in Section 8.02(c), Seller and Amphenol shall not, and
Amphenol shall not permit any Originator to, extend, amend or otherwise
modify in any material respect the terms of any Portfolio Receivable, or
amend, modify or waive, in any material respect, any term or
Receivables Purchase Agreement - 35
<PAGE>
condition of any Contract related thereto (which term or condition
relates to payment under, or the enforcement of, such Contract).
(c) Change in Business or Credit and Collection Policy. Seller
and Amphenol shall not, and Amphenol shall not permit any Originator to,
make any change in the character of its business or materially alter its
Credit and Collection Policy, which change would, in either case, be
reasonably likely to have a Material Adverse Effect.
(d) Change in Payment Instructions to Obligors. Add or terminate
any bank as a Lock-box Bank from those listed in Exhibit 6.01(n) or make
any material change in its instructions to Obligors regarding
Collections or payments to be made to any Lock-box Bank, unless (i) the
Agent shall have received notice of such addition, termination or change
and duly executed copies of Lock-box Agreements with each new Lock-box
Bank and copies of such instructions (which shall be in form and
substance acceptable to the Agent) and (ii) Purchaser previously shall
have consented in writing to such addition, termination or change (which
consent, in the case of any such addition or termination, shall not be
unreasonably withheld by Purchaser). Seller shall not add or terminate
any bank as an Account Bank from those listed in Schedule 7.03(d) or
make any change in its instructions regarding payments to be made by any
Account Bank, unless (A) the Agent shall have received duly executed
counterparts of an Account Agreement with each new Account Bank and
copies of such instructions (which shall be in form and substance
acceptable to the Agent) and (B) Purchaser previously shall have
consented in writing to such addition, termination or change (which
consent, in the case of any such addition or termination, shall not be
unreasonably withheld by Purchaser).
(e) Mergers, Acquisitions, Sales, etc. (i) Seller shall not:
(A) be a party to any merger or consolidation, or
directly or indirectly purchase or otherwise acquire,
whether in one or a series of transactions, all or
substantially all of the assets or any stock of any class
of, or any partnership or joint venture interest in, any
other Person, or sell, transfer, assign, convey or lease
any of its property and assets (including, without
limitation, any Receivable or any interest therein) other
than pursuant to this Agreement;
(B) make, incur or suffer to exist an investment
in, equity contribution to, loan, credit or advance to, or
payment obligation in respect of the deferred purchase
price of property from any other Person, except for
Permitted Investments and the Originator Notes; or
(C) create any direct or indirect Subsidiary or
otherwise acquire direct or indirect ownership of any
equity interests in any other Person.
Receivables Purchase Agreement - 36
<PAGE>
(ii) Amphenol shall not, and shall not permit any other
Originator to (unless such Originator is removed from the
Purchase and Sale Agreement in accordance with the provisions
thereof):
(A) be a party to any merger or consolidation,
except (1) a merger or consolidation involving Amphenol or
an Originator where Amphenol or the Originator is the
surviving corporation, or (2) a merger or consolidation
among two or more Originators (including, without
limitation, Amphenol), or
(B) directly or indirectly sell, transfer, assign,
convey or lease (1) whether in one or a series of
transactions, all or substantially all of its assets,
except to another Originator (including, without
limitation, Amphenol), or (2) any Receivables or any
interest therein (other than pursuant to this Agreement or
the Purchase and Sale Agreement).
(f) Restricted Payments.
(i) General Restriction. Except in accordance with this
Section 7.03(f), Seller shall not (A) purchase or redeem any
shares of its capital stock, (B) declare or pay any Dividend or
set aside any funds for any such purpose, (C) prepay, purchase or
redeem any subordinated indebtedness of Seller, (D) lend or
advance any funds or (E) repay any loans or advances to, for or
from any other Amphenol Person. Actions of the type described in
this clause (i) are herein collectively called "Restricted
Payments".
(ii) Types of Permitted Payments. Subject to the
limitations set forth in clause (iii) below, Seller may make
Restricted Payments so long as such Restricted Payments are made
only to the Originators and only in one or more of the following
ways:
(A) Seller may make cash payments (including
prepayments) on the AFC Notes in accordance with their
terms; and
(B) if no amounts are then outstanding under the
AFC Notes, Seller may (1) declare and pay Dividends and
(2) make demand loans to one or more of the Originators
(so long as each such loan is evidenced by an Originator
Note).
(iii) Specific Restrictions. Seller may make Restricted
Payments only out of funds in the Lock-box Accounts that do not
represent the Purchaser's Share of any
Receivables Purchase Agreement - 37
<PAGE>
Collections (or deemed Collections). Furthermore, Seller shall
not pay, make or declare:
(A) any Dividend if, after giving effect thereto,
Seller's Tangible Net Worth would be less than Four
Million Dollars ($4,000,000); or
(B) any Restricted Payment (including any Dividend)
if, after giving effect thereto, any Termination Event or
Unmatured Termination Event shall have occurred and be
continuing.
(g) Use of Seller's Share of Collections. Seller shall apply its
share of Collections to make payments in the following order of
priority: first, the payment of its expenses (including, without
limitation, the Obligations payable to Purchaser and the Agent
hereunder), second, the payment of accrued and unpaid interest on the
AFC Notes, third, the payment of the outstanding principal amount of the
AFC Notes, and fourth, other legal and valid corporate purposes.
(h) Amendments to Certain Documents. (i) Neither Seller nor
Amphenol shall, and Amphenol shall not permit any other Originator to,
amend, supplement, amend and restate, or otherwise modify the Purchase
and Sale Agreement, any Originator Assignment Certificate, any AFC Note,
any Originator Note, the Subscription Agreement, any Lock-box Agreement,
any agreement between a Lock-box Bank and Seller which is referred to in
any Lock-box Agreement, or Seller's certificate of incorporation or
by-laws, except (A) in accordance with the terms of such document,
instrument or agreement (and, in the case of any agreement between a
Lock-box Bank and Seller which is referred to in any Lock-box
Agreement, in accordance with the terms of the relevant Lock-box
Agreement) and (B) with the advance written consent of Purchaser and the
Agent.
(ii) Amphenol shall not, and it shall not permit any
Amphenol Person (including Seller or any Originator) to, enter
into, execute and deliver, or otherwise become bound by, any
agreement, instrument, document or other arrangement that
restricts the right of any Amphenol Person that is a party to
this Agreement or any other Transaction Document to amend,
supplement, amend and restate or otherwise modify, or to extend
or renew, or to waive any right under, this Agreement or any
other Transaction Document.
(i) Deposits to Special Accounts. Deposit or otherwise credit, or
cause or permit to be so deposited or credited by any Originator or any
other Person, to any Lock-box Account or any Bank Account cash or cash
proceeds other than Collections of Receivables.
(j) Incurrence of Indebtedness. Seller shall not (i) create,
incur or permit to exist any Indebtedness, Guaranty or liability or (ii)
cause or permit to be issued for its account any
Receivables Purchase Agreement - 38
<PAGE>
letters of credit or bankers' acceptances, except for Indebtedness
incurred pursuant to an AFC Note and liabilities incurred pursuant to or
in connection with the Transaction Documents or otherwise permitted
therein.
ARTICLE VIII
ADMINISTRATION AND COLLECTION
SECTION 8.01 Designation of Servicer.
(a) Amphenol as Initial Servicer. The servicing, administering and
collection of the Receivables shall be conducted by the Person designated as
servicer hereunder ("Servicer") from time to time in accordance with this
Section 8.01. Until the Agent gives notice to Amphenol of the designation of a
new Servicer (the "Successor Notice"), which notice may be given at any time
after the occurrence and during the continuance of a Termination Event, Amphenol
is hereby designated as, and hereby agrees to perform the duties and obligations
of, Servicer pursuant to the terms hereof.
(b) Successor Notice. Upon Amphenol's receipt of a Successor Notice,
Amphenol agrees that it will terminate its activities as Servicer hereunder, and
will cause each Servicer Person to terminate its activities in that capacity, in
a manner that the Agent indicates will facilitate the transition of the
performance of such activities to the new Servicer. The Agent, or such other
Person as the Agent shall designate, shall assume each and all of the
obligations of Amphenol (and each Servicer Person) to service, administer and
collect such Receivables, on the terms and subject to the conditions herein set
forth, and Amphenol shall use its best efforts (and shall cause each Servicer
Person to use its best efforts) to assist the Agent (or its designee) in
assuming such obligations. Prior to designating such Person (other than the
Agent) as the new Servicer, the Agent agrees to use reasonable efforts to
obtain at least two competitive bids from Persons of sound reputation that are
experienced in the business of servicing portfolios of trade receivables and/or
that are otherwise acceptable to the Agent and rating agencies then rating
Purchaser's Commercial Paper Notes, and agrees to designate as the new Servicer
such Person submitting the lowest of such bids; provided, however, that such
Person's bid meets all requirements of the Agent specified in its request for
such bids; and provided further, that the failure of the Agent to obtain such
bids shall not adversely affect the right of the Agent to designate a new
Servicer pursuant to Sections 8.01(a) and (b).
(c) Subcontracts. Servicer hereby appoints, and Purchaser and the Agent
hereby consent to the appointment by Servicer of, each Originator to act as a
Servicer Person with respect to the portion of the Portfolio Receivables sold by
such Originator to Seller; provided, that Servicer shall remain liable for the
performance of all duties and obligations of Servicer pursuant to the terms of
this Agreement and the other Transaction Documents. The obligations and rights
of each Originator, as a Servicer Person, are set forth in certain letter
agreements by and among the parties hereto and the Originators (each a "Servicer
Person Letter Agreement").
Receivables Purchase Agreement - 39
<PAGE>
(d) Servicer's Fee. Seller hereby agrees to pay to Servicer a fee (the
"Servicer's Fee") for each calendar month (or portion thereof in which such
Person was acting as Servicer) from and including the date hereof to but
excluding the date on which all amounts payable under or in connection with this
Agreement and the Purchase and Sale Agreement have been finally paid in full
(and this Agreement and the Purchase and Sale Agreement shall have terminated),
in an amount calculated as follows:
(i) at any time when Amphenol is the Servicer, an amount equal to
one-twelfth of 1% of the Unpaid Balance of the Portfolio Receivables as
measured on the latest Month End Date referred to in the most recent
Periodic Report; or
(ii) on and after Servicer's reasonable request made at any time
when Amphenol is not the Servicer, the greater of (A) an amount
calculated pursuant to the foregoing clause (i) or (B) an alternative
amount specified by Servicer not exceeding 110% of the aggregate costs
and expenses incurred by Servicer during such calendar month in
connection with performing its obligations under this Agreement and the
other Transaction Documents.
Such Servicer's Fee shall be paid out of the Seller's share of the Collections
of Receivables, except to the extent the Servicer's Fee is expressly provided to
be paid out of the Purchaser's Share of such Collections pursuant to Section
3.02(a)(iii). Accrued Servicer's Fees shall be payable at the times and in the
amounts specified in Article III. In addition, on the fifteenth day of each
calendar month (or, if such day is not a Business Day, on the next Business
Day), Seller and Servicer shall determine whether there was an aggregate
underpayment (in which case Seller shall make an appropriate additional payment
to Servicer on such date) or overpayment (in which case Servicer shall make, out
of the Seller's share of such Collections, an appropriate rebate to Seller on
such date) of the Servicer's Fee during the most recent calendar month.
SECTION 8.02 Duties of Servicer and Seller.
(a) Appointment; Duties in General. Each of Seller, Purchaser and the
Agent hereby appoints the Servicer, from time to time designated pursuant to
Section 8.01, as its agent to enforce their respective rights and interests in
and under the Portfolio Receivables, the Contracts and the Related Security.
Servicer shall take or cause to be taken all such actions as may be necessary or
advisable to collect each Receivable (or shall cause each Servicer Person to
take or cause to be taken all such actions as may be necessary or advisable to
collect each Receivable sold by it to Seller) from time to time, all in
accordance with applicable laws, rules and regulations, with reasonable care and
diligence, and in accordance with the Credit and Collection Policy of the
applicable Originator.
(b) Allocation of Collections. Servicer shall set aside for the account
of Seller and Purchaser their respective allocable shares of the Collections in
accordance with Article III.
Receivables Purchase Agreement - 40
<PAGE>
(c) Modification of Receivables. Servicer may adjust, and may permit
each Servicer Person to adjust, in accordance with the Credit and Collection
Policy of the applicable Originator, the Unpaid Balance of any Receivable of
such Originator to reflect the reductions or cancellations described in the
first sentence of Section 3.04(a). Servicer shall, or shall cause the applicable
Servicer Person to, write off Receivables from time to time in accordance with
the Credit and Collection Policy of the applicable Originator.
(d) Documents and Records. Amphenol shall cause each Originator to
deliver to Servicer, and Servicer shall hold in trust for Seller and Purchaser
in accordance with their respective interests, all documents, instruments and
records (including, without limitation, computer tapes or disks and Contracts)
that evidence or relate to Receivables of such Originator, except that an
Originator shall not be required to make such a delivery to the extent that (but
only so long as) such Originator is acting as a Servicer Person pursuant to this
Agreement.
(e) Certain Duties to Seller. Servicer shall, as soon as practicable
following receipt, turn over to Seller that portion of Collections of
Receivables representing Seller's undivided interest therein, less, in the event
Amphenol is no longer the Servicer, all reasonable and appropriate out-of-pocket
costs and expenses of Servicer of servicing, collecting and administering the
Receivables to the extent not covered by the Servicer's Fee received by it.
(f) Authorization to Act as Seller's Agent. Seller hereby appoints
Servicer (but only for so long as Amphenol is the Servicer in the case of
clauses (i), (v) and (vi) below) as its agent for the following purposes: (i)
selecting the amount of each requested Purchase, (ii) specifying accounts to
which payments are to be made to Seller, (iii) making transfers among, deposits
to and withdrawals from the Lock-box Accounts and other deposit accounts of
Seller for the purposes described in the Transaction Documents, (iv) arranging
payment by Seller of all fees, expenses, other Obligations and other amounts
payable under the Transaction Documents, (v) consenting to assignments and
delegations by Purchaser and (vi) causing the reduction of the Investment
pursuant to Section 3.04(c). Seller irrevocably agrees that (A) it shall be
bound by all actions taken by Servicer pursuant to the preceding sentence, and
(B) that Purchaser, the Agent, the Lock-box Banks, the Account Banks and the
banks holding all other deposit accounts of Seller are entitled to accept
submissions, determinations, selections, specifications, transfers, deposits and
withdrawal requests, and payments from Servicer on behalf of Seller.
(g) Termination. The authorization of Servicer (and each Servicer
Person) under this Agreement (and, in the case of the Servicer Persons, under
the Purchase and Sale Agreement) shall terminate upon receipt by the Agent,
after the Commitment Termination Date, of an amount equal to (i) the Aggregate
Investment plus (ii) accrued Earned Yield for each Participation plus (iii) all
other amounts owed to Purchaser and the Agent and (unless otherwise agreed to by
Servicer and the Agent) to Servicer under this Agreement.
Receivables Purchase Agreement - 41
<PAGE>
(h) Agreement Not to Resign. Amphenol acknowledges that Purchaser and
the Agent have relied on Amphenol's agreement to act as the Servicer hereunder
in their respective decisions to execute and deliver the Transaction Documents.
In recognition of the foregoing, Amphenol agrees not to resign as Servicer
voluntarily, or to permit any other Originator to resign as a Servicer Person
voluntarily, unless Amphenol or such Originator is not permitted by law to serve
in such capacity, as evidenced by an opinion of counsel to such effect, which
opinion shall be satisfactory in form and substance to the Agent.
SECTION 8.03 Rights of the Agent.
(a) Notice to Obligors. At any time after the occurrence of and during
the continuation of a Termination Event, the Agent may notify the Obligors of
Receivables, or any of them, of the Purchaser's ownership of Participations.
(b) Notice to Lock-box Banks. At any time following the earlier to occur
of (i) the occurrence of (and during the continuation of) a Termination Event,
or (ii) any of the Conditions Precedent shall not be satisfied and the Agent
shall have requested implementation of the settlement procedures set forth in
Section 3.03, the Agent is hereby authorized to give notice to the Lock-box
Banks, as provided in the Lock-box Agreements, of the transfer to the Agent (for
the benefit of Purchaser) of dominion and control over the Lock-box Accounts to
which the Obligors of Receivables make payments. Seller hereby transfers to the
Agent (for the benefit of Purchaser), effective when the Agent shall give notice
to the Lock-box Banks as provided in the Lock-box Agreements, the exclusive
dominion and control over such Lock-box Accounts, and shall take any further
action that the Agent may reasonably request to effect such transfer. The Agent
is hereby authorized to give notice to the Account Banks, as provided in the
Account Agreements, of the transfer of dominion and control over the Collection
Account and the Liquidation Account to the Agent (for the benefit of Purchaser).
Seller hereby transfers to the Agent (for the benefit of Purchaser), effective
when the Agent shall give notice to the Account Banks as provided in the Account
Agreements, the exclusive dominion and control over such Accounts, and shall
take any further action that the Agent may reasonably request to effect such
transfer.
(c) Rights on Servicer Transfer. At any time following the designation
of a Servicer other than Amphenol pursuant to Section 8.01:
(i) The Agent may direct any Obligors of Receivables to pay all
amounts payable under any Receivable directly to the Agent or its
designee.
(ii) The Agent may direct any Originator to make payment of all
amounts payable to Seller under any Transaction Document (other than any
Originator Note) to which such Originator is a party directly to the
Agent or its designee.
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<PAGE>
(iii) Seller shall, at the Agent's request and at Seller's
expense, give notice of Purchaser's ownership of Participations to each
Obligor and direct that payments be made directly to the Agent or its
designee.
(iv) Seller and Amphenol shall, at the Agent's request, (A)
assemble (and, in the case of Amphenol, cause each other Originator to
assemble) all of the documents, instruments and other records
(including, without limitation, computer programs, tapes and disks and
Contracts) which evidence the Receivables, and the related Contracts and
Related Security, or which are otherwise necessary or desirable to
collect such Receivables, and shall make the same available to the Agent
at a place selected by the Agent or its designee, (B) segregate all
cash, checks and other instruments received by it from time to time
constituting Collections of Receivables in a manner acceptable to the
Agent and shall, promptly upon receipt, remit all such cash, checks and
instruments, duly endorsed or with duly executed instruments of
transfer, to the Agent or its designee, and (C) permit (and Amphenol
agrees to cause each Originator to permit), any successor Servicer and
its agents, employees and assignees access to its respective facilities
and its books, records, documents and instruments (including, without
limitation, computer programs, tapes and disks and Contracts) related to
Receivables.
(v) Each of Seller, Amphenol and Purchaser hereby authorizes the
Agent to take any and all steps in Seller's name and on behalf of
Seller, Amphenol or Purchaser which are necessary, in the reasonable
determination of the Agent, to collect all amounts due under any and all
Receivables, including, without limitation, indorsing Seller's or any
Originator's name on checks and other instruments representing
Collections and enforcing such Receivables, the related Contracts and
the Related Security therefor.
(vi) Seller hereby irrevocably appoints the Agent to act as
Seller's attorney-in-fact, with full authority in the place and stead of
Seller and in the name of Seller or otherwise, to take any action and to
execute any instrument that the Agent, in its reasonable determination,
may deem necessary to accomplish the purposes of this Agreement,
including, without limitation:
(A) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to
become due under or in respect of any Receivable;
(B) to receive, indorse and collect any drafts or other
instruments, documents and chattel paper related to the
Receivables or the Related Security, or constituting Collections;
(C) to file any claims or take any action or institute any
proceedings which Purchaser, in its reasonable determination, may
deem necessary for the collection of
Receivables Purchase Agreement - 43
<PAGE>
any of the Receivables or otherwise to enforce the rights of the
Agent and Purchaser with respect to any of the Receivables; and
(D) to perform the affirmative obligations of Seller under
any Transaction Document (other than the Originator Notes).
Seller hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section 8.03(c) is irrevocable and coupled with an
interest.
SECTION 8.04 Further Action Evidencing Purchases. Seller agrees that
from time to time, at its expense, it will promptly execute and deliver all
further instruments and documents, and take all further action, that the Agent
may reasonably request in order to perfect, protect or more fully evidence the
Participations purchased by Purchaser hereunder, or to enable any of Purchaser,
any holder of a Certificate or the Agent to exercise or enforce any of their
respective rights hereunder or under their Certificates. Without limiting the
generality of the foregoing, Seller will upon the request of the Agent: (i)
execute and file such financing or continuation statements, or amendments
thereto or assignments thereof, and such other instruments or notices as may be
necessary or appropriate; (ii) mark conspicuously each Contract evidencing each
Portfolio Receivable, mark its master data processing records evidencing such
Portfolio Receivables and related Contracts with the legend described in Section
5.01(o); and (iii) deliver to Purchaser all letters of credit supporting the
payment of any Portfolio Receivable, together with all necessary instruments of
transfer or assignment. Seller hereby authorizes the Agent to file one or more
financing or continuation statements, and amendments thereto and assignments
thereof, relative to all or any of the Portfolio Receivables and the Related
Security now existing or hereafter arising in the name of Seller. If Seller
fails to perform any of its agreements or obligations under this Agreement, the
Agent may (but shall not be required to) itself perform, or cause performance
of, such Agreement or obligation, and the expenses of the Agent incurred in
connection therewith shall be payable by Seller as provided in Section 12.01.
SECTION 8.05 Application of Collections. Any payment by an Obligor in
respect of any indebtedness owed by it to Seller shall, except as otherwise
specified by such Obligor or otherwise required by contract or law and unless
otherwise instructed by the Agent, be applied as a Collection of any Portfolio
Receivable or Receivables of such Obligor to the extent of any amounts then due
and payable thereunder before being applied to any other indebtedness of such
Obligor.
Receivables Purchase Agreement - 44
<PAGE>
ARTICLE IX
TERMINATION EVENTS
SECTION 9.01 Termination Events. A termination event ("Termination
Events") shall occur if any of the following events occurs:
(a)(i) Servicer (if Amphenol) shall fail to perform or observe
any term, covenant or agreement hereunder (other than as referred to in
clause (ii)) and such failure shall remain unremedied for three Business
Days, or (ii) Servicer (if Amphenol) or Seller shall fail to make any
payment or deposit to be made by it hereunder when due;
(b) Any representation or warranty made or deemed to be made by
Seller, Servicer, Amphenol or any Originator (or any of their respective
officers) under or in connection with any Transaction Document or any
Periodic Report or Liquidation Statement or other information or report
delivered pursuant hereto shall prove to have been false or incorrect in
any material respect when made or deemed made;
(c) Seller, Amphenol or any other Originator shall fail to
perform or observe in any material respect any other term, covenant or
agreement contained in this Agreement or in any other Transaction
Document on its part to be performed or observed and any such failure
shall remain unremedied for 30 Business Days after written notice
thereof shall have been given by the Agent to Seller;
(d) A default shall have occurred under any agreements,
indentures or instruments under which Seller, Amphenol or any Material
Subsidiary of Amphenol has outstanding indebtedness for borrowed money
(including guarantees of such indebtedness but excluding non-recourse
indebtedness) in excess of $20 million in principal amount and: (i) such
indebtedness is already due and payable in full or (ii) such default has
resulted in the acceleration of the maturity of such indebtedness, in
each case after a period of five days during which period such default
shall not have been cured or such acceleration shall not have been
rescinded; provided, that no "Termination Event" shall result from any
acceleration of any indebtedness existing under the Original RPA due to
the recapitalization of Amphenol and its subsidiaries referred to in
Section 5.01(q)(i);
(e) An Event of Bankruptcy shall have occurred with respect to
Seller, Amphenol or any other Originator;
(f) The Aggregate Pay-Out Amount shall exceed the Pay-Out Amount
Limit at any time during any month and such condition shall continue to
exist unremedied for two Business Days after the related Report Date
with respect to such month;
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<PAGE>
(g) The Default Ratio exceeds 8.0% at any time or the arithmetic
mean of the Default Ratios for the most recent three calendar months
exceeds 5.5%;
(h) The Dilution Ratio exceeds 7.75% at any time;
(i) The arithmetic mean of the Delinquency Ratios for the most
recent three calendar months exceeds 9.5% at any time;
(j) The Internal Revenue Service shall file notice of a lien
pursuant to Section 6323 of the Internal Revenue Code with regard to any
of the assets of Seller and such lien shall not have been released
within ten Business Days, or the Pension Benefit Guaranty Corporation
shall, or shall indicate its intention to, file notice of a lien
pursuant to Section 4068 of ERISA with regard to any of the assets of
Seller or any Originator;
(k) The warranties in Sections 6.01(i)(ii) and 6.02(i)(ii) shall
not be true at any time;
(l) A Change in Control shall have occurred;
(m)(i) Any Transaction Document, or any ownership or other
interest granted or created thereunder, shall (except in accordance with
its terms), in whole or in part, terminate, cease to be effective or
cease to be the legally valid, binding and enforceable obligation of
Seller, Servicer or any Originator; or (ii) Seller, Servicer, any
Originator or any other Amphenol Person shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding nature or
enforceability;
(n) Seller's Tangible Net Worth shall be less than $4,000,000 for
more than five (5) consecutive Business Days; or
(o) a Purchase and Sale Termination Event shall have occurred
and be continuing.
SECTION 9.02 Remedies.
(a) Optional Termination. Upon the occurrence of a Termination Event
(other than a Termination Event described in Section 9.01(e), (g), (h) or (i)),
the Agent shall, at the request, or may with the consent, of Purchaser, by
notice to Seller declare the Commitment Termination Date to have occurred.
(b) Automatic Termination. Upon the occurrence of a Termination Event
described in Section 9.01(e), (g), (h) or (i) the Commitment Termination Date
shall be deemed to have occurred automatically; provided, however, that with
respect to any proceeding instituted against Seller pursuant to 11 U.S.C. ss.303
(an "Involuntary Federal Proceeding"), the settlement procedures described in
Section 3.03 shall become applicable upon the commencement of such Proceeding
and
Receivables Purchase Agreement - 46
<PAGE>
no further Purchases or Reinvestments of Collections shall be made; and provided
further, that if such Involuntary Federal Proceeding is dismissed within 60 days
after its commencement, and if no other Termination Event has occurred, then
following such dismissal the Commitment shall be reinstated as if the Commitment
Termination Date had not occurred upon the commencement of such Involuntary
Federal Proceeding.
(c) Additional Remedies. Upon any termination of the Commitment pursuant
to this Section 9.02, the Agent and Purchaser, in addition to all other rights
and remedies under this Agreement or otherwise, shall have all other rights and
remedies provided under the UCC of each applicable jurisdiction and other
applicable laws, which rights shall be cumulative. Without limiting the
foregoing or the general applicability of Article XI hereof, (i) the occurrence
of a Termination Event shall not deny Purchaser any remedy in addition to
termination of the Commitment to which Purchaser may be otherwise appropriately
entitled, whether at law or in equity, and (ii) Purchaser may elect to assign
any Participation owned by Purchaser to an assignee following the occurrence of
any Termination Event.
ARTICLE X
THE AGENT
SECTION 10.01 Authorization and Action. Purchaser hereby appoints
Nesbitt Burns as its Agent under and for purposes of each Transaction Document,
and authorizes the Agent to act on its behalf under each Transaction Document
and to exercise such powers hereunder and thereunder as are delegated to the
Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto.
SECTION 10.02 Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or the Agent under or in connection with this
Agreement (including, without limitation, the Agent's servicing, administering
or collecting Portfolio Receivables as Servicer pursuant to Section 8.01),
except for its or their own gross negligence or willful misconduct. Without
limiting the generality of the foregoing, the Agent: (i) may consult with legal
counsel (including counsel for Seller), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (ii) makes no warranty or representation to Purchaser or
any holder of a Certificate and shall not be responsible to Purchaser or any
holder of a Certificate for any statements, warranties or representations made
in or in connection with this Agreement or any other Transaction Document; (iii)
shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement or any
other Transaction Document on the part of Seller or any Originator or to inspect
the property (including the books and records) of Seller or any Originator; (iv)
shall not be responsible to Purchaser or any holder of a Certificate for the due
Receivables Purchase Agreement - 47
<PAGE>
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement, any other Transaction Document, the Certificates or any other
instrument or document furnished pursuant hereto; and (v) shall incur no
liability under or in respect of this Agreement or any other Transaction
Document by acting upon any notice (including notice by telephone), consent,
certificate or other instrument or writing (which may be by telex) believed by
it to be genuine and signed or sent by the proper party or parties.
ARTICLE XI
ASSIGNMENT OF PURCHASER'S INTEREST
SECTION 11.01 Restrictions on Assignments. None of Amphenol, Seller or
Purchaser may assign its rights hereunder or any interest herein without the
prior written consent of the Agent, and, subject to Section 9.02(c), Purchaser
may not assign any Participation (or portion thereof) to any Person without the
prior written consent of Seller; except that (i) Purchaser may assign a
Participation (or any portion thereof) to the Surety Bond Provider pursuant to
the Insurance Agreement, and (ii) Purchaser may assign and grant a security
interest in each Participation, and in all Purchaser's rights under this
Agreement, to Bank of Montreal Trust Company, as Collateral Trustee, and any
successor in such capacity, to secure Purchaser's obligations under or in
connection with the Commercial Paper Notes, the Liquidity Agreement, the
Insurance Agreement, the Depositary Agreement (as defined in the Liquidity
Agreement) and certain other obligations of Purchaser incurred in connection
with the funding of the Purchases and Reinvestments hereunder, which assignment
and grant of a security interest shall not be considered an "assignment" for
purposes of the second sentence of this Section 11.01 or, prior to the
enforcement of such security interest, for purposes of any other provision of
this Agreement; provided, that, notwithstanding any such assignment permitted
pursuant to clause (i) or (ii), the Purchaser's obligations hereunder shall
remain unchanged. Within five Business Days after notice of such proposed
assignment, Seller agrees to advise the Agent of its consent or non-consent
thereto.
SECTION 11.02 Evidence of Assignment; Endorsement on Certificate. Any
assignment of any Participation (or portion thereof) may be evidenced by an
instrument of assignment in the form of Exhibit 11.01 or by such other
instrument(s) as may be satisfactory to Purchaser, the Agent and the assignee.
Purchaser hereby authorizes the Agent to, and the Agent agrees that it shall,
endorse the Certificate to reflect any assignments made pursuant to this Article
XI or otherwise.
SECTION 11.03 Rights of Assignee. Upon the assignment of any
Participation (or portion thereof) in accordance with this Article XI, to an
assignee (other than the Surety Bond Provider or the Collateral Trustee), such
assignee shall have all of the rights of Purchaser hereunder with respect to
such Participation (or portion thereof) and all references to Purchaser
(including in Section 4.02) shall be deemed to apply to such assignee to the
extent of its interest in the related Investment and the related Collection.
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<PAGE>
SECTION 11.04 Rights of Collateral Trustee. Seller hereby agrees that,
upon notice to Seller, the Collateral Trustee may exercise all the rights of
Agent hereunder with respect to all Participations (or portions thereof) and
Collections with respect thereto that are owned by Purchaser. Without limiting
the foregoing, upon such notice the Collateral Trustee: (a) may request Servicer
to segregate the Purchaser's Share of Collections from the Seller's allocable
share, and from each other's allocable share, in accordance with Section
8.02(b), (b) may give the Successor Notice pursuant to Section 8.01(a), (c) may
give or require the Agent to give notice to the Lock-box Banks as referred to in
Section 8.03(b), and (d) may direct the Obligors of Portfolio Receivables to
make payments in respect thereof directly to an account designated by it to the
same extent as the Agent might have done.
ARTICLE XII
INDEMNIFICATION
SECTION 12.01 Indemnities by Seller and Amphenol.
(a) General Indemnity. Without limiting any other rights which any such
Person may have hereunder or under applicable law, Seller hereby agrees, and
Amphenol jointly and severally with Seller, hereby agrees, to indemnify each of
the Agent, Purchaser, Nesbitt Burns, the Banks, the Surety Bond Provider, their
respective Affiliates, successors, transferees and assigns and all officers,
directors, shareholders, controlling persons, employees and agents of any of the
foregoing (each an "Indemnified Party"), forthwith on demand, from and against
any and all damages, losses, claims, liabilities and related costs and expenses,
including reasonable attorneys' fees and disbursements (all of the foregoing
being collectively referred to as "Indemnified Amounts") awarded against or
incurred by any of them arising out of or relating to the failure of Seller,
Amphenol or any Originator to perform its obligations under any Transaction
Document or arising out of claims asserted against an Indemnified Party relating
to the transactions contemplated thereby or the use of proceeds therefrom,
including (without limitation) in respect of the ownership or funding of a
Participation or in respect of any Receivable or any Contract, excluding,
however, (x) Indemnified Amounts to the extent resulting from gross negligence
or willful misconduct on the part of such Indemnified Party, (y) recourse
(except as otherwise specifically provided in this Agreement) for Defaulted
Receivables or (z) any tax based upon or measured by net income or gross
receipts. Without limiting the foregoing, Seller agrees, and Amphenol jointly
and severally with Seller agrees, to indemnify each Indemnified Party for
Indemnified Amounts arising out of or relating to:
(i) the transfer by Seller of any interest in any Receivable
other than a Participation;
(ii) the breach of any representations or warranties made by
Seller, Amphenol (or any of their respective officers) under or in
connection with this Agreement, any Periodic Report, Purchase Report or
Liquidation Statement or any other information or report delivered by
Receivables Purchase Agreement - 49
<PAGE>
Seller or Servicer pursuant hereto which shall have been false or
incorrect in any material respect when made or deemed made;
(iii) the failure by Seller, Amphenol or any Originator to comply
with any applicable law, rule or regulation with respect to any
Receivable or the related Contract, or the nonconformity of any
Receivable or the related Contract with any such applicable law, rule or
regulation;
(iv) the failure to vest and maintain vested in Purchaser an
undivided percentage ownership interest, to the extent of each
Participation owned by it hereunder, in the
Receivables in, or purporting to be in, the Portfolio, free and clear of
any Adverse Claim, other than an Adverse Claim arising solely as a
result of an act of Purchaser or the Agent, whether existing at the time
of the Purchase of such Participation or at any time thereafter;
(v) the failure to file, or any delay in filing, financing
statements or other similar instruments or documents under the UCC of
any applicable jurisdiction or other applicable laws with respect to any
Receivables in, or purporting to be in, the Portfolio, whether at the
time of any Purchase, Reinvestment or any subsequent time;
(vi) any dispute, claim, offset or defense (other than discharge
in bankruptcy) of the Obligor to the payment of any Receivable in, or
purporting to be in, the Portfolio (including, without limitation, a
defense based on such Receivable's or the related Contract's not being a
legal, valid and binding obligation of such Obligor enforceable against
it in accordance with its terms), or any other claim resulting from the
sale of the merchandise or services related to such Receivable or the
furnishing or failure to furnish such merchandise or services;
(vii) any failure of Amphenol, as Servicer or otherwise, to
perform its duties or obligations in accordance with the provisions of
Article VIII;
(viii) any products liability claim arising out of or in
connection with merchandise or services that are the subject of any
Portfolio Receivable; or
(ix) any tax or governmental fee or charge (other than any tax
upon or measured by net income), all interest and penalties thereon or
with respect thereto, and all out-of-pocket costs and expenses,
including the reasonable fees and expenses of counsel in defending
against the same, which may arise by reason of the purchase or ownership
of any Participation, or other interest in the Portfolio Receivables or
in any goods which secure any such Portfolio Receivables.
(b) Contribution. If for any reason the indemnification provided above
in this Section 12.01 is unavailable to an Indemnified Party or is insufficient
to hold an Indemnified Party harmless, then
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<PAGE>
Seller and Amphenol shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by such Indemnified Party on the one hand and Seller and Amphenol on the other
hand but also the relative fault of such Indemnified Party as well as any other
relevant equitable considerations.
ARTICLE XIII
SECURITY INTEREST
SECTION 13.01 Grant of Security Interest. To secure the prompt payment
and performance of all obligations of Seller arising in connection with this
Agreement, the Certificate and each other Transaction Document, whether now or
hereafter existing, due or to become due, direct or indirect, or absolute or
contingent, including, without limitation, all Indemnified Amounts, payments on
account of Collections received or deemed to be received and fees, Seller hereby
assigns and grants to Purchaser a first priority security interest in all of
Seller's right, title and interest in, to and under all of the following,
whether now or hereafter existing: (a) all of Seller's rights, remedies, powers
and privileges under, or in respect of, the Purchase and Sale Agreement (other
than under, or in respect of, the Originator Notes), (b) all Lock-box Accounts,
the Collection Account, the Liquidation Account, all funds on deposit in each of
the foregoing accounts and all certificates and instruments, if any, from time
to time evidencing such accounts and funds on deposit therein, all investments
made with such funds, all claims thereunder or in connection therewith, and all
interest, dividends, moneys, instruments, securities and other property from
time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the foregoing, and (d) all proceeds and amounts
received or receivable by Seller under any or all of the foregoing. This
Agreement shall constitute a security agreement under applicable law with regard
to the security interest granted pursuant to this Section 13.01.
SECTION 13.02 Further Assurances. The provisions of Section 8.04 shall
apply to the security interest granted under Section 13.01 as well as to the
Purchases and all Participations hereunder.
SECTION 13.03 Remedies. Upon the occurrence of a Termination Event,
Purchaser shall have, with respect to the collateral granted pursuant to Section
13.01, and in addition to all other rights and remedies available to Purchaser
or the Agent under this Agreement or other applicable law, all the rights and
remedies of a secured party upon default under the UCC.
Receivables Purchase Agreement - 51
<PAGE>
ARTICLE XIV
MISCELLANEOUS
SECTION 14.01 Amendments, Etc. No amendment or waiver of any provision
of this Agreement nor consent to any departure by Seller or Amphenol therefrom
shall in any event be effective unless the same shall be in writing and signed
by (i) Seller, Amphenol, the Agent and Purchaser (with respect to an amendment)
or (ii) the Agent and Purchaser (with respect to a waiver or consent by them) or
Seller or Amphenol (as applicable) (with respect to a waiver or consent by
them), as the case may be, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided, however, that no such amendment (other than an extension of the
Scheduled Commitment Termination Date) shall be effective unless the rating
agencies then rating Purchaser's Commercial Paper Notes shall have issued a
written statement that such amendment will not result in a downgrade or
withdrawal of the rating of such Commercial Paper Notes.
SECTION 14.02 Notices, Etc. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
(including facsimile communication) and shall be personally delivered or sent by
facsimile (to be followed by mail) to the intended party at the address or
facsimile number of such party set forth under its name on the signature pages
hereof or at such other address or facsimile number as shall be designated by
such party in a written notice to the other parties hereto. All such notices and
communications shall be effective, (i) if personally delivered, when received,
and (ii) if transmitted by facsimile, when sent, receipt confirmed by telephone
or electronic means, except that notices and communications pursuant to Article
I shall not be effective until received.
SECTION 14.03 No Waiver; Cumulative Remedies. No failure on the part of
the Agent, any Affected Party, any Indemnified Party, Purchaser or any other
holder of any Participation (or any portion thereof) to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 14.04 Binding Effect; Assignability. This Agreement shall be
binding upon and inure to the benefit of Seller, Amphenol, the Agent and
Purchaser and their respective successors and assigns, and the provisions of
Section 4.02 and Article XII shall inure to the benefit of the Affected Parties
and the Indemnified Parties, respectively, and their respective successors and
assigns; provided, however, that nothing in the foregoing shall be deemed to
authorize any assignment not permitted in Section 11.01. This Agreement shall
create and constitute the continuing obligations of the parties hereto in
accordance with its terms, and shall remain in full force and effect until such
time, after the Commitment Termination Date, as all Participations shall have
been reduced to zero and all Obligations shall have been finally and fully paid
and performed. The rights and remedies
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<PAGE>
with respect to any breach of any representation and warranty made by Seller or
Amphenol pursuant to Article VI and the provisions of Article XII and Sections
4.02, 14.06 and 14.07 shall be continuing and shall survive any termination of
this Agreement.
SECTION 14.05 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, EXCEPT
TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE INTERESTS OF PURCHASER IN
THE RECEIVABLES, OR REMEDIES HEREUNDER IN RESPECT THEREOF, ARE GOVERNED BY THE
LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
SECTION 14.06 Costs, Expenses and Taxes. In addition to its obligations
under Article XII, Seller and Amphenol, jointly and severally, agree to pay on
demand:
(a)(i) all costs and expenses of Purchaser, the Agent, Nesbitt
Burns and Bank of Montreal (including, without limitation, the
reasonable fees and expenses of counsel thereof) in connection with (A)
the preparation, execution and delivery of this Agreement, the
Certificate, the other Transaction Documents and the Liquidity
Agreement, (B) the preparation, execution and delivery of any waiver,
amendment or other modification to this Agreement, any of the
Transaction Documents and, to the extent caused by any such waiver,
amendment or modification, any waiver, amendment or other modification
to the Liquidity Agreement, and in each case all related certificates
and other documents, and (C) the enforcement of this Agreement, the
Certificate and the other Transaction Documents or any claim of breach
of contract, breach of warranty or any other breach of this Agreement,
the Certificate or any of the other Transaction Documents or any tort
claim relating to any of the foregoing, and (ii) all costs and expenses
of the Surety Bond Provider (including, without limitation, the
reasonable fees and expenses of its counsel) in connection with the
circumstance described in clause (C) above; and
(b) all stamp and other taxes and fees payable or determined to
be payable in connection with the execution, delivery, filing and
recording of this Agreement, the Certificates or the other Transaction
Documents, and agrees to indemnify each Indemnified Party against any
liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes and fees.
SECTION 14.07 No Proceedings. Each of Seller, Amphenol, the Agent and
Nesbitt Burns hereby agree that they will not institute against Purchaser, or
join any other Person in instituting against Purchaser, any insolvency
proceeding (namely, any proceeding of the type referred to in the definition of
Event of Bankruptcy) so long as any Commercial Paper Notes issued by Purchaser
shall be outstanding or there shall not have elapsed one year plus one day since
the last day on which any such Commercial Paper Notes shall have been
outstanding.
Receivables Purchase Agreement - 53
<PAGE>
SECTION 14.08 No Recourse to Certain Persons. No recourse under any
obligation, covenant or agreement of Purchaser contained in this Agreement shall
be had against any stockholder, employee, officer, director, affiliate or
incorporator of Purchaser; provided, however, that nothing in this Section 14.08
shall relieve any of the foregoing persons from any liability which such Person
may otherwise have for its gross negligence or willful misconduct, it being
understood, however, that recourse by the Seller to any of the foregoing persons
in the event of any such Person's gross negligence or willful misconduct shall
be limited to the assets of Purchaser.
SECTION 14.09 Confidentiality. Each of the Purchaser and the Agent and
each of its respective successors and assigns hereby agrees that it will
maintain and cause its respective employees and Affiliates to maintain the
confidentiality of all non-public information with respect to Seller, Amphenol
and any other Originator and each of their respective businesses obtained by any
such party in connection with the exercise of its rights pursuant to Section
7.01(c), except (i) as may be required or appropriate in communications with its
respective independent public accountants, legal advisors or with independent
financial rating agencies, (ii) as may be required or appropriate in any report,
statement or testimony submitted to any municipal, state or Federal regulatory
body having or claiming to have jurisdiction over it, (iii) as may be required
or appropriate in response to any summons or subpoena or in connection with any
litigation or similar proceeding, (iv) as may be required by or in order to
comply with any law, order, regulation or ruling, and (v) to any Bank, the
Surety Bond Provider, any dealer or placement agent for Purchaser's Commercial
Paper Notes (only as to the Periodic Reports), and any actual or potential
assignee of, or participants in, any of the rights or obligations of Purchaser,
any Bank, the Surety Bond Provider or the Agent; provided, that such Person has
been informed of and has agreed to the foregoing confidentiality restrictions.
SECTION 14.10 Submission to Jurisdiction. EACH PARTY HERETO HEREBY
IRREVOCABLY (a) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ILLINOIS OR UNITED
STATES FEDERAL COURTS SITTING IN CHICAGO, ILLINOIS, OVER ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY TRANSACTION DOCUMENT; (b) AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE OR UNITED STATES FEDERAL COURT; (c) WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO
THE MAINTENANCE OF SUCH ACTION OR PROCEEDING; (d) IRREVOCABLY CONSENTS TO THE
SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES OF SUCH PROCESS TO SUCH PERSON AT ITS ADDRESS SPECIFIED IN SECTION
14.02; AND (e) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS SECTION 14.10
SHALL AFFECT ANY PARTY'S RIGHT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO BRING ANY
Receivables Purchase Agreement - 54
<PAGE>
ACTION OR PROCEEDING AGAINST ANY PARTY OR ITS RESPECTIVE PROPERTY IN THE COURTS
OF ANY OTHER JURISDICTIONS.
SECTION 14.11 Waiver of Jury Trial. EACH PARTY HERETO WAIVES ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS
UNDER OR RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY RELATIONSHIP
EXISTING IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT,
AND AGREES THAT (a) ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT
AND NOT BEFORE A JURY AND (b) ANY PARTY HERETO (OR ANY ASSIGNEE OR THIRD PARTY
BENEFICIARY OF THIS AGREEMENT) MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF ANY OTHER
PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY.
SECTION 14.12 Integration. This Agreement and the other Transaction
Documents contain a final and complete integration of all prior expressions by
the parties hereto with respect to the subject matter hereof and shall
constitute the entire Agreement among the parties hereto with respect to the
subject matter hereof, superseding all prior oral or written understandings.
SECTION 14.13 Captions and Cross References. The various captions
(including, without limitation, the table of contents) in this Agreement are
included for convenience only and shall not affect the meaning or interpretation
of any provision of this Agreement. References in this Agreement to any
underscored Section or Exhibit are to such Section or Exhibit of this Agreement,
as the case may be. Appendix A and the Exhibits hereto are hereby incorporated
by reference into and made a part of this Agreement.
SECTION 14.14 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
Agreement.
[Signature pages begin on next page]
Receivables Purchase Agreement - 55
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
AMPHENOL FUNDING CORP.,
as Seller
By:
----------------------------------------
Name:
------------------------------------
Title:
------------------------------------
358 Hall Avenue
Wallingford, Connecticut 06492
Attention: Treasurer
Facsimile No.: (203) 265-8628
AMPHENOL CORPORATION, individually
and as initial Servicer
By:
----------------------------------------
Name:
------------------------------------
Title:
------------------------------------
358 Hall Avenue
Wallingford, Connecticut 06492
Attention: Treasurer
Facsimile No.: (203) 265-8628
POOLED ACCOUNTS RECEIVABLE
CAPITAL CORPORATION, as Purchaser
By:
----------------------------------------
Name:
------------------------------------
Title:
------------------------------------
c/o Broad Street Contract Services, Inc.
Two Wall Street
New York, New York 10005
<PAGE>
NESBITT BURNS SECURITIES, INC., as
Agent
By:
----------------------------------------
Name:
------------------------------------
Title:
------------------------------------
20th Floor East
111 West Monroe Street
Chicago, Illinois 60603
Attention: Kevin Gibbons
Telephone: (312) 461-5542
Facsimile No.: (312) 293-4908
<PAGE>
Schedule 6.01(f)
to Receivables Purchase Agreement
DESCRIPTION OF PROCEEDINGS
Amphenol Funding Corporation
NONE
Amphenol Corporation
NONE
Amphenol Interconnect Products Corporation
NONE
Times Fiber Communications, Inc.
NONE
Pyle National Inc.
NONE
The Sine Companies, Inc.
NONE
Schedule 6.01(f)-1
<PAGE>
Schedule 6.01(m)
to Receivables Purchase Agreement
AMPHENOL CORPORATION
LIST OF OFFICES WHERE RECORDS ARE KEPT
<TABLE>
<CAPTION>
Name Division/Subsidiary Address
- ---- ------------------- -------
<S> <C> <C>
Amphenol Corporation Subsidiary 358 Hall Avenue, Wallingford, CT 06492-7530
Amphenol Interconnect Subsidiary 20 Valley Street, Endicott, NY 13760
Products Corporation
Amphenol - Aerospace Operations Division 40-60 Delaware St., Sidney, NY 13838-1395
(f/k/a Bendix Connector Operations)
Amphenol Fiber Optic Products Division 1925A Ohio Street, Lisle, IL 60532
Pyle-National, Inc. Subsidiary 1334 N. Kostner Avenue, Chicago, IL 60651
Amphenol Communications & Network Division One Kennedy Avenue, Danbury, CT 06810
Products Division (f/k/a
RF/Microwave Operations)
Amphenol Spectra Strip/ITD Division 720 Sherman Avenue, Hamden, CT 06514
Times Fiber Communications, Inc. Subsidiary 358 Hall Avenue, Wallingford, CT 06492-7530
Times Fiber Communications, Inc. Subsidiary Route 2, Chatham Industrial Park,
Chatham, VA 24531
The Sine Companies, Inc. Subsidiary 25325 Joy Boulevard, Mt. Clemens,
MI 48046-2336
</TABLE>
Schedule 6.01(m)-1
<PAGE>
Schedule 6.01(n)
to Receivables Purchase Agreement
AMPHENOL CORPORATION
SUMMARY OF LOCKBOX ACCOUNT NUMBERS
BANK A/C # LOCKBOX #
---- ----- ---------
1. AAO Northern Trust 963445 92386
Floor B-11
50 South LaSalle Street
Chicago, IL 60675
2. AAO Wells Fargo 4159259282 7628
P.O. Box 63020
San Francisco, CA 94163
3. AAO NationsBank 0180744946 840690
600 Peachtree Street
Atlanta, GA 30308
4. FOP Bank of America - Illinois 7377169 98291
20th Floor Jackson
231 South LaSalle Street
Chicago, IL 60697
5. CNP Bank of America - Illinois 7164769 96144
20th Floor Jackson
231 South LaSalle Street
Chicago, IL 60697
6. CNP Fleet 1522434 840
777 Main Street
Hartford, CT 06115
7. SS Fleet 9369245973 152
777 Main Street
Hartford, CT 06115
8. TFC Fleet 0000227608 1701
One Federal Street
Boston, MA 02211
Schedule 6.01(n)-1
<PAGE>
BANK A/C # LOCKBOX #
---- ----- ---------
9. AIPC Fleet 1522450 825
777 Main Street
Hartford, CT 06115
10. AIPC Wells Fargo 4159259290 7629
P.O. Box 63020
San Francisco, CA 94163
11. P/N Northern Trust 4103327 92616
Floor B-11
50 South LaSalle Street
Chicago, IL 60675
12. SINE NBD Bank 0033820-44 78139
P.O. Box 116A
Detroit, MI 48232
Schedule 6.01(n)-2
<PAGE>
Schedule 6.01(r)
to Receivables Purchase Agreement
TRADE NAMES AND CORPORATE REORGANIZATIONS
Legal Entity Trade Names
- ------------ -----------
Amphenol Corporation Amphenol Corporation
Amphenol RF
Amphenol Products
Bendix Connector Operations
Spectra-Strip
Amphenol
Amphenol Aerospace Operations
Amphenol Communication & Network Products
AAO
Amphenol FOP
Amphenol Fiber Optic Products
Amphenol Interconnect Products Amphenol Interconnect Products Corporation
Corporation Amphenol Products
Amphenol
Amphenol Endicott
Endicott
AIPC
Pyle-National, Inc. Pyle-National, Inc.
Pyle
Times Fiber Communications, Times Fiber Communications, Inc.
Inc. Times Fiber Communications
Times
Times Fiber
TFC
The Sine Companies, Inc. The Sine Companies, Inc.
Sine Connector Corporation
Sine
Aaxico
Tri-Mate
Sine Products Company
Schedule 6.01(r)-1
<PAGE>
Sine Electro-Mold, Inc.
Mil-Specialists, Inc.
Amphenol Funding Corp. Amphenol Funding Corp.
AFC
From and after December 3, 1988, none of Amphenol Funding Corporation,
Amphenol Corporation, Amphenol Interconnect Products Corporation, Pyle-National,
Inc. and Times Fiber Communications, Inc. has been the subject of any merger or
other corporate reorganization. From and after December 31, 1992, the Sine
Companies, Inc. has not been the subject of any merger or other corporate
reorganization except as follows: Amphenol Corporation has entered into an
Agreement and Plan of Merger, dated as of January 23, 1997, with NXS Acquisition
Corp. ("NXS"), a wholly-owned subsidiary of KKR 1996 Fund L.P., pursuant to
which approximately 90% of the outstanding shares of Amphenol Corporation's
Class A common stock will be purchased by NXS for $26.00 per share in cash and
approximately 10% of such outstanding shares will be retained by other
stockholders.
Schedule 6.01(r)-2
<PAGE>
Schedule 7.01(g)
to Receivables Purchase Agreement
DESCRIPTION OF CREDIT AND COLLECTION POLICY
[Amphenol to provide]
Schedule 7.01(g)-1
<PAGE>
Schedule 7.03(d)
to Receivables Purchase Agreement
LIST OF ACCOUNT BANKS
Fleet Bank
One Constitution Plaza
Hartford, CT 06115-1600 Collection Account
ABA #011900571
A/C Amphenol Funding Corporation
A/C #936-214-7297
Bankers Trust Company
One Bankers Trust Plaza
New York, NY 10006 Liquidation Account
ABA #021001033
A/C Amphenol Funding Corporation
A/C #00-237-307
Schedule 7.03(d)-1
<PAGE>
Exhibit 1.03(a)
to Receivables Purchase Agreement
NOTICE OF PURCHASE
-----------, ----
Nesbitt Burns Securities, Inc.
20th Floor East
111 West Monroe Street
Chicago, Illinois 60603
Attention: Kevin Gibbons
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Receivables
Purchase Agreement, dated as of May 19, 1997 (as heretofore amended or
supplemented, the "Purchase Agreement"), among Amphenol Funding Corp.,
("Seller"), Amphenol Corporation, as Servicer, Pooled Accounts Receivable
Capital Corporation ("Purchaser") and Nesbitt Burns Securities, Inc., as agent
for Purchaser (the "Agent"). Capitalized terms used in this Purchase Notice and
not otherwise defined herein shall have the meanings assigned thereto in the
Purchase Agreement.
This letter constitutes a Purchase Notice pursuant to Section 1.03(a) of
the Purchase Agreement. Seller desires to sell a Participation on _________, ___
for a purchase price of $________. Seller requests an initial Yield Period of
___ days for such Participation.
Seller hereby represents and warrants as of the date hereof, and as of
the date of Purchase, as follows:
(i) the representations and warranties contained in Section 6.01 of the
Purchase Agreement are correct on and as of such dates as though made on and as
of such dates and shall be deemed to have been made on such dates;
(ii) no Termination Event or Unmatured Termination Event has occurred
and is continuing, or would result from such Purchase;
(iii) after giving effect to the Purchase proposed hereby, the Aggregate
Investment will not exceed the Purchase Limit and the Payout Amount will not
exceed the Payout Amount Limit; and
(iv) the Commitment Termination Date shall not have occurred.
Exhibit 1.03(a)-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Purchase Notice to
be executed by its duly authorized officer as of the date first above written.
AMPHENOL FUNDING CORP.
By:
--------------------------------
Name:
----------------------------
Title:
---------------------------
Exhibit 1.03(a)-2
<PAGE>
Exhibit 3.04(a)
to Receivables Purchase Agreement
FORM OF PERIODIC REPORT
[Nesbitt to provide]
Exhibit 3.04(a)-1
<PAGE>
Exhibit 3.04(b)
to Receivables Purchase Agreement
FORM OF LIQUIDATION STATEMENT
Liquidation Statement No.__
dated ____________, 19__
for Participations
sold pursuant to
Amended and Restated
Receivables Purchase Agreement
Dated as of May 19, 1997
among
Amphenol Funding Corp.,
as Seller,
Pooled Accounts Receivable Capital Corporation,
as Purchaser
and
Nesbitt Burns Securities, Inc.,
as Agent
Yield Period Beginning:__________
Ending:___________
The following dates within the Yield Period were
Investment Reduction Days: _________________________.(1)
Part I. Allocation of Collections to Participation
on Investment Reduction Days
A. Allocation on each Investment Reduction Day
(See Schedule I for calculations.)
1. Investment Reduction Day occurring on __/__/__ $___
- --------
(1) A liquidation statement is only required for Yield Periods during which
one or more Investment Reduction Days occurred.
Exhibit 3.04(b)-1
<PAGE>
2. Investment Reduction Day occurring on __/__/__(2) $___
B. Allocation on all Investment Reduction Days collectively
(sum of sub-items of Part I-A) $___
C. Aggregate Earned Yield for Investment Reduction Days occurring
in the Yield Period $___
D. Allocation of Investment Reduction Day Collections to
reduction of Investment (lesser of (x) Part I-B minus Part
I-C and (y) amount of Investment on the last day of the
Settlement Period) $___
E. Allocation of Investment Reduction Day Collections to other
amounts owed by Seller to Purchaser and the Agent (Part I-B
minus the sum of Parts I-C and I-D) $___
F. Allocation of Investment Reduction Day Collections to
Servicer's Fee (Part I-B minus the sum of Parts I-C, I-D and
II-E) $___
G. Excess Collections on Investment Reduction Days (Part I-B
minus the sum of Parts I-C, I-D, I-E and I-F) $___
Part II. Amounts to be Deposited to Purchaser's
Account on Last Day of Settlement Period
A. Aggregate unpaid Earned Yield for the Settlement Period $___
B. Collections allocated to reduction of Investment in respect
of Investment Reduction Days in the Settlement Period (Part
I-D) $___
C. Aggregate Servicer's Fee for non-Investment Reduction Days
in the Settlement Period $___
D. D. Collections allocated to Servicer's Fee in respect of
Investment Reduction Days in the Settlement Period (Part I-F) $___
Part III. Payments
A. Aggregate amounts to be paid to Purchaser (sum of Part II-A
plus Part II-B) $___
- --------
(2) Expand or contract to reflect actual number of Investment Reduction
Days.
Exhibit 3.04(b)-2
<PAGE>
B. Purchase Price of additional Participations, if any, to
be purchased on last day of Settlement Period $___
C. Aggregate amounts to be paid by Agent to Seller (sum of
Parts I-G and III-B) $___
D. Aggregate amounts to be paid by Agent to Servicer (sum
of Parts II-C and II-D) $___
The Servicer certifies the above figures, and the
figures on the attached Schedules, to be true and complete.
AMPHENOL CORPORATION
Date: By:
----------- -----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Exhibit 3.04(b)-3
<PAGE>
Schedule I
to Liquidation Statement
Allocation of Collections to Participation
on Investment Reduction Day Occurring on __/__/__
(the "Calculation Date")(3)
1. Dollar amount of all Collections received (or deemed received(4))
on the Calculation Date $___
2. Allocation of such Collections to Participation ("The Purchaser's
Share")
2.01 The product of Collections (from Line 1) multiplied by the
Pro Rata Share(5) of the Participation on the Calculation Date $___
2.02 Enter the amount on Line 2.01 above here and in the appropriate
sub-item of Part I-A of the main body of the Liquidation
Statement. $___
- --------
(3) To be completed for each Investment Reduction Day occurring in the
subject Yield Period.
(4) This should include the full amount of Collections deemed received
pursuant to Sections 3.03(a) and 3.04 of the Purchase Agreement.
(5) Pro Rata Share is equal to a fraction the numerator of which is the
Investment in such Participation and the denominator of which is the Aggregate
Investment, as of the Calculation Date.
Exhibit 3.04(b)-4
<PAGE>
Exhibit 5.01(a)
to Receivables Purchase Agreement
FORM OF CERTIFICATE
CERTIFICATE OF ASSIGNMENTS
Reference is made to the Amended and Restated Receivables Purchase
Agreement, dated as of May 19, 1997 (the "Purchase Agreement") among the
undersigned, AMPHENOL CORPORATION, POOLED ACCOUNTS RECEIVABLE CAPITAL
CORPORATION ("Purchaser"), and NESBITT BURNS SECURITIES, INC., as Agent. Terms
defined in the Purchase Agreement are used herein as therein defined.
The undersigned hereby sells, assigns and transfers unto Purchaser each
Participation purchased from the undersigned pursuant to the Purchase Agreement.
Each Purchase by Purchaser from the undersigned of an Participation
shall be endorsed by the Agent on a grid with respect to each such Participation
which has been or shall be attached hereto (and upon such attachment made a part
hereof) or, at the Agent's option, in the records of the Agent, and such
endorsement shall evidence the ownership by Purchaser of the Participation(s) so
purchased; provided, however, that the failure of the Agent to make any such
endorsement shall not void or otherwise impair any Purchase or limit the
undersigned's obligations under the Purchase Agreement with respect to the
Participation(s) so purchased.
This Certificate of Assignments is made without recourse except as
provided in the Purchase Agreement. This Certificate of Assignments is made
pursuant to and upon all the representations, warranties, covenants and
agreements on the part of the undersigned contained in the Purchase Agreement
and is to be governed by and construed and interpreted in accordance with the
Purchase Agreement and the internal laws of the State of New York.
Assignment by Purchaser of one or more Participations, or any portion
thereof, is subject to the terms of the Purchase Agreement, including, without
limitation, Article XI thereof. Any such assignment shall be endorsed by the
Agent for Purchaser on the grid(s) with respect to such Participation(s)
attached hereto or, at the Agent's option, in the records of the Agent, and such
endorsement shall evidence the ownership by the assignee named therein of the
Participation(s) (or portion thereof) so assigned; provided, however, that the
failure of the Agent to make any such endorsement shall not void or otherwise
impair any such assignment or limit the undersigned's obligations under the
Purchase Agreement to the assignee with respect to the Participation(s) (or
portion thereof) so assigned.
Exhibit 5.01(a)-1
<PAGE>
Each reduction in the Investment in each Participation as a result of
the occurrence of an Investment Reduction Day with respect to such Participation
and each combination or division of one or more Participations shall also be
endorsed by the Agent for Purchaser on the grid(s) with respect to such
Participation(s) attached hereto or, at the Agent's option, in the records of
the Agent.
The undersigned hereby certifies on and as of the date of each Purchase
that the conditions set forth in Section 5.02 of the Purchase Agreement are
fulfilled on such date.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed this day of ________, 199__.
AMPHENOL FUNDING CORP.
By:
---------------------------------------
Name:
------------------------------------
Title:
------------------------------------
Exhibit 5.01(a)-2
<PAGE>
Grid With Respect to Participation No. ___ (6)
Attached to and Made a Part of Certificate of Assignment
dated __________, 199_ from Amphenol Funding Corp.
to Pooled Accounts Receivable Capital Corporation
Date of Amount of Amount of Amount of
Endorsed Original Amount of Reduction of Increase of
Transaction Investment Assignment Investment Investment
- ----------- ---------- ---------- ---------- ----------
- --------
(6) A separate grid should be attached reflecting each Participation as
sold.
Exhibit 5.01(a)-3
<PAGE>
Exhibit 5.01(h)(i)
to Receivables Purchase Agreement
FORM OF LOCK-BOX AGREEMENT
--------, ----
- -------------
- -------------
- -------------
Ladies and Gentlemen:
Reference is made to lock-box account no. ________ and demand deposit
account no. __________ maintained with you (collectively, the "Account").
Pursuant to an Amended and Restated Purchase and Sale Agreement, dated as of May
19, 1997, among ____________ (the "Originator"), various other originators of
receivables, Amphenol Funding Corp. (the "Seller") and Amphenol Corporation,
individually and as the initial Servicer (the "Servicer"), the Originator has
assigned, sold or transferred, and may hereafter assign, sell or transfer, to
the Seller: (a) certain accounts, chattel paper, instruments and general
intangibles (collectively, the "Receivables") with respect to which payments are
or may hereafter be made to the Account and (b) all of its right, title and
interest in and to the Account.
Pursuant to an Amended and Restated Receivables Purchase Agreement,
dated as of May 19, 1997 (the "Receivables Purchase Agreement"), among the
Seller, the Servicer, Pooled Accounts Receivable Capital Corporation, as
Purchaser (the "Purchaser"), and Nesbitt Burns Securities, Inc., as the agent
for the Purchaser (the "Agent"), the Seller has assigned and/or may hereafter
assign to the Purchaser one or more undivided percentage interests in certain of
the Receivables, and has granted to the Purchaser a security interest in the
Account. Your execution of this letter agreement is a condition precedent to the
continued maintenance of the Account with you.
We hereby transfer exclusive ownership and control of the Account to the
Agent, subject only to the condition subsequent that the Agent shall have given
you notice of its election to assume such ownership and control, which notice
may be in the form attached hereto as Annex A or in any other form that gives
you reasonable notice of such election.
We hereby irrevocably instruct you, at all times from and after the date
of your receipt of notice from the Agent as described above, to make all
payments to be made by you out of or in
Exhibit 5.01(h)(i)-1
<PAGE>
connection with the Account directly to the Agent, at its address set forth
below its signature hereto or otherwise notified to you, for the account of the
Purchaser (account no. 372968-8, maintained by Harris Trust and Savings Bank in
Chicago, Illinois), or otherwise in accordance with the instructions of the
Agent.
We also hereby notify you that, at all times from and after the date of
your receipt of notice from the Agent as described above, the Agent shall be
irrevocably entitled to exercise in our place and stead any and all rights in
respect of or in connection with the Account, including (without limitation):
(a) the right to specify when payments are to be made out of or in connection
with the Account and (b) the right to require preparation of duplicate monthly
bank statements on the Account for the Agent's audit purposes and mailing of
such statements directly to an address specified by the Agent.
Notice from the Agent may be personally served or sent by facsimile or
U.S. mail, certified return receipt requested, to the address or facsimile
number set forth under your signature to this letter agreement (or to such other
address or facsimile number as you shall notify to the Agent in writing). If
notice is given by facsimile, it will be deemed to have been received when the
notice is sent and receipt is confirmed by telephone or other electronic means.
All other notices will be deemed to have been received when actually received,
or in the case of personal delivery, delivered.
By executing this letter agreement, you acknowledge the existence of the
Agent's right to ownership and control of the Account and its ownership of and
security interest in the amounts from time to time on deposit therein and agree
that from the date hereof the Account shall be maintained by you for the benefit
of, and amounts from time to time therein held by you as agent for, the Agent on
the terms provided herein. Upon execution hereof, the Account is to be entitled
"AMPHENOL FUNDING CORP. and NESBITT BURNS SECURITIES, INC., AS AGENT FOR POOLED
ACCOUNTS RECEIVABLE CAPITAL CORPORATION". Except as otherwise provided in this
letter agreement, the Account is to be processed in accordance with the
procedures, agreements and instructions currently in effect and as they may be
modified from time to time. In making, agreeing to or accepting such
modifications, before receipt of the Agent's notice described above, you may
disregard the interest of the Agent in the Account; provided, that you shall
endeavor to notify the Agent of material changes in your standard procedures.
All service charges and fees with respect to the Account shall continue to be
payable by us at all times, including after your receipt of the Agent's notice
described above.
By executing this letter agreement, you irrevocably waive and agree not
to assert, claim or endeavor to exercise, irrevocably bar and estop yourself
from asserting, claiming or exercising, and acknowledge that you have not
heretofore received a notice, writ, order or any form of legal process from any
other party asserting, claiming or exercising, any right of set-off, banker's
lien or other purported form of claim with respect to the Account or any funds
from time to time therein, except for your rights to payment of your service
charges and fees, to make deductions
Exhibit 5.01(h)(i)-2
<PAGE>
for returned items, and to make appropriate adjustments with respect to entries
previously posted (and your security interest to secure such rights, to the
extent provided automatically under applicable law, in items deposited in the
Account and proceeds thereof). Except for such rights, you shall have no
additional rights in the Account or funds therein. To the extent you may ever
have such additional rights, you hereby expressly subordinate all such
additional rights to all rights of the Agent.
You may terminate this letter agreement by cancelling the Account
maintained with you, which cancellation and termination shall become effective
only upon ten days' prior written notice thereof from you to the Agent and the
undersigned. Incoming mail addressed to the post office box related to the
Account received after such cancellation (including before the Agent's notice
described above has been delivered to you) shall be forwarded in accordance with
the Agent's instructions. This letter agreement may also be terminated upon
written notice to you by the Agent stating that the Receivables Purchase
Agreement pursuant to which this letter agreement was obtained is no longer in
effect. Except as otherwise provided in this paragraph, this letter agreement
may not be terminated or amended without the prior written consent of the Agent.
Until you have received evidence reasonably satisfactory to you of the
authorization of persons giving instructions on behalf of the Agent, upon
receipt of a notice from the Agent as described above, you may freeze the
Account and refuse to follow any instructions.
You shall have no obligation to honor any request to pay out any funds
in the Account in excess of collected, available funds in the Account.
If you are unable for any reason to validly charge against the Account
(by reason of insufficient funds or otherwise) an amount of your service charges
and fees, deductions for returned items or appropriate adjustments with respect
to entries previously posted, each of the Seller and Amphenol Corporation (and
the Agent, but only to the extent relating to fees that accrued or credits that
were withdrawn after your receipt of the Agent's notice as described above)
agrees to pay such amount to you on demand.
Each of the Seller and Amphenol Corporation (and the Agent, but only
after your receipt of the Agent's notice as described above) agrees to indemnify
and defend you and hold you harmless from any loss, cost, claim or expense
(including reasonable attorneys' fees) that you suffer or incur relating to: (a)
the deposit of items into the Account, (b) any use by the Agent or the Seller of
any amounts in the Account, notwithstanding that such use may be unauthorized,
fraudulent, outside the scope of the purchase by the Purchaser, or otherwise, or
(c) any specific instructions to you from the Seller (or, after your receipt of
the Agent's notice as described above, the Agent), except (in each case) for any
loss, cost, claim or expense caused by your gross negligence, willful misconduct
or failure to follow such instructions (provided, that the instructions provided
pursuant to clause (c): (i) shall not be contrary to your contract with the
Originator or with this letter agreement, (ii) shall not be materially contrary
to your standard procedures and (iii) shall be capable of being followed by
you).
Exhibit 5.01(h)(i)-3
<PAGE>
Please acknowledge your agreement to the terms set forth in this letter
agreement by signing in the space provided below the two copies hereof enclosed
herewith, sending one such signed copy to the Agent at its address provided
above and returning the other signed copy to us.
Very truly yours,
AMPHENOL FUNDING CORP.
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
AMPHENOL CORPORATION, individually
and as Servicer
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
----------------------
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Exhibit 5.01(h)(i)-4
<PAGE>
Accepted and confirmed as of
the date first written above:
NESBITT BURNS SECURITIES, INC., as Agent
By:
---------------------------
Name:
-----------------------
Title:
----------------------
By:
---------------------------
Name:
-----------------------
Title:
----------------------
Address for notice:
20th Floor East
111 West Monroe Street
Chicago, Illinois 60603
Attention: Kevin Gibbons
Telephone: (312) 461-5542
Facsimile No.: (312) 293-4908
Exhibit 5.01(h)(i)-5
<PAGE>
Acknowledged and agreed to as
of the date first written above:
- ---------------------------------
By:
---------------------------
Name:
-----------------------
Title:
----------------------
Address for notice:
------------------------------
------------------------------
------------------------------
Attention:_____________________
Telephone: (___) ___-____
Facsimile No.: (___) ___-____
Exhibit 5.01(h)(i)-6
<PAGE>
ANNEX A
to Lockbox Agreement
[Letterhead of the Agent]
------------------------------
------------------------------
------------------------------
Re: Amphenol Funding Corp.
Lock-box Account No. _________
Ladies and Gentlemen:
Reference is made to the letter agreement dated as of ____________ (the
"Letter Agreement") among Amphenol Funding Corp., Amphenol Corporation, Pooled
Accounts Receivable Capital Corporation (the "Purchaser"), the undersigned, as
Agent for the Purchaser, and you concerning the above described lock-box
accounts (the "Accounts"). We hereby give you notice of our assumption of
ownership and control of the Accounts as provided in the Letter Agreement.
We hereby instruct you to make all payments to be made by you out of or
in connection with the Accounts [directly to the undersigned, at [our address
set forth above], for the account of the Purchaser (account no. _______)].
[other instructions]
Very truly yours,
NESBITT BURNS SECURITIES, INC., as
Agent
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
Exhibit 5.01(h)(i)-7
<PAGE>
Exhibit 5.01(h)(ii)-1
to Receivables Purchase Agreement
FORM OF COLLECTION ACCOUNT AGREEMENT
November 23, 1993
Mr. Edward Gerber
Fleet Bank
One Constitution Plaza
Hartford, CT 06115
Ladies and Gentlemen:
Reference is made to account no. 936-214-7297 maintained with you (the
"Account"). Pursuant to a Receivables Purchase Agreement dated as of December 3,
1993 among Amphenol Funding Corp., as seller ("Seller"), Amphenol Corporation,
as servicer ("Servicer"), POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION, as
Purchaser ("Purchaser"), and BANK OF MONTREAL, as agent for Purchaser (the
"Agent"), Seller has granted to Purchaser a security interest in the Account.
Your execution of this letter agreement is a condition precedent to our
continued maintenance of the Account with you.
We hereby transfer exclusive ownership and control of the Account to the
Agent, subject only to the condition subsequent that the Agent shall have given
you notice of its election to assume such ownership and control, which notice
may be in the form attached hereto as Annex A or in any other form that gives
you reasonable notice of such election.
We hereby irrevocably instruct you, at all times from and after the date
of your receipt of notice from the Agent as described above, to make all
payments to be made by you out of or in connection with the Account directly to
the Agent, at its address set forth below its signature hereto or otherwise
notified to you, for the account of Purchaser (account no. 936-214-7297), or
otherwise in accordance with the instructions of the Agent.
We also hereby notify you that, at all times from and after the date of
your receipt of notice from the Agent as described above, the Agent shall be
irrevocably entitled to exercise in our place and stead any and all rights in
respect of or in connection with the Account, including, without limitation, (i)
the right to specify when payments are to be made out of or in connection with
the Account and (ii) the right to require preparation of duplicate monthly bank
statements on the
Exhibit 5.01(h)(ii)-1-1
<PAGE>
Account for the Agent's audit purposes and mailing of such statements directly
to an address specified by the Agent.
Notice from the Agent may be personally served or sent by facsimile or
U.S. mail, certified return receipt requested, to the address or facsimile
number set forth under your signature to this letter agreement (or to such other
address or facsimile number as you shall notify to the Agent in writing). If
notice is given by facsimile it will be deemed to have been received when
receipt is confirmed by telephone or other electronic means. All other notices
will be deemed to have been received when actually received, or in the case of
personal delivery, delivered.
By executing this letter agreement, you acknowledge the existence of the
Agent's right to ownership and control of the Account and its ownership of and
security interest in the amounts from time to time on deposit therein and agree
that from the date hereof the Account shall be maintained by you for the benefit
of, and amounts from time to time therein held by you as agent for, the Agent on
and subject to the terms provided herein. The Account is to be entitled
"AMPHENOL FUNDING CORP. COLLECTION ACCOUNT". Except as otherwise provided in
this letter agreement payments to the Account are to be processed in accordance
with the standard procedures currently in effect. All service charges and fees
with respect to the Account shall continue to be payable by us as under the
arrangements currently in effect.
By executing this letter agreement, you irrevocably waive and agree not
to assert, claim or endeavor to exercise, irrevocably bar and estop yourself
from asserting, claiming or exercising, and acknowledge that you have not
heretofore received a notice, writ, order or any form of legal process from any
other party asserting, claiming or exercising, any right of set-off, banker's
lien or other purported form of claim with respect to the Account or any funds
from time to time therein. Except for your right to payment of your service
charges and fees and to make deductions for returned items, you shall have no
rights in the Account or funds therein. To the extent you may ever have such
rights, you hereby expressly subordinate all such rights to all rights of the
Agent.
You may terminate this letter agreement by cancelling the Account
maintained with you, which cancellation and termination shall become effective
only upon thirty days' prior written notice thereof from you to the Agent.
Incoming mail addressed to the post office box related to the Account received
after such cancellation shall be forwarded in accordance with the Agent's
instructions. This letter agreement may also be terminated upon written notice
to you by the Agent stating that the Receivables Purchase Agreement pursuant to
which this letter agreement was obtained is no longer in effect. Except as
otherwise provided in this paragraph, this letter agreement may not be
terminated or amended without the prior written consent of the Agent.
Exhibit 5.01(h)(ii)-1-2
<PAGE>
Please acknowledge your agreement to the terms set forth in this letter
agreement by signing in the space provided below the two copies hereof enclosed
herewith, sending one such signed copy to the Agent at its address provided
above and returning the other signed copy to us.
Very truly yours,
AMPHENOL FUNDING CORP.
By:
---------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
AMPHENOL CORPORATION,
as Servicer
By:
---------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Accepted and confirmed as
of the date first written above:
BANK OF MONTREAL, AS AGENT
By:
----------------------------
Name:
------------------------
Title:
-----------------------
Address for notice:
115 South LaSalle Street
Chicago, Illinois 60603
Attention:
Facsimile no.:
Exhibit 5.01(h)(ii)-1-3
<PAGE>
Acknowledged and agreed to as of
the date first written above:
FLEET BANK N.A.
By:
----------------------------
Name:
------------------------
Title:
-----------------------
Address for notice:
1 Constitution Plaza, HMMO3G
Hartford, CT 06115-1600
Attention: Edward Gerber
Facsimile No.: (203) 244-5391
Exhibit 5.01(h)(ii)-1-4
<PAGE>
[Letterhead of Nesbitt Burns Securities, Inc.]
[Name and Address
of Collection Account Bank]
Re: Amphenol Funding Corp.
Collection Account No.
Ladies and Gentlemen:
Reference is made to the letter agreement dated ______, 19__ (the
"Letter Agreement") among AMPHENOL FUNDING CORP., AMPHENOL CORPORATION, the
undersigned (as successor to the Bank of Montreal), as Agent for POOLED ACCOUNTS
RECEIVABLE CAPITAL CORPORATION (the "Purchaser"), and you concerning the above
described account (the "Account"). We hereby give you notice of our assumption
of ownership and control of the Account as provided in the Letter Agreement.
We hereby instruct you to make all payments to be made by you out of or
in connection with the Account[s] [directly to the undersigned, at [our address
set forth above], for the account of Purchaser (account no. ____)].
[other instructions]
Very truly yours,
NESBITT BURNS SECURITIES, INC.,
as Agent
By:
-----------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
Exhibit 5.01(h)(ii)-1-5
<PAGE>
Exhibit 5.01(h)(ii)-2
to Receivables Purchase Agreement
FORM OF LIQUIDATION ACCOUNT AGREEMENT
December 3, 1993
Bankers Trust Company
One Bankers Trust Plaza
New York, New York 10006
Ladies and Gentlemen:
Reference is made to our liquidation account no. 00-237-307 maintained
with you (the "Account[s]"). Pursuant to a Receivables Purchase Agreement dated
as of December 3, 1993 among Amphenol Funding Corp., as seller ("Seller"),
Amphenol Corporation, as servicer ("Servicer"), POOLED ACCOUNTS RECEIVABLE
CAPITAL CORPORATION, as Purchaser ("Purchaser"), and BANK OF MONTREAL, as agent
for Purchaser (the "Agent"), Seller has granted to Purchaser a security interest
in the Account. Your execution of this letter agreement is a condition precedent
to our continued maintenance of the Account with you.
We hereby transfer exclusive ownership and control of the Account to the
Agent, subject only to the condition subsequent that the Agent shall have given
you notice of its election to assume such ownership and control, which notice
may be in the form attached hereto as Annex A or in any other form that gives
you reasonable notice of such election.
We hereby irrevocably instruct you, at all times from and after the date
of your receipt of notice from the Agent as described above, to make all
payments to be made by you out of or in connection with the Account directly to
the Agent, at its address set forth below its signature hereto or otherwise
notified to you, for the account of Purchaser (account no. 379909-5, maintained
by Harris Trust and Savings Bank in Chicago, Illinois), or otherwise in
accordance with the instructions of the Agent.
We also hereby notify you that, at all times from and after the date of
your receipt of notice from the Agent as described above, the Agent shall be
irrevocably entitled to exercise in our place and stead any and all rights in
respect of or in connection with the Account, including, without limitation, (i)
the right to specify when payments are to be made out of or in connection with
the Account and (ii) the right to require preparation of duplicate monthly bank
statements on the
Exhibit 5.01(h)(ii)-2-4
<PAGE>
Account for the Agent's audit purposes and mailing of such statements directly
to an address specified by the Agent.
Notice from the Agent may be personally served or sent by facsimile or
U.S. mail, certified return receipt requested, to the address or facsimile
number set forth under your signature to this letter agreement (or to such other
address or facsimile number as you shall notify to the Agent in writing). If
notice is given by facsimile it will be deemed to have been received when
receipt is confirmed by telephone or other electronic means. All other notices
will be deemed to have been received when actually received, or in the case of
personal delivery, delivered.
By executing this letter agreement, you acknowledge the existence of the
Agent's right to ownership and control (subject to the condition subsequent
described above) of the Account and its ownership of and security interest in
the amounts from time to time on deposit therein and agree that from the date
hereof the Account shall be maintained by you for the benefit of, and amounts
from time to time therein held by you as agent for, the Agent on and subject to
the terms provided herein. The Account is to be entitled "AMPHENOL FUNDING CORP.
LIQUIDATION ACCOUNT". Except as otherwise provided in this letter agreement
payments to the Account are to be processed in accordance with the standard
procedures currently in effect. All service charges and fees with respect to the
Account shall continue to be payable by us as under the arrangements currently
in effect.
By executing this letter agreement: (a) you irrevocably waive and agree
not to assert, claim or endeavor to exercise, irrevocably bar and estop yourself
from asserting, claiming or exercising any right of set-off, banker's lien or
other purported form of claim with respect to the Account or any funds from time
to time therein, except for your rights to payment of your service charges and
fees, to make deductions for returned items, and (b) you acknowledge that you
have not heretofore received a notice, writ, order or any form of legal process
from any other party asserting, claiming or exercising any right of set-off,
banker's lien or other purported form of claim with respect to the Account or
any funds from time to time therein. Except as provided above, to the extent
that you may ever have such rights, you hereby expressly subordinate all such
rights to all rights of the Agent.
You may terminate this letter agreement by cancelling the Account
maintained with you, which cancellation and termination shall become effective
only upon thirty days' prior written notice thereof from you to the Agent.
Incoming mail addressed to the post office box related to the Account received
after such cancellation shall be forwarded in accordance with the Agent's
instructions. This letter agreement may also be terminated upon written notice
to you by the Agent stating that the Receivables Purchase Agreement pursuant to
which this letter agreement was obtained is no longer in effect. Except as
otherwise provided in this paragraph, this letter agreement may not be
terminated or amended without the prior written consent of the Agent.
Exhibit 5.01(h)(ii)-2-4
<PAGE>
Please acknowledge your agreement to the terms set forth in this letter
agreement by signing in the space provided below the two copies hereof enclosed
herewith, sending one such signed copy to the Agent at its address provided
above and returning the other signed copy to us.
Very truly yours,
AMPHENOL FUNDING CORP.
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
AMPHENOL CORPORATION,
as Servicer
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Accepted and confirmed as of
the date first written above:
BANK OF MONTREAL, AS AGENT
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address for notice:
115 South LaSalle Street
Chicago, Illinois 60603
Attention:_______________
Facsimile no.:___________
Exhibit 5.01(h)(ii)-2-4
<PAGE>
Acknowledged and agreed to as of
the date first written above:
BANKERS TRUST COMPANY
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address for notice:
----------------------------------
----------------------------------
Attention:________________________
Facsimile No.:____________________
Exhibit 5.01(h)(ii)-2-4
<PAGE>
[Letterhead of Nesbitt Burns Securities, Inc.]
Bankers Trust Company
One Bankers Trust Plaza
New York, New York 10006
Re: Amphenol Funding Corp.
Liquidation Account No.
Ladies and Gentlemen:
Reference is made to the letter agreement dated ________, 19__ (the
"Letter Agreement") among AMPHENOL FUNDING CORP., AMPHENOL CORPORATION, the
undersigned (as successor to the Bank of Montreal), as Agent for POOLED ACCOUNTS
RECEIVABLE CAPITAL CORPORATION, and you concerning the above described account
(the "Account"). We hereby give you notice of our assumption of ownership and
control of the Account as provided in the Letter Agreement.
We hereby instruct you to make all payments to be made by you out of or
in connection with the Account [directly to the undersigned, at [our address set
forth above], for the account of Purchaser (account no. ____)].
[other instructions]
Very truly yours,
NESBITT BURNS SECURITIES, INC.,
as Agent
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Exhibit 5.01(h)(ii)-2-4
<PAGE>
Exhibit 5.01(i)-1
to Receivables Purchase Agreement
FORM OF OPINION OF COUNSEL TO SELLER, SERVICER AND THE ORIGINATORS
[To be attached]
Exhibit 5.01(i)-1-1
<PAGE>
Exhibit 5.01(i)-2
to Receivables Purchase Agreement
FORM OF OPINION OF GENERAL COUNSEL OF SELLER, SERVICER
AND THE ORIGINATORS
[To be attached]
Exhibit 5.01(i)-2-1
<PAGE>
Exhibit 11.01
to Receivables Purchase Agreement
FORM OF ASSIGNMENT
Assignment dated __________ __, 19 , made by the undersigned to _______
pursuant to the Amended and Restated Receivables Purchase Agreement dated as of
May 19, 1997 (the "Purchase Agreement"; terms defined therein being used herein
as therein defined) among AMPHENOL FUNDING CORP., AMPHENOL CORPORATION, the
undersigned and NESBITT BURNS SECURITIES, INC., as agent.
In consideration of the payment of $________, receipt of which payment
is hereby acknowledged, the undersigned hereby assigns to ______ [all of] [an
undivided ___% interest in] the undersigned's right, title and interest in and
to Participation No[s]. ___ [, ____ and ____] purchased by the undersigned in
[a] Purchase[s] on _____, 19__, [_____, 19__, [etc.]] under the Purchase
Agreement.
This Assignment is made without recourse except that the undersigned
hereby represents and warrants that it is the owner of the Participation[s]
referred to above and that it has not created any Adverse Claim upon or with
respect to such Participation[s].
This Assignment shall be governed by and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed and delivered by its duly authorized officer or agent as of the
date first written above.
POOLED ACCOUNTS RECEIVABLE
CAPITAL CORPORATION
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Exhibit 11.01-1
<PAGE>
Exhibit 10.2
AMENDED AND RESTATED
PURCHASE AND SALE AGREEMENT
Dated as of May 19, 1997
among
THE ORIGINATORS NAMED HEREIN,
AMPHENOL FUNDING CORP.,
and
AMPHENOL CORPORATION,
individually and as the initial Servicer.
<PAGE>
TABLE OF CONTENTS
ARTICLE I
AGREEMENT TO PURCHASE AND SELL;
AFC AGREEMENT TO LEND
SECTION 1.1 Agreement To Purchase and Sell..................................2
SECTION 1.2 Timing of Purchases.............................................3
SECTION 1.3 Consideration for Purchases.....................................3
SECTION 1.4 AFC Agreement to Make Demand Loans..............................3
SECTION 1.5 Purchase and Sale Termination Date..............................4
ARTICLE II
CALCULATION OF PURCHASE PRICE
SECTION 2.1 Calculation of Purchase Price...................................4
SECTION 2.2 Definitions and Calculations Related to Purchase Price..........6
ARTICLE III
PAYMENT OF PURCHASE PRICE
SECTION 3.1 Initial Purchase Price Payment..................................8
SECTION 3.2 Subsequent Purchase Price Payments..............................8
SECTION 3.3 Settlement as to Specific Receivables...........................9
SECTION 3.4 Settlement as to Dilution.......................................9
ARTICLE IV
AFC NOTE AND ORIGINATOR NOTE OPERATIONS
SECTION 4.1 AFC Note and Originator Note Payments..........................10
ARTICLE V
CONDITIONS OF PURCHASES
SECTION 5.1 Conditions Precedent to Purchase...............................10
SECTION 5.2 Certification as to Representations and Warranties.............12
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS
SECTION 6.1 Organization and Good Standing.................................12
Purchase and Sale Agreement - i
<PAGE>
SECTION 6.2 Due Qualification..............................................13
SECTION 6.3 Power and Authority; Due Authorization.........................13
SECTION 6.4 Valid Sale; Binding Obligations................................13
SECTION 6.5 No Violation...................................................13
SECTION 6.6 Proceedings....................................................13
SECTION 6.7 Bulk Sales Acts................................................14
SECTION 6.8 Government Approvals...........................................14
SECTION 6.9 Material Adverse Effect........................................14
SECTION 6.10 Licenses, Contingent Liabilities and Labor Controversies......14
SECTION 6.11 Margin Regulations............................................14
SECTION 6.12 Quality of Title..............................................14
SECTION 6.13 Accuracy of Information.......................................15
SECTION 6.14 Offices.......................................................15
SECTION 6.15 Trade Names...................................................15
SECTION 6.16 Taxes.........................................................15
SECTION 6.17 Compliance with Applicable Laws...............................15
ARTICLE VII
COVENANTS OF AMPHENOL AND THE OTHER ORIGINATORS
SECTION 7.1 Affirmative Covenants..........................................16
SECTION 7.2 Reporting Requirements.........................................18
SECTION 7.3 Negative Covenants.............................................19
SECTION 7.4 Lock-box Banks. ...............................................19
ARTICLE VIII
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE RECEIVABLES
SECTION 8.1 Rights of AFC..................................................20
SECTION 8.2 Responsibilities of Each Originator............................20
SECTION 8.3 Further Action Evidencing Purchases............................20
SECTION 8.4 Application of Collections.....................................21
ARTICLE IX
PURCHASE AND SALE TERMINATION EVENTS
SECTION 9.1 Purchase and Sale Termination Events...........................21
SECTION 9.2 Remedies.......................................................22
Purchase and Sale Agreement - ii
<PAGE>
ARTICLE X
INDEMNIFICATION
SECTION 10.1 Indemnities by Amphenol and the Originators...................22
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Amendments, Waivers, etc......................................24
SECTION 11.2 Notices, etc..................................................24
SECTION 11.3 Cumulative Remedies...........................................25
SECTION 11.4 Binding Effect; Assignability.................................25
SECTION 11.5 Governing Law.................................................25
SECTION 11.6 Costs, Expenses and Taxes.....................................25
SECTION 11.7 Submission to Jurisdiction....................................25
SECTION 11.8 Waiver of Jury Trial..........................................26
SECTION 11.9 Captions and Cross References; Incorporation by Reference.....26
SECTION 11.10 Execution in Counterparts....................................26
SECTION 11.11 Acknowledgment and Agreement.................................27
APPENDIX A Definitions
EXHIBIT A Form of Originator Note
EXHIBIT B Form of Purchase Report
EXHIBIT C Form of AFC Note
EXHIBIT D Form of Originator Assignment Certificate
EXHIBIT E Form of Subscription Agreement
EXHIBIT F Proceedings
EXHIBIT G Office Locations
EXHIBIT H Trade Names and Corporate Reorganizations
Purchase and Sale Agreement - iii
<PAGE>
THIS AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT (this "Agreement"),
dated as of May 19, 1997, is among AMPHENOL CORPORATION, a Delaware corporation
("Amphenol"), individually and as the initial Servicer, AMPHENOL INTERCONNECT
PRODUCTS CORPORATION, a Delaware corporation ("Amphenol Interconnect"), PYLE
NATIONAL INC., a Delaware corporation ("Pyle National"), TIMES FIBER
COMMUNICATIONS, INC., a Delaware corporation ("Times Fiber"), and THE SINE
COMPANIES, INC., a Michigan corporation ("Sine") (Amphenol, Amphenol
Interconnect, Pyle National, Times Fiber and Sine are herein collectively called
the "Originators" and individually called an "Originator"), and AMPHENOL FUNDING
CORP., a Delaware corporation ("AFC").
Definitions
Unless otherwise indicated, certain terms that are capitalized and used
throughout this Agreement are defined in Appendix A. All references herein to
months are to calendar months unless otherwise expressly indicated.
Background
1. AFC is a special purpose corporation, all of the issued and outstanding
shares of which are owned by the Originators.
2. The Originators generate Receivables in the ordinary course of their
respective businesses.
3. The Originators (other than Sine), AFC and Amphenol entered into a
Purchase and Sale Agreement, dated as of December 3, 1993 (as amended to the
date hereof, including by the addition of Sine as an Originator, the "Original
PSA"), pursuant to which, among other things, the Originators agreed to sell to
AFC, and AFC agreed to purchase from the Originators, certain Receivables.
Pursuant to the Original PSA, the Originators (other than Sine) transferred
certain Receivables to AFC as part of the initial capitalization of AFC.
4. The Originators, in order to finance their respective businesses, wish
to sell Receivables to AFC, and AFC is willing, on the terms and subject to the
conditions set forth herein, to purchase Receivables from the Originators.
5. Each Originator and AFC intends this transaction to be a true sale of
Receivables by each Originator to AFC providing AFC with the full benefits of
ownership of the Receivables and each Originator and AFC do not intend the
transactions hereunder to be, or for any purpose to be, characterized as a loan
from AFC to any Originator.
<PAGE>
6. AFC intends to sell Participations in the Receivables from time to time
pursuant to the Receivables Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
AGREEMENT TO PURCHASE AND SELL;
AFC AGREEMENT TO LEND
SECTION 1.1 Agreement To Purchase and Sell. On the terms and subject to
the conditions set forth in this Agreement (including Article V), each
Originator, severally and for itself alone, agrees to sell to AFC, and AFC
agrees to purchase from such Originator, from time to time on or after the
Initial Closing Date, but before the Purchase and Sale Termination Date, all of
such Originator's right, title and interest in and to:
(a) each Receivable of such Originator that existed and was owing to
such Originator as at the closing of such Originator's business on
December 6, 1993 (or December 27, 1996 as to Sine) (in each case after
giving effect to the transfer of Receivables, if any, made by such
Originator on the Initial Closing Date pursuant to the Subscription
Agreement);
(b) each Receivable created by such Originator from and including
the closing of such Originator's business on December 6, 1993 (or December
27, 1996 as to Sine), to and including the Purchase and Sale Termination
Date (in each case after giving effect to the transfer of Receivables, if
any, made by such Originator pursuant to the Subscription Agreement);
(c) all rights to, but not the obligations under, all Related
Security;
(d) all monies due or to become due with respect to the Receivables
described in clauses (a) and (b);
(e) all proceeds of Receivables described in clauses (a) and (b)
above (as defined in the applicable UCC) that are or were received by such
Originator on or after the closing of such Originator's business on
December 6, 1993 (or December 27, 1996 as to Sine), including, without
limitation, all funds which either are received by such Originator, AFC or
Servicer from or on behalf of the Obligors in payment of any amounts owed
(including, without limitation, invoice price, finance charges, interest
and all other charges) in respect of Receivables, or are applied to such
amounts owed by the Obligors (including, without limitation, insurance
payments that an Originator or Servicer applies in the ordinary course
Purchase and Sale Agreement - 2
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of its business to amounts owed in respect of any Receivable and net
proceeds of sale or other disposition of repossessed goods or other
collateral or property of the Obligors or any other parties directly or
indirectly liable for payment of such Receivables); and
(f) all books and records related to any of the foregoing.
All purchases hereunder shall be made without recourse, but shall be made
pursuant to, and in reliance upon, the representations, warranties and covenants
of each Originator set forth in this Agreement and each other Transaction
Document. No obligation or liability to any Obligor on any Receivable is
intended to be assumed by AFC hereunder, and any such assumption is expressly
disclaimed. AFC's foregoing commitment to purchase Receivables is herein called
the "Purchase Facility." The Purchase Facility and the Originator Loan Facility
(as defined in Section 1.4) are herein collectively called the "Facility".
SECTION 1.2 Timing of Purchases.
(a) Initial Closing Date Purchases. Each Originator's entire right, title
and interest in (i) each Receivable that existed and was owing to such
Originator as at the closing of such Originator's business on December 6, 1993
(or December 27, 1996 as to Sine), (ii) all Receivables created by such
Originator from and including the closing of such Originator's business on
December 6, 1993 (or December 27, 1996 as to Sine), to and including the Initial
Closing Date (it being agreed by all of the parties hereto that the foregoing
clauses (i) and (ii) shall be calculated after giving effect to the transfer of
Receivables, if any, to be made by such Originator to AFC on the Initial Closing
Date pursuant to the Subscription Agreement), and (iii) all proceeds thereof (as
described in subsection (e) of the foregoing Section 1.1) automatically shall be
deemed to have been sold to AFC on the Initial Closing Date.
(b) Regular Purchases. After the Initial Closing Date, until the Purchase
and Sale Termination Date, each Receivable (and the rights related thereto
described in Section 1.1) created by each Originator shall be deemed to have
been sold to AFC immediately (and without further action) upon the creation of
such Receivable.
SECTION 1.3 Consideration for Purchases. On the terms and subject to the
conditions set forth in this Agreement, AFC agrees to make Purchase Price
payments to the respective Originators in accordance with Article III.
SECTION 1.4 AFC Agreement to Make Demand Loans. On the terms and subject
to the conditions set forth in this Agreement and in the Receivables Purchase
Agreement, AFC agrees to make demand loans (each such loan being herein called
an "Originator Loan") to each Originator prior to the Purchase and Sale
Termination Date in such amounts as such Originator may request (through
Servicer) from time to time; provided, however, that:
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(a) the Originator Loans made to each Originator shall be evidenced
by a demand promissory note in the form of Exhibit A issued by such
Originator to the order of AFC (each such demand promissory note, as it
may be amended, supplemented, indorsed or otherwise modified from time to
time in accordance with the Transaction Documents, together with all
promissory notes issued from time to time in substitution therefor or
renewal thereof in accordance with the Transaction Documents, being herein
called an "Originator Note"); and
(b) no Originator Loan shall be made to any Originator to the extent
that the making of such Originator Loan would violate Section 7.03(f) of
the Receivables Purchase Agreement.
AFC's agreement to make Originator Loans is herein called the "Originator Loan
Facility."
SECTION 1.5 Purchase and Sale Termination Date. The "Purchase and Sale
Termination Date" shall be the earliest to occur of (a) the date of the
termination of this Agreement pursuant to Section 9.2 and (b) the Payment Date
immediately following the day on which all of the Originators shall have given
notice to AFC at or prior to 10:00 a.m. (New York City time) that all of the
Originators desire to terminate this Agreement; provided, however, that the
Purchase and Sale Termination Date shall not occur until the Commitment shall
have terminated, the Aggregate Investment shall have been reduced to zero and
all Obligations shall have been finally and fully paid and performed.
ARTICLE II
CALCULATION OF PURCHASE PRICE
SECTION 2.1 Calculation of Purchase Price. On each Payment Date (including
the Initial Closing Date), Servicer shall deliver to AFC, the Agent and each
Originator a report in substantially the form of Exhibit B (each such report
being herein called a "Purchase Report") with respect to AFC's purchases of
Receivables from each Originator:
(a) that are to be made on such Payment Date (in the case of the
Purchase Report to be delivered on Initial Closing Date), or
(b) that were made during the month immediately preceding such
Payment Date (in the case of each subsequent Purchase Report).
The "Purchase Price" to be paid to each Originator on each Payment Date for the
Receivables that are to be sold by such Originator on such Payment Date (in the
case of the Initial Closing Date) or that were sold by such Originator during
the month immediately preceding such Payment Date (in
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the case of each subsequent Payment Date) shall be set forth in the relevant
Purchase Report and shall be determined in accordance with the following
formula:
PP = AUB - PD
where:
PP = Purchase Price to be paid to the relevant Originator on
the relevant Payment Date
AUB = (i) for purposes of calculating the Purchase Price on
the Initial Closing Date, the aggregate outstanding
Unpaid Balance of all Receivables that were generated by
such Originator, as measured as at the closing of such
Originator's business on December 6, 1993 (or December
27, 1996 as to Sine), less an amount equal to the
aggregate Unpaid Balance of all Receivables that
comprised the capital contribution, if any, made by such
Originator to AFC on the Initial Closing Date pursuant
to the Subscription Agreement, and (ii) for purposes of
calculating the Purchase Price on each Payment Date
thereafter, the aggregate Unpaid Balance of all
Receivables generated by such Originator during the
month immediately preceding such Payment Date (it being
agreed that, subject to Section 3.4, the Unpaid Balance
of each such Receivable shall be measured for this
purpose only at the time such Receivable was generated)
PD = Purchase Discount for such Originator as measured on
such Payment Date
where:
Purchase
Discount z = COFD + SFD + SD + LD
and:
COFD = Cost of Funds Discount for such Originator as measured
on such Payment Date
SFD = Servicer's Fee Discount for such Originator as measured
on such Payment Date
SD = Spread Discount for such Originator as measured on such
Payment
Purchase and Sale Agreement - 5
<PAGE>
Date
LD = Loss Discount for such Originator as measured on such
Payment Date
SECTION 2.2 Definitions and Calculations Related to Purchase Price.
(a) Cost of Funds Discount. "Cost of Funds Discount" for a particular
Originator, as measured on any Payment Date, shall be determined in accordance
with the following formula:
COFD = COF x (AUB/SAUB)
where:
COFD = Cost of Funds Discount for such Originator as measured
on such Payment Date
COF = (i) for purposes of the Initial Closing Date (other than
with respect to Sine), $20,000, and (ii) for purposes of
each subsequent Payment Date, the sum of all of AFC's
financing costs and expenses incurred during the month
preceding such Payment Date, including, without
limitation, accrued Earned Yield, interest on the AFC
Notes, Commitment Fees, Program Fee, reserve costs, tax
payments, and indemnity obligations of AFC for which AFC
is not indemnified pursuant to this Agreement
AUB, in respect of such Originator, has the meaning assigned thereto
in Section 2.1
SAUB = The sum of the separate AUBs calculated in respect of
all Originators on such Payment Date
(b) Servicer's Fee Discount. The "Servicer's Fee Discount" for a
particular Originator, as measured on any Payment Date, shall be determined in
accordance with the following formula:
SFD = SF x (AUB/SAUB)
where:
SFD = Servicer's Fee Discount for such Originator as measured
on such Payment Date
SF = (i) For purposes of the Initial Closing Date, $37,500
(other than with respect to Sine), (ii) for purposes of
each subsequent Payment Date,
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<PAGE>
the aggregate Dollar amount of the Servicer's Fee
payable to the Servicer pursuant to clause (i) or (ii),
as the case may be, of Section 8.01(d) of the
Receivables Purchase Agreement in respect of the month
preceding such Payment Date
AUB, in respect of such Originator, has the meaning assigned thereto
in Section 2.1
SAUB = The sum of the separate AUBs calculated in respect of
all Originators on such Payment Date
(c) Spread Discount. The "Spread Discount" for a particular Originator, as
measured on any Payment Date, shall be calculated in accordance with the
following formula:
SD = AUB x S
where:
SD = Spread Discount for such Originator as measured on such
Payment Date
AUB, in respect of such Originator, has the meaning assigned thereto
in Section 2.1
S = Spread of two (2.0) basis points.
(d) Loss Discount. The "Loss Discount" for a particular Originator, as
measured on any Payment Date, shall be calculated in accordance with the
following formula:
LD = AUB x LR
where:
LD = Loss Discount for such Originator as measured on such
Payment Date
AUB, in respect of such Originator, has the meaning assigned thereto
in Section 2.1
LR = (i) for purposes of the first three Payment Dates
(including the Initial Closing Date) the Average Loss
Rate of the Receivables generated by such Originator, as
measured on such Payment Date, and (ii) for purposes of
each Payment Date thereafter, the Loss Rate of the
Receivables generated by such Originator, as measured on
such Payment Date
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<PAGE>
(e) Average Loss Rate. The "Average Loss Rate" of the Receivables
generated by a particular Originator, as measured on any Payment Date, means
one-tenth of: (i) the aggregate Unpaid Balance of all such Receivables that were
written off during the ten complete months ending October 31, 1993 (or November
30, 1996 as to Sine) divided by (ii) the monthly average Unpaid Balance of all
such Receivables generated by such Originator as measured for such ten-month
period.
(f) Loss Rate. The "Loss Rate" of the Receivables generated by a
particular Originator, as measured on any Payment Date, means: (i) the aggregate
Unpaid Balance of all such Receivables that became more than 180 days past due
(or, without duplication, were written off) during the month preceding such
Payment Date divided by (ii) the Month-End Balance of such Receivables for the
month preceding such Payment Date.
(g) Month-End Balance. The "Month-End Balance", during any month, of the
Receivables generated by a particular Originator means an amount equal to the
aggregate Unpaid Balance of such Receivables at the close of Servicer's (or, for
periods prior to the Initial Closing Date, such Originator's) business on the
last Business Day of such month.
ARTICLE III
PAYMENT OF PURCHASE PRICE
SECTION 3.1 Initial Purchase Price Payment. On the terms and subject to
the conditions set forth in this Agreement, AFC agrees to pay to each Originator
the Purchase Price for the purchase to be made from such Originator on the
Initial Closing Date partially in cash (in an amount to be agreed between AFC,
Servicer and such Originator and set forth in the initial Purchase Report) and
partially by issuing a promissory note in the form of Exhibit C to such
Originator with an initial principal balance equal to the remaining Purchase
Price (each such promissory note, as it may be amended, supplemented, indorsed
or otherwise modified from time to time, together with all promissory notes
issued from time to time in substitution therefor or renewal thereof in
accordance with the Transaction Documents, being herein called an "AFC Note").
SECTION 3.2 Subsequent Purchase Price Payments. On each Payment Date
falling after the Initial Closing Date, on the terms and subject to the
conditions set forth in this Agreement, AFC shall pay to each Originator the
Purchase Price for the Receivables generated by such Originator during the
immediately preceding month as follows:
(a) First, the Purchase Price shall be netted against the accrued
and unpaid interest under the Originator Note issued by such Originator,
thereby fulfilling such Originator's obligation to pay such accrued and
unpaid interest to AFC to the extent of such netting, until such accrued
and unpaid interest is reduced to zero;
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<PAGE>
(b) Second, to the extent any portion of the Purchase Price remains
unpaid, such remaining Purchase Price shall be netted against the
principal amount outstanding under the Originator Note issued by such
Originator, thereby fulfilling such Originator's obligation to pay such
principal amount to AFC to the extent of such netting, until such
outstanding principal amount is reduced to zero; and
(c) Third, to the extent any portion of the Purchase Price remains
unpaid, the principal amount outstanding under the AFC Note issued to such
Originator shall be increased by an amount equal to such remaining
Purchase Price.
Servicer shall make all appropriate record keeping entries with respect to
the Originator Notes and the AFC Notes or otherwise to reflect the foregoing
payments and adjustments and to reflect disbursements and payments of Originator
Loans, and Servicer's books and records shall constitute rebuttable presumptive
evidence of the principal amount of and accrued interest on any AFC Note or
Originator Note at any time. Furthermore, Servicer shall hold the AFC Notes for
the benefit of the Originators. Each Originator hereby irrevocably authorizes
Servicer to mark the AFC Notes "CANCELLED" and to return such AFC Notes to AFC
upon the final payment thereof after the occurrence of the Purchase and Sale
Termination Date.
SECTION 3.3 Settlement as to Specific Receivables. If on the day of
purchase of any Receivable from any Originator hereunder any of the
representations or warranties relating to title set forth in Section 6.12 is not
true with respect to such Receivable, then such Originator forthwith shall
deliver to Servicer for deposit into a Lock-box Account same day funds in an
amount equal to the Unpaid Balance of such Receivable for application by
Servicer to the same extent as if Collections of such Unpaid Balance had
actually been received on such date; provided, that if AFC thereafter receives
payment on account of Collections due with respect to such Receivable, AFC
promptly shall deliver such funds to such Originator.
SECTION 3.4 Settlement as to Dilution. Each Purchase Report (other than
the Purchase Report to be delivered on the Initial Closing Date) shall include,
in respect of the Receivables previously generated by each particular Originator
(including those Receivables, if any, that were transferred by such Originator
on the Initial Closing Date pursuant to the Subscription Agreement), a
calculation of the aggregate net reduction in the aggregate Unpaid Balance of
such Receivables owed by particular Obligors on account of any defective,
rejected or returned goods or services, any cash discount, or any incorrect
billings, other adjustments, or setoffs in respect of any claims by the
Obligor(s) thereof against such Originator or any of its Affiliates (whether
such claims arise out of the same or a related or unrelated transaction), during
the most recent month, as indicated on the books of AFC (or, for periods prior
to the Initial Closing Date, the books of such Originator). The Purchase Price
that otherwise would be paid to such Originator on the Payment Date on which
such Purchase Report is delivered shall be decreased by the amount of such net
reduction. If there have been no purchases of Receivables (or insufficiently
large purchases of Receivables) from such Originator during the month
immediately preceding any Payment Date, any amount owed by which
Purchase and Sale Agreement - 9
<PAGE>
the Purchase Price payable to an Originator would have been reduced pursuant to
the immediately preceding sentence either:
(i) shall be paid in cash by such Originator to AFC, or
(ii) shall be deemed to be a payment under, and shall be deducted
from the principal amount outstanding under, the AFC Note issued to such
Originator, to the extent that such payment and reduction is permitted
under Section 7.03(f) of the Receivables Purchase Agreement.
ARTICLE IV
AFC NOTE AND ORIGINATOR NOTE OPERATIONS
SECTION 4.1 AFC Note and Originator Note Payments. All payments under all
AFC Notes and Originator Notes shall be made to Servicer for the account of the
applicable payee thereof. To the extent that a payment is due and payable (and
permitted to be paid) under an AFC Note issued to a particular Originator on the
same day that a payment is due and payable under the Originator Note issued by
such Originator as a result of a demand for payment thereunder by AFC, such
payment obligations shall be netted and the only payment that actually shall be
made on such day shall be made (a) by the Person owing the larger amount and (b)
in an amount equal to the difference between the two amounts that otherwise
would be due and payable on such day.
ARTICLE V
CONDITIONS OF PURCHASES
SECTION 5.1 Conditions Precedent to Purchase. The effectiveness of this
Agreement is subject to the condition precedent that Servicer (on AFC's behalf)
shall have received, on or before the date hereof, the following, each (unless
otherwise indicated) dated the date hereof, and each in form and substance
satisfactory to Servicer (acting on AFC's behalf):
(a) Except to the extent already executed and delivered in
connection with the Original PSA, an Originator Assignment Certificate in
the form of Exhibit D from each Originator, duly completed, executed and
delivered by such Originator;
(b) A copy of the resolutions of the Board of Directors of each
Originator approving the amendment and restatement of the Original PSA and
the transactions contemplated hereby, certified by the respective
Secretary or Assistant Secretary of each Originator;
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<PAGE>
(c) Good standing certificates for each Originator issued as of a
recent date acceptable to Servicer by the Secretary of State of the
jurisdiction of such Person's incorporation;
(d) Except to the extent that the certificates executed in
connection with the Original PSA remain true and correct, a certificate of
the Secretary or Assistant Secretary of each Originator certifying the
names and true signatures of the officers authorized on such Person's
behalf to sign the Transaction Documents to be delivered by it (on which
certificate Servicer and AFC may conclusively rely until such time as
Servicer shall receive from such Person a revised certificate meeting the
requirements of this subsection (d));
(e) Except to the extent that the certificate of incorporation,
other organizational document and/or by-laws delivered in connection with
the Original PSA remain true and correct, the certificate or articles of
incorporation or other organizational document of each Originator, duly
certified by the Secretary of State of the jurisdiction of such
Originator's incorporation as of a recent date acceptable to Servicer,
together with a copy of the by-laws of such Originator, each duly
certified by the Secretary or an Assistant Secretary of such Originator;
(f) Except to the extent already filed in connection with the
Original PSA, originals of the proper financing statements (Form UCC-1)
that have been duly executed and name each Originator as the assignor and
AFC as the assignee (and Purchaser or Bank of Montreal Trust Company (as
Collateral Trustee), as assignee of AFC) of the Receivables generated by
such Originator as may be necessary or, in Servicer's or the Agent's
opinion, desirable under the UCC of all appropriate jurisdictions to
perfect AFC's ownership interest in all Receivables and such other rights,
accounts, instruments and moneys (including, without limitation, Related
Security) in which an ownership or security interest may be assigned to it
hereunder;
(g)(i) A written search report from a Person satisfactory to
Servicer listing all effective financing statements that name any
Originator as debtor or assignor and that are filed in the jurisdictions
in which filings were made pursuant to the foregoing subsection (f),
together with copies of such financing statements (none of which, except
for those described in the foregoing subsection (f), shall cover any
Receivable or any right related to any Receivable that is of the type
described in Section 1.1) which is to be sold to AFC hereunder, and (ii)
tax and judgment lien search reports from a Person satisfactory to
Servicer showing no evidence of such liens filed against any Originator;
(h) A favorable opinion of Simpson Thatcher & Bartlett, special
counsel to Amphenol and the other Originators, in form and substance
satisfactory to Servicer and the Agent;
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<PAGE>
(i) Except to the extent already evidenced in connection with the
Original PSA, evidence: (i) of the execution and delivery by each of the
parties thereto of each of the other Transaction Documents to be executed
and delivered in connection herewith and (ii) that each of the conditions
precedent to the execution, delivery and effectiveness of such other
Transaction Documents has been satisfied to Servicer's satisfaction;
(j) Except to the extent already executed in connection with the
Original PSA, an AFC Note in favor of each Originator, duly executed by
AFC;
(k) Except to the extent already executed in connection with the
Original PSA, an Originator Note in favor of AFC from each Originator,
duly executed by such Originator;
(l) A certificate from an officer of each Originator to the effect
that Servicer and each Originator have placed on the most recent, and have
taken all steps reasonably necessary to ensure that there shall be placed
on each subsequent, data processing report that it generates which are of
the type that a proposed purchaser or lender would use to evaluate the
Receivables, the following legend (or the substantive equivalent thereof):
"THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO AMPHENOL FUNDING CORP.
PURSUANT TO AN AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT, DATED AS
OF MAY 19, 1997, AS AMENDED, AMONG AMPHENOL CORPORATION, CERTAIN OTHER
ORIGINATORS, AND AMPHENOL FUNDING CORP.; AND UNDIVIDED, FRACTIONAL
OWNERSHIP INTERESTS IN THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO
POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION PURSUANT TO AN AMENDED AND
RESTATED RECEIVABLES PURCHASE AGREEMENT, DATED AS OF MAY 19, 1997, AS
AMENDED, AMONG AMPHENOL FUNDING CORP., AMPHENOL CORPORATION, POOLED
ACCOUNTS RECEIVABLE CAPITAL CORPORATION AND NESBITT BURNS SECURITIES,
INC., AS THE AGENT"; and
(m) Except to the extent already executed in connection with the
Original PSA, a duly executed counterpart of the Subscription Agreement
from each Originator party thereto.
SECTION 5.2 Certification as to Representations and Warranties. Each
Originator, by accepting the Purchase Price related to each purchase of
Receivables generated by such Originator, shall be deemed to have certified that
the representations and warranties contained in Article VI are true and correct
on and as of such day, with the same effect as though made on and as of such day
(except to the extent that any such representation or warranty is expressed to
be made only as of an earlier date, in which case such representation or
warranty shall have been true and correct on and as of such earlier date).
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<PAGE>
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS
In order to induce AFC to enter into this Agreement and to make purchases
hereunder, each Originator hereby makes with respect to itself, and Amphenol,
jointly and severally, with each Originator makes with respect to such
Originator, the representations and warranties set forth in this Article VI.
SECTION 6.1 Organization and Good Standing. Such Originator has been duly
organized and is validly existing as a corporation in good standing under the
laws of the state of its incorporation, with power and authority to own its
properties and to conduct its business as such properties are presently owned
and such business is presently conducted.
SECTION 6.2 Due Qualification. Such Originator is duly licensed or
qualified to do business as a foreign corporation in good standing in all
jurisdictions in which the ownership or lease of its property or the conduct of
its business requires such licensing or qualification (except to the extent that
the failure to be so licensed or qualified would not be reasonably likely to
have a Material Adverse Effect).
SECTION 6.3 Power and Authority; Due Authorization. Such Originator has
(a) all necessary power, authority and legal right (i) to execute and deliver,
and perform its obligations under, each Transaction Document to which it is a
party and (ii) to generate, own, sell and assign Receivables on the terms and
subject to the conditions herein and therein provided; and (b) duly authorized
such execution and delivery and such sale and assignment and the performance of
such obligations by all necessary corporate action (including, if required, all
shareholder action).
SECTION 6.4 Valid Sale; Binding Obligations. Each sale made by such
Originator pursuant to this Agreement shall constitute a valid sale, transfer
and assignment of Receivables to AFC, enforceable against creditors of, and
purchasers from, such Originator; and this Agreement constitutes, and each other
Transaction Document signed or to be signed by such Originator, when duly
executed and delivered, constitutes or will constitute, a legal, valid and
binding obligation of such Originator, enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
SECTION 6.5 No Violation. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents, and the
fulfillment of the terms hereof or thereof, will not (a) conflict with, result
in any breach of any of the terms and provisions of, or constitute (with or
without notice, lapse of time or both) a default under (i) such Originator's
articles or certificate of incorporation or by-laws, or (ii) any indenture, loan
agreement, mortgage, deed of trust
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<PAGE>
or other agreement or instrument to which it is a party or by which it or any of
its property is bound, except for any conflict, breach or default that would not
be reasonably likely to have a Material Adverse Effect, (b) result in the
creation or imposition of any Adverse Claim upon any of its properties pursuant
to the terms of any such indenture, loan agreement, mortgage, deed of trust or
other agreement or instrument, other than the Transaction Documents, or (c)
violate any law or any order, rule or regulation applicable to it of any court
or of any federal, state or foreign regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over it or any of its
properties, except for any violation that would not be reasonably likely to have
a Material Adverse Effect.
SECTION 6.6 Proceedings. Except as set forth in Exhibit F, there is no
action, suit, proceeding or investigation pending before any court, regulatory
body, arbitrator, administrative agency or other tribunal or governmental
instrumentality (a) asserting the invalidity of any Transaction Document, (b)
seeking to prevent the issuance of such Originator's Originator Assignment
Certificate or the consummation of any of the transactions contemplated by any
Transaction Document, or (c) seeking any determination or ruling that is
reasonably likely to have a Material Adverse Effect.
SECTION 6.7 Bulk Sales Acts. No transaction contemplated hereby requires
compliance with, or will be subject to avoidance under, any bulk sales act or
similar law.
SECTION 6.8 Government Approvals. Except for the filing of the UCC
financing statements referred to in Article V, all of which, at the time
required in Article V, shall have been duly made and shall be in full force and
effect, no authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for such
Originator's due execution, delivery and performance of any Transaction Document
to which it is a party, except where the failure to receive or make such
authorization, approval, action, notice or filing would not be reasonably likely
to have a Material Adverse Effect.
SECTION 6.9 Material Adverse Effect. Since December 31, 1996, no event has
occurred that has had, or is reasonably likely to have, a Material Adverse
Effect.
SECTION 6.10 Licenses, Contingent Liabilities and Labor Controversies. (a)
Such Originator has not failed to obtain any licenses, permits, franchises or
other governmental authorizations necessary to the ownership of its properties
or to the conduct of its business, which violation or failure to obtain would be
reasonably likely to have a Material Adverse Effect.
(b) There are no labor controversies pending against such Originator that
have had (or are reasonably likely to have) a Material Adverse Effect.
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SECTION 6.11 Margin Regulations. No use of any funds acquired by such
Originator under this Agreement will conflict with or contravene any of
Regulations G, T, U and X promulgated by the Board of Governors of the Federal
Reserve System from time to time.
SECTION 6.12 Quality of Title. (a) Each Receivable of such Originator
(together with the Related Security for such Receivable) which is to be sold to
AFC hereunder is or shall be owned by such Originator, free and clear of any
Adverse Claim, except as provided herein and in the Receivables Purchase
Agreement. Whenever AFC makes a purchase hereunder, it shall have acquired and
shall continue to have maintained a valid and perfected ownership interest (free
and clear of any Adverse Claim) in all Receivables generated by such Originator
and all Collections related thereto, and in such Originator's entire right,
title and interest in and to the Related Security with respect thereto.
(b) No effective financing statement or other instrument similar in effect
covering any Receivable generated by such Originator or any right related to any
such Receivable that is of the type described in Section 1.1 is on file in any
recording office except such as may be filed in favor of AFC or the Originators,
as the case may be, in accordance with this Agreement or in favor of Purchaser
in accordance with the Receivables Purchase Agreement.
SECTION 6.13 Accuracy of Information. All factual written information
heretofore or contemporaneously furnished (and prepared) by such Originator to
AFC, Purchaser or the Agent for purposes of or in connection with any
Transaction Document or any transaction contemplated hereby or thereby is, and
all other such factual written information hereafter furnished (and prepared) by
such Originator to AFC, Purchaser or the Agent pursuant to or in connection with
any Transaction Document will be, true and accurate in every material respect on
the date as of which such information is dated or certified. No information
contained in any report delivered pursuant to Section 7.2 or in any Purchase
Report shall be incomplete by omitting to state any material fact necessary to
make such information not misleading on the date as of which such information is
dated or certified.
SECTION 6.14 Offices. Such Originator's principal place of business and
chief executive office is located at the address set forth under such
Originator's signature hereto, and the offices where such Originator keeps all
its books, records and documents evidencing its Receivables, the related
Contracts and all other agreements related to such Receivables are located at
the addresses specified in Exhibit G (or at such other locations, notified to
Servicer and the Agent in accordance with Section 7.1(f), in jurisdictions where
all action required by Section 8.3 has been taken and completed).
SECTION 6.15 Trade Names. Such Originator does not use any trade name
other than its actual corporate name and the trade names set forth in Exhibit H.
From and after December 3, 1988, such Originator has not been known by any legal
name other than its corporate name as of the date hereof, nor has such
Originator been the subject of any merger or other corporate reorganization.
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SECTION 6.16 Taxes. Such Originator has filed all tax returns and reports
required by law to have been filed by it and has paid all taxes and governmental
charges thereby shown to be owing, except any such taxes or charges which are
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on its
books.
SECTION 6.17 Compliance with Applicable Laws. Such Originator is in
compliance with the requirements of all applicable laws, rules, regulations and
orders of all governmental authorities, a breach of any of which, individually
or in the aggregate, would be reasonably likely to have a Material Adverse
Effect.
ARTICLE VII
COVENANTS OF AMPHENOL AND THE OTHER ORIGINATORS
SECTION 7.1 Affirmative Covenants. From the date hereof until the first
day following the Purchase and Sale Termination Date, each Originator will,
unless Servicer (on behalf of AFC) shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply in all material respects with
all applicable laws, rules, regulations and orders with respect to the
Receivables generated by it and the Contracts and other agreements related
thereto except where the failure to so comply would not materially and
adversely affect the collectibility of such Receivables or the rights of
AFC hereunder.
(b) Preservation of Corporate Existence. Preserve and maintain its
corporate existence, rights, franchises and privileges in the jurisdiction
of its incorporation, and qualify and remain qualified in good standing as
a foreign corporation in each jurisdiction where the failure to preserve
and maintain such existence, rights, franchises, privileges and
qualification would be reasonably likely to have a Material Adverse
Effect.
(c) Receivables Reviews. (i) At any time and from time to time
during regular business hours, and upon two Business Days' prior written
notice so long as no Termination Event is continuing, permit AFC or the
Agent, or their respective agents or representatives, (and/or, if the
Agent shall have consented (which consent shall not be unreasonably
withheld), the Surety Bond Provider or its agents or representatives) (A)
to examine and make copies of and abstracts from all books, records and
documents (including, without limitation, computer tapes and disks) in
possession or under the control of such Originator relating to
Receivables, including, without limitation, the related Contracts and
purchase orders and other agreements related thereto, and (B) to visit the
offices and properties of such Originator for the purpose of examining
such materials described in clause (i)(A) above, and
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to discuss matters relating to Receivables originated by it or the
performance hereunder with any of the officers or employees of such
Originator having knowledge of such matters, and (ii) without limiting the
foregoing clause (i), from time to time on request of the Agent (given not
more than once in each calendar year so long as no Purchase and Sale
Termination Event shall have occurred and be continuing), permit certified
public accountants or other auditors acceptable to AFC and the Agent to
conduct, at AFC's expense (so long as such expenses do not exceed $15,000
in any calendar year), a review of such Originator's books and records
with respect to such Receivables.
(d) Keeping of Records and Books of Account. Maintain and implement
administrative and operating procedures (including, without limitation, an
ability to recreate records evidencing Receivables it generates in the
event of the destruction of the originals thereof), and keep and maintain
all documents, books, records and other information reasonably necessary
or advisable for the collection of such Receivables (including, without
limitation, records adequate to permit the daily identification of each
new Receivable and all Collections of and adjustments to each existing
Receivable).
(e) Performance and Compliance with Receivables and Contracts.
Timely and fully perform and comply in all material respects with all the
provisions, covenants and other promises required to be observed by it
under the Contracts and all other agreements related to the Receivables
that it generates.
(f) Location of Records. Keep its principal place of business and
chief executive office, and the offices where it keeps its records
concerning or related to Receivables, at the address(es) referred to in
Exhibit G or, upon 15 days' prior written notice to AFC and the Agent, at
such other locations in jurisdictions where all action required by Section
8.3 shall have been taken and completed.
(g) Credit and Collection Policies. Comply in all material respects
with its Credit and Collection Policy in connection with the Receivables
that it generates and all Contracts and other agreements related thereto.
(h) Separate Corporate Existence of AFC. Take such actions as shall
be required in order that:
(i) AFC's operating expenses will not be paid by such
Originator;
(ii) Such Originator's books and records will be maintained
separately from those of AFC;
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(iii) Any financial statements of such Originator which are
consolidated to include AFC will contain detailed notes clearly
stating that AFC is a separate corporate entity and has sold
ownership interests in AFC's accounts receivable;
(iv) Such Originator will strictly observe corporate
formalities in its dealing with AFC, and funds or other assets of
AFC will not be commingled with those of such Originator;
(v) AFC shall pay to the appropriate Amphenol Person the
marginal increase (or, in the absence of such increase, the market
amount of its portion) of the premium payable with respect to any
insurance policy that covers AFC and any other Amphenol Person, but
AFC shall not, directly or indirectly, be named or enter into an
agreement to be named, as a direct or contingent beneficiary or loss
payee, under any such insurance policy, with respect to any amounts
payable due to occurrences or events related to any other Amphenol
Person;
(vi) Such Originator will maintain arm's-length relationships
with AFC, and such Originator will be compensated at market rates
for any services it renders or otherwise furnishes to AFC; and
(vii) Such Originator will not be, and will not hold itself
out to be, responsible for the debts of AFC or the decisions or
actions in respect of the daily business and affairs of AFC.
(i) Post Office Boxes. Except to the extent already provided in
connection with the Original PSA, within 60 days after the date hereof,
deliver to Servicer (on behalf of AFC) a certificate from an authorized
officer of such Originator to the effect that (i) the name of the renter
of all post office boxes into which Collections may from time to time be
mailed have been changed to the name of AFC (unless such post office boxes
are in the name of the relevant Lock-box Banks) and (ii) all relevant
postmasters have been notified that each of Servicer (and each Servicer
Person) and the Agent are authorized to collect mail delivered to such
post office boxes (unless such post office boxes are in the name of the
relevant Lock-box Banks).
SECTION 7.2 Reporting Requirements. From the date hereof until the first
day following the Purchase and Sale Termination Date, each Originator will,
unless Servicer (on behalf of AFC) shall otherwise consent in writing, furnish
to AFC and the Agent (with a copy for Purchaser) the following:
(a) ERISA. Promptly after receipt of any notice with respect to any
Reportable Event (as defined in Title IV of ERISA) with respect to such
Originator that would be reasonably likely to have a Material Adverse
Effect, a copy of such notice;
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(b) Purchase and Sale Termination Events. As soon as possible after
the occurrence of, and in any event within three Business Days after the
occurrence of, each Purchase and Sale Termination Event or each Unmatured
Purchase and Sale Termination Event in respect of such Originator, a
written statement of the chief financial officer or chief accounting
officer of such Originator describing such Purchase and Sale Termination
Event or Unmatured Purchase and Sale Termination Event and the action that
such Originator proposes to take with respect thereto, in each case in
reasonable detail;
(c) Proceedings. As soon as possible, and in any event within three
Business Days after such Originator otherwise has knowledge thereof,
written notice of (i) any action, suit, proceeding or investigation of the
type described in Section 6.6 not previously disclosed to AFC and (ii) all
material adverse developments that have occurred with respect to any
previously disclosed actions, suits, proceedings and investigations; and
(d) Other. Promptly, from time to time, such other information,
documents, records or reports respecting the Receivables or the conditions
or operations, financial or otherwise, of such Originator as AFC,
Purchaser or the Agent may from time to time reasonably request in order
to protect the interests of AFC, Purchaser or the Agent under or as
contemplated by the Transaction Documents.
SECTION 7.3 Negative Covenants. From the date hereof until the date
following the Purchase and Sale Termination Date, each Originator agrees that,
unless Servicer (on behalf of AFC) shall otherwise consent in writing, it shall
not:
(a) Sales, Liens, Etc. Except as otherwise provided herein or in any
other Transaction Document, sell, assign (by operation of law or
otherwise) or otherwise dispose of, or create or suffer to exist any
Adverse Claim upon or with respect to, any Receivable or related Contract
or Related Security, or any interest therein, or any Collections thereon,
or assign any right to receive income in respect thereof.
(b) Extension or Amendment of Receivables. Except as otherwise
permitted in Section 8.02(c) of the Receivables Purchase Agreement,
extend, amend or otherwise modify the terms of any Receivable generated by
it in any material respect, or amend, modify or waive, in any material
respect, any term or condition of any Contract related thereto (which term
or condition relates to payments under, or the enforcement of, such
Contract).
(c) Change in Business or Credit and Collection Policy. Make any
change in the character of its business or materially alter its Credit and
Collection Policy, which change would, in either case, be reasonably
likely to have a Material Adverse Effect.
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(d) Receivables Not to be Evidenced by Promissory Notes or Chattel
Paper. Take any action to cause or permit any Receivable generated by it
to become evidenced by any "instrument" or "chattel paper" (as defined in
the applicable UCC).
(e) Mergers, Acquisitions, Sales, etc. (i) Be a party to any merger
or consolidation, except (A) a merger or consolidation involving Amphenol
where Amphenol is the surviving corporation, or (B) a merger or
consolidation among two or more Originators (including, without
limitation, Amphenol), or (ii) directly or indirectly sell, transfer,
assign, convey or lease (A) whether in one or a series of transactions,
all or substantially all of its assets, except to another Originator
(including, without limitation, Amphenol), or (B) any Receivables or any
interest therein (other than pursuant to this Agreement).
SECTION 7.4 Lock-box Banks. From the date hereof until the date following
the Purchase and Sale Termination Date, each Originator agrees that it shall not
make any changes in its instructions to Obligors regarding Collections or add or
terminate any Lock-box Bank unless the requirements of Section 7.03(d) of the
Receivables Purchase Agreement have been met.
ARTICLE VIII
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE RECEIVABLES
SECTION 8.1 Rights of AFC. Each Originator hereby authorizes AFC, Servicer
or their respective designees to take any and all steps in such Originator's
name necessary or desirable, in their respective determination, to collect all
amounts due under any and all Receivables, including, without limitation,
indorsing the name of such Originator on checks and other instruments
representing Collections and enforcing such Receivables and the provisions of
the related Contracts that concern payment and/or enforcement of rights to
payment.
SECTION 8.2 Responsibilities of Each Originator. Anything herein to the
contrary notwithstanding:
(a) Collection Procedures. Each Originator agrees to direct its
respective Obligors to make payments of Receivables directly to a post
office box related to the relevant Lock-box Account at a Lock-box Bank.
Each Originator further agrees to transfer any Collections that it
receives directly to Servicer (for AFC's account) within one (1) Business
Day of receipt thereof, and agrees that all such Collections shall be
deemed to be received in trust for AFC and shall be maintained and
segregated separate and apart from all other funds and monies of such
Originator until transfer of such Collections to Servicer.
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(b) Each Originator shall perform its obligations hereunder, and the
exercise by AFC or its designee of any of its rights hereunder shall not
relieve such Originator from such obligations.
(c) Neither AFC, Servicer, Purchaser nor the Agent shall have any
obligation or liability to any Obligor or any other third Person with
respect to any Receivables, Contracts related thereto or any other related
agreements, nor shall AFC, Servicer, Purchaser or the Agent be obligated
to perform any of the obligations of any Originator thereunder.
(d) Each Originator hereby grants to Servicer an irrevocable power
of attorney, with full power of substitution, coupled with an interest, to
take in the name of such Originator all steps necessary or advisable to
indorse, negotiate or otherwise realize on any writing or other right of
any kind held or transmitted by such Originator or transmitted or received
by AFC (whether or not from such Originator) in connection with any
Receivable.
SECTION 8.3 Further Action Evidencing Purchases. Each Originator agrees
that from time to time, at its expense, it will promptly execute and deliver all
further instruments and documents, and take all further action that Servicer may
reasonably request in order to perfect, protect or more fully evidence the
Receivables (and the rights related thereto that are of the type described in
Section 1.1) purchased by AFC hereunder, or to enable AFC to exercise or enforce
any of its rights hereunder or under any other Transaction Document. Without
limiting the generality of the foregoing, upon the request of Servicer, each
Originator will:
(a) execute and file such financing or continuation statements, or
amendments thereto or assignments thereof, and such other instruments or
notices as may be necessary or appropriate; and
(b) mark the master data processing records that evidence or list
(i) such Receivables and (ii) related Contracts with the legend set forth
in Section 5.1(l).
Each Originator hereby authorizes AFC or its designee to file one or more
financing or continuation statements, and amendments thereto and assignments
thereof, relative to all or any of the Receivables (and the rights related
thereto that are of the type described in Section 1.1) now existing or hereafter
generated by such Originator. If any Originator fails to perform any of its
agreements or obligations under this Agreement, AFC or its designee may (but
shall not be required to) itself perform, or cause performance of, such
agreement or obligation, and the expenses of AFC or its designee incurred in
connection therewith shall be payable by such non-performing Originator as
provided in Section 10.1.
SECTION 8.4 Application of Collections. Any payment by an Obligor in
respect of any indebtedness owed by it to any Originator shall, except as
otherwise specified by such Obligor or otherwise required by contract or law and
unless otherwise instructed by AFC or the Agent, be
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applied as a Collection of any Receivable or Receivables of such Obligor to the
extent of any amounts then due and payable thereunder before being applied to
any other indebtedness of such Obligor.
ARTICLE IX
PURCHASE AND SALE TERMINATION EVENTS
SECTION 9.1 Purchase and Sale Termination Events. Each of the following
events or occurrences described in this Section 9.1 shall constitute a "Purchase
and Sale Termination Event":
(a) A Termination Event shall have occurred and, in the case of a
Termination Event (other than one described in Section 9.01(e), (g), (h)
or (i) of the Receivables Purchase Agreement), the Agent, at the request
(or with the consent) of Purchaser, shall have declared the Commitment
Termination Date to have occurred; or
(b) Any Originator shall fail to make any payment or deposit to be
made by it hereunder when due and such failure shall remain unremedied for
five (5) Business Days; or
(c) Any representation or warranty made or deemed to be made by any
Originator (or any of its officers) under or in connection with this
Agreement, any other Transaction Documents or any other information or
report delivered pursuant hereto or thereto shall prove to have been false
or incorrect in any material respect when made or deemed made; or
(d) Any Originator shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement on its part to be
performed or observed and such failure shall remain unremedied for 30
calendar days after written notice thereof shall have been given by
Servicer to such Originator; or
(e) An Event of Bankruptcy shall have occurred with respect to any
Originator.
SECTION 9.2 Remedies.
(a) Optional Termination. Upon the occurrence of a Purchase and Sale
Termination Event, but subject to the proviso in Section 1.5, AFC (and not
Servicer) shall have the option by notice to the Originators (with a copy to the
Agent) to declare the Purchase and Sale Termination Date to have occurred.
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(b) Remedies Cumulative. Upon any termination of the Facility pursuant to
this Section 9.2, AFC shall have, in addition to all other rights and remedies
under this Agreement or otherwise, all other rights and remedies provided under
the UCC of each applicable jurisdiction and other applicable laws, which rights
shall be cumulative. Without limiting the foregoing, the occurrence of the
Purchase and Sale Termination Date shall not deny AFC any remedy in addition to
termination of the Purchase Facility to which AFC may be otherwise appropriately
entitled, whether at law or equity.
ARTICLE X
INDEMNIFICATION
SECTION 10.1 Indemnities by Amphenol and the Originators. Without limiting
any other rights which AFC may have hereunder or under applicable law, each
Originator, severally and for itself alone, and Amphenol, jointly and severally
with each Originator, hereby agrees to indemnify AFC and each of its officers,
directors, employees and agents (each of the foregoing Persons being
individually called a "Purchase and Sale Indemnified Party"), forthwith on
demand, from and against any and all damages, losses, claims, judgments,
liabilities and related costs and expenses, including reasonable attorneys' fees
and disbursements (all of the foregoing being collectively called "Purchase and
Sale Indemnified Amounts") awarded against or incurred by any of them arising
out of or as a result of the failure of such Originator to perform its
obligations under this Agreement, any other Transaction Document or arising out
of the claims asserted against a Purchase and Sale Indemnified Party relating to
the transactions contemplated herein or therein or the use of proceeds herefrom
or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to
the extent resulting from gross negligence or willful misconduct on the part of
such Purchase and Sale Indemnified Party, (ii) any indemnification which has the
effect of recourse for non-payment of the Receivables to any Amphenol Person
(except as otherwise specifically provided under this Section 10.1) and (iii)
any tax based upon or measured by net income or gross receipts. Without limiting
the foregoing, each Originator, severally and for itself alone, and Amphenol,
jointly and severally with each Originator, indemnifies each Purchase and Sale
Indemnified Party for Purchase and Sale Indemnified Amounts relating to or
resulting from:
(a) the transfer by such Originator of an interest in any Receivable
to any Person other than AFC;
(b) the breach of any representation or warranty made by such
Originator (or any of its officers) under or in connection with this
Agreement or any other Transaction Document, or any information or report
delivered by such Originator pursuant hereto or thereto which shall have
been false or incorrect in any material respect when made or deemed made;
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(c) the failure by such Originator to comply with any applicable
law, rule or regulation with respect to any Receivable generated by such
Originator or the related Contract, or the nonconformity of any Receivable
generated by such Originator or the related Contract with any such
applicable law, rule or regulation;
(d) the failure to vest and maintain vested in AFC an ownership
interest in the Receivables generated by such Originator free and clear of
any Adverse Claim, other than an Adverse Claim arising solely as a result
of an act of AFC, whether existing at the time of the purchase of such
Receivables or at any time thereafter;
(e) the failure to file, or any delay in filing, financing
statements or other similar instruments or documents under the UCC of any
applicable jurisdiction or other applicable laws with respect to any
Receivables or purported Receivables generated by such Originator, whether
at the time of any purchase or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in
bankruptcy) of the Obligor to the payment of any Receivable or purported
Receivable generated by such Originator (including, without limitation, a
defense based on such Receivable's or the related Contract's not being a
legal, valid and binding obligation of such Obligor enforceable against it
in accordance with its terms), or any other claim resulting from the sale
of the merchandise or services related to any such Receivable or the
furnishing of or failure to furnish such merchandise or services;
(g) any product liability claim arising out of or in connection with
merchandise or services that are the subject of any Receivable generated
by such Originator; and
(h) any tax or governmental fee or charge (other than any tax
excluded pursuant to clause (iii) in the proviso to the preceding
sentence), all interest and penalties thereon or with respect thereto, and
all out-of-pocket costs and expenses, including the reasonable fees and
expenses of counsel in defending against the same, which may arise by
reason of the purchase or ownership of the Receivables generated by such
Originator or any Related Security connected with any such Receivables.
If for any reason the indemnification provided above in this Section 10.1
is unavailable to a Purchase and Sale Indemnified Party or is insufficient to
hold such Purchase and Sale Indemnified Party harmless, then each of the
Originators, severally and for itself alone, and Amphenol, jointly and severally
with each Originator, shall contribute to the amount paid or payable by such
Purchase and Sale Indemnified Party to the maximum extent permitted under
applicable law.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Amendments, Waivers, etc. (a) The provisions of this
Agreement may from time to time be amended, modified or waived, if such
amendment, modification or waiver is in writing and consented to by AFC,
Servicer and the Originators (with respect to an amendment) or by AFC (with
respect to a waiver or consent by it).
(b) No failure or delay on the part of AFC, Servicer, any Originator or
any third party beneficiary in exercising any power or right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No notice to or demand on AFC, Servicer,
Amphenol or any other Originator in any case shall entitle it to any notice or
demand in similar or other circumstances. No waiver or approval by AFC or
Servicer under this Agreement shall, except as may otherwise be stated in such
waiver or approval, be applicable to subsequent transactions. No waiver or
approval under this Agreement shall require any similar or dissimilar waiver or
approval thereafter to be granted hereunder.
(c) The Transaction Documents contain a final and complete integration of
all prior expressions by the parties hereto with respect to the subject matter
thereof and shall constitute the entire agreement among the parties hereto with
respect to the subject matter thereof, superseding all prior oral or written
understandings.
SECTION 11.2 Notices, etc. All notices and other communications provided
for hereunder shall, unless otherwise stated herein, be in writing (including
facsimile communication) and shall be personally delivered or sent by facsimile
(to be followed by mail) to the intended party at the address or facsimile
number of such party set forth under its name on the signature pages hereof or
at such other address or facsimile number as shall be designated by such party
in a written notice to the other parties hereto. All such notices and
communications shall be effective, (i) if personally delivered, when received,
and (ii) if transmitted by facsimile, when sent, receipt confirmed by telephone
or electronic means.
SECTION 11.3 Cumulative Remedies. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law. Without limiting
the foregoing, Amphenol and each Originator hereby authorize AFC, at any time
and from time to time, to the fullest extent permitted by law, to setoff,
against any obligations of such Originator to AFC arising in connection with the
Transaction Documents (including, without limitation, amounts payable pursuant
to Section 10.1) that are then due and payable or that are not then due and
payable but are accruing in respect of the then current Settlement Period, any
and all indebtedness at any time owing by AFC to or for the credit or the
account of Amphenol or any Originator (including pursuant to any AFC Note).
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SECTION 11.4 Binding Effect; Assignability. This Agreement shall be
binding upon and inure to the benefit of AFC, Amphenol and each Originator and
their respective successors and permitted assigns. No Originator may assign any
of its rights hereunder or any interest herein without the prior written consent
of AFC, except as otherwise herein specifically provided. This Agreement shall
create and constitute the continuing obligations of the parties hereto in
accordance with its terms, and shall remain in full force and effect until such
time as the parties hereto shall agree. The rights and remedies with respect to
any breach of any representation and warranty made by any Originator pursuant to
Article VI and the indemnification and payment provisions of Article X and
Section 11.6 shall be continuing and shall survive any termination of this
Agreement.
SECTION 11.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, EXCEPT
TO THE EXTENT THAT THE PERFECTION (AND THE EFFECT OF PERFECTION OR
NONPERFECTION) OF AFC'S INTERESTS IN THE RECEIVABLES IS GOVERNED BY THE LAWS OF
A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
SECTION 11.6 Costs, Expenses and Taxes. In addition to the obligations of
the Originators under Article X, each Originator, severally and for itself
alone, and Amphenol, jointly and severally with each Originator, agrees to pay
on demand:
(a) all costs and expenses in connection with the enforcement of
this Agreement, the Originator Assignment Certificates and the other
Transaction Documents; and
(b) all stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing and recording
of this Agreement or the other Transaction Documents to be delivered
hereunder, and agrees to indemnify each Purchase and Sale Indemnified
Party against any liabilities with respect to or resulting from any delay
in paying or omission to pay such taxes and fees.
SECTION 11.7 Submission to Jurisdiction. EACH PARTY HERETO HEREBY
IRREVOCABLY (a) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ILLINOIS OR UNITED
STATES FEDERAL COURTS SITTING IN CHICAGO, ILLINOIS, OVER ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY TRANSACTION DOCUMENT; (b) AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE OR UNITED STATES FEDERAL COURT; (c) WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO
THE MAINTENANCE OF SUCH ACTION OR PROCEEDING; (d) IRREVOCABLY CONSENTS TO THE
SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES OF SUCH PROCESS TO SUCH PERSON AT ITS ADDRESS SPECIFIED IN SECTION
11.2; AND (e) AGREES THAT A
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FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS SECTION 11.7 SHALL AFFECT AFC'S RIGHT TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR
PROCEEDING AGAINST AMPHENOL, ANY ORIGINATOR OR ITS RESPECTIVE PROPERTY IN THE
COURTS OF ANY OTHER JURISDICTIONS.
SECTION 11.8 Waiver of Jury Trial. EACH PARTY HERETO WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER
OR RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, AND AGREES
THAT (a) ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY AND (b) ANY PARTY HERETO (OR ANY ASSIGNEE OR THIRD PARTY
BENEFICIARY OF THIS AGREEMENT) MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF ANY OTHER
PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY.
SECTION 11.9 Captions and Cross References; Incorporation by Reference.
The various captions (including, without limitation, the table of contents) in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in this
Agreement to any underscored Section or Exhibit are to such Section or Exhibit
of this Agreement, as the case may be. Appendix A and the Exhibits hereto are
hereby incorporated by reference into and made a part of this Agreement.
SECTION 11.10 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
Agreement.
SECTION 11.11 Acknowledgment and Agreement. (a) By execution below,
Amphenol and each other Originator expressly acknowledge and agree that all of
AFC's rights, title and interests in, to and under this Agreement shall be
assigned by AFC pursuant to the Receivables Purchase Agreement, and Amphenol and
each Originator consents to such assignment. Each of the parties hereto
acknowledges and agrees that the Agent and Purchaser are third party
beneficiaries of the rights of AFC arising hereunder and under the other
Transaction Documents to which Amphenol or any Originator is a party.
Purchase and Sale Agreement - 27
<PAGE>
(b) By execution below, each Originator acknowledges that Purchaser and
the Agent are entering into the Receivables Purchase Agreement in reliance upon
AFC's identity as a legal entity separate from any Originator.
Purchase and Sale Agreement - 28
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
AMPHENOL FUNDING CORP.
By:
----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address: 358 Hall Avenue
Wallingford, Connecticut 06492
Attention: Treasurer
Facsimile: (203) 265-8628
AMPHENOL CORPORATION
By:
----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address: 358 Hall Avenue
Wallingford, Connecticut 06492
Attention: Treasurer
Facsimile: (203) 265-8628
AMPHENOL INTERCONNECT PRODUCTS
CORPORATION
By:
----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address: 358 Hall Avenue
Wallingford, Connecticut 06492
Attention: Treasurer
Facsimile: (203) 265-8628
Purchase and Sale Agreement - 29
<PAGE>
PYLE NATIONAL INC.
By:
----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address: 358 Hall Avenue
Wallingford, Connecticut 06492
Attention: Treasurer
Facsimile: (203) 265-8628
TIMES FIBER COMMUNICATIONS, INC.
By:
----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address: 358 Hall Avenue
Wallingford, Connecticut 06492
Attention: Treasurer
Facsimile: (203) 265-8628
THE SINE COMPANIES, INC.
By:
----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address: 25325 Joy Boulevard
Mt. Clemens, MI 48046-2336
Attention: Treasurer
with copies of any notices to:
Amphenol Corporation
358 Hall Avenue
Purchase and Sale Agreement - 30
<PAGE>
Wallingsford, Connecticut 06492
Attention: Treasurer
Facsimile: (203) 265-8628
Purchase and Sale Agreement - 31
<PAGE>
Exhibit A
to Purchase and Sale Agreement
FORM OF ORIGINATOR NOTE
DEMAND NOTE
New York, New York
___________, ___
The undersigned, _____________, a _________ corporation (the
"Originator"), for value received, promises to pay to the order of Amphenol
Funding Corp., a Delaware corporation ("AFC"), ON DEMAND, the aggregate unpaid
principal amount of all loans made by AFC to the Originator (the "Originator
Loans") as shown in the records of the Servicer (as such term is defined in the
Purchase and Sale Agreement hereinafter referred to), together with accrued
interest on such amounts from time to time outstanding hereunder at the rate
provided below.
The unpaid principal amount of each Originator Loan from time to time
outstanding shall bear interest (which also shall be payable ON DEMAND) on each
day from (and including) the day on which such Originator Loan was made to (but
excluding) the day on which such Originator Loan is paid in full at a rate per
annum equal to: (a) the rate borne on such day by the AFC Note payable to the
Originator plus (b) one-quarter of one percent (0.25%). Interest hereunder shall
be computed for the actual number of days elapsed on the basis of a year
consisting of 360 days.
This Demand Note is one of the Originator Notes described in, and is
subject to the terms and conditions set forth in, the Amended and Restated
Purchase and Sale Agreement, dated as of May 19, 1997 (amending and restating
the Purchase and Sale Agreement dated as of December 3, 1993, as the same may at
any time be amended, supplemented, amended and restated or otherwise modified
from time to time in accordance with its terms, the "Purchase and Sale
Agreement") among AFC, the Originator and certain other Persons. Reference is
hereby made to the Purchase and Sale Agreement for a statement of certain other
rights and obligations of AFC and the Originator. All capitalized terms used but
not otherwise defined herein have the meanings assigned thereto in the Purchase
and Sale Agreement and Appendix A attached thereto.
All payments of principal and interest hereunder are to be made in lawful
money of the United States of America in same day funds to the account
designated from time to time by the Servicer.
Purchase and Sale Agreement A - 1
<PAGE>
In addition to and not in limitation of the foregoing, the Originator
further agrees, subject to any limitation imposed by applicable law, to pay all
expenses, including reasonable attorneys' fees and legal expenses, incurred by
the holder of this Demand Note in seeking to collect any amounts payable
hereunder that are not paid when due.
No failure or delay on the part of AFC or any other holder of this Demand
Note in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right. No notice to or demand on the Originator shall entitle it to any
notice or demand in similar or other circumstances. No amendment, modification
or waiver of, or consent with respect to, any provision of this Demand Note
shall in any event be effective unless: (a) the same shall be in writing and
signed and delivered by the holder hereof and (b) all consents required for such
action under the Transaction Documents shall have been received by the
appropriate Persons.
Upon the occurrence of any Event of Bankruptcy with respect to the
Originator, the principal balance hereof and all interest accrued hereon shall
be immediately due and payable, without demand, presentment, protest or notice
of dishonor.
Notwithstanding anything in this Demand Note to the contrary, the
Originator shall never be required to pay unearned interest on any amount
outstanding hereunder, and shall never be required to pay interest on the
principal amount outstanding hereunder, at a rate in excess of the maximum
nonusurious interest rate that may be contracted for, charged or received under
applicable federal or state law (such maximum rate being herein called the
"Highest Lawful Rate"). If the effective rate of interest that would otherwise
be payable under this Demand Note would exceed the Highest Lawful Rate, or if
the holder of this Demand Note shall receive any unearned interest or shall
receive monies that are deemed to constitute interest that would increase the
effective rate of interest payable by the Originator under this Demand Note to a
rate in excess of the Highest Lawful Rate, then: (a) the amount of interest that
would otherwise be payable by the Originator under this Demand Note shall be
reduced to the maximum amount allowed by applicable law, and (b) any unearned
interest paid by the Originator or any interest paid by the Originator in excess
of the Highest Lawful Rate shall, at the option of the holder of this Demand
Note, either be refunded to the Originator or credited to the principal amount
outstanding under this Demand Note. Without limitation of the foregoing, all
calculations of the rate of interest contracted for, charged or received by the
holder of this Demand Note that are made for the purpose of determining whether
such rate exceeds the Highest Lawful Rate applicable to such holder shall be
made, to the extent permitted by usury laws applicable to the holder hereof (now
or hereafter enacted), by amortizing, prorating and spreading, in equal parts
over the period in which the particular Originator Loan has been outstanding,
all interest at any time contracted for, charged or received by the holder of
this Demand Note in connection herewith. If at any time and from time to time:
(i) the amount of interest payable to the holder of this Demand Note on any date
shall be computed at the Highest Lawful Rate pursuant to the provisions of the
foregoing sentence and (ii) in respect of any subsequent interest computation
period the amount of interest otherwise payable to the holder hereof would be
less than
Purchase and Sale Agreement A - 2
<PAGE>
the amount of interest payable to such holder computed at the Highest Lawful
Rate, then the amount of interest payable to such holder in respect of such
subsequent interest computation period shall continue to be computed at the
Highest Lawful Rate until the total amount of interest payable to such holder
shall equal the total amount of interest that would have been payable to such
holder if the total amount of interest had been computed without giving effect
to the provisions of the foregoing sentence.
THIS DEMAND NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW).
______________________,
a __________ corporation
By:
---------------------------------
Name:
-----------------------------
Title:
----------------------------
Purchase and Sale Agreement A - 3
<PAGE>
Exhibit B
to Purchase and Sale Agreement
FORM OF PURCHASE REPORT
- -------------------------
|PURCHASE REPORT| AS OF:
- ------------------------- -----------------
ORIGINATOR: -----------------------
-----------------------
AGGREGATE UNPAID BALANCE:
------------------------
PURCHASE DISCOUNT -----------------
a. LOSS DISCOUNT -----------------
b. SERVICING DISCOUNT -----------------
c. COST OF FUNDS DISCOUNT -----------------
d. SPREAD DISCOUNT -----------------
PURCHASE PRICE (AUB-PD) $0.0
Purchase and Sale Agreement B - 1
<PAGE>
Exhibit C
to Purchase and Sale Agreement
FORM OF AFC NOTE
NON-NEGOTIABLE
TERM NOTE
New York, New York
_________, ___
FOR VALUE RECEIVED, the undersigned, Amphenol Funding Corp., a Delaware
corporation ("AFC"), promises to pay to ___________, a ________ corporation (the
"Originator"), on the terms and subject to the conditions set forth herein and
in the Purchase and Sale Agreement referred to below, the aggregate unpaid
Purchase Price of all Receivables purchased by AFC from the Originator pursuant
to such Purchase and Sale Agreement, as such unpaid Purchase Price is shown in
the records of the Servicer.
1. Purchase and Sale Agreement. This Term Note is one of the AFC Notes
described in, and is subject to the terms and conditions set forth in, the
Amended and Restated Purchase and Sale Agreement, dated as of May 19, 1997
(amending and restating the Purchase and Sale Agreement dated as of December 3,
1993, as the same may be amended, supplemented, amended and restated or
otherwise modified in accordance with its terms, the "Purchase and Sale
Agreement"), among AFC, the Originator and certain other Persons. Reference is
hereby made to the Purchase and Sale Agreement for a statement of certain other
rights and obligations of AFC and the Originator.
2. Definitions. Capitalized terms used (but not defined) herein have the
meanings assigned thereto in Appendix A to the Purchase and Sale Agreement. In
addition, as used herein, the following terms have the following meanings:
"Bankruptcy Proceedings" has the meaning set forth in paragraph 9(b)
hereof.
"Final Maturity Date" means the Payment Date immediately following
the date that falls one hundred twenty one (121) days after the Purchase
and Sale Termination Date.
"Interest Period" means the period from and including a Payment Date
(or, in the case of the first Interest Period, the date hereof) to but
excluding the next Payment Date.
Purchase and Sale Agreement C - 1
<PAGE>
"Senior Interests" means, collectively: (a) all accrued Earned Yield
on the Aggregate Investment, (b) the fees referred to in Section 4.01 of
the Receivables Purchase Agreement, (c) all amounts payable pursuant to
Section 4.02 of the Receivables Purchase Agreement, (d) the Aggregate
Investment and (e) all other Obligations that are due and payable,
together with any and all interest and Earned Yield accruing on any such
amount after the commencement of any Bankruptcy Proceedings,
notwithstanding any provision or rule of law that might restrict the
rights of any Senior Interest Holder, as against AFC or anyone else, to
collect such interest.
"Senior Interest Holders" means, collectively, the Purchaser, the
Agent and the Indemnified Parties.
"Subordination Provisions" means, collectively, clauses (a) through
(l) of paragraph 9 hereof.
"Telerate Screen Rate" means, for any Interest Period, the rate for
thirty day commercial paper denominated in Dollars that appears on Page
1250 of the Dow Jones Telerate Service (or such other page as may replace
that page on that service for the purpose of displaying Dollar commercial
paper rates) at approximately 9:00 a.m. (New York City time) on the first
day of such Interest Period.
3. Interest. Subject to the Subordination Provisions set forth below, AFC
promises to pay interest on this Term Note as follows:
(a) before the Final Maturity Date, the aggregate unpaid Purchase
Price from time to time outstanding during any Interest Period shall bear
interest at a rate per annum equal to the Telerate Screen Rate for such
Interest Period, as determined by the Servicer, and
(b) from (and including) the Final Maturity Date to (but excluding)
the date on which the entire aggregate unpaid Purchase Price is fully
paid, the aggregate unpaid Purchase Price from time to time outstanding
shall bear interest at a rate per annum equal to the rate of interest
publicly announced from time to time by the Bank of Montreal as its "base
rate," "reference rate" or other comparable rate, as determined by the
Servicer.
4. Interest Payment Dates. Subject to the Subordination Provisions, AFC
shall pay accrued interest on this Term Note on each Payment Date, and shall pay
accrued interest on the amount of each principal payment made in cash on a date
other than a Payment Date at the time of such principal payment.
5. Basis of Computation. Interest accrued hereunder that is computed by
reference to the Telerate Screen Rate shall be computed for the actual number of
days elapsed on the basis of a 360-day year, and interest accrued hereunder
that is computed by reference to the rate described in
Purchase and Sale Agreement C - 2
<PAGE>
paragraph 3(b) hereof shall be computed for the actual number of days elapsed on
the basis of a 365- or 366-day year, as applicable.
6. Principal Payment Dates. Subject to the Subordination Provisions,
payments of the principal amount of this Term Note shall be made as follows:
(a) the principal amount of this Term Note shall be reduced by an
amount equal to each payment deemed made pursuant to Section 3.4(ii) of
the Purchase and Sale Agreement, and
(b) the entire remaining unpaid Purchase Price of all Receivables
purchased by AFC from the Originator pursuant to the Purchase and Sale
Agreement shall be paid on the Final Maturity Date.
Subject to the Subordination Provisions, the principal amount of and accrued
interest on this Term Note may be prepaid on any Business Day without premium or
penalty.
7. Payment Mechanics. All payments of principal and interest hereunder are
to be made in lawful money of the United States of America in the manner
specified in Section 4.1 of the Purchase and Sale Agreement.
8. Enforcement Expenses. In addition to and not in limitation of the
foregoing, but subject to the Subordination Provisions and to any limitation
imposed by applicable law, AFC agrees to pay all expenses, including reasonable
attorneys' fees and legal expenses, incurred by the Originator in seeking to
collect any amounts payable hereunder that are not paid when due.
9. Subordination Provisions. AFC covenants and agrees, and the Originator
and any other holder of this Term Note (collectively, the Originator and any
such other holder are called the "Holder"), by its acceptance of this Term Note,
likewise covenants and agrees on behalf of itself and any other holder of this
Term Note, that the payment of the principal amount of and interest on this Term
Note is hereby expressly subordinated in right of payment to the payment and
performance of the Senior Interests to the extent and in the manner set forth as
follows:
(a) no payment or other distribution of AFC's assets of any kind or
character, whether in cash, securities or other rights or property, shall
be made on account of this Term Note except to the extent such payment or
other distribution is: (i) permitted under Section 7.03(f) of the
Receivables Purchase Agreement or (ii) made pursuant to paragraph 6(a) or
(b) of this Term Note,
(b) in the event of any dissolution, winding up, liquidation,
readjustment, reorganization or other similar event relating to AFC,
whether voluntary or involuntary, partial or complete, and whether in
bankruptcy, insolvency or receivership proceedings, or
Purchase and Sale Agreement C - 3
<PAGE>
upon an assignment for the benefit of creditors, or any other marshalling
of the assets and liabilities of AFC or any sale of all or substantially
all of the assets of AFC other than as permitted by the Purchase and Sale
Agreement (such proceedings being herein collectively called "Bankruptcy
Proceedings"), the Senior Interests shall first be paid and performed in
full and in cash before the Holder shall be entitled to receive and to
retain any payment or distribution in respect of this Term Note. In order
to implement the foregoing: (i) all payments and distributions of any kind
or character in respect of this Term Note to which the Holder would be
entitled except for this clause (b) shall be made directly to the Agent
(for the benefit of the Senior Interest Holders), (ii) the Holder shall
promptly file a claim or claims, in the form required in any Bankruptcy
Proceedings, for the full outstanding amount of this Term Note, and shall
use commercially reasonable efforts to cause said claim(s) to be approved
and all payments and other distributions in respect thereof to be made
directly to the Agent (for the benefit of the Senior Interest Holders)
until the Senior Interests shall have been paid and performed in full and
in cash, and (iii) the Holder hereby irrevocably agrees that the Purchaser
(or the Agent acting on the Purchaser's behalf), in the name of the Holder
or otherwise, may demand, sue for, collect, receive and receipt for any
and all such payments or distributions, and file, prove and vote or
consent in any such Bankruptcy Proceedings with respect to any and all
claims of the Holder relating to this Term Note, in each case until the
Senior Interests shall have been paid and performed in full and in cash,
(c) if the Holder receives any payment or other distribution of any
kind or character from AFC or from any other source whatsoever in respect
of this Term Note, other than as expressly permitted by the terms of this
Term Note, such payment or other distribution shall be received in trust
for the Senior Interest Holders and shall be turned over by the Holder to
the Agent (for the benefit of the Senior Interest Holders) forthwith. The
Holder will mark its books and records so as clearly to indicate that this
Term Note is subordinated in accordance with the terms hereof. All
payments and distributions received by the Agent in respect of this Term
Note, to the extent received in or converted into cash, may be applied by
the Agent (for the benefit of the Senior Interest Holders) first to the
payment of any and all expenses (including reasonable attorneys' fees and
legal expenses) paid or incurred by the Senior Interest Holders in
enforcing these Subordination Provisions or in endeavoring to collect or
realize upon this Term Note, and any balance thereof shall, solely as
between the Holder and the Senior Interest Holders, be applied by the
Agent (in the order of application set forth in Section 3.03(c) of the
Receivables Purchase Agreement) toward the payment of the Senior
Interests; but as between AFC and its creditors, no such payments or
distributions of any kind or character shall be deemed to be payments or
distributions in respect of the Senior Interests,
(d) notwithstanding any payments or distributions received by the
Senior Interest Holders in respect of this Term Note, while any Bankruptcy
Proceedings are pending the Holder shall not be subrogated to the then
existing rights of the Senior Interest Holders in
Purchase and Sale Agreement C - 4
<PAGE>
respect of the Senior Interests until the Senior Interests have been paid
and performed in full and in cash. If no Bankruptcy Proceedings are
pending, the Holder shall only be entitled to exercise any subrogation
rights that it may acquire (by reason of a payment or distribution to the
Senior Interest Holders in respect of this Term Note) to the extent that
any payment arising out of the exercise of such rights would be permitted
under Section 7.03(f) of the Receivables Purchase Agreement,
(e) these Subordination Provisions are intended solely for the
purpose of defining the relative rights of the Holder, on the one hand,
and the Senior Interest Holders on the other hand. Nothing contained in
these Subordination Provisions or elsewhere in this Term Note is intended
to or shall impair, as between AFC, its creditors (other than the Senior
Interest Holders) and the Holder, AFC's obligation, which is unconditional
and absolute, to pay the Holder the principal of and interest on this Term
Note as and when the same shall become due and payable in accordance with
the terms hereof or to affect the relative rights of the Holder and
creditors of AFC (other than the Senior Interest Holders),
(f) the Holder shall not, until the Senior Interests have been paid
and performed in full and in cash: (i) cancel, waive, forgive, transfer or
assign, or commence legal proceedings to enforce or collect, or
subordinate to any obligation of AFC, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due, other than to the Senior
Interests, this Term Note or any rights in respect hereof, or (ii) convert
this Term Note into an equity interest in AFC, unless the Holder shall
have received the prior written consent of the Agent and the Purchaser in
each case,
(g) the Holder shall not, without the advance written consent of the
Agent and the Purchaser, commence, or join with any other Person in
commencing, any Bankruptcy Proceedings with respect to AFC until at least
one year and one day shall have passed since the Senior Interests shall
have been paid and performed in full and in cash,
(h) if, at any time, any payment (in whole or in part) of any Senior
Interest is rescinded or must be restored or returned by a Senior Interest
Holder (whether in connection with Bankruptcy Proceedings or otherwise),
these Subordination Provisions shall continue to be effective or shall be
reinstated, as the case may be, as though such payment had not been made,
(i) each of the Senior Interest Holders may, from time to time, at
its sole discretion, without notice to the Holder, and without waiving any
of its rights under these Subordination Provisions, take any or all of the
following actions: (i) retain or obtain an interest in any property to
secure any of the Senior Interests, (ii) retain or obtain the primary or
secondary obligations of any other obligor(s) with respect to any of the
Senior Interests, (iii) extend or renew for one or more periods (whether
or not longer than the
Purchase and Sale Agreement C - 5
<PAGE>
original period), alter or exchange any of the Senior Interests, or
release or compromise any obligation of any nature with respect to any of
the Senior Interests, (iv) amend, supplement, amend and restate, or
otherwise modify any Transaction Document, (v) release its security
interest in, or surrender, release or permit any substitution or exchange
for, all or any part of any rights or property securing any of the Senior
Interests, and (vi) extend or renew for one or more periods (whether or
not longer than the original period), or release, compromise, alter or
exchange any obligations of any nature of any obligor with respect to any
rights or property securing any of the Senior Interests,
(j) the Holder hereby waives: (i) notice of acceptance of these
Subordination Provisions by any of the Senior Interest Holders, (ii)
notice of the existence, creation, non-payment or non-performance of all
or any of the Senior Interests, and (iii) all diligence in enforcement,
collection or protection of, or realization upon, the Senior Interests, or
any thereof, or any security therefor,
(k) each of the Senior Interest Holders may, from time to time, on
the terms and subject to the conditions set forth in the Transaction
Documents to which such Persons are party, but without notice to the
Holder, assign or transfer any or all of the Senior Interests, or any
interest therein; and, notwithstanding any such assignment or transfer or
any subsequent assignment or transfer thereof, such Senior Interests shall
be and remain Senior Interests for the purposes of these Subordination
Provisions, and every immediate and successive assignee or transferee of
any of the Senior Interests or of any interest of such assignee or
transferee in any of the Senior Interests shall be entitled to the
benefits of these Subordination Provisions to the same extent as if such
assignee or transferee were the assignor or transferor, and
(l) these Subordination Provisions constitute a continuing offer
from the Holder to all Persons who become the holders of, or who continue
to hold, Senior Interests; and these Subordination Provisions are made for
the benefit of the Senior Interest Holders, and the Agent may proceed to
enforce such provisions on behalf of each of such Persons.
10. General. No failure or delay on the part of the Holder in exercising
any power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power or right preclude any other or
further exercise thereof or the exercise of any other power or right. No
amendment, modification or waiver of, or consent with respect to, any provision
of this Term Note shall in any event be effective unless: (a) the same shall be
in writing and signed and delivered by AFC and the Holder and (b) all consents
required for such actions under the Transaction Documents shall have been
received by the appropriate Persons.
11. Maximum Interest. Notwithstanding anything in this Term Note to the
contrary, AFC shall never be required to pay unearned interest on any amount
outstanding hereunder and shall never be required to pay interest on the
principal amount outstanding hereunder at a rate in excess
Purchase and Sale Agreement C - 6
<PAGE>
of the maximum nonusurious interest rate that may be contracted for, charged or
received under applicable federal or state law (such maximum rate being herein
called the "Highest Lawful Rate"). If the effective rate of interest that would
otherwise by payable under this Term Note would exceed the Highest Lawful Rate,
or if the Holder shall receive any unearned interest or shall receive monies
that are deemed to constitute interest that would increase the effective rate of
interest payable by AFC under this Term Note to a rate in excess of the Highest
Lawful Rate, then: (a) the amount of interest that would otherwise by payable by
AFC under this Term Note shall be reduced to the amount allowed by applicable
law, and (b) any unearned interest paid by AFC or any interest paid by AFC in
excess of the Highest Lawful Rate shall be refunded to AFC. Without limitation
of the foregoing, all calculations of the rate of interest contracted for,
charged or received by the Holder under this Term Note that are made for the
purpose of determining whether such rate exceeds the Highest Lawful Rate
applicable to the Holder shall be made, to the extent permitted by usury laws
applicable to the Holder (now or hereafter enacted), by amortizing, prorating
and spreading, in equal parts over the period in which any amount has been
outstanding hereunder all interest at any time contracted for, charged or
received by the Holder in connection herewith. If at any time and from time to
time: (i) the amount of interest payable to the Holder on any date shall be
computed at the Highest Lawful Rate pursuant to the provisions of the foregoing
sentence and (ii) in respect of any subsequent interest computation period the
amount of interest otherwise payable to the Holder would be less than the amount
of interest payable to the Holder computed at the Highest Lawful Rate, then the
amount of interest payable to the Holder in respect of such subsequent interest
computation period shall continue to be computed at the Highest Lawful Rate
until the total amount of interest payable to the Holder shall equal the total
amount of interest that would have been payable to the Holder if the total
amount of interest had been computed without giving effect to the provisions of
the foregoing sentence.
12. No Negotiation. This Term Note is not negotiable.
13. Governing Law. THIS TERM NOTE HAS BEEN DELIVERED IN NEW YORK, NEW
YORK, AND SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW).
Purchase and Sale Agreement C - 7
<PAGE>
14. Captions. Paragraph captions used in this Term Note are for
convenience only and shall not affect the meaning or interpretation of any
provision of this Term Note.
AMPHENOL FUNDING CORP.,
a Delaware corporation
By:
---------------------------------
Name:
-----------------------------
Title:
----------------------------
Purchase and Sale Agreement C - 8
<PAGE>
Exhibit D
to Purchase and Sale Agreement
FORM OF ORIGINATOR ASSIGNMENT CERTIFICATE
Reference is made to the Purchase and Sale Agreement, dated as of May 19,
1997 (amending and restating the Purchase and Sale Agreement dated as of
December 3, 1993, as the same may be amended, supplemented, amended and restated
or otherwise modified from time to time, the "Purchase and Sale Agreement"),
among the undersigned, the other Originators named therein, Amphenol Funding
Corp. ("AFC"), and Amphenol Corporation, individually and as the initial
Servicer. Unless otherwise defined herein, capitalized terms used herein have
the meanings provided in Appendix A to the Purchase and Sale Agreement.
The undersigned hereby sells, assigns and transfers unto AFC and its
successors and assigns all right, title and interest of the undersigned in and
to:
(a) each Receivable of the undersigned that existed and was owing to
the undersigned as at the closing of the undersigned's business on
_________, ____,
(b) each Receivable created by the undersigned from and including
the closing of the undersigned's business on _________, ____ to and
including the Purchase and Sale Termination Date,
(c) all rights to, but not the obligations under, all Related
Security,
(d) all monies due or to become due with respect to the Receivables
described in clauses (a) and (b),
(e) all proceeds of Receivables described in clauses (a) and (b) (as
defined in the applicable UCC) that are or were received by the
undersigned on or after the closing of the undersigned's business on
_________, ____ including (without limitation) all funds that either are
received by the undersigned, AFC or the Servicer from or on behalf of the
Obligors in payment of any amounts owed (including, without limitation,
invoice price, finance charges, interest and all other charges) in respect
of Receivables, or are applied to such amounts owed by the Obligors
(including, without limitation, insurance payments that the undersigned or
the Servicer applies in the ordinary course of its business to amounts
owed in respect of any Receivable and net proceeds of sale or other
disposition of repossessed goods or other collateral or property of the
Obligors or any other parties directly or indirectly liable for payment of
such Receivables), and
(f) all books and records related to any of the foregoing.
Purchase and Sale Agreement D - 1
<PAGE>
This Originator Assignment Certificate is made without recourse but on the
terms and subject to the conditions set forth in the Transaction Documents to
which the undersigned is a party. The undersigned acknowledges and agrees that
AFC and its successors and assigns are accepting this Originator Assignment
Certificate in reliance on the representations, warranties and covenants of the
undersigned contained in the Transaction Documents to which the undersigned is a
party.
THIS ORIGINATOR ASSIGNMENT CERTIFICATE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE PURCHASE AND SALE AGREEMENT AND THE INTERNAL LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW).
The undersigned hereby certifies that, in respect of the Receivables
described in clause (a) above, each of the conditions set forth in Section 5.1
of the Purchase and Sale Agreement are satisfied as of the date hereof.
IN WITNESS WHEREOF, the undersigned has caused this Originator Assignment
Certificate to be duly executed and delivered by its duly authorized officer as
of this ____ day of
_________, ____.
_______________________
a __________ corporation
By:
--------------------------------
Name:
----------------------------
Title:
---------------------------
Purchase and Sale Agreement D - 2
<PAGE>
Exhibit E
to Purchase and Sale Agreement
FORM OF SUBSCRIPTION AGREEMENT
This Subscription and Shareholder Agreement (this "Agreement") is entered
into as of December 3, 1993 among AMPHENOL FUNDING CORP., a Delaware corporation
("Issuer"), AMPHENOL CORPORATION, a Delaware corporation ("Amphenol"), AMPHENOL
INTERCONNECT PRODUCTS CORPORATION, a Delaware corporation ("Amphenol
Interconnect"), PYLE NATIONAL INC., a Delaware corporation ("Pyle National"),
and TIMES FIBER COMMUNICATIONS, INC., a Delaware corporation ("Times Fiber").
Amphenol, Amphenol Interconnect, Pyle National and Times Fiber are herein
collectively called "Purchasers" and each individually is called a "Purchaser".
R E C I T A L S
A. Issuer is organized under the laws of the State of Delaware for the
purpose of purchasing and selling the accounts receivable (and certain related
rights) of the Purchasers.
B. Simultaneously with the execution and delivery of this Agreement: (i)
Issuer, Amphenol and the other Purchasers are entering into a Purchase and Sale
Agreement (the "Purchase and Sale Agreement") pursuant to which Purchasers will
sell all of the Receivables generated by them (other than Receivables being used
to purchase Shares (as defined below) hereunder) to Issuer, and (ii) Issuer,
Amphenol, Pooled Accounts Receivable Capital Corporation ("Par Capital"), and
Bank of Montreal, as agent for Par Capital (the "Agent"), are entering into a
Receivables Purchase Agreement ("Receivables Purchase Agreement") pursuant to
which Issuer will sell to Par Capital undivided interests in the Receivables,
including those referred to in clauses (i) and the Receivables being contributed
to Issuer hereunder. The term "Receivables" and the other capitalized terms used
(but not otherwise defined) herein shall have the meanings set forth in the
Receivables Purchase Agreement.
C. Issuer desires to sell shares of its capital stock to Purchasers, and
Purchasers desire to purchase such shares, on the terms set forth in this
Agreement.
NOW, THEREFORE, Issuer and Purchasers agree as follows:
1. Purchase and Sale of Capital Stock. (a) On the Closing Date, Issuer
shall sell to Purchasers, and Purchasers shall purchase from Issuer, an
aggregate of 100 shares of common stock, without par value, of Issuer (such
aggregate number of shares and common stock herein called the "Shares" and
Purchase and Sale Agreement E - 1
<PAGE>
"Common Stock," respectively). Each Purchaser shall purchase the number of
Shares set forth opposite its name on Schedule 1 hereto.
(b)(i) The purchase price for the Shares will consist of an aggregate of
Four Million Dollars ($4,000,000) in Receivables to be contributed to the
capital of Issuer on the Closing Date.
(ii) The Receivables that each Purchaser will contribute will
consist of the amounts set forth opposite such Purchaser's name in
Schedule 1.
(iii) The Shares shall be issued to each Purchaser pro rata in
accordance with the amount of Receivables contributed by each Purchaser to
Issuer as set forth in Schedule 1 (the valuation of such Receivables
transferred to Issuer to be at the lower of the book value thereof and the
unpaid balance thereof).
Common Stock shall have the rights set forth in the Certificate of Incorporation
attached hereto as Exhibit A.
2. Closing. The closing of the purchase and sale of the Shares hereunder
(the "Closing") shall be held at the offices of Mayer, Brown & Platt in Chicago,
Illinois on December 7, 1993 (the "Closing Date"). On the Closing Date, Issuer
shall deliver to each Purchaser a certificate registered in such Purchaser's
name representing the number of Shares to be purchased by such Purchaser against
delivery to Issuer by such Purchaser of the purchase price set forth in Section
1(b) and Schedule 1.
3. Representations and Warranties of Issuer. Issuer represents and
warrants to Purchasers as follows:
(a) Issuer is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, and has all
requisite corporate power and authority to carry on its business as
proposed to be conducted.
(b) Issuer has all requisite legal and corporate power to enter into
this Agreement, to issue the Shares and to perform its other obligations
under the terms of this Agreement.
(c) The authorized capital stock of Issuer as of the date hereof and
as of the Closing Date is set forth on Schedule 1 hereto. The Shares have
been duly authorized and, when issued, will be validly issued, fully paid
and nonassessable.
(d) Issuer has taken all corporate action necessary for its
authorization, execution, and delivery of, and its performance under, this
Agreement, except the issuance of the Shares.
(e) This Agreement constitutes a legal, valid and binding obligation
of Issuer, enforceable against Issuer in accordance with its terms, except
that enforceability may be
Purchase and Sale Agreement E - 2
<PAGE>
limited by (i) bankruptcy, insolvency or other laws affecting the
enforcement of creditors' rights generally and (ii) equitable principles
of general applicability.
4. Representations and Warranties of Purchasers. Each Purchaser represents
and warrants to Issuer as follows:
(a) Such Purchaser is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, and has all requisite corporate power and authority to
carry on its business as conducted on the date hereof.
(b) Such Purchaser has taken all actions required for its
authorization, execution, and delivery of, and its performance under, this
Agreement.
(c) This Agreement constitutes a valid and binding obligation of
such Purchaser, enforceable against such Purchaser in accordance with its
terms, except that enforceability may be limited by: (i) bankruptcy,
insolvency or other laws affecting the enforcement of creditors' rights
generally and (ii) equitable principles of general applicability.
(d) Such Purchaser is purchasing its portion of the Shares for
investment for its own account, not as a nominee or agent, and not with a
view to the sale or distribution of any part thereof; and such Purchaser
has no current intention of selling, granting a participation in, or
otherwise distributing, the same.
(e) Such Purchaser understands that the Shares have not been
registered under the Securities Act of 1933, as amended, or under any
other Federal or state law, and that Issuer does not contemplate such a
registration.
(f) Such Purchaser has such knowledge, sophistication and experience
in financial and business matters that it is capable of evaluating the
merits and risks of the transactions contemplated by this Agreement, and
has made such investigations in connection herewith as have been deemed
necessary or desirable to make such evaluation.
5 Conditions to Purchasers' Obligations at the Closing. Purchasers'
obligations to purchase the Shares at the Closing are subject to the fulfillment
on or prior to the Closing Date of the following conditions, any of which may be
waived in whole or in part by the Purchasers:
(a) The representations and warranties made by Issuer herein shall
be true and correct when made, and shall be true and correct on the
Closing Date with the same force and effect as if they had been made on
and as of the same date; and Issuer shall have performed all obligations
and conditions herein required to be performed or observed by it on or
prior to the Closing Date and all documents incident thereto shall be
satisfactory in form and content to Purchasers and their counsel.
Purchase and Sale Agreement E - 3
<PAGE>
(b) Issuer shall have filed the Certificate of Incorporation, as
amended, in the form attached hereto as Exhibit A with the Delaware
Secretary of State and adopted the By-laws in the form attached hereto as
Exhibit B.
(c) The purchase of the Shares by Purchasers hereunder shall be
legally permitted by all laws and regulations to which Purchasers or
Issuer are subject.
6. Conditions to Issuer's Obligations at the Closing. Issuer's obligation
to sell and issue the Shares at the Closing is subject to the fulfillment to
Issuer's satisfaction on or prior to the Closing Date of the following
conditions, any of which may be waived in whole or in part by Issuer:
(a) The representations and warranties made by Purchasers herein
shall be true and correct when made, and shall be true and correct on the
Closing Date with the same force and effect as if they had been made on
and as of the same date; and Purchasers shall have performed all
obligations and conditions herein required to be performed or observed by
them on or prior to the Closing Date and all documents incident thereto
shall be satisfactory in form and content to Issuer and its counsel.
(b) The purchase of the Shares by Purchasers hereunder shall be
legally permitted by all laws and regulations to which Purchasers or
Issuer are subject.
(c) Issuer, Amphenol and the other Purchasers shall have entered
into the Purchase and Sale Agreement.
(d) Issuer, Amphenol, Par Capital and the Agent shall have entered
into the Receivables Purchase Agreement.
(e) Each Purchaser shall have delivered the purchase price for the
Shares to be purchased by it hereunder, by conveyance to Issuer of the
amount of the Receivables set forth opposite its name on Schedule 1 (which
conveyance shall be pursuant to instruments reasonably satisfactory to
Issuer).
7. Restrictions on Transfer; Legend.
7.1 Legend. Each certificate representing the Shares shall be endorsed
with the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT COVERING SUCH SECURITIES, THE SALE IS
MADE IN ACCORDANCE WITH RULE
Purchase and Sale Agreement E - 4
<PAGE>
144 OR ANY SUCCESSOR RULE UNDER THE ACT, OR AMPHENOL FUNDING CORP. (THE
"COMPANY") RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A SUBSCRIPTION AND
SHAREHOLDER AGREEMENT DATED AS OF DECEMBER 3, 1993, AMONG THE PURCHASERS
PARTY THERETO AND THE COMPANY, A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY, AND THE SECURITIES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE VOTED, TRANSFERRED, SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS SUCH VOTING, TRANSFER, SALE,
ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE
PROVISIONS OF SUCH AGREEMENT. THE CERTIFICATE OF INCORPORATION OF THE
COMPANY CONTAINS PROVISIONS REQUIRING THE AFFIRMATIVE VOTE OF ALL OF THE
SHAREHOLDERS ELIGIBLE TO VOTE AND/OR ALL OF THE MEMBERS OF THE BOARD OF
DIRECTORS OF THE COMPANY TO TRANSACT CERTAIN SPECIFICALLY ENUMERATED ITEMS
OF BUSINESS. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS
CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF SUCH
AGREEMENT.
7.2 Registration of Transfers. Issuer need not register a transfer of any
Shares unless the conditions specified in the foregoing legend are satisfied.
Issuer may also instruct its transfer agent not to register the transfer of any
Shares unless the conditions specified in the foregoing legend are satisfied.
7.3 Removal of Legends and Transfer Restrictions. The legend relating to
the Act endorsed on a stock certificate pursuant to Section 7.1 of this
Agreement and the stop transfer instructions with respect to the Shares
represented by such certificate shall be removed and Issuer shall issue a
certificate without such legend to the holder of such Shares if (a) such Shares
are registered under the Act and a prospectus meeting the requirements of
Section 10 of the Act is available, (b) such holder provides to Issuer (i) an
opinion of counsel for such holder of such Shares reasonably satisfactory to
Issuer, or (ii) a no-action letter or interpretive opinion of the staff of the
Securities and Exchange Commission to the effect that a public sale, transfer or
assignment of such Shares may be made without registration and without
compliance with any restriction such as Rule 144, or (c) the above requirements
are waived by Issuer.
8. Agreement to Vote; No Petition. (a) Each of the Purchasers hereby
agrees and covenants to vote all of the shares of Common Stock now or hereafter
owned by it, whether beneficially or otherwise, as is necessary at a meeting of
stockholders of Issuer, or by written consent in lieu of any such meeting, to
cause to be elected to, and maintained on, Issuer's board of directors at all
times one individual (the "Independent Director") who is not direct, indirect or
beneficial stockholders, officers, directors, employees, affiliates, associates,
customers or suppliers of any Amphenol Person (as such
Purchase and Sale Agreement E - 5
<PAGE>
term is defined in the Receivables Purchase Agreement) or any affiliate of any
such Amphenol Person. Each of the Purchasers hereby further agrees and covenants
that in the event the Independent Director resigns or otherwise ceases to be a
director of Issuer, such Purchaser will vote all of the shares of Common Stock
then owned by it, whether beneficially or otherwise, as is necessary at a
meeting of stockholders of Issuer, or by written consent in lieu of any such
meeting, to select and cause to be elected a replacement Independent Director
who (i) meets all of the qualifications of an Independent Director as set forth
in the preceding sentence, (ii) does not have any other type of professional
relationship with any Amphenol Person or any affiliate of any such Amphenol
Person, and (iii) is a tenured professor at a business or law school, a retired
judge or an established independent member of the business community, having a
sound reputation and experience relative to the duties to be performed by such
individual as an Independent Director.
(b) Each of the Purchasers (for itself and its successors and assigns)
hereby acknowledges and agrees that any decision to approve or otherwise cause
the commencement of a voluntary case or other proceeding with respect to the
Issuer under any applicable bankruptcy, insolvency, reorganization, debt
arrangement, dissolution or other similar law, or the appointment of or taking
possession by, a receiver, liquidator, assignee, trustee, custodian, or other
similar official for the Issuer shall be approved in writing by the Independent
Director prior to the making thereof, and the Independent Director shall owe a
fiduciary duty to the Issuer (and creditors) and not to the stockholders of
Issuer in respect of any such decision.
(c) Each of the Purchasers (for itself and its successors and assigns)
hereby agrees that it will not institute against Issuer, or join any other
Person in instituting against Issuer, any insolvency proceeding (namely, any
proceeds of the type referred to in the definition of "Event of Bankruptcy" as
defined in the Receivables Purchase Agreement) so long as any Commercial Paper
Notes issued by Par Capital shall be outstanding or there shall not have elapsed
one year plus one day since the last day on which any such Commercial Paper
Notes shall have been outstanding.
(d) The obligations provided by this Section 8 shall terminate on the date
one year and one day after the payment in full of all Obligations undertaken by
Issuer under the Transaction Documents, but in any event ten years from the date
hereof.
9. General Restrictions on Transfer and Issuance. (a) No Shares or any
interest therein shall be validly sold, assigned, pledged, encumbered, awarded,
confirmed, or otherwise transferred, for consideration or otherwise, whether
voluntarily, involuntarily, or by operation of law, and no purported transferee
shall be recognized as a shareholder of Issuer for any purpose whatsoever unless
and until each of the following conditions is satisfied: (a) the holders of all
of the other Shares have filed with the secretary of Issuer their written
consents to such transfer; (b) except as provided in the following sentence or
in Section 9(b), the transferee is not a direct, indirect or beneficial
shareholder, officer, director, employee, affiliate, associate, customer or
supplier of any of Purchasers or their affiliates; and (c) the transferee has
signed an agreement agreeing to be bound by the terms contained in Sections 8
and 9 herein as if such transferee was a Purchaser hereunder. Notwithstanding
anything
Purchase and Sale Agreement E - 6
<PAGE>
to the contrary contained in clause (b) of the preceding sentence, a Purchaser
may sell, assign, pledge, encumber, award, confirm or otherwise transfer Shares
or an interest therein to another Originator (as such term is defined in the
Receivables Purchase Agreement) if each of the following conditions is
satisfied: (x) there has been a termination of purchases of Receivables of such
Purchaser pursuant to, or such Purchaser is otherwise no longer a party to, the
Purchase and Sale Agreement, (y) such transfer is made for fair value, and (z)
the conditions set forth in clauses (a) and (c) of the preceding sentence have
been satisfied. No additional shares of capital stock shall be issued by Issuer
except to a Purchaser, and then only if each of the conditions specified in
clauses (a), (b), and (c) of the preceding sentence have been satisfied. A
transfer or attempt to transfer subject to the provisions of this Agreement
shall be deemed to occur whenever any interest in Common Stock is transferred or
is attempted to be transferred, voluntarily, involuntarily, or by operation of
law, irrespective of whether any change in the record ownership of any shares of
Common Stock occurs.
(b) Concurrently with the issuance of the Shares to the Purchasers the
Purchasers are pledging and delivering the Shares to Banker's Trust Company, as
collateral agent (the "Collateral Agent") under that certain Amended and
Restated Credit Agreement, dated as of October 31, 1991, and amended and
restated as of December 8, 1992 and as further amended from time to time (the
"Credit Agreement"). The Issuer, Par Capital, each Purchaser and Agent
acknowledge and consent to such pledge; it being understood that the Collateral
Agent is accepting the pledge and delivery of the Shares subject to the
provisions of this Agreement.
10. Successors and Assigns. Each party agrees that it will not assign,
sell, transfer, delegate, or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any right or obligation under this
Agreement except in connection with a transfer of Shares in compliance with the
terms and conditions hereof or otherwise in accordance with the terms hereof.
Any purported assignment, transfer, or delegation in violation of this Section
shall be null and void ab initio. Subject to the foregoing limits on assignment
and delegation and except as otherwise provided herein, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their respective
heirs, legatees, executors, administrators, assignees and legal successors. Any
transferee of any shares of Common Stock or any interest hereunder shall take
its interest subject to the terms and conditions hereof and shall, upon request
of any party hereto, execute a counterpart of this Agreement.
11. Amendments and Waivers. Any term hereof may be amended and the
observance of any term hereof may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of Issuer and all Purchasers. Any amendment or waiver so effected shall
be binding upon Issuer and Purchasers.
12. Further Acts. Each party agrees to perform any further acts and
execute and deliver any document which may be reasonably necessary to carry out
the provisions of this Agreement.
13. Counterparts. This Agreement may be executed in any number of
counterparts, all of such counterparts together to be deemed one instrument.
Purchase and Sale Agreement E - 7
<PAGE>
14. Notices. Any and all notices, acceptances, statements and other
communications provided for herein shall be in writing, delivered personally, by
telefacsimile or certified mail, return receipt requested, and shall be
addressed, if to a corporate party, to its principal office; if to an
individual, to the address provided to Issuer at the time of his or her initial
purchase unless changed by written notice to Issuer or its successor.
15. Governing Law. This Agreement shall be construed in accordance with
and be governed by the internal laws of the State of New York.
16. Entire Agreement. This Agreement and the other documents delivered
pursuant hereto constitute the full and entire understanding and agreement
between the parties with regard to the subject matter hereof and thereof.
17. Severability of this Agreement. In case any provision of this
Agreement 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.
Purchase and Sale Agreement E - 8
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
THE ISSUER: AMPHENOL FUNDING CORP.,
a Delaware corporation
By:
----------------------------
Name:
-------------------------
Title:
------------------------
THE PURCHASERS: AMPHENOL CORPORATION,
a Delaware corporation
By:
----------------------------
Name:
-------------------------
Title:
------------------------
AMPHENOL INTERCONNECT
PRODUCTS CORPORATION,
a Delaware corporation
By:
----------------------------
Name:
-------------------------
Title:
------------------------
PYLE NATIONAL INC.,
a Delaware corporation
By:
----------------------------
Name:
-------------------------
Title:
------------------------
TIMES FIBER COMMUNICATIONS
INC.,
a Delaware corporation
By:
----------------------------
Purchase and Sale Agreement E - 9
<PAGE>
Name:
-------------------------
Title:
------------------------
Purchase and Sale Agreement E - 10
<PAGE>
SCHEDULE 1
to Subscription and Shareholder Agreement
Subscription for Capital Stock
Purchase
Number & Type of Shares Price
----------------------- --------
Aggregate of 100
shares of Common
Stock, each Purchaser
subscribing for the
following number
of shares:
1. Amphenol 50 shares of common stock $ 2,000,000.00
2. Amphenol Interconnect 6 shares of common stock 240,000.00
3. Pyle National 4 shares of common stock 160,000.00
4. Times Fiber 40 shares of common stock 1,600,000.00
* Value of Receivables transferred.
Purchase and Sale Agreement E - 11
<PAGE>
EXHIBIT A
to Subscription and Shareholder Agreement
CERTIFICATE OF INCORPORATION
Purchase and Sale Agreement E - 12
<PAGE>
EXHIBIT B
to Subscription and Shareholder Agreement
BY-LAWS
Purchase and Sale Agreement E - 13
<PAGE>
Exhibit F
to Purchase and Sale Agreement
PROCEEDINGS
NONE
Purchase and Sale Agreement F - 1
<PAGE>
Exhibit G
to Purchase and Sale Agreement
OFFICE LOCATIONS
358 Hall Avenue
Wallingford, CT 06492-7530
20 Valley Street
Endicott, NY 13760
40-60 Delaware Street
Sidney, NY 13838-1395
1925A Ohio Street
Lisle, IL 60532
1334 N. Kostner Avenue
Chicago, IL 60651
One Kennedy Avenue
Danbury, CT 06810
720 Sherman Avenue
Hamden, CT 06514
Route 2, Chatham Industrial Park
Chatham, VA 24531
25325 Joy Boulevard
Mt. Clemens, MI 48046-2336
Purchase and Sale Agreement G - 1
<PAGE>
Exhibit H
to Purchase and Sale Agreement
TRADE NAMES AND CORPORATE REORGANIZATIONS
Legal Entity Trade Names
- ------------ -----------
Amphenol Corporation Amphenol Corporation
Amphenol RF
Amphenol Products
Bendix Connector Operations
Spectra-Strip
Amphenol
Amphenol Aerospace Operations
Amphenol Communication & Network Products
AAO
Amphenol FOP
Amphenol Fiber Optic Products
Amphenol Interconnect Products Amphenol Interconnect Products Corporation
Corporation Amphenol Products
Amphenol
Amphenol Endicott
Endicott
AIPC
Pyle-National, Inc. Pyle-National, Inc.
Pyle
Times Fiber Communications, Times Fiber Communications, Inc.
Inc. Times Fiber Communications
Times
Times Fiber
TFC
The Sine Companies, Inc. The Sine Companies, Inc.
Sine Connector Corporation
Sine
Aaxico
Tri-Mate
Sine Products Company
Purchase and Sale Agreement H-1
<PAGE>
Sine Electro-Mold, Inc.
Mil-Specialists, Inc.
From and after December 3, 1988, none of Amphenol Funding Corporation,
Amphenol Corporation, Amphenol Interconnect Products Corporation, Pyle-National,
Inc. and Times Fiber Communications, Inc. has been the subject of any merger or
other corporate reorganization. From and after December 31, 1992, the Sine
Companies, Inc. has not been the subject of any merger or other corporate
reorganization except as follows: Amphenol Corporation has entered into an
Agreement and Plan of Merger, dated as of January 23, 1997, with NXS Acquisition
Corp. ("NXS"), a wholly-owned subsidiary of KKR 1996 Fund L.P., pursuant to
which approximately 90% of the outstanding shares of Amphenol Corporation's
Class A common stock will be purchased by NXS for $26.00 per share in cash and
approximately 10% of such outstanding shares will be retained by other
stockholders.
Purchase and Sale Agreement H-2
<PAGE>
Exhibit 10.3
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)
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Page
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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)
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Page
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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)
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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>
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 PostMerger 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
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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
3
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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
4
<PAGE>
"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
5
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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:
6
<PAGE>
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-
7
<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.
8
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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).
9
<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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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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"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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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 DelayedDraw 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, recoupment, 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 DelayedDraw
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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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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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:
------------------------------------------
Edward G. Jepsen
Executive Vice President & CFO
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:
------------------------------------------
Martin H. Loeffler
Managing Director
AMPHENOL COMMERCIAL & INDUSTRIAL UK,
LIMITED
By:
------------------------------------------
Martin H. Loeffler
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:
------------------------------------------
Peter Eckstein
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:
------------------------------------------
Nancy McEwen
Vice President
Notice Address:
One Wall Street
New York, New York 10286
Attention:
Telephone:
Facsimile:
S-4
<PAGE>
BANKERS TRUST COMPANY,
individually and as Administrative Agent
By:
------------------------------------------
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:
------------------------------------------
Frank X. Whitley
Senior Vice Pres. - Shenicman Capital Mgmt.,
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:
------------------------------------------
Judith P. Greffin
Authorized Signatory
By:
------------------------------------------
Jerry D. Zinkula
Authorized Signatory
ALLSTATE LIFE INSURANCE COMPANY
By:
------------------------------------------
Judith Greffin
Authorized Signatory
By:
------------------------------------------
Jerry D. Zinkula
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>
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By:
------------------------------------------
Peter Karl Harris
Vice President
By:
------------------------------------------
William C. Maier
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-8
<PAGE>
BANK OF AMERICA ILLINOIS
By:
------------------------------------------
Eugene Martin
Vice President
Notice Address:
335 Madison Avenue
New York, New York 10017
Attention: Eugene Martin
Telephone: (212) 503-7512
Facsimile: (212) 503-7502
S-9
<PAGE>
BANKBOSTON, N.A.
By:
------------------------------------------
C. Andrew Piculell
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-10
<PAGE>
THE BANK OF NOVA SCOTIA
By:
------------------------------------------
John Hopmans
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-11
<PAGE>
THE BANK OF TOKYO - MITSUBISHI, LTD.
By:
------------------------------------------
Nick Campbell
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-12
<PAGE>
BANQUE PARIBAS
By:
------------------------------------------
John J. McCormick, III
Vice President
By:
Mary T. Finnegan
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-13
<PAGE>
CANADIAN IMPERIAL BANK OF COMMERCE
By:
------------------------------------------
Tim Doyle
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-14
<PAGE>
CITICORP USA, INC.
By:
------------------------------------------
Jeroen Fikke
Attorney-in-Fact
CITIBANK, N.A., LONDON
By:
------------------------------------------
Jeroen Fikke
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-15
<PAGE>
CORESTATES BANK, N.A.
By:
------------------------------------------
Mark S. Supple
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-16
<PAGE>
CREDIT LYONNAIS NEW YORK BRANCH
By:
------------------------------------------
Attila Koc
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-17
<PAGE>
CREDIT SUISSE FIRST BOSTON
By:
------------------------------------------
Edward E. Barr
Associate
By:
------------------------------------------
Joel Glodowski
Managing Director
Notice Address:
11 Madison Avenue
New York, New York 10010
Attention: Ed Barr
Telephone: (212) 325-9151
Facsimile: (212) 325-8309
S-18
<PAGE>
THE DAI-ICHI KANGYO BANK, LTD.
By:
------------------------------------------
Stephanie Rogers
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-19
<PAGE>
PRIME INCOME TRUST
By:
------------------------------------------
Rafael Scolari
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-20
<PAGE>
DLJ CAPITAL FUNDING, INC.
By:
------------------------------------------
Stephen P. Hickey
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-21
<PAGE>
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By:
------------------------------------------
William E. Lambert
Assistant Vice President
By:
------------------------------------------
Robert Grella
Vice President
Notice Address:
75 Wall Street
New York, New York 10005
Attention: Robert Grella
Telephone: (212) 429-2252
Facsimile: (212) 429-2129
S-22
<PAGE>
FIRST UNION BANK OF NORTH CAROLINA
By:
------------------------------------------
Jorge Gonzalez
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-23
<PAGE>
FIRSTRUST BANK
By:
------------------------------------------
Ed D'Ancona
Vice President
Notice Address:
1931 Cottman Avenue
Philadelphia, Pennsylvania 19111-3897
Attention: Kent Nelson
Telephone: (215) 728-8285
Facsimile: (215) 728-8767
S-24
<PAGE>
FLEET NATIONAL BANK
By:
------------------------------------------
Eric Vander Mel
Vice President
Notice Address:
One Federal Street, MAOFDO3C
Boston, Massachusetts 02211
Attention: Eric Vander Mel
Telephone: (617) 346-4853
Facsimile: (617) 346-4806
S-25
<PAGE>
THE FUJI BANK, LIMITED
By:
------------------------------------------
Teiji Teramoto
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-26
<PAGE>
GOLDMAN SACHS CREDIT PARTNERS L.P.
By:
------------------------------------------
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-27
<PAGE>
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
------------------------------------------
Takuya Honjo
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-28
<PAGE>
ING CAPITAL SENIOR SECURED HIGH INCOME
FUND, L.P.
By: ING CAPITAL ADVISORS, INC., as
Investment Advisor
By:
------------------------------------------
Kathleen A. Lenarcic
Vice President & 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-29
<PAGE>
KZH HOLDING CORPORATION
By:
------------------------------------------
Robert Goodwin
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-30
<PAGE>
KZH HOLDING CORPORATION II
By:
------------------------------------------
Robert Goodwin
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>
LEHMAN COMMERCIAL PAPER INC.
By:
------------------------------------------
Dennis J. Dee
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-32
<PAGE>
LLOYDS BANK PLC
By:
------------------------------------------
Michael J. Gilligan
Vice President
By:
------------------------------------------
Steve Attree
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-33
<PAGE>
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED
By:
------------------------------------------
Shuichi Tajima
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-34
<PAGE>
MARINE MIDLAND BANK
By:
------------------------------------------
John Lyons
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-35
<PAGE>
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By:
------------------------------------------
Mary Ann McCarthy
Managing Director
Notice Address:
1295 State Street
Springfield, Massachusetts 01111
Attention: John Wheeler
Telephone: (413) 744-6228
Facsimile: (413) 744-6127
S-36
<PAGE>
SENIOR HIGH INCOME PORTFOLIO, INC.
By:
------------------------------------------
Gilles Marchand, CFA
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-37
<PAGE>
METROPOLITAN LIFE INSURANCE COMPANY
By:
------------------------------------------
James Dingler
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-38
<PAGE>
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:
------------------------------------------
Patricia Loret de Mola
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-39
<PAGE>
NATIONAL WESTMINSTER BANK PLC
By:
------------------------------------------
W. Wakefield Smith
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-40
<PAGE>
NATIONSBANK, N.A.
By:
------------------------------------------
Kerry Shute
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-41
<PAGE>
NEW YORK LIFE INSURANCE COMPANY
By:
------------------------------------------
Andrew H. Steuerman
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-42
<PAGE>
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By:
------------------------------------------
Jerome R. Baler
Vice President
Notice Address:
720 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Richard A. Strait
Telephone: (414) 299-7350
Facsimile: (414) 299-7124
S-43
<PAGE>
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (A UNIT OF THE CHASE
MANHATTAN BANK)
By:
------------------------------------------
Joyce DeLucca
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-44
<PAGE>
PARIBAS CAPITAL FUNDING LLC
By:
------------------------------------------
Eric Green
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-45
<PAGE>
PPM AMERICA, INC., as Attorney in Fact, on
behalf of JACKSON NATIONAL LIFE
INSURANCE COMPANY
By:
------------------------------------------
Michael DiRe
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-46
<PAGE>
ROYAL BANK OF CANADA
By:
------------------------------------------
Sheryl L. Greenberg
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-47
<PAGE>
THE SAKURA BANK, LTD.
By:
------------------------------------------
Yoshikazu Nagura
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-48
<PAGE>
THE SANWA BANK, LIMITED
By:
------------------------------------------
Christian Kambour
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-49
<PAGE>
SOCIETE GENERALE
By:
------------------------------------------
John M. Stack
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-50
<PAGE>
SOUTHERN PACIFIC THRIFT & LOAN
ASSOCIATION
By:
------------------------------------------
Chris Kelleher
Vice President
Notice Address:
12300 Wilshire Boulevard
Los Angeles, Califonia 90025
Attention: Chris Kelleher
Telephone: (310) 442-3351
Facsimile: (310) 207-4067
S-51
<PAGE>
THE SUMITOMO BANK, LIMITED, NEW YORK
BRANCH
By:
------------------------------------------
John C. Kissinger
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-52
<PAGE>
TCW ASSET MANAGEMENT COMPANY, as
attorney-in-fact for INTEGON LIFE INSURANCE
COMPANY
By:
------------------------------------------
Justin Driscoll
Senior Vice President
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-53
<PAGE>
TCW ASSET MANAGEMENT COMPANY, as
attorney-in-fact for UNITED COMPANIES LIFE
INSURANCE COMPANY
By:
------------------------------------------
Justin Driscoll
Senior Vice President
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-54
<PAGE>
CRESCENT/MACH I PARTNERS, L.P.
By: TCW ASSET MANAGEMENT COMPANY,
Its Investment Manager
By:
---------------------------------------
Justin Driscoll
Senior Vice President
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>
THE TRAVELERS INSURANCE COMPANY
By:
------------------------------------------
John W. Petchler
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-56
<PAGE>
VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By:
------------------------------------------
Jeffrey W. Maillet
Sr. 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-57
<PAGE>
CAISSE NATIONALE DE CREDIT AGRICOLE
By:
------------------------------------------
R. Craig Welch
First Vice President
Notice Address:
520 Madison Avenue
8th Floor
New York, New York 10022
Attention: John McCloskey
Telephone: (212) 418-2217
S-58
<PAGE>
MEDICAL LIABILITY MUTUAL INSURANCE
COMPANY
By:
------------------------------------------
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-59
<PAGE>
GOLDMAN SACHS INTERNATIONAL BANK
By:
------------------------------------------
Robert O'Shea
Authorized Signatory
Notice Address:
Peterborough Court
133 Fleet Street
London EC4A 2BB, England
Attention:
Telephone:
Facsimile:
S-60
<PAGE>
FLOATING RATE PORTFOLIO
By: CHANCELLOR LGT SENIOR SECURED
MANAGEMENT INC., as Attorney-in-Fact
By:
------------------------------------
Gregory L. Smith
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-61
<PAGE>
DEEPROCK & COMPANY
By: EATON VANCE MANAGEMENT, as
Investment Advisor
By:
-----------------------------------
Payson F. Swaffield
Vice President
Notice Address:
Eaton Vance Management
6th Floor
24 Federal Street
Boston, MA 02110
Attention: Juliana Riley
Facsimile: (617) 695-9594
S-62
<PAGE>
EXHIBIT 10.13
MANAGEMENT STOCKHOLDER'S AGREEMENT
This Management Stockholder's Agreement (this "Agreement") is
entered into as of May 19, 1997 between Amphenol Corporation, a Delaware
Corporation (the "Company"), and Martin Loeffler (the "Management
Stockholder") (the Company and the Management Stockholder being hereinafter
collectively referred to as the "Parties").
On January 23, 1997, NXS Acquisition Corp., a Delaware
corporation ("Newco"), and the Company entered into an Agreement and Plan of
Merger (the "Merger Agreement") pursuant to which Newco is to be merged with
and into the Company (the "Merger"). Pursuant to the Merger, stockholders of
the Company may elect to receive $26.00 per share in cash or to retain the
Company's Class A Common Stock, par value $.001 per share (the "Common
Stock"), in each case, subject to the effects of proration. In connection
with the Merger, certain key employees of the Company have agreed in
principle to retain a specified number of shares of Common Stock (such
specified number of shares, the "Targeted Retained Number").
This Agreement is one of several other agreements ("Other
Management Stockholders' Agreements") which have been, or which in the future
will be, entered into between the Company and other individuals who are or
will be key employees of the Company or one of its subsidiaries
(collectively, the "Other Management Stockholders").
The Company and the Management Stockholder have agreed in
principle that (i) if, after giving effect to proration, the actual number of
shares of Common Stock retained by such Management Stockholder (the "Actual
Retained Number") is higher than the Targeted Retained Number, then such
Management Stockholder will be permitted to sell a number of shares equal to
such difference, and (ii) if, after giving effect to proration, the Actual
Retained Number is less than the Targeted Retained Number, such Management
Stockholder will purchase a number of shares equal to such difference. The
shares of Common Stock retained by the Management Stockholder after giving
effect to any sale contemplated by the preceding clause (i) shall be referred
to herein as "Retained Stock." The shares of Common Stock purchased by the
Management Stockholder contemplated by the preceding clause (ii), if any,
shall be referred to herein as "Purchase Stock." Schedule I hereto sets
forth, for the Management Stockholder named above, the Targeted Retained
Number, the Actual Retained Number, the number of shares of Retained Stock,
the number of shares of Purchase Stock and, if the number of shares of
Purchase Stock is greater than zero, whether such shares are to be sold to
the Management Stockholder by the Company (any such shares referred to herein
as "Issued Stock") or purchased by the Management Stockholder on the New York
Stock Exchange (any such shares referred to herein as "Market Stock"). After
giving effect to the foregoing, the Management Stockholder shall own, in the
aggregate, a total number of shares of Common Stock equal to at least the
Targeted Retained Number. In addition, the Company will grant to the
Management Stockholder at or as soon as practicable after the effective time
of the Merger an option or options to purchase Common Stock ("Options") at an
exercise price of $26.00 per share of Common Stock pursuant to the terms of
the 1997
<PAGE>
2
Option Plan for Key Employees of Amphenol Corporation and Subsidiaries (the
"Option Plan") and the "Non-Qualified Stock Option Agreement" attached hereto
as Exhibit A.
NOW THEREFORE, to implement the foregoing and in consideration of
the grant of Options and of the mutual agreements contained herein, the
Parties agree as follows:
1. Common Stock; Issuance of Options.
(a) If the Actual Retained Number set forth on Schedule I hereto
is greater than the Targeted Retained Number, then the Management
Stockholder shall, after the Stockholders Meeting (as defined in the
Merger Agreement), be permitted to sell a number of shares equal to the
difference. Subject to the terms and conditions hereinafter set forth,
if the number of shares of Issued Stock set forth on Schedule I hereto
is greater than zero, then the Management Stockholder hereby subscribes
for and shall purchase, and the Company shall sell to the Management
Stockholder, such number of shares of Issued Stock at a purchase price per
share of $26.00 (for purposes hereof, such price shall be referred to
as the "Base Price") on the date of the Effective Time of the Merger
(as defined in the Merger Agreement) (the "Base Date") or, if not on
the Base Date, on such later date after the Effective Time of the
Merger as may be determined by the Company in consultation with the
Management Stockholder (the "Deferred Sale Date"). The Company shall
have no obligation to sell any Issued Stock to any person who (i) is a
resident or citizen of a state or other jurisdiction in which the sale
of the Issued Stock to him or her would constitute a violation of the
securities or "blue sky" laws of such jurisdiction or (ii) is not an
employee of the Company or any of its subsidiaries on the date hereof.
If the number of shares of Market Stock set forth on Schedule I hereto
is greater than zero, then the Management Stockholder shall promptly
after the date of the Stockholders Meeting purchase such number of
shares of Market Stock on The New York Stock Exchange.
(b) The aggregate price for the Issued Stock shall be the amount
set forth in Schedule I hereto (such amount hereinafter sometimes referred
to as the "Aggregate Purchase Price"). The Aggregate Purchase Price shall
be paid in the following manner: the Management Stockholder shall deliver
to the Company at least three business days prior to the Base Date (or the
Deferred Sale Date, if applicable) cash or a certified bank check or
checks payable to the order of the Company in the amount of the Aggregate
Purchase Price. On the Base Date (or the Deferred Sale Date, if
applicable), in consideration of receipt of the Aggregate Purchase Price,
the Company will deliver to the Management Stockholder a certificate,
registered in the Management Stockholder's name, for the Issued Stock,
which shall be subject to the terms and conditions hereinafter set forth.
(c) Subject to the terms and conditions hereinafter set forth and
upon and as of May 19, 1997 (the "Option Grant Date"), the Company shall
issue to the Management Stockholder the Options and the Parties shall
execute and deliver to each other copies of the Non-Qualified Stock Option
Agreement concurrently with the issuance of the Options.
<PAGE>
3
2. Management Stockholder's Representations, Warranties and
Agreements.
(a) The Management Stockholder agrees and acknowledges that he
will not, directly or indirectly, offer, transfer, sell, assign, pledge,
hypothecate or otherwise dispose of (any such act being referred to herein as
a "transfer") any shares of the Purchase Stock, Retained Stock and, at the
time of exercise, the Common Stock issuable upon exercise of the Options (the
"Option Stock" and collectively with Retained Stock and Purchase Stock, the
"Stock") unless such transfer complies with Section 3 of this Agreement. If
the Management Stockholder is an "affiliate" (as defined under Rule 405 of
the rules and regulations promulgated under the Act and as interpreted by the
Board of Directors of the Company) of the Company (an "Affiliate"), the
Management Stockholder also agrees and acknowledges that he will not transfer
any shares of the Stock unless (i) the transfer is pursuant to an effective
registration statement under the Securities Act of 1933, as amended, and the
rules and regulations in effect thereunder (the "Act"), and in compliance
with applicable provisions of state securities laws or (ii) (A) counsel for
the Management Stockholder (which counsel shall be reasonably acceptable to
the Company) shall have furnished the Company with an opinion, satisfactory
in form and substance to the Company, that no such registration is required
because of the availability of an exemption from registration under the Act
and (B) if the Management Stockholder is a citizen or resident of any country
other than the United States, or the Management Stockholder desires to effect
any transfer in any such country, counsel for the Management Stockholder
(which counsel shall be reasonably satisfactory to the Company) shall have
furnished the Company with an opinion or other advice reasonably satisfactory
in form and substance to the Company to the effect that such transfer will
comply with the securities laws of such jurisdiction. Notwithstanding the
foregoing, the Company acknowledges and agrees that any of the following
transfers are deemed to be in compliance with the Act and this Agreement and
no opinion of counsel is required in connection therewith: (x) a transfer
made pursuant to Section 4, 5 or 6 hereof, (y) a transfer upon the death of
the Management Stockholder to his executors, administrators, testamentary
trustees, legatees or beneficiaries (the "Management Stockholder's Estate")
or a transfer to the executors, administrators, testamentary trustees,
legatees or beneficiaries of a person who has become a holder of Stock in
accordance with the terms of this Agreement, provided that it is expressly
understood that any such transferee shall be bound by the provisions of this
Agreement and (z) a transfer made after the Base Date in compliance with the
federal securities laws to a trust or custodianship the beneficiaries of
which may include only the Management Stockholder, his spouse or his lineal
descendants (a "Management Stockholder's Trust") or a transfer made after the
third anniversary of the Base Date to such a trust by a person who has become
a holder of Stock in accordance with the terms of this Agreement, provided
that such transfer is made expressly subject to this Agreement and that the
transferee agrees in writing to be bound by the terms and conditions hereof.
(b) The certificate (or certificates) representing the Stock
shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR
<PAGE>
4
OTHERWISE DISPOSED OF UNLESS SUCH TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE
PROVISIONS OF THE MANAGEMENT STOCKHOLDER'S AGREEMENT DATED AS
OF MAY 19, 1997 BETWEEN AMPHENOL CORPORATION ("THE COMPANY")
AND THE MANAGEMENT STOCKHOLDER NAMED ON THE FACE HEREOF (A
COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY)."
(c) The Management Stockholder acknowledges that he has been
advised that (i) the Issued Stock, if any, has been registered on Form S-8
under the Act, (ii) a restrictive legend in the form heretofore set forth
shall be placed on the certificates representing the Stock and (iii) a
notation shall be made in the appropriate records of the Company indicating
that the Stock is subject to restrictions on transfer and appropriate stop
transfer restrictions will be issued to the Company's transfer agent with
respect to the Stock. If the Management Stockholder is an Affiliate, the
Management Stockholder also acknowledges that (1) the Stock must be held
indefinitely and the Management Stockholder must continue to bear the
economic risk of the investment in the Stock unless it is subsequently
registered under the Act or an exemption from such registration is available,
(2) when and if shares of the Stock may be disposed of without registration
in reliance on Rule 144 of the rules and regulations promulgated under the
Act, such disposition can be made only in limited amounts in accordance with
the terms and conditions of such Rule and (3) if the Rule 144 exemption is
not available, public sale without registration will require compliance with
some other exemption under the Act.
(d) If any shares of the Stock are to be disposed of in
accordance with Rule 144 under the Act or otherwise, the Management
Stockholder shall promptly notify the Company of such intended disposition
and shall deliver to the Company at or prior to the time of such disposition
such documentation as the Company may reasonably request in connection with
such sale and, in the case of a disposition pursuant to Rule 144, shall
deliver to the Company an executed copy of any notice on Form 144 required to
be filed with the Securities and Exchange Commission (the "SEC").
(e) The Management Stockholder agrees that, if any shares of the
capital stock of the Company are offered to the public pursuant to an
effective registration statement under the Act (other than registration of
securities issued under an employee plan), the Management Stockholder will
not effect any public sale or distribution of any shares of the Stock not
covered by such registration statement from the time of the receipt of a
notice from the Company that the Company has filed or imminently intends to
file such registration statement to, or within 180 days after, the effective
date of such registration statement, unless otherwise agreed to in writing by
the Company.
(f) The Management Stockholder represents and warrants that (i)
with respect to Issued Stock, if any, he has received and reviewed the
document(s) comprising the Prospectus (the "Prospectus") relating to Issued
Stock, if any, and the documents referred to therein, certain of which
documents set forth the rights, preferences and restrictions relating to
<PAGE>
5
the Stock and (ii) he has been given the opportunity to obtain any additional
information or documents and to ask questions and receive answers about such
documents, the Company and the business and prospects of the Company which he
deems necessary to evaluate the merits and risks related to his investment in
the Issued Stock, if any, and to verify the information contained in the
Prospectus and the information received as indicated in this Section
2(f)(ii), and he has relied solely on such information.
(g) The Management Stockholder further represents and warrants
that (i) his financial condition is such that he can afford to bear the
economic risk of holding the Issued Stock, if any, for an indefinite period
of time and has adequate means for providing for his current needs and
personal contingencies, (ii) he can afford to suffer a complete loss of his
or her investment in the Issued Stock, if any, (iii) he understands and has
taken cognizance of all risk factors related to the purchase of the Issued
Stock, if any, including those set forth in the Prospectus referred to above,
and (iv) his knowledge and experience in financial and business matters are
such that he is capable of evaluating the merits and risks of his purchase of
the Issued Stock, if any, as contemplated by this Agreement.
3. Restriction on Transfer.
Except for transfers permitted by clauses (x), (y) and (z) of
Section 2(a) or a sale of shares of Stock pursuant to an effective
registration statement under the Act filed by the Company or pursuant to the
Sale Participation Agreement (as defined below), the Management Stockholder
agrees that he will not transfer any shares of the Stock at any time prior to
the fifth anniversary of the Base Date. No transfer of any such shares in
violation hereof shall be made or recorded on the books of the Company and
any such transfer shall be void and of no effect.
4. Right of First Refusal.
If on the fifth anniversary of the Base Date the Common Stock is
not admitted to trading on any national securities exchange or the NASDAQ
Stock Market, and, at any time after the fifth anniversary of the Base Date
and prior to a Public Offering (as hereinafter defined), the Management
Stockholder receives a bona fide offer to purchase any or all of his shares
of Stock (the "Offer") from a third party (the "Offeror") which the
Management Stockholder wishes to accept, the Management Stockholder shall
cause the Offer to be reduced to writing and shall notify the Company in
writing of his wish to accept the Offer. The Management Stockholder's notice
shall contain an irrevocable offer to sell such shares of Stock to the
Company (in the manner set forth below) at a purchase price equal to the
price contained in, and on the same terms and conditions of, the Offer, and
shall be accompanied by a true copy of the Offer (which shall identify the
Offeror). At any time within 30 days after the date of the receipt by the
Company of the Management Stockholder's notice, the Company shall have the
right and option to purchase, or to arrange for a third party to purchase,
all of the shares of Stock covered by the Offer either (i) at the same price
and on the same terms and conditions as the Offer or (ii) if the Offer
includes any consideration other than cash, then at the sole option of the
Company, at the equivalent all cash price, determined in good faith by the
Company's Board of Directors, by delivering a certified bank
<PAGE>
6
check or checks in the appropriate amount (and any such non-cash
consideration to be paid) to the Management Stockholder at the principal
office of the Company against delivery of certificates or other instruments
representing the shares of Stock so purchased, appropriately endorsed by the
Management Stockholder. If at the end of such 30 day period, the Company has
not tendered the purchase price for such shares in the manner set forth
above, the Management Stockholder may during the succeeding 30 day period
sell not less than all of the shares of Stock covered by the Offer to the
Offeror at a price and on terms no less favorable to the Management
Stockholder than those contained in the Offer. Promptly after such sale, the
Management Stockholder shall notify the Company of the consummation thereof
and shall furnish such evidence of the completion and time of completion of
such sale and of the terms thereof as may reasonably be requested by the
Company. If, at the end of 30 days following the expiration of the 30 day
period for the Company to purchase the Stock, the Management Stockholder has
not completed the sale of such shares of the Stock as aforesaid, all the
restrictions on sale, transfer or assignment contained in this Agreement
shall again be in effect with respect to such shares of the Stock.
5. Management Stockholder's Resale of Stock and Options to the
Company Upon The Management Stockholder's Death or Disability
or in Case of Certain Terminations of Employment.
(a) Except as otherwise provided herein, if, prior to the fifth
anniversary of the Base Date, (i) the Management Stockholder is still in the
employ of the Company or any subsidiary of the Company, or has retired from
the Company and its subsidiaries at age 65 or over (or such other age as may
be approved by the Board of Directors of the Company) after having been
employed by the Company or any subsidiary for at least three years after the
Base Date, and (ii) the Management Stockholder either dies or becomes
permanently disabled then the Management Stockholder, the Management
Stockholder's Estate or a Management Stockholder's Trust, as the case may be,
shall have the right, for six months following the date of death or permanent
disability, (A) to sell to the Company, and the Company shall be required to
purchase, on one occasion, all or any portion of the shares of Stock then
held by the Management Stockholder, the Management Stockholder's Estate
and/or the Management Stockholder's Trust, as the case may be, at the Section
5(a) Repurchase Price, as determined in accordance with Section 7, and (B) to
require the Company to pay to the Management Stockholder or the Management
Stockholder's Estate or the Management Stockholder's Trust, as the case may
be, an additional amount equal to the Option Excess Price determined on the
basis of a Section 5(a) Repurchase Price as provided in Section 8 with
respect to the termination of outstanding Options held by the Management
Stockholder.
(b) Except as otherwise provided herein, if the Management
Stockholder's employment with the Company is terminated by the Company
without Cause (as hereinafter defined) or by the Management Stockholder for
Good Reason (as hereinafter defined) and, at such time, the Common Stock is
not admitted to trading on any national securities exchange or the NASDAQ
Stock Market, then the Management Stockholder (or in the event of the
Management Stockholder's death, the Management Stockholder's Estate) or a
Management Stockholder's Trust, as the case may be, shall have the right, for
30 days following the date of termination, to sell to the Company, and the
Company shall be required to purchase, on
<PAGE>
7
one occasion, all or any portion of the Retained Stock and any Issued Stock
(other than any shares acquired upon the exercise of Options) or Market Stock
(collectively, the "Initial Stock") at the Section 5(b) Repurchase Price, as
determined in accordance with Section 7, provided, that such right shall
apply only to the actual shares of Common Stock constituting the Initial
Stock pursuant to this Agreement, and shall not include any other shares of
Common Stock, however acquired. If the Management Stockholder or the
Management Stockholder's Trust, as the case may be, exercises the put rights
granted under this Section 5(b), then (i) the Options (whether or not then
exercisable) held by the Management Stockholder or the Management
Stockholder's Trust, as the case may be, will terminate immediately without
payment therefor, (ii) any Option Stock acquired prior to the date of the
termination of employment may be retained and (iii) the exercise of any
Options after the date of the termination of employment and prior to the
exercise of the put rights pursuant to this Section 5(b) shall be deemed to
be rescinded, and any Option Stock so acquired shall be delivered to the
Company in return for the applicable exercise price paid therefor.
(c) The Management Stockholder, the Management Stockholder's
Estate and/or the Management Stockholder's Trust, as the case may be, shall
send written notice to the Company of its intention to sell shares of Stock
in exchange for the payment referred in Sections 5(a) and 5(b) above and to
terminate such Options (either (i) in the case of Section 5(a), in exchange
for the payment referred to in Section 5(a) or (ii) in the case of Section
5(b), without payment therefor) (the "Redemption Notice"). The completion of
the purchase shall take place at the principal office of the Company on the
tenth business day after the giving of the Redemption Notice. The applicable
Repurchase Price and any payment with respect to the Options as described
above shall be paid by delivery to the Management Stockholder, the Management
Stockholder's Estate or the Management Stockholder's Trust, as the case may
be, of a certified bank check or checks in the appropriate amount payable to
the order of the Management Stockholder, the Management Stockholder's Estate
or the Management Stockholder's Trust, as the case may be, against delivery
of certificates or other instruments representing the Stock so purchased and
appropriate documents cancelling the Options so terminated appropriately
endorsed or executed by the Management Stockholder, the Management
Stockholder's Estate or the Management Stockholder's Trust, or his, her or
its duly authorized representative. For purposes of this Agreement, the
Management Stockholder shall be deemed to have a "permanent disability" if
the Management Stockholder is unable to engage in the activities required by
the Management Stockholder's job by reason of any medically determined
physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not
less than 12 months.
(d) Notwithstanding anything in Section 5(a) or Section 5(b) to
the contrary and subject to Section 11, if there exists and is continuing a
default or an event of default on the part of the Company or any subsidiary
of the Company under any loan, guarantee or other agreement under which the
Company or any subsidiary of the Company has borrowed money or if the
repurchase referred to in Section 5(a) or Section 5(b) would result in a
default or an event of default on the part of the Company or any subsidiary
of the Company under any such agreement or if a repurchase would not be
permitted under the Delaware General Corporation Law (the "DGCL") or would
otherwise violate the DGCL (or if the Company
<PAGE>
8
reincorporates in another state, the business corporation law of such state)
(each such occurrence being an "Event"), the Company shall not be obligated
to repurchase any of the Stock or the Options from the Management
Stockholder, the Management Stockholder's Estate or a Management
Stockholder's Trust, as the case may be, until the first business day which
is 10 calendar days after all of the foregoing Events have ceased to exist
(the "Repurchase Eligibility Date"); provided, however, that (i) the number
of shares of Stock subject to repurchase under this Section 5(d) shall be
that number of shares of Stock, and (ii) in the case of a repurchase pursuant
to Section 5(a), the number of Exercisable Option Shares (as defined in
Section 8) for purposes of calculating the Option Excess Price payable under
this Section 5(d) shall be the number of Exercisable Option Shares, held by
the Management Stockholder, the Management Stockholder's Estate or a
Management Stockholder's Trust, as the case may be, at the time of delivery
of a Redemption Notice in accordance with Section 5(c) hereof; provided,
further, that the Repurchase Calculation Date shall be determined in
accordance with Section 7 as of the Repurchase Eligibility Date (unless, in a
repurchase pursuant to Section 5(a), the Section 5(a) Repurchase Price would
be greater if the Repurchase Calculation Date had been determined as if no
Event had occurred in which case, solely for purposes of this proviso, the
Repurchase Calculation Date shall be determined as if no Event had occurred).
All Options exercisable as of the date of a Redemption Notice, in the case of
a repurchase pursuant to Section 5(a), shall continue to be exercisable until
the repurchase pursuant to such Redemption Notice, provided that to the
extent any Options are exercised after the date of such Redemption Notice,
the number of Exercisable Option Shares for purposes of calculating the
Option Excess Price shall be reduced accordingly.
(e) Notwithstanding any other provision of this Section 5 to the
contrary and subject to Section 11, the Management Stockholder, the
Management Stockholder's Estate or a Management Stockholder's Trust, as the
case may be, shall have the right to withdraw any Redemption Notice which has
been pending for 60 or more days and which has remained unsatisfied because
of the provisions of Section 5(d).
6. The Company's Option to Repurchase Stock and
Options of
Management Stockholder.
(a) If, on or prior to the fifth anniversary of the Base Date,
(i) the Management Stockholder's active employment with the Company (and/or,
if applicable, its subsidiaries) is terminated by the Company with Cause or
by the Management Stockholder without Good Reason, (ii) the beneficiaries of
a Management Stockholder's Trust shall include any person or entity other
than the Management Stockholder, his spouse or his lineal descendants, or
(iii) the Management Stockholder shall effect a transfer of any of the Stock
other than as permitted in this Agreement (each, a "Section 6(a) Call
Event"), then the Company shall have the right to purchase all, but not less
than all, of the shares of the Stock then held by the Management Stockholder
or a Management Stockholder's Trust at the Section 6(a) Repurchase Price
determined in accordance with Section 7 hereof. If any Section 6(a) Call
Event has occurred, then, whether or not the Company exercises the call
rights granted under this Section 6(a), the Options (whether or not then
exercisable) held by the Management Stockholder or the Management
Stockholder's Trust, as the case may be, will terminate immediately without
payment therefor.
<PAGE>
9
(b) If, on or prior to the fifth anniversary of the Base Date,
the Management Stockholder's employment is terminated as a result of the
death or permanent disability of the Management Stockholder or if the
Management Stockholder dies or becomes permanently disabled after the
retirement of the Management Stockholder from the Company or any of its
subsidiaries at age 65 or over (or such other age as may be approved by the
Board of Directors of the Company) after having been employed by the Company
or any subsidiary for at least three years after the Base Date, (each a
"Section 6(b) Call Event"), then the Company shall have the right to purchase
all, but not less than all, of the shares of Stock then held by the
Management Stockholder, the Management Stockholder's Estate or a Management
Stockholder's Trust at the Section 5(a) Repurchase Price.
(c) If, on or prior to the fifth anniversary of the Base Date,
the Management Stockholder's employment is terminated as a result of a
termination by the Management Stockholder with Good Reason or upon the
retirement of the Management Stockholder from the Company or any of its
subsidiaries at age 65 or over (or such other age as may be approved by the
Board of Directors of the Company) after having been employed by the Company
or any subsidiary for at least three years after the Base Date, or by the
Company without Cause (each a "Section 6(c) Call Event" and together with
Section 6(a) Call Events and Section 6(b) Call Events, "Call Events"), then
the Company shall have the right to purchase all, but not less than all, of
the shares of Stock then held by the Management Stockholder or a Management
Stockholder's Trust at the Section 6(c) Repurchase Price.
(d) The Company shall have a period of 75 days from the date of a
Call Event in which to give notice in writing to the Management Stockholder
of the exercise of such election ("Call Notice"). In the event that the
Company exercises its right to repurchase shares of Stock pursuant to Section
6(b) or Section 6(c), the Company shall also pay the Management Stockholder
an amount equal to the Option Excess Price determined on the basis of the
Section 5(a) Repurchase Price or Section 6(c) Repurchase Price, respectively,
as provided in Section 8, with respect to the termination of outstanding
Options held by the Management Stockholder.
(e) The completion of the purchases pursuant to the foregoing
shall take place at the principal office of the Company on the tenth business
day after the giving of notice of the exercise of the option to purchase. The
applicable Repurchase Price and any payment with respect to the Options as
described in Sections 6(d) above shall be paid by delivery to the Management
Stockholder, the Management Stockholder's Estate or a Management
Stockholder's Trust, as the case may be, of a certified bank check or checks
in the appropriate amount payable to the order of the Management Stockholder,
the Management Stockholder's Estate or a Management Stockholder's Trust, as
the case may be, against delivery of certificates or other instruments
representing the Stock so purchased and appropriate documents cancelling the
Options so terminated, appropriately endorsed or executed by the Management
Stockholder, the Management Stockholder's Estate or a Management Stockholders
Trust or his, her or its authorized representative.
(f) Notwithstanding any other provision of this Section 6 to the
contrary and subject to Section 11, if there exists and is continuing any
Event, the Company shall
<PAGE>
10
delay the repurchase of any of the Stock or the Options (pursuant to a Call
Notice timely given in accordance with Section 6(d) hereof) from the
Management Stockholder, the Management Stockholder's Estate or a Management
Stockholder's Trust, as the case may be, until the Repurchase Eligibility
Date; provided, however, that (i) the number of shares of Stock subject to
repurchase under this Section 6(f) shall be that number of shares of Stock
and (ii) in the case of a repurchase pursuant to Section 6(b) or Section
6(c), the number of Exercisable Option Shares for purposes of calculating the
Option Excess Price payable under this Section 6(f) shall be the number of
Exercisable Option Shares held by the Management Stockholder, the Management
Stockholder's Estate or a Management Stockholder's Trust, as the case may be,
at the time of delivery of a Call Notice in accordance with Section 6(d)
hereof; and provided, further, that the Repurchase Calculation Date shall be
determined in accordance with Section 7 based on the Repurchase Eligibility
Date (unless (x) in the case of a Section 6(b) Call Event or a Section 6(c)
Call Event, the applicable Repurchase Price would be greater if the
Repurchase Calculation Date had been determined as if no Event had occurred,
in which case the Repurchase Calculation Date shall be determined as if no
Event had occurred, and (y) in the case of a Section 6(a) Call Event, the
applicable Repurchase Price would be less if the Repurchase Calculation Date
had been determined as if no Event had occurred, in which case the Repurchase
Calculation Date shall be determined as if no Event had occurred). All
Options exercisable as of the date of a Call Notice, in the case of a
repurchase pursuant to Section 6(b) or Section 6(c), shall continue to be
exercisable until the repurchase pursuant to such Call Notice, provided that
to the extent that any Options are exercised after the date of such Call
Notice, the number of Exercisable Option Shares for purposes of calculating
the Option Excess Price shall be reduced accordingly.
7. Determination of Repurchase Price.
(a) The Section 5(a) Repurchase Price, Section 5(b) Repurchase
Price, Section 6(a) Repurchase Price and the Section 6(c) Repurchase Price
are hereinafter collectively referred to as the "Repurchase Price." The
Repurchase Price shall be calculated on the basis of the unaudited financial
statements of the Company or the Market Price Per Share (as defined in
Section 7(j)) as of the last day of the month preceding the later of (i) the
month in which the event giving rise to the repurchase occurs and (ii) the
month in which the Repurchase Eligibility Date occurs (hereinafter called the
"Repurchase Calculation Date"). The event giving rise to the repurchase shall
be the death, permanent disability, retirement or termination of employment,
as the case may be, of the Management Stockholder, not the giving of any
notice required pursuant to Section 5 or 6.
(b) The Section 5(a) Repurchase Price shall be a per share
Repurchase Price equal to the Base Price, provided that if the Book Value Per
Share (as defined in Section 7(h)) (or, after a Public Offering, the Market
Price Per Share) as of the Repurchase Calculation Date is greater than the
Base Price, then the Section 5(a) Repurchase Price shall be equal to the Base
Price plus the amount by which the Book Value Per Share (or, after a Public
Offering, the Market Price Per Share) as of the Repurchase Calculation Date
exceeds the Base Price.
<PAGE>
11
(c) The Section 5(b) Repurchase Price shall be a per share
Repurchase Price equal to the Base Price, provided that if the Book Value Per
Share as of the Repurchase Calculation Date is less than the Base Price, then
the Section 5(b) Repurchase Price shall be equal to the Base Price less the
amount by which the Base Price exceeds the Book Value Per Share as of the
Repurchase Calculation Date (but shall not be less than zero).
(d) The Section 6(a) Repurchase Price shall be a per share
Repurchase Price equal to the least of (i) after a Public Offering, the
Market Price Per Share, (ii) if the Book Value Per Share as of the Repurchase
Calculation Date is less than the Base Price, the Base Price less the amount
by which the Base Price exceeds Book Value Per Share as of the Repurchase
Calculation Date (but shall not be less than zero), and (iii) if the Book
Value Per Share as of the Repurchase Calculation Date exceeds the Base Price,
the Base Price plus (x) the Percentage (as defined below) multiplied by (y)
the amount by which the Book Value Per Share as of the Repurchase Calculation
Date exceeds the Base Price.
(e) The Section 6(c) Repurchase Price shall be a per share
Repurchase Price equal to the Base Price, provided (x) if the Book Value Per
Share (or, after a Public Offering, the Market Price Per Share) as of the
Repurchase Calculation Date is less than the Base Price, then the Section
6(c) Repurchase Price shall equal the Base Price less the amount by which the
Base Price exceeds Book Value Per Share (or, after a Public Offering, the
Market Price Per Share) as of the Repurchase Calculation Date, and (y) if the
Book Value Per Share (or, after a Public Offering, the Market Price Per
Share) as of the Repurchase Calculation Date is greater than the Base Price,
then the Section 6(c) Repurchase Price shall equal the Base Price plus the
amount by which the Book Value Per Share (or, after a Public Offering, the
Market Price Per Share) as of the Repurchase Calculation Date exceeds the
Base Price, as the case may be.
(f) For purposes of this Agreement the following definitions
shall apply: "Cause" shall mean (i) the Management Stockholder's willful and
continued failure to perform Management Stockholder's duties with respect to
the Company or its subsidiaries which continues beyond ten days after a
written demand for substantial performance is delivered to Management
Stockholder by the Company or (ii) misconduct by Management Stockholder
involving (x) dishonesty or breach of trust in connection with Management
Stockholder's employment or (y) conduct which would be a reasonable basis for
an indictment of Management Stockholder for a felony or for a misdemeanor
involving moral turpitude or (z) which results in a demonstrable injury to
the Company; and "Good Reason" shall mean (i) a reduction in Management
Stockholder's base salary (other than a broad based salary reduction program
affecting many members of management), (ii) a substantial reduction in
Management Stockholder's duties and responsibilities other than as approved
by the Chief Executive Officer of the Company as of the date of this
Agreement, (iii) the elimination or reduction of the Management Stockholder's
eligibility to participate in the Company's benefit programs that is
inconsistent with the eligibility of similarly situated employees of the
Company to participate therein, or (iv) a transfer of the Management
Stockholder's primary workplace by more than fifty (50) miles from the
workplace as of the date hereof.
<PAGE>
12
(g) For purposes of this Agreement, the "Percentage" shall be
determined as follows:
Repurchase Calculation Date Percentage
- --------------------------- ----------
Base Date through and including the first anniversary of the 0%
Base Date
After the first anniversary of the Base Date through and 20%
including the second anniversary of the Base Date
After the second anniversary of the Base Date through and 40%
including the third anniversary of the Base Date
After the third anniversary of the Base Date through and 60%
including the fourth anniversary of the Base Date
After the fourth anniversary of the Base Date through and 80%
including the fifth anniversary of the Base Date
After the fifth anniversary of the Base Date 100%
(h) As used herein, "Book Value Per Share" shall be the quotient
of (a) (i) $455,440,830 plus (ii) the aggregate net income of the Company
from and after the date of the Effective Time of the Merger (as decreased by
any net losses from and after the date of the Effective Time of the Merger)
excluding any one time costs and expenses charged to income associated with
the Merger and any related transactions plus (iii) the aggregate dollar
amount contributed to (or credited to common stockholders' equity of) the
Company after the date of the Effective Time of the Merger as equity of the
Company (including consideration to be received upon exercise of the Options
and other stock equivalents) plus (iv) to the extent reflected as deductions
to Book Value Per Share in clause (ii) above, or minus, to the extent
reflected as additions to Book Value Per Share in clause (ii) above, unusual
or other items recognized by the Company (including, without limitation, one
time or accelerated write-offs of good will), in each case, if and to the
extent determined in the sole discretion of the Board of Directors of the
Company, minus, (v) the aggregate dollar amount of any dividends paid by the
Company after the date of the Effective Time of the Merger, divided by (b)
the sum of the number of shares of Common Stock then outstanding and the
number of shares of Common Stock issuable upon the exercise of all
outstanding stock options and other rights to acquire Common Stock and the
conversion of all securities convertible into shares of Common Stock. The
items referred to in the calculations set forth in clauses (a)(ii), (a)(iii),
(a)(iv) and (a)(v) of the immediately preceding sentence shall be determined
in accordance with generally accepted accounting principles applied on a
basis consistent with any prior periods as reflected in the consolidated
financial statements of the Company.
(i) As used herein the term "Public Offering" shall mean the sale
of shares of Common Stock to the public subsequent to the date hereof
pursuant to a registration statement under the Act which has been declared
effective by the SEC (other than a registration statement on Form S-8 or any
other similar form) which results in an active
<PAGE>
13
trading market in 35% or more of the Common Stock. A "Qualified Public
Offering" shall mean a Public Offering pursuant to an effective registration
statement relating to the sale of shares of the Common Stock held by KKR 1996
Fund L.P., a Delaware limited partnership (the "Partnership") or NXS
Associates, L.P., a Delaware limited partnership, or their respective
affiliates; provided, however, that a "Qualified Public Offering" shall be
deemed to have occurred if there has been any Public Offering and there
exists an active trading market in 40% or more of the Common Stock.
(j) As used herein, the term "Market Price Per Share" shall mean
the price per share equal to the average of the last sale price of the Common
Stock on the Repurchase Calculation Date on each exchange on which the Common
Stock may at the time be listed or, if there shall have been no sales on any
of such exchanges on the Repurchase Calculation Date, the average of the
closing bid and asked prices on each such exchange at the end of the
Repurchase Calculation Date or if there is no such bid and asked price on the
Repurchase Calculation Date on the next preceding date when such bid and
asked price occurred or, if the Common Stock shall not be so listed, the
average of the closing sales prices as reported by NASDAQ at the end of the
Repurchase Calculation Date in the over-the-counter market. If the Common
Stock is not so listed or reported by NASDAQ, then the Market Price Per Share
shall be the Book Value Per Share.
(k) In determining the Repurchase Price, appropriate adjustments
shall be made for any stock dividends, splits, combinations,
recapitalizations or any other adjustment in the number of outstanding shares
of Common Stock in order to maintain, as nearly as practicable, the intended
operation of the provisions of this Section 7.
8. Stock Issued to Management Stockholder Upon Exercise of Stock
Options; Termination of Options.
(a) The Company may from time to time grant to the Management
Stockholder, in addition to the Options, options under the Option Plan to
purchase shares of Common Stock at the Base Price or at a different option
exercise price. The term "Issued Stock" as used in this Agreement shall
include all shares of Common Stock of the Company purchased by the Management
Stockholder pursuant to this Agreement and issued to the Management
Stockholder by the Company upon exercise of the Options and of any other
stock options held by the Management Stockholder.
(b) In the case of an exercise of the put or call rights
described above in Sections 5(b) or 6(a), respectively, all outstanding
Options of the Management Stockholder (whether or not then exercisable) will
be automatically terminated without payment therefor. In the case of an
exercise of the put rights described above in Section 5(a) or of the call
rights described above in Sections 6(b) or 6(c), all outstanding Options
granted to the Management Stockholder under the Option Plan or otherwise,
whether or not then exercisable, will be automatically terminated upon the
payment by the Company to the Management Stockholder, pursuant to the
provisions of Sections 5(a) or 6(d) of this Agreement, as the case may be, of
an amount equal to the Option Excess Price. If the Option Excess Price is
zero or a negative number, all outstanding stock options granted to the
Management Stockholder
<PAGE>
14
under the Option Plan or otherwise, whether or not then exercisable, shall be
automatically terminated upon the repurchase of Stock as provided in Sections
5(a), 6(b) or 6(c). With respect to each Option, the Option Excess Price is
the excess, if any, of the Section 5(a) Repurchase Price or the Section 6(c)
Repurchase Price, depending on which Repurchase Price is being used to
repurchase the remainder of the Stock, over the Option Exercise Price (as
defined in the Non-Qualified Option Agreement), multiplied by the number of
Exercisable Option Shares thereunder. For purposes hereof, "Exercisable
Option Shares" shall mean the shares of Common Stock which, at the time of
determination of the Option Excess Price could be purchased by the Management
Stockholder upon exercise of his or her outstanding options. The Company will
use its reasonable best efforts to cause a Registration Statement on Form S-8
covering shares of Issued Stock contemplated hereby to be filed within six
months of the date hereof.
9. The Company's Representations and Warranties.
(a) The Company represents and warrants to the Management
Stockholder that (i) this Agreement has been duly authorized, executed and
delivered by the Company and (ii) the Issued Stock, when issued and delivered
in accordance with the terms hereof, will be duly and validly issued, fully
paid and nonassessable.
(b) The Company will file the reports required to be filed by it
under the Act and the Exchange Act and the rules and regulations adopted by
the SEC thereunder, to the extent required from time to time to enable the
Management Stockholder to sell shares of Stock without registration under the
Act within the limitations of the exemptions provided by (A) Rule 144 under
the Act, as such Rule may be amended from time to time, or (B) any similar
rule or regulation hereafter adopted by the SEC. Notwithstanding anything
contained in this Section 9(b), the Company may de-register under Section 12
of the Exchange Act if it is then 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 under the Act to be
available. Nothing in this Section 9(b) shall be deemed to limit in any
manner the restrictions on sales of Stock contained in this Agreement.
10. "Piggyback" Registration Rights.
(a) Effective upon the date of this Agreement, until the later of
(i) the first occurrence of a Qualified Public Offering (as defined in
Section 7(i) above) or (ii) the fifth anniversary of the Base Date, the
Management Stockholder hereby agrees to be bound by all of the terms,
conditions and obligations of the Registration Rights Agreement dated as of
May 19, among the Company (as successor by Merger to Newco), KKR 1996 Fund
L.P., NXS Associates, L.P. KKR Partners II, L.P. and NXS I, L.L.C. (the
"Registration Rights Agreement") and, in the case of a Qualified Public
Offering and subject to the limitations set forth in this Section 10, shall
have all of the rights and privileges of the Registration Rights Agreement,
in each case as if the Management Stockholder were an original party (other
than the Company) thereto; provided, however, that the Management Stockholder
shall not have any rights to request registration under Section 3 of the
Registration Rights Agreement; and
<PAGE>
15
provided further, that the Management Stockholder shall not be bound by any
amendments to the Registration Rights Agreement unless the Management
Stockholder consents thereto. Notwithstanding anything to the contrary
contained in the Registration Rights Agreement, the Management Stockholder's
rights and obligations under the Registration Rights Agreement shall be
subject to the limitations and additional obligations set forth in this
Section 10. All Stock purchased or held by the Management Stockholder, the
Management Stockholder's Estate or the Management Stockholder's Trust
pursuant to this Agreement shall be deemed to be Registrable Securities as
defined in the Registration Rights Agreement.
(b) The Company will promptly notify the Management Stockholder
in writing (a "Notice") of any proposed registration (a "Proposed
Registration") in connection with a Qualified Public Offering. If within 15
days of the receipt by the Management Stockholder of such Notice, the Company
receives from the Management Stockholder, the Management Stockholder's Estate
or the Management Stockholder's Trust a written request (a "Request") to
register shares of Stock held by the Management Stockholder, the Management
Stockholder's Estate or the Management Stockholder's Trust (which Request
will be irrevocable unless otherwise mutually agreed to in writing by the
Management Stockholder and the Company), shares of Stock will be so
registered as provided in this Section 10; provided, however, that for each
such registration statement only one Request, which shall be executed by the
Management Stockholder, the Management Stockholder's Estate or the Management
Stockholder's Trust, as the case may be, may be submitted for all Registrable
Securities held by the Management Stockholder, the Management Stockholder's
Estate and the Management Stockholder's Trust.
(c) The maximum number of shares of Stock which will be
registered pursuant to a Request will be the lowest of (i) the number of
shares of Stock then held by the Management Stockholder (which for purposes
of this subparagraph (c) shall include shares held by the Management
Stockholder's Estate or a Management Stockholder's Trust), including all
shares of Stock which the Management Stockholder is then entitled to acquire
under an unexercised Option to the extent then exercisable or (ii) the
maximum number of shares of Stock which the Company can register in the
Proposed Registration without adverse effect on the offering in the view of
the managing underwriters (reduced pro rata with all Other Management
Stockholders) as more fully described in subsection (d) of this Section 10 or
(iii) the maximum number of shares which the Management Stockholder (pro rata
based upon the aggregate number of shares of Common Stock the Management
Stockholder and all Other Management Stockholders have requested be
registered) and all Other Management Stockholders are permitted to register
under the Registration Rights Agreement.
(d) If a Proposed Registration involves an underwritten offering
and the managing underwriter advises the Company in writing that, in its
opinion, the number of shares of Stock requested to be included in the
Proposed 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 shares of Stock offered in such Qualified Public Offering
as contemplated by the Company, then the Company will include in the Proposed
Registration (i) first, 100% of the shares of Stock the Company proposes to
sell and (ii) second, to the extent of the number of shares of Stock
requested to be included in such registration which,
<PAGE>
16
in the opinion of such managing underwriter, can be sold without having the
adverse effect referred to above, the number of shares of Stock which the
"Holders" (as defined in the Registration Rights Agreement), including,
without limitation, the Management Stockholder and Other Management
Stockholders have requested to be included in the Proposed Registration, such
amount to be allocated pro rata among all requesting Holders on the basis of
the relative number of shares of Stock 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).
(e) Upon delivering a Request the Management Stockholder will, if
requested by the Company, execute and deliver a custody agreement and power
of attorney in form and substance satisfactory to the Company with respect to
the shares of Stock to be registered pursuant to this Section 10 (a "Custody
Agreement and Power of Attorney"). The Custody Agreement and Power of
Attorney will provide, among other things, that the Management Stockholder
will deliver to and deposit in custody with the custodian and
attorney-in-fact named therein a certificate or certificates representing
such shares of Stock (duly endorsed in blank by the registered owner or
owners thereof or accompanied by duly executed stock powers in blank) and
irrevocably appoint said custodian and attorney-in-fact as the Management
Stockholder's agent and attorney-in-fact with full power and authority to act
under the Custody Agreement and Power of Attorney on the Management
Stockholder's behalf with respect to the matters specified therein.
(f) The Management Stockholder agrees that he or she will execute
such other agreements as the Company may reasonably request to further
evidence the provisions of this Section 10.
11. Pro Rata Repurchases.
Notwithstanding anything to the contrary contained in Sections 5,
6 or 7, if at any time consummation of all purchases and payments to be made
by the Company pursuant to this Agreement and the Other Management
Stockholders' Agreements would result in an Event, then the Company shall
make purchases from, and payments to, the Management Stockholder and Other
Management Stockholders pro rata (on the basis of the proportion of the
number of shares of Stock and the number of Options each such Management
Stockholder and all Other Management Stockholders have elected or are
required to sell to the Company) for the maximum number of shares of Stock
and shall pay the Option Excess Price for the maximum number of Options
permitted without resulting in an Event (the "Maximum Repurchase Amount").
The provisions of Section 5(d) and 6(f) shall apply in their entirety to
payments and repurchases with respect to Options and shares of Stock which
may not be made due to the limits imposed by the Maximum Repurchase Amount
under this Section 11. Until all of such Stock and Options are purchased and
paid for by the Company, the Management Stockholder and the Other Management
Stockholders whose Stock and Options are not purchased in accordance with
this Section 11 shall have priority, on a pro rata basis, over other
purchases of Common Stock and Options by the Company pursuant to this
Agreement and Other Management Stockholders' Agreements.
<PAGE>
17
12. Rights to Negotiate Repurchase Price.
Nothing in this Agreement shall be deemed to restrict or prohibit
the Company from purchasing shares of Stock or Options from the Management
Stockholder, at any time, upon such terms and conditions, and for such price,
as may be mutually agreed upon between the Parties, whether or not at the
time of such purchase circumstances exist which specifically grant the
Company the right to purchase, or the Management Stockholder the right to
sell, shares of Stock or the Company has the right to pay, or the Management
Stockholder has the right to receive, the Option Excess Price under the terms
of this Agreement.
13. Covenant Regarding 83(b) Election.
Except as the Company may otherwise agree in writing, the
Management Stockholder hereby covenants and agrees that he will make an
election provided pursuant to Treasury Regulation 1.83-2 with respect to the
Stock, including without limitation, the Stock to be acquired pursuant to
Section 1 and the Stock to be acquired upon each exercise of the Management
Stockholder's Non-Qualified Options; and Management Stockholder further
covenants and agrees that he will furnish the Company with copies of the
forms of election the Management Stockholder files within 30 days after the
date hereof, and within 30 days after each exercise of Management
Stockholder's Non-Qualified Options and with evidence that each such election
has been filed in a timely manner. The Company agrees that, for purposes of
its reporting and withholding in connection with the election provided for in
the preceding sentence, the Management Stockholder will not be deemed to have
realized any compensation income with respect to any shares of Retained Stock.
14. Notice of Change of Beneficiary.
Immediately prior to any transfer of Stock to a Management
Stockholder's Trust, the Management Stockholder shall provide the Company
with a copy of the instruments creating the Management Stockholder's Trust
and with the identity of the beneficiaries of the Management Stockholder's
Trust. The Management Stockholder shall notify the Company immediately prior
to any change in the identity of any beneficiary of the Management
Stockholder's Trust.
15. Expiration of Certain Provisions.
The provisions contained in Sections 4, 5 and 6 of this Agreement
and the portion of any other provision of this Agreement which incorporates
the provisions of Sections 4, 5 and 6, shall terminate and be of no further
force or effect with respect to any shares of Stock sold by the Management
Stockholder (i) pursuant to an effective registration statement filed by the
Company pursuant to Section 10 hereof or (ii) pursuant to the terms of the
Sale Participation Agreement of even date herewith, among the Management
Stockholder, and KKR 1996 Fund L.P., NXS Associates, L.P. and KKR Partners
II, L.P.
The provisions contained in Sections 2(e), 3, 4, 5, 6 and 13 of
this Agreement, and the portion of any other provisions of this Agreement
which incorporate the provisions of
<PAGE>
18
such Sections, shall terminate and be of no further force or effect upon (i)
the sale of all or substantially all of the assets of the Company to a person
or group that is not an affiliate of Kohlberg Kravis Roberts & Co. L.P.
("KKR"), (ii) an acquisition of voting stock of the Company resulting in more
than 50% of the voting stock of the Company being held by a person or group
that does not include KKR or any of its affiliates or (iii) the consummation
of a merger, reorganization, business combination or liquidation of the
Company, but only if such merger, reorganization, business combination or
liquidation results in the Partnership or NXS Associates, L.P., or any
affiliate or affiliates thereof, together no longer having the power (A) to
elect a majority of the Board of Directors of the Company or such other
corporation which succeeds to the Company's rights and obligations pursuant
to such merger, reorganization, business combination or liquidation, or (B)
if the resulting entity of such merger, reorganization, business combination
or liquidation is not a corporation, to select the general partner(s) or
other persons or entities controlling the operations and business of the
resulting entity. Such provisions and the portion of any other provisions of
this Agreement which incorporate such provisions shall also terminate and be
of no further force and effect if the Management Stockholder's employment is
terminated and the Company has not given a Call Notice within 75 days from
the date of the applicable Call Event (i) with respect to all the Stock of a
Management Stockholder if the Management Stockholder's employment has been
terminated as a result of termination by the Management Stockholder with Good
Reason or by the Company without Cause, and (ii) with respect to only the
Initial Stock of a Management Stockholder if the Management Stockholder's
employment has been terminated for any other reason.
16. Recapitalizations, etc.
The provisions of this Agreement shall apply, to the full extent
set forth herein with respect to the Stock or the Options, to any and all
shares of capital stock of the Company or any capital stock, partnership
units or any other security evidencing ownership interests in any successor
or assign of the Company (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in exchange for, or
substitution of the Stock or the Options, by reason of any stock dividend,
split, reverse split, combination, recapitalization, liquidation,
reclassification, merger, consolidation or otherwise.
17. Management Stockholder's Employment by the Company.
Nothing contained in this Agreement or in any other agreement
entered into by the Company and the Management Stockholder contemporaneously
with the execution of this Agreement (i) obligates the Company or any
subsidiary of the Company to employ the Management Stockholder in any
capacity whatsoever or (ii) prohibits or restricts the Company (or any such
subsidiary) from terminating the employment, if any, of the Management
Stockholder at any time or for any reason whatsoever, with or without Cause,
and the Management Stockholder hereby acknowledges and agrees that neither
the Company nor any other person has made any representations or promises
whatsoever to the Management Stockholder concerning the Management
Stockholder's employment or continued employment by the Company or any
subsidiary of the Company.
<PAGE>
19
18. State Securities Laws.
The Company hereby agrees to use its best efforts to comply with
all state securities or "blue sky" laws which might be applicable to the sale
of the Stock and the issuance of the Options to the Management Stockholder.
19. Binding Effect.
The provisions of this Agreement shall be binding upon and accrue
to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. In the case of a transferee
permitted under Section 2(a) hereof, such transferee shall be deemed the
Management Stockholder hereunder; provided, however, that no transferee
(including without limitation, transferees referred to in Section 2(a)
hereof) shall derive any rights under this Agreement unless and until such
transferee has delivered to the Company a valid undertaking and becomes bound
by the terms of this Agreement.
20. Amendment.
This Agreement may be amended only by a written instrument signed
by the Parties hereto.
21. Closing.
Except as otherwise provided herein, the closing of each purchase
and sale of shares of Stock and the payment of the Option Excess Price, if
any, pursuant to this Agreement shall take place at the principal office of
the Company on the tenth business day following delivery of the notice by
either Party to the other of its exercise of the right to purchase or sell
such Stock hereunder or to cause the payment of the Option Excess Price, if
any.
22. Applicable Law.
The laws of the state of Delaware (or if the Company
reincorporates in another state, of that state) shall govern the
interpretation, validity and performance of the terms of this Agreement,
regardless of the law that might be applied under principles of conflicts of
law. Any suit, action or proceeding against the Management Stockholder, with
respect to this Agreement, or any judgment entered by any court in respect of
any thereof, may be brought in any court of competent jurisdiction in the
State of Delaware (or if the Company reincorporates in another state, in that
state) or New York, as the Company may elect in its sole discretion, and the
Management Stockholder hereby submits to the non-exclusive jurisdiction of
such courts for the purpose of any such suit, action, proceeding or judgment.
By the execution and delivery of this Agreement, the Management Stockholder
appoints The Corporation Trust Company, at its office in New York, New York
or Wilmington, Delaware (or if the Company reincorporates in another state,
an office in that state), as the case may be, as his agent upon which process
may be served in any such suit, action or proceeding. Service of process upon
such agent, together with notice of such service given to the
<PAGE>
20
Management Stockholder in the manner provided in Section 25 hereof, shall be
deemed in every respect effective service of process upon him in any suit,
action or proceeding. Nothing herein shall in any way be deemed to limit the
ability of the Company to serve any such writs, process or summonses in any
other manner permitted by applicable law or to obtain jurisdiction over the
Management Stockholder, in such other jurisdictions and in such manner, as
may be permitted by applicable law. The Management Stockholder hereby
irrevocably waives any objections which he may now or hereafter have to the
laying of the venue of any suit, action or proceeding arising out of or
relating to this Agreement brought in any court of competent jurisdiction in
the State of Delaware (or if the Company reincorporates in another state, in
that state) or New York, and hereby further irrevocably waives any claim that
any such suit, action or proceeding brought in any such court has been
brought in any inconvenient forum. No suit, action or proceeding against the
Company with respect to this Agreement may be brought in any court, domestic
or foreign, or before any similar domestic or foreign authority other than in
a court of competent jurisdiction in the State of Delaware (or if the Company
reincorporates in another state, in that state) or New York, and the
Management Stockholder hereby irrevocably waives any right which he may
otherwise have had to bring such an action in any other court, domestic or
foreign, or before any similar domestic or foreign authority. The Company
hereby submits to the jurisdiction of such courts for the purpose of any such
suit, action or proceeding. Each Party hereto hereby irrevocably and
unconditionally waives trial by jury in any legal action or proceeding in
relation to this Agreement and for any counterclaim therein.
23. Assignability of Certain Rights by the Company.
The Company shall have the right to assign any or all of its
rights or obligations to purchase shares of Stock pursuant to Sections 4, 5
and 6 hereof; provided, however, that the Company shall remain obligated to
perform its obligations notwithstanding such assignment in the event that
such assignee fails to perform the obligations so assigned to it.
24. Miscellaneous.
In this Agreement (i) all references to "dollars" or "$" are to
United States dollars and (ii) the word "or" is not exclusive. If any
provision of this Agreement shall be declared illegal, void or unenforceable
by any court of competent jurisdiction, the other provisions shall not be
affected, but shall remain in full force and effect.
25. Notices.
All notices and other communications provided for herein shall be
in writing and shall be deemed to have been duly given if delivered by hand
(whether by overnight courier or otherwise) or sent by registered or
certified mail, return receipt requested, postage prepaid, or by overnight
delivery or telecopy, to the Party to whom it is directed:
<PAGE>
21
(a) If to the Company, to it at the following address:
c/o Kohlberg Kravis Roberts & Co.
2800 Sand Hill Road
Suite 200
Menlo Park, California 94025
Attn: Michael Michelson
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3909
Attn: Charles I. Cogut, Esq.
(b) If to the Management Stockholder, to him at the
address set forth below under his signature;
or at such other address as either party shall
have specified by notice in writing to the other.
26. Covenant Not to Compete; Confidential Information.
(a) In consideration of the Company entering into this Agreement
with the Management Stockholder, the Management Stockholder hereby agrees
effective as of the Base Date, for so long as the Management Stockholder is
employed by the Company or one of its subsidiaries and for a period of one
year thereafter (the "Noncompete Period"), the Management Stockholder shall
not, directly or indirectly, engage in the production, sale or distribution
of any product produced, sold, distributed or which is in development by the
Company or its subsidiaries on the date hereof or during the Noncompete
Period anywhere in the world in which the Company or its subsidiaries is
doing business other than through the Management Stockholder's employment
with the Company or any of its subsidiaries. In the event that the Management
Stockholder's employment is terminated by the Management Stockholder for Good
Reason or by the Company without Cause, then the Company shall pay the
Management Stockholder an amount equal to 50% of such Management
Stockholder's base salary on the date of the termination of the Management
Stockholder's employment. At the Company's option, the Noncompete Period may
be extended for an additional one year period if (i) within nine months of
the termination of the Management Stockholder's employment, the Company gives
the Management Stockholder notice of such extension and (ii) beginning with
the first anniversary of such termination, the Company pays the Management
Stockholder an amount equal to 50% of the Management Stockholder's base
salary on the date of the termination of his employment. Each amount referred
to in the preceding two sentences shall be paid in installments in a manner
consistent with the then current salary payment policies of the Company;
provided that if at any time the Company
<PAGE>
22
elects, in its sole discretion, to waive further compliance by the Management
Stockholder with the requirements of this Section 26(a) (upon the Management
Stockholder securing alternate employment or otherwise), then the Company
shall be relieved of its obligation to pay the unpaid balance, if any, of
such amounts which is then owing to the Management Stockholder. For purposes
of this Agreement, the phrase "directly or indirectly engage in" shall
include any direct or indirect ownership or profit participation interest in
such enterprise, whether as an owner, stockholder, partner, joint venturer of
otherwise, and shall include any direct or indirect participation in such
enterprise as a consultant, licensor of technology or otherwise.
(b) The Management Stockholder will not disclose or use at any
time any Confidential Information (as defined below) of which the Management
Stockholder is or becomes aware, whether or not such information is developed
by him, except to the extent that such disclosure or use is directly related
to and required by the Management Stockholder's performance of duties, if
any, assigned to the Management Stockholder by the Company. As used in this
Agreement, the term "Confidential Information" means information that is not
generally known to the public and that is used, developed or obtained by the
Company or its subsidiaries in connection with its business, including but
not limited to (i) products or services, (ii) fees, costs and pricing
structures, (iii) designs, (iv) computer software, including operating
systems, applications and program listings, (v) flow charts, manuals and
documentation, (vi) data bases, (vii) accounting and business methods, (viii)
inventions, devices, new developments, methods and processes, whether
patentable or unpatentable and whether or not reduced to practice, (ix)
customers and clients and customer or client lists, (x) other copyrightable
works, (xi) all technology and trade secrets, and (xii) all similar and
related information in whatever form. Confidential Information will not
include any information that has been published in a form generally available
to the public prior to the date the Management Stockholder proposes to
disclose or use such information. The Management Stockholder acknowledges and
agrees that all copyrights, works, inventions, innovations, improvements,
developments, patents, trademarks and all similar or related information
which relate to the actual or anticipated business of the Company and its
subsidiaries (including its predecessors) and conceived, developed or made by
the Management Stockholder while employed by the Company or its subsidiaries
belong to the Company. The Management Stockholder will perform all actions
reasonably requested by the Company (whether during or after the Noncompete
Period) to establish and confirm such ownership at the Company's expense
(including without limitation assignments, consents, powers of attorney and
other instruments). If the Management Stockholder is bound by any other
agreement with the Company regarding the use or disclosure of confidential
information, the provisions of this Agreement shall be read in such a way as
to further restrict and not to permit any more extensive use or disclosure of
confidential information.
(c) Notwithstanding clauses (a) and (b) above, if at any time a
court holds that the restrictions stated in such clauses (a) and (b) are
unreasonable or otherwise unenforceable under circumstances then existing,
the parties hereto agree that the maximum period, scope or geographic area
determined to be reasonable under such circumstances by such court will be
substituted for the stated period, scope or area. Because the Management
Stockholder's services are unique and because the Management Stockholder has
had access to
<PAGE>
23
Confidential Information, the parties hereto agree that money damages will be
an inadequate remedy for any breach of this Agreement. In the event a breach
or threatened breach of this Agreement, the Company or its successors or
assigns may, in addition to other rights and remedies existing in their
favor, apply to any court of competent jurisdiction for specific performance
and/or injunctive relief in order to enforce, or prevent any violations of,
the provisions hereof (without the posting of a bond or other security).
<PAGE>
24
IN WITNESS WHEREOF, the Parties have executed this Agreement as
of the date first above written.
AMPHENOL CORPORATION
By: /s/ Edward C. Wetmore
---------------------------------
Name: Edward C. Wetmore
Title: Secretary and General Counsel
/s/ Martin Loeffler
------------------------------------
Martin Loeffler
------------------------------------
Management Stockholder
58 N. Star Drive
Southington, CT 05489
Address of Management Stockholder
<PAGE>
SCHEDULE I
Targeted Retained Number: 94,849
Actual Retained Number: 94,849
Number of Shares of Retained Stock: 94,849
Number of Shares of Purchase Stock: 0
Issued Stock: 0
Market Stock: 0
Aggregate Purchase Price: 0
<PAGE>
EXHIBIT A
Form of Non-Qualified Stock Option Agreement
<PAGE>
EXHIBIT 10.14
MANAGEMENT STOCKHOLDER'S AGREEMENT
This Management Stockholder's Agreement (this "Agreement") is
entered into as of May 19, 1997 between Amphenol Corporation, a Delaware
Corporation (the "Company"), and Edward Jepsen (the "Management Stockholder")
(the Company and the Management Stockholder being hereinafter collectively
referred to as the "Parties").
On January 23, 1997, NXS Acquisition Corp., a Delaware
corporation ("Newco"), and the Company entered into an Agreement and Plan of
Merger (the "Merger Agreement") pursuant to which Newco is to be merged with
and into the Company (the "Merger"). Pursuant to the Merger, stockholders of
the Company may elect to receive $26.00 per share in cash or to retain the
Company's Class A Common Stock, par value $.001 per share (the "Common
Stock"), in each case, subject to the effects of proration. In connection
with the Merger, certain key employees of the Company have agreed in
principle to retain a specified number of shares of Common Stock (such
specified number of shares, the "Targeted Retained Number").
This Agreement is one of several other agreements ("Other
Management Stockholders' Agreements") which have been, or which in the future
will be, entered into between the Company and other individuals who are or
will be key employees of the Company or one of its subsidiaries
(collectively, the "Other Management Stockholders").
The Company and the Management Stockholder have agreed in
principle that (i) if, after giving effect to proration, the actual number of
shares of Common Stock retained by such Management Stockholder (the "Actual
Retained Number") is higher than the Targeted Retained Number, then such
Management Stockholder will be permitted to sell a number of shares equal to
such difference, and (ii) if, after giving effect to proration, the Actual
Retained Number is less than the Targeted Retained Number, such Management
Stockholder will purchase a number of shares equal to such difference. The
shares of Common Stock retained by the Management Stockholder after giving
effect to any sale contemplated by the preceding clause (i) shall be referred
to herein as "Retained Stock." The shares of Common Stock purchased by the
Management Stockholder contemplated by the preceding clause (ii), if any,
shall be referred to herein as "Purchase Stock." Schedule I hereto sets
forth, for the Management Stockholder named above, the Targeted Retained
Number, the Actual Retained Number, the number of shares of Retained Stock,
the number of shares of Purchase Stock and, if the number of shares of
Purchase Stock is greater than zero, whether such shares are to be sold to
the Management Stockholder by the Company (any such shares referred to herein
as "Issued Stock") or purchased by the Management Stockholder on the New York
Stock Exchange (any such shares referred to herein as "Market Stock"). After
giving effect to the foregoing, the Management Stockholder shall own, in the
aggregate, a total number of shares of Common Stock equal to at least the
Targeted Retained Number. In addition, the Company will grant to the
Management Stockholder at or as soon as practicable after the effective time
of the Merger an option or options to purchase Common Stock ("Options") at an
exercise price of $26.00 per share of Common Stock pursuant to the terms of
the 1997
<PAGE>
2
Option Plan for Key Employees of Amphenol Corporation and Subsidiaries (the
"Option Plan") and the "Non-Qualified Stock Option Agreement" attached hereto
as Exhibit A.
NOW THEREFORE, to implement the foregoing and in consideration of
the grant of Options and of the mutual agreements contained herein, the
Parties agree as follows:
1. Common Stock; Issuance of Options.
(a) If the Actual Retained Number set forth on Schedule I hereto
is greater than the Targeted Retained Number, then the Management
Stockholder shall, after the Stockholders Meeting (as defined in the
Merger Agreement), be permitted to sell a number of shares equal to the
difference. Subject to the terms and conditions hereinafter set forth, if
the number of shares of Issued Stock set forth on Schedule I hereto is
greater than zero, then the Management Stockholder hereby subscribes for
and shall purchase, and the Company shall sell to the Management
Stockholder, such number of shares of Issued Stock at a purchase price per
share of $26.00 (for purposes hereof, such price shall be referred to as
the "Base Price") on the date of the Effective Time of the Merger (as
defined in the Merger Agreement) (the "Base Date") or, if not on the Base
Date, on such later date after the Effective Time of the Merger as may be
determined by the Company in consultation with the Management Stockholder
(the "Deferred Sale Date"). The Company shall have no obligation to sell
any Issued Stock to any person who (i) is a resident or citizen of a state
or other jurisdiction in which the sale of the Issued Stock to him or her
would constitute a violation of the securities or "blue sky" laws of such
jurisdiction or (ii) is not an employee of the Company or any of its
subsidiaries on the date hereof. If the number of shares of Market Stock
set forth on Schedule I hereto is greater than zero, then the Management
Stockholder shall promptly after the date of the Stockholders
Meeting purchase such number of shares of Market Stock on The New York
Stock Exchange.
(b) The aggregate price for the Issued Stock shall be the
amount set forth in Schedule I hereto (such amount hereinafter sometimes
referred to as the "Aggregate Purchase Price"). The Aggregate Purchase
Price shall be paid in the following manner: the Management Stockholder
shall deliver to the Company at least three business days prior to the
Base Date (or the Deferred Sale Date, if applicable) cash or a certified
bank check or checks payable to the order of the Company in the amount of
the Aggregate Purchase Price. On the Base Date (or the Deferred Sale Date,
if applicable), in consideration of receipt of the Aggregate Purchase
Price, the Company will deliver to the Management Stockholder a
certificate, registered in the Management Stockholder's name, for the
Issued Stock, which shall be subject to the terms and conditions
hereinafter set forth.
(c) Subject to the terms and conditions hereinafter set forth and
upon and as of May 19, 1997 (the "Option Grant Date"), the Company shall
issue to the Management Stockholder the Options and the Parties shall
execute and deliver to each other copies of the Non-Qualified Stock Option
Agreement concurrently with the issuance of the Options.
<PAGE>
3
2. Management Stockholder's Representations, Warranties and
Agreements.
(a) The Management Stockholder agrees and acknowledges that he
will not, directly or indirectly, offer, transfer, sell, assign, pledge,
hypothecate or otherwise dispose of (any such act being referred to herein as
a "transfer") any shares of the Purchase Stock, Retained Stock and, at the
time of exercise, the Common Stock issuable upon exercise of the Options (the
"Option Stock" and collectively with Retained Stock and Purchase Stock, the
"Stock") unless such transfer complies with Section 3 of this Agreement. If
the Management Stockholder is an "affiliate" (as defined under Rule 405 of
the rules and regulations promulgated under the Act and as interpreted by the
Board of Directors of the Company) of the Company (an "Affiliate"), the
Management Stockholder also agrees and acknowledges that he will not transfer
any shares of the Stock unless (i) the transfer is pursuant to an effective
registration statement under the Securities Act of 1933, as amended, and the
rules and regulations in effect thereunder (the "Act"), and in compliance
with applicable provisions of state securities laws or (ii) (A) counsel for
the Management Stockholder (which counsel shall be reasonably acceptable to
the Company) shall have furnished the Company with an opinion, satisfactory
in form and substance to the Company, that no such registration is required
because of the availability of an exemption from registration under the Act
and (B) if the Management Stockholder is a citizen or resident of any country
other than the United States, or the Management Stockholder desires to effect
any transfer in any such country, counsel for the Management Stockholder
(which counsel shall be reasonably satisfactory to the Company) shall have
furnished the Company with an opinion or other advice reasonably satisfactory
in form and substance to the Company to the effect that such transfer will
comply with the securities laws of such jurisdiction. Notwithstanding the
foregoing, the Company acknowledges and agrees that any of the following
transfers are deemed to be in compliance with the Act and this Agreement and
no opinion of counsel is required in connection therewith: (x) a transfer
made pursuant to Section 4, 5 or 6 hereof, (y) a transfer upon the death of
the Management Stockholder to his executors, administrators, testamentary
trustees, legatees or beneficiaries (the "Management Stockholder's Estate")
or a transfer to the executors, administrators, testamentary trustees,
legatees or beneficiaries of a person who has become a holder of Stock in
accordance with the terms of this Agreement, provided that it is expressly
understood that any such transferee shall be bound by the provisions of this
Agreement and (z) a transfer made after the Base Date in compliance with the
federal securities laws to a trust or custodianship the beneficiaries of
which may include only the Management Stockholder, his spouse or his lineal
descendants (a "Management Stockholder's Trust") or a transfer made after the
third anniversary of the Base Date to such a trust by a person who has become
a holder of Stock in accordance with the terms of this Agreement, provided
that such transfer is made expressly subject to this Agreement and that the
transferee agrees in writing to be bound by the terms and conditions hereof.
(b) The certificate (or certificates) representing
the Stock shall
bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT
BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR
<PAGE>
4
OTHERWISE DISPOSED OF UNLESS SUCH TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE
PROVISIONS OF THE MANAGEMENT STOCKHOLDER'S AGREEMENT DATED AS
OF MAY 19, 1997 BETWEEN AMPHENOL CORPORATION ("THE COMPANY")
AND THE MANAGEMENT STOCKHOLDER NAMED ON
THE FACE HEREOF (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF
THE COMPANY)."
(c) The Management Stockholder acknowledges that he has been
advised that (i) the Issued Stock, if any, has been registered on Form S-8
under the Act, (ii) a restrictive legend in the form heretofore set forth
shall be placed on the certificates representing the Stock and (iii) a
notation shall be made in the appropriate records of the Company indicating
that the Stock is subject to restrictions on transfer and appropriate stop
transfer restrictions will be issued to the Company's transfer agent with
respect to the Stock. If the Management Stockholder is an Affiliate, the
Management Stockholder also acknowledges that (1) the Stock must be held
indefinitely and the Management Stockholder must continue to bear the
economic risk of the investment in the Stock unless it is subsequently
registered under the Act or an exemption from such registration is available,
(2) when and if shares of the Stock may be disposed of without registration
in reliance on Rule 144 of the rules and regulations promulgated under the
Act, such disposition can be made only in limited amounts in accordance with
the terms and conditions of such Rule and (3) if the Rule 144 exemption is
not available, public sale without registration will require compliance with
some other exemption under the Act.
(d) If any shares of the Stock are to be disposed of in
accordance with Rule 144 under the Act or otherwise, the Management
Stockholder shall promptly notify the Company of such intended disposition
and shall deliver to the Company at or prior to the time of such disposition
such documentation as the Company may reasonably request in connection with
such sale and, in the case of a disposition pursuant to Rule 144, shall
deliver to the Company an executed copy of any notice on Form 144 required to
be filed with the Securities and Exchange Commission (the "SEC").
(e) The Management Stockholder agrees that, if any shares of the
capital stock of the Company are offered to the public pursuant to an
effective registration statement under the Act (other than registration of
securities issued under an employee plan), the Management Stockholder will
not effect any public sale or distribution of any shares of the Stock not
covered by such registration statement from the time of the receipt of a
notice from the Company that the Company has filed or imminently intends to
file such registration statement to, or within 180 days after, the effective
date of such registration statement, unless otherwise agreed to in writing by
the Company.
(f) The Management Stockholder represents and warrants that (i)
with respect to Issued Stock, if any, he has received and reviewed the
document(s) comprising the Prospectus (the "Prospectus") relating to Issued
Stock, if any, and the documents referred to therein, certain of which
documents set forth the rights, preferences and restrictions relating to
<PAGE>
5
the Stock and (ii) he has been given the opportunity to obtain any additional
information or documents and to ask questions and receive answers about such
documents, the Company and the business and prospects of the Company which he
deems necessary to evaluate the merits and risks related to his investment in
the Issued Stock, if any, and to verify the information contained in the
Prospectus and the information received as indicated in this Section
2(f)(ii), and he has relied solely on such information.
(g) The Management Stockholder further represents and warrants
that (i) his financial condition is such that he can afford to bear the
economic risk of holding the Issued Stock, if any, for an indefinite period
of time and has adequate means for providing for his current needs and
personal contingencies, (ii) he can afford to suffer a complete loss of his
or her investment in the Issued Stock, if any, (iii) he understands and has
taken cognizance of all risk factors related to the purchase of the Issued
Stock, if any, including those set forth in the Prospectus referred to above,
and (iv) his knowledge and experience in financial and business matters are
such that he is capable of evaluating the merits and risks of his purchase of
the Issued Stock, if any, as contemplated by this Agreement.
3. Restriction on Transfer.
Except for transfers permitted by clauses (x), (y) and (z) of
Section 2(a) or a sale of shares of Stock pursuant to an effective
registration statement under the Act filed by the Company or pursuant to the
Sale Participation Agreement (as defined below), the Management Stockholder
agrees that he will not transfer any shares of the Stock at any time prior to
the fifth anniversary of the Base Date. No transfer of any such shares in
violation hereof shall be made or recorded on the books of the Company and
any such transfer shall be void and of no effect.
4. Right of First Refusal.
If at any time after the fifth anniversary of the Base Date and
prior to a Public Offering (as hereinafter defined) the Management
Stockholder receives a bona fide offer to purchase any or all of his shares
of Stock (the "Offer") from a third party (the "Offeror") which the
Management Stockholder wishes to accept, the Management Stockholder shall
cause the Offer to be reduced to writing and shall notify the Company in
writing of his wish to accept the Offer. The Management Stockholder's notice
shall contain an irrevocable offer to sell such shares of Stock to the
Company (in the manner set forth below) at a purchase price equal to the
price contained in, and on the same terms and conditions of, the Offer, and
shall be accompanied by a true copy of the Offer (which shall identify the
Offeror). At any time within 30 days after the date of the receipt by the
Company of the Management Stockholder's notice, the Company shall have the
right and option to purchase, or to arrange for a third party to purchase,
all of the shares of Stock covered by the Offer either (i) at the same price
and on the same terms and conditions as the Offer or (ii) if the Offer
includes any consideration other than cash, then at the sole option of the
Company, at the equivalent all cash price, determined in good faith by the
Company's Board of Directors, by delivering a certified bank check or checks
in the appropriate amount (and any such non-cash consideration to be paid) to
the Management Stockholder at the principal office of the
<PAGE>
6
Company against delivery of certificates or other instruments representing
the shares of Stock so purchased, appropriately endorsed by the Management
Stockholder. If at the end of such 30 day period, the Company has not
tendered the purchase price for such shares in the manner set forth above,
the Management Stockholder may during the succeeding 30 day period sell not
less than all of the shares of Stock covered by the Offer to the Offeror at a
price and on terms no less favorable to the Management Stockholder than those
contained in the Offer. Promptly after such sale, the Management Stockholder
shall notify the Company of the consummation thereof and shall furnish such
evidence of the completion and time of completion of such sale and of the
terms thereof as may reasonably be requested by the Company. If, at the end
of 30 days following the expiration of the 30 day period for the Company to
purchase the Stock, the Management Stockholder has not completed the sale of
such shares of the Stock as aforesaid, all the restrictions on sale, transfer
or assignment contained in this Agreement shall again be in effect with
respect to such shares of the Stock.
5. Management Stockholder's Resale of Stock and Options to the
Company Upon The Management Stockholder's Death or Disability
or in Case of Certain Terminations of Employment.
(a) Except as otherwise provided herein, if, prior to the fifth
anniversary of the Base Date, (i) the Management Stockholder is still in the
employ of the Company or any subsidiary of the Company, or has retired from
the Company and its subsidiaries at age 65 or over (or such other age as may
be approved by the Board of Directors of the Company) after having been
employed by the Company or any subsidiary for at least three years after the
Base Date, and (ii) the Management Stockholder either dies or becomes
permanently disabled then the Management Stockholder, the Management
Stockholder's Estate or a Management Stockholder's Trust, as the case may be,
shall have the right, for six months following the date of death or permanent
disability, (A) to sell to the Company, and the Company shall be required to
purchase, on one occasion, all or any portion of the shares of Stock then
held by the Management Stockholder, the Management Stockholder's Estate
and/or the Management Stockholder's Trust, as the case may be, at the Section
5(a) Repurchase Price, as determined in accordance with Section 7, and (B) to
require the Company to pay to the Management Stockholder or the Management
Stockholder's Estate or the Management Stockholder's Trust, as the case may
be, an additional amount equal to the Option Excess Price determined on the
basis of a Section 5(a) Repurchase Price as provided in Section 8 with
respect to the termination of outstanding Options held by the Management
Stockholder.
(b) Except as otherwise provided herein, if the Management
Stockholder's employment with the Company is terminated by the Company
without Cause (as hereinafter defined) or by the Management Stockholder for
Good Reason (as hereinafter defined) and, at such time, the Common Stock is
not admitted to trading on any national securities exchange or the NASDAQ
Stock Market, then the Management Stockholder (or in the event of the
Management Stockholder's death, the Management Stockholder's Estate) or a
Management Stockholder's Trust, as the case may be, shall have the right, for
30 days following the date of termination, to sell to the Company, and the
Company shall be required to purchase, on one occasion, all or any portion of
the Retained Stock and any Issued Stock (other than any shares acquired upon
the exercise of Options) or Market Stock (collectively, the "Initial
<PAGE>
7
Stock") at the Section 5(b) Repurchase Price, as determined in accordance
with Section 7, provided, that such right shall apply only to the actual
shares of Common Stock constituting the Initial Stock pursuant to this
Agreement, and shall not include any other shares of Common Stock, however
acquired. If the Management Stockholder or the Management Stockholder's
Trust, as the case may be, exercises the put rights granted under this
Section 5(b), then (i) the Options (whether or not then exercisable) held by
the Management Stockholder or the Management Stockholder's Trust, as the case
may be, will terminate immediately without payment therefor, (ii) any Option
Stock acquired prior to the date of the termination of employment may be
retained and (iii) the exercise of any Options after the date of the
termination of employment and prior to the exercise of the put rights
pursuant to this Section 5(b) shall be deemed to be rescinded, and any Option
Stock so acquired shall be delivered to the Company in return for the
applicable exercise price paid therefor.
(c) The Management Stockholder, the Management Stockholder's
Estate and/or the Management Stockholder's Trust, as the case may be, shall
send written notice to the Company of its intention to sell shares of Stock
in exchange for the payment referred in Sections 5(a) and 5(b) above and to
terminate such Options (either (i) in the case of Section 5(a), in exchange
for the payment referred to in Section 5(a) or (ii) in the case of Section
5(b), without payment therefor) (the "Redemption Notice"). The completion of
the purchase shall take place at the principal office of the Company on the
tenth business day after the giving of the Redemption Notice. The applicable
Repurchase Price and any payment with respect to the Options as described
above shall be paid by delivery to the Management Stockholder, the Management
Stockholder's Estate or the Management Stockholder's Trust, as the case may
be, of a certified bank check or checks in the appropriate amount payable to
the order of the Management Stockholder, the Management Stockholder's Estate
or the Management Stockholder's Trust, as the case may be, against delivery
of certificates or other instruments representing the Stock so purchased and
appropriate documents cancelling the Options so terminated appropriately
endorsed or executed by the Management Stockholder, the Management
Stockholder's Estate or the Management Stockholder's Trust, or his, her or
its duly authorized representative. For purposes of this Agreement, the
Management Stockholder shall be deemed to have a "permanent disability" if
the Management Stockholder is unable to engage in the activities required by
the Management Stockholder's job by reason of any medically determined
physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not
less than 12 months.
(d) Notwithstanding anything in Section 5(a) or Section 5(b) to
the contrary and subject to Section 11, if there exists and is continuing a
default or an event of default on the part of the Company or any subsidiary
of the Company under any loan, guarantee or other agreement under which the
Company or any subsidiary of the Company has borrowed money or if the
repurchase referred to in Section 5(a) or Section 5(b) would result in a
default or an event of default on the part of the Company or any subsidiary
of the Company under any such agreement or if a repurchase would not be
permitted under the Delaware General Corporation Law (the "DGCL") or would
otherwise violate the DGCL (or if the Company reincorporates in another
state, the business corporation law of such state) (each such occurrence
being an "Event"), the Company shall not be obligated to repurchase any of the
<PAGE>
8
Stock or the Options from the Management Stockholder, the Management
Stockholder's Estate or a Management Stockholder's Trust, as the case may be,
until the first business day which is 10 calendar days after all of the
foregoing Events have ceased to exist (the "Repurchase Eligibility Date");
provided, however, that (i) the number of shares of Stock subject to
repurchase under this Section 5(d) shall be that number of shares of Stock,
and (ii) in the case of a repurchase pursuant to Section 5(a), the number of
Exercisable Option Shares (as defined in Section 8) for purposes of
calculating the Option Excess Price payable under this Section 5(d) shall be
the number of Exercisable Option Shares, held by the Management Stockholder,
the Management Stockholder's Estate or a Management Stockholder's Trust, as
the case may be, at the time of delivery of a Redemption Notice in accordance
with Section 5(c) hereof; provided, further, that the Repurchase Calculation
Date shall be determined in accordance with Section 7 as of the Repurchase
Eligibility Date (unless, in a repurchase pursuant to Section 5(a), the
Section 5(a) Repurchase Price would be greater if the Repurchase Calculation
Date had been determined as if no Event had occurred in which case, solely
for purposes of this proviso, the Repurchase Calculation Date shall be
determined as if no Event had occurred). All Options exercisable as of the
date of a Redemption Notice, in the case of a repurchase pursuant to Section
5(a), shall continue to be exercisable until the repurchase pursuant to such
Redemption Notice, provided that to the extent any Options are exercised
after the date of such Redemption Notice, the number of Exercisable Option
Shares for purposes of calculating the Option Excess Price shall be reduced
accordingly.
(e) Notwithstanding any other provision of this Section 5 to the
contrary and subject to Section 11, the Management Stockholder, the
Management Stockholder's Estate or a Management Stockholder's Trust, as the
case may be, shall have the right to withdraw any Redemption Notice which has
been pending for 60 or more days and which has remained unsatisfied because
of the provisions of Section 5(d).
6. The Company's Option to Repurchase Stock and
Options of Management Stockholder.
(a) If, on or prior to the fifth anniversary of the Base Date,
(i) the Management Stockholder's active employment with the Company (and/or,
if applicable, its subsidiaries) is terminated by the Company with Cause or
by the Management Stockholder without Good Reason, (ii) the beneficiaries of
a Management Stockholder's Trust shall include any person or entity other
than the Management Stockholder, his spouse or his lineal descendants, or
(iii) the Management Stockholder shall effect a transfer of any of the Stock
other than as permitted in this Agreement (each, a "Section 6(a) Call
Event"), then the Company shall have the right to purchase all, but not less
than all, of the shares of the Stock then held by the Management Stockholder
or a Management Stockholder's Trust at the Section 6(a) Repurchase Price
determined in accordance with Section 7 hereof. If any Section 6(a) Call
Event has occurred, then, whether or not the Company exercises the call
rights granted under this Section 6(a), the Options (whether or not then
exercisable) held by the Management Stockholder or the Management
Stockholder's Trust, as the case may be, will terminate immediately without
payment therefor.
<PAGE>
9
(b) If, on or prior to the fifth anniversary of the Base Date,
the Management Stockholder's employment is terminated as a result of the
death or permanent disability of the Management Stockholder or if the
Management Stockholder dies or becomes permanently disabled after the
retirement of the Management Stockholder from the Company or any of its
subsidiaries at age 65 or over (or such other age as may be approved by the
Board of Directors of the Company) after having been employed by the Company
or any subsidiary for at least three years after the Base Date, (each a
"Section 6(b) Call Event"), then the Company shall have the right to purchase
all, but not less than all, of the shares of Stock then held by the
Management Stockholder, the Management Stockholder's Estate or a Management
Stockholder's Trust at the Section 5(a) Repurchase Price.
(c) If, on or prior to the fifth anniversary of the Base Date,
the Management Stockholder's employment is terminated as a result of a
termination by the Management Stockholder with Good Reason or upon the
retirement of the Management Stockholder from the Company or any of its
subsidiaries at age 65 or over (or such other age as may be approved by the
Board of Directors of the Company) after having been employed by the Company
or any subsidiary for at least three years after the Base Date, or by the
Company without Cause (each a "Section 6(c) Call Event" and together with
Section 6(a) Call Events and Section 6(b) Call Events, "Call Events"), then
the Company shall have the right to purchase all, but not less than all, of
the shares of Stock then held by the Management Stockholder or a Management
Stockholder's Trust at the Section 6(c) Repurchase Price.
(d) The Company shall have a period of 75 days from the date of a
Call Event in which to give notice in writing to the Management Stockholder
of the exercise of such election ("Call Notice"). In the event that the
Company exercises its right to repurchase shares of Stock pursuant to Section
6(b) or Section 6(c), the Company shall also pay the Management Stockholder
an amount equal to the Option Excess Price determined on the basis of the
Section 5(a) Repurchase Price or Section 6(c) Repurchase Price, respectively,
as provided in Section 8, with respect to the termination of outstanding
Options held by the Management Stockholder.
(e) The completion of the purchases pursuant to the foregoing
shall take place at the principal office of the Company on the tenth business
day after the giving of notice of the exercise of the option to purchase. The
applicable Repurchase Price and any payment with respect to the Options as
described in Sections 6(d) above shall be paid by delivery to the Management
Stockholder, the Management Stockholder's Estate or a Management
Stockholder's Trust, as the case may be, of a certified bank check or checks
in the appropriate amount payable to the order of the Management Stockholder,
the Management Stockholder's Estate or a Management Stockholder's Trust, as
the case may be, against delivery of certificates or other instruments
representing the Stock so purchased and appropriate documents cancelling the
Options so terminated, appropriately endorsed or executed by the Management
Stockholder, the Management Stockholder's Estate or a Management Stockholders
Trust or his, her or its authorized representative.
(f) Notwithstanding any other provision of this Section 6 to the
contrary and subject to Section 11, if there exists and is continuing any
Event, the Company shall
<PAGE>
10
delay the repurchase of any of the Stock or the Options (pursuant to a Call
Notice timely given in accordance with Section 6(d) hereof) from the
Management Stockholder, the Management Stockholder's Estate or a Management
Stockholder's Trust, as the case may be, until the Repurchase Eligibility
Date; provided, however, that (i) the number of shares of Stock subject to
repurchase under this Section 6(f) shall be that number of shares of Stock
and (ii) in the case of a repurchase pursuant to Section 6(b) or Section
6(c), the number of Exercisable Option Shares for purposes of calculating the
Option Excess Price payable under this Section 6(f) shall be the number of
Exercisable Option Shares held by the Management Stockholder, the Management
Stockholder's Estate or a Management Stockholder's Trust, as the case may be,
at the time of delivery of a Call Notice in accordance with Section 6(d)
hereof; and provided, further, that the Repurchase Calculation Date shall be
determined in accordance with Section 7 based on the Repurchase Eligibility
Date (unless (x) in the case of a Section 6(b) Call Event or a Section 6(c)
Call Event, the applicable Repurchase Price would be greater if the
Repurchase Calculation Date had been determined as if no Event had occurred,
in which case the Repurchase Calculation Date shall be determined as if no
Event had occurred, and (y) in the case of a Section 6(a) Call Event, the
applicable Repurchase Price would be less if the Repurchase Calculation Date
had been determined as if no Event had occurred, in which case the Repurchase
Calculation Date shall be determined as if no Event had occurred). All
Options exercisable as of the date of a Call Notice, in the case of a
repurchase pursuant to Section 6(b) or Section 6(c), shall continue to be
exercisable until the repurchase pursuant to such Call Notice, provided that
to the extent that any Options are exercised after the date of such Call
Notice, the number of Exercisable Option Shares for purposes of calculating
the Option Excess Price shall be reduced accordingly.
7. Determination of Repurchase Price.
(a) The Section 5(a) Repurchase Price, Section 5(b) Repurchase
Price, Section 6(a) Repurchase Price and the Section 6(c) Repurchase Price
are hereinafter collectively referred to as the "Repurchase Price." The
Repurchase Price shall be calculated on the basis of the unaudited financial
statements of the Company or the Market Price Per Share (as defined in
Section 7(j)) as of the last day of the month preceding the later of (i) the
month in which the event giving rise to the repurchase occurs and (ii) the
month in which the Repurchase Eligibility Date occurs (hereinafter called the
"Repurchase Calculation Date"). The event giving rise to the repurchase shall
be the death, permanent disability, retirement or termination of employment,
as the case may be, of the Management Stockholder, not the giving of any
notice required pursuant to Section 5 or 6.
(b) The Section 5(a) Repurchase Price shall be a per share
Repurchase Price equal to the Base Price, provided that if the Book Value Per
Share (as defined in Section 7(h)) (or, after a Public Offering, the Market
Price Per Share) as of the Repurchase Calculation Date is greater than the
Base Price, then the Section 5(a) Repurchase Price shall be equal to the Base
Price plus the amount by which the Book Value Per Share (or, after a Public
Offering, the Market Price Per Share) as of the Repurchase Calculation Date
exceeds the Base Price.
<PAGE>
11
(c) The Section 5(b) Repurchase Price shall be a per share
Repurchase Price equal to the Base Price, provided that if the Book Value Per
Share as of the Repurchase Calculation Date is less than the Base Price, then
the Section 5(b) Repurchase Price shall be equal to the Base Price less the
amount by which the Base Price exceeds the Book Value Per Share as of the
Repurchase Calculation Date (but shall not be less than zero).
(d) The Section 6(a) Repurchase Price shall be a per share
Repurchase Price equal to the least of (i) after a Public Offering, the
Market Price Per Share, (ii) if the Book Value Per Share as of the Repurchase
Calculation Date is less than the Base Price, the Base Price less the amount
by which the Base Price exceeds Book Value Per Share as of the Repurchase
Calculation Date (but shall not be less than zero), and (iii) if the Book
Value Per Share as of the Repurchase Calculation Date exceeds the Base Price,
the Base Price plus (x) the Percentage (as defined below) multiplied by (y)
the amount by which the Book Value Per Share as of the Repurchase Calculation
Date exceeds the Base Price.
(e) The Section 6(c) Repurchase Price shall be a per share
Repurchase Price equal to the Base Price, provided (x) if the Book Value Per
Share (or, after a Public Offering, the Market Price Per Share) as of the
Repurchase Calculation Date is less than the Base Price, then the Section
6(c) Repurchase Price shall equal the Base Price less the amount by which the
Base Price exceeds Book Value Per Share (or, after a Public Offering, the
Market Price Per Share) as of the Repurchase Calculation Date, and (y) if the
Book Value Per Share (or, after a Public Offering, the Market Price Per
Share) as of the Repurchase Calculation Date is greater than the Base Price,
then the Section 6(c) Repurchase Price shall equal the Base Price plus the
amount by which the Book Value Per Share (or, after a Public Offering, the
Market Price Per Share) as of the Repurchase Calculation Date exceeds the
Base Price, as the case may be.
(f) For purposes of this Agreement the following definitions
shall apply: "Cause" shall mean (i) the Management Stockholder's willful and
continued failure to perform Management Stockholder's duties with respect to
the Company or its subsidiaries which continues beyond ten days after a
written demand for substantial performance is delivered to Management
Stockholder by the Company or (ii) misconduct by Management Stockholder
involving (x) dishonesty or breach of trust in connection with Management
Stockholder's employment or (y) conduct which would be a reasonable basis for
an indictment of Management Stockholder for a felony or for a misdemeanor
involving moral turpitude or (z) which results in a demonstrable injury to
the Company; and "Good Reason" shall mean (i) a reduction in Management
Stockholder's base salary (other than a broad based salary reduction program
affecting many members of management), (ii) a substantial reduction in
Management Stockholder's duties and responsibilities other than as approved
by the Chief Executive Officer of the Company as of the date of this
Agreement, (iii) the elimination or reduction of the Management Stockholder's
eligibility to participate in the Company's benefit programs that is
inconsistent with the eligibility of similarly situated employees of the
Company to participate therein, or (iv) a transfer of the Management
Stockholder's primary workplace by more than fifty (50) miles from the
workplace as of the date hereof.
<PAGE>
12
(g) For purposes of this Agreement, the "Percentage"
shall be determined as follows:
Repurchase Calculation Date Percentage
- --------------------------- ----------
Base Date through and including the first anniversary of the 0%
Base Date
After the first anniversary of the Base Date through and 20%
including the second anniversary of the Base Date
After the second anniversary of the Base Date through and 40%
including the third anniversary of the Base Date
After the third anniversary of the Base Date through and 60%
including the fourth anniversary of the Base Date
After the fourth anniversary of the Base Date through and 80%
including the fifth anniversary of the Base Date
After the fifth anniversary of the Base Date 100%
(h) As used herein, "Book Value Per Share" shall be the quotient
of (a) (i) $455,440,830 plus (ii) the aggregate net income of the Company
from and after the date of the Effective Time of the Merger (as decreased by
any net losses from and after the date of the Effective Time of the Merger)
excluding any one time costs and expenses charged to income associated with
the Merger and any related transactions plus (iii) the aggregate dollar
amount contributed to (or credited to common stockholders' equity of) the
Company after the date of the Effective Time of the Merger as equity of the
Company (including consideration to be received upon exercise of the Options
and other stock equivalents) plus (iv) to the extent reflected as deductions
to Book Value Per Share in clause (ii) above, or minus, to the extent
reflected as additions to Book Value Per Share in clause (ii) above, unusual
or other items recognized by the Company (including, without limitation, one
time or accelerated write-offs of good will), in each case, if and to the
extent determined in the sole discretion of the Board of Directors of the
Company, minus, (v) the aggregate dollar amount of any dividends paid by the
Company after the date of the Effective Time of the Merger, divided by (b)
the sum of the number of shares of Common Stock then outstanding and the
number of shares of Common Stock issuable upon the exercise of all
outstanding stock options and other rights to acquire Common Stock and the
conversion of all securities convertible into shares of Common Stock. The
items referred to in the calculations set forth in clauses (a)(ii), (a)(iii),
(a)(iv) and (a)(v) of the immediately preceding sentence shall be determined
in accordance with generally accepted accounting principles applied on a
basis consistent with any prior periods as reflected in the consolidated
financial statements of the Company.
(i) As used herein the term "Public Offering" shall mean the sale
of shares of Common Stock to the public subsequent to the date hereof
pursuant to a registration statement under the Act which has been declared
effective by the SEC (other than a registration statement on Form S-8 or any
other similar form) which results in an active
<PAGE>
13
trading market in 35% or more of the Common Stock. A "Qualified Public
Offering" shall mean a Public Offering pursuant to an effective registration
statement relating to the sale of shares of the Common Stock held by KKR 1996
Fund L.P., a Delaware limited partnership (the "Partnership") or NXS
Associates, L.P., a Delaware limited partnership, or their respective
affiliates; provided, however, that a "Qualified Public Offering" shall be
deemed to have occurred if there has been any Public Offering and there
exists an active trading market in 40% or more of the Common Stock.
(j) As used herein, the term "Market Price Per Share" shall mean
the price per share equal to the average of the last sale price of the Common
Stock on the Repurchase Calculation Date on each exchange on which the Common
Stock may at the time be listed or, if there shall have been no sales on any
of such exchanges on the Repurchase Calculation Date, the average of the
closing bid and asked prices on each such exchange at the end of the
Repurchase Calculation Date or if there is no such bid and asked price on the
Repurchase Calculation Date on the next preceding date when such bid and
asked price occurred or, if the Common Stock shall not be so listed, the
average of the closing sales prices as reported by NASDAQ at the end of the
Repurchase Calculation Date in the over-the-counter market. If the Common
Stock is not so listed or reported by NASDAQ, then the Market Price Per Share
shall be the Book Value Per Share.
(k) In determining the Repurchase Price, appropriate adjustments
shall be made for any stock dividends, splits, combinations,
recapitalizations or any other adjustment in the number of outstanding shares
of Common Stock in order to maintain, as nearly as practicable, the intended
operation of the provisions of this Section 7.
8. Stock Issued to Management Stockholder Upon
Exercise of Stock Options; Termination of Options.
(a) The Company may from time to time grant to the Management
Stockholder, in addition to the Options, options under the Option Plan to
purchase shares of Common Stock at the Base Price or at a different option
exercise price. The term "Issued Stock" as used in this Agreement shall
include all shares of Common Stock of the Company purchased by the Management
Stockholder pursuant to this Agreement and issued to the Management
Stockholder by the Company upon exercise of the Options and of any other
stock options held by the Management Stockholder.
(b) In the case of an exercise of the put or call rights
described above in Sections 5(b) or 6(a), respectively, all outstanding
Options of the Management Stockholder (whether or not then exercisable) will
be automatically terminated without payment therefor. In the case of an
exercise of the put rights described above in Section 5(a) or of the call
rights described above in Sections 6(b) or 6(c), all outstanding Options
granted to the Management Stockholder under the Option Plan or otherwise,
whether or not then exercisable, will be automatically terminated upon the
payment by the Company to the Management Stockholder, pursuant to the
provisions of Sections 5(a) or 6(d) of this Agreement, as the case may be, of
an amount equal to the Option Excess Price. If the Option Excess Price is
zero or a negative number, all outstanding stock options granted to the
Management Stockholder
<PAGE>
14
under the Option Plan or otherwise, whether or not then exercisable, shall be
automatically terminated upon the repurchase of Stock as provided in Sections
5(a), 6(b) or 6(c). With respect to each Option, the Option Excess Price is
the excess, if any, of the Section 5(a) Repurchase Price or the Section 6(c)
Repurchase Price, depending on which Repurchase Price is being used to
repurchase the remainder of the Stock, over the Option Exercise Price (as
defined in the Non-Qualified Option Agreement), multiplied by the number of
Exercisable Option Shares thereunder. For purposes hereof, "Exercisable
Option Shares" shall mean the shares of Common Stock which, at the time of
determination of the Option Excess Price could be purchased by the Management
Stockholder upon exercise of his or her outstanding options. The Company will
use its reasonable best efforts to cause a Registration Statement on Form S-8
covering shares of Issued Stock contemplated hereby to be filed within six
months of the date hereof.
9. The Company's Representations and Warranties.
(a) The Company represents and warrants to the Management
Stockholder that (i) this Agreement has been duly authorized, executed and
delivered by the Company and (ii) the Issued Stock, when issued and delivered
in accordance with the terms hereof, will be duly and validly issued, fully
paid and nonassessable.
(b) The Company will file the reports required to be filed by it
under the Act and the Exchange Act and the rules and regulations adopted by
the SEC thereunder, to the extent required from time to time to enable the
Management Stockholder to sell shares of Stock without registration under the
Act within the limitations of the exemptions provided by (A) Rule 144 under
the Act, as such Rule may be amended from time to time, or (B) any similar
rule or regulation hereafter adopted by the SEC. Notwithstanding anything
contained in this Section 9(b), the Company may de-register under Section 12
of the Exchange Act if it is then 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 under the Act to be
available. Nothing in this Section 9(b) shall be deemed to limit in any
manner the restrictions on sales of Stock contained in this Agreement.
10. "Piggyback" Registration Rights.
(a) Effective upon the date of this Agreement, until the later of
(i) the first occurrence of a Qualified Public Offering (as defined in
Section 7(i) above) or (ii) the fifth anniversary of the Base Date, the
Management Stockholder hereby agrees to be bound by all of the terms,
conditions and obligations of the Registration Rights Agreement dated as of
May 19, among the Company (as successor by Merger to Newco), KKR 1996 Fund
L.P., NXS Associates, L.P. KKR Partners II, L.P. and NXS I, L.L.C. (the
"Registration Rights Agreement") and, in the case of a Qualified Public
Offering and subject to the limitations set forth in this Section 10, shall
have all of the rights and privileges of the Registration Rights Agreement,
in each case as if the Management Stockholder were an original party (other
than the Company) thereto; provided, however, that the Management Stockholder
shall not have any rights to request registration under Section 3 of the
Registration Rights Agreement; and
<PAGE>
15
provided further, that the Management Stockholder shall not be bound by any
amendments to the Registration Rights Agreement unless the Management
Stockholder consents thereto. Notwithstanding anything to the contrary
contained in the Registration Rights Agreement, the Management Stockholder's
rights and obligations under the Registration Rights Agreement shall be
subject to the limitations and additional obligations set forth in this
Section 10. All Stock purchased or held by the Management Stockholder, the
Management Stockholder's Estate or the Management Stockholder's Trust
pursuant to this Agreement shall be deemed to be Registrable Securities as
defined in the Registration Rights Agreement.
(b) The Company will promptly notify the Management Stockholder
in writing (a "Notice") of any proposed registration (a "Proposed
Registration") in connection with a Qualified Public Offering. If within 15
days of the receipt by the Management Stockholder of such Notice, the Company
receives from the Management Stockholder, the Management Stockholder's Estate
or the Management Stockholder's Trust a written request (a "Request") to
register shares of Stock held by the Management Stockholder, the Management
Stockholder's Estate or the Management Stockholder's Trust (which Request
will be irrevocable unless otherwise mutually agreed to in writing by the
Management Stockholder and the Company), shares of Stock will be so
registered as provided in this Section 10; provided, however, that for each
such registration statement only one Request, which shall be executed by the
Management Stockholder, the Management Stockholder's Estate or the Management
Stockholder's Trust, as the case may be, may be submitted for all Registrable
Securities held by the Management Stockholder, the Management Stockholder's
Estate and the Management Stockholder's Trust.
(c) The maximum number of shares of Stock which will be
registered pursuant to a Request will be the lowest of (i) the number of
shares of Stock then held by the Management Stockholder (which for purposes
of this subparagraph (c) shall include shares held by the Management
Stockholder's Estate or a Management Stockholder's Trust), including all
shares of Stock which the Management Stockholder is then entitled to acquire
under an unexercised Option to the extent then exercisable or (ii) the
maximum number of shares of Stock which the Company can register in the
Proposed Registration without adverse effect on the offering in the view of
the managing underwriters (reduced pro rata with all Other Management
Stockholders) as more fully described in subsection (d) of this Section 10 or
(iii) the maximum number of shares which the Management Stockholder (pro rata
based upon the aggregate number of shares of Common Stock the Management
Stockholder and all Other Management Stockholders have requested be
registered) and all Other Management Stockholders are permitted to register
under the Registration Rights Agreement.
(d) If a Proposed Registration involves an underwritten offering
and the managing underwriter advises the Company in writing that, in its
opinion, the number of shares of Stock requested to be included in the
Proposed 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 shares of Stock offered in such Qualified Public Offering
as contemplated by the Company, then the Company will include in the Proposed
Registration (i) first, 100% of the shares of Stock the Company proposes to
sell and (ii) second, to the extent of the number of shares of Stock
requested to be included in such registration which,
<PAGE>
16
in the opinion of such managing underwriter, can be sold without having the
adverse effect referred to above, the number of shares of Stock which the
"Holders" (as defined in the Registration Rights Agreement), including,
without limitation, the Management Stockholder and Other Management
Stockholders have requested to be included in the Proposed Registration, such
amount to be allocated pro rata among all requesting Holders on the basis of
the relative number of shares of Stock 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).
(e) Upon delivering a Request the Management Stockholder will, if
requested by the Company, execute and deliver a custody agreement and power
of attorney in form and substance satisfactory to the Company with respect to
the shares of Stock to be registered pursuant to this Section 10 (a "Custody
Agreement and Power of Attorney"). The Custody Agreement and Power of
Attorney will provide, among other things, that the Management Stockholder
will deliver to and deposit in custody with the custodian and
attorney-in-fact named therein a certificate or certificates representing
such shares of Stock (duly endorsed in blank by the registered owner or
owners thereof or accompanied by duly executed stock powers in blank) and
irrevocably appoint said custodian and attorney-in-fact as the Management
Stockholder's agent and attorney-in-fact with full power and authority to act
under the Custody Agreement and Power of Attorney on the Management
Stockholder's behalf with respect to the matters specified therein.
(f) The Management Stockholder agrees that he or she will execute
such other agreements as the Company may reasonably request to further
evidence the provisions of this Section 10.
11. Pro Rata Repurchases.
Notwithstanding anything to the contrary contained in Sections 5,
6 or 7, if at any time consummation of all purchases and payments to be made
by the Company pursuant to this Agreement and the Other Management
Stockholders' Agreements would result in an Event, then the Company shall
make purchases from, and payments to, the Management Stockholder and Other
Management Stockholders pro rata (on the basis of the proportion of the
number of shares of Stock and the number of Options each such Management
Stockholder and all Other Management Stockholders have elected or are
required to sell to the Company) for the maximum number of shares of Stock
and shall pay the Option Excess Price for the maximum number of Options
permitted without resulting in an Event (the "Maximum Repurchase Amount").
The provisions of Section 5(d) and 6(f) shall apply in their entirety to
payments and repurchases with respect to Options and shares of Stock which
may not be made due to the limits imposed by the Maximum Repurchase Amount
under this Section 11. Until all of such Stock and Options are purchased and
paid for by the Company, the Management Stockholder and the Other Management
Stockholders whose Stock and Options are not purchased in accordance with
this Section 11 shall have priority, on a pro rata basis, over other
purchases of Common Stock and Options by the Company pursuant to this
Agreement and Other Management Stockholders' Agreements.
<PAGE>
17
12. Rights to Negotiate Repurchase Price.
Nothing in this Agreement shall be deemed to restrict or prohibit
the Company from purchasing shares of Stock or Options from the Management
Stockholder, at any time, upon such terms and conditions, and for such price,
as may be mutually agreed upon between the Parties, whether or not at the
time of such purchase circumstances exist which specifically grant the
Company the right to purchase, or the Management Stockholder the right to
sell, shares of Stock or the Company has the right to pay, or the Management
Stockholder has the right to receive, the Option Excess Price under the terms
of this Agreement.
13. Covenant Regarding 83(b) Election.
Except as the Company may otherwise agree in writing, the
Management Stockholder hereby covenants and agrees that he will make an
election provided pursuant to Treasury Regulation 1.83-2 with respect to the
Stock, including without limitation, the Stock to be acquired pursuant to
Section 1 and the Stock to be acquired upon each exercise of the Management
Stockholder's Non-Qualified Options; and Management Stockholder further
covenants and agrees that he will furnish the Company with copies of the
forms of election the Management Stockholder files within 30 days after the
date hereof, and within 30 days after each exercise of Management
Stockholder's Non-Qualified Options and with evidence that each such election
has been filed in a timely manner. The Company agrees that, for purposes of
its reporting and withholding in connection with the election provided for in
the preceding sentence, the Management Stockholder will not be deemed to have
realized any compensation income with respect to any shares of Retained Stock.
14. Notice of Change of Beneficiary.
Immediately prior to any transfer of Stock to a Management
Stockholder's Trust, the Management Stockholder shall provide the Company
with a copy of the instruments creating the Management Stockholder's Trust
and with the identity of the beneficiaries of the Management Stockholder's
Trust. The Management Stockholder shall notify the Company immediately prior
to any change in the identity of any beneficiary of the Management
Stockholder's Trust.
15. Expiration of Certain Provisions.
The provisions contained in Sections 4, 5 and 6 of this Agreement
and the portion of any other provision of this Agreement which incorporates
the provisions of Sections 4, 5 and 6, shall terminate and be of no further
force or effect with respect to any shares of Stock sold by the Management
Stockholder (i) pursuant to an effective registration statement filed by the
Company pursuant to Section 10 hereof or (ii) pursuant to the terms of the
Sale Participation Agreement of even date herewith, among the Management
Stockholder, and KKR 1996 Fund L.P., NXS Associates, L.P. and KKR Partners
II, L.P.
The provisions contained in Sections 2(e), 3, 4, 5, 6 and 13 of
this Agreement, and the portion of any other provisions of this Agreement
which incorporate the provisions of
<PAGE>
18
such Sections, shall terminate and be of no further force or effect upon (i)
the sale of all or substantially all of the assets of the Company to a person
or group that is not an affiliate of Kohlberg Kravis Roberts & Co. L.P.
("KKR"), (ii) an acquisition of voting stock of the Company resulting in more
than 50% of the voting stock of the Company being held by a person or group
that does not include KKR or any of its affiliates or (iii) the consummation
of a merger, reorganization, business combination or liquidation of the
Company, but only if such merger, reorganization, business combination or
liquidation results in the Partnership or NXS Associates, L.P., or any
affiliate or affiliates thereof, together no longer having the power (A) to
elect a majority of the Board of Directors of the Company or such other
corporation which succeeds to the Company's rights and obligations pursuant
to such merger, reorganization, business combination or liquidation, or (B)
if the resulting entity of such merger, reorganization, business combination
or liquidation is not a corporation, to select the general partner(s) or
other persons or entities controlling the operations and business of the
resulting entity. Such provisions and the portion of any other provisions of
this Agreement which incorporate such provisions shall also terminate and be
of no further force and effect if the Management Stockholder's employment is
terminated and the Company has not given a Call Notice within 75 days from
the date of the applicable Call Event (i) with respect to all the Stock of a
Management Stockholder if the Management Stockholder's employment has been
terminated as a result of termination by the Management Stockholder with Good
Reason or by the Company without Cause, and (ii) with respect to only the
Initial Stock of a Management Stockholder if the Management Stockholder's
employment has been terminated for any other reason.
16. Recapitalizations, etc.
The provisions of this Agreement shall apply, to the full extent
set forth herein with respect to the Stock or the Options, to any and all
shares of capital stock of the Company or any capital stock, partnership
units or any other security evidencing ownership interests in any successor
or assign of the Company (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in exchange for, or
substitution of the Stock or the Options, by reason of any stock dividend,
split, reverse split, combination, recapitalization, liquidation,
reclassification, merger, consolidation or otherwise.
17. Management Stockholder's Employment by the
Company.
Nothing contained in this Agreement or in any other agreement
entered into by the Company and the Management Stockholder contemporaneously
with the execution of this Agreement (i) obligates the Company or any
subsidiary of the Company to employ the Management Stockholder in any
capacity whatsoever or (ii) prohibits or restricts the Company (or any such
subsidiary) from terminating the employment, if any, of the Management
Stockholder at any time or for any reason whatsoever, with or without Cause,
and the Management Stockholder hereby acknowledges and agrees that neither
the Company nor any other person has made any representations or promises
whatsoever to the Management Stockholder concerning the Management
Stockholder's employment or continued employment by the Company or any
subsidiary of the Company.
<PAGE>
19
18. State Securities Laws.
The Company hereby agrees to use its best efforts to comply with
all state securities or "blue sky" laws which might be applicable to the sale
of the Stock and the issuance of the Options to the Management Stockholder.
19. Binding Effect.
The provisions of this Agreement shall be binding upon and accrue
to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. In the case of a transferee
permitted under Section 2(a) hereof, such transferee shall be deemed the
Management Stockholder hereunder; provided, however, that no transferee
(including without limitation, transferees referred to in Section 2(a)
hereof) shall derive any rights under this Agreement unless and until such
transferee has delivered to the Company a valid undertaking and becomes bound
by the terms of this Agreement.
20. Amendment.
This Agreement may be amended only by a written instrument signed
by the Parties hereto.
21. Closing.
Except as otherwise provided herein, the closing of each purchase
and sale of shares of Stock and the payment of the Option Excess Price, if
any, pursuant to this Agreement shall take place at the principal office of
the Company on the tenth business day following delivery of the notice by
either Party to the other of its exercise of the right to purchase or sell
such Stock hereunder or to cause the payment of the Option Excess Price, if
any.
22. Applicable Law.
The laws of the state of Delaware (or if the Company
reincorporates in another state, of that state) shall govern the
interpretation, validity and performance of the terms of this Agreement,
regardless of the law that might be applied under principles of conflicts of
law. Any suit, action or proceeding against the Management Stockholder, with
respect to this Agreement, or any judgment entered by any court in respect of
any thereof, may be brought in any court of competent jurisdiction in the
State of Delaware (or if the Company reincorporates in another state, in that
state) or New York, as the Company may elect in its sole discretion, and the
Management Stockholder hereby submits to the non-exclusive jurisdiction of
such courts for the purpose of any such suit, action, proceeding or judgment.
By the execution and delivery of this Agreement, the Management Stockholder
appoints The Corporation Trust Company, at its office in New York, New York
or Wilmington, Delaware (or if the Company reincorporates in another state,
an office in that state), as the case may be, as his agent upon which process
may be served in any such suit, action or proceeding. Service of process upon
such agent, together with notice of such service given to the
<PAGE>
20
Management Stockholder in the manner provided in Section 25 hereof, shall be
deemed in every respect effective service of process upon him in any suit,
action or proceeding. Nothing herein shall in any way be deemed to limit the
ability of the Company to serve any such writs, process or summonses in any
other manner permitted by applicable law or to obtain jurisdiction over the
Management Stockholder, in such other jurisdictions and in such manner, as
may be permitted by applicable law. The Management Stockholder hereby
irrevocably waives any objections which he may now or hereafter have to the
laying of the venue of any suit, action or proceeding arising out of or
relating to this Agreement brought in any court of competent jurisdiction in
the State of Delaware (or if the Company reincorporates in another state, in
that state) or New York, and hereby further irrevocably waives any claim that
any such suit, action or proceeding brought in any such court has been
brought in any inconvenient forum. No suit, action or proceeding against the
Company with respect to this Agreement may be brought in any court, domestic
or foreign, or before any similar domestic or foreign authority other than in
a court of competent jurisdiction in the State of Delaware (or if the Company
reincorporates in another state, in that state) or New York, and the
Management Stockholder hereby irrevocably waives any right which he may
otherwise have had to bring such an action in any other court, domestic or
foreign, or before any similar domestic or foreign authority. The Company
hereby submits to the jurisdiction of such courts for the purpose of any such
suit, action or proceeding. Each Party hereto hereby irrevocably and
unconditionally waives trial by jury in any legal action or proceeding in
relation to this Agreement and for any counterclaim therein.
23. Assignability of Certain Rights by the Company.
The Company shall have the right to assign any or all of its
rights or obligations to purchase shares of Stock pursuant to Sections 4, 5
and 6 hereof; provided, however, that the Company shall remain obligated to
perform its obligations notwithstanding such assignment in the event that
such assignee fails to perform the obligations so assigned to it.
24. Miscellaneous.
In this Agreement (i) all references to "dollars" or "$" are to
United States dollars and (ii) the word "or" is not exclusive. If any
provision of this Agreement shall be declared illegal, void or unenforceable
by any court of competent jurisdiction, the other provisions shall not be
affected, but shall remain in full force and effect.
25. Notices.
All notices and other communications provided for herein shall be
in writing and shall be deemed to have been duly given if delivered by hand
(whether by overnight courier or otherwise) or sent by registered or
certified mail, return receipt requested, postage prepaid, or by overnight
delivery or telecopy, to the Party to whom it is directed:
<PAGE>
21
(a) If to the Company, to it at the following address:
c/o Kohlberg Kravis Roberts & Co.
2800 Sand Hill Road
Suite 200
Menlo Park, California 94025
Attn: Michael Michelson
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3909
Attn: Charles I. Cogut, Esq.
(b) If to the Management Stockholder, to him at the address set
forth below under his signature;
or at such other address as either party shall have
specified by notice in writing to the other.
26. Covenant Not to Compete; Confidential Information.
(a) In consideration of the Company entering into this Agreement
with the Management Stockholder, the Management Stockholder hereby agrees
effective as of the Base Date, for so long as the Management Stockholder is
employed by the Company or one of its subsidiaries and for a period of one
year thereafter (the "Noncompete Period"), the Management Stockholder shall
not, directly or indirectly, engage in the production, sale or distribution
of any product produced, sold, distributed or which is in development by the
Company or its subsidiaries on the date hereof or during the Noncompete
Period anywhere in the world in which the Company or its subsidiaries is
doing business other than through the Management Stockholder's employment
with the Company or any of its subsidiaries. In the event that the Management
Stockholder's employment is terminated by the Management Stockholder for Good
Reason or by the Company without Cause, then the Company shall pay the
Management Stockholder an amount equal to 50% of such Management
Stockholder's base salary on the date of the termination of the Management
Stockholder's employment. At the Company's option, the Noncompete Period may
be extended for an additional one year period if (i) within nine months of
the termination of the Management Stockholder's employment, the Company gives
the Management Stockholder notice of such extension and (ii) beginning with
the first anniversary of such termination, the Company pays the Management
Stockholder an amount equal to 50% of the Management Stockholder's base
salary on the date of the termination of his employment. Each amount referred
to in the preceding two sentences shall be paid in installments in a manner
consistent with the then current salary payment policies of the Company;
provided that if at any time the Company
<PAGE>
22
elects, in its sole discretion, to waive further compliance by the Management
Stockholder with the requirements of this Section 26(a) (upon the Management
Stockholder securing alternate employment or otherwise), then the Company
shall be relieved of its obligation to pay the unpaid balance, if any, of
such amounts which is then owing to the Management Stockholder. For purposes
of this Agreement, the phrase "directly or indirectly engage in" shall
include any direct or indirect ownership or profit participation interest in
such enterprise, whether as an owner, stockholder, partner, joint venturer of
otherwise, and shall include any direct or indirect participation in such
enterprise as a consultant, licensor of technology or otherwise.
(b) The Management Stockholder will not disclose or use at any
time any Confidential Information (as defined below) of which the Management
Stockholder is or becomes aware, whether or not such information is developed
by him, except to the extent that such disclosure or use is directly related
to and required by the Management Stockholder's performance of duties, if
any, assigned to the Management Stockholder by the Company. As used in this
Agreement, the term "Confidential Information" means information that is not
generally known to the public and that is used, developed or obtained by the
Company or its subsidiaries in connection with its business, including but
not limited to (i) products or services, (ii) fees, costs and pricing
structures, (iii) designs, (iv) computer software, including operating
systems, applications and program listings, (v) flow charts, manuals and
documentation, (vi) data bases, (vii) accounting and business methods, (viii)
inventions, devices, new developments, methods and processes, whether
patentable or unpatentable and whether or not reduced to practice, (ix)
customers and clients and customer or client lists, (x) other copyrightable
works, (xi) all technology and trade secrets, and (xii) all similar and
related information in whatever form. Confidential Information will not
include any information that has been published in a form generally available
to the public prior to the date the Management Stockholder proposes to
disclose or use such information. The Management Stockholder acknowledges and
agrees that all copyrights, works, inventions, innovations, improvements,
developments, patents, trademarks and all similar or related information
which relate to the actual or anticipated business of the Company and its
subsidiaries (including its predecessors) and conceived, developed or made by
the Management Stockholder while employed by the Company or its subsidiaries
belong to the Company. The Management Stockholder will perform all actions
reasonably requested by the Company (whether during or after the Noncompete
Period) to establish and confirm such ownership at the Company's expense
(including without limitation assignments, consents, powers of attorney and
other instruments). If the Management Stockholder is bound by any other
agreement with the Company regarding the use or disclosure of confidential
information, the provisions of this Agreement shall be read in such a way as
to further restrict and not to permit any more extensive use or disclosure of
confidential information.
(c) Notwithstanding clauses (a) and (b) above, if at any time a
court holds that the restrictions stated in such clauses (a) and (b) are
unreasonable or otherwise unenforceable under circumstances then existing,
the parties hereto agree that the maximum period, scope or geographic area
determined to be reasonable under such circumstances by such court will be
substituted for the stated period, scope or area. Because the Management
Stockholder's services are unique and because the Management Stockholder has
had access to
<PAGE>
23
Confidential Information, the parties hereto agree that money damages will be
an inadequate remedy for any breach of this Agreement. In the event a breach
or threatened breach of this Agreement, the Company or its successors or
assigns may, in addition to other rights and remedies existing in their
favor, apply to any court of competent jurisdiction for specific performance
and/or injunctive relief in order to enforce, or prevent any violations of,
the provisions hereof (without the posting of a bond or other security).
<PAGE>
24
IN WITNESS WHEREOF, the Parties have executed this Agreement as
of the date first above written.
AMPHENOL CORPORATION
By: /s/ Edward C. Wetmore
---------------------------------
Name: Edward C. Wetmore
Title: Secretary and General Counsel
/s/ Edward Jepsen
------------------------------------
Edward Jepsen
------------------------------------
Management Stockholder
14 Gale Road
Bloomfield, CT 06002
Address of Management Stockholder
<PAGE>
SCHEDULE I
Targeted Retained Number: 76,923
Actual Retained Number: 99,514
Number of Shares of Retained Stock: 76,923
Number of Shares of Purchase Stock: 0
Issued Stock: N.A.
Market Stock: N.A.
Aggregate Purchase Price: N.A.
<PAGE>
EXHIBIT A
Form of Non-Qualified Stock Option Agreement
<PAGE>
EXHIBIT 10.15
MANAGEMENT STOCKHOLDER'S AGREEMENT
This Management Stockholder's Agreement (this "Agreement") is
entered into as of May 19, 1997 between Amphenol Corporation, a Delaware
Corporation (the "Company"), and Timothy Cohane (the "Management
Stockholder") (the Company and the Management Stockholder being hereinafter
collectively referred to as the "Parties").
On January 23, 1997, NXS Acquisition Corp., a Delaware
corporation ("Newco"), and the Company entered into an Agreement and Plan of
Merger (the "Merger Agreement") pursuant to which Newco is to be merged with
and into the Company (the "Merger"). Pursuant to the Merger, stockholders of
the Company may elect to receive $26.00 per share in cash or to retain the
Company's Class A Common Stock, par value $.001 per share (the "Common
Stock"), in each case, subject to the effects of proration. In connection
with the Merger, certain key employees of the Company have agreed in
principle to retain a specified number of shares of Common Stock (such
specified number of shares, the "Targeted Retained Number").
This Agreement is one of several other agreements ("Other
Management Stockholders' Agreements") which have been, or which in the future
will be, entered into between the Company and other individuals who are or
will be key employees of the Company or one of its subsidiaries
(collectively, the "Other Management Stockholders").
The Company and the Management Stockholder have agreed in
principle that (i) if, after giving effect to proration, the actual number of
shares of Common Stock retained by such Management Stockholder (the "Actual
Retained Number") is higher than the Targeted Retained Number, then such
Management Stockholder will be permitted to sell a number of shares equal to
such difference, and (ii) if, after giving effect to proration, the Actual
Retained Number is less than the Targeted Retained Number, such Management
Stockholder will purchase a number of shares equal to such difference. The
shares of Common Stock retained by the Management Stockholder after giving
effect to any sale contemplated by the preceding clause (i) shall be referred
to herein as "Retained Stock." The shares of Common Stock purchased by the
Management Stockholder contemplated by the preceding clause (ii), if any,
shall be referred to herein as "Purchase Stock." Schedule I hereto sets
forth, for the Management Stockholder named above, the Targeted Retained
Number, the Actual Retained Number, the number of shares of Retained Stock,
the number of shares of Purchase Stock and, if the number of shares of
Purchase Stock is greater than zero, whether such shares are to be sold to
the Management Stockholder by the Company (any such shares referred to herein
as "Issued Stock") or purchased by the Management Stockholder on the New York
Stock Exchange (any such shares referred to herein as "Market Stock"). After
giving effect to the foregoing, the Management Stockholder shall own, in the
aggregate, a total number of shares of Common Stock equal to at least the
Targeted Retained Number. In addition, the Company will grant to the
Management Stockholder at or as soon as practicable after the effective time
of the Merger an option or options to purchase Common Stock ("Options") at an
exercise price of $26.00 per share of Common Stock pursuant to the terms of
the 1997
<PAGE>
2
Option Plan for Key Employees of Amphenol Corporation and Subsidiaries (the
"Option Plan") and the "Non-Qualified Stock Option Agreement" attached hereto
as Exhibit A.
NOW THEREFORE, to implement the foregoing and in consideration of
the grant of Options and of the mutual agreements contained herein, the
Parties agree as follows:
1. Common Stock; Issuance of Options.
(a) If the Actual Retained Number set forth on Schedule I hereto
is greater than the Targeted Retained Number, then the Management
Stockholder shall, after the Stockholders Meeting (as defined in the
Merger Agreement), be permitted to sell a number of shares equal to the
difference. Subject to the terms and conditions hereinafter set
forth, if the number of shares of Issued Stock set forth on Schedule I
hereto is greater than zero, then the Management Stockholder hereby
subscribes for and shall purchase, and the Company shall sell to the
Management Stockholder, such number of shares of Issued Stock at a
purchase price per share of $26.00 (for purposes hereof,
such price shall be referred to as the "Base Price") on the date of the
Effective Time of the Merger (as defined in the Merger Agreement) (the
"Base Date") or, if not on the Base Date, on such later date after the
Effective Time of the Merger as may be determined by the Company in
consultation with the Management Stockholder (the "Deferred Sale Date").
The Company shall have no obligation to sell any Issued Stock to any
person who (i) is a resident or citizen of a state or other jurisdiction
in which the sale of the Issued Stock to him or her would constitute a
violation of the securities or "blue sky" laws of such jurisdiction or
(ii) is not an employee of the Company or any of its subsidiaries on
the date hereof. If the number of shares of Market Stock set forth on
Schedule I hereto is greater than zero, then the Management Stockholder
shall promptly after the date of the Stockholders Meeting purchase such
number of shares of Market Stock on The New York Stock Exchange.
(b) The aggregate price for the Issued Stock shall be the
amount set forth in Schedule I hereto (such amount hereinafter sometimes
referred to as the "Aggregate Purchase Price"). The Aggregate Purchase
Price shall be paid in the following manner: the Management Stockholder
shall deliver to the Company at least three business days prior to the
Base Date (or the Deferred Sale Date, if applicable) cash or a certified
bank check or checks payable to the order of the Company in the amount of
the Aggregate Purchase Price. On the Base Date (or the Deferred Sale Date,
if applicable), in consideration of receipt of the Aggregate Purchase
Price, the Company will deliver to the Management Stockholder a
certificate, registered in the Management Stockholder's name, for the
Issued Stock, which shall be subject to the terms and conditions
hereinafter set forth.
(c) Subject to the terms and conditions hereinafter set
forth and upon and as of May 19, 1997 (the "Option Grant Date"),
the Company shall issue to the Management Stockholder the Options
and the Parties shall execute and deliver to each other copies of
the Non-Qualified Stock Option Agreement concurrently with the
issuance of the Options.
<PAGE>
3
2. Management Stockholder's Representations,
Warranties and
Agreements.
(a) The Management Stockholder agrees and acknowledges that he
will not, directly or indirectly, offer, transfer, sell, assign, pledge,
hypothecate or otherwise dispose of (any such act being referred to herein as
a "transfer") any shares of the Purchase Stock, Retained Stock and, at the
time of exercise, the Common Stock issuable upon exercise of the Options (the
"Option Stock" and collectively with Retained Stock and Purchase Stock, the
"Stock") unless such transfer complies with Section 3 of this Agreement. If
the Management Stockholder is an "affiliate" (as defined under Rule 405 of
the rules and regulations promulgated under the Act and as interpreted by the
Board of Directors of the Company) of the Company (an "Affiliate"), the
Management Stockholder also agrees and acknowledges that he will not transfer
any shares of the Stock unless (i) the transfer is pursuant to an effective
registration statement under the Securities Act of 1933, as amended, and the
rules and regulations in effect thereunder (the "Act"), and in compliance
with applicable provisions of state securities laws or (ii) (A) counsel for
the Management Stockholder (which counsel shall be reasonably acceptable to
the Company) shall have furnished the Company with an opinion, satisfactory
in form and substance to the Company, that no such registration is required
because of the availability of an exemption from registration under the Act
and (B) if the Management Stockholder is a citizen or resident of any country
other than the United States, or the Management Stockholder desires to effect
any transfer in any such country, counsel for the Management Stockholder
(which counsel shall be reasonably satisfactory to the Company) shall have
furnished the Company with an opinion or other advice reasonably satisfactory
in form and substance to the Company to the effect that such transfer will
comply with the securities laws of such jurisdiction. Notwithstanding the
foregoing, the Company acknowledges and agrees that any of the following
transfers are deemed to be in compliance with the Act and this Agreement and
no opinion of counsel is required in connection therewith: (x) a transfer
made pursuant to Section 4, 5 or 6 hereof, (y) a transfer upon the death of
the Management Stockholder to his executors, administrators, testamentary
trustees, legatees or beneficiaries (the "Management Stockholder's Estate")
or a transfer to the executors, administrators, testamentary trustees,
legatees or beneficiaries of a person who has become a holder of Stock in
accordance with the terms of this Agreement, provided that it is expressly
understood that any such transferee shall be bound by the provisions of this
Agreement and (z) a transfer made after the Base Date in compliance with the
federal securities laws to a trust or custodianship the beneficiaries of
which may include only the Management Stockholder, his spouse or his lineal
descendants (a "Management Stockholder's Trust") or a transfer made after the
third anniversary of the Base Date to such a trust by a person who has become
a holder of Stock in accordance with the terms of this Agreement, provided
that such transfer is made expressly subject to this Agreement and that the
transferee agrees in writing to be bound by the terms and conditions hereof.
(b) The certificate (or certificates) representing the
Stock shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT
BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR
<PAGE>
4
OTHERWISE DISPOSED OF UNLESS SUCH TRANSFER, SALE,
ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES
WITH THE PROVISIONS OF THE MANAGEMENT STOCKHOLDER'S AGREEMENT
DATED AS OF MAY 19, 1997 BETWEEN AMPHENOL CORPORATION ("THE
COMPANY") AND THE MANAGEMENT STOCKHOLDER NAMED ON THE FACE HEREOF
(A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY)."
(c) The Management Stockholder acknowledges that he has been
advised that (i) the Issued Stock, if any, has been registered on Form S-8
under the Act, (ii) a restrictive legend in the form heretofore set forth
shall be placed on the certificates representing the Stock and (iii) a
notation shall be made in the appropriate records of the Company indicating
that the Stock is subject to restrictions on transfer and appropriate stop
transfer restrictions will be issued to the Company's transfer agent with
respect to the Stock. If the Management Stockholder is an Affiliate, the
Management Stockholder also acknowledges that (1) the Stock must be held
indefinitely and the Management Stockholder must continue to bear the
economic risk of the investment in the Stock unless it is subsequently
registered under the Act or an exemption from such registration is available,
(2) when and if shares of the Stock may be disposed of without registration
in reliance on Rule 144 of the rules and regulations promulgated under the
Act, such disposition can be made only in limited amounts in accordance with
the terms and conditions of such Rule and (3) if the Rule 144 exemption is
not available, public sale without registration will require compliance with
some other exemption under the Act.
(d) If any shares of the Stock are to be disposed of in
accordance with Rule 144 under the Act or otherwise, the Management
Stockholder shall promptly notify the Company of such intended disposition
and shall deliver to the Company at or prior to the time of such disposition
such documentation as the Company may reasonably request in connection with
such sale and, in the case of a disposition pursuant to Rule 144, shall
deliver to the Company an executed copy of any notice on Form 144 required to
be filed with the Securities and Exchange Commission (the "SEC").
(e) The Management Stockholder agrees that, if any shares of the
capital stock of the Company are offered to the public pursuant to an
effective registration statement under the Act (other than registration of
securities issued under an employee plan), the Management Stockholder will
not effect any public sale or distribution of any shares of the Stock not
covered by such registration statement from the time of the receipt of a
notice from the Company that the Company has filed or imminently intends to
file such registration statement to, or within 180 days after, the effective
date of such registration statement, unless otherwise agreed to in writing by
the Company.
(f) The Management Stockholder represents and warrants that (i)
with respect to Issued Stock, if any, he has received and reviewed the
document(s) comprising the Prospectus (the "Prospectus") relating to Issued
Stock, if any, and the documents referred to therein, certain of which
documents set forth the rights, preferences and restrictions relating to
<PAGE>
5
the Stock and (ii) he has been given the opportunity to obtain any additional
information or documents and to ask questions and receive answers about such
documents, the Company and the business and prospects of the Company which he
deems necessary to evaluate the merits and risks related to his investment in
the Issued Stock, if any, and to verify the information contained in the
Prospectus and the information received as indicated in this Section
2(f)(ii), and he has relied solely on such information.
(g) The Management Stockholder further represents and warrants
that (i) his financial condition is such that he can afford to bear the
economic risk of holding the Issued Stock, if any, for an indefinite period
of time and has adequate means for providing for his current needs and
personal contingencies, (ii) he can afford to suffer a complete loss of his
or her investment in the Issued Stock, if any, (iii) he understands and has
taken cognizance of all risk factors related to the purchase of the Issued
Stock, if any, including those set forth in the Prospectus referred to above,
and (iv) his knowledge and experience in financial and business matters are
such that he is capable of evaluating the merits and risks of his purchase of
the Issued Stock, if any, as contemplated by this Agreement.
3. Restriction on Transfer.
Except for transfers permitted by clauses (x), (y) and (z) of
Section 2(a) or a sale of shares of Stock pursuant to an effective
registration statement under the Act filed by the Company or pursuant to the
Sale Participation Agreement (as defined below), the Management Stockholder
agrees that he will not transfer any shares of the Stock at any time prior to
the fifth anniversary of the Base Date. No transfer of any such shares in
violation hereof shall be made or recorded on the books of the Company and
any such transfer shall be void and of no effect.
4. Right of First Refusal.
If at any time after the fifth anniversary of the Base Date and
prior to a Public Offering (as hereinafter defined) the Management
Stockholder receives a bona fide offer to purchase any or all of his shares
of Stock (the "Offer") from a third party (the "Offeror") which the
Management Stockholder wishes to accept, the Management Stockholder shall
cause the Offer to be reduced to writing and shall notify the Company in
writing of his wish to accept the Offer. The Management Stockholder's notice
shall contain an irrevocable offer to sell such shares of Stock to the
Company (in the manner set forth below) at a purchase price equal to the
price contained in, and on the same terms and conditions of, the Offer, and
shall be accompanied by a true copy of the Offer (which shall identify the
Offeror). At any time within 30 days after the date of the receipt by the
Company of the Management Stockholder's notice, the Company shall have the
right and option to purchase, or to arrange for a third party to purchase,
all of the shares of Stock covered by the Offer either (i) at the same price
and on the same terms and conditions as the Offer or (ii) if the Offer
includes any consideration other than cash, then at the sole option of the
Company, at the equivalent all cash price, determined in good faith by the
Company's Board of Directors, by delivering a certified bank check or checks
in the appropriate amount (and any such non-cash consideration to be paid) to
the Management Stockholder at the principal office of the
<PAGE>
6
Company against delivery of certificates or other instruments representing
the shares of Stock so purchased, appropriately endorsed by the Management
Stockholder. If at the end of such 30 day period, the Company has not
tendered the purchase price for such shares in the manner set forth above,
the Management Stockholder may during the succeeding 30 day period sell not
less than all of the shares of Stock covered by the Offer to the Offeror at a
price and on terms no less favorable to the Management Stockholder than those
contained in the Offer. Promptly after such sale, the Management Stockholder
shall notify the Company of the consummation thereof and shall furnish such
evidence of the completion and time of completion of such sale and of the
terms thereof as may reasonably be requested by the Company. If, at the end
of 30 days following the expiration of the 30 day period for the Company to
purchase the Stock, the Management Stockholder has not completed the sale of
such shares of the Stock as aforesaid, all the restrictions on sale, transfer
or assignment contained in this Agreement shall again be in effect with
respect to such shares of the Stock.
5. Management Stockholder's Resale of Stock and
Options to the Company Upon The Management
Stockholder's Death or Disability or in Case of
Certain Terminations of Employment.
(a) Except as otherwise provided herein, if, prior to the fifth
anniversary of the Base Date, (i) the Management Stockholder is still in the
employ of the Company or any subsidiary of the Company, or has retired from
the Company and its subsidiaries at age 65 or over (or such other age as may
be approved by the Board of Directors of the Company) after having been
employed by the Company or any subsidiary for at least three years after the
Base Date, and (ii) the Management Stockholder either dies or becomes
permanently disabled then the Management Stockholder, the Management
Stockholder's Estate or a Management Stockholder's Trust, as the case may be,
shall have the right, for six months following the date of death or permanent
disability, (A) to sell to the Company, and the Company shall be required to
purchase, on one occasion, all or any portion of the shares of Stock then
held by the Management Stockholder, the Management Stockholder's Estate
and/or the Management Stockholder's Trust, as the case may be, at the Section
5(a) Repurchase Price, as determined in accordance with Section 7, and (B) to
require the Company to pay to the Management Stockholder or the Management
Stockholder's Estate or the Management Stockholder's Trust, as the case may
be, an additional amount equal to the Option Excess Price determined on the
basis of a Section 5(a) Repurchase Price as provided in Section 8 with
respect to the termination of outstanding Options held by the Management
Stockholder.
(b) Except as otherwise provided herein, if the Management
Stockholder's employment with the Company is terminated by the Company
without Cause (as hereinafter defined) or by the Management Stockholder for
Good Reason (as hereinafter defined) and, at such time, the Common Stock is
not admitted to trading on any national securities exchange or the NASDAQ
Stock Market, then the Management Stockholder (or in the event of the
Management Stockholder's death, the Management Stockholder's Estate) or a
Management Stockholder's Trust, as the case may be, shall have the right, for
30 days following the date of termination, to sell to the Company, and the
Company shall be required to purchase, on one occasion, all or any portion of
the Retained Stock and any Issued Stock (other than any shares acquired upon
the exercise of Options) or Market Stock (collectively, the "Initial
<PAGE>
7
Stock") at the Section 5(b) Repurchase Price, as determined in accordance
with Section 7, provided, that such right shall apply only to the actual
shares of Common Stock constituting the Initial Stock pursuant to this
Agreement, and shall not include any other shares of Common Stock, however
acquired. If the Management Stockholder or the Management Stockholder's
Trust, as the case may be, exercises the put rights granted under this
Section 5(b), then (i) the Options (whether or not then exercisable) held by
the Management Stockholder or the Management Stockholder's Trust, as the case
may be, will terminate immediately without payment therefor, (ii) any Option
Stock acquired prior to the date of the termination of employment may be
retained and (iii) the exercise of any Options after the date of the
termination of employment and prior to the exercise of the put rights
pursuant to this Section 5(b) shall be deemed to be rescinded, and any Option
Stock so acquired shall be delivered to the Company in return for the
applicable exercise price paid therefor.
(c) The Management Stockholder, the Management Stockholder's
Estate and/or the Management Stockholder's Trust, as the case may be, shall
send written notice to the Company of its intention to sell shares of Stock
in exchange for the payment referred in Sections 5(a) and 5(b) above and to
terminate such Options (either (i) in the case of Section 5(a), in exchange
for the payment referred to in Section 5(a) or (ii) in the case of Section
5(b), without payment therefor) (the "Redemption Notice"). The completion of
the purchase shall take place at the principal office of the Company on the
tenth business day after the giving of the Redemption Notice. The applicable
Repurchase Price and any payment with respect to the Options as described
above shall be paid by delivery to the Management Stockholder, the Management
Stockholder's Estate or the Management Stockholder's Trust, as the case may
be, of a certified bank check or checks in the appropriate amount payable to
the order of the Management Stockholder, the Management Stockholder's Estate
or the Management Stockholder's Trust, as the case may be, against delivery
of certificates or other instruments representing the Stock so purchased and
appropriate documents cancelling the Options so terminated appropriately
endorsed or executed by the Management Stockholder, the Management
Stockholder's Estate or the Management Stockholder's Trust, or his, her or
its duly authorized representative. For purposes of this Agreement, the
Management Stockholder shall be deemed to have a "permanent disability" if
the Management Stockholder is unable to engage in the activities required by
the Management Stockholder's job by reason of any medically determined
physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not
less than 12 months.
(d) Notwithstanding anything in Section 5(a) or Section 5(b) to
the contrary and subject to Section 11, if there exists and is continuing a
default or an event of default on the part of the Company or any subsidiary
of the Company under any loan, guarantee or other agreement under which the
Company or any subsidiary of the Company has borrowed money or if the
repurchase referred to in Section 5(a) or Section 5(b) would result in a
default or an event of default on the part of the Company or any subsidiary
of the Company under any such agreement or if a repurchase would not be
permitted under the Delaware General Corporation Law (the "DGCL") or would
otherwise violate the DGCL (or if the Company reincorporates in another
state, the business corporation law of such state) (each such occurrence
being an "Event"), the Company shall not be obligated to repurchase any of
the
<PAGE>
8
Stock or the Options from the Management Stockholder, the Management
Stockholder's Estate or a Management Stockholder's Trust, as the case may be,
until the first business day which is 10 calendar days after all of the
foregoing Events have ceased to exist (the "Repurchase Eligibility Date");
provided, however, that (i) the number of shares of Stock subject to
repurchase under this Section 5(d) shall be that number of shares of Stock,
and (ii) in the case of a repurchase pursuant to Section 5(a), the number of
Exercisable Option Shares (as defined in Section 8) for purposes of
calculating the Option Excess Price payable under this Section 5(d) shall be
the number of Exercisable Option Shares, held by the Management Stockholder,
the Management Stockholder's Estate or a Management Stockholder's Trust, as
the case may be, at the time of delivery of a Redemption Notice in accordance
with Section 5(c) hereof; provided, further, that the Repurchase Calculation
Date shall be determined in accordance with Section 7 as of the Repurchase
Eligibility Date (unless, in a repurchase pursuant to Section 5(a), the
Section 5(a) Repurchase Price would be greater if the Repurchase Calculation
Date had been determined as if no Event had occurred in which case, solely
for purposes of this proviso, the Repurchase Calculation Date shall be
determined as if no Event had occurred). All Options exercisable as of the
date of a Redemption Notice, in the case of a repurchase pursuant to Section
5(a), shall continue to be exercisable until the repurchase pursuant to such
Redemption Notice, provided that to the extent any Options are exercised
after the date of such Redemption Notice, the number of Exercisable Option
Shares for purposes of calculating the Option Excess Price shall be reduced
accordingly.
(e) Notwithstanding any other provision of this Section 5 to the
contrary and subject to Section 11, the Management Stockholder, the
Management Stockholder's Estate or a Management Stockholder's Trust, as the
case may be, shall have the right to withdraw any Redemption Notice which has
been pending for 60 or more days and which has remained unsatisfied because
of the provisions of Section 5(d).
6. The Company's Option to Repurchase Stock and
Options of Management Stockholder.
(a) If, on or prior to the fifth anniversary of the Base Date,
(i) the Management Stockholder's active employment with the Company (and/or,
if applicable, its subsidiaries) is terminated by the Company with Cause or
by the Management Stockholder without Good Reason, (ii) the beneficiaries of
a Management Stockholder's Trust shall include any person or entity other
than the Management Stockholder, his spouse or his lineal descendants, or
(iii) the Management Stockholder shall effect a transfer of any of the Stock
other than as permitted in this Agreement (each, a "Section 6(a) Call
Event"), then the Company shall have the right to purchase all, but not less
than all, of the shares of the Stock then held by the Management Stockholder
or a Management Stockholder's Trust at the Section 6(a) Repurchase Price
determined in accordance with Section 7 hereof. If any Section 6(a) Call
Event has occurred, then, whether or not the Company exercises the call
rights granted under this Section 6(a), the Options (whether or not then
exercisable) held by the Management Stockholder or the Management
Stockholder's Trust, as the case may be, will terminate immediately without
payment therefor.
<PAGE>
9
(b) If, on or prior to the fifth anniversary of the Base Date,
the Management Stockholder's employment is terminated as a result of the
death or permanent disability of the Management Stockholder or if the
Management Stockholder dies or becomes permanently disabled after the
retirement of the Management Stockholder from the Company or any of its
subsidiaries at age 65 or over (or such other age as may be approved by the
Board of Directors of the Company) after having been employed by the Company
or any subsidiary for at least three years after the Base Date, (each a
"Section 6(b) Call Event"), then the Company shall have the right to purchase
all, but not less than all, of the shares of Stock then held by the
Management Stockholder, the Management Stockholder's Estate or a Management
Stockholder's Trust at the Section 5(a) Repurchase Price.
(c) If, on or prior to the fifth anniversary of the Base Date,
the Management Stockholder's employment is terminated as a result of a
termination by the Management Stockholder with Good Reason or upon the
retirement of the Management Stockholder from the Company or any of its
subsidiaries at age 65 or over (or such other age as may be approved by the
Board of Directors of the Company) after having been employed by the Company
or any subsidiary for at least three years after the Base Date, or by the
Company without Cause (each a "Section 6(c) Call Event" and together with
Section 6(a) Call Events and Section 6(b) Call Events, "Call Events"), then
the Company shall have the right to purchase all, but not less than all, of
the shares of Stock then held by the Management Stockholder or a Management
Stockholder's Trust at the Section 6(c) Repurchase Price.
(d) The Company shall have a period of 75 days from the date of a
Call Event in which to give notice in writing to the Management Stockholder
of the exercise of such election ("Call Notice"). In the event that the
Company exercises its right to repurchase shares of Stock pursuant to Section
6(b) or Section 6(c), the Company shall also pay the Management Stockholder
an amount equal to the Option Excess Price determined on the basis of the
Section 5(a) Repurchase Price or Section 6(c) Repurchase Price, respectively,
as provided in Section 8, with respect to the termination of outstanding
Options held by the Management Stockholder.
(e) The completion of the purchases pursuant to the foregoing
shall take place at the principal office of the Company on the tenth business
day after the giving of notice of the exercise of the option to purchase. The
applicable Repurchase Price and any payment with respect to the Options as
described in Sections 6(d) above shall be paid by delivery to the Management
Stockholder, the Management Stockholder's Estate or a Management
Stockholder's Trust, as the case may be, of a certified bank check or checks
in the appropriate amount payable to the order of the Management Stockholder,
the Management Stockholder's Estate or a Management Stockholder's Trust, as
the case may be, against delivery of certificates or other instruments
representing the Stock so purchased and appropriate documents cancelling the
Options so terminated, appropriately endorsed or executed by the Management
Stockholder, the Management Stockholder's Estate or a Management Stockholders
Trust or his, her or its authorized representative.
(f) Notwithstanding any other provision of this Section 6 to the
contrary and subject to Section 11, if there exists and is continuing any
Event, the Company shall
<PAGE> 10
delay the repurchase of any of the Stock or the Options (pursuant to a Call
Notice timely given in accordance with Section 6(d) hereof) from the
Management Stockholder, the Management Stockholder's Estate or a Management
Stockholder's Trust, as the case may be, until the Repurchase Eligibility
Date; provided, however, that (i) the number of shares of Stock subject to
repurchase under this Section 6(f) shall be that number of shares of Stock
and (ii) in the case of a repurchase pursuant to Section 6(b) or Section
6(c), the number of Exercisable Option Shares for purposes of calculating the
Option Excess Price payable under this Section 6(f) shall be the number of
Exercisable Option Shares held by the Management Stockholder, the Management
Stockholder's Estate or a Management Stockholder's Trust, as the case may be,
at the time of delivery of a Call Notice in accordance with Section 6(d)
hereof; and provided, further, that the Repurchase Calculation Date shall be
determined in accordance with Section 7 based on the Repurchase Eligibility
Date (unless (x) in the case of a Section 6(b) Call Event or a Section 6(c)
Call Event, the applicable Repurchase Price would be greater if the
Repurchase Calculation Date had been determined as if no Event had occurred,
in which case the Repurchase Calculation Date shall be determined as if no
Event had occurred, and (y) in the case of a Section 6(a) Call Event, the
applicable Repurchase Price would be less if the Repurchase Calculation Date
had been determined as if no Event had occurred, in which case the Repurchase
Calculation Date shall be determined as if no Event had occurred). All
Options exercisable as of the date of a Call Notice, in the case of a
repurchase pursuant to Section 6(b) or Section 6(c), shall continue to be
exercisable until the repurchase pursuant to such Call Notice, provided that
to the extent that any Options are exercised after the date of such Call
Notice, the number of Exercisable Option Shares for purposes of calculating
the Option Excess Price shall be reduced accordingly.
7. Determination of Repurchase Price.
(a) The Section 5(a) Repurchase Price, Section 5(b) Repurchase
Price, Section 6(a) Repurchase Price and the Section 6(c) Repurchase Price
are hereinafter collectively referred to as the "Repurchase Price." The
Repurchase Price shall be calculated on the basis of the unaudited financial
statements of the Company or the Market Price Per Share (as defined in
Section 7(j)) as of the last day of the month preceding the later of (i) the
month in which the event giving rise to the repurchase occurs and (ii) the
month in which the Repurchase Eligibility Date occurs (hereinafter called the
"Repurchase Calculation Date"). The event giving rise to the repurchase shall
be the death, permanent disability, retirement or termination of employment,
as the case may be, of the Management Stockholder, not the giving of any
notice required pursuant to Section 5 or 6.
(b) The Section 5(a) Repurchase Price shall be a per share
Repurchase Price equal to the Base Price, provided that if the Book Value Per
Share (as defined in Section 7(h)) (or, after a Public Offering, the Market
Price Per Share) as of the Repurchase Calculation Date is greater than the
Base Price, then the Section 5(a) Repurchase Price shall be equal to the Base
Price plus the amount by which the Book Value Per Share (or, after a Public
Offering, the Market Price Per Share) as of the Repurchase Calculation Date
exceeds the Base Price.
<PAGE> 11
(c) The Section 5(b) Repurchase Price shall be a per share
Repurchase Price equal to the Base Price, provided that if the Book Value Per
Share as of the Repurchase Calculation Date is less than the Base Price, then
the Section 5(b) Repurchase Price shall be equal to the Base Price less the
amount by which the Base Price exceeds the Book Value Per Share as of the
Repurchase Calculation Date (but shall not be less than zero).
(d) The Section 6(a) Repurchase Price shall be a per share
Repurchase Price equal to the least of (i) after a Public Offering, the
Market Price Per Share, (ii) if the Book Value Per Share as of the Repurchase
Calculation Date is less than the Base Price, the Base Price less the amount
by which the Base Price exceeds Book Value Per Share as of the Repurchase
Calculation Date (but shall not be less than zero), and (iii) if the Book
Value Per Share as of the Repurchase Calculation Date exceeds the Base Price,
the Base Price plus (x) the Percentage (as defined below) multiplied by (y)
the amount by which the Book Value Per Share as of the Repurchase Calculation
Date exceeds the Base Price.
(e) The Section 6(c) Repurchase Price shall be a per share
Repurchase Price equal to the Base Price, provided (x) if the Book Value Per
Share (or, after a Public Offering, the Market Price Per Share) as of the
Repurchase Calculation Date is less than the Base Price, then the Section
6(c) Repurchase Price shall equal the Base Price less the amount by which the
Base Price exceeds Book Value Per Share (or, after a Public Offering, the
Market Price Per Share) as of the Repurchase Calculation Date, and (y) if the
Book Value Per Share (or, after a Public Offering, the Market Price Per
Share) as of the Repurchase Calculation Date is greater than the Base Price,
then the Section 6(c) Repurchase Price shall equal the Base Price plus the
amount by which the Book Value Per Share (or, after a Public Offering, the
Market Price Per Share) as of the Repurchase Calculation Date exceeds the
Base Price, as the case may be.
(f) For purposes of this Agreement the following definitions
shall apply: "Cause" shall mean (i) the Management Stockholder's willful and
continued failure to perform Management Stockholder's duties with respect to
the Company or its subsidiaries which continues beyond ten days after a
written demand for substantial performance is delivered to Management
Stockholder by the Company or (ii) misconduct by Management Stockholder
involving (x) dishonesty or breach of trust in connection with Management
Stockholder's employment or (y) conduct which would be a reasonable basis for
an indictment of Management Stockholder for a felony or for a misdemeanor
involving moral turpitude or (z) which results in a demonstrable injury to
the Company; and "Good Reason" shall mean (i) a reduction in Management
Stockholder's base salary (other than a broad based salary reduction program
affecting many members of management), (ii) a substantial reduction in
Management Stockholder's duties and responsibilities other than as approved
by the Chief Executive Officer of the Company as of the date of this
Agreement, (iii) the elimination or reduction of the Management Stockholder's
eligibility to participate in the Company's benefit programs that is
inconsistent with the eligibility of similarly situated employees of the
Company to participate therein, or (iv) a transfer of the Management
Stockholder's primary workplace by more than fifty (50) miles from the
workplace as of the date hereof.
<PAGE>
12
(g) For purposes of this Agreement, the "Percentage"
shall be determined as follows:
Repurchase Calculation Date Percentage
- --------------------------- ----------
Base Date through and including the first anniversary of the 0%
Base Date
After the first anniversary of the Base Date through and 20%
including the second anniversary of the Base Date
After the second anniversary of the Base Date through and 40%
including the third anniversary of the Base Date
After the third anniversary of the Base Date through and 60%
including the fourth anniversary of the Base Date
After the fourth anniversary of the Base Date through and 80%
including the fifth anniversary of the Base Date
After the fifth anniversary of the Base Date 100%
(h) As used herein, "Book Value Per Share" shall be the quotient
of (a) (i) $455,440,830 plus (ii) the aggregate net income of the Company
from and after the date of the Effective Time of the Merger (as decreased by
any net losses from and after the date of the Effective Time of the Merger)
excluding any one time costs and expenses charged to income associated with
the Merger and any related transactions plus (iii) the aggregate dollar
amount contributed to (or credited to common stockholders' equity of) the
Company after the date of the Effective Time of the Merger as equity of the
Company (including consideration to be received upon exercise of the Options
and other stock equivalents) plus (iv) to the extent reflected as deductions
to Book Value Per Share in clause (ii) above, or minus, to the extent
reflected as additions to Book Value Per Share in clause (ii) above, unusual
or other items recognized by the Company (including, without limitation, one
time or accelerated write-offs of good will), in each case, if and to the
extent determined in the sole discretion of the Board of Directors of the
Company, minus, (v) the aggregate dollar amount of any dividends paid by the
Company after the date of the Effective Time of the Merger, divided by (b)
the sum of the number of shares of Common Stock then outstanding and the
number of shares of Common Stock issuable upon the exercise of all
outstanding stock options and other rights to acquire Common Stock and the
conversion of all securities convertible into shares of Common Stock. The
items referred to in the calculations set forth in clauses (a)(ii), (a)(iii),
(a)(iv) and (a)(v) of the immediately preceding sentence shall be determined
in accordance with generally accepted accounting principles applied on a
basis consistent with any prior periods as reflected in the consolidated
financial statements of the Company.
(i) As used herein the term "Public Offering" shall mean the sale
of shares of Common Stock to the public subsequent to the date hereof
pursuant to a registration statement under the Act which has been declared
effective by the SEC (other than a registration statement on Form S-8 or any
other similar form) which results in an active
<PAGE>
13
trading market in 35% or more of the Common Stock. A "Qualified Public
Offering" shall mean a Public Offering pursuant to an effective registration
statement relating to the sale of shares of the Common Stock held by KKR 1996
Fund L.P., a Delaware limited partnership (the "Partnership") or NXS
Associates, L.P., a Delaware limited partnership, or their respective
affiliates; provided, however, that a "Qualified Public Offering" shall be
deemed to have occurred if there has been any Public Offering and there
exists an active trading market in 40% or more of the Common Stock.
(j) As used herein, the term "Market Price Per Share" shall mean
the price per share equal to the average of the last sale price of the Common
Stock on the Repurchase Calculation Date on each exchange on which the Common
Stock may at the time be listed or, if there shall have been no sales on any
of such exchanges on the Repurchase Calculation Date, the average of the
closing bid and asked prices on each such exchange at the end of the
Repurchase Calculation Date or if there is no such bid and asked price on the
Repurchase Calculation Date on the next preceding date when such bid and
asked price occurred or, if the Common Stock shall not be so listed, the
average of the closing sales prices as reported by NASDAQ at the end of the
Repurchase Calculation Date in the over-the-counter market. If the Common
Stock is not so listed or reported by NASDAQ, then the Market Price Per Share
shall be the Book Value Per Share.
(k) In determining the Repurchase Price, appropriate adjustments
shall be made for any stock dividends, splits, combinations,
recapitalizations or any other adjustment in the number of outstanding shares
of Common Stock in order to maintain, as nearly as practicable, the intended
operation of the provisions of this Section 7.
8. Stock Issued to Management Stockholder Upon
Exercise of Stock Options; Termination of Options.
(a) The Company may from time to time grant to the Management
Stockholder, in addition to the Options, options under the Option Plan to
purchase shares of Common Stock at the Base Price or at a different option
exercise price. The term "Issued Stock" as used in this Agreement shall
include all shares of Common Stock of the Company purchased by the Management
Stockholder pursuant to this Agreement and issued to the Management
Stockholder by the Company upon exercise of the Options and of any other
stock options held by the Management Stockholder.
(b) In the case of an exercise of the put or call rights
described above in Sections 5(b) or 6(a), respectively, all outstanding
Options of the Management Stockholder (whether or not then exercisable) will
be automatically terminated without payment therefor. In the case of an
exercise of the put rights described above in Section 5(a) or of the call
rights described above in Sections 6(b) or 6(c), all outstanding Options
granted to the Management Stockholder under the Option Plan or otherwise,
whether or not then exercisable, will be automatically terminated upon the
payment by the Company to the Management Stockholder, pursuant to the
provisions of Sections 5(a) or 6(d) of this Agreement, as the case may be, of
an amount equal to the Option Excess Price. If the Option Excess Price is
zero or a negative number, all outstanding stock options granted to the
Management Stockholder
<PAGE>
14
under the Option Plan or otherwise, whether or not then exercisable, shall be
automatically terminated upon the repurchase of Stock as provided in Sections
5(a), 6(b) or 6(c). With respect to each Option, the Option Excess Price is
the excess, if any, of the Section 5(a) Repurchase Price or the Section 6(c)
Repurchase Price, depending on which Repurchase Price is being used to
repurchase the remainder of the Stock, over the Option Exercise Price (as
defined in the Non-Qualified Option Agreement), multiplied by the number of
Exercisable Option Shares thereunder. For purposes hereof, "Exercisable
Option Shares" shall mean the shares of Common Stock which, at the time of
determination of the Option Excess Price could be purchased by the Management
Stockholder upon exercise of his or her outstanding options. The Company will
use its reasonable best efforts to cause a Registration Statement on Form S-8
covering shares of Issued Stock contemplated hereby to be filed within six
months of the date hereof.
9. The Company's Representations and Warranties.
(a) The Company represents and warrants to the Management
Stockholder that (i) this Agreement has been duly authorized, executed and
delivered by the Company and (ii) the Issued Stock, when issued and delivered
in accordance with the terms hereof, will be duly and validly issued, fully
paid and nonassessable.
(b) The Company will file the reports required to be filed by it
under the Act and the Exchange Act and the rules and regulations adopted by
the SEC thereunder, to the extent required from time to time to enable the
Management Stockholder to sell shares of Stock without registration under the
Act within the limitations of the exemptions provided by (A) Rule 144 under
the Act, as such Rule may be amended from time to time, or (B) any similar
rule or regulation hereafter adopted by the SEC. Notwithstanding anything
contained in this Section 9(b), the Company may de-register under Section 12
of the Exchange Act if it is then 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 under the Act to be
available. Nothing in this Section 9(b) shall be deemed to limit in any
manner the restrictions on sales of Stock contained in this Agreement.
10. "Piggyback" Registration Rights.
(a) Effective upon the date of this Agreement, until the later of
(i) the first occurrence of a Qualified Public Offering (as defined in
Section 7(i) above) or (ii) the fifth anniversary of the Base Date, the
Management Stockholder hereby agrees to be bound by all of the terms,
conditions and obligations of the Registration Rights Agreement dated as of
May 19, among the Company (as successor by Merger to Newco), KKR 1996 Fund
L.P., NXS Associates, L.P. KKR Partners II, L.P. and NXS I, L.L.C. (the
"Registration Rights Agreement") and, in the case of a Qualified Public
Offering and subject to the limitations set forth in this Section 10, shall
have all of the rights and privileges of the Registration Rights Agreement,
in each case as if the Management Stockholder were an original party (other
than the Company) thereto; provided, however, that the Management Stockholder
shall not have any rights to request registration under Section 3 of the
Registration Rights Agreement; and
<PAGE>
15
provided further, that the Management Stockholder shall not be bound by any
amendments to the Registration Rights Agreement unless the Management
Stockholder consents thereto. Notwithstanding anything to the contrary
contained in the Registration Rights Agreement, the Management Stockholder's
rights and obligations under the Registration Rights Agreement shall be
subject to the limitations and additional obligations set forth in this
Section 10. All Stock purchased or held by the Management Stockholder, the
Management Stockholder's Estate or the Management Stockholder's Trust
pursuant to this Agreement shall be deemed to be Registrable Securities as
defined in the Registration Rights Agreement.
(b) The Company will promptly notify the Management Stockholder
in writing (a "Notice") of any proposed registration (a "Proposed
Registration") in connection with a Qualified Public Offering. If within 15
days of the receipt by the Management Stockholder of such Notice, the Company
receives from the Management Stockholder, the Management Stockholder's Estate
or the Management Stockholder's Trust a written request (a "Request") to
register shares of Stock held by the Management Stockholder, the Management
Stockholder's Estate or the Management Stockholder's Trust (which Request
will be irrevocable unless otherwise mutually agreed to in writing by the
Management Stockholder and the Company), shares of Stock will be so
registered as provided in this Section 10; provided, however, that for each
such registration statement only one Request, which shall be executed by the
Management Stockholder, the Management Stockholder's Estate or the Management
Stockholder's Trust, as the case may be, may be submitted for all Registrable
Securities held by the Management Stockholder, the Management Stockholder's
Estate and the Management Stockholder's Trust.
(c) The maximum number of shares of Stock which will be
registered pursuant to a Request will be the lowest of (i) the number of
shares of Stock then held by the Management Stockholder (which for purposes
of this subparagraph (c) shall include shares held by the Management
Stockholder's Estate or a Management Stockholder's Trust), including all
shares of Stock which the Management Stockholder is then entitled to acquire
under an unexercised Option to the extent then exercisable or (ii) the
maximum number of shares of Stock which the Company can register in the
Proposed Registration without adverse effect on the offering in the view of
the managing underwriters (reduced pro rata with all Other Management
Stockholders) as more fully described in subsection (d) of this Section 10 or
(iii) the maximum number of shares which the Management Stockholder (pro rata
based upon the aggregate number of shares of Common Stock the Management
Stockholder and all Other Management Stockholders have requested be
registered) and all Other Management Stockholders are permitted to register
under the Registration Rights Agreement.
(d) If a Proposed Registration involves an underwritten offering
and the managing underwriter advises the Company in writing that, in its
opinion, the number of shares of Stock requested to be included in the
Proposed 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 shares of Stock offered in such Qualified Public Offering
as contemplated by the Company, then the Company will include in the Proposed
Registration (i) first, 100% of the shares of Stock the Company proposes to
sell and (ii) second, to the extent of the number of shares of Stock
requested to be included in such registration which,
<PAGE>
16
in the opinion of such managing underwriter, can be sold without having the
adverse effect referred to above, the number of shares of Stock which the
"Holders" (as defined in the Registration Rights Agreement), including,
without limitation, the Management Stockholder and Other Management
Stockholders have requested to be included in the Proposed Registration, such
amount to be allocated pro rata among all requesting Holders on the basis of
the relative number of shares of Stock 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).
(e) Upon delivering a Request the Management Stockholder will, if
requested by the Company, execute and deliver a custody agreement and power
of attorney in form and substance satisfactory to the Company with respect to
the shares of Stock to be registered pursuant to this Section 10 (a "Custody
Agreement and Power of Attorney"). The Custody Agreement and Power of
Attorney will provide, among other things, that the Management Stockholder
will deliver to and deposit in custody with the custodian and
attorney-in-fact named therein a certificate or certificates representing
such shares of Stock (duly endorsed in blank by the registered owner or
owners thereof or accompanied by duly executed stock powers in blank) and
irrevocably appoint said custodian and attorney-in-fact as the Management
Stockholder's agent and attorney-in-fact with full power and authority to act
under the Custody Agreement and Power of Attorney on the Management
Stockholder's behalf with respect to the matters specified therein.
(f) The Management Stockholder agrees that he or she will execute
such other agreements as the Company may reasonably request to further
evidence the provisions of this Section 10.
11. Pro Rata Repurchases.
Notwithstanding anything to the contrary contained in Sections 5,
6 or 7, if at any time consummation of all purchases and payments to be made
by the Company pursuant to this Agreement and the Other Management
Stockholders' Agreements would result in an Event, then the Company shall
make purchases from, and payments to, the Management Stockholder and Other
Management Stockholders pro rata (on the basis of the proportion of the
number of shares of Stock and the number of Options each such Management
Stockholder and all Other Management Stockholders have elected or are
required to sell to the Company) for the maximum number of shares of Stock
and shall pay the Option Excess Price for the maximum number of Options
permitted without resulting in an Event (the "Maximum Repurchase Amount").
The provisions of Section 5(d) and 6(f) shall apply in their entirety to
payments and repurchases with respect to Options and shares of Stock which
may not be made due to the limits imposed by the Maximum Repurchase Amount
under this Section 11. Until all of such Stock and Options are purchased and
paid for by the Company, the Management Stockholder and the Other Management
Stockholders whose Stock and Options are not purchased in accordance with
this Section 11 shall have priority, on a pro rata basis, over other
purchases of Common Stock and Options by the Company pursuant to this
Agreement and Other Management Stockholders' Agreements.
<PAGE>
17
12. Rights to Negotiate Repurchase Price.
Nothing in this Agreement shall be deemed to restrict or prohibit
the Company from purchasing shares of Stock or Options from the Management
Stockholder, at any time, upon such terms and conditions, and for such price,
as may be mutually agreed upon between the Parties, whether or not at the
time of such purchase circumstances exist which specifically grant the
Company the right to purchase, or the Management Stockholder the right to
sell, shares of Stock or the Company has the right to pay, or the Management
Stockholder has the right to receive, the Option Excess Price under the terms
of this Agreement.
13. Covenant Regarding 83(b) Election.
Except as the Company may otherwise agree in writing, the
Management Stockholder hereby covenants and agrees that he will make an
election provided pursuant to Treasury Regulation 1.83-2 with respect to the
Stock, including without limitation, the Stock to be acquired pursuant to
Section 1 and the Stock to be acquired upon each exercise of the Management
Stockholder's Non-Qualified Options; and Management Stockholder further
covenants and agrees that he will furnish the Company with copies of the
forms of election the Management Stockholder files within 30 days after the
date hereof, and within 30 days after each exercise of Management
Stockholder's Non-Qualified Options and with evidence that each such election
has been filed in a timely manner. The Company agrees that, for purposes of
its reporting and withholding in connection with the election provided for in
the preceding sentence, the Management Stockholder will not be deemed to have
realized any compensation income with respect to any shares of Retained Stock.
14. Notice of Change of Beneficiary.
Immediately prior to any transfer of Stock to a Management
Stockholder's Trust, the Management Stockholder shall provide the Company
with a copy of the instruments creating the Management Stockholder's Trust
and with the identity of the beneficiaries of the Management Stockholder's
Trust. The Management Stockholder shall notify the Company immediately prior
to any change in the identity of any beneficiary of the Management
Stockholder's Trust.
15. Expiration of Certain Provisions.
The provisions contained in Sections 4, 5 and 6 of this Agreement
and the portion of any other provision of this Agreement which incorporates
the provisions of Sections 4, 5 and 6, shall terminate and be of no further
force or effect with respect to any shares of Stock sold by the Management
Stockholder (i) pursuant to an effective registration statement filed by the
Company pursuant to Section 10 hereof or (ii) pursuant to the terms of the
Sale Participation Agreement of even date herewith, among the Management
Stockholder, and KKR 1996 Fund L.P., NXS Associates, L.P. and KKR Partners
II, L.P.
The provisions contained in Sections 2(e), 3, 4, 5, 6 and 13 of
this Agreement, and the portion of any other provisions of this Agreement
which incorporate the provisions of
<PAGE>
18
such Sections, shall terminate and be of no further force or effect upon (i)
the sale of all or substantially all of the assets of the Company to a person
or group that is not an affiliate of Kohlberg Kravis Roberts & Co. L.P.
("KKR"), (ii) an acquisition of voting stock of the Company resulting in more
than 50% of the voting stock of the Company being held by a person or group
that does not include KKR or any of its affiliates or (iii) the consummation
of a merger, reorganization, business combination or liquidation of the
Company, but only if such merger, reorganization, business combination or
liquidation results in the Partnership or NXS Associates, L.P., or any
affiliate or affiliates thereof, together no longer having the power (A) to
elect a majority of the Board of Directors of the Company or such other
corporation which succeeds to the Company's rights and obligations pursuant
to such merger, reorganization, business combination or liquidation, or (B)
if the resulting entity of such merger, reorganization, business combination
or liquidation is not a corporation, to select the general partner(s) or
other persons or entities controlling the operations and business of the
resulting entity. Such provisions and the portion of any other provisions of
this Agreement which incorporate such provisions shall also terminate and be
of no further force and effect if the Management Stockholder's employment is
terminated and the Company has not given a Call Notice within 75 days from
the date of the applicable Call Event (i) with respect to all the Stock of a
Management Stockholder if the Management Stockholder's employment has been
terminated as a result of termination by the Management Stockholder with Good
Reason or by the Company without Cause, and (ii) with respect to only the
Initial Stock of a Management Stockholder if the Management Stockholder's
employment has been terminated for any other reason.
16. Recapitalizations, etc.
The provisions of this Agreement shall apply, to the full extent
set forth herein with respect to the Stock or the Options, to any and all
shares of capital stock of the Company or any capital stock, partnership
units or any other security evidencing ownership interests in any successor
or assign of the Company (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in exchange for, or
substitution of the Stock or the Options, by reason of any stock dividend,
split, reverse split, combination, recapitalization, liquidation,
reclassification, merger, consolidation or otherwise.
17. Management Stockholder's Employment by the Company.
Nothing contained in this Agreement or in any other agreement
entered into by the Company and the Management Stockholder contemporaneously
with the execution of this Agreement (i) obligates the Company or any
subsidiary of the Company to employ the Management Stockholder in any
capacity whatsoever or (ii) prohibits or restricts the Company (or any such
subsidiary) from terminating the employment, if any, of the Management
Stockholder at any time or for any reason whatsoever, with or without Cause,
and the Management Stockholder hereby acknowledges and agrees that neither
the Company nor any other person has made any representations or promises
whatsoever to the Management Stockholder concerning the Management
Stockholder's employment or continued employment by the Company or any
subsidiary of the Company.
<PAGE>
19
18. State Securities Laws.
The Company hereby agrees to use its best efforts to comply with
all state securities or "blue sky" laws which might be applicable to the sale
of the Stock and the issuance of the Options to the Management Stockholder.
19. Binding Effect.
The provisions of this Agreement shall be binding upon and accrue
to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. In the case of a transferee
permitted under Section 2(a) hereof, such transferee shall be deemed the
Management Stockholder hereunder; provided, however, that no transferee
(including without limitation, transferees referred to in Section 2(a)
hereof) shall derive any rights under this Agreement unless and until such
transferee has delivered to the Company a valid undertaking and becomes bound
by the terms of this Agreement.
20. Amendment.
This Agreement may be amended only by a written instrument signed
by the Parties hereto.
21. Closing.
Except as otherwise provided herein, the closing of each purchase
and sale of shares of Stock and the payment of the Option Excess Price, if
any, pursuant to this Agreement shall take place at the principal office of
the Company on the tenth business day following delivery of the notice by
either Party to the other of its exercise of the right to purchase or sell
such Stock hereunder or to cause the payment of the Option Excess Price, if
any.
22. Applicable Law.
The laws of the state of Delaware (or if the Company
reincorporates in another state, of that state) shall govern the
interpretation, validity and performance of the terms of this Agreement,
regardless of the law that might be applied under principles of conflicts of
law. Any suit, action or proceeding against the Management Stockholder, with
respect to this Agreement, or any judgment entered by any court in respect of
any thereof, may be brought in any court of competent jurisdiction in the
State of Delaware (or if the Company reincorporates in another state, in that
state) or New York, as the Company may elect in its sole discretion, and the
Management Stockholder hereby submits to the non-exclusive jurisdiction of
such courts for the purpose of any such suit, action, proceeding or judgment.
By the execution and delivery of this Agreement, the Management Stockholder
appoints The Corporation Trust Company, at its office in New York, New York
or Wilmington, Delaware (or if the Company reincorporates in another state,
an office in that state), as the case may be, as his agent upon which process
may be served in any such suit, action or proceeding. Service of process upon
such agent, together with notice of such service given to the
<PAGE>
20
Management Stockholder in the manner provided in Section 25 hereof, shall be
deemed in every respect effective service of process upon him in any suit,
action or proceeding. Nothing herein shall in any way be deemed to limit the
ability of the Company to serve any such writs, process or summonses in any
other manner permitted by applicable law or to obtain jurisdiction over the
Management Stockholder, in such other jurisdictions and in such manner, as
may be permitted by applicable law. The Management Stockholder hereby
irrevocably waives any objections which he may now or hereafter have to the
laying of the venue of any suit, action or proceeding arising out of or
relating to this Agreement brought in any court of competent jurisdiction in
the State of Delaware (or if the Company reincorporates in another state, in
that state) or New York, and hereby further irrevocably waives any claim that
any such suit, action or proceeding brought in any such court has been
brought in any inconvenient forum. No suit, action or proceeding against the
Company with respect to this Agreement may be brought in any court, domestic
or foreign, or before any similar domestic or foreign authority other than in
a court of competent jurisdiction in the State of Delaware (or if the Company
reincorporates in another state, in that state) or New York, and the
Management Stockholder hereby irrevocably waives any right which he may
otherwise have had to bring such an action in any other court, domestic or
foreign, or before any similar domestic or foreign authority. The Company
hereby submits to the jurisdiction of such courts for the purpose of any such
suit, action or proceeding. Each Party hereto hereby irrevocably and
unconditionally waives trial by jury in any legal action or proceeding in
relation to this Agreement and for any counterclaim therein.
23. Assignability of Certain Rights by the Company.
The Company shall have the right to assign any or all of its
rights or obligations to purchase shares of Stock pursuant to Sections 4, 5
and 6 hereof; provided, however, that the Company shall remain obligated to
perform its obligations notwithstanding such assignment in the event that
such assignee fails to perform the obligations so assigned to it.
24. Miscellaneous.
In this Agreement (i) all references to "dollars" or "$" are to
United States dollars and (ii) the word "or" is not exclusive. If any
provision of this Agreement shall be declared illegal, void or unenforceable
by any court of competent jurisdiction, the other provisions shall not be
affected, but shall remain in full force and effect.
25. Notices.
All notices and other communications provided for herein shall be
in writing and shall be deemed to have been duly given if delivered by hand
(whether by overnight courier or otherwise) or sent by registered or
certified mail, return receipt requested, postage prepaid, or by overnight
delivery or telecopy, to the Party to whom it is directed:
<PAGE>
21
(a) If to the Company, to it at the following address:
c/o Kohlberg Kravis Roberts & Co.
2800 Sand Hill Road
Suite 200
Menlo Park, California 94025
Attn: Michael Michelson
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3909
Attn: Charles I. Cogut, Esq.
(b) If to the Management Stockholder, to him at the address set
forth below under his signature;
or at such other address as either party shall have specified
by notice in writing to the other.
26. Covenant Not to Compete; Confidential Information.
(a) In consideration of the Company entering into this Agreement
with the Management Stockholder, the Management Stockholder hereby agrees
effective as of the Base Date, for so long as the Management Stockholder is
employed by the Company or one of its subsidiaries and for a period of one
year thereafter (the "Noncompete Period"), the Management Stockholder shall
not, directly or indirectly, engage in the production, sale or distribution
of any product produced, sold, distributed or which is in development by the
Company or its subsidiaries on the date hereof or during the Noncompete
Period anywhere in the world in which the Company or its subsidiaries is
doing business other than through the Management Stockholder's employment
with the Company or any of its subsidiaries. In the event that the Management
Stockholder's employment is terminated by the Management Stockholder for Good
Reason or by the Company without Cause, then the Company shall pay the
Management Stockholder an amount equal to 50% of such Management
Stockholder's base salary on the date of the termination of the Management
Stockholder's employment. At the Company's option, the Noncompete Period may
be extended for an additional one year period if (i) within nine months of
the termination of the Management Stockholder's employment, the Company gives
the Management Stockholder notice of such extension and (ii) beginning with
the first anniversary of such termination, the Company pays the Management
Stockholder an amount equal to 50% of the Management Stockholder's base
salary on the date of the termination of his employment. Each amount referred
to in the preceding two sentences shall be paid in installments in a manner
consistent with the then current salary payment policies of the Company;
provided that if at any time the Company
<PAGE>
22
elects, in its sole discretion, to waive further compliance by the Management
Stockholder with the requirements of this Section 26(a) (upon the Management
Stockholder securing alternate employment or otherwise), then the Company
shall be relieved of its obligation to pay the unpaid balance, if any, of
such amounts which is then owing to the Management Stockholder. For purposes
of this Agreement, the phrase "directly or indirectly engage in" shall
include any direct or indirect ownership or profit participation interest in
such enterprise, whether as an owner, stockholder, partner, joint venturer of
otherwise, and shall include any direct or indirect participation in such
enterprise as a consultant, licensor of technology or otherwise.
(b) The Management Stockholder will not disclose or use at any
time any Confidential Information (as defined below) of which the Management
Stockholder is or becomes aware, whether or not such information is developed
by him, except to the extent that such disclosure or use is directly related
to and required by the Management Stockholder's performance of duties, if
any, assigned to the Management Stockholder by the Company. As used in this
Agreement, the term "Confidential Information" means information that is not
generally known to the public and that is used, developed or obtained by the
Company or its subsidiaries in connection with its business, including but
not limited to (i) products or services, (ii) fees, costs and pricing
structures, (iii) designs, (iv) computer software, including operating
systems, applications and program listings, (v) flow charts, manuals and
documentation, (vi) data bases, (vii) accounting and business methods, (viii)
inventions, devices, new developments, methods and processes, whether
patentable or unpatentable and whether or not reduced to practice, (ix)
customers and clients and customer or client lists, (x) other copyrightable
works, (xi) all technology and trade secrets, and (xii) all similar and
related information in whatever form. Confidential Information will not
include any information that has been published in a form generally available
to the public prior to the date the Management Stockholder proposes to
disclose or use such information. The Management Stockholder acknowledges and
agrees that all copyrights, works, inventions, innovations, improvements,
developments, patents, trademarks and all similar or related information
which relate to the actual or anticipated business of the Company and its
subsidiaries (including its predecessors) and conceived, developed or made by
the Management Stockholder while employed by the Company or its subsidiaries
belong to the Company. The Management Stockholder will perform all actions
reasonably requested by the Company (whether during or after the Noncompete
Period) to establish and confirm such ownership at the Company's expense
(including without limitation assignments, consents, powers of attorney and
other instruments). If the Management Stockholder is bound by any other
agreement with the Company regarding the use or disclosure of confidential
information, the provisions of this Agreement shall be read in such a way as
to further restrict and not to permit any more extensive use or disclosure of
confidential information.
(c) Notwithstanding clauses (a) and (b) above, if at any time a
court holds that the restrictions stated in such clauses (a) and (b) are
unreasonable or otherwise unenforceable under circumstances then existing,
the parties hereto agree that the maximum period, scope or geographic area
determined to be reasonable under such circumstances by such court will be
substituted for the stated period, scope or area. Because the Management
Stockholder's services are unique and because the Management Stockholder has
had access to
<PAGE>
23
Confidential Information, the parties hereto agree that money damages will be
an inadequate remedy for any breach of this Agreement. In the event a breach
or threatened breach of this Agreement, the Company or its successors or
assigns may, in addition to other rights and remedies existing in their
favor, apply to any court of competent jurisdiction for specific performance
and/or injunctive relief in order to enforce, or prevent any violations of,
the provisions hereof (without the posting of a bond or other security).
<PAGE>
24
IN WITNESS WHEREOF, the Parties have executed this Agreement as
of the date first above written.
AMPHENOL CORPORATION
By: /s/ Edward C. Wetmore
----------------------
Name: Edward C. Wetmore
Title: Secretary and General Counsel
/s/ Timothy Cohane
----------------------------------
Timothy Cohane
----------------------------------
Management Stockholder
65 Pine Brook Court
Cheshire, CT 06410
Address of Management Stockholder
<PAGE>
SCHEDULE I
Targeted Retained Number: 76,923
Actual Retained Number: 64,384 (plus 38,787 in wife's
name)
Number of Shares of Retained Stock: 76,923
Number of Shares of Purchase Stock: 0
Issued Stock: N.A.
Market Stock: N.A.
Aggregate Purchase Price: N.A.
<PAGE>
EXHIBIT A
Form of Non-Qualified Stock Option Agreement
<PAGE>
EXHIBIT 10.16
1997 OPTION PLAN
FOR KEY EMPLOYEES OF
AMPHENOL AND SUBSIDIARIES
1. Purpose of Plan
The 1997 Option Plan for Key Employees of Amphenol and Subsidiaries (the
"Plan") is designed:
(a) to promote the long term financial interests and growth of Amphenol
Corporation (the "Corporation") and its subsidiaries by attracting and retaining
management personnel with the training, experience and ability to enable them to
make a substantial contribution to the success of the Corporation's business;
(b) to motivate management personnel by means of growth-related incentives
to achieve long range goals; and
(c) to further the alignment of interests of participants with those of
the stockholders of the Corporation through opportunities for increased stock,
or stock-based, ownership in the Corporation.
2. Definitions
As used in the Plan, the following words shall have the following
meanings:
(a) "Board of Directors" means the Board of Directors of the Corporation.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Committee" means the Compensation Committee of the Board of
Directors.
(d) "Common Stock" or "Share" means Series A Common Stock of the
Corporation which may be authorized but unissued, or issued and reacquired.
(e) "Employee" means a person, including an officer, in the regular
full-time employment of the Corporation or one of its Subsidiaries who, in the
opinion of the Committee, is, or is expected to be, primarily responsible for
the management, growth or protection of some part or all of the business of the
Corporation.
(f) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(g) "Fair Market Value" means such value of a Share as reported for stock
exchange transactions and/or determined in accordance with any applicable
resolutions or regulations of the Committee in effect at the relevant time.
<PAGE>
2
(h) "Management Stockholders' Agreement" means an agreement between the
Corporation and a Participant that sets forth the terms and conditions and
limitations applicable to any Shares purchased pursuant to Options granted under
this Plan.
(i) "Option Agreement" means an agreement between the Corporation and a
Participant that sets forth the terms, conditions and limitations applicable to
a grant of Options pursuant to the Plan.
(j) "Option" means an option to purchase shares of the Common Stock which
will not be an "incentive stock option" (within the meaning of Section 422 of
the Code).
(k) "Participant" means an Employee, or other person having a unique
relationship with the Corporation or one of its Subsidiaries, to whom one or
more grants of Options have been made and such grants have not all been
forfeited or terminated under the Plan; provided, however, that a non-employee
director of the Corporation or one of its Subsidiaries may not be a Participant.
(l) "Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Corporation if each of the corporations, or
group of commonly controlled corporations, other than the last corporation in
the unbroken chain then owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations in such
chain.
3. Administration of Plan
(a) The Plan shall be administered by the Committee. None of the members
of the Committee shall be eligible to be selected for Option grants or to
purchase Shares under the Plan, or have been so eligible for selection within
one year prior thereto; provided, however, that the members of the Committee
shall qualify to administer the Plan for purposes of Rule 16b-3 (and any other
applicable rule) promulgated under Section 16(b) of the Exchange Act to the
extent that the Corporation is subject to such rule. The Committee may adopt its
own rules of procedure, and action of a majority of the members of the Committee
taken at a meeting, or action taken without a meeting by unanimous written
consent, shall constitute action by the Committee. The Committee shall have the
power and authority to administer, construe and interpret the Plan, to make
rules for carrying it out and to make changes in such rules. Any such
interpretations, rules and administration shall be consistent with the basic
purposes of the Plan.
(b) The Committee may delegate to the Chief Executive Officer and to other
senior officers of the Corporation its duties under the Plan subject to such
conditions and limitations as the Committee shall prescribe except that only the
Committee may designate and make Option grants to Participants who are subject
to Section 16 of the Exchange Act.
(c) The Committee may employ attorneys, consultants, accountants,
appraisers, brokers or other persons. The Committee, the Corporation, and the
officers and directors of
<PAGE>
3
the Corporation shall be entitled to rely upon the advice, opinions or
valuations of any such persons. All actions taken and all interpretations and
determinations made by the Committee in good faith shall be final and binding
upon all Participants, the Corporation and all other interested persons. No
member of the Committee shall be personally liable for any action, determination
or interpretation made in good faith with respect to the Plan or Option grants,
and all members of the Committee shall be fully protected by the Corporation
with respect to any such action, determination or interpretation.
4. Eligibility
The Committee may from time to time make Option grants under the Plan to
such Employees, or other persons having a unique relationship with Corporation
or any of its Subsidiaries, and in such form and having such terms, conditions
and limitations as the Committee may determine. No Option grants may be made
under this Plan to non-employee directors of Corporation or any of its
Subsidiaries. Options may be granted singly, in combination or in tandem. The
terms, conditions and limitations of each Option grant under the Plan shall be
set forth in an Option Agreement, in a form approved by the Committee,
consistent, however, with the terms of the Plan and the Management Stockholders'
Agreement.
5. Grants
From time to time, the Committee, in its sole discretion, will determine
the forms and amounts of Options to be granted to Participants. At the time of
an Option grant, the Committee shall determine, and shall include in the Option
Agreement or other Plan rules, the option exercise period, the option price, and
such other conditions or restrictions on the grant or exercise of the Option as
the Committee deems appropriate. In addition to other restrictions contained in
the Plan, an Option granted under this Paragraph 5, (i) may not be exercised
more than 10 years after the date it is granted and (ii) may not have an option
exercise price less than 50% of the Fair Market Value of Common Stock on the
date the Option is granted. Payment of the option price shall be made in cash or
in shares of Common Stock, or a combination thereof, in accordance with the
terms of the Plan, the Option Agreement and of any applicable guidelines of the
Committee in effect at the time.
Options may be granted prior to the effective date of the Plan (as
determined pursuant to Paragraph 13 herein); provided, however, that no Option
shall be Exercisable prior to the date of the approval of the Plan by the
stockholders of the Corporation.
6. Limitations and Conditions
(a) The number of Shares available under this Plan shall be 1,200,000
shares of the authorized Common Stock as of the effective date of the Plan. The
number of Shares subject to Options under this Plan to any one Participant shall
not be more than 500,000 Shares. Unless restricted by applicable law, Shares
related to Options that are forfeited, terminated, cancelled or expire
unexercised, shall immediately become available to be subject to Option grants.
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4
(b) No Options shall be granted under the Plan beyond ten years after the
effective date of the Plan, but the terms of Options granted on or before the
expiration of the Plan may extend beyond such expiration. At the time an Option
is granted or amended or the terms or conditions of an Option are changed, the
Committee may provide for limitations or conditions on such grant or purchase
consistent with the terms of the Management Stockholders' Agreement.
(c) Nothing contained herein shall affect the right of the Corporation to
terminate any Participant's employment at any time or for any reason.
(d) Other than as specifically provided with regard to the death of a
Participant, no benefit under the Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or
charge, and any attempt to do so shall be void. No such benefit shall, prior to
receipt thereof by the Participant, be in any manner liable for or subject to
the debts, contracts, liabilities, engagements, or torts of the Participant.
(e) Participants shall not be, and shall not have any of the rights or
privileges of, stockholders of the Corporation in respect of any Shares
purchasable in connection with any Option grant unless and until certificates
representing any such Shares have been issued by the Corporation to such
Participants.
(f) No election as to benefits or exercise of Options may be made during a
Participant's lifetime by anyone other than the Participant except by a legal
representative appointed for or by the Participant.
(g) Absent express provisions to the contrary, any grant of Options under
this Plan shall not be deemed compensation for purposes of computing benefits or
contributions under any retirement plan of the Corporation or its Subsidiaries
and shall not affect any benefits under any other benefit plan of any kind now
or subsequently in effect under which the availability or amount of benefits is
related to level of compensation. This Plan is not a "Retirement Plan" or
"Welfare Plan" under the Employee Retirement Income Security Act of 1974, as
amended.
(h) Unless the Committee determines otherwise, no benefit or promise under
the Plan shall be secured by any specific assets of the Corporation or any of
its Subsidiaries, nor shall any assets of the Corporation or any of its
Subsidiaries be designated as attributable or allocated to the satisfaction of
the Corporation's obligations under the Plan.
7. Transfers and Leaves of Absence
For purposes of the Plan, unless the Committee determines otherwise: (a) a
transfer of a Participant's employment without an intervening period of
separation among the Corporation and any Subsidiary shall not be deemed a
termination of employment, and (b) a Participant who is granted in writing a
leave of absence shall be deemed to have remained in the employ of the
Corporation during such leave of absence.
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5
8. Adjustments
In the event of any change in the outstanding Common Stock by reason of a
stock split, spin-off, stock dividend, stock combination or reclassification,
recapitalization or merger, change of control, or similar event, the Committee
may adjust appropriately the number of Shares subject to the Plan and available
for or covered by Option grants and exercise prices related to outstanding
Option grants and make such other revisions to outstanding Option grants as it
deems are equitably required.
9. Merger, Consolidation, Exchange,
Acquisition, Liquidation or Dissolution
In its absolute discretion, and on such terms and conditions as it deems
appropriate, coincident with or after the grant of any Option, the Committee may
provide that such Option cannot be exercised after the merger or consolidation
of the Corporation into another corporation, the exchange of all or
substantially all of the assets of the Corporation for the securities of another
corporation, the acquisition by another corporation of 80% or more of the
Corporation's then outstanding shares of voting stock or the recapitalization,
reclassification, liquidation or dissolution of the Corporation (a
"Transaction"), and if the Committee so provides, it shall, on such terms and
conditions as it deems appropriate, also provide, either by the terms of such
Option or by a resolution adopted prior to the occurrence of such Transaction,
that, for some reasonable period of time prior to such Transaction, such Option
shall be exercisable as to all shares subject thereto, notwithstanding anything
to the contrary herein (but subject to the provisions of Paragraph 6(b)) and
that, upon the occurrence of such event, such Option shall terminate and be of
no further force or effect; provided, however, that the Committee may also
provide, in its absolute discretion, that even if the Option shall remain
exercisable after any such event, from and after such event, any such Option
shall be exercisable only for the kind and amount of securities and/or other
property, or the cash equivalent thereof, receivable as a result of such event
by the holder of a number of shares of stock for which such Option could have
been exercised immediately prior to such event.
10. Amendment and Termination
The Committee shall have the authority to make such amendments to any
terms and conditions applicable to outstanding Option grants as are consistent
with this Plan provided that, except for adjustments under Paragraph 8 or 9
hereof, no such action shall modify such Option grant in a manner adverse to the
Participant without the Participant's consent except as such modification is
provided for or contemplated in the terms of the Option grant.
The Board of Directors may amend, suspend or terminate the Plan except
that no such action, other than an action under Paragraph 8 or 9 hereof, may be
taken which would, without shareholder approval, increase the aggregate number
of Shares subject to Options under the Plan, decrease the exercise price of
outstanding Options, change the requirements relating to the Committee or extend
the term of the Plan.
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6
11. Foreign Options and Rights
The Committee may grant Options to Employees who are subject to the
laws of nations other than the United States, which Option grants may have terms
and conditions that differ from the terms thereof as provided elsewhere in the
Plan for the purpose of complying with foreign laws.
12. Withholding Taxes
The Corporation shall have the right to deduct from any cash payment made
under the Plan any federal, state or local income or other taxes required by law
to be withheld with respect to such payment. It shall be a condition to the
obligation of the Corporation to deliver shares upon the exercise of an Option
that the Participant pay to the Corporation such amount as may be requested by
the Corporation for the purpose of satisfying any liability for such withholding
taxes. Any Option Agreement may provide that the Participant may elect, in
accordance with any conditions set forth in such Option Agreement, to pay a
portion or all of such withholding taxes in shares of Common Stock.
13. Effective Date and Termination Dates
The Plan shall be effective on and as of the date of its approval by the
stockholders of the Corporation and shall terminate ten years later, subject to
earlier termination by the Board of Directors pursuant to Paragraph 10.
<PAGE>
EXHIBIT 10.17
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of May 19, 1997, is made by and between
AMPHENOL CORPORATION a Delaware corporation (hereinafter referred to as the
"Company"), and MARTIN H. LOEFFLER, an employee of the Company or a Subsidiary
(as defined below) or Affiliate (as defined below) of the Company (hereinafter
referred to as "Optionee").
WHEREAS, the Company wishes to afford the Optionee the opportunity
to purchase shares of its Class A Common Stock, par value $.001 per share (the
"Common Stock");
WHEREAS, the Company wishes to carry out the Plan (as hereinafter
defined), the terms of which are hereby incorporated by reference and made a
part of this Agreement; and
WHEREAS, the Committee (as hereinafter defined), appointed to
administer the Plan, has determined that it would be to the advantage and best
interest of the Company and its stockholders to grant the Non-Qualified Options
provided for herein to the Optionee as an incentive for increased efforts during
his term of office with the Company or its Subsidiaries or Affiliates, and has
advised the Company thereof and instructed the undersigned officers to issue
said Options;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall
have the meaning specified in the Plan or below unless the context clearly
indicates to the contrary.
Section 1.1 - Affiliate
"Affiliate" shall mean, with respect to the Company, any corporation
directly or indirectly controlling, controlled by, or under common control with,
the Company or any other entity designated by the Board of Directors of the
Company in which the Company or an Affiliate has an interest.
Section 1.2 - Cause
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2
"Cause" shall mean, (i) the Optionee's willful and continued failure
to perform his or her duties with respect to the Company or its Subsidiaries
which continues beyond 10 days after a written demand for substantial
performance is delivered to the Optionee by the Company or (ii) misconduct by
the Optionee (x) involving dishonesty or breach of trust in connection with
Optionee's employment, (y) which would be a reasonable basis for an indictment
of the Optionee of a felony or a misdemeanor involving moral turpitude or (z)
which results in a demonstrable injury to the Company.
Section 1.3 - Change of Control
"Change of Control" shall mean (i) a sale of all or substantially
all of the assets of the Company to a Person who is not an Affiliate of Kohlberg
Kravis Roberts & Co. L.P. ("KKR"), (ii) an acquisition of voting stock of the
Company resulting in more than 50% of the voting stock of the Company being held
by a Person or Group that does not include KKR or any of its Affiliates or (iii)
the consummation of a merger, reorganization, business combination or
liquidation of the Company, but only if such merger, reorganization, business
combination or liquidation results in the KKR 1996 Fund L.P., a Delaware limited
partnership (the "Partnership") or NXS Associates L.P., or any affiliates or
affiliates thereof, together no longer having power (A) to elect a majority of
the Board of Directors of the Company or such other corporation which succeeds
to the Company's rights and obligation pursuant to such merger, reorganization,
business combination or liquidation, or (B) if the resulting entity of such
merger, reorganization, business combination or liquidation is not a
corporation, to select the general partner(s) or other persons or entities
controlling the operations and business of the resulting entity.
Section 1.4 - Code
"Code" shall mean the Internal Revenue Code of 1986, as amended.
Section 1.5 - Committee
"Committee" shall mean the Compensation Committee of the Company.
Section 1.6 - Good Reason
"Good Reason" shall mean (i) a reduction in Optionee's base salary
(other than a broad based salary reduction program affecting many members of
management), (ii) a substantial reduction in Optionee's duties and
responsibilities, (iii) the elimination or reduction of the Optionee's
eligibility to participate in the Company's benefit programs that is
inconsistent with the eligibility of similarly situated employees of the Company
to participate therein, or (iv) a transfer of the Optionee's primary workplace
by more than fifty (50) miles from the workplace as of the date hereof.
Section 1.7 - Grant Date
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3
"Grant Date" shall mean the date on which the Options provided for
in this Agreement were granted.
Section 1.8 - Group
"Group" means two or more Persons acting together as a partnership,
limited partnership, syndicate or other group for the purpose of acquiring,
holding or disposing of securities of the Company.
Section 1.9 - Management Stockholder's Agreement
"Management Stockholder's Agreement" shall mean that certain
Management Stockholder's Agreement dated as of May 19, 1997, between the
Optionee and the Company.
Section 1.10 - Options
"Options" shall mean the non-qualified options, to purchase Common
Stock granted under this Agreement.
Section 1.11 - Permanent Disability
The Optionee shall be deemed to have a "Permanent Disability" if the
Optionee is unable to engage in the activities required by the Optionee's job by
reason of any medically determined physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.
Section 1.12 - Person
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
Section 1.13 - Plan
"Plan" shall mean the 1997 Option Plan for Key Employees of Amphenol
and Subsidiaries.
Section 1.14 - Pronouns
The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates.
Section 1.15 - Retirement
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4
"Retirement" shall mean retirement at age 65 or over (or such other
age as may be approved by the Board of Directors of the Company) after having
been employed by the Company or a Subsidiary for at least three years after the
Grant Date.
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5
Section 1.16 - Secretary
"Secretary" shall mean the Secretary of the Company.
Section 1.17 - Subsidiary
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations, or group of
commonly controlled corporations (other than the last corporation in the
unbroken chain), then owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations in such
chain.
Section 1.18 - Trigger Date
"Trigger Date" shall mean the date hereof.
ARTICLE II
GRANT OF OPTIONS
Section 2.1 - Grant of Options
For good and valuable consideration, on and as of the date hereof
the Company irrevocably grants to the Optionee an Option to purchase any part or
all of an aggregate of 336,538 shares of its $.001 par value Class A Common
Stock upon the terms and conditions set forth in this Agreement.
Section 2.2 - Exercise Price
Subject to Section 2.4, the exercise price of the shares of stock
covered by the Options (the "Option Exercise Price") shall be $26.00 per share
without commission or other charge.
Section 2.3 - No Right to Employment
Nothing in this Agreement or in the Plan shall confer upon the
Optionee any right to continue in the employ of the Company or any Subsidiary or
Affiliate or shall interfere with or restrict in any way the rights of the
Company and its Subsidiaries or Affiliates, which are hereby expressly reserved,
to terminate the employment of the Optionee at any time for any reason
whatsoever, with or without Cause.
Section 2.4 - Adjustments in Options Pursuant to Merger, Consolidation, etc.
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6
Subject to Section 9 of the Plan, in the event that the outstanding
shares of the stock subject to an Option are, from time to time, changed into or
exchanged for a different number or kind of shares of the Company or other
securities of the Company by reason of a merger, consolidation,
recapitalization, reclassification, stock split, stock dividend, combination of
shares, or otherwise, the Committee shall make an adjustment in the number and
kind of shares and/or the amount of consideration as to which or for which, as
the case may be, such Option, or portions thereof then unexercised, shall be
exercisable, in such manner as the Committee determines is reasonably necessary
to maintain as nearly as practicable the rights, benefits and obligations that
the parties would have had absent such event. Any such adjustment made by the
Committee shall be final and binding upon the Optionee, the Company and all
other interested persons.
ARTICLE III
PERIOD OF EXERCISABILITY
Section 3.1 - Commencement of Exercisability
(a) Options shall become exercisable as follows:
Percentage of Option
Date Option Shares Granted As to Which
Becomes Exercisable Option Is Exercisable
- ------------------- ---------------------
After the first anniversary
of the Trigger Date 20%
After the second anniversary
of the Trigger Date 40%
After the third anniversary
of the Trigger Date 60%
After the fourth anniversary
of the Trigger Date 80%
After the fifth anniversary
of the Trigger Date 100%
Notwithstanding the foregoing, (x) no Options shall become
exercisable prior to the time the Plan is approved by the Company's
stockholders, and (y) subject to the immediately preceding clause (x), the
Options shall become immediately exercisable as to 100% of the shares of Common
Stock subject to such Options immediately prior to a Change
<PAGE>
7
of Control (but only to the extent such Options have not otherwise terminated or
become exercisable).
(b) Notwithstanding the foregoing, no Option shall become
exercisable as to any additional shares of Common Stock following the
termination of employment of the Optionee for any reason other than a
termination of employment because of death or Permanent Disability of the
Optionee, and any Option (other than as provided in the next succeeding
sentence) which is non-exercisable as of the Optionee's termination of
employment shall be immediately cancelled. In the event of a termination of
employment because of such death or Permanent Disability, the Options shall
immediately become exercisable as to all shares of Common Stock subject thereto.
Section 3.2 - Expiration of Options
Except as otherwise provided in Section 5 or 6 of the Management
Stockholder's Agreement, the Options may not be exercised to any extent by the
Optionee after the first to occur of the following events:
(a) The tenth anniversary of the Grant Date; or
(b) The first anniversary of the date of the Optionee's termination
of employment by reason of death, Permanent Disability or Retirement; or
(c) The first business day which is fifteen calendar days after the
earlier of (i) 75 days after termination of employment of the Optionee for
any reason other than for death, Permanent Disability or Retirement and
(ii) the delivery of notice by the Company that it does not intend to
exercise its call rights under Section 6 of the Management Stockholder's
Agreement; provided, however, that in any event the Options shall remain
exercisable under this subsection 3.2(c) until at least 45 days after
termination of employment of the Optionee for any reason other than for
death, Permanent Disability or Retirement; or
(d) The date the Option is terminated pursuant to Section 5, 6 or
8(b) of the Management Stockholder's Agreement; or
(e) If the Committee so elects pursuant to Section 9 of the Plan,
the effective date of a Transaction; provided, however, that the Committee
has provided Optionee with a reasonable period of notice prior to the
effective date of such Transaction in which to exercise Options that have
then neither been fully exercised nor become unexercisable under this
Section 3.2.
ARTICLE IV
EXERCISE OF OPTIONS
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8
Section 4.1 - Person Eligible to Exercise
Except as provided in the Management Stockholder's Agreement, during
the lifetime of the Optionee, only he may exercise an Option or any portion
thereof. After the death of the Optionee, any exercisable portion of an Option
may, prior to the time when an Option becomes unexercisable under Section 3.2,
be exercised by his personal representative or by any person empowered to do so
under the Optionee's will or under the then applicable laws of descent and
distribution.
Section 4.2 - Partial Exercise
Any exercisable portion of an Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.2; provided, however, that any partial exercise shall be for whole shares of
Common Stock only.
Section 4.3 - Manner of Exercise
An Option, or any exercisable portion thereof, may be exercised
solely by delivering to the Secretary or his office all of the following prior
to the time when the Option or such portion becomes unexercisable under Section
3.2:
(a) Notice in writing signed by the Optionee or the other person
then entitled to exercise the Option or portion thereof, stating that the
Option or portion thereof is thereby exercised, such notice complying with
all applicable rules established by the Committee;
(b) Full payment (in cash, by check or by a combination thereof) for
the shares with respect to which such Option or portion thereof is
exercised;
(c) A bona fide written representation and agreement, in a form
satisfactory to the Committee, signed by the Optionee or other person then
entitled to exercise such Option or portion thereof, stating that the
shares of stock are being acquired for his own account, for investment and
without any present intention of distributing or reselling said shares or
any of them except as may be permitted under the Securities Act of 1933,
as amended (the "Act"), and then applicable rules and regulations
thereunder, and that the Optionee or other person then entitled to
exercise such Option or portion thereof will indemnify the Company against
and hold it free and harmless from any loss, damage, expense or liability
resulting to the Company if any sale or distribution of the shares by such
person is contrary to the representation and agreement referred to above;
provided, however, that the Committee may, in its absolute discretion,
take whatever additional actions it deems appropriate to ensure the
observance and performance of such representation and agreement and to
effect compliance with the Act and any other federal or state securities
laws or regulations;
<PAGE>
9
(d) Full payment to the Company of all amounts which, under federal,
state or local law, it is required to withhold upon exercise of the
Option; and
(e) In the event the Option or portion thereof shall be exercised
pursuant to Section 4.1 by any person or persons other than the Optionee,
appropriate proof of the right of such person or persons to exercise the
option.
Without limiting the generality of the foregoing, the Committee may require an
opinion of counsel acceptable to it to the effect that any subsequent transfer
of shares acquired on exercise of an Option does not violate the Act, and may
issue stop-transfer orders covering such shares. Share certificates evidencing
stock issued on exercise of this Option shall bear an appropriate legend
referring to the provisions of subsection (c) above and the agreements herein.
The written representation and agreement referred to in subsection (c) above
shall, however, not be required if the shares to be issued pursuant to such
exercise have been registered under the Act, and such registration is then
effective in respect of such shares.
Section 4.4 - Conditions to Issuance of Stock Certificates
The shares of stock deliverable upon the exercise of an Option, or
any portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be validly issued, fully paid and nonassessable. The Company shall not be
required to issue or deliver any certificate or certificates for shares of stock
purchased upon the exercise of an Option or portion thereof prior to fulfillment
of all of the following conditions:
(a) The obtaining of approval or other clearance from any state or
federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(b) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may from time to time establish
for reasons of administrative convenience.
Section 4.5 - Rights as Stockholder
The holder of an Option shall not be, nor have any of the rights or
privileges of, a stockholder of the Company in respect of any shares purchasable
upon the exercise of the Option or any portion thereof unless and until
certificates representing such shares shall have been issued by the Company to
such holder.
ARTICLE V
MISCELLANEOUS
Section 5.1 - Administration
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10
The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke
any such rules. All actions taken and all interpretations and determinations
made by the Committee shall be final and binding upon the Optionee, the Company
and all other interested persons. No member of the Committee shall be personally
liable for any action, determination or interpretation made in good faith with
respect to the Plan or the Options. In its absolute discretion, the Board of
Directors may at any time and from time to time exercise any and all rights and
duties of the Committee under the Plan and this Agreement.
Section 5.2 - Options Not Transferable
Except as provided in the Management Stockholder's Agreement,
neither the Options nor any interest or right therein or part thereof shall be
liable for the debts, contracts or engagements of the Optionee or his successors
in interest or shall be subject to disposition by transfer, alienation,
anticipation, pledge, encumbrance, assignment or any other means whether such
disposition be voluntary or involuntary or by operation of law by judgment,
levy, attachment, garnishment or any other legal or equitable proceedings
(including bankruptcy), and any attempted disposition thereof shall be null and
void and of no effect; provided, however, that this Section 5.2 shall not
prevent transfers by will or by the applicable laws of descent and distribution.
Section 5.3 - Shares to Be Reserved
The Company shall at all times during the term of the Options
reserve and keep available such number of shares of stock as will be sufficient
to satisfy the requirements of this Agreement.
Section 5.4 - Notices
Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Optionee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Optionee shall, if
the Optionee is then deceased, be given to the Optionee's personal
representative if such representative has previously informed the Company of his
status and address by written notice under this Section 5.4. Any notice shall
have been deemed duly given when enclosed in a properly sealed envelope or
wrapper addressed as aforesaid, deposited (with postage prepaid) in a post
office or branch post office regularly maintained by the United States Postal
Service, or when sent by overnight delivery or telecopy.
Section 5.5 - Titles
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
<PAGE>
11
Section 5.6 - Applicability of Plan and Management Stockholder's Agreement
The Options and the shares of Common Stock issued to the Optionee
upon exercise of the Options shall be subject to all of the terms and provisions
of the Plan and the Management Stockholder's Agreement, to the extent applicable
to the Options and such shares. In the event of any conflict between this
Agreement and the Plan, the terms of the Plan shall control. In the event of any
conflict between this Agreement or the Plan and the Management Stockholder's
Agreement, the terms of the Management Stockholder's Agreement shall control.
Section 5.7 - Amendment
This Agreement may be amended only by a writing executed by the
parties hereto which specifically states that it is amending this Agreement.
Section 5.8 - Governing Law
The laws of the State of Delaware (or if the Company reincorporates
in another state, the laws of that state) shall govern the interpretation,
validity and performance of the terms of this Agreement regardless of the law
that might be applied under principles of conflicts of laws.
Section 5.9 - Jurisdiction
Any suit, action or proceeding against the Optionee with respect to
this Agreement, or any judgment entered by any court in respect of any thereof,
may be brought in any court of competent jurisdiction in the State of Delaware
(or if the Company reincorporates in another state, in that state) or New York,
as the Company may elect in its sole discretion, and the Optionee hereby submits
to the non-exclusive jurisdiction of such courts for the purpose of any such
suit, action, proceeding or judgment. The Optionee hereby irrevocably waives any
objections which he may now or hereafter have to the laying of the venue of any
suit, action or proceeding arising out of or relating to this Agreement brought
in any court of competent jurisdiction in the State of Delaware (or if the
Company reincorporates in another state, in that state) or New York, and hereby
further irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in any inconvenient forum. No suit,
action or proceeding against the Company with respect to this Agreement may be
brought in any court, domestic or foreign, or before any similar domestic or
foreign authority other than in a court of competent jurisdiction in the State
of Delaware (or if the Company reincorporates in another state, in that state)
or New York, and the Optionee hereby irrevocably waives any right which he may
otherwise have had to bring such an action in any other court, domestic or
foreign, or before any similar domestic or foreign authority. The Company hereby
submits to the jurisdiction of such courts for the purpose of any such suit,
action or proceeding. The Optionee hereby irrevocably and unconditionally waives
trial by jury in any legal action or proceeding in relation to this Agreement
and for any counterclaim therein.
<PAGE>
12
IN WITNESS WHEREOF, this Agreement has been executed and delivered
by the parties hereto.
Amphenol Corporation
By /s/ Edward C. Wetmore
-----------------------------------
Name: Edward C. Wetmore
Title: Secretary and General Counsel
/s/ Martin H. Loeffler
- -----------------------------
- -----------------------------
MARTIN H. LOEFFLER
- -----------------------------
58 N. Star Drive
Southington, CT 06489
- -----------------------------
Address
Martin H. Loeffler's Taxpayer
Identification Number:
332 74 0318
- -----------------------------
<PAGE>
EXHIBIT 10.18
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of May 19, 1997, is made by and between
AMPHENOL CORPORATION a Delaware corporation (hereinafter referred to as the
"Company"), and EDWARD G. JEPSEN, an employee of the Company or a Subsidiary (as
defined below) or Affiliate (as defined below) of the Company (hereinafter
referred to as "Optionee").
WHEREAS, the Company wishes to afford the Optionee the opportunity
to purchase shares of its Class A Common Stock, par value $.001 per share (the
"Common Stock");
WHEREAS, the Company wishes to carry out the Plan (as hereinafter
defined), the terms of which are hereby incorporated by reference and made a
part of this Agreement; and
WHEREAS, the Committee (as hereinafter defined), appointed to
administer the Plan, has determined that it would be to the advantage and best
interest of the Company and its stockholders to grant the Non-Qualified Options
provided for herein to the Optionee as an incentive for increased efforts during
his term of office with the Company or its Subsidiaries or Affiliates, and has
advised the Company thereof and instructed the undersigned officers to issue
said Options;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall
have the meaning specified in the Plan or below unless the context clearly
indicates to the contrary.
Section 1.1 - Affiliate
"Affiliate" shall mean, with respect to the Company, any corporation
directly or indirectly controlling, controlled by, or under common control with,
the Company or any other entity designated by the Board of Directors of the
Company in which the Company or an Affiliate has an interest.
<PAGE>
2
Section 1.2 - Cause
"Cause" shall mean, (i) the Optionee's willful and continued failure
to perform his or her duties with respect to the Company or its Subsidiaries
which continues beyond 10 days after a written demand for substantial
performance is delivered to the Optionee by the Company or (ii) misconduct by
the Optionee (x) involving dishonesty or breach of trust in connection with
Optionee's employment, (y) which would be a reasonable basis for an indictment
of the Optionee of a felony or a misdemeanor involving moral turpitude or (z)
which results in a demonstrable injury to the Company.
Section 1.3 - Change of Control
"Change of Control" shall mean (i) a sale of all or substantially
all of the assets of the Company to a Person who is not an Affiliate of Kohlberg
Kravis Roberts & Co. L.P. ("KKR"), (ii) an acquisition of voting stock of the
Company resulting in more than 50% of the voting stock of the Company being held
by a Person or Group that does not include KKR or any of its Affiliates or (iii)
the consummation of a merger, reorganization, business combination or
liquidation of the Company, but only if such merger, reorganization, business
combination or liquidation results in the KKR 1996 Fund L.P., a Delaware limited
partnership (the "Partnership") or NXS Associates L.P., or any affiliates or
affiliates thereof, together no longer having power (A) to elect a majority of
the Board of Directors of the Company or such other corporation which succeeds
to the Company's rights and obligation pursuant to such merger, reorganization,
business combination or liquidation, or (B) if the resulting entity of such
merger, reorganization, business combination or liquidation is not a
corporation, to select the general partner(s) or other persons or entities
controlling the operations and business of the resulting entity.
Section 1.4 - Code
"Code" shall mean the Internal Revenue Code of 1986, as amended.
Section 1.5 - Committee
"Committee" shall mean the Compensation Committee of the Company.
Section 1.6 - Good Reason
"Good Reason" shall mean (i) a reduction in Optionee's base salary
(other than a broad based salary reduction program affecting many members of
management), (ii) a substantial reduction in Optionee's duties and
responsibilities other than as approved by the Chief Executive Officer of the
Company as of the date of this Agreement, (iii) the elimination or reduction of
the Optionee's eligibility to participate in the Company's benefit programs that
is inconsistent with the eligibility of similarly situated employees of the
Company to participate therein, or (iv) a transfer of the Optionee's primary
workplace by more than fifty (50) miles from the workplace as of the date
hereof.
<PAGE>
3
Section 1.7 - Grant Date
"Grant Date" shall mean the date on which the Options provided for
in this Agreement were granted.
<PAGE>
4
Section 1.8 - Group
"Group" means two or more Persons acting together as a partnership,
limited partnership, syndicate or other group for the purpose of acquiring,
holding or disposing of securities of the Company.
Section 1.9 - Management Stockholder's Agreement
"Management Stockholder's Agreement" shall mean that certain
Management Stockholder's Agreement dated as of May 19, 1997, between the
Optionee and the Company.
Section 1.10 - Options
"Options" shall mean the non-qualified options, to purchase Common
Stock granted under this Agreement.
Section 1.11 - Permanent Disability
The Optionee shall be deemed to have a "Permanent Disability" if the
Optionee is unable to engage in the activities required by the Optionee's job by
reason of any medically determined physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.
Section 1.12 - Person
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
Section 1.13 - Plan
"Plan" shall mean the 1997 Option Plan for Key Employees of Amphenol
and Subsidiaries.
Section 1.14 - Pronouns
The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates.
Section 1.15 - Retirement
"Retirement" shall mean retirement at age 65 or over (or such other
age as may be approved by the Board of Directors of the Company) after having
been employed by the Company or a Subsidiary for at least three years after the
Grant Date.
<PAGE>
5
<PAGE>
6
Section 1.16 - Secretary
"Secretary" shall mean the Secretary of the Company.
Section 1.17 - Subsidiary
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations, or group of
commonly controlled corporations (other than the last corporation in the
unbroken chain), then owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations in such
chain.
Section 1.18 - Trigger Date
"Trigger Date" shall mean the date hereof.
ARTICLE II
GRANT OF OPTIONS
Section 2.1 - Grant of Options
For good and valuable consideration, on and as of the date hereof
the Company irrevocably grants to the Optionee an Option to purchase any part or
all of an aggregate of 230,769 shares of its $.001 par value Class A Common
Stock upon the terms and conditions set forth in this Agreement.
Section 2.2 - Exercise Price
Subject to Section 2.4, the exercise price of the shares of stock
covered by the Options (the "Option Exercise Price") shall be $26.00 per share
without commission or other charge.
Section 2.3 - No Right to Employment
Nothing in this Agreement or in the Plan shall confer upon the
Optionee any right to continue in the employ of the Company or any Subsidiary or
Affiliate or shall interfere with or restrict in any way the rights of the
Company and its Subsidiaries or Affiliates, which are hereby expressly reserved,
to terminate the employment of the Optionee at any time for any reason
whatsoever, with or without Cause.
Section 2.4 - Adjustments in Options Pursuant to Merger, Consolidation, etc.
<PAGE>
7
Subject to Section 9 of the Plan, in the event that the outstanding
shares of the stock subject to an Option are, from time to time, changed into or
exchanged for a different number or kind of shares of the Company or other
securities of the Company by reason of a merger, consolidation,
recapitalization, reclassification, stock split, stock dividend, combination of
shares, or otherwise, the Committee shall make an adjustment in the number and
kind of shares and/or the amount of consideration as to which or for which, as
the case may be, such Option, or portions thereof then unexercised, shall be
exercisable, in such manner as the Committee determines is reasonably necessary
to maintain as nearly as practicable the rights, benefits and obligations that
the parties would have had absent such event. Any such adjustment made by the
Committee shall be final and binding upon the Optionee, the Company and all
other interested persons.
ARTICLE III
PERIOD OF EXERCISABILITY
Section 3.1 - Commencement of Exercisability
(a) Options shall become exercisable as follows:
Percentage of Option
Date Option Shares Granted As to Which
Becomes Exercisable Option Is Exercisable
- ------------------- ---------------------
After the first anniversary
of the Trigger Date 20%
After the second anniversary
of the Trigger Date 40%
After the third anniversary
of the Trigger Date 60%
After the fourth anniversary
of the Trigger Date 80%
After the fifth anniversary
of the Trigger Date 100%
Notwithstanding the foregoing, (x) no Options shall become
exercisable prior to the time the Plan is approved by the Company's
stockholders, and (y) subject to the immediately preceding clause (x), the
Options shall become immediately exercisable as to 100% of the shares of Common
Stock subject to such Options immediately prior to a Change
<PAGE>
8
of Control (but only to the extent such Options have not otherwise terminated or
become exercisable).
(b) Notwithstanding the foregoing, no Option shall become
exercisable as to any additional shares of Common Stock following the
termination of employment of the Optionee for any reason other than a
termination of employment because of death or Permanent Disability of the
Optionee, and any Option (other than as provided in the next succeeding
sentence) which is non-exercisable as of the Optionee's termination of
employment shall be immediately cancelled. In the event of a termination of
employment because of such death or Permanent Disability, the Options shall
immediately become exercisable as to all shares of Common Stock subject thereto.
Section 3.2 - Expiration of Options
Except as otherwise provided in Section 5 or 6 of the Management
Stockholder's Agreement, the Options may not be exercised to any extent by the
Optionee after the first to occur of the following events:
(a) The tenth anniversary of the Grant Date; or
(b) The first anniversary of the date of the Optionee's termination
of employment by reason of death, Permanent Disability or Retirement; or
(c) The first business day which is fifteen calendar days after the
earlier of (i) 75 days after termination of employment of the Optionee for
any reason other than for death, Permanent Disability or Retirement and
(ii) the delivery of notice by the Company that it does not intend to
exercise its call rights under Section 6 of the Management Stockholder's
Agreement; provided, however, that in any event the Options shall remain
exercisable under this subsection 3.2(c) until at least 45 days after
termination of employment of the Optionee for any reason other than for
death, Permanent Disability or Retirement; or
(d) The date the Option is terminated pursuant to Section 5, 6 or
8(b) of the Management Stockholder's Agreement; or
(e) If the Committee so elects pursuant to Section 9 of the Plan,
the effective date of a Transaction; provided, however, that the Committee
has provided Optionee with a reasonable period of notice prior to the
effective date of such Transaction in which to exercise Options that have
then neither been fully exercised nor become unexercisable under this
Section 3.2.
ARTICLE IV
EXERCISE OF OPTIONS
<PAGE>
9
Section 4.1 - Person Eligible to Exercise
Except as provided in the Management Stockholder's Agreement, during
the lifetime of the Optionee, only he may exercise an Option or any portion
thereof. After the death of the Optionee, any exercisable portion of an Option
may, prior to the time when an Option becomes unexercisable under Section 3.2,
be exercised by his personal representative or by any person empowered to do so
under the Optionee's will or under the then applicable laws of descent and
distribution.
Section 4.2 - Partial Exercise
Any exercisable portion of an Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.2; provided, however, that any partial exercise shall be for whole shares of
Common Stock only.
Section 4.3 - Manner of Exercise
An Option, or any exercisable portion thereof, may be exercised
solely by delivering to the Secretary or his office all of the following prior
to the time when the Option or such portion becomes unexercisable under Section
3.2:
(a) Notice in writing signed by the Optionee or the other person
then entitled to exercise the Option or portion thereof, stating that the
Option or portion thereof is thereby exercised, such notice complying with
all applicable rules established by the Committee;
(b) Full payment (in cash, by check or by a combination thereof) for
the shares with respect to which such Option or portion thereof is
exercised;
(c) A bona fide written representation and agreement, in a form
satisfactory to the Committee, signed by the Optionee or other person then
entitled to exercise such Option or portion thereof, stating that the
shares of stock are being acquired for his own account, for investment and
without any present intention of distributing or reselling said shares or
any of them except as may be permitted under the Securities Act of 1933,
as amended (the "Act"), and then applicable rules and regulations
thereunder, and that the Optionee or other person then entitled to
exercise such Option or portion thereof will indemnify the Company against
and hold it free and harmless from any loss, damage, expense or liability
resulting to the Company if any sale or distribution of the shares by such
person is contrary to the representation and agreement referred to above;
provided, however, that the Committee may, in its absolute discretion,
take whatever additional actions it deems appropriate to ensure the
observance and performance of such representation and agreement and to
effect compliance with the Act and any other federal or state securities
laws or regulations;
<PAGE>
10
(d) Full payment to the Company of all amounts which, under federal,
state or local law, it is required to withhold upon exercise of the
Option; and
(e) In the event the Option or portion thereof shall be exercised
pursuant to Section 4.1 by any person or persons other than the Optionee,
appropriate proof of the right of such person or persons to exercise the
option.
Without limiting the generality of the foregoing, the Committee may require an
opinion of counsel acceptable to it to the effect that any subsequent transfer
of shares acquired on exercise of an Option does not violate the Act, and may
issue stop-transfer orders covering such shares. Share certificates evidencing
stock issued on exercise of this Option shall bear an appropriate legend
referring to the provisions of subsection (c) above and the agreements herein.
The written representation and agreement referred to in subsection (c) above
shall, however, not be required if the shares to be issued pursuant to such
exercise have been registered under the Act, and such registration is then
effective in respect of such shares.
Section 4.4 - Conditions to Issuance of Stock Certificates
The shares of stock deliverable upon the exercise of an Option, or
any portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be validly issued, fully paid and nonassessable. The Company shall not be
required to issue or deliver any certificate or certificates for shares of stock
purchased upon the exercise of an Option or portion thereof prior to fulfillment
of all of the following conditions:
(a) The obtaining of approval or other clearance from any state or
federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(b) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may from time to time establish
for reasons of administrative convenience.
Section 4.5 - Rights as Stockholder
The holder of an Option shall not be, nor have any of the rights or
privileges of, a stockholder of the Company in respect of any shares purchasable
upon the exercise of the Option or any portion thereof unless and until
certificates representing such shares shall have been issued by the Company to
such holder.
ARTICLE V
MISCELLANEOUS
Section 5.1 - Administration
<PAGE>
11
The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke
any such rules. All actions taken and all interpretations and determinations
made by the Committee shall be final and binding upon the Optionee, the Company
and all other interested persons. No member of the Committee shall be personally
liable for any action, determination or interpretation made in good faith with
respect to the Plan or the Options. In its absolute discretion, the Board of
Directors may at any time and from time to time exercise any and all rights and
duties of the Committee under the Plan and this Agreement.
Section 5.2 - Options Not Transferable
Except as provided in the Management Stockholder's Agreement,
neither the Options nor any interest or right therein or part thereof shall be
liable for the debts, contracts or engagements of the Optionee or his successors
in interest or shall be subject to disposition by transfer, alienation,
anticipation, pledge, encumbrance, assignment or any other means whether such
disposition be voluntary or involuntary or by operation of law by judgment,
levy, attachment, garnishment or any other legal or equitable proceedings
(including bankruptcy), and any attempted disposition thereof shall be null and
void and of no effect; provided, however, that this Section 5.2 shall not
prevent transfers by will or by the applicable laws of descent and distribution.
Section 5.3 - Shares to Be Reserved
The Company shall at all times during the term of the Options
reserve and keep available such number of shares of stock as will be sufficient
to satisfy the requirements of this Agreement.
Section 5.4 - Notices
Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Optionee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Optionee shall, if
the Optionee is then deceased, be given to the Optionee's personal
representative if such representative has previously informed the Company of his
status and address by written notice under this Section 5.4. Any notice shall
have been deemed duly given when enclosed in a properly sealed envelope or
wrapper addressed as aforesaid, deposited (with postage prepaid) in a post
office or branch post office regularly maintained by the United States Postal
Service, or when sent by overnight delivery or telecopy.
Section 5.5 - Titles
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
<PAGE>
12
Section 5.6 - Applicability of Plan and Management Stockholder's Agreement
The Options and the shares of Common Stock issued to the Optionee
upon exercise of the Options shall be subject to all of the terms and provisions
of the Plan and the Management Stockholder's Agreement, to the extent applicable
to the Options and such shares. In the event of any conflict between this
Agreement and the Plan, the terms of the Plan shall control. In the event of any
conflict between this Agreement or the Plan and the Management Stockholder's
Agreement, the terms of the Management Stockholder's Agreement shall control.
Section 5.7 - Amendment
This Agreement may be amended only by a writing executed by the
parties hereto which specifically states that it is amending this Agreement.
Section 5.8 - Governing Law
The laws of the State of Delaware (or if the Company reincorporates
in another state, the laws of that state) shall govern the interpretation,
validity and performance of the terms of this Agreement regardless of the law
that might be applied under principles of conflicts of laws.
Section 5.9 - Jurisdiction
Any suit, action or proceeding against the Optionee with respect to
this Agreement, or any judgment entered by any court in respect of any thereof,
may be brought in any court of competent jurisdiction in the State of Delaware
(or if the Company reincorporates in another state, in that state) or New York,
as the Company may elect in its sole discretion, and the Optionee hereby submits
to the non-exclusive jurisdiction of such courts for the purpose of any such
suit, action, proceeding or judgment. The Optionee hereby irrevocably waives any
objections which he may now or hereafter have to the laying of the venue of any
suit, action or proceeding arising out of or relating to this Agreement brought
in any court of competent jurisdiction in the State of Delaware (or if the
Company reincorporates in another state, in that state) or New York, and hereby
further irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in any inconvenient forum. No suit,
action or proceeding against the Company with respect to this Agreement may be
brought in any court, domestic or foreign, or before any similar domestic or
foreign authority other than in a court of competent jurisdiction in the State
of Delaware (or if the Company reincorporates in another state, in that state)
or New York, and the Optionee hereby irrevocably waives any right which he may
otherwise have had to bring such an action in any other court, domestic or
foreign, or before any similar domestic or foreign authority. The Company hereby
submits to the jurisdiction of such courts for the purpose of any such suit,
action or proceeding. The Optionee hereby irrevocably and unconditionally waives
trial by jury in any legal action or proceeding in relation to this Agreement
and for any counterclaim therein.
<PAGE>
13
IN WITNESS WHEREOF, this Agreement has been executed and delivered
by the parties hereto.
Amphenol Corporation
By /s/ Edward C. Wetmore
-----------------------------------
Name: Edward C. Wetmore
Title: Secretary and General Counsel
/s/ Edward G. Jepsen
- -----------------------------
- -----------------------------
EDWARD G. JEPSEN
- -----------------------------
14 Gale Road
Bloomfield, CT 06002
- -----------------------------
Address
Edward G. Jepsen's Taxpayer
Identification Number:
507 52 0044
- -----------------------------
<PAGE>
EXHIBIT 10.19
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of May 19, 1997, is made by and between
AMPHENOL CORPORATION a Delaware corporation (hereinafter referred to as the
"Company"), and TIMOTHY F. COHANE, an employee of the Company or a Subsidiary
(as defined below) or Affiliate (as defined below) of the Company (hereinafter
referred to as "Optionee").
WHEREAS, the Company wishes to afford the Optionee the opportunity
to purchase shares of its Class A Common Stock, par value $.001 per share (the
"Common Stock");
WHEREAS, the Company wishes to carry out the Plan (as hereinafter
defined), the terms of which are hereby incorporated by reference and made a
part of this Agreement; and
WHEREAS, the Committee (as hereinafter defined), appointed to
administer the Plan, has determined that it would be to the advantage and best
interest of the Company and its stockholders to grant the Non-Qualified Options
provided for herein to the Optionee as an incentive for increased efforts during
his term of office with the Company or its Subsidiaries or Affiliates, and has
advised the Company thereof and instructed the undersigned officers to issue
said Options;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall
have the meaning specified in the Plan or below unless the context clearly
indicates to the contrary.
Section 1.1 - Affiliate
"Affiliate" shall mean, with respect to the Company, any corporation
directly or indirectly controlling, controlled by, or under common control with,
the Company or any other entity designated by the Board of Directors of the
Company in which the Company or an Affiliate has an interest.
Section 1.2 - Cause
"Cause" shall mean, (i) the Optionee's willful and continued failure
to perform his or her duties with respect to the Company or its Subsidiaries
which continues beyond 10 days after a written demand for substantial
performance is delivered to the Optionee by the Company or (ii) misconduct by
the Optionee (x) involving dishonesty or breach of trust in
<PAGE>
2
connection with Optionee's employment, (y) which would be a reasonable basis for
an indictment of the Optionee of a felony or a misdemeanor involving moral
turpitude or (z) which results in a demonstrable injury to the Company.
Section 1.3 - Change of Control
"Change of Control" shall mean (i) a sale of all or substantially
all of the assets of the Company to a Person who is not an Affiliate of Kohlberg
Kravis Roberts & Co. L.P. ("KKR"), (ii) an acquisition of voting stock of the
Company resulting in more than 50% of the voting stock of the Company being held
by a Person or Group that does not include KKR or any of its Affiliates or (iii)
the consummation of a merger, reorganization, business combination or
liquidation of the Company, but only if such merger, reorganization, business
combination or liquidation results in the KKR 1996 Fund L.P., a Delaware limited
partnership (the "Partnership") or NXS Associates L.P., or any affiliates or
affiliates thereof, together no longer having power (A) to elect a majority of
the Board of Directors of the Company or such other corporation which succeeds
to the Company's rights and obligation pursuant to such merger, reorganization,
business combination or liquidation, or (B) if the resulting entity of such
merger, reorganization, business combination or liquidation is not a
corporation, to select the general partner(s) or other persons or entities
controlling the operations and business of the resulting entity.
Section 1.4 - Code
"Code" shall mean the Internal Revenue Code of 1986, as amended.
Section 1.5 - Committee
"Committee" shall mean the Compensation Committee of the Company.
Section 1.6 - Good Reason
"Good Reason" shall mean (i) a reduction in Optionee's base salary
(other than a broad based salary reduction program affecting many members of
management), (ii) a substantial reduction in Optionee's duties and
responsibilities other than as approved by the Chief Executive Officer of the
Company as of the date of this Agreement, (iii) the elimination or reduction of
the Optionee's eligibility to participate in the Company's benefit programs that
is inconsistent with the eligibility of similarly situated employees of the
Company to participate therein, or (iv) a transfer of the Optionee's primary
workplace by more than fifty (50) miles from the workplace as of the date
hereof.
Section 1.7 - Grant Date
"Grant Date" shall mean the date on which the Options provided for
in this Agreement were granted.
<PAGE>
3
<PAGE>
4
Section 1.8 - Group
"Group" means two or more Persons acting together as a partnership,
limited partnership, syndicate or other group for the purpose of acquiring,
holding or disposing of securities of the Company.
Section 1.9 - Management Stockholder's Agreement
"Management Stockholder's Agreement" shall mean that certain
Management Stockholder's Agreement dated as of May 19, 1997, between the
Optionee and the Company.
Section 1.10 - Options
"Options" shall mean the non-qualified options, to purchase Common
Stock granted under this Agreement.
Section 1.11 - Permanent Disability
The Optionee shall be deemed to have a "Permanent Disability" if the
Optionee is unable to engage in the activities required by the Optionee's job by
reason of any medically determined physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.
Section 1.12 - Person
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
Section 1.13 - Plan
"Plan" shall mean the 1997 Option Plan for Key Employees of Amphenol
and Subsidiaries.
Section 1.14 - Pronouns
The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates.
Section 1.15 - Retirement
"Retirement" shall mean retirement at age 65 or over (or such other
age as may be approved by the Board of Directors of the Company) after having
been employed by the Company or a Subsidiary for at least three years after the
Grant Date.
<PAGE>
5
<PAGE>
6
Section 1.16 - Secretary
"Secretary" shall mean the Secretary of the Company.
Section 1.17 - Subsidiary
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations, or group of
commonly controlled corporations (other than the last corporation in the
unbroken chain), then owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations in such
chain.
Section 1.18 - Trigger Date
"Trigger Date" shall mean the date hereof.
ARTICLE II
GRANT OF OPTIONS
Section 2.1 - Grant of Options
For good and valuable consideration, on and as of the date hereof
the Company irrevocably grants to the Optionee an Option to purchase any part or
all of an aggregate of 230,769 shares of its $.001 par value Class A Common
Stock upon the terms and conditions set forth in this Agreement.
Section 2.2 - Exercise Price
Subject to Section 2.4, the exercise price of the shares of stock
covered by the Options (the "Option Exercise Price") shall be $26.00 per share
without commission or other charge.
Section 2.3 - No Right to Employment
Nothing in this Agreement or in the Plan shall confer upon the
Optionee any right to continue in the employ of the Company or any Subsidiary or
Affiliate or shall interfere with or restrict in any way the rights of the
Company and its Subsidiaries or Affiliates, which are hereby expressly reserved,
to terminate the employment of the Optionee at any time for any reason
whatsoever, with or without Cause.
Section 2.4 - Adjustments in Options Pursuant to Merger, Consolidation, etc.
<PAGE>
7
Subject to Section 9 of the Plan, in the event that the outstanding
shares of the stock subject to an Option are, from time to time, changed into or
exchanged for a different number or kind of shares of the Company or other
securities of the Company by reason of a merger, consolidation,
recapitalization, reclassification, stock split, stock dividend, combination of
shares, or otherwise, the Committee shall make an adjustment in the number and
kind of shares and/or the amount of consideration as to which or for which, as
the case may be, such Option, or portions thereof then unexercised, shall be
exercisable, in such manner as the Committee determines is reasonably necessary
to maintain as nearly as practicable the rights, benefits and obligations that
the parties would have had absent such event. Any such adjustment made by the
Committee shall be final and binding upon the Optionee, the Company and all
other interested persons.
ARTICLE III
PERIOD OF EXERCISABILITY
Section 3.1 - Commencement of Exercisability
(a) Options shall become exercisable as follows:
Percentage of Option
Date Option Shares Granted As to Which
Becomes Exercisable Option Is Exercisable
- ------------------- ---------------------
After the first anniversary
of the Trigger Date 20%
After the second anniversary
of the Trigger Date 40%
After the third anniversary
of the Trigger Date 60%
After the fourth anniversary
of the Trigger Date 80%
After the fifth anniversary
of the Trigger Date 100%
Notwithstanding the foregoing, (x) no Options shall become
exercisable prior to the time the Plan is approved by the Company's
stockholders, and (y) subject to the immediately preceding clause (x), the
Options shall become immediately exercisable as to 100% of the shares of Common
Stock subject to such Options immediately prior to a Change
<PAGE>
8
of Control (but only to the extent such Options have not otherwise terminated or
become exercisable).
(b) Notwithstanding the foregoing, no Option shall become
exercisable as to any additional shares of Common Stock following the
termination of employment of the Optionee for any reason other than a
termination of employment because of death or Permanent Disability of the
Optionee, and any Option (other than as provided in the next succeeding
sentence) which is non-exercisable as of the Optionee's termination of
employment shall be immediately cancelled. In the event of a termination of
employment because of such death or Permanent Disability, the Options shall
immediately become exercisable as to all shares of Common Stock subject thereto.
Section 3.2 - Expiration of Options
Except as otherwise provided in Section 5 or 6 of the Management
Stockholder's Agreement, the Options may not be exercised to any extent by the
Optionee after the first to occur of the following events:
(a) The tenth anniversary of the Grant Date; or
(b) The first anniversary of the date of the Optionee's termination
of employment by reason of death, Permanent Disability or Retirement; or
(c) The first business day which is fifteen calendar days after the
earlier of (i) 75 days after termination of employment of the Optionee for
any reason other than for death, Permanent Disability or Retirement and
(ii) the delivery of notice by the Company that it does not intend to
exercise its call rights under Section 6 of the Management Stockholder's
Agreement; provided, however, that in any event the Options shall remain
exercisable under this subsection 3.2(c) until at least 45 days after
termination of employment of the Optionee for any reason other than for
death, Permanent Disability or Retirement; or
(d) The date the Option is terminated pursuant to Section 5, 6 or
8(b) of the Management Stockholder's Agreement; or
(e) If the Committee so elects pursuant to Section 9 of the Plan,
the effective date of a Transaction; provided, however, that the Committee
has provided Optionee with a reasonable period of notice prior to the
effective date of such Transaction in which to exercise Options that have
then neither been fully exercised nor become unexercisable under this
Section 3.2.
ARTICLE IV
EXERCISE OF OPTIONS
<PAGE>
9
Section 4.1 - Person Eligible to Exercise
Except as provided in the Management Stockholder's Agreement, during
the lifetime of the Optionee, only he may exercise an Option or any portion
thereof. After the death of the Optionee, any exercisable portion of an Option
may, prior to the time when an Option becomes unexercisable under Section 3.2,
be exercised by his personal representative or by any person empowered to do so
under the Optionee's will or under the then applicable laws of descent and
distribution.
Section 4.2 - Partial Exercise
Any exercisable portion of an Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.2; provided, however, that any partial exercise shall be for whole shares of
Common Stock only.
Section 4.3 - Manner of Exercise
An Option, or any exercisable portion thereof, may be exercised
solely by delivering to the Secretary or his office all of the following prior
to the time when the Option or such portion becomes unexercisable under Section
3.2:
(a) Notice in writing signed by the Optionee or the other person
then entitled to exercise the Option or portion thereof, stating that the
Option or portion thereof is thereby exercised, such notice complying with
all applicable rules established by the Committee;
(b) Full payment (in cash, by check or by a combination thereof) for
the shares with respect to which such Option or portion thereof is
exercised;
(c) A bona fide written representation and agreement, in a form
satisfactory to the Committee, signed by the Optionee or other person then
entitled to exercise such Option or portion thereof, stating that the
shares of stock are being acquired for his own account, for investment and
without any present intention of distributing or reselling said shares or
any of them except as may be permitted under the Securities Act of 1933,
as amended (the "Act"), and then applicable rules and regulations
thereunder, and that the Optionee or other person then entitled to
exercise such Option or portion thereof will indemnify the Company against
and hold it free and harmless from any loss, damage, expense or liability
resulting to the Company if any sale or distribution of the shares by such
person is contrary to the representation and agreement referred to above;
provided, however, that the Committee may, in its absolute discretion,
take whatever additional actions it deems appropriate to ensure the
observance and performance of such representation and agreement and to
effect compliance with the Act and any other federal or state securities
laws or regulations;
<PAGE>
10
(d) Full payment to the Company of all amounts which, under federal,
state or local law, it is required to withhold upon exercise of the
Option; and
(e) In the event the Option or portion thereof shall be exercised
pursuant to Section 4.1 by any person or persons other than the Optionee,
appropriate proof of the right of such person or persons to exercise the
option.
Without limiting the generality of the foregoing, the Committee may require an
opinion of counsel acceptable to it to the effect that any subsequent transfer
of shares acquired on exercise of an Option does not violate the Act, and may
issue stop-transfer orders covering such shares. Share certificates evidencing
stock issued on exercise of this Option shall bear an appropriate legend
referring to the provisions of subsection (c) above and the agreements herein.
The written representation and agreement referred to in subsection (c) above
shall, however, not be required if the shares to be issued pursuant to such
exercise have been registered under the Act, and such registration is then
effective in respect of such shares.
Section 4.4 - Conditions to Issuance of Stock Certificates
The shares of stock deliverable upon the exercise of an Option, or
any portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be validly issued, fully paid and nonassessable. The Company shall not be
required to issue or deliver any certificate or certificates for shares of stock
purchased upon the exercise of an Option or portion thereof prior to fulfillment
of all of the following conditions:
(a) The obtaining of approval or other clearance from any state or
federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(b) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may from time to time establish
for reasons of administrative convenience.
Section 4.5 - Rights as Stockholder
The holder of an Option shall not be, nor have any of the rights or
privileges of, a stockholder of the Company in respect of any shares purchasable
upon the exercise of the Option or any portion thereof unless and until
certificates representing such shares shall have been issued by the Company to
such holder.
ARTICLE V
MISCELLANEOUS
Section 5.1 - Administration
<PAGE>
11
The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke
any such rules. All actions taken and all interpretations and determinations
made by the Committee shall be final and binding upon the Optionee, the Company
and all other interested persons. No member of the Committee shall be personally
liable for any action, determination or interpretation made in good faith with
respect to the Plan or the Options. In its absolute discretion, the Board of
Directors may at any time and from time to time exercise any and all rights and
duties of the Committee under the Plan and this Agreement.
Section 5.2 - Options Not Transferable
Except as provided in the Management Stockholder's Agreement,
neither the Options nor any interest or right therein or part thereof shall be
liable for the debts, contracts or engagements of the Optionee or his successors
in interest or shall be subject to disposition by transfer, alienation,
anticipation, pledge, encumbrance, assignment or any other means whether such
disposition be voluntary or involuntary or by operation of law by judgment,
levy, attachment, garnishment or any other legal or equitable proceedings
(including bankruptcy), and any attempted disposition thereof shall be null and
void and of no effect; provided, however, that this Section 5.2 shall not
prevent transfers by will or by the applicable laws of descent and distribution.
Section 5.3 - Shares to Be Reserved
The Company shall at all times during the term of the Options
reserve and keep available such number of shares of stock as will be sufficient
to satisfy the requirements of this Agreement.
Section 5.4 - Notices
Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Optionee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Optionee shall, if
the Optionee is then deceased, be given to the Optionee's personal
representative if such representative has previously informed the Company of his
status and address by written notice under this Section 5.4. Any notice shall
have been deemed duly given when enclosed in a properly sealed envelope or
wrapper addressed as aforesaid, deposited (with postage prepaid) in a post
office or branch post office regularly maintained by the United States Postal
Service, or when sent by overnight delivery or telecopy.
Section 5.5 - Titles
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
<PAGE>
12
Section 5.6 - Applicability of Plan and Management Stockholder's Agreement
The Options and the shares of Common Stock issued to the Optionee
upon exercise of the Options shall be subject to all of the terms and provisions
of the Plan and the Management Stockholder's Agreement, to the extent applicable
to the Options and such shares. In the event of any conflict between this
Agreement and the Plan, the terms of the Plan shall control. In the event of any
conflict between this Agreement or the Plan and the Management Stockholder's
Agreement, the terms of the Management Stockholder's Agreement shall control.
Section 5.7 - Amendment
This Agreement may be amended only by a writing executed by the
parties hereto which specifically states that it is amending this Agreement.
Section 5.8 - Governing Law
The laws of the State of Delaware (or if the Company reincorporates
in another state, the laws of that state) shall govern the interpretation,
validity and performance of the terms of this Agreement regardless of the law
that might be applied under principles of conflicts of laws.
Section 5.9 - Jurisdiction
Any suit, action or proceeding against the Optionee with respect to
this Agreement, or any judgment entered by any court in respect of any thereof,
may be brought in any court of competent jurisdiction in the State of Delaware
(or if the Company reincorporates in another state, in that state) or New York,
as the Company may elect in its sole discretion, and the Optionee hereby submits
to the non-exclusive jurisdiction of such courts for the purpose of any such
suit, action, proceeding or judgment. The Optionee hereby irrevocably waives any
objections which he may now or hereafter have to the laying of the venue of any
suit, action or proceeding arising out of or relating to this Agreement brought
in any court of competent jurisdiction in the State of Delaware (or if the
Company reincorporates in another state, in that state) or New York, and hereby
further irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in any inconvenient forum. No suit,
action or proceeding against the Company with respect to this Agreement may be
brought in any court, domestic or foreign, or before any similar domestic or
foreign authority other than in a court of competent jurisdiction in the State
of Delaware (or if the Company reincorporates in another state, in that state)
or New York, and the Optionee hereby irrevocably waives any right which he may
otherwise have had to bring such an action in any other court, domestic or
foreign, or before any similar domestic or foreign authority. The Company hereby
submits to the jurisdiction of such courts for the purpose of any such suit,
action or proceeding. The Optionee hereby irrevocably and unconditionally waives
trial by jury in any legal action or proceeding in relation to this Agreement
and for any counterclaim therein.
<PAGE>
13
IN WITNESS WHEREOF, this Agreement has been executed and delivered
by the parties hereto.
Amphenol Corporation
By /s/ Edward C. Wetmore
-----------------------------------
Name: Edward C. Wetmore
Title: Secretary and General Counsel
/s/ Timothy F. Cohane
- -----------------------------
- -----------------------------
TIMOTHY F. COHANE
- -----------------------------
65 Pine Brook Court
Cheshire, CT 06410
- -----------------------------
Address
Timothy F. Cohane's Taxpayer
Identification Number:
045 46 8703
- -----------------------------
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<PAGE>
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